Simon Marsden

Strategic Environmental Assessment Legislation in Australian States and Territories

Strategic Environmental Assessment (SEA) evaluates the impacts from policies, plans and programs with the objective of contributing to ecologically sustainable development. SEA has been applied voluntarily under many guises, but what provisions exist in Australian law for SEA? At the federal level, there are SEA requirements under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) and the National Environment Protection Council Act 1994 (Cwlth), both of which have resulted in assessment of strategic proposals, primarily of fisheries plans and of National Environment Protection Measures. Four of Australias states have legislative requirements for SEA that relate to environmental planning and protection (New South Wales, Victoria, Western Australia and Tasmania), and the two self governing territories also have some SEA provision. However experience is mixed to date, with little if any research undertaken. We briefly examine the implementation of these laws from a comparative perspective, and conclude that SEA legislation at the state level, at least, has developed significantly over the last ten years, and that legislative effort compares very favourably with effort at the federal level. However SEA is still not carried out in a tiered planning framework in any of the jurisdictions, and political will and understanding of the benefits of SEA remains weak.

AN INTERNATIONAL OVERVIEW OF STRATEGIC ENVIRONMENTAL ASSESSMENT, WITH REFERENCE TO WORLD HERITAGE AREAS GLOBALLY AND IN AUSTRALIAN COASTAL ZONES

This paper examines international best practice with strategic environmental assessment (SEA), which is designed to advance sustainability and overcome weaknesses in environmental impact assessment (EIA). It illustrates how government, business and the community have identified the need for SEA. It explains why there has been a substantial debate regarding the importance of establishing key principles, and why consideration must be given to decision and policy contexts in order to guide future successful development. Methods and procedures are outlined, and SEA practice and potential nationally, regionally and globally is considered with particular regard to World Heritage Areas (WHAs). Conclusions and recommendations are drawn with specific reference to the current and future position of SEA and WHAs in Australian coastal zones.

Protecting Heritage On Australia'S Coasts: A Role For Strategic Environmental Assessment?

This article examines two experiences with strategic environmental assessment (SEA) in Australia, one complete the other in progress. The first applied SEA to a plan for a liquefied natural gas hub precinct on the National Heritage listed Kimberley coast of Western Australia, and the second applies SEA to a coastal management, planning and development framework for the World Heritage listed Great Barrier Reef on the coast of Queensland. Both cases illustrate the approach of the Australian governments to SEA, highlighting the benefits of the approach yet certain flaws in application and process. The research consists of an extensive evaluation of the relevant legislation, its application and reform, together with a thorough literature review. Results highlight concerns in relation to the objective of SEA in Australia, its initiation and timing, consideration of alternatives, and governance. Conclusions are that SEA in Australia will be enhanced if the purpose is more explicitly focused on environmental protection, if SEA is applied early to a reasonable range of alternative sites, and if the Australian Government continues to play an active role in relation to matters of national environmental significance.

Introducing strategic environmental assessment to the Madrid Protocol: Lessons from international experience

This article advocates potential reform of the Madrid Environmental Protection Protocol to introduce strategic environmental assessment (SEA), which applies environmental impact assessment (EIA) procedures to policies, plans and programmes. Since government decisions are targets for SEA, together with strategic proposals concerning tourism, these are likely to be the main focus. In the case of the former, reform may prove controversial because of the importance of science to the Antarctic Treaty System. Yet there is momentum for SEA internationally, with the European Union (EU) SEA Directive (currently limited to plans and programmes) having recently been reviewed after its first five years of operation, and the Kiev SEA Protocol to the Espoo Convention (which encourages application also to policies), now in force. Noting decisions by the EU and Espoo Convention Parties to prepare a separate SEA legal instrument, and the overlap between them and Antarctic Treaty Consultative Parties, it considers whether a separate SEA Annex is feasible.

INVOKING DIRECT APPLICATION AND EFFECT OF INTERNATIONAL TREATIES BY THE EUROPEAN COURT OF JUSTICE: IMPLICATIONS FOR INTERNATIONAL ENVIRONMENTAL LAW IN THE EUROPEAN UNION

This article analyses the contribution made to the effective implementation of international environmental law in the EU by the ECJ invoking direct application and effect of international treaties. It considers the requirements of these doctrines in international law, distinguishing them from related doctrines in EU law. It reviews jurisprudence and literature and evaluates future potential. Implications for direct application and effect from the EU doctrine of primacy and for the principle of effective judicial protection are examined, and alternatives to full transposition, implementation and enforcement explored, including non-compliance procedures.

From the High North to the Roof of the World: Arctic Precedents for Third Pole Governance

This article analyses the potential to apply legal and policy instruments from the ‘First Pole’, (the Arctic), to the ‘Third Pole,’ (the Himalayas/Tibetan Plateau) – the Antarctic is the ‘Second Pole.’ The Third Pole shares many environmental challenges with the Arctic: territorially both are comprised of nation states with domestic agendas; the issues of climate change, development and energy security are also common to both, and have transboundary dimensions. While acknowledging the contextual differences between Arctic states in the North and those with territory in the highest part of Asia (and the world), the growing relationship between them, institutions which regulate their affairs, and these shared challenges suggest there is opportunity to develop Third Pole environmental governance. The article reviews Arctic Council arrangements, focusing upon the South Asian Association for Regional Cooperation, and South Asia Cooperative Environment Program as reform platforms. It finds potential exists if political will is forthcoming, particularly on the part of China and India.

Environmental Assessment of Cross-Border Development: China and the Third Pole

This paper examines China’s role in the regulatory framework for environmental assessment in the ‘Third Pole’ sub-region of South Asia: the Tibetan Plateau and related mountain ranges, in particular the Himalayas. To date development has been limited, partly as a result of poverty, conflict and relative inaccessibility. However, recent collaboration between China and Pakistan, improved communication between India and China, Chinese development of Tibet, and the export of Chinese development to other countries in the sub-region financed by the Asian Infrastructure Investment Bank, is likely to change things dramatically. Major infrastructure development, such as railways and hydroelectric dams, will place the environment under considerable pressure in the future. Given the cross-border focus of this development, the paper examines transboundary solutions to environmental protection, in particular transboundary Environmental Impact Assessment (EIA) under international law and the development of a new environmental safeguards policy.

The World Heritage Convention in the Arctic and Indigenous People: Time to Reform?

This article analyses the role of the World Heritage Convention in the Arctic, particularly the role of Indigenous people in environmental protection and governance of natural, mixed and transboundary properties. It outlines the Convention in an Arctic context, profiles Arctic properties on the World Heritage List and Tentative List, and considers Arctic properties that may appear on the List of World Heritage in Danger. It gives detailed consideration to examples of Arctic natural, mixed, and potentially transboundary, properties of greatest significance to Indigenous people with reference to their environmental protection and management. In doing so, it reviews and analyses recent high-level critiques of the application of the Convention in the Arctic. Conclusions follow, the most significant of which is that the Convention and its Operational Guidelines must be reformed to be consistent with the United Nations Declaration on the Rights of Indigenous People.

Direct Public Access to EU Courts: Upholding Public International Law via the Aarhus Convention Compliance Committee

This article examines the opportunities for individuals and non-governmental organisations (NGOs) to obtain access to justice in the European Union (EU) via international law. In the context of the first part of a concluded case before the Aarhus Convention Compliance Committee (ACCC), it reviews the EU rules that restrict standing and examines whether the preliminary reference procedure from Member State courts provides an effective alternative to direct access to EU courts. Based on the general findings and recommendations, and analysis of the relationship between international and EU law, it is argued that there remains a need for greater EU compliance with the Convention, with the implication that EU primary as well as secondary law may need to be reformed if public international law obligations are to be fully met.

Protecting Wild Land from Wind Farms in a Post-EU Scotland

Scotland is one of the places in Europe to have experienced significant wind farm development over recent years. Concern about impacts on wild land has resulted in legal challenges based on European Union (EU) law. This article analyses whether wild land can be protected from wind farms and the differences that the United Kingdom departure from the EU will make. It considers the concept of ‘wild land’ compared with ‘wilderness’, analyses the legal basis (if any) for wild land protection and examines potential impacts from wind farms. It highlights the significance of EU environmental law, particularly nature conservation and environmental assessment law, and analyses recent Scottish jurisprudence that has applied this. The role of the European Commission and Court of Justice of the EU (CJEU) is emphasised as a key part of EU environmental law. The article asks whether relevant global and regional environmental agreements can effectively replace the content of the substantive law and context of the Commission and CJEU. Four environmental agreements and two related compliance procedures are briefly evaluated. The conclusion is that while EU law does not directly provide protection for wild land, it is considerably stronger than the international environmental agreements that may replace it.