Cons Council of SA v Dac & Tuna Boat Owners Assoc

Cons Council of SA v Dac & Tuna Boat Owners Assoc - [1999] SAERDC 86 - SAERDC 1999 case summary — Zoe

[54]

22 There would appear to be general agreement amongst the authors of articles on the precautionary principle that it was developed in response to the recognition, based upon observation, that the environment could not assimilate all the consequences of activities impacting upon it. Implicit in this recognition is an acknowledgment that science and the scientific method have limitations. Because of the limitations, it is unlikely that the full consequences of the impact of a particular act or activity upon the environment can be known in advance. The scientific process involves deriving knowledge from the testing of a hypothesis. A number of biases have been identified in the process, giving rise to comments such as "the normal process of scientific reasoning is not as logically water-tight as one might imagine" (Fisk, David Environmental Science and Environmental Law 10 J Env.L 3 (1998). The scientific method does not necessarily give the quality of certainty to the opinion or assessment of a scientist. Indeed, one writer has suggested that a scientific opinion might be best evaluated for reliability by testing it against seven types of uncertainty he identified as being likely to be found in any scientific assessment or opinion, namely conceptual uncertainty, measurement uncertainty, sampling uncertainty, mathematical modelling uncertainty, causal uncertainty, testing uncertainty and communicative and cognitive uncertainty (P.Brad Limpert, Beyond the Rule in Mohan : A New Model for Assessing the Reliability of Scientific Evidence 54 Univ Toronto L Rev. (1998)). Thus, the inherent uncertainty or bias in the scientific method combined with (generally speaking) a perennial lack of resources and a consequential lack of data to assist scientists, leads inevitably to the conclusion that there is likely to be an incomplete understanding of the full extent of the environmental impacts of any particular act or activity proposed. That prospect, supported by empirical observations gathered world-wide, led to the development of the precautionary principle as a commonsense approach to avoid or minimise serious or irreversible harm to the environment.

[56]

24 The question arises as to who has the onus of satisfying us that the proposed development would be carried out in an ecologically sustainable way, and located, sited, designed, constructed and managed to be ecologically sustainable. It is well accepted in the literature, and it stands to reason, that the proponent needs to satisfy us that the development would be ecologically sustainable. In the matter before us, is the proponent called upon to prove this, only when the appellant has proved, on the balance of probabilities, that there is a threat of serious or irreversible damage to the environment? That cannot be the case. It is our task, as it was that of the relevant authority, to assess the proposed development against the relevant provisions of the Development Plan. The development should be ecologically sustainable in the terms of Objective 35 and Principle of Development Control 12. The onus lies on the proponent to show that the development would meet the policy set out in the Development Plan. In any event, it cannot be the case that the appellant must prove that the development will threaten serious or irreversible environmental damage, for another reason. Because of the inherent uncertainty in a scientific opinion, an appellant is unlikely to be able to show that a particular development would be likely to result in serious or irreversible damage to the environment. In reasoning thus, we have taken "threat" to mean "likelihood" or "probability" : see the relevant word meanings in the Macquarie Dictionary (second edition). However, the appellant must be mindful of its status as appellant and the provisions of Section 17(4) of the Environment, Resources and Development Court Act 1993 and thus would need to show that there is a prospect of serious or irreversible damage to the environment, should the proposed development proceed. If that is shown, the burden of proof switches to the proponent and it will be necessary for the proponent to show, in order to have his or her development classified as ecologically sustainable, the following:

[70]

31 We received evidence to the effect that the Australian Quarantine Inspection Service (AQIS) has carried out an import risk analysis which has concluded that imported frozen pilchards do not constitute a risk. This analysis was in accord with the obligations of AQIS to implement both Australian government policy to protect Australia's environment, and animal, plant and human health, and Australia's international obligations as a World Trade Organisation (WTO) member bound by the Sanitary and Phytosanitary (SPS) Agreement. It concluded that there is no risk posed by the importation into Australia of non-viable, non-salmonid marine finfish used for fish feed (including pilchards). However, we do not accept that the import risk analysis process is entirely consistent with the precautionary principle approach to development, which is sought by the Development Plan. The process under the WTO SPS Agreement which AQIS implements, is described by the Agreement as being scientifically-based. It assumes that science is able to identify risks, and concludes that where there is no evidence of a risk, there is no risk. The evidence is that there is a significant lack of scientific information on disease in non-salmonid marine finfish, and the susceptibility of Australia's native marine species to exotic pathogens. It must be remembered that the AQIS import risk analysis was developed pursuant to the Australian government's obligation under the SPS Agreement to develop, adopt and enforce sanitary and phytosanitary measures in accordance with the agreed framework so as to "minimize their negative effects on (international) trade": see The AQIS Risk Analysis Process Handbook, and annexures, to which we were directed by both Dr Sarah Kahn and Dr Michael Deering. There is some risk in using imported pilchards as feed. It might be a manageable risk but nothing was suggested in this regard. There is ongoing research. We do not know the full scientific consequences of using imported pilchards as feed.

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