46 The goal of ESD is critical to the survival and well-being of the human race and other species, a view I recently expressed in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 at [59]. The concept of ESD is to be understood in New South Wales by reference to the principles of ESD in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW), which has been adopted by reference in the EPA Act s 4(1) and in other New South Wales statutes. Before considering those principles and the applicant's ESD case in detail, I will review the development of the concept and principles of ESD globally and in Australia.
ESD: A Global Phenomenon
47 In the last decade of the twentieth century and the first decade of the twenty-first century, the seed of ESD was planted in numerous Australian statutes and has blossomed in a significant number of cases.
48 This has been part of a global phenomenon. The concept of ESD evolved in a number of documents adopted at international conferences on the environment beginning in 1972 at the United Nations Conference on the Human Environment in Stockholm attended by 113 nations. This Conference created two instruments: the Declaration on the Human Environment which proclaimed 26 principles for international cooperation; and the Action Plan for the Human Environment. Principle 13 of the former touched on ESD as follows:
In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the environment for the benefit of their population.
49 In 1980, the World Conservation Strategy, prepared by the International Union for Conservation of Nature and Natural Resources (now known as the World Conservation Union), aimed to achieve three main objectives of living resource conservation: to maintain essential ecological processes and life-support systems; to promote genetic diversity; and to ensure the sustainable utilisation of species and ecosystems. This strategy identified the failure to integrate conservation with development as one of the main obstacles to achieving conservation. It made the following legislative proposal (section 11 paras 8 and 9):
There should be specific legislation aimed at achieving the objectives of conservation by providing for both the sustainable utilisation and the protection of living resources and of their support systems. Comprehensive conservation legislation should provide for the planning of land and water uses and should regulate both direct impacts on the resource, such as exploitation and habitat removal, and indirect ones, such as pollution or introduction of exotic species. In addition, it should include requirements to undertake ecosystem evaluations, environmental assessments, and like mechanisms to ensure the incorporation of ecological considerations into policy making. The law should also provide for the participation of citizens in the elaboration of policies, for the provision of sufficient information for participation to be effective, and for legal recourse to implement these rights. In addition there is a need to revise traditional concepts of the law of remedy, which currently envisage compensation only for economic loss, narrowly defined, and do not provide for indirect or long term damage to individuals and communities through the depletion of species or the destruction or degradation of ecosystems.
Special attention should be paid to the enforcement of conservation law.
50 In response, in 1983, Australia adopted the National Conservation Strategy for Australia: Living Resource Conservation for Sustainable Development. Also in 1983, the United Nations established the World Commission on Environment and Development.
51 In 1987 the World Commission on Environment and Development, established by the United Nations, published an influential report, Our Common Future (commonly referred to as the Brundtland Report), which called for the promotion of sustainable development that would guarantee "the security, well-being and very survival of the planet" (p 23). It defined "sustainable development" as development that meets the needs of the present while not compromising the ability of future generations to meet their own needs (p 8 ). This has come to be known as inter-generational equity and has endured as the fundamental principle of ESD. The report noted that : "The burning of fossil fuels puts into the atmosphere carbon dioxide, which is causing gradual global warming. This greenhouse effect may by early next century have increased average global temperatures enough to shift agricultural production areas, raise sea levels to flood coastal cities, and disrupt national economies" (p 2). The report recognised that the world's current pattern of economic growth was not ecologically sustainable. It contained proposals for long term environmental strategies for achieving ESD. The report emphasised that the environment and development must no longer be regarded as separate concerns but were interlocked.
52 In response to the Brundtland Report's recommendations, the "Earth Summit", the United Nations Conference on the Environment and Development, was held in Rio de Janeiro in June 1992. Its mandate was to "elaborate strategies and measures to halt and reverse the effects of environmental degradation in the context of increased national and international efforts to promote sustainable and environmentally sound development in all countries" (Resolution 44/228 of the United Nations General Assembly 85th Plenary Meeting, 22 December 1989). Australia was among the 172 nations represented. Documents created at the conference included the Rio Declaration which was a statement of 27 general principles; Agenda 21 which was a lengthy action plan; the United Nations Framework Convention on Climate Change; the Convention on Biological Diversity; and an agreed Statement of Principles on Forests. Four of the Rio Declaration principles are substantially reflected in subsequent Australian legislation, namely:
Principle 3. The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
Principle 4. In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
Principle 15. In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Principle 16. National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.
53 The central concept of ESD, the integration of environmental protection and development, appeared in Principle 4. Three of the four principles of ESD - the principle of intergenerational and intra-generational equity, the precautionary principle and the internalisation of environmental costs principle - were embodied in, respectively, Principles 3, 15, and 16. However, Principle 16 was qualified. The fourth ESD principle, the principle of conservation of biological diversity, was reflected in the accompanying Convention on Biological Diversity where Articles 1 and 14 relevantly stated:
1. The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.
…
14. Each contracting Party, as far as possible and as appropriate shall:
(a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures;
(b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account.
…
54 The role of the law in relation to sustainable development was stated in Principle 11 of the Rio Declaration:
States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries
55 Agenda 21 described itself as a "blueprint for action in all areas relating to the sustainable development of the planet". It provided mechanisms, in the form of policy, plans, programs and guidelines, for national governments to apply the principles contained in the Rio Declaration. Chapter 8 of Agenda 21 provided that laws and regulations suited to the conditions of each country were among the most important instruments for transforming environment and development policies into action. Chapter 28 acknowledged the importance of local authorities in furthering ESD and contemplated, among other things, the establishment of Agenda 21 programmes in local government jurisdictions and the implementation of local authority programmes, policies and laws. Principle 10 of the Rio Declaration proclaimed that environmental issues were best handled with informed public participation. Similarly, Agenda 21 in Chapter 23 emphasised that "one of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making".
56 In 1993, a United Nations Commission on Sustainable Development was created to progressively administer the implementation of Agenda 21. Many nations, including Australia, committed to reporting regularly to the Commission on their actions to achieve sustainable development.