Lyster, Rosemary --- "Should We Mediate Environmental Conflict: A Justification for Negotiated Rulemaking" [1998] SydLawRw 25; (1998) 20 (4) Sydney Law Review 579
[*] Lecturer in Law, University of Sydney.
[1] See for example, Bingham, G and Haygood, L, “Environmental Dispute Resolution: The First Ten Years” (1986) 41 The Arbitration Journal at 3–14.
[2] O’Leary, R, “Environmental Mediation: What Do We Know and How Do We Know It?” in Blackburn, J W and Bruce, W M, (eds) Mediating Environmental Conflicts: Theory and Practice (1995) at 17.
[3] Blackburn, J W and Bruce, W M, “Introduction” in Blackburn and Bruce, above n2 at 2.
[4] Boulle, L, Mediation: Principles, Process, Practice (1996) at 3.
[5] See for example, Folberg, J and Taylor, A, Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation (1986) at 7; Brown, H and Marriott, A, ADR Principles and Practice (1993) at 38.
[6] See also Lyster, R, “Mediating Constitutionally Protected Rights Disputes” (1996) 12 South African Journal on Human Rights 230–246.
[7] O’Leary, above n2 at 19.
[8] See, generally, Reed, C M, “Mediation and the New Environmental Agenda” in Blackburn and Bruce, above n2 at 5–15.
[9] See, generally, Merchant, C, “Introduction” in Merchant, C, (ed) Ecology: Key concepts in Critical Theory (1994) at 2.
[10] Bohm, D, “Postmodern Science and a Postmodern World” in Merchant (ed) above n9 at 342–3.
[11] Id at 343.
[12] Id at 348.
[13] Id at 350.
[14] Emond, D P, ‘The Greening of Environmental Law” (1991) 36(2) McGill LJ at 743.
[15] Id at 753.
[16] Id at 755.
[17] Id at 759.
[18] Douzinas, C and Warrington, R with McVeigh, S, Postmodern Jurisprudence: The Law of Text in the Texts of Law (1991) at 15.
[19] Id at 27.
[20] Id at 14. Note also that the word “community” may have many meanings. It may mean national, regional or local communities.
[21] Brennan, G, “The Purpose and Scope of Judicial Review” in Tagart, M (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 18 at 19.
[22] It is not the author’s intention to analyse the extent to which the Rio Conference has impacted on the development of environmental law. This work refers to the Conference principally to show that, in spirit at least, international environmental law has responded to a new scientific understanding.
[23] “Sustainable development” was defined in Our Common Future (1987) Report to the UN General Assembly by the World Commission on Environment and Development) as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs.”
[24] Forests have been described as “sinks” for pollution because of their ability to absorb pollutants, like carbon, and then release oxygen.
[25] Reed, above n8 at 10.
[26] See for example, Article 6 of the United Nations Framework Convention on Climate Change, (1992) Preamble to chapter 23, and chapter 26 of Agenda 21, “Principle 2(d) of the Forest Principles”.
[27] See, generally, Arnstein, S, “A Ladder of Citizen Participation” (1969) July AIP Journal 216– 223.
[28] Id at 216.
[29] Id at 221.
[30] Environmental disputes are regarded as being polycentric as they invariably involve social, economic, cultural, political and environmental factors.
[31] See, Harter, P, “Negotiating Regulations” (1982) 71(1) The Georgetown LJ 1 at 19–22.
[32] Grad, F P, “Alternative Dispute Resolution in Environmental Law” (l989) 14 Columbia J of Environmental L 157 at 162.
[33] See generally, Ryan, C M, “Regulatory Negotiation: Learning from Experiences at the US Environmental Protection Agency” in Blackburn and Bruce above n2 at 203–216; see also, Lyster, R, “Environmental Dispute Resolution” in Pretorius, P, (ed) Dispute Resolution (1993) at 145–162.
[34] Id at 203.
[35] Id at 211.
[36] Factors which may erode the potential of the process to do this are considered later in the piece (see ethical considerations).
[37] See, Fisher, R and Ury, W Getting To Yes (1981).
[38] Preston, B J, “Limits of Environmental Dispute Resolution Mechanisms” (1995) 13 Aust Bar R 148 at 155: see, also, Fiss, O M, “Against Settlement” (1984) 93 Yale LJ 1073; Amy, D J, “Environmental Dispute Resolution: The Promise and the Pitfalls” in Via, N J, and Craft, M E, Environmental Policy in the 1990s: Towards a New Agenda (1990) at 211–234.
[39] Boulle, above n4.
[40] See, Preston, above n38 at 165–173.
[41] See, O’Leary, above n2.
[42] Boulle, L, “ADR Applications in Administrative Law” in Administrative L Reform (1993) at 141.
[43] Stephens, W O, Stephens, J B, and Dukes, F, “The Ethics of Environmental Mediation” in Blackburn and Bruce above n2 at 177.
[44] Recourse to feminist analysis of public participation is by way of example. Inclusion of such analysis does not represent an ignorant exclusion of others which may have a bearing on the discussion.
[45] See, Pateman, C, The Disorder of Women: Democracy, Feminism and Political Theory (1989).
[46] See, Maddox, G Australian Democracy in Theory and Practice (1996) at 105.
[47] Stone, C D, “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (1972) 45 Southern Calif LR 450.
[48] Id at 453.
[49] Id at 457.
[50] Stephens et al, above n43 at 180.
[51] Ibid.
[52] Id at 181.
[53] Richard Abel, for example, rejects the claim that informal processes are neutral. He states that although the outcomes of informal processes are characterised as “win-win”, where opponents are not equal the result is inequality: see Abel R, “Conservative Conflict and the Reproduction of Capitalism: The Role of Informal Justice (1981) Int’l J of Sociol of L 245 at 256–7; Selva, L H, and Bohm, R, “A Critical Examination of the Informalism Experiment in the Administration of Justice” (1987) Crime and Social Justice 43.
[54] Bacow, L S, and Wheeler, M, Environmental Dispute Resolution (1984) at 77.
[55] Ormerod, R, “Science, Uncertainty and the Law”, paper delivered at National Environmental Lawyers Association Inc 1996 Conference, Hyatt Regency Coolum, Brisbane.
[56] Astor, H and Chinkin, C Dispute Resolution in Australia (1992); Monture-Okanee, P, “Alternative Dispute Resolution: A Bridge to Aboriginal Experience” in Morris, C and Pinie, A (eds) Qualification for Dispute Resolution: Perspectives on the Debate, University of Victoria Institute for Dispute Resolution; see, also, Blackford, C and Matunga, H, “Assuring Justice in Cross-Cultural Environmental Mediation” in Blackburn and Bruce, above n2 at 185–201.
[57] See National Alternative Dispute Resolution Advisory Council “Issues of Fairness and Justice in Alternative Dispute Resolution”, Discussion Paper, Canberra, November 1997.
[58] Astor and Chinkin, above n56 at 261.
[59] See, Lyster, R, “The relevance of the precautionary principle: Friends of Hinchinbrook v The Minister for the Environment” (1997) 14 Environmental Planning and LJ 390.
[60] In writing this part of the paper, I would like to acknowledge my partial reliance on a research paper written, at my suggestion and under my supervision, by Jason Gray. Jason was a student in my 1997 Administrative Law class at The University of Sydney.
[61] [1898] UKLawRpKQB 101; [1898] 2 QB 91.
[62] [1989] HCA 3; (1988) 166 CLR 161.
[63] See, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[64] See, for example, Hutchinson, A C, “Mice under a Chair: Democracy, Courts and the Administrative State” (1990) 40 U of Toronto LJ 374 at 385–390.
[65] Wald, P, “Negotiation of Environmental Disputes: A New Role for the Courts” (1985) 10 Columbia J of Environmental L at 17–25.
[66] (1996) 82 F 3rd 708 (US ct App, 7th Cir).
[67] Id at 714.
[68] Aman Jr, A, “Administrative Law for a New Century” in Taggart, M (ed), The Province of Administrative Law (1997) at 108.
[69] Ibid.
[70] See, generally, Harter, above n31 at 103–105.
[71] Reed, above n8 at 15.