Characteristics of successful environmental courts and

tribunals (“ECTs”)

by

The Hon. Justice Brian J Preston SC

Chief Judge, Land and Environment Court of NSW

Introduction

• Exponential growth in ECTs – over 350 of these specialised fora now exist in many countries and regions of the world

• Can be a separate Environment Court or Environment Tribunal (“green court”)

• Can be an Environmental Division of traditional court (“green bench”)

• Can be designated environmental judges (“green judges”)

Purpose of presentation

• Identify 12 key characteristics that are required for an ECT to operate successfully in practice

• Draw upon examples from many jurisdictions around the world, especially throughout Australia and New Zealand

• In the process, identify best practices from these jurisdictions in order to assist those countries which are establishing a new ECT or wish to improve the operation of an existing ECT.

1. Status and authority• More successful ECTs:

enjoy a more comprehensive jurisdiction; are recognised by governments, stakeholders and the

wider community alike as the appropriate and legitimate forum for resolving disputes;

have judges and members who are environmentally literate;

develop environmental jurisprudence and serve a value-adding function.

examples from NSW, New Zealand, Sweden, Brazil; less successful examples from Trinidad & Tobago and Bangladesh.

2. Independent from government and impartial

• Need for formal independence from legislative and executive branches of government, as well as other external influences (e.g. media and pressure groups)

• Decision-makers must be impartial• Independence and impartiality may be enabled by

institutional arrangements and rules relating to selection of judges, tenure for judges and so on

• Problem of “captive tribunals”• Interesting examples from Brazil, the United States and

Austria.

3. Comprehensive and centralised jurisdiction

• An ECT should enjoy comprehensive jurisdiction to hear, determine and dispose of various types of matters and disputes arising under environmental laws

• Comprehensive and integrated jurisdiction: administrative, civil and criminal proceedings

• The environmental laws themselves must have adequate subject matter coverage, be effective and be enforceable

• Interesting examples from Ireland, Kenya, China and Canada

4. Judges and members are knowledgeable and competent

• Members should ideally be environmentally literate prior to appointment

• Continuing professional development

• Use of technical experts• Interesting examples from

Sweden, NSW, and other Australian jurisdictions.

5. Operates as a multi-door courthouse

• Successful ECTs should: offer alternative dispute resolution (e.g.

mediation and conciliation) Adopt and use a formal screening and intake

process to determine most appropriate environmental dispute resolution mechanism

Interesting examples from NSW, Queensland and New Zealand

The multi-door courthouse

6. Provides access to scientific and technical expertise

• Provision of internal and external scientific and technical expertise

• Procedures to reduce adversarial bias in external experts of parties – e.g. court appointed and parties’ single experts; concurrent evidence.

• Problem-solving approach rather than conflict-based courtroom “battle of the experts”

• Interesting examples from NSW and Queensland

7. Facilitates access to justice

• Substantive decisions of ECT can uphold fundamental constitutional, statutory and human rights of access to justice – e.g. access to information and rights of public participation.

• ECT can adopt innovative practices and procedures to facilitate access to justice – e.g. liberally construing standing requirements and relaxing rules on costs.

• Other access initiatives ECTs should adopt – e.g. geographical accessibility and innovative use of technology.

• Interesting example of Land and Environment Court of NSW• Non-specialist or generalist courts can also facilitate access to

environmental justice – e.g. Supreme Court of the Philippines: Oposa v Factoran 33 ILM 173 (1994).

8. Achieves just, quick and cheap resolution of disputes

• Allocation of matters to ECTs – specialised bodies are better positioned to move more quickly and effectively through environmental cases

• ECTs must have effective case management procedures

• Need to deal promptly with interlocutory applications and rebut attempts to adjourn or delay the final hearing and disposal of the proceedings.

• Interesting examples from NSW, Queensland and Western Australia

9. Responsive to environmental problems and relevant

• Successful ECTs are better able to address the pressing, pervasive, and pernicious environmental problems that confront society (such as climate change and loss of biodiversity)

• Example: Climate change litigation in the Land and Environment Court of NSW

• Restorative justice as an approach to sentencing for environmental crime

10. Develops environmental jurisprudence

• Example of Land and Environment Court of NSW – development of jurisprudence on principles of ecologically sustainable development through logical progression of law by way of analogy.

• Development of environmental jurisprudence by specialised ECTs may also facilitate cross fertilisation of environmental law whereby domestic ECTs draw upon the environmental jurisprudence of other countries – example of Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10

11. Underlying ethos and mission

• Many of the ECTs located throughout the world that have enjoyed greater success have a clear sense of direction with respect to the role they play in the broader schema of environmental governance.

• Examples of statement of purpose for ECTs from NSW and Tasmania.

12. Flexible, innovative and provides value-adding function

• An ECT’s decisions and work can generate value apart from the particular case or task involved

• An ECT may add value by: Developing environmental jurisprudence; Formulating and applying non-binding principles or

guidelines for merits review cases – e.g. Planning Principles of the Land and Environment Court of NSW

Innovations in practice and procedure – e.g. implementation of the International Framework for Court Excellence and development of JIRS environmental crime sentencing database by Land and Environment Court of NSW

Conclusion

• Identified 12 characteristics that are required for an ECT to operate successfully.

• These best practices will be useful to those countries that currently do not have an ECT

• Even for those ECTs that have enjoyed much success and already display many, if not all, of the characteristics identified, there is still much work to be done.

• All ECTs should, in the spirit of an adaptive management approach, continually monitor, review and adjust their operations in the pursuit of excellence.