LAWS20009 Lecture Notes - Lecture 12: Sustainable Timber Tasmania, Precautionary Principle, Rio Declaration On Environment And Development
LECTURE 12: SCIENCE, ENV PROFESSIONALS AND LAW
Why do Scientists matter in the Law?
• Many environmental laws & rights rely on evidence of env impact of activities
o Judges or decision makers demand proof
• Growing uncertainty of scientists by public, law etc. – courts don’t trust the
precautionary principle as they don’t trust science
• Law & science operate in different ways – law on probabilities & adversarial
manner, science on confidence & inquisitorial manner
• Uncertainty of impact of actions, decision makers use the precautionary
principle
• Under EPBC Act, Minister must consider precautionary principle for a range of
decisions, including whether to grant an approval
Climate Change, Proof and Precaution
• Anvil Hill Decision: based on finding that a small increase in emissions was not a significant impact
o Minister claimed: absence of evidence of attributable specific, identifiable and measurable impacts, there was
no significance to the impacts
o Applicants claimed: common sense dictates that coal mining will lead to impacts of climate change on the reef
• Wildlife Preservation Society of Queensland Prosperine/Whitsunday Branch Inc. v Minister for the Environment and
Heritage (2006)
o Dowsett (Justice): ‘The EPBC Act provides protection in circumstances in which an action has, will have, or is
likely to have, a significant impact upon a protected matter. I see no basis for undermining that requirement
that there be, at least, a likely significant impact
Duties of Scientists to Courts
• Scientists, like other witnesses, have a duty of independence
• VCAT expert witness guidelines: an expert witness has a paramount duty to the Tribunal and not to the party retaining the
expert
Negligence and Duty of Care
• Negligence is a tort of civil wrong – type of private law – responsibility not to cause harm
• Env professionals owe a duty of care to their clients
• Env cases (duty of care – negligence law): polluters will ordinarily owe duty of care to those effected by that activity and
government bodies typically not owe duties of care to other people
• Most negligence cases are based on financial losses
• To prove a claim for negligence, there are 6 elements
Duty of
Care
Breach of
Standard
of Care
Harm
Suffered
Caused by
Defendan Defences Damages
Lecture Overview
• Science and law
o Precautionary principle
• Responsibilities of scientists in the
court room
• Duties of care of the environmental
professional
Precautionary Principle
Rio Declaration (1992), 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 scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent environmental
degradation.
Brown v Forestry Tasmania (2006)
• Where the evidence of an expert versus 2 doctors, evidence of the 2 doctors was preferred
• Under cross-examination, the expert was frequently evasive and appeared to be more of an advocate for the cause of
Forestry Tasmania than an independent expert
Document Summary
Why do scientists matter in the law: many environmental laws & rights rely on evidence of env impact of activities. Judges or decision makers demand proof: growing uncertainty of scientists by public, law etc. (cid:272)ourts do(cid:374)(cid:859)t trust the precautionary principle as they do(cid:374)(cid:859)t trust s(cid:272)ie(cid:374)(cid:272)e. Law & science operate in different ways law on probabilities & adversarial manner, science on confidence & inquisitorial manner. 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 scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Heritage (2006: do(cid:449)sett (cid:894)justi(cid:272)e(cid:895): (cid:858)the epbc act provides protection in circumstances in which an action has, will have, or is likely to have, a significant impact upon a protected matter. I see no basis for undermining that requirement that there be, at least, a likely significant impact.
