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The Conversation

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imageTinkering with the law is likely to entrench positions on both sides of the 'green tape' debate.AAP Image/Supplied

The highly charged debate over the proposed Carmichael coal mine, which culminated in Attorney-General George Brandis’s decision last week to propose winding back environmental legal protections, has exposed the simmering tension between “jobs” and “the environment” on Australia’s political landscape.

On one hand, those seeking to invest in the development of Australia’s natural resources and jobs growth have been making a clear case that Australia’s system of assessment and approval for major projects is riddled with procedural uncertainty.

On the other, environmental advocates and local communities feel that the current system does not adequately protect the environment – correctly pointing out Australia’s less than stellar record in preventing species from going extinct.

As a nation, however, we need to lift our game on both fronts.

Investors in the Australian economy and those seeking jobs and growth need certainty with regard to where and how they invest.

Equally, to avoid warfare (or “lawfare”) on a project-by-project basis, Australia’s environmental advocates and local communities need certainty too. They need clarity about where and how economic development can occur without harming our environmental heritage.

A self-defeating conflict

I have written previously on The Conversation about the reforms Australia should adopt to avoid a self-defeating choice between jobs and the environment. There is no silver bullet, but the right reforms could see the economy continue to grow while also reducing the pressure on Australia’s unique biodiversity.

Such reforms could actually be cheaper for governments and industry in the long run, but they do require leadership and commitment in their design, deployment and continuous improvement. This leadership needs to come not just from the three levels of government, but also from industry and environmental advocates too.

The alternative is that the nation will increasingly be seen as a serious risk for investors, while biodiversity values continue to decline.

The government’s bid to wind back third-party appeal rights by repealing all or part of section 487 of the Environment Protection and Biodiversity Conservation Act aims to deny non-local environmental groups the automatic right to mount a legal challenge against environmental approvals, while reserving that right for local landholders and communities.

This distinction ignores the fact that in many cases, the environmental impacts of major proposals extend well beyond the project boundaries. It also ignores the fact that local communities and farmers often rely on regional, state or national environmental advocates to support them in disputes over development impacts.

The political fallout from any moves to reduce these rights will cut deep in both the city and the bush. But it could herald legal uncertainty for industries seeking to invest in development – precisely the opposite effect to what was intended. The reason is that if the political uncertainty oscillates across three-year political cycles, it is likely to hamper the planning, development and operation of major development projects, which take place over much longer timescales.

Change the culture, not the law

Instead of working to reduce legal environmental protections and appeal rights, there is a need to change the culture of the nation’s major project assessment and approvals processes. At the moment there is an incredible tension between governments seeking to champion major new economic ventures while at the same time being responsible for ensuring that environmental regulations are met.

What’s more, most regulation within governments is focused on technical aspects of the environment (such as the impact on skinks and snakes in Carmichael’s case), rather than recognising that disputes about projects are effectively a socio-political issue (that is, they reflect wider community concerns about species loss or climate change). This means the project assessment process needs to deal more fundamentally with these social impacts.

Assessment needs to be able to identify major social conflicts associated with projects, and to facilitate (as far as possible) acceptable and socially agreed solutions. One approach may be to encourage the use of independent, third-party facilitators acceptable to governments, project proponents and affected communities, rather than continuing with the current situation which often sets the government itself up as one of the protagonists in the conflict.

Another useful change would be to identify and deal with conflicts early in the process – something that Commonwealth and state/territory governments don’t currently do. The current system simply defers conflict until the final project approval stages, leading to legal challenges late within the process. But changing laws to close down the opportunities for appeal will only succeed in shifting these conflicts into ever-higher legal challenges, or even into the political arena (as we saw last week), making our development assessment processes even more unstable.

Ultimately, this state of affairs doesn’t benefit anyone – by playing off Australian jobs against the environment, it is actually harming both.

Allan Dale receives funding from various Federal and State Government agencies to undertake research into governance and regional development issues in the tropics. He is Professor in Tropical Regional Development at The Cairns Institute at James Cook University. He is also Chair of Regional Development Australia (Far North Queensland and Torres Strait); a community-based not for profit.

Authors: The Conversation

Read more http://theconversation.com/time-for-the-green-tape-debate-to-mature-jobs-and-the-environment-are-not-implacable-foes-46538

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