BREC DISCUSSION PAPER
COMMON LAW AND THE DUTY OF CARE TO THE ENVIRONMENT
Extracts from Alex Gardner "The duty of care for sustainable land management"
The Australian Journal of Natural Resources and Law Vol 5 #1 1998
"...landholders have a duty to avoid causing foreseeable harm to their neighbours by the way in which they undertake their land use activities plus a duty to avoid foreseeable harm to their neighbours occurring by permitting on their land hazardous natural conditions that they did not cause. The common law duty of care does not restrain the degradation of ones own land and water unless harm accrues to another person to whom the landholder owes a duty of care. The common laws sanction for the degradation of ones own land is the decline in market value of the land. there is no common law duty of care to conserve and protect ones own land.
Furthermore, the common law does not restrain the cumulative harm to the public right or interest in the environment caused by numerous ordinary individual actions."
In the above critique of the A Full Repairing Lease (Industry Commission 1997) the author says "Rather than there having been an over reliance on regulatory approaches the regulatory framework for agricultural and pastoral lands has been and remains under-developed.... In summary it (the experience with voluntary methods) suggests that the success of voluntary and market based measures will be enhanced by a stronger regulatory framework rather than serve as an alternative to it."
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BREC Notes - implications for proposed Qld Vegetation Management Framework
All landholders have a duty to notify and a duty to take reasonable steps about risks eg fire, salinity, erosion etc.
What is reasonable must take into account the circumstances of the landholder.(Privy Council 1966 115 CLR 458 at 467-468)
If the landholder has insufficient resources to manage the risk to others they have
Failure to exercise this common law duty would be negligence and could imply civil liability.
- a duty to ask for assistance and/or
- a duty to notify neighbours and/or
- a duty to notify the crown of their inability to manage the risks.
EXTENDING THE COMMON LAW DUTY OF CARE
The imposition upon individuals of affirmative land management for the broader community benefit was seen to "always be done by the legislature, and special precautions are taken to endeavour to ensure common benefits without causing special injustice to the individual (Griffith CJ,(1908) 7 CLR 51 at 60)
The vegetation policy must clearly state that a statutory duty of care exists and specify a process and/or code that a person can use to defend themselves against negligence.
The State has a duty of care to uphold its own legislation again applying the test of capacity to do so. The State is also liable for the advice it gives to landholders. The regulatory framework for the protection of Regional Ecosystems could be said to meet the objects of the Nature Conservation Act. A regulatory framework for the avoidance of land degradation particularly salinity, acid sulfate discharge and soil erosion will help the State meet its responsibilities under the Environmental Protection Act.
All landholders should be required to exercise a statutory duty of care to avoid environmental harm and protect wildlife (state property). They should however be able to use the defence of insufficient means to comply. Those who have the capacity MUST demonstrate how they are doing so. Those who can't comply must demonstrate that they have a plan of when and how they could comply. In both cases a statement would be required from the landholder indicating the nature of the risks, a statement of how the risks are to be managed, the effectiveness or otherwise of the management system and an oath or affirmation that the information is true and accurate.
This will improve the enforceability of the regulation by only having to test whether the statement is knowingly inaccurate or the management system agreed to has been used/not used, rather than having to prove damage to the environment and/or biodiversity. The duty of care to report would be exercised by having this statement on a public register. The policy must have a scale of remedies from breach reports to warnings to fines to injunctions to civil injunctions to criminal prosecution.
The policy/legislation however must reach beyond simple compliance to a proactive stance. The policy/legislation should ensure the situation doesn't worsen but we also need a means to achieve compliance and encourage the repair, extension and restoration of vegetation.. For "Of Concern" or "Endangered" vegetation, incentives to manage should be universal but Prioritised according to circumstances of the landholder. Those who have retained more will benefit more from incentives but those who have retained less will also benefit through revegetation assistance.
How does a management statement change ? Ideally it should be able to be changed by mutual agreement between the crown and the landholder. Either party should be able to seek legal remedy if the other party unreasonably withholds permission. The management statement should include a clause dealing with how the statement can be amended, rewritten or cancelled.
This management statement would not constitute an approval to carry out actions but would be a precursor or requirement of an approval to carry out works. It would be anticipated but not mandatory that approvals for works in line with the management statement would be approved.
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