Developing countries and countries with economies in transition have varying experiences in enforcing their national environmental law. China's judicial interpretations and legislation on environmental protection have established the rules that shift the burden of proof for causation in environmental tort litigation. However, this study of 513 court decisions from the people's courts at different levels in China shows that although the court decisions usually refer to or quote the rules that shift the burden of proof, in most cases the victim-plaintiffs still bear the liability to prove whether the causal relationship exists between the pollution and the harm. This study also finds that Chinese courts defer greatly to the evaluation report in proving causation. It suggests that the court practice of adjudicating environmental tort cases in China values more the factual causation of a pollution incident than the provisions regarding proof of causation stipulated by relevant laws. Consequently, such judicial practices hinder the effectiveness of judicial remedies for pollution victims in China.
Fan Yang, Ting Zhang and Hao Zhang
Edited by Ed Couzens, Tim Stephens, Manuel Solis, Saiful Karim and Cameron Holley
The inscription of East Rennell in Solomon Islands on the World Heritage List was a landmark in the implementation of the World Heritage Convention. However, the site is now on the List of World Heritage in Danger, threatened by resource development, invasive species, climate change and the over-harvesting of certain animals. This article examines the scope for the Protected Areas Act of 2010 to be used to safeguard the site, and the challenges that may be encountered if the Act is implemented there. It explains how the Act provides direct protection against some (but not all) of the threats to East Rennell. Furthermore, the approach to conservation facilitated by the Act is appropriate for Solomon Islands, where most land is under customary tenure, many people rely on natural resources to support their subsistence lifestyles and the government's capacity to enforce legislation is limited. The article argues that the relationship between the legislation and custom must be considered in the design of the landowner consent process, the preparation of the site's management plan, and the selection of its management committee. Additionally, the protected area should aim to improve the livelihoods of the East Rennellese, as well as safeguarding the site's heritage values.
Fiji's National Government has committed to using Marine Protected Areas (MPAs) to protect its marine environment. As Fiji is in the process of reforming its marine law, now is an opportune time to develop statutory mechanisms for establishing and regulating MPAs. This article considers the regulation of MPAs in Fiji's coastal waters—where the intersection of statutory and customary law poses particular challenges. ‘Customary MPAs’ already exist in Fiji's coastal environments, taking the form of tabu areas and ‘Locally Managed Marine Areas’ (LMMAs). Both of these are important mechanisms that any new statutory framework should incorporate and strengthen. In 2010, the draft Inshore Fisheries Decree (draft Inshore Decree) was prepared. Although the draft Inshore Decree appears to have stalled, it may yet be progressed to a final bill. Alternatively, some of the measures in it may be incorporated into another law. This article assesses one mechanism in the draft Inshore Decree that could be used to formalize customary MPAs—Community Fisheries Management and Development Plans (CFMDPs). It finds that CFMDPs demonstrate a number of strengths, in particular by supporting legal recognition of existing marine management measures. However, there are also weaknesses. Nevertheless, with refinement CFMDPs may be a useful tool for regulating Fiji's coastal MPAs.
Nupur Chowdhury and Nidhi Srivastava
Can a tribunal deliver justice? By posing this rhetorical question this article attempts to contextualize the introduction of the tribunal system of adjudication in India. Some of these tribunals have been able to evolve into mechanisms that have overcome their birth infirmities. The Supreme Court has intervened and supported strengthening of these tribunals and their evolution into entities (if not fully but certainly) more independent of the executive. This article explores these questions through a case study of the National Green Tribunal (NGT)—specifically focusing on the subject of jurisdiction. NGT is the newest of the tribunals that have been established since the Constitutional amendment was passed allowing for them. The jurisdiction of the NGT, although statutorily limited, has evolved in the light of Supreme Court's jurisprudence on the powers of tribunals. Further, the nature of environmental disputes are such that the NGT has had to expansively interpret both procedural mechanisms, such as limitation periods for allowing more disputes to be brought to the bench, and by entering into substantive areas such as climate change.
Currently, in Thailand, proposed development projects require an Environmental Impact Assessment (EIA) as part of the approval process. Effective public participation in the process of developing an EIA helps to ensure fairness and equity for the EIA system. It enables stakeholders to share information and exchange views concerning the complex issues and likely impacts of the proposed development project. Thailand has substantial legislation and regulations that aim to enable public participation for EIA processes. However, implementation of public participation provisions is failing at least to some degree. This article explores how the law concerning public participation might be improved to enable better implementation of the EIA system in Thailand. Some methods for employing effective public participation to support the implementation of EIAs are proposed.
Carol Warren and Agung Wardana
Bali faces serious environmental crises arising from overdevelopment of the tourism and real estate industry, including water shortage, rapid conversion of agricultural land, pollution, and economic and cultural displacement. This article traces continuities and discontinuities in the role of Indonesian environmental impact assessment (EIA) during and since the authoritarian ‘New Order’ period. Following the fall of the Suharto regime in 1998, the ‘Reform Era’ brought dramatic changes, democratizing and decentralizing Indonesia's governing institutions. Focusing on case studies of resort development projects in Bali from the 1990s to the present, this study examines the ongoing capture of legal processes by vested interests at the expense of prospects for sustainable development. Two particularly controversial projects in Benoa Bay, proposed in the different historical and structural settings of the two eras—the Bali Turtle Island Development (BTID) at Serangan Island in the Suharto era and the Tirta Wahana Bali Internasional (TWBI) proposal for the other side of Benoa in the ‘Reform Era’—enable instructive comparison. The study finds that despite significant changes in the environmental law regime, the EIA process still finds itself a tool of powerful interests in the efforts of political and economic elites to maintain control of decision-making and to displace popular opposition forces to the margins.
Colonialism has challenged Aboriginal obligations and relationships to the natural world. This article describes the efforts of First Nations on the continent now known as Australia to maintain their authority and existences in the face of neoliberalism and colonialism, which the British initially inflicted and under which we still survive. The colonial policies of Australia denied our existence and at the same time attempted to demolish our languages and cultures, and to assimilate the consequences. This article asks the questions: what underpins state claims to the title to Aboriginal lands? Does Australia renounce terra nullius and the racist principles and beliefs which make up such a doctrine? And finally does Australia acknowledge and support all ‘Peoples’ as having an inherent right to self-determination, and as a component of such a right, that all ‘Peoples’ have a right to collectively care for their country and to benefit from a relationship to the land which sustains future generations of all Peoples? The possibility of a future for all life forms on earth lies in the responses states might deliver to these questions.