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Edited by Paul Martin and Amanda Kennedy

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Edited by Paul Martin and Amanda Kennedy

At the Rio +20 conference attention was focused upon the variable effectiveness of a large range of international instruments. The IUCN too has recently began to focus upon the effectiveness of legal arrangements for environmental governance. Both of these developments are representative of an increasing awareness that legal environmental governance arrangements frequently fail to achieve the desired outcomes, or give rise to perverse and unexpected effects. The reasons why this may be so include issues such as the limited commitment of the responsible government or its agents, issues of corruption or incapacity, problems arising from the choice of the governance instrument, or the design of the law. This book tackles the challenges of implementation of environmental law, drawing upon the expertise of an international cast of contributors and investigations across a range of jurisdictions.
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Amanda Kennedy and Wanida Phromlah

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Amanda Kennedy and Amy Cosby

Within the broader context of climate change, the recent rapid expansion of extractive fossil fuel industries (such as coal and unconventional gas) in agricultural communities throughout Australia has raised significant concerns over agricultural production capacity and food security. With many new coal and gas developments proposed either on or within close proximity to agriculturally productive land, both atmospheric impacts as well as direct land conversion have catalysed new and complicated land use conflicts, which existing regulatory frameworks have failed to resolve. Drawing upon a case study from the North West area of the state of New South Wales in Australia, this chapter examines conflict over agricultural land in the context of global climate change. It focuses particularly on regulatory reforms to better manage land use conflict, but finds that attempts at reform have thus far enjoyed little success in resolving land use disputes. Using an environmental justice lens, the chapter explores how community capacity to participate effectively in land use decision making was further constrained by reform efforts. By prioritising the broader economic benefits of extractive development, the values and views of agricultural communities were marginalised and discounted, serving to intensify opposition to development and entrenching broad-scale social conflict. The chapter concludes that the complex issue of agricultural land use conflict requires governance approaches that are grounded in principles of environmental justice. Greater attention to the distribution of environmental risks and harms, and the incorporation of mechanisms to ensure equal treatment in decision-making processes, will ultimately strengthen the capacity of agricultural communities to respond to environmental threats such as climate change. Key Words: agricultural land use conflict, environmental justice

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Jacqueline Williams, Amanda Kennedy and Donna Craig

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Justice Brian Preston, Paul Martin and Amanda Kennedy

Good governance is essential for achieving ecologically sustainable development. Sustainable development includes a cluster of principles, including the precautionary principle. All branches of government play a role in ensuring good governance, both individually and synergistically. The judiciary has an important role in promoting ecologically sustainable development, especially through the implementation of the precautionary principle in environmental cases. However, their capacity tends to be under-appreciated, partly due to an unjustified focus on the political aspects of government but also because of institutional factors that impede the judiciary in fully performing its role and hence in promoting and implementing the precautionary principle (along with other aspects of good governance). This chapter examines these impediments. Focusing particularly on the Australian state of New South Wales, home to a specialist Land and Environment Court, we use a systems approach to identify the factors that impede the effectiveness of the court in implementing the precautionary principle for environmental protection. We consider what the court might do to improve effectiveness, including mechanisms involving the executive and judicial fields of activity, institutional reform and integration of ideas. Despite increasingly sophisticated governance arrangements, Australia’s natural environment continues to deteriorate, a problem that is not unique to Australia. The failures of implementation of legal governance have been highlighted in the Rio+20 communique, by the IUCN and by the Chief of Staff of the Secretary General of the Organization of American States, who has referred to the implementation of international environmental agreements as ‘the greatest challenge of our century’. Scholars’ and citizens’ expectations that the judiciary can ensure the proper implementation of environmental laws may not always be realistic. In this chapter, we explore systemic factors that constrain the judiciary of a state or nation in ensuring the implementation of environmental laws (which may be based in international environmental agreements or rules), and suggest directions to optimize this role.

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Edited by Paul Martin, Sadeq Z. Bigdeli, Trevor Daya-Winterbottom, Willemien du Plessis and Amanda Kennedy

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Paul Martin, Sadeq Z. Bigdeli, Trevor Daya-Winterbottom, Willemien du Plessis and Amanda Kennedy