The Structure and Nature of Australian Environmental Law1

Date01 September 1977
AuthorDouglas J. Whalan
Publication Date01 September 1977
DOI10.1177/0067205X7700800302
SubjectArticle
THE
STRUCTURE AND NATURE
OF
AUSTRALIAN
ENVIRONMENTAL LAWI
By
DoUGLAS
J.
WHALAN*
Constitutional authority over resources and environmental
questions resides principally in the States in Australia, but there
are
many
powers which the Federal Government can develop,
either alone or together with the States, in working
out
national
policies in these areas. Although the constitutional issues are
important, resolution
of
land use problems is fundamentally a
matter
of
competition for power and authority within the political
system.
Professor Whalan suggests four stages in the development
of
environmental law:
{a)
totally resource-oriented statutes with
possible overlaps and clashes between separate uses; (b) integration
of
the separate codes and the introduction into those codes
of
environmentally oriented protective provisions; (c) the enactment
0/ statutes directed towards aspecific environmental problem or
problems; and (d) the development
of
overview bodies with
advisory and supervisory functions to which the protective
responsibilities
may
be added.
In these statutory moves towards macro-environmental law in
Australia, the Courts have been given avery limited role and it
is
argued that much
of
the law
is
not
normative in character but
procedural, administrative and discretionary. In very
many
cases,
ultimate control is political rather than judicial.
Introduction
There are difficulties even in aunitary state in establishing an
appropriate pattern for the use, and conservation, of land resources.
There can be problems in deciding whether to dam ariver
or
raise the
level of alake to store water for awater reticulation scheme,
or
for
irrigation purposes,
or
for hydro-electric power for industry; for to do
so
will change the local
environment-may
be for the worse. There
can be competition between towns for industry; one region's valuable
industry on ariver may be another's polluted water supply downstream.
There are greater difficulties in establishing national patterns in a
federal state where,
as
is
the case in Australia, fundamental consti-
*LL.M. (N.Z.), Ph.D. (Otago); Professor of Law, Law School, Australian
National University.
IAshorter version
of
this paper was delivered
to
the First Canberra Law
Workshop on the Law
of
Property held in the Department
of
Law, Research
School
of
Social Sciences, Australian National University, on
28
May 1977. I
want to say thanks very much to Douglas Fisher, with whom Ihave shared the
teaching of Environmental Resources Law since 1975, and to our classes of 1975,
1976 and 1977. Geoffrey Lindell was also kind enough to read parts
of
the article
for me. Shall Ijust say that, if there are any useful ideas in the paper, they all
helped me to develop
them-the
mistakes are all my own?
294
1977] Structure and Nature
of
Australian Environmental
Law
295
tutional authority over land resides in most respects with the States.
It
is
interesting to compare and contrast the solutions that
we
are adopting
in Australia with those in the United States of America. Although
there
is
similarity in some environmental aspects,
we
have tried to
avoid some of the American pitfalls.
However, important
as
the constitutional issues are in Australia,
recourse to this aspect should not be allowed to obscure the funda-
mental reason for difficulty in resolution of land use problems.
It
is
my
thesis that, in essence, it
is
aquestion of power and authority,
or
competition for power and authority, within apolitical system. This
competition
is
present in all facets of alegal system but with land, the
ultimate source of sustenance, this competition
is
particularly acute.
This
is
so, of course, whether agiven country
is
unitary
or
federal; a
federal structure adds another tier to the difficulties.
This element of competition, where control of land
is
part of power
(and at times an overwhelming source of power),
is
present in almost
all societies. But Ibelieve that there has been acycle in the English
common law. Under the feudal system in its classical form, the
hierarchy of the holdings of interests in land was complete in the land
tenure pyramid. Even if this model never existed in aperfect form in
England (or, if it did exist, did
so
for arelatively short time), it
is
clear that,
as
the system and its incidents decayed, the chain of
interests in land became fewer, the pyramid flattened and eventually
disappeared, and the effective control of power over land passed from
the centre into the hands of those holding those interests. Of course,
the ultimate right of the Crown over land remained: technically there
was tenure, quit rents existed and occasional escheats occurred. But in
some sense political power and the exercise of effective authority over
land became severed.2
Ultimately, the holder of the fee simple interest in aparcel of land
effectively held something that was close to allodial ownership of that
land. Admittedly, there were often difficulties in the way of aperson
wishing to exercise an unfettered control.
For
instance, there often
existed astrict settlement which prevented those presently in possession
of the land from exercising many of the elements of this "ownership".3
However, in most respects, the holder of,
or
collective holders of the
various interests in, the fee simple interest in land could do
as
he
or
they wished with the land.
Then the scene began to change. Custom
or
the general law through
doctrines such as nuisance began to exercise aminimal form of land
2This
is
not
to say
that
the great individual landowners did not wield
enormous political power as well.
3See, e.g., Whalan, "Immediate Success of Registration
of
Title to Land in
Australasia and Early Failures in England" (1967) 2New Zealand Universities
Law Review 416, 424 and 436, where it is suggested
that
in the middle
of
the
nineteenth century
at
least two-thirds
of
land in England was subject to settlements.

To continue reading

Request your trial