CASE STUDY ON ENVIRONMENTAL LAW

QUESTION

In 2011, the WA Parliament enacted the Local Government Protection of Environment (Waterways Control) Act (2011) WA (a fictional Act). This Act had the purpose of giving local government the power to control the flow of pollution into lakes, oceans, rivers wetlands and other waterways within individual local government districts. The State Government is facing an election in early 2012 and has decided that as it doesn’t want to spend State money on this problem, it will give some powers to local government and that will take the political pressure off the State in respect of this matter. The discretionary powers given to local governments are very broad and include the following:

s.17     Local Government Powers

Every local government authority is hereby authorized and directed to carry out the provisions of this Act within its district in addition to the enactment of any local laws it thinks appropriate for pollution control.

s.24     Local  Government can make local laws to protect the environment including water pollution

Without limiting the generality of s.17, local laws may be made in accordance with this Act for all or any of the following purposes:

(i)              regulating the construction and maintenance of all drains sewers and appliances necessary for carrying away or disposing of or treating any waste or noxious  matter within its district or any portion or portions thereof including the inspection, control and imposition of fines for proven breaches of local laws made under this Act.

A portion of the Canning River flows through the City of Canning in the southern suburbs of Perth. River side recreational areas attract a significant number of kayak, dragon boat, jet ski and other water sport enthusiasts each year because of the ease of boat launching and generally favorable conditions. Local businesses benefit from these visitors and the City of Canning charges a fee for launching recreational watercraft which amount to a large revenue stream for the City.

In January 2012, a significant number of recreational water sport enthusiasts who used the City of Canning water sport area contracted meningococcal meningitis infection. Medical advice suggested that exposure to large concentrations of blue-green algae or microcystis was the cause. Investigation has discovered that there is a strong likelihood that untreated industrial waste products from local businesses have caused a large increase in algal blooms in the river. There are a number of industries ranging from light industrial enterprises such as sheet metal manufacturers and boilermakers to furniture producers who are situated near or on the banks of the Canning River within the City of Canning geographical boundary. These enterprises typically pump treated waste products into the Canning River.

The impact of the algal bloom in the river ecosystem is however becoming more problematic and has generated much publicity. The local Member of Parliament, Mrs Tilly Devine, is concerned that this will have a negative impact on voters in the forthcoming election if something isn’t done. Mrs Devine contacts the City of Canning and informs the Mayor that it is government policy to deal with these issues and she expects that the City will take action and find a culprit. She says. “I don’t care who you bleedin’ pick, just do something so I can issue a press release you nonce.” An inspector from the City of Canning visits a local manufacturer of kitchen utensils, Leigh Industries Pty Ltd that are located near the Canning River. After an inspection which reveals no obvious link between the algal bloom and Leigh Industries he issues a notice to the company owner Kate informing her that they are in breach of City of Canning local law 87(b) that states ‘waste product discharge into waterways without the use of appropriate drainage equipment and payment of the annual drainage fee is prohibited’. The inspector fines Leigh Industries $150,000. This local law was made pursuant to S. 24 of the Protection of Environment (Waterways Control) Act (2011) WA.  Leigh Industries owner Kate Leigh is furious and argues in no uncertain terms she does in fact have adequate drainage on her property which has never been in issue before despite many inspections by the City of Canning over a number of years. She also claims that they have never had any notice or request for the payment of an annual fee.

Leigh Industries Pty Ltd is named in the press as the source of the pollution and is outraged. The business has suffered commercially as a result of the adverse publicity. Kate Leigh has said that she will defend her company aggressively. She comes to you for advice as to whether there is any action they can take against the City of Canning.

1. Using the rules of Statutory Interpretation discuss whether Leigh Industries have breached the City of Canning local law 87(b). Use the 4 step process

2. Discuss whether the City of Canning has exercised their Administrative Action appropriately. Use the 4 step process

SOLUTION

FACTS OF THE CASE:

The facts of the case deal with the issue related to the dumping of industrial waste into the canning river flows through the City of Canning which is famous for its recreational water crafts which amount to the larger part of the city revenue. In January 2012, a significant number of water sport enthusiastic used it for the water sport and contracted with diseases, thus the government to protect itself from the upcoming elections orders the local government to resolve this issue in any possible way, for which the local inspector on investigating Leigh Industries Pty Ltd and issues notice that there is breach of City Canning Local Law 87 (b) “discharge of waste water into waterways without proper drainage and payment of annual fee is prohibited”. The inspections officer had the full knowledge that there is no link between the company and the issue, but to hush up the publicity and avoid negative impact on voter the government orders the mayor to resolve the issue in any possible ways and this was the possible way found by the officer. Leigh Industries owner Kate argued that the terms claimed against their industry are uncertain; because she never had inspection issue in past years and also that she never paid any annual fees.

A)   Based on the given facts we can advise Kate to prove that there has never been any issue over the industry drainage system despite many inspections from the city of canning in the past and also that she never paid any annual fees. She is advised based on the four step process (Philippe, 2003) [1].

• First Step: The first step for resolving her issue is identifying the problem and reason behind this notice. If check through the facts we can understand that the reason behind this notice was to resolve the issue government is facing with the algal bloom in the eco system and publicity it had generated.

To succeed in the upcoming elections, the local member of the parliament Mrs. Tilly Devine orders the city mayor to have the issue resolved in all the possible ways. The local inspector during his inspection approached the Leigh Industries and issued the notice even though he had the knowledge that this industry is not bound by this issue to just complete his inspection process quickly he put the entire blame on Leigh Industries because the government wanted the issue solves in any of the available ways.

• Second Step: The second step is the principles based on which Kate can argue her case. Sec 87(b) of the City of Canning Local law states that lack of proper drainage system and payment of annual fees is prohibited. Based on the facts of the case it can be understood that Kate had abide by Sec 87(b). The principles in the case include:

v Principle of Sovereignty over natural resources (Eric, Daes & Irene, 2004): Under this principle it is the right of the people to protect the natural resources of their country and for the nation’s development [2]. This principle can be further explained with the decision in Mayagna (Sumo) Community of Awas Tingni v. Nicaragua.

v Polluters Pay Principle (Preston 2009): This principle states that the citizens who own the community are to protect their environment and if they default in its protection he is liable to pay for the damages he had made [3]. This principle can be better explained in Environmental Protection Authority v. Waste Recycling and processing Corp.[4] (D6 Environmental Law, Substantial development of Law in courts)

v Principle of environmental information: This principle is rooted to develop awareness in the minds of the people about the comprehensible information regarding the dangers that are concerned with environmental protection. (Directive no. 03/4/EC enacted into Italian law with D.Lgs. 195/05). This is principle is further explained in the examples of Steel and Ryding 1992, Wagner & Janzeen, 1991.

• Third Step: Under the third step we discuss how Kate can use these principles in her case. Under the first principle she has to prove that she had maintained sovereignty over the natural resources by using proper drainage system which she can prove by providing evidence of the regular inspection reports she has. Also, she can provide the evidence that she had not made any annual payment as she had not induced any damages to the natural resource.
• Fourth Step: Thus, as per the given observations it can be concluded that Kate can prove her innocence by proving the required evidences to the court and can claim damages for defaming her industry.

B)    Further, we discuss if City of Canning had applied its Administrative authority effectively under 4 principle steps. As per the facts of the case the local author were given administrative rights from the government to protect the environment as per the provisions under Sec 17 of the Protection of Environmental Act 2011. We discuss this in detail as below:

• First Step: It can be identified that from the given facts the authority given to the mayor have been miss utilized because he abided with the wrong notice of the inspector and blamed the Leigh Industries for the cause of environmental pollution in the city which was a mere conclusion based on the notice and he did not even give the industries time to prove the report wrong.
• Second Step: As per the stated principles for the above issue we can note that being in the authoritative position the mayor did not fulfill the administrative authority given to him and also he did not abide by the principles including the preventive action & corrective action principle [5] [6] and principle of shared responsibility ( John,2002)  and co-operation (Tridimas, 1999) [7] precautionary principle [8] and principle of balance: graduality and dynamism of environmental protection (ecological and environmental principles and criteria for sea suppliers, SGA-PG-6, June 2007).

The preventive action and corrective action principle and the precautionary principle from the administrative point of view define the steps and the procedures to be followed by the authority in protecting the environment in of the country by taking required administrating norms with the co-operation of the citizens for the development of the nation. The principle of balance defines the dynamism to be followed by the government to protect the environment. Every person has to remember that development of a nation is not just through finances but also with balance of environment and protection of natural resources.

• Third Step: As the mayor of the city it is his duty to take in preventive action so as to observe that the environment is secured and also he has to be in co-operative position with the industries for the development of the city. The administrative authorities of the local inspection officer and mayor have not been properly utilized by them in the given case, because there were wrongful claims made against Kate. Not only had the wrongful claim Kate had to suffer even from defamation to her company. Being in an authoritative position the mayor and the inspection officer should have gone further into deep inspection than just trying a way to push the blame on someone innocent.
• Fourth step:  With the observations in the given case the administrative authority has been miss-utilized by the mayor under the instructions given by the local Parliament member, who were worried about their position in the upcoming elections, because of the environmental issues in the city of canning. Thus it can be concluded that to reduce the generated publicity they wrongfully put the blame on Leigh Industries of Kate. Thus, it can be concluded that the administrative powers given to the mayor were utilized only for the protection of the government and not for the development of the individual and the natural resources of the city. Although the protection of the natural resources and the environment is in the hands of both the government and the citizens, even a small breach from either side may affect the nature drastically

MARKING GRID on the given case law.

REFERENCE:

• [1] Sands Philippe, Principles of International Environmental Law, Second Edition, Cambridge University Press
• [2] Indigenous Peoples Permanent Sovereignty over Natural Resources Lecture by Professor Dr. Erica-Irene A. Daes at the National Native Title Conference, Adelaide, Thursday, 3 June 2004.
• [3] [2006] NSWLEC 419; (2006) 148 LGERA 299 at [230]
• [4] Moffett J and Bregha F, “The Role of Law in the Promotion of Sustainable Development” (1996) 6 Journal of Environmental Law and Practice 3 at 8
• [5]Preventive action – 30-06-2002 Article, International Review of the Red Cross, No. 846
• [6]Southern Bluefin Tuna (Requests for Provisional Measures) (New Zealand  v. Japan; Australia v. Japan), 38 ILM (1999) 1624
• [7] Article 10 of TEC, Strategic Environmental Assessment in International and European Law.
• [8] Telstra Corporation Limited v Hornsby Shire Council
• BSI (British Standards Institution) (1992), Specifications for Environmental Management Systems, BS 7750, London: British Standard Institution.
• Environmental Business Journal,  The Economist, 1993
• Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [230]

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