Notions of ‘Environment’ in

Legislation
Critique 2

Emma Swann 3171645

Discuss how the topic has evolved and its relationship to

contemporary environmental law and policy. Illustrate with examples
from the readings and/or apply it to a current environmental issue.
Law is an important part of culture and often expresses the dominant values of a society.
Therefore, the notion of environment in legislation and policy will generally reflect the
dominant views of it held by that society (Delaney, 2001:489).

Law in modern Western societies has an almost exclusively anthropocentric view of the
environment – humans are separate from the environment and it exists solely in order to
satisfy human wants. There is an assumption that the law only exists for the purpose of
ordering human societies, and certainly not to protect the environment for its own sake.
Most laws regarding protection of the environment require such protection to be connected
to human needs (Tribe, 1974:1329). Some argue that this view of the environment in
western societies stems from Christianity, where humans were created in God’s image, thus
having dominion over all other species. This thinking creates the belief that humans are
separate and superior to the rest of nature (Roberts et al., 1995:10).

This anthropocentric notion of the environment is the dominant notion of environment

present in Australian legislation, policy and general culture. For example, the definition of
‘environment’ in the NSW Environmental Planning and Assessment Act, although drafted in
1979, still reads as “environment includes all aspects of the surroundings of humans,
whether affecting any human as an individual or in his or her social groupings (Boer,
1984:241).” This definition implies that the environment is defined by its usefulness to
humans.

Market liberal notions of the environment are very much along these anthropocentric lines,
and thus fit well conceptually with our society’s dominant understanding of environment.
Market liberals see market tools as a key way to address environmental problems, and this
approach is being taken by governments and international institutions worldwide (Clapp
and Dauvergne, 2005:224). In particular, with regards to managing water, key market liberal
international institutions such as the World Bank and IMF see privatising water as the
answer. In 2003 the global water business was worth approximately $US 400 billion per
year, making it more profitable than the pharmaceutical industry (White, 2008:258). Water
trading is now an accepted, nationally endorsed strategy in Australia for dealing with scarce
water resources (National Water Commission, 2011). At the heart of the market liberal idea
of privatising natural resources in order to manage them (and profit from them), is the idea
that the environment can be subject to private ownership. This is an extension of the
anthropocentric view that the environment is purely a resource for human use and
consumption.

This binary view of humans and their opposite, nature, has led to the uniquely western idea
of two opposite environments – one inhabited and used by humans which is degraded and
contaminated, and the other free of human interference, which is pristine and pure
wilderness. This concept was illustrated nicely in the 1973 American case Izaak Walton
League v St Clair (353 F. Supp 698) which involved the application for mining exploration
rights in a national park. Judge Neville found against mining being conducted within the
national park, noting “Wilderness exists because man has not yet intruded on it...once
penetrated by civilization and man-made activities it cannot be regained...it is irreversibly
and irretrievably destroyed (Delaney, 2001:492).”

This view conflicts with many traditional notions of the environment, including that of New
Zealand’s Maori people. The Maoris’ concept of environmental management is based

ENVS 6510- Critique 2 – Emma Swann 3171645 Page 2 of 6

around the idea of ‘kaitiaki’ which is best translated into English is ‘guardianship’ but
encompasses much more than this. It literally means looking after one’s own blood and
bones – reflecting the Maori view that humans are just one part of the environmental
family, along with animate and inanimate objects, and it is their role to actively ensure the
earth’s welfare (Roberts et al., 1995:10). The Maori concept of environment is consistent
with an ecocentrist approach, which sees the environment as an interconnected community
of ecosystems, of which humans are but a mere factor. Ecocentrists believe that human
beings need to adjust to the planet, and that in everything we do, the prime concern should
be the health and biodiversity of the earth (Foreman, 1993:27).

The Maori notion of environment has been largely absent from New Zealand legislation
since European settlement. New Zealand’s Conservation Act (1987) views the environment
in terms of the ‘human contamination/pristine wilderness’ dichotomy, outlining that
conservation “usually results in the setting aside and management of land, natural and
historic resources.” This is at odds with the Maori people’s concept of the environment and
their important role in is as guardians. Maoris criticise this notion of environment as
alienating humans from the land, and them from their kaitiaki responsibilities (Roberts et
al., 1995:15).

The New Zealand Resource Management Act 1991 has attempted to reconcile these two
opposing views of the environment. Its definition of the environment incorporates a mix of
notions, including the Maori concept of kaitiaki, ecocentric views of “ecosystems and their
constituent parts, including people and communities” and anthropocentric notions of “all
natural and physical resources and amenity values (Bosselmann, 2010:2433).”

While regarded as revolutionary at the time, it appears that the act has not revolutionised
the way in which its administrators view the environment. It has been applied and
interpreted along the familiar anthropocentric approach, where at times environmental
damage is reduced, but not stopped from occurring. This is perhaps a predictable outcome
of an act containing conflicting notions of the environment – the notion that is most familiar
to decision makers (the anthropocentric one) is easier to apply and complies with dominant
societal expectations (Bosselmann, 2010:2433).

A more ecocentric interpretation of environment has also found its way into Australian
legislation, namely the Commonwealth Environment Protection and Biodiversity
Conservation Act (1999). Part of section 528 defines environment as:

(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) heritage values of areas (Godden and Peel, 2011:50).

Like the New Zealand Resource Management Act 1991, this seems to contain both
ecocentric and anthropocentric views of the environment. How effective it has been in
changing notions of environment to that of an integrated ecosystem and implementing such
notions into solid action is yet to be seen.

The New Zealand Resource Management Act 1991 was unique in specifically implementing
indigenous notions of the environment into legislation. Indeed, this approach is consistent

ENVS 6510- Critique 2 – Emma Swann 3171645 Page 3 of 6

with the social green view of environmental management, which sees a special role for
indigenous knowledge of ecosystem management in current management arrangements
(Clapp and Dauvergne, 2005:236). This idea, while certainly not mainstream, has been
successfully implemented in the Northern Territory under the WALFA agreement. When the
Darwin Liquefied Gas Plant was proposed, the Northern Territory government made its
licence conditional on the plant offsetting greenhouse gas emissions. Thus the plant pays $1
million per year to traditional Aboriginal inhabitants of Western Arnhem Land to
strategically burn patches of the savana, as uncontrolled savana fires account for 41% of the
territory’s greenhouse gas emissions. Controlled fires have been an environmental
management tool used by aboriginal people for thousands of years, as regular low intensity
fires burn available matter, ensuring that there are no significant build ups to fuel
uncontrolled destructive fires (Savana Organisation, 2012). The WALFA program has to date
been a success, and highlights that with regard to fire management, the aboriginal notion of
“guardians of the land”, and actively managing it has been more successful than the western
notion of leaving the wilderness alone, which has rendered it liable to devastating fires.

Some ecocentrists have proposed that the environment itself be recognised as having legal
rights, like other non-human entities such as corporations. This would meant that
environmental protection would not always have to be couched in terms of its reference to
human interests, but rather its own inherent worth (Tribe, 1974:1341). This would also get
around the legal standing issue, which was highlighted in the Australian Conservation
Foundation v Commonwealth of Australia (1980) 28 ALR 257 case. The High Court found that
in order to have standing, one must have a “special interest” in the environment in
question, which was interpreted as having a property interest in the affected area (Boer,
1984:251). While in the last decade the courts haven’t gone so far as to give the
environment itself legal rights, they have relaxed standing requirements, making it easier for
environmental groups to bring court actions (Bates, 2012:35).

However, this is still far from recognising the environment as having its own inherent legal
rights. It is precisely because an ecocentric notion of the environment is so at odds with
much current legislation, policy and general culture that some ecocentrists believe that
breaking the law is acceptable in certain circumstances. Co-founder of EarthFirst! Dave
Foreman explicitly states that ‘monkeywrenching’ (deliberate illegal sabotage of industrial
equipment) is legitimate as a last step to defend nature where all other measures have
failed. Paul Watson, the captain of the Sea Shepherd, openly committed crimes, such as
ramming whaling ships, in order to save the lives of whales where the international
community was failing to act (Watson, 1994:2).

In conclusion, the dominant notion of the environment in legislation and policy is an

anthropocentric one, with market liberal notions of privatisation of natural resources
currently in mode. The anthropocentric human/nature dichotomy brings with it the idea of
the ‘pristine wilderness.’ These concepts are at odds with many traditional societies’ views
of nature, and that of ecocentrists, who see humans as just one part of the environmental
community, with our needs less important than the overall health of the world ecosystem.
This notion of environment has started to appear in legislation, and in some cases
indigenous management systems are being utilised. Notions of environment are changing
slowly, however in our society an anthropocentric approach continues to prevail, thus some
ecocentrists believe that breaking the law is acceptable in order to protect the environment.

ENVS 6510- Critique 2 – Emma Swann 3171645 Page 4 of 6

REFERENCES

BATES, G. 2012. Environmental Law in Australia, Chatswood NSW, Lexis Nexis Butterworths.
BOER, B. 1984. Social Ecology and Environmental Law. Environmental and Planning Law Journal, 1,
233-257.
BOSSELMANN, K. 2010. Losing the Forest for the Trees: Environmental Reductionism in the Law.
Sustainability, 2, 2424-2448.
CLAPP, J. & DAUVERGNE, P. 2005. Paths to a Green World? Four Visions for a Healthy Global
Environment. Paths to a Green World: the Political Economy of the Global Environment.
Cambridge: MIT Press.
DELANEY, D. 2001. Making Nature/Marking Humans: Law as a Site of (Cultural) Production. Annals of
the Association of American Geographers, 91, 487-503.
FOREMAN, D. 1993. Confessions of an Eco-Warrior, Harmony Books.
GODDEN, L. & PEEL, J. 2011. Environmental Law, Melbourne, Oxford University Press.
NATIONAL WATER COMMISSION. 2011. Available: http://nwc.gov.au/.
ROBERTS, M., NORMAN, W., MINHINNICK, N., WIHONGI, D. & KIRKWOOD, C. 1995. Kaitiakitanga:
Maori Perspectives on Conservation. Pacific Conservation Biology, 2, 7 - 20.
SAVANA ORGANISATION. 2012. Fire Agreement to Strengthen Communities [Online]. Available:
http://www.savanna.org.au/view/250363/fire-agreement-to-strengthen-communities.html
[Accessed 10 July 2012.
TRIBE, L. H. 1974. Ways Not to Think About Plastic Trees: New Foundations for Environmental Law.
Yale Law Journal, 83, 1315-1348.
WATSON, P. 1994. Ocean Warrior: My Battle to End the Illegal Slaughter on the High Seas , Keyporter
Books.
WHITE, R. 2008. Crimes Against Nature: Environmental Criminology and Ecological Justice, Willan
Publishing.

ENVS 6510- Critique 2 – Emma Swann 3171645 Page 5 of 6