THE PRECAUTIONARY PRINCIPLE - ITS ORIGINS AND ROLE

IN ENVIRONMENTAL LAW

David Cole LL.B., Master of Environmental Studies

Environmental Lawyer
Adelaide, South Australia.

February 2005

This short paper discusses the concept of the precautionary principle, its origins, its
application in Australia and internationally and its use in Indonesia.

The Concept

The precautionary principle in the context of environmental protection is essentially

about the management of scientific risk. It is a fundamental component of the concept of
ecologically sustainable development (ESD) and has been defined in Principle 15 of the
Rio Declaration (1992)1:

Where there are threats of serious or irreversible environmental damage, lack of

full scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation.

Although the term "measures" is not entirely clear it has generally been accepted to
include actions by regulators such as the use of statutory powers to refuse environmental
approvals to proposed developments or activities

Australian Environmental Legislation and Judicial Decisions

Australia has adopted ESD as a guiding principle of environmental management. The

National Strategy for Ecologically Sustainable Development (1992)2 adopts the
precautionary principle as a “core element” of ESD as does the Inter-Governmental
Agreement on the Environment, which is the basis for the current distribution of
governmental responsibility for environmental management in Australia also.3

The precautionary principle has been included either specifically or by inference as part
of ESD in numerous Australian environmental statutes. For example, the South
Australian Environment Protection Act 1993 4(which deals with pollution and waste
management) states that one of the objects of the Act is “to apply a precautionary
approach to assessment of risk of environmental harm although the term “precautionary
approach” is not defined.

1
United Nations Conference on Environment and Development, Rio, 1992 (the "Rio Declaration").
2
Commonwealth of Australia. 1992. National Strategy for Ecologically Sustainable Development.
3
Inter-Governmental Agreement on the Environment.1992 (Australia).
4
Environment Protection Act 1993 (SA), section 10(1)(b)(iv).
In New South Wales, the Protection of the Environment Administration Act 19915
includes as one of several objectives, “the need to maintain ecologically sustainable
development” and in defining ESD includes the precautionary principle6.

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999

which, amongst other matters, contains the Commonwealth requirements for
environmental impact assessment (EIA), states as an object the promotion of ecologically
sustainable development7 which includes the precautionary principle8. In making certain
decisions, including whether or not to approve a proposed development as part of the
EIA process the Minister for the Environment and Heritage must take this principle into
account 9.

In the last decade or so several Australian Courts have applied or considered the
precautionary principle in environmental disputes. In Leatch v. National Parks and
Wildlife Service10 in the New South Wales Land and Environment Court, a third party
objector challenged the decision by the Parks Service to issue a permit to a local council
to “take and kill” endangered fauna in order to construct a road. It was argued by Leatch
that various species of animal, including the giant burrowing frog and the yellow bellied
glider, could be put at risk by the development and that there was insufficient scientific
certainty about the impacts of the project on these species. It was argued that the
precautionary principle should be applied.

The National Parks and Wildlife Act 1974 did not specifically refer to either ESD or the
precautionary principle. However, Judge Paul Stein refused the licence stating that “the
precautionary principle is a statement of commonsense and has already been applied by
decision-makers in appropriate circumstances prior to the principle being spelt out”.

There have been several other judgements from the NSW Land and Environment Court
and from other Australian courts which considered the precautionary principle. In 1999
the South Australian Environment, Resources and Development Court handed down its
judgement in the now well-known case of Conservation Council of SA Inc. v. The
Development Assessment Commission & Tuna Boat Owners Association11
([1999}SAERDC 86). In that case the Development Assessment Commission(DAC) had
approved under the Development Act 1993 the developments of tuna farms within South
Australian coastal12. The Conservation Council believed that they were damaging to the
marine environment and that the DAC had failed to take into account the principles of
ESD which the relevant development plan required to be followed in determining
whether a proposal was acceptable.

Judge Trenorden agreed that the development included ESD as a valid planning criterion
and accepted the precautionary principle as part of the concept of ESD. Her Honour
5
Protection of the Environment Administration Act 1991 (NSW), section 6(1).
6
Ibid., section 6(2).
7
Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth), section 3.
8
Ibid., section 3A.
9
Ibid., section 391.
10
1993 Local Government and Environment Reports 270.
11
(1999) SAERDC 86
12
Development Act 1993 (SA).
determined that the onus lay with the proponent to demonstrate on the balance of
probabilities that the proposals complied with the principles of ESD. To do so the
proponent would have to demonstrate, in addition to the management measures that it
proposed adopting, “that the risk-weighted consequences of the development assessed
together do not suggest that serious or irreversible environmental damage would be
sustained”13.

It is clear from Judge Trenorden's judgement that the burden of proving the acceptability
of a proposal where there is scientific uncertainty about its impacts lies with the
developer or proponent. This is also expressed in the Indian Supreme Court's judgement
in Nayudu (see below).

However, there would appear to be a logical requirement that the opponent of the
development must first argue that the potential impacts are sufficiently uncertain as to
attract the precautionary principle. It has been suggested that in common law
jurisdictions, at least, the burden lies with the opponent to trigger the application of the
precautionary principle by proving on the balance of probabilities that a threat to the
environment exists if the proposal proceeds. The burden of proof would then shift to the
proponent to prove that serious or irreversible environmental damage would not be
sustained. Again, it would appear that in a common law jurisdiction the degree of proof
required of the developer would be the balance of probabilities.14

The Application of the Principle Internationally

Internationally, the precautionary principle has been directly or impliedly applied or

referred to in judicial decisions in several countries. Justice Stein (see references and
footnote 14) refers to cases decided in Britain,15 India,16 Pakistan17 and New Zealand18
and also refers to judgements of. the International Court of Justice19 and the European
Court of Justice20.

In AP Pollution Control Board v. Nayudu the Indian Supreme Court applied the
precautionary principle in considering a petition against the development of certain
hazardous industries. The Court held that " . . . it is necessary that the party attempting

13
(1999) SAERDC 86 at para.24 (16 December 1999).
14
See Farrier, D and Fisher, L., 1993 Reconstituting Decision Making Process and Structures in Light
of the Precautionary Principal. Paper presented at the Precautionary Principle Conference,
University of New South Wales, September, 1993. Referred to in Stein, P.L. Are Decision-makers
too Cautious with the Precautionary Principal?, Volume 17, 2000, Environment and Planning Law
Journal 3.
15
R.v. Secretary of State for Trade and Industry Ex parte Duddridge and Others (Queens Bench
Division, 4 October, 1994 (unreported)).
16
AP Pollution Control Board v. Nayudu. Supreme Court of India SOL Case No. 53, 27 January 1999
(unreported).
17
Zia v. WAPDA. PLD 1994 Supreme Court 693.
18
Greenpeace New Zealand Inc. v. Minister for Fisheries (High Court of New Zealand, CP 492/93, 27
November 1995, unreported).
19
The Danish Bees Case. Judgement of 3.12.1998 in case no. 67/97.
20
The Danube Dam Case. Hungary v. Slovakia (1998) 37 ILM 162, 204, 212 (see in particular the
Separate Opinion of Judge Weeramantry).
to preserve the status quo by maintaining a less-polluted state should not carry the
burden or proof and the party who wants to alter it, must bear this burden".21 .

In Zia v. WAPDA22 The Supreme Court of Pakistan was called upon to consider a
challenge by local residents to the construction of high voltage transmission lines in their
locality. They argued that the electro-magnetic radiation (EMR) emitted by the
transmission lines constituted a serious health hazard. In deciding that the scientific
evidence in relation to the effects of exposure to EMR was inconclusive, the Court
applied the precautionary principle.

It is apparent that whether or not the precautionary principle is specifically referred to in

relevant legislation such as pollution control Acts or environmental impact assessment
legislation, courts throughout the world are increasingly inclined to accept the principle
as a means of dealing with scientific uncertainty in environmental disputes. The
principle may fairly be regarded as an evidentiary tool in resolving dispute over the risks
presented to the environment and to human health by certain types of development.

Additionally, there is now a considerable body of judicial opinion placing the burden of
proving the acceptability of a proposal in this respect on the proponent, not the person
arguing that it is environmentally unacceptable.

The principle also acts as a guideline to administrators and the courts in making decisions
involving competition between economic development and the maintenance of
environmental quality where the potential impacts are unclear.

The Application of the Principle in Indonesia

What is the potential for the precautionary principle to be applied in Indonesia? In

recent years the Indonesian courts have had regard to the precautionary principle (or
considered the issue of adequacy of scientific evidence that could have attracted the
principal), both in the contexts of exposure to electro-magnetic radiation from overhead
power lines23 and death and destruction caused by landslides.24

Indonesian environmental legislation would appear to support the application of the

precautionary principle in safeguarding the Indonesian environment. The preamble of
the Environmental Management Act.25 refers to "environmentally sustainable
development" in clauses b., c. and d. The last clause states that:

" . . the implementation of environmental management in the scheme of

environmentally sustainable development should be based on legal norms taking
into account the level of community awareness and global environmental

21
See above, note 16: Rao, J.
22
See above, note 17
23
The Singosari Case District Court, Gresik, East Java.
24
Mandalawangi Landslide Class Action Case (Civil Litigation). No. 49/PDT.G./2003/PN.
District Court Bandung, 4 September, 2003.
25
Environmental Management Act (No. 23 of 1997)
 developments as well as international law instruments related to the
environment".

Article 3 of Chapter II ("Basis, Objective and Target") of the Act states that:

"Environmental management which is performed with . . . a principle of

sustainability . . . aims to create environmentally sustainable development . . .".

The preamble to the Environmental Impact Assessment Act26 also refers to sustainable
development (paragraph a.) and thus provides a context for the interpretation and
application of that Act.

Therefore, in any dispute arising from either of the above two Acts it would be possible,
as appears to have occurred in the Mandalawangi Landslide Case (see footnote 24), to
argue before an Indonesian court that Indonesian administrators and the courts are bound
by the precautionary principle as a core element of the principles of sustainable
development.

The reference to sustainable development in the two Acts, combined with its adoption in
international conventions and treaties and in a wide range of domestic laws and judicial
decisions in different countries could provide a sound basis to ensure that developers who
cannot satisfactorily demonstrate that the risk to the environment from their proposal is
acceptable should not be permitted to proceed.

26
Environmental Impact Assessment Act (No. 27 of 1999)