New ways for law to protect nature: Victoria’s Yarra Act part of a gradual shift
Following two-and-a-half years of work by EJA and the Yarra Riverkeeper Association – and lots of community consultation – the landmark Yarra River Protection (Wilip-gin Birrarung murron) Bill is now in the hands of the Victorian Parliament.
One of the many notable features of this Bill is how it marries an innovative ‘legal rights for nature’ approach with a conventional land use planning approach.
The distinction between the two is a topic of much discussion within law. In essence it turns on whether the law views the river as a subject of legal rights or benefits itself (the former) or whether the river – or more accurately constituent parts of it, such as land and water – are objects of legal decision-making and obligations.
Are these different approaches compatible within a single piece of legislation?
It will difficult to give a definitive answer to this question until we see how the Yarra River legislation works over time. But, while there may be tensions between issues of principle and pragmatics, this prospective law will help test that question.
It will also test the effectiveness of emerging innovative ways to govern significant natural and cultural assets.
Historically, planning and environment laws have tended to place humans front and centre of statutes. This is gradually shifting as some aspects of law – in particular legal and paralegal rules – establish nature as a subject for protection in its own right.
Eminent environmental law academic Professor Doug Fisher has described this rising flux between nature as object and subject of law as the basis of an ‘emerging jurisprudence of environmental governance’.
The Yarra River Protection Bill does not establish the river as a legal person, which has occurred elsewhere. But the objects and purposes of the Bill do affirm intrinsic and human values of the river. For example, the legislation aims to protect the river as ‘one living and integrated natural entity’. The objects of the law would recognise ‘ecological health’ and the ‘cultural, social, environmental and amenity values of the Yarra River and the landscape in which the Yarra River is situated’.
These are significant legal innovations.
The Act also establishes a type of institutional ‘guardianship’ arrangement in the advisory and advocacy functions of a new Birrarung Council and monitoring/auditing functions vested in the Sustainability Commissioner.
Alongside these objects, purposes and practices, conventional models of planning and water management are also employed, in order to make the proposed river governance arrangements work. In particular, a Yarra Strategic Plan will be prepared as a ‘land use framework plan’ and ‘healthy waterway strategies’ will have to prepared consistently with that strategic land use plan.
These innovative and conventional legal approaches, therefore, are brought together by integrative management tools: a 50-year ‘community vision’, the 10-year Yarra Strategic Plan, and obligations for planners, water authorities and other decision-makers to act consistently with them.
Whether the ‘community vision’ and the Yarra Strategic Plan will fully meet the potential for protection and restoration made possible by innovative principles embedded in the Bill is yet to be seen. Crucially, however, the key variable in this equation is the engagement and participation of the community. The detail of those instruments will come from the community, as well as from government and other sectors.
You will need to be involved to see the new Yarra law achieve its potential.