Legislative environmental assessment : an evaluation of procedure and context with reference to Canada and the Netherlands

This thesis considers the application of Strategic Environmental Assessment (SEA) to legislative proposals, referred to here as Legislative Environmental Assessment (legislative EA). The objective of legislative EA is to contribute towards sustainable development. The purpose of the thesis is to identify developing processes of legislative EA which have the greatest likelihood of achieving this objective. The thesis examines whether such processes can and should be applied in Australia. The first part considers the theory of SEA and systems of legislative EA. This examines the purpose, evolution, scope and difficulties of each process. Although SEA has been applied mostly to policies, plans and programs (PPPs) in the area of land use planning, more recently it has also been applied to legislative proposals. Experience with legislative EA in North America and Europe is analysed, to emphasise that it is of growing and significant international interest. The second part focuses upon principles and criteria used to measure the procedural effectiveness of EA and SEA. This part develops a means of evaluating legislative EA based upon the use of additional criteria. It is argued that if legislative EA is to achieve its objective, these criteria need to include six key procedural aspects and take account of the context in which the procedures operate. The third part examines legislative EA in detail in the jurisdictions which have used it most, Canada and the Netherlands. The procedures and underlying contexts of the Canadian Cabinet Directive on the Environmental Assessment of Policy and Program Proposals 1990 (the Directive), and the Dutch Environmental Test 1995 (E-test) are evaluated against the criteria developed in the second part. The evaluation illustrates the strengths and weaknesses of the use of legislative EA in each country, and the use that can be made of the evaluation criteria. Conclusions are drawn which may usefully be applied to a number of jurisdictions, and which have specific application to Australia. The most important of these is that legislative EA contributes to the achievement of sustainable development. It is therefore necessary that: legislative EA is coordinated with other environmental policies; that environmental, economic and social impacts are integrated in the assessment; that assessments take place at the earliest possible time; and that adequate guidance is provided. Other conclusions are that: EA procedures can and should be used for legislative EA; that the context in which legislative proposals are prepared and approved has a significant influence on the process; that legislative EA should be introduced by a policy rather than legal basis; that it is quite possible to evaluate legislative EA through the use of criteria; that legislative EA is more effective in the Netherlands than in Canada; and that Australia is in a good position to introduce legislative EA requirements of its own, and that it should do so without delay.