Environmental Law Australia

Common Law

The Common Law is the law created by decisions of judges, which act as binding precedents for later decisions.

It is a system that applies in many countries that inherited their legal system from England. Countries that inherited their legal system from France, which has a system known as “Civil Law” dating from Napoleonic times, place much less weight on previous decisions of their courts.

Although now largely superseded by legislation at Commonwealth and State levels, the Common Law continues to provide important principles that directly impact upon and shape the Australian environmental legal system.

Causes of action

The main grounds for why a person can sue another in a court, what lawyers call “causes of action”, at Common Law relevant to environmental issues are:

  • Private nuisance (unreasonable interference with the use of property, including due to smoke, noise or vibration from a neighbour’s property);
  • Public nuisance (unreasonable interference with a public right, including due to pollution, where the person affected has suffered some special damage greater than the public generally);
  • Riparian user rights (rights of a person owning property adjoining a watercourse to use water and to prevent other users from unreasonably interfering with the quantity or quality of the water);
  • Negligence (breach of a duty to take reasonable care to avoid damage to people or property, for example, manufacturing goods that cause cancer);
  • Trespass (a direct interference with or invasion of private land, including by pollution).

Other general principles of the Common Law permeate the Australian environmental legal system.

For example the concept of standing (the legal right to commence court action) has often been a major constraint on public interest litigation to protect the environment.

Environmental legislation now often provides widened standing to protect the environment but where it does not the Common Law rules remain an obstacle.

Native title

Native title, recognised by the High Court as part of the Common Law in Mabo v Queensland (No 2) (1992) 175 CLR 1, also has immensely important implications for the environmental legal system.

In Mabo, Brennan J defined the content of “native title”:

“The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.”

As a practical example, the Federal Court found in the Croker Island Case that the native title and interests of the claimant group were:

  • to fish, hunt and gather within the claimed area for the purpose of satisfying their personal, domestic or non-commercial communal needs including observing traditional, cultural, ritual and spiritual laws and customs; and
  • to have access to the sea and seabed within the claimed area:
  • to exercise the above rights;
  • to travel through, or within, the claimed area;
  • to visit and protect places within the claimed area which were of cultural or spiritual importance; &
  • to safeguard the cultural and spiritual knowledge of the claimants.

As the recognition of native title by the High Court and later application by other courts show, the Common Law provides important foundational principles for the Queensland environmental legal system.



[1] See generally Bates, n 6.

[2] See generally Bates, n 6.

[3] See Fisher DE, Water Law (LBC, Sydney, 2000).

[4] In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 the rule of strict liability in Rylands v Fletcher was abandoned in favour of general negligence principles. See also Graham Barclay Oysters PL v Ryan (2002) 211 CLR 540.

[5] See, e.g., Central Queensland Speleological Society v Queensland Cement and Lime Pty Ltd [1989] 2 Qd R 512 (the Mt Etna Bat Caves Case); and Bates, n 6.

[6] See, e.g., s 475 of the EPBC Act.

[7] See generally, Bartlett RH, Native Title in Australia (2nd ed, Butterworths, Sydney, 2004).

[8] Yarmirr v Northern Territory (1998) 82 FCR 533. Upheld in Commonwealth v Yamirr (2001) 208 CLR 1.