Sustainable development is not a
new concept; it was around a long time before the Earth Summit in Rio de Janeiro
formulated its blueprint for implementation through Agenda 21 in 1992. The
modern definition of the concept is most often credited to the Brundtland
Commission Report of 1987, which described it as 'development that meets the
needs of today whilst not affecting the ability of future generations to meet
their own needs'. Whilst it is fair to observe that the concept has been
accepted by most governments around the world, its implementation is proving to
be much more difficult.
The Hong Kong Government first
began its formal recognition of sustainable development in the early 1990s but
its commitment to it as a matter of policy has been spearheaded by the infusion
of environmental issues into the most recent review of the Territorial
Development Strategy. This commitment was taken a step further with the
commissioning of the Study on Sustainable Development For the 21st Century,
SUSDEV21 on 1 September 1997. The objectives of the Study are to raise public
awareness about the concept, educate the people of Hong Kong about its
importance and assist the Government in incorporating sustainable development
into its policy, planning and development decisions. The Study completed its
first phase of public consultation in June 1998. The consultants to the Study
intend to develop a system that will permit different development scenarios to
be run through a computer to assess, with the assistance of various economic,
social and environmental 'indicators', the sustainability of proposed
developments. It is intended that the model be up and running by the year 2000
and that in the same year an Agenda 21 for Hong Kong be developed. It is hoped
that the concept will begin to be comprehensively implemented in accordance with
this Agenda.
The work being done in Hong Kong in
sustainable development is still in its infancy. However, the impact it will
have on Hong Kong's long and short term development could be enormous and will
touch on all aspects of Hong Kong life, the legal profession included. Further,
given the way that the concept has been embraced overseas, the reality is that
if the Government does not have the political will to see the implementation of
the concept through, it will be forced on business anyway. Consumers are
becoming increasingly aware of the importance of environmentally responsible
products and processes and are demanding these in preference to others. Although
this trend of 'green consumerism' is not well developed in Hong Kong, survey
evidence suggests that environmental awareness and concern is rising and there
already exists a hard core group of 'green consumers', albeit small but growing.
Moreover, the reality is that many of the products manufactured on the mainland
of China are not bound for domestic consumption. These products that are
manufactured for overseas markets must meet the increasingly demanding process
environmental standards for products imposed overseas, not just at the
development stage, but also at the processing and disposal stages of products.
Accordingly, business in Hong Kong or China that fail to meet these standards
will, by implication, be adopting a marketing strategy for sale of their
products only to developing countries in the region, a small and poor market by
any standards.
The legal profession is an integral
part of these changes. Not only will it be called upon to interpret the many
laws and regulations which support the concept nationally and internationally,
but commercial lawyers also have a central role to play in advising their
clients of the significant impact the concepts will have in the way their
businesses are conducted. At present, most of the environmental laws in Hong
Kong can be categorised as command and control anti-pollution legislation but,
as the concept is implemented in Hong Kong, new laws focusing more on prevention
of rather than a cure for environmental ills will come to the fore. A recent
example of this is the Environmental Impact Assessment Ordinance (Cap 499),
which came into effect on 1 April of this year. This legislation controls and
guides the environmental impacts of certain large-scale developments. In short,
where the impacts are too adverse, the development will not proceed. However,
and perhaps even more important than the central theme of the legislation, was
its clear and significant implementation of one of the central themes of
sustainable development, namely public participation. For the first time in
environment legislation, the right of the public to participate in this
legislated process was guaranteed. Further, the Register now being kept of most
of the documentation produced during the EIA application process means not only
that this information is available to the public but also that there is a record
of the outcome of environmental decisions taken by the Government. In short, it
seems that the government is not only actively encouraging informed public
participation but it is also making its environmental decision making processes'
more transparent.
Accordingly, not only should
practitioners be aware of these changes in a strictly legal sense, ie
interpreting this new legislation but, as mentioned, in the broader, long term
sense that times are indeed 'changing'. More legislation will follow and the new
laws could be significantly different from anything that has come before. For
example, if the government does implement the concept, as a matter of policy it
will have to decide how best to assist the small to medium sized enterprises
(SME's) that make up most of the businesses in Hong Kong in enabling them to
remain competitive and still comply with environmentally responsible standards.
Inevitably this will lead the Government to consider the use of 'green' economic
incentives like tradable emission permits and 'green taxes' (a concept much
debated) to provide 'tax breaks' for those SME's that undertake the significant
capital expenditure needed to implement environmentally responsible processes
and products. Further, practitioners may be called on to advise on the likely
involvement of a more enlightened judiciary in these areas. For example, whether
the courts will require polluters to implement an environmental management
system as part of the penalties it imposes just as the courts have done as
recently as 1996 in Canada.
As this brief summation of the
state of sustainable development in Hong Kong suggests, central to its
implementation will be the law. The law has always been the fall back position
ie if people will not respond to government requirements voluntarily, they will
be forced to do it involuntarily. In Europe this voluntary/ involuntary
dichotomy has taken the form of voluntary agreements between government and
business with the threat of legislation if these are not observed. This could be
a way forward for Hong Kong, but whether it is agreements or legislation, the
profession will be called on to be in the forefront of professional advice
giving. One thing is for sure, sustainable development is not going away, it is
not a fad, and it is an international trend. There can be no doubt that legal
practitioners, particularly those in the practice areas of commercial and
construction law, criminal law, and banking and finance, should already be
advising their clients about these changes in Hong Kong. Similarly there is
little doubt that the environmental law tentacles will increasingly spread to
other practice areas Ð ignorance of the law has never been an excuse for any of
us and will be even less favourably viewed if it applies to legal practitioners
who fail to go green!
Terri Mottershead
Associate
Professor of Law
City University, Hong Kong,
Co-Convenor, Hong Kong
Sustainable Development Forum;
Member, Sustainable Development Taskforce of
the Hong Kong Environmental Law Association
Anne Copeland
Consultant,
Hong Kong Productivity Council;
Co-Convenor, Hong Kong Sustainable
Development Forum,
Chair, Sustainable Development Taskforce and Executive
Committee
Member of the Hong Kong Environmental Law Association