by Deborah Lockhart and Christian Santos


ADR[2] has grown significantly in Australia not merely in the footsteps of its international popularity, but as a frontrunner in a global push for timely and cost effective dispute resolution. When speaking at the Australian Disputes Centre in 2017, Chief Justice Tom Bathurst, stated that it is “fair to say now that ADR has evolved to the stage not merely of being additional or supplementary but complementary and integrative.”[3]

Environmental law is a dynamic body of law addressing the effects of human activity on the natural environment. It is an area of law that provides the frameworks and tools for responding to challenges posed by climate change, loss of biodiversity, pollution, use and exploitation of natural resources, and planning for sustainable cities. By its very nature, environmental law can have wide-ranging effects on the interests of individuals, communities, and nations. This adds to the complexity and challenge of resolving disputes in this area. Nevertheless, despite its challenges, significant opportunities exist to utilise Alternative Dispute Resolution (ADR) mechanisms to aid in the resolution of conflict and disputes.

ADR and Environmental Law Disputes

The often seen complexity of environmental law disputes arises from the sheer breadth of issues that can be involved. Environmental disputes may comprise of diverse and unrelated topics ranging from science, sociology, economics to history and culture, property rights and legal or regulatory constraints. These disputes may also involve a wide range of parties, from private individuals to the general public, and take place in multiple jurisdictions both national and international.[4] One person’s environmental dispute may be another person’s industrial dispute, health issue, commercial dispute, sacred site or land rights dispute, or a dispute impacting on a nation’s sovereignty.[5]

The unique nature of environmental law itself adds another dimension of complexity to disputes. It has been said that at its core this area of law oversees and addresses issues that can be characterised as “value problems” and, unlike purely technical problems, there does not yet exist “road maps” for managing these kinds of more intractable disputes.[6] When environmental disputes (or any disputes for that matter) rise to the level of public concern, they can be emotionally charged and push stakeholders toward rigid positions making it more difficult to negotiate.[7]

Historically, there were limited avenues to addressing environment disputes. Hal Wotton identified the two major historical methods of resolving these disputes: litigation and political action. History has shown that solely relying on these methods may come with disadvantages.

Comparatively, the often cited advantages of ADR include:

  • Flexibility to meet the needs of the parties;
  • Less adversarial, more informal;
  • More opportunity for parties to give their side of the story;
  • Quicker and less costly;
  • By fostering cooperation, there is greater opportunity to preserve relationships;
  • Confidential process;
  • More options available for resolution, and
  • Self-determined outcomes.

It was argued by Rosemary Lyster in 1998 that ADR in environmental law has two major limits. Lyster’s first concern relates to ADR acting as an obstacle to the positive outcomes of a values debate, such as statutory reform and generating important legal precedence. Without value conflicts, ADR is arguably an obstacle to the positive and democratically essential attributes of value conflicts.[8] Lyster’s second concern is whether it is appropriate that environmental law – one of the most important areas of public policy affecting fundamentally everyone – should be “negotiated amongst a few identifiable interested and affected parties”.[9] The private nature of ADR processes thereby trumps any potential to create precedents that may affect and potentially improve community welfare, as well as wider national interests and public policy.[10]

ADR processes have their limitations. For example, not all disputes are appropriate to mediate or a mediation may not entirely resolve all issues in dispute. Ahmed Dhiaulhaq, David Gritten, and Toon De Bruyn, note that mediation ‘is not a silver bullet and that mediation alone is not enough in dealing with the underlying causes of conflict, specifically not the structural inequalities’.[11] However, the examples given in this paper arguably demonstrate that the concerns of Lyster may not necessarily hold true, and that her overarching concern that ADR processes hinder statutory reforms may be unfounded. It is suggested in this paper that ADR has developed, or in some international jurisdictions is developing, as a credible and valuable approach to resolving disputes in the area of environmental law.

ADR can serve as an attractive substitute to the risks and cost of litigation and political action. ADR mechanisms such as mediation have now been used in environmental disputes for over two decades. ADR is commonly employed to resolve “site-specific” environmental disputes as well as in regulatory negotiations in formulating policy.[12] The practice of environmental ADR and consensus-building draws on theories, principles, and guidelines from different disciplines such as public administration, law, applied psychology, planning, industrial relations, public health, and communications. While mediation and facilitation are, at their best, rigorous and robust practices, they remain more an art than a science. Practice strategies tend to be tacit, reflexive, and improvisational.[13]

One answer to the dissatisfaction with conventional, non-ADR related environmental dispute resolution is to remove decision-making from the political sphere altogether. Transferring final decisions from government to the courts or quasi-judicial bodies frees environmental disputes from the wheels of bureaucracy.

Global Examples of ADR in Environmental Law

Despite the complexity and nature of environmental issues, there are numerous examples demonstrating the application of ADR processes. The embedding of ADR processes in international Conventions is one example of its global relevance. For example, Art 11(2) of the Vienna Convention for the Protection of the Ozone Layer in resolving a dispute concerning the interpretation or application of the Convention states, ‘If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party’.[14] This is a necessary step before parties to the dispute are able to submit the dispute to arbitration or the International Court of Justice according to Art 11(3) of the Convention.[15] Alternatively, consider the prescribed form of settling disputes contained in the 1979 Convention on Long-Range Transboundary Air Pollution that unlike the Vienna Convention for the Protection of the Ozone Layer, does not explicitly prescribe the use of ADR. Article 13 states that parties ‘shall seek a solution by negotiation or by any other method of dispute settlement acceptable to the parties to the dispute’.[16] However, the potential of using ADR methods, such as mediation, is still a relevant consideration within this Convention.

Paris Climate Change Agreement and Indaba

The Paris Climate Change Agreement (‘Paris Agreement’) in 2015 is a contemporary example of the application of ADR principles to resolving an environmental issue. The United Nations conference in Paris on climate change saw 195 nations participate in negotiating a framework to curb emissions and take common action on climate change.[17] The adoption of the Paris Climate Change Agreement by the participating nations was described by United Nations Secretary, Ban Ki-moon, as a ‘monumental triumph for people and our planet’.[18] Certainly, this was a significant moment, particularly as an agreement was reached in a highly diverse multi-stakeholder environment. Significantly, the Paris Agreement marked the end of over 20 years of negotiations by the international community on how to rein in global emissions after the adoption of the UN Framework Convention on Climate Change in 1992.[19]

However, the journey to reaching an agreement on climate change proved difficult in Paris. Media reports on the progress of the agreement highlighted the problems faced, including frustration and disagreement on the distribution of funding responsibilities between developed and developing nations, the ‘snail’s pace’ of the talks leading up to the Paris Conference, and disagreements on the wording of provisions in the agreement.[20]

In an effort to reach an agreement and break through the stalemate in the negotiations, the climate negotiators turned to Indaba as an alternative dispute resolution mechanism. Indaba is a traditional South African Zulu and Xhosa dispute resolution process, where a gathering of community leaders summoned by the chief to resolve important issues are made through a limited group of decision-makers, but is open to all so that all voices can be heard.[21]

Comparatively, in the Paris Climate Conference, Indaba provided a forum for all to have their say but only ministers with decision-making power and a single aide were at the table.[22] The effectiveness of the Indaba approach to the Paris Climate Change negotiations lies in Indaba’s key features: collaboration, inclusivity of voices, transparency, and option-driving.[23]

In Paris, Australia’s Foreign Minister at the time, Julie Bishop, was the representative and chair of the meetings of an umbrella group of developed nations, not in Europe.[24] In the Zulu model of Indaba, Bishop filled the role of the Chief at the table, speaking on behalf of the loose coalition of developed nations.[25]

During conference negotiations, large rooms were set up with square tables seating for around 80, with each country allocated a chair.[26] On one morning there were two concurrent Indaba meetings: one chaired by the French Foreign Minister, Laurent Fabius, to deal with complex issues such as climate funding, and another meeting chaired by the Peruvian Environment minister, Manuel Pulgar-Vidal to discuss less central issues at the conference.[27]

At the Paris Climate Change Conference, there was arguably a change in the approach to climate change politics. Robert Canwath stated that ‘a key to the success to the negotiations was the decision to not seek to impose absolute limits from above, which had arguably led to the relative failure in Copenhagen in 2009’.[28] The agreement in Paris took the approach of universal application and a bottom-up approach of nationally determined contributions rather than imposed targets.[29] Robert Falkner is in agreement with Canwath’s assessment, when stating that the ‘[Paris negotiators] would not have been such a success had the parties not aimed for a decentralised, bottom-up process of voluntary pledges…[which meant] major emitters that had previously blocked progress in the negotiations were now prepared openly to support the new agreement’.[30] Further, Faulkner notes that in the lead up to the Paris Agreement, the French President prepared the groundwork for a more inclusive approach to negotiations by involving a wide range of actors, including governments, business leaders, and NGOs, in the preparatory meetings for the conference.[31]

The Paris Climate Change Conference offers us an example of negotiators being mindful of the subjective realities of the various parties involved in the negotiations, with the process inclusive of all voices and interests. Arguably, although based within the political sphere of the international community, the Indaba process removed some level of the power disparities by being option-driven, inclusive and transparent.

Environmental Dispute Resolution in Indonesia

In the last several decades, recourse to the law to prevent, ameliorate or compensate environmental damage in Indonesia has stemmed from the rapid industrialisation and intensive exploitation of natural resources.[32] In one example, Indonesian plantation companies were fined more than $US220 million for burning large areas of land since 2009 and then have failed to pay the fine in full.[33] In 2018, the BBC reported that the Indonesian army was called in to help with clearing rivers and canals blocked by plastic rubbish.[34] The report described the concentration of plastic waste in a major tributary in Bandung, Indonesia’s third largest city, as ‘so thick that it looked like an iceberg’[35] and ‘[m]ost apocalyptic of all was the scene at a fishing village… The mud of the shoreline was completely hidden by a thick layer of plastic waste stretching over hundreds of metres’.[36]

If Indonesia is seeing a proliferation of environmental disputes, is there a role for ADR? Consider Article 30 of the Environmental Management Act 1997 which states, ‘environmental dispute settlement can be reached through the court or out of court based on the voluntary choice of the parties in the dispute’.[37] Thus, there is scope for ADR. ADR is not new to Indonesia having long been practiced in traditional communities.[38] For example, in the community of Pasemah in South Sumatera, customary dispute resolution uses Jurai Tue or Sungut Jurai as third party conciliators.[39] In other parts of Indonesia, a traditional form of mediation, comparable to the contemporary practice of modern mediation exists, albeit with some differences.[40] The process is based on compromise to restore social harmony, rather than declaring one party right or wrong.[41] However the mediator, or in this case the community leader, is not necessarily neutral in the dispute. Depending on their social position they may play a more directive or interventionist role than would be expected in Australia’s predominant model of facilitative mediation.[42]

David Nicholson has examined a number of case studies on mediation in environmental disputes in Indonesia. This paper considers two of these cases: the PT Palur Raya dispute and the Tapak River Dispute.

Palur Raya and the Ngringo community

It was first reported in 1992 that pollution from the Palur Raya (a food additive company) was having a severe impact on the environment and in the life of residents in the village of Ngringo.[43] Various methods were used to resolve the dispute, including negotiation, community organisation, mediation, and an independent investigation by party appointed experts.[44] This already starts to indicate the complexity and challenges faced in the dispute by the Ngringo community. Examining the dispute resolution processes, the various agreements made, and the implementation of those agreements, Nicholson concluded that ‘implementation failure has been a repetitive theme’, which suggested ‘the manipulation of mediation processes [by Palur Raya] was more to appease community opposition than to achieve a genuine position of compromise’.[45] Cooperation and the willingness to compromise is particularly important to move the conflict towards a resolution. In this case, cooperation from the Palur Raya was lacking.  Consequently the results, according to Nicholson, were ‘mixed’ and mediation needed ‘the presence of prospective administrative or judicial sanctions’ to provide an incentive to comply and add to the effectiveness of the dispute resolution process.[46]

Peter Adler suggests the practice of Joint Fact Finding (JFF) as another strategy to resolve or narrow factual disputes in environment issues. Adler identifies six critical characteristics in JFF:[47]

  • It involve multiple stakeholders who may have different views;
  • They are collaborative and require people to work together;
  • Process and meetings are structured and well designed with highly focused dialogue;
  • It is inquiry based and requires a robust exploration to understand the problem from all angles;
  • It is an interest-based study process and not forums for arguing political positions; and
  • It is integrative and multidisciplinary to bring different types of knowledge, information and data to the table.

Applying JFF to a dispute with scientific experts and evidence, the stakeholders and experts are ‘convened to work together to define key factual questions and disagreements’, design and carry out scientific inquiry, and analyse and interpret the data.[48] This strategy may have been useful to the Palur Raya dispute.  Nicholson identified that the there was a clear divide between the experts appointed by Palur Raya and the experts appointed by the community i.e. as is most often the case, the experts tended to find in favour of the party that appointed them to the independent team investigation.[49] Contract JFF that is intended as an ‘antidote’ to ‘advocacy science’ or ‘the selected use of science to support or oppose a controversial position or action’.[50]

Pollution of the Tapak River, Semarang

The Dukuh Tapak community had, for years, conveyed complaints to their village chief, the Sub-district Head, The Semarang district government officials, and the respective industries themselves about pollution of the Tapak.[51] Similar to the Palur Raya dispute, various methods were used in an attempt to bring a resolution to the dispute, including negotiation, community organisation, and mediation. Similarly to the Palur Raya dispute, Nicholson describes the outcome of the mediation as ‘partially successful’ with some environmental and community development undertaken and some compensation given to the Tapak community.[52] Nicholson again concluded, that the ‘subsequent failure to prevent ongoing pollution demonstrated the need for a more effective implementation mechanism and administrative support’.[53]

The outcomes of these two cases, and the ADR processes used, are seen as delivering mixed results to the parties. Nevertheless, the general benefits of ADR processes are not necessarily undermined for these types of disputes. Mas Achmad Santosa noted in 2003 that the ‘institutionalization of ADR [in Indonesia] to resolve contemporary/modern problems has been left behind compared to some Asian countries’.[54] The further development of ADR processes and disputes systems design in Indonesia – to match the right process and the right third party-neutral’s skills to the matter at hand – creates a significant opportunity to improve effectiveness of ADR in future environmental disputes.

Granting Legal Personality to a River

The creating and granting of legal personality to a natural object in the environment, such as a river, comes as a surprise to many. There have been three rivers that have been granted legal personality: the Whanganui River in New Zealand, and the Ganga and Yamuna River in India.[55] The Yamnotri and Gangotri glaciers in India have also been granted legal personality.[56] This legislative intervention is not in itself an ADR mechanism. However, the work leading up to the passing of legislation in New Zealand, is an example of the application of ADR principles and methods.

In New Zealand, there was a long, historical process that preceded the legislative mechanism that granted legal personality to the Whanganui River. Attorney-General of New Zealand, Christopher Finlayson, speaking in 2018 at the Australia Disputes Centre, explained the negotiation process with the Māori in New Zealand. Finlayson noted that ‘ADR offers a more expeditious and effective means of resolving many of the disputes’.[57] The historical grievances of the Māori, included dubious private and government land purchases, land confiscations, and destroying their commercial trade.[58] In relation to the Whanganui River, Finlayson highlighted how the Crown had, for example, allowed steamers to ply the river, resulting in the destruction of fishing pā, and allowed the extraction and sale of river gravel without properly engaging with or involving the iwi. However, the iwi stood their ground and fought for their rights.[59] In the third reading of the Te Awa Tupua (Whanganui River Claims Settlement) Bill in parliamentary debates, Finlayson stated,

The Whanganui negotiators have been unrelenting in the pursuit of this settlement…They reminded the Crown of its obligations and held it accountable for its action, and the result is a truly unique settlement. The framework for the river would not have been possible without the support of al iwi with interests in the Whanganui River catchment.[60]

The legislative mechanism and reform was a consequence of the long and complex negotiations between the Crown and Māori tribes of the Whanganui River. From this example Lyster’s concern about ADR mechanisms being an obstacle to statutory reform in ‘value debates’ does not easily hold.

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ) states, ‘[the Whanganui River] is a legal person and has all the rights powers, duties, and liabilities of a legal person’.[61] Indeed, this granting of legal personality creates new avenues and considerations for dispute resolution with matters now able to be brought in the name and interest of the Whanganui River. Section 18 of the Act, creates the office of Te Pou Tupua, which is to be the ‘human face’ of the Whanganui River and act in its name.[62] Further, Section 20 states that the composition of the Te Pou Tupua is two persons nominated under the Act, including one nominated by the Iwi (the indigenous community) with interests in the Whanganui River and one person nominated on behalf of the Crown.[63] Ian Macduff, commenting on this significant development in the law, highlights that the granting of legal personal to natural objects, such as river, brings challenges to the mediation process, especially around preparation and whose interests are relevant.[64] However, concrete legislative steps have been taken to answer those concerns. Macduff notes that, ‘the introduction of clear guardianship model, both reflecting the ‘partnership’ model of governance, involving Crown and Maori, and moving beyond what might be regarded as merely stewardship’.[65]


The breadth of environmental law and the diverse range of stakeholder interests adds challenge and complexity to resolving environment disputes. However, the increasing recognition of the flexibility in ADR process design, to meet the needs of the parties and the issues involved, is nevertheless creating more opportunity for stakeholders to reach durable solutions in these multiparty and complex disputes. Environmental lawyers will be staying alert to new developments and opportunities for ADR in what is one of the most interesting and relevant areas of law in our time.


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[1] This paper was first presented by Deborah Lockhart, CEO Australian Disputes Centre, to the NSW Young Lawyers Environmental Law Committee’s Intensive on 23 March 2019. Christian Santos is a Dispute Resolution Associate at ADC/ ACICA and is a PhD Candidate at Notre Dame University.

[2] ADR is an umbrella term for dispute resolution processes where an independent person, an ADR practitioner, helps to resolve the issues between the people in dispute. ADR mechanisms range along a continuum of self-determinative processes such as direct negotiation and mediation, to determinative processes, such as arbitration and expert determination. The acronym ‘ADR’ can also refer to Alternative, Assisted or Appropriate Dispute Resolution.

[3] Chief Justice Thomas Bathurst, ‘Off with the Wig: Issues That Arise For Advocates When Switching From The Courtroom To The Negotiating Table’ (Speech delivered at the Australian Disputes Centre, 30 March 2017), <>. 

[4] Dan Swecker, Applying Alternative Dispute Resolution to Environmental Problems, (July 2006) Mediate <>.

[5] Peter Adler, ‘Mediating Public Disputes’ (Paper presented at the International Conference on Environmental Law, Sydney, 14-18 June 1989), accessed at <>.

[6] Hal Wooten, ‘Environmental Disputation: The Common Law and the Environment’ (1993) 15 ADEL LR 33-77.

[7] Swecker, above n 1.

[8] Lyster, Rosemary, ‘Should We Mediate Environmental Conflict: A Justification for Negotiated Rulemaking’ [1998] SydLawRw 25; (1998) 20 (4) Sydney Law Review 579.

[9] Ibid.

[10] Boulle, L, “ADR Applications in Administrative Law” in Administrative L Reform (1993) at 141.

[11] Ahmed Dhiaulhaq, David Gritten, and Toon De Bruyn, ‘The Use and Effectiveness of Mediation in Forest and Land Conflict Transformation in Southeast Asia’ (2016) 45 Environmental Science & Policy 132, 141.

[12] See for example, Bingham, G and Haygood, L, “Environmental Dispute Resolution: The First Ten Years” (1986) 41 The Arbitration Journal at 3–14.

[13] Wooten, above n 4.

[14] Vienna Convention for the Protection of the Ozone Layer opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988) art 11(2).

[15] Vienna Convention for the Protection of the Ozone Layer opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988) art 11(3).

[16] Convention on Long-Range Transboundary Air Pollution opened for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983) art 13.

[17] ‘UN chief hails new climate change agreement as “monumental triumph”’, UN Sustainable Development Goals (12 December 2015) <>.

[18] Ibid.

[19] Robert Faulkner, ‘The Paris Agreement and the New Logic of International Climate Politics’ (2016) 92(5) International Affairs 1107, 1107.

[20] ‘Paris Climate Talks: Money Row Bogs Down Progress on International Agreement’, Australian Broadcasting Corporation News (3 December 2015) <> ; ‘Paris Climate Summit: Frustration Mounting at ‘Snail’s Pace’ of UN Climate Talks’, Australian Broadcasting Corporation News (5 September 2015) <>; Melissa Clarke, ‘Paris Climate Deal: The Word that Almost Brought Down a Global Agreement’, Australian Broadcasting Corporation News (13 December 2015) <>.

[21] Bate Felix, ‘Climate Talks Turn to South African Indaba Process to Unlock Deal’, Reuters (11 December 2015) <>.

[22] Ibid.

[23] ‘Making the deal in Paris’, Life Matters (ABC Radio National, 15 December 2015) <>.

[24] Sara Philips, ‘Paris Climate Deal: Historical Climate Change Agreement Reached at COP21’, Australian Broadcasting Corporation News (Web page, 13 December 2013) <>; Lenore Taylor, ‘French Negotiators Furiously Work the Backrooms to secure a Climate Deal’, The Guardian (Web page, 9 December 2015) <>.

[25] Sara Philips, ‘Paris Climate Deal: Historical Climate Change Agreement Reached at COP21’, Australian Broadcasting Corporation News (Web page, 13 December 2013) <>.

[26] Tom Arup, ‘Paris Climate Conference 2015: Negotiations Turn to Zulu-Style Meetings’, The Sydney Morning Herald (News Article, 11 December 2015) <>.

[27] Ibid.

[28] Robert Carnwath, ‘Climate Change Adjudication after Paris: A Reflection’ (2016) 28(1) Journal of Environmental Law 5.

[29] Ibid.

[30] Faulkner, above n 20, 1114.

[31] Ibid.

[32] David Nicholson, Environmental Dispute Resolution in Indonesia (Brill, 2009) 49.

[33] Stephen Wright and Niniek Karmini, ‘Indonesia’s Pulp and Palm Oil Polluters ‘Owe Millions’ in Fines’, The Sydney Morning Herald (online, 17 February 2019) <>.

[34] David Shukman, ‘Giant Plastic ‘berg blocks Indonesian River’, BBC (19 April 2018) <>.

[35] Ibid.

[36] Ibid.

[37] Environmental Management Act 1997 (No. 23 of 1997) (Indonesia) art 30.

[38] Mas Achmad Santosa, ‘Development of Alternative Dispute Resolution (ADR) in Indonesia’, ASEAN Law Association (Web Page, 1 December 2003) <>.

[39] Ibid.

[40] Nicholson, above n 30, 151.

[41] Ibid, 152.

[42] Ibid.

[43] Ibid, 191-192.

[44] Ibid, 192-209.

[45] Ibid, 214.

[46] Ibid, 210 & 214.

[47] Peter Adler, Todd Bryan, Matthew Mulica and Julie Shapiro ‘Humble Inquiry: The Practice of Joint Fact Finding as a Strategy for bringing Science, Policy and the Public Together’ (Paper presented at Joint Fact Finding Conference, 15 February 2011) <>.

[48] Ibid.

[49] Nicholson, above n 30, 199-205.

[50] Adler et al, above n 48.

[51] Ibid, 158.

[52] Ibid, 160.

[53] Ibid, 161.

[54] Santosa, above n 36.

[55] Erin O’Donnell and Julia Talbot-Jones, ‘Three Rivers are now legally people – but that’s just the start of looking after them’, The Conversation (Web Page, 24 March 2017) <>.

[56]  Dhruv Shekhar, ‘Mediation for Environmental Disputes in India’, Kluwer Mediation Blog (Blog Post, 23 August 2017) <>.

[57] Christopher Finlayson, ‘Negotiating Historical Settlements with Indigenous People – the New Zealand Experience’ (Paper presented at the Australian Disputes Centre Symposium, Sydney, 10 August 2018) <>.

[58] Ibid.

[59] New Zealand, Parliamentary Debates, House of Representatives, 14 March 2017, 16650 (Christopher Finlayson, Minister for Treaty of Waitangi Negotiations).

[60] Ibid, 16649-16650.

[61] Te Awa Tupua (Whanganui River Claims Settlement Act 2017 (NZ) s 14.

[62] Ibid s 18.

[63] Ibid s 20.

[64] Ian Macduff, ‘What would you do with…a river at the table?’, Kluwer Mediation Blog (Blog Post, 26 April 2017) <>.

[65] Ibid.