Findings Solutions for Environmental Conflicts: Power and Negotiation


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Keywords: Litigation, alternative dispute resolution (ADR), negotiation, knowledge power, collaborative problem-solving

Alternative dispute resolution (ADR) and negotiation are well-accepted dispute resolution methods.1 Edward Christies important new book, Finding Solutions for Environmental Conflicts: Power and Negotiation, explores the distinction between dispute resolution processes, namely ADR and litigation, in resolving environmental conflicts. Christie presents a limited view of litigation. He argues that in a legal dispute, the legal question is adjudicated and the question of law is settled when a judicial decision is imposed. Yet, the conflict underlying the dispute may still be outstanding. Christie posits an alternative, no surprise given the title of the book. He states: '[i]n contrast to litigation, ADR enables a solution for the immediate conflict to be negotiated - and may also incorporate outcomes for potential environmental problems should they emerge at some future date.'2 In other words, ADR offers prospective-oriented solutions that may resolve not only the immediate environmental dispute but also future problems, while offering a process that is inclusive of affected stakeholders' interests, such as the local community.

Christie explores the litigation and ADR dichotomy by way of the concept of 'knowledge power'. Knowledge power is implicitly defined: it refers to knowledge of legal rights, scientific data and information relating to the environmental conflict.3 In the ADR literature, the concept of power is often understood as a key aspect to the resolution of conflicts; parties to a negotiation must be provided with an opportunity to share power and engage in effective participation in order to achieve a consensual negotiated outcome to the environmental conflict. Christie extends the notion of power to include knowledge power. It is this concept of knowledge power that forms the common theme throughout Finding Solutions for Environmental Conflicts.

Christie is a former agricultural scientist and is now a barrister, specialising in environmental disputes in Australia. He approaches the issue of finding solutions to environmental conflicts from a cross-disciplinary standpoint. He combines science and law into a problem-solving method that is based on ADR principles to ensure that the scope of the book presents a cross-disciplinary viewpoint where neither wholly legal nor wholly scientific perspectives dominate. As a result, Christies book is directed at a diverse audience, including the 'lawyer, scientist, engineer, planner ...',4 as well as indig-enous peoples who can bring 'traditional indigenous knowledge'5 to the negotiating table. Moreover, given that the book is written in highly accessible language, it is possible that a layperson such as a member of a local community group might consider consulting this book when creating a strategy to engage effectively in an environmental conflict.

Finding Solutions for Environmental Conflicts is well structured into three main aspects. The legal and scientific framework that underlies the knowledge of power concept is set out in Chapters 1 to 4. The presentation of environmental problems is canvassed in Chapters 5 to 9. Thirdly, the presentation of a collaborative problem-solving model of dispute resolution is discussed in Chapter 10.

Chapter 1 is a good primer on the resolution of environmental conflicts with a focus on the interplay between law and science as well as the concept of power in resolving conflicts.

The legal and scientific framework sketched by Christie, in Chapter 2, begins with a typology of the various sources of conflict (specifically information, values, interests and structural and relationship conflicts) that can fuel an environ mental conflict. Throughout the remainder of the chapter, he concentrates on information conflicts. The concept of an information conflict is further subdivided into five categories: (a) questions of law, (b) international treaties and conventions, (c) facts (scientific and lay evidence), (d) policy, and (e) values. He provides a legal interpretation of each of the five categories from the three jurisdictions of Australia, the United Kingdom and the United States. In this chapter he introduces the concept of knowledge power, and ties it to scientific information and, more particularly, the problem of resolving a conflict when the scientific information is either misunderstood or missing. He presents information conflicts as a barrier to conflict resolution. The lack of information demands that the dispute resolution process includes a procedure for the disputants to become engaged in evaluating the scientific data and the potential environmental impacts. ADR is viewed as the appropriate dispute resolution process. An ADR process can be designed to disclose the information to the parties in a procedurally fair manner, which may have the effect of de-escalating the conflict. The author's focus on informational conflicts suggests that perhaps Christie views this type of conflict as the primary barrier to resolving environ mental conflicts.

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