The duty of care: an ethical basis for sustainable natural resource management in farming?

Abstract

Other chapters in this book have highlighted that the concept of a social licence invokes responsibilities to the community and the environment that go beyond readily specified property rights, and clearly specified legal obligations. One of the mechanisms that has evolved in an attempt to realign legal interest with social expectations of moral 'rightness' is to convert these expectations into a legal duty of care. This chapter explores the concepts that underpin this novel approach to bridging the gap between largely undefined social responsibilities and more specific legal obligations. Duty of care has been incorporated into a number of natural resource statutes in the belief that it will provide an effective tool for promoting farmers' sustainable use of natural resources, while at the same time providing greater certainty of legal obligations with less 'red tape' cost to primary producers. This broad ambition of the farming sector is linked to meeting social licence and formal legal requirements, but what is concealed are different expectations about what is meant by duty of care and what it might achieve. The expectations range from legally requiring virtuous behaviour by farmers (achievement of which may deserve to be rewarded, perhaps by improved access to resources) to expectations of minimal legal accountability (non-achievement of which may justify punishment, perhaps by denial of access). These different expectations will be explored in this chapter, beginning with a discussion of the nature of environmental responsibility in relation to farmers. We will consider how the changing nature of that responsibility is at the heart of the emergence of statutory duty of care in natural resource regulations. There is a fundamental question of whether a statutory duty of care is intended to legally enforce a minimum level of performance, or require virtuous behaviour that takes into account wider expectations about public responsibility. Both conceptualisations are argued in advocacy of a farmer's legal duty of care for the environment.