EU ENVIRONMENTAL POLICY AND LAW

NELA Who we are and what we do

National Environmental Law Review 2011: 3

The National Environmental Law Association of Australia was established in 1982, following the success of the first Environmental Law Conference in Sydney in 1981 and incorporated in 1989. Since the settling of our constitution in 1987, NELA’s primary objective has been to promote the understanding of the role of environmental law in regulating and managing the conservation and usage of the environment. The NELA Secretariat may be contacted as follows:

PO BOX 241, Deakin West Canberra ACT 2600, Australia Phone: 02 6286 7515, Fax: 02 6290 1580 Email: [email protected]

The NELA National ExecutiveIs made up of elected representatives from every state and territory including office bearers, Committee members and some ex officio members. The elected members are the President, two Vice-Presidents and a Treasurer. The immediate Past-President and editor of National Environmental Law Review (NELR) are auto-matically members by reason of their position. The current National Executive includes:

Publication details: The National Environmental Law Review ISSN 1447 – 7300 (formerly the Australian Environmental Law News) is the official journal of the National Environmental Law Association (NELA) of Australia. It is published in four issues each year.

Cover photo: ‘Beneath a Forest Giant’ copyright Stephen Corey, Creaking Door Photography.

PRESIDENTKathryn Barras (WA)[email protected] PRESIDENTRobyn Glindemann (WA) [email protected] Cornwall (Vic) [email protected] Kelson (Qld) [email protected] [email protected] Mcilrath (Vic)[email protected] EDITORHanna Jaireth (ACT) [email protected]

Greg Rose (Director- co-opted)[email protected] Ariane Wilkinson (Qld) [email protected] Mellor (SA) [email protected] Johnson (NSW) [email protected] Baxter (TAS) [email protected] Cornwall (VIC) [email protected] Waddell (NSW)[email protected] Haydon (ELRANZ co-opted) [email protected]

LAYOUT Tessa Kelman (ACT) [email protected]

COMMITTEE MEMBERS

NELR contents


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NELR recent developments International by Kathryn Walker Federal by Dr Nicola Durrant and Shol Blustein Australian Capital Territory by Kirsten Miller New South Wales by Dr Nicholas Brunton and Janet McKelvey Queensland by Dr Justine Bell Tasmania by Jess Feehely and Tom Baxter Victoria by Barnaby McIlrath Western Australia by Joe Freeman and Ainsley Reid

NELR casenotes New South Wales Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 by Harshane Kahagalle and Ashleigh Egan Minister for Planning again thwarted: Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106 by Dr Nicholas Brunton Pittwater Council v. Minister for Planning [2011] NSWLEC 162 by Dr Nicholas Brunton Blue Mountains Conservation Society v Delta Electricity by Elaine Johnson South Australia by Nicole Harris Davies v Minister for Urban Development and Planning and Anor [2011] SASC 87

Victoria by Barnaby McIlrath Reachy Pty Ltd v Greater Geelong CC [2011] VCAT 1202 (27 June 2011) Community Villages Australia Pty Ltd v Mornington Peninsula SC [2011] VCAT 1667 (31 August 2011)

NELR articles Heavier penalties for forestry offences needed by Natasha Hammond-Deakin and Evan B Brandes New economic incentives for the protection of carbon-rich state forests by Mike Thompson European Union environmental law and policy by Nijaz Deleut Kemo Greening the economy with WTO rules? by Hanna Jaireth NELR Comments and reviews Letter to the Editor from Ms Jemma Denny, in response to A Thomas, ‘Biobanking: Conservation or Degradation?’ 2011(2) NELR 54–62. Book Review: B Verschuuren, R Wild, JA MacNeely and G Oviedo (eds) Sacred Natural Sites (Earthscan, 2010) by Emeritus Professor Ken Taylor Information for contributors Publication schedule and NELR editors

NELR recent developments


Emissions permit trades

Poland is set to exchange its surplus emission permits with Japan for the country’s energy storage technologies. There was speculation that Japan’s long standing purchase of Poland’s Assigned Amount Units (AAUs) was about to change as the AAUs trade formula changed. This appears not to be the case as the countries entered into a preliminary agreement which would see Poland’s AAUs used to support Japanese technologies such as the production and storage of hydrogen through a process which produces only steam when the hydrogen is burnt: www.climatespectator.com.au.

Climate Investment Forum

The Climate Investment Funds Partnership Forum took place in Capetown, South Africa, 24 – 25 June 2011. Approximately 450 participants attended, including representatives from government, non-government and inter-governmental organisations. The aim of the Forum was to share experiences of how the CIF is working, exchange lessons about what is most effective and discuss how the CIF can be expanded or improved, share on the ground achievements, challenges and knowledge and help other CIF stakeholders apply lessons learned. CIF programs and projects are funded in 45 pilot countries. South Africa is one of the first benefiting from the CIF: www.climateinvestmentfunds.org.

Airlines use biofuels

Thomson Airways is set to become Britain’s first airline to use bio fuel in its aircraft, initially for a flight from Birmingham to Palma. Later, the viability of biofuels for flights will be assessed in weekly flights to Spain, initially over a 12 month period. The proposal is for flights to operate on a 50/50 blend of jet A1 fuel and hyper-processed esters and fatty acids HEFA.L fuel. The announcement comes on the back of Dutch airline KLM operating the first bio kerosene powered flight from Amsterdam to Paris in July 2011. KLM plans to launch a scheduled bio kerosene fuel services between Holland and France in later this year.

European airline bio fuel producers and the EU commission have agreed to produce two million tonnes

Bonn climate change conference

Little advancement was made at the 6–16 June 2011 United Nations Climate Change Conference in Bonn, Germany, except in relation to extending carbon-trading mechanisms, climate fund management and slowing deforestation. There was also a commitment from the delegates of the 183 countries represented to increase technology mechanisms to boost global green technology sharing. Su Wei, China’s chief negotiator, noted that despite set-backs and reversals, parties were taking climate change seriously and were willing to progress negotiations under the Bali Roadmap. A number of major disagreements from previous conferences remained unresolved however: www.iisd.ca/climate.

No more nuclear power for Germany

As a result of the Fukushima nuclear meltdown on 28 June 2011, Angela Merkel’s ruling conservative coalition in Germany reversed its highly controversial law extending the lifetime of the country’s nuclear reactors. Several aging reactors were shut down and there is now a plan to revert to 2022 as the final year that nuclear power is generated in Germany – the deadline established in 2001 by the social democratic green coalition. The nuclear extension laws had prompted large nuclear demonstrations, constitutional litigation and controversial debates within the ruling conservative coalition. The turnaround is seen as a positive step towards the end of nuclear energy in Germany and towards more renewable forms of energy: www.climatespectator.com.au.

Poland rejects higher EU CO2 reduction target

Poland is reported to have blocked an attempt by European Union environment Ministers to strengthen EU action by refusing to endorse a declaration that EU domestic emissions reduction targets should be 40% by 2030, 60% by 2040 and 80% by 2050, compared to 1990 levels, with the 25% reduction by 2020 to be line with a cost effective pathway. Poland’s objection was that the 25% reduction looked more like a target, and that the economic situation of Europe’s poorer states was poorly understood. Environmentalists are concerned about Poland’s approach given that it has now taken over the rotating EU presidency: http://uk.reuters.com.

INTERNATIONAL by Kathryn Walker


National Environmental Law Review 2011: 3 3

New Congo laws for environmental impact studies

Companies practicing in the Democratic Republic of Congo will soon have to comply with environmental impact reports in response to legislation applying to oil, mining, infrastructure, forestry, farming and other sectors. Previously many companies did not carry out environmental impact studies or were less stringent than required. Many of the current environmental problems have resulted from mining companies who have only had to do impact studies for the Mines Ministry. Under the new laws, studies must conform to wider environmental criteria. Reports suggest that the Congo supplies about 5% of the world’s tin and is amongst four Central African countries that produce 12.5% to 14% of the tantalum used in high-tech products. Once the new laws are in operation, companies will be expected to carry out environmental impact studies immediately. Existing environmental impact studies for ongoing projects will be granted a two year moratorium to ensure that their reports are in line with the new regulations. Despite this positive move, the impact of the laws is questionable as many of the mining practices in the country are in conflict zones and are not run under government regulation. An AUN report last year noted that nearly all mine sites in the east were either under the control of rebels or Congolese armed forces: www.legalbrief.co.za.

IUCN Oceania Regional Conservation Forum

The Oceania Regional Conservation Forum held at the University of Queensland, 23–25 August 2011provided an opportunity for IUCN members, secretariat staff and commission volunteers to comment on the draft IUCN Programme of Work 2013–16, the business model for mobilising resources, and possible resolutions for the 2012 World Conservation Congress to be held in Jeju, South Korea. More information is available via http://www.iucn.org.

of bio fuel for aviation by 2020: www.businessgreen.com.

Towards the end of gasoline?

General Motors Corp announced on 5 July 2011 that it plans to develop a natural gas powered engine. It is the first step towards a significant move by car manufactures in the United States to ensure their fleets can run on cleaner fuels: www.nytimes.com.

Vienna Energy Forum

More than 1200 participants from 110 countries attended the Vienna Energy Forum 2011 in Vienna, Austria, 21–23 June 2011. The forum explored 21st century energy access and affordability issues, including poverty, climate change, health and income. It also discussed how to prioritise the energy access agenda, as well as energy efficiency, green industry and reducing global energy intensity. The forum took place at the same time as a Ministerial meeting on energy and green industry: http://www.iisd.ca/ymb/energy/vef/2011/html/ymbvol93num11e.html.

World Bank develops tool to help poor farmers

The World Bank and JP Morgan Chase and Co have launched an agricultural price risk management facility aimed at improving global food security and reducing commodity price volatility. The package makes available up to $US4b to help farmers in developing countries to hedge the sales of their products in cases where prices rise and fall sharply. Currently, the product is tailored at larger food suppliers but it is hoped that small farmers will be able to work through intermediaries to access the funding: www.worldbank.org/ida.



§ better regulation of international trade in wildlife by streamlining permits

§ more transparent information about environmental assessments, including the publication of the Environment Department’s recommendation reports

§ better processes for heritage listing through a more transparent listing processes based on a single assessment list

§ development of an environmental offsets policy to better explain to proponents and the community how offsets are assessed and what would be acceptable under specific proposals

§ public consultation on an options paper about the possible introduction of cost recovery for specified activities under the Act to ensure adequate resourcing for the administration of the Act.3

The Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) has invited expressions of interest for the establishment of the National Centre for Cooperation on Environment and Development by 1 November 2011.4

EPBC Act reform consultations: biodiversity and offsets

On 24 August 2011, DSEWPaC released for comment the Consultation draft: Australian Government Biodiversity Policy – A healthy natural environment, now and always.5 It complements Australia’s Biodiversity Conservation Strategy 2010–2030.

DSEWPaC also released the Consultation draft: EPBC Act Environmental Offsets Policy and an Environmental Offset Assessment Guide for public comment.6 This outlines when offsets can be required, how they are determined and the framework under which they

3 http://www.environment.gov.au/Minister/burke/2011/mr20110824.html 4 http://www.environment.gov.au/epbc/publications/epbc-reform-cnced.html5 http://www.environment.gov.au/epbc/publications/pubs/consultation-draft-biodiversity-policy.pdf6 http://www.environment.gov.au/epbc/publications/pubs/consultation-draft-environmental-offsets-policy.pd

EPBC Act reform: Australian Government’s response

On 24 August 2011, the Australian Government Response to the Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 was released.1 This follows the October 2009 report by Dr Allan Hawke AC for the Federal Government that set out a comprehensive review of the Act.2 The reforms set out in the Government’s response include:

§ a more proactive approach to protecting Australia’s environment through strategic assessments and regional environmental plans

§ identifying and protecting ecosystems of national significance through regional environment plans, strategic assessments or conservation agreements, to protect the most significant and healthy ecosystems before they are threatened or degraded

§ a more cooperative approach to developing environmental standards by establishing a new National Centre for Cooperation on Environment and Development, bringing together industry, scientists, non-government organisations and governments to work together on environmental standards, guidelines and procedures

§ a more streamlined assessment process to cut red tape for business and improve timeframes for decision making, including an option for decisions on proposals within 35 business days, if all required information is provided

§ new national standards for accrediting environmental impact assessments and approvals to better align Commonwealth and state systems

§ a new biodiversity policy (for consultation) to further protect ecosystems across the continent and guide future biodiversity planning and programs (see below)

§ a single national list of threatened species and ecological communities to reduce inconsistencies amongst jurisdictions

1 http://www.environment.gov.au/epbc/publications/pubs/epbc-review-govt-response.pdf. 2 http://www.environment.gov.au/epbc/review/publications/pubs/final-report.pdf.

FEDERAL Dr Nicola Durrant and Shol Blustein



Clean Energy Agreement for implementing a carbon price was released. It included an agreed package of measures that the Committee considered would enable Australia to meet its emissions reduction targets in an environmentally and economically efficient way. A copy of the agreement can be found on the website of the Department of Climate Change and Energy Efficiency.10

Clean energy plan

In July 2011, the Government released its Securing a Clean Energy Future Plan11 and exposure draft legislation.12 Following a brief consultation period, 18 bills were introduced into the House of Representatives in September. These bills have now been passed by both houses.13 The objectives of the package include:

§ to give effect to Australia’s obligations under the United Nations Framework Convention on Climate Change (UNFCCC) and Kyoto Protocol

§ to support the development of an effective global response to climate change

§ to take action towards meeting Australia’s long-term target of reducing Australia’s greenhouse gas emissions to below 80% below 2000 levels by 2020

§ putting a price on greenhouse gas emissions in order to encourage investment in clean energy and reduce pollution.

The Clean Energy Plan incorporates a range of mechanisms and initiatives to achieve these objectives. Chief amongst these are:§ the introduction of a carbon price

§ an increase in the fuel tax for most fuel users to an amount that is equivalent to the carbon price. This will not apply to residential fuel users and fuel use associated with agriculture, forestry and fisheries

§ promoting renewable energy through the Clean Energy Finance Corporation (which will receive

10 http://www.climatechange.gov.au/government/initiatives/multi-party-committee.aspx11 http://www.pm.gov.au/press-office/securing-clean-engergy-future-australia and http://www.cleanenergyfuture.gov.au/clean-energy-future/securing-a-clean-energy-future/12 http://www.climatechange.gov.au/Minister/greg-combet/2011/media-releases/July/mr20110728.aspx13 http://www.climatechange.gov.au/Minister/greg-combet/2011/media-releases/September/mr20110913A.aspx

operate.

Submissions were invited on both documents until 21 October 2011.

EPBC Act: bioregional planning amendments

The Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011 (Cth) was debated in the Senate on 16 and 26 June 2011. The Senate Environment and Communications Legislation Committee tabled its final report on 26 June 2011.7 The Bill proposes to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to provide that bioregional plans are disallowable instruments subject to the Legislative Instruments Act 2003 (Cth).

Draft north and north-west marine plans released

In August 2011, the Government released draft marine bioregional plans and proposed marine reserves networks aimed at protecting Australia’s north and north-west marine environment. Environment Minister the Hon Tony Burke MP outlined the draft north and north-west bioregional plans and proposed Marine Reserves Networks that will be open for community feedback before the plans and proposals are finalised.8

Independent’s proposed EPBC Act amendments

On 12 September 2011, Parliamentary Independent Tony Windsor MP introduced the Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and Water Resources) Bill 2011 (Cth) into the House of Representatives. The Bill would insert new Subdivision FB (Protection of water resources from mining operations) into Division 1 (Requirements relating to matters of national environmental significance) under Part 3 (Requirements for environmental approvals).9

Clean Energy Agreement

In July 2011 the Multi-Party Climate Change Committee’s

7 http://www.aph.gov.au/senate/committee/ec_ctte/bioregional_plans/report/report.pdf8 http://www.environment.gov.au/Minister/burke/2011/mr20110823.html9 http://www.aph.gov.au/index.htm



the cost of the scheme. Chief among these are:

§ the $9.2b Jobs and Competitiveness Program, which is designed to provide assistance to emissions-intensive, trade-exposed industries, as per the exposure draft Clean Energy Regulations 201114

§ the $5.5b Energy Security Fund is designed to provide assistance to highly emissions-intensive coal-fired generators in the form of free carbon units, cash payments or, in particular circumstances, cash incentives to close around 2000 megawatts of very highly emissions-intensive coal-fired generation capacity by 2020: exposure draft Clean Energy Regulations 201115

§ the $1.3b Coal Sector Jobs Package of assistance over six years to the most emissions-intensive coal mines

§ the $300m Steel Transformation Plan providing assistance over five years to encourage investment and innovation in the Australian steel manufacturing industry to reduce the exposure of this sector to the carbon pricing mechanism

§ an $8b tax reform package, including $7b of tax cuts to shield low-to-middle income earners from the increase in the cost of living caused by the carbon pricing mechanism.

Climate change adaptation inquiry

The Productivity Commission is inquiring into the regulatory and policy settings that would enable effective climate change adaptation and it will examine the costs and benefits of options to remove barriers to adaptation.16 The Productivity Commission will hold public hearings and release a draft report for public comment before delivering a final report to Government by September 2012.17

Coastal assets and climate change

14 http://www.climatechange.gov.au/Minister/greg-combet/2011/media-releases/September/mr20110921.aspx. 15 http://www.climatechange.gov.au/Minister/greg-combet/2011/media-releases/September/mr20110921.aspx. 16 http://www.climatechange.gov.au/~/media/Files/Minister/combet/2011/media/september/mr20110920.pdf. 17 http://www.climatechange.gov.au/en/Minister/greg-combet/2011/media-releases/September/mr20110920.aspx.

$10b in Government funding) and the Australian Renewable Energy Agency (see below)

§ encouraging energy efficiency

§ creating opportunities to cut pollution in the land sector.

Of these measures, the introduction of a carbon price is arguably of greatest importance. The carbon pricing mechanism, which will be administered by the newly created Clean Energy Regulator, will be based on the allocation and surrender of permits, with each permit representing one tonne of greenhouse gas emissions. Liable businesses will either purchase, or be allocated, permits, which they will be required to surrender to fulfil their emissions obligations.

The carbon price will be introduced in two stages, and will apply across a range of sectors, including mining, electricity generation, stationary energy, non-legacy waste and industrial processes. The first stage, 1 July 2012–30 June 2015, will require affected businesses to purchase a fixed price permit and surrender it for each tonne of CO2 equivalence that they emit directly through their operations. There will be an unlimited number of these permits available during this initial stage of the scheme. The fixed price will commence at $23 in 2012–13, and then increase to $24.15 in 2013–14, and to $25.40 in 2014–15. No international units will be able to be used to meet an entity’s liability during this period, but 5% of an entity’s liability will be able to be met using credits created under the Carbon Farming Initiative (or 50% if the liable entity carries on a land fill business (see below).

From 1 July 2015, the carbon pricing mechanism will transition into an emissions trading scheme. During this period, the market will set the price of permits in response to the pollution caps imposed by Government (which will act on the advice of the Climate Change Authority). During this period, a liable entity will be able to meet up to 50% of its liability by surrendering compliant international carbon permits. In addition, the restriction on the use of credits generated under the Carbon Farming Initiative will be removed.

Because the carbon pricing mechanism is designed to impose additional costs on producers and consumers of emissions-intensive goods and services, a number of transitional measures have been proposed to minimise



to March 2011 were 0.6% lower than the previous 12 months, reflecting in particular a decrease in black coal generation and an increase in generation from natural gas and hydroelectricity sources.24 Trend emissions for the March quarter, which account for seasonal factors, rose 0.5%, mainly as a result of electricity generation fuel switching back from hydro electricity to black coal – a reversal of the previous quarter’s temporary trend.25

Report on energy efficiency opportunities

The Energy Efficiency Opportunities (EEO) Program 2010 report released in June 2011 considers the results of the EEO program from 2006–2010 based on public reports of assessments undertaken by EEO participants. The EEO legislation requires corporations that use more than 0.5 petajoules (PJ) of energy per year to undertake assessments of their energy use to identify cost effective energy efficiency opportunities. According to the report,26 participants identified opportunities to save 141.9 PJ of energy per year (9.8% of their assessed energy use) or 2.5% of Australia’s total energy use. The report notes that this is an increase of 25% on the energy savings identified by December 2009.

Passage of the carbon farming initiative

The Carbon Credits (Carbon Farming Initiative) Act 2011 received royal assert on 15 September 2011. The bill was passed by Parliament on 23 August 2011 with 19 amendments, including:

§ a deeming provision that states that registered native title holders hold an eligible interest in the native title land

§ amendment to the matters for consideration by the Minister in recommending projects to be added to the negative list. The test is now whether there is a material risk, rather than a significant risk, of material adverse impacts. The Minister must now also consider the effect on land access for agricultural production.

In July 2011, a consultation paper was released on the

24 http://www.climatechange.gov.au/~/media/publications/greenhouse-acctg/national-greenhouse-inventory-march2011.pdf; 3. 25 Ibid.26 http://www.ret.gov.au/ENERGY/EFFICIENCY/EEO/Pages/default.aspx

The Climate Change Risks to Coastal Buildings and Infrastructure report released on 5 June 2011 identifies more than $226b of assets in coastal areas that are potentially at risk from climate change. This includes commercial and light industrial infrastructure and road and rail systems, based on a high-end scenario of a sea level rise of 1.1 metres by 2100.18

In June and July 2011 research grants were announced under the National Climate Change Adaptation Research Grants program (NCCARF),19 the Coastal Adaptation Decisions Pathways program,20 and other projects to be managed by the National Climate Change Adaptation Research Facility.21

Release of climate change fact sheets

The federal government has released a series of fact sheets to illustrate that Australia is not acting alone or ahead of other countries in acting on climate change. Australia is one of the world’s top 20 polluters and releases more pollution per person than any other country in the developed world.22 The Government also released a series of fact sheets emphasising the impacts of climate change in Australia and the environmental and economic costs from climate change impacts, including on coastal communities, natural environments, water security, human health, and agriculture. Fact sheets for each of the states and territories were also released.23

Quarterly update: national greenhouse gas emissions

In August 2011, the Government released Australia’s national greenhouse gas emissions for the March quarter 2011. The update does not include emissions from the land use, land use change and forestry (LULUCF) activities under article 3.3 of the Kyoto Protocol.

According to the report, emissions for the 12 months

18 http://www.climatechange.gov.au/publications/coastline/climate-change-risks-to-coastal.aspx.19 http://www.climatechange.gov.au/Minister/greg-combet/2011/media-releases/June/mr20110618.aspx20 http://www.climatechange.gov.au/government/initiatives/australias-coasts-and-climate-change/adapting/coastal-adaptation-decision-pathways/projects.aspx.21 http://www.climatechange.gov.au/Minister/greg-combet/2011/media-releases/July/mr20110706.aspx.22 http://www.climatechange.gov.au/government/international/global-action-facts-and-fiction.aspx.23 http://www.climatechange.gov.au/climate-change/impacts/national-impacts.aspx.



energy minimum standards). Australian Governments have worked cooperatively to develop the draft Greenhouse and Energy Minimum Standards Bill 2011 (GEMS Bill) as part of coordinated national energy efficiency action.

An industry consultation paper was released28 and the GEMS Bill is to be introduced into Parliament before the end of 2011, for commencement in mid-2012. Written submissions regarding the draft Bill were invited until 18 August 2011.

Australia’s existing Equipment Energy Efficiency (E3) program places standards and labelling requirements on a range of appliances and equipment types. The objectives of the new legislation include streamlining administrative and compliance arrangements, improving national consistency, and allowing for the coverage of a wider range of products and equipment types.

Some of the main changes being proposed to the E3 program include:

§ a national regulator will take responsibility for all registration, compliance and enforcement activity

§ GEMS legislation will facilitate the expansion of the program into new product areas

§ a broader definition of sale and supply

§ new obligations surrounding commercial use of regulated products (where there has been no supply in Australia)

§ a requirement for corporate registrants to provide annual data on sales and imports

§ new enforcement measures (e.g. infringement notices, suspensions, injunctions, civil penalties, publication of contraventions)

§ a statutory notice period for industry upon the introduction of new or revised requirements

§ a two-year grandfathering period for products manufactured or imported prior to the commencement of a new or revised requirement.29

28 http://www.climatechange.gov.au/government/submissions/~/media/submissions/gems/industry-exposure-draft-of-bill-consultation-paper-pdf.pdf29 Consultation Paper, ibid, page 5.

proposed approach to developing the positive and negative lists under the Carbon Farming Initiative, and in August draft regulations for giving effect to the positive and negative lists in the Carbon Credits (Carbon Farming Initiative) Regulations 2011 (Cth) were released.27 Commentary on the exposure draft regulations was also released. Public consultation on the draft regulations closed on 16 September 2011.

Consultation on mandatory disclosure of residential energy efficiency

As part of the National Strategy on Energy Efficiency (measure: 3.3.2), the Council of Australian Governments agreed in July 2009 to phase-in mandatory disclosure of residential building energy, greenhouse and water performance at the time of sale or lease, commencing with energy efficiency. A Consultation Regulation Impact Statement (RIS) has been released for comment. This considers six options:

§ full thermal performance simulation based on detailed building information

§ simplified thermal assessment

§ online self-assessment

§ check list assessment – with disclosure of simple rating at point of advertisement

§ voluntary uptake and

§ mandatory rating with an opt-out feature (with homes rated at zero where opt-out is taken).

Comment was sought on the Consultation RIS particularly in relation to the regulatory options proposed; the assumptions; and the estimates of costs and benefits. Public consultation was open until 12 September 2011.

Consultation on mandatory appliance energy performance standards and reporting

In July 2009, the Council of Australian Governments signed the National Partnership Agreement on Energy Efficiency and released the National Strategy on Energy Efficiency. Measure 2.2.2 of the NSEE is to develop, subject to a regulatory impact analysis, national legislation for appliance energy performance standards and energy labelling (and over time, greenhouse and 27 http://www.climatechange.gov.au/en/government/submissions/draft-regulations-positive-negative-lists-for-cfi.aspx.



Emerging Renewables program to applications from emerging renewable energy technology projects such as geothermal, solar and ocean. The Emerging Renewables program aims to reduce the cost of new technologies, improve skills across the renewable energy industry and leverage finance from the private sector as well as state and territory governments.32 Total program funding is $126m. The program will be administered by ARENA once the agency has been established.

Solar schools

On 1 August 2011, the Government announced $25m in grants for schools under the National Solar Schools Program. Grants of up to $50 000 will be awarded to eligible primary and secondary schools to install solar and other renewable power systems, rainwater tanks and a range of energy efficiency measures.33

Launch of synthetic fuels facility

In June 2011, the Government announced the launch of the $5m Synfuel and Catalysis Research Facility (Syncat), Australia’s first synthetic fuels facility, in Perth. The facility is a public private partnership housed at the Australian Resources Research Centre in Western Australia’s Technology Park.34

Carbon capture and storage site announced

In June 2011, the Australian Government announced that it had selected the Collie South West Hub project for funding under the $1.68b Carbon Capture and Storage Flagships Program. The Commonwealth will provide up to $52m in funding for the first development phase of the project development and a detailed storage viability study. The total capital cost of the Collie South West Hub CCS project is forecast at around $1b.35

Energy security report

In June 2011, Geoscience Australia released a report

32 http://Minister.ret.gov.au/MediaCentre/MediaReleases/Pages/emergingrenewablesprog.aspx.33 http://www.climatechange.gov.au/Minister/mark-dreyfus/2011/media-release/August/mr20110801a.aspx.34 http://Minister.ret.gov.au/MediaCentre/MediaReleases/Pages/LaunchofAustralia%E2%80%99sFirstSyntheticFuelsFacility.aspx.35 http://Minister.ret.gov.au/MediaCentre/MediaReleases/Pages/Multi-MillionDollarCleanEnergyInvestmentforWA.aspx.

Investment in solar power stations

In June 2011, the Government announced that it would help build two of the largest solar power stations in the world. Solar Dawn and Moree Solar Farm have been selected as the two successful consortiums to build the power plants under Round 1 of the Australian Government’s $1.5b Solar Flagships program. Work will commence next year, and the plants are expected to be completed and commissioned by the end of 2015. $464m will be contributed to the $1.2b Chinchilla project, and $306.5m towards the $932m Moree project. Together, the projects are expected to generate enough power to support the electricity needs of more than 115 000 Australian homes per year. The Solar Dawn consortium, led by Areva Solar, will build a 250 megawatt (MW) solar thermal gas hybrid power plant near Chinchilla. The Moree Solar Farm consortium, led by BP Solar will build a 150 MW photovoltaic power plant near Moree. This is reported to be nearly twice the size of any photovoltaic power plant operating in the world today.30

New renewable energy agency

On 8 July 2011, the Government announced that it would establish a new agency, the $3.2b Australian Renewable Energy Agency (ARENA) to consolidate support for renewable energy technology development as part of its package of measures for Australia’s clean energy future. This measure was given legislative affect on 9 November 2011. ARENA will bring together in one independent statutory agency within the Resources, Energy and Tourism portfolio a range of initiatives previously administered separately through a range of bodies, including the Australian Centre for Renewable Energy and the Australian Solar Institute. Around $1.7b in uncommitted funding from the range of consolidated programs will be available for the ARENA Board to direct investment in new renewable energy projects between now and 2020.31

Emerging renewable energy program

On 8 August 2011, the Government opened its

30 http://www.pm.gov.au/press-office/green-light-build-australias-largest-solar-projects.31 http://Minister.ret.gov.au/MediaCentre/MediaReleases/Pages/RenewableEnergyEntersaNewArena.aspx.



Future regulations will determine the products and persons to which the obligations will apply. It has been announced that televisions and computers will be the first products regulated under the product stewardship framework with a national, industry-led television and computer-recycling scheme expected to be phased in from the end of 2011.40

Breach of water efficiency and labelling laws

Companies from the Australian Capital Territory, Queensland and Victoria have breached the Water Efficiency Labelling and Standards Act 2005 (Cth) (WELS Act). A timber and hardware supplies company in Queensland and a spa supplies company in Victoria were both found to be supplying products not registered and labelled as required under the WELS Act. A bathroom supplies company in Canberra was found to be supplying products not labelled as required under the WELS Act. All three companies had provided an enforceable undertaking to the regulator. Under the agreement, the companies would:

§ improve business practices to ensure that all products subject to the Water Efficiency Labelling and Standards (WELS) scheme are supplied in accordance with the legislation

§ implement a record system for WELS products

§ deliver a compliance training program to staff

§ undertake a range of internal product auditing and related reporting measures

§ be subject to independent product auditing at their cost, to both assist and ensure future compliance.41

Murray-Darling Basin inquiry report

On 2 June 2011, the House of Representatives Standing Committee on Regional Australia tabled its report on the inquiry into the impact of the Murray-Darling Basin Plan in regional Australia. The report, Of Drought and Flooding Rains, makes 21 recommendations.42

40 http://www.environment.gov.au/Minister/farrell/2011/pubs/mr20110615.pdf.41 http://www.environment.gov.au/about/media/dept-mr/dept-mr20110808.html 42 http://www.aph.gov.au/house/committee/ra/murraydarling/report.htm.

Toward Future Energy Discovery. The report details the achievements of the Government’s five-year, $134m Energy Security Initiative. That initiative was established to attract investment in offshore and onshore energy exploration and involved the selection of frontier regions for pre-competitive data acquisition and investigation.36

New board appointments: Low Carbon Australia

Low Carbon Australia was formerly known as The Australian Carbon Trust. Low Carbon Australia was established to work with business to understand and overcome the barriers that businesses face when seeking to improve energy efficiency and reduce their emissions, and to help business and consumers to identify goods and services which are carbon neutral.

On 8 June 2011, the Government announced the appointment of Ms Tanya Cox and Ms Linda Nicholls to the Board of Directors of Low Carbon Australia Limited.37

Product Stewardship Bill 2011 (Act)

The Product Stewardship Bill 2011 (Act) received assent on 25 July 2011.38 The framework is an outcome of the National Waste Policy: Less Waste, More Resources agreed to by the Council of Australian Governments in 2010.

The framework includes voluntary, co-regulatory and mandatory product stewardship for manufacturers, importers, distributors and others in order to:

§ avoid generating waste from products

§ reduce or eliminate the amount of waste from products to be disposed of

§ reduce or eliminate hazardous substances in products and waste from products

§ manage waste from products as a resource

§ ensure that products and waste from products is treated, disposed of, recovered, recycled and reused in a safe, scientific and environmentally sound way.39

36 https://www.ga.gov.au/image_cache/GA19729.pdf .37 http://www.climatechange.gov.au/Minister/mark-dreyfus/2011/media-release/June/mr20110608a.aspx.38 http://www.environment.gov.au/settlements/waste/product-stewardship/index.html.39 Revised Explanatory Memorandum, 2011, p 3.



largest wildlife seizures in Australia, with close to 400 alleged illegal wildlife products seized.44

Wild Rivers (Environmental Management) Bill 2011 (Cth)

On 12 September 2012, the leader of the Opposition, the Hon Tony Abbott MP, introduced the Wild Rivers (Environmental Management) Bill 2011 (Cth) into the House of Representatives. This Bill proposes to protect the interests of Aboriginal people in the management, development, and use of native title land situated in wild river areas, and for related purposes.45

44 http://www.environment.gov.au/about/media/dept-mr/dept-mr20110811.html.45 http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=priority,title;page=21;query=Dataset_Phrase%3A%22billhome%22%20ParliamentNumber%3A%2243%22;rec=9;resCount=Default.

Protection of the sea amendments

The Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Act 2011 (Cth) received assent on 4 August 2011. The Act amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth).

CITES: possession of illegal wildlife

In June 2011, a Bathurst resident received a conviction and a $2 500 fine after pleading guilty to three charges of possessing illegally imported wildlife.43

In August 2011, the Government announced that Operation BONAPARTE had resulted in one of the

43 http://www.environment.gov.au/about/media/dept-mr/dept-mr20110607.html.

AUSTRALIAN CAPITAL TERRITORY Kirsten MillerInvestigators to assess chemical fire response and consequences

Various independent investigations in the ACT will address issues arising from a major fire in mid-September 2011 at a hazardous chemical processing facility in the ACT. The private facility processes waste transformer oil to remove Polychlorinated Biphenyls (PCBs), so that the oil can be re-used. The fire required some evacuations and the issuance (not very successfully) of emergency alerts across a 10km radius. The facility is located in a General Industry Zone close to commercial and residential areas.

An independent toxicologist with experience in environmental contaminants including PCBs and dioxins is to review the government’s chemical contamination testing results and provide advice to on a long-term monitoring regime and testing for dioxins. At the time of the fire, ACT Fire Brigade tests for carbon monoxide, hydrogen sulphide, phosgene and up to 300 other volatile organic compounds confirmed no immediate health risks for fire fighters or residents. The ACT Environment Protection Authority is to review the exercise of its statutory powers and responsibilities. WorkSafe ACT is to investigate the incident and assess compliance issues in relation to signage, the firm’s manifest, its registration

etc. The ACT Police and ACT Fire Brigade are to prepare a joint report for the Coroner on the fire.

ACT feed-in tariff reaches its cap

The cap on the amount of small and medium scale renewable energy generators who could take advantage of the ACT’s gross feed in scheme has been reached. Consequently the feed in tariff scheme is no longer available in the ACT.

Under the Electricity Feed-in (Renewable Energy Premium) Amendment Act 2011 (ACT), a cap of 15 MW was introduced on micro renewable energy generators, that is systems up to 30kW, and 15 MW on medium scale generators, that is systems between 30kW and 200kW. The legislation was passed in February 2011 and shortly after the cap was introduced it was reached for micro generators, two years earlier than predicted.

In response, the ACT Greens, with the support of the ACT Liberals, passed the Electricity Feed-in (Renewable Energy Premium) Amendment Act 2011 (No 2), to extend the cap. The amendments allowed micro generators to access the medium-scale feed in tariff at a reduced rate of 31.16¢kWh until the scheme reached a new combined cap of 30MW for small scale and



Environmental authorisations and environmental protection agreements online

Environmental authorisations and environmental protection agreements which are issued by the ACT Environment Protection Authority under the Environment Protection Act 1997 (ACT) are now available online.

Under the Act a person is prohibited from carrying out Class A activities which involve a significant risk of environmental harm without an environmental authorisation issued by the Environment Protection Authority. Such activities, prescribed in Schedule 1, include the commercial use of certain chemical products, transport of hazardous waste, the conduct of motor racing events and the operation of sewage treatment plants, amongst others.

Class B activities, also listed in Schedule 1, are less harmful, and are the subject of environmental protection agreements between the Environment Protection Authority and the persons conducting those activities. These agreements are formal, written documents and may for example involve a company agreeing to adhere to an industry standard or code of practice. Class B activities include forestry activities, certain major land development or construction activities, and the commercial collection of waste from commercial premises.

Previously environmental authorisations and environment protection agreements were available to the public on request, but were not readily accessible online.

medium scale generators. This scheme took effect from 12 July 2011. However this cap was also reached the following day.

Lake Burley-Griffin water quality investigation

Following a direction to the ACT Commissioner for Sustainability and the Environment to investigate the state of the watercourses and catchment for Lake Burley Griffin, a reference group consisting of members with expertise in areas such as urban water management, hydrology, ecology, recreation, communication and consultation has been appointed to assist the Commissioner.

The Commissioner is to investigate the state of the water courses and catchments for Lake Burley Griffin including:

§ possible improvements for managing water quality and the appropriateness of the current protocols for lake closures

§ identifying the causes of lower water quality, including possible resource implications of addressing them

§ jurisdictional implications for water quality management of the lake

§ the implication of these findings for the ACT’s other major recreational waterways, such as Lake Ginninderra and Lake Tuggeranong.

The investigation follows concerns about contamination in the lake and discharge of highly treated effluent into the lake from the Queanbeyan Sewerage Plant, which discharges into the Molonglo River.



NEW SOUTH WALES Dr Nicholas Brunton and Janet McKelveyState significant development (SSD)

SSD is intended to be the assessment process for larger developments sought by private proponents. The provisions regarding SSD are inserted into Part 4 in Division 4.1 of the EP&A Act.

Types of projects

Schedule 1 of the SEPP (SRD) provides for classes of development that are proposed to be SSD. These classes include (among others) intensive livestock agriculture, mining, petroleum (oil, gas), extractive industries, road, rail and related transport facilities, waste and resource management facilities and remediation of contaminated land. Development in a particular class must also meet the capital investment value threshold to be classified as SSD.

Specific sites may also be declared by the Minister to be SSD but only if the Minister has obtained, and made publicly available, advice from the PAC about the state or regional planning significance of the development. The SEPP (SRD) has identified the Sydney Opera House, Sydney Olympic Park, The Rocks and Barangaroo (among other sites) as being SSD sites. Development on a specified site must also meet the capital investment threshold to be classified as SSD.

Consent authority

The consent authority for SSD is the Minister for Planning, although it is expected that the Minister will delegate his decision-making authority for all SSD to the PAC or senior officers of the department.

Changes to the assessment process

As SSD is inserted into Part 4 of the EP&A Act, many of the current development assessment processes that apply to the assessment of development applications lodged with councils will apply to SSD. For example, s 89H provides that the relevant matters set out in s 79C are to apply to the determination of an SSD application. This has the effect that environmental planning instruments and development standards will need to be considered in the determination of an SSD application. The Draft SEPP proposes to exclude the operation of

Environmental Planning and Assessment Act 1979 (NSW) – state significant development (SSD), infrastructure provisions and the repeal of Part 3A by Janet McKelvey

Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act) has been criticised for capturing projects that are not truly of state significance, thereby removing local planning issues from local communities. The repeal of Part 3A is the first stage in the Government’s review of the planning system in New South Wales.

The Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (the Repeal Act) was incorporated into the EPA Act and began operation on 1 October 2011.

Very shortly after coming to office, the O’Farrell Government instituted preliminary transitional arrangements for projects already in the Part 3A system, pending its repeal. These arrangements included revoking Part 3A status for residential, commercial or retail development with a capital investment value greater than $100m, and coastal subdivisions. Projects that were yet to have environmental assessment requirements issued by the Director-General were sent back to local councils for determination. Projects that had been substantially progressed under the Part 3A system were to continue to be determined under Part 3A, however, they were to be assessed by the Planning Assessment Commission (PAC) or a senior member of the new Department of Planning and Infrastructure.

The Repeal Act separates major development into two new categories: state significant development (SSD) and state significant infrastructure (SSI). The classes of development and the capital investment value thresholds that qualify a development as SSD and SSI are set out in the State Environmental Planning Policy (State and Regional Development) 2011 (SEPP (SRD)) that commenced operation on 1 October 2011.

The Repeal Act also increases the thresholds for projects that are to be sent to a Joint Regional Planning Panel (JRPP) and amends the composition of the JRPP to give local councils greater power to appoint panel members.



with concept plans under the former Part 3A. Critical SSI is still generally immune from legal challenge except in limited circumstances.

Transitional part 3A projects

The provisions of Part 3A as in force immediately before the Repeal Act (including provisions relating to modification applications under s 75W) will continue to apply to projects that fall within the definition of transitional Part 3A projects. Transitional Part 3A projects include approved projects and projects that have been the subject of a Part 3A project application and for which environmental assessment requirements have been notified or adopted. In addition, any SEPP or other instrument made under Part 3A as in force or as amended after Part 3A’s repeal will continue to apply to a transitional Part 3A project.

Further details concerning the transitional arrangements are set out in amendments to the Environmental Planning and Assessment Regulation 2000.

Joint regional planning panels (JRPPs)

Projects that are not SSD or SSI will be determined by local councils or, if the development meets specified capital investment thresholds, a joint regional planning panel (JRPP). The capital investment value threshold for development to be sent to the JRPP will increase from $10m to $20m. Development of less than $20m that would have been sent to the JRPP will be returned to local councils.

The capital investment value threshold for referral of applications to a JRPP will be reduced to $5m for Crown development applications, applications where the council is the applicant, applications for certain private infrastructure, community facilities and eco-tourist facilities.

The Repeal Act also introduces a new provision relating to the composition of JRPPs. One of the three state-appointed members of a JRPP will now have to be appointed by the Minister with the concurrence of the Local Government and Shires Association. This aims to alleviate concerns that local councils are not able to control development that occurs in their own area.

The Repeal Act also allows a JRPP to determine development applications that have a capital investment

development control plans from SSD. SSD will also be subject, with one minor exception, to the modification powers in s 96 of the EP&A Act.

State significant infrastructure (SSI)

SSI is inserted into a new Part 5.1 of the EP&A Act and will apply to development for which, generally, a government authority is the proponent.

Types of projects

Schedule 3 of the SEPP (SRD) provides for classes of development that are SSI. These classes include the activities of a public authority that would otherwise require an environmental impact statement under Part 5, rail infrastructure, pipelines and water storage or treatment facilities. Development in a particular class must also meet the capital investment value threshold to be classified as SSI.

Specified sites may also be declared by the Minister to be SSI. In relation to SSI, the Minister may simply declare a specified site to be SSI. There is no need for the Minister to seek advice as required to specify a site as SSD.

Development can be declared Critical SSI if it is of a category that, in the opinion of the Minister, is essential for the state for economic, environmental or social reasons (s 115V).

The SEPP (SRD) identifies the Pacific Highway projects, the M5 West widening and certain rail infrastructure projects as Critical SSI.

Consent authority

The Minister is the consent authority for SSI projects. It is expected that applications will be determined by senior officers of the department if there are fewer than 25 submissions by members of the public objecting to the proposal and the relevant local council does not object to the proposal.

Changes to the assessment process

The pre-approval and assessment provisions under the former Part 3A are generally comparable with the new provisions for SSI. There are also SSI provisions governing staged infrastructure applications that are comparable



and government authorities.

The Repeal Act is only the first stage of a comprehensive review of the EP&A Act. The Minister has announced that a review of the EP&A Act is expected to take 18 months with a Bill expected to be tabled in the NSW Parliament in the second half of next year. We can only wait to see where the next era of planning law in New South Wales will take us.

value of between $10m and $20m if an application has not been determined by the local council within 120 days of it being lodged. This provision is subject to the applicant making a written request to the council for the application to be dealt with by the JRPP and the chairperson of the relevant JRPP determining that the delay in the determination of the development application was not caused by the applicant.

The future

The New South Wales planning system is in transition. The reforms to the assessment of large private projects under the state significant development scheme and the return of responsibility for the determination of more development applications to local councils will necessarily affect the operations of councils, developers

QUEENSLAND by Dr Justine Bell

New Queensland Coastal Plan

A new legislative regime for coastal protection and management is due to commence in Queensland in 2011. Amendments to the Coastal Protection and Management Act 1995 (Qld) were assented to on 4 April 2011, and the associated Queensland Coastal Plan was released in the same month. The Queensland Coastal Plan consists of a State Policy for Coastal Management, and a State Policy for Coastal Protection.1 The protection policy applies to development assessable land under the Sustainable Planning Act 2009 (Qld) and contains a development assessment code. The management policy applies to other activities.

The new regime is supplemented by detailed mapping of coastal hazard areas, which are defined as areas subject to erosion, storm tide inundation, or permanent inundation due to sea level rise. Coastal hazard areas are further divided into high and medium hazard areas. High hazard areas are projected to be permanently inundated by rising sea levels, or temporarily inundated to a depth of one metre or more during a storm. Medium hazard areas are projected to be temporarily inundated to a depth of less than one metre inundation during a storm.

1 http://www.derm.qld.gov.au/coastalplan/pdf/qcp-web.pdf.

These maps are essential to the decision-making process. The overall aim of the protection policy is to regulate development in coastal hazard areas. As a general rule, performance outcome one (PO1) of the development assessment code states that development in a coastal hazard area is permitted if it is:

§ a coastal dependent development

§ temporary or readily relocatable

§ essential community service infrastructure that cannot feasibly be relocated elsewhere or

§ redevelopment that does not increase the risk to people and property from exposure to adverse coastal hazard impacts.

Development outside the scope of PO1 is more heavily regulated, and whether it will be allowed will depend upon whether it is proposed in an urban or greenfield area, and in a high or medium hazard area. The following table depicts the types of development permitted under the development assessment code:



The paper addresses the following key sectors:

§ human settlements

§ infrastructure

§ ecosystems

§ water management

§ primary industries

§ emergency management

§ human health.3

The paper is heavily directed towards issues arising from the Queensland flood disaster in 2010–11, including planning, insurance, infrastructure and emergency management. It also seeks comment on issues such as species adaptation to warmer climates, and water and food security in a warmer climate.

3 http://www.climatechange.qld.gov.au/whatsbeingdone/adaptation/pdf/issues-paper.pdf.

These rules reflect one of the key aims of the Protection Policy, which is consolidation of urban development, and restriction of greenfield development in coastal hazard areas. Importantly, the Protection Policy does not apply to all development; it focuses on development that increases the population on the coast, such as subdivisions, rezoning, and large developments of more than 1 000sqm.

The new legislative regime for coastal management and protection in Queensland will commence on a date to be fixed by gazette notice.

Climate change: adaptation for Queensland

The Queensland government released the Climate Change: Adaptation for Queensland Issues Paper on 29 August 2011. It seeks comment on issues such as sea level rise, erosion, and flooding, to assist with updating Queensland’s adaptation strategy.2

2 http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=76298.



State Planning Policy for Strategic Cropping Land is to protect land identified as being important for food production.4 The draft policy is accompanied by maps of potential strategic cropping land areas. To accurately determine whether an area is strategic cropping land, the government has adopted criteria to determine how suitable the site is for cropping. These criteria include rockiness of the site, slope, soil depth, soil wetness and salinity. Under the Policy there is a distinction made between Strategic Cropping Protection Areas and Strategic Cropping Management Areas, with Protection Areas granted a higher level of protection.

The outcomes sought by the policy in relation to these areas are:

§ to ensure that development in designated Strategic Cropping Protection Areas does not result in the permanent alienation of this land, except in limited exceptional circumstances

§ to ensure that development in Strategic Cropping Management Area avoids land identified as strategic cropping land. Where this is not possible, and there is an overriding need in terms of public benefit and no alternative site, development impacts are to be minimised.

‘Permanent alienation’ is defined as the use of land on or near strategic cropping land for 50 years or more, and cropping during that time or in the future is not permitted. Examples include subjecting the land to a forestry covenant, or new construction which prevents cropping.

The State Planning Policy contains provisions relating to development assessment which are intended to be incorporated into local government planning schemes. These provisions are designed to implement the outcomes of the policy.

The Department of Environment and Resource Management has invited submissions on the draft policy.

Ban on mining in urban areas

The Queensland Government aims to ban mining in urban areas. Since 16 August 2011 there has been a

4 http://www.derm.qld.gov.au/land/planning/strategic-cropping/index.html#proposedcriteria.

The outcomes of the consultation process will inform development of the new strategy which is expected to be released in 2012. Submissions closed on 20 October 2011.

Temporary Local Planning Instruments – planning for future floods

To assist Queensland residents rebuilding after the 2011 floods, several local governments have released Temporary Local Planning Instruments (TLPIs) to ensure that the impacts of future floods are minimised.

The Brisbane Temporary Local Planning Instrument 01/11 (TLPI) was introduced on 16 May 2011 and will have effect for a one year period. It was introduced as an interim instrument to provide certainty to residents rebuilding after a flood, as changes to the Brisbane City Plan can take up to 18 months to implement.

The purposes of the TLPI are:

§ to introduce a new Interim Residential Flood Level (IRFL) based on the 2011 floods

§ to allow self-assessment of houses up to 9.5m above ground level where they are affected by river or waterway flooding, and code assessment where houses are on a small lot

§ to allow houses to be raised or extended with habitable floor levels below the IRFL with requirements for resilient building design and materials

§ to allow for flooding to be taken into account when assessing the maximum height of houses, multi-unit and single-unit dwellings.

The TLPI contains assessment tables for different types of development, and specifies how flood immunity will be provided for in new development, or repairs. This will either involve building above flood levels, or using flood resistant materials in construction.

Ipswich City Council and the Lockyer Valley Regional Council have adopted similar instruments.

Draft State Planning Policy – strategic cropping land

Rural land in Queensland is subject to competing pressures, including agriculture and food production, development, and mining. The purpose of the draft



claimed that he was unaware of the clause when he undertook the clearing. Magistrate John Smith rejected this defence, noting that the failure of the defendant to check the terms of the development approval before proceeding was foolish and reckless, and did not satisfy the requirements of the defence of mistake of fact.

In determining the appropriate penalty, Magistrate Smith took the following factors into account:

§ the defendant’s cooperation once the offence was detected

§ the defendant’s good character

§ the maximum penalty of $300 000

§ the fact that approval would likely have been given to clear the mangroves, with appropriate offsets, had the defendant sought approval

§ the need for the penalty to outweigh the likely commercial gain derived from the offending.

Magistrate Smith awarded a penalty of $172 000 plus costs, and declined to record a conviction.

temporary restriction on exploration tenure applications in south-east Queensland, and in designated urban areas, plus a 2km buffer. An urban area is a town with a population of more than 1 000.5 The government has also requested existing tenure holders to voluntarily relinquish their tenure over such areas. This ban is intended to be an interim measure while the government seeks consultation on a more permanent solution.

$172 000 fine imposed for clearing marine plants

On 22 July 2011 the Maryborough Magistrates Court imposed a fine of $172 000 for clearing marine plants in contravention of the Fisheries Act 1994 (Qld) s 123(a). The defendant, Ronald Blyth, was found guilty of clearing mangroves along the bank of the Mary River. The clearing occurred in conjunction with a development approval for construction of a marina, despite a clause stating that ‘the pontoon in no way may involve the disturbance, removal, destruction or damage of any marine plants’. Mr Blyth pleaded not guilty, and

5 http://mines.industry.qld.gov.au/assets/mines/Interim-restrictions-overview.pdf.

to demonstrate that the project had been ‘substantially commenced’. Gunns maintains that the project had substantially commenced, and continues working on the site. The prosecution proceedings will commence on 14 October 2011.

Gunns applied to the EPA to vary its permit conditions regarding storm water management, and at the time of writing the Director of the EPA was assessing whether the permit had lapsed. The director was considering a submission made by Gunns documenting the works it alleged demonstrated substantial commencement. He was expected to report before the end of September 2011 on whether he was satisfied that the permit remained in force. Tasmania’s Attorney-General Brian Wightman declined to intervene in the matter. However, the Premier acknowledged that regardless of the outcome of the EPA review, the issue of ‘substantial commencement’ may need to be determined by a court.

The Pulp Mill Assessment Act 2007 (Tas) also provides that permits issued for dam works associated with

Dispute over continuing work at pulp mill site

A community organisation, Pulp the Mill Inc, has begun prosecution proceedings against Gunns Limited in the Magistrates Court, claiming that ongoing work on the pulp mill’s Bell Bay site is unlawful as the permit issued for the project has lapsed.1

Under the Pulp Mill Assessment Act 2007 (Tas) s 8(4), the State ‘Pulp Mill Permit’ lapses if the project is not ‘substantially commenced’ within 4 years of the Permit coming into force, a period which expired on 30 August 2011. Earthworks and road construction work have been occurring on the mill site since 26 August 2011, when Gunns announced that it had entered into a contract for the work. Prior to that date, some vegetated areas of the site had been cleared, but little else had occurred on the site.

Pulp the Mill Inc claims that the amount of work carried out by Gunns up to 30 August 2011 was not sufficient

1 For an overview of the charges, see tasmaniantimes.com/index.php?/article/pulp-the-mill-launches-prosecution-of-gunns-ltd/

TASMANIA by Jess Feehely and Tom Baxter



More Ministerial discretion under Permanent Native Forest Estate Policy

The Tasmanian Government has had a formal policy regulating the extent of clearing and conversion of the native forest estate since 1996. This is consistent with commitments under the Tasmanian Regional Forest Agreement (RFA) to phase out broadscale clearing and conversion of native forests, and maintain 95% of the Comprehensive Regional Assessment (CRA) native forest area within the state.

Broadscale clearing and conversion of native forest on public land ceased in 2009. In order to manage the phase out of clearing on private land by 2015, the Policy for Maintaining a Permanent Native Forest Estate released in 2009 limited the area of private forest that could be cleared and converted on any property to 40ha per year (subject to limited exemptions).

On 20 September 2011, the Tasmanian Minister for Forests, Bryan Green, released a revised policy which allows an exemption from this property conversion limit where the Minister is satisfied that a development proposal ‘demonstrates substantial public benefits’.4 The implementation guidelines for the revised policy state:

During the phase-out of broadscale clearing and conversion it is not the intent of the Policy to limit major projects that can demonstrate substantial public benefits to the Tasmanian community and where any associated conservation benefits are secured through formal agreements.

The revised policy states that it will be implemented solely through the issue of Forest Practices Plans by the Forest Practices Authority, despite legislative amendments in 2009 which exempted clearing associated with buildings approved by local planning authorities from the requirement to obtain a Forest Practices Plan.

Tasmanian Forests Intergovernmental Agreement

Some 12 months after the historic Tasmanian forestry negotiations commenced, the parties to the negotiations released a Signatories Agreement in June 2011. On

4 Available at www.dier.tas.gov.au/

the project lapse if the works are not ‘substantially completed’ by 30 August 2011. As construction of the three approved dams had not commenced on 30 August 2011, Gunns conceded that the permits had lapsed and applied for new permits to authorise future dam work. This application will be assessed by the Assessment Committee for Dam Construction under the Water Management Act 1999 (Tas).

The Tasmanian Greens have questioned whether new permits can be issued, given the restricted application of legislation other than the Pulp Mill Assessment Act 2007 (Tas) to the pulp mill project. The Tasmanian government maintains that it has legal advice confirming that new permits can be issued, but has refused to release the advice.2

TCT withdraws legal challenge

As reported in the last edition of NELR, the Tasmanian Conservation Trust commenced legal action in the Federal Court in June 2011 seeking judicial review of Minister Tony Burke’s decision to amend permits issued to Gunns Limited under the EPBC Act. The amendments authorised a revised pipeline corridor (on the basis that landowner agreement could not be reached in respect of the originally proposed corridor) and allowed future amendments to the Environmental Impact Management Plan (EIMP) to be made without public consultation. The TCT application alleged that the:

§ failure to obtain landowners’ consent was not a relevant consideration which would justify amendment of the approved route

§ Minister failed to consider the impact of the new pipeline corridor on listed threatened species

§ proposed fast-tracking of future amendments to the EIMP was not lawful.

The matter had been set down for a further directions hearing in October 2011. However, on 21 September 2011 the TCT announced that it had withdrawn its application. The TCT Director, Peter McGlone cited costs as a significant factor in the decision, noting that Gunns’ opposition to a restrictive costs order agreed to by the Minister ‘presented a financial risk that the TCT was unwilling to take.’3

2 Minister for Primary Industries and Water media release 30 August 2011, www .media.tas.gov.au/release.php?id=330833 ‘Pulp Mill Case Pulped’, ABC News, 21 September 2011. www .abc.net.au/news/2011-09-21/



June 2012, to allow retired forestry rights to be allocated to conservation reserves. Controversially, $23m of this has been paid to Gunns Limited, and $11.5m to Forestry Tasmania. The Tasmanian Premier has said that these payments were to achieve the joint objectives of settling a dispute between the corporations over outstanding debts which Forestry Tasmania alleges Gunns owes it, and formally extinguishing Gunns’ residual rights to harvest native forests under two native forest wood supply contracts.

Some have questioned the necessity for the payments, given Gunns’ failure to meet conditions in the wood supply contracts regarding pulp mill construction and Forestry Tasmania’s previous assertion that Gunns had already voluntarily given notice to terminate its key wood supply agreement after deciding to exit native forestry.

Security for the forest industry

The IGA commits to the annual supply of the following minimum wood volumes:

§ 155 000m3 of high quality sawlogs

§ 265 000m3 of peeler billets

§ up to 12 500m3 of specialty timbers (to be used for artisan products, furniture etc).

The Verification Group is required to have regard to these minimum quotas when determining the final reserve boundaries and rescheduling opportunities.

The commitment to minimum volumes of peeler billets to supply Malaysian company Ta Ann’s operations has been strongly criticised as providing inappropriate protection for the company, and running the risk that compensation may be payable if such supplies cannot be sustained.

Assistance to workers

The Statement of Principles recognised that significant support was needed to assist forestry workers and the community to adjust to changes in the industry. The IGA outlines a range of commitments to assist forestry workers and the community to adjust to changes in the industry, including:

§ $14–$25m to provide employment, training and relocation support for redundant forest workers

7 August 2011 the Prime Minister and the Premier signed the Tasmanian Forests Intergovernmental Agreement (IGA) to give effect to the signatories’ agreement.5 A key commitment under the IGA includes the establishment of an Independent Verification Group, to be chaired by Professor Jonathon West, to:

§ verify the conservation values of the 572 000ha of nominated high conservation value forest

§ verify industry claims regarding minimum wood supply requirements and availability of resources outside nominated high conservation value forests

§ make recommendations by 31 December 2011 regarding final boundaries and appropriate reserve categories (if any) for the nominated high conservation value forests

§ designate 430 000ha of the nominated high conservation value forest in informal forest reserves immediately. Harvesting in those reserves is prohibited while the report is being finalised, with work planned for those areas to be rescheduled and compensation to be paid for any contracts where rescheduling is not possible.

Forestry Tasmania has advised that it cannot meet current contractual requirements without harvesting in the 430 000ha, and has allowed continued harvesting in several identified reserve areas. The ENGO signatories have called on the government to direct Forestry Tasmania to cease work, but the government has yet to act. The Verification Group is conducting an expert review of Forestry Tasmania’s claims and will make recommendations to the government by 10 October 2011.6

The Tasmanian Government is to introduce legislation to give effect to the recommendations of the Verification Group by 30 June 2012, with $7m to be provided annually by the federal government to support the management of new reserves if the legislation is passed.

The federal government will provide $45m to support voluntary buy backs of native forest contracts before 30

5 Tasmanian Forests Intergovernmental Agreement between the Commonwealth of Australia and the State of Tasmania. Available at www.dier.tas.gov.au/forests/tasmanian_forests_agreement6 ‘Review to Decide Forestry Dispute’, 22 September 2011. www .abc.net.au/news/2011-09-22/20110922-review-to-decide-forestry-dispute/2911494?section=tas



the Tarkine Rainforest on the national heritage list. The Heritage Council has now requested more time to complete its assessment, and no new timeframe has been set.

The Tasmanian Minerals Council opposes the proposed listing. Tasmania’s Minister for Energy and Resources, Bryan Green, has also announced that he and Environment Minister, Brian Wightman, will meet with Tony Burke in October 2011 to outline their concerns that the proposed heritage listing would jeopardise future investment in mining and forestry in the area.9

Agricultural spraying regulations under review

The Minister for Primary Industries and Water, Bryan Green, introduced the Agricultural and Veterinary Chemicals (Control of Use) Amendment Bill 2011 on 20 September 2011.10 The Bill proposes a range of amendments to ‘improve chemical use practice in Tasmania’, and paves the way for introduction of regulations regarding ground and aerial spraying.

Draft agricultural spraying regulations were released for public comment in May 2011, and are currently being considered by the Agricultural, Silvicultural and Veterinary Chemicals Council. The Council anticipates that the regulations will be introduced before the end of 2011.

Significant issues addressed in the draft regulations include:

§ prohibiting any chemical residue within 2m of water bodies. The original draft recommended a 10m buffer zone, however this was reduced following lobbying from the agricultural sector about the compliance costs of a wide buffer

§ increased record keeping requirements

§ notification of spraying activities. The regulations set out the detailed information required to be provided with notification, but reduce the area within which notification must be given.

Canal Estate Ban Bill rejected

The Canal Estates (Prohibition) Bill 2011, which sought to prohibit the use or development of residential

9 Bryan Green media release 22 September 2011, www.media.tas.gov.au/release.php?id=3320610 www.parliament.tas.gov.au/bills/pdf/48_of_2011.pdf

§ $15m transition support payments to workers directly affected by closure of Gunns’ mills

§ $1m for counselling services to forest workers and their families

§ consultation with affected communities to develop appropriate adjustment packages and identify alternative job opportunities

§ $120m over 15 years to fund regional redevelopment projects, including research and analysis projects.

The governments have committed to consultation with affected communities to develop appropriate compensation and adjustment packages. The support payments are currently being finalised and should be delivered by December 2011.

Some industry groups have criticised the support package for providing only meagre compensation. Other groups, including the CFMEU and the Tasmanian Forest Contractors Association, have expressed strong support for the Agreement.7

The regional development funding is contingent upon legislative protection of reserve areas identified through the verification process. $20m will be available in 2011–2012, but must be repaid in the event that legislation to protect high conservation value forests is not passed.

The most significant stumbling block to implementation of the Intergovernmental Agreement remains the Tasmanian Parliament, which will be required to pass legislation to give effect to the agreed minimum supply volumes and new protected areas. The Tasmanian Liberal Opposition, and several members of the upper house, remain opposed to the IGA outcomes and have called for the deal to be scrapped.8

National Heritage listing for the Tarkine delayed again

The Australian Heritage Council was due to provide a final report to Federal Environment Minister Tony Burke in September 2011 regarding the proposal to include 7 ‘Tasmanian Forest contractors welcome the Intergovernmental Agreement on Tasmanian Forestry’. Daily Timber News, 8 August 2011. www.forestsandtimber.com.au/dtn/details.asp?ID=6778 See, for example, ‘Liberals to Oppose Disastrous Forestry Agreement’. Michael Ferguson media release. 8 August 2011. http://michaelferguson.com/2011/08/liberals-to-oppose-disastrous-forestry-agreement/



number of recommendations which will be of interest to practitioners. Of particular note are the following recommendations:

(3.6) The environmental impact assessment legislation be amended to:

(a) confirm ecologically sustainable development (ESD) principles as the overarching principles underpinning decision-making under the Act

(b) emphasise that environmental matters are to be considered first when making decisions under the Act – decision-making should integrate long-term and short-term environmental, social, economic and equitable considerations effectively.

(3.7) The objects of the Victorian environmental impact assessment legislation be revised to state:

(a) the primary object of the Act is to protect the environment

NELA hosts EPA statutory policy roundtable discussion1

On 16 August 2011 NELA (Victoria) and the Victorian Bar Climate Change and Environmental Law Panel hosted a roundtable discussion with senior practitioners as part of the EPA’s Review of Statutory Policy. Attendees discussed their views about the State Environment Protection Policy and other statutory environmental policies, including the role of SEPPs and the role of the EPA as policy maker and regulator. NELA provided the minutes of the meeting to the Statutory Policy Review team. Details of the Statutory Policy Review are available at: http://www.epa.vic.gov.au/about_us/legislation/statutory-policy.asp

Victorian Parliamentary Committee report on Environment Effects Act

On 1 September 2011 the Environment and Natural Resources Committee of the Victorian Parliament tabled the report of its inquiry into the Environment Effects Act Statement Process. The report sets out a

1 http://www.epa.vic.gov.au/about_us/legislation/statutory-policy.asp

and supporting infrastructure development. The plan identifies as a government priority the development of a Business and Environmental Sustainability programme, including:

§ strategic emission reductions partnerships with the state’s biggest emitters

§ establishment of a carbon price roundtable to assess likely impacts on Tasmanian businesses and identify commercial opportunities arising from the carbon pricing scheme

§ a business energy efficiency pilot

§ development of environmental indicators to support market branding for Tasmanian products

§ an environmental and social labeling feasibility study.

canal estates in Tasmania, was passed by the House of Assembly on 14 June 2011, with the support of both Labor and the Greens. However, on 7 July 2011, the Legislative Council (comprised predominantly of independent members) voted 10:4 against the Bill. Opponents argued that the Bill would send a negative message to future investors about development in Tasmania.

Tasmanian Economic Development Plan released

Economic Development Minister for Tasmania, David O’Byrne, released the Tasmanian Economic Development Plan on 26 August 2011.11 The plan, which was a commitment under the Intergovernmental Agreement to facilitate regional development, sets out strategies for attracting investment in key sectors, including mining, forestry, agriculture and marine farming. Strategies include streamlining the planning system

11 www.development.tas.gov.au/economic/economic_development_plan

VICTORIA by Barnaby McIlrath



(b) the primary object is to be achieved by applying the principles of ecologically sustainable development as stated in the Act

(c) the Minister for Planning and all agencies and persons involved in the administration of the Act must have regard to, and seek to further, the primary object of this Act.

(4.2) The environmental impact assessment legislation is amended to enable any person to have the power to refer a project to the Department of Planning and Community Development that may have a significant impact on the environment.

(4.3) Any decision-making authority, proponent or other person that disagrees with a decision that a proposal is not to be assessed under the environmental impact assessment legislation should be entitled to appeal the decision to the Victorian Civil and Administrative Tribunal. The time limit for lodging an appeal, format of appeal, process for investigating an appeal, time to determine the appeal and possible outcomes should be stipulated.

(5.2) The environmental impact assessment legislation be amended to include the following levels of assessment:

(a) Level 1 – Assessment on Preliminary Information

(b) Level 2 – Public Environment Report

(c) Level 3 – Environmental Impact Statement.

(9.2) The environmental impact assessment legislation be amended to require an appropriate independent authority to randomly audit the proponent’s monitoring programs and ensure compliance with conditions set by the Minister for Planning, for projects assessed under Levels 1 and 2.

The report was tabled on 1 September 2011 and the government response is due to be tabled within six months of that date.

Potentially Contaminated Land Advisory Committee issues and options paper released

The Minister for Planning has appointed an Advisory Committee to review the management of potentially contaminated land under the planning system.

The Potentially Contaminated Land Advisory Committee has released an Issues and Options paper, accessible at http://www.dpcd.vic.gov.au/planning/panelsandcommittees/current-planning-panels-and-committees/contaminated-land-advisory-committee.

Comment is invited on a revised version of the Environmental Audit Overlay (EAO). This includes permit triggers for land which is mapped as potentially contaminated land, the use of phase 1 assessments to inform the need for a statutory audit, and a range of exemptions for routine or minor works or works which do not involve significant exposure of soils.

Submissions in relation to the issues and options paper are open until 1 November 2011.

New policy for wind farms introduced

Amendment VC82 to all Victorian planning schemes was gazetted on 29 August 2011 and prohibits wind farms in specific circumstances and locations, including:

§ turbines within 2km of an existing dwelling except where the planning permit application includes evidence of written consent from the owner of the dwelling to the location of the turbine

§ areas of high conservation and landscape values including national and state parks described in a schedule to the National Parks Act 1975 (Vic) and Ramsar wetlands as defined under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

§ locations that feature a high degree of amenity, environmental value, or significant tourist destinations, including the Yarra Valley and Dandenong Ranges, Mornington Peninsula, Bellarine Peninsula, Macedon and McHarg



was passed by the Legislative Assembly on 15 September 2011. The Bill contains a range of miscellaneous amendments to the following Acts: the Mineral Resources (Sustainable Development) Act 1990, the Mineral Resources Amendment (Sustainable Development) Act 2010, the Geothermal Energy Resources Act 2005, the Greenhouse Gas Geological Sequestration Act 2008, the Pipelines Act 2005 and the Offshore Petroleum and Greenhouse Gas Storage Act 2010.

Ranges, Bass Coast and the Great Ocean Road region

§ locations identified for future urban growth including land in the Urban Growth Zone and designated regional population corridors specified in the Regional Victoria Settlement Framework Plan in the State Planning Policy Framework.

Statutory update

The Resources Legislation Amendment Bill 2011

WESTERN AUSTRALIA by Joe Freeman and Ainsley ReidEnvironmental approvals processes steamlined

On 18 August 2011 the WA and federal governments announced a strategic assessment of proposed development across the Perth and Peel regions of Western Australia. Developments in the Perth and Peel regions will be assessed to protect matters of national environmental significance under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The strategic assessment will assess a plan for the protection of matters of national environmental significance (MNES Plan) which will be implemented alongside Directions 2031 Spatial Framework for Perth and Peel, which was released by the Western Australian Planning Commission in 2010.

State Planning Minister John Day said the strategic assessment would streamline processes and cut red. It aims to reduce administrative burden for proponents whilst maximising environmental protection and allowing for sustainable development.

Barrow Group Nature Reserves Draft Management Plan released

On 12 August 2011 the WA Minister for Environment released the Barrow Group Nature Reserves Draft Management Plan for public comment. The Plan covers the existing Barrow Island Nature Reserve and the Boodie, Double and Middle Islands Nature Reserve.

The 10 year Plan aims to fulfil legislative responsibilities to protect key values of the planning area and to assist

with compliance in environmental approvals. The success of the plan will be measured by the Conservation Commission of Western Australia in accordance with guidelines developed under s 19 of the Conservation and Land Management Act 1984 (WA).

Conditional environmental approval has previously been granted for petroleum and gas operations in the management plan area, and the Department of Environment and Conservation does not attempt to impose additional environmental requirements on industry operators which have been present in the area for several decades.

The public comment period for the Draft Management Plan closed on 12 October 2011. A summary of submissions on the Draft Management Plan will be released alongside the final management plan.

Final environmental approval for Wheatstone project

On 30 August 2011 the WA Minister for Environment announced final environmental approval for the Wheatstone LNG project proposed by Chevron Australia Pty Ltd. The project is a 25m tonne per annum liquefied natural gas (LNG) facility and associated domestic gas facility on the Pilbara coast near the town of Onslow.

Approval for the Wheatstone development was granted with 25 conditions. Some of the environmental conditions require $13m in environmental offsets including $3.5m for improved management of critical habitats for humpback whales, dugongs and snubfin dolphins, and $3.85m for managing impacts and risks of increased visitations to island nature reserves within



The purpose of the amendments is to provide increased opportunities for Aboriginal people to be actively involved in the management of land and to allow Aboriginal people to carry out traditional activities ‘on country’ (which may be conservation reserves). Amendments to the CALM Act enable joint management of land and waters between the Department of Environment and Conservation and other landowners, or those with a vested or other interest in the land, including Aboriginal people.

Additional amendments to the CALM Act provide for recognising the value of land and waters to the cultural and heritage of Aboriginal people.

Amendments have also been made to the Wildlife Conservation Act to allow Aboriginal people to take flora and fauna for Aboriginal customary purposes such as preparing and consuming food, preparing and using medicine and engaging in artistic, ceremonial and other cultural activities.

the vicinity of the proposal.

The Environmental Protection Authority provided advice and recommendations on the Wheatstone proposal in EPA Report 1404 (released 15 June 2011). The EPA recommended conditional environmental approval of the project but noted the proposal involved significant greenhouse gas emissions.

Following state approval, Federal Environment Minister Tony Burke announced Commonwealth environmental approval for the Wheatstone development under the EPBC Act on 22 September 2011.

Conservation Legislation Amendment Act 2011

The Conservation Legislation Amendment Act 2011 (WA) received assent on 13 September 2011. The Act introduces amendments to the Conservation and Land Management Act 1984 (WA) (CALM Act) and the Wildlife Conservation Act 1950 (WA) (Wildlife Conservation Act).

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26 National Environmental Law Review 2011: 3

Implications from the Barangaroo legal challenge by Harshane Kahagalle and Ashleigh Egan

Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33

Barangaroo is a 22ha site located at Millers Point, adjoining the north-western edge of the Sydney central business district. Lend Lease (Millers Point) Pty Ltd is responsible for development on the southern section of the site known as Barangaroo South. The Barangaroo Delivery Authority (BDA) is the proponent for project applications on the Headland Park section of the site.

Proceedings were brought by Australians for Sustainable Development Inc (the applicant). The proceedings sought judicial review of two decisions of the Minister for Planning (the first respondent) to grant approval for the carrying out of two projects at Barangaroo. The first was a major project related to the excavation, remediation and construction of the basement car park on the southern end of the site (where the proponent is Lend Lease) (basement car park approval). The second was another major project which related to early works for the development of Headland Park (where the proponent is the BDA) (early works approval).

The applicant pressed five grounds of challenge. Four of the grounds related to the way in which contamination and remediation issues were dealt with in the approval processes. The final ground of challenge related to a characterisation question concerning the extraction of sandstone at Headland Park.

Various degrees of contamination are present on the Barangaroo site due to its historical uses. The areas the subject of the applications do not include the declared area that was principally the site of a former gasworks. To deal with the remediation of the site, an overarching Remediation Action Plan (RAP) was prepared for the whole of the Barangaroo site and a site specific RAP was prepared for the basement car park site. At the time of the Early Works Approval no RAP was finalised for the Headland Park site.

Ground 2: failure to comply with cl 17(1)(c) of State Environmental Planning Policy no 55 - remediation of land

The applicant alleged that the proponents were intending to carry out work pursuant to the project approvals in breach of cl 17(1)(c) of State Environmental Planning Policy (SEPP) 55. This ground was rendered ineffective due to a legislative amendment to SEPP 55, which meant cl 17 did not apply to the two approvals the subject of the proceedings. This amendment occurred after the hearing but prior to judgment. Biscoe J stated:

The applicant would have succeeded in the proceedings on the basis of Ground 2 but for the 2011 amendment.

Therefore, for the purposes of costs, his honour continued to set out the reasons why he would have upheld Ground 2 but for the amendment.

Cl 17(1)(c) provides:

17 Guidelines and notices: all remediation work

(1) All remediation work must, in addition to complying with any requirement under the Act or any other law, be carried out in accordance with:

…

(c) in the case of a category 1 remediation work—a plan of remediation, as approved by the consent

NEW SOUTH WALES

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authority, prepared in accordance with the contaminated land planning guidelines.

Category 1 remediation work is defined cl 9 as follows:

9 Category 1 remediation work: work needing consent

For the purposes of this Policy, a category 1 remediation work is a remediation work (not being a work to which cl 14 (b) applies) that is:

…

(d) development for which another State environmental planning policy or a regional environmental plan requires development consent…

The applicant submitted that cl 9(d) applied to the project applications under Part 3A. The applicant also submitted that the RAPs did not comply with the SEPP 55 guidelines (as informed by the consultants guidelines) and therefore did not comply with cl 17(1)(c).

The respondents attempted to refute this submission on the following grounds, none of which Biscoe J accepted:

§ That SEPP 55 does not apply to Part 3A project approvals because the SEPP uses Part 4 language and words have the same meaning as they have in the Act, unless a contrary intention appears. For example in cl 9(d) the words ‘development consent’ are used. Biscoe J held that SEPP 55 provisions are not inapplicable merely because they use Part 4 language.

§ That the work is not ‘category 1 remediation work’ because cl 9(d) refers to development for which another SEPP requires ‘development consent’ whereas the relevant projects required project approval under Part 3A. Biscoe J found that the proposed remediation works were category 1 remediation works notwithstanding the use of Part 4 language.

§ On the assumption that cl 17(1)(c) applied, that it had nevertheless been satisfied by the overarching RAP and the site specific RAP for the basement car park. Biscoe J held that key elements of the RAP were missing; in particular Site Specific Target Criteria (SSTC) that would define the acceptable level of contamination.

Biscoe J stated:

The analogy of weevils in breakfast cereal is suggested. If their unwelcome presence is inevitable, cereal eaters would agree that maximum permissible weevil level criteria must be prescribed.

Consequently Biscoe J held:

in order for a RAP to be ‘prepared in accordance with’ the SEPP 55 Guidelines (as informed by the Consultants Guidelines), as required by cl 17(1)(c) of SEPP 55, it should incorporate a SSTC in order to define the acceptable level of contamination. It would then have to be approved by the Minister in order to comply with cl 17(1)(c).

Ground 3: cl 7(1)(b) and (c) of SEPP 55

The applicant submitted that the Minister could not have been reasonably satisfied as to the subject matter of cl 7(1)(b) and (c) or erred in law, misdirected himself, asked the wrong question or failed to consider what he was required to consider because there was no finalised RAP in place and the Minister, in effect, delegated satisfaction to an auditor (as there was no condition of approval requiring the site auditor approved RAP to be approved by the Minister).

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Cl 7 provides:

7 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

The respondents submitted that on the proper construction of s 75R(2) of the EP&A Act, SEPPs do not apply at the approval stage of a Part 3A project and therefore cl 7 was inapplicable to the validity of the project approvals. This submission relied upon the findings of Preston CJ in Rivers SOS Inc v Minister for Planning (2009) 178 LGERA (Rivers SOS)*.

Biscoe J held that, on reflection, it was unnecessary in Hill Top to go so far as to say that SEPPs apply at the approval stage and, to that extent, Rivers prevails over Hill Top. Consequently, Biscoe J held that cl7 was irrelevant to the validity of the project approval and rejected the appeal ground.

Ground 5 and 6: failure to consider ESD principles as an element of the public interest and failure to make enquiries

Ground 5 related to the information before the Minister in relation to the contamination on the site and the Minister’s requirements to consider the principles of ESD as an element of the public interest. Biscoe J held that the Minister was not in breach of his obligation to consider ESD as the material before the Minister contained an extensive analysis about the presence of contamination.

Ground 6 related to the fact that even if the Minister did consider ESD principles, then, in the context of this case, the Minister was also under a duty to make further enquiries into the adequacy of the documents before him in addressing the contamination on the site.

In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 the High court held that

it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

Biscoe J applied this reasoning and held that the applicant had not identified such a fact. Therefore, the principles referred to in SZIAI were not enlivened.

Ground 1: impermissible development as part of the early works project

The applicant challenged the validity of the Early Works Project approval on the basis that the proposed excavation of 60 000m3 of sandstone on the Headland Park section of the site (for re-use elsewhere on Headland Park) constituted an independent use and was for a purpose that was prohibited under the Major Development SEPP, namely, ‘extractive industries’.

* Rivers SOS did not follow the judgment of Biscoe J in Hill Top Residents Action Group Inc v Minister for Planning (2009) 171 LGERA 247 (HillTop) on this same point.

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Biscoe J held that the reason for extracting the sandstone was to enable the creation of Headland Park. Thus the use of the land for the extraction of sandstone was not a separate and independent use from the use of the land for the purpose of a recreation area.

Accordingly, all the grounds of challenge were unsuccessful and the proceedings were dismissed.

Lessons from a planning perspective

The lessons from this case from a planning perspective include that:

§ SEPP 55 applies to Part 3A projects even though the SEPP uses Part 4 language

§ SEPPs do not apply at the approval stage of a Part 3A project

§ proponents need to be prepared to adhere very closely to SEPP 55 requirements and the content of relevant Guidelines

§ proponents should be prepared to deal with potential ESD grounds of challenge

§ proponents need to be mindful of characterisation related grounds of challenge.

Planning agreements and major developments Dr Nicholas Brunton

Minister for Planning again thwarted: Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106

Background

On the last day of 2010 as most of us were preparing for New Year festivities, the then Minister for Planning, the Hon Tony Kelly MP, gazetted an amendment of the State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP) to rezone 1 702 hectares of land at Huntlee in the lower Hunter Valley. The owner of the site (and the second respondent in this case), Huntlee Pty Ltd (Huntlee), planned to carry out a 15 stage project involving the construction of about 7 200 residential dwellings on the site.

Sweetwater Action Group Inc (Sweetwater) objected to this proposal. Assisted by the Environment Defender’s Office and senior counsel, they commenced Class 4 proceedings in the Land and Environment Court arguing that the amendment to the Major Development SEPP was invalid, principally because the Minister had failed to follow the process required by SEPP 55 – Remediation of Land (SEPP 55).

This was not the first time Sweetwater had challenged the Government’s approach to this site. In October 2009, on the back of the success of the Gwandalan Summerland Point Action Group case against the Minister involving a land swap arrangement for development at Catherine Hill Bay (made infamous by the court’s description of the swap as a ‘land bribe’), an earlier amendment to the Major Development SEPP (No 35) was, by agreement, declared void and of no effect. This led to Huntlee and the Minister extinguishing an earlier deed and memorandum of understanding which were on the same broad terms as that which the court found so objectionable in the Catherine Hill Bay case.

Shortly after that debacle, Huntlee wrote to the Director-General of the Department of Planning seeking a declaration of the site as being state significant pursuant to the Major Development SEPP. The Department wrote a briefing note to the Minister recommending that he agree to investigate the declaration of the site. The Minister agreed. The Department then asked Huntlee to prepare a State Significant Site Study (SSS Study) for a rezoning in accordance with the requirements of the director-general. This was done and placed on public exhibition from 29 September – 17 November 2010.

In August 2010, Huntlee offered to enter into a voluntary planning agreement (VPA) with the Minister and provided a draft VPA for his consideration. This VPA was in the context of the proposed rezoning and several project applications under Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act). The terms of the VPA were settled

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and the draft placed on public exhibition. Thereafter the department provided the Minister with a briefing note regarding the VPA. The briefing note described the proposed dedication of 5 612ha of environmentally significant land and various cash contributions as set out in the VPA. The Minister was provided with further briefing notes in December 2010 in which it was stated ‘there is remediation on certain areas of the Site that needs to occur before residential development can be placed on the site’ because of former mining and landfill operations.

The briefing note included statements about the department’s response to various submissions concerning the contamination issues. It said that the department was satisfied that appropriate remediation could be carried out prior to any development of the land for urban purposes, and that further consideration would occur as part of future development assessment. It noted that ‘Under SEPP 55 – Remediation of Land, contamination and remediation of contaminated land must be considered in regards to a rezoning proposal. The planning authority, in this case the Minister, has considered whether the land is contaminated and is satisfied that land will be suitable for mixed use development (including residential and recreational) purposes after remediation has been carried out.’

The briefing note further recommended the Minister recommend the making of the SEPP amendment as proposed to the Governor. The Minister did not have before him a copy of the SSS Study or the attachments to that study. The Minister then recommended to the Governor that the amendment be made, which was duly done just as your champagne corks began to pop.

The challenge

Sweetwater argued this process was wrong because the Minister failed to comply with cl 6(1)(b) and (c) and cl 6(2) of SEPP 55. Clause 6 is reproduced at the end of this note. In short, these clauses require the relevant ‘planning authority’ to be satisfied of certain matters in relation to contamination before including land in a zone that would change the use of land. These include (among others) that the land is suitable in its contaminated state (or will be suitable after remediation) for all the purposes for which land in the zone concerned is permitted to be used; where remediation is required, that the land will be remediated before the land is used for the relevant purpose; and before including land identified in a particular specified zone; and the planning authority has obtained and regarded a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. Sweetwater said that the Minister could not be so satisfied because of the paucity of material before him when he made his decisions. The Minister threw up various defences.

The issues that had to be decided included:

§ whether the SEPP 55 and the Major Development SEPP were inconsistent

§ whether the Minister’s recommendation to the Governor to make a State environmental planning policy could be legally reviewed

§ whether the Minister was a ‘planning authority’ under cl 6 of SEPP 55 and thus whether cl 6 of SEPP 55 applied to the Minister

§ whether the Minister failed to comply with cl 6 and if so whether that meant the Minister's recommendation was invalid

§ whether the planning agreement failed to comply with s 93F(3)(g) of the EP&A Act and was therefore invalid

§ whether the Minister, who must have assumed that the planning agreement complied with s 93F(3)(g) of the EP&A Act, thereby took into account an irrelevant consideration or whether there was jurisdictional error

§ whether there was a reasonable apprehension of bias by the Minister in the form of predetermination about whether to recommend that the SEPP amendment be made.

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The decision

The court made some important findings on how SEPP 55 and the Major Development SEPP operate. The respondents said that SEPP 55 was inconsistent with cl 8 of the Major Development SEPP and thus did not apply at all. However, the court did not agree and found that SEPP 55 and the Major Development SEPP were not inconsistent but gave rise to harmonious goals. The specific and mandatory provisions of cl 6 of SEPP 55 required consideration of contamination and remediation in zoning and rezoning proposals. The general provisions of the Major Development SEPP empowered the Minister, in the Minister’s discretion, to require a study to assist the Minister when determining a proposal for a State Significant Site declaration. They operated in different spheres and, even if they did not, both could be obeyed. Thus SEPP 55 applied.

The respondents then argued that cl 6 of SEPP 55 did not apply to the Minister because it is the director general who prepares amendments with the assistance of the department and the Governor who makes them. Thus the Minister was not a ‘planning authority’. This was an odd argument for the Minister to make, given the contents of the briefing note and the role of the Minister. The court did not find it convincing at all. The court found that the Minister was responsible for preparing SEPPs for a range of reasons, the most significant being that the function of making a recommendation to the government is part of the preparing of a SEPP. This is not merely an ancillary or incidental role, it is centrally important to the process. This ‘preparation’ covers all aspects of the plan making process up to the ‘making’ of the plan by the Governor, including investigations, drafting, considering and recommending.

As cl 6 applied, the court had to then decide whether the Minister was satisfied that the contaminated land, if remediated, would be suitable for all the purposes for which it was to be used and would be remediated beforehand. This required a ‘genuine satisfaction based on a review of the relevant materials’. If the Minister was not or could not be satisfied, then that indicated there is no power to make the decision. This is a question that the court could decide (called a jurisdictional fact). Unhappily for the respondents, the court found that the Minister never had the necessary documents before him in order to be able to be satisfied. Importantly, the court found that a department briefing note may be a ‘report’ referred to in cl 6(2) of SEPP 55 if it specifies the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. However, the relevant findings in this matter were contained in the SSS Study which was not summarised in the material nor given to the Minister. Consequently, the Minister failed to comply with the requirements of cl 6(2).

A question also arose about the validity of the VPA because it did not contain security by way of a bond, bank guarantee or other measures. The respondent said that the requirement for the VPA to be registered on title and that a caveat could be lodged meant that no such additional security was necessary. The court found that this did not comply with s 93F(3)(g) of the EP&A Act. This required additional, independent and enforceable assurance that the developer’s promises under the agreement would be honoured. Thus to the extent to which the Minister relied on the VPA to recommend the making of the SEPP, it was an irrelevant factor for him to consider. As he did consider the VPA, this was an additional reason that the amendment to the Major Development SEPP was invalid.

The only joy out the case for the Minister was a finding that there was no reasonable apprehension of bias in the form of any predetermination of the decision he made. A government policy which identified strategic planning opportunities in particular areas does not necessarily give rise to a reasonable apprehension of bias in the form of predetermination. The court also found that the briefing note and other documents relied upon would not cause a person to think that the Minister may have made the decision to recommend the making of the SEPP amendments other than on the factual and legal merits.

Lessons

This case again illustrates the inherent difficulties in getting projects through the planning process. Proponents rely on government authorities and local councils to comply with the legislation. Surprisingly often, the courts find they do not. This was another example where practices within the Department of Planning were found wanting. Often these only

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come to light in litigation. Unless they are tested, practices develop and if left unchallenged become the assumed (legally correct) way of doing things.

As a result of this case, we expect more detailed documents will have to be placed before the Minister with more detailed summaries and descriptions so the Minister can duly appreciate all the key issues before making decisions. Template VPAs will be modified to ensure that in each and every case, there are detailed provisions on security. In some cases, such as when VPAs only require monetary contributions, this will mean that payments are made on the date of the making of a SEPP or grant of development consent.

Proponents will have to continue to carefully monitor the procedural steps taken by consent authorities and other approval bodies to ensure strict compliance with any prescriptive requirements of the legislation.

SEPP 55 – Remediation of Land

6 Contamination and remediation to be considered in zoning or rezoning proposal

(1) In preparing an environmental planning instrument, a planning authority is not to include in a particular zone (within the meaning of the instrument) any land specified in sub-cl (4) if the inclusion of the land in that zone would permit a change of use of the land, unless:

(a) the planning authority has considered whether the land is contaminated, and

(b) if the land is contaminated, the planning authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and

(c) if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning authority is satisfied that the land will be so remediated before the land is used for that purpose.

Note. In order to satisfy itself as to paragraph (c), the planning authority may need to include certain provisions in the environmental planning instrument.

(2) Before including land of a class identified in sub-cl (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

(3) If a person has requested the planning authority to include land of a class identified in sub-cl (4) in a particular zone, the planning authority may require the person to furnish the report referred to in sub-cl (2).

(4) The following classes of land are identified for the purposes of this clause:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which

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there is no knowledge (or incomplete knowledge).

(5) In this clause, planning authority has the same meaning as it has in s 145A of the Act.

Note. In order to satisfy itself as to paragraph (c), the planning authority may need to include certain provisions in the environmental planning instrument.

(2) Before including land of a class identified in subclause (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

(3) If a person has requested the planning authority to include land of a class identified in subclause (4) in a particular zone, the planning authority may require the person to furnish the report referred to in subclause (2).

(4) The following classes of land are identified for the purposes of this clause:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

(5) In this clause, planning authority has the same meaning as it has in s 145A of the Act.

Pittwater Council v. Minister for Planning [2011] NSWLEC 162 by Dr Nicholas Brunton

Pittwater Council challenged the approval of a concept plan and project approval issued under Part 3A by the Minister for Planning’s delegate, the Planning Assessment Commission (PAC), for a large multi-unit housing development. The challenge was brought on four administrative law grounds:

§ the approvals were uncertain in that they required amended plans to be submitted and approved by the director-general

§ the PAC decision to grant the approvals was made without any probative evidence to support it

§ a failure to take into account a mandatory relevant consideration

§ the decision to grant the approvals was unreasonable in a Wednesbury sense.

The court dismissed the summons and the case reveals the difficulties in successfully challenging an administrative decision in circumstances where the decision-maker has broad discretions.

The approvals were not uncertain

The PAC is authorised when granting approvals to make ‘such modifications of the project’ as it determines (s 75J(4)

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Environmental Planning and Assessment Act 1979 NSW (EP&A Act)).

The approvals contained conditions requiring the preparation of amended plans which would decrease the number of dwellings, the height of buildings, their positioning and make other design modifications. The council alleged this meant the approvals were uncertain or amounted to an impermissible delegation to the director-general of the PAC’s function.

The court found that the discretion on the director-general was confined to particular heights and dimensions. For this reason, there was sufficient certainty in the conditions, even though they allowed some flexibility which is acceptable for large projects such as those determined under Part 3A of the EP&A Act.

There was evidence before the PAC to support its decision

The court found that in imposing conditions on the approvals relating to density, the PAC either placed reliance on the Metropolitan Strategy which is a high-level policy document, or had no probative evidence to support its decision (Bruce v. Cole (1980) 45 NSWLR 163).

The court noted that under Part 3A of the EP&A Act the PAC:

• does not have to make a finding as to any fact or be satisfied as to any matter before approving an application

• had broad discretion in weighing up the planning merits of the application provided that it is exercised within the scope and purpose of the Act.

The court considered there was nothing in the Act forbidding reliance on the Metropolitan Strategy and because it had broad discretion in carrying out its functions, the ground was unsuccessful.

No failure to take into account a relevant consideration

Under Part 3A of the EP&A Act, upon receipt of an application, the director-general issues Environmental Assessment Requirements (DGEAR). The applicant must then prepare an environmental assessment addressing, at a minimum, the DGEARs. The environmental assessment only goes on public exhibition upon the director-general being satisfied that the assessment adequately addresses the DGEARs. After exhibition, the director-general prepares a report to the consent authority which includes a copy of the assessment, any assessment undertaken by the director-general and a statement as to compliance with the DGEARs.

The DGEARs in this case required specific consideration of local planning instrument requirements and prohibitions relating to density and isolation of sites. The council argued that the matters in the DGEARs are a mandatory consideration and the director-general’s report which must be provided to the PAC inadequately dealt with these aspects of the DGEARs such that they can’t have been considered by the PAC.

Despite any apparent findings in the director-general’s report, the court noted that all of the documents before the PAC must be considered and it was clear the PAC had considered these issues. Accordingly, the ground must fail.

The court seems to have left open the proposition that the DGEARs are mandatory considerations subject to any specific statutory provision which identifies certain matters which are not mandatory (para 142).

The PAC’s determination was not unreasonable

The council and the court were in agreement that the hurdle to clear in this ground is high, based on the principles in Wednesbury. The four bases for this ground were:

• the density substantially exceeded the local planning instrument control

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Blue Mountains Conservation Society v Delta Electricity by Elaine Johnson

More than two years after filing its case against state-owned corporation Delta Electricity for breaches of water pollution laws, the Blue Mountains Conservation Society (BMCS) settled its public interest environmental claim out of court on 11 October 2011. The mediated settlement marked the end of a long-running dispute between the parties over the ongoing pollution of the Coxs River from Delta’s Wallerawang power station. The case highlights significant gaps and deficiencies in the administration of pollution laws in NSW, raising serious questions about the role of the government in the enforcement of its own pollution laws.

The pollution

The Coxs River is part of Sydney’s drinking water catchment, supplying water to Warragamba Dam, Sydney’s major water supply reservoir. The BMCS is the peak environmental group in the Blue Mountains region, through which the Coxs River flows.

In early 2007, BMCS first became aware that a range of potentially harmful substances were being discharged into the Coxs River from Delta’s power plant, as a result of water tests carried out through the community-based program, Streamwatch. An independent report prepared by water quality expert, Dr Ian Wright, later confirmed that the waste water contained chemical toxicants and other substances, being salt, copper, zinc, aluminium, boron, fluoride and arsenic.

The BMCS brought the matter to the attention of the Sydney Catchment Authority, the Minister for Environment, and the (then) Department of Environment and Climate Change (DECC). In April 2008, DECC advised that it did not intend to prosecute Delta for water pollution offences. In June 2009, BMCS filed civil enforcement proceedings in the Land and Environment Court of New South Wales (LEC) for breach of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).1

The proceedings

The case was brought under the open standing provisions of s 252 of the POEO Act, which allow any person to bring proceedings in the LEC for orders to remedy or restrain a breach of the Act. The breach that BMCS alleged was of s 120 of the POEO Act, which makes it an offence to pollute waters. Section 122 provides a defence, where the pollution is authorised by an environment protection licence, and that licence has not been contravened.

BMCS alleged that the waste water from Wallerawang power station being discharged into the Coxs River contained salt, copper, zinc, aluminium, boron, fluoride and arsenic, none of which were authorised under Delta’s licence. It was argued 1 Land and Environment Court Proceedings No. 40358 of 2009.

• the height and density approved was at the outer limit of or exceeded what might be justified under the Metropolitan Strategy

• the decision was made in the absence of adequate strategic studies

• the approvals required the preparation of amended plans which required elaborate design changes.

The court relied on the fact that the PAC is a specialist planning body whose discretion to approve projects is largely unconstrained. The court noted that although it might be good practice to have first undertaken a strategic review of density requirements, a failure to do so does not make the decision unreasonable in the legal sense.

For the reasons given earlier in relation to design changes and the Metropolitan Strategy, it was considered the determination wasn't unreasonable, nor was it irrational such that there was a deficiency in the process of arriving at the determination.

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that the discharge constituted water pollution within the meaning of the POEO Act.2 By way of relief, BMCS sought a declaration of the past pollution, an order to stop the ongoing pollution, and such mitigation orders as the Court saw fit.

Interlocutory matters

In September 2009, BMCS was successful in obtaining a maximum costs order in the amount of $20 0003 which it was then required to post as security for costs.4 The maximum costs order was the first such order made in the LEC,5 and was awarded on grounds which included that the proceedings were brought in the public interest, and that the litigation was a test case. In particular, the case raised questions about the construction of environment protection licences, and whether conditions requiring the monitoring of pollutants constituted an implied authority to pollute.6

Without this upfront costs order, BMCS would not have been able to continue the litigation. Delta’s appeal against the maximum costs order was dismissed by the Court of Appeal on 18 October 2010.7 The Court of Appeal also refused Delta’s application for leave to appeal the security for costs order.8

Once the matter returned to the LEC, Delta filed a dismissal motion. Delta’s principal submission was that s 252 of the POEO Act does not permit civil proceedings to remedy or restrain an alleged contravention of s 120 of the Act. Delta argued that s 120 is framed in terms of a criminal offence only, and does not impose a duty not to pollute, therefore there can be no ‘breach of’ the Act within the meaning of s 252. This argument was rejected by Justice Pepper on 26 August 2011.9

The mediated settlement

After five separate judgments on interlocutory matters in the LEC and NSW Court of Appeal, the parties agreed to try to resolve the issues through voluntary mediation. On 11 October 2011, BMCS agreed to discontinue the proceedings subject to the following conditions:

1. Delta admits that it has discharged waste waters containing the pollutants between May 2007 and August 2011, and that it has polluted waters within the meaning of s 120 of the POEO Act, without authorisation under its licence, except in relation to salt.10

2. Delta submits an application to the Office of Environment and Heritage (OEH) by 25 October 2011 to vary its licence to specify maximum concentration levels for copper, zinc, aluminium, boron, fluoride, arsenic, salt and nickel.

3. Delta submits an application to the OEH by 25 October 2011 to include a condition in its licence requiring the implementation of a program of works for the full treatment of cooling tower blow down water from Wallerawang power station pursuant to a pollution reduction program.

Delta has agreed that it will do the works necessary to stop the pollution, and that in the interim, it will apply for limits to be set on those pollutants. What those limits will be is a matter to be determined by the OEH, and this process should include input from the community.

2 “Water pollution or pollution of waters” is defined in some detail in the Dictionary to the POEO Act.3 Blue Mountains Conservation Society Inc v Delta Electricity (2009) 170 LGERA 1.4 Blue Mountains Conservation Society Inc v Delta Electricity (No 2) [2009] NSWLEC 193.5 See also Olofsson v Minister for Primary Industries [2011] NSWLEC 137 in which an individual was awarded a maximum costs order on grounds which also included that the matter was a test case, and brought in the public interest and not for personal gain.6 In July 2009, Delta’s environment protection licence was varied to require monitoring of the pollutants complained of by BMCS.7 Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424.8 Delta Electricity v Blue Mountains Conservation Society Inc (security for costs) [2010] NSWCA 264.

9 Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145.10 Under its licence, Delta pays a load-based fee for the discharge of salt.

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The admission from Delta is important in this case. It is an acknowledgment that unless there is express authorisation under an environment protection licence to discharge pollutants, any such discharge is unlawful, even where the company is required to monitor the discharge of those pollutants. This has implications for many other licences in NSW that may have similar conditions.

Concluding comments

Among other things, this case highlights significant gaps and deficiencies in the administration of pollution laws in NSW.

The OEH is responsible for administering the POEO Act, and investigating, and prosecuting where appropriate, breaches of that Act. Yet no enforcement action was taken by OEH, even when Delta’s own monitoring results submitted to the OEH demonstrated ongoing pollution. When it is left up to a volunteer community group like BMCS to take on a state-owned corporation for breaches of pollution laws, one has to ask, what is the role of the government regulator in this case?

To Delta’s credit, it has now acknowledged the pollution, and agreed to apply to the OEH to have conditions imposed on its licence. But again, the question needs to be asked, is there something wrong with the NSW licensing system, when it is up to the polluter to ask the regulator to stop it from polluting?

SOUTH AUSTRALIA Davies v Minister for Urban Development and Planning and Anor [2011] SASC 87 by Nicole Harris

The plaintiffs (the Davies) in these proceedings sought various declarations, including that an amendment of the Development Plan of the Rural City of Murray Bridge made on 20 July 2000 was invalid. The amendment had extended the boundaries of the ‘flood zone’ over the Davies’ land (and over land leased by thousands of other people).

The amendment had been made in accordance with s 29(2) of the Development Act 1993 (SA), which provides that the Minister may amend a Development Plan in order to make a change of form (not of substance) in the plan. The Davies argued that the amendment was substantive and should have been made in accordance with ‘usual process’ including the preparation of a Plan Amendment Report (now known as Development Plan Amendments) and public consultation.

The court examined the history and nature of declaratory relief and matters relevant to the exercise of its discretion, including the passage of time since the amendment (almost 11 years), the prejudice to the Davies resulting from the amendment and the prejudice to the thousands of lessees that would be affected if the amendment was declared to be invalid.

The court concluded that the effect of the amendment was limited to substituting a number of maps in the Development Plan and to adjust the mapping references accordingly. On that basis, the court found that the amendment had been validly made pursuant to s 29(2). The court granted summary judgment in favour of the Minister and the Development Assessment Commission (DAC) on the basis that it was satisfied that there was no reasonable basis for the Davies’ claim.

Reachy Pty Ltd v Greater Geelong CC [2011] VCAT 1202 (27 June 2011) by Barnaby McIlrath

The Victorian Civil and Administrative Tribunal (VCAT) set aside a refusal by the Greater Geelong City Council of a proposed 82 lot subdivision on the grounds of odour concerns from a nearby abattoir.

The decision is worth noting because of its technical analysis of where the relevant buffer distance should be measured

VICTORIA

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from. The applicant and the Environment Protection Authority Victoria (EPA) were at odds on this issue.

The parties agreed that the abbatoir’s waste water treatment plant (WWTP) was the relevant source of odour emissions from which the buffer should be measured, as opposed to the stock holding yards and other operations. If the centre of the WWTP was selected, 32 of the proposed lots would be within the 500m buffer distance called for by the EPA’s Guideline AQ 2/86 on Buffer Distances from Industrial Residual Air Emissions.

The buffer had in fact been measured from a ‘sludge filter press’ located near the north-west corner of the WWTP. The effect of this was that all of the proposed lots were then outside of the buffer.

The VCAT was critical of the rezoning of land for residential purposes within 500m of an abattoir. It made comments regarding the need to make provision for appropriate buffers during the strategic planning process, as policy guidance becomes difficult to apply after land has been rezoned for residential purposes.

Community Villages Australia Pty Ltd v Mornington Peninsula SC [2011] VCAT 1667 (31 August 2011)

In Lynbrook Village Developments Pty Ltd v Casey CC [2011] VCAT 1380, the VCAT recently considered the statutory relationship between s 52(4) of the Aboriginal Heritage Act 2006 (AHA) and cl 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

In Lynbrook Village an application under s 79 of the Planning and Environment Act 1987 was found to be premature because the 60 day period before the Application could be made had not begun to run due to the operation of s 52(4) of the AHA. There, the responsible authority had not yet received a copy of the approved cultural heritage management plan (CHMP) and could not lawfully approve the development. The tribunal considered whether it had jurisdiction under cl 62 to disregard the non-compliance and to determine the Application.

In Lynbrook Village, the VCAT ruled that it could not rely on cl 62 of Schedule 1 to the VCAT Act to override noncompliance with s 52(4) of the AHA so as to confer jurisdiction to entertain an appeal under s 79 of the Planning and Environment Act 1987.

In Community Villages, the facts were distinguished from those in Lynbrook Village because the council had received a copy of an approved cultural heritage management plan before the application was made. However, the prescribed 60 day period for making a decision on the permit application had not elapsed. Only 34 days had passed after the deemed commencement period, which does not start until the CHMP has been approved. The application for review was therefore premature. The VCAT considered whether jurisdiction could be conferred under cl 62 by disregarding the failure to comply with the s 79 requirements.

The tribunal disagreed with the approach in Lynbrook Village. The tribunal ruled that cl 62 of Schedule 1 to the VCAT act is not contrary to s 52(4) of the AHA and the tribunal has jurisdiction to disregard a non-compliance with a planning enactment, including the passing of a deemed period under s 52(4) before an application may be made under s 79. The VCAT ruled that it was for it to determine whether it is in the interests of justice to disregard the non-compliance and to determine the application.

A Planning Panel has recommended approval of SITA Australia’s proposal for a soil treatment facility at its Lyndhurst Landfill. But in a partial victory for residents groups it was approved on the proviso that the permit expire after the landfill closes to the receipt of waste.

The Panel report for Amendment C125 to the Greater Dandenong Planning Scheme can be downloaded at: http://planningschemes.dpcd.vic.gov.au/shared/ats.nsf/webviewdisplay?openform

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39National Environmental Law Review 2011: 3

HEAVIER PENALTIES NEEDED FOR FORESTRY OFFENCES

by Natasha Hammond-Deakin* and Evan B Brandes**

Introduction

In June 2011 in the ‘Smoky Mouse case’,1 the Land and Environment Court of NSW ordered Forests NSW2 to pay the NSW Office of Environment and Heritage $5 600 for project work, plus $19 000 legal costs, for unlawfully burning the habitat of the endangered Smoky Mouse (Pseudomys fumeus) in 2009 within an exclusion zone in the Nullica State Forest, near Eden. The burning constituted a breach of a condition of a threatened species licence under the Threatened Species Conservation Act 1995 (the TSCA) and an offence against the National Parks and Wildlife Act 1974 (the NPWA). The Smoky Mouse was listed as endangered under both the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Threatened Species Conservation Act 1995 (NSW) (TSC Act) at the time of the offence. In September 2010 the Smoky Mouse was listed as critically endangered under the TSC Act for reasons not related to the offence.3

Conservationists, who have lobbied for many years for an end to the logging of native forests, welcomed the prosecution, but many were disappointed by the penalty payable. Forests NSW had been prosecuted eight times for pollution-related offences but many hundreds of breaches of forestry regulations have been recorded by conservationists over the decade since NSW signed four Regional Forestry Agreements (RFAs) with the Commonwealth.4

This article examines the determination by the NSW Land and Environment Court in the Smoky Mouse case, and compares the penalties and fines for breaches of similar offences in Australia and the United States (US). It demonstrates that penalties under the National Parks and Wildlife Act 1974 (NSW) (NPW Act) are insignificant when compared with those under other Australian environmental legislation. The same is true when compared with penalties for offences against a threatened species and its habitat in the US. It argues from a comparative standpoint that heavier fines for breaches of the NPW Act should be imposed on offenders, and that legislative change is required to increase the maximum penalties for breaches of the law.

NSW legislative regime

Forests NSW conducts forestry operations in the Eden region under a NSW Forest Agreement and Integrated Forest Operations Approval (IFOA) made under the Forestry and National Parks Estate Act 1998 (NSW) (the FNPEA). That Act establishes the framework for forest policy and logging operations in New South Wales, for Ministerial agreements and a system of integrated approvals for future forestry operations (IFOAs), and for transfers of land to the national park estate or Aboriginal ownership. There are currently four NSW Forest Agreements covering New South Wales, for the Eden,

* Natasha Hammond-Deakin is a solicitor with the Environmental Defender’s Office (NSW). She holds a Masters of Environmental Law from the University of Sydney. Natasha’s practice includes advising on and running litigation in respect of forestry and threatened species laws and she also writes and presents on these topics. Natasha is the current author of the forests chapter in M Kirby AC CMG (ed in chief), Laws of Australia (LawBookCo online).** Evan Barett Brandes is an intern at the Environmental Defender’s Office. Evan is admitted to practice in two United States jurisdictions (the State of New York and the Commonwealth of Massachusetts). He has a LLM from the University of Miami Law School, a JD and a Masters of Studies in Environmental Law from Vermont Law School and a BA in Environmental Sciences and Policy from Hampshire College. Having practiced land use and environmental law in the US, Evan has a particular interest in the comparative aspects of Australian and US environmental laws and in analysing how Australia’s environmental laws can be amended to achieve international best-practices.1 Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales (2011) NSWLEC 102.2 the Forestry Commission of New South Wales.3 Director-General, Department of Environment, Climate Change and Water (2011) NSWLEC 102 [16]4 N Hammond-Deakin and S Higginson, If a Tree Falls: Compliance Failures in the Public Forests of New South Wales, (Environmental Defender’s Office (NSW) Ltd, 2011).

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Upper North East and Lower North East regions, each created in 1999, and the Southern Region NSW Forest Agreement created in 2002.5

Under the FNPEA, regional forest assessments are required to be carried out by or on behalf of the Natural Resources Commission unless the parties to the agreement accept other assessments as relevant.6 Assessments profile an area’s economic, social, environmental and heritage values.7

The FNPEA makes some provision for public participation in the making of forest agreements other than those for Eden, the Lower North East and the Upper North East regions,8 and for participation when agreements are amended or revoked.9 In practice however, New South Wales governments have signed numerous agreements with little prior consultation or negotiations taking place amongst relevant stakeholders. Additionally, commentators suggest that the timber industry has been favoured in the agreements.10 In 2001 the then Federal Minister for Forestry and Conservation is said to have described the Upper North East Forest Agreement as a ‘strong result for the NSW timber industry’.11

As noted above, the FNPEA provides for IFOAs. IFOAs describe forestry operations and detail the operating conditions for each of the NSW Forest Agreements. IFOAs integrate the regulatory regimes for environmental planning and assessment for the protection of the environment and threatened species conservation after forestry assessments and other environmental studies have been conducted.12 IFOAs can contains the terms and conditions of licences that could otherwise have been issued under the Protection of Environment Operations Act 1997 (NSW), the TSC Act and the Fisheries Management Act 1994 (NSW).13 Anyone conducting forestry operations under an IFOA is taken to hold a licence under these Acts. IFOA licences can also contain exemptions as if they had been issued under the relevant environmental statutes.

The FNPEA exempts forestry operations in IFOA regions from environmental impact assessment procedures under various parts of the Environmental Planning and Assessment Act 1979 (NSW).14

Section 40 of the FNPEA excludes members of the public who are not relevant government officials from taking legal proceedings to enforce a forestry agreement or IFOA (including a breach of the terms of a licence issued under an IFOR), or for breach of a statutory provision affecting a forestry operation.15 Only a relevant Minister involved in granting the approval of the IFOA or a licence, the Environment Protection Authority or a member of the staff of the Authority, or a government agency or any government official engaged in the execution or administration of a relevant Act, can bring civil proceedings in the Land and Environment Court to remedy or restrain a breach of a condition of an IFOA16 or a licence set out in an IFOA.17

Under the FNPEA, Ministers and officers of the New South Wales Government are responsible for enforcing forestry rules and regulations. The exclusion of third party enforcement proceedings is a significant barrier to the proper enforcement of the conditions of IFOAs and environmental protection licences.

5 NSW Government Office of Environment and Heritage, NSW Forest Agreements and IFOAs (2011) <http://www.environment.nsw.gov.au/forestagreements/agreementsIFOAs.htm>.6 Forestry and National Parks Estate Act 1998 (NSW) s 15.7 Jane Tribe, ‘The Law of the Jungles: Regional Forest Agreements’ (1998) 15(2) Environmental and Planning Law Journal 136, 137.8 Forestry and National Parks Estate Act 1998 (NSW) s 17.9 Forestry and National Parks Estate Act 1998 (NSW) s 19.10 Tony Foley, ‘Negotiation Resource Agreements: Lessons from ILUAs’ (2002) 19(4) Environmental and Planning Law Journal 267, 273, quoting D Pugh, ‘Establishing a CARR Reserve System: How Carr Sold out the North-East Forests’.11 Ibid quoting Mr Wilson Tuckey, Press Release 24 April 2001.12 Forestry and National Parks Estate Act 1998 (NSW) s 25.13 Ibid ss 33, 34.14 Ibid s 36.15 Ibid s 40(2)(3).16 Ibid s 32(2).17 Ibid ss 35, 40(3).

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In the Smoky Mouse case, Forests NSW pleaded guilty to an offence under s 175(1)(a) of the NPWA. The offence was in contravention of a condition of the threatened species licence under Part 6 of the TSC Act, which is attached to the Eden IFOA.18 Forests NSW admitted that it carried out bush fire hazard reduction burning in the Nullica State Forest, near Eden, within an exclusion zone established to protect the Smoky Mouse. The burning constituted a breach of condition 5.1(a) of the threatened species licence.19

The court observed that the Smoky Mouse was once widespread in southeastern NSW and in parts of Victoria, but since European settlement, this range has declined to a limited number of sites throughout western, southern and eastern Victoria, southeast New South Wales and the Australian Capital Territory.20 Because the mouse’s population and distribution has been reduced to a critical level, it is considered endangered nationally.21 Additionally, in New South Wales, the Smoky Mouse is now listed as critically endangered under Schedule 1A of the TSC Act.22

The terms of the Eden IFOA commenced in January 2000. The Eden IFOA included conditions that excluded forestry activity within 100 hectares of the Smoky Mouse’s habitat.23 In 2006, the conditions in the Eden IFOA designed to protect the Smoky Mouse were amended to include a prohibition on specified forestry activities, including timber harvesting, road construction and hazard reduction burning (conditions 5.1 and 6.8A) in key Smoky Mouse habitats within the Nullica State Forest. These key Smoky Mouse habitats are ‘Smoky Mouse exclusion zones’.24 In June 2008, the Eden IFOA was amended again to indefinitely exclude identified forest activity from the Smoky Mouse exclusion zones and to give effect to the Smoky Mouse Species Management Plan (‘Smoky Mouse SMP’) which was intended to ensure the ongoing presence of the Smoky Mouse in the relevant areas.25

The Smoky Mouse SMP contained an action item to facilitate a small-scale hazard reduction burn in a Smoky Mouse exclusion zone and an action item to develop a Smoky Mouse fire management plan. Each action item required appropriate planning, comprehensive pre-burn monitoring and extensive long-term research on the impacts of fire on the Smoky Mouse. However, Forests NSW never developed the Smoky Mouse fire management plan, nor were the required approvals to undertake a burn ever granted to Forests NSW.

Condition 5.1 of the threatened species licence attached to the Eden IFOA provides that specified forestry activities, like bush fire hazard reduction work, are prohibited in the exclusion zones.26 On 8 July 2008 Forests NSW approved a Hazard Reduction Burn Plan (‘the burn plan’) for a logged coupe in compartment 717 of the Nullica State Forest.27 The burn plan included a map, and a reference to the Smoky Mouse exclusion zone in the legend. However, no other references to the Smoky Mouse exclusion zone were included in the burn plan. The area of the Smoky Mouse exclusion zone was not clearly delineated because the zone was the same colour as the background colour of the map.28

Due to a wildfire and associated burning activities in late January and early February 2009 within a section adjacent to coupe 717 of Nullica State Forest, the presence of logging slash in the logged coupe of compartment 717 was a concern. As a result, Forests NSW prioritised the area for hazard reduction burning.29 On 19 March 2009 officers of the Department of Environment, Climate Change and Water of NSW (DECCW) and Forests NSW met to discuss the progress of the Smoky Mouse SMP. Both parties agreed that no prescribed burning would occur within the Smoky Mouse exclusion zones until fire management plans had been developed jointly.30

18 Director-General, Department of Environment, Climate Change and Water (2011) NSWLEC 10219 Ibid [4].20 Foundation for Australia’s Most Endangered Species Inc., ‘Endangered Wildlife Support by Fame…’ (2011) <http://www.fame.org.au/endangered_wildlife.html>21 Department of Environment, Climate Change and Water (2011) NSWLEC 102 [15].22 Ibid. See also Threatened Species Conservation Act 1995 (NSW) Sch 1A.23 Department of Environment, Climate Change and Water (2011) NSWLEC 102 [18].24 Ibid [20].25 Ibid [22]–[23].26 Ibid [25].27 Ibid [29]. 28 Ibid [30]29 Ibid [27].30 Ibid [28].

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On 29 April 2009 a hazard reduction burn occurred. Its lead operator was unaware of the presence of the Smoky Mouse exclusion zone31 and measures were not taken to prevent the spread of the burn into that zone. Forests NSW failed to provide information about the exclusion zone to the burn employees. As a result, the low intensity hazard reduction burn continued for two weeks largely unsupervised.32

On 14 May 2009, DECCW officers observed an active fire within the Smoky Mouse exclusion zone in compartment 717 of the Nullica State Forest and advised Forests NSW, after which inspections occurred.33 By 21 May 2009 the fire had burned over 90% of the exclusion zone before extinguishing itself.34

Forests NSW conducted and completed a full investigation and review of its procedures.35 This report concluded that the burn spread into the Smoky Mouse exclusion zone primarily because the burn supervisor failed to identify the existence of the exclusion zone from the burn plan map.36 As a result, Forests NSW employees did not take steps to enforce the boundary of the burn.37 Additionally, the report found that:

§ the burn planning process did not involve consultation with key harvesting and ecology staff

§ the handover of the burn plan from the planner to the burn supervisor did not involve a formal briefing that would highlight potential issues, such as the proximity of an exclusion area

§ at the time the harvest plan for compartment 717 was written, the harvest planners did not routinely include a direction for logging crews to construct a bare earth break along the edge of their operations to ensure that the fire not leave the logged area

§ generally post-logging burns extinguish themselves as they reach the edge of the logged areas due to significant moisture differentials between logged and unlogged areas. However, in the present instance, the differential was not sufficient to achieve this outcome, with the fire taking several days to reach the boundary of coupes 1 and 2.38

The penalties imposed

The offences of allowing the hazard reduction burn to spread into the Smoky Mouse Exclusion zone fall under ss 175, 175A and 175B of the NPWA. The maximum penalty under under s 175 is 200 penalty units in the case of a corporation (or $22 000 in 2011).39

Pepper J stated:

…the penalty for an offence against s 175 of the NPWA is exceedingly low compared to penalties for other environmental offences, particularly given the seriousness with which the community has come to view environmental offences. However, any increase in the penalty is a matter for Parliament and cannot affect the outcome of these proceedings…40

Pepper J reviewed applicable sentencing principles and noted that in environmental matters the court must consider the extent of the harm caused or likely to be caused and the significance of the endangered species that was harmed

31 Ibid [31]–[33]32 Ibid.33 Ibid [34].34 Ibid [38].35 Ibid [42].36 Ibid [43].37 Ibid38 Ibid [44].39 National Parks and Wildlife Act 1974 (NSW) s 175B40 Department of Environment, Climate Change and Water (2011) NSWLEC 102 [64]



or was likely to be harmed by the offence.41 Her honour assessed the environmental harm perpetrated by the Forestry Commission, the foreseeability of the risk of harm, the practical measures taken by Forests NSW to prevent the harm, Forests NSW’s control over the cause of the harm and whether there was any specific intent of Forests NSW to destroy the habitat of the Smoky Mouse. In relation to these matters, Pepper J concluded that:

[h]aving regard to the nature of the offence; the low maximum penalty; the extent of likely harm to the environment; the practical measures able to have been taken to prevent the harm; the failure of the Forestry Commission to control, abate or mitigate the harm; the reasonable foreseeability of harm likely to be caused by the commission of the offence; the extent to which the Forestry Commission, had control over the causes giving rise to the offence, and the absence of any deliberate or commercial motive in committing the offence, I find that the offence committed is of low to moderate objective gravity.42

In considering the appropriate penalty to impose, the court considered the mitigating or aggravating factors specific to Forests NSW.43 In assessing the aggregating factors, the court reviewed the eight prior offences of Forests NSW under environmental legislation which included:

§ the polluting of waters in 1992 resulting from logging operations and road construction in Oakes State Forest near Dorrigo, contrary to s 16 of the Clean Waters Act 1970 (NSW). The offence was proven but no conviction was entered against Forests NSW44

§ its 1995 conviction for three breaches of conditions of pollution control licence in Nullum State Forest, contrary to s 17D of the Pollution Control Act 1970 (NSW). These offences included the failure to construct a road drainage structure properly; the felling of a tree into a filter strip; and the failure to install sediment traps. Forests NSW was fined $25 000 for these offences45

§ its 1996 conviction of three breaches of conditions of Forests NSW’s pollution control licence in Colymea State Forest, contrary to s 17D of the Pollution Control Act 1970 (NSW). These offences included two counts of failing to properly construct gutters of a logging road and placing soil into a filter strip. Forests NSW was fined $30 00046

§ its 2003 conviction of another offence of polluting waters. This offence occurred in Chichester State Forest and involved soil and sediment from a collapsed portion of a dirt road being washed into a watercourse, contrary to s 120 of the Protection of the Environment Operations Act 1997 (NSW). Forests NSW was fined $30 000.47

The DECCW argued that Forests NSW’s prior criminality should be considered an aggravating factor.48 Forests NSW countered that very little weight should be attributed to its prior offences because they were all pollution related, had little similarity to the current offences and the passage of time had rendered the prior convictions stale.49 Pepper J however stated that the number of convictions suggested either a pattern of continuing disobedience towards environmental laws or, at the very least, a cavalier attitude toward compliance with such laws.50 Pepper J concluded Forests NSW had displayed a ‘reckless attitude’ and considered its prior criminality to be an aggravating factor to be taken into account in assessing the penalty.51

Pepper J proposed that the penalty should serve as both general and specific deterrents to others who might commit similar offences against the NPWA and should serve to encourage a corporation such as Forests NSW to adopt preventative

41 Ibid [65] citing Bentley v BGP Properties (2006) NSWLEC 34 [179]; Plath v Hunter Valley Property Management Limit (2010) NSWLEC 264 [14]; Director General, National Parks and Wildlife Service v Wilkinson (2002) NSWLWEC 171[91] and National Parks and Wildlife Act 1974 (NSW) s 194(1)(a) and (b). 42 Department of Environment, Climate Change and Water (2011) NSWLEC 102 [90] (Pepper J).43 Ibid [91] citing Crimes Sentencing Procedure Act 1999 (Cth) s 21A(2), (3).44 Ibid [93].45 Ibid [94].46 Ibid [95].47 Ibid [96].48 Ibid [97].49 Ibid [98].50 Ibid [100].51 Ibid [103].

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procedures to avoid causing harm to the environment in the future.52 Her honour found that the deterrent effect of a fine should ensure that companies doing business near a threatened species habitat do not damage those species, and to ensure that the cost of not protecting threatened species is not absorbed as an ordinary cost of doing business.53 Specifically, given the prior history of the Forest Commission, the court found that there should be a specific deterrence component of the penalty.54

Pepper J concluded that an appropriate fine would be $8 000 discounted by 30% taking into consideration all the mitigating factors and the aggravating factor of Forests NSW, resulting in a total penalty of $5 600.55 At the request of the prosecutor Justice Pepper did not levy the fine but ordered Forests NSW to pay an equivalent amount to the Office of Environment and Heritage, Department of Premier and Cabinet, for the purpose of a specified environmental project, namely, to engage a consultant or contractor to undertake monitoring and analysis of the Smoky Mouse habitat at various sites in the South East Forests National Park, as set out in the Smoky Mouse SMP in the Eden Region starting September 2011 for three years.56 She awarded a separate $19 000 for DECCW’s legal fees.

Comparative penalties for similar offences in NSW

Comparatively, whilst the maximum penalty for breaching a condition of a licence contained in the IFOA is $22 000,57 the maximum penalty for clearing native vegetation or authorising the clearing of native vegetation under the Native Vegetation Act 2003 (NSW), not in accordance with a development consent or a property vegetation plan, is to up to $1 100 000, in addition to a daily penalty of up to $110 000.58 As a result, the maximum penalty for breaching a condition contained in an IFOA is one-fifth the daily amount for clearing native vegetation.

Comparative penalties for similar offences under the EPBC Act

The EPBC Act provides a regime for the protection of eight matters of national environmental significance, including world heritage properties, wetlands of international importance, listed threatened species and ecological communities and migratory species. Actions that have, or are likely to have, a significant impact on a matter of national environmental significance require approval from the Australian Government Minister for Sustainability, Environment, Water, Population and Communities.59A person who takes an action that is likely to have a significant impact on a matter of national environmental significance, without first obtaining approval, can be liable for a civil penalty of up to $550 000 for an individual and $5.5m for a body corporate,60 or for a criminal penalty of seven years imprisonment and/or a penalty of $46 200.61 Therefore, an action such as clearing or otherwise damaging a forest that comprises an ecological community listed under the EPBC Act or provides habitat for a listed threatened or migratory species without the requisite consent is potentially subject to very high penalties.62 In Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753 the first respondent, a family owned primary producer operating on a property known as Acacia Downs, was found to have caused the clearance of at least 170 trees comprising native vegetation and, thereby, took an action likely to have a significant impact on a listed threatened species included in the endangered category, namely the South-eastern

52 Ibid [121] citing Plath v Hunter Valley Property Management Pty Limited (2010) NSWLEC 309 [34]; Bentley v BGP Properties Pty Ltd (2006) NSWLEC 34; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357.53 Ibid [124] citing Bentley [141], [211].54 Ibid [125].55 Ibid [128].56 Ibid [130].57 National Parks and Wildlife Act 1974 (NSW) s. 175, 175A and 175B delineates the penalties for an individual, directors or managers of a corporation, or a corporation58 Native Vegetation Act 2003 (NSW) s 12(b). Maximum Penalties are provided under the Environmental Planning and Assessment Act 1979 (NSW) s 126. 59 Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Part 3, and Chapter 4, Parts 7 and 9.60 Ibid, for example, s 18 in respect of threatened species. 61 Ibid, for example, s 18A(3) in respect of threatened species. 62 Note that forestry activities that are carried out in accordance with a regional forestry agreement are exempt from Commonwealth oversight under the EPBC Act. See EPBC Act s 38.



Red-tailed Black Cockatoo (Cayptorhynchus banksii graptogyne), in contravention of s 18(3) of the EPBC Act. The Court ordered the first respondent to pay the Commonwealth a pecuniary penalty of $220 000 and the Minister’s costs of the application were fixed at $22 500.

Comparative penalties in United States

In the United States the purpose of the Endangered Species Act 197363 is to protect species and the ecosystems upon which they depend.64 In addition to the ability to seek injunctions,65 the Endangered Species Act imposes criminal penalties and civil damages. Criminal penalties are up a maximum of $100 000 per violation for an individual and $200 000 for a corporation.66 Civil suits may impose up to $25 000 per violation and the Act allows legal costs to be awarded at the court’s discretion.67

In addition, any person who knowingly violates the Fish and Wildlife Service regulations68 prohibiting the taking of a threatened species of fish or wildlife, is subject to a civil penalty of up to $12 000 per violation69 and criminal penalties of a fine or imprisonment.70 An offender can escape civil or criminal penalties by demonstrating ‘a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm, from any endangered or threatened species’.71

The Endangered Species Act prohibits the ‘taking’ of any endangered species of fish or wildlife by any person or agency.72 The Endangered Species Act defines ‘take’ to mean ‘to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct’.73 This broad definition does not necessitate that an animal be killed. The Endangered Species Act’s definition of ‘take’ also does not, on its face, require that a person know, or have reason to know, that their conduct will ‘take’ a listed endangered or threatened species or wildlife. Moreover, the US Supreme Court ruled in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that the harming of a species that constitutes a ‘taking’ under the Endangered Species Act also includes ‘significant habitat modification or degradation that actually kills or injures wildlife’.74

In Babbitt, the Secretary of Interior, Bruce Babbitt, redefined the word ‘harm’ in the Endangered Species Act regulations to include ‘not only direct physical injury, but also injury caused by impairment of essential behavioral patterns via habitat modifications that can have significant and permanent effects on a listed species’.75 Plaintiffs challenged the Secretary’s

63 16 USC §§ 1531-44 (2002). 64 16 USC § 1531(b) (2002). See also California State Grange v. National Marine Fisheries Service, F Supp 2d 111 (ED Cal, 2008), corrected, affirmed in part, 619 F 3d 1024 (9th Cir, 2010); Pacific Rivers Council v. Thomas, 936 F Supp 738 (D Idaho, 1996). 65 16 USC §1536(a)(2). Federal agencies must ‘’insure’ that [agency] actions are ‘not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species’.’ Defenders of Wildlife v. Martin, 454 F Supp 2d 1085, 1095 (ED Wash, 2006) quoting Defenders of Wildlife v. EPA, 420 F 3d 946, 950-91 (9th Cir, 2005).66 16 USC §1540(b)(1). The 1984 Sentencing Reform Act and the 1987 Criminal Fines Improvement Act, 18 USC §§3359(a)(6), 3571(b), (e) (2006 & Supp. 1993), increased the maximum criminal penalties for each violation under the Endangered Species Act, to a $100,000 fine, one year imprisonment, or both, for an individual, and to a $200,000 fine for a corporation.67 Ibid §1540(a)(1), (g)(4). 68 Wildlife and Fisheries, 50 CFR §17.31 (2005).69 16 U.S.C. §1540(a)(1) (2002).70 Ibid § 1540(b)(1) (2002).71 Ibid § 1540(a)(3), (b)(3).72 Ibid § 1538(a)(1)(B)-(C); 50 CFR §17.12; Palila v. Hawaii Dept. of Land & Natural Resources, 471 F Supp 985 (D. Hawai’I, 1979), affirmed 639 F 2d 495 (9th Cir, 1981) (Palila I); Palila v. Hawaii Dept. of Land and Natural Resources, 649 F Supp 1070 (D Hawai’i, 1986), affirmed 852 F 2d 1106 (9th Cir, 1988) (state action in maintaining feral sheep which significantly impaired essential behavioural patterns constituted ‘harm’ resulting in ‘take’ of the Palila, an endangered finch); 73 Ibid § 1532(19) (2002). Fish and Wildlife Service regulations also define ‘take’ in this manner.74 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon 515 US 687 (1995) (Stevens J).75 Palila v. Hawaii Dep’t of Land & Natural Resources, 852 F.2d 1106, 1108 (9th Cir, 1988), see also Sweet Home Chapter of Communities v. Lujan, 806 F Supp 279 (D DC, 1992); Sweet Home Chapter of Communities v. Babbitt, 1 F 3d 1 (DC Cir, 1993); Sweet Home Chapter of Communities v. Babbitt, 17 F 3d 1463 (DC Cir, 1994); Sweet Home Chapter of Communities v. Babbitt, 30 F.3d 190 (DC Cir, 1994).

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harm regulation as ‘contrary to the Endangered Species Act and void for vagueness.’76 However, the Supreme Court affirmed the lower court’s decisions and supported the Secretary of Interior’s broad interpretation of the word ‘take’ and ‘harm’. The Court ruled that the broad purpose of the Act was to protect endangered and threatened wildlife, and provisions authorizing the issuance of permits for otherwise prohibited takings incidental to otherwise lawful activities, established Congress’s intent that ‘take’ applied broadly to cover indirect as well as purposeful actions.77 Moreover, the Court found the Endangered Species Act places upon landowners a duty to avoid habitat alteration that would cause the effects Congress enacted the statute to avoid.

As a result of the Babbitt case, the harming or taking of species, in the US, can be realised through the modification or degradation of a listed species’ habitat where it is shown that such habitat modification or degradation, indirectly or prospectively, will either kill or injure wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering.78 Thus, any action affecting a designated critical habitat is an offence if it might be expected to result in reduction in number or distribution of the species of sufficient magnitude to place the species in further jeopardy, or restrict the potential and reasonable expansion or recovery of that species. 79

Moreover, the US District Court for the Northern District of California In Marbled Murrelet v. Pacific Lumber Co.80 enjoined logging activities pursuant to a timber harvest plan when the logging activities resulted in the destruction and degradation of habitat such that behavioural, breeding or nesting patterns would be disrupted. These types of disruptions constituted ‘harm’ under the Endangered Species Act.

Conclusions

In the Smoky Mouse case Forests NSW extensively harmed the critical habitat of the Smoky Mouse and the Land and Environment Court recognised this. Forests NSW had inspected the burn within the Smoky Mouse exclusion zone and confirmed the destruction of in excess of 90% of the zone.81 If such an incident occurred in the US in breach of comparable legislation, the offender would likely face much greater penalties than provided for in the NPWA. A similar offence of harming habitat for a threatened species or an ecological community listed under the EPBC Act would also likely attract a much greater penalty, provided the offence did not fall within the Act’s exemption of forestry activities that are carried out in accordance with a regional forestry agreement.82

Pepper J in the Smoky Mouse case noted that Forests NSW has repeatedly breached various environmental laws, and noted the ‘exceedingly low’ maximum penalties available to be imposed. In view of this case it would be timely for stricter fines for violators and offenders for breaches of the NPWA to be imposed. Stricter fines should be in line with, at the very least, the Native Vegetation Act 2003 (NSW) and the Environmental Planning and Assessment Act 1979 (NSW).

Higher fines would serve as a deterrent against forestry activities that may impact on an endangered species and their habitat. It would ensure that Forests NSW and other relevant parties have a stronger incentive to be much more accurate in delineating the boundaries for forestry activities and complying with the IFOA requirements designed to protect threatened flora and fauna species. Requiring Forests NSW to be more meticulous with its procedures will also

76 Sweet Home, 806 F Supp 279, 282. The district court found that the regulation ‘is not impermissibly vague.’ Ibid. It noted that the terms of the regulation ‘clearly provide more than ‘minimal guidelines’ and are sufficiently clear to put a party on notice of prohibited conduct’. Ibid. The court substantiated this finding by noting that, ‘the definition of ‘harm’ found at [50 CFR] §17.3 clearly limits prohibited conduct to that which ‘actually kills or injures wildlife’ … Furthermore, the regulations prohibit only ‘significant habitat modification or degradation’, expressly defined as modification or degradation which ‘actually kills or injures wildlife by significantly impairing essential behavioral patterns including breeding, feeding or sheltering’ …. Moreover, the regulations itself requires a finding that actual death or injury to a species has occurred. Ibid at 286.77 Babbitt, 515 US 687, 703.78 San Carlos Apache Tribe v. U.S., 272 F Supp 2d 860 (D Ariz, 2003), affirmed 417 F 3d 1091 (9th Cir, 2005).79 Hill v. Tennessee Valley Authority, 549 F 2d 1064 (6th Cir, 1977), certiorari granted 434 US 954, affirmed 437 US 153 (1978). 80 880 F Supp 1343 (ND Cal, 1995)81 Department of Environment, Climate Change and Water (2011) NSWLEC 102 [18], [38].82 Ibid s 38. There is a similar provision in the Regional Forest Agreements Act 2002 (Cth), s 6(4).



encourage it to conform to its stated mission to, among other things, ‘take all practical steps to ensure the preservation and enhancement of the quality of the environment’.83

The history of law breaking by Forests NSW suggests that it does not have a sufficient culture of compliance with environmental protection laws or, at worst, that it is reckless in its attitude towards environmental regulation. It is evident from the hundreds of breaches that have been reported in recent years that the current practice of using ‘soft’ enforcement tools, such as warnings and remediation orders, are an insufficient deterrent. An increase in penalties under the NPW Act to increase the maximum penalties, would create a stronger message of non-tolerance of Forests NSW’s behaviour and culture, and perhaps drive it to take real steps to avoid future damage to the environment and endangered species.

83 Forests NSW (NSW), ‘Annual Report 2009-10: Social, Environmental and Economic Performance’ (Corporate Publications, October 2010) <http://www.dpi.nsw.gov.au/__data/assets/pdf_file/0009/366750/forests-nsw-annual-report-200910-complete.pdf>.

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NEW ECONOMIC INCENTIVES FOR THE PROTECTION OF CARBON-RICH STATE FORESTS

by Mike Thompson*

Carbon stored in Australia’s state forests has become a multi-million dollar public asset and Australian carbon credit units (ACCU) in Australia’s forests will be tradeable on international markets. The protection of native forests may be worth up to $23 per tonne of carbon emissions saved under the Carbon Credits (Carbon Farming Initiative) Act 2011(Cth) and related legislation.1

Four state forest agencies control vast areas of the most carbon dense forests in Australia. New bilateral inter-governmental agreements should now replace the obsolete Regional Forest Agreements (RFAs) which were formulated in the 1990s before climate change became a major governmental responsibility. The RFAs have not stopped decades of community conflict over large scale logging and wood-chipping in Tasmania, Victoria and New South Wales. In Tasmania, this conflict is at last turning into potentially meaningful negotiations which rely on input from forest carbon accountants and lawyers.2

Australia’s 140 000 farmers can follow the example set by the four state government landholders and become engaged via the CFI in the complex process of managing carbon credits in Australia’s very diverse and valuable privately owned native forests. The international post-Kyoto rules for forest carbon accounting are being refined through the negotiations leading up to and at the climate change convention conference in Durban, South Africa, November - December 2011.3 The earliest commencement date in Australia for applying new rules on reducing emissions from deforestation and forest degradation (REDD) is expected to be 2013.

This is a timely opportunity to assist in the adoption of compatible and comprehensive forest carbon accounting systems. Standing state forest carbon stocks and carbon emissions from logging degradation are two new major elements to be accounted for in Australia’s critical land sector. Most native forest carbon is lost up-front in logging operations. This decade’s large pulse of carbon debt from logging forests that are hundreds of years old must be assessed honestly against slow-growth credits from regrowth which will take centuries to balance out. The comparatively smaller carbon stocks in harvested wood products from native forests (mainly woodchips) should also be included in carbon accounting. State Premiers and Treasurers, who have been aware of annual multi-million dollar losses from their state forest agencies, are investigating this historic opportunity for new returns from existing forests as quantified through Australia’s National Carbon Accounting System (NCAS). Academics, policy-makers and environmentalists are also working to reduce the native forest carbon lost through logging and wood processing operations.

Analysts of Australia’s forest sector argue that conflict between the logging industry and other stakeholders concerned about biodiversity, water and climate is being prolonged unnecessarily. State forest agencies which rely on revenue from wood-chipping and secretive long-term wood-supply contracts are dependent on the continuation of native forest logging. Critics argue that forest agencies’ ecologically unsustainable operations conflict with local, regional, state and national interests.4

The World Wildlife Fund, Australian Conservation Foundation and The Wilderness Society are active members of the international Forest Stewardship Council (FSC), which in July 2011 added carbon to the quantifiable attributes of high conservation value (HCV) forests. These major environmental organisations have made submissions to Australian

*Mike Thompson is an ex-IBM Manager and conservationist facilitating ‘Natural Forests’ information and training events via www.nature.net.au, including the Forests and Climate Forum held each year at the ANU in Canberra. This article draws on discussions at the Forests and Climate Forum on 13 August 2011. Presentations will be available online at www.nature.net.au from February 2012.

1 The Carbon Credits (Consequential Amendments) Act 2011 and the Australian National Registry of Emissions Units Act 2011.2 A Macintosh, Potential Carbon Credits from Reducing Native Forest Harvesting in Australia, ANU Centre for Climate Law and Policy, CCLP Working Paper Series 2011/1, ANU Centre for Climate Law and Policy, 2011. See also Heather Keith, Brendan G. Mackey, and David B. Lindenmayer, ‘Re-evaluation of forest biomass carbon stocks and lessons from the world’s most carbon-dense forests’, (2009) 106 (28) PNAS 11635–11640 <http://www.pnas.org/content/106/28/11635.full.pdf>.3 At the 17th United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP17) to be held in Durban, South Africa, 28 November– 9 December 2011.4 Forest carbon experts addressed a recent forests and climate forum at the ANU in Canberra and their presentations together with related evidence will be available online at www.nature.net.au from February 2012



governments recommending FSC certification and full carbon accounting of state forest logging operations in Australia. They are highly critical of the logging and clear-felling of old growth and multi-age, biodiverse native forests in Australia.

Most of the logs from Gippsland and the Far South Coast of NSW are trucked directly to the Eden woodchip mill owned by Nippon-Paper. In 2010 WWF made a submission to the NSW Government opposing an application to develop a biomass burner at Eden until the biomass sourced from native or natural forests is FSC-certified. WWF want to see a comprehensive full life-cycle analysis of the GHG emissions associated with logging, the transport of biomass to the power station and the power station operations.5 WWF policy is that areas supplying biomass material must not be established through the conversion or degradation of natural ecosystems (including natural and semi-natural forests) that have high conservation values and/or critical carbon storage functions.

The bioenergy push in Europe was triggered by peak oil prices in the 1990s. Biofuels reduced the cost of running cars as well as warming houses and offices in a cold climate. More comprehensive 21st century carbon accounting for climate change is now challenging native forest land use and transport emissions associated with producing bioenergy. After long defending the use of native forest-sourced wood products and residues to create Renewable Energy Target certificates, the Federal Government has now quite rightly issued draft regulations that will exclude them. Plantations, other crops, and native forest monocultures in Europe (which have been harvested for 600 years) will probably continue to provide biomass for renewable energy. But Europeans would never log their own old growth, or other high conservation value forests, and never knowingly import from countries like Australia which do. Carbon trading and renewable energy certificates in Australia could have been misused to create perverse outcomes for native forests.

Markets are shaped by politics and often distorted by vested interests. Instead of protecting standing native forest carbon, such interests are seeking perverse incentives to log those forests for bioenergy projects in Tasmania. Regrowth carbon credits must not be wasted by logging. It takes over 200 years to recover an Australian native forest’s natural carbon carrying capacity. Government funded regional development and ‘clean energy’ proposals for Tasmania in 2012 are a great opportunity to start delivering projects which are ecologically sustainable based on honest carbon accounting. Biomass from native forests will never pass the test of honest carbon accounting.

Gunns Limited in Tasmania was the first logging company to acknowledge the future threat of an emerging world market which is beginning to demand FSC labelled product to satisfy its customers. As a result it has ceased operations in native forests. BORAL may follow in NSW. Nippon Paper’s operations in Victoria and NSW will face similar realities once subsidies are removed and honest carbon accounting is introduced into the operations of state forests.

Dr Judith Ajani of the ANU argues that native forests are better for biodiversity than bioenergy and rejects the view that we should substitute fossil fuels and emission-intensive products with native forest wood that can be replenished.6 Ecological and other scientists highlight the carbon stocks in native forests and the potential for previously logged native forests to draw down substantial amounts of carbon if allowed to regenerate undisturbed by further logging. They also emphasise the biodiversity values of native forests.

This is the critical decade to get it right. We need to see an exit from native forest logging to enable the regrowth of natural forests as an effective and economic climate action. This is an easy opportunity to help reverse dangerous climate change.7 Such policies are entirely within the control of state and federal governments. Each Regional Forest Agreement (RFA) is simply a bilateral deal between a Prime Minister and Premier. RFAs can be replaced anytime by a new inter-governmental agreement, like the one now being precariously played out in Tasmania. Tenders have been called for calculating the carbon value of state forests in Tasmania. Standing native trees remain Australia’s most cost-effective carbon capture and storage devices. Green carbon mitigation offsets earned by protecting native forests must supplement brown carbon pollution reductions from coal, electricity and other industry sectors through increased overall targets. In the meantime Mother Earth’s precious atmosphere needs all the help we can give her in this critical decade.

5 Paul Toni, Program Leader – Development and Sustainability, ‘WWF Submission on the South East Fibre Exports (SEFE) 5MW Biomass fired power station’, Typescript, 22 April 2010.6 Native Forests For bioenergy or biodiversity? Presented by Judith Ajani ANU Fenner School of Environment and Society Thursday 10 November 2011 7 Macintosh, above n 2.

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EUROPEAN UNION ENVIRONMENTAL LAW AND POLICY

By Nijaz Deleut Kemo*

Despite the financial crisis in the Eurozone (EUR), and economic instability threatening Europe and the global economy in 2011, the European Union (EU) is working to build up a zone of stability, democracy and sustainable development whilst maintaining cultural diversity, tolerance and individual freedoms.

In October 2011 an EU Commissioner confirmed EU plans to require all non-EU carriers to and from an airport in the territory of an EU member state from January 2012 to participate in its emissions trading system, despite threats from 26 countries, including India, the US and China, to lodge a formal protest against the EU’s new rules at the UN’s International Civil Aviation Organisation.1

On 29 September 2011 the European Parliament passed a resolution on developing a common position for the EU ahead of the United Nations (UN) Conference on Sustainable Development (Rio+20) in Rio de Janeiro in June 2012. The resolution called on the European Commission and Council of Europe to ensure that a strong and unified EU position is submitted to the UN before 1 November 2011, as an input to negotiations starting early in 2012. The Summit aims to secure a renewed political commitment to sustainable development, to assess progress and gaps in the implementation of the outcomes of previous major summits on sustainable development, and to address new and emerging challenges. The resolution called for a range of measures, including that the European Commission and the Council of Europe ensure that the Summit results not only in statements of good will, but also in tangible actions, targets and ways of measuring them, and accountability mechanisms. The resolution described a ‘green economy’ as the entire economy functioning within the limits of sustainability in respect to biodiversity, maintaining ecosystem services, climate protection and use of natural resources, with a focus on human, environmental and natural capital. In addition, the resolution called for the recognition of the principle of non-regression in the context of environmental protection as well as fundamental rights.2

These are just two examples providing a welcome reaffirmation of the EU’s global and regional commitment to ‘responsible’ sustainable development, and its integration into the heart of both member states governments’ and EU institutions’ policies.3

This article examines broader progress by the EU in the implementation of sustainable development, and environmental laws and policies in recent years. It provides a brief historical overview, describes the main players, and discusses briefly some environmental infringement proceedings.

Evolution

European environmental policy gained recognition in the Single Europe Act 1986 (SEA) and in the 1992 Maastricht Treaty establishing the European Union (TEU). Various environmental measures were passed on the basis of Art 94 or Art 308 of the TEU. Later environmental policies were based on Art 95 and 174–6 of the TEU.4 In the late 1950s and early

* Advanced Master of European Studies, Independent researcher and consultant, EU Policy & Law NGO Eco Centre Charles Darwin, PO Box 34 Novi Vinodolski 51250, Croatia.

1 R Sehgal, ‘Airline carbon tax to stay: EU’, The Asian Age 5 Oct 2011 accessed <http://www.asianage.com/india/airline-carbon-tax-stay-eu-916>.2 ‘European Parliament resolution of 29 September 2011 on developing a common EU position ahead of the United Nations Conference on Sustainable Development’ (Rio+20), accessible at <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0430+0+DOC+XML+V0//EN>.3 Consolidated Version of the Treaty Establishing the European Community (the EU Treaty), 24 December 2002, Official Journal of the European Communities C 325/33, viewed 29 October; <http://eur-lex.europa.eu/en/treaties/dat/12002E/pdf/12002E_EN.pdf, Articles 2, 3 and 6 TEU>.4 Article 174 TEU included commitments to a high level of protection, the precautionary principle, the preventive action principle, rectification of environmental damage at source, and that the polluter should pay. Contextual issues are also specified: http://eur-lex.europa.eu/en/treaties/dat/12002E/pdf/12002E_EN.pdf



1960s members of then the European Community (EC) passed important environmental legislation on safety standards related to radiation or the control of dangerous chemicals.5 These were linked to the development and modernization of the industrial sector in Europe. However, ‘environmental policy’ developed only in the 1970s when there was growing concern about the harmful effects of economic development and growth, as also occurred elsewhere. In the light of the transboundary effects of air and water pollution (such as acid rain in Germany), the heads of state and governments of EC member states decided during the Paris summit in 1972 to push forward the development of a common environmental policy. The European Commission published in 1973 the first European Environmental Programme (EAP). That programme defined the general principles for environmental policy including prevention, action at source and polluter pays. These were progressive for the time, and remain core principles for EU environmental policy today.

In 1997 the Treaty of Amsterdam incorporated a high level of protection and improvement of the quality of the environment as an independent goal of the TEU, rather than as an incident of economic growth. Article 176 was also adopted so that protective measures adopted under Art 175 could not prevent any member state from maintaining or introducing more stringent protective measures compatible with the TEU. These must be notified to the Commission. A Protocol was also annexed to the TEU on animal welfare subject to respect for member states’ laws and customs. A Protocol on the Application of the Principles of Subsidiarity and Proportionality was also adopted.

EU reforms faltered in 2000, 2002 and 2007, but in 2009 the 2007 Lisbon Treaty (TFEU)6 came into effect. That Treaty gave priority to the EU’s objective of promoting sustainable development in Europe, and for dealing with climate change. The Lisbon Treaty also included provisions for a sustainable energy policy, including energy efficiency and savings and the development of new and renewable energy sources.

Craig and de Burca note that while the co-decision and cooperation procedures of Art 251–2 TEU, and qualified majority voting (QMV) applied to single market-related measures, unanimity in the Council and consultation with the European Parliament were required for environmental policy not linked with the internal market.7 Despite this more formal status there was nevertheless a rapid expansion of the ‘environmental acquis’ (the total body of applicable law), and at the turn of the 20th century about 300 environmental directives and regulations were in place.

The main environmental players

The key players in EU environmental law and policy are the European Commission, the Council of Europe, the European Parliament, the European Court of Justice, various environmental interest groups and the European Ombudsman. There is constant consultation, collaboration and cooperative decision-making activities involving these stakeholders, based on sometimes competing and conflicting aims, goals and interests. European environmental law and policy is successful today because it provides an opportunity for those who care about the preservation of nature (civil society and non-government organisations in developed EU member states such as Sweden, Denmark, Finland, Germany, Netherlands and Austria) to express their views at glocal, local, regional national and supranational levels. On the other hand, the broader EU community and concerned civil society has yet to demonstrate its full commitment to ‘responsible’ sustainable development, and to appreciate the imperative for this in the face of continuing environmental degradation.

Following the coming into effect of the Lisbon Treaty in 2009 a European Commissioner for Climate Change, Ms Connie Hedegaard (a former Danish Minister for Climate and Energy) was appointed as one of 24 Commissioners. The person appointed as Commissioner for the Environment was a former Slovenian Minister for European Affairs, Dr Janez Potocnik. The permanent officials who work in the European Commission, and who form the Brussels bureaucracy, are organised into Directorates General (DG). The DG for the Environment has a total budget EUR 2.143b for the period 2007–13.

5 A Lenschow, ‘Environmental policy – contending dynamics of policy change’ in H Wallace and W Wallace (eds.), Policy-Making in the European Union, 4th ed (OUP, 2000) ch 12.6 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, Official Journal of the European Union, C 306, Vol 50, 17 December 2007: http://eurlex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML7 P Craig and G De Burca, EU Text, Cases and Materials, 3rd ed (OUP, 2003)

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The EU has a number of formal legal methods for developing environmental law and policy, including regulations, directives, and decisions. Soft law methods include action programmes and plans, guidelines, communications, policy statements, and declarations by the European Council. International treaties and agreements are also an available means for influencing policy development. Through the use of an Art 241 TFEU procedure, the Council increasingly requests the Commission to submit legislative proposals. The content of the Commission proposal will be the result of interaction between the Commission, interests groups, national experts, and senior civil servants. Close collaboration and consultation within those groups will occur before the proposal begins its journey. The Commission will maintain a general supervisory overview, in order to ensure that rules are uniformly and properly applied within member states. It has also become increasingly common for the Commission to exercise direct administrative responsibility for the implementation of certain environmental policies (e.g. food safety).

EU Environmental policy-making is most often driven by the fact that one or more member states has approved significant new environmental protection laws, leading to pressure to upgrade standards in the rest of the Union. Part of the policy process in Brussels is characterized by the need to balance the politics, interests, and norms of the ‘green’ member states with the pressures for economic development and financial restraint felt by the sceptics. So, the politics of environmental policy within the EU is multi-layered and its formulation often resembles a ‘leader-laggard’ dynamic process.

To resolve roadblocks, the Commission resorts to soft law where it is impossible to secure the passage of a regulation or directive, or where it believes that this is a better way to reach a particular policy goal. For example, the Commission resorted to the use of a Communication to achieve goals on environmental funds, which it had been unable to attain through the passage of a directive because of deadlock in the Council. It has also used circulars in the place of formal decisions where Council approval was not forthcoming.

The Commission has developed principles to govern its dealings with interest groups. It distinguishes between profit and non-profit organizations. It may consult such groups on an ad hoc basis, or through an advisory committee. It uses Green and White Papers and the like as a mechanism for eliciting the views of such groups. Interest-group pressure at the Community level is expected.

Environmental interest groups (EIGs) have found the Environmental DG very receptive. In fact, officials from other DGs often complain that it has been captured by ‘green’ interests. Typically, the environmental portfolio of the responsible Minister has not been viewed as one of the most desirable; certainly commissioners involved with industrial and financial affairs have been perceived as more important than commissioners for the environment.

Seven EIGs are at the core organizations representing environmental interests at the European level: the European Environmental Bureau (EEB), Friends of the Earth (FoE), Greenpeace International, the World-Wide Fund for the Nature (WWF), the Climate Network Europe (CNE), the European Federation for Transport and Environment (T&E), and Bird Life International. Their number of staff is small and their financial resources are modest. The costs of organizing at the European level are onerous for the voluntary/non-profit sector. Powerful groups are likely to make their voices heard irrespective of whether formal participatory rights exist. So the Commission often has an important mediation role to play in developing a legislative package acceptable to Parliament, the Council and itself. All EIGs, except Greenpeace, also receive some Commission funding for regular operations. From 2002–06 EUR 32m was made available to support environmental civil society organisations (CSOs) and non-government organisations (NGOs) registered in the member states, old and new, and other countries. In recent years, however, this funding policy has come under critical scrutiny.

Brussels-based EIGs concentrate on environmental policy and law formulation. Here they act both as a pressure group, mobilizing the general public or member states, and as think-thanks, offering expertise and detailed information from the ground. The Commission regularly employs interest group representatives on temporary contracts in order to internalize this expertise. During the decision-making phase, EIGs use public campaigns, and direct contacts with member governments and MEPs to ensure the desired majorities. At this stage the national members of the Brussels-based



groups assume an important role. National CSOs and/or NGOs are crucial during the implementation and enforcement phase of EU environmental law. In addition to national legal action, EIGs use the complainant’s procedure to inform the Commission of any gap in implementation that is detected in a member state.

The European Ombudsman (EO) is another important actor, currently Dr Nikiforos Diamandouros of Greece. He receives complaints from EU citizens or resident third-country nationals or legal persons, concerning maladministration in the activities of the Community institutions or bodies, and conducts inquiries for which he finds ground, either on his own initiative or on the basis of complaints submitted to him direct or through a member of the European Parliament (MEP).8

So far, the majority of complaints seem to relate to the Commission, and the subject matter of the most frequent complaints includes transparency, access to information, and environmental issues. Only the EU and not national institutions is subject to the EO’s jurisdiction, and they must supply information requested and give access to files, except where grounds of security are pleaded.

The first appointed EO, Mr Jacob Sӧderman of Finland (1995–2003), held a number of own-initiated inquiries, including in 1996 on public access to documents held by a number of EU institutions and bodies. He adopted a decision to the effect that failure to make adequate rules governing public access to documents constituted maladministration.9 On 6 September 2001 the European Parliament unanimously adopted the EU Code of Good Administrative Behaviour. This promotes citizens’ fundamental rights to good administration under Art 41 of the Charter of Fundamental Rights of the EU10 which was proclaimed at the Nice Summit in December 2000. In addition, the European Parliament and the Council adopted the Regulation on Public Access to Documents in 2001.

The EO’s internal management targets are to acknowledge receipt of complaints within one week, their admissibility within one month and close inquiries within one year, unless there are exceptional circumstances which justify a longer inquiry.

Implementation

The effective implementation of EU environmental law uses a combination of means including formal legal methods such as regulations, directives and decisions, as well as numerous soft law methods such as action programmes and plans, guidelines, communications, policy statements, and declarations. Consultation, impact assessment and the preparation of legislation are important, but monitoring, compliance and enforcement have become increasingly significant in recent years. International treaties and agreements also assist in the pursuit of the EU’s external policies and aims. Community law and national law are interdependent and both apply to citizens of EU member states.11 Under the EU Treaty, various articles provide for infringement proceedings.12

EU Treaty environmental infringement proceedings are conducted exclusively before the European Court of Justice (ECJ). Given the seriousness of the accusation, the referral of the Court must be preceded by a preliminary procedure in which the member state is given the opportunity to submit its observation. If the dispute is not settled at that stage, either the Commission13 or another member state14 may institute an action in the Court. In practice the initiative is usually taken by the Commission. The Court investigates the complaint and decides whether the Treaty has been infringed. If found in breach, the offending member state is required to take the measures needed to conform.

8 Article 228 TFEU provides for the appointment of the European Ombudsman by the European Parliament.9 Decision 616/PUBACH/IJH 1998 OJ C44/9.10 Official Journal C 303 , 14 December 2007.11 Art 10 of the TEU provides that member states shall take appropriate measures to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community; shall facilitate the achievement of the Community’s tasks and abstain from measures which could jeopardise the attainment of the objectives of the Treaty.12 Including Arts 257–61, 263–67, 267–70 TFEU.13 Art 258 TFEU.14 Art 259 TFEU.

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If a member state fails to comply with a judgment given against it, the EU Treaty offers the possibility of a Court ruling ordering it to pay a lump-sum or a penalty.

More common types of proceedings include breaches of the obligation to cooperate15 or inadequate implementation or failure to give proper effect to Community environmental law.16

The Commission publishes with its annual reports on monitoring the application of EU law a list of ECJ judgments with which member states have not yet complied, and an indication of the action to be taken against the State. There are constraints however. The Commission has neither the time nor the resources to detect and pursue every instance of national infringement of environmental law. There are also pragmatic and political reasons why the Commission, even if it possessed the capacity to monitor all infringements, might wish to exercise political discretion and not to pursue to judgment every member state’s breach. Moreover, enforcement action successfully brought before the ECJ does not necessarily lead to compliance.

Conclusions

EU environmental law and policy is far from static. It is constantly updated to take account of new threats and emerging sciences and technologies, based on available scientific and technological data. It is open to new ideas about the best policy or instrument for dealing with environmental issues. It is not framed in a vacuum, but is responsive to the views of industry and other stakeholders who have a right to expect a high quality of life for themselves and their children. An EU pilot project is on the track to improve the speed and efficiency of problem-resolution processes.

There is some dissatisfaction with enforcement procedures in the EU. There are few limits on the Commission’s discretion, and there are few avenues for complaint by civil society and non-governmental organisations. Some aspects have been addressed in response to pressure from the EO. The effectiveness of environmental infringement proceedings has arguably been enhanced slightly by the penalty payment procedure which is actively used by the Commission in its enforcement strategy, under Articles 260 and 261 TFEU. EU environmental legislation lies behind some 80% of national environmental legislation, and therefore, the main form of dispute settlement used by the Commission is negotiation. Litigation is simply a part, sometimes inevitable but nevertheless generally a minor part, of the EU environmental law.

The EU’s environmental law and policy is based on the conviction that economic growth, social progress and environmental protection all help to improve the quality of life, but also to save biological diversity and nature for future generations. What is more, they are interlinked. A careful balance must be struck between them if development in the EU is to be sustainable, responsibly – in other words, if future generations are also to be able to enjoy a better quality of life. Worst case scenarios are not excluded.

15 E.g. Case C-96/81, Commission v. Netherlands [1982] ECR 17916 E.g. Case C-265/95, Commission v. France [1997] ECR J-6959; Case C-121/07 Commission of the European Communities. v. French Republic (Failure of a member state to fulfil obligations).



GREENING THE ECONOMY WITH WTO RULES?

by Hanna Jaireth1

Introduction

There are some welcome indications that academics and civil society and non-government organisations (CSOs and NGOs) are increasing their engagement with the trade rules and processes of the World Trade Organisation. Industry associations have traditionally been better engaged, and unions less so.2 Constructive publications and workshops on trade and environment issues are a timely contribution to debate in the lead up to COP17 of the Climate Change Convention 28 November– 9 December 20113 and the Eighth Ministerial Conference of the WTO4 15–17 December 2011. The WTO has a Trade and Environment Committee which is open to all WTO members, with some international organizations as observers, but a broadening of participation may assist in encouraging governments to resolve outstanding issues, given the global security imperative of transitioning to sustainability and low carbon economies.

The growing CSO/NGO interest in trade rules may be a welcome influence in the lead up to the United Nations (UN) Conference on Sustainable Development (Rio+20) in Rio de Janeiro in June 2012, which will have as one of its themes, greening the global economy in the context of sustainable development and poverty eradication.5 Definitional issues surrounding the term ‘green economy’ are yet to be settled however.6

A range of trade and environment issues are likely to be tested under WTO rules, including emissions trading arrangements, carbon taxes and carbon equalization. Carbon border adjustment measures are denounced as green protectionism by developing countries such as India and China,7 but are seen by proponents as a way of preventing carbon leakage or the relocation from developed countries of investments or import arrangements to countries without effective carbon policies.8 Reducing emissions from deforestation and forest degradation (REDD/REDD+) and the effect of trade rules on forest management and property rights are hot topics.9 In 2010 Japan requested consultations through the WTO with Canada on Ontario’s green stimulus legislation that favours domestic renewable energy suppliers. The compatibility of the Kyoto Protocol’s Clean Development Mechanism with the TRIMS Agreements is queried.10 In the animal welfare area, a dispute testing the scope of WTO exceptions is the challenge by Canada, Norway and Iceland to regulations made

1 PhD ANU 2001; member, IUCN Commission on Environmental Law. This paper was prepared for the IUCN Oceania Regional Conservation Forum, Brisbane, 23–25 August 2011 as a comment on the draft IUCN Programme 2013–2016 Nature+, in a private, volunteer capacity. It reflects personal views only. NELA is a member of the IUCN but this paper does not reflect NELA policy.2 M Piewitt, ‘Participatory governance in the WTO: how inclusive is global civil society’, 2010 44(2) Journal of World Trade, 467–488 at 485; S. Joseph, Blame it on the WTO? A Human Rights Critique, Oxford University Press, Oxford, 2011, 60; see also: S Kover and M Bryant, Bibliography of Law Journal Articles on Statutes Administered by the United States International Trade Commission and Related Subjects, vol VI: 2005– 13 September, 2011, United States International Trade Commission <http://www.usitc.gov/bibliography/documents/Bibliography2005-2011.pdf>. An International Institute for Sustainable Development (IISD) conference on Trade, Investment and Climate Change: Searching for Progress on Key Issues, was held at the World Trade Organization in Geneva, on 13th October 2011 and others are scheduled for COP17.3 17th United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP17) to be held in Durban, South Africa.4 the meeting of the bi-annual WTO decision-making body5 <http://www.uncsd2012.org/rio20/index.php?menu=62>6 S Lovera, ‘LAC countries oppose Rio+20 green economy agenda’, Report on the preparatory meetings for Rio+20, email list communication 13 September 2011. One UNEP publication defines a green economy as ‘one that results in improved human well-being and social equity, while significantly reducing environmental risks and ecological scarcities … one which is low-carbon, resource-efficient and socially inclusive’ : R Munang (UNEP), I Thiaw (UNEP), J Thompson (Inter-American Development Bank) D Ganz (The Nature Conservancy), E Girvetz (The Nature Conservancy), M Rivington (Macaulay Land Use Research Institute), UNEP Policy Series Ecosystem Management, Sustaining Forests: Investing in our common future, Issue 5 August, 2011, 3.7 B Dhar and K Das, The European Union’s Proposed Carbon Equalization System: Can it be WTO Compatible?, Discussion Paper No 156, Research and Information Systems for Developing Countries, New Delhi, India, 2009, 2. See also: M Wilke, Feed-in Tariffs for Renewable Energy and WTO Subsidy Rules: An Initial Legal Review: Issue Paper No 4, International Centre for Trade and Sustainable Development, 2011; I Jegou and L Rubini, The Allocation of Emission Allowances Free of Charge: Legal and Economic Considerations: Issue Paper No. 18, 2011, International Centre for Trade and Sustainable Development.8 M McKenzie, ‘Emissions reduction policies and the WTO’, 2010 13(1) Asia Pacific Journal of Environmental Law, 61–739 See for example: P Kant, L Meng, ’Impact of Border Carbon Adjustment and Restrictions on Non-certified Timber on International Commerce in Wood Products’, Forest Carbon Asia, August 2011.10 NS Ghaleigh, D. Rossati, ‘The spectre of carbon border-adjustment measures’, 2011 2(1) Climate Law 63–84.

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by the European Union that prohibit the sale of seal products in the EU.11 Other key issues for CSOs and NGOS include the elimination of perverse subsidies in fisheries forestry agriculture and fuel sectors, food labelling,12 and the need for trade rules to better protect human rights, including labour rights.13

The WTO is struggling for legitimacy and credibility. It faces growing challenges due to global financial instability, its failure to conclude the Doha round of trade negotiations over the past decade, and because of climate change concerns and the need for greenhouse gas emissions to be reduced globally, including from trade. The outcomes of the UNFCCC COP17 negotiations may give a fillip to WTO negotiations as the need for progress in reducing greenhouse gas emissions will have an intense global focus. Or the WTO’s Doha round may remain in ‘negotiation paralysis’.14 Developed and least developed countries are polarised on the ‘LDC-plus’ package.15 In November the Cairns Group16 agreed that a fresh approach to negotiations was needed to save the Round,17 and Australia has advocated a limited focus on sectoral achievables to resolve impasses where possible. In Seoul in 2010 the G20 Summit had called optimistically for a prompt resolution of issues so that the round could be concluded.

This paper suggests that stakeholder participation in WTO processes should be broadened, and that a quasi-NGO, the International Union for the Conservation of Natural Resources (IUCN), is well placed to offer more of its expertise to the WTO on necessary reforms heading towards sustainability. The IUCN describes itself as ‘a democratic membership union with more than 1 000 government and NGO member organizations, and almost 11 000 volunteer scientists in more than 160 countries’. It pragmatic scientific, research, legal, policy, program and project work is supported by more than 1 000 professional staff in 60 offices and hundreds of partners in public, NGO and private sectors around the world.18 A Google search indicates a range of specialist IUCN work with the WTO in the past, but at this crucial time for climate change and green economy debates, it would be timely to direct more of its relevant expertise and professional energy towards the establishment of sustainable trade rules. Given the appalling state of the global indicators for the environment and diminishing prospects for future generations, largely driven by overconsumption, ways of regulating sustainability while providing for development need to be agreed.

Background

The WTO is the multilateral institutional framework for the conduct of trade relations and the promotion of free movement of goods, services or capital across national borders for economic development and wellbeing. The WTO is related to but not part of the UN.19 It promotes free trade, open markets and non-discrimination, by requiring each WTO Member to have equal access to national trade markets. It protects intellectual property rights on a global scale. Explicit or tacit discrimination against imported products is unlawful, subject to limited exceptions. The WTO provides

11 PL Fitzgerald, ‘’Morality’ may not be enough to justify the EU seal products ban: animal welfare meets international trade law’, 2011 14(2) Journal of International Wildlife Law and Policy 85–136. See also: K Cook, K and D Bowles, ‘Growing pains: The developing relationship of animal welfare standards and the World Trade Rules’, 2010 19(2) Review of European Community and International Environmental Law (RECIEL), 227–238.12 A Mitchell and E Sheargold, ‘Submission to the Review of Food Labelling Law and Policy: The WTO-Consistency of Food Labelling Requirements Based on Non-Health Related Consumer Concerns’, viewed 21 August 2011, <http://www.foodlabellingreview.gov.au/internet/foodlabelling/submissions.nsf/lookupSubmissionAttachments/1ATAN-85JVV420100518094543BZCM/$FILE/449a.pdf>; Australian Senate, Report of the Community Affairs Legislation Committee, Food Standards Amendment (Truth in Labelling—Palm Oil) Bill 2010, <http://www.aph.gov.au/senate/committee/clac_ctte/food_standards_amend_bill_2010/report/report.pdf>, 25–7 and dissenting report (Senator Nick Xenophon, Senator Rachel Siewert).13 Joseph, above n 2; J Schultz and R Ball, ‘Trade as a Weapon? The WTO and human rights-based trade measures’, 2007 12(1) Deakin Law Review 41–77; J Sutherland, ‘International trade and the GATT/WTO Social Clause: broadening the debate’, 1998 14 QUT Law Journal 83–107.14 World Trade Organisation, ‘Trade Negotiations Committee: Informal Meeting, 26 July 2011: Members to think about ‘what next for Doha, WTO’ for December meeting’, <http://www.wto.org/english/news_e/news11_e/tnc_infstat_26jul11_e.htm>15 It includes duty-free and quota-free (DFQF) market access to developed countries and capable developing countries; the simplification of the preferential rules of origin to help implement the DFQF treatment; a waiver by the developed members of the most-favoured-nation (MFN) principle in providing priority market access for services from the LDCs; and the expeditious and substantial reduction of trade-distorting cotton subsidies: Li Enheng (China Daily), ‘Package of trouble at WTO’, Op-Ed Contributors China Daily, updated 29 June 2011, Updated: 2011-06-29 07:57, <http://www.chinadaily.com.cn/opinion/2011-06/29/content_12798324.htm>16 The Cairns Group comprises Argentina, Australia, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Indonesia, Malaysia, New Zealand, Pakistan, Paraguay, Peru, Philippines, South Africa, Thailand and Uruguay: The Cairns Group, Communiqué, Saskatoon, Canada, 7-9 September 2011, 09 September 2011, <http://www.cairnsgroup.org/Pages/110909_communique.aspx>17 The Hon Dr Craig Emerson MP, Australian Minister for Trade, ‘Australia welcomes Cairns Group’s frank assessment of Doha’, Media release, 11 September 2011, <http://tradeMinister.gov.au/releases/2011/ce_mr_110911.html>18 <http://www.iucn.org/about/>. See generally M Holdgate, The Green Web: A Union for World Conservation, Earthscan 1999.19 <http://www.un.org/en/aboutun/structure/>



dispute settlement mechanisms and for the review of trade policies.20 The WTO recognises sustainable development21 and provides a limited range of exceptions to free trade. It is extremely powerful, and its rulings can be enforced through sanctions. Adverse findings following dispute resolution rulings on economic regulation usually leads to reform.

Under Art XX of the General Agreement on Tariffs and Trade (GATT) that continues with the WTO22 members can restrict imports of products where they are produced by prison labour;23 are contrary to public morality or health; or place animal, plant or human life or health at risk.24 Trade restrictions can also be imposed so as to conserve exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption.25 None of these measures may be applied in an arbitrary or unjustifiably discriminatory manner. States Parties may also claim exemptions for technical measures taken for environmental protection, or for emergency or national security measures.26 These exceptions are construed narrowly to preserve the objectives of the GATT, and not to erode access to markets. Measures inconsistent with the GATT will only be exempted if there are no alternative measures available which a party could reasonably be expected to employ.27

Some early WTO cases were criticised by environmentalists for finding that processes and production methods (PPMs) could not be taken into account when assessing whether ‘like products’ were discriminated against.28 Later cases suggest that some discrimination is permitted based on PPMs and human-health risks associated with products.29 But concerns remain over the uncertain legality of animal welfare regulations, which if found to be WTO-consistent would benefit commercial interests and developed country exporters that tend to have higher welfare standards.30

The current logjam

The Doha Round had been intended to address G77 issues such as alleviating poverty and preventing political and economic instability and terrorism. Contentious debates have included special products and special safeguard measures affecting the rural poor.31 The Doha Round was also expected to lead to the reduction or elimination of tariff and non-tariff barriers for environmental goods and services, but definitions and scope remain unresolved.32 ‘Non-trade concerns’ are being negotiated as part of the broader issue of agriculture liberalisation under the Agreement on Agriculture.

20 The WTO had 153 members in 2008 (the most recent update): WTO, ‘Accessions: WTO Membership in Brief: http://www.wto.org/english/thewto_e/acc_e/acc_e.htm21 The 1994 preamble to the Marrakesh Agreement Establishing the WTO refers to expanding production and trade while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, and notes the need for developing countries, and particularly the least developed countries, to secure economic growth.22 The Uruguay Round agreements, including the WTO agreement, came into force from 1 January 1995: General Agreement on Tariffs and Trade - Multilateral Trade Negotiations (the Uruguay Round): Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, December 15, 1993, with introduction by A Porges, International Legal Materials, vol. 33, 1994, 1–152. See also <http://www.wto.org>. Limited exceptions exist also under the Agreement on Technical Barriers to Trade, and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), Agreement on Agriculture, Agreement on Trade-Related Investment Measures, Agreement on Subsidies and Countervailing Measures, Agreement on Import Licensing Procedures and the Agreement on Implementation of Art VII (Customs Valuation), which are annexes to the Agreement establishing the World Trade Organisation23 GATT Art XX (e)24 GATT Art XX (b)25 GATT Art XX (g)26 GATT Art XIX (Emergency Action on Imports), Art XXI (Security Exceptions)27 GATT, Report of the Panel on Section 337 of the United States Tariff Act, BISD 36S/345; GATT, Reports of the Panels in Canada-Administration of the Foreign Investment Review Act, adopted 7 February 1984, 30S/140, p.64; GATT, ‘General Agreement on Tariffs and Trade -Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna’, International Legal Materials, vol. 33, 1994, 839-903 at 879, 881, 894, 896-7.28 In a series of Tuna–Dolphin cases in the early 1990s, fisheries import regulations designed to reduce dolphin bycatch in the tuna fishing sector were deemed discriminatory because the tuna product was the same (a denial of externalities arguments). Several panel reports interpreting art XX, including the unadopted panel rulings on U.S. dolphin-protection measures: GATT, ‘General Agreement on Tariffs and Trade — Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna’, International Legal Materials, vol.30, 1991, 1594–1623; GATT, ‘General Agreement on Tariffs and Trade — Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna’, International Legal Materials, vol. 33, 1994, 839–90329 Report of the Appellate Body, European Communities–Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12 March 2001) discussed in P.L. Fitzgerald, above n 11, 101; Joseph, n 2, 98–99.30 Fitzgerald, above n 11, 105.31 JC Javelosa and A Schmitz, ‘Special products in agricultural trade rules: implications for development’, 2007 12(2) Australian Journal for Human Rights 171–201.32 They include goods and services such as air pollution control, renewable energy, waste management and water and wastewater treatment. See generally: A. Cosbey, S Aguilar, M Ashton, S Ponte, Environmental Goods and Services Negotiations at the WTO: Lessons from multilateral environmental agreements and ecolabels for breaking the impasse, International Institute for Sustainable Development (IISD), Winnipeg, Canada, 2010, 18–19.

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The Doha Round has generated deep divisions, and the 2011 ‘Occupy Wall St’ and similar protests suggest that grievances about the global economy, including trade rules, continue. In 1999 protesters demonstrated in tens of thousands at the WTO’s Third Ministerial Conference in Seattle, contributing to the failure of the meeting. Again in 2005, protesters massed at the Ministerial meeting in Hong Kong.33 Governments in the G77 have also been dissatisfied, insisting that developed countries had to do more to implement previous commitments before new issues were negotiated. Special and differential treatment for G77 members was demanded.34 Amongst other issues, the G77 was then opposed to negotiations on the intersection between trade rules and labour and environmental standards, and has not supported much progress on these issues since.35 The WTO recognises the importance of sustainability to development, as does the rest of the UN system. The WTO’s Committee on Trade and Environment (CTE) has had a 10-point work program for about 15 years. Some of the issues prioritised for negotiation in the Doha Round in ‘Special Sessions’ were:

§ the relationship between the WTO rules and multilateral environmental agreements (MEAs)

§ the collaboration between the WTO and MEA secretariats

§ the elimination of tariffs and non-tariff barriers on environmental goods and services.36

The Trade and Environment Committee was to have reviewed labelling requirements for environmental purposes, the effect of environmental measures on market access, and the relationship between the TRIPS agreement and the Convention on Biological Diversity, but little progress on these issues appears to have been made. The issue of fisheries subsidies is also part of the Doha negotiations and is a live concern for a wide range of stakeholders.

Some international NGOs are highly critical of the impact that the WTO has had on human rights, the environment, and in empowering multinational trading enterprises through mechanisms such as intellectual property protections.37 The issue of the interrelationship between WTO agreements and human rights treaties does not appear to be an issue for current negotiations although it is raised in academic literature.38

Broadening civil society input to the WTO negotiations

In 1996 the WTO’s General Council adopted Guidelines for Arrangements on Relations with Non-governmental Organizations (NGOs). These preclude direct NGO involvement in the work and meetings of the WTO.39 Some of the ways for civil society to engage with the WTO is through:

§ attendance at the plenary sessions of WTO Ministerial Conferences (a legislative/law-making process) following registration and approval as an NGO,40 or as part of a national delegation

§written statements can be circulated to national trade representatives and the WTO secretariat may make these accessible on the WTO website (lobbying/advisory)

§ participation in advisory groups (lobbying/advisory)

§ participation in ad hoc symposia and briefings on WTO issues (face to face and online) facilitated by the secretariat (lobbying/advisory)41

§ submission of amicus curiae briefs to WTO dispute settlement proceedings (a quasi-judicial process).42

33 A Cosbey, A Sustainable Development Roadmap for the WTO, IISD, 2009.34 M Khor, <[email protected]>, ‘Developing world voices doubts on globalisation’, Human Rights Information Network <[email protected]>, 21 November, 1999.35 MS Blodgett and RJ Hunter Jr, ‘The environment and trade agreements: should the WTO become more actively involved?’, 2010 33(1) Hastings International and Comparative Law Review 1–19 at 13. 36 World Trade Organisation, ‘Briefing notes: trade and environment’, <http://www.wto.org/english/tratop_e/dda_e/status_e/envir_e.htm>37 Joseph, above n 2, Introduction and ch 1.38 Joseph, above n 2, 130–141; other refs above n 2 and G Moon, ‘WTO law and human rights: the state of play’, paper presented at the ANZSIL Conference 25 June 2010.39 Joseph, above n 2, 6040 Attendance is regulated by the WTO’s Procedures Regarding Registration and Attendance of Non-governmental Organisations discussed in Piewitt, above n 2, 47441 Such as the annual WTO Public Symposium in Geneva which is a forum for information exchange: Piewitt, above n 2, 47542 Piewitt, above n 2, 468; Joseph, above n 2, ch 3.



Piewitt’s analysis suggests that civil society organisations attending WTO Ministerial Conferences tend to be dominated by the business sector (about 43% on average). NGOs comprised about 37% on average, and other organisations 12% on average. If the meeting is held in an OECD country, participation by organisations from the north is higher than the south, but when held in a non-OECD country, the north-south imbalance is only reduced by about 10%.43

Some analysts have identified a need for an independent advisory panel equivalent to the UNEP/WMO Intergovernmental Panel on Climate Change (IPCC) or the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) to be established to advise WTO negotiating bodies.44 The IUCN is well placed to participate in such a body as it has unparalleled expertise and experience in MEAs, global environmental science, the principles of international environmental law, and environment-related security issues, including human security. The IUCN already has a formal role in providing advice and assessments under the World Heritage and CITES Conventions.45

Another proposal is for WTO observer status to be granted to MEAs. This is an area where some progress is expected,46 and it is an area where the IUCN has a global leadership role for civil society and governments. The WTO needs to learn from other MEAs in relation to assessment of trade policy proposals, and the use of third party monitoring and evaluation mechanisms for assessing the effectiveness of its agreements and processes. External independent expertise on economics, the environment and human rights should be brought to the WTO deliberations, ensuring a more ‘joined up’ global governance.47 This is an area where the IUCN has a lot to offer.

As noted above, the IUCN is uniquely placed to contribute to WTO MEA work given its extensive experience with MEAs and the new market-based mechanisms that are needed for stakeholders and economies to transition to sustainability. All IUCN Commissions also have expertise relevant to trade and the environment. The IUCN could work towards the establishment of a WTO Committee on Trade and Human Rights to complement the work of the WTO Committees on Trade and Environment and Trade and Development.48 Such a Committee could look at issues such as the relationship between human rights and free trade norms and treaty provisions, and more specific issues such the rights of indigenous peoples in areas being developed for biofuel or intensive agricultural production (including palm oil and jatropha plantations).49 The IUCN has extensive expertise and networks amongst local communities and indigenous peoples and understands their intersections with the global rules on environment and development.

The granting of observer status to human rights and environmental organisations at the WTO could bring the WTO more into line with other UN bodies. Developing countries have tended to oppose this, fearing domination by northern NGOs, but Joseph suggests it is needed to balance the dominance of commercial interests in the WTO.50

Conclusion

Some commentators suggest, from a realist perspective, that as the WTO is bogged down, regional and bilateral trade agreements should be negotiated that include strong environmental and human rights protections. The 2006 US–Peru Free Trade Agreement (US–PFTA) as amended is cited as a template as it includes strong labour and environmental protections, despite implementation failures in its early years, including a failure to consult with Indigenous Peruvians and consequential conflict. The US–PFTA requires compliance with and enforcement of a raft of MEAs, soft law mechanisms and domestic environmental laws, and links this to the dispute settlement system. Derogation from environmental laws is not permitted. An annex on forest sector governance is included. This is a persuasive argument. But it is not exclusive. There are risks if States retreat from multilateralism, as protectionism deepened the global recession between the two world wars, and trade blocs during the Cold War contributed to the lack of constructive dialogue across political systems. Strong environmental and human rights protections are needed globally if sustainable development and a green global economy are to be achieved. There are multiple areas of need for IUCN input, so that the WTO and other bilateral and regional free trade agreements can be greened. Expanding the engagement of CSOs and NGOs with the WTO may encourage governments to resolve issues and agree on overdue reforms.

43 Piewitt, above n 2, 485.44 Cosbey, above n 33, 46.45 the Trade Records Analysis of Fauna and Flora in Commerce (TRAFFIC)46 World Trade Organisation, ‘Briefing notes: trade and environment’,<http://www.wto.org/english/tratop_e/dda_e/status_e/envir_e.htm>47 Joseph, above n 2; Cosbey, above n 33, 2009, 13; M. Halle, ‘Preface: The contribution of accountability to sustainable global governance’, in R Wolfe with preface by M Halle, Did the protectionist dog bark? Transparency, accountability, and the WTO during the global financial crisis’, Policy Report, Stockholm March 2011 <http://www.iisd.org/pdf/2011/protectionist_dog_bark.pdf>Policy Report 01: Entwined March 2011, 3–5, at 4.48 Joseph, above n 2, 1149 ibid, 35 and foreword by O De Schutter, v–x, vii.50 Ibid, 61, 68–70.


NELR comments and reviewsLetter to the Editor

Ms Jemma Denny, a recent graduate of the New Zealand School of Forestry, writes in response to A Thomas, ‘Biobanking: Conservation or Degradation?’ 2011(2) NELR 54–62:

Dear editor

I have recently completed my Masters of Forestry Science at the New Zealand School of Forestry at the University of Canterbury, Christchurch, New Zealand. My research investigated the biobanking scheme in New South Wales and also mitigation and conservation banking in California and the United States. I therefore read Anne Thomas’s article ‘Biobanking: Conservation or Degradation?’ with great interest. Having studied the available literature on biobanking and offset schemes worldwide, and having followed the development of the NSW biobanking scheme over the past four years I am always keen to see more academic analysis and discussion as schemes rapidly develop around the world. I do however wish to raise some points concerning Anne Thomas’s conclusions that I feel are extremely important when debating the overall outcomes of the scheme.

I commend Anne’s recognition of the importance of providing financial incentives to landowners, and this as a barrier to conserving biodiversity on private land to date. A pivotal improvement upon previous systems, the trust fund mechanism providing sustained income for biobank managers and owners is indeed a fundamental strength of the scheme. Her consideration of the numerous issues attributed to impeding the effective implementation of the scheme, concurs with my own research and others I have followed.

But I felt she misrepresented the scheme’s objectives and this lead her to an erroneous conclusion. She correctly states that the scheme ‘aims to protect biodiversity values by reducing the impact of urban development on the environment, while promoting more efficient, cost-based conservation’. I am concerned however that she uses ‘three proposed guiding principles for biodiversity conservation as outlined by the NSW Government’ as a basis for assessment, suggesting that the overall aim of the scheme is biodiversity conservation, which is misleading. Admittedly, this mistake is frequently made in commentary investigating this novel resource management mechanism. Nonetheless, it is one which requires urgent rectification so that such schemes are allowed to deliver the results they are actually designed to provide.

As a mechanism of sustainable development, offsetting and offset banking such as biobanking are intended to provide a balance of three ‘results’: economic, social and environmental. Success is realized with economic development via facilitating development projects; conservation by enabling perpetual conservation on privately-owned land; and outcomes both economically and environmentally in line with societies’ needs and priorities.

Market-based mechanisms are employed so these outcomes are achieved in the most cost-effective way possible; meaning neither biodiversity conservation nor development should be more expensive under biobanking, compared to existing options. It should simply re-direct (private) finances to achieve more of these goals. Biobanking is therefore not a silver bullet for conservation. We still need national parks, reserves, conservation grants and the other existing conservation measures: biobanking simply offers an additional tool. I question whether it is therefore appropriate to assess biobanking against the three guidelines Anne suggests. Biobanking does not aim to achieve conservation all by itself, so should not be assessed as such. Anne rightly identifies some notable shortfalls within the current methodology. Her ambition for ‘the management and improvement of all ecosystems’ to be considered in the process of credit

NELR comments and reviews


assessment and allocation, ‘which takes into account all facets of the ecosystem and assignable units that can satisfactorily represent all biodiversity values’ is widely attractive and respectable.

Yet while such comprehensive assessment methodologies continue to be developed and debated around the world, scientific consensus has yet to mature. More importantly however, the time and money more comprehensive measurement involves potentially risks eroding any cost and time efficiency benefits the system is designed to deliver, deterring participation. Anne readily notes the already-rigorous and onerous requirements of biobanking as it currently stands.

Lastly, I believe that the scheme is indeed designed to aid prevention of biodiversity destruction because it encourages private land-owners with existing biodiversity values on their land to retain and perpetually manage them. Anne instead criticizes the scheme for failing to discourage degradation on development sites. Under the mandate of improve or maintain, biobanking cannot be expected to prevent all loss and degradation, and rather it maintains a balance of biodiversity ‘stock’ that incorporates sustaining existing values as part of this. Again, biodiversity conservation in New South Wales will be achieved through a variety of mechanisms, not biobanking in isolation.

For better or worse I offer no alternative opinion as to the success or otherwise of New South Wales’ biobanking scheme and simply applaud Anne Thomas for her research. I only request that the correct frame of assessment be applied so that when judging the effectiveness of the scheme, it is done with a full appreciation for the true potential and intent of the scheme. Anything less risks arriving at incorrect conclusions; unfairly jeopardizing the positive outcomes that lie within reach.

Biobanking is not the isolated silver bullet conservation has been waiting for and should not be approached as such. I commend Anne Thomas for endeavouring to hold biobanking to a necessarily high standard and look forward to joining her in observing how the biobanking scheme can be continually refined and improved to achieve the best environmental, economic and social outcomes possible.

Jemma Denny28 September 2011


NELR comments and reviewsBook Review: by Emeritus Professor Ken Taylor

This excellent book is a welcome addition to the academic and professional literature about the relationship between people and nature. Its theme underscores the inextricable links between cultural and biological diversity intimately existing between indigenous and traditional communities and their landscapes. As the book’s foreword indicates, the concern for these links relates closely to the work of the IUCN (World Conservation Union), where sacred natural sites play a particularly important role and the special relationship between nature and people is recognised.

The book consists of 27 chapters with a non-Eurocentric/North American perspective which, for this reviewer, is most welcome. The chapters cover a remarkably rich array of iconic and less well-known sacred natural sites. Chapter 1 suggests (p 1) that these are where ‘nature and humanity meet, and people’s deeper motives and aspirations are expressed through what is called ‘the sacred.’’ The sacred are those areas of land or water having special spiritual significance denoting deep respect. ‘Natural’ is taken to mean something in contrast to places with little or no nature, such as mosques and temples. It does not mean, therefore, an absence of people, as is all too often suggested by those with a limited view of wilderness. Sacred natural sites and associated nature conservation are seen from the perspective of biological diversity linked to ‘the array of distinct human cultures that care for them and hold them sacred’ (p 2).

There are too many chapters to mention individually. To pick detailed topics or challenges raised in the chapters would be invidious and leave the review open to the criticism of being too selective. Each chapter enlarges on the book’s clearly articulated theme, and each is highly readable, informative, and thought provoking. Nevertheless, one aspect should be mentioned as it is an increasing challenge in conservation management: that is the rights of traditional owners. This issue is articulated in the conclusion to chapter 10 with the following words:

The sacred dimension can and does play an important role in landscape care and nature conservation but eco-spiritual values continue to be ignored as a result of the mono-cultural myopia of dominant western research epistemologies. Intangible values only make sense when research epistemologies are predicated on pluralism, holism, multi-culturalism and post-modern logic and science (p 117).

The incidence of traditional people and local communities being removed or marginalised in some national parks and World Heritage areas based on what Edward Said once referred to as the ‘Puritan errand into the wilderness’1 is all too familiar. Incidences are recorded in various chapters. In this connection it is notable that a submission under the title Joint statement of indigenous organizations on continuous violations of the principle of free, prior and informed consent in the context of the World Heritage Convention was made to the 2011 World Heritage Committee meeting. A World Heritage Committee decision followed which called for the involvement of indigenous peoples and local communities in decision making, monitoring and evaluation of the state of conservation of world heritage properties and their outstanding universal value, and for the linking of direct community benefits to protection outcomes. The Committee also called for respect for the rights of indigenous peoples when nominating, managing and reporting on World Heritage sites in indigenous peoples’ territories.2

Bas Verschuuren, Robert Wild, Jeffrey A MacNeely, Gonzalo Oviedo (eds), Sacred Natural Sites (Earthscan 2010) 310pp. Aus$72.00 (paperback) ISBN: 978-1-84971-166-1 hardback; 978-1-84971-167-8 paperback

NELR comments and reviews


As a conclusion to the book, 10 key points are highlighted. These are held to ‘establish a framework and suggest steps toward supporting sacred natural sites as an important means of conserving nature and culture. [They] provide the conceptual foundation for the recommendations with which the book concludes.’ (p 280). These are followed by two annexes including a preliminary strategy and action plan for conservation.

The book is a must for all managers of heritage places where sacred natural sites occur, academics, heritage professionals, and students, not just of sacred natural sites but for those also from the culture side. It also ought to be brought to the attention of those preparing World Heritage nominations and to government agencies where the less famous examples exist outside formally protected areas and heritage sites.

1 E Said, Culture and Imperialism (Vintage Books 1994), 63

2 See UNESCO, World Heritage Committee, Global state of conservation challenges of World Heritage properties, Decision: 35 COM 12E, 35th session Paris, UNESCO Headquarters 19–29 June 2011

How to contribute

Written contributions to the National Environmental Law Review, by way of articles, case notes, book reviews or letters to the editor are welcomed. Please send contributions to your state or territory editor in the first instance, who will generally review them and advise the national editor. The NELR editors’ contact details are set out on the following pages.

As a general guide, articles should be between 3 000 - 5 000 words in length and should conform to standard conventions of legal writing. For example the Australian Guide to Legal Citation 3rd ed (by Melbourne Uni-versity Law Review Association) is an illustrative style guide available on-line.

Acceptance of written work in the NELR does not in any way indicate an adoption by NELA of the opinions expressed by authors. Authors remain responsible for their opinions, and any defamatory or litigious material, and neither NELA nor the NELR Editor accepts any responsibility for such material.

NELR 2011 deadline for contributions:

2011:4 2 December 2011 2012:1 23 March 2012 2012:2 1 June 2012

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Contributions to the NELA Bulletin may be submitted to the NELA Secretariat at any time and need to be received in the last week of each even-numbered month (Feb/Apr/Jun/Aug/ Oct/Dec).

Information for contributors


NELR editors

National editor: Dr Hanna Jaireth, Member, IUCN Commission on Environmental Law – [email protected]. Hanna has a longstanding interest in sustainable development and human rights, and has worked as an academic, lawyer, public servant and communications officer in a range of private and public sector positions. She completed undergraduate arts/law and postgraduate international relations studies. Her volunteer contribution to NELR is in a private professional capacity. She currently also sits on the board of the Environmental Defender’s Office (ACT).

International editor: Kathryn Walker, Senior Associate, Lynch Meyer Lawyers, Adelaide – [email protected]. Kathryn holds a Bachelor of Arts Degree with Honours in English and a Bachelor of Laws Degree. Since admission to practice in South Australia in 1998 Kathryn has gained considerable experience in large and complex litigation, particularly in Building and Construction, Trade Practices, Environment and Planning law and general Commercial Litigation. She is a member of the Law Society of South Australia and the Environmental Defenders Office.

Federal editors: Dr Nicola Durrant and Shol Blustein

Nicola Durrant: Postdoctoral Research Fellow, Queensland University of Technology – [email protected]. Nicola is a research fellow and lecturer in the Faculty of Law and Institute for Sustainable Resources, Queensland University of Technology, Brisbane. Dr Durrant holds a specialised environmental law degree from Griffith University (B.Sc.(Env)/ LLB (Hons)) and practised as a solicitor in environmental and planning law at a top tier firm in Sydney from 2002 to 2005. Her transdisciplinary doctoral research, completed in 2008, is titled “The Role of Law in Responding to Climate Change: Emerging Regulatory, Liability and Market Approaches”. She was recently awarded a three year Vice-Chancellor’s Postdoctoral Research Fellowship to enable her to continue her research into the development of climate change law and policy within Australia.

Shol Blustein: PhD Scholar, Law Faculty, Queensland University of Technology and Climate Change Research Analyst, Minter Ellison Lawyers – [email protected] Shol is currently completing a PhD in climate change law with the Faculty of Law at the Queensland University of Technology. Shol’s doctoral research is titled ‘Towards low emissions in the electricity generation sector: creating a coherent legal model for developed nations’. Shol also works for Minter Ellison Lawyers as a Climate Change Research Analyst in the Energy and Resources Group. As part of this role Shol regularly gives presentations and writes client papers on the climate change law and policy landscape in Australian and overseas. Before joining Minter Ellison, Shol worked as a banking and finance lawyer with another top tier law firm in Melbourne.

Australian Capital Territory editor: Kirsten Miller. Kirsten Miller has worked as the principal solicitor at the EDO (ACT) since 2007. Kirsten advises on ACT and Commonwealth environmental and planning law, and participates in policy reform and community legal education on public interest environmental matters. Kirsten was a contributing author and coedited the second edition of the ACT Environmental Law Handbook. She first became involved in environmental law in 1996 when she undertook her legal professional placement at the Victorian Environment Defender’s Office. Kirsten also lectures in environmental law at the University of Canberra.

New South Wales editor: Dr Nicholas Brunton, Partner, Henry Davis York – [email protected]. Nicholas Brunton has been a member of NELA and state editor since 1992. He has degrees in Law and Geography from Macquarie University and received a PhD from the University of Sydney in 1998. His thesis examined the law and policy relating to coastal water pollution in Australia. Nicholas currently practices in the areas of planning, environment, valuation, property and commercial law. He is also kept busy providing guest lectures at both Sydney and Macquarie.

Queensland editor: Dr Justine Bell, Post-doctoral research fellow – [email protected]. Justine completed her Bachelor of Laws and PhD at the Queensland University of Technology, and is now a post-doctoral research fellow in the Global Change Institute at the University of Queensland. Justine’s research interests broadly span environmental, insurance and property law, and she is currently working on a large multi-disciplinary project examining how to effectively manage the impacts of sea-level rise. Justine also teaches undergraduate and postgraduate environmental law subjects at the TC Beirne School of Law at the University of Queensland.


NELR editors

South Australia editors: Nicole Harris and Victoria Shute, Both lawyers with Wallmans Lawyers- [email protected] – [email protected].

Nicole Harris is a Senior Associate in Wallmans Lawyers Local Government Planning & Environment Team. She regularly provides advice regarding the development assessment process, and acts for councils in enforcement and appeal proceedings pursuant to the Development Act 1993. Nicole also provides advice to councils regarding the Development Plan amendment process and drafts land management agreements. Nicole provides advice and acts in appeal proceedings regarding environment authorisations and environment protection orders and in enforcement proceedings and prosecutions pursuant to the Environment Protection Act 1993. Nicole also has experience in providing clients with advice on a range of related environmental issues including waste and landfill, water resources, native vegetation protection, and land contamination.

Victoria Shute is an Associate in Wallmans Lawyers Local Government Planning & Environment Team. She advises councils on both planning and environmen issues, and on issues relevant to local government practices and procedures generally. Victoria also has significant expertise in advising on a rance of planning, environment and resource management issues, such as waste, landfil, native vegetation protection, pollution liability and water resources. Victoria’s industry experience is broad. Prior to joining Wallmans Lawyers in 2008 she practiced in a specialist development and environment legal firm. She has also worked as a Judicial Associate in South Australia’s Environment, Resources and Development Court.

Tasmania editor: Tom Baxter, Lecturer, University of Tasmania – [email protected]. Tom Baxter, BEc/LLB(Hons)(Tas), Grad Cert Leg Prac(Tas), LLM(ANU), has been a member of the NELA National Executive since 1997. After graduating from the University of Tasmania, Tom worked at Dobson, Mitchell & Allport in Hobart from September 1997 to December 1999. From January 2000 to May 2003 he was Legal Officer at the Great Barrier Reef Marine Park Authority, a Commonwealth statutory authority based in Townsville. In June 2003 he returned to Hobart as a lecturer in the School of Accounting and Corporate Governance at the University of Tasmania.

Victoria Editors: Wayne Gumley and Barnaby McIlrath

Wayne Gumley, Senior Lecturer, Monash University – [email protected]. Wayne completed a BSc and LLM at Monash University and first worked as a solicitor in general practice in northeast Victoria before joining the Australian Government Solicitor’s Office in Melbource. He now lectures in taxation law, business law and environmental law in the Faculty of Business and Economics at the Monash Clayton Campus. Wayne’s research interests centre on regulatory strategies for sustainable development, particularly ecological tax reform and the role of market-based instruments.

Barnaby McIlrath, Senior Associate, Maddocks Planning and Environment Group, Melbourne – barnaby. [email protected]. Barnaby has been employed at Maddocks since 2005. Prior to that he was a casework solicitor at the Victorian Environment Defenders Office. He graduated from Monash University in 2001 with degrees in law and commerce. Barnaby’s practice focuses primarily on native vegetation regulation, waste management & contamination, environmental compliance, industrial development and town planning. He has a particular interest in regulation of biodiversity and carbon offsets, having recently advised the Department of Sustainability and Environment in relation to its BushBroker scheme and Parts 4 and 5 of the Climate Change Act 2010.

Western Australia editors: Joe Freeman and Ainsley Reid

Both lawyers with Allens Arthur Robinsons, Perth – [email protected], [email protected]

Joe Freeman graduated from the University of Western Australia in 2008 after studying a Bachelor of Laws and Bachelor of Arts and currently works as a lawyer at Allens Arthur Robinson in Perth. Since joining Allens Arthur Robinson in 2009, Joe has worked in the Environment and Planning practice group.

Ainsley Reid is a lawyer in the Projects, Environment & Planning group of Allens Arthur Robinson in Perth. She has an LLB/BA from the University of Western Australia. Since joining Allens Arthur Robinson in 2009, Ainsley has been the secretary of the firm’s sustainability committee in Perth.

EU ENVIRONMENTAL POLICY AND LAW

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