Law and policy developments
In the courts
New South Wales
Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2)  NSWLEC 156
In this case, a community group sought to restrain the sale of land by Manly Council on basis that under the Local Government Act 1993 (the Act) it is classified as community land, which Council has no power to sell; the land comprised two properties zoned “Public Recreation” adjacent to Little Manly Beach reserve.
The Court held that a Council resolution classifying one of the properties as operation land was beyond power because it was deemed to be community land under the Act and the Council failed to give public notice of the resolution as required under the Act. It was also held that a Council resolution purporting to reclassify the other property as operation land was beyond power because it was inconsistent with the terms of a trust for a public purpose, executed by the transferor as part of the compulsory acquisition process.
The Court made an order restraining Council from selling, exchanging or otherwise disposing of the land so long as it remained classified as community land and the Council was ordered to pay the applicant’s costs.
Mine operator fined for causing environmental harm
The former operator of Baal Gammon copper mine, Kagara Pty Ltd, has pleaded guilty to three charges relating to the unauthorised release of contaminated water into Jamie Creek and the Walsh River west of Herberton during the 2011/12 wet season.
Kagara was subsequently fined $120,000 by the Cairns Magistrates Court for contravening an environmental protection order, unlawfully causing material environmental harm, and breaching a condition of the mine’s Environmental Authority.
The owner of the mine, Baal Gammon Copper Pty Ltd, was fined $80,000 in relation to the discharges in September.
In the legislature
Carbon price repeal Bills
The Commonwealth Government has introduced several Bills into Parliament that would repeal a number of initiatives established under the Clean Energy Package. The proposed legislation, if passed, would abolish the carbon price, the Climate Change Authority, the Clean Energy Finance Corporation and the Clean Energy Regulator and will be debated by the Senate in December after being passed by the House of Representatives on 21 November.
More information is available here
Regional Planning Interests Bill 2013
This Bill was recently introduced into Parliament and is intended to manage the impact of resource activities and other regulated activities on areas of the State that contribute, or are likely to contribute, to Queensland’s economic, social and environmental prosperity. When enacted it will repeal the Strategic Cropping Land Act 2011.
The Bill has now been referred to committee.
New South Wales
Planning Bill 2013 and Planning Administration Bill 2013
The NSW Government has introduced the Planning Bill 2013 and its cognate, the Planning Administration Bill 2013, into Parliament. This follows the Government’s Green Paper and White Paper on a New Planning System for NSW, which were open for public comment in 2012 and 2013.
The Planning Bill 2013 has been amended in the Legislative Council and returned to the Legislative Assembly for concurrence. The Planning Administration Bill 2013 has been passed by both Houses.
Copies of the Bills, and details of the passage of the Bills through Parliament, are available here.
Protection of the Environment Operations Amendment (Prosecutions) Bill 2013
This Bill, recently introduced to the Legislative Assembly, proposes to amend the Protection of the Environment Operations Act 1997 to transfer the power to prosecute serious environmental offences from the Environment Protection Authority to the Director of Public Prosecutions and the Attorney General.
The progress of this Bill can be followed here.
Rural Fires Amendment Act 2013
This new Act will amend the Rural Fires Act 1997 to make further provision for bush fire hazard reduction, and the National Parks and Wildlife Act 1974 to provide immunity from committing certain offences under that Act in the course of carrying out bush fire hazard reduction work.
Mining and Petroleum Legislation Amendment (Public Interest) Bill 2013
This Bill, which has now passed both houses, will amend the Mining Act 1992 and the Petroleum (Onshore) Act 1991 to make the public interest a ground for certain decisions relating to mining or petroleum rights or titles, including refusing to grant a new title, refusing to renew a title, and cancelling a title.
Aboriginal heritage legislation parked
Debate on controversial Aboriginal Heritage management legislation has been deferred, following the Legislative Council’s decision to refer the legislation to a standing committee. The legislation, which seeks to replace the outdated Aboriginal Relics Act 1975 and integrate Aboriginal heritage assessment into the planning process has been criticised by some members of Tasmania’s Aboriginal community for its failure to give the Aboriginal Heritage Council any power to refuse development applications. The power to refuse an application on the basis of impacts on Aboriginal heritage rests solely with the relevant Minister.
The committee will consider the legislation when parliament resumes in March 2014, following the State election.
Further information about the legislation is available here and here.
Australian news and policy developments
Minister Hunt provides details of Direct Action policy
On 3 December, Environment Minister Greg Hunt released details of the government's $2.55 billion Direct Action policy in a speech to the Carbon Expo in Melbourne.
Mr Hunt made the following points:
there is a reasonable expectation that abatement providers under the government's Emissions Reduction Fund will be offered five-year contracts;
project proponents could create abatement credits that would go beyond five years, giving reassurance to potential bidders;
the government would ensure Australian carbon credits under the scheme would be able to be converted into international credits;
the government would consider regulatory measures to set emissions standards and energy efficiency goals, if industry came forward with such a proposal.
This update is based on a report published in the Climate Spectator. You can read the report here.
Emissions Reduction Fund
The Commonwealth Government’s call for submissions on the terms of reference for the proposed $2.55bn emissions reduction fund (ERF) has attracted comments from industry.
The Australian Industry Group’s submission made a number of significant points, including the following:
The fund should be funded outside the budget so that it isn’t “whittled away” by future governments, otherwise “the policy is unlikely to attract companies that will need to make a significant long-term effort to develop a proposal” to tender at ERF auction.
Businesses would “lack the confidence to build a business model that requires repeat transactions” unless that risk was avoided by creating an ERF fund “independent of the budget cycle”.
International carbon offset units should be included in the emissions reduction policy. They said it is “simple common sense” and would free up resources “for other national priorities or, potentially, allowing greater [emissions reduction] ambition”. Further, the government’s policy of trying to meet Australia's international commitment to raise its target above -5% on 2000 levels by 2020 using only domestic abatement “would be very challenging, particularly considering the likelihood that local options are relatively high-cost and low-volume”.
A copy of the submission is available here.
New South Wales
NSW Government signs environmental assessment and approvals MoU with Commonwealth
The Commonwealth and NSW governments have entered into a Memorandum of Understanding (MoU) as part of Australian Government’s ‘One Stop Shop’ policy for streamlining environmental assessment and approval.
Under the MoU, the NSW Government will become responsible for assessing projects relating to matters of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). An approval bilateral agreement is expected to be signed within 12 months, which would make the NSW Government responsible for approving projects under the EPBC Act.
A copy of the MoU is available here.
Amendments to Mining SEPP gazetted
The State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013 has now been gazetted. It differs from the draft exhibited in that will amend the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 to extend its application to existing mines that seek to extend or expand their operations, as well as to new mines.
Further detail is available here.
Moratorium on coal seam gas in Sydney water catchment special areas
The NSW Government has announced a hold on coal seam gas activities within Sydney water catchment special areas, effective immediately. The hold will remain in place while the NSW Chief Scientist and Engineer investigate the impact of coal seam gas activities and other contributing factors on water in the Special Areas.
A copy of the media release announcing the moratorium is available here.
A Ministerial Statement on Water Resources was issued on the 9 October 2013 in the NT Parliament. A Northern Territory Water Policy is to be developed with provision for public consultation.
The Water Act is currently being reviewed with the intention of complying with the National Water Initiative, examining water trading and markets and to provide for perpetual water licences. There is no reference to public consultation with respect to the review of the legislation.
The Statement further advises that the Government has terminated the recognition of a Strategic Indigenous Reserve in Water Allocation Plans but will review this issue over the next two and a half years.
A Northern Territory Catchments Advisory Committee is to be established.
2020 Climate Change Strategy released
The Tasmanian Government has released the Climate Smart Tasmania: A 2020 Climate Change Strategy. The Strategy outlines a number of actions and targets to be undertaken, setting the path for achievement of the legislated target of 60% reduction on 1990 emissions by 2050.
Significantly, the Strategy establishes ambitious targets to be achieved by 2020, including 35% emission reductions and generation of 100% of Tasmania’s power from renewable energy. The Strategy also commits to the continuation of a range of government initiatives to assist households and small to medium enterprises to reduce their energy use, as well as supporting research into alternative transport options.
The Strategy follows 12 months of stakeholder consultation, involving numerous public meetings and attracting over 100 written submissions. The Strategy is available here.
Fracking moratorium to remain until 2015
A moratorium on hydraulic fracturing will remain in place in Victoria until at least July 2015 while the State Government undertakes an extensive consultation process into a report on coal seam gas exploration.
The taskforce’s final and supplementary reports can be found here.
Outcome of Warsaw climate change talks
United Nations Secretary-General, Ban-Ki Moon, has said that the climate change talks which have recently been taking place in Warsaw between diplomats and environment experts representing more than 195 parties to the UN Framework Convention on Climate Change, the parent treaty of the 1997 Kyoto Protocol, have proven to be an important stepping stone towards a universal legal agreement in 2015.
The talks included participation from the private sector for the first time, and the resulting agreement has laid the groundwork for a legally binding treaty to cut greenhouse gas emissions, to be adopted in 2015 and to enter into force by 2020.
Further information about the talks is available here.
Reports on the conference by NELA’s partner Sustainable Business Australia are available here.
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