Law and policy developments
In the legislature
Australian Capital Territory
Nature Conservation Bill 2013
The Nature Conservation Bill 2013 is part of the review of the Nature Conservation Act 1980, which, for more than thirty years, has been the chief legislation for the protection of native plants and animals in the ACT and for the management of the conservation reserve network.
The long-awaited exposure draft for the Nature Conservation Bill 2013 was tabled in the Legislative Assembly on 31 October 2013 and while the submission period has now ended, the exposure draft is still available here and the ‘Review of the Roles and Functions of the Conservator of Flora and Fauna’ conducted by PriceWaterhouseCoopers in 2011 has now been released and is available here.
New South Wales
Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014
This Act, assented to on 31 January 2014, cancels three coal exploration licences at Doyles Creek, Glendon Brook and Mount Penny following investigations and proceedings of the Independent Commission Against Corruption which found that the licences were tainted by serious corruption.
Planning Bill 2013
The Planning Bill 2013 will return to the NSW Legislative Assembly for further debate in 2014 because the NSW Legislative Council made almost 50 amendments to the Bill. Amendments include the removal of code assessment provisions, new affordable housing provisions, and the insertion of a definition of “environmentally sensitive area” which includes critical habitat, wilderness areas, and land identified by local plans as an environmentally sensitive area, an area of high Aboriginal cultural significance, or an area of high biodiversity significance. An amendment was also passed by the upper house which would remove provisions in the newly made Mining SEPP relating to the consideration of the significance of resources and non-discretionary development standards for mining. The Government has indicated that it will be consulting further in the interim.
Pulp Mill Assessment Amendment Act 2014
This Act, which has just been passed by the Tasmanian parliament, amends the Pulp Mill Assessment Act 2007, under which the controversial Bell Bay pulp mill project was assessed and approved, to extend the period within which the project must be substantially commenced from 4 years to 10 years. The amendments also remove a provision requiring the permit to be suspended in the event of a breach of any permit conditions.
The amendments will put an end to the Tasmanian Conservation Trust’s current Supreme Court challenge regarding the validity of the Pulp Mill Permit. The Trust is alleging that the Pulp Mill Permit lapsed when Gunns Limited failed to substantially commence the development by August 2011. The amendments have effectively extended this commencement deadline to August 2017.
The pulp mill project has been on hold since Gunns Limited went into administration in September 2012. The company’s assets, including the Bell Bay site and associated permits, were put up for sale last November 2013. Administrator, KordaMentha, has indicated that a number of parties are interested in purchasing the site, though not all are interested in constructing the pulp mill.
Amendments to the Environmental Protection (Clearing of Native Vegetation) Regulations 2004
Amendments to the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 were gazetted on 3 December 2013 and comprised the following key changes to prescribed clearing definitions (regulation 5) for the purposes of section 51C of the Environmental Protection Act 1986:
an increase in time from 10 to 20 years for land owners and occupiers to maintain existing cleared areas for land that has been used for pasture, cultivation or forestry,
an increase in the allowable limited clearing area from one hectare to five hectares, per property, per financial year. Limited clearing is defined as clearing to construct a building, clearing for firewood, clearing to provide fencing and farm materials, clearing for woodwork, clearing along a fenceline, clearing for vehicular tracks, clearing for walking tracks, and clearing isolated trees.
The amendments relax the requirements for clearing permit authorisations for these prescribed activities.
In the courts
New South Wales
Connell v Santos NSW Pty Limited  NSWLEC 1
Santos pleaded guilty to four charges of committing offences under section 136A (1) of the Petroleum (Onshore) Act 1991 (“the Act”) in that it, without reasonable excuse, failed to comply with certain reporting conditions of a petroleum title which it held over an area of land south of Narrabri, NSW.
In considering sentence, the court considered, among other things, the following factors: that the harm in question was low level environmental harm comprising damage to soil and vegetation; that the risk of harm to the environment was clearly foreseeable; that practical measures could and should have been taken to prevent harm; and that the defendant had control over the causes of the harm.
The defendant was convicted of the offences as charged, fines were imposed, the defendant was ordered to pay the prosecutor's costs and moiety orders were made.
Tarkine National Coalition seeks reasons for decision to amend Shree Minerals’ permit conditions
In 2013, the Environment Protection Authority granted approval for Shree Minerals’ magnetite mine at Nelson Bay River, in the Tarkine area, subject to a condition requiring in-ground storage of potentially acid forming waste materials. At the time, the EPA noted that there was “no suitable location on the site for above ground storage”. Prior to the commencement of mining in December 2013, the EPA approved an amendment allowing above ground storage of acid forming wastes for a period of up to 30 months.
The Tarkine National Coalition has commenced court proceedings for an order that the EPA provide reasons for its decision to amend the permit. The EPA refused earlier requests to provide a statement of reasons on the basis that the Tarkine National Coalition was not a “person aggrieved” by the amendments. The Supreme Court will consider the matter on 4 March 2014.
Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council (Red dot)  VCAT 1939
In a previous issue it was reported that the Tribunal had made an interim decision in this case involving 16 proposed wind turbines in the Cherry Tree Ranges, north of Melbourne. This interim decision allowed further time for additional ‘public report’ information to be considered, regarding the potential adverse health impacts of wind turbines on nearby residents (being a key issue in debate). Having received this further information, the Tribunal handed down its final decision in November 2013, approving the proposal. This final decision focused on the above-mentioned public health reports handed down by relevant statutory authorities, which essentially found that there is no published scientific evidence to directly link wind turbines with adverse health effects. With respect to the ‘potential health impacts’ issue, the Tribunal found that there is no compelling evidence (and no evidence at all capable of being tested) that would justify the Tribunal adopting a view that is opposed to the findings of these authorities. The Tribunal reiterated that in relation to statutory authorities charged with the protection of public health, their views must be respected and departed from only if there is compelling evidence that so requires.
Australian news and policy developments
Final hurdle for commencement of Abbot Point project cleared
On December 10, Federal Environment Minister Greg Hunt approved the dredging and dumping project in the Great Barrier Reef World Heritage Area at Abbot Point. The dredging project is to make way for Adani Mining Pty Ltd’s three new terminals to export millions of tonnes of coal from Galilee Basin mines every year, which project has also been approved.
On 31 January 2014, the final hurdle to commencement of the project was cleared when the proponents received the permits they need to commence work from the Great Barrier Reef Marine Park Authority (GBRMA), the federal authority specifically created to manage the reef’s conservation. The permits are subject to “strict environmental conditions”.
Further information about the grant of these permits is available here.
Environment Minister’s Council abolished
Australia’s environment ministers will no longer meet as a group to tackle common environmental issues.
The COAG Standing Council on Environment and Water was abolished at the council’s meeting on 13 December 2013, the first since the federal Coalition was elected. “Too much bureaucracy and red tape has grown up around COAG,” the meeting communiqué said.
COAG decided 22 standing committees “should be streamlined and refocused on COAG’s priorities over the next 12-18 months”. Of the eight new committees none will deal with environment, water or climate change issues.
Marine parks ‘open for business’
On 13 December, federal environment minister Greg Hunt and agriculture parliamentary secretary Richard Colbeck scrapped what they called the “flawed” management plans for ocean sanctuaries. Hunt and Colbeck said the Abbott government was “delivering a key election promise by scrapping [the former Labor government’s] plan to lock out recreational fishers from key coastal areas around the country”.
Governor-General Quentin Bryce has “reproclaimed” the new marine reserves, and the fishing exclusion zones that would have come into play next July will no longer come into operation.
The media release is available here.
Australian Capital Territory
90% Renewable Energy Target Made Law
In November 2013, the ACT Minister for the Environment, Simon Corbell, announced the formal establishment in law of the 90% renewable energy target for the ACT to be achieved by 2020.
Mr Corbell said that the renewable energy target will see “90% of electricity used in the ACT in 2020 coming from renewable energy sources, such as solar, wind or biomass, reducing our greenhouse gas emissions by around 1.5 million tonnes in that year”.
More information is available here.
New South Wales
Additional coal seam gas exclusion zones introduced
The NSW Government has introduced a number of additional coal seam gas (CSG) exclusion zones. CSG development cannot be carried out on or under land that is zoned residential or identified as future residential growth area land, or within a two kilometre buffer around these areas. New CSG developments have been prohibited on land zoned residential and in the “future residential growth areas” of the North West and South West Growth Centres of Sydney since October 2013. Areas identified as “critical industry clusters” have been mapped by the NSW Government, and new CSG developments are now prohibited in these areas.
For more information, click here.
Bilateral agreement to create single environmental assessment process signed
The Federal and NSW governments have signed a new bilateral agreement to create a single environmental assessment process less than two days after public submissions on the agreement closed. Under this agreement, the NSW Government is 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.
Approvals bilateral for matters of national environmental significance and strategic assessments
In December 2013 the Commonwealth and Northern Territory Governments signed a Memorandum of Understanding (MOU) to finalise an approvals bilateral agreement for matters of national environmental significance by 18 September 2014. It was also agreed to finalise a “comprehensive assessment bilateral agreement” within 6 months. This will mean that both the assessment and approval of actions that may have a significant impact upon matters of national environmental significance will undertaken by the Northern Territory rather than the Commonwealth Government if these agreements are finalised.
The stated purpose of the MOU is to ‘deliver a one-stop-shop for environmental approvals under the Environment Protection and Biodiversity Conservation Act 1999 removing duplication in assessment and approvals processes, while maintaining environmental outcomes’.
Both Governments have also committed to develop during 2014 an agreed priority list of future strategic assessments for the Northern Territory.
The MOU is available here.
Investigation into failure of mine leach tank
A joint Northern Territory and Federal Government investigation was announced on 13 December 2013 into the ‘failure’ of a leach tank at Ranger Uranium Mine, which is surrounded by Kakadu National Park. A taskforce will investigate in accordance with the following terms of reference:
identify the immediate cause of the incident,
examine the integrity of broader processing operations,
identify any gaps in operating procedures or maintenance practices,
undertake a comprehensive examination of corporate governance arrangements,
provide recommendations to the Commonwealth Minister for Industry and the Northern Territory Minister for Mines and Energy.
The Traditional Aboriginal owners will be asked to appoint a member to the taskforce.
Federal government seeks to ‘wind back’ World Heritage listing for Tasmanian wilderness areas
In June 2013, the World Heritage Committee approved the extension of the Tasmanian Wilderness World Heritage Area by approximately 170,000 hectares. The extension, which included contested areas such as the Western Tiers, Styx, Florentine and Weld Valleys, was a key conservation outcome under the Tasmanian Forest Agreement.
The Federal government has written to the World Heritage Committee to request a “minor modification” to remove approximately 74,000 hectares of the extension area from the World Heritage listing. Details regarding the request have not been released, however Tasmanian Liberal Senator Richard Colbeck indicated that the area to be removed would include areas that have been “impacted by forestry operations and devalue the existing Outstanding Universal Value". The government hopes that the request will be determined at the Committee meeting in Doha in June 2014.
It remains to be seen whether the World Heritage Committee will accept that the proposal is a “minor modification”, or will consider that it constitutes a significant modification that would require a longer assessment process.
Government and opposition refuse to commit to supertrawler ban
In the lead up to the State election, the Stop the Trawler Alliance, a joint initiative between recreational fishers and conservation groups, has sought a commitment from each of Tasmania’s major parties to permanently ban supertrawlers from operating in Tasmanian waters. (The existing Federal ban on supertrawlers under the Environment Protection and Biodiversity Conservation Act 1999 will expire in November 2014.)
Tasmanian Labor and Liberal spokespeople refused to commit to a blanket ban, indicating that they would determine each situation on the basis of scientific evidence. The Tasmanian Greens support a permanent ban on the basis of concerns regarding localised depletion and impacts on recreational fishing and marine ecosystems.
GMO ban extended indefinitely
The Tasmanian government has announced an indefinite extension of the current moratorium on genetically-modified organisms (GMOs) in Tasmania, which has been in place since 2001. Primary Industries Minister, Bryan Green MHA, said that the indefinite ban on GMOs was intended to maintain the integrity of Tasmania’s brand and maximise future marketing opportunities. The ban, which has tri-partisan political support, has been criticised by the Tasmanian Farmers and Graziers Association and Poppy Growers Tasmania, who advocated for regular reviews of the ban to consider the potential benefits of new GMOs to primary industries.
Protection of naturally vegetated areas through planning and development
In December 2013 the WA Environmental Protection Authority (EPA) released Environmental Protection Bulletin No. 20 (Protection of naturally vegetated areas through planning and development).
The bulletin sets out the EPA’s views and expectations for the design of urban and peri-urban development proposals in order to protect naturally vegetated areas. It is designed to assist planners and developers in the integration and consideration of naturally vegetated areas during all stages of the planning process, to meet the EPA’s environmental objectives for vegetation and flora, and terrestrial fauna.
The bulletin applies to strategic planning, structure plans, new schemes and scheme amendments, subdivision and development proposals, in urban and peri-urban areas of Western Australia.
To obtain a copy of the bulletin, click here.
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