Law and policy developments
In the legislature
Orders given to ban dumping of capital dredge material in Marine Park
On 24 January 2015, the Hon. Greg Hunt, Environment Minister officially announced that he had issued orders to prevent dumping of capital dredge material in the Marine Park. The Great Barrier Reef Marine Park Authority will draft regulations to amend the Great Barrier Reef Marine Park Regulations 1983 (Cth) to implement the ban.
It is anticipated that public consultation in relation to the draft regulations will be carried out in February, with the aim of implementing the regulations by mid-March 2015. For more information, click here.
On 24 December 2014, Parliamentary Secretary to the Minister for Agriculture, Senator Richard Colbeck, announced the government’s intention to introduce a ban on supertrawlers greater than 130m in length operating in the Small Pelagic Fishery. While no further details have been released, it is likely that the ban will be implemented through a regulation under the Fisheries Management Act 1991 (Cth).
An earlier ban on vessels greater than 130m in length and with an on-board storage capacity exceeding 2,000t operating in the Small Pelagic Fishery expired in November 2014. A second ban, preventing vessels with storage capacity above 1,600t, will expire in April 2015.
Various groups have raised concerns regarding the scope and permanence of the proposed ban, arguing that storage capacity is a better indicator of potential impact than length.
Assessment bilateral agreement signed
The Commonwealth Environment Minister and Northern Territory Environment Minister entered into a Bilateral Agreement relating to environmental assessments on 11 December 2014. The agreement accredits the Territory’s environmental assessment legislation administered by the EPA under s.45 of the EPBC Act.
For more information, click here.
Mining Variation Regulations
The Mining Variation Regulations 2014 (SA) commenced on 18 December 2014. The regulations amend the Mining Regulations 2011 in relation to the giving of notice for terms and conditions on mining leases and other licences. The changes mean that the relevant Minister is now expressly required to notify an applicant of the proposed terms and conditions, and to provide the applicant at least 7 days to make submissions on the proposed terms and conditions before they are finalised by the Minister.
Anti-protest laws commence
The controversial Workplace (Protection from Protesters) Bill 2014 took effect on 19 December 2014.
The Act creates offences for protest activities that obstruct key industries (forestry, agriculture, mining, manufacturing and construction) and government businesses, give broad powers of arrest to police and impose maximum fines of up to $10,000 or up to 4 years in prison.
Click here for an analysis of the implications of the laws.
In the courts
Challenge to dredging proposal
The Alliance to Save Hinchinbrook has applied for an injunction and judicial review of Environment Minister Greg Hunt’s assessment of applications to dredge and dump spoil adjacent to the Great Barrier Reef. The case alleges errors of law in Minister Hunt’s decision to allow assessment by preliminary documentation, rather than a more thorough assessment process with a longer public consultation period. For more information about the case, see EDO Qld’s website.
Challenge regarding Carmichael mine’s greenhouse gas emissions
The Mackay Conservation Group has also applied for judicial review of the Environment Minister’s decision to approve Adani Mining Pty Ltd’s Carmichael coal mine. The application alleges Minister Hunt erred in failing to take into account the impacts of greenhouse gas emissions produced by burning coal from the mine. For more information, see EDO NSW’s website.
New South Wales
Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 4)  NSWLEC 200
Following the Land and Environment Court’s decisions in Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2)  NSWLEC 129 (HEL (No 2)), and Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 3)  NSWLEC 130 (HEL (No 3)
(previously reported in the Bulletin), conditions of approval for the large open cut mine in the Hunter have now been finalised. A key condition requiring determination by the Court related to a private property located within the proposed mining area.
A large part of the project, including parts of the mine pit and the final void/sedimentation pond, was to be carried out and located on private property. The applicant objector sought to have a condition imposed which provided that the project could not proceed until the miner had acquired the freehold property and obtained a mining lease over the property. Noting that if the owner chose not to sell, lease or licence the property to the mining company, the project as assessed and approved could not proceed, the Court imposed a condition that the property must be purchased, leased or licensed by Ashton. The Court rejected submissions by Ashton that the condition was contrary to the Newbury test for validity of a condition of consent under the NSW planning legislation: the condition had a planning purpose, related to the development the subject of the approval and was not unreasonable in the circumstances of the case.
Teys Australia Southern Pty Limited v Burns  NSWLEC 1
The Land and Environment Court recently considered the requirement for a consent authority to consider the provisions of proposed environmental planning instruments in its assessment of a development application, under s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW). The case is important because there has been little judicial consideration of the new statutory scheme for the making and consideration of an environmental planning instrument, which commenced on 1 July 2009. It was argued that, despite the legislative changes in the statutory scheme, the reference to "proposed instrument" in s 79C(1)(a)(ii) could be met only by a specific draft instrument.
The Court disagreed, concluding that the new planning proposal and gateway process did not require a draft instrument to be placed on public exhibition. Rather, details of the proposed instrument are to be exhibited as part of the planning proposal. That is the “proposed instrument” referenced in s 79C(1)(a)(ii). The Court held that, in this case, a proposed instrument existed at the time of the decision and was taken into account by the consent authority. No failure to consider a mandatory relevant matter was demonstrated.
Interim injunction issued to prevent re-opening of 4WD tracks
On 23 December 2014, the Federal Court issued an interim injunction under the EPBC Act to prevent the Tasmanian government from re-opening a number of off-road tracks in the Arthur Pieman Conservation Area. The tracks, which were closed in 2012 to protect natural and cultural heritage values, are within the nationally listed heritage place, Western Tasmania Aboriginal Cultural Landscape. Justice Kerr was satisfied that there was an arguable case the re-opening the tracks would have a significant impact on the indigenous heritage values of the National Heritage place.
Further hearing dates for this matter are yet to be set. Read the full judgment in Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment  FCA 1443 here. For background information, click here.
Failure to consult not necessarily fatal to environmental licences
In Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation  WASC 468, the Supreme Court of WA held that environmental licences will not be automatically rendered invalid because of a failure to comply with statutory consultation requirements.
The decision related to a bid by Clive Palmer’s iron ore company, Mineralogy Pty Ltd, to overturn a decision to issue two licences to Mineralogy’s estranged business partner, CITIC Pacific Mining Management Pty Ltd, in respect of loading bulk carriers and a desalination plant at CITIC’s Sino Iron Ore project.
Mineralogy argued that the licences were invalid because DER had failed to consult with Mineralogy, contrary to the requirement under s.57(2) of the EP Act to seek comment from ‘any public authority or person which or who, in the opinion of the CEO, has a direct interest in the subject matter of that application’.
The Court found that the provisions of the EP Act did not indicate that a failure to comply with the consultation provisions would result in invalidity of any licence subsequently granted. The Court also noted that separate requirements for public notice, allowing a period for public comment, meant that any interested party had an opportunity to comment on a proposal, even if their view was not explicitly sought under s.57(2).
Supreme Court rules on Coffey contamination case
In Coffey LPM Pty Ltd v The Contaminated Sites Committee  WASC 504, the Supreme Court rejected claims that the Contaminated Sites Committee had erred in determining that Coffey was responsible for remediating a contaminated site.
In 2004, a contamination incident occurred when a fuel pipe at a former service station was punctured during a contamination drill test conducted by a company that was subsequently acquired by Coffey International Limited (Coffey).
In August 2013, the Contaminated Sites Committee determined that Coffey was responsible for 70% of site remediation. This determination was followed in 2014 by an identical allocation of responsibility for remediating two nearby parcels of land that had been contaminated by off-site migration from the immediate site.
Coffey claimed that the Committee had erred when it found that it was the company’s drilling which had punctured the pipe and caused the contamination. The Court dismissed the claim, observing that the submissions addressed the merits of the Committee’s decision, and did not raise questions of law.
However, Coffey successfully argued that the Committee’s allocation of responsibility for the off-site contamination involved an error of law. The Court was satisfied that the Committee had relied on s.27(2)(a) of the Contaminated Sites Act 2003 (WA), which deals with landowner responsibilities for off-site contamination. As Coffey did not own the service station site from which the contamination migrated, s.27 had no application.
The Court remitted the matter back to the Committee.
Policy developments and other news
Federal Government announces $200 million for green climate fund
The Federal Government has announced that they will allocate $200 million over four years to the Green Climate Fund. The new funds, which will come from the Federal aid program, will bring the total international contributions to the Green Fund to its target of $10B USD.
Lima Conference Considers Decarbonising Proposal
A draft paper that is reportedly the planned basis for the new climate change agreement to be negotiated in Paris later in the year (to replace the Kyoto Protocol when it expires in 2020) calls for delegates to decarbonise their economies by 2050 as part of a move to negative emissions.
Specifically, the draft proposes that parties make efforts to ‘establish a long-term zero emissions sustainable development pathway… consistent with carbon neutrality / net zero emissions by 2050, or full decarbonisation by 2050 and / or negative emissions by 2100.’
Climate Change Authority to review ETS options
The Environment Minister has directed the Climate Change Authority to undertake a Special Review under the Climate Change Authority Act 2011. As part of the review, the Authority will prepare the following reports:
a draft report on future emissions reduction goals by 30 June 2015
a draft report on emissions trading schemes by 30 November 2015
a final report by 30 June 2016, recommending the action Australia should take to implement its obligations under the UNFCCC global climate agreement—expected to be finalised in Paris, December 2015.
The review requires the Authority to consider the climate policies of other countries, including the USA, China, Japan, Republic of Korea and the European Union and what Australia's contribution should be to an effective and equitable global response to climate change.
More details regarding the review process, and opportunities for stakeholder involvement, will be released in early 2015. Read more about the review.
Senate Committee recommends seafood labelling
On 19 December 2014, the Senate Rural and Regional Affairs and Transport References Committee released its report into requirements for labelling of seafood. The Committee noted that 75% of all seafood consumed in Australia is imported, although 70% of Australian consumers prefer local seafood to imported seafood.
The Committee recommended that the exemption for country of origin labelling under the Food Standards Code for cooked or pre-prepared seafood be removed, subject to a transition period of no more than 12 months.
Read the report here.
State of the Climate 2014
CSIRO and the Bureau of Meteorology have released the State of the Climate Report 2014, updating climate change projections around Australia. The report projects continued increases in temperature, with more extremely hot days and fewer extremely cool days, decreased average rainfall with increases in heavy rainfall events over most parts of Australia.
Review of Moveable Cultural Heritage protections
The Attorney-General has appointed Shane Simpson AM to conduct a review of the Protection of Movable Cultural Heritage Act 1986, which governs the export and import or cultural property, and the return of illegally exported material.
The review is expected to complement the Government’s Australian Best Practice Guide for Collecting Cultural Material and the UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Cultural Property 1970.
The Review is expected to be completed by 30 September 2015, with consultation “as is thought necessary”. For more information regarding the terms of the review, click here.
City of Broken Hill added to the National Heritage List
On 20 January 2015, the Australian Heritage Council announced the addition of the City of Broken Hill to the National Heritage List on the basis of its rich geological diversity. For more information regarding the listing, click here.
New Chair for Murray-Darling Basin Authority
On 1 February 2015, the Hon Neil Andrew AO will commence a four-year term as Chair of the Murray-Darling Basin Authority. Mr Andrew succeeds the Hon. Craig Knowles, who has held the position for the previous four years. For more information about Mr Andrew, click here.
Australian Capital Territory
New Ministries announced to support urban renewal projects
ACT Chief Minister, Andrew Barr MLA, has created two new portfolio positions, designed to encourage and facilitate ongoing urban renewal in the ACT. Mr Barr will take on the role of Minister for Urban Renewal, while Shane Rattenbury MLA will take on the position of Minister assisting the Chief Minister on Transport Reform.
For more information about the new portfolio responsibilities, click here.
New South Wales
Container deposit scheme announced
On 4 January 2015, Premier Mike Baird and Environment Minister, the Hon Rob Stokes MP, announced that NSW would introduce a container deposit scheme for drink containers within weeks.
Draft assessment bilateral agreement
An amended draft assessment bilateral agreement between the Commonwealth and New South Wales governments was available for public comment until 2 February 2015. The draft agreement seeks to accredit a range of assessment processes under the Environmental Planning and Assessment Act 1979 (NSW).
Click here for details of the draft bilateral agreement.
Draft approval bilateral agreement
The draft approval bilateral agreement between the Commonwealth and South Australia was available for public comment until 2 February 2015. The draft agreement seeks to accredit approval processes under the Mining Act 1971 (SA) and the Petroleum and Geothermal Energy Act 2000 (SA) under the EPBC Act.
Click here for details of the draft bilateral agreement.
Container Deposit Scheme rejected
On 19 December 2014, the Environment Minister, the Hon Matthew Groom MP, announced that the government will not introduce a State-based Container Deposit Scheme (CDS). The announcement followed the release of a commissioned cost-benefit report, which found the benefits of decreased litter and income to local government were outweighed by costs to industry (estimated as $86M over 21 years).
In December 2013, the Local Government Association of Tasmania released a separate report titled “An assessment of the potential financial impacts of a Container Deposit System on Local Government in Tasmania”. That report found that the implementation of a CDS scheme would provide up to $60.9M to local governments over 20 years.
Minister Announces Intentions for VEET Scheme, Wind Farm Regulation
New Victorian Energy Minister, Lily D’Ambrosio, has announced the State Government intends to retain the Victorian Energy Efficiency Target Scheme. According to the Minister, the target for the VEET scheme in 2015 will be 5.4 million Victorian energy efficiency certificates (each representing a tonne of greenhouse gas emissions avoided).
The Victorian Government has also announced it intends to remove some of the State’s anti-wind farm laws and establish a new $20 million New Energy Jobs Fund offering grants to firms and companies specialising in the renewable energy sector.
New mine fire management plan requirements
The Victorian government recently announced a plan to fast-track requirements for mine operators to carry out risk assessments and develop fire management plans, in line with recommendations of the Hazelwood Mine Fire Inquiry.
Planned changes, to be implemented through variations to mine licences, will improve safety at the three major coal mines in the Latrobe Valley ahead of the 2015/16 bushfire season.
New EPA Bulletin on Hydraulic Fracturing
The EPA has released Environmental Protection Bulletin No. 22: Hydraulic fracturing for onshore natural gas from shale and tight rocks. The Bulletin replaces an earlier version from 2011 and represents far more comprehensive overview of the industry’s regulation.
The Bulletin defines the circumstances under which the EPA will assess proposals that include hydraulic fracturing and outlines the EPA’s expectations in relation to environmental impact assessments for hydraulic fracturing.
The key changes between the most recent version and the 2011 Bulletin include the EPA taking on a more active role in regulating hydraulic fracturing activities, with uncertainty a key factor in determining whether or not to assess. Despite previous decisions not to formally assess small scale proposals, even small scale proof of concept actions may require formal assessment where uncertain information or substantial community concern exist.
The Bulletin reinforces that the EPA’s primary principal for determining whether to assess a proposal remains whether or not the proposal (if implemented) is likely to have a significant impact on the environment, and will include an assessment of potential cumulative impacts.
The Bulletin details the information that proponents may be required to provide in order to support the EIA of hydraulic fracturing activities.
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