In the Courts
Costs awarded in land clearing compensation case
The Federal Court has awarded costs against a farmer, Mr Spencer, who unsuccessfully challenged the NSW government’s introduction of land clearing controls (pursuant to a Commonwealth agreement) on the basis that the laws unfairly denied him rights associated with vegetation on his property, including carbon sequestration rights.
Justice Mortimer was satisfied that Mr Spencer was liable for costs, but held that making the usual costs order would be "crushing, could appear punitive (even where it is not), would tend to entrench the disparity of resources which was at work in this proceeding and could well deter others from bringing [public interest] proceedings in this court". Her Honour issued orders requiring Mr Spencer to pay the NSW Government $10,000 and all Commonwealth government costs reserved from earlier proceedings in the matter.
To read the costs judgement, click here.
Federal Court orders halt to whaling
In 2008, the Federal Court had issued an injunction preventing Japanese whaling company, Kyodo Senpaku Kaisha Ltd, from taking whales from within the Australian Whale Sanctuary. On 18 November 2015, Humane Society International successfully argued that Kyodo had defied that injunction and continued whaling practices in the Southern and Antarctic Oceans. The Federal Court confirmed the injunction and fined Kyodo $1 million.
Earlier this year, Japan formally withdrew International Court of Justice jurisdiction over its whaling activities. While the Federal Court injunction seeks to apply Australian laws, rather than international laws, Japan does not recognise Australia’s sovereignty over the Australian Whale Sanctuary and has announced that it will re-commence whaling this summer.
For more information about the HSI case, click here. For details of the Japanese summer whaling plans, click here.
New South Wales
Ashton Coal Operations Pty Ltd v Hunter Environment Lobby Inc  NSWCA 358
The NSW Court of Appeal has dismissed Ashton Coal’s appeal to overturn a 2014 Land and Environment Court ruling that required the company to obtain prior permission to access a farm property located within the coal mine footprint, before expanding its open cut coal mine near Camberwell in the Hunter Valley.
To read the case, click here.
Martin & Ors v Hume Coal Pty Ltd  NSWLEC 1461
The NSW Land and Environment Court has clarified the meaning of a "significant improvement" under the
Mining Act 1992 (NSW). The Act provides that the holder of a mining exploration licence may not exercise any rights conferred by the licence over the surface of land on which any significant improvement is situated.
The Court rejected the submissions of farmers who argued that significant improvements included, among other things, improved pastures, paddocks containing crops and a cross-country horse event course. The Court also held that the exercise of "rights conferred by the licence" did not include rights to access or drive across private land.
To read the case, click here.
New challenge to Adani Carmichael Mine
The Australian Conservation Foundation has commenced judicial review proceedings against the Federal Minister’s decision to re-approve the Adani Carmichael coal mine in the Galilee Basin.
The ACF case alleges that the Federal Minister failed to adequately assess direct impacts from the mine on the threatened black-throated finch, and the impact that emissions from the coal extracted from the mine will have on the health of the Great Barrier Reef.
To read more about the background to the case, click here.
Gunns fails in application for damages
On 23 May 2005, Gunns Limited applied under the Water Management Act 1999 for a permit and water licence to build a 295 megalitre dam to irrigate a planned vineyard development for its business "Tamar Ridge Wines".
The dam permit was approved on 24 October 2005 and the dam was constructed over the course of 2008, 2009 and 2010. The water licence which would authorise the storage and use of the water was not dealt with until 2011, at which time Gunns was notified that it would be allocated only 16.6 megalitres of water, rather than the 295 megalitres applied for.
Gunns sought damages against the State government on a number of grounds arising from the manner in which the water licence application was dealt with. The Supreme Court of Tasmania held that the grounds were not made out and dismissed the application.
To read the case, click here.
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Policy developments and other news
Paris climate conference underway
On the off chance that you’ve missed it, the international Climate Summit has commenced in Paris. For background information on the positions of key participants in the negotiations, click here.
The Australian Government has given preliminary commitment to reduce emissions by 26 - 28% of 2005 levels by 2030, a target criticised as ‘unambitious’ by the Climate Change Authority. Minister for Climate Change, Greg Hunt MP, last week stated that Australia has met its current targets and is on track to meet the intended 2030 targets. However, this is at least in part the result of accounting rules, rather than genuine emissions. Analysis by RepuTex indicates that Australia’s emissions are in fact likely to rise by 6% by 2020.
In the lead up to Paris, both the Greens and the ALP released alternative policies for de-carbonising the economy and transitioning to renewable energy, with the ALP committing to a 45% emissions reduction target.
To keep up to date with what is going on in Paris, follow @UNFCCCwebcast, @em_gerrard, @bakermckenzie and @lenoretaylor.
Australia to lead Green Climate Fund
Australia has been elected to lead the Board of the Green Climate Fund in 2016. The fund, established at COP 16 in 2012, is designed to support climate policies and programmes in developing countries. Former Prime Minister, Tony Abbott had derided the Fund as "a Bob Brown bank on an international scale" and in mid-2014, announced Australia would not contribute to the Fund. However, that position was subsequently reversed in December 2014, with the government committing $200M from the existing aid budget as a "fair and reasonable" contribution towards rainforest protection in South East Asia.
The Government has said it will use its tenure as Chair of the Board to "encourage an increased focus on the climate change challenges facing our region, particularly Pacific Island countries and other Small Island Developing States."
For more information about the Green Climate Fund, click here.
OECD agreement not to fund new coal power stations
At the recent meeting of the Organisation for Economic Co-operation and Development (OECD), member countries agreed to limit subsidies available for inefficient coal-fired power plants, focussing funding on "ultra-supercritical" technologies. The Australian government initially opposed the agreement, but ultimately consented subject to an exception being included for developing countries (many of which receive coal from Australia) seeking finance for small, less efficient plants.
Despite the negotiated exception, the deal is expected to encourage a transition away from coal–fired power generation. The agreement will take effect in January 2017 and be reviewed in 2019.
For a more detailed analysis, click here.
Outcomes of ACIUCN meeting
At the Australian Committee of the IUCN (of which NELA is a member) annual general meeting on 24 November 2015, the following decisions were made:
Sean Sullivan (Fed DoE) was elected Chair for 2015–16, joined by Executive members Jo Hopkins (Parks Vic), Rachel Walmsley (EDO NSW) and Graham Tupper (ACF)
It was agreed to develop an IUCN office in Australia and finalise the draft 2016 – 20 ACIUCN Strategic Plan
The meeting also noted that the establishment of a Global Judicial Institute for the Environment is expected to be announced at the World Environmental Law Congress in Rio de Janeiro 28 - 30 April 2016.
Trans Pacific Partnership text released
The text of the secretive Trans Pacific Partnership (TPP) trade agreement signed by 12 countries last month, including Australia and the US, has now been released. The Environment Chapter is available here.
For information about the anticipated implementation timeline for the TPP in Australia, click here.
Environment Ministers’ meeting
Environment Ministers from Australia’s states and territories will meet on 15 December 2015 to discuss a number of national environmental regulation issues, including progress towards a National Clean Air Agreement.
For more information regarding the meeting, click here. To read more about the campaign for enforceable clean air standards, click here.
Senate Committee Report on Standing under the EPBC Act
In September, the Senate Committee inquiring into the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (which seeks to repeal s.487 of the EPBC Act) was given an extension until February 2016 to complete its assessment. However, despite no public hearings having been held, the Committee subsequently released its report on 17 November 2015.
The Coalition members of the Committee supported the Bill, saying it was important to prevent "those with no connection to the project" from delaying developments, and existing assessment provisions and general standing rules provided adequate protection for the environment. The ALP and Greens members of the Committee provided dissenting reports strongly opposing the Bill and criticising the process followed by the Committee.
The Bill is unlikely to be debated before the end of 2015. To read the report (including dissenting reports), click here.
New report on bioenergy and energy from waste products
The Clean Energy Finance Corporation has released a new report, entitled The Australian Bioenergy and Energy from Waste Market. The report concludes that bioenergy is under-developed, but has potential in three key areas:
The report outlines CEFC investment commitments to bioenergy and energy from waste initiatives, including wood pellet production, converting sugarcane to ethanol, and converting municipal and animal wastes to energy. To read the report, click here.
UNESCO representatives examine Tasmanian Wilderness World Heritage Area management
At its meeting in July 2015, the World Heritage Committee encouraged the Australia Government to invite a "joint IUCN / ICOMOS Reactive Monitoring Mission" to visit the TWWHA to investigate concerns regarding the impacts of forestry, mining and tourism developments on the Outstanding Universal Values of the property.
Following an invitation, the Reactive Monitoring Mission delegates visited Tasmania last week meeting with State and Federal government representatives, members of the Aboriginal community, tourism operators, specialty timber workers and conservation NGOs.
The Mission report will be released prior to the next World Heritage Committee meeting in July 2016.
Revised carbon offset standard
The Federal Government has issued a revised National Carbon Offset standard, providing a benchmark for organisations seeking carbon neutrality for their operations, products, services or events. The revised Standard, setting minimum requirements for calculating and auditing offset mechanisms, incorporates the outcomes of a recent review of the Carbon Neutral Program.
To read the revised Standard, click here.
Productivity Commission to inquire into "green tape" in the agricultural sector
Treasurer Scott Morrison has directed the Productivity Commission to undertake an inquiry into
"regulation with a material impact on domestic and international competitiveness of farm businesses and the productivity of Australian agriculture". The scope of the inquiry includes any "unnecessary burden" imposed by environmental protection and native vegetation laws.
To read the terms of reference for the inquiry, click here.
IESC releases annual activity statement
The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development has released a review of its activities for 2014-15. The review lists key achievements as advising on 17 requests from Commonwealth and State governments and providing advice on bioregional assessments, publications and fact sheets.
To read the full review, click here.
Jack Green receives conservation award
Jack Wongili Green, a community leader in the campaign calling for significant environmental problems at Glencore's McArthur River mine in the Northern Territory to be addressed, has received the Australian Conservation Foundation's 2015 Peter Rawlinson Award for his contribution to environmental protection. Congratulations, Jack!
NT Government to revise environmental regulations
In May 2015, Dr Alan Hawke AC released his review of the NT’s environmental laws, recommending a raft of changes to strengthen the process for environmental assessments and approvals. The NT government has now released its response to the review, including confirming plans to remove exemptions allowing mining activities to operate without water licences.
For more information about the NT Government’s proposed amendments, click here. Community consultation regarding proposed changes is expected to take place over the coming months.
Panel confirms net zero emissions by 2050 possible
South Australia’s Low Carbon Economy Experts Panel has released a report outlining recommendations to position the state to achieve net zero emissions by 2050. Following the release of the report, the Premier, Jay Wetherill, has formally announced that the emissions goal will be adopted, and will give South Australia a "competitive advantage".
To read the report, click here.
Interim Fracking report released
On 17 November 2015, the South Australian Parliamentary Committee for Natural Resources released the interim report of its inquiry into fracking.
The interim report does not set out recommendations, but presents an overview of the evidence received during the first 12 months of this inquiry and seeks to clarify the meanings of key terms relating to unconventional gas activity to provide a sound basis for subsequent analysis and discussion. The Committee is expected to table its final report in 2016.
To read the interim report, click here.
Logging Moratorium on Bruny Island
The Minister for Resources announced a moratorium on logging coupes on Bruny Island to protect the Swift Parrot. The moratorium announcement follows the recent uplisting of the Swift Parrot to critically endangered by the IUCN and evidence that predation by sugar gliders is exacerbating population decline. Bruny Island is recognised as important to the species as it provides a safe haven from sugar gliders.
The moratorium is expected to remain in place until a Swift Parrot Management Plan, currently being developed by the Tasmanian government and Forestry Tasmania, is finalised. Should the final Plan recommend a permanent ban on forestry on Bruny Island, the Government will consider swapping the protected coupes for others currently protected on mainland Tasmania.
To read the government’s announcement, click here.
Fracking Inquiry report released
On 17 November 2015, the WA Parliamentary committee inquiring into unconventional gas regulation released its final report. The Committee noted the significant community concern regarding risks associated with fracking, but concluded that the regulatory framework was mostly adequate to address concerns. However, the Committee recommended a number of changes to strengthen the regulatory regime, including increased penalties to deter breaches, improved transparency measures, requiring fracking proposals to be referred to the EPA, independent arbitration of land access disputes and establishing a rehabilitation reserve fund.
To read the report, click here.
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Open for comment
Draft Biosecurity Import Regulations
The draft Biosecurity (Biosecurity Import Risk Analyses) Regulations 2015 have been released for public comment. Developed under the Biosecurity Act 2015 (Cth), which is due to take effect on 1 June 2016, the draft regulations set out the key steps involved in the import risk assessment process. The regulations address notification and consultation requirements, assessment timeframes, the role and composition of the scientific advisory group and the role of the Inspector - General.
Comments can be made until 16 December 2015. For more information, click here.
Review of the "water trigger"
The Department of Environment has released an issues paper for the statutory review of the water trigger introduced to the Environment Protection and Biodiversity Conservation Act 1999 in June 2013, requiring CSG and large mining developments which would have a significant impact on water resources to be assessed under the Act.
Public comments can be made on the Issues Paper until 29 January 2016. For more information, click here.
Shortlisted sites for radioactive waste storage
Energy Minister, Josh Frydenberg, has released a shortlist of six proposed sites for a national storage facility for low and intermediate-level radioactive waste: three in South Australia, one in Queensland, one in NSW and one in the Northern Territory.
Comments on the proposed sites are invited until 11 March 2016. For details of the proposed sites, click here.
Rabbit control plan
The Threatened Species Commissioner has released a draft revised Threat Abatement Plan for Competition and Land Degradation by Rabbits. The plan looks at strategies to manage the impact of rabbits on threatened fauna and flora, farm productivity and landscapes. Suggestions include investigating new long-term biocontrols to combat growing resistance to rabbit calicivirus disease.
Comments on the draft plan can be made until 16 March 2016. To find out more, click here.
Introductory paper looks at what the next generation of environmental laws should look like
The Australian Panel of Experts in Environmental Law (APEEL) was convened 12 months ago by the Places You Love Alliance of environmental organisations to consider what the next generation of Australian environmental law should look like.
The panel has released an Introductory Paper for public comment, seeking input, ideas and experiences about how environmental laws and institutions work or could be improved around key themes including:
The foundations of environmental law
Land-based conservation and natural resources management
Climate laws and energy regulation
Business, law and environmental performance
Democracy and the environment
To read the report and provide comments, click here.
New South Wales
Expanding complying development across NSW
The NSW Government is seeking feedback on a proposal to expand the range of low-rise residential development that can be undertaken as complying development across NSW.
Existing State policies on complying development do not provide planning controls or design guidance for medium density housing forms. Construction of a dual occupancy, manor home, townhouse or terrace can only be done through a full development application to the local council.
Comments on the Discussion Paper exploring options for additional forms of exempt and complying development can be made until 31 January 2016. To find out more, click here.
Coastal Management package
The NSW government has released a public consultation package including a draft Coastal Management Bill, an Explanation of Intended Effect for the proposed new Coastal Management State Environmental Planning Policy, and key elements of a draft coastal management manual.
Comments on the package can be made until 29 February 2016. For more information, click here.
Draft Oil and Gas Strategy
The NT Government has released a draft Oil and Gas Industry Development Strategy for public comment. The Strategy sets out options to facilitate the growth of the oil and gas industry in the Territory.
Comments on the draft Strategy can be made until 31 December 2015. For more information, click here.
Amendments to Water Legislation
Submissions are invited in relation to a parliamentary inquiry into the State Government's Water Legislation Amendment Bill 2015. The Bill seeks to reverse the changes made by the Water Reform and Other Legislation Amendment Act 2014 to remove ecologically sustainable development from the purposes clause of the Water Act 2000, introduce exemption options for large scale water developments and to omit provisions for designated watercourses.
Comments on the proposed legislation can be made until 18 December 2015. For more information, click here.
Wet Tropics water plan
The proposed Wet Tropics water plan for far North Queensland seeks to establish tradeable water allocations within catchment areas totalling more than 112,000 megalitres.
Comment on the draft plan can be made until 24 December 2015. For more information, click here.
As outlined in "Law and Policy Developments" above, the Queensland government has introduced a suite of planning bills and referred the bills to a parliamentary committee for inquiry.
Comments on the proposed legislation can be made until 18 January 2016. For more information, click here.
Draft air quality policy
The South Australian EPA has released a draft air quality policy for public comment. The policy will replace the current air quality policy and existing policies on open-air burning, vehicle emissions and wood heaters.
Key provisions in the draft policy include updated stack limits, pollutant emission limits, airshed-specific emissions goals, new odour controls and mandatory equipment maintenance, monitoring and reporting obligations. Existing activities will have two years to upgrade their operations to comply with the new standards.
Comments on the draft policy can be made until 15 January 2016. The EPA is holding a number of public forums to outline the proposed changes – click here to see a schedule of events.
Narawntapu National Park Management Plan
The Parks and Wildlife Service is seeking public comments on proposed amendments to the management plan for Narawntapu National Park and Hawley Nature Reserve. The changes seek to accommodate a recreational proposal submitted as part of the "Tourism in National Parks and Reserves Expressions of Interest" process.
Comments on the draft plan can be made until 16 December 2015. For more information, click here.
Hobart airport Draft Major Development Plan
Hobart Airport has released the Preliminary Draft Major Development Plan for the proposed runway extension for public comment. The project is a controlled action under the Environment Protection and Biodiversity Conservation Act 1999.
Following the public consultation process, the Draft Plan will be amended having regard to comments then submitted to the Commonwealth Minister.
Public submissions can be made until 1 February 2016. For more information about the Development Plan, click here.
The EPA’s review of scheduled premises regulations is looking at what amendments may be needed to ensure activities which pose a risk to public or environmental health are adequately regulated.
Comments on the review discussion paper can be made until 14 December 2015. To find out more, click here.
Review of Local Government Act
The first comprehensive review of the Local Government Act 1989 in 25 years is examining the role of councils, governance, elections, strategic planning and powers to impose rates.
Comments on the discussion paper can be made until 18 December 2015. For more information regarding the review, click here.
Draft Guidance Statement on Mine Dewatering
The Department of Environment Regulation is seeking feedback on a draft Guidance Statement: Regulation of Mine Dewatering, setting out approval processes for the management of mine dewatering operations.
Comments can be made until 5 February 2016. For more information, click here.
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Carbon Emissions Index report online
The Australia Institute, in partnership with Pitt & Sherry, will now be publishing the highly regarded Carbon Emissions Index (CEDEX) report, a benchmark indicator for Australia’s carbon emissions, up to date snapshot of data from the energy sector and accurate figures for total renewable energy produced in Australia.
The CEDEX is available here.
Guide to Contaminated Land
Baker & McKenzie has issued the latest edition of its international guide to contaminated land.
This guide is particularly useful for professionals with responsibility for international real estate portfolios, mergers and acquisitions involving properties and environmental compliance across jurisdictions.
To read the publication, click here.
Valuing Nature: Protected Areas and Ecosystem Services
ACIUCN’s latest publication, Valuing Nature: Protected Areas and Ecosystem Services, is now available as a free download.
New mapping for Ecological Communities of National Environmental Significance
The Ecological Communities of National Environmental Significance (ECNES) Database contains spatial information that includes data on the distribution of ecological communities related to the Environment Protection and Biodiversity Conservation Act 1999. The database is now available for the public to access information relating to the distribution of nationally-listed threatened ecological communities.
To access the database, click here.
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Australian Young Environmental Lawyer of the Year Award 2015
Nominations are invited for the 2015 Mahla Pearlman AO Australian Young Environmental Lawyer of the Year Award. Nominees must demonstrate an outstanding contribution to the field of environmental law in Australia or internationally, and have made a voluntary contribution to the community, especially to environmental or environmental law NGOs.
Nominations must be received by 11 December 2015. For more information, click here.
Climate mitigation and resilience grants
Applications for a $1.5 million grants program to help Victorian councils cut emissions and boost climate resilience are open until 29 December 2015. Grants of between $10,000 and $80,000 are available.
For more information, click here.
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Events offered by NELA’s partners (marked ) can provide substantial savings for NELA members - so check them out and make the most of your NELA membership!
(Hobart) Hydrology and Water Resources Symposium
Engineers Australia is hosting its 36th Hydrology and Water Resources Symposium, discussing a wide range of issues relevant to water resources management.
When: 7-10 December 2015
Where: Hotel Grand Chancellor, Hobart
For more information, click here.
(Sydney) Contaminated land conference
The Australian Sustainable Business Group and ALGA are hosting a conference aimed at assisting land owners and environmental professionals working in contaminated land management. The conference will cover reporting, legislation, dealing with neighbours, certification, rehabilitation and soil management options.
When: 9 December 2015, 8:30 – 4:30pm
Where: Henry Davis York, Martin Place, Sydney
For more information, click here.
(Hobart) Indigenous Peoples and Saltwater / Freshwater governance for a sustainable future
The University of Tasmania (Institute for Marine and Antarctic Studies) and the Australian National University (ANU College of Law) are convening a workshop to bring together scholars and community practitioners to discuss the environmental governance of marine and freshwater areas by and from the perspective of Indigenous peoples.
Where: University of Tasmania, Hobart
When: 11 - 12 February 2016
For more information, click here.
(Sydney) 2016 Mahla Pearlman Oration
Professor Jacqueline Peel (University of Melbourne) will deliver the prestigious oration, speaking on the topic "Addressing Climate Injustice: Human Rights and Climate Change in the Courts".
When: 10 March 2016, 5pm
Where: Courtroom 1, Commonwealth Law Courts Building, Sydney
More information will be available soon.
(Hawaii) 2016 IUCN World Conservation Congress
Held every four years, the IUCN World Conservation Congress brings together leaders from government, the public sector, non-governmental organizations, business, UN agencies and indigenous and grass-roots organizations to discuss and decide on solutions to the world’s most pressing environment and development challenges.
The deadline for motions to be submitted to the Congress Portal is 12 February 2016. Guidance is available here.
When: 1 – 10 September 2016
Where: Hawaii Convention Center, Honolulu, Hawaii
For more information, click here.