In the Courts
Our Children’s Trust file Pakistan suit
On 5 April 2016, a suit was filed against the Federation of Pakistan on behalf of a 7-year old girl, claiming that the government’s exploitation and continued promotion of fossil fuels violates the public trust doctrine and the "youngest generation’s fundamental constitutional rights to life, liberty, property, human dignity, information, and equal protection of the law."
The case builds on similar cases supported by Our Children’s Trust across the world, including in Uganda, Ukraine and the US.
For more details regarding these cases, click here.
New South Wales
Development approval overturned due to lack of Species Impact Statement
On 11 March 2016, the NSW Land and Environment Court upheld an appeal against approval of an industrial development in one of the few remaining breeding habitats for the critically endangered Regent Honeyeater. The Friends of Tumblebee Inc successfully argued that a species impact statement should have been undertaken before the development was approved. The Land and Environment Court concluded that the clearing associated with the development would have a significant impact on the survival of the endangered bird, so it was essential to consider a species impact statement, and to make that statement available for public comment.
To read the case, click here. You can also read Breellen Warry and Bianca Fernandes’ casenote in the latest edition of the Digest
Government appeals against Federal Court decision on off-road vehicles in Aboriginal heritage area
As reported in the previous Bulletin, the Federal Court recently held that three off-road vehicle tracks in the Western Tasmania Aboriginal Cultural Landscape were to remain closed unless approval was granted by the Federal Minister under the Environment Protection and Biodiversity Conservation Act 1999. A summary of Justice Mortimer’s decision is available here.
On 22 March 2016, the Tasmanian Government filed an appeal against the Federal Court’s decision. The appeal claims that Justice Mortimer erred in:
Finding that the series of activities required to open the tracks was a 'controlled action'
Finding that the declaration of the tracks was not a 'governmental authorisation' (a 'governmental authorisation' will not be an 'action');
Her interpretation of the scope of values protected by the National Heritage listing
To read the Government’s press release announcing the appeal, click here.
Government appeals against order to provide statement of reasons for granting mine leases
On 10 March 2016, the Supreme Court granted an application by the Tarkine National Coalition Inc for a statement of reasons for a decision by the Minister for Mines to grant two mining leases in the Tarkine area of northwest Tasmania. The Minister argued that the Tarkine National Coalition Inc was not a "person aggrieved" by the decision, and therefore not entitled to a statement of reasons.
Justice Helen Wood dismissed this argument and was satisfied said there was "ample evidence" that the group was a person aggrieved by the decision. To read her Honour’s decision, click here.
On 31 March 2016, the Minister filed an appeal against the ruling.
Bob Brown to challenge anti-protest laws in High Court
In February 2016, five people, including former Senator Dr Bob Brown, were arrested at protests opposing forestry operations at Lapoinya. These were the first arrests made under the controversial Workplace (Protection from Protestors) Act 2014.
On the eve of the charges being heard, Dr Brown applied to the High Court for a declaration that the laws are invalid. Dr Brown's application argues that the offences and penalties imposed are contrary to the implied freedom of speech on government and political matters under the Australian Constitution.
The Magistrate’s Court has deferred any consideration of the charges laid again Dr Brown until the High Court challenge is finalised. For more information about the challenge, click here.
Seafish fined for pollution offences
On 19 August 2015, Seafish Tasmania pled guilty to a number of offences in the Magistrates Court under the Environmental Management and Pollution Control Act 1994, relating to the unlawful disposal of wastewater from its fish waste processing and rendering operation in Triabunna over the period from 22 May to 30 December 2012. The Court found that the company dumped more than 1,000 truckloads of waste water at an unnamed creek on Crown Land on a number of occasions causing significant harm to the water quality and death of marine life.
On 10 March 2016, Seafish Tasmania were sentenced and fined $40,000. The Magistrate's Court heard the company and landowners have conducted remedial work at a cost of $21,000.
Hazelwood charges laid
After a long investigation, EPA Victoria has charged four companies involved in the operation of the Hazelwood mine with various air pollution offences relating to the 2014 mine fire. In total, the charges could result in fines exceeding $4 million. Mine operator, GDF Suez, intends to challenge the charges.
GDF Suez has also been charged with offences under Victoria's Occupational Health and Safety Act.
The inquiry into the fires, including preparedness and responses of the mine owner and government agencies, is due to release its final report in early April (after a short delay due to illness of a panel member).
To find out more about the charges, click here. Read Lauren Rickard and Melanie Birkbeck’s critique of the time taken to file the charges in the latest edition of the Digest.
Quarry company ordered to pay $10m for receiving waste
A long-running dispute between Eclipse Resources Pty Ltd and the Department of Environment Regulation regarding liability to pay landfill levies has been resolved by the Supreme Court ordering the company to pay over $10 million.
Eclipse received material to fill quarry pits on three of its sites, but argued that it wasn't liable to pay landfill levies as the materials were not waste, accepted for burial nor disposed in landfill.
Justice Andrew Beech held that waste "is any material that is unwanted by or excess to the needs of the source of that material", irrespective of how it is regarded by the recipient, therefore Eclipse was liable to pay levies. His Honour ordered the company to pay $10 million in unpaid levies and penalties.
Justice Beech also rejected Eclipse’s argument that the waste levy legislation was unconstitutional because the levies amounted to an excise that only the Commonwealth can lawfully apply.
To read the case, click here.
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Policy developments and other news
UN talks on conservation on the high seas
In June 2015, the General Assembly of the UN resolved to develop an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The law would be developed under the United Nations Convention on the Law of the Sea (UNCLOS), and will build on the work of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.
The Preparatory Committee tasked with developing recommendations on the draft text for the instrument met in New York from 28 March to 8 April 2016.
For updates on the outcomes of the meeting, click here.
Bloomberg climate finance group recommends routine climate reporting by companies
The first report of the Taskforce for Climate-Related Financial Disclosures established by the G20, and chaired by Michael Bloomberg, has emphasised the need for climate threats to be explicitly addressed in companies’ financial reports.
While most G20 countries already require businesses to disclose "material" climate-related risks in their financial reports, there is little consistency in what is considered "material".
The Taskforce Phase 1 report is available here. Public comment on the report is invited until 1 May 2016. For more information, click here.
US Attorneys-General to investigate firms for climate disclosures
Attorneys General from 18 US states and territories have announced a coalition aimed at joint investigations into whether fossil fuel firms such as ExxonMobil misled investors about the risks that climate change posed to its investors.
Last year, New York Attorney-General, Eric Schneiderman, launched an investigation into ExxonMobil and Peabody Energy that resulted in the companies rewriting their financial statements.
For more information regarding investigations by the climate coalition, click here.
Japanese whaling records for 2015-2016 season
The Japanese Fisheries Agency has released details of the programme’s outcomes for 2015-2016, showing that 333 minke whales were killed during the season -103 males and 230 females (including over 200 pregnant whales).
In 2014, the International Court of Justice ruled that Japan’s previous whaling programme was not scientific. Last year, the Japanese government announced a new, reduced programme and revoked its recognition of the ICJ’s jurisdiction over its activities in the Southern Ocean.
Australia’s Foreign Minister, Julie Bishop, has said that Australia will do "all that it can" to prevent future whaling programmes. For an explanation of the current legal situation, read Dr Tony Press and Indi Hodgson-Johnston’s Conversation article from December 2015.
CEFC and ARENA to be retained
On 23 March 2016, the Australian Government announced that it would cease efforts to abolish the Clean Energy Finance Corporation (CEFC) and the Australian Renewable Energy Agency (ARENA). Those agencies will now work together to manage the to-be-established $1 billion Clean Energy Innovation Fund to support emerging technologies make the leap from demonstration to commercial deployment.
While celebrating news that the CEFC and ARENA would be retained, renewable energy commentators have been critical of key aspects of the proposal, including the removal of ARENA's grant-making function and the reallocation of existing funds.
On 13 April 2016, the Prime Minister appointed a new ARENA Board, including a new Chair, Martijn Wilder of Baker & McKenzie.
New Sensitive Ecological Data Access and Management Policy released
As part of its commitment to making data "more accessible, discoverable and re-useable", the Australian Government has released its policy on sensitive ecological data access and management. The policy outlines seven principles of sensitive ecological data management and provides a process for managing sensitive aspects of species and ecological community observation data. For further information on the policy, click here.
ACT members can find out more about the policy at the upcoming EIANZ PEP talk (see Events)
Senate Committee report into Murray Darling Basin
The Senate Committee inquiring into the management of the Murray Darling Basin has released its final report. Among other things, the committee recommends that no further reductions in water entitlements occur until the Northern Basin review, and any subsequent assessments, have been completed.
Intergovernmental agreement on biosecurity to be reviewed
Commonwealth Minister for Agriculture and Water, Barnaby Joyce MP, has announced a review of a Intergovernmental Agreement on Biosecurity. The Agreement was entered into four years ago and encourages cooperation between the federal government and states and territories on biosecurity matters.
The review will consider current and likely future biosecurity priorities and efficient models for sharing costs and measuring success of regulatory approaches.
The review will be chaired by Wendy Craik, current chair of the Climate Change Authority and former head of the Murray-Darling Basin Commission and the Great Barrier Reef Marine Park Authority. Details regarding public consultation will be released soon.
For more information regarding the review, click here.
ACT opens new renewables auction
On 1 April 2016, ACT Environment Minister Simon Corbell announced the opening of bids in the Territory's fourth and final reverse auction round. The auction will purchase 109MW of renewable energy capacity and be open to wind and solar generators. Bidders are expected to invest in the roll-out of 36MW of battery storage across the Territory.
Auction bids must be submitted by 13 May 2016. For more information, email NextGen@act.gov.au.
INPEX LNG proponent seeks release from environmental offset requirements
The Ichthys INPEX joint venture has approval for a $34 billion liquefied natural gas to pipe LNG from Western Australia to Darwin. The approval is subject to conditions requiring $91 million in environmental offset projects, including establishing over 2,000ha in land and marine reserves to protect dugong and turtle habitat.
INPEX has applied to the Federal Government to amend its conditions by removing a number of the agreed offset projects, estimated to save the company $30 million. INPEX has argued that the offset program should be revised on the basis that studies have confirmed “lower-than-expected environmental impacts for the project".
For more details, click here.
Adani Carmichael mine approved
The Queensland Government has approved three mining leases for Adani's Carmichael coal mine and rail project in the Galilee Basin. Environmental approvals for these projects were granted in 2015, however a number of additional approvals for rail, port facilities, power, water and roadworks are still required before construction can start. Financial assurances will also be required to be provided.
Collectively, the project is estimated to involve 11 billion tonnes of thermal coal. The Australian Conservation Foundation is currently challenging the approval of the project under the EPBC Act on grounds relating to the failure to adequately consider the climate impacts of the project.
UNESCO Monitoring Mission recommends changes to Tasmanian Wilderness plan
On 23 November 2015 two representatives from the World Heritage Committee’s technical advisory bodies, the International Union for Conservation of Nature (IUCN) and the International Council on Monuments and Sites (ICOMOS) carried out a Reactive Monitoring Mission to consider the management of the Tasmanian Wilderness World Heritage Area (TWWHA).
On 20 March 2016, the Mission released its final report. While finding that the TWWHA is "in an overall good state of conservation", the Mission made a number of recommendations for improved management. Significant recommendations include:
The TWWHA should be off limits to any commercial logging and mining
Strict criteria should be established for new tourism development, and a comprehensive Tourism Master Plan developed to identify areas that are appropriate for tourism and areas that are not
The "Wilderness Zone" should be retained
Significant effort and resources must be dedicated to undertaking cultural heritage surveys and facilitating "meaningful involvement and leadership" of the Aboriginal community in management decisions
The Tasmanian and Commonwealth governments have accepted all recommendations, including ruling out plans to allow special species logging within the TWWHA. The revised TWWHA Management Plan is expected to be finalised by the end of 2016.
Govt responds to Unconventional Gas report
Last year, the Legislative Council conducted an inquiry into unconventional gas projects in Western Australia and made a series of recommendations to improve their regulation. The Western Australian government has now tabled its response to the Legislative Council’s report.
To read the response, click here.
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Open for comment
Consultation and transparency requirements for offshore petroleum activities
The Australian Department of Industry, Innovation and Science and NOPSEMA are currently reviewing the consultation and transparency requirements in place under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009.
The Government has released an issues paper examining options to address concerns raised by the public, and invites public comment prior to finalising any proposed amendments.
Comments can be made until 30 April 2016. For further information, click here.
Submissions invited on Murray Cod referral guidelines
The Australian Government is seeking public comment on the Draft referral guidelines for the vulnerable Murray cod (Maccullochella peelii). The guidelines provide further guidance to proponents as to whether a proposed action that is likely to have an impact on the species will need to be referred to the Minister for the Environment for assessment and approval under the Environment Protection and Biodiversity Conservation Act 1999.
The Australian Government has already published referral guidelines for a number of other species, including the koala, northern quoll and black cockatoo.
Submissions close on 6 May 2016. Further information, click here.
National Standard for Industrial Chemicals
At the meeting of Commonwealth and State Environment Ministers in July 2015, the Ministers agreed to establish a National Standard to streamline risk management and regulation of industrial chemicals across Australia.
A discussion paper for a national standard has been released for public comment. Comments can be made until 6 May 2016. For more information, click here.
Listing of Illawarra and south coast lowland grassy woodland
The 'Illawarra and south coast lowland grassy woodland' ecological community was included in the 2014 Finalised Priority Assessment List and is currently being assessed by the Threatened Species Scientific Committee as a potentially threatened ecological community under the EPBC Act. A draft Conservation Advice and distribution map have been produced to assist with the assessment.
Public comment on the listing proposal and Conservation advice can be made until 11 May 2016
. For more information, click here.
New South Wales
New Inland Code to streamline planning controls in regional NSW
The Department of Planning and Environment has released a new draft Inland Code to streamline planning controls for a range of developments in rural and regional NSW. The proposed changes will fast-track complying development assessments in 83 regional council areas, west of the Great Dividing Range.
The proposal also includes recommendations on how low-impact rural developments, like farm buildings, grain storage bunkers and silos, could be undertaken without the need for planning or building approval under the General Exempt Development Code.
Comments on the draft the code can be made until 13 May 2016.
For more information, click here.
Activities in national parks
The Office of Environment and Heritage has released two draft policies on activities in national parks for public comment.
Vegetation Management Bill
On 17 March 2016, Hon Jackie Trad MP, introduced the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 to the Queensland Parliament. The Bill seeks to reinstate many of the vegetation clearing controls repealed by the former Newman Government.
The Bill has been referred to the Agriculture and Environment Committee for consideration. Submissions on the Bill can be made until 25 April 2016. For more information, click here.
Review of biosecurity laws
The Tasmanian Government is reviewing Tasmania’s suite of biosecurity laws which regulate animal and plant pests, diseases and weeds in Tasmania. The amendments aim to ensure the legislative framework is effective to protect key industries, public health and the environment. The government has released a Position Paper to provide an explanation of the proposal for a single Biosecurity Act.
Comments on the Position Paper can be made until 29 April 2016. For more information, click here
State Planning Policies
The Tasmanian Planning Commission has released the draft State Planning Provisions (SPPs) for public comment. The SPPs are a principal component of the proposed Tasmanian Planning Scheme (to replace individual planning schemes) and must be prepared in accordance with the Terms of Reference, State Policies and the objectives of the Resource Management and Planning System.
Comments on the draft SPPs can be made until 18 May 2016. For more information, click here.
Water for Victoria - Discussion Paper
The Water for Victoria - Discussion Paper identifies the key issues and potential responses that will ensure water continues to support a healthy environment, a prosperous economy and thriving communities now and into the future. In particular, the Discussion Paper outlines significant revisions to the State Environment Protection Policy on Water to implement a risk-based pollution management framework and provide for water quality offsets within catchments.
Comments on the Discussion Paper can be made until 29 April 2016, with the final Water Plan expected to be released in mid-2016. For more information, click here.
A series of community events will be held throughout April to provide opportunities to learn more about the proposed Plan.
Vegetation clearing regulations
The Department of Environment, Land, Water and Planning has released its Review of the native vegetation clearing regulations - Consultation Paper, setting out proposed improvements to address key issues identified by stakeholders during earlier consultation.
Comments on the proposals can be made until 29 April 2016. For more information, click here.
Draft Biodiversity Plan
The Victorian government has also released a draft biodiversity plan, Protecting Victoria's Environment - Biodiversity 2036, exploring five key themes:
A healthy environment for healthy Victorians
Linking our society and our economy to the environment
Investing together to protect our environment
Better, smarter management of our biodiversity
Biodiversity leadership across government
Comments on the draft plan can be made until 15 May 2016. For more information, click here.
North Kimberley Marine Park
The Department of Parks and Wildlife is working with Wunambal Gaambera, Balanggarra, Ngarinyin and Miriuwung Gajerrong traditional owners to create the proposed North Kimberley Marine Park. The park will cover 1.8 million hectares from north east of Derby to the NT border.
The Draft management plan proposes eight sanctuary zones to protect critical habitat and a further eight special purpose zones for recreation, conservation and protection of cultural heritage. Approximately 65% of the park will be available for general use.
In recognition of the significant cultural values and ongoing connections to sea country, it is intended that the marine park will be jointly managed with traditional owners.
Comments on the draft management plan can be made until 20 May 2016. For more information, click here.
BHP Billiton seeks approval of strategic assessment for Pilbara projects
BHP Billiton has submitted the documentation to the Commonwealth Environment Minister seeking approval for a strategic assessment for its future activities in the Pilbara, obviating the need for project-by-project assessment:
Comment on the documents can be made until 2 May 2016.
BHP Billiton simultaneously released a public environmental review for consideration by the State EPA. Comments on that document can be made until 13 June 2016.
For more information on both assessments, click here.
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Mine rehabilitation in Australia
The Minerals Council has released a series of case studies of successful mine rehabilitation projects around Australia. For more information, click here.
The latest edition of Impact!, EDOs of Australia’s national journal of environmental law, is now out. This edition features an article by Nari Sahukar, EDO NSW’s Senior Policy and Law Reform Solicitor, on the current deadlock in the government’s one-stop shop policy.
To read Impact!, click here.
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ACT Heritage grants
The ACT Planning and Environment Division is inviting applications for the 2016-17 round of heritage grants.
Applications close on 22 April 2016. For more information, click here.
SA Entrepreneurs Prize
South Australia's Premier Jay Weatherill has invited applications for a new Entrepreneurs Prize to provide $250,000 in seed funding for "bold ideas" to help Adelaide become the world's first carbon neutral city.
Applications may be made by individuals or organisations, both within and outside Australia, however overseas applicants must partner with a South Australian organisation.
Applications close on 30 May 2016. For more information, click here.
WA Grants for Construction Waste Recycling
Environment Minister Albert Jacob has invited applications for funding to subsidise companies and local councils seeking to boost recycling rates for construction and demolition waste. Up to $8 million will be available to local councils, with a further $2 million available to private sector operators.
Priority will be given to purchases that involve a significant tonnage of product and that represent the lowest cost per tonne.
Applications close on 30 June 2016. For more information, click here.
Call for papers for AELA Conference 2016
The Australian Earth Laws Alliance is calling for abstracts for its 2016 conference, "The Future of Australian environmental law: politics, reform and community activism". If you are interested in presenting at the conference, submit an abstract by 1 June 2016.
For more information about the conference, 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) Fossil Fuel Divestment and Universities - Can They? Should They?
A global campaign against investment in fossil fuel industries is attracting a diverse entourage, including university students, staff and local activists. The divestment movement also has many opponents, including some university endowment fund trustees, who believe that divesting is financially irresponsible, ineffective in leveraging positive change, or unlawful.
In this seminar, Professor Benjamin Richardson assesses these rival claims and considers whether divestment should be pursued.
When: 22 April 2016, 1:00 - 2:00pm
Where: Law 132 Seminar Building, Faculty of Law, Sandy Bay Campus
For more information, email B.J.Richardson@utas.edu.au
(Melbourne) ERF safeguard mechanism seminar
Point Advisory and Baker & McKenzie invite you to attend a free seminar on the Emissions Reduction Fund Safeguard Mechanism with the Clean Energy Regulator.
With the 1 July commencement of the Safeguard Mechanism fast approaching, now is the time for companies to consider whether they will be subject to the Mechanism, what their baselines will be and whether they will need to actively manage their greenhouse gas emissions to avoid exceeding their baselines.
When: 27 April 2016, 5:00 – 7:00pm
Where: The Glasshouse, Level 17, 31 Queen St, Melbourne
To register, click here
(Canberra) Learning to Adapt
Learning to Adapt is a training program run by EIANZ, designed to up-skill environment and sustainability professionals on climate change adaptation.
The course is made up of three modules, offered over three separate days.
27 April 2016 Applying the science of climate change impacts
18 May 2016 Assessing and managing climate change risks
15 June 2016 Implementing and communicating Climate Change adaptation action
To find out more about the program, click here.
(Canberra) Accessing and Managing Sensitive Ecological Data
EIANZ’s popular PEP talk series invites you to hear more about the Australian Government’s new approach to making sensitive ecological data more accessible, discoverable and re-usable.
When: 25 May 2016, 6:30- 8:30pm
Where: Hotel Realm
For more information, click here.
(Sydney) Professional Development for Environmental Experts
EIANZ is running this professional development course to assist experts to improve their skills in relation to court appearances, writing and commission reports and providing advice and complying with ethical responsibilities.
When: 27 May 2016
Where: TBC (Sydney CBD location)
For more information, click here.
(Canberra) EPBC Act approval condition setting and advanced environmental offsets
Join EIANZ ACT for a session discussing the Australian Government’s new policy positions concerning approval condition setting and advanced environmental offsets under the Environment Protection and Biodiversity Conservation Act 1999.
When: 15 June 2016, 6:30 – 8:30pm
Where: Hotel Realm
For more information, click here.
(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.
When: 1 – 10 September 2016
Where: Hawaii Convention Center, Honolulu, Hawaii
For more information about the 2016 Congress click here.