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October 2016 Bulletin

 

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This month


NELA news and events
01. NELA National Conference
02. WA State Conference
03. Membership
04. Student Essay Competition

Law and policy developments
05. In the Legislature
06. Policy developments and other news
07. In the courts
08. Open for comment
09. Other

Events
10. (Melbourne) Groundwater Distinguished Lecture
11. (Brisbane) The future of Australian Environmental Law: Politics, Reform and Community Activism
12. (Brisbane) Rights of Nature Tribunal hearing
13. (Perth) 2016 NELA WA State Conference
14. (Brisbane) 2016 EIANZ National Conference
15. (Melbourne) 2016 NELA National Conference
16. (Monteal) Impact Assessment’s Contribution to the Global Efforts in Addressing Climate Change


NELA news and events

NELA National Conference – 18 November 2016

Don’t miss out on this year’s national NELA conference! Tickets are limited, so register before 18 October 2016 to take advantage of our great early bird rates.

Professor Tim Flannery will kick off the conference with a challenging look at what environmental law can do better, followed by some of Australia’s leading experts discussing persistent challenges in environmental management and cultural heritage practices.

The conference is an unmissable opportunity to network with judges, regulators, practitioners, consultants and policy makers and to discuss options to improve our laws, and the ways that we implement them.

NELA thanks our conference partners, King & Wood Mallesons. For the full programme and registration details, click here.

 

WA State Conference – 27 October 2016

The WA State conference, Environmental Law: Where are we now, and where are we going?, is coming up. Featuring Rob Fowler and David Hochschild (California Energy Commission), as well as the Hon Dr Mike Nahan and Bill Johnston discussing energy policy, the conference promises to be an excellent event.

For the full programme and registration details, click here.

 

Membership

NELA is a member-based organisation, and relies on memberships to sustain our activities (both through fees and participation). Members receive our various publications, opportunities to be involved in policy work and discounts on NELA and partner events.

If you haven’t renewed your membership for 2016-2017 yet, please click here to do so.

Membership also guarantees you the best rates for the NELA National Conference!

 

Student Essay Competition

The National Environmental Law Association’s Student Essay Competition is now open. NELA invites any under-graduate or post-graduate student from an Australian university to submit high quality essays on any environmental or climate law topic. Winners receive $1,000 and a NELA membership.

Essays must be submitted by 2 December 2016. For more information, click here.

 

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Law and policy development

In the Legislature

International

Paris Agreement to take effect on 4 November 2016

Following its ratification by India, Canada and many EU states, on 6 October 2016 the Paris Agreement has reached the necessary thresholds (55 countries representing at least 55% of global emissions) to trigger its operation. The Agreement will now take effect on 4 November 2016.

Click here for Climate Reality's discussion about next steps to implement the Agreement.

Australia has yet to ratify the Agreement. The Agreement is under consideration by a Joint Parliamentary Committee. For more information, click here.

Commonwealth

New rules proposed for levy refunds for offshore petroleum industry

The Australian Government has introduced the Offshore Petroleum and Greenhouse Gas Storage Amendment (Petroleum Pools and Other Measures) Bill 2016 to allow the offshore petroleum industry to gain refunds for levies paid in certain circumstances. The purpose of the Bill is to provide for:

  • ongoing validity of apportionment agreements dealing with multiple petroleum pools; and
  • regulations to provide for refunds and remittals of environment plan levies and safety case levies.

For more information, click here.


Changes to Murray Darling Basin Plan’s sustainable diversion limits notification process

Earlier this year, the Murray Darling Basin Ministerial Council requested that the Basin Plan 2012 be amended to allow for a second notification of supply and efficiency measures. The Australian Government has introduced a Bill to give effect to that request, providing an additional opportunity for Basin jurisdictions to develop and notify new projects up to 30 June 2017. The additional projects will supplement the first package of measures notified on 5 May 2016.

Allowing a second notification within the round, rather than requiring a separate round, will provide for a single determination by the Authority and avoid the need for additional consultation and legislative amendments.

For more information about the Bill, click here.

 

Bill to prevent mining activities in the Great Australian Bight

On 15 September 2016, Greens Senator Sarah Hanson-Young introduced the Great Australian Bight Environment Protection Bill 2016 as a private member’s Bill. The Bill seeks to protect the Great Australian Bight from environmental damage by prohibiting mining activities in the marine area, including prospecting for minerals or any other geological material.

For more information about the Bill, click here.

 

Western Australia

Biodiversity laws passed

The Biodiversity Conservation Act 2016 has been passed by Parliament, despite opposition from Labor, the Greens and some environmental groups. The Act repeals the Wildlife Conservation Act 1950 and the Sandalwood Act 1929, and introduces a new regime designed to encourage and assist people to implement measures to protect biodiversity. Key changes include increased penalties for harming native species, new powers to list threatened ecological communities and habitats, and new measures to enable landowners to conserve private land.

Opponents of the Bill were concerned by the Government’s refusal to include provision for an independent scientific committee to advise the Minister. The Government accepted an amendment proposed by the Greens to require Parliamentary approval before the Minister can authorise a proposal that could lead to the extinction of a species.

Most provisions of the Biodiversity Conservation Act 2016 are yet to be proclaimed. To read the Act, click here.

 

Victoria

Victorian Fisheries Authority Bill 2016

This Bill will establish the Victorian Fisheries Authority, with the objective of promoting sustainability in fishing while supporting the development of recreational and commercial fishing.

The proposed Authority will be responsible for administration of licensing schemes, allocation of quotas, development of management plans, fisheries research, provision of information to the fisheries sectors and the general public and monitoring, enforcement and compliance activities.

The second reading speech for the Bill was delivered on 15 September 2016, however further debate on the Bill was adjourned.

For more information about the Bill, click here.

 

New fees gazetted

The Planning and Environment (Fees) Regulations 2016 were gazetted on 27 September 2016. The new fee regime for various planning applications and assessments will commence on 13 October 2016.

To read the Regulations, click here.

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Policy developments and other news

Commonwealth

EPBC Act 2016-17 Cost Recovery Implementation Statement

The Department of Environment and Energy has released the Cost Recovery Implementation Statement 2016-17, outlining details of cost recovery fees, methods for determining fees and eligibility for exemptions for individuals and small businesses. The Statement reflects proposed changes to cost recovery arrangements for environmental assessments under the EPBC Act.

The revised arrangements commenced on 1 October 2016. For more information, click here.

 

First Reef 2050 Plan Annual Report released

The Australian and Queensland governments have published the first Reef 2050 Plan Annual Report, combined with the third edition of the Reef 2050 Plan Implementation Strategy.

The Annual Report summarises implementation of the Reef 2050 Plan from its launch in May 2015 until mid-2016 and progress made against all actions under the Plan. The Implementation Strategy identifies key priorities for implementation activities in 2016/17.

To read the Annual Report and Strategy, click here.

 

Safeguard baselines updated

The Clean Energy Regulator has released an updated Safeguard Baseline Table to reflect determinations made under the new safeguard mechanism.

To access the table, click here.

 

Northern Territory

Fracking Moratorium

On 14 September 2016, the Northern Territory Government implemented a moratorium on hydraulic fracturing of unconventional gas reservoirs, including for exploration, extraction, production and use of Diagnostic Fracture Injection Testing.

The moratorium will remain in place while the Government conducts a “comprehensive independent scientific inquiry into the social and environmental impacts of hydraulic fracturing”.

The terms of reference for the Inquiry have been released for public comment (see ‘Opportunities to Comment’ below). For more information, click here.

 

South Australia

Calls for reconsideration of renewable energy targets following Statewide blackout

Following severe storms in South Australia last week, the state experienced a statewide blackout resulting from the loss of a number of transmission towers. In the wake of the event, Prime Minister Malcolm Turnbull criticised a number of States for adopting “aggressive and unrealistic” renewable energy targets, and called for better national coordination of targets.

The Australian Energy Market Operator and the Climate Council have both released statements explaining that the blackout did not result from South Australia’s high proportion of renewable energy sources.

State and Territory Energy Ministers will met on 7 October 2016 to discuss energy security issues.

 

Tasmania

Director’s reports on Management Plan changes released

After reviewing public comments, the Director of Parks and Wildlife has released his reports regarding proposed changes to the following management plans:

  • Narawntapu National Park Hawley Nature Reserve Draft Management Plan 2015
  • Freycinet National Park Wye River State Reserve Draft Management Plan 2015

The amendments to each plan were designed to facilitate tourism proposals submitted as part of the Tasmanian Government’s Tourism EOI process.

For Narawntapu, the amendments seek to remove a prohibition on horse riding along the beach within the Park. The Director’s report recommends proceeding with the amendment.

At Freycinet, the amendments originally sought to remove the prohibition on the expansion of the capacity and footprint of the existing Freycinet Lodge site within the Park. Following strong public opposition, the proponent for the expansion withdrew plans to extend the footprint and requested only that the restriction on increasing the number of beds within the existing site be removed. The Director has recommended that change.

The Tasmanian Planning Commission will now review the public submissions and Director’s reports before determining whether public hearings will be held.

Click on these links for more information regarding the Narawntapu and Freycinet amendments.

 

Victoria

Ramsar Wetland Obligations report

The Victorian Auditor General has released a report entitled Meeting Obligations to Protect Ramsar Wetlands.

The audit found that many Ramsar wetland sites in Victoria are not being managed effectively due to a lack of appropriate governance and oversight and inadequate funding. The audit recommends that the Department of Environment, Land, Water & Planning improve governance by clarifying roles, responsibilities and accountabilities for management and reporting, and that options for additional and prioritised funding be explored.

To read the report, click here.

 

Health assembly recommended by HazelwoodInquiry to be formed

The Victorian Government has confirmed that a Latrobe Health Assembly, to be incorporated as a separate, non-government representative body, will be established to review health outcomes and improve access to health information in the Latrobe Valley. The 40-member Assembly was a key recommendation of the Hazelwood Mine inquiry.

For more information, click here.

 

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In the courts

Commonwealth 

Out of court settlement for 2010 Great Barrier Reef ship grounding

The Australian Government has reached a $39.3 million out of court settlement with the owners of a Chinese coal carrier, Sheng Neng 1, that ran aground in April 2010 causing the largest known direct impact on the Great Barrier Reef. The settlement provides $35 million for the costs of removing pollution, and a further $4.3 million to cover costs incurred by the Australian Government in the immediate aftermath of the grounding.

 

Queensland

Court of Appeal dismisses Alpha Mine challenge

On 27 September 2016, Queensland’s Court of Appeal unanimously dismissed Coast and Country Association’s appeal against a 2015 decision regarding the assessment of the climate change impacts of GVK Hancock’s Alpha coal mine in the Galilee Basin.

Coast and Country had argued that the trial judge had erred in disregarding emissions from the burning of coal from the mine on the basis that similar volumes of coal would simply be provided by other mines if the Alpha mine did not proceed.

Click here for perspectives on the original decision (from the Nov 2015 Australian Environmental Law Digest).

To read the Court of Appeal’s judgment in Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, click here.

 

Tasmania

Full Federal Court clarifies meaning of “action” under EPBC Act

On 16 September 2016, the Full Federal Court handed down a unanimous decision in the Tasmanian Government’s appeal against Justice Mortimer’s earlier decision that the proposed re-opening of 4WD tracks in the Western Tasmania Aboriginal Cultural Landscape (WTACL) was an action that was likely to have a significant impact on indigenous heritage values under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The Tasmanian government, and the Commonwealth government as intervenor, argued that Justice Mortimer had erred in her narrow construction of “governmental authorisation” (and consequent broad construction of “action”) and in characterising the indigenous heritage values of the WTACL by reference to evidence of its significance to the Aboriginal community, rather than by reference only to those values explicitly outlined in the listing statement.

The Full Court upheld the appeal in part, finding that Justice Mortimer had interpreted both “action” and the indigenous heritage values protected by the listing of the WTACL too broadly. However, the Full Court also found that the approach advocated by the State Government was too narrow. The Full Court considered that, while declaring the tracks open was not itself an action under the EPBC Act, the works needed to give effect to that declaration (including remediation works, re-routing tracks, installing culverts and issuing conditional licences) would be actions.

The Full Court held that the heritage values protected were limited to those values described in the listing documents, but acknowledged that external material could be referred to in order to give context to those values.

The Full Court invited the parties to make submissions regarding disposition of the appeal (including costs), and will make final orders after considering those submissions.

To read the judgment in Secretary, DPIPWE v Tasmanian Aboriginal Centre Inc [2016] FCAFC 129, click here.

 

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Open for comment

Commonwealth

Commonwealth Marine Reserves Review

The Commonwealth Director of National Parks has called for public submissions regarding a proposal to prepare draft management plans for the following Commonwealth Marine Reserve Networks:

  • South-west Commonwealth Marine Reserve Network
  • North-west Commonwealth Marine Reserve Network
  • North Commonwealth Marine Reserve Network
  • Temperate East Commonwealth Marine Reserve Network
  • Coral Sea Commonwealth Marine Reserve

The management plans will be prepared having regard to recently released reports as part of the Commonwealth Marine Reserves Review.

Comments on the management plan reviews can be made until 11 October 2016. For more information, click here.

 

Marine Fisheries and Aquaculture draft report

The Productivity Commission is inviting comments on a draft report on it inquiry into Marine Fisheries and Aquaculture. The draft report makes a number of recommendations regarding improved fisheries regulations, including licensing all marine recreational fishers, setting mortality limits for fisheries with a high risk of interaction with threatened species and clearer conflict of interest policies for fisheries advisory bodies.

The final report is expected to be delivered to the Australian Government by December 2016.

Comments on the draft report can be made until 14 October 2016. For more information, click here

 

Review of National Landcare Programme

The Australian Government is undertaking a review of the “appropriateness and effectiveness” of the National Landcare Programme, comprising the Natural Heritage Trust, Environmental Stewardship Programme, the Natural Resources Management Account and the Pest and Disease Preparedness and Response programs.

A survey inviting comments on the National Landcare Programme is open until 14 October 2016. For more information, click here.

 

Australian Pest Animal Strategy and the Australian Weeds Strategy 2017-2027

The Department of Agriculture and Water Resources is seeking feedback on the revised Australian Pest Animal Strategy and Australian Weeds Strategy 2017 - 2027. The revised strategies will not change the way that individual landholders manage pest animals and weeds on their property, but will set national direction and provide guidance to organisations and property owners to improve cooperation.

Comments on the draft strategies can be made until 14 October 2016. For more information, click here.

 

NOPSEMA Compliance Strategy

NOPSEMA is developing a Compliance Strategy to guide how compliance and enforcement activities are undertaken by the agency responsible for offshore petroleum activities.

Comments on the proposed Compliance Strategy can be made until 16 October 2016. For more information, click here.

 

Senate Inquiry into oil and gas developments in the Great Australian Bight

A Senate Inquiry that lapsed at the dissolution of the Senate in May 2016 has been re-adopted by the current Parliament. The inquiry will examine potential impacts of planned exploratory oil drilling and future oil or gas production in the Great Australian Bight.

Submissions already made to the previous Committee will be considered by the new Committee. New or supplementary submissions can also be made until 17 October 2016. For more information, click here.

 

Great Barrier Reef Marine Park Authority permission system

The Great Barrier Reef Marine Park Authority (GBRMPA) is reviewing the system which regulates and manages activities in the Marine Park that require a permit. Proposed changes to policies and guidelines aim to reduce duplication and improve the rigour and transparency of the permission system.

Comments on the revised policies are invited until 4 November 2016. GBRMPA will be holding a series of community information sessions prior to this date. For more information, click here.

 

Impacts of climate change on marine fisheries and biodiversity

The Senate Standing Committee on Environment and Communications is undertaking an inquiry into the current and future impacts of climate change on marine fisheries and biodiversity, including the effect on fish stocks and broader marine ecosystems. The inquiry will also examine the adequacy of protections for marine biodiversity, biosecurity measures and monitoring systems in responding to current and projected climate change impacts.

Submissions to the Inquiry can be made until 14 November 2016. For more information, click here.

 

Recovery Plan for Marine Turtles

The Department of the Environment and Energy has released a draft Recovery Plan for Marine Turtles in Australia. The draft plan sets out research and management actions necessary to stop species decline, and support the recovery of threatened marine turtles.

Comments on the draft recovery plan can be made until 13 January 2017. For more information, click here.

 

Northern Territory

Fracking Moratorium Inquiry

On 14 September 2016, the Northern Territory Government implemented a moratorium on hydraulic fracturing of unconventional gas reservoirs, which will remain in place until the government has considered the outcomes of an independent Inquiry.

The Government has invited feedback on the Terms of Reference for that Inquiry. Following consideration of feedback, the Government will finalise the terms of reference and appoint an expert panel to conduct the inquiry.

Comments on the draft Terms of Reference can be made until 13 October 2016. For more information, click here.

 

New Contaminated Land Guidelines

The NTEPA has released a draft guide to management of contaminated land, setting out obligations to notify the EPA of contaminated land, when the EPA can require assessment of potentially contaminated land and what remediation processes will be adopted.

Comments on the draft Guideline can be made until 24 October 2016. For more information, click here.

 

General approvals for beneficial reuse

The Department of Environment and Heritage Protection has released a number of draft general approvals for beneficial reuse, including for biosolids, sugar mill by-products and coal combustion products.

Comments on the draft approvals can be made by 11 October 2016 (12 October for biosolids). For more information, click here.

 

South Australia

Update to the 30 Year Plan for Greater Adelaide

The Department of Planning Transport and Infrastructure has released a draft update to the 30 Year Plan for Greater Adelaide. The Plan, which forms part of the Planning Strategy under the Development Act 1993 and influences the way in which individual Development Plans may be amended in future, has been drafted such that it can transition into the new planning system created by the Planning, Development and Infrastructure Act 2016.

Feedback on the draft Plan can be provided until 21 October 2016. For more information, click here.

 

Draft Waste Reform Bill

The South Australian EPA has invited public comment on a consultation draft of the Environment Protection (Waste Reform) Amendment Bill 2016. The Bill seeks to tackle illegal dumping and increase penalties, while adopting a more flexible approach to landfill levies and financial assurances.

Comments on the Draft Bill can be made until 18 November 2016. For more information, click here.

 

Victoria

Vision Paper for Hanging Rock

Macedon Ranges Shire Council, in partnership with the Victorian Government, has commissioned a Master Plan for Hanging Rock. An initial Vision Paper sets out key findings from the process so far and identifies challenges in achieving a balance between existing and future uses and environmental sustainability.

Comments on the Vision Paper are invited until 31 October 2016. For more information, click here.

 

Public land assessment

The Victorian Environmental Assessment Council is undertaking a Statewide Assessment of Public Land, looking at the classification of land, current reservation status of the public estate and the values of public land. VEAC has released a Discussion Paper and Draft Proposal Paper addressing these issues.

Submissions regarding the Assessment can be made until 9 November 2016. For more information, click here.

 

Community Renewable Energy Projects

The Victorian Department of Environment, Land, Water and Planning has released a discussion paper, inviting comments on wind farm planning restrictions, community renewable energy projects, the current methodology for determining planning payments, and subsidies for grid connection.

Comments on the paper can be made until 28 November 2016. For more information, click here.

 

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Other

Awards

Nominations for the National indigenous Law Awards are open until 9am on 17 October 2016. Awards are available for the National Indigenous Legal Professional of the Year, and Indigenous Law Student of the Year.

For more information about the awards, click here.

 

Tenders

The SA Department of State Development has invited energy service companies to join a list of energy performance contracting service providers for the Government Building Energy Efficiency Investment program.

Tenders can be submitted until 30 November 2016. For more information, click here.

 

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Events

Events offered by NELA’s partners (marked Header) can provide substantial savings for NELA members - so check them out and make the most of your NELA membership!

 

(Melbourne) Groundwater Distinguished Lecture

The National Centre for Groundwater Training and Research presents a lecture by Dr Rebecca Nelson on “Regulating the cumulative impacts of groundwater withdrawals: Australia and further afield”.

When: 18 October 2016
Where: Jacobs (Level 16), 452 Flinders Street

For more information, click here.

 

Leaf(Brisbane) The future of Australian Environmental Law: Politics, Reform and Community Activism

The Australian Earth Laws Alliance is hosting a conference on environmental law and governance, featuring keynote presentations from Chief Justice of the NSW Land and Environment Court, Judge Brian Preston; CEO of Greenpeace Australia, David Ritter; Professor Rob Fowler and Professor Brendan Mackey.

When: 20-21 October 2016
Where: EcoCentre, Griffith University, Nathan campus

For more information, click here.

 

(Brisbane) Rights of Nature Tribunal hearing

The Australian Earth Laws Alliance will be holding the first Australian hearing of the Tribunal for the Rights of Nature on the day following its conference. The Tribunal will hear cases concerning the destruction of ecosystems, presented by citizens and environmental lawyers.

When: 27 October 2016, 8:30am – 5:00pm
Where: Parmelia Hilton, 14 Mill St, Perth

For more information, click here.

 

Leaf(Perth) 2016 NELA WA State Conference

The 2016 WA State conference will address the theme Environmental Law: Where are we now, and where are we going?. Featuring presentations from Rob Fowler, David Hochschild (California Energy Commission) and the Hon Dr Mike Nahan and Bill Johnston discussing energy policy.

When: 27 October 2016, 8:30am – 5:00pm
Where: Parmelia Hilton, 14 Mill St, Perth

For programme and registration details, click here.

 

(Brisbane) 2016 EIANZ National Conference

This year’s EIANZ National Conference, “Foundations for Tomorrow”, brings a wide range of environmental practitioners together to discuss environmental trends and their influence on the environment industry through to 2050.

When: 3-4 November 2016
Where: Sofitel Brisbane Central, 249 Turbot Street

For a full programme and registration details, click here.

 

Leaf(Melbourne) 2016 NELA National Conference

Join NELA and a range of experts across many practice areas for an engaging discussion of the topic Environmental Law: What Could We Do Better?  

When: 18 November 2016, 9:00am – 5:00pm
Where: King & Wood Mallesons, Level 50, 600 Bourke St, Melbourne.

For programme and registration details, click here.

Be quick – early bird registrations close 18 October 2016!

 

(Montreal) Impact Assessment’s Contribution to the Global Efforts in Addressing Climate Change

The International Association for Impact Assessment is hosting a global conference to share information, best practices, success stories, innovations, and lessons learned about the way impact assessment can address climate change issues.

When: 4-7 April 2017
Where: Le Centre Sheraton, Montréal

For more information, click here.

 

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Thanks to the NELA Bulletin team

The NELA Bulletin is researched and written entirely by volunteers. This month, we thank the following people for their contributions:

 

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