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October 2017 Bulletin

 

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This month


NELA news and events
01. NELA Committee 2017-2018
02. NELA Essay Competition
03. Membership

 
Law and policy developments

04. In the Legislature
05. Policy developments and other news
06. In the courts
07. Open for comment
08. Opportunities

 
Events

09. (Sydney) National Energy Summit: Can We Solve the Crisis?
10. (Perth) Carbon Budgets and the Law seminar
11. (Brisbane) CASANZ 2017: The Critical Atmosphere
12. (Hobart) National Private Land Conservation Conference
13. (Launceston) Consultants Beware: Managing risk in a changing legislative landscape
14. (Melbourne) International climate diplomacy: The next steps
15. (Canberra) The precautionary principle interpreted by EU courts: reviewing uncertain decision-making
16. (Melbourne) Climate Alliance national conference - a new scenario for business
17. (Canberra) Biodiversity Offsets: are they working in the ACT?
18. (Melbourne) The Paris Agreement two years on: What it means for Australia
19. (Sydney) ACIUCN AGM
20. (Canberra) ANU Energy Update
21. (Hobart) Frontiers of Environmental Law Colloquium
22. (Hobart) Imagining a Different Future: Overcoming Barriers to Climate Justice
23. (Hobart) Coast to Coast: Meeting on the Margins

 


NELA News & Events

NELA Committee 2017-2018

Following the NELA AGM, held on 28 September 2017, we’re delighted to announce the Executive Committee for the coming year.

  • President: Michelle Brooks (WA)
  • Vice-President: Jess Feehely (Tas)
  • Secretary: Natasha Hammond (NSW)
  • Treasurer: Dr Hanna Jaireth (ACT)

Other committee members include Prof Jan McDonald, Wildaliz de Jesus, Jessica Carroll and Bronwyn Woodgate. We’re still keen for SA and NT representation, so members from those jurisdictions are encouraged to contact us about joining the Committee. 

You can download our Annual Report here [insert link].

 

NELA Essay Competition

The NELA Essay Competition is now open, seeking essays from undergraduate and postgraduate students at Australian universities. Essays can address any contemporary issue facing Australian environmental law and must be submitted by 18 December 2017

For guidelines and submission details, click here.

 

Membership

Have you renewed your NELA membership yet? By renewing your membership for 2017-2018, you can help us to keep delivering great events and publications, having a say on national and international environmental decision-making, and facilitating debate on key environmental law issues. 

To join or renew, click here.

 

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Law and policy development

Commonwealth

Stop Adani Bill report

The Senate Environment and Communications Legislation Committee has reported on the Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017.  The Committee recommended against passage of the Bill, with the Greens members dissenting.

To read the report, click here.

 

Product emissions Bill passes

On 11 September 2017, the Senate passed the Product Emissions Standards Bill 2017, which seeks to control emissions from a range of equipment, including chainsaws, lawnmowers and motorboat engines. 

The list of products controlled under the Bill is currently narrow, but is expected to broaden over time.

  

Australian Capital Territory

Minor works in public reserves

The Nature Conservation (Minor Public Works) Amendment Bill 2017 proposes amendments to the assessment process under the Nature Conservation Act for minor works carried out by or for the Territory Government in a reserve.  Works will not require a development application or merit-track impact assessment, but will be subject to an Environmental Significance Opinion from the Conservator of Flora and Fauna which may include conditions on how the works are to be undertaken.

 

Container Deposit Scheme proposed

The Waste Management and Resource Recovery Amendment Bill 2017 proposes to establish a container deposit scheme in the Territory, aligned with the imminent scheme to be introduced in NSW and those already in place in SA and the NT. 

The Bill also proposes minor amendments to definitions and waste licensing and registration provisions.

 

New South Wales

EPBC Act Bilateral Agreement to be reviewed

Federal Environment Minister, Josh Frydenberg, gazetted notice of the intention to develop a draft bilateral assessment agreement with New South Wales to amend the classes of action covered by the existing 2015 bilateral agreement.

 

Tasmania 

Finfish Farming Bill passes

On 28 September 2017, the Legislative Council passed the Finfish Farming Environmental Regulation Bill 2017 with minor amendments, including a requirement for licences that have not been used for 10 years or more to undertake a new environmental impact assessment. 

The Bill transfers environmental regulatory responsibilities for finfish farming to the EPA, and creates a new environmental licence which farmers will be required to hold in addition to existing leases and licences. Responsibility for issuing marine farming leases and licence, and the conditions attached to those instruments, remains with the Minister.

The Bill also allows for the declaration of marine farming exclusion zones. 

 

Pulp Mill Assessment Repeal Bill 2017

The Bill, introduced as a private members Bill by Greens MP Andrea Dawkins, proposes to revoke the Pulp Mill Permit issued under the Pulp Mill Assessment Act 2007.

Last month, the deadline for substantial commencement under the Pulp Mill Permit passed. Gunns’ liquidator KordaMentha stated publicly that it did not intend to rely on works done to date to demonstrate substantial commencement and the pulp mill would not proceed.  However, revocation of the permit is required to officially confirm that the proposal is no longer authorised.

The Bill has yet to be debated.

 

Natural Resources Management Amendment Bill 2017

This Bill seeks to amend the Natural Resources Management Act 2002 to remove the roles and functions of the Tasmanian Natural Resource Management Council from the Act, and instead create the capacity for the Minister to form a special purpose committee, comprising issue-specific experts, on an as-needs basis.

 

Victoria

Yarra River Protection Act passes

On 21 September 2017, the Victorian parliament passed the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017. The new law, which recognises traditional ownership and management rights over the river, and establishes a statutory advisory body to guide management decisions, will take effect on 1 December 2017.

For a good overview of the legislation, click here.

 

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Policy developments and other news

Commonwealth

Senate Committee reports due

The following Senate inquiries are due to report by 18 October 2017:

 

Deadline approaching to register for December ERF auction

Carbon offset developers seeking bids on projects in the next Emissions Reduction Fund reverse auction must register their project with the Clean Energy Regulator by 25 October 2017.  The auction will be held on 6-7 December 2017.

For more information, click here.

 

Review of operation of FOI Act

The National Audit Office has released its review of the administration of the Freedom of Information Act 1982 (Cth). The report examined the administration of requests made to three agencies and found, amongst other things:

  • funding uncertainty had constrained the operation of the Information Commissioner

  • exemptions relied on to refuse access to information increased by 68.4% since 2010, with use of the "certain operations of agency" exemption increasing by more than 300%.

  • there is very limited quality assurance or verification of the reliability of FOI data

  • around 50% of FOI decisions reviewed by the Info Commissioner are set aside or varied –

  • none of the three agencies reviewed met their statutory obligations to publish information

In response, the Office of the Information Commissioner has committed to developing an FOI regulatory action policy outlining the risks and impacts of not complying with FOI requirements.

 

Huge response to Marine Park management plan proposal

Over 54,000 submissions were made in response to the government’s proposed amendments to five Commonwealth marine park management plans covering 44 of Australia’s 60 marine protected areas. The proposed amendments revise the no-take, habitat protection and multiple-use zones in MPAs in Commonwealth waters off the coast of NSW, Qld, WA, SA and the NT.

Concerns about the proposal have been expressed by the Ocean Science Council of Australia and David Suzuki.

 

Australian Capital Territory

Draft environment accounts released

The Commissioner for Sustainability and the Environment has released ‘proof of concept’ environmental accounts seeking to integrate environmental data (such as vegetation extent and condition, water flows and waste volumes) and economic data, such as the ACT Government’s budget, financial policies and frameworks.

The accounts were jointly produced by the Commissioner, ANU and the Australian Bureau of Statistics, based on the UN System of Environmental-Economic Accounts.

 

Northern Territory

Details of environmental bonds released

Following a decision by the Northern Territory Civil and Administrative Tribunal that traditional owner, Jack ‘Wongili’ Green was entitled to information regarding the amount of an environmental bond provided by Glencore in respect of its McArthur River operation, the NT government has released details of the bonds provided for the Territory's nine largest mines.

 

Tasmania

takayna 4WD tracks referral

On 8 September 2017, the Tasmanian government referred its proposal to re-open three four-wheel drive tracks within the Western Tasmania Aboriginal Cultural Landscape national heritage place to the Commonwealth Minister.  The Tasmanian Government referral claims that the proposed mitigation works and administration of access permits will not have a significance impact on national heritage or natural values.

The tracks were closed in 2012 in recognition of the unacceptable impact of off-road vehicles on Aboriginal heritage values. Previous efforts by the Tasmanian government to re-open them have been subject to a series of Federal Court proceedings initiated by the Tasmanian Aboriginal Centre

Unless further information is requested, the Minister will decide whether the proposal is a controlled action (and therefore requires further assessment) by 9 October 2017.  

 

Cabinet Reshuffle

Following the resignations of Minister for the Environment, Parks and Heritage, Energy and State Growth, Matthew Groom, and Attorney-General, Vanessa Goodwin, The Tasmanian Premier announced a further Cabinet reshuffle.  Relevant portfolio responsibilities are now:

  • Justice, Environment & Parks - Elise Archer

  • Planning & Local Government, State Growth - Peter Gutwein

  • Energy & Resources - Guy Barnett

  • Attorney-General, Aboriginal Affairs & Heritage - Will Hodgman

  • Primary Industries & Water - Jeremy Rockliff 

 

Western Australia

Plastic bag ban

The WA Government has announced that lightweight, single-use plastic shopping bags will be banned in Western Australia from 1 July 2018. 

If implemented, Western Australia will join South Australia, Tasmania, the Northern Territory and the Australian Capital Territory in banning plastic bags. Queensland has also committed to implementing a ban from 1 July 2018.

For more information, click here.

The ban complements the proposal for a WA container deposit scheme to reduce plastic waste – see ‘Open for Comment’ below for details of the CDS discussion paper.

 

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In the courts

New South Wales

Appeal to proceed against Moorebank logistics terminal

The Land and Environment Court has dismissed arguments that a resident group, found a residents group, Residents Against Intermodal Development Moorebank Incorporated, was not entitled to challenge the decision to grant consent for a large freight terminal.  The group seeks to challenge the consent on the grounds the terminal would endanger a threatened shrub on the site, previously considered extinct.

The developer, Qube, argued that the group was not entitled to appeal, as objections to the terminal project had been lodged by the group’s unincorporated predecessor, Residents Against Intermodal Development Moorebank, rather than the current entity.

Chief Justice Brian Preston held that the unincorporated group’s right to appeal became the right of the incorporated association, and therefore the appeal could proceed.

To read the decision in Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning [2017] NSWLEC 115, click here

 

Queensland

Alphadale financial assurances upheld

In 2016, mining company, Alphadale Pty Ltd, was directed to provide a financial assurance of $4.2M to the Department of Environment and Heritage Protection in respect of its Big Rush mining project. The company’s self-assessment of the appropriate assurance was $175,500.

Alphadale appealed against the direction, however the Land Court held that s.522A of the Environmental Protection Act 1994 meant that the Court had no jurisdiction to hear the challenge until at least 75% of the required assurance had been provided to DEHP. 

On appeal, the Land Appeal Court overturned that decision and held that s522A did not apply. 

DEHP then appealed to the Supreme Court, which 2:1 upheld the original decision that at least 75% of the financial assurance must be provided before any valid appeal could ensue.

To read the decision in Chief Executive, Department of Environment and Heritage Protection v Alphadale Pty Ltd [2017] QCA 216, click here.

 

Tasmania

Okehampton shore-facilities hearings

Tassal, Australia’s largest producer of farmed salmon, and Spring Bay Seafoods are proposing the construction of a wharf and associated infrastructure to support marine farming operations at Okehampton Bay. The proposal requires amendments to the Glamorgan Spring Bay Interim Planning Scheme 2015 to create the Spring Bay Industrial Specific Area Plan.

Details of the upcoming Planning Commission hearings can be found here.

 

Victoria

CBA shareholder action dropped

In August 2017, two Commonwealth Bank shareholders commenced Federal Court proceedings, claiming the Bank had failed to give due regard to climate change as a major risk to its business, contrary to obligations under the Corporations Act.

Following the release of the Bank’s latest annual report and sustainability report, which acknowledged the significance of climate risk and committed to analysing climate impacts on its business, the case has been discontinued.  Each party agreed to bear its own costs.

 

VCAT dismisses application for details of community group’s litigation finances

Community group, Stop the Tip Inc, has commenced an application for review of a decision to grant works approval for the expansion of the Ravenhall landfill site.  The Victorian EPA alleged that the group was being funded by another applicant, supported by a lobbyist, and getting “two bites of the cherry”.  The EPA said it was concerned by the potential abuse of process and applied for orders requiring Stop the Tip to produce documents regarding their financial situation.

VCAT Deputy President, Helen Gibson, dismissed the application and held that it was not unlawful for a party to be funded in litigation and the source of funding was not relevant to the substantive issues of the case.

To read the decision in Stop The Tip Inc v Environment Protection Authority [2017] VCAT 1453, click here.

 

Western Australia

Eclipse loses landfill levy special leave application

In Eclipse Resources Pty Ltd v The State of Western Australia [2017] HCASL 234, the High Court dismissed an application by Eclipse Resources Pty Ltd for special leave to appeal the decision of the WA Court of Appeal in Eclipse Resources Pty Ltd  v The Minister for Environment [No 2] [2017] WASCA 90.

The Court of Appeal held that Eclipse, a Perth waste management company, was liable for unpaid landfill levies, and that the landfill levy is not unconstitutional. The High Court decided that there was no realistic prospect of disturbing the conclusion reached by the Court of Appeal.

 

High Court rules on validity of mining leases

By majority, the High Court has allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia that non-compliance with provisions of the Mining Act 1978 (WA) did not render invalid a mining lease subsequently granted by the Minister.

Applying Project Blue Sky Inc v Australian Broadcasting Authority, the majority held that compliance with s 74(1)(ca)(ii) was a condition precedent to the granting of a valid licence.

To read the decision in Forrest & Forrest v Wilson & Ors [2017] HCA 30, click here.

 

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Open for comment

Commonwealth

Reef Water Quality Improvement Plan 2017-2022

The Queensland and Commonwealth government have released a draft Reef 2050 Water Quality Improvement Plan 2017–2022 to update of the Reef Water Quality Protection Plan 2013 and support delivery of the Reef 2050 Long-Term Sustainability Plan.

Comments on the draft Plan can be made until 10 October 2017. For more information, click here.

 

Draft report on National Water Reform

The Productivity Commission has released its draft report in its inquiry into National Water Reform.  The final report is expected to be delivered to the government by the end of the year.

Comments on the draft report can be made until 19 October 2017.  For more information, click here.

 

Waste and recycling industry in Australia

The Senate Environment Committee is conducting an inquiry into the waste and recycling industry in Australia, including issues related to landfill, markets for recycled waste and the role of the Australian Government in providing a coherent approach to the management of solid waste.

Submissions to the inquiry can be made until 20 October 2017. For more information, click here.  

 

New South Wales

Draft Guide for Economic Assessment of CSG

The Department of Planning and Environment is seeking feedback on the content of the technical notes addressing a range of environmental, heritage, social and transport related issues to be considered when undertaking an integrated social, environmental and economic impacts merit assessment of State significant development mining and coal seam gas proposals.

Comments on the draft technical notes can be made until 23 October 2017.  For more information, click here.

 

Draft waste infrastructure strategy

The NSW Government has released a draft waste and resource recovery infrastructure strategy to respond to the significant shortfall in capacity for treating mixed waste expected by 2021.

Comments on the draft strategy can be made until 20 November 2017.  For more information, click here.

 

Aboriginal cultural heritage laws proposed

The NSW Government has released a discussion paper detailing a proposed new legal framework “to improve the way Aboriginal cultural heritage is protected, managed and celebrated in NSW.”

Comments on the proposal can be made until 18 December 2017.  For more information, click here.


Queensland

Gladstone Port Master Plan

A draft master plan for the Port of Gladstone has been released for comment, the first of a series of master plans being prepared in accordance with the Sustainable Ports Development Act 2015.

Comments on the draft plan can be made until 9 October 2017. For more information, click here.

 

DEHP seeks feedback on its performance

The Department of Environment and Heritage Protection is conducting a survey inviting public feedback on the Department’s performance, community expectations and environmental priorities.  In particular, the survey asks about concerns regarding mining, the Great Barrier Reef, land clearing, climate change and whether pollution incidents are adequately addressed.

Anyone can participate in the online survey until 20 October 2017.  To participate, click here.

 

Trans-shipping in the GBR Marine Park

The draft trans-shipping policy proposes tighter regulation of transfers of bulk cargo between ships under the Environmental Protection Act 1994, including new assessment and authorisation requirements, and restricting transfers within the Great Barrier Reef marine park to declared ports.

Comments on the proposed changes can be made until 20 October 2017.  For more information, click here.

 

Western Australia

Container Deposit Scheme Discussion Paper

The Department of Water and Environmental Regulation has released a discussion paper on the implementation of a Container Deposit Scheme in Western Australia.

Comments on the discussion paper can be made until 23 October 2017. Feedback can also be provided via an anonymous online survey. For more information, click here

 

Waste levy and waste management discussion paper

The Department of Water and Environmental Regulation has issued a discussion paper proposing legislative reforms to strengthen the regulatory framework for waste management. Proposals include consolidating landfill categories, amending the definition of waste disposal to expand the application of levies, introducing waste avoidance and resources recovery objectives into the Environmental Protection Act, and mandating the use of weighbridges at waste facilities.

Comments on the discussion paper can be made until 16 November 2017.  For more information, click here.

 

Draft Burrup Rock Art Strategy

The WA Government has released a draft strategy to protect Aboriginal rock art on the Burrup Peninsula. The strategy builds on previous studies conducted in response to concerns that industrial emissions may be impacting the rock art. The strategy provides for monitoring to determine whether accelerated change is occurring and outlines other studies required to determine the causes.

Comments on the strategy may be made until 1 December 2017. For more information, click here.

 

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Opportunities

Sustainable development online courses

The United Nations Institute for Training and Research (UNITAR) offers free online courses to the public. Several on the 2030 Agenda for Sustainable Development, climate change issues and conflict resolution may be of interest to environmental lawyers.

 

Scholarships available for MSc in Carbon Finance, Edinburgh

Applications are invited to join the MSc in Carbon Finance at the University of Edinburgh Business School, for the academic year commencing in September 2018.  A number of scholarships are available to support international students to undertake the course:

 

IUCN Expert Assessment Group

Expressions of interest are invited for membership of the Australian Expert Assessment Group for the IUCN Green List of Protected Areas (EAGL).  The EAGL will invite and assess Green List nominations.

Email EOIs to Penelope Figgis, Oceania Regional Vice Chair of the IUCN World Commission on Protected Areas before 13 October 2017.

 

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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!

(Sydney) National Energy Summit: Can We Solve the Crisis?

The Australian Financial Review in association with Deloitte are pleased to announce the inaugural National Energy Summit, featuring keynote presentations from Minister for the Environment and Energy, Hon Josh Frydenberg, and Andrew Vesey, Managing Director & CEO of AGL

When: 9-10 October 2017

Where: Sofitel Wentworth, Sydney

For program and registration details, click here.

 

(Perth) Carbon Budgets and the Law seminar

This seminar, hosted by EDO WA and UWA’s Centre for Mining Energy and Natural Resources Law, will provide an opportunity to hear from experienced speakers on the concept of the carbon budget and its legal implications.

When: 10 October 2017

Where: University of Western Australia

For more information, click here.

 

(Brisbane) CASANZ 2017:  The Critical Atmosphere

This year’s Clean Air Society conference examines the effects of climate change on human health and wellbeing demands that we understand more about the physical and chemical processes underlying air quality, their effects on human health and welfare, and our capacity to effectively control and regulate air pollution.

When: 15 – 18 October 2017

Where: Pullman Hotel, Brisbane

For more information, click here.

 

(Hobart) National Private Land Conservation Conference

This conference features conservation practitioners, business leaders, scientists, land managers, policy makers, philanthropists, community champions and academics discussing the value of nature on private land, and how these benefits are measured and communicated.  

When:  18-20 October 2017 
Where:  Elizabeth St Conference Centre, Hobart 

For the conference programme and information, click here

 

(Launceston) Consultants Beware: Managing risk in a changing legislative landscape

Join Page Seager’s legal experts for a discussion of recent legislative changes (including major reforms in planning, mining and aquaculture), the risks for consultants and how those risks can be managed. This seminar is aimed at consultants who advise clients on all aspects of projects and developments in Tasmania.

When: 19 October 2017, 12:30pm - 2:00pm
Where: Hotel Grand Chancellor, Launceston

For more information, click here

 

(Melbourne) International climate diplomacy: The next steps

The Australian-German Climate and Energy College, Melbourne Sustainable Society Institute and others are hosting discussing the implementation action required for the long-term success of the 2015 Paris Agreement.

When: 23 October 2017, 6:00pm
Where: Auditorium - G06, Elisabeth Murdoch Building, University of Melbourne

For more information, click here.

 

(Canberra) The precautionary principle interpreted by EU courts: reviewing uncertain decision-making

The first in a three part series of talks hosted by the Nexus Research Centre within University of Canberra’s Faculty of Business, Government and Law, this seminar features Professor Nicolas de Sadeleer of University Saint Louis, Brussels.

When:  23 October 2017, 5:30pm

Where:  University of Canberra

For more information, click here.

 

(Melbourne) Climate Alliance national conference - a new scenario for business

The Climate Alliance Conference offers the opportunity to learn more about the key dynamics that will shape new operating scenarios for business, focussing on the assessment and disclosure of climate-related risk.  Hear from speakers including BHP’s Fiona Wild, former Chair of the Clean Energy Regulator, Chloe Munro and Dr Karl Mallon.

When: 24 October 2017

Where: Karstens Conference Centre, Queen Street, Melbourne

For more information, click here.

 

(Canberra) Biodiversity Offsets: are they working in the ACT?

Join the Conservation Council for case studies and discussion of offset projects, how they’re assessed and monitored and who is is accountable for their outcomes. 

When: 24 October 2017, 12-2pm

Where:  Renewables Innovation Hub 19-23 Moore Street, Turner ACT

  For more information, click here.

 

(Melbourne) The Paris Agreement two years on: What it means for Australia

The Carbon Market Institute is hosting its annual pre-COP event to hear from a panel of experts on the opportunities and impacts for Australia as a result of the implementation of the Paris Agreement two years on. 

When: 31 October 2017, 11:30am

Where:  Norton Rose Fulbright, Melbourne

For more information, click here.

 

(Sydney) ACIUCN AGM

The Australian Committee of the IUCN will hold its Annual General Meeting, including an introduction to new Fiji-based Director of the IUCN Oceania Regional Office, Mr Mason Smith.

When: 2 November 2017

 

(Canberra) ANU Energy Update

The Energy Change Institute summit brings together energy researchers, policymakers, industry experts, including Chief Scientist, Dr Alan Finkel, to provide an overview of the latest world energy trends. 

When: 29 November 2017

Where: Copland Lecture Theatre, Kingsley Street, ANU

For more information, click here.

 

(Hobart) Frontiers of Environmental Law Colloquium

The fourth annual Frontiers of Environmental Law colloquium brings together academic teachers and researchers to share ideas, research and teaching practices in the diverse, multi-disciplinary field of environmental law.

When: 6-7 February 2018

Where: UTAS, Hobart

The colloquium is sponsored by NELA, the Law Futures Centre of Griffith University and the University of Tasmania, Faculty of Law. To find out more, click here.

 

(Hobart) Imagining a Different Future: Overcoming Barriers to Climate Justice

The University of Tasmania is hosting a global, multidisciplinary conference examining the barriers to responding to climate change, implementing climate justice, and proposing ways forward.

When: 8-9 February 2017

Where: University of Tasmania

For more information, click here.

 

(Hobart) Coast to Coast: Meeting on the Margins

The 14th biennial Coast to Coast conference is an opportunity to take stock in the face of many governments retreating from coastal management, and to rejuvenate discussion and rebuild a national community of coastal practitioners. The conference will feature presentations from government, research, natural resource management, community organisations and consultants working on coastal issues.

When: 16-20 April 2018

Where: Hotel Grand Chancellor, Hobart

Abstracts can be submitted until 27 October 2017.  For information, click here

 

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The NELA Bulletin is researched and written entirely by volunteers.
This month, we thank the following contributors:

  • Jess Feehely - editor
  • Hanna Jaireth – contributor, international, Cth and ACT
  • Rosie Phillips – contributor, WA
  • Sarah Wilson – contributor, Tas