GREENLAWNEWSLETTER OF THE |
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| Office bearers | |||
| Chairperson | Mark Griffin | Barrister | |
| Treasurer | David Cole | Cole Solicitors | |
| Committee members | |||
| Anthony Flaherty | Marine & Coastal Community Network | ||
| Judy Goode | Dept of Water Resources | ||
| Duncan Hartshorne | University of South Australia | ||
| Rodney Johnstone | Community Representative | ||
| Leonie Paulson | Solicitor, Thomson Playford | ||
| Heather Scholz | Rural community member | ||
| Craig Tidemann | Solicitor, Finlaysons | ||
New Ministers
Following a cabinet reshuffle
recently, the EDO now looks forward to working with the recently appointed
Minister for the Environment and Heritage, Hon. Iain Evans MP and Minister
for Water Resources, Hon. Mark Brindal MP.
In October, James Blindell
jetted off to Sydney to attend an EDO (NSW) conference on the Commonwealth
Environment Protection and Biodiversity Conservation Act 1999 (EPBC
Act). The following day James attended
the annual National EDO get together. The EDO Network is rapidly becoming
a recognised force at the national level. The Network is now adopting a
more coordinated approach to a number of issues, including the sharing
of information and expertise between the EDOs. The Network is actively
involved in commenting and advising upon the EPBC Act (see Don Anton's
article in this newsletter) and strategies were put in place at the meeting
to continue that process. All the state and territory
EDOs are experiencing increasing demand for their services and are all
pursuing strategies to fund expansions of their services. As always, it
was very valuable to exchange (in person) experiences and ideas with legal
and administrative staff from all the EDOs. All EDOs participate in a
Network phone link up every 3-4 months to update information and discuss
current issues.
EDO NETWORK NATIONAL MEETING
Fundraising
Deferred Giving
In an attempt to raise money for our future, the EDO has developed a new brochure and postcard, aimed at encouraging our supporters to consider leaving money to the EDO in their wills. This obviously is a long term project, where such monies would be put into a trust account and only the interest used for operations. The EDO is struggling to meet all the demands placed on us, so, please, if you want to do more for the environment, contact us to get information about putting the EDO in your will.
Lottery
The lottery that the EDO ran in 1998 was very successful, but it seems that, in general, lottery sales in shopping centres are not the flavour of the month and are not getting the rewards for organisations such as ours.
The Management Committee is looking into other avenues of fundraising as we have an urgent need for more funds.
Rural Outreach Program
The Program continues to attract a lot of media attention in rural areas and, more importantly, a lot of clients. The program includes regular visits to the Riverland, Port Lincoln, Mt. Gambier, and the Port Augusta. Occasional visits are made to other regional areas including Whyalla and Kangaroo Island.
In April, the EDO will be convening a public meeting in Port Pirie on the subject of the recently announced class action against lead-smelting giant, Pasminco. The meeting is sure to be fiery, with representatives of Pasminco and class action lawyers invited to speak. The EDO is pleased to be working with the new Pirie-based Spencer Gulf Community Legal Centre on this project.
The outer metropolitan outreach program that was funded, on a trial basis by the Department for Environment, has been a great success. The EDO visited Gawler and Victor Harbor with a good turn out for the community seminars and enough clients to keep us busy. Unfortunately the Department is not providing funds for the outer metropolitan outreach program to continue. The program will be suspended until the EDO can obtain funding to continue it.
GRANTS
We were pleased to learn that the State Government has approved an additional grant of $1,500, (making $14,000 total for 1999/2000) so that the EDO can fully fund its Rural Outreach Program.
The EDO received a grant of $5,000 from the Native Vegetation Council Research Funding Program to fund publication of a guide to protecting revegetation projects in South Australia.
The EDO received $4,165 for three new computers from a Law Foundation Grant.
AGM and DINNER
This was a very successful event held at the Astor Hotel in December. Our special guest and speaker was Dr John Coulter, former leader of the Australian Democrats, former President of the Conservation Council of South Australia and current "environmentalist-at-large".
VOLUNTEERS
Thank you to Jenny Kalionis, who was waiting to enrol at the University of Adelaide and assisted in administrative work for one half day a week over the summer holidays. Also thanks to Ruth Talbot who is doing a half day a week of administrative work.
Paul Burger has been assisting the office develop a web site, thanks Paul. Long standing volunteers, Toula and Graham are still with us, helping with the newsletter and account balancing, thank you both. Thank you to all the legal volunteers over the last few months: Chad Reich, Adam Taylor, Maria Frangoulis, Julia Davey, Michelle Crichton and Peter Whimpress.
TREASURER NEEDED
Do you have accounting skills? Do you have a bit of spare time? Can you ring/email/fax? If you answered yes to all of these, then, please, please call the EDO.
Conference
Environmental Law Conference in the Asia-Pacific Region, Darwin and Kakadu 16-19 May 2000 - conducted by LAWASIA - The Law Association for Asia and the Pacific.
The conference program will be an intensive package delivering a sound overview of environmental issues, with particular emphasis on scientific and policy backgrounds. Sessions on air pollution, water pollution, land degradation and biological diversity will be complemented by keynote speakers from a range of legal and scientific backgrounds.
Recycle
You can recycle any plastic. Take items to Omnipol, 5 Browning Street, Gillman Phone 8447 7750. Open 6:30 am to 4 pm weekdays.
The New Commonwealth Environmental Law:
Environment Protection and Biodiversity
Conservation Act 1999 (Cth)
By Donald K Anton, Solicitor
EDO Victoria
Introduction
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) represents the most fundamental revision of Commonwealth environmental law since its inception in the early 1970s. Nearly all interested parties - what ever their point of view - agreed that time and experience had demonstrated a need to modernise the law in light of contemporary circumstances. Beyond that, however, there has been little agreement about the substantive content of the EPBC Act. It has been both praised and criticised from a number of points of view.
This article outlines the major changes in the law brought about by the EPBC Act. It canvasses the major beneficial reforms ushered in by the new law. It then outlines additional areas in which the continued need for reform remains.
A more complete analysis of the Bill has been prepared by the NSW EDO and is available from our website at: http://www.edo.org.au/edovic/policy/policy.htm
Progressive reforms
While a variety of deficiencies remain, there are a number of true reforms contained in the EPBC Act that will help promote better environmental decision-making. Whether this will translate into greater environmental protection remains to be seen, but at least the procedural potential is there.
Environmental objects of the Act
Unlike the Environment Protection (Impact of Proposals) Act 1974 (the "EPIP Act"), the EPBC Act sets itself a large number of salutary environmental objectives. For instance, the Act makes clear that it is designed to, amongst other things, provide for the protection of the environment, promote ecologically sustainable development (ESD), and promote the conservation of biodiversity. These objectives will be important because they will generally shed favourable light on any judicial interpretation of the Act that may be required.
Principles of ecologically sustainable development
While Australia has had a National Strategy for Ecologically Sustainable Development since 1992 (and eight earlier Commonwealth Acts refer generically to ESD), the EPBC Act is only the second time that detailed principles of ESD have been enshrined in the body of a Commonwealth statute. Section 21 of the Natural Heritage Trust of Australia Act 1997 ("NHTA Act") first set forth principles of ESD in law. Unfortunately, the NHTA Act set forth ESD principles that contain core objectives that promote economic development ahead of the protection of biodiversity. The EPBC Act reverses this by including ESD principles that emphasise key environmental consideration over economic ones.
Another key development in connection with ESD under the EPBC Act is that all Commonwealth Departments must file annual reports with Parliament outlining how its action accord or contribute to ESD. Up until this time, only Research and Development Corporations under the Primary Industries and Energy Research and Development Act 1989 had a duty to report on activities related to ESD.
Requirements for Commonwealth approvals and assessment
Commonwealth responsibility for approving and assessing proposed actions likely to have a significant impact on the environment has been significantly transformed under the EPBC Act. As discussed below, in most respects this transformation has not gone nearly far enough and aspects of the new law, especially the ability to delegate responsibility, have the potential to greatly, if not entirely, undermine favourable reform.
However, the favourable developments should be noted. Absent delegation, under the new law all actions likely to have a significant impact on World Heritage sites, Ramsar wetlands, and a range of listed species and communities will require Commonwealth assessment and approval regardless of where the proposed action is to take place. In other words, Commonwealth assessment and approvals in relation to these matters will be required for all actions proposed within States and Territories, not only in Commonwealth areas.
Environmental impact assessment (EIA) process
The EPBC Act has improved the existing EIA process under the EPIP Act. Again, absent delegation, the Minister for the Environment can trigger the EIA process and will make the final EIA decision. The Minister is also empowered to impose conditions and revoke EIA approvals.
Conservation of biodiversity
In addition to the developments in connection with assessment and approvals mentioned above, the EPBC Act contains a number of positive developments in relation to the conservation of biodiversity. These include: new requirements for bioregional planning, an increase in categories of species and communities eligible for listing as threatened, new protection for migratory species and critical habitat, the creation of a whale sanctuary, and improvements in requirements for protected area management plans.
Beware! Remaining problems and dangers
While the developments listed above are encouraging, all is not rosy with the EPBC Act.
Matter of national environmental significance (MNES)
Under the new Act, the Commonwealth has responsibility for assessing actions likely to have significant effect on six specified MNES. Beyond that responsibility remains with the States. This list is inadequate and far short of the constitutional power that the Commonwealth has with respect to the environment. In particular, MNES do not include matters relating to climate change, vegetation clearance, land degradation, forestry operations, and water allocation. Moreover, the new Act is retrograde in the sense that it eliminates the existing funding "trigger" found in the EPIP Act.
Delegation of EIA responsibility
As indicated above, the most
serious flaw in the new EPBC Act is the ability of the Commonwealth to
delegate its new assessment and approval powers back to the States under
bilateral agreements. Due to the Act's failure to condition this delegation
of power on the existence of "best practice" environmental laws within
States, the use of delegation has the potential to seriously undermine
the Act. Moreover, delegation of EIA responsibility is not limited to bilateral
agreements. Under the Act, the Environment Minister can also delegate his
or her assessment and approval powers to a relevant "Action" Minister and
create the very situation under the old EPIP Act that the new law is intended
to remedy.
Four major problems remain,
in addition to delegation, in connection with the EIA process:
Actions in Regional Forest Agreement areas entirely escape the need for assessment and approvals under the Act, which potentially eliminates large portions of Australia for the Acts ambit. While all economic and social effects must be considered in the EIA process, consideration of environmental effects are limited to the MNES that triggered the assessment, so that other significant impacts outside the MNES must be ignored. "Significant" is not defined in the Act so that it appears that there are very few limits on the Ministers power to decide that assessment and approval is not required. The public is still not entitled to trigger the EIA process. Under the new Act, the Director
of National Parks is retained with diminished powers, but one of the consequential
amendments to the law brought about by the new Act, is the death of the
National Parks and Wildlife Service (NPWS). This means that the Director
will have little or no resources in the performance of his or her responsibilities
to manage protected areas and protect wildlife.The EIA process
Elimination of another independent statutory authority
Enforcement of the Act
The new Act has wholly inadequate provision for third party appeal rights in relation to a host of matters, including assessment and approvals, permits, and bilateral agreements. It is also extremely disappointing that the Act fails to provide open standing for "any person" to sue to restrain and remedy breaches of the Act.
Environmentally dangerous activities permitted in all reserves
Despite adopting the IUCN categories for protected areas, nothing in the Act prevents mining or other environmentally dangerous activities from taking place within high protection categories such as national parks.
Conservation agreements
The Commonwealth can enter a conservation agreement with any person for the conservation of biodiversity. These agreements can cover both private and public land (although not a Commonwealth reserve). Leaving aside the propriety of putting public land in private hands, there is nothing in the new Act to stop a conservation agreement being reached with persons to manage public lands that have environmentally ulterior agendas.
ACKNOWLEDGEMENT
The EDO wishes to thank Microsoft for its donation of License Agreements in respect of 3 copies of Microsoft Office 97 Professional Edition under a Community Assistance Initiative. The EDO is most appreciative of their assistance.
Chris Hales, Mark Parnell, and James Blindell
James Blindell
Not an Obituary!
The EDO is sad to be losing the services of founding solicitor, James Blindell. After 4 years with the EDO, James is moving to private practice with Jamie Botten & Associates, where he will continue to work in the field of environmental and planning law. James originally joined the EDO back in 1994, when we were a small voluntary service using borrowed premises at Bowden and operating under the banner of ELCAS (Environmental Law Community Advisory Service). James was initially employed half a day per week to maintain client files and organise the volunteer lawyer roster. When ELCAS was awarded the "Access to Justice" grant for South Australia in late 1995, James teamed up with ACF conservation campaigner and solicitor, Mark Parnell to fill the newly created position of EDO solicitor.
Some of the highlights of James' time at the EDO included running our first ever civil enforcement action in the Environment Resources and Development Court. Despite the imposition of restrictions on "litigation-related activities'', James continued to press important cases before the Courts. Most recently, he has led the push against inappropriate olive developments and also assisted with the tuna cases (both reported in this issue).
James has also made a valuable contribution to law reform and community legal education. His hypotheticals rivalled those of Geoffrey Robertson (although he did come unstuck once when a high school student nominated the home of a local drug supplier for cultural heritage listing).
On behalf of staff, management committee, members and clients of EDO, we wish James well in his new job and fatherhood.
GREENLAW
Articles Mark Parnell James Blindell Chris Hales unless noted otherwise. Layout Toula Gronthos Chris Hales EDO (SA) Office: 1st floor, 118 Halifax St, Adelaide. Postal address: GPO Box 170, Adelaide, SA 5001. Phone: (08) 8232 7599 Facsimile: (08) 8232 7544 E-mail: edosa@edo.org.au Country freecall: 1800 337 566 Web site: www.edo.org.au
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