ENVIRONMENTAL DEFENDERS OFFICE
December 1998 Newsletter
Defending the Defenders Conference
The EDO now has an email advice service which means people can email us their legal problems on edotas@peg.apc.org and we will email advice back to them.
By Emily Harris
Part-time lawyer
Forestry Amendment (Miscellaneous) Bill 1998
Changes to the Forestry Act 1920 have been proposed to
improve the certainty for the commercial operations of Forestry
Tasmania. Major parts of the Act and most existing Regulations
(except veneer and sawlog specifications) will be removed to
ensure that Forestry Tasmania will have the "legal capacity
of a natural person". The following parts will be removed:
Part IV - Disposal of Forest Produce
Part V - Financial Provisions
Part VII - General
Part VIII - Regulations
Additionally, Forestry Tasmania will now protect its assets using criminal and common law, and most offences under the Act will be removed. This also allows the repeal of most of:
Part VI - Penalties and Seizures
Part IV currently contains the offence of obstructing forestry operations, with the maximum penalty set at $20,000 and 12 months imprisonment. This offence will be repealed, and replaced with the offence of failing to comply with directions of an authorised sign, or the directions of a police officer. The maximum penalty for this offence is $2,000. It is anticipated by the legislature that serious instances of obstructing forestry operations will in the future be prosecuted pursuant to the provisions of the Police Offences Act or the Criminal Code, and severe penalties may still be imposed where appropriate. Those offences that remain in the Act are designed to ensure that the employees of Forestry Tasmania will not be required to police or enforce the law in State Forests. This now becomes the full responsibility of the police.
Section 33AB of the Act, which requires that wood supply agreements can only be entered into if contracts contain certain conditions (ie contracts be on fair terms with provision for dispute resolution) will be removed because this requirement is seen to be anti-competitive.
Sections 36 and 36A of the Act, which deal with sawmill registrations will be removed, and responsibility for such transferred to the Workplace Standards Authority.
All existing contracts and rights will continue unaltered until they are either renegotiated or until they are due for renewal. Future rights will not be controlled by legislation.
Forestry Rights Registration Amendment Bill 1998
A minor amendment allows the registration of Forestry
Rights previously granted in 1990 to private landowners to be
extended to the Crown. This right will allow the issuing of
forestry rights within Crown land that is not held under separate
title. A forestry right will enable joint venture partners to
obtain improved security of a timber crop without the need for
security over the land.
Forest Practices Amendment (Private Timber Reserves)
Bill 1998 and Land Use Planning and Approvals Amendment (Private
Timber Reserves) Bill 1998
These Bills have been introduced to clarify the relationship
between Private Timber Reserves (PTR’s) and municipal
planning scheme requirements. A decision of Crawford, J in the
Supreme Court of Tasmania in March 1998 had the effect of
invalidating a number of PTR’s, and this was seen to be the
result of a deficiency in the legislation, which these Bills now
propose to rectify.
The Bills clarify that a requirement to obtain a permit or other form of approval from a municipal council in order to conduct forestry operations is not to be taken as a prohibition of those activities. This means that a landowner will not have to obtain a permit or approval from a council in order to have land declared as a PTR. This provision will also apply retrospectively, meaning that an existing PTR will not be invalid where a requirement for a council permit or approval under a planning scheme has not been met.
The exclusion of PTR’s from planning schemes will be limited to forestry operations and will not extend to other management activities.
Provisions which relate to the declarations of land as a PTR have been improved by extending the right of appeal against the declaration of a PTR to adjoining landowners, and by providing that an application may be refused where an adjoining landowner is directly and materially disadvantaged by such declaration.
Regional Forest Agreement (Land Classification) Bill
1998
The purpose of this Bill is to implement those
provisions of the Regional Forest Agreement (RFA) that require
legislative action by Tasmania. A clear objective of the Bill is
to extend investment beyond Commonwealth compensation funds to
increase thinning, planting and pruning over the next 10 years to
expand production on the land now clearly available for wood
production.
This proposed legislation will restructure the State’s current system of land classification, in accordance with the recommendations of the Inquiry into Crown Land Classifications by the Public Land Use Commission.
This Bill amends the Crown Lands Act, the Forestry Act and the National Parks and Wildlife Act, in order to accommodate the new land classification system. The classification system will be simplified to include 11 different reserve classes on public land and 2 on private land, replacing the existing reserve classifications, currently in excess of 100. With this new system, each piece of Crown land will have only one classification which will have a defined set of purposes and objectives for management and use of that land.
The Bill implements a series of complex actions to change the status of the various parcels of land as agreed under the RFA. These land parcels are identified in the schedules to the Act with the detailed plans being lodged in the Central Plan Register.
The Bill provides for the revocation of multiple use forest and deferred forest status from within the 113,000 hectares of land proposed to be proclaimed as reserves under the National Parks and Wildlife Act plus some 265,000 hectares of land for which the Resource Planning and Development Commission is conducting an inquiry to make recommendations on the class of reserve. The Bill also revokes the existing areas of State Forest which have the dual status of both Conservation Area and State Forest. These areas will no longer be reserves.
The Bill is also designed to provide for certainty of resource access to the minerals industry, which is necessary to replace old mines (eg Hellyer, due to cease production in mid-2000) with new mines. The RFA adopts a new multiple use reserve category for land with both high conservation values and high mineral potential. This new category of ‘Regional Reserve’ has as its first objective "to provide for mineral exploration activities and utilisation of mineral resources".
The new classes and the new reserve system will not be proclaimed to commence until new regulations are in place.
The Living Marine Resources Management Amendment Bill
1998
This Bill is intended to alleviate difficulties in
administering the Act. The main provisions affected relate to the
appointment of fisheries officers, the issuing of fishing
licences and fishing certificates, the transfer and variation of
licences, quota units and entitlements. Other amendments clarify
provisions to facilitate effective compliance monitoring and
enforcement provisions.
Ministerial discretion in the variation of licences and fishing certificates has been restored. These provisions were amended last year to provide some guidance to the Minister’s discretion in considering applications for licence transfer and variations. The unintended effect of those amendments was to constrain the Minister’s discretion, so the amendments have been reversed and the original intent of the Act restored.
Commonwealth Environment Protection and Biodiversity
Conservation Bill 1998
It appears that this Bill has now been reintroduced into
the Senate, in order to allow the Senate Committee on
Environment, Recreation, Communications and the Arts to continue
its work on the Bill. However, the Committee itself has not yet
been reconstituted. The Bill is not expected to come up for
debate in the Parliament until early next year (probably the
second sitting week in March, which is when the Committee is due
to report to the Parliament). It is not yet clear whether or not
the Committee will hold further public hearings before finishing
its report. Contact EDO NSW.
Discussion Paper on the Development of Contextual
Information for the NPI
Environment Australia is in the process of developing an
internet database for the National Pollutant Inventory that will
reflect reporting of pollutant emissions under the NPI.
Contact the EDO or Barry Windridge at the Tasmanian Department of Primary Industry, Water and Environment.
National Jabiluka Arrestees Information and Legal
Support Network
Are you a lawyer, law student or paralegal? Are you
against the proposed Jabiluka Uranium Mine in Kakadu National
Park? Do you want to help?
The National Jabiluka Information and Legal Support Network (JAILS) is being established to develop a network of lawyers and paralegals who are prepared to help.
Email: cassandra@ozemail.com.au
or
Emma King
Jabiluka Alliance
phone 08 8981 1984
Email: ausasia@ozemail.com.au
A membership form is available at www.jabiluka.net/legal
Senate GST Inquiry and the Environment
On 25 November 1998, the Senate referred issues relating to the
proposed GST to a Select Committee and three of its References
Committees. One of those is the Environment, Communications,
Information Technology and the Arts References Committee. It will
inquire into:
1. the broad environmental impacts of the proposals, including effects on the use of various types of fuel and energy; greenhouse gas emissions, air pollution, forestry and mining; and options for a tax system which better achieve environmental objectives, including ‘eco-taxes’;
2. the impact of the proposals on the arts, including ticket sales, the transfer of grant monies, and private sector sponsorship; and
3. the effect of the proposals on not-for-profit conservation and arts organisations. Submission must be lodged by 29 January. For more details contact EDO NSW.
The following is a summary of proceedings at the Defending the Defenders Conference in Sydney in October 1998.
The Strength and Importance of Public Participation
· Justice Murray Wilcox, Judge of the Federal Court - opening
address - encouraging litigation, moving early and public
awareness and support.
· MC Mehta - inspirational talk on India’s environmental
laws. Constitutional right to life article which includes right
to live in a healthy environment. No standing issues in Indian
Supreme Court as everyone can petition the court in public
interest cases and at no cost.
· John Bonine - Oregon US - discussed standing - Strategic
Litigation Against Public Participation (SLAPP) suits as a
rapidly growing indus-try to oppress public participation.
· Sharon Beder, author of Global Spin - SLAPP suits discussion.
Actions Against Participants
· Katherine Wells, EDO NSW - discussed defamation and
summary offences - protesters.
· Margaret Thorsborne and David Haigh - Hinchinbrook. Case
study, slides and talk on academic freedom from David Haigh.
· Greg Ogle - (SA) - SLAPP suits in relation to development and
the benefits of having individuals and not organisations, so that
it’s harder to shut people up.
Launch of "A NSW Guide to Non-Violent Action, the
Environment and the Law" - launched by Hon. Ian Cohen.
Tactical Response
· Bob Burton - preventative measures against harassment.
· Bruce Donald - NSW EDO Chair - defamation law.
· Rosemary Budavari, ACT D\EDO - incorporation and protecting
your organisation through its legal structure.
Where to from here?
- panel discussion and responses from Hon. Ian Cohen (Greens
member of Legislative Council), Benedict Southwall (Greenpeace),
John Connor (Nature Conservation Council of NSW), James Johnson
(EDO NSW).
By Susan Gunter
Principal Lawyer
We acted for Mr and Mrs Dawes, residents adjoining a fertiliser depot in Deloraine. They sought orders in the Tribunal that Pivot stops allowing fertiliser dust to escape over their back fence and onto their property and that Pivot reduces what would appear to be very unnecessary and loud noise from some of their loading operations. We prepared for a hearing and had statements from other residents whose houses adjoin the depot, concerning the dust and noise nuisance. Shortly before the hearing Pivot agreed to settle by taking steps to stop fertiliser dust escaping from their property and significantly reducing the noise.
A related case is still on foot, where Mrs. Dawes is suing Pivot for damages arising out of exposure to the dust. A private law firm is handling this, as we are unable to claim costs and the action is in the Supreme Court.
Water Pollution: Water pollution and quality have been issues in the last 3 months. In one small town the water supply has had consistently high levels of E. coli bacteria (from animal excreta). The Council responsible for the domestic water supply advised the residents that it could either give the water supply to the community to manage, or charge them for upgraded filtration and treatment facility. Council also suggests putting signs around the town warning people that the water is unfit to drink and that it should be boiled.
Our advice is that Councils have a responsibility to ratepayers receiving piped water from a Council water supply to provide potable, ie. drinkable water under the Waterworks Clauses Act s.18. The recently enacted Public Health Act of 1995 provides generally that Councils have a responsibility to promote the health of the residents in their local area and provides that Council notify the residents if the water supply becomes contaminated (s. 128,129). The Act refers to guidelines and to be enforceable these guidelines must be passed in Parliament.
The National Health and Medical Research Council has brought out Guidelines for Drinking Water and the 1996 edition refers to Drinking Water Supplies for small communities. The local council applied this section of the NHMRC Guidelines to the small community and produced the above recommendations to it. However, Council did not consider the quality of the water supply. It is an offence to pollute a water supply under s. 17 of the Police Offences Act. If anyone is causing a nuisance by contaminating a water supply council must issue them with an Abatement Notice under s. 200 of the Local Government Act ordering them to cease the polluting activity. Council has further powers under the Environmental Management and Pollution Control Act 1994 to issue an Environment Protection Notice against anyone contam-inating a water catchment.
The results of the recent inquiry into contamination of water supplies in Sydney have advised that authorities focus firstly on cleaning up the water catchment and that this is probably the most cost-effective way to deal with water contamination problems. Upgraded treatment plants and screening and chemical treatment of the water supply may not be cost-effective in the long run. In this present case the residents were not presented with information about the problems in the catchment or any costs of remedying them. They were asked purely to consider taking the water supply over themselves or paying for increased costs of water treatment. Councils are public bodies with the powers of enforcement of the Acts set out above and it would seem a far more productive use of resources if they undertake this role rather than dump it on the community. Members of the community may still take civil enforcement proceedings under the Environmental Management and Pollution Control Act but will need evidence of samples of water pollution and water pollution sources and this expertise is with the Council.
A related case concerns dairy effluent run-off into a creek in a rural area from which our clients draw their water. We are working with the Ombudsman on this case and look forward to the Council satisfactorily resolving this matter.
We have heard from another client that the local Council has issued a farmer with an Environment Protection Notice. The EPN directs the farm to fence the creek from which he draws his water and which is being polluted by cow manure due to cows walking through the creek. A breach of an EPN can then be prosecuted by Council in the Magistrates Court. Water supplies can be tested by the Dept. of Health and the Dept. Primary Industry, Water and Environment. The test kits provided by your local Waterwatch group may be used for initial indications of water quality, including turbidity. However, a laboratory analysis of water would be required to conclusively demonstrate pollution/contamination.
Dust Pollution: Another Fertiliser Plant is apparently not abiding by its licence conditions and is emitting dust which blows onto our client’s property. As with the Pivot Fertiliser case this issue is really one for Council; however if Council is reluctant to take up the matter themselves, we will have no option but to advise the client to seek orders in the Resource Management and Planning Appeal Tribunal.
The use of herbicides such as Atrazine, Velpar and Roundup
which then may be washed into water courses or the ground water
is of concern to many clients. Our previous newsletter included
information sheets referring to Forestry and Organic Farming,
Organic Farming and Chemical Sprays. These may assist if you are
concerned about this sort of contamination.
We have devised a Complaints Form to forward to the Forest
Practices Board where there may be breaches of the Forest
Practices Code and the Forest Practices Act. Several clients have
sent these with concerns about burning off, errors in a Timber
Harvesting Plan which omits documentation of domestic water
supply intakes, and dangerous use of narrow roads by log trucks
during school bus hours.
Concerns by Organic Farmers about forestry operations potentially contaminating their water supply and land. Organic farming requires conventional agricultural chemical free soil and water. Without the certification an organic farmer’s livelihood may be ruined or curtailed for several years depending on the persistence of the chemical contamination.
This is governed by Planning Schemes as well as the State Coastal Policy, the Land Use Planning and Approvals Act, the Crown Lands Act (if Crown land) and the National Parks and Reserves regulations may also apply to reserved land.
The Dept. Primary Industry, Water & Environment recently called for submissions concerning the proposed Guidelines for this reuse. From a sustainable ecological perspective this is excellent; however, useable sewage also may contain levels of heavy metals and other contaminants and the site to be treated may pose a threat to water supplies from run off or seepage into ground water. Produce from the land should also be tested for chemical residues. This is not a problem peculiar to bio-solid reuse; there is significant contamination of water supplies now by conventional chemical fertilisers (see State of Environment Report).
The Department intends that the Guidelines will form part of a license to spread sewage sludge. The license will also be subject to land use as set out in the Planning Scheme and there will be considerations as to possible health risks, odour and proximity to housing.
Our submission was written by Kate Webb, a recent law graduate
who has kindly donated many fruitful hours working here as a
volunteer. Kate and I recently met with a Departmental officer
and discussed further the needs for monitoring, labelling and
clear lines of enforcement of guidelines. Contact the EDO for
further details.
Caroline Kirk, our Office Administrator, has recently been awarded a Literary Grant from Arts Tasmania to produce a collection of her short stories. Look out for the book. Caroline has also won First and Third Prizes in the Fellowship of Australian Writers (Tasmania) 1998 Story Competition. Congratulations Caroline.
Chris Harries is the Editor/ Project Coordinator for this (thanks to the grant from the Board of Environmental Management and Pollution Control) and he is now producing chapters and getting others to write chapters for the guide. Watch this space for Community Seminars which he will run to test the effectiveness of the draft book in the new year.
Information Kit "Taking your Case to the Tribunal" for section 61 Appeals and "Civil Enforcement Proceedings for Planning and the Environment", written by Gina Goodman, a volunteer law student. We have applied to the Law Foundation to assist with printing the kit and hope to produce it early in the new year. Gina has now finished her law degree and is working in the Kingborough Council’s Planning Office. Thank you, Gina for your work here as a volunteer and we wish you well for the future.
"Aren’t we lucky" is a frequent comment Caroline and I say to each other when yet another wonderful volunteer turns up. We have been most fortunate to have such hard working and helpful volunteers both as legal researchers and draft letter writers and also as administrative assistants. The latter have come from advertisements through Volunteering Tasmania. We should like to thank our consultant planners Brian Risby and Bob Graham, our law students Louise Braithwate, Steven Chesher, Diane Gee, Gina Goodman, Emily Harris, Andrew Hancock, Baia Papadimitriou, Tim Walter, Kate Webb, Katherine Booth, Viola Forward, Brendan Gogarty, Penny Holloway, Gail Hopley, Kate Hoyle, Melanie Kerrison, Alex Links, Alice Mulford, and Rachelle Padgett. We hope that have provided these people with a good grounding in environ-mental legal practice, and the running of a law office. We also thank our administrative volunteers Rachael Moore and Yolanda van Rooyan who are now in employment.
Thank you to Rick Snell, Lecturer in Principles of Public Law, who has referred students to us for joint projects.
Jim Russell and also next year Elaine Stratford, are interested in joint projects for Environmental Planning students and we hope to have a student here on work experience for part of the year. Lorne Kriwoken has also referred students to us about joint projects and we thank these people for their interest.
Launceston - Clean Water - Your Rights (Wednesday 2nd December) enthusiastic participants - thank you David Obendorf and Lucia Ikin and the Launceston Environment Centre for organising the seminar and having us at the LEC. We will run more workshops next year in conjunction with the LEC. We have advertised two workshops at Deloraine but so far have had a slow response. Thank you Andrew Ricketts for your assistance with publicity and we look forward to successful workshops in 1999.
The EDO participated in a committee which drew up a review document for public comment. The review is instigated by the Regulation Review Committee of Treasury pursuant to the intergovernmental COAG agreement and is looking at areas of the legislation which affect business, and/or competition. Most of the Act is community standards legislation, ie. related to protection of people’s health and the environment and is therefore exempt from review; however there are some areas such as the Emissions Regulations, fees and charges, Environmental Impact Assessment which are under review. The Committee will now consider these and make recommendations concerning any amendments to the Act.
Emily Harris is now here one day per week and it’s great to have her on board. She has had an ongoing involvement with community groups concerned with the environment including the Tasmanian Wilderness Society, the Tasmanian Environment Centre and the Native Forest Network. Emily works for the rest of the week at Legal Aid’s Telephone Legal Advice service.We welcome her and wish her a fruitful and enjoyable time with us.
Emily’s employment has been made possible by the grant from the State Government’s money for litiagtion, which Susan Gunter is doing and the Commonwealth funding thus not taken up has been directed to Emily’s position.
We are fortunate to have Chris Harries join the team at the EDO as Project Co-ordinator/Editor of a Guide to Environmental Law which we expect to publish in 1999.
Chris comes to us from an extensive background of environmental research and campaigning in Tasmania.
This project has been funded by the Department of Primary Industry, Water and the Environment.(TAS)
The EDO will be closed over Christmas and the New Year from:
Thursday 24th December, 1998 to Monday 18th January, 1999
Please leave messages on our answering machine. Messages will be checked during the break for urgent matters.
Manager - Fundraising, Publications, BequestsLocation: Hobart; will become vacant in January 1999.
The successful applicant will plan, implement and assess actions concerning fundraising, publications and bequest programs. The successful applicant will ensure that Bush Heritage maintains and improves its income and supporter base and also its communication with donors and potential supporters.
The appointed person will work in conjunction with the Executive Director to manage these areas of Bush Heritage’s activities. 28-35 hours per week, negotiable over 4 or 5 days. Salary $35,000-$40,000 pro rata. Applications close Friday 8th January, 1999.
For more information/position description contact:
Margaret Graham or Kerrie Green on (03) 6223 2670 or fax 6223 2680 or E-mail abh-fund@h130.aone.net.au
Please leave postal address and daytime phone number.
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Great Job for a Green Lawyer
Managing Solicitor
The EDO North Queensland, based in Cairns, is seeking to employ a new managing solicitor.
Contact: Rowan Silva or Jann Crase on (07) 4021 4766. Applications close 4 January 1999.
Newsletter of the Environmental Defenders
Office, Inc. (TAS) DECEMBER 1998
Environmental Defenders Office Tasmania Incorporated
131 Macquarie Street
HOBART 7000
Telephone: 03 62232770
Fax: 03 62232074