ENVIRONMENTAL DEFENDERS OFFICE
 
March 1999 Newsletter
 
Update on the New Water Management Legislation
 
Commonwealth Environment Protection and Biodiversity Bill
 
Lawyer’s Report
 
Environmental Law Handbook
 
Not So Safe Nuclear Energy...
 
Tarkine Link Road
 
Court Win for Threatened Species
 
National Toxics Network Alert
 

Update on the New Water Management Legislation

The long awaited draft Water Management Bill has now been released for public consultation. The EDO has previously made submissions and will make further submissions on the Bill. If you use freshwater for commercial purposes such as irrigation, aquaculture, industry or watering livestock, or if you would like to have input into how our rivers and groundwater are to be managed in future, this legislation will be of interest to you. Relevant publications available are: a booklet detailing the provisions of the draft Bill; the draft Bill itself; a Regulatory Impact Statement (RIS) on the draft Bill.
These publications are available for viewing at: Service Tasmania shops throughout the state (Phone 1300 366 773). at offices of the Department of Primary Industries, Water and the Environment at:
Copies of the booklet and RIS are available free of charge; copies of the draft Bill cost $10 (including postage in Tasmania).
Your comments are welcomed. Comments on the draft legislation are invited from all interested people and organisations. Comments can be provided by written submission to:
Dr Alan Harradine
Department of Primary Industries, Water and Environment
GPO Box 44A
HOBART TAS 700
Fax: (03) 6234 7559
Email: Alan.Harradine@dpiwe.tas.gov.au
Submissions must be received by 9th April 1999. Please note that all written submissions will be treated as public documents.

More information?

For further information, please contact Peter Bolton at DPIWE on:
Phone (03) 6233 8451
Fax: (03) 6234 7559
or to:
Administrative Officer
Land & Water Management
Department of Primary Industries, Water and Environment
GPO Box 44A
HOBART TASMANIA 7001
Phone: (03) 6233 2584
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Commonwealth Environment Protection and Biodiversity Bill

A Bill restructuring existing Commonwealth environmental legislation is currently before the senate.
The Bill significantly restricts the environmental matters for which the Commonwealth will be responsible to "matters of national environmental significance", listing them as follows:
The Bill excludes other major environmental issues of concern from Commonwealth jurisdiction, such as land clearance and degradation, the allocation of water rights, climate change and greenhouse gas emissions and forest management and protection.
The Bill also enables the Commonwealth to accredit the environmental impact assessment procedures and decisions by way of bilateral agreements with the States, including with respect to the few matters of national significance.
The Bill offers a few improvements on the current system, such as transferring the powers to trigger Commonwealth environmental assessment, and to decide whether or not to give Commonwealth approval to an action from the relevant Government "action Minister" to the Commonwealth Environment Minister. A further improvement is that the Bill provides for the introduction of bioregional planning.
The Bill, however, is generally opposed by the national EDO Network, which prepared a submission detailing the insufficiencies contained within the Bill and providing suggested best practice alternatives.
The EDO (TAS) prepared an additional submission on the limited standing provisions contained within the Bill. A volunteer, Penny Holloway, prepared the written submission in August last year and in February it was presented to the Senate Standing Committee conducting the Inquiry into the proposed legislation by Emily Harris. The submission demanded open standing provisions to enable "any person" to bring proceedings to enforce the proposed legislation
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Lawyer’s Report

By Susan Gunter
EDO Lawyer

Current Case

Quoiba Progress Association v. Devonport City Council and North-West Rendering Pty Ltd
We act for the Progress Association in an appeal to the Resource Management and Planning Appeal Tribunal concerning the approval of a boiler shed at the rendering works.
The works initially applied to the Devonport City Council for installation of a second sawdust fired boiler and to increase its operation hours to 24 hours a day, five days per week. The boiler was already on site. Council referred the application to the Board of Environmental Management to assess the environmental impact of this change in operation. The works amended its application to construct a boiler shed to house a future boiler which would be unconnected. The Board of Environmental Management assessed this proposal, decided there would be no environmental implications in construction of a shed and Council issued a permit.
The residents had objected to the development application and instructed us to lodge an appeal. Grounds of appeal are that the shed is a store and a store is a prohibited use in the special industrial area. The development and the use must be considered together in this situation; the Land Use Planning and Approvals Act requires that applications be integrated; otherwise we have a two step process, eg. approval of a building with different little rooms to remain unconnected and then a separate application for use of it as a dwelling.
The matter will be heard on 9 March.

Advice

Pollution

Dust - in our last newsletter we referred to a fertiliser plant apparently not abiding by its licence conditions and emitting dust which blows onto our client’s property. Following advice from our office, our client met with representatives of the fertiliser depot and Council; a dusty road has been sealed, and the company has agreed to abide by its licence conditions including: loaded trucks to be covered and no loading outdoors. Our client is delighted she has been able to achieve this result herself and knew that the EDO was there to intervene if she was not successful.

Smoke from tip fires - advice to client that such pollution constitutes an offence under EMPCA.

Smell - advice re smells from fish farm in waters adjacent to residential area.

Industrial Noise in residential area - attempting to negotiate with Council on behalf of client.

Threatened Species

Southern Blue Fin Tuna - the Scientific Advisory Committee (Threatened Species) decided not to list Southern Blue Fin Tuna as vulnerable. We considered this a breach of the Threatened Species Protection Act and advised client accordingly. Also made submission to Scientific Advisory Committee.

Delisting Giant North-East Snail - this snail lives only in certain forest areas in the North East of Tasmania and is listed under the Threatened Species Act. The Scientific Advisory Committee recently considered a study and decided to delist the snail. Our client will appeal this process. Logging has just started in one of the coupes inhabited by the snail, and we advised client to seek injunction as the Threatened Species Protection Act is being and will be breached by destruction of the snail’s habitat which is to be replaced with softwood plantations. Issue: interpretation of section 51 where taking of snail can extend to destruction of its habitat with the consequence that the snail has nowhere to live and will die. This follows NSW case of Corkill v. Forestry Commission.

Quarries

Evidence of licence breaches (excessive blasting) which we have asked the Department of Primary Industry and Environment and now the Minister to follow up. We are now considering their responses.

Environmental degradation of private land due to poor rehabilitation of gravel pit - apparent maladministration by Council - referred to Ombudsman’s office.

Forestry

The Forest Practices Board is responsible for investigating breaches of the Forest Practices Code and the Act. We are corresponding with them about an apparent breach of the Code which does not appear to have been properly investigated.

Chemical Use on adjacent land - Forestry Plantation - general advice provided.

Chemical Use on adjacent land to organic farm with consequent pollution - advice re soil and water testing. Contacted David Parsley, the Spray Coordinator at the Department of Primary Industry, Water and Environment.

Forestry activities near platypus colony in creek.

Establishment of forestry plantations on grazing land, and chemical use.

Marine Farming

Advice concerning a challenge to a decision of the Marine Farming Planning Review Panel on the grounds that they were not given access to question scientific witnesses called by the panel.

Riparian Rights and Springs

Water originates from a spring and flows to properties through defined channels created by the water which gives rise to Riparian Rights preserved in the Water Act 1957.

Coastal Vegetation removal - Turners Beach Coastcare (who we assisted at the end of 1997) are concerned that the Council is engaging in further tree removal. One of the attractions of these coastal areas is the proximity of residents to trees, views and beach. The trees seem to suffer in a quest for the view and in the process are replaced by mowed lawns, this in turn has the potential for erosion and destabilisation of sand dunes in the event of storms.

Volunteers

Andrew Hancock, a law graduate from NT, generously provided valuable legal assistance (and a sense of humour) during the long vacation. He has just commenced Legal Practice and we miss him. Thank you, Andrew. Andrew also worked on to finalise the draft begun by Kate Booth and substantially written by Louise Braithwaite on Implementation of International Treaties in Tasmania. This will be a publication by the National Environmental Law Association.

Projects with the University of Tasmania

We are again working with Rick Snell, Lecturer in Principles of Public Law, on projects with students. I will be giving lectures to Environment and Planning Students this semester.

Library

Colleen Dibley has again provided us with more books! Thank you again for your generosity.

Submissions

Emily addressed a Senate Committee Hearing on the Environment Protection Biodiversity Conservation Bill on 19/2/99. She has also made submissions on behalf of the EDO to the Senate Inquiry on the Regional Forest Agreement and also to the Department of Transport on their Environmental Policy.

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Environmental Law Handbook

By Chris Harries
Editor

The EDO's Environmental Law Handbook should be published in April, all going well. The Handbook will be similar to environmental law guides recently published by EDOs in other states.

Published with financial assistance from the Department of Primary Industry, Water and Environment, our Handbook aims to be a 'practical guide to Tasmania's environmental and planning laws'.

It should be of invaluable assistance to landowners, local councils, conservation groups, law students and business owners in fact, all those who need a first hand insight into how our environmental laws work.

Creating the handbook has been a collective effort. Many people, both within government agencies and in the non government sector, have contributed to it, giving freely of their time and expertise. That alone signifies a growing spirit of cooperation in the community over environmental law matters.

Compiling a publication of this sort is not an easy task, as our friends in the interstate EDOs have pointed out. Amongst the mountain of relevant information, what do you include? What do you leave out? And it can be difficult to describe legal processes in userfriendly non-technical language without losing precision.

I have been ably assisted in this task by EDO staff and volunteers during the past five months - including Di Gee, Emily Harris, Gina Goodman, Andrew Hancock, Janice Bird, Baia Papadimitriou, John Scanlan, Rachelle Padgett and of course, Susan Gunter and Caroline Kirk.

Also the Editorial Committee, comprising Susan Gunter, Kate Crowley, Lindy Wall, Michael Lynch, and Harry Derkeley. They have all helped out in a variety of ways - by providing information, reading through drafts and being badgered with odd questions.

In the next two months we will be conducting community workshops on environmental law and will be using the new Handbook in those workshops as a primary reference source.

I must add that it has been a fantastic experience to work with the EDO on this project, in such a friendly work environment and with such a committed bunch of professional people.

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Not So Safe Nuclear Energy...

Source: Jean McSorley

The following press release dated 10.02.99 reveals how British Nuclear Fuel (BNFL) have had to withdraw advertising in which they claim that they solved their nuclear waste problem. This is the corporation which is backing the Pangea proposal to site an international nuclear waste dump in Australia. Perhaps BNFL had the nuclear dump proposal in Australia in mind when they drew up the advert.

The Advertising Standards Authority Instructs BNFL to Stop Misleading Advertising

The Advertising Standards Authority (ASA) today published its decision upholding a complaint brought by Nuclear Free Local Authorities (NFLAs) about misleading and exaggerated BNFL advertising. NFLAs complained that BNFL's assertion that it had "...perfected ways to deal with all types of nuclear waste", repeated through a series of trade adverts in 1998 breached the ASA code of conduct.

The ASA Adjudication published today upholds NFLAs complaint stating:

"...readers would interpret the claim to mean the advertisers had advanced their methods significantly beyond (UK regulatory) standards."

NFLAs welcomed the ASA decision saying it exposed the gulf between BNFL's public relations and the reality of nuclear waste management. The ASA have instructed BNFL not to repeat the claim.

The ASA Adjudication was first reached in November 1998 but remained confidential until today pending an appeal by BNFL which ASA's Chairman, Lord (William) Rodgers dismissed. The Adjudication came before publication in December last year of a highly critical report from the nuclear safety regulator - the Health and Safety Executive - which cited continuing poor management of 70,000m3 of intermediate level nuclear waste held at BNFL's Sellafield site and other sites around the country .

The ASA's decision also severely embarrasses BNFL as it tries to build public support through its current TV advertising campaign, launched on Boxing Day. BNFL has describes its latest TV advertisement as 'surreal' (4) but NFLAs concern (5) is that it is an expensive distraction from the urgent Sellafield safety work highlighted by the HSE.

The judgement against BNFL follows an earlier complaint from the NFLAs in 1994, which the ASA upheld, about misleading advertising by the then generator, Nuclear Electric. The judgement also follows criticism last year about 'inaccurate' nuclear industry advertising in the USA

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Tarkine Link Road

By Erik Peacock

Introduction

In late 1994 construction began on a State government sponsored road that was to become the "Western Explorer" better known as the "Road to Nowhere". This road now bisects a large tract of disputed wilderness in North West Tasmania. The project faced considerable community resistance on both environmental and economic grounds. One of the ways this found expression was through the legal system.

Background

The road was constructed without the planning approval required by the provisions of the Land Use Planning and Approvals Act 1993. Had approval been sought from the relevant planning authorities there would have been opportunity for public input and appeal to the Resource Management Planning Appeals Tribunal (the Tribunal). This tribunal could have examined the merits, rather than simply the legality, of the project. Given the paucity of environmental assessment of the road and the actual damage it has caused, it is likely that the project would have been disallowed. Alternatively parliament could have declared the road a project of State significance. This would have required an integrated assessment. Instead the government ignored the relevant planning laws and pursued the project with utmost haste. As a consequence the road has been subject to legal dispute for the last four years.

Legal Challenge

There were several cases contesting the legality of the road which involved Dr Bates and The Wilderness Society (TWS) as plaintiffs. These were not continued on appeal because of fears that an award of costs against TWS Inc could bankrupt the organisation. In November 1995 a new plaintiff lodged a new writ in the Supreme Court seeking an urgent injunction on road construction. This became the case of Erik J Barratt-Peacock v The State of Tasmania The plaintiffs’ bona fides were challenged and upheld in two reported judgements. Meanwhile the lawyer representing the plaintiff was promoted to the chair of the Tribunal and discontinued his services. The road was linked, Tasmanians elected a new government and the case lapsed. It was revived with the assistance of the newly formed Environmental Defenders Office and the Legal Aid Commission of Tasmania. An amended writ was lodged seeking a declaration as to the legality of the road.

During the next 12 months the litigants ‘discovered’ 1400 documents relating to the project from 1986 to 1996. These documents provided strong evidence for the case. They also revealed that planning of the road had involved no consideration of the stated objectives of the States’ resource management and planning system, or of any tourism or transport policy. There was no economic cost benefit analysis of the project. No studies were undertaken to determine the amount or type of traffic that would use the road. Forestry Tasmania did not support the road. There was a limited assessment of the environmental impact of the road. Many of the recommendations made in this assessment were ignored during actual construction. Further to this, there was no concern raised in any of the documents at any time by the government or the Department of Transport, who were responsible for road construction, that such studies had not occurred, nor was there any suggestion that they ought to occur.

Pretrial procedures continued until November 1998. On 19 November the Review Committee of the Legal Aid Commission withdrew funding for the case. Funding was approved by the Commission in 1996 on the grounds that this was a public interest case and it is in the public interest to know whether or not a government is in breach of its own planning laws, and to ensure that governments do not breach their own laws. In 1998 the Committee noted that a declaration alone is not sufficient to close the road and the State government has the power to legislate to make the road legal whatever ruling a court might give. Given this the Committee decided that funding could be better spent in other areas. The case is presently being wound up.

Autopsy

A declaration would have resolved the question of the roads’ legality. A declaration that the project was carried out illegally could have allowed further action to close the road. It might also have vindicated the efforts of people who were assaulted, arrested, imprisoned, put under police surveillance and vilified for attempting to frustrate a project that was and is illegal. The fact that the case has not been heard indicates that the government is able to act outside the law in frustrating the objectives of the resource management and planning system.

Lessons

Legal issues need to be considered early as part of any campaign strategy. Seven months elapsed between the end of appeals by The Wilderness Society and the start of the Peacock case. Had this case begun earlier the result might have been different.

Litigation always involves the risk of costs being awarded against the litigant should they lose. This is a deterrent to incorporated organisations and people with assets. Public interest litigation is thus best suited to individuals who have a reasonable understanding of the legal system and a genuine concern with the issues. At Supreme Court level such a person must be willing to commit to a case for several years, face cross examination and anticipate being subject to phone tapping. Given that they may be put under surveillance they must also be of high moral character.

An accurate diary of events is an asset to any campaign and particularly to litigants who may have to retain accurate recollections over several years.

Conclusion

Litigation is one of many ways of challenging decisions of government. It can generate positive publicity, force discovery of documents, force some proponents to observe in due process, add credibility to a campaign and sometimes set worth while precedents. It is more fun than cricket.

NB: for a more detailed article on the backrgound to the case and the legal issues it sought to raise see the Local Government Law Journal, Volume 4, Number 3 June 1998.

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Court win for threatened species

By Chris Norton
NSW EDO

Timbarra Protection Coalition v Ross Mining Pty Ltd & ors (1999) NSWCA 8

The NSW Court of Appeals recently decided against development consent for Ross Mining’s new goldmine on the basis that it did not have a species impact statement (SIS). The Environmental Planning and Assessment Act provides that where a development is likely to have a significant impact on threatened species, developers must prepare a SIS. In the case of the Timburra mine, the developer, Ross Mining, did not submit a SIS, and Tenterfield Council granted consent without one being prepared. The TPC challenged this decision before the Land and Environment Court (L&E Court), leading new evidence of likely impacts on threatened species. However, the L&E Court refused to hear the TPC’s evidence.

The Court of Appeal held that the L&E Court should accept that evidence. The question of whether a development was likely to have a significant effect on threatened species was an objective test, and was a question that the Court could review.

This is not the end of the Timburra proceedings, as the matter must now go back to the L&E Court to determine whether a SIS was in fact required. The Court of Appeals decision does not mean that the development consent is invalid. However, it means the TPC will now be able to present its expert evidence.

The decision has important implications for the protection of threatened species in NSW. In particular, councils will need to closely scrutinise the material provided by developers regarding the impact on threatened species, as a council’s decision not to require a SIS will be open to challenge in the L&E Court.

NEWS UPDATE: Ross Mining has lodged an application for special leave to appeal to the High Court a gainst the Court of Appeal’s judgement in favour of the Timbarra Protection Coalition. In the meantime, the rehearing of this matter inthe Land and Environment Court has been set down for 10-21 May 1999.

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National Toxics Network Alert

The International Persistent Organic Pollutants (POPs) Convention to phase out POPs is an essential tool in the world’s fight to reduce the impacts of pollution on human health and the natural environment.

The International Persistent Organic Pollutants Elimination Network (IPEN) has been formed and a number of groups including Greenpeace International, Friends of the Earth (US), World Wildlife Fund (US & Canada) and National Toxins Network (NTN) have already added their support by endorsing IPEN’s POPs statement and joining the network. So far in Australia, only NTN has pledged support. Internationally, Australia has indicated it will support the development of a global program for the elimination of POPs such as DDT; dieldrin; heptachlor; dioxin; PCB; & mirex.

The POPs Convention will require Australia to manage and destroy its stocks of POPs and address the “environmental reserves” of these chemicals. It will also mean that Australia must phase out the final uses for the organochlorine insecticide, Mirex, still registered for use in the Northern Territory. The Australian government must be closely watched on this issue.

Australia has a considerable number of serious ‘POPs reserviors’ in the form of agricultural hotspots and industrial dioxin emmitters and contaminated sites. Senator Hill failed to act when the NSW Government undertook to bury hundreds of DDT contaminated hotspots in rural Australia. The Department of Foriegn Affairs and Trade carry out a consultation process for POPs issues.

To add your support contact:

Jonathon Brown
Acting Assisting Secretary
Environmental Branch
International Organisations & Legal Division
Dept of Foriegn Affairs and Trade
FAX: (02) 6261 2594

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This newsletter is published as an information source without assuming duty of care. It contains general information only, and should not be relied on as a substitute for professional advice. The EDO takes no responsibility for the views of the contributors expressed in the newsletter. This newsletter is produced with funding from the Commonwealth Community Environmental Legal Program and published by:

Environmental Defenders Office Tasmania Incorporated
131 Macquarie Street
HOBART 7000
Telephone: (03) 6223 2770
Fax: (03) 6223 2074
E-mail: edotas@ peg.apc.org

Thanks to John Scanlan and Caroline Kirk for putting this edition together.