edonewsVol 15 Nos 2&3June-September 2009 Newsletter of the Environmental Defender’s Office WA (inc)

Tribunal gives Native Title priority ............................ 1“One-stop shop” for mining approvals ...................... 1Review of GM-Free Areas Act..................................... 2EDO News ..................................................................... 2Land-for-development deal illegal .............................. 3AG seeks reform on threatened species ...................... 4EPBC Act enforced in SA and Vic................................. 6EPA reviews EIA processes......................................... 6Update on Barrick Gold v Williams ........................... 7US court acknowledges climate change...................... 8EDONSW takes on major power station ................... 8The latest progress on climate change law................. 8Is WA’s native vegetation adequately protected? ... 10Review recommends expanded SAT rights ............. 10Improving access to justice?...................................... 11

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contents

Tribunal gives Native Titleinterests priority over miningJosie Walker EDO principal solicitor

In a recent decision, Western Desert Lands AboriginalCorporation (Jamukurnu – Yapalikunu)/WesternAustralia/Holocene Pty Ltd, [2009] NNTTA 49, theNational Native Title Tribunal refused to allow the Stategovernment to grant a mining lease over Native Title landat Lake Disappointment, a culturally significant site forthe Martu people. This is the first case where the NativeTitle Tribunal has absolutely refused to allow a mininglease over land granted under the Native Title Act 1993.

Holocene Mining had applied to the state governmentfor permission to extract and process potash at LakeDisappointment. The land the subject of the applicationhad been granted to Western Desert Lands AboriginalCorporation (WDLAC) to hold on trust for the Martupeople in the Eastern Pilbara. Under the Native Title Act,the mining company was required to negotiate with theNative Title owners before it could be granted a mininglease. The parties had failed to produce an agreement,and Holecene applied to the Native Title Tribunal for adetermination.

The evidence showed the cultural traditions of the Martupeople prohibited any persons from going on certain partsof the lake. These prohibitions were likely to be offendedby giving Holocene an unlimited right to extract materialsfrom the surface of the lake.

The Tribunal considered many factors, including the

economic benefits of the proposal, but ultimately gaveoverriding weight to the serious cultural impacts whichthe proposal would have on the Martu people.

The WDLAC welcomed the decision, saying that thiswas ‘a historic and special day’.

Report seeks “one-stop shop”for mining approvalsJosie Walker EDO principal solicitor

In August this year the State government released theIndustry Working Group Report: Review of ApprovalProcesses in Western Australia which presents the viewsof the mining and petroleum industries on reform of WA’senvironmental approvals system. The working group wasconvened by the Minister for Mines and Petroleum,Norman Moore, to suggest ways to make the WA approvalssystem ‘more welcoming for exploration and developmentactivity’.

One of the key recommendations of the report is thatthe government should consider establishing a “singledecision-making authority” for all mining and petroleumprojects, to replace the current “multi-agency” approach. The report does not contain any details of whatresponsibilities this authority should have, or whether itshould be an existing or new agency. For example, wouldthis authority take over all approvals for mines, or onlylicensing functions?

Taken to extremes, if this “single decision-makingauthority” really were to function as a one-stop-shop formining and petroleum proposals, it would need to dealwith mining and petroleum leases (currently assessed bythe Department of Mines and Petroleum, and granted bythe Minister for Mines); environmental approvals (currentlyassessed by the EPA and granted by the Minister forEnvironment); and works approvals and environmentprotection licences (currently assessed by the Departmentof Environment and Conservation, with a right of appealto the Minister for Environment).

The working group would no doubt like to see thisdecision-making role lie with a department whose mainfocus is resource development, such as the Departmentof Mines and Petroleum (DMP) or the Department ofState Development (DSD) rather than one with a focuson environmental protection.

Such an arrangement would be disastrous forenvironmental protection, because it would mean that theEnvironmental Protection Authority, which has a historyof providing strong, impartial advice on environmental

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Review of Genetically ModifiedCrops Free Areas ActKristy Robinson EDO solicitor

The legislation regulating the use of genetically modified(GM) crops in Western Australia, the Genetically ModifiedCrops Free Areas Act 2003, is being reviewed.Submissions were invited on the Act up until 11 September2009, specifically on the appropriateness of the Act, itspurpose, and orders made under the Act, such as themoratorium on GM crops in WA.

The Act allows the State government to ban thecultivation of GM crops in designated areas of the State.In 2004, the government made an order under the Actbanning the use of GM crops in WA. Increasingly, andparticularly since the election of the Barnett governmentin late 2008, several exemptions to this moratorium havebeen allowed under the Act, including the first commercialcultivation of GM cotton in the Ord River region, andother commercial scale “trial cultivations” of canola.

The EDO made submissions to the review, supportingthe continued application of the Act and the moratoriumon the cultivation of GM crops in Western Australia which,we believe, is needed now more than ever. This is primarilydue to the risks associated with the inability to properlysegregate GM from non-GM matters and the consequentialenvironmental, health, and financial impacts that canresult. These risks, and the financial benefits of remainingGM-free are recognised by other states which maintaina ban on GM crops, such as Tasmania, which recentlyextended the ban until at least 2014.

The EDO submitted that, while the purpose of the Actis still appropriate to the extent that we support the banningof GM crops in WA, in light of increasing exemption theAct should be amended to:

• address liability issues and provide protection to non-GM farmers

• address cost implications for non-GM farmers whoseland or crops are contaminated

• enable shires to declare themselves GM-free• include requirements for all GM products to be

labelled, and• strengthen transparency and accountability under the

Act, including greater public participation regardingexemption decisions.

Submissions will be made public on the Department ofAgriculture and Food’s website at www.agric.wa.gov.au.A report is due to the Western Australian Parliament by24 December 2009.

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EDO NewsOn the road again

In May Josie Walker and Kristy Robinson travelled toBroome to conduct an environmental law workshop hostedby Environs Kimberley. With an extremely passionatecommunity concerned about proposed developments inthe precious Kimberley area, such as the LNG hub, theturnout was high and the event lively. Topics coveredincluded federal and State environmental assessment law,and protected areas law. We were also taken on a visit toJames Price Point (Walmadan), site of the proposed hub,to experience the untouched beauty of the area firsthand.

Cape Conservation Group in Exmouth invited us tohold a similar legal education workshop there on 16 June,which covered State and federal EIA processes, pollutioncontrol and licensing, as well as some practical tips forspeaking out (defamation law). While it was a moreintimate workshop than Broome, it was a pleasure for usto meet and assist CCG, a very active group doing its bestto protect a spectacular part of Western Australia.

Our next environmental law workshops and adviceclinics are in Denmark on 12-13 October, and Albany on13-14 October.

For further information about the EDO’s Outreachprogram please contact our office on 1800 175 542 (countryWA) or 9221 3030.

Welcome to John DyerIn July we were very pleased to welcome our new

coordinator, John Dyer. John was finance & IT officerfor the Youth Legal Service for ten years, and has a wealthof experience in community legal centre administrationas well as financial management, desktop publishing,customer service and IT skills.

There was no shortage of work for John when he arrived– he was just in time to help us collate our end-of-yearfinancials, finalise our end-of-year reports, process thenew year’s membership applications, and organise anational EDO network meeting; as well as the AGM andvolunteer drinks. He took it all in his stride.

John is responsible for ensuring that our annual reportand this newsletter will be printed on recycled paper. Heis probably the first person you’ll talk to when you callthe EDO, and he looks forward to getting to know ourmembers and clients in the year ahead.

Photo: Cara RatajczakPhoto: Craig Chappelle

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protection measures, would cease to have a role in relationto mining approvals. There would be no independentadvisor to tell the government that a resource developmentwhich promised great economic benefits to the State alsoposed unacceptable environmental risks.

It is difficult to justify treating mining and petroleumapprovals differently from other types of projects whenit comes to environmental approvals and licences. Sucha “two-track” system could cause a loss of credibility andpublic confidence in the system.

A more promising approach would be to allow agenciesto retain responsibility for decision-making in theirrespective areas of expertise, and instead introduce reformswhich provide for enhanced integration between agencies.

One approach would be to adopt an “integratedapprovals” system like that which operates in New SouthWales. Under the Environmental Planning and AssessmentAct 1979 (NSW) when a proponent seeks planningapproval for a project which also requires other approvals(such as a pollution licence or a permit to take nativefauna), the Department of Planning (DoP) must thenforward a copy of the application to the other decision-making authorities (DMAs) responsible for thoseapprovals. The other DMAs must report back to the DoPwithin a certain timeframe on whether they would bewilling to grant the relevant approvals to the project, andon what conditions. If any DMA advises that they willnot grant approval to the proposal on any terms, then theDoP must refuse consent. If the Department of Planninggrants consent, then the other DMAs are obliged to issueapprovals consistent with their previously declaredintention. No approvals are actually issued unless anduntil the DoP decides to grant planning approval.

Such an integrated approvals system could be used forenvironmental and related approvals under theEnvironmental Protection Act 1986 (WA) with the EPAperforming the role of coordinating approvals from otherauthorities. Such a system would provide greater certaintyboth for developers and the environment because it wouldbe known at the time the EPA produced its report what

“One-stop shop” for mining approvalsfrom page 3

the final approval conditions were likely to be, and thesecould be taken into consideration in determining theoverall impact of the proposal.

This would be preferable to the alternative suggestedby the Industry Working Group, which is to allow licencesand works approvals to be granted before the Ministerhas granted environmental approval to a proposal. Evenif such approvals were subject to a condition that they arenot to be acted upon unless and until environmentalapproval was granted, the act of granting licences andworks approvals creates the perception that environmentalapproval is a forgone conclusion. It also reduces theflexibility to make changes to the proposal to improveenvironmental performance, because any changes maythen conflict with the terms of previously-granted licences.

Given the political clout enjoyed by the resources sector,the report of the Industry Working Group will put a lotof pressure on the government to make changes to theenvironmental approvals system. At the same time, theMinister for Environment has convened an EnvironmentalStakeholder Advisory Group to provide more balancedadvice on similar issues. The EDO is represented on thisgroup and will be arguing strongly against any proposalto create a separate approvals system for mining andpetroleum proposals.

NSW judge rules land-for-development deal illegalNisha Richardson EDO volunteer, andJosie Walker EDO principal solicitor

A recent decision in the Land and Environment Courtof New South Wales in Gwandalan Summerland PointAction Group Inc v Minister for Planning [2009] NSWLEC140 marks a welcome victory for the local community,who were represented by the EDONSW, and who opposedthe state’s approval of major housing developments onenvironmentally-zoned land on the NSW central coast.

In 2008, the NSW Minister for Planning granteddevelopment approval for land at Gwandalan and CatherineHill Bay to be used for residential purposes. The NSWDepartment of Planning had previously advised that thesesites should be last priority for urban land release, becauseof their unique environmental and heritage values andpoor public transport access. However in 2005 the Ministerentered into a memorandum of understanding (MOU)where he agreed to allow the land to be developed forhousing in exchange for a dedication of certain lands forconservation reserves. Gwandalan Summerland PointAction Group Inc sought declarations that the developmentapproval was void and of no effect on two grounds:

1 At the time the Minister made the decisions therewas a reasonable apprehension of bias on the part ofthe Minister – that is, the public had reasonablegrounds for believing that the Minister might notmake an impartial decision in the circumstances

2 The Minister took into account irrelevantconsiderations, in particular the memorandum ofunderstanding and deed entered into with the

Photo: paleontour, www.flickr.com/photos/paleontour/2476935021

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developers. It was argued that the Minister was obligedto consider the applications on their merits regardlessof pre-existing commitments.

Justice Lloyd’s decision focused on determining thecorrect test to establish a reasonable apprehension of biasin relation to an administrative decision-maker who is aMinister of the Crown. After examining the authoritieshis Honour identified the relevant question to be ‘whethera fair-minded lay observer, having knowledge of thematerial objective facts, might reasonably apprehend thatthe administrative decision-maker might not bring animpartial and unprejudiced mind to the determination ofthe applications.’ It was argued by the respondents thatthis test did not apply to a non-judicial decision-maker,in particular a Minister. However, Justice Lloyd rejectedthis argument in light of authorities which establishedthat a Minister, although exercising a decision-makingfunction outside the judicial system, was neverthelesssubject to the fundamental test. The Minister was subjectto the “two mights” test in the same way as any otherpublic office holder. Justice Lloyd acknowledged that thecontent of this test may vary depending on the context.

In applying the test, the Court considered the relevantfacts and examined the language used, the correspondencerelating to the MOU, and the deed and the surroundingcircumstances. Justice Lloyd noted that the Ministerhimself took a lead role in the negotiations. The Ministeralso demonstrated a strong commitment to the MOU anddeed as evidenced in correspondence which referred tothe Minister using ‘his best endeavours to ensure thecontents of the MOU will be achieved’.

The respondents argued that the MOU was not a bindingdocument, relying on an express clause stating that it wasnot to be taken as fettering the Minister’s decision. Thiswas rejected by the Court because the MOU neverthelessexpressed the parties’ “firm intentions” that decisionswould be made in accordance with its terms. Althoughthese commitments were not legally enforceable, JusticeLloyd found that the Minister’s expression of an intentionto exercise a statutory discretion in a particular way waslikely to create a perception that he did not bring an openmind to the decision.

It was held that the approval was also invalid on thegrounds of irrelevant considerations. Justice Lloyd foundthat, implicitly, the Minister was bound under theEnvironmental Planning and Assessment Act 1979 (NSW)to consider the applications on their merits with no regardto pre-existing commitments which were entered intobefore the relevant process under the Act began. It washeld that in considering the MOU and the deed the Ministertook into account irrelevant considerations.

The Court made a declaration that the concept plan andproject approvals were void and of no effect. The approvalswere quashed and the respondents were ordered to paythe applicant’s costs.

This decision serves as a timely reminder to planningauthorities all over Australia that they cannot subvert theplanning process by entering into agreements outside ofthe process, which pre-judge the outcome. The developer’s

Land-for-development deal illegal cont’d conduct in this case was aptly described by Justice Lloydas a “land bribe”. It is not necessarily improper forauthorities to accept dedication of land as an “offset” forenvironmental harm caused by a development proposal(although avoidance of harm would always be preferable).What was different about this transaction was the way inwhich the government committed itself to a certainoutcome before the decision-making process in relationto the development proposal had even begun. This led tothe inescapable conclusion that the Minister was biasedwhen he made the final decision.

‘Rich and (increasingly) rare’:Auditor General on threatenedspecies managementRachel Collins EDO volunteer

In June 2009 the Auditor General released a reportexamining threatened species conservation in WesternAustralia. The report, entitled Rich and Rare: Conservationof Threatened Species, illuminates key areas of reformrequired to ensure adequate protection of threatenedspecies and their habitats. The EDO was one of the severalenvironment groups that made submissions to the AuditorGeneral’s inquiry which led to the preparation of thereport. The main findings of the report are in line withrecommendations for reform that have been repeatedlyvoiced by environment groups. As the number of speciesthreatened with extinction continues to increase,implementation of the Auditor General’s recommendationsis essential to reduce extinction rates. The keyrecommendations made in the Auditor General’s reportare summarised below.

Inadequacies of current legislationEnvironment groups have continuously sought to

supplant the Wildlife Conservation Act 1950 (WC Act)with legislation that has a more holistic approach toconserving biodiversity. The WC Act does not provide aprocess for listing species as threatened, nor does it supplya method for recovering species. Due to the inadequaciesof the WC Act, the AuditorGeneral’s report found thatDepartment of Environmentand Conservation (DEC)had developed policies andprocesses to fill the gapbetween legislation andwhat is required forconservation in practice.Accordingly, threatenedspecies are identified andrecovered by DEC’s internalprocesses which lackaccountability andtransparency.report found that theprocesses employed byDEC for threatened specieslisting➤ continued next page Photo: Dr Carol Booth

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Threatened species management cont’d

and recovery programs are not in compliance with existingconservation legislation. Such a finding highlights theurgent need for legislative reform to incorporate listingand recovery processes, to ensure that threatened speciesconservation is appropriately provided for by thelegislation. Additionally, the fact that the current legislationdoes not make it an offence to damage threatened species’habitat was noted as a reform issue of paramount concern.

Lack of information strategies, species nominationand recovery plans

The report illuminated the fact that species nominationand listing for protection is hampered by a lack of researchstrategy to drive survey work for threatened and priorityspecies. Thus the information required to list a species asthreatened is unable to be acquired appropriately. Further,it was found that DEC does not regularly review itsexisting survey work for adequacy and nominate speciesaccordingly.

Concerns were raised regarding the use of recoveryplans. Recovery plans provide for the recovery needs ofthreatened species to be identified and addressed. Thereport found that only one in five fauna species and lessthan half of threatened flora species have recovery plans.

In addition, it was established that the majority ofrecovery plans are only partly implemented and, for somespecies, recovery work is not always undertaken eachyear.

Inefficient species prioritisation and conservationprocessThe conservation priority processes that DEC uses forcritically endangered, vulnerable and endangered specieswere described in the report as an inefficient conservationapproach. It was established that the number of vulnerablespecies with recovery plans is markedly less than thoseclassified as endangered species, with over half of criticallyendangered species covered by recovery plans, while ‘lessthan ten vulnerable fauna have a plan’. It was furthernoted by the report that because recovery plans have nolegal status, ‘their existence cannot prevent actions thatwould undermine recovery efforts’.

The need for multi-species protectionUnder the Act, DEC cannot list common multi-speciesthreats and is not obliged to develop plans to addressthese threats. Further, there is no definition in the Act ofprocesses that threaten species’ survival and describeways they should be managed, as is the practice in otherjurisdictions. The report highlighted the problematicnature of the lack of legislative obligations in relation tomulti-species protection and provided recommendationslisted below.

Habitat conservation and Commonwealth-Statealignment

The report found that habitat destruction was one ofthe ways in which DEC’s species recovery activities couldbe undermined: one of the primary means by which DEC

conserves species’ habitats is via the creation of reservesbut ‘less than half the amount of land agreed under nationaltarget has been reserved in WA’.

The habitat protection issue was also identified as beingstrongly linked to a lack of Commonwealth and statelegislative alignment. The WC Act (WA) does not protectthe habitat that a species occupies and, while habitatdestruction may be considered as a factor in relation toapprovals under the Environmental Protection Act 1986(WA), development can still override habitat protection.The Environment Protection and Biodiversity ConservationAct 1999 (C’th) (EPBC Act) provides for the protectionof threatened species habitats but only for threatenedspecies that are listed under the EPBC Act. Thus thereport emphasises the need for Commonwealth and Statealignment to ensure that threatened species receivemaximum legislative protection.

In summary, the report emphasises that in many areasDEC is not effectively protecting and recovering threatenedspecies. In particular, habitat protection is highlighted asan area that underpins conservation where DEC is facingsignificant challenges. The fact that the WC Act does notprovide species with adequate protection is alsoilluminated. In the words of the report:

DEC cannot demonstrate the overall effectivenessof its threatened species conservation activities.This limits assurance that it has effectivemanagement of conservation processes andprograms to ensure the protection and recoveryof WA’s threatened species.

RecommendationsThe Attorney General’s report makes the following

important recommendations in relation to DEC’smanagement of threatened species:

• The state government should replace the WC Actwith a new Biodiversity Conservation Act

• DEC should develop better information systems todetermine the status of the growing number of priorityspecies

• DEC needs to reduce the time required to nominateand list species as threatened

• DEC should change how it prioritises species forconservation attention to ensure efficiency

• A system should be developed to identify and managehabitat critical to threatened species survival

• A database should be developed and implementedto record all threatened species recovery actions andmonitor progress against recovery plans

• An evaluation framework and supporting systemsshould be implemented to assist in measuringthreatened species’ conservation effectiveness

• Information systems should contain reliable andcomprehensive data on threatened species and theirprogress.

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EPBC Act enforced in SA and VicNisha Richardson EDO volunteer

Recent enforcement action taken by the Commonwealthgovernment under the Environment Protection andBiodiversity Conservation Act 1999 is a positive sign forpeople seeking protection of threatened species and areminder to developers of the need to comply with thislegislation.

In South Australia, Rocky Lamattina & Sons Pty Ltdwas ordered to pay a $220,000 fine for breaching the Act.The company cleared 170 trees which formed a nestinghabitat of the South Eastern Red-tailed black cockatooand were critical for survival of the species. It was agreedthat the clearing of trees from that region was likely tohave a significant impact on the cockatoo, which wasprotected under the Act.

In his decision Justice Mansfield acknowledged theimportance of setting a penalty that would operate as adeterrent to others who may attempt to clear nativevegetation contrary to the Act. He emphasised theimportance of recognising that such conduct is seriouslyregarded by the community and will not be tolerated bythe Court.

In Victoria, the company responsible for operatingVictoria’s regional rail network, V/Line Passenger PtyLtd agreed to pay over $188,000 for illegally clearing anarea of vegetation that contained a listed criticallyendangered species. It entered into an enforceableundertaking with the federal environment departmentafter clearing vegetation without approval and destroyingup to 38 spiny rice-flowers in the process.

This is the second time an undertaking of this sort hasbeen used, having been introduced in 2007 as anenforcement tool which allows the government to negotiatefor the payment of an agreed sum towards environmentalcauses. Part of the money will be used for further research,recovery and conservation, and taking measures to protectthe biosite in the future. The remaining $136,500 will beused to train staff and contractors to ensure that any futurerailway works will not affect protected or otherenvironmentally significant species.

Rose Webb, a spokeswoman for the department,emphasised the importance of complying with the Act:‘Ignorance of the law is not an excuse, and the onus forgovernment approval is on the individual. Once thesethings are gone, we can never get them back.’

EPA reviews EIA processUna Tseng EDO volunteer, andKristy Robinson EDO solicitor

In 2008 the Environmental Protection Authority of WesternAustralia (EPA) undertook a review of the environmentalimpact assessment (EIA) process in WA with the ‘generalaim of enhancing the quality and timeliness of the EPA’sadvice to government on development proposals’.Following an extensive consultation process, the EPAreleased its report in March 2009 with recommendationsto reform the process. ➤ continued next page

EIA is an important component of the widerdevelopment approvals process when applied at earlyplanning and design stages of proposals, as it gives thegovernment and the community opportunities to formviews about a proposal’s environmental acceptability;ensures that the proposals are environmentally acceptable;and identifies any conditions which should be applied tocontrol potential environmental risks and impacts.

Some of the main recommendations of the review:

Risk-based environmental impact assessmentThe review proposes using a “risk-based” approach to

EIA, which means that development proposals will beassessed by considering the level of environmental riskarising from them – that is, the chance of somethinghappening that will have an environmental impact,combined with the degree or consequence of that impact.The aim is to inform the EPA about the exact nature andprobability of any negative environmental impacts arisingfrom the proposal as well as the appropriateness of anymitigation measures, while allowing the process ofconsideration of these issues to be more transparent. Itwill also trigger debate around what are acceptable risksor impacts, and what level of risk is appropriate.

The EPA has commenced trials of risk-based assessment,and plans to publish a bulletin on risk-based EIA laterthis year.

Outcome-based environmental conditionsThe introduction of outcome-based environmental

conditions would shift the EPA’s focus from prescribingspecific management measures to be undertaken byproponents to specifying the environmental outcomesthat the proponents are required to achieve – leaving themethods of achieving those outcomes to the proponentsthemselves.

The EPA has implemented and commenced the use ofnew outcome-based conditions on a case-by-case basisand intends to publish guidelines and develop modelconditions in October.

Level of assessmentAt present the EPA uses five levels of assessment to

assess different types of proposals, with different levelsused depending upon the number and complexity ofenvironmental issues. The review revealed that the useof five levels of assessment has led to confusion forproponents and the community.

The review recommends that the process be simplifiedand that only two levels of assessment be used:

1. assessment on referral or additional information forproposals that potentially have environmentalconsequences that warrant assessment, but not apublic review

2. public environmental review and managementprogramme, where assessment public review (from4–12 weeks) is warranted.

The EPA recommended that new administrative

and the Director-General both had authority to considerthe application.

On a promising note, Justice Basten stated that whilethe appellant (Barrick Gold) sought costs for the appeal,the issue was raised out of public interest, rather thanprivate interest, which suggested that the parties shouldbear their own costs. Although the parties were given aperiod of 14 days to seek particular cost orders if desired,this provides an indication that the Court is not inclinedto grant costs against Mr Williams.

Mr Williams was represented in the Court of Appeal bythe EDONSW.

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procedures outlining the two levels of assessment beprepared, which are expected in October.

Strategic Environmental AssessmentThe review also identified a lack of Strategic

Environmental Assessment (SEA). SEA enables the EPAto addresses cumulative environmental impacts that mayarise from a number of proposals and can contribute tosustainable development by ensuring that environmentalconsiderations are incorporated into policies, plans andprograms that set the framework for developmentproposals.

The review recommended that the EPA exploreopportunities to increase the use of SEA and identifyproposals where it should be encouraged (eg, schemes,development plans, structure and outline plans, earlyplanning or design stages of individual projects etc). Italso recommended that the EPA provide detailedguidelines to assist authorities determine whether SEAwould be appropriate by the end of 2009.

What now?Implementation of the review’s recommendations is

already under way, and is being overseen by theStakeholder Reference Group, which provides commentsand informal advice and feedback on the implementationtaken.

Update on Barrick Gold vWilliamsMinori Lee EDO volunteer

This month we were sad to hear that the NSW case ofWilliams v Minister for Planning & Ors, as reported inthe March EDOnews has been overturned on appeal, onthe basis of jurisdiction and interpretation of theEnvironmental Planning and Assessment Act 1979 (NSW).The New South Wales Court of Appeal decision is BarrickAustralia v Williams [2009] NSWCA 275.

The Land and Environment Court originally upheld heargument of the traditional owner Neville “Chappie”Williams that doubling the size of the Lake Cowal GoldMine in Northern New South Wales constituted such aradical transformation that Barrick Gold could not claimit as a mere “modification”; rather it was a new projectaltogether. There is no provision in the Act that requiresfurther environmental assessments for modificationapplications, unlike new projects. The original Land andEnvironment Court’s decision imposed a limit on thepower of the Minister to receive modification applicationsthat were “radical transformations”.

The NSW Court of Appeal overturned this decision,stating that it was a matter for the Minister to assess thefacts, not the Courts, and no decision had yet been madeby the Minister. The Court also examined the constructionof the Act and stated that even if a modification applicationfell outside the scope of the relevant section, the Minister

US Supreme Court officiallyacknowledges climate changeMassachusetts et al. Petitioners v Environmental ProtectionAgency et al. 549 US (2007)Saxon King EDO volunteer

The groundbreaking case of Massachusetts v EPA haschanged the way that US courts will consider climatechange in the future. In the majority decision, JusticeStevens acknowledged climate change, stating:

A well documented rise in global temperatures hascoincided with a significant increase in the concentrationof carbon dioxide in the atmosphere. Respected scientistsbelieve the two trends are related. For when carbondioxide is released into the atmosphere, it acts like theceiling of a greenhouse, trapping solar energy andretarding the escape of reflected heat. It is therefore aspecies – the most important species – of a “greenhousegas”.

The decision has validated the arguments made byMassachusetts et al – a group of US states, localgovernments and private organisations – regarding themagnitude of global warming and the science of climatechange, and has elevated it to the level of accepted doctrine– at least in the legal context. Significantly, although thecase was won by only a 5-4 majority, there was nodisagreement on this point amongst the judges.

The group sought a court ruling that the USEnvironmental Protection Agency (EPA) can regulateemissions of carbon dioxide and three other greenhousegases from new motor vehicles, under the US Clean AirAct. The EPA had refused the group’s request to regulatethese emissions, arguing that it was not authorised underthe Act to create regulations to address climate change,and that even if it did have the authority it would not bewise to do so because, among other reasons:

• a causal link between greenhouse gases and increasingglobal temperatures was not “unequivocallyestablished”

• regulation of vehicle emissions would be an inefficient“piecemeal” approach to addressing climate change,and

• vehicle emissions are not the only (or primary) causeof global warming, and regulation could hamper themore significant efforts of the President to convincekey developing nations to reduce emissions.

EPA reviews EIA process cont’d

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EDONSW takes on powerstationin CO2 pollution casePeter Gray & Naomi Hodgson v Macquarie Generation;excerpt from EDO NSW E-Bulletin #619

“On behalf of Peter Gray and Naomi Hodgson the [EDONSW] has commenced class 4 civil enforcementproceedings in the [NSW] Land and Environment Courtagainst Macquarie Generation. The proceedings seek adeclaration that the State-owned company has beennegligently disposing of waste at their Bayswater PowerStation by emitting carbon dioxide into the atmospherein a manner that has harmed or was likely to harm theenvironment in contravention of section 115(1) of theProtection of the Environment Operations Act 1997. MrGray and Ms Hodgson also seek an injunction requiringMacquarie Generation to immediately cease disposing ofwaste through the emission of carbon dioxide into theatmosphere. In carrying out its electricity generationactivities, Macquarie Generation has been issued with anenvironment protection licence which licences thecompany to emit certain waste but not carbon dioxide.

Mr Gray and Ms Hodgson are environmental activistsand members of Rising Tide Australia, a grass roots non-profit community group that has campaigned on the issueof climate change since 2004, particularly in relation tocoal-fired power generation in the Hunter region in NSW.Bayswater Power Station, located in the Upper HunterValley, has the highest carbon dioxide emissions of allpower stations in NSW.”

The latest progress on climatechange lawA brief update on legislative developmentsMinori Lee EDO volunteer, andKristy Robinson EDO solicitor

While the need to drastically reduce our emissions isnow widely recognised, the government’s progress indeveloping and implementing schemes to do this is muchslower, and weaker, than we would like to see. If we areserious about acting on climate change a lot more needsto be done, now. There have, however, been somelegislative developments in the past few months whichsuggest that schemes to reduce emissions are inchingforward.

On August 13 the Carbon Pollution Reduction Scheme(CPRS) Bills, to implement the government’s proposedemissions trading scheme, were defeated in the Senate.The government is expected to reintroduce the Bills inNovember, prior to December’s UN Conference on ClimateChange in Copenhagen. If the Bills are defeated againthe government will have the trigger for a doubledissolution election.

In August amendments were passed to the RenewableEnergy (Electricity) Amendment Bill 2009, to expand theexisting Federal Mandatory Renewable Energy Targetscheme in place under the Renewable Energy (Electricity)Act 2000. The new national Renewable Energy Target

US Court acknowledges climate change cont’d

Primarily, the court held that the EPA does have authorityto regulate carbon dioxide emissions because all greenhousegases fall within the broad definition of “air pollutants”given in the Clean Air Act. The court then turned itsattention to the EPA’s other arguments.

The court held that the EPA could not use the scientificuncertainty about climate change to avoid its obligationto regulate. Stevens J stated that ‘if the scientific uncertaintyis so profound that it precludes EPA from making areasoned judgement ... [then] EPA must say so’; that theywould prefer not to regulate ‘because of some residualuncertainty is irrelevant’. This formulation closelyresembles the precautionary principle in the EnvironmentalProtection Act (WA), s4A(1).

With regard to the piecemeal and causation arguments,the EPA argued that the petition being sought would notmitigate global climate change and remedy the injuriesto the petitioners, especially because increases indeveloping nations would overshadow any small domesticdecreases. These kinds of arguments, known as “drop inthe bucket” arguments, have been accepted in Australiancases like Re XstrataCoal Queensland Pty Ltd [2007]QLRT 33 and Anvil Hill Project Watch Association Inc vMinister for the Environment and Water Resources [2007]FCA 1480, but the US Court rejected them, saying:

Agencies, like legislatures, do not generally resolvemassive problems in one fell regulatory swoop. Theyinstead whittle away at them over time, refining theirpreferred approach as circumstances change and asthey develop a more nuanced understanding of howbest to proceed.

The court also recognised that ‘a reduction in domesticemissions would slow the pace of global emissions, nomatter what happens elsewhere’.

While not binding in Australia this decision is a powerfulstatement that climate change is a problem and that localsteps need to be taken to mitigate its global impacts.Given the lack of case law on this subject in Australia –and indeed anywhere in the world – it is hoped that thisdecision, with its support of the precautionary principle,rejection of “drop in the bucket” arguments, and generalacknowledgement of climate change, will start a globaltrend toward the reduction of carbon emissions and astronger stance from the judiciary on the pollution potentialof carbon dioxide.

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fired power stations, starting with the oldest and mostpolluting stations, is also called for as an essentialcomponent of the plan.

3. Drive the shift to low emissions vehicles andsustainable cities

The plan calls for a decreasing reliance on fossil fuel-powered cars through lower emission vehicles, fuelefficiency standards and sustainable public transport. Tobring about the modal shift away from vehicles, the planproposes a package of measures to provide incentives.These include tax deductions for six- or 12-month travelpasses; major investment in public transport; fast railalternatives to air travel; increased public transport services;infrastructure upgrades; and the development of anintegrated cycling network for end-of-journey travel.Improved city design, urban consolidation and an end tourban sprawl will also decrease the reliance on privatevehicle travel.

4. Protect forests and woodlands as a carbon storeand make agriculture part of the solution

The plan calls for an end to logging of old-growthforests and land clearing, and the diversion of jobs in thetimber industry to the plantation sector, which will makeAustralia’s land more resistant to the impacts of climatechange. Tax incentives and a government fund should beestablished to encourage sustainable practices and reducedcarbon intensity of farming and agriculture, and assistanceshould be given to farmers in coping with climate changeand drought.

5. Grow the green job economyThe groups propose that the education sector build a

“green collar” workforce, diverting the workforce fromemissions-intensive industries to renewable energyindustries. Working closely with regional communities,providing opportunities to retraining to those familiesand communities reliant upon emissions-intensive industryto gain employment in a new clean-energy industry aswell as priority in access to employment services.

“Plan B” can be found at www.wilderness.org.au

Upcoming opportunities to actWith frustration about the lack of adequate government

action on climate change building among many, peopleare choosing to demonstrate their concerns by beinginvolved in the upcoming Walk Against Warming andClimate Camp.

Walk Against WarmingMany of you will be familiar with this annual community

action. This year it will be held on December 12, whichwill coincide with the midpoint of the Copenhagen ClimateSummit, and the International Day of Action on ClimateChange. For further details seewww.walkagainstwarming.org

Camp for Climate Action 2009The camp will be convened in Collie, the “coal capital

of WA” on 17-20 December. It will consist of workshopsand grassroots direct action designed to stop coal mining.For further information seehttp://climatecampwa.wordpress.com

Climate change law cont’d

(RET) scheme has increased the target of renewable energyup to 45,000 gigawatt-hours (GWh) in 2020, which isintended to represent 20% of Australia’s electricity needs.The Act encourages growth in renewable energy by placingan obligation upon wholesale purchasers of electricity topurchase and surrender a minimum amount of RenewableEnergy Certificates, which are created from eligiblerenewable energy sources, thereby contributing to anoverall demand for renewable energy and the nationalRET.

The Greens are continuing to pressure the governmentto introduce a national feed-in tariff, and in Augustintroduced the Renewable Energy Amendment (Feed-inTariff for Electricity) Bill, to provide financial support forthe commercialisation of renewable energy. Under thescheme generators of renewable energy, including rooftopsolar systems or wind turbines, would receive a premiumprice for electricity generated, set for 20 years.

At the State level the government will not honour anelection promise to introduce a gross feed-in tariff (“gross”meaning that the generator receives a premium for allelectricity generated). Instead it has indicated that it willpursue a watered-down net feed-in tariff (“net” meaningthat a generator will only receive a premium for the netelectricity created – ie, total produced, less electricityused by the generator’s premises), to start mid-2010.

“Plan B”: alternative climate action blueprintKey environmental groups, including the Conservation

Council of WA, the Wilderness Society, Greenpeace andthe Friends of the Earth have collaborated to produce analternative plan of action to the government’s CarbonPollution Reduction Scheme, called “Plan B”, whichoutlines five areas that the government can revolutioniseits action against climate change. In summary these are:

1. Prioritise saving energyThe plan recommends that the federal government

provide a “green makeover” for five million houses in thenext five years, by funding programs to upgrade facilitiesto become more energy efficient for low-income families. The plan includes a Green Loan fund, to assist householdsretrofit their homes to become more energy efficient, theintroduction of energy-efficient regulatory standards forall homes at the time of sale or lease, and an overhaul ofcommercial buildings.

2. Fast-track a renewable energy economyThe plan recommends that the government increase its

recently introduced 45,000GWh Renewable Energy Targetto 82,000GWh, to reflect the true potential of Australia’srenewable energy and stimulate development of therenewable energy industry. It also includes introducing a“gross feed-in tariff” and restructuring the currentcentralised electricity network to ensure both compatibilityand decentralised, efficient power supply.

The groups also call for removal of all fossil fuelsubsidies (currently over $6 billion), which would allowmore money for renewable energy and discourage relianceon fossil fuels. An immediate halt to construction on anynew coal-fired electricity plants, and phasing out coal-

page 10

Is WA’s native vegetationadequately protected?Committee reports on review of native vegetationclearing regulationRachel Collins EDO volunteer

The protection of WA’s native vegetation is extremelyimportant to the maintenance of biodiversity, thesequestration of CO2 as a greenhouse gas, and soilconservation. The importance of the role of nativevegetation in climate change mitigation has been confirmedby recent research by the Australian National University,which found that Australia is the gatekeeper of the mostcarbon-dense forests in world (Keith et al, 2009). Theresearch emphasises the need to ensure adequate legalprotection of native vegetation in Australia.

In July 2008 the Minister for Environment establishedan Expert Committee to review the regulation of nativevegetation clearing in Western Australia. On behalf of theEDO, EDO convenor Dr Hannes Schoombee was amember of the committee, which published its findingsin April 2009.

In summary, the committee found that:• the government had failed to state its policy objectives

in relation to native vegetation clearing regulations.The committee recommended that an overall policystatement be integrated into the operative regulatoryframework to provide guidance to the Department ofEnvironment and Conservation (DEC) in the everydayimplementation of the framework

• a risk-based permit application framework should beimplemented, on which application processes andrequirements would be based, ‘linked to the likelyseverity or impact of a proposal’. The committeenoted that DEC needs clear guidance as to the relativeimportance it should place on planning instrumentsin making decisions regarding native vegetationclearing, and recommended that the governmentprovide and make public guidance, particularly whereproposals are at serious variance with planningprinciples.

The report also highlighted the need for a shared databaseof information about native vegetation clearing approvedunder different acts. It recommended that offsets not berequired routinely but in line with a risk-based approach.

The report is being considered by the Minister’sStakeholder Advisory Group. and is available on DEC’swebsite, www.dec.wa.gov.au

Review recommends expandingappeal rights in the SATUna Tseng EDO volunteer andKristy Robinson EDO solicitor

The right for community members to challengedevelopment approvals and local planning schemes iscurrently very limited in Western Australia but recentrecommendations of a Legislative Committee review givehope that the State government will consider expandingthese rights.

The State Administrative Tribunal (SAT), establishedby the State Administrative Tribunal Act 2004 (SAT Act),reviews a wide range of government decisions including,among others, town planning and developmental matters.The Legislative Committee’s report and recommendationswas released on 5 May 2009.

The committee made many significant recommendationsincluding that the Planning and Development Act 2005(PD Act) be amended in order to allow third parties toappeal or apply to the SAT to review planning approvaldecisions.

At present there are generally no third party appealrights in relation to planning decisions in WA. The generalpublic can provide comments on developments approvalsand schemes when they are still in their planning orassessment phase – eg, as part of an environmental impactassessment. However, once a decision on the developmentor scheme proposal has been made, third parties – ie,people other than the applicant and consent authority –have only restricted rights to challenge the decision.

The right to appeal or seek a merits review of the decisionis generally only available to the applicant of the planningproposal, unless a local planning scheme specificallyallows a third party to apply to SAT for review of a decision– and few do.

The only options currently available to third parties toparticipate in SAT planning appeals that have already beencommenced by another party (generally the applicant)are:

• being called as a witness by the respondent• making a submission to the SAT, or• being accepted as an intervener in a SAT review.The ability to intervene depends on the SAT’s willingness

and the degree to which the third parties’ rights and interestsare affected by the proceedings. Even if allowed, the thirdparty is ordinarily only allowed to support or oppose thepositions of the other parties to the proceedings and is notpermitted expand the issues to be decided.

Outside the SAT, the only means that third parties haveto challenge a planning decision is to apply to the SupremeCourt for judicial review, which considers the legality ofthe decision – that is, how it was made, rather than themerits of the decision.

The Environmental Defender’s Office of WA (EDOWA)and Conservation Council of Western Australia (CCWA),have long argued the need for greater third party appealrights. The two bodies made numerous submissions to the

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committee during its enquiry, arguing for appeal rights tobe available for third parties, and that the current prohibitionunder the PD Act is ‘illogical’.

The committee report recommended that the PD Act beamended to give third parties who have previously madesubmissions about a planning proposal a right to appealto SAT against the grant of planning approval if they aredirectly affected by the planning proposal, or the proposalis a matter of public or environmental interest (r18). Thecommittee also recommended that these people shouldbe given a right to apply to join as parties to any SATreview of the relevant planning approval decision, therebyoverturning the current prohibition found in the PD Act(r19).

If the committee’s recommendations are adoptedobjectors to development proposals which affect theenvironment or the public interest will gain a right ofmerits appeal to SAT. This will be a huge step forwardfor third party appeal rights and the ability of communitymembers to keep development in check.

Expanding SAT appeal rights cont’d

Improving access to justice?Access to Justice (Civil Litigation Reforms)Amendment Bill 2009Nisha Richardson EDO volunteer, andKristy Robinson EDO solicitor

The Federal Government has introduced the Access toJustice (Civil Litigation Reforms) Amendment Bill 2009to improve access to justice in Australia through reformsto the Federal Court of Australia Act 1976. While thesereforms to improve efficiency are welcomed, the EDOsubmits there is still room for improvement from a publicinterest perspective.

The Bill’s objectives focus on resolving disputes asquickly and cheaply as possible and reducing the costsof litigation. It introduces an overarching purpose andan obligation on all parties to facilitate the just resolutionof disputes according to law as quickly, inexpensivelyand efficiently as possible.

The Bill strengthens and clarifies case managementpowers of the Federal Court to ensure more efficient civillitigation, enabling the Court to, for example, set limitson time, witnesses and length of submissions, or to dealwith civil matters without an oral hearing. It also confirmsthe broad discretion that the Court has in relation to costsorders and clarifies types of costs orders available, enablingthe Court to order a party’s legal representative to paycosts personally and awarding different costs in relationto different parts of proceedings.

The Bill is a welcome reform to the efficiency of thelitigation process, however substantive issues concerningpublic interest litigants have not been addressed. TheAustralian Network of Environmental Defender’s Offices(ANEDO) highlighted areas in which the Bill can beimproved to better address the needs of under resourcedparties and ensure true fairness in the civil justice systemin a submission on the Bill.

Primarily, more consideration is required of the financialinequalities of public interest litigants. Environmentallitigation is most often commenced by a person or groupwith limited resources and the high cost risks of bringingactions against well resourced defendants is a significantdeterrent for the parties as well as litigation funders. Thegeneral rule of litigation requires the unsuccessful partyto pay the costs of the successful party which deters manypotential litigants, even if they have good prospects,because the litigants are unwilling to face the risks ofthese costs if unsuccessful. In its submission, ANEDOproposed including an express reference to the financialposition of the parties as a relevant factor to be consideredin the objectives of the overarching purpose, as well asincluding an objective to ensure all parties are able toconduct their cases on an equal footing to ensure that awell resourced party cannot use its financially superiorposition to gain an advantage over its opponent.

There also needs to be recognition of public interestlitigation and an attempt to remove obstacles, such as therisks of paying the other party’s costs. ANEDO hasproposed establishing a statutory process wherebyapplicants apply for a declaration that their proceedingsare ‘public interest proceedings’ and are eligible to receivethe relevant public interests cost order.

Although clearly working towards a more efficientsystem of justice, the lack of reference to importantsubstantive issues limits the ability of the community tobring actions relating to matters of public interest. Byinserting clear legislative directions in relation to thesematters, this Bill could truly give effect to the government’sdesire for a fair and effective system of justice for allAustralians.

A copy of ANEDO’s submissions will be availablesoon at http://edo.org.au

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