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Imp Dec Imp. Impression


									                                            IMPACTPublic interest environmental law

 No 72 December 2003
                                      EDO Queensland Wins Nathan Dam Case
  Quarterly Journal of the
  National Environmental
                                      Major Expansion of Federal Environment Powers
 Defender’s Office Network             Chris McGrath, Barrister-at-Law

      Australian Capital Territory
          New South Wales             On 19 December 2003, the Federal Court       polluting water flowing to the Great
          Northern Territory          of Australia overturned a decision of the    Barrier Reef WHA. The Fitzroy River
         North Queensland             Federal Environment Minister for refus-      catchment is recognised as a high-risk
             Queensland               ing to consider the impacts of associated    area for activities causing pollution of
           South Australia            downstream agricultural development on       the Great Barrier Reef WHA.
               Tasmania               the Great Barrier Reef World Heritage
                Victoria              Area (WHA) when assessing of the im-         Despite the likelihood of associated
          Western Australia           pacts of a major dam.1 This decision has     agricultural development causing
                                      far-reaching implications for the opera-     significant impacts to the Great Barrier
      Website:         tion of environmental law in Australia.      Reef WHA, the Environment Minister,
                                                                                   Dr David Kemp, refused to consider
 CONTENTS                             Justice Susan Kiefel found that when         these impacts. He stated:
                                      assessing the impacts of a proposal
 2       Commonwealth                 under the Commonwealth Government’s          “I found that potential impacts of the
         Environmental and Heritage   principal environmental legislation, the     irrigation of land by persons other than
         Law Amendments
                                      Environment           Protection     and     the proponents, using water from the
 5       New Great Barrier Reef       Biodiversity Conservation Act 1999           dam, are not impacts of the …
         Zoning Plan                  (EPBC Act)2 , the enquiry of the Federal     construction and operation of the dam.”
                                      Environment Minister is a wide one and
         Reef Water Quality           might extend properly to the whole,          The EPBC Act provides an offence,
         Protection Plan
                                      cumulated and continuing effect of the       assessment and approval system for
         Queensland Commits to        activity, including the impacts of activi-   actions impacting upon matters of
         Land Clearing Laws           ties of third parties.                       national environmental significance (as
                                                                                   well as actions impacting on
         Mandatory Renewable          In this case, two conservation groups,       Commonwealth land and actions
         Energy Target Review
                                      the Queensland Conservation Council          undertaken by the Commonwealth).
 6       Recent Developments in       and World Wide Fund for Nature               Importantly for this case, “matters of
         National Water Policy        (Australia), represented by EDO              national environmental significance”
                                      Queensland, sought judicial review of        include the world heritage values of a
 7       False and Misleading         decisions of the Federal Environment         declared World Heritage property and
         Environmental Impact
                                      Minister in relation to a proposal to        listed migratory species.
                                      construct and operate the 880,000
 9       Case Note: Misleading        megalitre Nathan Dam near Taroom on          A person proposing to take an action
         Environmental Claims         the Dawson River in Central Queensland.      that is likely to have a significant impact
                                      The Dawson River joins the Mackenzie         on a matter of national environmental
 10      Meander Dam Update
                                      River to become the Fitzroy River flowing    significance is required to refer the
 13      Queensland Draft             east to the coast and the Great Barrier      proposal to the Federal Environment
         Biodiscovery Bill 2003       Reef WHA.                                    Minister, who must then decide whether
                                                                                   it is a “controlled action” requiring
Published by Environmental            The purpose of building the dam is to        assessment and approval. If the Minister
Defender’s Office (NSW)               supply water for irrigation of 30,000        decides a proposal is a controlled action,
Level 9, 89 York St Sydney 2000       hectares of farmland, mostly cotton          it must then be assessed under the EPBC
DX 722 Sydney                         growing, in the lower Dawson River
Ph: 02 9262 6989
                                                                                   Act and either approved or refused. The
Fax: 02 9262 6998                     Valley, and other development in the         Minister may also impose conditions on
Email:              region. Major concerns were raised           an approval.
ABN: 72 002 880 864                   regarding the likelihood of agricultural
ISSN: 1030-3847                       chemicals, particularly endosulfan,
Printed on recycled paper                                                           Impact No 72 - December 2003          1
The decision in this case concerned the       widest possible consideration is to be       under the Act, the decision dramatically
extent of the enquiry necessary to be         given in the first place, limited only by    strengthens the ability of the Act to
undertaken by the Australian                  considerations of the likelihood of it       protect the environment.
Environment Minister under section 75         happening. By that means the Australian
of the EPBC Act of the impacts which a        Environment Minister should exclude          The decision fundamentally improves
proposed development or activity may          from further consideration those possible    the decision-making process for
have upon the matters protected by the        impacts which lie in the realms of           development approval under the Act by
Act.                                          speculation.                                 establishing that piecemeal decisions are
                                                                                           unlawful. State and Territory
In summary, the decision establishes          •   No narrow approach should be             governments performing environmental
three legal principles of broad application   taken to the interpretation of the EPBC      impact assessment under bilateral
for the future operation of the EPBC Act,     Act because of the high public policy        agreements on behalf of the Australian
namely:                                       apparent in the objects of the Act.          Government under the EPBC Act will
                                              This decision has fundamental and far-       also be required to comply with the same
• When assessing the impacts of a             reaching implications for development        principles. The implications of this
proposal under the section 75 of the          approval and the operation of                decision are therefore likely to
EPBC Act, the enquiry of the Australian       environmental law in Australia by            reverberate for decades in the Australian
Environment Minister is a wide one and        recognising the broad scope of relevant      environmental legal system.
might extend properly to the whole,           impacts that must be considered by the
cumulated and continuing effect of the        Australian Environment Minister under        1
                                                                                             Queensland Conservation Council Inc
activity, including the impacts of            section 75 the EPBC Act.                     v Minister for the Environment &
activities of third parties.                                                               Heritage [2003] FCA 1463. The full text
                                              The EPBC Act provides the overarching        of the decision is available online at
•   When assessing the impacts of a           legal requirements for environmental
proposal under the section 75 of the          impact assessment of development             federal_ct/2003/1463.html.
EPBC Act, the Australian Environment          proposals in Australia and, by massively
Minister is first to consider ‘all adverse    widening the scope of relevant impacts       2
                                                                                             In relation to the EPBC Act generally,
impacts’ the action is likely to have. The    that must be considered for assessment       see

Commonwealth Environmental and Heritage Law Amendments
    Larissa Waters, Solicitor, EDO Queensland

New amendments to the Commonwealth            Provisions) Act 2003 (passed at the          Heritage List (if in a Commonwealth area
Environment     Protection      and           same time as the amending Act1 ) to          or under Commonwealth control) in the
Biodiversity Conservation Act 1999            introduce a new heritage protection          first six months of the new laws
(EPBC Act) were assented to on 23             regime. These laws have not yet              commencing, and we expect transfers to
September 2003, following the                 commenced, but will do so on                 occur with many of the Commonwealth-
commencement of Schedule 4 of the             proclamation, which is scheduled to          controlled National Estate places.
Environment and Heritage Legislation          occur before 23 March 2004.2
Amendment Act (No 1) 2003 (the                                                             Public Nominations
                                              New Heritage Lists
amending Act).                                                                             Once the new laws commence, there will
                                              The new heritage laws establish              be a public nomination process that will
This article outlines the new heritage
                                              completely new lists for heritage places     allow individuals, the community and
laws introduced by the amending Act
                                              – a National Heritage List and a             governments to nominate places to the
(which will commence in early 2004) and
                                              Commonwealth Heritage List, which will       National Heritage List and the
discusses a number of other changes
                                              initially contain no listings. Both Lists    Commonwealth Heritage List. Each place
introduced by the amending legislation,
                                              will eventually include places of            nominated for either list will be assessed
including provisions in relation to
                                              outstanding heritage significance to         by the Australian Heritage Council
staged developments and new penalties
                                              Australia, with the Commonwealth             (replacing the current Australian
for failure to undertake actions in the
                                              Heritage List including only places with     Heritage Commission), which will advise
manner specified by the approval.
                                              heritage values owned or leased by the       the Minister for Environment and
1. Heritage Amendments                        Commonwealth.3 Criteria for listing on       Heritage (the Minister) on suitability for
Schedules 1, 2 and 3 of the amending          the basis of natural, indigenous or          listing. Further public consultation on
Act operate in conjunction with the           historical values will be set by             the proposed inclusion of the place on
Australian Heritage Council Act 2003          Regulation.                                  the list may then take place, before the
and Australian Heritage Council                                                            Minister makes a final decision on
                                              Places currently listed on the Register of
(Consequential and Transitional                                                            whether a nominated place will be
                                              the National Estate will be eligible to be
                                              transferred to the Commonwealth              entered on the list.
    2 Impact No 72 - December 2003
Management of Heritage Places                heritage values of a Commonwealth            not likely to have a significant impact on
                                             Heritage place, without having an            a matter of national environmental
The amendments require the Minister to
                                             approval to do so (or being exempt from      significance.
make Plans to protect and manage the
                                             the need for an approval)4 . The public
heritage values of listed heritage places                                                 Yet while the Minister is empowered to
                                             will have rights to make submissions on
co-operatively with State and Territory                                                   refuse to accept a piecemeal referral, the
                                             proposed actions that must be taken into
governments. The Commonwealth and                                                         Minister is not obliged to do so, as the
                                             account by the Minister in deciding
Commonwealth agencies must not                                                            exercise of the new power is
                                             whether to refuse, approve or condition
contravene those Plans. Australian                                                        discretionary. However, discretionary
                                             the proposed action.
government agencies are also now                                                          powers are to be exercised in a manner
required to prepare heritage strategies      The new Commonwealth laws will               that best achieves the object of the Act
for places they own or control.              operate in addition to the State and local   in question, and the objects of the EPBC
                                             government environmental, heritage and       Act include protecting the environment
Protection for Heritage Places
                                             planning laws which also currently           and promoting the conservation of
Once the heritage laws commence, the         regulate heritage places.                    biodiversity.6 It is possible that a judicial
heritage values of a heritage place on                                                    review challenge could be mounted by
                                             Public Enforcement
the National Heritage List (a ‘National                                                   members of the public 7 where the
heritage place’) will be protected as a      By broadening the definition of “the         Minister decides to accept a referral that
‘matter of national environmental            environment” in section 528 of the EPBC      is simply a component of a larger action
significance’, creating an additional        Act, the heritage amendments have            if that decision does not promote
‘trigger’ for operation of the EPBC Act.     extended public rights to challenge          protection of the environment and the
                                             decisions made under the EPBC Act or         conservation of biodiversity.
Normally, actions that have, will have or
                                             to seek injunctions to stop unlawful
are likely to have a significant impact on                                                As the initial decision on whether or not
a matter of national environmental                                                        to accept a referral is made prior to the
significance are subject to the              Under section 487, a person or group has     referral being notified on the EPBC
assessment and approval process in the       “standing” to enforce the EPBC Act if        notifications web site and thus prior to
EPBC Act. However, protection for            they have engaged in activities for the      public comments being made, it is critical
National heritage places is limited by the   protection or conservation of, or research   that proponents abide by the duty to
Constitutional powers of the                 into, the environment in the two years       provide accurate information about their
Commonwealth.                                prior to the decision they wish to           development plans in their referral, since
                                             challenge being made.5                       this will be the only source of information
The assessment and approval process
                                                                                          upon which the Minister can base the
for actions likely to have a significant     The amendments mean that active
                                                                                          decision on whether the action is part of
impact on a National heritage place will     heritage groups will now have the right
                                                                                          a larger action. Reflecting the
only be triggered where a constitutional     to challenge decisions or seek
                                                                                          amendment, the referral form and guide
power of the Commonwealth is invoked,        injunctions under the EPBC Act in
                                                                                          for proponents now specifically seek
such as where the action is for interstate   relation to both National and
                                                                                          information about:
or international trade, or will affect a     Commonwealth heritage places.
National heritage place that is in an area                                                ·       the interdependency of the
                                             2.   Staged Developments and
which Australia has obligations to                                                        referred action relative to any larger
                                                  Piecemeal Referrals
protect under the Biodiversity                                                            action;
                                             Schedule 4 of the amending Act
                                             commenced on 23 September 2003,              ·      whether the referred action is
When this occurs, members of the public      introducing new section 74A of the EPBC      stand-alone and viable in its own right;
will have the opportunity to make            Act, which allows the Minister to refuse
                                                                                          ·       the temporal and/or spatial
submissions on the proposed action that      to accept a referral of a proposed action
                                                                                          relationship between the referred action
must be taken into account by the            where the Minister is satisfied that the
                                                                                          relative to any larger action;
Minister in deciding whether to refuse,      action is a component of a larger action
approve or condition the proposed            proposed to be taken, such as in a staged    ·      the scope of the proposal that
action.                                      development. If the Minister refuses to      has been put forward for any Local
                                             accept the referral, the Minister can        Government or State/Territory
Protection for places on the
                                             compel the person to refer the whole         authorisation;
Commonwealth Heritage List will be via
                                             larger action to the Minister for
the general protection afforded the                                                       ·      responsibility of the action
                                             assessment under the Act.
environment (not just matters of national                                                 person or other persons for elements of
environmental significance) on               This new power will be critical in           any larger action; and
Commonwealth land.                           accurately determining the likely impacts
                                                                                          ·       whether protection of matters of
                                             of a total development, in order to make
Since the amending Act includes the                                                       national environmental significance can
                                             an informed decision on whether all
heritage values of heritage places in the                                                 be best achieved through consideration
                                             components of a proposal require
definition of “the environment”, the                                                      of any larger action compared to a smaller
                                             assessment and approval under the
effect is that it is an offence to take an                                                component or staged action.
                                             EPBC Act, and could avoid a
action on Commonwealth land (or that
                                             development slipping under the radar of
affects Commonwealth land) that is likely
                                             the Act if its components are individually
to have a significant impact upon the                                                      Impact No 72 - December 2003            3
It is an offence under section 489 of the      action that was not taken in the manner        Strait Islander Heritage Protection Bill
EPBC Act to provide false or misleading        it was specified to be undertaken. Rather,     1998, once the Bill is enacted.
information in a referral document and         a concerned environmentalist would              3
                                                                                                 “Place” is defined to include a
both civil and criminal penalties apply.       have to launch injunction proceedings
                                                                                              location, area, region, building or other
The Minister can pursue court action to        and demonstrate that the action was
                                                                                              structure and its immediate
impose those penalties, and any member         likely to have a significant impact on the     surroundings: new section 528 EPBC
of the public8 can seek a declaration and      environment because of the different           Act.
orders from the Federal Court that the         way in which it was performed, an
referral is false or misleading9 . On paper    onerous task which would require expert        4
                                                                                                  See sections 26 – 28 EPBC Act.
this is good insurance against developers      scientific evidence. The amendments            5
                                                                                                To have standing, an individual must
providing false or misleading                  mean that there is now a direct avenue         also reside in Australia, and a group
information about their proposals, but         for the Minister to pursue civil penalties,    must be established in Australia and
in practice there is still no guarantee that   or for members of the public who meet          have protection or conservation of, or
referrals will be made with full disclosure    the standing test to seek an injunction        research into, the environment as one
or full consideration of likely                to stop actions being performed in a           of its objects: section 487 EPBC Act.
environmental impacts.                         manner other than the approved manner
                                                                                                  Section 3 EPBC Act.
However, any new information that
comes to light about a staged                  Conclusion
                                                                                                Where they meet the “standing”
development following a decision on            The new amendments introduced by the           criteria in section 487 of the EPBC Act.
whether approval is required under the         Environment and Heritage Legislation           8
                                                                                                Again, where they meet the
Act might provide grounds under                Amendment Act (No 1) 2002 described            “standing” criteria in section 487 of the
section 78 of the EPBC Act for                 above are an extremely positive step           EPBC Act.
reconsideration of the original decision       forward. We commend the government
that Commonwealth approval was not             for taking steps to ensure referrals
                                                                                                As occurred in the case of Mees v
required. Reconsideration can result in        provide adequate information on the            Roads Corporation [2003] FCA 306.
the original decision being revoked and        scope of intended actions both current         See Impact No. 70 June 2003 for
substituted with a new decision.               and future, in order to adequately             discussion of this case.
                                               determine whether Commonwealth
3.   Actions exempt if performed
                                               assessment and approval of component
     “in the manner specified”
                                               actions or larger actions is required. Also,
The “in the manner specified” provisions
                                               inserting new penalties for failing to
of the EPBC Act allow the Minister to
                                               undertake development in the manner
                                                                                                    Planting the Seed
decide that because of the way in which
                                               specified provides the Minister and the
an action will be carried out (including
                                               public a direct route to challenge non-
things like design features and mitiga-
                                               complying wayward developers.
tion measures), it would not be likely to
have a significant impact on a matter of       The heritage amendments also have the
national environmental significance, and       potential to improve the protection for
thus Commonwealth assessment and               places currently on the Register of the
approval of the action is not required.        National Estate – presently regulated by
                                               a largely unenforceable system lacking
Schedule 4 of the amending Act also
                                               direct mechanisms to protect listed
introduced new section 77A, which
                                               places – if those places make it onto one
strengthens the ability to enforce the
                                               of the new Lists. So before the laws
Minister’s decision that an action does
                                               commence next March, get organised to
not require approval because that action
                                               nominate your favourite natural, cultural
would be taken “in the manner
                                               or indigenous places for inclusion!                   Public Participation and the
specified”. After the amendments came
                                                                                                     Environment Protection and
into effect on 23 September 2003, new          ENDNOTES
                                                                                                    Biodiversity Conservation Act
civil penalties of up to $110,000 for an       1
                                                The controversial set of Bills was
individual and $1.1 million for a body
                                               originally introduced into Parliament in            ‘EDO’s new publication on the
corporate apply if a developer does not
                                               June 2002, yet only passed by the                   EPBC Act, ‘Planting the Seed’,
undertake the action in the manner
                                               Senate on 21 August 2003 and the                    is one of the best publications
specified. In addition, if the action is not
                                               House on 8 September 2003, receiving               for the general community that I
taken in the manner specified,                 Royal Assent on 23 September 2003.                       have seen on the Act.’
reconsideration of the decision that
Commonwealth approval is not required          2
                                                 Section 2(3) of the amending Act.
                                               However, note that Schedule 2 of the                        Chris McGrath
could be undertaken in accordance with
                                               amending Act (which provides for                            Barrister-at-Law
section 78 of the EPBC Act.
                                               certain consultation mechanisms with
Prior to the amendment taking effect,          the Director of Indigenous Heritage                   To order your copy, contact
there was no direct route to challenge an      Protection) will not commence until                 Christine Palomo at EDO NSW
                                               that position is established under                         on 02 9262 6989 or
 4 Impact No 72 - December 2003                section 9 of the Aboriginal and Torres     
         New Zoning Plan for Great Barrier Reef
                                                                                              Mandatory Renewable
 World’s Largest Network of Marine Protected Areas                                            Energy Target Review

The revised Great Barrier Reef Marine         In November 2003, Federal Cabinet
Park (GBRMP) Zoning Plan was tabled           agreed in principle to a structural
in Federal Parliament on 3 December 2003,     adjustment package to assist commercial
after more than 5 years of preparation        fishers and others adversely affected by
and two major rounds of public                the upcoming re-zoning.
consultation.                                 The EDO congratulates the Great Barrier
The Zoning Plan will protect habitats that    Reef Marine Park Authority, the Federal
are representative of all the 70 bioregions   Government, WWF reef campaigners
in the GBRMP by establishing a network        Imogen Zethoven, Richard Leck and
of no-take marine sanctuaries, known as       Sarah Lowe and all the others who have
‘Green Zones’, where diving, snorkelling      created this internationally outstanding
and boating are permitted but not             achievement.
extraction of marine life.
                                              For more information on the revised          On 16 January 2004, the report of the
The Zoning Plan increases these Green         Great Barrier Reef Marine Park Zoning        Mandatory Renewable Energy Target
Zones from currently 4.5% to 33.3% of         Plan visit:               (MRET) Review was released.
the total GBRMP, a six-fold increase in
                                              For more information on the WWF
protected areas of the GBRMP that will                                                     The report examines the effectiveness
create the largest network of highly          Australia campaign to protect the Great
                                                                                           of the scheme, which establishes a
protected marine areas in the world.          Barrier Reef visit
                                                                                           national renewable energy market,
                                                                                           placing liability on wholesale
                                                                                           purchasers of electricity to contribute
    Reef Water Quality                         Queensland Commits                          towards the generation of the
                                                                                           additional renewable energy.
     Protection Plan                           to Landclearing Laws
                                                                                           The existing MRET, which commenced
The Great Barrier Reef also wins with the     On 27 November 2003, Queensland
                                                                                           in April 2001, requires the sourcing of
release of the Reef Water Quality             Premier Peter Beattie announced in
                                                                                           9,500 gigawatt hours of extra renewable
Protection Plan, a joint initiative of the    Parliament that the Queensland
                                                                                           electricity per year by 2010 through to
Queensland and Commonwealth                   government would go it alone on land
governments three years in the making.        clearing law reform, after months-long
                                              silence from the Federal Government.
                                                                                           The report recommends that this target
Prime Minister Howard and Premier                                                          remain unchanged.
                                              In May 2003, Queensland and the
Beattie recently signed the Plan, which
                                              Commonwealth agreed to each provide
will now be implemented in an attempt to                                                   The EDO shares the concerns of a
                                              $75 million towards a compensation
reverse the decline in the quality of water                                                number of conservation groups about
                                              package for farmers whose clearing
entering the reef lagoon within ten years.                                                 this recommendation – described by
                                              rights would be restricted by planned
                                                                                           ACF Executive Director Don Henry as
                                              tightening of Queensland land clearing
                                                                                           “a totally inadequate and shortsighted
The Plan identifies catchments and reefs      laws.
                                                                                           response to the impact of climate
at risk from runoff and promotes best                                                      change in Australia”.
land management and incentives to             The EDO congratulates Premier Beattie
protect and restore significant wetlands.     for promising to introduce new land
                                                                                           The EDO made a number of
                                              clearing laws in the first sitting week of
                                                                                           recommendations for legislative and
                                              Parliament next year (24–27 February
The Plan implements the commitment                                                         policy changes in its submission and is
                                              2004) regardless of the Commonwealth’s
made by the Prime Minister and the                                                         currently assessing the MRET Review
                                              involvement. Premier Beattie has
Premier in an August 2002 Memorandum                                                       report in detail.
                                              committed to:
of Understanding, and will be reviewed        • protect “of concern” vegetation on
in 2010.                                                                                   The Review Report is available at
                                              freehold land (currently only protected
                                              on leasehold land); and
A copy of the Plan is available from the      • phase out clearing of remnant
                                                                                           The EDO submission is available at
Commonwealth Department of                    vegetation by 2006.
Environment and Heritage website at                                                        policy.asp. or the                  Premier Beattie’s statement is available
Queensland Premier’s website at               at www.          Documents/2003.pdf/ 031127ha.PDF.

                                                                                               Impact No 72 - December 2003          5
Recent Developments in National Water Policy

 Ilona Millar, Principal Solicitor, EDO NSW

The Council of Australian Governments                                                      willing sellers. The final proposal will be
(COAG) has been seeking to deal with           On 14 November 2003 the Australian          put to the next meeting of COAG in early
the complex issue of water reform since        Government, the States and the Murray       2004, after a process of community
1994, when the Commonwealth, State and         Darling Basin Ministerial Commission        consultation to refine the elements of the
Territory governments agreed on a stra-        announced an Agreement to return            package.
tegic framework to achieve an efficient        environmental flows to the River Murray
and sustainable water industry. Since          system. The Agreement will focus on         The agricultural industry has indicated
that time, water resource management in        maximising the environmental benefits to    its support for the initiative on the basis
Australia, particularly those states com-      six significant sites along the Murray      that water will not be compulsorily
prising the Murray Darling Basin (New          River. Environmental objectives for         acquired from farmers6 . Environment
South Wales, Queensland, South Aus-            those sites include:                        groups have also cautiously welcomed
tralia and Victoria) has been transformed.                                                 the Government’s commitment to
                                               ·   The Barmah-Millewa Forest –             improved environmental flows.
A stated objective of the COAG frame-              achieving successful breeding of        Executive Officer of the Nature
work is to establish the true value of water       colonial waterbirds in at least 3 of    conservation Council of NSW, Brooke
in all Australian states and territories,          10 years and maintaining healthy        Flanagan stated that “the next step must
explicitly linking environmental and eco-          vegetation in at least 55% of the       look at improving the entire ecosystem
nomic objectives. This is intended to be           forest area;                            of the Murray rather than dealing with a
achieved by a number of market based           ·   Gunbower and Perricoota-                small number of sites”.7
measures involving pricing water, estab-           Koondrock Forests – reinstating at
lishing secure property rights for water           least 80% of permanent and semi-        COAG will meet again in early 2004 to
(separate from land rights) and provid-            permanent wetlands and maintain at      finalise the National Water Initiative. It
ing for permanent trading in water enti-           least 30% of total river red gum        is hoped that an implementation program
tlements. Specific provision was made              forest area;                            for the return of environmental flows to
for water for the environment, for insti-      ·   The Hattah Lakes – restore aquatic      the Murray will be confirmed and that
tutional reform (with water service pro-           vegetation zones around 50% of the      operational arrangements will be able to
viders to operate on the basis of com-             lakes and increase successful bird      commence without delay.
mercial principles) and for improved pub-          breeding events;
lic consultation and education arrange-        ·   Chowilla Floodplain (including          ENDNOTES
ments.1                                            Lindsay-Wallpolla) – water high
                                                   value wetlands and maintain the         1
                                                                                             COAG Communique, 25 February 1994 in
Notwithstanding two recent papers                  health of the current area of river     Hobart. See recently Kemp D (2002) “Water
published by the Institute of Public               red gums and at least 20% of the        – What’s It Worth” Paper presented at the
Affairs, which claim that the health and           original black box area;                Deniliquin MVCAG Summit, 21 November
                                                                                           2002 at pp 4-5.
water quality of the Murray Darling River      ·   Murray Mouth, Coorong and Lower
is not in decline2 , the Murray Darling            Lakes – keep the Murray mouth           2
                                                                                             Marohashy, J “Myth and the Murray,
Basin Commission (MDBC) has                        open, provide more frequent             Measuring the real state of the River Murray”
gathered significant scientific evidence           conditions for estuarine fish           (8 Dec 2003 IPA); Marohashy, J “Received
that show that the Murray River system             spawning, and enhance migratory         evidence for deterioration in water quality in
is severely degraded. A Communique                 wading bird habitat;                    the River Murray” (Oct 2003, IPA).
recently released by the MDBC stated           ·   River Murray channel – enhancing
that “this degradation threatens the               native fish recruitment and habitat
Basin’s agricultural industries,                   and maintain current levels of          content/index.phtml/itemId/16196/from
communities, natural and cultural values,          channel stability5 .
and national prosperity”.3 Earlier this                                                    4
                                                                                               Joint Press Release ACF-NFF 23 July 2003
year, the former President of the              The above environmental objectives are
Australian Conservation Foundation             to be achieved by providing for an          5
(ACF), Mr Peter Garrett, and President         additional 500 GL of environmental flows    content/index.phtml/itemId/16196/from
of the National Farmer’s Federation Peter      down the Murray River, over a five-year     ItemId/4440.
Corish expressed the view that $200-$250       period. Those flows are to be ‘recovered’
million per year over 10 years was needed      from a variety of sources including
                                                                                             Paul Weller, Chairman of the National
to restore the health of the Murray            increased on-farm initiatives to improve    Farmers Federation water taskforce, quoted
                                                                                           in “Murray Agreement Positive First Step”
system.4 The ACF has also been calling         efficiency, infrastructure improvements
                                                                                           The Land 20 Nov 2003 p.7.
for a return of 1,500 gigalitres of            and rationalisation (which will be
environmental flows to the river Murray.       integrated with an existing $150 million    7
                                                                                             “Murray First Step Welcomed” 14 Nov
                                               capital works program), market based        2003
 6 Impact No 72 - December 2003                approaches and purchases water from         20031114_msfw.html.
False and Misleading Environmental Impact Statements
Application of the Commonwealth Trade Practices Act 1974
 Warren Kalinko, Former Solicitor EDO NSW and Jessica Simpson, Solicitor EDO NSW

Can the Trade Practices Act 1974 be         Key Principles                                 •       the proponent of a development
used to challenge the validity of                                                                  or an activity who engaged a
Environmental Impact Statements on          The key principles in relation to section              consultant to prepare an EIS;
the basis that they are misleading?         52 of the TPA are as follows:                  •       the public; and
                                                                                           •       the consent authority
This article discusses the potential use    (a)    For a contravention of section 52
of the provisions of the Commonwealth              to occur, the conduct must be           that the EIS will contain a full and fair
Trade Practices Act 1974 (TPA) to                  likely to mislead. The conduct is       disclosure of all matters relevant to a
commence legal proceedings in relation             to be judged by reference to the        consideration of the environmental
to the preparation and use of misleading           “reasonable person” within the          impacts of the proposed development.
environmental impact statements (EIS).             audience likely to be affected.
There are currently no reported cases in                                                   This stems from the function of an EIS,
which the TPA has been used to              (b)    The question (whether conduct           as described by the Court of Appeal in
challenge the provisions of an EIS.                is likely to mislead) is an objective   Prineas v Forestry Commission of NSW
                                                   one, and requires an examination        (1984) 53 LGRA 160 at 171:
Section 52 of the TPA prohibits                    of the likely effect of the conduct.
corporations from engaging in conduct,                                                     “an obvious purpose of the EIS is to
in the course of “trade or commerce”,       (c)    Silence, or a failure to make full      bring matters to the attention of members
which is “misleading or deceptive or is            disclosure may constitute               of the public, the Department of
likely to mislead or deceive”.                     misleading        conduct       in      Environment and Planning and to the
                                                   circumstances         where      a      determining authority in order that the
The EDO envisages that the TPA could               “reasonable expectation exists”         environmental consequences of a
be used to bring claims against the                that if certain matters are known       proposed activity can be properly
author(s) of a misleading EIS, and the             they will be disclosed.                 understood”.
proponent of a development or activity
on whose behalf the EIS was prepared,       (d)    Not all misleading conduct by           In the context of an EIS prepared under
in circumstances where the EIS:                    corporations will be caught by          Part 5 of the EPA Act, an expectation of
                                                   section 52. The impugned                full disclosure is given added support
(a)    contains     statements      or             conduct must be “in trade or            by section 112 of the EPA Act and clause
       information which is materially             commerce”. The High Court has           229 of the Environmental Planning
       false in relation to the                    construed this phrase narrowly,         Assessment Regulation 2000 (EPA
       environmental impacts of a                  so that the wrongful conduct            Regulation). Clause 229(f) of the
       proposed development; or                    must itself have a trading or           Regulation requires a person who
                                                   commercial character.                   prepares a Part 5 EIS to declare that the
(b)    fails to provide full and fair                                                      EIS:
       disclosure about the expected        (e)    The section applies primarily to
       environmental impacts of a                  “corporations”. However, most
       development proposal.                       Australian States have similar          “(ii)   …contains all available
                                                   legislation which extends the                   information that is relevant to the
A claim against the author of the EIS              prohibition to natural persons                  environmental assessment of the
would be initiated pursuant to section             and other legal entities.                       activity to which the statement
52 of the TPA. It would allege that in                                                             relates, and
providing a faulty EIS to the proponent,    (f)    The application of section 52 is
                                                                                           (iii)   that the information contained in
the consultant engaged in conduct that             not limited to consumers. It
                                                                                                   the statement is neither false nor
is likely to mislead the proponent, the            applies so as to protect the public
decision-maker and the public, as to the           at large.
environmental impacts of the proposed
development.                                “Reasonable Expectation”                       If a reasonable expectation arises that
                                                                                           an EIS will disclose all matters that are
The claim against the proponent would       In our view it could be argued that the        material to an assessment of the
also be for a breach of section 52 of the   New South Wales Environmental                  environmental impacts of a proposed
TPA. It would allege that the proponent,    Planning and Assessment Act 1979               development, then it is arguable that
in supplying the EIS to the decision-       (EPA Act) gives rise to a “reasonable          there has been a failure to make “full and
maker, engaged in conduct that is likely    expectation”, on the part of:                  fair disclosure” and that accordingly, the
to mislead the decision maker and the                                                      EIS is likely to mislead because it creates
public, as to the environmental impacts                                                    the impression that the omitted matters
of the proposed development.                                                               do not exist.
                                                                                               Impact No 72 - December 2003       7
A Closer Analysis of the TPA Provisions     remains unclear how a court would                   deceive is an objective question
                                            determine this question.                            which the court must determine
Section 52                                                                                      for itself.
                                            “Engage in conduct”
There are a number of elements to the                                                    4.     The court must consider whether
prohibition in section 52. Each of these    In accordance with section 4 of the TPA,            a reasonably significant number
are dealt with separately below in          this phrase includes actions as well as             of potential purchasers would be
relation to the establishment of a          deliberate omissions.                               likely to be misled or deceived…
challenge to the validity of an EIS.
                                            “A person involved in a contravention”       6.     Section 52 is not confined to
“In trade or commerce”                                                                          conduct which is intended to
                                            Furthermore, section 75B of the TPA                 mislead or deceive… and a
Section 52(1) of the TPA requires that      provides that “a person involved in a               corporation which acts honestly
the relevant conduct must have taken        contravention” of the TPA is a person               and reasonably may nonetheless
place “in trade or commerce”. Dealings      who:                                                engage in conduct that is likely
“in trade or commerce” are not limited to                                                       to mislead or deceive…”
contractual relationships between           “(a)   has aided, abetted, counselled or
parties.                                           procured the contravention;           General questions arising under the
                                                                                         provisions of Section 52
In the context of the publication and use   (b)    has induced, whether by threats
of an EIS, the action of a consultant, in          or promises or otherwise, the         Is the protection offered by section 52
providing the EIS to the proponent, is             contravention;                        limited to consumers?
likely to be in “trade or commerce”. This
is because preparing and publishing the     (c)    has been in any way, directly or
                                                                                         Despite being located in Part V of the
EIS is done in exchange for money                  indirectly, knowingly concerned
                                                                                         TPA, entitled “Consumer protection”,
between the proponent of the                       in, or party to, the contravention;
                                                                                         section 52 is not limited to “consumer
development or activity and the                    or
                                                                                         protection”, in fact it protects the public
                                                                                         at large.
                                            (d)    has conspired with others to
The position is less clear in relation to          effect the contravention.”            In Concrete Constructions (NSW) Pty
the proponent’s use of the EIS. On one                                                   Ltd v Nelson (1990) 169 CLR 594, the
hand, submitting an EIS to a consent        This provision may be used to establish      High Court said (at 601-2):
authority is arguably part of a statutory   a cause of action against an individual
approval process, rather than a trading     author of an EIS for a breach of section     “As a matter of language, section 52
activity or a commercial activity. On the   52 of the TPA, even if that person made      prohibits a corporation from engaging
                                                                                         in misleading or deceptive conduct “in
other hand, the EIS forms part of a         a statement in an EIS which he or she
                                                                                         trade or commerce” regardless of
development application, which is lodged    believed to be true, if it can be
                                                                                         whether the conduct is misleading to, or
by a proponent with a fee. This, and the    demonstrated that the individual knew
                                                                                         deceptive of, a person in the capacity of
fact that obtaining approval is a           that a statement made in an EIS would
fundamental part of the proponent’s         be misleading or deceptive.                  a consumer.”
business, may give the act a commercial                                                  In Truth About Motorways Pty Ltd v
character.                                  “Misleading or deceptive or likely to        Macquarie Infrastructure Investment
                                            mislead or deceive”                          Management Ltd [2000] HCA 11 (9 Mar
Opinion and representations with                                                         2000), Kirby J said (at para 141), with
respect to future matters                   In Equity Access Pty Limited v Westpac       reference to the public policy of the TPA:
                                            Banking Corporation (1990) ATPR 40-
It could be argued that an EIS is nothing   994 the Federal Court summarised the         “It is a public policy larger than the
more than:                                  meaning of the phrase “misleading or         protection of particular consumers.
                                            deceptive” as follows (per Hill J):          Relevantly, it is one aimed at promoting
a.     an “opinion”, and that it is                                                      a culture of honesty in the
       defensible if the opinion is         “1.    For conduct to be misleading or       representations made by trading
       genuinely held and if there is a            deceptive the conduct must            corporations and the elimination of
       basis for the opinion; or                   convey in all the circumstances       misleading and deceptive conduct from
                                                   of the case a misrepresentation…      their dealings.”
b.     a representation with respect to                                                  On the basis of these decisions there is
       a future matter, and that the        2.     There      will…      be     no       potential for third party objectors to
       statements made will be                     contravention… unless error or        challenge the validity of an EIS on the
       defensible if there are reasonable          misconception results from the        grounds that they were mislead by the
       grounds for making them: s51A.              conduct of the corporation and        content of the EIS.
                                                   not from other circumstances for
To the extent that an EIS contains                 which the corporation is not          Can predictions about the future fall
opinion or predictions that are genuine            responsible…                          foul of section 52?
and reasonably based, it may be difficult
to impugn an opinion as misleading. It      3.     …The question of whether              Predictions that are not based on
                                                   conduct is misleading or              reasonable grounds are deemed to be
 8 Impact No 72 - December 2003                    deceptive, or likely to mislead or    misleading under section 51A of the TPA,
which provides that where a corporation          application the subject of the EIS is
makes a representation with respect to           determined                                      Federal Court Decision –
any future matter (including the doing                                                            False and Misleading
of, or the refusing to do, any act) and the      It would be preferable to commence
corporation does not have reasonable             proceedings in respect of a misleading
                                                                                                  Environmental Claims
grounds for making the representation,           EIS before the relevant development
the representation shall be taken to be          application is determined. An applicant       A recent decision by the Federal Court
misleading”.                                     in such a case could seek injunctive          sends a clear warning to businesses
                                                 relief to prevent the proponent using the     seeking to promote their products or
Whilst section 51A assists an applicant          EIS for the purposes of the development       services using false or misleading
by deeming certain conduct to be                 application. If the DA has been               environmental claims.
misleading, query whether the section            approved, but construction not
could work in reverse, so as to assist a         commenced, it may be possible to seek         The Australian Competition and
respondent. Could an EIS be considered           an injunction to restrain use of the          Consumer Commission (ACCC) began
to be comprised largely of predictions,          consent.                                      legal proceedings against Sanyo
such that it will be defensible, provided                                                      Airconditioning Australia, alleging that
the predictions are based on reasonable          Standing                                      it had made misleading claims about the
grounds? The first point to note is that                                                       environmental benefits of the gases used
the defence only arises to the extent            The High Court established in Truth           in its air conditioning units.
statements are actually made. If the EIS         About Motorways that any person even
fails to disclose material information, it is    one with no private right, or special         A promotional brochure for the air
hard to see how the defence could apply.         interest, has standing to bring               conditioners claimed the units were ‘for
                                                 proceedings to seek a remedy for a            a new ozone era - keeping the world
Can it be said that an EIS is opinion            breach of the TPA.                            green’ with ‘environmentally-friendly
only, and defensible, if the opinion is                                                        HFC R407C added’.
reasonably founded?                              Conclusion
                                                                                               HFC R407C and HCFC refrigerant R22
Certainly, an opinion will be misleading         In Australia, environmental law is            are in fact powerful greenhouse gases
if it is not genuinely held. But what about      generally process driven, rather than         which contribute to global warming, and
a case where the opinion is genuinely            outcome oriented. The law prescribes          do not benefit the environment.
held and there is a basis for holding that       detailed procedures for assessing the
opinion? The answer is unclear. It may           likely impacts of a proposal; it does not     The Federal Court found that           the
be the case that opinions in an EIS will         guarantee a good environmental                company      had     breached          the
be defensible if they are genuinely held         outcome. The general position is that         Commonwealth Trade Practices           Act
and reasonably based. Accordingly, the           decision makers have broad discretions        1974 by making false, misleading       and
EDO is of the view that, for this reason, it     in determining whether or not to approve
                                                                                               deceptive representations.
would not be advisable to run a case             a development. Even developments with
based solely on statements which can             substantial adverse impacts can be
                                                                                               The court ordered that the company:
clearly be the subject of legitimate             approved, so long as due process is
disagreement between experts.                    followed.
                                                                                               •     be restrained from engaging in
                                                                                                     similar misleading conduct;
What is the relationship between the             In a legal system where the assessment        •     implement a trade practices
Trade Practices Act and the law                  process is the only substantive                     compliance program; and
governing EISs?                                  protection it is essential that the process   •     pay the ACCC’s costs.
                                                 functions properly.
Clause 283 of the EPA Regulation                                                               “This outcome sends a warning to
contains a prohibition against false or          If EISs constitute merely the “yes” case      businesses attempting to promote their
misleading statements. This provision            for proposed developments, merely             products or services using misleading
is narrower than section 52 of the TPA,          serving as advocacy documents in favor        environmental claims”, said ACCC
in that it requires knowledge or intent to       of development, as opposed to being           Chairman, Mr Graeme Samuel.
be proved, whereas section 52 does not.          objective assessments of the likely
Furthermore, there is no requirement for         impacts of development, then the system       “Environmental claims, including those
the conduct in question to be in trade or        is fundamentally flawed.                      in the form of statements, logos and
commerce.                                                                                      images, must be accurate, clearly identify
                                                 In this context, a case establishing that     the environmental benefit to which the
In our view, it is more likely that the courts   EISs are subject to the provisions of the     claim refers, and must be verifiable.”
would read the two laws together, so that        TPA would make a valuable
they would both need to be complied              contribution to environmental law in          “In light of the court’s orders, extra care
with. In any event, to the extent of any         Australia. If a penalty is obtained           should be taken by businesses
inconsistency between the TPA and                against a company contravening the            intending to promote the environmental
NSW law, the former would prevail in             Act, this would send a powerful message       aspects of their products or services to
accordance with section 109 of the               to consultants preparing EISs. It would       accurately specify the environmental
Commonwealth Constitution.                       also give them something to hold up to        benefits claimed.”
                                                 proponents which put pressure on their
The desirability of commencing                   EIS findings, so that the quality of
proceedings before the development               environmental assessment can improve.             Impact No 72 - December 2003          9
Tasmania: Environmental Assessment of Meander Dam Proposal

    Nick Mackey, Solicitor, EDO Tasmania

1       Meander Dam Proposal                  In March 2002, the Tasmanian Minister           ·   no fluvial geomorphological
                                              for the Environment advised that the                assessment;
1.1     Initial Studies                       action would be assessed under the              ·   no assessment of the impacts of
                                              Tasmanian Environmental Management                  sediment on the ecology of the
The Meander River catchment covers            and Pollution Control Act 1994                      impoundment or on the operation
16,000 ha of Tasmania’s Central North.        (EMPCA), in accordance with the                     of the dam;
The catchment is situated at the base of      Bilateral Agreement between Tasmania            ·   virtually no information on the
the Great Western Tiers Conservation          and the Commonwealth.                               financial viability of the proposal;
Area. Whilst a formal proposal to dam                                                         ·   no cost benefit-analysis and no
the Meander River was made in 1968, a         The Meander Dam Development                         economic viability study;
detailed feasibility study on a dam for       Proposal and Environmental Manage-              ·   no assessment of the alternative
the river was not conducted until 1984.       ment Plan (DPEMP) was released in                   farm dam scenario, despite earlier
Over the next 11 years, eight major           March 2002. 3 The release of this                   feasibility studies determining that
economic, financial and/or engineering        document signalled the start of the formal          this was the most viable option;
feasibility studies were conducted. None      public comment stage of the assessment          ·   significant impacts on the
of these studies resulted in any              of this proposal under Tasmanian law.4              threatened species Dasyuris
commitment to proceed with the dam.           The DPEMP described a 43,000 ML                     maculates (spotted-tailed quoll).
However, when a new Water                     capacity dam, 48 metres high and 170            ·   significant impacts on the
Development Plan1 was released in 2001,       metres long. The dam’s supply would be              threatened species Epacris aff.
a dam at Meander was considered a             24,000 ML of irrigation water per year              exserta ‘union bridge’ (subspecies
priority for development.                     with an inundation area of 332 hectares.            of the South Esk heath); and
                                              The cost was then estimated at $29.4            ·   lesser impacts on numerous other
The Assessment Committee for Dam              million. Justifications advanced by the             species of flora and fauna.
Construction (ACDC) approves all dams         RWSC in the DPEMP were that the
in Tasmania. Constituted under section        proposed dam would:                             In summary, the TCT’s response to the
138(1) of the Water Management Act                                                            DPEMP concluded that:
1999, the ACDC is a statutory body with       • reduce flooding in townships along
direct responsibility for managing water            the river;                                ·   the proposal was not ecologically
and dams in Tasmania. The proponent                                                               sustainable;
                                              •     provide an environmental flow regime
for the Meander Dam is the Rivers and                                                         ·   minor changes to the proposed
                                                    for the Meander River;
Water Supply Commission (RWSC)2 , a                                                               economic model would result in
government business enterprise
                                              •      secure town water supply; and                the proposal making an economic
responsible for the commercial operation      •     provide water to facilitate an increase       loss;
of government owned water schemes. In               in irrigated agriculture in the Meander   ·   major problems with the financial
this case, the RWSC owns the majority               Valley.                                       viability of the proposal existed,
of the land likely to be inundated by the                                                         and on a stand alone basis was
dam. Promotion of the dam, as well as         An Environmental Assessment Report                  not viable;
coordination and funding of all feasibility   (EAR) was required to be prepared by            ·   although deeply flawed, the on-
studies, appeals and lobbying, has been       the Environment Division of DPIWE.5                 farm storage study revealed that
conducted by the Water Development            The EAR was to take into account the                there are still sufficient options to
Branch of the Department of Primary           DPEMP submitted by the proponent, any               more than compensate for any
Industries, Water and Environment             supplementary information supplied by               increased environmental flow
(DPIWE).                                      the proponent, public submissions and               regime in the Meander River;
                                              internal expert advice.                         ·   the social impacts study was
1.2     Referrals and Assessments                                                                 superficial and inconclusive; and
                                              1.3      Community Response                     ·   the proposal did not comply with
The Meander Dam proposal was referred                                                             National Competition Council
under the Commonwealth Environment            The Tasmanian Conservation Trust                    water reform guidelines.7
Protection and Biodiversity Conserv-          (TCT), submitted a formal response to
ation Act 1999 (EPBC Act) for                 the DPEMP in March 2002. 6 The                  Despite the many potential problems
assessment as a controlled action on 6        response from the TCT detailed concerns         raised by the opponent’s to the proposal,
February 2002. A delegate of the              with the proposal, including:                   the Premier, the Minister of DPIWE and
Commonwealth Environment Minister                                                             senior departmental staff all expressed
determined that the dam was a controlled      ·      serious errors in the differentiation    their exuberant confidence in the dam.
action on 27 February 2002.                          of land suitable for increased
                                                     irrigation in the catchment;
 1 Impact No 72 - December 2003
1.4      Supplementary DPEMP                  •   monitoring and reporting of all         therefore in this case no significance
                                                  impacts;                                needed to be given to any decisions
In May 2002, the RWSC released a              •   preparation and implementation of       made by the State subsequent to the
supplementary DPEMP. This document                an Epacris Management Plan; and         provision to the Commonwealth of the
contained responses to the original                                                       final copy of the EAR. The
public comments and contained various
                                              •   preparation and implementation of a
                                                                                          Commonwealth had received a copy of
studies.                                          Fauna Habitat Management Plan,          the notice pursuant to ss130(1B) on 18
                                                  including provisions for ‘no net loss   October 2002 and the final EAR had been
Downstream Fluvial Geomorphology                  of the ecological values of Spotted-    received on 10 October 2002.
Report                                            Tailed Quoll habitat’.
• Confirmed that certain reaches of the       Finally, the Meander Valley Council
                                                                                          It was clear that the Tribunal decision
   Meander River would suffer long                                                        was not strictly relevant to the
                                              approved the development and the            Commonwealth’s determination of
   term changes such as channel               Tasmanian Parliamentary Standing
   widening and deepening.                                                                whether the provision of the EAR met
                                              Committee on Public Works approved          the requirements of the Bilateral
• Confirmed that the impacts on               the allocation of $7 million to the
   Epacris aff. exserta were potentially                                                  Agreement, thereby triggering the
                                              proposal.10                                 approval process under of the EPBC
   very serious.
                                                                                          Act. However, because the decision did
                                              2      The TCT’s Appeal                     affect matters the Minister was required
Agricultural and Economic Report
                                                                                          to consider in making his decision, the
• Revealed for the first time a detailed      On approval of the dam by the ACDC,         Minister decided to wait until the
    financial justification for the dam       an appeal was promptly lodged by the        Tribunal’s decision was made.
    consisting of a mail survey of 346        TCT with the Tasmanian Resource             Accordingly, the ‘clock was stopped’
    water users in the Meander Valley         Management and Planning Appeal              on the approval of dam under s130(5).
    (conducted by DPIWE in 2001).             Tribunal (the Tribunal). Under s278(2)
• Indicated a general interest in water       of the Water Management Act, the            2.1     The Tribunal’s Decision
    from the scheme. Follow up visits         appeal has to be referred in the first
    were then conducted to gain further       instance to a mediation conference.11 A     In what seemed to be a triumph for the
    information. Whilst the total             full hearing was set down for 11 January    opponents of the dam, the Tribunal
    potential demand for water was            2003 after mediation failed.12              ruled comprehensively in favour of the
    found to be 24,000 ML, only about                                                     appellants. The Tribunal’s opinion was
    11,000 ML of this demand was on           The principal issues raised by the          that:
    the main channel.                         appellant in the appeal were:
• Substantial investment (in excess of                                                    •     the true economic value was not as
    $4 million) in infrastructure would be    •   the failure of the proponent and of
                                                                                                high as the proponent had
    required to realize the remainder of          the two principal approving bodies            suggested, and was in all likelihood
    this demand.                                  to properly assess the impacts of the         somewhere between the two models
                                                  proposal on spotted-tailed quoll and          presented;
Financial Analysis                                Epacris aff. Exserta;
                                                                                          •     the impacts on Spotted Tailed Quoll
• Found that to achieve a commercial          •   the failure to propose adequate
                                                                                                were likely to be more significant
    rate of return, a price of around $150/       mitigation measures for these                 than the proponent claimed, but
    ML would have to be charged at                impacts;                                      needed further work to be
    13,000 ML pa demand. Returning to         •   submissions by the TCT regarding              substantiated; and:
    the irrigator survey, at a price of           the economic viability of the           •     proposed mitigation measures on
    $110/ML there was only about 5,000            proposal.                                     the     listed     species     were
    ML of demand.                                                                               questionable. Impacts on the
                                              After receiving the draft EAR from the            Epacris were undoubtedly
1.5      State Approval Process               State Government, the Commonwealth                significant, and the Tribunal stated
                                              continued to liaise with DPIWE and                that it appeared that ‘no way was
The Board of Environmental                    provided comments on the draft before             apparent of avoiding or even
Management and Pollution Control gave         it was finalised and accepted by                  substantially mitigating those
the dam approval after their assessment       Tasmania’s Environment Management                 impacts’.
of the EAR on 10 October 2002. 8              and Pollution Control Board on 10
Subsequently, the approval was                October 2002.                               In summary, the Tribunal refused the
formalised at State level when the EAR                                                    project in decision J12/2003, saying that:
was finally passed to the ACDC.9              There was some concern by the
                                              opponents of the dam that the EPBC Act      “Upon the present state of evidence the
On approval, a number of conditions           approval process should have been           Tribunal is satisfied that the certain and
were placed on the dam, including:            stopped until the Tribunal hearing had      further likely environmental harm arising
                                              been resolved. Nevertheless, the            from construction of and the existence
•     preparation and implementation of       Commonwealth determined that the
      a Weed and Disease Management           Bilateral Agreement did not alter the
                                              effect of Part 9 (approval process) and         Impact No 72 - December 2003 11
of the dam, clearly outweigh the less         public a new plan. The plan was to simply      ENDNOTES
certain benefits. The Tribunal is satisfied   bypass the entire Tasmanian Resource
that the proper decision is to refuse a       Management Planning System,                    The author would like to acknowledge
permit for the dam.”13                        eliminating any further rights of appeal       Craig Woodfield, Water Policy Officer
                                              in the process. Accordingly, to cement         with the Tasmanian Conservation
Following the Tribunal decision, the          the fulfilment of the plan, the Meander        Trust for his expert advice and
State Government provided more                Dam Project Bill 2003 was introduced           assistance with this article.
information to the Commonwealth               to Parliament in late April, 2003.15
                                                                                             1 See
relating to the impacts imposed by the
conditions of the proposal under State        Simply described and simplistically            2
law. The Commonwealth Minister was            worded, this Bill reinstated approval to
then required to take into account this       the dam. However, not only did it
information under ss134(4) when               unqualifiedly approve the entire project,
                                                                                             We b P a g e s / L B U N - 5 7 C 7 B M ? o p e n #
deciding whether to approve the action.       it deliberately eroded all further appeal
The information given covered the             rights. There was little parliamentary         4
following issues:                             debate over the merits of the proposal,
                                              or the reasons for the Tribunal’s              5
                                                                                               The report is available at www.dpiwe.
•    mitigation strategies for the two        decision. The enabling legislation was
     threatened species;                      passed 21-4 in the Lower House and 14-
•    further information on those             1 in the Upper House.                          6
                                                                                               See Tasmanian
     populations of Epacris aff. exserta                                                     and/or  
     ‘union bridge’ found on the Mersey       Needless to say, many Tasmanians were          rsub01.htm#Tasmanian.
     River;                                   disgusted by the way the State                 7
                                              Government bypassed all the legitimate
•    the social benefits of the proposal;
                                              scientific research that had formed the
•    more information on the economic         basis of the Tribunal’s decision. In effect,
                                                                                               This five member board has amongst its
     benefit of the proposal; and                                                            members: the Manager of the Environment
                                              the State government’s decision to             Division of DPIWE, the principal authors of
•    an assessment of the capacity of         legislate against a decision of the central    the EAR and the Secretary of DPIWE.
     farm dams in the Meander Valley.         planning decision-making arena in the           9
                                                                                                 This statutory committee has a
                                              State works against the sustainable            membership of six, which includes: the
Amongst the issues that the EPBCA             development objectives of its own              Chairman of the RWSC (the dam proponent);
obliged the Commonwealth Minister to          lauded integrated planning scheme. It          the Manager of the Environment Division of
take into account when deciding whether       has taken precious rights of appeal away       DPIWE, the principal authors of the EAR,
or not to approve the Meander Dam             from the community and can only                the Manager of the Water Resources Division
were:                                         undermine the efficacy of the Tribunal         of DPIWE, which oversees the WDB of
                                              in relation to politically charged             DPIWE, and also contributed to the EAR.
•    the impacts on the two nationally        decisions.
                                                                                                Established under the Public Works
                                                                                             Committee Act 1914, this five member
     listed threatened species;
                                                                                             committee included two members of the
•    economic and social matters; and         After the Tribunal’s decision,
                                                                                             Government and an independent from the
                                              Environment Australia decided to
•    the principles of ecologically
                                              approve the project with conditions.16
                                                                                             Meander Valley who campaigned publicly
     sustainable development.                                                                for the dam.
                                              The Commonwealth Environment                   11
                                                                                                In accordance with Resource Management
                                              Minister has given conditional approval        Planning Appeal Tribunal Act 1993, s17.
The Minister was also obliged not to act      for the proposed Meander Dam.17 The
inconsistently with the Biodiversity                                                         12
                                                                                                The Tasmanian Conservation Trust v
                                              extensive       conditions     include         Director of Environmental Management and
Convention, the Apia Convention,              requirements prior, during and after
CITES and any relevant recovery plan                                                         Rivers and Water Supply Commission; The
                                              construction. Interestingly, the               Tasmanian Conservation Trust v Rivers and
or threat abatement plan.                     Commonwealth did not produce any               Water Supply Commission and Assessment
                                              further evidence that the proposed dam         Committee for Dam Construction; SA Tiffin
3      Conclusion                             is ecologically sustainable.                   v Rivers and Water Supply Commission and
                                                                                             Assessment Committee for Dam Construction
Simply put, the Tasmanian Tribunal’s          The Tasmanian Conservation Trust, with         [2003] TASRMPAT 12 (22 Jan 2003)
decision sent shockwaves through the          the financial support of the Humane
                                                                                                The full text of the Tribunal decision can
whole state. Decisions of the Resource        Society International, have recently           be found at
Management Planning Appeal Tribunal           launched proceedings in the Federal            0000%20J12-2003.htm
are only appealable on points of law to       Court against the approval of the
                                                                                                Resource Management Planning Appeal
the Supreme Court of Tasmania.14              proposed Meander Dam by the                    Tribunal Act 1993, section 25.
                                              Commonwealth Government. Many
The Tasmanian Government reacted              concerned citizens await the result of this    Bills2003/pdf/29_of_2003.pdf
swiftly to the ailing dam project and         latest appeal.                                 16
proceeded to introduce the Tasmanian                                               
                                                                                                For the full text of the submissions see
12     Impact No 72 - December 2003                                                
Queensland: Draft Biodiscovery Bill 2003
 Stephen Hall, Solicitor, EDO North Queensland

Introduction                                  and scientifically. Moreover, from an         •       A mandatory requirement for
                                              environmental standpoint, the                 biodiscovery entities to enter into
“Biodiscovery” is the collection and          knowledge and techniques acquired             “benefit sharing agreements” with
study of natural biological material for      through biodiscovery research could be        respect to biological material (and the
the commercial development of bio-            applied to conservation of species and        knowledge gained from it) taken from
products such as pharmaceuticals and          habitats; and an industry seeking to          State land or waters.
agrochemicals. Advances in modern             commercially exploit biodiversity (and
biotechnology and research methods            thus reliant on biodiversity integrity)       The commercial development and benefit
have increased the commercial potential       could, like the eco-tourism industry,         sharing processes established under the
of biodiscovery and the Queensland            become an influential, conservation-          Act will be administered by the
Government is seeking to capitalise on        oriented industry stakeholder.                Queensland Department of Innovation
that potential as part of its agenda to                                                     and Information Economy, while the
transform Queensland from the                 The Draft Biodiscovery Bill 2003              Environmental Protection Agency will be
“Sunshine State” to the “Smart State”.                                                      responsible for the collection permit
                                              Queensland’s existing regulatory              system.
In May 2002, the Government released          frameworks are not conducive to the
the Queensland Biodiscovery Policy            expansion of biodiscovery. Access to          Biodiscovery permits will operate to the
Discussion Paper.1 The paper states that      biological material is controlled by a        exclusion of all other State legislation,
the Government’s biodiscovery “vision”        complex array of legislation, which           which means that NCA restrictions on
is based on the following three aims:         imposes on applicants sometimes               the taking of protected wildlife will be
                                              inconsistent requirements to obtain           overridden. For example, at present it
•      to facilitate access to, and the use   multiple permits from different agencies      would not be possible under Queensland
of Queensland biological resources for        in order to access the same biological        law to take a Cassowary or Mahogany
biodiscovery;                                 resource.                                     Glider for commercial research. The
                                                                                            Biodiscovery Act will make commercial
•      to capture an equitable share of       The most important piece of State             collection of such species possible; even
benefits arising from access to, and in       legislation is the Nature Conservation        though the collection is inconsistent with
the use of, Queensland biological             Act 1992 (NCA) and regulations, which         management prescriptions developed
resources for biodiscovery (including         controls access to Queensland’s
                                                                                            under the NCA.
employment generation, research and           protected areas and national parks and
training opportunities and research and       the taking of protected animals and
                                                                                            Biodiscovery permits issued under the
development infrastructure) for the           plants. There are currently no specific
                                                                                            new legislation (‘collection authorities’)
Queensland economy and community;             State regulations for the taking of insects
                                                                                            will only be available for collection of
and                                           and micro-organisms. In Queensland’s
                                                                                            biological material for commercial
                                              national parks, NCA management
                                                                                            research and development. Collection for
•      to ensure that access to, and use      prescriptions prohibit collection of
                                                                                            other purposes, such as pure academic
of, Queensland biological resources for       biological material for overtly commercial
                                                                                            research, will continue to be subject to
biodiscovery is ecologically sustainable,     research.
                                                                                            restrictions under existing permit
respects traditional knowledge and is
consistent with codes of ethical practice.2   To address the regulatory gaps and            application processes.
                                              inconsistencies, the State Government
There are compelling reasons for the          released the Draft Biodiscovery Bill in       The Biodiscovery Bill therefore carries
Queensland Government to be                   June 2003. On enactment, the Bill will be     with it some significant and potentially
encouraging        development          of    the first biodiscovery specific legislation   dangerous ramifications from a
biodiscovery in the State. As it points       in Australia.4 Key features of the Bill       conservation point of view. First, the new
out in its policy discussion paper,           include:                                      laws might expose protected areas and
Australia is recognised internationally                                                     wildlife to adverse impacts from hitherto
as one of only twelve “mega” bio-diverse      •      A single, streamlined permit           illegal activities, such as “bioharvesting”
countries on Earth. Queensland, with its      process for biodiscoverers seeking to         in national parks. Secondly, commercial
huge landmass and bio-rich habitats like      collect biological resources within           scientific research activities, facilitated
the Great Barrier Reef, Fraser Island and     Queensland.                                   by a streamlined permit process under
world heritage-listed wet tropics holds a                                                   the Biodiscovery Act, might take priority
substantial portion of that biodiversity.3    •       Mandatory identification,             over important conservation (or nature-
                                              registration and provision of samples to      based) research.
The development of a world-class              the State of biological material collected
biodiscovery industry could yield             from State land or waters (though not
substantial benefits both economically        from private land).                             Impact No 72 - December 2003 13
Ecological Sustainability                       “Introduce appropriate procedures            Indigenous Issues
                                                requiring environmental impact
It is the expressed intent of the               assessment of its proposed projects that     The United Nations Convention on
legislation to only allow ecologically          are likely to have significant adverse ef-   Biological Diversity states:
sustainable access to biological                fects on biological diversity with a view
resources.5 Biodiscovery permits should         to avoiding or minimizing such effects       “Each party shall, as far as possible and
only authorise the taking of “minimal           and, where appropriate, allow for public     appropriate: subject to its national
quantities” of biological material. 6           participation in such procedures”.           legislation, respect preserve and
Minimal quantity is defined in Schedule                                                      maintain knowledge, innovations and
2 of the Bill:                                  Despite        effectively       giving      practices of indigenous and local
                                                biotechneology and pharmaceutical            communities embodying traditional
“Minimal quantity” for a native biological      companies exclusive commercial               lifestyles relevant for the conservation
resource, means the quantity of the             research access to Queensland’s              and sustainable use of biological
resource that, if taken from land or waters     national parks and wildlife, the Bill        diversity and promote their wider
the subject of a collection authority, will     contains no public participation             application with the approval and
cause no more than minor or                     mechanisms. There are no public              involvement of the holders of such
inconsequential destruction of the              notification requirements with respect to    knowledge, innovations and practices
biological diversity of the land or waters.     the permit application processes and         and encourage the equitable sharing of
                                                there are no third party enforcement
                                                                                             the benefits arising from the utilization
A collection permit must also                   provisions with respect to breaches of
                                                                                             of such knowledge, innovations and
incorporate, as standard conditions, the        the legislation.
                                                                                             practices.” (Article 8(j))
provisions of a compliance code and
relevant collection protocols for               There are also special provisions in the
                                                                                             The recognition and protection of
particular biological material published        Bill which would exclude application of
                                                                                             Queensland indigenous communities’
pursuant to the new legislation.7 The           the Freedom of Information Act 1992 to
                                                                                             traditional knowledge is a complex but
code and collection protocols will be           ensure that various instruments and
                                                information relating to biodiscovery         essential requirement of any specific
statutory instruments, not subordinate                                                       biodiscovery legislation for it to be
                                                activity are not publicly available. Some
legislation and will set down practical                                                      consistent with the CBD. The State
                                                information relating to biodiscovery is
measures to “ensure that the impacts of                                                      Government acknowledged in its policy
                                                likely to be highly sensitive and
the collection (of biological material) are                                                  discussion paper the important role
                                                confidential, but protection is already
ecologically insignificant both to species                                                   traditional knowledge can play in the
                                                provided against public release of such
and their ecosystems.”8                                                                      biodiscovery process.
                                                information under divisions 2 and 3 of
                                                the FOI Act. Special secrecy provisions
It should be noted that the full impact of                                                   The importance of indigenous traditional
                                                in the Biodiscovery Act will undoubtedly
“cutting edge” biodiscovery research                                                         knowledge is also acknowledged in the
                                                be welcomed by bio-tech and
practices, and what amounts to a                                                             1996 National Strategy for the
                                                pharmaceutical companies, but they
“minimal quantity” may not be initially         could also foster community suspicion        Conservation of Australia’s Biological
appreciated or ascertainable; a factor          and       misapprehension           about    Diversity which requires State and
warranting inclusion of the                     biodiscovery activities.                     Federal Governments to:
precautionary principle. However, the
precautionary principle is not mentioned        The Bill can be contrasted with the          “Ensure that the use of traditional
– a significant omission from the Bill as       Commonwealth Environment Protection          biological knowledge in the scientific,
far as sustainability is concerned.             and Biodiversity Conservation Act            commercial and public domain proceeds
                                                1999 which provides for the publication      only with the cooperation and control of
There are repeated references                   of information relating to permits and       the traditional owners of that knowledge
throughout the policy discussion paper          permit applications on the Federal           and ensure that the use and collection
and in the explanatory material                 Department of Environment and Heritage       of such knowledge results in social and
accompanying the Bill to the United             website and which gives extended             economic benefits to the traditional
Nations Convention on Biological                standing to members of the public to         owners. This will include (a) encouraging
Diversity (CBD) and the sustainability          enforce key provisions of the Act.           and supporting the development and use
obligations it imposes on signatories,                                                       of      collaborative       agreements
including Australia.9 There are however         The Bill is also out of step with the        safeguarding the use of traditional
some elements of the sustainability             Queensland Environmental Legislation         knowledge of biodiversity, taking into
principles contained in the CBD that            Amendment Bill 2003 which introduces         account existing intellectual property
failed to make it into the first draft of the   amendments to the NCA that will              rights; and (b) establishing a royalty
Bill. There is, as indicated, the absence       significantly increase scope for members     payments system from commercial
of any mention of the precautionary             of the public to enforce compliance with     development of products resulting at
principle as well as an absence of any          NCA provisions protecting native             least in part, from the use of traditional
avenues for public participation. Article       wildlife and protected areas.                knowledge”.
14(1)(a) of the convention provides that
contracting States must:

 14    Impact No 72 - December 2003
Unfortunately, in its current form the         Conclusion
proposed biodiscovery legislation will
not achieve any of the objectives              With the Draft Biodiscovery Bill 2003,           EDO Network
mentioned above. Queensland
indigenous communities are given no
                                               the Queensland Government has
                                               produced legislation that will facilitate           News
special recognition or opportunities to        access to, and use of, Queensland’s              EDO Northen Territory
participate in (or benefit from)               biological resources for biodiscovery.
biodiscovery activities. The Bill only         Whether the Bill will be sufficient to           Position Available - Solicitor
refers, almost in passing, to holders of       ensure that access to those resources is
native title exclusive possession              ecologically sustainable is debatable,           The EDO is a community legal
determinations (a small proportion of the      and the draft Bill cannot be said to             service practising public interest
indigenous population) but would give          recognise traditional knowledge.                 environmental law in the NT.
no further protection to their interests
                                               A lot more work needs to be done to              EDO seeks a lawyer to provide
beyond what they have anyway at
                                               achieve, in this respect, consistency with       legal advice, educational
common law as private land holders.
                                               article 8(j) of the CBD. At the time of          activities, promote law reform and
                                               writing this article the Queensland              supervise office administration.
The Queensland Government had
                                               Government is in the process of
already produced the Code of Ethical
                                               reviewing the first draft of the Bill in light   This is an exciting role for a suitably
Practice for Biotechnology in                  of public submissions that contain many
Queensland. This is a voluntary code                                                            qualified person with a passion
                                               of the criticisms outlined here.                 for environmental protection.
which aims to declare the fundamental
ethical principles for activities involving    In taking the initiative to develop specific
biotechnology research and practice in                                                          Eligibility for unrestricted
                                               biodiscovery legislation Queensland has          practising certificate in NT
Queensland. One such principle is in           an opportunity to be an international
Paragraph 11:                                                                                   required.
                                               groundbreaker. The opportunity will be
                                               wasted if the State is left with laws that       Salary $68,000 full time (including
“Where in the course of biodiscovery           free up access to biodiversity for multi-        superannuation).
and research we obtain and use                 national corporations without also
traditional knowledge from indigenous          safeguarding that biodiversity and the           Please call (08) 8982 1182 or email
persons or communities, we will                knowledge indigenous communities        for further
negotiate reasonable benefit sharing           have gained from it over thousands of            details.
arrangements with these persons or             years.
communities.”                                                                                   EDO Western Australia
As the ethical code of practice is                                                              EDO Western Australia is pleased
voluntary; it does not have legal force.       1
                                                 Information on the Queensland
                                                                                                to announce the appointment of
The Biodiscovery Bill contains nothing         Government’s biodiscovery initiatives is
                                                                                                Katrina Strong as Coordinator
to remedy this lack of legal enforceability.   available online at: au/
                                               research/regulation.asp.                         (Special Projects and Promotions).
The failure to legislatively recognise and
protect Queensland’s indigenous                2
                                                 Queensland Government, Queensland              Katrina has a background in
traditional knowledge holders is perhaps       Biodiscovery Policy Discussion Paper,
                                                                                                information technology and film
                                               May 2002, p. viii
the greatest disappointment of the Draft                                                        production. She will be
Biodiscovery Bill.                             3
                                                   Ibid, p. 4                                   responsible for promoting the
                                                 The Commonwealth has prepared draft            EDO, organising events and
One would have thought that                    regulations under the EPBC Act concerning        fundraising.
consistency with the article 8(j) of the       biodiscovery in Commonwealth areas,
CBD could only be achieved by the              these can be accessed at
inclusion of, at the very least, a             epbc/about/amendments/draftregulations.
legislative requirement similar to the         html.
ethical requirement in Paragraph 11 of         5
                                                   Biodiscovery Bill 2003 S. 3(2) (a) (i)
the Code of Ethical Practice. However,         6
                                                   ibid, S. 3(1)(a) and S. S. 8(a)
for the time being, the Queensland
Government appears to prefer keeping
                                                   ibid, S. 12 (2) (b) (ii) & S. 47
respect and recognition of traditional         8
                                                 Draft Code of Compliance for Collection
knowledge a matter of conscience rather        of Native Biological Material for
than law.                                      Biodiscovery Purposes 2003, para. 1.3
                                                 Information on the CBD (including the
                                               full text of the Convention) is available
                                               online at:
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