Moore Catchment Council The Last Stand - What’s wrong with our environmental laws? 5 September 2018 Declan Doherty Principal Solicitor Environmental Defender’s Office WA A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Today’s presentation... About the Environmental Defender’s Office • Western Australia Focus - Clearing in WA - State Legislation • • Environmental Protection Act 1986 (WA) • Biodiversity Conservation Act 2016 (WA) • Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) Problems with the law • Potential areas of reform • Discussion and questions throughout! • A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
EDOWA – the State’s public interest environmental lawyers • We are a not for profit community legal centre • Our work – public interest environmental law: • Litigation and legal advice; • Community legal education; • Environmental policy and law reform; • Fundraising! • We act for a range of clients: • Community groups • NGOs • Traditional owners A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
EDOs across Australia • EDOWA founded in 1996 • EDO in every State and Territory (except Victoria) • EDOs of Australia established in 1996 • Independent but collaborate on issues of national significance (including law reform submissions) A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
What is a public interest environmental law issue? • has significance beyond a material or financial interest of a particular person or group • involves a real threat to environment • has the capacity to result in good environmental outcomes; • concerns manner in which the environment is regulated; and • raises matters regarding the interpretation and administration of the law We use the law to protect habitat! A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Some key elements of public interest environmental law Not in all jurisdictions (hence the need for reform!) • Right to access information (not just through FOI) • Right to have a say (public participation) • Independent EIA & decision makers • Right to bring legal action, eg: • Merits review • Judicial review • Civil enforcement • Mining Act – Minister’s ‘public interest’ discretion (eg Helena Aurora Range) • May involve a specialised court or tribunal • In NSW / Qld • Not WA (Ministerial appeals instead) A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Many of the problems with our “environmental laws” sit across a large list of laws: Examples of Laws: Examples of issues: Environmental Protection Act Illegal land clearing, pollution • • 1986 (WA) and environmental harm Mining Act 1978 (WA) Environmental impact • • Mining Rehabilitation Fund Act assessment • 2012 Licensing / works approvals • Petroleum & Geothermal Environmental considerations in • • Energy Resources Act 1967 (WA) mining, petroleum and Planning and Development Act resources operations • 2005 (WA) Planning assessment • Biodiversity Conservation Act considerations of environmental • 2006 (WA) Duties of directors and • Rights in Water & Irrigation Act management of companies • 1914 (WA) Environment Protection and • Biodiversity Conservation Act 1999 (Cth) A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Clearing of native vegetation: “a key threat to WA’s biodiversity” (EPA) • Significant clearing has occurred historically in the wheatbelt and south-west. Much of it incentivised. • 133,700 ha were cleared in the 8 years leading up to 2017. • But information and figures are not accurate: o Lack of environmental data (EPA) o Clearing under exemptions not recorded EPA Annual Report (2015/16): “Clearing of native vegetation is a key threat to WA’s biodiversity. The EPA is particularly concerned by the cumulative impact of clearing in the Perth, Peel, Wheatbelt and Pilbara regions” “With multiple agencies involved and no single, consistent mechanism for recording approved clearing there is currently no reliable means to determine how much native vegetation has been approved to clear, or how much is cleared in any given year, State-wide” A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Focus today is on the WA laws relating to land clearing, however problems are consistent across all laws • Both State and Commonwealth laws regulate land clearing in Western Australia • It is an offence to clear native legislation unless authorised or exempt under the law State Federal Environ onmental P Prot otection on Environ onmental P Prot otection on Act 1 1986 986 (WA) and B Biodiver ersity y Biod odiversity C Con onservation on Conservation A Act 1999 999 (Cth) Act 201 2016 6 (WA) A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Environmental P Protection Act 1986 (WA) (EP Act) • State legislation passed in 1986 • Object is to protect the environment of the State • Establish an independent Environmental Protection Authority (EPA) • Principles of ecologically sustainable development • Pollution / environmental harm offences • 2003 – Clearing laws introduced • Section 51C – Offence to clear native vegetation unless: • obtain a clearing permit; or • clearing is “exempt” under • Schedule 6 of EP Act; or • Clearing Regulations A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Key terms “clearing” and “native vegetation” are defined broadly The Environmental Protection Act defines clearing as: • the killing or destruction of; • the removal of; • the severing or ringbarking of trunks or stems of; • or the doing of any other substantial damage to, some OR all of the native vegetation in an area Native Vegetation is: • Indigenous aquatic or terrestrial vegetation • Includes dead vegetation (unless excluded in the regulations) • Does not include vegetation in a plantation • Includes regrowth / rehabilitation A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
EP Act – Part V – Assessment and approval of clearing permits • Applications assessed by DWER / DMIRS (depending on activity) • Permit assessment reliant on quality of survey information and analysis of this information by consultants on behalf of the developer • In assessing an application the Department must “ have regard to...the clearing principles ” (EP Act, Schedule 5) • Circumstances in which native vegetation “ should not be cleared ” • DWER / DMIRS’ assessment as to whether clearing is at variance with clearing principles will depend on quality of information before it (including survey information) • Written reason if approved clearing “seriously at variance” with a clearing principle A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
Some examples of the Clearing Principles – Sch 5, EP Act Native vegetation should not be cleared if — • it comprises a high level of biological diversity ; or • it comprises the whole or a part of, or is necessary for the maintenance of, a significant habitat for fauna indigenous to Western Australia; • it includes, or is necessary for the continued existence of, rare flora ; • it comprises the whole or a part of, or is necessary for the maintenance of, a threatened ecological community ; • it is significant as a remnant of native vegetation in an area that has been extensively cleared; • it is growing in, or in association with , an environment associated with a watercourse or wetland ; • the clearing of the vegetation is likely to have an impact on the environmental values of any adjacent or nearby conservation area ; A community legal centre specialising in public interest environmental law A community legal centre specialising in public interest environmental law
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