Legal Aid cuts threaten environmental justice

JEFF SMITH*

From 1 July this year, one of the pillars of environmental justice is about to be torn down – that is, Legal Aid will no longer be available for public interest environmental cases. It’s been a longstanding part of the architecture for 27 years.

But let’s step back a little. Why does this matter?

Environmental justice is often about access – that is, the ability of concerned community members to protect the environment through the Courts. NSW has long had an iconic right for any person to take action to stop a breach of the law – a broad provision which has meant that Courts have concerned themselves with the substance of a matter, not whether someone is entitled to be there. But that right means little without more. As Justice Toohey of the High Court once said:

“There is little point in opening the doors to the Courts if people cannot afford to come in.”

Legal Aid has allowed people to come in – not willy nilly, as some might say, but where strict means and merits tests warrant it.

It enabled a number of legal cases that tested forestry practices and environmental impact assessment in the early 1990s, saving vital forests. In a similar vein, it has contributed to our understanding of the law, through allowing for test cases on novel points of law. The high profile Walker case, the first case in Australia to consider the impacts of climate change on a proposed development is testament to this tradition.

More recently, it has helped to achieve better environmental outcomes for coal-affected communities (witness the decisions in the Hunter with the Ulan and Duralie mines), or to turn back an unsustainable developments (such as an abalone farm in Port Stephens).

Importantly also, Legal Aid has been crucial to keeping accountability and transparency in the environmental and planning system – holding decision-makers to account and ensuring the system works as it should.

All this – better environmental outcomes, the proper administration of justice and accountability and transparency – will be in doubt once 1 July ticks over.

*Jeff Smith is the Executive Director of EDO NSW.

You can support EDO NSW’s Environmental Defence Fund by clicking here to make a tax deductable donation today.

 

Water sources at risk in the Hunter

EMMA CARMODY*

Changes have been made to the rules governing the water use of mining companies in the Hunter region of NSW. These changes mean that from 2015 all large open-cut and underground coal mines in the Hunter will be exempt from rules that were supposed to protect both groundwater sources (known as ‘alluvial aquifers’) and rivers, particularly during periods of drought. This highlights the importance of assessing cumulative impacts properly, as well as the need for the community to be consulted on decisions that impact how water is managed across NSW.

Changes to the Hunter Water Sharing Plan
The NSW Minister for Primary Industries recently made over 100 changes to the Water Sharing Plan for the Hunter Unregulated and Alluvial Water Sources (Hunter Water Sharing Plan). Water sharing plans establish rules for how water is allocated between different users in a particular area. This includes a requirement to set aside some water for the environment.

The Hunter Water Sharing Plan includes rules intended to protect aquifers and the rivers to which they are connected from ‘over-extraction.’ For example, it contains a set of rules which prohibit pumping water from specified aquifers during drought. These  rules are also designed to protect ecosystems that depend on the health of these aquifers and rivers. These ‘groundwater dependent ecosystems’ include dramatic limestone caves containing subterranean lakes which support a variety of fauna such as numerous bat and invertebrate species.

However, two of the recent amendments to the Hunter Water Sharing Plan mean that all licenced major projects approved under NSW planning laws are exempt from these rules. Most mining developments in NSW are categorised as major projects.

What does this mean for the environment?
While there is still much to learn about groundwater systems across NSW, we do know that alluvial aquifers in the Hunter are shallow and therefore easily contaminated. We also know that they are under strain from extractive use, and are highly connected to other water sources. The recent amendments to the Hunter Water Sharing Plan risk exacerbating these problems, as well as undermining the health of ‘groundwater dependent ecosystems’.

The changes also seem to be designed to counteract new laws which require mining companies to hold licences for all water that they extract, including ‘incidental take’.  Incidental take, which is ‘take’ that occurs when a mine is excavated through the water table, is often uncontrolled and continuous. It would therefore have been difficult for mining companies to comply with rules which prohibited pumping water from specified alluvial aquifers during periods of drought.

In a region characterised by an unusually high concentration of open-cut coal mines, the changes are problematic, not least of all because they undermine the objects and principles of the Water Management Act.

Lack of community consultation
There was no legal requirement for the Minister to consult with the community before making the changes discussed above.  Changes of this nature have significant implications for the environment and other users. As such, EDO NSW believes that it is necessary to amend the Water Management Act to ensure that the public can participate in important policy decisions which determine how water is managed across the State.

Click here to read Emma’s article in the Australian Environment Review.

*Emma Carmody is a Policy and Law Reform Solicitor at EDO NSW.

Support Your EDO NSW – It’s Workplace Giving Month

MEGAN KESSLER*

In light of our recent funding challenges and to celebrate Workplace Giving month, EDO NSW recently made the decision to start a Workplace Giving program.

Workplace giving (or payroll giving) provides employees with an opportunity to make tax deductible donations to charities out of your regular pay. This means that even a small regular donation can make a big difference when combined with other regular donors.

For employers, workplace giving can provide a low cost, administratively simple way to create community-business partnerships through mobilising significant funding and volunteer involvement.

For EDO NSW, workplace giving provides long term, stable funding for core programs. This funding requires little administrative cost meaning your donation gets to where it is needed more. EDO NSW’s workplace giving program is designed to support our work in:

  • Free environmental law hotline which takes nearly 1,500 calls a year.
  • Community workshops and seminars that focus on increasing the community’s knowledge of environmental legal issues on topics such as planning reform, pollution, mining and coal seam gas, coastal protection, and threatened species. We have run 95 workshops across NSW in the past three years.
  • Rural and regional work including support to communities on key issues like native vegetation, water plans, coal seam gas, mining, private conservation and local planning.
  • Indigenous programs providing unique support to the Aboriginal community on culture and heritage issues.
  • Educational resources including legal guides and Fact Sheets to help the community better understand their rights and responsibilities under environmental legislation.
  • Policy and law reform work that involves input to major legal reforms that will affect the environment the NSW.
  • Court cases and mediation which has led to many important environment cases on behalf of communities from the cities to the bush.

Workplace giving is an effective way to make a big difference in the community and it has enormous potential. If just 10% of the Australian workforce donated $5 pre-tax a week through workplace giving, an extra $300 million per year would be raised for the community sector.

If you or your organisation is interested in partnering with EDO NSW on Workplace Giving, we’d love to hear from you. For more information on Workplace Giving and Workplace Giving Month visit the Australian Charities Fund.

*Megan Kessler is the Scientific Director at EDO NSW.

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