Usual suspects line up for new attacks on EDO NSW

JEFF SMITH*

Friends, supporters and observers of EDO NSW may have noticed a new round of attacks on our public interest environmental law office in recent days and weeks, via the usual suspects of the NSW Minerals Council and The Australian newspaper.

While these reports are short on ‘news’ and run long on rehashing earlier attacks on EDO NSW, they are clearly aimed at trying to politicise our role as an independent community legal centre that specialises in public interest environmental law.

Our EDO NSW team takes the sometimes hysterical tone of The Australian’s reporting about our office with a large grain of salt, however, we do find headlines like ‘Public-funded EDO circus must end’ quite offensive. We think many of our supporters will feel the same way.

Last Friday The Australia’s legal correspondent sought to seize on written comments by our outgoing Chair Murray Wilcox AO QC, the distinguished retired Federal Court judge, who reflected on over 6 years at the helm of our Board in his final contribution to EDO NSW, published last month in the 2012/13 annual report.

Readers of this post can assess the content of the most recent stories for themselves here:

As Mr Wilcox noted, the EDO NSW is a law office not a campaign one. Our team is made up of lawyers, scientists and other professionals and support staff, who provide professional, expert and independent legal advice to individuals and community groups. We have clear and robust standards in place to determine when we will take on a case, and indeed when we will provide written advice – namely, that the matter needs to satisfy our public interest guidelines.

We receive funds from a range of sources, including a sizeable proportion which is not taxpayer funds, and we are always scrupulous in ensuring that we meet the obligations set out in funding and grant agreements.

It is also worth noting that when EDO NSW is acting for any client in a litigation matter, such cases are public hearings, and our clients are disclosed on our website and via our annual reports.

Where legal cases we work on end up before a court, which is only a small fraction of the work we do, we act on behalf of community-based clients who have satisfied us – and a senior barrister – that they have rights to be heard under law. Which of course is why our system has courts in the first place, and why due legal process is a core component of our healthy democracy.

*Jeff Smith is the Executive Director of EDO NSW.

FOOTNOTE: Also for the record, the following was sent to The Australian last Friday as a Letter to the Editor.

LETTER TO THE EDITOR, THE AUSTRALIAN
In rehashing mining industry-led criticisms of EDO NSW, your legal correspondent Chris Merritt (Taxpayers still fund anti-coal disputes, 1/11/2013) continues to muddy the waters about the source of grant monies from the Public Purpose Fund of the Law Society of NSW, or PPF. While the NSW Government of the day has always had a consent control over grants made by the PPF Trustees, the actual monies are not taxpayer funds, but rather the accumulated interest earnings on client funds held in solicitors’ trust accounts in NSW. It is a longstanding tradition that the PPF makes regular grants to community legal centres providing public interest services, including EDO NSW, among other recipients. The PPF is fully informed about the work undertaken by EDO NSW as an independent, not-for-profit, specialist public interest environmental law office that has served the community of NSW since 1985.

Jeff Smith
Executive Director

False choice for public interest environmental law

The Australian Legal Affairs Editor, Chris Merritt (Market model is worth copying for our legal centres, 11 October 2013) recently proposed a false choice between providing Legal Aid for less well-off Australians on criminal charges and ‘protecting trees’ under the law.

Many local communities around NSW have made it very clear that they see a strong public interest in legal protection for the environment and heritage – not only ‘trees’, but water quality, biodiversity including much-loved species like koalas, the integrity of farmland, human health, local amenity, indigenous culture and more.

These local communities also see that their concerns are not addressed by commercial law firms or models. Which is precisely why Australia and NSW have maintained a decades-old tradition of public funding for a range of community legal centres, including public interest environmental law ones.

This meets explicit community demand for independent expert legal advice, which on rare occasions includes courtroom litigation, and more subtly bolsters the overall administration of the legal system by filtering out cases that lack strong legal merit and a substantial public interest element.

Many community members also remain deeply concerned about the planning system and the impact of decisions by governments and public agencies on developments that affect them. Such people will be alarmed at The Australian’s proposition that a ‘market model’ should replace the current approach based on significant public funding.

EDO NSW Executive Director, Jeff Smith

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.

ACF WPG Month 2011_Circle Mark

Some funding certainty for 2013-14, but challenges remain

JEFF SMITH*

We have some good news and some bad news for the thousands of community groups and individuals who rallied to support EDO NSW during our funding crisis of late last year.

Your voices and, from many of you, your donations have been invaluable to demonstrating the extraordinary community support for EDO that exists across NSW.

As you’ll recall, in 2012 we faced unprecedented attacks in public, in the parliament and also behind the scenes from the mining industry, the Shooters and Fishers Party and The Australian newspaper, with pressure for EDO NSW to be ‘defanged’, and calls for us to be defunded by the NSW Government.

The good news first
EDO NSW has been granted $1.2 million in funding for the financial year 2013-14. EDO NSW is delighted that the Public Purpose Fund of the Law Society of NSW (PPF), our main source of income, has continued to support our public interest environmental law service for the people of NSW, from the cities to the regions and remote rural areas. At one stage it appeared that our entire funding was under serious threat, such was the intensity of the attacks on the EDO, but for now at least the worst has been averted. The new PPF allocation means that for the next year we can maintain most if not all of our operations, including our regional office in Lismore in far northern NSW. The PPF decision provides us with a full year of funding certainty. This is less than the three-yearly funding agreements that applied until last year, but much better than the three-months-at-a-time funding allocations that have applied in recent months. You can now approach 2013 and the first half of 2014 with significantly restored confidence that EDO NSW will be able to assist you, after a very demoralising period in 2012 for the office.

The bad news
Support from the PPF has been reduced by about 27% in 2013 by comparison to the 2012 calendar year. You’ll recall that this very significant reduction was already in place for the first six months of the 2013 year, January to June. It means that our core PPF funding has been reduced from $1.64 million a year (or about $410,000 a quarter) to $1.2 million a year (or $300,000 a quarter) so we’re still facing a substantial shortfall compared to previous years. The PPF noted that the current reduction is based on a decline in its own earnings and reserves, due mainly to prevailing lower official interest rates in Australia affecting its income from monies held in solicitors trust accounts. 

Thank you
Once again, the EDO team wants to thank all of our clients past and present, and our many supporters in the community and the legal profession, who have stood by us so strongly to save EDO NSW. We know there are many challenges ahead and we need you to maintain your support so that the EDO can keep on defending the environment and heritage under the law. This is especially important with the major planning law reform process now under way in NSW.

*Jeff Smith is the Executive Director of EDO NSW

Overwhelming response from EDO NSW supporters

Jeff Smith

Since my last blog post, EDO NSW has continued to receive an incredible show of support from the community. We have been inundated with letters that have been sent to politicians and the media. Here are some extracts:

“Without the EDO, there would be more hotheaded and troublesome challenges … It is the EDO which disciplines objection into legitimate, informed and proper public participation … In supporting a healthy EDO, any government demonstrates its own integrity”

“They [EDO NSW] provide a very important community service for people of all political stripes who find themselves unexpectedly facing development proposals that put their local environments at risk … because community members generally have much smaller financial interests in proposals than proponents, for broad equity in the system it is most important that we have groups like the EDO to support local community members with advice and representation”

“The work they [EDO NSW] do is vital. They are committed people with talent and experience who are not in it for the big bucks but for the betterment of our society. They can mobilise very good litigators on low fees or a pro bono basis too which is vital for a court case. In some cases they can get an eminent QC or SC to act too which is way beyond the ability of many people or communities.”

Please keep your letters coming. We need your ongoing support in our efforts to secure ongoing funding so we can maintain our services to help you to help our environment. Find out what you can do on our website.

Update on EDO NSW funding situation

Jeff Smith

Last week I sent our clients and supporters an email to let you know that EDO NSW faces unprecedented threats to its funding and its ability to provide you with legal services in your work for the environment. We’ve been overwhelmed by the number of people expressing their concern at these threats and their support for the work of EDO NSW. On behalf of the office, I would like to thank everyone who has taken action on this issue by contacting MPs, speaking out in the media, and spreading the word. We have people writing articles, making calls, donating and even creating a petition on our behalf (perhaps you’d also like to sign on). Thank you all.

Updates on this situation will be provided in future issues of our Bulletin, on our Blog, and via our Facebook and Twitter accounts. You can also like us on Facebook and follow us on Twitter for further updates and links to media coverage. With your support, we’ll be doing our best to ensure that we can maintain our services to help you to help the environment.

EDO NSW Under Threat

Jeff Smith*

Today EDO NSW took the extraordinary step of contacting all our clients and supporters and asking them to speak up in support of EDO.

We don’t take this step lightly but our future as it stands is incredibly dire. We only have confirmed funding from our major funding source, the Public Purpose Fund, until 31 March next year.

Without a longer term commitment we face the prospect of drastically reducing our services to you. Services that we’ve been providing for nearly 30 years. This includes our popular free environmental law hotline, our workshops on topics such as private land conservation, publications including an upcoming guide to mining law and advice on policy issues like the current planning reforms.

Our record of work in public interest environmental law is something of which we are very proud. In recent years our notable cases have included: protecting the heritage-listed hamlet of Catherine Hill Bay, near Newcastle, from a massive subdivision; assisting farmers on the highly productive Liverpool Plains near Gunnedah, who are contesting coal mining expansion; supporting a coalition of citizens concerned about the public health implications of contamination of the $6 billion Barangaroo site on Sydney Harbour; and helping residents of the Blue Mountains to expose pollution from a State-owned power station discharging into Sydney’s main water catchment.

EDO NSW has a history of providing our services without fear or favour and free of the politics of the day. We want to ensure we can continue to support your efforts in defending the public interest and the environment.

If you believe in the work we do, please visit our website to find out how you can help.

*Jeff Smith is the Executive Director of EDO NSW.