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.

 

Advertisements

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

Court applies fresh approach to weighing of economic, social and environmental impacts

NATASHA HAMMOND-DEAKIN*

Last week Preston CJ, Chief Judge of the Land and Environment Court handed down a significant judgment on a coal mine extension project. Warkworth Mining Limited, a subsidiary of Rio Tinto, had been granted approval to expand its coal mining operations near the small village of Bulga. The Court’s decision to overturn this approval has attracted considerable attention and concern about its implications.

The case
The Warkworth mine had previously been expanded in 2003. As part of that expansion approval, Warkworth agreed to protect a significant local landform, Saddleback Ridge, which provides a buffer between Bulga village and the mine. Warkworth had also agreed to protect significant remnant vegetation including endangered ecological communities in perpetuity.

In 2009 Warkworth sought approval for a further extension. That extension, which was ultimately challenged by the Bulga Milbrodale Progress Association (the Association) in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited, would result in the closure and excavation of Wallaby Scrub Road, the clearing of approximately 766 ha of four types of endangered ecological communities protected under threatened species legislation, and the removal of Saddleback Ridge. This extension was approved by the Planning Assessment Commission under delegation from the Planning Minister in 2012. However, following the Association’s challenge, the Court overturned this approval, disapproving the extension due to its significant and adverse impacts on biological diversity, and the adverse noise, dust and social impacts on Bulga.

A polycentric problem
The Court has brought a fresh perspective to the fraught process for decision makers of assessing and determining a project application. The Court stated that the range of interests affected, and the complexity and interdependence of the issues means that decision-making involves a polycentric problem, or a complex network of relationships with interacting points of influence. The resolution of one issue will have repercussions on the other issues, and the other issues may change in nature and scope depending on how the first issue is resolved. This means that the decision maker must determine the relevant matters to be considered in deciding whether or not to approve the project, and also subjectively determine the weight to be given to each matter and balance those weighted matters.

Weighing economic considerations
The Court has analysed for the first time the economic modelling and evidence put forward in support of a large mine. The Court criticised elements of Warkworth’s modelling, in particular Warkworth’s attempt to put a value on non-market elements such as endangered ecological communities and social impacts. The Court stated that economic analysis, such as a cost benefit analysis, is of limited assistance to the decision making process here, which requires consideration and balancing of economic, environmental and social factors. Ultimately the Court found that the economic benefits of the mine were outweighed by the negative impacts on social and environmental factors.

Like-for-like required for biodiversity offsets
The Court has applied NSW government guidelines requiring biodiversity offsets to provide flora and fauna species that are ‘like-for-like’, in that the offset must protect the same species that are being impacted by the development. This is in contrast to the approach increasingly taken by government in accepting biodiversity offsets that do not require such a high standard of protection for threatened species.

Social impacts of open cut coal mines
The Court has for the first time recognised the detrimental social impacts of the noise and dust conditions routinely imposed by the Minister to mitigate the impacts of large mines, in particular conditions providing for the acquisition of properties in the ‘zone of affectation’ most impacted by noise and dust.

What does this mean for future decisions?
This case may prove to have profound implications for the assessment of major developments, and no doubt will be scrutinised closely by industry and lawyers alike. In particular, it is likely that the case will transform the approach taken to, and methodology underpinning, the economic assessment of major projects.

N.B. Warkworth has appealed the Court’s decision.

*Natasha Hammond-Deakin is a Senior Solicitor at EDO NSW

Image by Stephen Bell.
Warkworth by Stephen Bell

Fullerton Cove judgment highlights need for CSG law reform

ELAINE JOHNSON*

Just before the Easter long weekend, the Land and Environment Court dismissed a case brought by residents against Dart Energy’s coal seam gas pilot project in Fullerton Cove near Newcastle. The Court lifted an injunction on drilling that had been in place since September last year, allowing Dart to proceed with drilling their wells. However, five days later, Dart announced that it would suspend its project due to proposed new controls for CSG at State and Federal levels, including the NSW Government’s recent restriction on CSG within 2km of residential areas, and the Commonwealth’s EPBC Act water trigger.

The case
The Fullerton Cove Residents Action Group (FCRAG) brought the case because they were concerned that the Department of Trade and Investment did not consider any groundwater assessment before granting approval for the project. The project site is located on a floodplain, and includes 12 months of continuous gas and water extraction from CSG wells drilled to depths of 800-900 metres.

FCRAG were also concerned that there had not been proper assessment of ecological impacts, given the site is next to the Hunter Estuary Reserve, an internationally listed wetland which is home to many migratory birds. They also argued that a full Environmental Impact Statement (EIS) was required, including mandatory public consultation, which had not been prepared for Dart’s project.

In September 2012, the Court granted an interim injunction against Dart Energy stopping it from drilling the gas wells until the full case was determined. It was the first injunction granted against a CSG company by the NSW Land and Environment Court.

The main case, decided on 28 March 2013, tested the rigour of the assessment process under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for CSG pilot production.

What the Court said
The Court found that the requirement under Part 5 of the EPA Act for the Department to consider environmental effects of the CSG pilot project ‘to the fullest extent possible’ did not include consideration of a groundwater assessment. This was despite the fact that the pilot project included 12 months continuous gas and water extraction, with an option to extend to 2 years.

Justice Pepper found that the Department’s failure to obtain or consider any groundwater assessment before approving the pilot project under Part 5 of the EPA Act did not amount to legal error. In making this finding, her Honour took into account several factors, including that it was a pilot project only, and that the Department had knowledge of the geology of the area generally.

The Court also found that even though no ‘7-part test’ for threatened species and ecological communities was carried out, it was sufficient for the Department to have ‘general regard’ to the 7-part test for threatened species.

Finally, the Court found that this pilot project was not likely to have a significant effect on the environment and therefore no EIS was required.

What does this decision mean for other CSG projects?
Pilot production can have the same kinds of environmental effects as full-scale production, albeit on a smaller scale. The Court’s finding in this case highlights significant problems with leaving the assessment of those impacts up to Part 5 of the EPA Act for CSG pilot projects. This is particularly problematic because most CSG exploration (including pilot production) involving five or fewer wells is assessed under Part 5.

In this case, Dart gained approval for 12 months’ continuous gas and water extraction, with an option to extend up to two years. The Court’s finding that no groundwater assessment is required by Part 5 in such circumstances is significant. It raises serious questions about the effectiveness of the EPA Act in protecting groundwater resources when it comes to CSG pilot production.

The project site is next to the Hunter Estuary Reserve, home to many protected migratory birds, and contained identified endangered ecological communities. The Court’s further finding that it wasn’t necessary for 7-part tests to be carried out for those species and communities also highlights serious deficiencies in the Part 5 environmental assessment process for biodiversity.

The judgment confirms that Part 5 of the EPA Act is unable to properly deal with assessment of CSG pilot projects, particularly when it comes to groundwater. If CSG pilot production can be approved under Part 5 without a groundwater study, it is difficult to see how the community can have any confidence that groundwater impacts are being rigorously assessed, or indeed at all. It is important that the new planning system addresses these deficiencies.

*Elaine Johnson is a Solicitor at EDO NSW

Image: Tawny Sunrise by Su Walker

Image,

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

The limits of adaptive management

KIRSTY RUDDOCK*

Last week the Land and Environment Court applied the precautionary principle and refused a mining project that provided insufficient information in its environmental assessment about the impacts of the mine on groundwater and surface water. The case sets an important benchmark in environmental decision making that can now be applied to all planning decisions.

The case
In SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Ltd [2013] NSWLEC 1031, Commissioner O’Neill and Acting Commissioner Adam refused the continued operation of the Berrima Colliery. The expansion application sought to double the output from the Berrima Colliery to 440,000 tonnes per year and allow continued operation for eight years. Southern Highlands Coal Action Group (SHCAG) argued that Boral did not adequately consider the impact the project would have on the local groundwater resources, groundwater biodiversity, and the Wingecarribee River in preparing its environmental assessment, and that the impacts of the project on groundwater, groundwater ecologies, and surface water pollution are inconsistent with the principles of Ecologically Sustainable Development, the Wingecarribee Local Environmental Plan, and State Environmental Planning Policy (Sydney Drinking Water Catchment).

The consequences
As a result of the decision Boral will not be able to continue the operations until they submit and have approved a further Environmental Assessment. While this will have a significant impact on their operations, it emphasises the importance of ensuring detailed environmental assessments and baseline monitoring are completed prior to seeking approval for a mining project.

The precedent
The Court stressed that the preparation of a management plan as a condition of consent is not a panacea to overcome the necessity to consider all of the environmental impacts of a proposal. In this case there was an absence of monitoring data to calibrate and confirm Boral’s assumptions and therefore the Planning Assessment Commission had not considered all of the impacts and the means of controlling them. The Court was therefore satisfied that the precautionary principle is activated and that the Boral had not established that its activities would not cause harm to the environment. The Court also found that they could not determine appropriate conditions to address these impacts as there was not adequate information before them to allow for the imposition of clear limits in the approval that can be adaptively managed to ensure they are met. Adaptive management requires precise limits on the cumulative operations of the colliery which the evidence showed did not exist in the Water Management Plan.

Importantly the Court also found it was required to assess not only the new impacts but the continued impacts of dewatering over the whole mine workings. This was important here as some of the impacts related to the previous mining activities, and the mine had argued that only the new impacts should be considered.

The Court also found the residents had valid concerns about noise dust and safety impacts on the Medway Road through Medway village. They found the road was unsuitable for 132 truck movements per day and the haulage road needed to avoid the village.

EDO NSW perspective
The Court has not in recent years applied the precautionary principle to refuse a mining operation. The case is important in strengthening the environmental standards that apply to environmental assessment. It has also set limits on the use of adaptive management, so that it cannot be used to overcome the deficiencies in Environmental Assessments.  This will ensure that the onus is on companies to show through baseline monitoring and other assessments that their project is not likely to cause environmental harm.

Our conclusion
The case will be useful for all communities affected by mining and will provide guidance  to people making submissions on environmental assessments.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW

20130121_144948

Can community members afford access to justice?

KIRSTY RUDDOCK*

Being exposed to cost orders in the courts is one of the major impediments to community members starting or continuing litigation to protect the environment in the public interest. Recently, there was a decision in the Land and Environment Court of NSW that will have significant consequences for community groups seeking to enforce breaches of planning or environmental laws in the future.

The case

In Illawarra Residents for Responsible Mining v Gujarat NRE Coking Coal Ltd [2012] NSWLEC 259, Justice Sheahan has taken a narrow view of whether a residents group concerned about the impacts of mining on their community represents the public interest. He has ordered Illawarra Residents for Responsible Mining (represented by EDO NSW) to pay $40,000 as security for Gujarat’s legal costs to the Court before the case was allowed to proceed. Unsurprisingly the group could not pay this amount and the case has been discontinued.

The consequences

As a result, the issue of whether Gujurat’s current mining activities were unlawful because longwall mining had proceeded without an assessment and approval under the Environmental Planning and Assessment Act 1979 (NSW) will not be determined. This means that the community will not have the opportunity to comment on the plan for underground mining under the drinking water catchment of the Sydney and Illawarra region.

The precedent

This judgment could now be used by other mines and property developers to stifle future public interest litigation. In particular, Justice Sheahan did not accept the evidence from the public officer of the group that the order would mean the proceedings could not continue, and indicated that only evidence from all of the members of the group that they personally could not raise the money necessary to post security would have been enough to satisfy the Court’s concerns.

EDO NSW perspective

In this case, the residents were “mums and dads” who lived near the mine and were concerned not only about the public health issues associated with coal dust from the mine’s operation next to their homes, but the environmental impact of the mine on the escarpment’s biodiversity and drinking water catchment. It appears the Court considered these concerns to be merely about “amenity”.

Our conclusion

  • Fundamental to our current planning system is the need to ensure that rigorous environmental assessments occur and strict conditions are placed on approval of projects that could have a significant impact on the environment.
  • Without enabling the community to have a say through a proper environmental assessment, what checks and balances are there to ensure that mining is done to the best environmental standards?
  • Security for costs orders in such circumstances result not only in the denial of access to justice, but mean that our planning laws will continue to be undermined.

It is therefore vital that planning system reforms ensure that community groups are not impeded in accessing justice and good planning and environmental standards in the future.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW

EDO NSW funding update

JEFF SMITH*

EDO NSW has received formal confirmation that we will continue to receive Public Purpose Fund funding for a further three months, April to June 2013.

The funds will be provided at the reduced rate we received for the January to March period. This means we’re facing a further cut of $110,000 before the end of the financial year compared to last financial year. Despite this cut, we’ll be working hard to make sure we are able to maintain our high standard of advice for all your environmental legal questions and keep you up to date with developments in environmental and planning law.

Beyond 30 June 2012 the future of our PPF funding, which accounts for over two-thirds of our annual budget, remains very uncertain. For the 2013-14 financial year, we expect that the PPF will be bound by the new guidelines for funding of community legal centres announced by the NSW Attorney-General before Christmas, which affect the PPF and also Legal Aid. You can read the Attorney-General’s media announcement of 20 December 2012 here.

The full implications of these new guidelines for the work of EDO NSW and our clients remain unclear but we’ll keep you up to date on this as we find out more.

Thank you to everyone who has written a letter of support, made a phone call or donated to EDO NSW. Your support has been vital in ensuring that the NSW Government recognises the role of EDO NSW in assisting the community to engage in public interest environmental matters.

If you haven’t seen them, these recent media stories from December 2012 will help to update you on how the EDO’s funding crisis is being reported in various media outlets:

*Jeff Smith is the Executive Director of EDO NSW

Launch of ‘Mining Law in NSW: A Guide for the Community’

JEFF SMITH*

This week’s launch of EDO NSW’s Mining Law in NSW guide has turned out to be an incredibly timely reminder of a critical but often little understood role that the Environmental Defender’s Office has played for decades.

We provide a relief valve for communities and individual landholders who feel beset by powerful forces like government agencies and big mining companies, and who contemplate more extreme action if they can’t get help under the law.

For the launch of the mining law guide we invited representatives from three different communities who are grappling with coal and coal seam gas (CSG) development projects to join us in Sydney and tell their stories.

Unlike us lawyers, who can be more guarded in our public commentary, these are people who say exactly what they think. It reveals the depth of emotion that exists when people are confronted with a danger to their community and their natural environment.

Space doesn’t allow me to do justice to all of what was said when our panel guests, Julie, Peter and Scott, described their communities, their challenges and their frustrations. But let me share a taste:

  • Scott Franks, one of the Registered Native Title Claimants for the Plains Clans of the Wonnarua people in the Hunter region. Scott talked about how the planning and heritage laws seek to protect cultural artefacts like spear heads and bones, but can fail to take into account the land itself: ‘The bigger picture is being missed. It’s the environment that sustains our people … we are still in the embryonic stage of understanding this land. How can we destroy something that we don’t totally understand? We all have an onus to protect the environment of this country … One thing the EDO did for me personally was to take the emotion out of it and focus on the law.’
  • Julie Lyford, one of the organisers of the recent CSG conference in Gloucester. Julie described her Gloucester community as having the second lowest socio-economic standing in NSW, while facing major coal and CSG projects and grappling with the implications locally and globally. ‘Rural communities are doing it extremely tough … the EDO is the only thing that communities such as ours can rely on. The rise of community activism across NSW is huge and it’s going to get bigger.’
  • Peter Martin, a semi-retired Sydney businessman with a farm in the Southern Highlands. Peter critiqued the role of politicians and successive governments across the political spectrum, and he condemned the mining laws as a ‘complete travesty’ for communities, highlighted a community role for ‘non-violent civil action’, and also questioned the independence of the legal profession itself. ‘All the big law firms are conflicted … and will only act for mining companies. Even if we can pay for them we can’t get them. Without the EDO, we’d never be able to take these people on. Communities don’t have enough money to do all of this on their own.’

As professional lawyers, the EDO NSW team deals every day with community representatives like Julie, Scott and Peter who are looking to protect the environment, their communities and their assets. Our telephone advice line takes 1,500 calls a year from across NSW.

Emotions can run high, but our job is to help our clients and their communities to navigate within the law, when a clear public interest environmental law issue arises. Our Mining Law in NSW guide is for everyone who looks to the law to give them and the environment a fair go.

NOTE: The guide was funded by the NSW Government through the Environmental Trust, and includes input from the Department of Planning and Infrastructure. This has allowed EDO NSW to address a notoriously complex area of the law and we are extremely grateful for this support.

*Jeff Smith is the Executive Director of EDO NSW.

Mining Law in New South Wales: A guide for the community

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.