Australia’s EDOs - protecting local communities and the environment through public interest law

The following cases highlight the work of Australia’s network of Environmental Defender’s Offices, the EDOs, which began with EDO NSW in 1985 and spread nationally in the early 1990’s. In December 2013, the new Australian Government of Prime Minister Tony Abbott announced that it would cut all federal funding to EDOs, ending on June 30th, 2014.

The Bulga Case, NSW - Coal Mine Expansion

On April 7, 2014, the NSW Court of Appeal today ruled in favour of the residents of the Hunter Valley vil- lage of Bulga, represented by EDO NSW, by upholding the refusal of an open cut coal mine expansion.

The Court of Appeal unanimously dismissed, with costs, an appeal by Warkworth Mining Ltd (owned by Rio Tinto) and the NSW Government against a NSW Land and Environment Court decision last year that refused the mine expansion.

The Court of Appeal found no fault with the Land and Environment Court decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species.

Rio Tinto was seeking to open cut mine a biodiversity offset area, containing an endangered ecological community, the Warkworth Sands Woodland, and threatened animal species including the squirrel glid- er and the speckled warbler. This woodland is unique to the area and only 13 per cent of the original forest remains.

Rio Tinto had previously promised to permanently protect this area, under an agreement with the NSW government, as part of the existing approval from 2003.The protected area also includes Saddleback Ridge which provides a buffer between the mine and Bulga.

The Flying Fox case, north Queensland – Biodiversity

In the first legal action ever taken under Australia’s current federal environment laws, EDO Qld acted for conservationist Carol Booth in a case that halted the large-scale electrocution of spectacled flying-foxes on a lychee property in north Queensland and led to the end of government-permitted electrocution of flying-foxes.

This case in the Federal Court under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) demonstrated that the Act could be used to regulate actions taken outside a World Her- itage Area that were likely to have a significant impact on its values.

The Court found that an estimated 18,000 spectacled flying-foxes were electrocuted during the 2000 ly- chee season, and that continued operation of the grid would cause the species to become endangered within five years. This decline would undermine the capacity of the spectacled flying-fox to contribute to the genetic and biological diversity of the Wet Tropics World Heritage Area. Justice Branson held that the loss of a single species could constitute a significant impact on the world heritage values of a World Her- itage property.

The Alpha Case, Queensland - Climate Change

Farmers and the Coast and Country Association of Queensland Inc (CCAQ), represented by the EDO Qld, launched a legal action against the approval of the Alpha coal mine project, 79 per cent owned by Indian group GVK and 21 percent by Gina Rinehart’s company Hancock Prospecting.

The association argued in court the proposed mine, 360km south-west of Mackay in the Galilee Basin, would contribute to climate change and have permanent and irreversible effects on ground water. The mine is expected to drawdown groundwater levels by up to 5 metres within a 10-kilometre radius of the mine over its 30-year life span. It will also require the clearing of 22,500 hectares of vegetation.

On 8 April 2014 the Land Court delivered its judgment, recommending that the Queensland Government reject the Alpha Coal project or impose new stricter groundwater conditions. The Court was unable to say on the evidence just how far interference with groundwater would extend, so took a precautionary ap- proach to protect landholders.

The East Gippsland case, Victoria - Forests and Biodiversity

In 2013, the EDO Victoria began legal action for Environment East Gippsland in their case against the Victorian Department of Environment and Primary Industries. The environment group was seeking a Court order for the Department to make action statements, which are plans to protect threatened spe- cies, for four species impacted by logging in Victoria: the Glossy Black Cockatoo, the Large Brown Tree Frog, the Eastern She-oak Skink and the Long-nosed Potoroo.

The case was settled before it went to hearing with the Department agreeing to prepare action state- ments for all four species by 30 June 2014. The EDO is continuing to work with Environment East Gippsland to ensure that the terms of settlement are complied with.

Other important biodiversity cases:

EDO Victoria is also taking legal action for a local environment group, Wombat Forestcare, to help them protect sections of the Wombat State Forest from being destroyed by a proposed gold mine. The case will test how Victoria's planning laws apply to certain mining activities. If they are successful, the commu- nity will have the chance to participate in decisions about what happens in the state forest.

The Fullerton Cove case, NSW - Coal Seam Gas

In 2012 EDO NSW represented residents of Fullerton Cove, near Newcastle, who challenged the approval of a coal seam gas (CSG) pilot project.

The residents group went to NSW Land and Environment Court because they were concerned that there had been no groundwater assessment, and a full Environmental Impact Statement should have been pre- pared to assess impacts on biodiversity and groundwater.

The CSG project was located on a floodplain, next to an internationally-listed wetland and with wells that would continuously extract gas and water from depths of 800-900 meters for at least 12 months.

The group won an historic injunction, the first granted by the NSW Environment Court, halting the explor- atory CSG drilling until the court case was heard. The residents’ legal challenge was eventually dis- missed by the court. But, shortly afterwards, Dart Energy, announced that it would suspend the project due to proposed new government controls for CSG.

The Court ordered that, even though they lost the case, the residents should not have to pay the legal costs of the Department of Trade & Investment, which was involved in the case in support of the compa- ny. The Court found that the case “epitomises the very concept of litigation properly brought in the public interest.”

The Olympic Dam case, South Australia - Uranium Mining

EDO South Australia represented, Mr Kevin Buzzacott, in his Federal Court challenge to the Federal En- vironment Minister’s approval of the expansion of the Olympic Dam uranium and copper mine, which would make it the biggest in the world. Mr Buzzacott (known as Uncle Kevin) is an Aboriginal Elder of the Arabunna Nation in South Australia.

Mr Buzzacott argued that the Minister did not properly consider the impact of the Olympic Dam expansion on the environment, in particular the above ground storage of radioactive tailings waste and the impacts on groundwater resources including the Great Artesian Basin.

Ultimately, the open cut pit will be approximately 1 km deep and 4 km wide, and the radioactive tailings (waste) will be stored above ground covering an area of up to 40 square kilometres.

The court dismissed Mr Buzzacott’s case. However the project was later put on hold by mining giant BHP Billiton after an investment review, due to low commodity prices.

Another important uranium case:

EDO Northern Territory has advised an Aboriginal Corporation in relation to the Ranger Uranium Mine and environmental compliance. This issue is of particular significance because of the Rangers location surrounded by Kakadu National Park.

The Kyodo Senpaku Kaish Case, Australia - whaling

In this long-running case, EDO NSW acted for the Humane Society International Inc (HSI) against Japa-nese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).

The proceedings were brought in the Federal Court of Australia. HSI sought a declaration that Kyodo breached the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act 1999) by whaling in the Australian Whale Sanctuary adjacent to Antarctica and an injunction to prevent them from continuing to kill whales there. In response, Japan claimed that it does not recognise Australia 's sover- eignty over the Antarctic waters which constitute the whale sanctuary.

In a judgement handed down on 15 January 2008, Justice Allsop made a declaration that Kyodo was in breach of Australian law by whaling in the Australian Whale Sanctuary and granted HSI an injunction to restrain Kyodo from further breaches of the EPBC Act 1999.

HSI representatives travelled to Japan to serve the injunction upon Kyodo but so far no enforcement ac- tion has been taken. HSI has the option of taking enforcement action within Australia should the whaling ships enter Australian territorial waters.

McArthur River diversion, Northern Territory – Mining Impacts

In December 2006, Traditional Owners, represented by the EDO Northern Territory, successfully chal- lenged the Minister for Mines and Energy’s decision to approve a proposal to change from an under- ground to an open cut mine and divert the McArthur River, one of the largest rivers in northern Australia. The Gurdanji people are Traditional Owners of the mine site. The Mara, Garrawa and Yanyuwa people are Traditional Owners downriver from the site.

The McArthur river is of immense cultural and spiritual importance to the local Aboriginal people of the Gulf region and a complex set of cultural responsibilities and obligations underpin this relationship. Some of these duties include; maintenance of sacred sites, performance of songs and ceremonies and the burning of country. Harry Lansen, a senior Traditional Owner of the Gurdanji group, believes the di- version of the river is a breach of his duties to protect the area. He said: “If they’re going to make it a big river down there, big dam, they’re doing to kill me, my spirits still there you know, my song and my spirit ...I’ll be sick if they cut the place you know because my spirit’s there, all my songs for crossing the river... I don’t want to see this thing happen there in that McArthur River”. Aside from spiritual responsi- bilities, the river and coast are vitally important to local Aboriginal people for hunting and fishing.

The project was proposed by McArthur River Mining, which operated the existing underground silver, lead and zinc mine, 45 km from Borroloola, a town of 1,000 people and the largest in the remote Gulf Region. The nearest town is Katherine, 665 km away. The mine site contains a lead, zinc and silver de- posit which is potentially the biggest of its type in the world with an estimated 220 million tonnes of ore.

The project was strongly supported by the N.T. and Federal government with then Prime Minister John Howard writing a letter to the Chief Minister praising the economic benefits of the new mine. However the N.T. Environment Minister had major concerns including the “significant and long term risks of con- taminants entering the river and ground water.’ The final proposal had failed to resolve the NT EPA’s chief concern that the mine was located “within the primary channel of a major tropical river”’.

The Traditional Owners challenged the N.T. Minister’s decision to approve the change from under- ground to open cut mining through an amended Mine Management Plan rather than varying or revoking the existing mining authorisation. The court found the original authorisation did not approve open cut mining and therefore ruled the approval invalid.

However in May 2007, two days after the Supreme Court judgment, the N.T. government introduced special legislation to allow the open cut mine to proceed. Despite this, the Traditional Owners continued to fight and took legal action in the Federal Court against the Federal Environment Minister’s approval of the mine. The Full Federal Court, on 17 December 2008, ruled the approval was invalid and had to be reconsidered by the Federal Environment Minister, who subsequently approved the project. This case placed the national spotlight on the mine, environmental regulation and empowered the local community to voice its objections, which were vindicated by the Court.

McArthur River N.T. photo by Carol MacKinney via Wikimedia Commons

The Ralphs Bay case, Tasmania – Threats from Residential Developments

EDO Tasmania represented community group, Save Ralphs Bay Inc., in the Planning Commission hear- ings over a proposed 460-lot canal estate development in Lauderdale, which was the first canal estate proposal in Tasmania. The development was in a declared conservation area and could destroy habitat for resident and migratory shore birds, involve dredging of heavy-metal laden sediments and the removal of recreational areas, including a premier windsurfing location. After over four weeks of hearings, the Planning Commission determined that the proposal was “inherently unsustainable” and recommended that it be refused. The Premier subsequently supported the recommendation and refused to grant a permit for the development.

Other important development cases:

EDO Northern Queensland successfully represented the community around Trinity Beach, next to Tay- lor Point, near Cairns, in their legal challenge to a major residential development proposal for 252 units which was refused. A later application to reconfigure the lot into 39 residential lots was also rejected in 2010. The most recent application for 19 residential lots has been approved with each dwelling to be as- sessed and approved prior to building. Whilst the clients goal was to maintain the headland as undevel- oped they did manage to limit the number of residents to 19 and with conditions.

EDO A.C.T. assisted the Conservation Council ACT Region to successfully challenge a devel- opment approval in the Molonglo Valley which posed threats to a number of threatened spe- cies. The agreement achieved improved protection for the Pink Tailed Worm Lizard and its habitat, and more of the Molonglo River Corridor. Also all storm water systems within the Can- berra suburb of Coombs will be filtered before there is discharge into the Molonglo River.

The Kangaroo Island Council approved a development to install a helicopter landing pad at the south western end of Kangaroo Island to enable helicopters to tour the coastal region. The community group, Eco Action, was concerned about the impact on species listed as endan- gered nationally, such as the White Bellied Sea Eagle, Eastern Osprey and Australian Sea Li- on. EDO SA advocacy led to stricter conditions on the proponent's operations including mini- mum flying heights and exclusion zones around coastal breeding sites.

James Price Point, Western Australia – LNG Terminal

EDO WA and legal firm Slater & Gordon won a major case in the Supreme Court of W.A. to protect James Price Point, near Broome on the Kimberley coast of north-western Australia. They represented The Wilderness Society of WA (Inc) and Mr Richard Hunter, a Goolaraboolooo man and traditional owner.

James Price Point is a calving ground for the world's largest population of humpback whales and home to newly discovered Spinner Dolphins, endangered Hawksbill turtles, dugongs and has a track of different dinosaur footprints preserved in rock.

The court case challenged the approval by the W.A. State Government of the Browse Liquified Natural Gas (LNG) Precinct Proposal at James Price Point by joint-venture partners Woodside Petroleum, Shell, BP, Mitsubishi/Mitsui and PetroChina.

Supreme Court Chief Justice Martin, in August 2013, ruled that three decisions regarding environmen- tal assessment of the proposal were unlawful and therefore invalid. This was because they were made at meetings at which a number, often a majority, of those participating in the decision making were dis- qualified because of their financial interest in the proposal.

Woodside Petroleum had earlier announced in April that it would not proceed with onshore processing at James Price Point.

However the W.A. government has expressed its intention to continue with the project to build a sup- ply base and a gas processing hub on the site and has used compulsory acquisition processes to pur- chase 3,414 hectares.