Environmental impact assessment in the Environment Protection and Biodiversity Act 1999 (Cth)

Environmental and Planning Law Journal

Volumn 16, Issue 5, 1999, Pages 441-467

  Hughes, Laura ^a  

^a NONE

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EID: 0346185998     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (137)

1. G Dent, "Environmental Controls in Australia: the environment and development-in search of balance" in L Marsh, (Ed), The Environmental Challenge, (Longman Cheshire, Melbourne, 1991), p 212.
2. Environment Defender's Office, 1998, Submission on the Consultation Paper, March 1998, Sydney, p 5.
3. Environment Defender's Office, 1998, Submission on the Consultation Paper, March 1998, Sydney, p 5.
4. Environment Defender's Office, 1998, Submission on the Consultation Paper, March 1998, Sydney, p 5.
5. Environmental Impact Assessment is the process of identification and prediction of the potential environmental impacts (including bio-geophysical, socioeconomic and cultural) of proposed actions, policies, programs and projects, so that the information can be communicated to decisionmakers before they approve the proposed actions: N Harvey, Environmental Impact Assessment: Procedures, Practice and Prospects in Australia, (Oxford University Press, Melbourne, 1998), p 2. The process is referred to in the Act as environmental assessment (EA). An Environmental Impact Statement (EIS) is the document that results from the EIA.
6. Not all of the benefits and difficulties of EIA can be dealt with here. For further discussion, generally see: GT Miller, Living in the Environment: An introduction to environmental science, Seventh Edition, (Wadsworth. California, 1992), p 680
7. J Glasson, R Therivel and A Chadwick, Introduction to Environmental Impact Assessment, (UCL Press, London, 1994)
8. RB Beattie, "Everything you already know about EIA (but don't often admit)" (1995) 15(2) Environ Impact Assess Rev 109
9. A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty-first Century, (Cambridge University Press, Cambridge, 1995).
10. Environmental Impact Assessment is the process of identification and prediction of the potential environmental impacts (including bio-geophysical, socioeconomic and cultural) of proposed actions, policies, programs and projects, so that the information can be communicated to decisionmakers before they approve the proposed actions: N Harvey, Environmental Impact Assessment: Procedures, Practice and Prospects in Australia, (Oxford University Press, Melbourne, 1998), p 2. The process is referred to in the Act as environmental assessment (EA). An Environmental Impact Statement (EIS) is the document that results from the EIA.
11. Environment Defender's Office, 1998, Submission on the Consultation Paper, March 1998, Sydney, p 5.
12. Specifically, the following points were agreed upon: • inter-governmental relations on the environment are to be based on the principles of co-operation, effectiveness, efficiency, simplicity, transparency and seamlessness; • the Commonwealth role in environmental matters is to be confined to regulating those proposals having significant impact on "matters of national environmental significance"; • only 6 items of a list of 30 "matters of national significance" will be triggers for Commonwealth involvement, whilst the 23 remaining "matters of national significance" will not; • the Commonwealth will only add items to the list of "matters of national significance" upon consultation with the States; • project approval is to be "streamlined" to rely on accredited State processes; • the changes are to have no impact on the operation of Regional Forest Agreements. J Prest and S Downing, "Shades of Green? Proposals to change Commonwealth Environmental Laws" Research Paper 16 1997-98, Law and Bills Digest Group, Canberra, at 5.
13. Specifically, the following points were agreed upon: • inter-governmental relations on the environment are to be based on the principles of co-operation, effectiveness, efficiency, simplicity, transparency and seamlessness; • the Commonwealth role in environmental matters is to be confined to regulating those proposals having significant impact on "matters of national environmental significance"; • only 6 items of a list of 30 "matters of national significance" will be triggers for Commonwealth involvement, whilst the 23 remaining "matters of national significance" will not; • the Commonwealth will only add items to the list of "matters of national significance" upon consultation with the States; • project approval is to be "streamlined" to rely on accredited State processes; • the changes are to have no impact on the operation of Regional Forest Agreements. J Prest and S Downing, "Shades of Green? Proposals to change Commonwealth Environmental Laws" Research Paper 16 1997-98, Law and Bills Digest Group, Canberra, at 5.
14. Environment Defender's Office, 1998, Submission on the Consultation Paper, March 1998, Sydney, p 5.
15. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
16. Nuclear actions are defined in s 22 of the Act. Amendments to s 22 allow for many nuclear activities to fall outside the requirement for environmental impact assessment. For example, the establishment or modification of a facility for storing spent nuclear fuel or a nuclear reactor for research of production of nuclear materials for purposes other than industrial or medical (eg for defence purposes).
17. Explanatory Memorandum to the Environmental Protection and Biodiversity Conservation Act 1998 (Cth), 1998, cl 69. Further, recommendations about the referral process itself are made by the EDO.
18. Explanatory Memorandum to the Environmental Protection and Biodiversity Conservation Act 1998 (Cth), 1998, cl 69. Further, recommendations about the referral process itself are made by the EDO.
19. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
20. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
21. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
22. Although the Act provides for the review of matters of national environmental significance every five years with a view to adding extra matters (s 28a) the Commonwealth government could still decrease the matters of national environmental significance through amending legislation.
23. This is of course a minimum requirement. Arguably the Australian government has ethical obligations to protect the global environment from degradation initiated in other nations, however such a concept has no direct relevance to the administration of EIA processes under the Act.
24. P Toyne, The Reluctant Nation-environment, law and politics in Australia. (ABC Books. Australia. 1994).
25. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
26. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
27. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
28. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
29. The precautionary principle states that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation: s 3.5.1 IGAE.
30. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
31. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
32. NPI NEPM. cl 8(b).
33. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
34. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
35. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
36. NPI NEPM. cl 8(b).
37. Chapter 2, Pt 4, Div I provides that actions covered by bilateral agreements are not subject to Commonwealth EIA provisions; Ch 3, Pt 5 outlines how bilateral agreements are to be made.
38. Objects of the Act are outlined in s 3(1).
39. See ss 29 and 45-65A.
40. This was expressed by Mrs Ros Kelly, the then Minister for the Environment, at the Environmental Outlook Conference held by the Australian Centre for Environmental Law (ACEL), Sydney, November 1993. Other subsidiary reasons may have been that the Commonwealth wished to make use of the state's infrastructure so as to not duplicate resources; to make use their expertise in on-the-ground environmental management; to reduce uncertainty; and that it would be better for the environment as a whole in Australia.
41. The well publicised cases of Murphyores Pty Ltd v Commonwealth (1976) 136 CLR 1
42. Australia and New Zealand Environment Conservation Council (ANZECC), 1997, National Agreement on Environmental Impact Assessment. ANZECC, Canberra.
43. Australia and New Zealand Environment Conservation Council (ANZECC), 1997, National Agreement on Environmental Impact Assessment. ANZECC, Canberra.
44. Intergovernmental Agreement on the Environment, 1992, AGPS, Canberra. The Preamble to the IGAE states that it aims to provide a mechanism to facilitate a cooperative national approach to the environment; a better definition of the roles of the respective governments; a reduction in the number of disputes between the Commonwealth, the States and Territories on environment issues; greater certainty of government and business decision-making; and better environmental protection.
45. For example, the "information" required to be given is not particularised: "Clear guidance" on EIA could constitute a one page flier. The Victorian Guidelines for Environmental Impact Assessment (made under s 10 Environment Effects Act 1978 (Vic) exemplify how it is possible to produce EIA guidelines without disclosing much information which is of benefit to the public or the proponent. Another example is evident in cl x: an agency could decide that adequate opportunity for the public is to allow them to contribute for only one week before the assessment process was complete. As will be dealt with below, the Act is a prime example of how easily public participation can be dispensed with, in contradiction of this clause.
46. I Thomas, Environmental Impact Assessment in Australia: Theory and Practice, Second Edition, (The Federation Press, Leichardt, NSW, 1998), p 92.
47. Australia and New Zealand Environment Conservation Council (ANZECC), 1996, Guidelines on the need for and level of Environmental Impact Assessment in Australia, ANZECC, Canberra.
48. Australia and New Zealand Environment Conservation Council (ANZECC), 1997, National Agreement on Environmental Impact Assessment, ANZECC, Canberra.
49. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
50. A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty-first Century, (Cambridge University Press, Cambridge, 1995).
51. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
52. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
53. R Fowler, "Act of convenience threatens ecology". The Australian, 25 June 1999.
54. Exemption provisions will be dealt with in the fourth part of this article.
55. A study by the Bureau of Industry Economics, supported by the Business Council of Australia was carried out because one possible explanation for the relatively small number of new major resource projects was the impact of the EIA process on the economic viability of projects. It was found that the "direct compliance cost of the assessment process is not a significant problem for big companies, especially if environmental assessment is integrated with feasibility studies. These costs represent only a small proportion of total project costs". Bureau of Industry Economics, 1990, Research Report 35: Environmental assessment-Impact on major projects, APGS. Canberra. Findings were endorsed in a draft Report of the Industry Commission, Construction Costs of Major Projects. October 1990. This conclusion is supported by environmental scientists who state that whilst direct and indirect costs may exceed $1 million on large projects, this is often only about 0.1 per cent capital costs, and by contrast, engineering and feasibility design studies may cost as much as 10 per cent of capital costs.: JG Henry and GW Heinke. Environmental Science and Engineering, Second Edition. (Prentice-Hall International, USA, 1996), p 696. See also AL Brown and GT Donald, 1989, To make Environmental Assessment Work More Effectively, Institute ot Applied Environmental Research. Griffith University, Brisbane, p 23. However, the BIE study found that delay was the most substantial cost element of the process, possibly adding as much as 10 per cent to the total project costs, and a substantial disincentive to future projects. Reasons included the number of responsible authorities involved; lack of coordination between responsible authorities; and lack of uniform standards leading to conflicting demands.
56. See s 133.
57. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
58. Section 48A(4).
59. Section 59. 63.
60. House of Representatives Hansard, Environment Protection and Biodiversity Conservation Bill 1999. Cognate Bill, Second Reading Consideration in Detail and Third Reading, 29 June 1999, p 6038, Mr Kelvin Thompson.
61. Section 65.
62. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
63. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
64. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
65. Tasmanian Conservation Trust v Minister for Resources (1995)55 FCR 516 at 537.
66. In Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA, 86. The court found in this case that the decision whether the proposal significantly affects the environment is a decision for the Action Minister not the court Unless the decision is manifestly unreasonable in the Wednesbury sense, it will not be set aside.
67. See Ch 2, Pt 3 of the Act.
68. Sections 68-71.
69. Section 68.
70. Sections 69, 71.
71. Explanatory Memorandum to the Environmental Protection and Biodiversity Conservation Act 1998 (Cth), 1998, cl 69. Further, recommendations about the referral process itself are made by the EDO.
72. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
73. Sections 75 and 130.
74. Section 87.
75. B Dunne, "Uranium Mining and Environmental Impact Assessment: The Jabiluka Project and Application of the Environment Protection (Impact of Proposals) Act 1974 (Cth)" (1996) 13(5) EPLJ 341, at 342.
76. Section 515.
77. Section 68 (3).
78. Previously, s 37.
79. See provisions in Ch 2, Pt 4, Div 4 of the Act.
80. See provisions in Ch 2, Pt 4, Div 3. sub-div A-D of the Act. M More information about the formation and operation of RFAs is found in J Tribe, "The Law of the Jungles: Regional Forest Agreements" (1998) 15(2)EPLJ 126.
81. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
82. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
83. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
84. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
85. A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty-first Century, (Cambridge University Press, Cambridge, 1995).
86. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
87. BJ Preston, "Some Elements of Effective Environmental Laws" (1987) 4(6) EPLJ 280, at 285.
88. This comment was made by the High Court in Scurr v Brisbane City Council (1973) 47 ALJR 532 at 535-536
89. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
90. B Boer, "Social Ecology and Environmental Law" (1984), I EPLJ 233 at 250-251.
91. M Jones, "Planning for Sustainable Development" (1997) 34(3) Australian Planner 150 at p 151.
92. See also WC Sullivan et al, "Assessing the Impact of Environmental Impact Statements on Citizens" (1996) 16 Environ Impact Assess Rev 171 for a discussion of the level of understanding citizens can gain of complex EIAs.
93. This idea will be developed further below.
94. This problem would be at least partially rectified by the passage of the Regional Forests Agreement Bill 1998 (Cth), however the provisions in the Bill requiring publication of the RFA are not sufficient to enable full public participation in decision to approve an agreement and do not allow for public input into the assessment and approvals process for a proposal covered by a RFA.
95. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
96. Environment Defender's Office, 1998, Submission to the Senate Environment, Recreation, Communications and the Arts Legislation Committee on the Environment Protection and Biodiversity Conservation Bill, 1998, Sydney, Ch 6, p 4.
97. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
98. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
99. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
100. Space does not allow for a detailed discussion of the monitoring provisions which should be implemented. A great example of an alternative statutory model to that of the
101. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
102. See ss 489-495.
103. S Streets and A DiCarlo. "Australia's First National Environmental Protection Measures: Are We Advancing, Retreating or Simply Marking Time?" (1999) 16(1) Environmental and Planning Law Journal pp 25-52.
104. A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty-first Century, (Cambridge University Press, Cambridge, 1995).
105. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
106. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
107. A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty-first Century, (Cambridge University Press, Cambridge, 1995).
108. R Raff, "The Renewed Prominence of Environmental Impact Assessment: A Tale of Two Cities", (1995) 12 (4) EPLJ 241, p 245.
109. A Delicaet, "The New Canadian Environmental Assessment Act: a comparison with the environmental assessment review process" (1995) 15 Environ Impact Assess Rev 497, p 502.
110. Tasmanian Conservation Trust v Minister for Resources (1995) 85 LGERA 296. The implications of this case for judicial review of environmental decision-making are discussed in Raff, fn. 113.
111. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
112. See A Fleming. "Commonwealth Assessment of Forest Operations After Gunns", (1996) 13(4) EPLJ 309, p 314.
113. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
114. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
115. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
116. Section 123 Environmental Planning and Assessment Act 1989 (NSW).
117. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
118. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
119. Administrative Review Council (ARC), 1994, Environmental Decisions and the Administrative Appeals Tribunal, Report No 36, AGPS, Canberra.
120. Administrative Review Council (ARC), 1993, Review of Commonwealth Environmental Impact Assessment Decisions, Canberra.
121. For example, much work is being carried out to develop models for strategic environmental assessment, cumulative impact assessment, global impact assessment, cultural impact assessment and social impact assessment.
122. Section 87 (3)(e) and (6).
123. D Hickie and M Wade, "Development of Guidelines for Improving the Effectiveness of Environmental Assessment" (1998) 12 Environ Impact Assess Rev 267, p 282. A model of how a standardised format could work, and further suggestions relating to it, including an "environmental action plan" is also outlined in this article.
124. There is case law that requires the EIA to be of a certain quality, as explained in M Raff, "Ten Principles of Quality in Environmental Impact Assessment" (1997) 14(3) EPLJ 207. However, it is submitted that it is easier to challenge an inadequacy as a procedural defect rather than as not living up to the standard of reasonableness as required by common law. 1
125. DP Lawrence, "The Need for EIA Theory-Building" (1997) 17 Environ Impact Assess Rev 79
126. NPI NEPM. cl 8(b).
127. It is important to note that such a proposal is still within the bounds of "cooperative federalism". There is a principle of co-operative federalism called the "principle of subsidiarity" which means that, in areas which do not fall within its exclusive competence, the federal body takes action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States. It is submitted that for the reasons outlined earlier in article, the States cannot sufficiently achieve the objective of best practice EIA in Australia, and that is why Commonwealth legislation needs to be introduced. See M Longo, "Cooperative Federalism in Australia and the European Union: Cross-pollinating the green ideal" (1997) 25 FLR 127.
128. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
129. J Battle, "Environmental Law and Cooperative Federalism in the United States" (1985) 2(4) EPLJ 302, at 307.
130. Under the Act, the Minister may delegate its power to other Commonwealth agencies in accordance with accredited management plans, which are disallowable by either house of parliament.
131. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
132. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
133. See also the assessment of Linda Pearson in "Incorporating ESD Principles in Land-Use Decision-Making:Some Issues after Teoh" EPLJ 47-53 who quotes G Bates, Environmental Law in Australia (Butterworths, 1995) as authority for the proposition that where environmental harm is a possibility, the principle means the proponent "must prove that harm will not occur, rather than any opponent having to prove that it will" (at 47).
134. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
135. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
136. P Stein, "An Antipodean Perspective on Environmental Rights" (1995) 12(1) EPLJ 50, p 52,
137. A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty-first Century, (Cambridge University Press, Cambridge, 1995).