Australia's National environmental legislation: A response to early

Journal of International Wildlife Law and Policy

Volumn 12, Issue 3, 2009, Pages 166-179

  Macintosh, Andrew ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL MANAGEMENT; ENVIRONMENTAL POLICY;

AUSTRALIA;

EID: 70350424941     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880290903202617     Document Type: Article

References (64)

1. Gerard Early, Australia's National Environmental Legislation and Human/Wildlife Interactions, 11(2) J. INT'L WILDLIFE L. & POL'Y 101.
2. Id., at 155.
3. Andrew Macintosh and Debra Wilkinson, ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT: A FIVE-YEAR ASSESSMENT (2005).
4. Andrew Macintosh & Debra Wilkinson, EPBC Act-The Case for Reform, 10(1) AUSTRALASIAN J. NATURAL RES. L. & POL'Y 139 (2005).
5. Early, supra note 1, at 128.
6. AUSTRALIAN STATE OF THE ENVIRONMENT COMMITTEE, AUSTRALIA STATE OF THE ENVIRONMENT 2006 (2006);
7. and AUSTRALIAN STATE OF THE ENVIRONMENT COMMITTEE, AUSTRALIA STATE OF THE ENVIRONMENT 2001 (2001).
8. Queensland Department of Natural Resources and Water, Land Cover Change in Queensland 2006-2007: A STATEWIDE LANDCOVER AND TREES STUDY (SLATS) REPORT (2008);
9. Department of the Environment and Heritage, GREENHOUSE GAS EMISSIONS FROM LAND USE CHANGE IN AUSTRALIA: RESULTS FROM THE NATIONAL CARBON ACCOUNTING SYSTEM 1988-2003 (2005);
10. New South Wales Department of Environment and Climate Change, NSW WOODY VEGETATION CHANGE: 2006 to 2007 Report (2008);
11. New South Wales Audit Office, REGULATING THE CLEARING OF NATIVE VEGETATION (2006);
12. Department of Climate Change, Australian Greenhouse Emissions Information System (AGEIS): Emission results for 1990-2006, (12 April 2009);
13. and United Nations Framework Convention on Climate Change Secretariat, Greenhouse Gas Inventory Data, (accessed 5 January 2009).
14. Early, supra note 1, at 130.
15. Council of Australian Governments, Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment (1997), Article 4 And Attachment 1, Part I.
16. Id., Article 4 and Attachment 1, Part I, clause 4.
17. ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (Cth), ss18 and 18A.
18. Council of Australian Governments, supra note 8, Attachment 1, Part II, clause 27.
19. Commonwealth Auditor-General, THE CONSERVATION AND PROTECTION OF NATIONAL THREATENED SPECIES AND ECOLOGICAL COMMUNITIES, AUDIT REPORT NO. 31 (2007).
20. Id., at 130.
21. Details of all referrals under the EPBC Act are available on the Department's public notices website (http://www.environment.gov.au/epbc/notices/index.html) (accessed 12 December 2008). The Warkworth Coal Mine's EPBC Reference Number is 2002/629.
22. EPBC Reference No. 2001/174.
23. EPBC Reference No. 2005/2001.
24. Minister for the Environment and Heritage v. Greentree (No. 2) [2004] FCA 741;
25. and Greentree v. Minister for the Environment and Heritage [2005] FCAFC 128.
26. From 2010, the regulation of greenhouse gas emissions will be undertaken primarily through the Federal Government's proposed Carbon Pollution Reduction Scheme, which is an emissions trading scheme.
27. Early, supra note 1, at 141.
28. Sarah Fish, David Snashall, and James Streater, OFFSETTING ENVIRONMENTAL IMPACTS TO FACILITATEMINING (2004).
29. New South Wales Development Approval (DA) 300-9-2002i; Rohan Taylor (NSW Department of Planning) (pers. comms. 8 January 2009);
30. and Coal & Allied, NSW Premier Announces Extension to Warkworth Mine, Media Release, 29 May 2003.
31. Western Australian Environmental Protection Authority, KOOLYANOBBING IRON ORE EXPANSION: PORTMAN IRON ORE LTD. (2002).
32. Darren Walsh, APPEALS REPORT: PROPOSED KOOLYANOBBING IRON ORE EXPANSION (2003).
33. Id., at 15.
34. Western Australian Minister for the Environment, and Heritage, Statement That a Proposal May Be Implemented, Koolyanobbing Iron Ore Expansion-Windarling Range and Mt. Jackson, Shire of Yilgarn, Statement No. 000627, 3 June 2003.
35. See also Judy Edwards, Minister Determines Appeals on Portman Mine Expansion, Media Release, 1 April 2003.
36. Approval Instrument for EPBC Reference No. 2001/174, at 3.
37. Early, supra note 1, at 139.
38. Richard Mehan, Portman Ire Ore Ltd., pers. comms. (8 January 2009).
39. Western Australian Minister for the Environment, Statement That a Proposal May Be Implemented, Cataby Mineral Sands Project-Cataby, Shire of Dandaragan, Statement No. 000720, 18 April 2006.
40. Lisa McGrath, Iluka Resources Ltd., pers. comms. (8 January 2009).
41. Minister for the Environment and Heritage v. Greentree (No.2) [2004] FCA 741.
42. and Greentree v. Minister for the Environment and Heritage [2005] FCAFC 128.
43. Minister for the Environment & Heritage v. Greentree (No 2) [2004] FCA 741 at 96.
44. Minister for the Environment and Heritage v. Greentree (No 2) [2004] FCA 741, at 43 and 93-108.
45. See Director-General of the Department of Land and Water Conservation v. Greentree [1998] NSWLEC 30.
46. Director-General of the Department of Land andWater Conservation v. Greentree [2001] NSWLEC 159.
47. Greentree v. Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53.
48. Greentree v. Director-General of the Department of Land andWater Conservation [2002] NSWLEC 93.
49. Director-General of the Department of Land andWater Conservation v. Greentree [2002] NSWLEC 102.
50. Director-General Department of Land and Water Conservation v. Greentree [2004] NSWLEC 584.
51. Minister for the Environment and Heritage v. Greentree [2003] FCA 857.
52. Commonwealth Auditor-General, supra note 12.
53. Macintosh and Wilkinson, supra note 3.
54. Paul Sattler and Colin Creighton, AUSTRALIAN TERRESTRIAL BIODIVERSITY ASSESSMENT 2002 (2002).
55. Some may argue that the refusal or failure to list ecological communities was a product of the fact that a number of nominated communities did not fit within the TSSC's assessment framework. The framework is based on the National Vegetation Information System (NVIS) and is intended to ensure a consistent and verifiable approach to ecological community identification and evaluation. While this approach may have policy merit, the rejection of nominations that did not fit within the framework was inconsistent with the legislative process. The role of the TSSC is to determine whether nominated communities meet the legislative definition of a community and the conservation status criteria contained in the regulations. It cannot unilaterally determine the scope of its powers without regard to the provisions in the Act. One may also question whether the TSSC was acting in a manner consistent with its legislative functions when it provided advice that was inconsistent with the legislation and advocated for legislative reform. Irrespective of the legality of the TSSC's approach, the rejection of nominated communities provides a very partial explanation for the low number of listings. Even if the NVIS framework is accepted, many more ecological communities should have been included on the list.
56. Early, supra note 1, at 130.
57. Department of the Environment and Heritage, ECOLOGICAL COMMUNITIES AND THE EPBC ACT: A NEW APPROACH TO LISTING ECOLOGICAL COMMUNITIES (2006).
58. ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT, s528.
59. ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION REGULATIONS 2000, r7.02.
60. Humane Society International Inc. v. Minister for the Environment and Heritage [2003] FCA 64.
61. See Early, supra note 1, at 133.
62. Department of the Environment and Heritage, supra note 41.
63. Early, supra note 1, at 147.
64. [Name withheld], pers. comm. (7 May 2008).