The law can be a powerful tool in a community’s efforts to protect the environment and ensure development is sustainable. But environmental laws can be complex and bewildering. Legal advice from an EDO can ensure that people are better equipped to use the law appropriately. Initial telephone advice is free or provided at low cost. Expert advice provided by EDOs has helped thousands of clients achieve positive environmental outcomes right across Australia.

The following landmark legal cases highlight the work of EDOs of Australia, which began with EDO NSW in 1985 and spread nationally in the early 1990s.

The Western Downs Alliance Case,  Surat Basin, Queensland – Santos gas field project

Acting for Western Downs Alliance, we successfully negotiated for important environmental conditions to be added to the approval of Santos’s GLNG Gas Field Development Project in the Surat Basin, Queensland.

Western Downs Alliance challenged the Federal Minister for the Environment and Energy’s approval of the project on the basis that the Minister allowed millions of litres of coal seam gas (CSG) waste water from the project to be released into surface water systems such as the stunning and environmentally important Dawson River without having assessed the environmental impacts this would have.

Australia’s environmental laws require that the Minister properly assess a major CSG project’s impacts on water resources (known as the water trigger). Western Downs Alliance argued that the Minister incorrectly formed the view that it was not necessary to assess the impacts of releasing CSG water to surface waters as part of the project approval, and that as a result the approval was unlawful.

The case was scheduled to be heard by a Full Bench of three judges of the Federal Court in Brisbane on Monday 13 February 2017. However, in December 2016, the Minister and Santos agreed to amend the approval by adding important conditions: that the project is prohibited from discharging CSG waste water to any watercourse; and that any proposed release in the future must be assessed by the Minister.

More about the project
Santos plans to develop 6,100 CSG wells across approximately 1 million hectares of land in the Surat Basin in south-central Queensland. This represents a substantial expansion on the 2,650 CSG wells approved for an overlapping (but significantly smaller) area in 2010.

Over the project’s predicted life of more than 30 years, Santos is proposing to extract up to 219 billion litres of water, with potential impacts on the Great Artesian Basin. The Environmental Impact Statement (EIS) for the project outlines proposed methods of managing the extracted water, one of which is to release water from the wells into surface water systems such as rivers and lakes.

Western Downs Alliance argues that the approval of the project was unlawful because the Minister did not properly assess the project’s impacts on surface water.

The EIS notes that the project is likely to have a number of surface water impacts, including:

• increased sedimentation;
• erosion of stream banks;
• surface water contamination, including toxicity to aquatic ecosystems; and
• altered surface water flow.

The Independent Expert Scientific Committee, which was set up in 2012 to provide scientific advice to decision makers on the impact that coal seam gas and large coal mining development may have on Australia's water resources, advised the Minister that there is ‘considerable scientific uncertainty about potential impacts [of this project] on surface water and groundwater and associated ecosystems’. The Committee specifically stated that the potential impacts of discharging water into the Dawson River, including ecological impacts, should be assessed.

By taking legal action, the Alliance has ensured that there will be no release of waste water to surface waters under this project and that any future proposal will require a separate application and assessment.

Links

• Community group’s court action forces stricter environmental protections for Queensland coal seam gas project, media release, 9 January 2017
• Page for this case

The Kyodo Senpaku Kaish Case, Australia – Whaling

On behalf of Humane Society International (HSI), EDO NSW successfully acted in Federal Court contempt proceedings against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).

In November 2015, the Federal Court of Australia ruled that Kyodo was in contempt of Court, and fined the company $1 million. This was the latest development a long running case.

Case history
In January 2008, we successfully represented HSI in Federal Court proceedings which resulted in the Court declaring that Kyodo was breaching Australia’s federal environmental law by whaling in the Australian Whale Sanctuary in the Australian Antarctic Territory. The Court granted an injunction to restrain Kyodo from further breaches of the Federal environment law.

Following the Court’s ruling, HSI representatives travelled to Japan and served the injunction on Kyodo. Despite this, Kyodo has continued its whaling activities in the Australian Whale Sanctuary. No enforcement action was taken pending the outcome of the International Court of Justice hearing into Japan’s whaling program.

In March 2014, the International Court of Justice found that Japan’s whaling program was not in accordance with scientific research programs provided under international law and ordered Japan to cease its whaling program. However, in October 2014, Japan announced its intention to recommence whaling under a new program that it again claims is for scientific research.

With Japan’s whaling program due to recommence around December 2015, HSI sought to enforce the 2008 injunction. On 18 November 2015, the Federal Court ruled that Kyodo is in contempt of Court for continuing to kill whales in the Sanctuary despite the 2008 injunction. The Court fined the company $1 million dollars. Read the judgment. View our case graphic.

Humpback Whale, NOAA

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 Heritage 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 lychee 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 Heritage property.

 Speckled Flying Fox by Tolga Bat Hospital

McArthur River Diversion, Northern Territory – Mining Impacts

In December 2006, Traditional Owners, represented by the EDO Northern Territory, successfully challenged the Minister for Mines and Energy’s decision to approve a proposal to change from an underground 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 down river 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 diversion 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 responsibilities, the river and coast are vitally important to local Aboriginal people for hunting and fishing.

McArthur River N.T. photo by Carol MacKinney

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 deposit 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 contaminants 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.

The Olympic Dam Case, South Australia – Uranium Mining

EDO South Australia represented Mr Kevin Buzzacott in his Federal Court challenge to the Federal Environment 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.

Tarkine Tasmanian Devil Case – Threatened Species

EDO Tasmania represented the Tarkine National Coalition in its appeal against approval of the Venture Minerals Riley Creek iron ore mine in the Tarkine region of north-west Tasmania, home to a population of healthy Tasmanian Devils and one of the world's largest temperate rainforests.

The appeal concerned the impacts of the proposed development on populations of the threatened Tasmanian Devil, and adequacy of proposed water and erosion controls. The appeal was dismissed, however more stringent erosion conditions and measures to minimise impacts on the Devil were imposed.

Tasmanian Devils by Alexandra Edwardes