The old and the new

We are delighted to announce the return of Paul Leadbeter as a partner of the firm. Paul was previously the Director of the Australian Centre for Environmental Law at the University of Adelaide before returning to private practice.

Another new face in our environment and planning team is Amanda Nicholls. Amanda is a recent law graduate who also holds a science degree majoring in environmental biology.

Links with the Indonesian Judiciary

Over the past two months our environmental law consultant, Rob Fowler, has been responsible for training 23 Indonesian judges and environmental officials in environmental law and enforcement.

Another group of 12 judges will undergo the same training in the middle of the year. In between, Rob Fowler and Paul Leadbeter will be making several visits to Indonesia to deliver a number of one-week training courses in environmental law for more Indonesian judges. In the process, Rob and Paul are acquiring considerable understanding of Indonesian environmental law and policy.

New Commonwealth Environmental Laws

In July 2000 the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 will commence operation. This Act comprises over 500 sections and substantially overhauls the Commonwealth's environmental law system. It provides new requirements for the assessment and approval of activities which involve "matters of national environmental significance", and also brings together a wide range of measures concerning biodiversity which previously existed in a number of separate Acts.

1. "Matters of National Environmental Significance"
   There are many activities which presently do not attract Commonwealth environmental assessment (EA) requirements that could do so in the future. The list of matters of significance includes activities which might have a significant effect upon:
   • world heritage sites;
   • RAMSAR wetlands of international significance;
   • nationally threatened species or ecological communities;
   • migratory species;
   • Commonwealth marine areas; and
   • nuclear actions (including uranium mining).
   
   The Commonwealth Environment Minister must make the final determination whether to declare activities to be 'controlled actions' so as to make them subject to the Act's assessment and approval requirements. However, it is up to proponents to refer matters to the Minister. If they fail to do so, they may be subject to civil enforcement proceedings at the initiative of members of the community. Hence it will be necessary for project developers in a wide range of circumstances to become aware of the Act's provisions.

2. The "Significance" Test
   The Commonwealth released a Consultation Paper in October 1999 which outlines how the "significance" test will be applied in relation to each matter of national environmental significance. Of particular interest is the threatened species category, which potentially could apply in a wide range of circumstances. Thus, the Act could give rise to a substantially increased assessment and approval system at the Commonwealth level in relation to new projects. This conclusion is subject to the qualification that the Commonwealth may relinquish these functions in favour of the equivalent State systems through the making of bilateral agreements under the Act.

3. Bilateral Agreements
   The Act contemplates that both its assessment and approval requirements may be excluded from operation where the Commonwealth has entered into a bilateral agreement with a State whereby the equivalent requirements in the State's environmental laws have been accredited by the Commonwealth. There is currently a substantial negotiation process underway between Environment Australia and State environmental authorities with a view to securing the accreditation of State EA processes immediately upon the new Act coming into operation. It remains to be seen whether the States will cooperate with the Commonwealth in this regard, as it may be necessary in some instances for them to amend their current legislation. The Commonwealth Consultation Paper also sets out the "benchmarks" which it is proposed to use to determine whether to extend accreditation to State EA processes.

4. Accreditation of Approvals
   Whilst it is possible for bilateral agreements to also accredit State environmental approval provisions (eg under the Development Act 1993 (SA) and/or the Environment Protection Act 1999 (SA)), the Commonwealth is not currently pursuing such agreements, and will not do so until it has settled the EA bilaterals. Last minute amendments to the legislation in the Senate resulted in a requirement being imposed that environmental approval bilaterals must conform with a management plan adopted and in force under relevant State law and must be submitted to both Houses of the Commonwealth Parliament, where they may be disallowed. These requirements may cause State governments to be cautious about approvals, bilaterals and further negotiations between the Commonwealth and the State will be required if these are to eventuate. Until they do so, the Commonwealth will have wide-ranging responsibility with respect to the granting of environmental approval to activities involving matters of national environmental significance, even if the relevant EA has been undertaken through an accredited State process.

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