It has been a busy few months for environmental law in Tasmania. A number of recent developments are set to shape the way resource management decisions are made and challenged.
Overhaul of regulation of Aquaculture activities in Tasmania
The State government has proposed significant amendments to the way aquaculture activities will be regulated in Tasmania with the introduction of a new enforcement and assessment regime. In addition, higher levies will be also introduced.
From 1 July 2016 the State government shifted all the enforcement and compliance powers in relation to marine farms to the Environment Protection Authority (EPA). This was previously managed by the Water and Marine Farming Division within the Department of Primary Industries, Parks, Water and Environment. The EPA currently regulates in-land hatcheries but will now also take responsibility for marine farms.
In addition to changes in enforcement, the State government is set to overhaul the assessment of proposed marine farms. There has been discussion around making aquaculture a ‘Level 2’ activity under the Environmental Management and Pollution Control Act 1994. Currently, marine farm proposals are assessed by the Marine Farming Planning Review Panel and are not subject to appeals. Level 2 activities are publically advertised and can be appealed to the Resource Management and Planning Appeal Tribunal.
Clarification on the specific changes will only be clear once the legislative amendments are released.
Judicial review of granting mining leases*
(Click here to view the case)
On Friday 26 August 2016, the Full Court of the Supreme Court of Tasmania confirmed that a conservation organisation, Tarkine National Coalition was entitled to a statement of reasons for the Minister’s decision to grant two mining leases in the Tarkine.
The Full Court unanimously dismissed the appeal upholding Justice Wood’s decision at first instance. In doing so, the Court has confirmed that conservation organisations may be entitled to reasons for decisions made under the Mineral Resource Development Act 1995.
The State government argued that the conservation group should not be entitled to a copy of the Minister’s reasons for the decision to grant the mining leases because the granting of the leases did not affect their ‘interests’ at this stage. Interestingly, the State government argued that there are other avenues for groups concerned about the ‘environmental impacts’ of the mining to appeal / review the environmental approval. This was not accepted by the Courts.
This decision reinforces the broad standing to review resource management decisions in Tasmania.
*Minister Administering the Mineral Resources Development Act 1995 v Tarkine National Coalition Inc [2016] TASFC 4
Federal environmental law – the 4WD case*
(Click here to view the case)
On 16 September 2016, the Full Court of the Federal Court handed down their decision in relation to the appeal by the Tasmanian and Commonwealth governments against the decision of Justice Mortimer in favour of the Tasmanian Aboriginal Centre Inc (TAC). The TAC sought review under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) of the decision of the State government to re-open three 4WD tracks in the Western Tasmania Aboriginal Cultural Landscape.
The decision focused on two important points regarding the application of the EPBC Act:
- Was re-opening the 4WD tracks (and associated activities e.g. remediation works) an ‘action’ under the EPBC Act and therefore should be referred to the Federal government for assessment?
- Was Justice Mortimer’s interpretation of “indigenous heritage values” too broad?
The decision tempers the broad interpretation adopted by Justice Mortimer in both respects. The Court’s interpretation of the “government authorisation” exemption under the EPBC Act, largely provides for government policy decisions to avoid scrutiny by the Federal government. The Full Court also held that indigenous heritage values should be given a more restricted interpretation.
Despite this, it does establish that State government actions associated with policy decision can require assessment by the Federal government under the EPBC Act.
This decision will have important implications for the scope of the EPBC Act for proponents who are undertaking activities in compliance with State legislation / approvals.
*Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated [2016] FCAFC 129
What should proponents keep an eye out for?
These recent updates/decisions have broadened the avenues for challenging resource management decisions. In doing so, it is now easier for third parties to challenge decisions made under resource management legislation in Tasmania.
Proponents should familiarise themselves with the amendments to the legislative framework and recent decisions and seek advice to reduce potential avenues for legal challenge.
If you have any queries or would like further information regarding this article, please contact:
Anthony Spence
Principal
M: 0400 545 503
E: aspence@pageseager.com.au
Sarah Wilson
Special Counsel
M: 0428 102 712
E: swilson@pageseager.com.au
