Environmental law in Australia

Description

Full Title Copyright Preface Table of Cases Table of Statutes Table of Contents Part A The Development of Environmental Law: Institutions, Influences and Instruments Overview Chapter 1 The Growth of Environmental Law Introduction A role for lawyers and the courts The development of environmental law Chapter 2 Environmental Law: The Social and Legal Context Introduction Governance and law The doctrine of the separation of powers The Crown Native title Aboriginal land rights Overcoming private rights: the vexed question of compensation Compensation for environmental restrictions Compensation for acquisitions of property The social context: framing environmental policy The influence of science Non-government organisations (NGOs) Tortious actions against environmentalists and protesters The media Local government Environmental rights as human rights Rights of nature: ethics and environmental law The public trust Translating environmental policy into environmental law Legislation and legal instruments The role of the judiciary Interpreting environmental legislation Statutory aids to construction Using principles of common law in dispute resolution Merits review Matters of policy Specialist environmental courts and tribunals Chapter 3 Environment Protection and the Common Law Introduction The importance of property Ownership and management of natural resources Creation of proprietary and permissive interests The effect of environmental legislation on common law rights Common law actions Nuisance and trespass Nuisance Public nuisance Multiple nuisances Negligence The defence of statutory authority Statutory schemes for liability Common law remedies Alternatives to common law actions Chapter 4 International Environmental Law Introduction Sources of international environmental law International conventions/treaties International custom General principles of international law Judicial decisions and the teachings of publicists Compliance and enforcement The sovereignty of nations Global trade and environment protection The influence of international law in Australia Part B Implementation of Environmental Law Overview Chapter 5 Federal Governance and Environment Protection Introduction Commonwealth legislative powers in respect of the environment The trade and commerce power External affairs The corporations power Financial powers Special purpose grants Taxation Federal spending powers People of any race Coastal waters Fisheries Acquisition of property on ‘just terms’ Other heads of power State legislative powers in respect of the environment The Constitution s 90 The Constitution s 92 Commonwealth places The Constitution s 109 The implied nationhood power The COAG agreement Cooperative federalism National policies and strategies Ministerial councils The Inter-Governmental Agreement on the Environment Chapter 6 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Introduction Application of the Act Actions The referrals process Consultation Significant impact The minister’s decision The assessment process Federal–state cooperative arrangements Bilateral agreements Ministerial declarations Regional Forest Agreements Strategic assessments Controlled actions Environmental assessment of actions Assessment of Commonwealth actions that are not controlled actions Assessment by agreement with a state or territory of actions that are not controlled actions The approvals process Criteria for decision-making under the Act Conditions of approval Monitoring and Enforcement Chapter 7 Environmental Legislation: Purpose, Structure and Content Introduction The purpose of environmental law The effect of National Competition Policy Mutual recognition The structure of environmental law Definitions in environmental law Different legislative regimes may apply to the same activity The objects of legislation Statutory functions Instruments of environmental management Strategic or forward planning Project evaluation and licensing Licences, property rights and market-based approaches Market-based instruments Property agreements and covenants Creating protected areas Public participation in environmental management Whole-of-government approaches to environmental management Conclusion Chapter 8 Ecologically Sustainable Development: The Template for Environmental Management Introduction The world conservation strategy Sustainable development as a global ideal ESD in Australia ESD as a legal concept Process or outcome? ESD in decision-making ‘In accordance with’ ‘Applying’ ESD The ‘public interest’ ‘Balancing’ is an executive function (subject to judicial review) Practical application of the principles of ESD Why sustainability? Is becoming ‘sustainable’ too expensive? Sustainability in decision-making A ‘whole-of-government’ approach to decision-making Tools for implementing sustainability in decision-making Strategic planning Strategic environmental assessment Project design Codes, guidelines and standards Standards need to reflect government policies Green Certification Schemes Translating sustainability into conditions of consent Adaptive management as a condition of development consent Environmental assessment — projects Government procurement The precautionary principle Threats of serious or irreversible environmental damage The precautionary principle in practice The burden of proof Caution and prevention Intergenerational equity Conservation of biological diversity and ecological integrity Improved valuation, pricing and incentive mechanisms Conclusion Part C Environmental Assessment: Strategic and Project-based Overview Chapter 9 Strategic Environmental Planning Introduction Allocating Crown land and resources Crown land Crown resources Environmental and resource management plans Codes of practice and guidelines Resource agreements Property agreements Environmental planning Environmental planning instruments State and regional environmental planning Local environmental planning Environmental considerations in land use planning Integrated strategic planning National strategies and policies Strategic planning and project control Chapter 10 Development Control Introduction Development control in environmental planning legislation General scheme of development control Assessing the environmental impacts of development New South Wales Victoria Queensland South Australia Australian Capital Territory Western Australia Tasmania Northern Territory Planning agreements Offsets Integrated assessment for major projects Special development legislation Appeals Chapter 11 Environmental Impact Assessment Introduction Determination of need for EIA Interim protection pending EIS Inquiries EIA Content The role of EIS in decision-making State-based EIA New South Wales Queensland Australian Capital Territory Northern Territory Victoria South Australia Western Australia Tasmania Adequacy of EIA Review of environmental aspects of proposals Appeals against EIA requirements Common criticisms of EIA Preparation of the EIS by the proponent EIA comes too late in the decision-making process Public participation Time and cost factors Post-decision monitoring and management Conclusion Part D Protection of Biodiversity Overview International obligations for protecting habitat Domestic approaches Species approach to biodiversity conservation The legislative approach to biodiversity conservation Chapter 12 Protected Areas Introduction Commonwealth protected areas Bioregional planning Inventories of Commonwealth land World heritage The Great Barrier Reef Ramsar wetlands Biosphere reserves Commonwealth reserves Commonwealth heritage places Overseas places of historic significance to Australia National heritage places Conservation agreements Conservation zones Access to biological resources in Commonwealth areas State and territory protected areas Introduction Australian Capital Territory New South Wales Queensland Northern Territory South Australia Tasmania Victoria Western Australia Marine and aquatic reserves Forest reserves Management of reserves Offences and enforcement Chapter 13 Native Vegetation Introduction Regulatory controls South Australia Australian Capital Territory New South Wales Queensland Victoria Western Australia Planning provisions Trees Offsets for Clearance of Native Vegetation Offsets are a ‘last resort’ Offsets under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Crown leases Chapter 14 Native Wildlife and Threatened Species Introduction Commonwealth responsibilities Trade in wildlife and endangered species Interstate trade in wildlife Quarantine and biosecurity Commonwealth fisheries and marine areas The Antarctic Treaty (Environment Protection) Act 1980 (Cth) Threatened species and communities Migratory species Cetaceans Listed marine species Wildlife conservation plans Eradication and control of non-native species State and territory legislation Introduction Native wildlife Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia Exemptions for the preservation of traditional Aboriginal customs Threatened species Flora and Fauna Guarantee Act 1988 (Vic) Other states Identification of threatened species Nominations for listing Listing of threatened species, populations and ecological communities and key threatening processes Critical habitat Recovery and threat abatement plans Biodiversity and land use planning Species impact statements (NSW) Biodiversity certification of planning instruments (NSW) Evaluating applications for development Part E Environmental Management: Protecting Natural Assets and Environmental Values Overview Chapter 15 Pollution Control Part A: Pollution from land-based sources Introduction National policies for management of pollution National Environment Protection Council (Environment Protection and Heritage Council) National Environment Protection Measures Implementation of national measures Enforcement of national measures State legislation Modern approaches to pollution control Defining pollution Environmental harm Managing pollution: strategic approaches Translating strategies into action Industry plans, programs, systems and schemes: an overview Review of decisions Enforcement Part B: Marine pollution from marine-based sources MARPOL Rights of intervention Enforcement Responsibility and liability for damage Supplementary Fund Criminal liability Offshore Petroleum Sewage, garbage, harmful substances and air pollution Radiation Ozone-depleting substances Other hazardous substances Dumping at sea Ballast water Chapter 16 Waste and Contaminated Lands Part A: Waste management Introduction Waste minimisation and resource recovery Product stewardship and extended producer responsibility Product stewardship Waste activities, facilities and transport International movement of hazardous substances and waste Imported waste Remediation or mitigation of damage Part B: Contaminated land Introduction Planning controls Assessing, reporting and managing contamination Site audits Appeals Chapter 17 Energy and Climate Change Introduction The Climate Change Convention and the Kyoto Protocol Eligible emissions reduction activities Domestic legislative initiatives National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) The Carbon Farming Initiative (CFI) Energy Energy efficiency Demand side management Carbon capture and storage Planning for climate change Climate litigation Are greenhouse gases ‘pollution’ under existing law? Climate change and impacts on property rights How might common law remedies be used in climate-induced litigation? Judicial review of decision-making where climate change is a ‘relevant factor’ Climate change in merits appeals Climate change in criminal prosecutions Conclusion Chapter 18 Management of Natural Resources Introduction Environmental management of natural resources The planning system as the traditional focus for natural resources management Cumulative impacts Water resources The Living Murray Water efficiency Fisheries Coastal protection Mining and petroleum Coal seam gas (CSG) Nuclear energy Forests Soil conservation Part F Environmental Litigation: Enforcement and Accountability Overview Chapter 19 Standing in Environmental Litigation Introduction The traditional approach Property and economic interests Social and cultural interests Statutory rights and entitlements Standing granted by legislation Modification and expansion of the standing rules Reappraisal by the courts Statutory relaxation of the standing rules Action by or with the consent of the Attorney-General Class and representative actions Taking part in proceedings Action by a ‘friend of a parry’ Intervenors Joining parties to the proceedings Chapter 20 Enforcement of Environmental Laws: Remedies for Regulators Introduction Administrative remedies Administrative orders for environment protection Other administrative action Civil remedies Enforcement orders Civil penalty provisions Enforceable undertakings Criminal enforcement Introduction Investigation and proof of offences Causation Classification of offences Offences involving mens rea Vicarious liability Corporate environmental crime Vicarious liability of directors and managers for offences committed by the corporation Liability as an accessory Double jeopardy Privileges against self-incrimination and exposure to penalties Defences Due diligence Honest and reasonable mistake of fact Other statutory defences Corporate defences Sentencing General approach to sentencing Additional sentencing options Chapter 21 Civil Enforcement: Remedies for Citizens Introduction Civil enforcement Criminal proceedings Civil remedies Injunctions Interlocutory injunctions Declaration Prerogative writs Damages Orders for restoration or remediation Costs in civil litigation What is ‘public interest’ litigation? Indemnity costs Protective costs orders Security for costs Legal aid and pro bono assistance Chapter 22 Challenging Environmental Decision-making Introduction Internal review or reconsideration Merits appeals Costs in merits appeals Evidence and expert witnesses Alternative dispute resolution Judicial review Reasons for decisions Legislative denial of judicial review (‘privative clauses’) Natural justice or procedural fairness Other procedural irregularities Want or excess of power Certainty in decision-making Relevant and irrelevant considerations Improper purposes and ulterior motives Manifest unreasonableness Dealing with government policy Delegation of decision-making Effect of a finding of invalidity Index