Law Reform ·

Politicians: Back our 7 key reforms to Qld environmental laws

20 September, 2017

Queensland's pending state election is an opportunity for us all to speak out in support of our state's environmental laws. If you care about healthy communities, the protection of nature, clean energy and a healthy climate, sign our petition now!

We call on all political parties to back 7 key reforms to Queensland environmental laws

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  1. Citizen Rights - Strengthen community rights to information, objection, appeal and enforcement, especially for coal seam gas, mining and planning. Preserve “own costs” rules in the Planning and Environment Court.
  2. Fair Democratic Processes - Ban developer and corporate political donations. Strengthen and restore powers to the State Environment Department.
  3. Great Barrier Reef and Nature - Strengthen laws against unsustainable development, water pollution and carbon pollution. Protect pristine rivers, national parks, and wildlife. Expand “no go” areas for mining and gas.
  4. Safe Climate and Clean Energy - Transition Qld's economy away from fossil fuel extraction or burning, towards renewable energy and sustainable jobs.
  5. Excessive Tree Clearing - Protect our trees, wildlife and Reef by introducing strong legal protections against excessive tree clearing. Reform ineffective “offset” laws.
  6. Clean Up Queensland - Audit legal compliance of coal and gas projects. Protect groundwater and clean air. Introduce waste disposal levy. Ban environmental offenders from holding environmental licences. 
  7. Access to Justice - Ensure EDO Qld can continue to provide communities with the legal assistance they need to protect their environment by increased government funding to EDO Qld.

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Authorised by Jo Bragg, CEO of Environmental Defenders Office Queensland, 8/205 Montague Rd, West End, QLD 4101


1. CITIZEN’S RIGHTS

Landholders celebrate historic Land Court recommendation to reject Acland mine expansion

© EDO Qld

Acland Case shows need to strengthen citizen rights

Communities play an essential watchdog role in protecting our environment as well as holding government and industry to account. They help ensure environmental laws are enforced and a higher standard of decision-making, free from corruption. Don’t just take our word for it; the Productivity Commission thinks so too. [i] Unfortunately, there are lots of barriers and challenges to communities effectively taking this role. Even though the Acland case below was successful, its shows why we need to: expand community access to information, protect and expand appeal rights and make court costs fair.

The New Acland Coal Land Court Case 2017 [ii] is an unprecedented win for EDO Qld client Oakey Coal Action Alliance (OCAA), a group of more than 60 local farmers and residents from the Darling Downs. After the largest public interest case of its kind in Australian history, on 31 May 2017 the Court agreed with OCAA and other community objectors and recommended the Stage 3 expansion of New Acland’s controversial coal mine should not be allowed to proceed. The recommendation is now under challenge in the Supreme Court by New Acland Coal.

The win highlighted the importance of community objection rights to mining projects as without those rights, the case could not have occurred at all and no recommendation of refusal would have followed. The Court case exposed gross exaggerations of jobs estimates (680 net jobs, not 2993 as set out in New Acland’s Environmental Impact Statement). And only through the case and expert evidence brought by the community, not by the earlier Coordinator-General’s assessment, were the major shortcomings with the groundwater impact predictions exposed, such that the Stage 3 should not proceed given the risks to the surrounding landholders. You can read more about the key findings of the case. [iii]

The case shows a whole lot of barriers to the community that need to be reformed. Gaining access to monitoring information was a long struggle. Gaining access to Court transcripts without a prohibitory fee was a 3 month struggle. New Acland Coal and the Environment Department failed to respond effectively to a total of 90 complaints by the community. The case showed how hard it is to win and what needs to be reformed to enable community groups to exercise their rights effectively in the public interest.

Make community access to information easier

(1)            Make the public register under the Environmental Protection Act 1994 (EP Act) effective and expand it by administrative and legislative reforms detailed by EDO Qld. [iv] For example, a director needs to be made formally responsible for the Public Register, staff training and to ensure requested documents are provided to the public within 2 business days.

(2)            Create an effective public register for the Nature Conservation Act 1992 (NC Act) by administrative and legislative reforms that include, amongst other things, a requirement to publish all permits and applications for permits under the framework.

(3)            Create a whole of government public policy requiring environment and natural resources departments to detail on their websites all documents available under public registers or similar, and processes to obtain those documents.

(4)            Create a whole of government public policy requiring officer training and implementation of the “push model”, a fundamental principle of the Right to Information Act 2009 (RTI Act), which places an onus on agencies to proactively push information out to the community, with the formal RTI Act applications required only as a last resort.

Protect and strengthen community appeal rights

(5)            Protect and strengthen both existing long-standing community objection and appeal rights to mining under the EP Act and Mineral Resources Act 1989 and also community submission and appeal rights to coal seam gas/petroleum activities under the EP Act and Petroleum and Gas (Production and Safety) Act 2004 .

(6)            Extend community merit submission and appeal rights, by legislative reform, to include:

(a)            exploration activities for all resource activities with potential significant environmental impacts on protected areas, endangered species, the Reef and groundwater under the EP Act;

(b)           all applications for prescribed Environmentally Relevant Activities (ERAs) that are State concurrent ERAs made under planning legislation or the EP Act;

(c)            material change of use in priority development area under Economic Development Act 2012;

(d)           material change of use in a State development area under the  State Development and Public Works Organisation Act 1971 ; and

(e)           implementing a threshold requiring impact assessable development (see [84] under planning); and

(f)             all water licences , including groundwater licences [79].

(7)            Bring the assessment of mining projects into line with other environmental impact assessment processes, by providing for a post-approval determinative Court appeal process , rather than the current administrative role held by the Land Court. The current process leaves final decisions on mining applications to the relevant Minister and Department after the objection has been heard and determined by the Court, which threatens wasting Court and community resources.

(8)            Protect and expand community legal standing rights (i.e. rights to take action in Court) to enforce breaches of all planning, environmental, resources, development and natural resources laws.

Make court costs fair

(9)            Retain general “own costs” rule for cases in the Planning and Environment Court (PE Court) so that legitimate community groups can go to PE Court without fear of costs.

(10)        Retain PE Court discretion to award costs against those polluters subject to successful enforcement proceedings in that PE Court. Expand the application of this provision so it applies to community or third party enforcement proceedings for breaches of the EP Act and NC Act by legislative amendment to those Acts.

(11)        Change the Land Court provisions as to costs to “own costs” provisions with limited express exceptions (similar to PE Court provisions) by legislative amendment to the Land Court Act 2000.

(12)       Extend free court transcripts and exemptions from filing fees in all State Courts to all parties who are non-profit community groups or groups represented by community legal centres, by amending the Recording of Evidence Regulation 2008 and the Uniform Civil Procedure Rules 1999 .

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2. FAIR AND DEMOCRATIC PROCESSES

NSW example shows how to ban developer donations

For many years in Queensland donations by property developers and corporate interests to political parties and politicians have harmed community confidence in State and local decision making. Those donations should be banned in Queensland.

Former NSW Premier Nathan Rees banned developer donations in NSW, “because the people of NSW were entitled to a planning and governance system free of innuendo and corruption. Nothing corrodes public confidence more than a belief that favourable decisions can be bought. It is the definition of corruption”. [v]

Ban developer donations

(13)        Reform the regulation of political funding, expenditure and donations by amending the Electoral Act 1992 to make it unlawful to receive donations:

(a)             from property developers, resource industry representatives, alcohol, gambling and tobacco industries; or

(b)            in amounts above $5000 for a registered party and $2000 for an elected member or candidate; or

(c)            from individuals not currently appearing on the Australian Electoral Roll or an entity that is not an Australian Constitutional Corporation.  

(14)        Amend the Local Government Act 2009 by introducing a requirement that Local Government members do not use their position or information gained from their position for their benefit or the benefit of a member, friend, political party or other related entity.

Reduce the ‘revolving door’ between industry and government

(15)        Implement a new Bill which provides for restrictions on Qld parliamentarians and senior public sector executives such that they are prevented from registering as lobbyists for four year after leaving these positions. ‘Lobbyists’ should be defined to include those who work for industry associations.

Improve accountability and strength of Crime and Corruption Commission

(16)        Amend the definition of “corrupt conduct” under the Crime and Corruption Act 2001 so that the definition is not constrained by section 15(1)(d) requiring that the conduct would be if proved either a criminal offence or a disciplinary  breach. Adopt a similar definition as in the NSW Independent Commission Against Corruption Act 1988.

(17)        Provide for a general rule that hearings by the Crime and Corruption Commission (CCC) be held in public, to ensure transparency and public confidence in the CCC, through amendments to the Crime and Corruption Act 2001.

Introduce Right to a healthy environment

(18)        Introduce a new Human Rights Bill which includes the:

(a)            right to a healthy environment;

(b)           right to public participation in decision making;

(c)            right to public access to information;

(d)           right to transparency and accountability in governance and decision making; and

(e)           clear recognition of the rights of Aboriginal and Torres Strait Islander people of Queensland.

Increase power of State Environment Department and reform Coordinator-General’s powers

(19)        Allow the Department administering the Environmental Protection Act 1994 (EP Act) and on appeal or objection the Court, to make conditions contrary to those proposed by the Coordinator-General by legislative amendment to the EP Act.

Effective administration

(20)        Provide that the Environment Department, not the Coordinator-General  who promotes development, is responsible for overseeing environmental assessment of coordinated projects by amending the State Development and Public Works Organisation Act 1971.

(21)        Increase number of State Environment Department public servants and indigenous rangers.

(22)        Restore administration of protected areas to the Environment Department, rather than its current position with the Department of National Parks, Sports and Recreation which is potentially fostering policies that centre on tourism rather than environmental conservation.

Consultation with Indigenous People

(23)        Implement a whole of government policy requiring that consultation about a proposed plan or development includes, in addition to consulting with the public, specific recognition of the need to confer with the Aboriginal and Torres Strait Islander traditional custodians authorised to speak for the relevant country to protect biocultural values on land and in watercourses.

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3. GREAT BARRIER REEF AND NATURE

 Bleached coral (foreground) and normal colony (background), Keppel Islands, Great Barrier Reef

© Wikimedia Commons

We need laws that put the Reef and precious natural areas first

Without an effective Reef protection policy, identified no-go areas for resource activities, the protection of key rivers and key national parks, and a safer climate policy – we are negligent towards our state’s treasured natural wonders. Without strong protection, we risk losing these precious areas. For example, our Great Barrier Reef, a natural asset we all know, is already under immense pressure thanks to mass coral bleaching caused by climate change, as well as a declining resilience to other impacts like excessive nutrients from upstream catchments.

Everyone loves the Great Barrier Reef. Not only that, a recent study by Deloitte valued the economic, social and iconic values of the Great Barrier Reef at $56 billion, with a contribution to the Australian economy in excess of $6.4 billion as well as supporting some 64,000 jobs. [vi]

Lindeman Island National Park is also threatened by a proposed state government sale of 37 hectares of national park to developers.

The value of the sustainability of our precious natural areas far outweighs the short-term gain of a fading industry, like coal, and our laws must recognise this before it’s too late. It’s time to focus on the future and put the Reef and precious natural areas first.

Reef Protection Policy

(24)        Take all action available to reduce greenhouse gas emissions facilitated in or as a result of products from Queensland. Commit to no new or expanded fossil fuel extraction and use. See IV of this document for further policy actions needed to address climate change.

(25)        Implement all the Reef Water Quality Taskforce recommendations, particularly Recommendation 5 to implement regulations that:

(a)            set minimum nitrogen pollution reduction standards/practice changes across all agricultural industries;

(b)           set nitrogen pollution limits in each river catchment, which are lowered until 2025 targets are met;

(c)            require all new agricultural, industrial, infrastructure and urban developments to have no impact on Reef water quality;

through amendments to the Environmental Protection Act 1994  (EP Act) and Planning Act 2016 frameworks.

(26)        Restore vegetation protection laws, see [61-67] especially to protect Burnett-Mary, Eastern Cape York and Fitzroy Reef catchments by legislative amendment.

(27)        Commit to enforcing regulation of Reef water quality impacts in Queensland under the EP Act Chapter 4A powers available, which for too long have not been utilised to ensure compliance by irresponsible operators.

(28)        Stop excessive coastal development through implementing enforceable state level mapping under the Planning Act 2016 framework that prohibits greenfield development along our coastlines that is not essential to public health or safety.

(29)        Prohibit any major development of ports, including capital dredging at Cairns and Townsville Ports, until the health and resilience of the Great Barrier Reef has improved, and not before the Outlook Report is finalised in 2019.

(30)         Prevent dredge spoil from being utilised to develop priority ports through land reclamation. Amend the Sustainable Port Development Act 2015 to remove the example of ‘land reclamation’ as a suggested form of beneficial reuse.

No go areas for resource activities

(31)        Provide landholders and Traditional Owners with the right to say ‘no’ to mining and gas proposals on their land by amendments to Mineral Resources Act 1989 and Petroleum and Gas (Production and Safety) Act 2004.

(32)        Maintain strict, no go areas for petroleum, gas and mining activities in national parks, and around domestic and rural infrastructure.

(33)        Provide for strict no go areas for petroleum, gas and mining activities including pipelines and infrastructure as follows:

(a)            in and within 10km of all public and private protected areas including national parks, conservation reserves, nature refuges, and areas of high biodiversity by amendments to the Nature Conservation Act 1992 (NC Act);

(b)           on good quality agricultural land by specific amendments to the Regional Planning Interest Act  2014;

(c)            within 10km around towns of over 500 people by specific aments to the Minerals and Energy Resources (Common Provisions) Act 2014;

(d)           in key water catchments, wetlands and rivers by amendments to the Water Act 2000;

(e)           in locations suitable for renewable energy projects by identifying those locations in State and regional Plans and by linked amendments to resources legislation;

(f)             around rural infrastructure; and

(g)            for small villages or individual landholders, minimum areas must be set to avoid nuisance to occupiers.

Protect pristine rivers

(34)        Introduce effective protection from resources (mining and gas), agricultural activities and other inconsistent uses of all previously protected ‘wild rivers’ areas such as in Cape York and the Channel Country, along with any additional rivers able to be demonstrated as being ‘pristine’. Implement by introducing new Pristine Rivers legislation and declarations that adequately protect these rivers from potentially impacting industries, including gas, after adequate consultation with all affected stakeholders; particularly traditional owners.

Protect national parks

(35)        Repeal the power to declare ‘special management areas’ in national parks under the NC Act, to restore the full operation of the cardinal principle.

(36)        Keep private development, accommodation or facilities outside, not inside, national parks to maintain their integrity.  Implement by amendments to the NC Act.

(37)        Do not allow the privatisation of any national parks, including Lindeman Island as this may seriously jeopardise the protection afforded to those areas. Implement by amendment to the NC Act by preventing the revocation of any national park declaration over an area, ensuring that national park areas cannot be reduced but can be extended.

(38)        Ensure that ecotourism is subject to the cardinal management principles by amending the NC Act and amend the ecotourism definition in the NC Act section 17 to specifically exclude resorts and hotels and include only small scale no net impact ecotourism.

(39)        See point [33(a)] requesting the prevention of pipeline construction or operation in national parks.

(40)        See point [22] requesting restoration of administration of protected areas under the Environment Department, rather than its current position with the Department of National Parks, Sports and Recreation which is potentially fostering policies that centre on tourism rather than environmental conservation.

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4. SAFE CLIMATE AND CLEAN ENERGY IN QUEENSLAND

 © J Petrobas, Cyclone Debbie Horrific Aftermath Footage, [online video] https://youtu.be/D1aLrg06V9k

Cyclone Debbie shows Queensland not immune to climate impacts

Climate change poses a significant threat to not just the Great Barrier Reef, but most of our diverse and naturally-rich environment. [vii] Queensland needs a safer climate policy and to support the fast and smooth transition to renewable energies to be better prepared for severe weather events, changes in weather patterns, ocean acidification and temperature rise. We need to stop new and expanded fossil fuel extraction to reduce our climate impacts for all of us – and for those across the world – to avoid dangerous climate change.

Extensive damage by Cyclone Debbie was a sobering reminder of the vulnerability across Queensland to extreme weather events that threaten to become more severe as our climate changes. Queensland Government estimated an economic loss of $2 billion to the State from Debbie. [viii] The enormous cost of protecting against and repairing the impacts of severe weather events will only rise alongside climate change. We need to swiftly transition away from fossil fuels and to sustainable energy sources. 

Safe Climate - Policy

(41)        Legislate a Queensland Climate Change Act including;

(a)            a long-term target to achieve net zero greenhouse pollution well before  2050 and interim carbon pollution reduction targets;

(b)           a framework for monitoring, reporting and verification to ensure transparency and accountability and drive continuous improvement;

(c)            a requirement that all government decision making and policies must consider and further the achievement of the emissions reduction target.

(42)        Prohibit approval of new and expanded fossil fuel extraction by providing that any application for an environmental authority for new or expanded exploration or production of fossil fuels (coal, gas, oil, shale oil etc) is prohibited and must not be accepted or processed. Implement by amendments to the Environmental Protection Act 1994 (EP Act).

(43)        Utilise power under the Northern Australia Infrastructure Facility Act 2016 Investment Mandate Direction 2016 to direct the Northern Australia Infrastructure Facility not to provide financial assistance to any project proposal involving extraction or burning of fossil fuels in Queensland.

(44)        Commission the preparation of a White Paper on the impacts of climate change on the Queensland economy to 2050 with scenario based analysis under various emissions reductions levels.

(45)        Protect Queensland’s forests and woodlands against excessive tree clearing with strengthened laws, for example see V.

(46)        Require baseline assessment, monitoring and public reporting of fugitive and migratory methane emissions, a dangerous greenhouse gas, across chain of production and transportation from relevant industries, including unconventional gas industries, through amendments to the EP Act.

(47)        Improve energy efficiency and smart climate adaptation through mandatory green building standards introduced into the Building Act 1975 to require energy efficient, climate smart building design standards applicable to all developments, including those under state government control or regulation.  Ensure that planning approval cannot be granted unless climate smart building standards are demonstrated as being met in planning application material.

Ensuring smart urgent development of renewable energy industry

(48)        Introduce strict statutory standards under the Building Act 1975 that regulate the sales and quality of construction and materials utilised for small, medium and large scale renewable energy developments in Queensland, to ensure this industry develops to a high standard for durability into the future.

(49)        Provide for a Solar Code under the State Development Assessment Provisions, and a trigger for SARA to be a concurrence agency to regulate medium and large scale solar projects, to minimise impacts to high quality biodiversity and agricultural land while also protecting optimum sights for the effective integration of these projects into our energy system. Consider protecting ideal, lowest impact renewable energy sites as ‘Key Resource Areas’, as provided for fossil fuels.

(50)        Remove unnecessary regulatory hurdles faced by the renewable energy industry, particularly commercial operators in urban areas and community energy projects, for example:

(a)            amend the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 to allow body corporates to engage energy service providers for longer period of time than other service providers. There is currently a limitation such that body corporates cannot engage a service provider for more than 1 year, which acts as a disincentive for the uptake of renewable energy as it is not enough time to recover investment;

(b)           amend the Land Title Act 1994 to allow site leases for renewable energy installations to be an overriding interest over mortgages and other interests affecting a property, to promote the uptake of renewable energy as a separate interest on a property such that it is not impacted by the property mortgage ; and

(c)            include provisions protecting solar access in the State Development Assessment Provisions.

Sun powered Queensland: Policy pledge

(51)        Commit to implementing the policies of Sun Powered Qld to better support the fair and fast transition to renewable energy –

(a)    Establish a target of 50% renewable electricity by 2030 as a floor and not a ceiling, and implement policies that lead to 100% renewable electricity sooner.

(b)    Legislate short, medium and long-term state renewable energy targets in five year tranches, to give communities, business and investors certainty, along with providing for reforms to Qld laws to facilitate increased uptake of renewable energy (italics is additional EDO Qld policy ask).

(c)     Legislate reviews of the targets at least every five years, to determine how the target can be increased.

(d)    Implement the ‘Linear’ pathway considered by the Qld Government Renewable Energy Expert Panel, to give the best chance of exceeding the target floor and maximise cumulative carbon pollution reduction.

(e)     Not allow a pro-rata share of the National RET to contribute to the Queensland renewable energy target and instead increase the pre-2020 auction from the recommended 400 MWH to align Qld state target with National target of at least 20% by 2020. We estimate this to be around 2500 MWH.

(f)      Provide incentives to households and business to stimulate greater uptake of clean energy such as solar PV, storage and electric vehicle infrastructure. Including adopting the Victorian Government’s model for a ‘fair price for solar’.

(g)    Strong support for mid-scale decentralised renewable developments that can collectively lead to rapid installations.

(h)    Establish a community power network and community power hubs (including a community energy grant funding program) to support the delivery of renewable energy solutions led by communities and in social and community housing, rental properties, apartment-style living and isolated regional communities.

(i)       Develop just transition and economic diversification plans to guide people who work in affected industries and their communities as they transition from coal-power to renewable energy, including financial assistance.

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5. CONTROLLING EXCESSIVE TREE CLEARING AND PROTECTING WILDLIFE

© Lee Curtis www.ataglance.com.au

 Qld’s tree clearing shame needs rehabilitation

Our wildlife, waterways, Reef and climate all depend on Queensland having strong, certain laws regulating tree clearing. Right now it’s clear our laws are not strong enough; Queensland has the highest level of tree clearing in Australia – and was recently likened to Brazil in terms of land clearing rates. [ix] This same report found we are not meeting national and international commitments to conserve our biodiversity – or reduce greenhouse emissions. Further, a 2015 Queensland State of Environment Report found 61 additional fauna species were listed as vulnerable, endangered or extinct in the wild, alongside 275 threatened flora species from 2007 to 2015 in Queensland. [x]

Our ‘offsets’ framework is also providing another legislative hole through which we are potentially losing significant wildlife habitat and environmental values. A good example of this is the environmental authority for the Adani Carmichael mine, which approved destruction of significant Black Throated Finch habitat by providing an offset at a non-specified period after impacting the habitat. This could mean that the Finch’s habitat is destroyed in the development of the mine, and then the offset is not provided for some years afterwards; where are these endangered birds supposed to go in the interim period when they have no habitat? What’s worse, it is not clearly understood why the Finch prefers the habitat on the site for the Carmichael mine, greatly compromising the potential to effectively offset this habitat.

Protecting wildlife and its habitat

(52)        Reform terminology - we need one term for “essential habitat” and “critical habitat” as use of two similar terms about habitat for wildlife is confusing. We say “critical habitat” should be used, as the most  meaningful  term since it refers broadly to habitat that is essential for the conservation of a viable population of protected wildlife or community of native wildlife.

(53)        Commit to undertaking mapping of critical habitat across all tenures in Queensland. Declare all critical habitat mapped on State land as critical habitat via regulation under the Nature Conservation Act 1992 (NC Act). Remove the right to seek compensation for declaration as critical habitat on State land under the NC Act.

(54)        Require a fauna survey and engagement of spotter catchers for clearing of any habitat, including in urban areas, through amendments to the NC Act, Planning Regulation 2017 and State Development Assessment Provisions. Require that a new statutory code of practice is developed and observed providing requirements for accreditation and requirements of spotter catchers in undertaking their duties.

(55)        Amend the NC Act such that any vegetation clearing over 2ha in size of critical habitat is ‘take’ of protected wildlife under s88 NC Act and therefore an offence under the NC Act. Note that there are defences available for this provision so it only limits and does not stop all clearing of critical habitat.

(56)        Until terminology is reformed, strengthen protection of essential habitat  under the Vegetation Management Act 1999 (VM Act) across all areas of Queensland,  especially the urban footprint:

(a)            remove  exemptions to vegetation clearing regulations  for example, remove the exemptions which allow clearing of essential habitat for broadly defined ‘’urban purpose in an urban area’, ‘PDA-related development’ and resource activities in the Planning Regulation 2017; and

(b)           give the state Department of Environment concurrence agency power (with sufficient resources to fulfill this power, or delegation to accredited local governments) with respect to all development applications which may impact essential habitat.

(57)        Pass legislation to amend the NC Act to introduce the new private protected land area ‘Special Wildlife Reserve’ which allows private landholders and conservation groups to ensure the protection of private land that is high value wildlife habitat to an equivalent level as national parks.

(58)        Ensure the protection of climate refugia from clearing through amendments to the VMA which require the mapping and protection from clearing of areas that are modelled to promote species persistence and ecosystem resilience in a changing climate.

(59)        Insert specific prohibition of the use of electric current, chemicals or potentially toxic smoke to drive away flying-foxes through amendments to the NC Act.

(60)        Require that cumulative environmental impacts from all proposed development impacts must be considered in development assessment through amendments to the Environmental Protection Act 1994 (EP Act) and Planning Act 2016.

Encourage restoration and revegetation

(61)        Require revegetation of properties in Great Barrier Reef catchments through amendments to applicable codes under the VMA and Planning Act 2016 and providing for this to be a mandatory condition on any relevant permits provided under the Planning Act 20016, to assist in the recovery of the Great Barrier Reef through reduced impacts to water quality and to improve the health of regional ecosystems and threatened species habitats.

Review offsets framework

(62)        Insert provisions in the Planning Act 2016 and the Environmental Offsets Act 2014 that specify:

(a)            offsets are only allowed where a development is essential in the public interest (e.g. health and safety), otherwise the development should not go ahead if environmental impacts cannot be avoided or sufficiently mitigated;

(b)           amendments to implement scientifically justified ratios for offsets;

(c)            offsets must be for any ‘residual impact’, not only ‘significant residual impacts’;

(d)           offsets must be timely, in advance of habitat destruction or impact and protected in perpetuity; and

(e)           clear requirement on all offsets programs for frequent and transparent monitoring and reporting as to their effectiveness.

(63)        Undertake an audit of all offsets programs currently in effect against the increased standards recommended above, and commit to bringing defective programs into line with the increased standards.

(64)        Require that decisions for coordinated projects under State Development and Public Works Organisation Act 1971 are bound by the Environmental Offsets Act 2014 framework.

Excessive tree clearing

(65)        Amend the planning framework to undo the changes made by the previous government to weaken vegetation protections, for example amend the Planning Regulation 2017 to revert the trigger for state referral back to 2ha for both reconfiguration of a lot and material change of use clearing applications, rather than the current 5ha.

(66)        Extend Category R designation urgently to all waterways suffering poor water quality in Queensland due to impacts of clearing and sediment and nutrient run off, including but not limited to all rivers in Great Barrier Reef catchments. Reintroduce strong protection of high value regrowth under the VMA framework.

(67)        Implement the reforms outlined in the Land Clearing Alliance Pledge:

 

Land Clearing Alliance Policy:

(a)       Use all available means to immediately protect woodlands and trees currently under threat from tree clearing, including declarations prohibiting clearing in sensitive Queensland areas;

(b)       Permanently protect remnant/old-growth woodlands and trees from being cleared;

(c)        Permanently protect high conservation value woodlands and trees from tree clearing;

(d)       Apply a consistent approach to protection of trees and bushland across all sectors responsible for excessive tree clearing (including agriculture, urban development and mining);

(e)       Ensure strong monitoring, enforcement and resourcing of tree clearing laws;

(f)        Remove high risk self-assessable clearing codes, particularly for ‘thinning’;

(g)       Continue to improve mapping for vegetation and halt exemptions via property maps;

(h)       Establish a land carbon fund and resource relevant state departments to research land carbon opportunities for Queensland land holders;

(i)         Ensure all clearing applications are referred to the Australian Government for assessment under Federal environmental law; and

(j)         Commit to regular (minimum annual) full reporting of clearing data and impacts

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6. CLEAN UP QUEENSLAND

Dairy farmer Grant Wieck concerned about groundwater loss from Acland mine expansion

© EDO Qld/ Renate Hottman-Schaefer

Clean-up Queensland, starting with our biggest offenders

Mining rehabilitation, waste levies and groundwater impact regulation – Queenslanders need our government to clean-up Queensland’s act, starting with our biggest environmental offenders.

We need to strengthen conditions to protect health, regular compliance audits of mining and gas companies and fair enforcement of environmental laws.

We need to end illegal dumping and re-introduce the waste levy, improve the financial assurance and mining rehabilitation framework and prevent environmental offenders from holding authorities/licences. We also need to better protect groundwater for farmers.

Here are a few of the many examples why we need to clean-up Queensland now:

·          Rehabilitation of mines and enforcement of laws – already Queensland has been left in debt and is responsible for the management of some 15,000 abandoned mines. This is, in part, due to inadequate conditioning and enforcement. Conditions on environmental authorities, one of two main state approvals needed for projects to proceed, are often proven to be unenforceable or ineffective due to reasons including poor wording and failure to reflect national agreed limits. For example, in the Acland Land Court win, serious flaws were identified surrounding government’s compliance and enforcement activities around the environmental authority approvals. We need conditions that are more effective, enforceable and actively enforced to make a difference.

·          Environmental offenders and the reintroduction of a waste levy – Four Corners recently opened a can of worms for the State Government and interstate waste dumpers, [xi] uncovering the need for a waste levy to be introduced to stop our poorly-managed waste systems being taken advantage of by companies in other states. Further, two separate reports by EarthJustice [xii] and Ernst and Young [xiii] have identified serious flaws in our legal system that weaken the effectiveness of protecting Queensland against  operators  with poor records under the Environmental Protection Act 1994.

·          Protection of groundwater – Queensland’s Land Court has recommended the rejection of two mining-related applications based on serious concerns surrounding groundwater impacts. Flaws in both the Alpha and New Acland Stage 3 coal mine groundwater modelling were exposed by community groups in Court, despite not being picked up by the state government in their approval process. Cases like this also demonstrate the need for ‘no-go’ areas for resource activities, like with Acland which has high-value agricultural land.

Strengthen conditions to protect health

(68)        Amend the Environmental Protection Act 1994 (EP Act) to ensure that all environmental authority conditions limit polluting emissions  by requiring:

(a)            baseline monitoring and reporting mandatory prior to commencement of any site impact;

(b)           real-time monitoring and reporting on air emissions from production and along the transport line (e.g. loading facilities, coal train and truck lines and ports); and

(c)            the most up-to-date science and standards be met.

(69)        Commit to update the Environmental Protection Policies (EPP) within 6 months to reflect the current agreed National Environmental Protection Measures (NEPM) standards, particularly EPP (Air), and make them mandatory minimum standards.

(70)        Amend existing environmental authority conditions within 6 months to reflect the most recently agreed NEPM standard for air and water.

Compliance audit of mines and major projects and fair enforcement of environmental laws

(71)        Commission an independent audit, published transparently, of compliance with environmental authority conditions for mines, petroleum and gas projects and power stations, including also an investigation into regulatory capture with respect to these industries and state agencies.

(72)        Ensure conditions of all approvals are actively enforced through ensuring sufficient resources are provided to compliance and enforcement activities across relevant departments, including state Department of Environment and Heritage Protection (DEHP), the Coordinator-General’s office, Department of Natural Resources and Mines (DNRM) and Department Of Infrastructure, Local Government and Planning (DILGP).

(73)        Amend the EP Act to ensure that environmental approvals cannot be granted unless all management plans and impact studies have been assessed and approved. This would replace the current policy of granting approvals which require later development of impact studies or management plans, and the strong focus on adaptive management without adequate knowledge of impacts pre-approval. Approvals should not be granted without full understanding of impacts prior to approval.

(74)        To avoid “industry capture” of our assessors and regulators, create and implement a policy that requires Compliance and Assessment divisions of the state DEHP and the state DNRM to engage with the community and affected persons. Include six monthly publicly transparent performance monitoring of meaningful indicators of such engagement.

End illegal dumping and introduce waste levy

(75)        Ensure that waste is properly managed and valued, by:

(a)            imposing a waste levy as introduced by the Bligh Government, of at least $35 per tonne.

(b)           ensuring that the Waste Reduction and Recycling Amendment Act 2017 is effectively implemented and commit to achieving further waste reduction mechanisms; and

(c)            auditing and reporting on illegal dumping or receipt of waste in South-East Qld and taking effective enforcement action.

Improve financial assurance and mine rehabilitation framework

(76)        Commit to implementing improvements to the financial assurance (FA) and mine rehabilitation framework under the EP Act:

(a)            review the FA framework to:

·    remove the provision of discounting on any FA;

·    ensure all companies, irrespective of size or rating, are required to provide FA;

·    increase the contributions to an amount that sufficiently protects the state against default by resource companies and also provides sufficient funds to direct to the rehabilitation and management of the 15,000 abandoned mines; and

·    include a requirement to provide for contingency and residual risk to account for uncertainties in the accuracy of mine closure and rehabilitation plans.

(b)           prohibit final voids and require rehabilitation of impacts to ground and surface water resources as far as possible;

(c)            provide a clear regulatory requirement on the government to manage environmental and community impacts of existing and newly abandoned mines, with third party enforceable rights where management is not adequate to sufficiently avoid environmental or community harm;

(d)           provide clear, strict regulations to restrain and improve accountability and transparency around use of ‘care and maintenance’ status and enforceable regulatory requirements to undertake annual progressive rehabilitation at a ratio of 1:1 (disturbed area to rehabilitated area); and

(e)           extend the financial assurance and rehabilitation framework improvements to all high risk industries, including refineries (where significant risk was demonstrated through the actions around the Queensland Nickel refinery in 2016).

Prevent environmental offenders from holding authorities/licences

(77)        Amend the criteria for who can be granted an environmental authority under the register for ‘suitable operators’ in the EP Act to require consideration of actions of the company, or directors of the company (or of the parent companies or their directors) that occurred in other jurisdictions, including internationally.

(78)        Amend EP Act to provide that companies with environmental authorities for high risk activities (e.g. mining, gas extraction, industrial facilities) must report annually against criteria to see if they continue to satisfy suitable operator status. If they no longer satisfy all suitable operator requirements then they must have their authority or licence cancelled except for requirements to rehabilitate the site.

(79)        Insert a provision in the EP Act providing for mandatory removal from the suitable operator register of any operator or person of whom the operator is partner, where the operator, or an executive officer of the operator independently, is found guilty of a disqualifying event that involves serious or material environmental harm in Queensland, or serious willful or negligent environmental harm outside of Queensland, including internationally.

Protecting groundwater

(80)        Provide that taking or interference with groundwater by petroleum, gas and mining industries may only occur if in accordance with the principles of ecologically sustainable development (ESD), and that it is subject to public submission and appeal rights as for water licences under Water Act 2000 chapter 2. Implement by amending the Water Act 2000.

(81)        Ensure that each environmental authority for petroleum and gas activities includes a condition that requires extraction of groundwater (incidental or intentional) to cease if at any time drawdown of groundwater exceeds a predetermined sustainable drawdown limit in an aquifer within the lease area, determined by reference to the drawdown predicted by modelling done by OGIA (in a cumulative management area) or the proponent, or accepted by the Land Court. Implemented by amending the EP Act.

(82)        Place an enforced cap on the volume of water able to be extracted from the Great Artesian Basin by resource and agricultural activities, through amendments to the Water Act 2000 and a review of the management of all water rights such that the cap can be enforced.

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7. GOOD PLANNING

Good planning, great future for Queensland

Queensland needs to ensure good planning for a sustainable future, and that starts with good laws.

Providing meaningful community involvement in decision making, through submissions and appeal rights, ensures that decisions are of a higher quality and less open to influence by corruption. This has been backed by the Productivity Commission as well as the NSW Independent Commission Against Corruption.

However, under Queensland’s current planning laws, recently the community of Chinchilla were powerless to have their concerns heard on the expansion of a nearby waste facility to store an additional 15 million tonnes of coal seam gas waste and salt. [xiv]

We Kando Pty Ltd to store an additional 15 million tonnes of coal seam gas waste and salt.

The facility was approved under codes, providing no opportunity for community concerns or information to be considered in the decision-making process including a Court appeal.

Cattle farmers with adjoining property to the facility are highly concerned with the impact of this expansion to the Condamine River, which is connected to Murray-Darling Basin.

Good planning is essential

(83)        Increase community certainty in the planning system by removing the following wide discretions for state or local government to:

(a)            provide exemption certificates from assessment;

(b)           allow a developer to choose who decides their application through ‘alternative’ assessment managers; and

(c)            prescribe via regulation a ‘minor change of use’ that is not a material change of use and therefore does not need development approval (s284(2)(a) Planning Act 2017);

and remove discretions for the developer to:

(d)           ‘opt out’ of providing information requested by an assessment manager or referral agency; and

(e)           include broadly any ‘ancillary uses’ under a development approval – reinstate the more certain definition of ‘use’ as ‘incidental to and necessarily associated with the use of the premises’, as provided under the Sustainable Planning Act 2009.

(84)        Require that all development proposals, above an agreed threshold, are impact assessable in all local government areas, to ensure the community are not locked out of submission and appeal rights. Implement through a stakeholder discussion about the threshold looking at size, risk, environmental values and then by amending  the Planning Regulation 2017;

(85)        Restore requirement that for impact assessable development, the decision maker must not make a decision that conflicts with the planning scheme unless there are ‘sufficient grounds’ to approve the application despite the conflict. Reinstate the definition of ‘impact assessment’ to clarify that it must be an assessment of environmental effects and proposed methods of avoiding or minimizing the effects. Implement this by amending the Planning Act 2017;

(86)        Create a policy on economic modelling and economic assessment, for projects over a threshold, to ensure that the economic costs and benefits of proposals are properly and realistically assessed. This policy is to be developed with input from local government and community stakeholders, and the final policy to be adopted by the State Planning Department and encouraged to be adopted by local governments.

(87)        Ensure that the principles of ecological sustainability are retained as a key purpose of the Planning Act 2017 framework and are required to be considered in all decision making.

(88)        Strengthen good planning  and achievement of the objects of the Planning Act 2017 by amending the Act to:

(a)            reintroduce the requirement that each fresh draft regional plan is accompanied by a publicly released State of the Region report that meaningfully evaluates economic, social and ecological indicators; and

(b)           reintroduce the requirement that draft new or amended planning schemes are accompanied by public release of planning studies that provide information on the need for the new scheme or amendments and the social, economic and ecological impacts of changing the scheme.

(89)        As stated in [9] ensure costs rules for the PE Court remain that each party pays their own costs in planning appeals.

(90)        As stated in [V] ensure good environmental outcomes from planning and development decision making by protecting critical and essential habitat from development.

(91)        If a strategic assessment is undertaken for South East Queensland, ensure extensive, transparent studies, subject to independent peer review, of all environmental values included in the strategic assessment and consultation is undertaken on all key decisions, including the terms of reference.

Increase power of State Environment Department and reform Coordinator-General’s powers

(92)        Allow the Department administering the EP Act, and on appeal or objection the Court, to make conditions contrary to those proposed by the Coordinator-General by legislative amendment to the EP Act.

(93)        Provide that the Environment Department, not the Coordinator-General who is required to promote development, is responsible for overseeing environmental assessment of coordinated projects by amending the State Development and Public Works Organisation Act 1971.

(94)        Amend the Economic Development Act 2012 to:

(a)            specify that the Minister for Economic Development Queensland (MEDQ) must avoid impacts on a matter of state or local environmental significance when:

·       making a development scheme for a Priority Development Area (PDA);

·       declaring development to be PDA-associated development for a priority development area; or

·       deciding a PDA-development application. 

(b)           Require that all PDA- development applications, including PDA-associated development applications, for a material change of use are subject to public notification and third party appeal rights;

(c)            Provide third party rights to seek an enforcement order or declaration in the PE Court as to whether a PDA development offence has been committed.

(95)        Amend the State Development and Public Works Organisation Act 1971 to:

(a)            specify that the Coordinator-General must avoid impacts on a matter of state, local or national environmental significance when:

·       making a development scheme for a state development area;

·       drafting terms of reference and assessing an environmental impact statement or impact assessment report;

·       issuing an environmental approval, an amended environmental approval;

·       preparing an assessment report; and

·       imposing conditions on an environmental approval.

(b)           require that all development that is material change of use in a state development area is subject to public notification requirements and third party appeal rights;

(c)            provide third party rights to seek an enforcement order or declaration in the PE Court to remedy or restrain a contravention of an enforceable condition;

(d)           repeal sections which exclude the operation of provisions of the Judicial Review Act 1991;

(e)           replace the term ‘environmental effects’  with ‘environmental harm’ as defined in the Environmental Protection Act 1994.

No devolution of Commonwealth environmental approvals power

(96)        Refuse any proposed devolution or delegation of Commonwealth environmental approval powers to the State Government. (Keep bilateral State and Commonwealth assessments for controlled actions under the Environment Protection and Biodiversity Conservation Act 1999).

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8. ACCESS TO JUSTICE

 Frank and Lynn Ashman, landowners and leading objectors to the Acland mine expansion

© EDO Qld/ Renate Hottman-Schaefer

Communities need free legal support

EDO Qld has spent the past 25 years using the law to stand up for the environment on behalf of rural and urban Queenslanders. We are leading experts in environmental and planning law, offering an essential – and free – basic frontline service across the State.

While Queensland is fortunate to have a robust legal system that aims to be fair and honest, for the average citizen it is not always easy to navigate, nor is it cheap. By educating communities about legal rights under environmental laws, we increase their capacity to make the most effective use of the law.

Every year we provide free advice to hundreds through our advice line and run education events attended by thousands. As the State’s leading environmental legal centre, we are the one place in Queensland where anyone can seek both advice and representation for public interest environmental legal matters.

Our work provides a major contribution to social justice and to a better understanding by decision-makers of the costs and benefits of development and resource extraction upon affected communities.

We receive no federal funding so, more than other community legal centres, we need extra state funding to meet the growing needs of Queenslanders. We have a long waiting list for assistance and we cannot help all of the people who require legal advice to protect the law in the public interest.

 “First I didn’t know what to do and then we were told about the EDO. They guided us through the legal process and helped us to understand what’s lawful and what’s not. For me it’s been tough ... I don’t know what we’d have done without their support”  - Paola Cassoni, Grazier, Bimblebox Nature Reserve

"In the sometimes seemingly isolated struggle to protect our natural landscapes, it is indeed very heartening to see such a committed professional team fighting on our behalf and on behalf of the planet" - Peter Burke, conservation land owner, Sunshine Coast.

Continue and expand funding for non-profit EDO Qld and community groups

(97)        Continue and expand government funding of community legal centre EDO Qld in order to provide non-profit environmental frontline legal services to rural and urban Queenslanders. 

(98)        Continue the provision of funding for environmental conservation groups through Community Sustainability Action Grants.

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[i] Productivity Commission 2013, Major Project Development Assessment Processes, Research Report, Canberra, 249. Independent Commission Against Corruption (NSW) 2012, Anti-corruption safeguards and the NSW planning system, Sydney.

[ii] Environmental Defenders Office Queensland, Key findings in New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection, 7 June 2017 http://ow.ly/onGH30eYbGC.

[iii]As above.

[iv] Environmental Defenders Office Queensland, Actions required to restore the effectiveness of the EP Act public register http://ow.ly/4Q2a30eYbvg

[v] Nathan Rees, Why a ban on developer donations safeguards democracy, The Sydney Morning Herald (online), 11 August 2014 http://www.smh.com.au/comment/why-a-ban-on-developer-donations-safeguards-democracy-20140811-102ntk.html

[vi] Deloitte: Access Economics, At what price? The economic, social and icon value of the Great Barrier Reef, 26 June 2017 http://ow.ly/j8oi30eYcel.

[vii]Intergovernmental Panel on Climate Change, Fifth Assessment Report (AR5), Climate Change 2014 Synthesis Report Summary for Policymakers, 2014 https://www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf.

[viii] Francis Tapim, Cyclone Debbie likely to cost Queensland budget $1.5 billion, ABC News (online), 24 April 2017 http://www.abc.net.au/news/2017-04-24/cyclone-debbie-cost-repair-bill-curits-pitt-state-budget/8466192 .

[ix] Reside April E., Beher Jutta, Cosgrove Anita J., Evans Megan C., Seabrook Leonie, Silcock Jennifer L., Wenger Amelia S., Maron Martine (2017) Ecological consequences of land clearing and policy reform in Queensland. Pacific Conservation Biology.

[x] Queensland Government, Queensland State of the Environment 2015: In Brief, p.24, https://www.ehp.qld.gov.au/state-of-the-environment/pdf/soe-2015-in-brief.pdf .

[xi] Caro Meldrum-Hanna, Deborah Richards and Anne Davies, Trashed: The dirty truth about your rubbish , Four Corners (online), 16 August 2017 http://www.abc.net.au/4corners/stories/2017/08/07/4711891.htm .

[xii] Earth Justice and Environmental Justice Australia, Can the Adani Group be trusted to comply with environmental laws? The Adani Group’s global environmental record , 29 October 2015 http://ow.ly/u0zh30eYcDW .

[xiii] Department of Environment and Heritage Protection, Suitable Operator Process Review – Outcomes Report, June 2016.

   [xiv] http://www.abc.net.au/news/2017-08-20/nsw-medical-waste-being-dumped-on-darling-downs/8821160.
Authorised by Jo Bragg, CEO of Environmental Defenders Office Queensland, 8/205 Montague Rd, West End, QLD 4101
(This page was updated on 14 September 2017).

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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