‘If you have a degraded environment, you’re impoverished’: Justice Brian Preston, Peter Hannam ENVIRONMENT EDITOR, THE SYDNEY MORNING HERALD August 14, 2015 – Brian Preston, chief judge of NSW Land and Environment Court, joins Peter Hannam for a chat over lunch……. The Land and Environment Court was the first so-named court in the world when it was established in 1979, according to Ben Boer, Emeritus Professor at Sydney Law School and Preston’s first lecturer on environmental law, and a long-time friend and collaborator. There are now about 700 such courts globally.
But long before he got the top job at the court, he helped found another key organ of environmental law: the Environmental Defender’s Office of NSW.
It was the EDO that last week won a ruling in the Federal Court that found Environment Minister Greg Hunt had not properly considered advice on two threatened species, the Yakka skink and the ornamental snake, when approving Adani’s huge $16 billion Carmichael coal mine in Queensland.
The verdict prompted Prime Minister Tony Abbott to declare that courts were being used to “sabotage” mining projects, adding that Australia “must, in principle, favour projects like this”. The NSW Bar rejected the comments..
While our lunch preceded Mr Abbott’s outburst, Preston defended the importance of judicial independence, and later remarked that miners too often view environment checks as merely red tape.
Preston makes time for our lunch between his court duties, ongoing research for a book on environmentally sustainable development, and his work for a global effort to find ways the law can be used to curb climate change. He also teaches biodiversity law at Sydney University, and has helped develop environmental law in China and Thailand – two nations particularly in need of regulatory control –……..
He says that having a specialist court with judges well-read in environmental issues does not imply – as some miners argue – that developers won’t get a fair hearing.
“You should be environmentally literate,” he said. “All courts strive to make the right decision and you’re more likely to make that if you’ve got more knowledge.”……..http://www.smh.com.au/environment/lunch-with-justice-brian-preston-20150812-gixcdb.html
ISDS provisions have been criticised by the High Court Chief Justice Robert French and the Productivity Commission which warned they gave foreigners greater legal rights than Australian companies, exposed local business to potentially large liabilities and were red tape-heavy.
There are concerns similar provisions in the yet-to-be-concluded 12-nation Trans-Pacific Partnership agreement, it would constrain the listing and pricing of medicines under the Pharmaceutical Benefits Scheme
Tobacco giant sues Australia, The West Australian, Andrew Probyn July 28, 2015, More than $50 million of taxpayer money is expected to go up in smoke defending cigarette plain packaging in a secretive international tribunal in Singapore.
But costs will pile much higher if Australia loses on its first defence that Philip Morris indulged in cynical “venue shopping” by shifting its headquarters to Hong Kong to sue Australia.
The West Australian can reveal the Attorney-General’s Department, which is running the case in defence of plain packaging, called former Labor treasurer Wayne Swan as a witness before a special tribunal sitting in Singapore back in February. Continue reading
Michael Martinez: WA stance on indigenous Australia a worrying sign, MICHAEL MARTINEZ GEELONG ADVERTISER JULY 09, 2015 “…….. Mr Barnett and his pro-mining party members are trying to change the Aboriginal Heritage Act so that one bureaucrat can make a decision determining if a site is sacred or not.
There has already been a Supreme Court decision questioning the deregistering of a sacred site in Port Headland, and there are 22 other sites that the West Australian Government has removed during the past few years.
Justice Chaney said in his judgment: “I conclude that the committee did not give consideration to the question of whether or not the Marapikurrinya Yintha was a place of importance or special significance because the question did not arise for consideration in light of the conclusion that it was not a sacred site.” Continue reading
A legal judgment in Australia has fatally damaged the ‘official’ ICRP model of health damage by nuclear radiation, writes Chris Busby – reflecting the fact that cancer originates through the mutation of individual cells, not whole organs or organisms. The ruling is good news for Britain’s bomb test veterans whose day in court is coming up; and for all who suffer radiation induced cancers.
At the end of last month the Veterans Appeals Tribunal Decision on the CaseJean Mahoney vs. Australian Repatriation Commission was published.
The result was a win for the appellant, setting aside of the earlier Australian government decision not to grant a pension to the widow of a veteran who worked among the ruins of Hiroshima and later died from metastatic colon cancer.
I was the expert witness in this case and persuaded the Australian Tribunal (in an expert report and with oral cross examination by telephone, Brisbane to Riga) that the radiation risk model of the International Commission on Radiological Protection (ICRP) was not applicable to the kind of internal exposure to radioactive particles which her late husband, George Mahoney will have received. Continue reading
Greenpeace has warned of a legal challenge to any moves to strip environmental groups of their charitable status. (subscribers only)
a judge should investigate the following:
1. ‘Abandoned homes’
How many Australian families have really “abandoned” their homes near wind farms,………
2. Medical records
The judge should request the medical records of complainants from periods both before and after the operation of wind farms……
3. Has there ever been a wind disease diagnosis?
Next, public notices should be placed in the press and publicised in the attempt to find any medical practitioner who has ever diagnosed even a single case of “wind turbine syndrome” in Australia.
4. Experimental tests
Claims made by prominent opponents of wind farms that wind turbines can rock a stationary car at 1 km, cause lips to vibrate 10km away, “bring some men to their knees when out working in their paddock” near wind farms and be heard 100km away could be easily subjected to tests under blinded experimental conditions……..
5. Magical mystery tour
Similarly, Senator Madigan may like to cooperate in organising a fully supervised experiment where those claiming to be adversely affected by wind turbines at distances up to 10km could have this claim experimentally tested……..
Let’s appoint a judge to investigate bizarre wind farm health claims The Conversation, Simon Chapman Professor of Public Health at University of Sydney 14 May 2015, On April 30, 2015, South Australian Family First Senator Bob Day published an opinion piece on his website titled Wind turbines’ inconvenient truth. In gotcha-style exuberation, Senator Day noted that wind turbine motors incorporate rare earths, which are often sourced from heavily polluting mining in inner Mongolia.
Highlighting in bold an excerpt from a 2011 Daily Mail report, Day emphasised:
Whenever we purchase products that contain rare earth metals, we are unknowingly taking part in massive environmental degradation and the destruction of communities.
The subtext was plain: green wind energy supporters are indifferent to the environment and suffering and so are massive hypocrites.
A small problem with this accusation is that by far the main use of rare earths are not in wind turbine motors, but in a wide range of electronics that include billions of mobile phones, computers, DVDs and fluorescent lights, all of which Senator Day uses himself.
Senator Day, who has no training or experience in assessing medical evidence, also wrote to The Australian recently that he had heard “compelling” evidence about the adverse effects of wind turbines on humans and animals. Continue reading
Judge overturns West Australian Government’s decision to deregister Port Hedland Aboriginal sacred site
WA court overturns decision to deregister Port Hedland Aboriginal heritage site http://www.abc.net.au/news/2015-04-01/aboriginal-heritage-test-case-port-hedland/6366250/?site=indigenous&topic=latest By Nicolas Perpitch and Laura Gartry April 01, 2015 The Supreme Court has quashed a decision by a West Australian Government committee to deregister a Port Hedland Aboriginal sacred site, in a test case that opens the door to a class action by traditional owners.
In his judgement, Justice John Chaney referred the case back to the Aboriginal Cultural Materials Committee (ACMC).
The committee had recommended to State Indigenous Affairs Minister Peter Collier that land and waters around parts of Port Hedland port should no longer be considered an Aboriginal sacred site because it had not been used for religious purposes.
“I conclude that the committee did not give consideration to the question of whether or not the Marapikurrinya Yintha was a place of importance or special significance because the question did not arise for consideration in light of the conclusion that it was not a sacred site,” Justice Chaney said in his judgement.
“The ACMC asked itself the wrong questions and identified the wrong issues, thereby falling into jurisdictional error.” Continue reading
—Objects of Act The objects of this Act are to protect the health, safety and welfare of the people of South Australia and to protect the environment in which they live by prohibiting the establishment of certain nuclear waste storage facilities in this State.
nuclear waste means— (a) Category A, Category B or Category C radioactive waste as defined in the Code of Practice; or (b) any waste material that contains a radioactive substance and is derived from— (i) the operations or decommissioning of— (A) a nuclear reactor; or (B) a nuclear weapons facility; or (C) a radioisotope production facility; or (D) a uranium enrichment plant; or (ii) the testing, use or decommissioning of nuclear weapons; or (iii) the conditioning or reprocessing of spent nuclear fuel;
nuclear waste storage facility means any installation for the storage or disposal of nuclear waste; public authority has the same meaning as in the Environment Protection Act 1993; radioactive substance means any substance that spontaneously emits ionizing radiation. 5—Act binds Crown This Act binds the Crown in right of the State and, in so far as the legislative power of the State permits, in all its other capacities……..
13—No public money to be used to encourage or finance construction or operation of nuclear waste storage facility Despite any other Act or law to the contrary, no public money may be appropriated, expended or advanced to any person for the purpose of encouraging or financing any activity associated with the construction or operation of a nuclear waste storage facility in this State……
Waubra Foundation, prominent anti-wind farm lobby, stripped of health promotion charity status ABC News By environment and science reporter Jake Sturmer 18 Dec 2014, Government regulators have stripped a prominent anti-wind farm lobby of its health promotion charity status.
The status allowed the Waubra Foundation to receive tax deductible donations, concessions the Greens described as “enormous public subsidies”.
A year ago the ABC revealed the Greens made a complaint to the Taxation Office and Australian Charities and Not for Profits Commission (ACNC), claiming there was no credible evidence to suggest a direct link between wind turbines and health problems.
University of Sydney Professor of Public Health Simon Chapman supports that view.
“There’s very, very poor evidence of any direct effect – in fact there have been 22 published reviews since 2003 which have all reached that conclusion,” Professor Chapman said.
“So in other words there’s nothing intrinsic that’s emitted from wind farms – sound etcetera – which in itself can cause human health problems.”
Four months after the Greens made the complaint, the Commission sent a show cause notice to the Foundation.
“It is not possible for me to find that the Foundation’s principal activity promotes the prevention or control of disease in human beings,” Assistant Commissioner David Locke said in February.
“My current view is there is that there is insufficient evidence that ‘wind turbine syndrome’ or ‘vibroacoustic disease’ caused by proximity to wind turbines are recognised as human diseases or that the health problems that have been perceived by the complainants as being associated with living or working close to wind turbines are a disease.”……….. http://www.abc.net.au/news/2014-12-19/waubra-foundation-stripped-of-health-promotion-charity-status/5977530
Cutting Renewable Energy Target brings risk of legal compensation action against Australian government
Compensation action shadows government proposal to cut renewable energy target: law report, October 28, 2014 Peter Hannam Environment Editor, The Sydney Morning Herald Lowering the renewable energy target is likely to undermine existing investments while freezing new ones, and open the federal government to demands for compensation, a leading law firm has said in a report.
International law group Baker & McKenzie, which has provided legal services to clean energy projects such as wind farms, said any reduction in the goal would increase the cost of capital “to make many existing and future projects financially unviable”.
Financing arrangements would be reviewed following any change in the target because the industry’s currency – renewable energy certificates – would fall by between 10 and 30 per cent, affecting the viability of even established ventures. “The vast majority of existing projects will be up for refinancing over the period 2016-2018,” Baker & McKenzie said in the report. “Existing projects might not be able to meet the minimum financing requirements based on the revised set of risks and parameters.”Kane Thornton, acting head of industry lobby group Clean Energy Council, said the report shows the risks of cutting the renewable energy target or RET.
“This report shows that a cut in the target of the scale proposed by the government would have far reaching and damaging consequences, and also that ensuring adequate compensation would be an extraordinarily complex and expensive task,” he said. Continue reading
Australia: Tough new environmental enforcement measures under NSW Bill Mondaq Clayton Utz, 17 August 2014 A range of new and much higher penalties, and a new power for the EPA to require bank guarantees for remediation, are the key features of the Protection of the Environment Legislation Amendment Bill 2014, introduced into the New South Wales Parliament on Tuesday.
If passed, the Bill will amend
- the Contaminated Land Management Act 1997;
- the Protection of the Environment Operations Act 1997; and
- the Radiation Control Act 1990.
Bank guarantees for remediation work
The EPA will be able to require financial assurances, such as a bank guarantee or bond, as part of a management order under the Contaminated Land Management Act. The EPA can set the amount, but it cannot exceed the EPA’s reasonable estimate of the total cost of carrying out the relevant action (including EPA supervision costs).
If the person fails to carry out the required action, the EPA can then do the action itself or contract someone else to do it, and then make a claim on the financial assurance to cover its costs.
The Court can also use this mechanism in proceedings under the Contaminated Land Management Act if it orders an offender to carry out a specified work or program for the restoration or enhancement of the environment……….
New penalties, including restorative justice
For some offences under the Contaminated Land Management Act and Radiation Control Act, the Land & Environment Court will be able to order new penalties, including ordering the offender:
- to publicise the offence and its environmental and other consequences;
- to notify specified persons, such as shareholders of the offence, via the annual report or other methods;
- to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit; or
- to carry out any social or community activity for the benefit of the community or persons that are adversely affected by the offence (a restorative justice activity) that the offender has agreed to carry out………
It will now be an offence not to fit GPS tracking to waste transportation vehicles………http://www.mondaq.com/australia/x/334704/Environmental+Law/Tough+new+environmental+enforcement+measures+under+NSW+Bill
New WA uranium mine given environmental approval amid concerns, Australian Mining 29 July, 2014 Ben Hagemann The Environmental Protection Agency (EPA) in Western Australia has given conditional approval to the proposed Kintyre uranium mine in the Little Sandy Desert.
Canadian-based mining company Cameco plans to truck uranium oxide from 270 kilometres north east of Newman to the Port of Adelaide. The EPA’s report is open for a two-week appeal period starting Monday, July 28, and closing on August 11……….
Environmental groups have voiced concerns about impacts on the nearby Karlamilyi National Park, with the Conservation Council expressing their disappointment with the EPA approval.
Conservation Council spokesperson Mia Pepper said most of the EPAs conditions were administrative, and that environmental protections have been deferred to the Department of Mines and Petroleum.
“In this case, that includes mine closure, rehabilitation and tailings management and those are the aspects where uranium mines have failed in Australia to deliver good environmental outcomes,” she said.
“That’s something that we think the EPA should be looking at more closely.”
Pepper said the Conservation Council will make a submission regarding the EPAs report, and will support other organisations wishing to do the same.http://www.miningaustralia.com.au/news/new-wa-uranium-mine-given-environmental-approval-a
“The allegations against me published in Fairfax Media last weekend are false,” Mr Mundine says in the statement to be released today.
Legal advice questioned controversial mining deal: http://www.smh.com.au/national/legal-advice-questioned-controversial-mining-deal-20140715-ztbnd.html#ixzz37mgd7Zbq July 15, 2014 Richard Baker and Nick McKenzie More legal advice has emerged questioning the process that led to a controversial deal between a West Australian aboriginal corporation and a mining company.
Fairfax Media has obtained advice from a third in-house lawyer for the Western Desert Lands Aboriginal Corporation which cast doubt over the process that lead to a deal with Reward Minerals to mine a Martu sacred site in outback WA called Lake Disappointment.
At the weekend, Fairfax Media revealed how two other in-house lawyers for the Western Desert corporation wrote an explosive July, 2011 memo warning that a soon-to-be signed deal with Reward had “no validity”, in part because the corporation’s board and executives had, in their opinion, not acted in the best interests of the Martu people.
A 2009 email reveals that a separate in-house lawyer for the corporation also raised concerns about the Martu people not having given “proper informed consent” to an in-principle agreement signed with Reward to mine Lake Disappointment a year earlier.
In March, 2009, the Western Desert corporation’s then in-house lawyer, Christina Araujo, emailed acting chief executive Tony Wright to advise that she was not “prepared to state that I believe WDLAC has the informed consent of the common law holders” because it could put her practising certificate at risk.
“Tony, further to our conversation on the 6th of March, I am confirming in writing concerns I have in relation to the Reward negotiations,” Ms Araujo wrote. “Apart from my personal observations, I have also had discussions with a number of others who were also of the view that proper informed consent is or may be lacking.
“Going through the files, it appears Katherine Hill [another legal adviser], on numerous occasions provided advice on proper informed consent and it is noted in a file note dated 16/10/2007 that she spoke to Joe Procter and Clinton Wolf about her concern that people did not seem to understand there was a mining proposal over Lake Disappointment.
“It does not appear in the files that the matter was discussed in detail with the common law holders … it is an issue for WDLAC if we do not have informed consent for the Reward matter. Any agreement which may result may be invalid.”
Mr Procter was a consultant helping the Western Desert corporation negotiate the initial 2008 deal and Mr Wolf was then the corporation’s chief executive.
Ms Araujo’s March, 2009 email came at the same time the Native Title Tribunal heard Martu elders testify about the cultural significance of the Lake Disappointment site.
The tribunal was asked to rule on Reward’s proposal after relations between the mining company and the Western Desert corporation stalled in mid-2008 amid an argument over legal costs. In a historic ruling, the tribunal rejected Reward’s bid on the basis of Lake Disappointment’s cultural importance to the Martu people. It was the first time the tribunal had refused a mining company’s application.
But, as reported by Fairfax Media at the weekend, the Western Desert corporation altered it stance on the Reward proposal in 2011, despite strong doubts from another set of in-house lawyers about the negotiation process not being conducted in the best interests of the Martu people.
Ms Araujo’s successors as the Western Desert corporation’s in-house lawyers warned that the Reward negotiation process had in their opinion put the corporation in breach of most of its legal obligations as the trustee body for Martu people.
In a January, 2011 announcement to the Australian Stock Exchange, Reward revealed it had in late 2010 approached the Western Desert corporation to re-open talks over Lake Disappointment.
On April 1, 2011, Reward announced to the ASX: “Reward has appointed Azure Capital and its affiliate Indigenous Investment Management (IIM) as advisers to assist in discussions with the Martu traditional owners.”
Company documents show at the time of this announcement that IIM’s shareholders and directors included former Western Desert chief executive Mr Wolf, senior Azure Capital executives and Warren Mundine, who was last year appointed as the federal government’s top indigenous adviser.
Another shareholder at this time was the Western Desert corporation’s chief financial officer Mr Wright.
Mr Mundine has confirmed that he was not personally involved in the negotiations nor benefited from the deal.
Western Desert corporation chief executive Noel Whitehead and Mr Wolf said external legal advisers were engaged in 2011 to ensure the deal was done properly and fairly.
Reward this week rejected any inference its negotiations over Lake Disappointment were unfair. It said independent legal and financial advisers were involved and great care had been taken to treat the Martu people with respect.
Four Mile mine opens amid tensions between owners, World Nuclear News, 26 June 2014 The Four Mile uranium mine in South Australia was officially opened on 25 June, but its minority owner wants to sell its stake and is preparing a legal battle against the project operator…….EdwardSterck, a senior mining analyst at London-based BMO Capital Markets, said he did not think there was “any huge significance” in the opening of Four Mile. “It appears that they are using the existing Beverley plant which suggests that production from Four Mile is replacing production at Beverley,” Sterck told World Nuclear News.
Quasar Director Dave Roberts said there is remaining ore at the Beverley mine that “can and will be” extracted at a future point in time. “But today, we are dedicating the full processing capacity of Beverley to the production of Four Mile uranium,” Roberts said during TV coverage of the opening ceremony.
ACE’s parent company Melborne-based Alliance Resources announced last week it had appointed Deloitte Corporate Finance to lead the sale of its 25% stake in the project. Alliance said the sale would “free up funds” for the company to develop its exploration portfolio.
In the meantime, the court case is looming for ACE’s 2010 filing against Quasar Resources – on the basis of “misleading and deceptive conduct” – having been set for 30 June.
ACE has said it is “seeking restitution for the 75% interest in the exploration licence for Four Mile, citing, among other issues, Quasar’s failure to disclose information relating to the prospectivity of part of the tenement.” ACE also contends that Quasar, “with the assistance or participation of” its affiliate Heathgate Resources, breached its obligations under the joint venture agreement……..
ACE said in January it had elected to vote against Quasar’s revised start-up plan for the Four Mile project, which would see uranium capture at Heathgate’s Pannikan plant, and precipitation, drying and packing at Heathgate’s Beverley processing plant. ACE said the parties should instead construct a stand-alone plant at Four Mile in order to reduce operating costs. Heathgate Resources, which like Quasar is based in Adelaide, is the owner and operator of the Beverley uranium mine in the Northern Flinders Ranges.
First discovered in 2005, the Four Mile uranium deposit is 550 km north east of Adelaide in the Frome Basin. State and federal regulators approved the mining lease for the project in April 2012 and more than AUD 120 million ($113 million) has been invested so far, the government said. The mine’s owners expect to produce up to 1.6 million pounds from the mine this year, it said. http://www.world-nuclear-news.org/ENF-South-Australias-Four-Mile-uranium-mine-opens-amid-tensions-between-its-owners-26061401.html