Australia Environment Law - Case Study Example

Australia Environment Law Introduction: The main act that deals with the relevant environmental repercussions of an energy project, especially the impact that the project would have on its immediate ecosystem is the Environment Protection and Biodiversity Conservation Act 1999 or the EPBC Act. The objects of the EPBC Act are wide, but section 3 and the structure of the Act make it clear that the protection of matters of national environmental significance is the principal object of the Act. This is confirmed in section 3(2)(a) by the recognition that an “appropriate role” for the Australian Government in relation to the environment is to focus on matters of national environmental significance, Commonwealth actions and Commonwealth areas.  Ramsar sites are matters of national environment significance under the EPBC Act. Any action that is likely to significantly impact on the ecological character of a Ramsar site must be assessed and approved by the Commonwealth Environment Minister (Clarke, 2005, p235) according to the Environment Protection and Biodiversity Conservation Act, 1999 (Cth), s16. it is required by law that any person trying to start commercial activity on a site protected by the Ramsar convention norms would have to refer details of action to the Commonwealth Minister, and in case it is decided by the Minster that the project requires referrals, it is needed by law that the proponent must provide certain preliminary information about the project to the Minister. The information that must be provided is described in Part 5 and Schedule 3 of the Regulations. Ayerhaed: In this particular case therefore has been no referral made by Ayerhead. In order to attain the approval without obstruction Ayerhead would have to convince the environmental authorities that the project would in no way harm the be in nay kind of contradiction to the provisions of the act in any manner (EPBC Act, 1999). In order to do this, he would have had to take the EPBC Act form, adapted from Environment Australia’s Environment Protection and Biodiversity Conservation Act 1999 referral form, seriously. It should be completed by the activity feasibility and design team and attached to the project design document if the answer to environmental marker question 5 is ‘Yes’ or as advised by Australia AID’s environment adviser or environment staff. Environmental marker question 5 addresses whether the activity could have significant negative environmental impacts. In case Ayerhead fails to comply with the directives of the law, it is stipulated that he would be liable for a maximum penalty which would in turn be inclusive of 7 years imprisonment and/or a fine of up to $550,000 for an individual and $5.5 million for a corporation. The offender may also be required to pay for the mitigation or repair of any environmental damage caused by the action. Maximum penalties for contravening a condition of an approval include 2 years imprisonment and/or a fine of up to $110,000 for an individual and $1.1 million for a corporation. The greatest penalty imposed against a contractor was a case where the judge awarded pecuniary penalties totaling $450,000 against a company director and the company responsible for the clearing, plus costs. The greatest cost that could potentially be levied against Ayehead would therefore be in case there were disturbances recognized to the Ramser Wetlands. Local Hippies: Some of the more publicized cases that have been fought recently such as the Bald Hills Wind Farm Project in Victoria and the Taralga wind farm case in New South Wales (Preston, 2007). Lessons can be learnt from the two stories wherein first, it was proved that there would be no danger to the orange-bellied parrot from the development of the Bald Hills Wind Farm. This however happened after a lot of drama and stalling. The project approval was rejected based on a Biosis report and was passed only after it was proved comprehensively that the project would in no way bring harm to the bird (Bonyhady and Christoff, 240). Unlike most other industrialized countries, Australia does not have a Charter, Bill, or Rights. Therefore, the community has a fractured understanding and approach to rights. Ideally, then the rights that the hippies would have in case they were to be displaced due to the noise and the development of the wind power project in the resident vicinity would have to come principally from case law. The judgment in Planning Minister v Walker Appeal, [Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224] clearly states that the ‘public interest’ was an implied mandatory consideration, the ESD principles were not. The success of the hippies would depend mostly on their bargaining power before they gave community approval to the project for presentation to the authorities. The best way for them would be to seek displacement compensation. NSW Minster for planning: The duty of the EPA would be to ensure that the matter reaches the courts and that the project if approved is brought under correct referral and control, wherein it adheres to strict environment guidelines. In the past in cases such as the Bald Farm case has proved the point that in case the localities or the environmental lobby could prove that there is a danger to the birds, the project would face a dead end. It is the stated duty of the planning department to protect heritage and environment sites while ensuring development., the point where would be then that in case the discussions and the approvals for the land in question do not work out then it is this body that would have to take initiative in ensuring that Ayerhead is given feasible land for his project elksewhere so that the state does not lose and investment opportunity while protecting the environmental concerns. Local Council: The local council would be responsible for ensuring that administratively the project is on track given the fact that an investment of $80, 000 would mean opportunities in growth and development for much of the local population. The idea would also then be to engage a professional survey authority, which is credible in the eyes of the environmental lobby in order to draw up a report that demonstrates comprehensively the fact that there would be no negative impact of the project on the birds. Australia's protection of human rights is inconsistent. NSW EPA: this body would be responsible for surveying the site and reporting on the damage done because of the recklessness of the contractor. This body would quantify damages and suggest ground levbel suggestions in terms of methods that would help the situation and work toward the restoration of the protected site to its old day. In case there is not proper care that is taken to ensure that the river is kept clean, there can be the imposition of an injunction under the Clean Waters Act, 1970 that can cost Dee up to $40,000 in penalty and payments. Further, under the jurisdiction of the 1990 the Environment Protection (Fees & Penalties) Act 1990 s. 59E Ayerhead could be indictable under an offence wherein a person intentionally, recklessly, or negligently pollutes the environment or causes or permits an environmental hazard which results in ((Chappell and Norbury, 1992)): a serious threat to the environment; a serious threat to public health a substantial risk of serious damage to the environment; a substantial risk of a serious threat to public health. The EPA should just keep doing what it is doing i.e. keep the matter under scrutiny and ensure that the environmental guidelines are being followed and fulfilled. The work would be a development on existing norms that suggest the strict injunction that the courts have taken to imposing recently would be the judgment in the Greentree case wherein farmers only made to restore the wetlands by Sackville J who dismissed the arguments raised by the farmers and found that they had contravened section 16 of the EPBC Act (Greentree, 2005). Commonwealth minister for Environment: This body needs to take precedence from the Bald Wind Episode and ensure that the cards are dealt in a manner that is fair and correct. He therefore has a liability to ensure that there is a proper survey of the project plan, a scrutiny of the resources that are required and the people, flora and fauna that is going to take the impact of the sanction of the project. Various steps need to be taken in order to ensure that the above stated conditions are met. First, a team of professionals needs to be put in place, which would be responsible for the creation and an efficient and credible channel of feedback so that a Biosis-like fiasco can be avoided. A regular survey of each stage of the project development and construction needs to be closely monitored and kept under surveillance. It is also his liability to address that concerns that have been raised by the hippie community and ensure their proper compensation in case they need to be rehabilitated. Moreover, it is the responsibility of the Minister to ensure that the damages that have been incurred to the river resource due to the carelessness on the part of the agency contracted are corrected and that compensations are paid in order to clean up the spillage. Rippit Contractors: The contractors can be fined against the damage that has been done by an employee given the fact that an act of a representative of a commercial organization is seen to be an act of the organization itself. No organization can separate itself from the employee, and thus when an employee of the organization has made a mistake, it is seen to be an act of the organization itself (Erbacher, 96). Moreover, before taking on the contract in an area that comes under the radar of the environment sensitivity, the contractors should have ensured that appropriate briefing was given to their employees. Since this was absent, a restitutionary claim can be brought in tort against the contractors because it is through their carelessness that there was damage incurred to the river and the Ramser wetlands. The justification that the druver was dopey and was hence at fault would not wash given the fact that the driver woiuld be taken as an agent acting on behalf of the company and the actions of the driver would be in fact a reptesentation of the actions of the comapony itself. Stirling Effort: is the one that has in all fairness caused the biggest part of problem by being careless with his job. He can be removed from his position by Rippet contractors, but in all fairness being dopey or careless with one’s job as a plumber cannot translate into an offense of a punishable act no matter how grave the consequences. Reference: Clarke, P., Environmental law toolkit--NSW: a community guide to environmental law. The Federation Press. 2005 Greentree judgment, Environmental law publishing. Retrieved May 11, 2010 Environment Protection and Biodiversity Conservation Act, EPBC Act, 1999. Retrieved May 11, 2010 Chappell, D. & Norberry, J. 1992, Critical issues¾ environmental offences and the police, paper presented to the 1992 Australasian Crime Conference and Seminar hosted by the Australian Federal Police, 16 November, Canberra Bonyhady T and Christoff P, Climate Law in Australia, pub, The Federation Press, 2006 Read More