Before the courts
We represent individuals and community groups in public interest litigation to protect the environment. These are the cases we are currently working on.
Dolly Talbott as a member of Gomeroi Traditional Custodians v Minister for the Environment
EDO NSW is acting for Veronica “Dolly”Talbott, as a member of the Gomeroi Traditional Custodians, in Federal Court proceedings seeking review of the Environment Minister’s decisions to not make a declaration to protect several areas of significant cultural heritage within the footprint of the proposed Shenhua Watermark coal mine in northwest NSW.
In April 2015, the Gomeroi Traditional Custodians (GTC) lodged an application under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) for the protection of several areas of significant cultural heritage (the Significant Areas) located on the Liverpool Plains near Breeza in north-western New South Wales. A second consolidated application was made in 2017.
The applications were lodged because the Significant Areas will be destroyed by the construction of the Shenhua Watermark coal mine, a large new open-cut mine that has been approved on the Liverpool Plains.
EDO NSW Solicitor Nadja Zimmermann, Dolly Talbott, and Acting Principal Solicitor Brendan Dobbie. Photo by Anthony Scully.
The Significant Areas are an important cultural junction and part of a broader Aboriginal cultural landscape. They include sacred places and significant ceremonial corridors. The interlinked sites also include, but are not limited to, large grinding groove sites, scarred trees and artefactual objects of high order significance irreplaceable to the Gomeroi Traditional Custodians. If the mega-mine of three open-cut pits went ahead, the existing landscape would not only be destroyed but would be replaced by a new, mine-created landscape.
Under the ATSIHP Act, the Environment Minister has the power to make a declaration to protect areas of cultural heritage if she is satisfied they are significant Aboriginal areas that are under threat of injury or desecration. It is a criminal offence to contravene the provisions of a declaration.
In July 2019, four years after the original application was lodged, the Environment Minister issued her decisions in respect to the GTC’s applications.
In her reasons for the decisions, the Minister accepted that the Significant Areas “retain immeasurable cultural values and connection to Country” and “are of particular significance to Aboriginal people.” She also agreed that the Shenhua Watermark coal mine will destroy or desecrate the Significant Areas, and found that NSW laws were inadequate to protect the Areas.
Despite those findings, and the very purpose of the ATSIHP Act, which is “the preservation and protection … of areas and objects … that are of particular significance to Aboriginals in accordance with Aboriginal tradition,” the Minister decided to refuse to make a declaration to protect the Significant Areas.
The Minister’s decisions were made with the understanding that a declaration would prevent the Shenhua Watermark coal mine from proceeding. Given that, the Minister attempted to balance the competing interests of protecting “immeasurable” cultural heritage and protecting the benefits she saw arising from the mine. In purporting to conduct this task, she acknowledged the “difficulties in measuring or otherwise quantifying the value of Indigenous cultural heritage and in comparing the value of such to potential economic or social benefits of the mine.”
Ultimately the Minister concluded that the economic and social benefits of the mine, particularly to the local community, outweighed the loss of heritage value in the Significant Areas. Her refusal to grant the declaration was made on this basis.
The Liverpool Plains. Photo: MDRX, Wikimedia.
Our client will argue that the Minister made an error of law in that she incorrectly applied the ATSIHP Act, which is designed to protect and preserve Aboriginal cultural heritage, in her refusal to grant a declaration to protect the Significant Areas.
This will be an important test case, which will interrogate the limits of the Constitutional basis for the ATSIHP Act and the matters which the Minister is lawfully permitted to consider when deciding whether to grant a declaration to protect areas of significant Aboriginal cultural heritage.
- EDO NSW media release: Gomeroi woman in legal challenge to Environment Minister's decision not to protect areas of 'immeasurable' cultural heritage - 27 August 2019
- PM on ABC radio: Legal challenge over Sussan Ley's decision to put potential mining jobs at Shenhua Mine before cultural heritage
- ABC online: Legal challenge over Sussan Ley's decision to put potential mining jobs at Shenhua Mine before cultural heritage
HSI Australia v Great Barrier Reef Marine Park Authority
Humane Society International Australia (HSI), represented by EDO NSW, sought independent review of the Great Barrier Reef Marine Park Authority’s (GBRMPA) decision to approve a lethal shark control program in the Great Barrier Reef Marine Park.
HSI lodged an appeal in the Administrative Appeals Tribunal (AAT) which required a full reconsideration of the approval of the shark control program. The 10-year lethal control program targets 19 shark species in the Marine Park, including threatened and protected species. [The program originally targeted 26 species but seven were removed in July 2018.] The appeal was based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park. The case was heard in the Administrative Appeals Tribunal from 30 January to 1 February 2019 and in April 2019 the AAT found that the program must avoid the lethal take of sharks.
2 April 2019: The legal challenge was wholly successful, with the AAT finding that the Shark Control Program within the Marine Park must avoid the lethal take of sharks. More here >>
12 April 2019: The Queensland Department of Agriculture and Fisheries appealed the AAT decision.
18 September 2019: The appeal was dismissed by the Federal Court so the April 2019 finding by the AAT stands. More here >>
Background: The Great Barrier Reef is a World Heritage Area globally recognised as an outstanding example of biological evolution, containing unique, rare and superlative natural features and areas of exceptional natural beauty. The World Heritage listing notes that the Great Barrier Reef is one of the richest and most complex natural ecosystems on earth and one of the most significant for biodiversity conservation. Australia has a legal responsibility to ensure its protection.
As apex predators, sharks play a vital role in maintaining the health of the Great Barrier Reef. HSI is concerned about the ongoing impacts caused by the use of lethal drumlines which are known to impact not only on shark species but also dolphins, turtles and rays. HSI is calling for non-lethal alternatives for bather protection.
In these proceedings, the AAT was presented with expert evidence based on the best available science relating to shark control programs.
Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for HSI Australia.
We are grateful to barristers Philip Clay SC, Saul Holt SC, Natasha Hammond and Dr Chris McGrath for their assistance in this matter.
- 18 September 2019: Qld Govt loses bid to overturn orders
- 2 April 2019: No more lethal shark control for Great Barrier Reef Marine Park
- January 2019: Court challenge to lethal drumlines within Great Barrier Reef Marine Park
- Video: A case for sharks
- Seven shark species removed as targets after legal action
- Link to this case summary.
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Inland Rivers Network v Harris & Another
EDO NSW, on behalf of its client the Inland Rivers Network, has commenced civil enforcement proceedings in the NSW Land and Environment Court in relation to allegations of unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.
This hearing will be held over ten days, commencing on 9 March 2020.
The two water access licences at the centre of these allegations allow the licence holder to pump water from the Barwon-Darling River in accordance with specified licence conditions, as well as rules set out in the relevant ‘water sharing plan’. The conditions and rules specify – amongst other things – how much water can be legally pumped in a water accounting year (which is the same as the financial year) and at what times pumping is permissible (which depends on the volume of water flowing in the river at any given time).
Our client alleges that the holder of these licences pumped water in contravention of some of these conditions and rules, thereby breaching relevant provisions of the Water Management Act 2000 (NSW) (WM Act). The allegations are based on licence data obtained by EDO NSW earlier in 2017 from Water NSW, a state-owned corporation charged with the responsibility of regulating compliance with the WM Act.
Analysis of this data, along with the relevant rules and publicly available information on river heights, indicates that the licence holder may have pumped significantly more water than was permissible on one licence during the 2014-15 water year, and taken a significant amount of water under another licence during a period of low flow when pumping was not permitted in the 2015-16 water year. Despite being made aware of these allegations by EDO NSW on two occasions, in April and August 2017, and having had access to the data since at least July 2016, Water NSW has not provided any indication that it intends to take compliance action against the licence holder.
Both allegations concern the potentially unlawful pumping of significant volumes of water, which may have had serious impacts on environmental flows in the river and downstream water users. However, our client is particularly concerned by the alleged over-extraction in the 2014/15 water year, as this period was so dry that the Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell to 4 percent of their total storage capacity. This in turn threatened Broken Hill’s water security and led the NSW Government to impose an embargo on water extractions during part of that year in order to improve flows down the Barwon-Darling into the Lakes and Lower Darling River.
In these proceedings, the Inland Rivers Network is seeking, amongst other things, an injunction preventing the licence holder from continuing to breach the relevant licence conditions. In addition, and in order to make good any depletion of environmental flows caused by the alleged unlawful pumping, our client is also asking the Court to require the licence holder to return to the river system an equivalent volume of water to that alleged to have been unlawfully taken, or to restrain the licence holder from pumping such a volume from the river system, during the next period of low flows in the river system. Failure to comply with a court order constitutes contempt of court, which is a criminal offence.
EDO NSW is grateful to barristers Tom Howard SC and Natasha Hammond for their assistance in this matter.
Brendan Dobbie, Acting Principal Solicitor at EDO NSW, has carriage of this matter for IRN.
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- Legal update: Less water, less transparency (July 2018)
- Legal update: Using the law to protect the Murray-Darling Basin (November 2017)
- Four Corners investigation highlights our work to protect the Murray-Darling Basin (July 2017)
- Is carp herpes really a substitute for water in the Murray-Darling? (February 2017)
- EDO NSW case: Australian Conservation Foundation vs WaterNSW
- Fact sheet: Water Management
- EDOs of Australia submission to the Inquiry into the Integrity of the Water Market in the Murray-Darling Basin
- EDOs of Australia submission to the Inquiry into National water Reform
- Link to this case summary.
Help defend the environment
With your support, we can continue to help community groups like Inland Rivers Network defend the environment. Please make a donation today.
Adnyamathanha Traditional Lands Association v Leigh Creek Energy
In September 2018, Adnyamathanha Traditional Lands Association (ATLA) engaged EDO NSW to apply for an urgent injunction in South Australia's Supreme Court to halt plans by Leigh Creek Energy (LCE) to trial underground coal gasification (UCG) at Leigh Creek (approximately 500km North of Adelaide in South Australia).
LCE has conducted a program of exploratory and appraisal drilling at Leigh Creek since July 2016 in order to test the potential for undertaking UCG at the site. UCG involves converting coal into a gas within the coal seam. The gas is then extracted from the underground coal seam via wells.
ATLA has consistently opposed UCG due to the importance of the site and the coal to Yulu, the Kingfisher Man, one of the major creation ancestors of the Adnyamathanha people.
Coal rail tracks near Leigh Creek. Photo credit: Boobook48 Flickr
In February 2018, ATLA made objections to the draft Environmental Impact Report and draft Statement of Environmental Objectives (SEO) for the UCG trial. Despite these objections, the SEO was approved in April 2018.
When the UCG trial received its final Activity Approval in early September 2018, ATLA sought an urgent interim injunction in the Supreme Court, arguing that the approval was invalid. The Court handed down its decision on 21 September 2018. Despite finding that the UCG trial would cause significant, and largely irreparable, prejudice to the cultural interests of the Adnyamathanha people, the Court decided that the "balance of convenience" weighed against the grant of the injunction to prevent the trial from going ahead. In making its decision the Court had regard, amongst other things, to the financial "prejudice" that would be suffered by LCE should its plans be delayed.
LCE began its three-month UCG trial in October 2018. However, it has had to request suspensions of the trial because it has had difficulties establishing full gasification in the coal seam. In late 2018 LCE proposed to undertake additional drilling and seismic testing in the area to inform the design for a potential commercial facility.
We are continuing to advise ATLA on its legal options for protecting the Adnyamathanha people’s ancestral lands.