Current Cases EDO NSW

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.

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.

Video: A case for 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. The Federal Court granted a temporary stay of the AAT orders which will remain in place until that appeal is heard later in the year. 

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.

More on this case:

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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 five days, commencing on 11 November 2019.

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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Further information:


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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. 

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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 their Adnyamathanha people’s ancestral lands. 

Link to this case summary >>

 

Groundswell Gloucester v Gloucester Resources

Groundswell Gloucester, represented by EDO NSW, was joined to proceedings that would determine the fate of the Rocky Hill Coal project, a greenfield open cut coal mine at Gloucester, in a beautiful valley near Barrington Tops in the upper Hunter.

Our client was permitted by the Court to present expert evidence on climate change and the social impacts of this new mine. This was the first time an Australian court heard expert evidence about the urgent need to stay within the global carbon budget in the context of a proposed new coal mine. The Court also heard anthropological evidence about the social impact of mining on the community.

The hearing ran over three weeks in August 2018. Judgment was handed down on 8 February 2019.

Update Friday 8 February, 2019: A win for climate and community! Read our media release on the judgment >>

Read the judgment in full >>

Update Thursday 9 May 2019: There will be no appeal of the Rocky Hill judgment

Background to the case

In December 2017, the then Planning Assessment Commission (PAC) refused consent to the Rocky Hill Coal Project proposed by Gloucester Resources Limited (GRL). The PAC found that the Project was not in the public interest because of its proximity to the town of Gloucester, significant visual impact and direct contravention of the area’s zoning plans. 

The PAC also refused consent to a Modification of the consent for the nearby Stratford mine (operated by Stratford Coal Pty Limited (SCPL), a related company of Yancoal Australia Limited) that proposed the receipt, processing and railing of coal from the Project.  The PAC found that the Modification would have no critical purpose or utility outside the Project. 

Subsequently, GRL and SCPL appealed the refusal of consent to the Land and Environment Court. Our client, Groundswell Gloucester, sought to be joined to the proceedings.

Groundswell Gloucester is a non-profit community group formed by a group of Gloucester residents concerned with the environmental, social and economic future of the Stroud Gloucester Valley. Groundswell Gloucester strongly opposed development of the Project.

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On 23 April 2018, the Land and Environment Court ordered that Groundswell Gloucester be joined to the proceedings brought by GRL. Groundswell Gloucester would now be allowed to bring in experts to present evidence on the mine’s detrimental impact on climate change and on the social fabric of Gloucester. In relation to the climate change ground, on joining Groundswell Gloucester the Court noted that:

“GRL submits that the raising of the climate issue as proposed in a domestic Court if the Intervener were joined would not serve the purpose of improving this particular planning decision; and, instead, would be a 'side show and a distraction'. I do not agree.”

The case was heard in August 2018, with evidence from expert witnesses on visual and noise impacts, climate science and energy finance, the economics of coal, town planning and the social impacts of a mine on the town’s doorstep.

The court heard from Emeritus Professor Will Steffen, who gave evidence on climate change science and the carbon budget; energy analyst Tim Buckley on the risk that the coal mine would become a stranded asset, given market trends away from coal; acoustics expert Stephen Gauld on the noise nuisance from the mine; and anthropologist and expert on regional communities and displacement Hedda Askland on the social impacts should the mine go ahead.

Sixty community objectors, including farmers, doctors, Traditional Owners, old and young people, gave evidence. Some were opposed because of noise impacts, others worried about how the mine might tear at the fabric of their community. Many were concerned about the kind of world their children and grandchildren will live in if projects like this, which contribute to climate change, continue to be approved.

In closing, Counsel Robert White for Groundswell Gloucester concluded:

“We say, your Honour, that the settled evidence before this Court is based on the scientific consensus that the urgent need is for greenhouse gas emissions to be reduced rapidly around the world, and in this country, to the fullest extent possible if the world is to have any chance to meeting the well below 2 degrees Celsius target enshrined in Paris.  We submit, your Honour, that GRL has been unable to prove through its evidence in this case that the approval of the mine will reduce carbon dioxide emissions, not increase them.”

Matt Floro, solicitor for EDO NSW, has carriage of this matter for Groundswell Gloucester and our Principal Solicitor is the solicitor on record.

We are grateful to barrister Robert White for his assistance in this matter.

Further information about this case:

 


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ACA v NSW Minister for Planning & Wyong Coal & Kores Australia

EDO NSW, on behalf of the Australian Coal Alliance (ACA), filed a case in January 2018 against the NSW Minister for Planning on the basis that legal errors were made in the Planning Assessment Committee’s (PAC) approval of the Wallarah 2 longwall coal mine west of Wyong on the Central Coast. 

The case was heard in the Land and Environment Court over three days in November 2018.

Update: Judgment was delivered on 22 March 2019 and the case was dismissed. In consultation with its client ACA, EDO NSW is considering further options.

Wyong Coal Pty Ltd, which trades as Wyong Areas Joint Coal Venture, and Kores Australia Pty Limited are co respondents. KORES Australia Pty Ltd, a fully-owned subsidiary of Korea Resource Corporation, is the majority shareholder of Wyong Coal Pty Ltd.

The case is being fought on four main grounds: climate change, flooding impacts, compensatory water and risks to water supply for farmers in the region.

Wallarah 2 involves construction and operation of an underground coal mine over 28 years, until 2046. It would extract five million tonnes of thermal coal a year. The total greenhouse gas emissions over the life of the mine will be 264+ million tonnes of CO2.

In approving the Project, the PAC chose not to take into account emissions which come from the burning of coal mined at Wallarah 2. Our client argues that the law wasn’t followed with respect to climate change impacts. The key ground with respect to greenhouse gas emissions is that the PAC failed to consider an assessment of downstream emissions from the project. Under the EP&A Act, the PAC was required to consider the public interest. ACA argues that in the current day, considering the public interest in projects such as coal mines mandates the consideration of principles of ecologically sustainable development, particularly intergenerational equity and the precautionary principle.

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Inside a longwall coal mine. Creative Commons.

In addition, our client argues that the PAC unlawfully failed to consider the risks of the flood impacts and the potential loss of water occasioned by the mining project.  

The Project, located within the Central Coast water catchment, would have significant impacts on the Central Coast water supply and residents in the surrounding areas. 

It would permanently alter the landscape, causing flooding events that will only increase over time as the impacts of climate change are realised. The PAC approval proposes dealing with these devastating flooding events by first requiring the mine to try mitigation measures like putting people’s houses on stilts, relocating homes or building levees. If those measures don’t work, then the mine would be required to pay the owners of the properties for the harm. Our client says this simply is not a lawful way to mitigate harm from flooding. There is no evidence that the mitigation measures will work or that compensation is an effective way to remedy harm caused by flooding.

The mine is also likely to impact upon the Central Coast water supply and access to water for farmers in the surrounding region.  The mine proposes to construct a pipeline to deliver compensatory water to the Central Coast Council and provide emergency and long-term compensatory water supplies to farmers if they lose access to water on their properties. If compensatory water cannot be provided, the mine can agree to buy those farmers out. The approval does not cover how the pipeline and the compensatory water is to be provided. ACA argues that the mitigation measures proposed by the PAC in the conditions of approval are not lawful, primarily because they go beyond the power of the PAC to deal with environmental impacts of the Project.

Isaac St Clair-Burns, Solicitor at EDO NSW, has carriage of this matter for ACA. Our Acting Principal Solicitor, Brendan Dobbie, is the solicitor on record.

We are grateful to Craig Leggat SC and Josie Walker of Counsel for their assistance in representing ACA in this case.

 


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ECoCeQ v Environment Minister and Anor

EDO NSW filed proceedings in October 2018 on behalf of our client, the Environment Council of Central Queensland (ECoCeQ), challenging a decision of the Federal Minister for the Environment in regards to a proposal to clear 2,100 ha of native vegetation on the Cape York Peninsula.

27 November 2018: The Federal Court has upheld this challenge. The Federal Minister for the Environment has conceded that the decision was not made lawfully.

Read our media release: Media concedes unlawful decision on land clearing in Reef catchment

More on the background to the case: ECoCeQ is challenging the Minister’s decision to assess the environmental impacts of the proposed clearing using the least rigorous assessment method available: ‘assessment on referral information’.

The Minister is permitted to determine that a proposal should be assessed using ‘referral information’ only if satisfied that the proposal meets a number of stringent criteria outlined in the federal environmental legislation, including that the relevant impacts of the proposal are expected to be short term, easily reversible or small scale, and that the degree of public concern about the proposal is, or is expected to be, moderately low.

We are arguing, on behalf of ECoCeQ, that:

  • the decision to apply the least rigorous assessment option to the proposal was unlawful because the Minister was not satisfied, as required by law, that the proposal met the criteria outlined in the legislation.
  • it was unreasonable for the Minister to find that the proposal was of ‘moderately low’ public concern in circumstances where, among other things, the Minister received more than 6,000 public submissions objecting to the proposal at the preliminary referral stage.

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The Great Barrier Reef and Cape York - Envisat image.

This clearing is likely to have significant impacts on matters of national environmental significance, including the Great Barrier Reef Marine Park and listed threatened species and ecological communities.

Emily Long, Solicitor at EDO NSW, has carriage of this matter for ECoCeQ. Brendan Dobbie, Acting Principal Solicitor, is the solicitor on record.

We are grateful to barristers Stephen Lloyd SC and Ashley Stafford for their assistance in representing ECoCeQ in this matter.

Link to this case summary.

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Australian Conservation Foundation application to WaterNSW

Our client, the Australian Conservation Foundation (ACF), sought access to information held by WaterNSW (the NSW Government regulator) about Water Access Licences held under the Water Management Act by major irrigators on the Barwon-Darling River.

Update December 2018: Two days before a hearing scheduled in the NSW Civil and Administrative Tribunal, the documents were released.

Read our media release here.

More about the case: Following a case lodged by ACF in 2016, WaterNSW decided to release the information sought. However, the irrigators commenced their own case objecting to that decision.

ACF argued the public has a right to know about the information and a right to know how the NSW Government is regulating and enforcing the use of one of our most vital natural resources. They argue that transparency is key to public confidence in the regulatory system governing water access and use in the Barwon-Darling Basin.

On behalf of ACF, we asked the NSW Civil and Administrative Tribunal (Tribunal) to decide that the release of this information is in the public interest.

Background

In December 2016, we applied, on behalf of ACF, for information about the Water Access Licences under NSW freedom of information laws.

WaterNSW released some licensing information in February 2017, but much of what our client requested was withheld on the basis that it would prejudice the business affairs of the licence holders.

In May 2017, we applied for further information, on behalf of ACF, in respect of other licences held by the irrigators. WaterNSW responded by refusing to release the majority of the information sought, again on the basis it would prejudice the business affairs of the licence holders.The information sought is crucial to understanding how the Water Management Act is administered by WaterNSW. Accordingly, the release of the information is likely to inform an issue of significant public importance.

For this reason, on behalf of ACF, we appealed to the Tribunal on WaterNSW’s decisions to withhold the information in July 2017. Midway through those proceedings, WaterNSW reversed its decision and decided to release the information. However, the irrigators objected to the release of the licensing data and sought a further review by WaterNSW. Ultimately, WaterNSW upheld its decision to release the information and in late January 2018 the irrigators commenced their own proceedings in the Tribunal objecting to the release of the information.

ACF is not a party to those proceedings but, as the original access applicant, has a right to appear and be heard in the proceedings. ACF argues that there is an overriding public interest in the disclosure of the information it seeks.

Access to this information is vital for the public to have confidence that important environmental laws protecting fair and equitable access to Australia’s water resources are being properly administered. This was most recently highlighted by the recommendations of the NSW Ombudsman and Ken Matthew’s independent investigations into water management and compliance in NSW.

Further background:

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