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The Board and staff of EDO NSW pay tribute to our Patron and former Chair, the Hon. Jane Mathews AO, who passed away last weekend.Read more
3 September 2019: The Independent Planning Commission (IPC) last week approved a significant expansion of the United and Wambo collieries near Singleton. In granting the approval, the IPC imposed a condition which requires the mine owners to prepare an export management plan to ensure that coal is only exported to countries that are signatories to the Paris agreement, or to countries that have similar policies in place to reduce greenhouse gas emissions.Read more
Veronica “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
The Independent Planning Commission (IPC) has ruled that the Dartbrook underground mine near Aberdeen in the Upper Hunter valley can re-open. However, the IPC decided against approving a five-year extension, which means that the mine can only operate until 2022 - a decision that may affect the overall financial viability of the project.Read more
On behalf of the Hunter Environment Lobby, EDO NSW has provided a full response to the Independent Planning Commission on its proposed condition linking coal export with the Paris Agreement.Read more
Inquiry into koala populations and habitat in New South Wales - EDO NSW submission
August 2019 - Download this submission
EDO NSW has made a submission to the NSW Upper House Inquiry into koala populations and habitat in NSW.
There are significant deficiencies in current NSW laws in relation to the protection of koala populations and habitat. The ongoing concerns of experts and the community have not been addressed by the introduction of the NSW Koala Strategy or the stalled review of the Koala SEPP. Major reforms to biodiversity and land management laws and the renewal of RFAs and IFOAs have weakened environment protections, including for koalas, and there are concerns that current proposals to remap old growth and rewrite PNF Codes will do the same.
The strongest legal protection for koalas under current law would be to reserve designated protected areas. We strongly support proposals from koala experts for additions to the National Park Estate that specifically target koala habitat. We also strongly support incentives for private land conservation, with significant investment going to landholders to manage and protect koala habitat on their properties. Funding management of koala AOBVs would be a critical improvement.
Our recommendations identify a number of overarching areas where urgent law reform is needed, and provide specific recommendations for amendments to key pieces of legislation, regulations and policies.
Until our laws are strengthened to truly limit or prohibit the destruction of koala habitat, koala populations and their habitat will continue to be at risk and koala numbers will continue to decline in NSW, possibly to the point of local extinction.
The Independent Planning Commission has called for public comment on a condition it is considering in relation to the proposed United Wambo open-cut coal mine at Singleton in the Hunter Valley.Read more
Part 3: Compliance and enforcement
It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. While the business of tree clearing has continued apace under self-assessed codes and a new Vegetation SEPP, fundamentally important parts of the scheme are still missing. This EDO NSW series of legal updates looks at how the laws are being implemented and the regulatory gaps that are putting our wildlife and healthy sustainable landscapes at risk.
Our first update looked at clearing in rural areas and outlined the fundamentally important parts of the scheme that are still missing even while tree clearing has continued apace under self-assessed codes. The second update looks at elements of the new scheme that are missing or lack clarity for tree clearing in urban areas and e-zones. This third update looks at compliance and enforcement of new clearing laws.Read more