EDO Annual Report 2010 2011 V3.Indd

ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT 2010/11 This Annual Report has been printed on 100% recycled paper. ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT 2010/11

The Environmental Defender’s Offi ce (NSW) is a community legal centre specialising in public interest environmental law. The EDO provides legal advice and representation in public interest environmental law matters. In addition to the provision of legal services, the Offi ce takes an active role in law reform and the formulation of policy, provides technical scientifi c advice to help the community understand environmental documents, and carries out community programs on environmental law. The EDO has an offi ce based in Lismore to service the Northern Rivers area and the Sydney offi ce covers the remainder of the State. The offi ces are open Monday to Friday during business hours. Any questions or concerns about the content of this Report should be addressed to the EDO Director. The EDO also has a process for handling complaints. Any complaints should be directed to the Director on (02) 9262 6989. This report was published on 14th October 2011. Director’s Report ...... 4 National EDO Network ...... 6 EDO NSW Introduction ...... 7 EDO: A Green Offi ce ...... 8

PART A – CORE FUNCTIONS OF THE EDO Litigation and Legal Advice ...... 9 Policy and Law Reform ...... 12 Scientiﬁ c and Technical Advice ...... 14

Community Programs ...... 16 of Contents Table Media and Communications ...... 25

PART B – PRIORITY AREAS Climate Change and Energy ...... 28 Environmental Planning and Development ...... 32 Biodiversity Conservation ...... 37 Natural Resource Management ...... 41 Environmental Justice ...... 50 Corporate Social Responsibility ...... 55

PART C – REPORTING AND GOVERNANCE EDO Clients ...... 56 Acknowledgements ...... 57 EDO People ...... 61 Funding and Financial Report ...... 64 Directors’ Report ...... 66 Independent Audit Report ...... 69

EDO ANNUAL REPORT 2010-2011 3 The past year has been a formative accessible, expert-based and seeks one for the EDO, refl ecting both to hold decision-makers and others the continued development and to account, while also making an maturation of an organisation obvious nod to our past. The name that entered its 26th year. comes with a bold new look and The Northern Rivers Offi ce reached a tagline which we feel sums up a signifi cant milestone in 2011 as it the multi-disciplinary legal offi ce celebrated its fi fth anniversary. The we have become: defending the offi ce has gone from strength to environment * advancing the law. strength since its inception, and has The second development relates to clearly become a fundamental and an independent evaluation conducted instrumental part of the landscape by a consultant, WestWood Spice. in the Northern Rivers area. The brief was simple – let us know Director’s Report Director’s As the Annual Report here shows, if there is anything we can do better. there is an enormous breadth, The evaluation team spoke to a large complexity and sophistication number of people (over 200) in to the work that we do. For my compiling the report. I had no doubt report, I do not wish to amplify the evaluation report would speak on this further, except to profusely to the fantastic work of the EDO thank staff, the Board and the over the years, while also identifying host of people and organisations areas for improvement. And so it who make up the wider EDO and turned out. The report noted: contribute to the protection of the the EDO is very highly regarded by its environment through law. It is always diverse stakeholders. It is seen as an a pleasure to work with them and invaluable organisation, providing high I feel privileged to be part of it. quality services and expertise that In a few brief words, I wish to cannot be accessed elsewhere; its focus on two developments this role as the key vehicle for challenging year. The fi rst is our name change. government on environmental Throughout the year, the Board and matters is viewed as essential. staff refl ected on the work we do Furthermore, in its conclusion and what we stand for. Ultimately, to the Executive Summary, the Board resolved to trade under the report stated: the name EDO NSW, rather than Overwhelmingly, the successes of Environmental Defender’s Offi ce. the EDO are attributable to strong We are in the process of doing this leadership and the integrity and now. Many know and describe us by quality of the highly competent the short-hand in any event, so this staff whose passion, professionalism will not be a huge change in some and commitment to environmental respects. However, it was felt the causes is viewed as outstanding new name will better connote an by its stakeholders. Having the organisation which is independent, capacity to engage very effectively

4 [ JEFF SMITH]

with a diversity of stakeholder groups, together with striving to provide client friendly services of a very high standard in response to client needs are key contributors to EDO achievements. The ability of the EDO to hold a bigger picture perspective of government structures and national and state legal frameworks is a valuable factor in providing an overarching framework for the broad suite of policy and litigation work which is taken on. The successes noted above Report Director’s would not be possible without the support of our funders. The EDO receives triennial grants from the Commonwealth and NSW governments, the MacArthur Foundation (for international capacity- building), the Environmental Trust (through the LECG program) and the Public Purpose Fund (PPF), the latter being our major funder. The PPF funding in particular allows us to realise our goal of being independent, accessible and to hold others to account through high quality legal services. The full evaluation report will be on our website shortly (www.edo.org. au/edonsw). I urge you to read it and the Annual Report contained herein.

Jeff Smith Director

EDO ANNUAL REPORT 2010-2011 5 National EDO Network

EDO NSW is one of nine independent EDO offi ces located across Australia who formally operate together through the Australian Network of Environmental Defender’s Offi ces (ANEDO). The different offi ces share information, resources and ideas and meet regularly as a network, either face-to-face or via teleconference. Across Australia, around 50 staff

National EDO Network work for the various EDOs, of whom over 30 are solicitors. All EDOs have demonstrated a commitment to a more coordinated approach to national environmental issues and matters of national environmental signiﬁ cance which fall within State and Territory boundaries. A key focus of ANEDO (and thus the EDO in NSW) over the past year has, once again, been in the area of policy and law reform, with work done on biodiversity offsets, illegal logging, carbon farming, product stewardship and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

6 • Natural Resource Management; EDO NSW • Environmental Justice; and Introduction • Corporate Social Responsibility and Governance. This section of the Report will set The EDO’s mission is to promote out how each of the key functions of the public interest and improve the EDO contributed to protecting environmental outcomes through the environment in these areas. the informed use of the law. The EDO has fi ve core areas Finally, Part C of this Report will of operation, with staff working cover the reporting and governance together in a multi-disciplinary issues involved in the day-to-day way to achieve that mission. running of the Offi ce. The staffi ng, funding and fi nancial aspects of the This Report has been divided into EDO are included in this section. three main sections, parts A, B and C. Part A of the Report will outline the

functions of the EDO and provide EDO NSW Introduction brief updates from each of these core areas of operation, namely: • Litigation and legal advice; • Policy and law reform; • Scientifi c and technical advice; • Community programs (community legal education, international and Indigenous engagement); and • Media and communications. Part B of the Report will outline the work of the EDO within its identifi ed ‘priority areas’, that is, environmental issues that the EDO has identifi ed, in close collaboration with our stakeholders and clients, as requiring particular attention. These priority areas are: • Climate Change and Energy; • Environmental Planning and Development; • Biodiversity Conservation;

EDO ANNUAL REPORT 2010-2011 7 Emissions associated with paper EDO: A Green use increased by roughly 12%, and the emissions associated with Offi ce EDO publications increased seven- fold. In addition, emissions from waste sent to landfi ll increased The EDO is committed to operating substantially due to EDO’s offi ce in an environmentally sustainable way. relocation, which resulted in the This year, the EDO measured its clearing out of nearly a decade’s- carbon footprint using a GHG worth of accumulated clutter. calculator with associated procedures Electricity use in the Sydney for calculating GHG emissions. Offi ce increased by 18%, and this In calculating the carbon footprint is an area for improvement. of the Offi ce, we included: The EDO also sought to manage • All work-related travel (excluding and reduce its ecological and

EDO: A Green Offi ce EDO: Offi A Green travel to and from work) carbon footprint by: by EDO NSW employees, • Encouraging the use of but not by contractors; public transport by staff, • Emissions associated with Offi ce volunteers and clients; paper use and disposal, and paper • Purchasing 100% GreenPower used in EDO NSW publications; for the Offi ce; • Emissions associated with • Identifying areas where electricity use; and energy effi ciency can be • Emissions associated with improved and incorporating waste disposal and recycling. these into operations; and Gold standard accredited carbon • Purchasing equipment and offsets were purchased to offset consumables with waste work-related travel emissions, avoidance, closing the recycling based on the GHG calculations. loop and reduction of This amounted to 69 tonnes of environmental impacts in mind. carbon dioxide equivalent offsets. Emissions associated with car travel were about six times higher than the previous fi nancial year. This can be attributed to the inclusion of taxi travel in our calculations of GHG emissions. In contrast, emissions associated with air travel more than halved. This is due to there being signifi cantly less international travel than in the previous reporting period.

8 PART A: CORE FUNCTIONS OF THE EDO

mine near Gulgong on the grounds Litigation and of climate change, groundwater and biodiversity impacts. Importantly, this Legal Advice is the fi rst case in NSW to consider the use of offsets to address climate impacts. Ironstone Community Action The EDO represents individuals Group v Minister for Planning & Ors and community organisations in is a case challenging a coal mine at public interest litigation to protect Duralie due to the mine’s impacts the environment. In 2010-2011, on water quality, biodiversity and the EDO pursued a number of community health. Before this cases involving issues of signifi cant matter went to Court, the EDO public concern including climate actively assisted the community to change, mining, biodiversity issues, register their concerns about the Aboriginal cultural heritage, planning proposal. The community were and pollution. Over 20 EDO cases grateful for this early engagement. are featured in this Report, some Thank you for all your help regarding of which have been determined, Duralie, we couldn’t have got this while others are either awaiting far without your help. You have judgment or are still to be heard. written some excellent letters Litigation and Legal and Advice Litigation The environmental impacts of mining, on our behalf and given us some including the climate change impacts, very helpful information. We are an increasing part of our work. can’t thank you enough for your This year the EDO has commenced help to try and save our precious two merits appeals to challenge coal river system. I think we need a mine approvals under Part 3A of the miracle but I hope we succeed. Environmental Planning and Assessment We are also involved in other Act 1979 (NSW). These cases are cases relating to coal issues. the fi rst merits appeals that the EDO has commenced against coal mines. In another fi rst, the EDO has commenced the fi rst case Hunter Environment Lobby v Minister challenging coal seam gas activities for Planning & Ors involves a challenge in NSW. Barrington Gloucester to the approval of the Ulan coal

EDO ANNUAL REPORT 2010-2011 9 Stroud Preservation Alliance Inc v Protection, Heritage and the Arts, Planning Assessment Commission our client challenged the Federal and AGL Upstream Infrastructure Environment Minister’s approval Investments Pty Limited will be for the relocation of grey headed heard before the NSW Land and ﬂ ying foxes from the Royal Botanic Environment Court in October 2011 Gardens in Sydney. Grey headed and will focus on the consideration ﬂ ying foxes are protected under of the environmental impacts of State and federal threatened species the proposed development. laws. Loss of habitat is considered Our ground breaking climate to be a key threat to this species. litigation continues with the case This case sought to challenge the Gray and Naomi Hodgson v Macquarie Minister’s decision on the grounds Generation. Following a motion by that he had not properly considered Macquarie Generation to have the critical habitat for the species. case dismissed, Justice Pain allowed The EDO has also been involved the case to proceed and the Land and in an important appeal to improve Environment Court will be asked to access to the Courts in public interest determine the extent of Macquarie matters. In ongoing litigation, the Generation’s authority to emit carbon EDO secured a protective costs order

Litigation and Legal and Advice Litigation dioxide. Macquarie Generation has for the Blue Mountains Conservation appealed this decision. Sadly, our Society in their water pollution client Pete Gray passed away in case against Delta Electricity. Delta May 2011, a signifi cant loss for the Electricity appealed this decision to environmental community. Naomi the NSW Court of Appeal which Hodgson is continuing this case. upheld the protective costs order. In other climate change litigation, Both judgments serve as important the EDO is also challenging precedents on protective costs a number of decisions of the orders in public interest litigation. Minister for Planning to approve The EDO has continued its role in three coal-fi red power stations. challenging planning decisions in order The EDO also brought an important to improve government accountability. water case in 2010-2011. Snowy River The case Australians for Sustainable Alliance Inc v Water Administration Development v Minister for Planning Ministerial Corporation focused on & Ors focused on the failure of the whether the Snowy licence review proposed Barangaroo development process was fl awed by a failure of to comply with the requirements for the Snowy Scientifi c Committee remediation of contaminated sites and to produce state of environment the failure of the Planning Minister to reports as required by law. consider relevant State Environmental Planning Policies. In an extraordinary Biodiversity continues to be a move, the Planning Minister made priority for the Offi ce. In Bat an executive order just prior to Advocacy v Minister for Environment the judgment being handed down,

10 which removed the requirement By combining our attributes with for the Barangaroo development the professionalism and hard to comply with contamination laws. working ethos of the EDO, we In his judgment, Justice Biscoe was have produced a legal challenge highly critical of the Minister’s conduct that has given the environment of and noted that he would have found our beautiful beach every chance in favour of the EDO’s client but of retaining its natural state. for the Minister’s intervention. We Whatever the outcome, we feel also successfully mediated a second we have been represented in the case for Australians for Sustainable best possible manner and given Development on the basis of the every conceivable chance to achieve Coalition Government’s commitment the most positive outcome. to a review of the planning process for Barangaroo in response to community The EDO’s work with environmental concern about the process. activists has assisted a number of protestors to defend themselves The EDO was also involved in the against criminal charges and fi rst challenge to a sea dumping compensation orders. In particular, permit which allowed for the scuttling members of Rising Tide avoided of the ex-HMAS Adelaide off Avoca paying a $600,000 compensation Beach on the NSW Central Coast. order that was sought as a Legal and Advice Litigation No Ship Action Group v Minister for consequence of their protest at Environment, Heritage and the Arts the Newcastle Coal Loader. The was heard before the Administrative judgment clarifi es the type of evidence Appeals Tribunal (AAT). The required to establish a compensation AAT imposed signifi cantly stricter order for protest activity. conditions on the permit which required the removal of lead based The EDO provides free initial paints and PCB materials from the telephone advice and, if necessary, ship before it was sunk. Prior to the written advice on environmental decision being handed down, the law and policy. The EDO’s toll- EDO received a letter of thanks free telephone advice service, the from our client, which read: Environmental Law Line is staffed by a duty solicitor between 2pm- Without the faith and resolve of the 5pm Monday-Thursday in Sydney EDO our community would have and 9am-5pm Monday to Friday been forced to accept what we in the Northern Rivers Offi ce. perceive as an act of environmental vandalism that would in all In 2010-2011, the EDO dealt with probability affect our community 1,052 telephone inquiries on the for several future generations. Environmental Law Line. Of these, about 65% came from rural and Our community possessed the regional New South Wales, which passion, local knowledge and is consistent with past years. The commitment to seek the truth. subject matter of these inquiries is

EDO ANNUAL REPORT 2010-2011 11 varied, but most concern planning and development, tree disputes, Policy and Law zoning, public land management, compliance and enforcement, Reform Part 3A developments, freedom of information, Aboriginal cultural heritage, pollution and contamination, The EDO actively engages in threatened species, private environmental policy and law reform conservation, biobanking, defamation activities in New South Wales, at a and activism including protest issues, federal level, and internationally where community rights, mining and coal relevant to domestic law and policy. seam gas activities, water, forestry and In 2010-2011, the EDO drafted misleading and deceptive conduct. over 30 submissions in response 180 casework ﬁ les were opened to legislative reviews, government during the reporting period, proposals and parliamentary inquiries, representing matters involving many of which had extensive scientiﬁ c

Policy and Law Reform Law and Policy litigation and detailed written advices, input. On the basis of its submissions, many with signifi cant scientifi c input. the EDO is regularly requested Of these, 23 casework fi les were to address State and federal closed in the reporting period (a parliamentary inquiries and public large number of fi les were closed forums; and to meet with government just outside the reporting period, agencies and environment groups with the administrative delay due that lobby for law reform. to a change of premises). 53 minor The Offi ce’s submission work assistance fi les were opened during in 2010-2011 was fairly evenly the period and 47 were closed. spread between fi ve of our priority areas: climate change and energy, biodiversity conservation, natural resource management, planning and development, and environmental justice. The EDO provides law reform advice to environmental and community groups on current, proposed and potential environmental laws and policies. The EDO also provides legal and policy advice on potential legislative amendments to members of the cross-bench, Opposition and Government via formal briefi ng sessions and meetings.

12 In 2010-2011, this included advice on: on the State of Planning in • The review of the Threatened New South Wales; and Species Conservation • A law reform paper on Act 1995 (NSW); Mining law in NSW. • Amendments to the EDO policy work also involved Environmental Outcomes participation on various stakeholder Assessment Methodology panels. The EDO’s input at such under the Native Vegetation forums is expertise-based, and is a Act 2003 (NSW); crucial element of its key stakeholder • The Illegal Logging Prohibition and law reform role. In 2010-2011, Bill 2011 (Cth); the EDO continued to provide feedback to the Department of • The Carbon Farming Initiative Environment, Climate Change Bills 2011 (Cth); and and Water (and subsequently • The Product Stewardship the Offi ce of Environment and Bill 2011 (Cth). Heritage) as a member of: Policy and Law Reform Law and Policy The EDO is regularly retained to • The Ministerial Reference give policy advice on a particular Group on Biobanking; area of law or to develop law • The Beverage Container reform proposals for environment Deposit Group; and groups or the Government on a consultancy basis. Major advice • The Contaminated Land projects in 2010-2011 included: Management Committee. • Advice to Greenpeace on banning The EDO was also consulted by the the import of illegal timber; federal Department of Sustainability, Environment, Water, Population • An overview of domestic and and Communities (SEWPaC) on foreign law and policy relating biodiversity offset policies, and to sea level rise, erosion and implementing reforms to the federal inundation for the Sydney Environment Protection and Biodiversity Coastal Councils Group; and Conservation Act 1999 (EPBC Act). • A review of compliance The EDO also assists environment with NSW forestry laws for groups with advice on law reform the Nature Conservation issues. For example, we continued Council of NSW (NCC). to advise the Environment These projects complement proactive Liaison Offi ce (a coalition of nine policy work on issues that the EDO NSW environmental groups), identifi es as requiring law reform. the NCC Mining Group and Our proactive projects included: the NCC Water Group. • A major report for the NCC Often the EDO’s policy work and Total Environment Centre is presented to the community through workshop presentations

EDO ANNUAL REPORT 2010-2011 13 and guest speaker appearances at conferences. In this way, the Scientiﬁ c and EDO’s policy work complements the EDO’s Education Program. Technical Advice

The role of the Scientifi c Advisory Service is to provide objective scientifi c advice to the EDO and its clients on public interest environmental matters. This advice contributes to the range of work undertaken by the EDO. The Scientifi c Advisory Service comprises: 1. Two in-house environmental scientists; 2. A Technical Advisory Panel, which comprises academic experts who provide strategic advice to the EDO on scientifi c

Scientifi c and Technical Advice Technical c and Scientifi issues on a pro-bono basis; and 3. An Expert Register, which comprises over 130 scientifi c experts in a range of fi elds who assist the EDO from time to time on a pro bono basis. Members of the Technical Advisory Panel during the year were: 1. Professor Richard Kingsford, Professor of Environmental Science, University of NSW; 2. Dr Iain MacGill, Senior Lecturer in Energy Policy and Technology, University of NSW; and 3. Professor Chris Dickman, Professor of Terrestrial Ecology, University of Sydney.

14 The scientifi c advice work provided Inc v Minister for Planning, where by the Scientifi c Advisory Service expert evidence was used to support can be categorised as follows: the client’s arguments relating to • Pre-decision and casework; contamination on the Barangaroo site. • Compliance and monitoring; To assist with their work, the in- house scientists have also consulted • Policy and law reform; and and worked with over 25 experts • Community legal education. in the past 12 months, both from and outside the Expert Register. Pre-decision and casework Compliance and monitoring The Scientifi c Advisory Service provides advice on proposed The Scientifi c Advisory Service developments or actions prior provides advice on approved to a decision being made. This developments or actions. This mainly mainly involves advice on the involves advice on the compliance impacts of developments and the of developments and actions with adequacy of environmental impact conditions of approval or regulatory assessments to assist clients in requirements, as well as assisting the preparation of submissions clients to prepare submissions to decision-makers. If the matter to regulatory authorities. progresses to Court, the in-house The in-house scientists have scientists get involved in aspects reviewed environmental assessment Advice Technical c and Scientifi of casework, such as identifying documents, undertaken research and briefi ng expert witnesses. and provided advice on specifi c In the reporting period, the Scientifi c technical issues for around 15 Advisory Service has been heavily matters in the reporting period. involved in two merits cases, both challenges to coal mine approvals: Policy and law reform Ironstone Community Action Group Inc. The Scientifi c Advisory Service v Minister for Planning & Duralie Coal contributes to the EDO’s policy and Pty Ltd; and Hunter Environment Lobby law reform submissions and discussion Inc. v Minister for Planning and Ulan Coal papers. This involves research and Mines Ltd. For these two cases, the advice on the scientifi c aspects of Scientifi c Advisory Service sourced government policy proposals and the and assisted with briefi ng expert EDO’s priority law reform areas. witnesses in the areas of groundwater, water quality, threatened species and In 2010-2011, the in-house scientists endangered ecological communities, assisted with the preparation air quality and climate change. The of 12 EDO or ANEDO policy Scientifi c Advisory Service also made submissions, including submissions a signifi cant contribution to the case on the draft Guide to the Murray Australians for Sustainable Development Darling Basin Plan and the Carbon

EDO ANNUAL REPORT 2010-2011 15 Farming Initiative, and proposed changes to the methodologies for Community biocertifi cation, biobanking and native vegetation clearing. The Programs Scientifi c Advisory Service also contributed to EDO discussion papers on marine biodiversity and In 2010-2011 the EDO’s climate change and mining reform. community programs were: • The Community Legal Community legal education Education Program; The Scientifi c Advisory Service • The International Program; and presents at workshops and • The Indigenous seminars, provides advice on Engagement Program. scientifi c aspects of plain English publications, and prepares fact 1. COMMUNITY LEGAL

Community Programs sheets on scientifi c issues. EDUCATION PROGRAM In 2010-2011, the in-house scientists have had input to a number of EDO The Community Legal Education publications, given presentations, Program aims to empower arranged for members of the the community to protect the expert register to speak at EDO environment through law. This is seminars and have continued to achieved through a range of education lead the Green Offi ce program. tools, specifi cally community workshops, seminars and plain English publications. The Education Program helps to build community capacity to engage effectively in environmental decision-making and to respond to environmental issues. Through the Education Program, the EDO is able to engage early in particular matters and help communities to take a more proactive approach to the environmental issues they face. The Education Program is focused on rural and regional NSW. This allows the EDO to stay abreast of the environmental issues facing rural and regional communities and to ensure its services are directed to where they are most needed.

16 Workshops an opportunity to examine a legal environmental issue from different A total of 29 free community legal perspectives and also to encourage education workshops were held discussion, including of new ideas throughout rural and regional New for law reform. In Sydney, most South Wales during the past 12 of the seminars were part of the months. Workshops covered a EDO’s urban sustainability seminar range of environmental law issues, series, a project funded by the City including mining, planning, coastal of Sydney. In the Northern Rivers, law and climate change, private the seminars addressed the use of conservation and various aspects pesticides and the energy sources of natural resource management. for the Northern Rivers region. Through workshops, the EDO was able to provide topical legal education to over 1000 people. Publications Workshops allow the EDO to The EDO’s plain-English publications engage early in environmental law are an important feature of the Community Programs issues and provide the community Education Program. Publications help with timely information about the EDO to engage with a broad how to engage in decision-making cross section of the community and processes. The community greatly to increase the reach of the Ofﬁ ce. appreciates this assistance. As one Publications cover a wide range workshop attendee commented: of subjects and come in various formats, all of which are available I’d like to express my thanks for free to the community, either as the great job done on the day. It hard copies or online. In 2010-2011, was interesting, informative and a the EDO’s publications were: magniﬁ cently sustained effort on [the part of the speaker]. Everyone • Caring for the Coast: A Guide to I spoke to after the meeting were Environmental Law for Coastal impressed and came away with a Communities in NSW broader insight into the issues. The EDO printed 10,000 copies of this new publication during the Seminars year and they are available for free Eight free seminars covering a upon request. Caring for the Coast range of topical issues were held in is a guide to the various laws that the Sydney metropolitan area and address coastal environmental throughout the Northern Rivers and planning issues in NSW. It region during 2010-2011. These aims to assist coastal communities seminars were attended by over to engage in decisions that affect 300 people. EDO seminars focus on coastal environments. The booklet is new and emerging environmental funded by the Federal Government’s law topics and are presented by Caring for Our Country Program. relevant experts. They provide

EDO ANNUAL REPORT 2010-2011 17 • A Guide to Private most likely to be used on the major Conservation in NSW crops in the Northern Rivers. This publication was updated and • Caring for Country: A Guide reprinted in the reporting period. to Environmental Law for The booklet outlines and critically Aboriginal Communities analyses the various options for private conservation that are available The EDO has continued to provide in NSW and aims to increase the this free publication upon request. uptake of private conservation in The publication was updated NSW. The funding for this project during the reporting period and came from the NSW Government plans are underway to print more through its Environmental Trust. copies for distribution. This booklet 20,000 copies have been printed and is designed to assist Aboriginal are available for free upon request. communities to understand and utilise environmental laws to protect their • Rural Landholder’s Guide to land and their cultural heritage.

Community Programs Environmental Law in NSW • Campaigning and the Law in The EDO updated and printed a NSW: A Guide to Your Rights third edition of the Rural Landholder’s and Responsibilities. Guide to Environmental Law in NSW in the reporting period. This This online publication provides publication has been funded by practical information to campaigners the NSW Government through about the possible criminal and civil its Environmental Trust and implications of their actions and is remains one of the EDO’s most used as a reference guide by many of popular publications. To date, the major campaigning organisations approximately 50,000 copies of as well as local community groups this free publication have been and individual campaigners. distributed. It covers a range of • Environmental Law Fact Sheets natural resource management issues, including native vegetation, water, The EDO’s online environmental bush ﬁ res, the use of chemicals, stock law fact sheets are perhaps the control and private conservation. most popular service provided by the Education Program. The fact • Getting the Drift: A Community sheet homepage is the second most Guide to Pesticides Sprayed in visited page on the EDO website the NSW Northern Rivers (after the home page). The fact The ﬁ rst edition of this booklet was sheets are regularly reviewed and produced by the EDO in conjunction updated to ensure their currency. with the National Toxics Network During the reporting period, some and published in October 2010. It new fact sheets were added to the explains the regulatory framework collection, including a fact sheet on for pesticides and details those the new legal regime for accessing government information. A small

18 range of science fact sheets is also media coverage, developments available and there are plans to in environmental law and policy, expand this range in the coming year. opportunities to participate in Fact sheets are often used by the State and federal environmental public to help them understand decisions and community events the law as it applies to them and with an environmental focus. can be a ﬁ rst point of contact with • Climate Law Bulletin the law, as well as with the EDO. As one individual commented: The EDO’s climate bulletin is a bi-monthly e-bulletin dedicated I just discovered that a mining to climate change law and exploration licence has been granted policy. It provides an overview that includes my property on the of developments in climate law Upper Murrumbidgee River. Your fact and policy at both the national sheet on the subject gave me all the and international level. information I need to understand

the situation, including citing the • Mining and the Law: A Community Programs relevant provisions of the legislation. guide for the community Thank you! This is a very confusing The EDO has received funding from area of law and I’d never have found the NSW Environmental Trust to such clear information without you. produce a new booklet on mining law • IMPACT! in NSW. Work on this publication began in May 2011 and it is due This is a bi-annual journal that for release in 2012. This booklet is examines topical environmental law intended to provide a comprehensive issues from a range of perspectives. guide to the regulation of coal EDO NSW produces this publication and coal seam gas mining in on behalf of ANEDO. Issue 90 was NSW, with a focus on landholder entitled ‘Public Interest Environmental rights and advocacy strategies. Law in Australia: 25 Years On’ and comprised a selection of papers Papers and presentations presented at the EDO’s National Conference held in May 2010. EDO staff members are often Issue 91 was entitled ‘Ecologically invited to provide a public interest Sustainable Development’. perspective at external forums covering environmental or legal • e-bulletin themes. In 2010-2011, EDO staff The EDO’s free weekly e-bulletin delivered 40 presentations at continues to be a popular resource conferences, universities and with a subscriber list of over community legal education seminars. 2,000 and nearly 5000 downloads EDO staff also published 10 papers in in the reporting period. The journals, bulletins and books, including: e-bulletin updates subscribers on EDO news and events, including

EDO ANNUAL REPORT 2010-2011 19 • Thorpe, A (2010) “Bringing • Hallinan, J (2011) “Environment Plan-making Back Into Planning,” and the Law” 23 Legal Date 1, p. 2 99 Architecture Australia 25 • Ruddock, K (2010) “Why Website Major Projects Legislation is The EDO website contains an Bad for the Environment and extensive range of information Public Participation: The NSW on the EDO’s core functions Experience,”25 Australian such as information on access Environment Review 9 & 10, p. 5 to the EDO’s services, copies of • Smith, J (2010) “How Adaptable policy submissions, case notes on Are Our Conservation Regimes?” litigation, information on up-coming in Bonyhady et al (eds) Adaptation workshops and seminars, copies of Law and Policy, Federation Press most EDO publications and links to EDO ofﬁ ces in other States. • Ruddock, K (2010) “Case Note on Coxs River Case,” National In 2010-2011, a total of 375,000 Community Programs Environmental Law Review web pages were viewed on the EDO NSW website. This amounts • Poisel, T (2010) “The Power of a to an average of over 30,000 page Roads Authority to Remove Trees downloads per month, an increase Trumps the EPA Act”, 25 Australian of 23% over the previous year. Environment Review, 9 & 10, p. 11 The website regularly receives positive • Ruddock, K and Howarth, R feedback from the community. (2010) “Climate Law Reform- One individual commented: Victoria Leads the Way”, CCH Climate Law newsletter I just need to say how amazing your site is and your fact sheet • Ruddock, K (2010), “Protective section is especially great. Thank Costs Orders and Access you for de-comodifying the law. to Justice: The Coxs River Case”, National Environmental The address of the EDO website Law Review, 2 & 3, p. 47 is www.edo.org.au/edonsw • Thorpe, A and Ogle, L (2010) “Staying on Track: Tackling 2. INTERNATIONAL Corruption Risks in Climate PROGRAM Change” New York, United Nations The EDO is committed to improving Development Programme the effectiveness of environmental • Millner, F and Ruddock, K law as a tool for defending the (2011) “Climate Change environment internationally. For Litigation- Lessons Learned a number of years, the EDO has and Future Opportunities” 36 worked with partner organisations Alternative Law Journal 1, p. 27 to build capacity in public interest environmental law in the South Paciﬁ c, primarily in Papua New

20 Guinea (PNG), Fiji and the Solomon Highlights of the EDO’s capacity- Islands. The EDO’s international work building work in 2010-2011 include: also involves policy development, • Conducting training on negotiating placing volunteers through AusAID’s multilateral environmental AYAD, VIDA and AVI programs, and agreements (MEAs) and United participating in international networks. Nations processes in conjunction The EDO is a signatory to the with the Secretariat of the Australian Council for International Pacifi c Regional Environment Development (ACFID) Code of Programme in the Solomon Conduct. The EDO is committed to Islands, Fiji and Timor-Leste. full adherence with the Code. For Participants gained a working further information on the Code knowledge of key MEAs and the please refer to the ACFID Code of capacity to negotiate and make Conduct Implementation Guidance interventions in an MEA meeting. available at www.acfi d.asn.au. This site • Bringing lawyers from the also includes information about how Solomon Islands to attend Community Programs to make a complaint in relation to any training, watch EDO matters breach of the Code by the EDO. before the Land & Environment Court and meet with judges, Capacity-building in barristers, scientists and others the South Pacifi c practising law. This training The EDO has provided legal gave participants an insight into assistance to organisations in the public interest environmental South Pacifi c since 1991, and since litigation from a New South 1998 has received funding from the Wales perspective, with the MacArthur Foundation to conduct potential for the knowledge capacity-building work in the region. gained, where relevant, to be In 2010-2011 the EDO provided applied in the Solomon Islands. assistance to organisations in PNG, • Drafting and publishing a booklet the Solomon Islands, Fiji, Vanuatu, entitled ‘Reducing Emissions Kiribati, Nauru and Timor-Leste. from Deforestation and Forest In addition to continuing requests for Degradation (REDD): A Guide legal advice, partner organisations for Landowners and Forest are increasingly seeking assistance Communities in the Pacifi c’, with policy and scientifi c matters. which has assisted and will Whilst climate change continues to continue to assist landowners be the signifi cant issue for partner and forest communities to organisations, a notable proportion understand REDD projects. of our capacity building work in With regards to this book, one of our 2010-2011 related to challenges partners in the Pacifi c commented: to illegal logging operations and Thanks for your generosity in large scale mining proposals. supplying the very informative

EDO ANNUAL REPORT 2010-2011 21 booklet. As a promoter of carbon In response to the award of damages, trade, I always give what is best local lawyers contacted the EDO available to landholders to read to personally to share the good news: make good judgement whether or I am writing to let you know about not to reserve their forests or have the Court decision handed down them logged as well as students who today by Justice Cathy Davani. She have graduated from the Solomon ordered the logging company to pay Islands College of Higher Education massive K226.500 000. She relied and are doing teaching in rural areas. on reports by our three scientists… • Providing legal, scientifi c and to reach the decision. This is the policy advice to groups in PNG, fi rst time any court in PNG has Fiji, the Solomon Islands, Samoa made such a decision against a and Vanuatu on issues including logging corporation so should send development assessment, a clear signal to the loggers. We constitutional law, coastal law, are very happy with the decision fi sheries, forestry law and United and are holding a celebration today. Community Programs Nations processes. This support Thank you all for your support has provided lawyers in our partner with this case. It’s a victory for the organisations with examples of local landholders and for us all. thorough and professional legal and scientifi c research and writing. Volunteer placements In addition, our work in this area has raised the communities’ The EDO is an Australian Partner understanding of their legal rights Organisation for the Australian Youth and enabled the prosecution of Ambassadors for Development ground breaking public interest (AYAD), Volunteering for environmental litigation in the International Development from Pacifi c, including the fi rst public Australia (VIDA) and Lawyers interest environmental law case in Beyond Borders (LBB) programs. the Solomon Islands which, through These schemes enable the EDO to work undertaken by an EDO create AusAID funded-placements volunteer, resulted in an injunction for Australians with organisations preventing the illegal logging of in the Pacifi c and Asia. EDO over 20,000 hectares of forest on engagement with these programs Kolombangara Island, Western has expanded signifi cantly in Province, as well as a historic the past two years, enabling the award of damages of K225.5 million placement of record numbers of (approx. AUD$100 million) to four volunteers to provide much needed- tribes in the Western Province of support to partner organisations. PNG for environmental destruction The EDO facilitated the creation of 13 (including pollution of river new volunteer assignments in 2010- systems) caused by illegal logging. 2011. The assignments were in the areas of climate change, biodiversity,

22 environmental impact assessment, the contact group to ﬁ nalise text natural resource management, land on the “Tkarihwaié:ri Code of owner advocacy, human rights and Ethical Conduct on the Respect environmental management. Roles for the Cultural and Intellectual ranged from legal advisory roles, Heritage of ILCs Relevant to the through to policy, education and Conservation and Sustainable advocacy positions. Host countries Use of Biological Diversity” that included Fiji, PNG, Tonga, Samoa, the was adopted at the meeting. Solomon Islands, Vanuatu, Kiribati, As with the last reporting period, Timor Leste, Mongolia and Vietnam. EDO staff provided updates to the National Indigenous Peoples International policy Organisations (IPO) network engagement meetings coordinated through In 2010-2011, climate change the Australian Human Rights and biodiversity continued Commission on a quarterly basis and annually to the Australian to be the focus of the EDO’s Community Programs international policy work. Law Reform Commission Aboriginal Advisory Group. The EDO attended the Transparency International Workshop on International networks Corruption in Climate Change Governance, Berlin, Germany, in The EDO and its staff continued June 2010. The EDO also undertook to participate actively in a range considerable work on international of networks in 2010-2011, climate change policy during particularly the Environmental Law the year, including in relation to Alliance Worldwide (E-Law), an human rights and climate change international network of public and climate change adaptation. interest environmental lawyers and scientists, and the International On biodiversity, the EDO attended Union for the Conservation of meetings of the Convention on Nature (IUCN), an international Biological Diversity (CBD). The network of over 1,000 governments EDO participated through the and NGOs and over 11,000 International Indigenous Forum on scientists, legal and other experts. Biodiversity (IIFB) in a number of key meetings, including the Interregional In November 2010, an EDO staff Negotiating Group of the Ad Hoc member attended the annual E-Law Open-ended Working Group on meeting which was held in Costa Access and Beneﬁ t-sharing, Montreal, Rica. The 3-day meetings provide Canada and the 10th Conference an opportunity for members to of Parties of the Convention on discuss and work together on Biological Diversity, Nagoya Japan. key environmental issues facing the international community. At COP 10, an EDO staff member was lead negotiator in

EDO ANNUAL REPORT 2010-2011 23 3. INDIGENOUS The Aboriginal Solicitor has ENGAGEMENT PROGRAM participated in international text based negotiations for the Nagoya A key element of the EDO’s Protocol which concluded at the Indigenous Engagement Program is 10 th Conference of Parties in Japan the employment of an Aboriginal after 5 years of negotiations. Solicitor working on litigation, legal advices, policy, international Further work of the Aboriginal advocacy and community education. Solicitor includes: As with the previous reporting • Providing advice to the Australian period, the EDO has continued to Law Reform Commission in her build relationships with existing clients capacity as a member of the as well as developing relationships Aboriginal Advisory Committee; with new clients, with increasing • Providing advice to the requests for legal and policy advices. Forest Stewardship Council Examples of legal advices specifi c to (FSC) on its Indigenous Community Programs Aboriginal interests have included engagement strategy and the advice on nominating Aboriginal establishment of an Indigenous cultural heritage sites under the Advisory Committee; and Heritage Act 1977 (NSW) and the • Participating in quarterly meetings Aboriginal and Torres Strait Islander as part of the Indigenous Heritage Protection Act 1984 (Cth). Peoples Organisations network The EDO has also provided ongoing hosted by the Australian assistance to an Aboriginal Land Human Rights Commission. Council to pursue an action for the The Aboriginal Advisory Committee damage of a registered Aboriginal has continued to provide invaluable site in Cromer. The EDO has also input into the work of EDO on an provided ongoing assistance to ad hoc basis, in particular providing Aboriginal clients in relation to Taylor guidance on the Aboriginal culture Oval in Moree and an Aboriginal and heritage law reform process keeping place that was dismantled. through the Offi ce of Environment The EDO has been represented and Heritage Aboriginal Cultural on the Offi ce of Environment Heritage Law Reform Working Party. and Heritage Aboriginal Cultural Heritage Law Reform Working Party that held its inaugural meeting in November 2010 and a second meeting in February 2011. The outcomes of the EDO’s Aboriginal Cultural Heritage Roundtables have informed this process.

24 In 2010-2011, the members of the Aboriginal Advisory Committee were: Media and 1. Tony McAvoy, Barrister, Frederick Jordan Chambers; Communications 2. Anthony Seiver, Senior Policy Offi cer, NSW Department The media is important to the EDO of Aboriginal Affairs; as it provides an effective means of 3. Clare McHugh, Director highlighting the issues we engage with Policy Unit, NSW Aboriginal and promoting the work of the Offi ce. Land Council; In 2010-2011, the EDO has received 4. Natalie Rotumah, Executive signifi cant media exposure, either Services Offi cer, NSW through direct mentions, or through Native Title Services; its clients where the media reported on one of the Offi ce’s matters. 5. Gavin Andrews, Aboriginal Liaison Offi cer, NSW Offi ce of The majority of the EDO’s media Environment and Heritage; exposure comes from newspapers, including many regional newspapers. 6. Professor Megan Davis, Director, EDO staff members also occasionally Indigenous Law Centre; participate in radio interviews to 7. Tabatha Timbery-Cann, discuss the environmental issues Communications Media and Catchment Offi cer, Sydney the Offi ce is engaging with. From Metropolitan Catchment time to time, EDO cases will Management Authority; and also be covered on television. 8. Constance Chatfi eld, Aboriginal The EDO or matters it engaged with Liaison Offi cer, Local Government received over 120 media mentions in and Shires Association. 2010-2011. Media coverage centred The EDO wishes to thank all the around several high-profi le cases that members of the Aboriginal Advisory were conducted during the reporting Committee for their input to the period. The court challenge to the work of the Offi ce over the past year. Barangaroo development (Australians for Sustainable Development Inc v Minister for Planning) attracted the most media attention, with over 18 newspaper articles dealing with that case, including: • Sydney Morning Herald: Taxpayers to foot $100 million Barangaroo cleanup bill (4 July 2010) • Sydney Morning Herald: City residents back legal action

EDO ANNUAL REPORT 2010-2011 25 as pollution fears aired • The NZ Herald: Frigate scuttled (13 September 2010) off NSW coast after dolphin • Sydney Morning Herald: delay (13 April 2011) Barangaroo plans are deeply The Snowy River case (Snowy River fl awed (24 September 2010) Alliance Inc v Water Administration • Sydney Morning Herald: 30 Ministerial Corporation) was covered years to clean up Barangaroo by newspapers and radio, as follows: (13 February 2011) • ABC News: Court battle • The Australian: Sydney’s looms over Snowy River Barangaroo development fl ows (24 July 2010) excised from NSW planning • Sydney Morning Herald: Wong law (3 March 2011) pledges water deal to save • Sydney Morning Herald: Judge Snowy River (12 August 2010) lashes Kelly over Barangaroo • ABC South East NSW: Snowy law (11 March 2011) River fl ows dispute reaches • Sydney Morning Herald: court (14 March 2011) Harbour Project Rethink The EDO commenced two Ordered (11 May 2011) challenges to coal mine approvals, Media and Communications Media and Another case that attracted signifi cant one in the Gloucester area and media attention was the challenge the other at Ulan near Mudgee. to the approval for the scuttling of These cases have been extensively the ex-HMAS Adelaide (No Ship covered in television as well as Action Group Inc v Minister for the newspaper and radio. For example: Environment, Heritage and the Arts • ABC Central West: Environment & Anor). That case was covered lobby group challenges Ulan Mine in both local, State-wide and expansion (21 January 2011) international newspapers, including: • The Newcastle Herald: • Central Coast Express Advocate: Ex- Licence concern on mine HMAS Adelaide sinking: hearing dust (31 March 2011) hinges on PCBs (6 July 2010) • Gloucester Advocate: Mine • Sydney Morning Herald: Appeal in Court (11 May 2011) Navy ship’s paint is toxic • Port Stephens Examiner: Mine Plan with lead (9 July 2010) ‘Toxic’ to Waterway (18 May 2011) • Central Coast Express Advocate: • ABC Lateline: Climate change Adelaide warship sinking decision used as legal challenge to weeks away (2 September 2010) mine (6 June 2011) • Sydney Morning Herald: Judge • ABC Newcastle: Court hears orders tough new rules for dispute over Gloucester coal scuttling (16 September 2010) mine expansion (28 June 2011)

26 The Moree Champion provided in depth coverage of the EDO’s case challenging plans to build a Big W over a recreational oval and a signiﬁ cant Aboriginal site in Moree. The media exposure helped to raise awareness of the important issues in dispute. One non-litigious issue that has drawn signiﬁ cant media attention is the EDO’s work around illegal logging. The EDO’s report into forestry breaches by NSW Forests was instrumental in raising awareness of ongoing and systemic breaches of forestry laws in NSW. Media coverage has included: • Independent Media Centre Australia: New report slams Forests NSW illegal logging (8 February 2011)

• Green Left Weekly: Forests Communications Media and NSW accused of illegal logging (13 February 2011) • ABC North Coast Radio: Conservationists seek action for logging breaches (1 July 2010) • Sydney Morning Herald: When trees fall in forests (12 November 2010) Through the Northern Rivers Ofﬁ ce, the EDO has published regular columns in the Northern Rivers Echo and the Byron Shire Echo. Columns have covered the Lismore Local Environmental Plan, the use of chemicals and pesticides, future energy sources for the Northern Rivers, and coal seam gas.

EDO ANNUAL REPORT 2010-2011 27 PART B: PRIORITY AREAS

through the emission of carbon Climate Change dioxide into the atmosphere. Bayswater Power Station, located and Energy in the Upper Hunter Valley, has the highest carbon dioxide emissions of all power stations in NSW. It has Casework been issued with an environment protection licence which licences the company to emit certain Seeking to limit greenhouse waste, but not carbon dioxide. gas emissions Macquarie Generation ﬁ led a motion Pete Gray and Naomi Hodgson to have the matter dismissed. Justice v Macquarie Generation Pain found that the Applicants’ On behalf of Peter Gray and Naomi argument that Macquarie Generation Hodgson, the EDO has commenced is not authorised to emit any carbon civil enforcement proceedings in dioxide at all was unlikely to succeed the Land and Environment Court and dismissed that part of their case. against Macquarie Generation. The However, Justice Pain did not dismiss Applicants are seeking a declaration the Applicants’ secondary argument. This was that, even if Macquarie

Climate Change and Energy Change and Climate that the State-owned company has been wilfully or negligently disposing Generation has an implied authority of waste at their Bayswater Power to emit some amount of carbon Station by emitting carbon dioxide dioxide in generating electricity, that into the atmosphere in a manner authority is limited to an amount that has harmed or is likely to harm which has reasonable regard and the environment in contravention care for people and the environment. of the Protection of the Environment This part of the Applicants’ case Operations Act 1997 (NSW). They was permitted to proceed to trial are also seeking an injunction Macquarie Generation is appealing requiring Macquarie Generation to to the NSW Court of Appeal against immediately cease disposing of waste the decision of Justice Pain to allow the Applicant’s secondary argument

28 to proceed to trial. Macquarie Both proposals were declared to Generation is arguing that Justice Pain be ‘critical infrastructure’ projects was wrong in fi nding that Macquarie under the Environmental Planning Generation’s licence to pollute and Assessment Act 1979 (NSW) contains an implied limitation on how (EPA Act), which means that the much carbon dioxide can be released. approvals cannot be challenged by The matter has been listed for third party objectors without the hearing on 13 September 2011. Planning Minister’s permission. Mr Haughton sought approval from the Minister to commence the Challenging new coal- cases and was refused so these fi red power stations cases also involved a challenge to Ned Haughton v Minister the validity of the privative clause. for Planning & Ors The cases were heard in September The EDO acted for Ned Haughton, 2010. Judgment has been reserved. a student and environmental activist, Hunter Community Environment in two sets of Land and Environment Centre v Minister for Planning Court proceedings in which he challenged the Minister for Planning’s The EDO is acting for the approvals of two new coal or gas Hunter Community Environment Climate Change and Energy Change and Climate fi red power stations – Bayswater Centre Inc (HCEC) in Land and B Power Station and the Mount Environment Court proceedings Piper Power Station extension. challenging the Minister for Planning’s approval of the revival Mr Haughton challenged the validity of the Munmorah Power Station. of the approvals on several grounds but, most signifi cantly, on the ground The proposal by Delta Electricity that the Minister failed to consider to revive the Munmorah Power the impact of the projects (both Station has been declared to alone and together) on climate be a ‘critical infrastructure’ change. Mr Haughton argued that project under the EPA Act. the Minister was required to do so If the power station is powered as part of his duty to consider the entirely by coal, it will generate public interest. Similarly, Mr Haughton approximately 4.2 million tonnes sought to establish that the Minister of greenhouse gases per year. failed to consider the principles of HCEC will be challenging the validity ecologically sustainable development of the project approval on the (ESD), particularly the precautionary ground that the Minister failed to principle and the principle of consider the principles of ecologically intergenerational equity, as he was sustainable development, particularly also required to do as part of his the precautionary principle and the duty to consider the public interest. principle of intergenerational equity,

EDO ANNUAL REPORT 2010-2011 29 as he was required to do as part of his • A GIPA application to the duty to consider the public interest. Australian Energy Regulator; and The proceedings also involve a • A GIPA appeal to the Information challenge to the operation of a Commissioner on electricity privative clause in the EPA Act which contracts and price rises. purports to prevent judicial review of breaches of the EPA Act in respect Policy and Law Reform of critical infrastructure projects. Climate change has been a key focus The matter is not yet of the Federal Government over the listed for hearing. past year and the EDO has monitored and responded to the Government’s Legal and Technical Advice climate policies. For example, Climate change and its impacts we contributed to an ANEDO continue to be of concern to EDO submission to the Department of clients. Our work in this fi eld can Climate Change and Energy Effi ciency be categorised as encouraging (the Department) on the architecture either mitigation or adaptation. and implementation arrangements for a carbon pricing mechanism. We We are regularly asked to provide also worked with ANEDO on a advice on legal strategies designed Climate Change and Energy Change and Climate submission to the Department on the to avoid climate change. For key elements needed to effectively example, we provided ongoing regulate a domestic Carbon Farming advice to conservation groups Initiative (CFI) offsets scheme. The on possible Class 1 challenges to EDO’s in-house scientists assisted approvals for new coal mines. with the technical aspects of that We also regularly advise clients submission. EDO Victoria then about the best way to respond to went on to prepare ANEDO’s the threats posed by climate change. further submission to a Senate For example, we have advised our Committee Inquiry into the CFI Bills, clients and written to councils about with assistance from EDO NSW. the sea level rise risks associated Climate change mitigation and with new coastal developments adaptation measures are of at Lakes Beach and Long Reef. growing signifi cance to NSW Energy production is a major coastal communities. This year contributing factor to climate the Sydney Coastal Councils change and the EDO has Group commissioned the EDO to worked with the community on undertake a detailed comparative a number of issues relating to analysis of legislation and policy energy production, including: that deals with sea level rise, coastal erosion and inundation in • Advice regarding the Australian jurisdictions. Additional Transgrid Australian Energy case studies were drawn from Regulator investigation;

30 New Zealand, the UK, South Africa and several US states. The paper also outlined recommendations for NSW law reform.

Education EDO staff members have been involved in a number of events, workshops and presentations concerning climate change and energy. The EDO has had ongoing involvement with the North Coast Energy Strategy, which culminated in the North Coast Energy Forum in Mullumbimby in June 2011. The EDO also held community workshops on coastal law and climate change in Coffs Harbour and Narooma. Climate Change and Energy Change and Climate EDO staff presented seven papers on climate change to various forums, including the NELA Conference and the Armidale Sustainable Living Expo. A paper co-written by EDO Principal Solicitor Kirsty Ruddock and Donna Green entitled “What Legal Recourse Do Non-State Islands Have for Adaption to Climate Change?” was presented by Donna at the Drowning Islands Conference held at Columbia University. EDO staff also presented a paper entitled “Audit of sea level rise, coastal erosion and inundation legislation and policy” at the Sydney Coastal Councils Group and CSIRO Workshop.

EDO ANNUAL REPORT 2010-2011 31 signiﬁ cant impacts and the LEP Environmental should have been re-exhibited.]

Planning and Challenging inappropriate Development urban development Australians for Sustainable Development v Minister for Planning [2011] NSWLEC 33 Casework In November 2010, the EDO commenced Land and Environment Promoting sound Court proceedings on behalf strategic planning of Australians for Sustainable Development Inc (AfSD) to Friends of Turramurra Inc v Minister challenge two approvals of the for Planning [2011] NSWLEC 128 Minister for Planning in relation The EDO acted for Friends of to a major urban development at Turramurra Inc who commenced Barangaroo, East Darling Harbour. proceedings in the Land and The approvals being challenged Environment Court to challenge related to the excavation of a building the decision of the Minister footprint and a car park for almost for Planning to gazette the Ku- 900 cars and the early works for a ring-gai Local Environmental Plan headland park and northern cove, (Town Centres) 2010 (LEP). including use of the excavated ﬁ ll The case focused on whether the from the car park for the public park. correct procedures were followed Part of the Barangaroo site and for making a new LEP under the surrounds contain poisonous toxins Environmental Planning and Assessment from gas works that were once Act 1979 (NSW) (EPA Act), with conducted in the area. Investigations particular focus on biodiversity

Environmental Planning and Development Planning and Environmental by the Environment Protection issues and public participation. Authority found that there were The matter was heard in reasonable grounds to believe that November/December 2010. the site was contaminated in such a [Postscript: Judgement was way as to present a signiﬁ cant risk to handed down on 28 July 2011. human health and the environment. Justice Craig found that the LEP AfSD claimed that carrying out had been made contrary to the excavation works before cleaning provisions of the EPA Act and up the source of the contamination was therefore of no legal force or posed a serious risk of these toxins effect. In particular, his Honour ﬂ owing into Sydney Harbour. They agreed that the changes made to argued that before any action the LEP after public exhibition had could be taken, the site needed

32 to be remediated in line with The Applicant claimed that the State Environmental Planning Policy decision of the Minister for Planning 55 (SEPP 55) which relates to to approve the modifi cation was contaminated land. Because the in error because the proposal was remediation plan for the site did not substantially and materially different in comply with SEPP 55, AfSD sought its nature, extent and environmental declarations that the approvals consequences from the concept plan. were invalid and of no effect. The most controversial change The matter was heard in early was a hotel proposed to be February 2011. Just prior to a built over Sydney Harbour. decision being handed down, the The case was listed for hearing Minister for Planning issued an in May 2011. However, the case order to exempt the development was adjourned after the parties from the application of SEPP 55. agreed to mediate the proceeding. Justice Biscoe delivered judgment on Following mediation, the Minister 10 March 2011, noting that he would for Planning announced he would have upheld the appeal if it were undertake an independent review of not for the Minister’s intervention. the Barangaroo development. The The judgment records the Court’s AfSD withdrew their case completely signifi cant criticism of the remediation once the terms of reference of plans for the site and concern that the the review were announced. plans failed to adopt clear remediation The review ultimately recommended goals. As a result, the Judge made changes to the site, including an order for the Applicant’s costs removing the hotel from its planned to be paid by the Respondents position over the harbour. and an indemnity costs order against the Minister for Planning. Legal and Technical Advice Australians for Sustainable Development EDO solicitors often utilise planning Inc v Minister for Planning, Lend laws to achieve environmental Lease (Millers Point) Pty Ltd and outcomes. Advising communities on Development Planning and Environmental Barangaroo Delivery Authority how to engage in the development The EDO also acted on behalf assessment process can result in of Australians for Sustainable better decision-making. Where Development Inc in a second the community is concerned about case challenging the concept environmental issues associated with plan for the Barangaroo site. planning decisions or where legal The challenge related to the errors are made in the decision- fourth modifi cation to the concept making process, the EDO advises plan for the Barangaroo site communities about their legal options. and the scope of the power to This year, much of the advice work modify a Part 3A approval. in this fi eld once again focused on

EDO ANNUAL REPORT 2010-2011 33 Part 3A of the EPA Act. This part • Written to Nambucca Shire of the Act sets out the assessment Council alerting council to errors process to be followed by the in the characterisation and use Department of Planning when of land as a piggery at Tewinga; assessing major projects and critical • Advised residents regarding infrastructure. It is these types possible grounds for challenging of projects that tend to generate a subdivision approval by the most community concern and Byron Shire Council; requests for EDO assistance. • Written to Bega Council Some of the advice provided by the about Bega tip on behalf of EDO on Part 3A projects included: affected residents; and • Advice to residents about a • Written to Wyong Council about Railcorp project that involved the concerns regarding its coastal acquisition of heritage houses; foreshore area and council’s • Advice on the State signiﬁ cant proposal to develop the area. listing of sites under the SEPP The EDO also assisted clients to (Major Development) 2005 engage in the strategic planning • Advice on a Part 3A proposal framework, particularly with regards to rebuild Cardinal Freeman to the development of Local Village at Ashﬁ eld; Environmental Plans (LEPs). The EDO • Advice regarding Class 4 assisted local residents to ensure proceedings in relation to a Part that new LEPs were compliant with 3A approval at Hearnes Lake; legal requirements. In particular, the EDO assisted Ku-ring-gai residents • A letter to the Department of with issues regarding rezoning in the Planning about the compliance Ku-ring-gai LEP. We also advised of the environmental assessment Penrith residents on grounds for for the north Nowra link challenging the Penrith LEP. road with the Director- The community has a key role to play Environmental Planning and Development Planning and Environmental General’s requirements; and in ensuring planning laws are complied • Advice on plans to expand with. The EDO is often asked to Berowra Waters East marina. assist the community to enforce Council decisions to approve breaches of the law, particularly local development can also be breaches of conditions of consent. controversial. The EDO has For example, this year the EDO has: assisted affected residents to • Written to Richmond Valley have their voices heard by local Council regarding pollution of councils. In particular we have: land and water due to use of • Advised on a possible challenge land for an industrial purpose to Bega Council’s decision to with no development consent approve a Pellet Mill at Eden;

34 or environmental pollution outcomes. The Report stated that mitigation measures in place; over 70 amendments were needed • Advised Cheltenham to ﬁ x the planning laws. The Report residents about an alleged was described by one NSW resident breach of development as ‘a breath of fresh air amidst the consent by a local school; stench of the NSW planning system’. • Written to Lismore City The ‘State of Planning in NSW’ report Council regarding an alleged suggested that the Environmental breach by a truck depot of its Planning and Assessment Act 1979 development consent resulting (NSW) should be replaced by a new in allegations of pollution of Act. The Report identiﬁ ed 10 key Lismore’s main Wilson’s River; elements for a new planning Act that are needed to achieve ecologically • Advised on the compliance of sustainable development (ESD), and a convention centre proposed restore balance, transparency and over Crown Land with the accountability to the planning system. Newcastle LEP and Crown Lands Act 1999 (NSW); • Advised on the compliance of Case Study: Reconnecting a sand mining facility with the requirements of the Environmental the Community with Planning and Assessment Act the Planning System 1979 (NSW). We also provided Prior to the ‘State of Planning in calculations on groundwater NSW’ report, the Total Environment use and interception; and Centre (TEC) and EDO collaborated • Written to the Minister for on a project designed to reconnect Lands about the compliance of the community with the planning a development at King Edward system. The EDO prepared a Park, Newcastle with the Plan discussion paper outlining the key of Management for the park. features of the planning system, and encouraging readers to consider Development Planning and Environmental Policy and Law Reform which features they would and would not retain in a ‘best practice In late 2010, the Total Environment planning system’. The TEC and Centre and the Nature Conservation EDO then conducted several Council of NSW commissioned the community workshops throughout EDO to undertake a review of NSW NSW to gauge the public’s views planning laws. The ‘State of Planning of the planning system. This in NSW’ report concluded that the feedback was then incorporated planning system had become complex into a report by the EDO. and highly politicised, disconnected The report, ‘Reconnecting the from local communities, and was no community with the planning system’ longer facilitating good environmental

EDO ANNUAL REPORT 2010-2011 35 (August 2010), aimed to provide Education the Department of Planning with an Over the past year, local councils informed assessment of how people throughout NSW continued to view the current planning system, update their local environmental and recommended ways that the plans (LEPs) to comply with the State Department could reconnect the Government’s Standard Instrument. community with the system. The main This provided a unique opportunity conclusion was that the community for communities to have a say about generally felt disconnected from the how their local areas develop in planning system, highly frustrated, and coming years. The EDO held a cynical about the value of engaging number of workshops to assist the with it. Recommendations were community to engage effectively in provided across 10 themed areas. the LEP-making process. Workshops Following the report’s release, the were held in Coffs Harbour, Evans Department of Planning outlined a Head, Springwood and Nowra. plan in response – ‘The Community EDO staff also presented a workshop and the Planning System – Action on planning law and Aboriginal Plan’. It noted a number of initiatives cultural heritage at Batemans Bay. for reconnection, and deferred some issues for consideration to any Last year the City of Sydney funded future review of the Environmental the EDO to present a series of Planning and Assessment Act seminars exploring the sustainability 1979 (NSW) or its successor. of Sydney. Each seminar focused on The August 2010 report and the a different measure of sustainability Department’s response are available such as homes, food and transport. on the Department’s website. This year, the EDO completed the series with two urban sustainability seminars; the ﬁ rst dealing with trees and the second dealing with buildings and workplaces.

Environmental Planning and Development Planning and Environmental EDO staff also presented a number of papers addressing NSW planning laws, including a continuing legal education seminar for practising lawyers organised by Legalwise and a lecture on planning law to students studying at the University of NSW.

36 aside in previous court proceedings Biodiversity in which the EDO also acted. This matter was heard in the Land Conservation and Environment Court in June 2011, with judgment handed down on 7 July 2011. The Court found in favour of Casework SWAG on two of its three grounds, declaring that the decision of the Minister to recommend the making Promoting ecologically of an amending SEPP to give effect sustainable development to the rezoning was void, and that Sweetwater Action Group Inc v Minister the amending SEPP was also void. for Planning [2011] NSWLEC 106 The Sweetwater Action Group The EDO acted on behalf of had this to say about the case: the Sweetwater Action Group Since 2005 when the group was Inc (SWAG) which challenged a formed, we have at times wondered decision of the Minister for Planning if it was possible to win against to enable the rezoning of land in massive odds, but ever since we were the Hunter Valley to allow for the able to gather enough facts for the Biodiversity Conservation development of the Huntlee Town EDO to make a case, your dedication Centre for 20,000 residents. The area to achieving the right result has been contains one of the last remaining an inspiration to us all, fi rstly in 2009 habitats of the Persoonia paucifl ora, and more recently in July of this year. a critically endangered native shrub, and is also highly contaminated. Fighting to protect The challenge focused on whether endangered fauna the Planning Minister considered the requirements of State Environmental Bat Advocacy v Minister for Planning Policy No. 55 (for remediation Environment Protection, Heritage of contaminated land), and the and the Arts [2011] FCA 113 enforceability of a Voluntary Planning The EDO, on behalf of Bat Advocacy Agreement proposed for the site NSW Inc, commenced proceedings which was designed to protect the in the Federal Court challenging habitat of the Persoonia and provide a decision of the Minister for for additional conservation areas. Environment Protection, Heritage and The challenge also raised the issue of the Arts to approve the relocation bias in relation to the Lower Hunter of grey-headed fl ying-foxes from the Regional Strategy which contemplated Royal Botanic Gardens in Sydney. certain development on the site in The grey-headed fl ying fox is listed exchange for conservation offsets, as vulnerable to extinction. The refl ected in a Deed of Agreement Botanic Gardens colony of fl ying with the Planning Minister that was set foxes is one of the largest camps

EDO ANNUAL REPORT 2010-2011 37 in the Sydney metropolitan area, the fact that the proponent did not representing approximately 8.5% of prepare a species impact statement the total species population. Loss of to accompany the application. roosting habitat is identifi ed in the Mediation of the dispute is scheduled National Recovery Plan for the grey- to take place in August 2011. headed fl ying fox as a high priority threat and the impacts of the loss of long-term camps are not known. Legal and Technical Advice The challenge was brought on The conservation of Australia’s unique the grounds that the decision was biodiversity remains a priority for an improper exercise of power many EDO clients, particularly in because the Minister failed to take light of climate change. There are into account a number of matters, several laws designed to protect both including: whether the Botanic terrestrial and marine threatened Gardens is critical habitat for the species, ecological communities and fl ying fox; the social matters involved critical habitat. The EDO regularly in moving the fl ying fox to areas advises clients on ways to use these, outside the Botanic Gardens; and and other laws, to protect biodiversity all possible adverse impacts of the at the State and federal level. Biodiversity Conservation decision given the approval was At the State level, we have provided to remain effective until 2039. detailed legal advice on issues such as: The Court dismissed the application • The biobanking statement on all grounds. Bat Advocacy associated with Baulkham Hills appealed against the Court’s decision Council’s biobank site at Kellyville; on the ground that the Minister failed • The treatment of koalas under the to consider whether the Botanic Draft Lismore Local Environmental Gardens is critical habitat for the Plan (LEP), with a view to fl ying fox. The Full Court of the ensuring local planning controls Federal Court dismissed the appeal. provide adequate protection of Yass Environmental Responsibility the local koala population; and Network Inc v Yass Council & Anor • The impacts of a quarry The EDO, on behalf of Yass proposal in the Northern Environmental Responsibility Rivers on threatened species. Network Inc has commenced judicial The EDO provided Gosford review proceedings in the Land and residents with advice on the Environment Court to challenge inclusion of biodiversity mapping development consent to a 175 lot in the Gosford LEP. As a result subdivision at Yass. The primary of this advice, the residents were issue in dispute is the impact that the successful in getting biodiversity development will have on a listed maps incorporated into the LEP. threatened species, being striped legless lizards (Delma Impar), and

38 We have worked for many years with associated with the SESSF triggers western Sydney residents to ensure the operation of the EPBC Act. the ADI site at St Marys is developed We regularly advise on whether in a way that does not signiﬁ cantly proposed developments are likely impact the critically endangered to trigger the operation of the EPBC Cumberland Plain Woodland. This Act and assist our clients to bring year, we consulted with experts and such developments to the attention advised on plans to subdivide the of the federal Environment Minister. site which required the clearing of This often requires the involvement some Cumberland Plain Woodland. of scientiﬁ c experts and the review As a result of our intervention, the of technical reports. As a result of application to clear the site has been EDO advice, residents at Baulkham withdrawn and the proponent has Hills and the community at Majors undertaken a species impact study. Creek were successful in having The EDO has begun receiving proposed developments referred requests for advice from landholders for assessment by the Federal interested in undertaking private Government under the EPBC Act. conservation on their properties. This can be attributed to the EDO’s

Policy and Law Reform Biodiversity Conservation publication ‘A Guide to Private Conservation in NSW’ which As with last year, the EDO’s outlines and critically analyses the biodiversity policy work has different private conservation options focused on the biobanking and available in NSW. The EDO has biocertifi cation schemes developed partnered with the Public Interest under the Threatened Species Law Clearing House to create a Conservation Act 1995 (NSW). pro-bono referral service to provide This year the EDO made a landholders wishing to pursue private submission to the NSW Department conservation with free legal advice. of Environment, Climate Change At the federal level, much of our and Water (DECCW) outlining work relates to the operation of the concerns with the biocertifi cation Environment Protection and Biodiversity methodology – particularly around Conservation Act 1999 (Cth) (EPBC offset rules for threatened species. Act). This Act can be utilised in This submission incorporated various ways to achieve biodiversity scientifi c expert evidence. We outcomes. In particular, we have been also lodged a submission with acting for clients seeking to utilise the DECCW outlining concerns with provisions of the EPBC Act to gain the proposal to ‘streamline’ aspects stronger protections for Australian of the biobanking methodology. sea lions under the Southern Eastern The EDO continued to advise the Scalefi sh and Shark Fishery (SESSF). In NSW Government as a member of a related matter, we have also advised the Ministerial Reference Group on on whether bycatch of seabirds BioBanking throughout the year.

EDO ANNUAL REPORT 2010-2011 39 The statutory review of the Some of the presentations that Threatened Species Conservation EDO staff delivered on biodiversity Act 1995 (NSW) arose during conservation include a lecture the reporting period. The EDO on adaptation, the coastal zone participated in the review through a and biodiversity conservation submission to the DECCW, arguing to students at the University of that the Act is failing to address Sydney and a presentation on the decline in threatened species animals and the law for the Animal and needs to be more effectively Law and Education Project. resourced, implemented, and protected from being overridden by other laws such as planning and mining laws. The EDO drew extensively from the expertise of a number of ecologists in its submission.

Education As reported last year, the NSW

Biodiversity Conservation Environmental Trust has funded the EDO to undertake a Private Conservation Project. The aim of the project is to promote the uptake of private conservation in New South Wales through a plain English publication and complementary workshops. The ‘Guide to Private Conservation in NSW’ has been made available for free to interested NSW landholders. We have also presented a number of community workshops on private conservation to explain the different options and discuss their legal implications. In 2010-2011, private conservation workshops were held in Inverell, Branxton, Braidwood, Nowra, Comboyne, Murrays Run, Goulburn and Dapto. The EDO also presented a workshop in Sydney on biobanking and biocertiﬁ cation and held a seminar on biodiversity and law reform.

40 wiring which may be associated with Natural PCBs and the conduct of a more Resource extensive monitoring program. Defending prime Management agricultural land Caroona Coal Action Group v Minister for Mineral Resources Protecting marine environments [2010] NSWCA 353 No Ship Action Group Inc v Minister As reported last year, the EDO for the Environment, Heritage & represented the Caroona Coal Action the Arts & Anor [2010] AATA 212 Group Inc (CCAG) in proceedings in the Land and Environment Court The EDO acted for the No Ship challenging the exploration licence Action Group Inc (NSAG) in and coal authorisation granted to proceedings in the Commonwealth Coal Mines Australia Pty Ltd by the Administrative Appeals Tribunal Minister for Mineral Resources. (AAT) challenging a decision to grant a permit allowing the scuttling of the In the proceedings, CCAG argued ex-HMAS Adelaide. The proposal that the licence was invalid on three was to scuttle the ship approximately grounds. The Court rejected two 1.7km off Avoca Beach for the of those grounds. With regards to purpose of an artiﬁ cial reef. NSAG’s the third ground, the Court found Management Natural Resource concerns included the likelihood of that, although established, it was PCBs leaching into the environment. not signiﬁ cant enough to render the grant of the licence void. The proceedings considered whether the decision to grant the permit In November 2010, Caroona Coal was the correct or preferable one Action Group Inc appealed the on the basis of expert evidence. decision on two grounds. Firstly, that The Tribunal concluded that the Minister for Mineral Resources environmental considerations are did not satisfy himself that special paramount when deciding whether circumstances existed to justify the or not to grant a permit, and renewal of the licence over an area economic and other matters could larger than half of the land area as only be considered “at the margins”. required by the Mining Act 1992; secondly, that the Minister and The Tribunal ultimately decided Coal Mines Australia were required that a permit should be granted. under the Mining Act 1992 to sign a However, it imposed additional document comprising an ‘instrument conditions relating to the removal of of transfer’, but failed to do so. canvas and insulation, the removal of exfoliating or exfoliated red lead- The Court of Appeal rejected based paint, the removal of remaining both grounds of appeal.

EDO ANNUAL REPORT 2010-2011 41 In a related judgment, the Land and of $20,000. The PCO caps the Environment Court ordered CCAG costs payable by the BMCS to to pay the costs of both Respondents Delta if the BMCS loses the case. (Coal Mines Australia and the Minister The BMCS could not afford to for Mineral Resources), including the continue with the proceedings costs of the application for costs. unless its liability was limited. In further related proceedings, CCAG Delta appealed the PCO in argued that the public interest in the NSW Court of Appeal. the principle of open justice should The Court of Appeal handed down defeat the confi dentiality orders its judgment on 18 October 2010. sought by Coal Mines Australia Pty Limited to restrict public access to its Delta’s appeal was dismissed Expression of Interest (EOI) in the and Delta was ordered to pay Caroona mining exploration licence. BMCS’s costs of the appeal. The Court rejected CCAG’s On 2 December 2010, the Land arguments; fi nding that particular and Environment Court heard an statements and data in the EOI were application by Delta to have the case confi dential. However, the Court held summarily dismissed. Delta argued that confi dentiality orders should that the Protection of the Environment be made which would continue to Operations Act 1997 (NSW) does not restrict access to the whole EOI solely permit civil proceedings to remedy to CCAG’s legal advisors; a Redacted or restrain a contravention of section Natural Resource Management Natural Resource EOI be produced and fi led which 120 of the Act (under which it is an would allow public access to the EOI offence to pollute waters). Delta without the confi dential material; argued in the alternative that part and that these orders would not of BMCS’s summons and points of offend the principle of open justice. claim should be summarily dismissed on the basis that they allege past Enforcing water pollution laws breaches and there is no utility in the Court making a declaration or Delta Electricity v Blue Mountains granting remedial orders in respect Conservation Society Inc of past breaches of the Act. In this ongoing case, the EDO is Justice Pepper has reserved representing the Blue Mountains her decision on whether the Conservation Society (BMCS) in case should be struck out. civil enforcement proceedings in the NSW Land and Environment Court against Delta Electricity for causing water pollution. On 9 September 2009, the EDO successfully obtained a protective costs order (PCO) in the amount

42 Fighting for better regulation Challenging the merits of the Snowy River of coal mines Snowy River Alliance Inc v Hunter Environment Lobby v Water Administration Ministerial Minister for Planning & Ors Corporation [2011] NSWSC 652 In December 2010, the EDO The EDO acted for the Snowy River commenced proceedings in the Alliance Inc (SRA) in their challenge to Land and Environment Court on the Water Administration Ministerial behalf of the Hunter Environment Corporation’s (WAMC) review of Lobby Inc to challenge the merits of the Snowy Hydro water licence and the Minister for Planning’s approval a subsequent variation to the licence. of certain coal mining activities at the Ulan Coal Mine, located 40 The Snowy Hydro Corporatisation Act kilometres northeast of Mudgee. 1997 (NSW) requires the WAMC to conduct a review of the obligations The approvals allow for the expansion of the mine’s existing under the licence relating to the longwall mining operations and a “Snowy River Increased Flows” and new open cut mining operation. to exhibit a copy of any state of the environment reports prepared by the The mine expansion is predicted Snowy Scientifi c Committee (SSC). to have a signifi cant impact on groundwater, which is expected to On 23 July 2010, the EDO take 200 to 400 years to recover. It commenced proceedings in the will also result in the clearing of 409 Natural Resource Management Natural Resource Supreme Court of NSW on behalf hectares of vegetation, including 69 of the SRA challenging the validity hectares of endangered ecological of the review. The SRA argued communities, 150 specimens of a that the WAMC’s review failed to threatened fl ora species and habitat meet the description of “review” for several threatened fauna species. as required by the Act and failed The greenhouse gas emissions to exhibit any SSC reports prior from the mine are expected to add to the review. If the review was approximately 12.7 million tonnes found to be invalid, the variation of carbon dioxide per year to the to the licence may also be invalid. atmosphere, exacerbating global anthropogenic climate change. The matter was heard before the Supreme Court on 14 The hearing took place in June March 2011. On 30 June 2011, 2011. The Hunter Environment the Court delivered judgment Lobby Inc has asked the Court to dismissing the legal challenge. impose a condition requiring Ulan to offset its greenhouse gas emissions pending the commencement of any Federal Government scheme to regulate greenhouse gas emissions. The Court has reserved its judgment.

EDO ANNUAL REPORT 2010-2011 43 Ironstone Community Action Group existing gas supply network via v Minister for Planning & Ors a 95-100 km pipeline, and a gas The EDO is acting for the Ironstone delivery station at Hexham. The Community Action Group (ICAG) stage one project approval is for in Land and Environment Court 110 gas wells and gas and water proceedings challenging the merits pipelines between Gloucester and of an approval for the extension Stratford, a central processing facility, of the Duralie Coal mine, an open gas transmission pipeline and the cut coal mine between Stroud and Hexham gas delivery station. Stratford in the Barrington Tops area. The case will focus on the PAC’s The ICAG is concerned about the consideration of the environmental impact of the mine on the water impacts of the project. It will be quality of the Mammy Johnsons Creek argued that the PAC failed to and beyond and on habitat for the adequately consider a number of endangered Giant Barred Frog. The important issues such as risks to group is also concerned about dust surface and groundwater quality impacts from the mine on the health and quantity, management of of people and the environment. the polluted waste water and uncertainty about the chemicals The matter was heard throughout used in the extraction process. May, June and July 2011. Judgment has been reserved. The matter is listed for hearing in late October 2011. Natural Resource Management Natural Resource Challenging coal seam gas developments Legal and Technical Advice Consistent with previous years, Barrington Gloucester Stroud natural resource management Preservation Alliance Inc v Planning issues dominated the EDO’s advice Assessment Commission and work. This area includes native AGL Upstream Infrastructure vegetation management, water Investments Pty Limited management, forestry, mining and The EDO, on behalf of the other extractive industries. With Barrington-Gloucester-Stroud the exception of native vegetation Preservation Alliance Inc, is challenging management, the EDO’s work in two decisions of the Planning this area was fairly evenly split across Assessment Commission (PAC) to these issues. However, mining is approve the concept plan and stage emerging as the principal source one of the Gloucester Gas Project. of inquiries from the community. The concept plan involves extraction Mining, Coal Seam Gas and Quarries of coal seam gas within a 210km The EDO has received a growing area between Barrington and number of calls from members of Great Lakes, transporting the gas the community who are concerned from the processing facility to the

44 about the impacts of mining and coal • Advising on the exploration seam gas exploration and production operations of Gloucester Coal, in their areas. Such projects are particularly with regards to notoriously diffi cult to stop, but potential impacts on matters of the EDO remains committed to national environmental signifi cance advising the community about their under the EPBC Act. As part of legal rights in relation to mining the process, the EDO engaged and coal seam gas projects. an expert to provide advice For example, the EDO provided on issues relating to potential advice to the community on a water pollution at the site; proposal to develop the Bulli • Advising numerous landholders Coal Seam over the Dharawal whose properties are subject Conservation Area. We also wrote to exploration licences on to the Minister for Environment negotiating access arrangements about the impact of mining on the in the Gloucester and conservation area. As a result of PAC Southern Highlands regions; fi ndings, the EDO and community • Advising the community action, the proponent withdrew about coal seam gas their application so far as it related exploration at Keerrong; to the Dharawal Conservation Area and the Coalition Government • Advising on the Review of has announced a commitment to Environmental Factors for coal seam gas exploration declare the area as a national park. Management Natural Resource on the Liverpool Plains; The EDO has also been providing ongoing advice to the Majors Creek • Advising on aspects of the and Araluen communities about Environmental Assessment for a proposed gold mine at Majors the Camden Gas Northern Creek. The community is particularly Expansion Project to mine coal concerned about the accuracy of seam gas in south-western Sydney; the proponent’s environmental • Advising on various coal seam assessment and the impact the gas issues and protection of mine may have on surface and environmentally sensitive areas in ground water in the region. The the Darkes Forest/Illawarra area; EDO’s in-house scientists have • Advising about vegetation clearing assisted the community to respond associated with an Eastern Star to the proponent’s environmental Gas proposal for coal seam gas assessment and our ongoing advice production near Narrabri; and has been directed at helping the community to engage effectively • Lodging a GIPA application in the assessment process. for documents relating to the Pilliga and Clarence Morton Other mining related work included: petroleum exploration licenses for coal seam gas exploration.

EDO ANNUAL REPORT 2010-2011 45 With regards to quarries, the public environmental assessment for the tends to be concerned about the proposed Tillegra Dam. The Tillegra quarry’s compliance with conditions Dam was proposed as a 450GL of consent. For example, the EDO dam on the upper Williams River in has been asked to advise on alleged the Dungog Shire. The community illegal water use by Rocla Quarry. raised a number of concerns about The EDO wrote to the Minister the environmental assessment for Water to bring these concerns that accompanied the project to the attention of the regulator. proposal. As a result of a sustained We’ve also been asked to advise community campaign, the Tillegra the community on how to object Dam proposal was abandoned. to quarry proposals, especially We also provided ongoing advice where there are concerns that the to clients in Barraba who were quarry will have negative impacts concerned about the impacts of on threatened ﬂ ora and fauna. The bore use on the water levels of the EDO provided advice to Wardell Manila River, including highlighting residents about two proposed quarry the inadequacies of the assessments expansions in their area. As a result undertaken. As a result of a sustained of our letter of advice, the council campaign from the community, the decision on these proposals has bore use has been discontinued. been deferred. We also provided As part of our ongoing engagement detailed advice to the community with rural landholders, we have Natural Resource Management Natural Resource about a number of issues associated provided advice on issues relating to with the Cedar Point Quarry. The the taking of water, including advice community’s concerns related to the on the illegal taking of water in the environmental impact statement, Lowbidgee area and advice about the consultation requirements, the water rights and water works to impact on threatened species, noise capture ﬂ ood waters at Corowa. and buffers. The community also sought advice on attending meetings Forestry of the Joint Regional Planning Panel. Forestry issues are frequently raised Water by the community and the EDO has provided a range of advice on both The EDO is asked to provide advice public and private native forestry on many different aspects of water activities, especially with regards management, from the management to alleged breaches of the law. of regulated rivers to advice on the impacts of developments on State Forests in NSW are managed water quality and quantity. according to a system of Integrated Forestry Operations Approvals. For example, the EDO wrote to The EDO has received numerous the Director-General and Minister calls from various parts of the State for Planning about misleading indicating that these approvals are information contained in the

46 being consistently breached by forests region. We also compiled forestry operators. In response, the expert ecological evidence to EDO has written several letters survey logged and soon-to- of advice for the community to be-logged compartments to outline their legal options and this provide a detailed comparison has been complemented by letters of the two environments; to the Minister for Environment to • Advice to a landowner on illegal alert the Minister to the problem clearing near Tomerang; and and encourage the Minister to take appropriate enforcement action. • Advice regarding habitat tree Areas of particular concern have retention under the upper been the upper north east of NSW north east Integrated Forestry and the south east forest region, and Operations Approval. include Girard State Forest, Mumbulla Mountain State Forest, Doubleduke Policy and Law Reform State Forest and Grange State Forest. Mining, water, and forestry and native In order to support our work in this vegetation were the major natural area, the EDO has made a request resource management issues requiring under the Government Information input from the policy team this year. (Public Access) Act 2010 (NSW) (GIPA Act) to the Department of Mining and Coal Seam Gas Industry and Investment seeking In April 2011, the EDO submitted

access to information regarding public to the NSW Labor Government’s Management Natural Resource forest management and sustainability. Coal and Gas Strategy consultation Private native forestry has also been paper. The EDO argued that the raised as an issue by our clients. In development of such a strategy the past year we have written to must be done in conjunction with the Environment Minister regarding a package of legislative reforms. alleged breaches of the Private In June 2011, the EDO launched Native Forestry Code of Practice a discussion paper, ‘Mining Law in which resulted from a landholder NSW’. The paper considers the need felling a tree with a koala in it. We to reform the laws that regulate have also provided advice on the mining in NSW. With a focus on coal possibility of commencing a legal and coal seam gas extraction, the challenge for breaches of the Private paper mainly considered the Mining Native Forestry Code of Practice. Act 1992 (NSW), the Petroleum Other advice relating to (Onshore) Act 1991 (NSW) and the forestry has included: Environmental Planning and Assessment Act 1979 (NSW). Drawing on the • Advice to a client and Brief to EDO’s multidisciplinary expertise, it Counsel on a possible action in identiﬁ ed key inadequacies with the equity to challenge breaches of system across three related areas: forestry licences in the south east

EDO ANNUAL REPORT 2010-2011 47 • Environmental assessment Approvals (IFOAs). This provided and planning issues; an important opportunity for the • Community issues; and EDO to raise serious concerns about ongoing breaches of the • Compliance and Forest Agreements and IFOAs. We enforcement issues. argued that public forests are not The paper also made 21 currently being managed in a way recommendations for legislative that complies with the principles of change to make the current ecologically sustainable development processes more sustainable, robust, or respects Aboriginal heritage values. equitable and transparent. In related work, the EDO was Water commissioned by the Nature Conservation Council of NSW to The ongoing development of the prepare a report on the systemic Murray Darling Basin Plan (MDB non-compliance with Forest Plan) was a central issue in EDO Agreements and IFOAs. The report, water policy work this year. The ‘If a Tree Falls’, details a pattern of NSW Ofﬁ ce contributed to illegal logging operations that has an ANEDO submission to the resulted in the destruction of old Murray Darling Basin Authority growth forest and endangered on the Guide to the MDB Plan. ecosystems, as well as habitat for The submission focused on the threatened species across the State.

Natural Resource Management Natural Resource interpretation of the Water Act 2007 At the federal level, the Ofﬁ ce (Cth); whether legal requirements drafted an ANEDO submission to the would be met based on the Guide’s Senate Rural Affairs and Transport approach; and on the Authority’s Committee on a draft Illegal Logging use of scientiﬁ c data (assisted by Prohibition Bill 2011 designed to the EDO’s science team). ANEDO prohibit the sale of illegally logged argued that priority must be given to timber. The submission supported the restoring the Basin to health, based Bill generally but outlined concerns on the Water Act’s recognition that with too much detail being left to long term social and economic values regulations; the need for clearer depend on environmental health. objectives; and a stronger, tiered The submission was also submitted penalty regime. EDO staff also to the two parliamentary inquiries gave evidence to the Committee looking at the Guide to the Basin Plan. regarding penalty regimes and a Forestry and Native Vegetation whole chain-of-supply approach to regulation. The Committee’s The EDO dealt with a number of majority report did not support the forestry issues this year. The NSW EDO’s preferred approach in these Government undertook a review areas, but it did factor in US and EU of NSW Forest Agreements and declaration requirements; regular Integrated Forestry Operations audits and risk-based investigations;

48 and legislative review measures. by the NSW Environmental Trust. The dissenting report supported Workshops cover a range of laws a range of added measures put applicable to rural landholders, forward by the EDO and others. including laws relating to native Prior to this work, EDO NSW also vegetation, water, bush fi res, pest and undertook a consultancy for a major weed control, agricultural chemicals conservation group to advise on and construction and development. the requirements for an effective A workshop dealing specifi cally with law to address illegal logging. We pesticides was held at Murwillumbah. concluded that such a law should Coal and coal seam gas mining has have seven characteristics: ambitious emerged as the big issue facing the objectives and scope; prohibition of NSW community and the EDO the importation and distribution of has received many requests for illegal timber products in Australia; community workshops to explain broad coverage of timber products; how coal and coal seam gas mining is due diligence requirements for regulated in NSW. In 2010-2011, we all operators in the supply chain; held mining workshops in Mandalong, strong penalties; effective and Lithgow, Mudgee and Rylstone. Coal transparent enforcement; and seam gas workshops were held in legislation review periods. Lismore, Grafton and Murwillumbah. Finally, with the assistance of the The EDO also held a seminar on EDO’s in-house scientists, the mining law in Sydney which doubled Natural Resource Management Natural Resource Offi ce prepared a submission as the launch of the EDO’s discussion to the NSW Natural Resources paper ‘Mining Law in NSW’. Commission, expressing concerns with the proposal to insert a new EDO staff presented a number ‘streamlined’ assessment option into of papers on natural resource the native vegetation assessment management throughout the year, methodology, under the Native including a paper on water law reform Vegetation Act 2003 (NSW). to the Nature Conservation Council Regional Conference in Gulgog and Education a presentation on forestry laws to the Forestry Forum in Batemans Bay. A range of EDO education projects EDO staff also addressed the Coal addressed natural resource Seam Gas forum held in Sydney and management, including several addressed the Hunter Environment workshops on rural landholder’s Lobby on coal and coal seam gas law. These were held in Adelong, approvals and landholder rights. Comboyne, Corowa and Savernake. These workshops complement the EDO’s publication ‘The Rural Landholder’s Guide to Environmental Law in NSW’ which was funded

EDO ANNUAL REPORT 2010-2011 49 The site has also been important Environmental for reconciliation in the town as an area where both Aboriginal Justice and non-Aboriginal people have mixed over the generations, and which is historic sporting facility. Casework The case settled prior to hearing

Protecting Aboriginal Supporting environmental cultural heritage activists Munro and Nean v Minister Police v Matthew Breen, Scott for Lands & Ors Danes, Shawn Douglas, Ned Haughton, Scott Mackenzie, Carly In an ongoing dispute, the EDO acted Phillips and Jamie Pomfrett for a representative of the Moree Environmental Justice Environmental Murri Taskforce, Lyall Munro, in his The EDO acted on behalf of challenge to a decision of the Minister Rising Tide protestors who were for Lands to approve the sale, and the involved in signifi cant climate change decision of the Lands Administration protests at coal loaders at the Port Ministerial Corporation to consent to of Newcastle on 26 September sell, Taylor Oval in Moree. The case 2010. Nine protestors entered coal focuses on whether the Minister for terminals and climbed onto coal Lands and the Lands Administration loaders at Carrington and Kooragang Ministerial Corporation complied Island. Some of these protestors with the requirements of the attached themselves to the loaders. Crown Lands Act 1989 (NSW). Two of the protestors were charged The Minister for Lands consented with entering inclosed lands and to the sale of Taylor Oval to Fabcot the remaining seven were charged Pty Ltd (Woolworths) to facilitate with both entering inclosed lands the development of the site for and remaining on inclosed lands. a Big W department store. The Newcastle Local Court dealt Taylor Oval is the most central rugby with the two protestors charged league and cricket ground in Moree with entering inclosed lands to and is also a signifi cant site for the fi nality; providing a dismissal under local Aboriginal community who section 10 of the Crimes (Sentencing believe it is situated near a burial Procedure) Act 1979 (NSW) to ground for the Gomeroi nation. one protestor and a fi ne of $300 Bodies of Aboriginal persons were with $76 costs to the other. excavated on the site in 1903 and Of the remaining seven protesters, an the ashes of Cheeky McIntosh, an agreement was reached with police to Aboriginal leader and elder were drop the entering charge in exchange scattered on the oval in the 1970s. for the protestors agreeing to plead

50 guilty to the remaining charge. The Government’s proposal to build a new Court provided a section 10 dismissal coal-fi red power station next to the to one protestor and convicted the existing Bayswater power station site. six others. The matter was adjourned The protestors appealed against for sentencing and consideration of convictions and fi nes imposed by the police prosecutor’s application for the Muswellbrook Local Court a victim’s compensation order under in January 2011.The appeals the Victim’s Support and Rehabilitation were heard in the East Maitland Act 1996 (NSW) on behalf of Port District Court on 16 June 2011. Waratah Coal Services (PWCS). The Court allowed the appeals PWCS initially indicated their loss in of 47 of the 49 appellants, fi nding relation to the alleged disruption to the protestors to be “impressive their operations was in the order of and remarkable individuals”. The approximately $97,000. In Court, Court noted that the protestors PWCS ultimately claimed a sum were genuinely motivated to of $525,000. On 3 March 2011, protect the community from the Justice Environmental Magistrate Elaine Truscott delivered a impacts of climate change. The comprehensive judgment in which she Court took into account their good dismissed the claim for compensation character and community spirit, because, fi rstly, the prosecution and their commitment to social justice PWCS failed to establish any actual and the environment evidenced by loss; and secondly, PWCS made the their volunteer hours and the fact application for the wrong purpose, that their actions were peaceful as namely, to deter the protestors from part of a non-violent direct action. future protests rather than because it wanted compensation for any loss. The Court dismissed the charges against the protestors under The EDO solicitor and Barrister section 10 of the Crimes (Sentencing that acted for the protestors Procedure) Act 1999 (NSW). received this note of thanks: Thank you both so much for being R v Ryan Benjamin Castle such an amazing legal pair. The 7 Ryan Castle was arrested and charged of us are very lucky to have such with breaches of the Law Enforcement dedicated people supporting us (Powers and Responsibilities) Act and we are very grateful for both 2002 (NSW) and Forestry Act 1916 of your time and expertise. (NSW) while protesting against the illegal logging of an Aboriginal Alcorn & Ors v DPP Place in Mumbulla State Forest. The EDO acted for 49 protestors The EDO provided initial advice who were charged with various on possible defences to the local offences related to the 2010 solicitor representing Mr Castle. Climate Camp for Action, a national The Goulburn Local Court acquitted event which challenged the NSW Mr Castle on the basis that he had

EDO ANNUAL REPORT 2010-2011 51 a reasonable excuse to protest Mrs Olufsson would not have been because the logging was unlawful. able to continue with her case.]

Facilitating access to justice Legal and Technical Advice for public interest litigants The EDO’s environmental justice Olofsson v Minister for work encompasses the protection Primary Industries & Ors of Aboriginal cultural heritage, public health issues, access to The EDO is acting for Mrs Olofsson, justice and criminal matters. the secretary of the Camberwell Common Trust, in proceedings Aboriginal Cultural Heritage in the Land and Environment The EDO is committed to Court concerning a mining lease providing assistance to Traditional application lodged by White Mining Owners and Local Aboriginal over the Camberwell Common. Land Councils (LALCs) about a

Environmental Justice Environmental The Camberwell Common is range of matters concerning the located just south of Camberwell management and protection of Village, and has been used by Aboriginal cultural heritage. the local commoners for grazing For example, in 2010-2011 we have: and other activities since 1876 when it was established as a • Advised a Traditional temporary commonage. Owner about their right to access land belonging Mrs Olofsson is challenging decisions to the Sydney Catchment of the (then) Minister for Lands to Management Authority; revoke the Camberwell Common, reserve it as a Crown reserve, and • Advised and assisted with grant a licence to Ashton Coal submissions in relation to the to facilitate its plans for an open unlawful use of Aboriginal cut coal mine over the Common. sculptures by an Art Gallery Importantly, she is also seeking a in the Blue Mountains; maximum costs order to limit her • Assisted a LALC member with the liability should she lose the case. preparation of an afﬁ davit as part [Postscript: On 11 August 2011, Justice of legal action against a quarry and Pain of the Land and Environment giving evidence in a Class 1 appeal; made a maximum costs order limiting • Written a letter of complaint to the liability of Mrs Olofsson in the the Department of Environment, proceedings to $10,000. The decision Climate Change and Water was a major win for Mrs Olofsson, regarding the destruction of an who Justice Pain recognised is bringing Aboriginal site at Cromer; the case in the public interest. • Assisted with applications Without the maximum costs order under the Aboriginal and

52 Torres Strait Islander Heritage • Advice to Norfolk Island Protection Act 1984 (Cth); residents on issues relating to • Advised on a number of cultural ecoli in drinking water and the heritage issues associated with use of the smart ash incinerator the Hunter Expressway; and as a waste disposal method to improve air quality; • Advised on an injunction sought to stop celebrations of the Tent • Advice on particulate pollution Embassy at Sandon Point. levels in Singleton and Muswellbrook in comparison Public Health with National Environment Environmental pollution and public Protection Measures; health issues are often closely • Advice on the use of un-fl ued related. This year, a number of gas heaters in schools; and requests for advice about pollution • Assistance in the preparation have had a public health aspect of a direct brief to Counsel Environmental Justice Environmental to them. Some of the issues dealt regarding grounds to challenge with by the EDO include: a decision by ROUS Water to • Advice on risks associated with fl uoridate a regional water supply. naturally occurring asbestos at a quarry near Molong; Access to Justice • Advice and assistance to A key objective of the EDO is to residents of Kandos dealing improve access to justice for the with cement dust pollution; NSW community. Much of the work we do is geared towards achieving this • Advice to Lake Macquarie objective. There are, however, some residents on the Bullaroo areas of our work which are more Lead Abatement Scheme; specifi cally related to access to justice • Advice and assistance to Forbes – they include costs jurisprudence residents dealing with pollution and access to information. from a Graincorp facility; In 2010, the NSW Government • Advice regarding a landfi ll enacted a new regime for accessing pollution problem at Myocum; government information. The EDO has assisted several clients to utilise • Advice on levels of soil and the provisions of the Government groundwater contamination on Information (Public Access) Act 2010 Lismore Community Land; (NSW) to access information. • Engagement of a hydrologist to We have also advised several clients review the proposed leachate about recovering court costs and management proposal in an on the potential liability of a non- Environmental Assessment of a party to court proceedings. regional landfi ll at Armidale;

EDO ANNUAL REPORT 2010-2011 53 Criminal Matters that have enabled individuals to bring The EDO regularly advises class actions in those jurisdictions. environmental activists. This year The EDO also made a submission we advised on the risks associated to the NSW Department of Justice with a protest action and assisted and Attorney-General supporting forestry activists to defend charges the proposal for a legislative stemming from an action at Mumbulla framework for judicial review Mountain. We also provided advice in the NSW court system. The on a number of protest activities. submission recommended an up- to-date model that builds on best Policy and Law Reform practice and other States’ laws. At the federal level, the Offi ce Aboriginal Cultural Heritage drafted an ANEDO submission The EDO has continued its work to the Administrative Review to promote reform to Aboriginal Council consultation paper on Environmental Justice Environmental cultural heritage laws. This year Judicial Review in Australia. The the Offi ce prepared a background submission focused on encouraging paper on current cultural heritage greater recognition of public legislation to inform the work of the interest litigation in judicial review Cultural Heritage Working Party proceedings, and improving access which was established by the then to justice, particularly in relation to NSW Environment Minister to environmental and related issues. advise on law reform in this area. At the federal level, the EDO lodged Education a submission with the Department The EDO held a workshop on of Foreign Affairs and Trade urging trespass and evidence collection in the Federal Government to ratify Lismore and presented a seminar the Nagoya Protocol on Access to on defamation in Mullumbimby. Genetic Resources and the Fair and Equitable Sharing of Benefi ts under the In addition, EDO staff delivered Convention on Biological Diversity. a number of presentations on public interest litigation, including Access to Justice lectures to students at Sydney On broader access to justice issues, University and the University of the EDO’s law reform work included NSW. Other presentations focused a submission to the NSW Attorney- on Torts and the environment, General supporting the intent of and social justice and the law. the draft Civil Procedure Amendment (Supreme Court Representative Proceedings) Bill 2010 (NSW). The EDO supported the adoption of the Victorian and Federal Court class action models (with certain changes)

54 • Advised on competition law issues Corporate Social associated with Cobbora mine; • Advised on boycotts and Responsibility secondary boycotts; • Advised on the interpretation of the constitution of a Legal and Technical Advice conservation organisation; and • Advised on whether a mining From time to time the EDO is prospectus breached the Trade asked to advise clients about the Practices Act 1974 (Cth). activities of corporations or the application of Corporations Law to environmental problems. Policy and Law Reform For example, EDO clients are The emerging issue for corporate exploring innovative ways to use social responsibility this year has the law to respond to climate been product stewardship – where a change. The EDO has been asked to product’s environmental impacts are advise on requirements under the responsibly managed across the entire Corporations Law to disclose climate life cycle (from the materials selected risk and shareholder resolutions to and process of manufacture, through force such disclosure. We have also to appropriate recycling and disposal). assisted with a complaint against 2GB EDO NSW drafted an ANEDO for lack of fair reporting on climate submission to the Australian change and provided advice on trade Department of Sustainability, practices issues associated with Environment, Water, Population Corporate Social Responsibility banks investing in power stations. and Communities supporting the In addition to climate change introduction of new laws to promote issues, the EDO has: product stewardship and extended producer responsibility. We later • Advised on whether major banks prepared a submission to the Senate are engaging in misleading conduct Environment and Communications in relation to support of coal Legislation Committee on the fi red power and coal mines; Product Stewardship Bill 2011. • Briefed Counsel about a ANEDO’s submission focused private prosecution for a on the appropriate role for the breach of the Food Act 2003 Federal Government, governance (NSW) in relation to the of the scheme, product coverage, labelling of genetically modifi ed and monitoring and review of organisms in infant formula; decisions. The Product Stewardship • Advised on matters associated Act 2011 (Cth) passed into law with potential breaches of the in July 2011. The Act implements Trade Practices Act 1974 (Cth) in a several recommendations supported developer’s advertising material; by ANEDO, including on civil • Advised on the Australian penalties and injunctions; mandatory Standard for wood heaters; regulation of hazardous substances; and related notifi cation processes.

EDO ANNUAL REPORT 2010-2011 55 PART C: REPORTING AND GOVERNANCE

• Catherine Hill Bay EDO Clients Progress Association • Clarence Environment Centre In 2010-2011, the EDO provided • Communities of Congewai legal assistance to hundreds of Catchment Inc. clients, including a diverse range • Evans Head Memorial of individuals and community Aerodrome Com Inc. organisations. Organisations assisted by the EDO during the year include: • Friends of Freshwater Village Inc. EDO Clients EDO • Australian Climate Justice Program • Friends of the Koala • Australian Coal Alliance • Friends of Narrabeen Lagoon Catchment • Australians for Sustainable Development Inc. • Friends of Turramurra • Ballina Environment Society • Gerroa Environment Protection Society Inc. • Barrington Gloucester Stroud Preservation Alliance • Greenpeace • Bat Advocacy • Gwandalan Summerland Pint Action Group • BBK Group – Wahroonga Inc. • Humane Society International Inc. • Boolaroo Community Centre • Ironstone Community • Camberwell Common Trust Action Group • Cabarita Beach Bogangar • Jetty Action Group Residents Association • Ku-ring-gai Residents Alliance • Cabarita Residents Association • Lakes Beach Landcare • Capertee Valley Alliance Inc. • Millers Point Dawes Points Rocks • Cardinal Freeman Village Residents Action Group Residents Committee • Moree Local Aboriginal Land Council

56 • Morpeth Heritage Conservation Group Acknowledgements • Mowanjum Art & Culture Centre • Nimbin Environment Centre • NTS Corp. Volunteers • Rising Tide The Sydney Offi ce has capacity for • Running Stream Water up to six volunteers per day and Users Association the Northern Rivers Offi ce also • Sandy Hearnes Action Group engages volunteers from time to time. Volunteers assisted with the • Save Nimbo Creek work of the Offi ce across all functions • Scenic Hills Association but primarily with the provision of • Snowy River Alliance legal advice and casework services.

• South East Forest Rescue Volunteers greatly enhance the Acknowledgements • South East Regional capacity of the Ofﬁ ce to provide Conservation Alliance accurate and timely assistance to • Southern Highlands clients. The EDO would like to Coal Action Group thank the following volunteers • Sweetwater Action Group from 2010-2011 for their commitment and hard work: • The Coastwatchers Association • Sarah Ahern • The Wilderness Society • Joanna Alessi • Tomaree Ratepayers Association • Deniz Aslan • Valley Watch Inc. • Jonathan Avila • Wennona Head Action Group • Melissa Baker • Western Sydney Conservation Alliance • Andrea Bassett • Andrew Brickhill • Brendan Cahill • Alicia Carter • Rachael Chick • Chris Chie • Lilien Chua • Erin Chung • Anne Corbett • Saul Deane • Brooke Delbridge • Phillip Divisek • Felicity Douglas

EDO ANNUAL REPORT 2010-2011 57 • Fleur Downard • Rachel Pascall • Caroline Doyle • Adam Phillips • Sylvie Ellsmore • Jeremy Pinto • Bianca Fernandes • Sahil Prasad • Lauren Fieldus • Belinda Rayment • Eliana Fischman • Frances Richards • Amy Fox • Matt Roberts • Jennifer Garrick • Emily Ryan • Tarsha Gavin • Emma Ryan-McGinn • Rosa Grahame • Kirsten Storey • Yvonne Hales • Yuxiang Tao • Charlotte Hanson • Steve Tree Acknowledgements • Sharon Hill • Katerina Tsiolkas • Katie Ho • Arie van der Ley • James Hodge • Megan Whelan • Ebony Holland • Kylie Wilson • Peter Hutchison • Li-Ann Wong • Albert Hwan • Andrew Wu • Shu Kakizaki • Sharon Yu-Ting Kan • Sharon Kan • Joanna Zhou • Roger King • Sue Lane Pro Bono Assistance • Juliana Liskov The legal and scientiﬁ c community • Clara MacDermott also lend invaluable support to the work of the EDO, providing legal and • Lise Maddocks advisory services for a reduced fee • Tanja Maley or, in many cases, for no charge. The • Mary McCafferty EDO is deeply grateful to the many • Alessandra Peldova McClelland barristers, solicitors, scientists and experts for their ongoing commitment • Bavani Moodley to the provision of pro bono • Ana Carolina Napoli Carneiro assistance in public interest matters. • Felicia Nevins Legal Assistance • Clare Nightingale The EDO would like to thank the • Corrina Novak following barristers, solicitors and • Clancy O’Donovan ﬁ rms who provided their time • Joanna Orton

58 and assistance with EDO litigation • Andrew Pickles and other matters in 2010-2011: • Dr Sarah Pritchard • Christine Adamson SC • Fleur Ramsay • Ken Averre • Dr James Renwick • Chloe Burnett • Leigh Sanderson • Louise Byrne • Mark Seymour • Marion Carpenter • Ashley Stafford • Philip Clay • Dr Kristina Stern • Lisa Doust • Brett Walker SC • Sandra Duggan SC • Robert White • Dr Peggy Dwyer • Neil Williams SC • DLA Piper • Lucinda Wilson Acknowledgements • Nick Eastman • Houda Younan • Stephen Free Scientiﬁ c and Technical Assistance • Freehills The EDO would like to thank • Jackie Gleeson the following experts, both on • Prof Reg Graycar and off the Expert Register, who • Tom Howard provided assistance during 2010- • James Hutton 2011, and all those who provided • James Johnson assistance anonymously: • Geoffrey Kennett SC • Stephen Ambrose • Angela Ketas • Sarah Bekessy • Jeremy Kirk • Paul Boon • Richard Lancaster SC • Adrian Brown • Patrick Larkin • Paul Cooper • Jason Lazarus • Craig Dalton • Craig Leggatt SC • Wayne Davies • Craig Lenehan • Peter deFur • Ian Lloyd QC • Dr Mark Diesendorf • Sarah Mahmut • Martin Fallding • Bruce McClintock SC • Stephen Gale • Scott Nash • Georgia Garrard • Chris Norton • Ian Goodwin • Dr Melissa Perry QC • Nigel Holmes • Susan Phillips • Werner Hoyt • Guy Marks

EDO ANNUAL REPORT 2010-2011 59 • Iain MacGill • DLA Piper • Andy Marr • Cate Faehrmann • Wendy Morrison • Helen Gillam • Gavin Mudd • Sylvia Hale • Ravi Naidu • Felicity Hall • David Newell • Dr Ronnie (Helen) Harding • Hugh Outhred • Murray Hogarth • Steve Paulsen • Frank Hubbard • Philip Pells • Michael Jeffery • Matthew Peters • Dr Andrew Kelly • Steve Philips • Michael Kennedy • Andy Pitman • Robert Kinnane Acknowledgements • Martin Predavec • Judy Lambert • Debashis Raha • Richard Babik Merzian • Brendan Ryan • Ilona Millar • Brett Stevenson • Warwick Pearse • Tim Stubbs • Patricia Ryan • Scott Wilson • James Tedder • Harley Wright • Volunteer Penguin Wardens • Philippa Walsh Donors • John Weate As a non-government and non-profi t organisation, the EDO gratefully accepts support from a range of sources. The support received helps the Offi ce to achieve its mission and in no way compromises the independence of the organisation. The EDO would like to acknowledge the following individuals and organisations (as well as those who choose to remain anonymous) for their generous fi nancial and/or in-kind support: • Barbara Adams • Australian Speleological Federation • Geoffrey Ball • Andrew Chalk

60 Project Offi cer EDO People Sahil Prasad International Programs Offi cer BJ Kim Staff Operations Manager At 30 June 2011, the staff of Meredith MacDonald the EDO comprised: IT/Administrator Director John Scanlan EDO People EDO Jeff Smith Receptionist/Administrator Principal Solicitor Diana Beaton Kirsty Ruddock Administrative Assistant Senior Solicitors Jo Groves (Northern Rivers) Ian Ratcliff (Northern Rivers) Sue Higginson (Northern Rivers) Staff Changes Jessica Wood – currently on leave (Northern Rivers) The EDO has experienced quite a few changes during the past Solicitors year and, as with last year, many Neva Collings of the changes are related to Natasha Hammond-Deakin the continuing baby boom. Elaine Johnson Corrina Novak In the Policy Team, Robert Ghanem resigned after nearly fi ve years at the Policy Director EDO. Nari Sahukar replaced him as Rachel Walmsley – currently on leave Policy Offi cer. However, as Rachel Nari Sahukar – Acting Policy Director Walmsley went on maternity leave Policy Offi cers from April, Nari has been Acting Richard Howarth Policy Director. His Policy Offi cer Zsofi a Korosy position was fi lled by the return of Heidi Evans briefl y and then by Scientifi c Director Zsofi a Korosy. Gillian Duggin left Tanya Wansbrough – currently on her temporary position as Policy leave Offi cer, following the return of Anna Lashko – Acting Richard Howarth from extended Scientifi c Director leave, working as a volunteer in Fiji. Scientifi c Offi cer Amelia Thorpe resigned as Christine Ball International Programs Director and Education Director the position was restructured to Jemilah Hallinan an International Programs Offi cer Education Offi cers position which was taken up by Mark Byrne (Northern Rivers) BJ Kim who transferred from his Nicholas Angel solicitor position at the EDO.

EDO ANNUAL REPORT 2010-2011 61 Melissa Jolley left the Litigation Science Intern; and Fleur Downard Team and has been replaced by as an International Program Intern. Elaine Johnson who has previously worked at the EDO as a locum Staff Training and and maintained her association Development with the EDO during a volunteer placement in the Solomon Islands. The EDO continues to support the training and development of its Corrina Novak was appointed to staff to enhance their capacity to fi ll the vacancy created by BJ Kim; deliver high quality services. The EDO People EDO she had previously worked at the Offi ce is committed to allocating EDO as a volunteer and paralegal. funds for external staff training and development, in addition to The increased activity in the undertaking internal education Northern Rivers led to the sessions on specifi c topics with special employment of Jo Groves as a relevance for the EDO’s operations. part-time Administrative Assistant. Jessica Wood has been on maternity Board of Management leave throughout this year. The EDO is a non-profi t company In the Science Team, Anna Lashko limited by guarantee and its volunteer has been Acting Scientifi c Director Board provides strategic direction while Tanya Wansbrough has and governance to the Offi ce. The been on maternity leave and Board is elected at each annual Christine Ball took up the Scientifi c general meeting. Board members Offi cer position in August 2010, attend six-weekly meetings, replacing Kristy Graham. planning days and some community In the Education Team, Rosemary education events. They make a Bullmore moved on from her major contribution to the work of temporary position as Project Offi cer the Offi ce, guiding its development and Elise Trask was employed until and devoting considerable time December to complete Rosemary’s and expertise to the work. projects. The EDO was successful The EDO Patron and members of the in securing another project grant Board during 2010 – 2011 comprised: which led to the employment of Sahil Prasad as a new temporary Patron Project Offi cer from April 2011. Mr Hal Wootten AC QC Chair The Offi ce was fortunate in being able to employ a number of casual The Hon. Murray Wilcox AO QC staff and interns for various periods Retired Judge during the year: Gabrielle Brine and Attended 9 of 9 meetings Anthea Stouffers provided support Vice-Chair to the Operations Team; Yvonne Ms Barbara Adams, PSM Hales worked on updating our fact Retired Senior Public Servant sheets; Alexandra Cave worked as a Attended 8 of 9 meetings

62 Secretary Ms Kate Smillie Mr Andrew Burke Regional Manager, Nature Solicitor Conservation Trust of NSW Attended 6 of 9 meetings Attended 7 of 9 meetings Treasurer Ms Helen Gillam Lecturer (Accounting, University of Technology, Sydney) Attended 5 of 9 meetings EDO People EDO Ms Louise Byrne Barrister Term ended 26/10/10 Attended 2 of 3 meetings Mr John Connor Chief Executive Ofﬁ cer, The Climate Institute Appointed 1/12/10 Attended 4 of 6 meetings Mr Andrew Cox Environmental Consultant Term ended 26/10/10 Attended 1 of 3 meetings Dr Ronnie Harding Retired Academic (Environmental Studies, University of NSW) Attended 8 of 9 meetings Mr Frank Hubbard Principal, Worthwhile Projects Pty Ltd Attended 6 of 9 meetings Prof. Michael Jeffery QC Queens Counsel and Professor (Environmental Law, University of Western Sydney) Attended 5 of 9 meetings Mr Michael Kennedy Campaign Director, Humane Society International (Australia) Appointed 9/2/11 Attended 3 of 5 meetings

EDO ANNUAL REPORT 2010-2011 63 major funder of the EDO with Funding and triennial funding of $US210,000 from 1 July 2010 to 30 June Financial Report 2013. This funding is for legal capacity building work in Papua New Guinea and the Paciﬁ c. In addition to the triennial Funding from Grants grants outlined above, the EDO The EDO is overwhelmingly received a number of smaller dependent on grants to fund its grants allocated for a shorter operations at their current level. time and for speciﬁ c projects The major source of funding for the during 2010-2011. These were: organisation is the Public Purpose • NSW Government through its Fund (PPF). This is triennial funding Environmental Trust for publication and the current grant is for the and distribution of a revised edition period 2009 to 2012. The PPF of the Rural Landholders Guide provided $1,602,075 or about 68% of the EDO’s income in 2010-2011. • NSW Government through its Environmental Trust for the Triennial funding is also received from Private Conservation Program both the Commonwealth Attorney- General’s Department and Legal • NSW Government through

Funding and Financial and ReportFunding Aid NSW through the Community its Environmental Trust for Legal Services Program (CLSP). Mining and the Law: A Guide The current Funding Agreement for the Community covers 2010–2013. CLSP funds from • The Commonwealth Department the NSW Government accounted of Agriculture, Fisheries and for $183,681 or about 7.8% of Forestry under its ‘Caring for our the EDO’s income in 2010-2011; Country’ program to develop Commonwealth funding amounted and distribute a publication, to $93,928 or 4% of overall revenue. Caring for the Coast: A guide The EDO also beneﬁ tted to environmental law for from a triennial grant from the coastal communities in NSW NSW Government through its • The Commonwealth Environmental Trust under the Lead Government through AusAID’s Environmental Community Groups Australian Leadership Awards Grants Program which contributes to Fellowship Program the organisation’s administrative costs. The EDO was awarded $180,000 in • City of Sydney Council for a series funding for the period 2009–2012. As of seminars on urban sustainability only $36,000 of this grant was taken • Environment and Planning Law up last year, $72,000 was available Association (NSW) Inc. for an this year and the same next year. annual research fellowship grant. The John D. and Catherine T. MacArthur Foundation is another

64 Income Generation assets. This was combined with a higher than a usual level of donations In addition to the income received and income from bank interest. from grants, the EDO generated other income from fees charged for its professional services, education Financial Performance activities, memberships, donations In 2010-2011, the EDO achieved a and bank interest. This money surplus of $9,916. This is consistent enables the EDO to undertake with the outcomes achieved in most work which is strategically important years where the surplus/defi cit is but cannot be done within the within 5% of annual revenue. The terms of funding contracts. Board had planned on a defi cit In 2010-2011, the EDO generated result for this fi nancial year, however other income of $242,040. A unexpected revenue from the signifi cant proportion of this was winding up of Waterkeepers and income from fees ($113,119). The additional donations contributed to EDO’s fees for litigation are usually the positive result for the year. This covered by grants of legal aid or will assist the Offi ce to meet higher capped at a low rate unless there is a rent commitments arising from successful costs award in favour of the the move to new Sydney premises Offi ce’s client. Unusually, fees did not in June 2011, providing space for constitute the majority of non-grant more staff and volunteers. It will also allow the Board to commit income as in previous years. Part Financial and ReportFunding of the reason for this was that the funds to the cost of developing EDO benefi ted from the wind up of more effective internal systems, another environmental organisation, better suited to the expanded Waterkeepers Australia Ltd. as and more complex organisation the Offi ce received $43,695 from that the EDO has become. the distribution of their remaining

EDO ANNUAL REPORT 2010-2011 65 ENVIRONMENTAL DEFENDER’S OFFICE LIMITED A.C.N. 002 880 764 DIRECTORS’ REPORT FOR THE YEAR ENDED 30 JUNE 2011

The Directors present this report Signifi cant Changes on the company for the fi nancial in State of Affairs year ended 30 June 2011. There have been no signifi cant changes in the state of the company’s Directors affairs during the fi nancial year. The following persons held offi ce of director as at balance date: Principal Activities

Directors’ Report Barbara Adams The principal activities of the Andrew Burke company during the course of the year were the provision of John Connor Environmental Law services Helen Gillam There have been no signifi cant Ronnie Harding changes in the nature of these Frank Hubbard activities during the year. Michael Jeffery After Balance Date Events Michael Kennedy No known matters or circumstances Kate Smillie have arisen since the end of the Murray Wilcox fi nancial year which signifi cantly affected or may signifi cantly affect Net Profi t After Income Tax the company’s operations, the results of those operations or the The net profi t of the company state of affairs of the company for the fi nancial year was in subsequent fi nancial years. $9,916 (2010 – $134,934). Future Developments Review of Operations The company expects to maintain the A review of the company present status and level of operations operations during the fi nancial and hence there are no likely known year and the results of those developments in future fi nancial years. operations are as follows: The company’s operations during Environmental Issues the year performed as expected The company’s operations are in the opinion of the directors. not regulated by any signifi cant environmental regulation under

66 a law of the Commonwealth 307C of the Corporations Act or of a State or Territory. 2001 is set out on the next page. This statement is made in accordance Dividends with a resolution of the Board The Memorandum of Association of Directors and is signed for an of the company prohibits the on behalf of the directors by: company from paying dividends Directors and, accordingly, no dividends Andrew Burke have been declared or paid Barbara Adams during the ﬁ nancial year. Dated this 7th day of September 2011 Options

No options over issued shares or Directors’ Report interests in the company were granted during or since the end of the ﬁ nancial year. Furthermore, there were no options outstanding at the date of this report.

Indemnities Granted There have been no indemnities granted or insurance premiums paid, during or since the end of the ﬁ nancial year, for any person who is or has been an ofﬁ cer or auditor of the company.

Actions No person has applied for leave of Court to bring proceedings on behalf of the company or intervene in any proceedings to which the company is a party for the purpose of taking responsibility on behalf of the company for all or any part of these proceedings. The company was not a party to any such proceedings during the year. A copy of the auditor’s independence declaration as required under Section

EDO ANNUAL REPORT 2010-2011 67 BALANCE SHEET AS AT 30 JUNE 2011

Note This year Last year ($) ($) ASSETS

CURRENT ASSETS Cash and Cash Equivalents 5 873,872 706,788 Trade and Other Receivables 6 135,017 150,348 Other Financial Assets 7 87,063 52,650

Directors’ Report TOTAL CURRENT ASSETS 1,095,952 909,786

NON CURRENT ASSETS Property, Plant & Equipment 8 64,003 56,541 TOTAL NON CURRENT ASSETS 64,003 56,541 TOTAL ASSETS 1,159,955 966,327

LIABILITIES

CURRENT LIABILITIES Trade and Other Payables 9 400,658 230,711 Short Term Provisions 10 122,182 132,284 TOTAL CURRENT LIABILITIES 522,840 362,995

NON CURRENT LIABILITIES Long Term Provisions 11 59,088 35,221 TOTAL NON CURRENT LIABILITIES 59,088 35,221 TOTAL LIABILITIES 581,928 398,216 NET ASSETS 578,027 568,111

EQUITY Retained Earnings 578,027 568,111 TOTAL EQUITY 578,027 568,111

The accompanying notes form part of these fi nancial statements and should be read in conjunction herewith. 68 Auditor’s Responsibility Independent Our responsibility is to express an opinion on the fi nancial statements Audit Report based on our audit. We conducted our audit in accordance with We have audited the accompanying Australian Auditing Standards. fi nancial report of Environmental These Auditing Standards require Defenders Offi ce Limited (the that we comply with relevant company), which comprises the ethical requirements relating statement of fi nancial position to audit engagements and plan as at 30 June 2011, statement of and perform the audit to obtain comprehensive income, statement reasonable assurance whether of change in equity and cash the fi nancial statements are free fl ow statement for the year from material misstatement. ended on that date, a summary An audit involves performing of signifi cant accounting policies procedures to obtain audit evidence and other explanatory notes and about the amounts and disclosures the directors’ declaration. in the fi nancial statements. The

procedures selected depend on the Report Audit Independent The Responsibility of auditor’s judgment, including the the Directors for the assessment of the risks of material Financial Statements misstatement of the fi nancial statements, whether due to fraud The directors of the company are or error. In making those risk responsible for the preparation and assessments, the auditor considers fair presentation of the fi nancial internal control relevant to the entity’s statements in accordance with preparation and fair presentation Australian Accounting Standards of the fi nancial statements in order (including Australian Accounting to design audit procedures that are Interpretations) and the Corporations appropriate in the circumstances, but Act 2001. This responsibility not for the purpose of expressing includes designing, implementing an opinion on the effectiveness and maintaining internal controls of the entity’s internal control. relevant to the preparation and An audit also includes evaluating fair presentation of the fi nancial the appropriateness of accounting statements that are free from material policies used and the reasonableness misstatement, whether due to fraud of accounting estimates made or error; selecting and applying by the directors, as well as appropriate accounting policies; and evaluating the overall presentation making accounting estimates that are of the fi nancial statements. reasonable in the circumstances.

EDO ANNUAL REPORT 2010-2011 69 We believe that the audit evidence Joe Pien, Chartered Accountant we have obtained is suffi cient Suite 503, Level 5, 276 Pitt and appropriate to provide a Street, Sydney, NSW, 2000 basis for our audit opinion. Dated this 12th day of Independence September, 2011 In conducting our audit, we have complied with the independence requirements of the Corporations Act 2001. We confi rm that the independence declaration required by the Corporations Act 2001, provided to the directors of Environmental Defenders Offi ce Limited on 12 September 2011, would be in the same terms if provided to the directors as at the date of this auditor’s report.

Auditor’s Opinion In our opinion: a. the fi nancial report of Environmental Defenders Offi ce Limited is in accordance with the Corporations Act 2001, including: i. giving a true and fair view of the company’s fi nancial position as at 30 June 2011 and of its performance for the year ended on that date; and ii. complying with Australian Accounting Standards (including Australian Accounting Interpretations) and the Corporations Regulations 2001; b. the fi nancial report also complies with International Financial Reporting Standards as disclosed in Note 1.

70 PROFIT AND LOSS STATEMENT FOR THE YEAR ENDED 30 JUNE 2011

2011 ($) 2010 ($) INCOME Grants Received 1,956,684 2,002,165 MacArthur 69,505 113,304 Donations and Memberships 64,825 12,453 Conferences, Publications & Workshops 82,999 48,029 Professional Fees 95,469 172,760 Interest Received 74,569 51,484 2,344,051 2,400,195

EXPENDITURE Auditor’s Remuneration - Financial Statements 12,420 13,785 Accountancy and Bookkeeping 31,938 34,100 Bad Debts Written Off 3 - Bank and Government Charges 3,029 2,005 Board Costs 1,495 1,189 Casual Staff 7,514 - Conferences, Publications & Workshops 93,952 109,326 Consultants Fees 12,107 - Depreciation 25,707 22,412 Doubtful Debts 986 3,856 Employees Entitlement Provision 13,765 42,189 Employee Expenses 10,117 8,900 Insurance 12,583 12,560 Legal Fees 6,938 3,698 Light & Power 7,863 5,804 Loss on Disposal - Fixed Assets 664 656 MacArthur Expenses 57,103 116,406 Equipment Lease 8,791 6,205

EDO ANNUAL REPORT 2010-2011 71 PROFIT AND LOSS STATEMENT FOR THE YEAR ENDED 30 JUNE 2011 (Continued)

2011 ($) 2010 ($) EXPENDITURE (Continued) Ofﬁ ce Costs 26,442 18,529 Organisational Development 79,853 27,498 Postage & Couriers 3,955 1,115 Printing & Stationery 17,714 23,104 Rent - Ofﬁ ce 133,964 117,660 Repairs & Maintenance - 45,833 2,766 General Repairs & Maintenance Salaries & Wages 1,483,316 1,462,103 Staff Training & Welfare 14,942 14,179

Independent Audit Report Audit Independent Staff Amenities 6,314 3,522 Staff Recruitment 3,129 1,290 Subscriptions 22,851 22,824 Superannuation Contributions 129,706 127,941 Telephone & Internet 31,862 36,147 Travelling Expenses 27,279 23,492 2,334,135 2,265,261 OPERATING PROFIT 9,916 134,934 BEFORE INCOME TAX

[Note – this is an abridged copy of the Financial Report for the year ended 30th June 2011. For a full copy of the Report, please see our website http://www.edo.org.au/edonsw/site/ annualreports.php or contact the offi ces of the Environmental Defender’s Offi ce Ltd. The EDO is a signatory to the Australian Council for International Development (ACFID) Code of Conduct (the Code). The summary fi nancial report included in this Annual Report has been prepared in accordance with the Code.]

2010/11 www.edo.org.au/edonsw (NSW) Offi Defender’s Environmental Fax: (02) 6621 3355 (02) Fax: Tel: 2480 NSW Lismore 868, Box PO St, 1, 71Level Molesworth Northern Rivers Offi ce 626 239 1800 Freecall: 9262 6998 (02) Fax: 9262 6989 (02) Tel: 2000 NSW Sydney St, 263 Clarence 5, Level OffiSydney ce ( 02) 6621 1111 or 13 0 0 369 791 369 0 0 13 or 1111 6621 02) ( ce