ENVIRONMENTAL DEFENDER’SANNUAL REPORT OFFICE NSW 2009/10

ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT 2008/09

(02) 6621 1111 or 1300 369 791 369 1300 or 1111 (02)6621

Northern Rivers Office MolesworthLevel 71 1, St, PO Box 868, Lismore NSW 2480 Tel: Fax: (02) 3355 6621 Sydney Office Level 89 St, York 1, Sydney NSW 2000 Tel: (02) 6989 9262 Fax: (02) 6998 9262 Freecall: 1800 239 626 www.edo.org.au/edonsw Office (NSW) Defender’s Environmental 2009/10 ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT 2009/10

The Environmental Defender’s Offi ce (EDO) (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 a branch 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. This report was published on 8th October 2010. From the Chair ...... 4 Director’s Report ...... 6 National EDO Network ...... 8 EDO NSW Introduction ...... 9 EDO Northern Rivers ...... 10 EDO: A Green Offi ce ...... 11

PART A – CORE FUNCTIONS OF THE EDO Litigation and Legal Advice ...... 13

Policy and Law Reform ...... 15 of Contents Table Scientifi c and Technical Advice ...... 16 Community Programs ...... 18 Media and Communications ...... 27

PART B – PRIORITY AREAS Climate Change and Energy ...... 30 Environmental Planning and Development ...... 34 Biodiversity Conservation ...... 38 Natural Resource Management ...... 45 Environmental Justice ...... 53 Corporate Social Responsibility and Governance ... 58

PART C – REPORTING AND GOVERNANCE EDO Clients ...... 60 Acknowledgements ...... 61 EDO People ...... 64 Funding and Financial Report ...... 68 Director’s Report ...... 70 Independent Audit Report ...... 73

EDO ANNUAL REPORT 2009-2010 3 As the following pages demonstrate, the Australian Bureau of Statistics EDO’s 25th year has been one setting out quantitative indicators of great activity and considerable in respect of economic, social and success. On behalf of the Board, I environmental matters and the congratulate our staff on what they Millennium Report of 2000. As the have achieved. They work tirelessly, Professor pointed out, the news is imaginatively and intelligently. bad. Although there is improvement We thank them for that. in all the economic indicators, and A highlight of the year was the most of the social indicators, all but 25th anniversary Conference. The one of the environmental indicators Conference was supported by the deteriorated. The exception is urban From the Chair From other Australian EDOs and featured air quality, which has benefi ted from contributions from many outstanding tighter governmental regulation people. There were times when of motor vehicle emissions. so much interesting and important Professor Lowe pointed out that material was being put before us Australia is in a biodiversity crisis: that it was diffi cult to keep pace. our current extinction rate is We were honoured by the presence, between one hundred and one at the Conference dinner, of the thousand times the historic extinction Chief Justice of Australia, the rate, as revealed by the fossil Honourable Robert French AC, evidence. Worse, the projected and Mrs French. The Chief Justice future extinction rate is expected made a witty but thoughtful speech to be ten to one hundred times in which he refl ected on the role higher than today. The Millennium of non-governmental organisations assessment suggests that some 30% in environmental litigation. of all mammal, bird and amphibian species could be lost before 2100. I wish particularly to mention the Keynote Address, at the Professor Lowe identifi ed eight Conference itself, of Professor Ian defects of present-day environmental Lowe AO, Emeritus Professor in decision-making. He said decisions: Science, Griffi th University and • are weighted to economic current President of the Australian development; Conservation Foundation. Professor • fail to consider Lowe’s address now appears in cumulative impacts; IMPACT! (Issue 89, June 2010). • deal poorly with Professor Lowe commenced by scientifi c evidence; drawing attention to those, relatively few, reports that indicate Australia’s • rarely use the precautionary environmental progress over the principle; last 25 years: the three State of the • cannot handle climate change; Environment Reports (1996, 2001 • privilege this generation and 2006), the biennial reports of over future generations;

4 [ THE HON. MURRAY WILCOX, QC]

• do not verify earlier studies It seems to me it would be desirable and decisions; and for ANEDO, stripping away any • rarely enforce imposed conditions. repetitions or distortions caused by the nine points having to fi t Professor The Professor unveiled a new Lowe’s acronym, to formulate a set acronym STOP CRIME, an aid to of environmental decision-making remembering a clutch of desirable principles that could be taken to reforms of decision-making practice: government, perhaps the Council Scientifi c panels should inform of Australian Governments, as a decision-making (as distinct from template for adoption in all relevant the present system whereby legislation. However, we should be scientifi c experts are selected realistic. As Professor Lowe pointed the Chair From by the parties and operate in out: “While we esteem economic an adversarial manner); growth above environmental integrity and social cohesion, so Transfer of the burden of proof will the law.” We must also be in about environmental consequences the business of changing values. of a development from the opponent of development (as now) to its proponent; Overhaul the standard of proof— the absence of environmental disadvantage should have to be The Hon. Murray Wilcox, AO proved beyond reasonable doubt; QC Chair Past advice should be evaluated. Cumulative impacts should be explicitly considered; Real consideration of future generations; Independent assessment of proposals; Monitoring in the light of claims made; Enforcement of conditions.

EDO ANNUAL REPORT 2009-2010 5 2010 marked the 25th anniversary of being independent, accessible, of the Environmental Defender’s expert-based, and holding decision- Offi ce in NSW, with the Offi ce makers to account to achieve offi cially opening its doors on 30 May successful outcomes through the 1985. This year was therefore one of law. I suspect this mirrors the vision both celebration and refl ection, as of our founders, though expansion well as, in the main, a redoubtable has obviously changed the way we determination to get on with the job. work - that is, with a stronger focus In a celebratory vein, an anniversary on early engagement and a multi- dinner was hosted at Doltone disciplinary approach using policy and House to commemorate the work law reform, community education and of the EDO and to thank all those scientifi c levers where appropriate. who have contributed to making It is also important to refl ect on how Director’s Report Director’s the Offi ce what it is. Our guest of we are viewed from the outside. In honour was the Honourable Robert this respect, a conversation I had with French AC, Chief Justice of the High an ex-offi cer at the Department of Court of Australia, perhaps a useful Planning may be instructive. When I signifi er of how far we have come. asked him whether we were loved or The twin themes of celebration hated (it wasn’t a deep discussion), he and refl ection were evident in our replied: ‘A bit of both, but always with national conference Public Interest respect’. In terms of where we want Environmental Law in Australia: 25 to be, respect is not a bad yardstick. Years On. Many of the conference As for getting on with the job, speakers were asked to refl ect on the we once again did it with gusto past 25 years, as well as the challenges and panache and professionalism ahead. At the same time, training and dedication. There are few was held for EDO staff and Board environmental indicators pointing - members around Australia as to how or even turning - in the right direction, we can best meet those challenges. yet staff and the Board consistently At a more prosaic level, the EDO demonstrate resilience, resolve and refl ected on our work through a results. The latter attribute – results variety of strategic processes. As we – is no mean feat in an often hostile have grown, the EDO has moved working environment. However, as from being a law fi rm that does this report attests, it is one that is public interest environmental law uniformly met. For once, I shall refrain work to a multi-disciplinary or even from summarising the vast array of inter-disciplinary legal offi ce that work we do across all our functions provides a wide-range of services and leave that to the body of the to the community. We felt it was report. Suffi ce to say, I owe a debt of important to bed down exactly thanks to staff and the Board for what how we see ourselves now. Our they have again brought to the EDO. conclusions revolved around notions

6 [ JEFF SMITH]

Joining us in our endeavours, and make it shorter, as Cicero might vastly broadening the reach and have said. Special thanks to Jemilah expertise of the Offi ce, is a bevy of Hallinan, our Education Director, donors, barristers, experts, private for delivering on this aim. fi rms and volunteers. I thank them all for their assistance, perseverance, support and good work. Furthermore, I would like to express our gratitude to our major funders, who provide the foundation stone for Jeff Smith our work. The EDO receives triennial Director grants from the Commonwealth and NSW governments, the MacArthur Foundation (for international capacity- Report Director’s building), the Environmental Trust (through the LECG program) and the Public Purpose Fund (PPF). The PPF is our main funder, and once again deserves special mention. Its support has enabled the EDO to pursue our raison d’être – to protect the environment through law – through providing a wide-range of high quality services to the community. Complementing these triennial grants, the EDO has benefi tted greatly from a number of important, project specifi c grants. Our thanks go to the Community Legal Centres NSW, the Environmental Trust, Sydney City Council and the Commonwealth Department of Agriculture, Fisheries and Forestry. One fi nal note: The report is leaner than those in the past – or at least compared to the Bumper Edition last year. This is deliberate, and can no way be attributed to the EDO taking its foot off the accelerator (as only a cursory look at its substance would attest). Rather, it has been a much more intensive exercise to

EDO ANNUAL REPORT 2009-2010 7 interest environmental law was National EDO held (see below), together with training for over 40 EDO staff and Network Board members from across the network. The training modules included Litigation and Advice, Planning and environmental matters Policy and Law Reform, Community have historically been within the Legal Education and Fundraising and purview of the states and territories. Grantmaking. These funds followed However, environmental issues in on from federal funds provided last Australia increasingly have a national year to prepare both a Strategic Plan or cross-boundary focus, refl ecting and a Business Plan to give greater the truism that the environment does focus to co-ordination and liaison. not respect political boundaries. A key focus of ANEDO (and thus The Environmental Defender’s the EDO in NSW) over the past Offi ce in NSW (EDO NSW) has year has, once again, been in the taken a key role in recent years area of policy and law reform, with a

National EDO Network in both leading and responding to particular emphasis on climate change, these developments. EDO NSW renewable energy, water and the is one of nine independent EDO (CTH) Environment Protection and offi ces located across Australia who Biodiversity Conservation Act 1999. 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 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. Throughout the year, ANEDO received $22,500 in one-off federal funds for national liaison and co-ordination. A conference to celebrate 25 years of public

8 • community programs (community EDO NSW legal education, international engagement, indigenous Introduction engagement and accessibility) • media and communications The EDO’s mission is to promote Part B of the Report will outline the public interest and improve the work of the EDO within its environmental outcomes through identifi ed priority areas, that is, the informed use of the law. environmental issues that the EDO The EDO’s goals are to: has identifi ed, in close collaboration with our stakeholders and clients, 1. ensure the community receives as requiring particular attention. prompt advice and professional These priority areas are: representation in public interest environmental matters • Climate Change and Energy 2. identify defi ciencies in • Environmental Planning environmental law and and Development

work for their reform. • Biodiversity Conservation EDO NSW Introduction 3. empower the community to • Natural Resource Management participate in environmental decisions and to use the law • Environmental Justice to protect the environment • Corporate Social Responsibility 4. promote protection of the and Governance environment through national This section of the Report will set and international engagement out how each of the key functions of 5. provide a working the EDO contributed to protecting environment for EDO staff the environment in these areas. that encourages excellence Finally, Part C of this Report will 6. provide sound governance cover the reporting and governance and effective and effi cient issues involved in the day-to-day management of the offi ce 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 brief updates from each of the core areas of operation, namely: • litigation and legal advice • policy and law reform • scientifi c and technical advice

EDO ANNUAL REPORT 2009-2010 9 workshops were held to help build EDO Northern the capacity of local residents to engage effectively in the updating of Rivers LEPs to the new Standard Instrument. LEPs are a strategic planning document and the Offi ce encouraged The Northern Rivers Offi ce is a public participation in the plan-making branch offi ce of the EDO NSW that process by publishing newspaper operates from Lismore. Details of articles and devising a checklist for the work of the Northern Rivers communities to use when reviewing Offi ce have been incorporated their local plans. The checklist has a in the general work of the EDO focus on biodiversity protection. throughout this Report. The year saw a surge in concern 2009-2010 marks the 4th year of about forestry operations on public operations for the Northern Rivers land. The EDO Northern Rivers has Offi ce and the period has been been acting for the peak regional

EDO Northern Rivers extremely busy and eventful. environment group, in concert with Community concern about climate local member groups, who have change and renewable energy saw begun auditing and reporting on the Northern Rivers Offi ce working public land forestry operations in with a number of rural and remote the upper north east region. With communities in the western part the Regional Forest Agreements of the service area. Through its being halfway through their 20 year commitment to early engagement, lifespan, the groups have identifi ed the EDO Northern Rivers has been that there is evidence of systemic providing legal advice and assisting breaches of the environmental with technical advice to a community protection regulations. concerned about a proposed major With the phase in of the private development to construct new native forestry regulatory scheme coal-fi red power infrastructure. well underway, there was a plethora The Offi ce has also been assisting a of private native forestry approvals mixed community and interagency in the Northern Rivers region. network that organised the North Many of these approvals are on high Coast Energy Forum in Bellingen conservation value lands in small rural and is now developing a north communities. The EDO Northern coast sustainable energy strategy. Rivers has been providing advice The litigation and education teams to groups and individuals about the were kept busy responding to the laws and regulations that apply to rollout of local environmental plans such operations. This year also saw (LEPs) over the 10 coastal local the successful end to proceedings government areas in the offi ce’s in the Administrative Decisions service area. Several community Tribunal concerning public access to private native forestry logging

10 approvals. It is hoped that with access to private native forestry approvals, EDO: A Green the public can play an effective role in relation to compliance. Offi ce The delivery of the Northern Rivers education program continued The EDO NSW is committed to at a great rate with the delivery operating in an environmentally of 17 varied education events sustainable way. over the year. Events were held in response to emerging local This year, the EDO measured issues as well as the provision its carbon footprint using the of our core environmental legal methodology outlined in the EDO education program. The program NSW Technical Factsheet: Measuring also included bringing international and reducing the greenhouse gas climate change negotiations to the footprint of a small offi ce. The EDO North Coast through the series has devised a GHG calculator Climate Law after Copenhagen which with associated procedures for ce EDO: Offi A Green featured a fi rsthand account from calculating GHG emissions. an EDO lawyer who attended the In calculating the carbon footprint negotiations. The EDO Northern of the Offi ce, we included: Rivers also maintained an informative and topical presence in a number • All work-related travel (excluding of rural and regional newspapers travel to and from work) and participated in community by EDO NSW employees, events, including a burgeoning but not by contractors number of sustainability festivals. • Emissions associated with offi ce While no new litigation was paper use and disposal, and paper commenced during the reporting used in EDO NSW publications period, a number of cases were • Emissions associated successfully fi nalised, including a case with electricity use that saw the protection of signifi cant • Emissions associated with koala habitat. That case and other waste disposal and recycling matters dealt with by the Northern Rivers Offi ce is reported on more Gold standard accredited carbon fully elsewhere in this Report. offsets were purchased to offset work-related travel emissions for 2009-2010, based on the GHG calculations. This amounted to 127 tonnes of offsets. Emissions associated with car travel were lower than the previous year. However, air travel increased by over 100% in part due to the EDO

EDO ANNUAL REPORT 2009-2010 11 national conference which was avoidance, closing the recycling attended by 18 international delegates loop and reduction of from the Pacifi c and representatives environmental impacts in mind. from all the interstate EDOs. Several of the conference speakers were also fl own in from interstate. The emissions associated with EDO publications decreased. However, emissions associated with paper use increased by roughly 20% which may be due to a number of complex cases requiring expert evidence and increased staff and volunteer numbers. Given this result, the EDO will be looking afresh at ways to reduce paper consumption. All EDO: A Green Offi ce EDO: Offi A Green EDO paper, including that used in publications, is 100% recycled stock. EDO also recycles all the waste paper produced by the Offi ce. Electricity usage in the Sydney offi ce decreased by about 1.5 kWhr this year. This is likely to be due to new zoning and extra switches installed for the lights in the Sydney Offi ce which enable the lights in unused rooms to be switched off. The EDO also sought to manage and reduce its ecological and carbon footprint by: • encouraging the use of public transport by staff, volunteers and clients; • purchasing 100% GreenPower for the Offi ce; • identifying areas where energy effi ciency can be improved and incorporating these into operations; and • purchasing equipment and consumables with waste

12 PART A: CORE FUNCTIONS OF THE EDO

Ors to challenge the approval of Litigation and two new power stations in NSW that could increase the state’s Legal Advice carbon dioxide emissions by 15%. The EDO has also been involved in a number of high profi le planning cases, The EDO represents individuals and including Gwandalan Summerland Point community organisations in public Action Group v Minister for Planning interest litigation to protect the and Sweetwater Action Group v Minister environment. In 2009-2010, the EDO for Planning & Ors. These cases both litigated a variety of cases involving successfully challenged decisions of issues of signifi cant public concern, the Minister for Planning on major including climate change, biodiversity projects involving rezoning for issues, mining, Aboriginal cultural residential development in sensitive heritage, planning, pollution issues environmental areas on the basis of and coastal development. Over the doctrine of apprehended bias. In 20 EDO cases are reported on in both cases deeds of agreement that this Report, being at various stages approved development footprints of development; some have been for these areas had been entered determined, others are either awaiting

into prior to the environmental Legal and Advice Litigation judgement or are still to be heard. assessments being undertaken. Climate change litigation continues The EDO also successfully obtained to be a key part of our work. In July the fi rst limited costs order in the 2009, the EDO commenced Gray Land and Environment Court in & Hodgson v Macquarie Generation Blue Mountains Conservation Society which is the fi rst case in Australia Inc. v Delta Electricity, a third party to use pollution laws to argue that enforcement action about water the emission of carbon dioxide pollution. The protective costs order from a large coal-fi red power awarded by the Court has enabled station constitutes a ‘waste’ and this important enforcement action therefore should be limited. In June to continue on the basis that Blue 2010, the EDO also commenced Mountains Conservation Society Inc. Haughton v Minister for Planning &

EDO ANNUAL REPORT 2009-2010 13 will only pay a maximum of $20,000 is consistent with past years. The in costs if the case is unsuccessful. subject matter of these inquiries The precedent will hopefully enable can be varied, but many concern many others to take public interest planning and development, tree litigation by limiting exposure to disputes, zoning, community land, adverse costs orders. The protective compliance and enforcement, costs order is on appeal. Part 3A developments, freedom The EDO has also been involved in a of information, Aboriginal cultural number of important criminal cases heritage, pollution and contamination, to defend protestors, in particular endangered ecological communities to ensure that those engaged in and species, private conservation, protests are not the subject of biobanking, defamation and activism compensation orders to companies including protest issues, community affected by those activities. The rights, mining, water, forestry, and EDO was successful in every criminal misleading and deceptive conduct. matter with which it was involved 194 casework fi les were opened throughout the reporting period, during the reporting period, a great result for our clients. representing litigation matters and Mining and water disputes have detailed written advices, many Litigation and Legal and Advice Litigation also become an increasingly regular with signifi cant scientifi c input. 122 part of our advice and casework casework fi les were closed. More throughout the reporting period. than 73 minor assistance fi les were opened and 57 were closed. The EDO provides free initial telephone advice and, if necessary, written advice on environmental law and policy. The EDO’s toll-free telephone advice service, the Environmental Law Line has been staffed by a duty solicitor between 2:30 and 5:30 pm on Tuesday, Wednesday and Thursday in the Sydney Offi ce and between 9 am and 5 pm Monday to Friday in the Northern Rivers Offi ce. Due to increased demand, the Sydney advice service also recently began operating on Monday afternoons. In 2009-2010, EDO staff dealt with 1, 157 telephone inquiries on the Environmental Law Line. Of these, about 69% came from rural and regional New South Wales, which

14 advice on potential amendments to Policy and Law members of the cross-bench and Government during formal briefi ng Reform sessions and meetings. In 2009-2010 for example, this included advice on the Threatened Species Conservation The EDO actively engages in Amendment (Biocertifi cation) Bill environmental policy and law reform 2010, the Coastal Protection and activities in New South Wales, at a Other Legislation Amendment Bill 2010 Commonwealth level and, where and the National Parks and Wildlife relevant for domestic law and (Visitors and Tourists) Bill 2010. policy, at an international level. The EDO is regularly retained to In 2009-2010, the EDO policy provide policy advice on a particular team drafted over 30 submissions area of law or to develop law in response to legislative reviews, reform proposals on a consultancy government proposals and basis to environment groups or the

Parliamentary inquiries. On the Government. This complements Reform Law and Policy basis of our submissions, the EDO proactive policy work on issues is regularly requested to address identifi ed by the EDO as requiring Parliamentary inquiry hearings, public law reform. Major advice projects forums, and meet with government in 2009-2010 included: advice to and environmental groups that lobby the Department of Environment for environmental law reform. and Climate Change on how to Our submission work in 2009- strengthen the biocertifi cation 2010 was fairly evenly spread process, advice for the Humane between 5 of our priority areas: Society International on domestic climate change, biodiversity, regulation of forest carbon credits; natural resource management, and advice to Greenpeace on planning and development banning the import of illegal and environmental justice. timber. Proactive projects included work on cultural heritage law The EDO policy team provides reform in NSW and a major law reform advice to environment report for the Total Environment and community groups on Centre on public participation current, proposed and potential in the NSW planning system. environmental legislation. The EDO advises conservation groups and In 2009-2010, EDO policy work also the community regarding the legal involved participation on various implications of Bills introduced into stakeholder panels. The input Parliament and whether amendments provided at such forums is expertise- to a particular Bill should be sought. based, and is a crucial element of our As part of this service, the EDO key stakeholder and law reform role. also provides legal and policy In 2009-2010, the Offi ce continued to provide detailed feedback to DECCW

EDO ANNUAL REPORT 2009-2010 15 as a member of the Ministerial Reference Group on Biobaking, the Scientifi c and Planning Implementation Advisory Committee chaired by the Minister, Technical Advice the Beverage Container Deposit Group and the Contaminated Land Management Committee. Advice The role of the Scientifi c Advisory on law reform issues is provided to Service is to provide objective environment group committees, for scientifi c and technical advice to the example, in 2009-2010 the EDO EDO and its clients on public interest continued to be a contributing environmental matters. In addition, member of the NCC Water Group. the last 12 months have continued to see the Scientifi c Advisory Service Often the provision of policy advice make a signifi cant contribution to the is accompanied by the presentation EDO’s policy and law reform work. of EDO workshops and appearances as guest speakers at conferences. The Scientifi c Advisory For example the EDO made a Service comprises: submission to the National Human • Two in-house environmental Rights Consultation and one of the scientists policy team then presented on the points raised in that submission • A Technical Advisory Panel, at both the National and NSW which comprises academic Scientifi c and Technical Advice Technical c and Scientifi Community Legal Centres annual experts who provide strategic conferences. The policy team has also advice to the EDO on scientifi c assisted the education team present issues on a pro-bono basis and law reform workshops on planning • An Expert Register, which law, private land conservation and comprises over 125 scientifi c and coastal protection. In this way policy technical experts in a range of work complements the EDO’s fi elds who assist the EDO from Education Program, and increases time to time on a pro bono basis. community capacity to engage in Members of the Technical Advisory policy and law reform processes. 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 3. Dr Chloe Mason, Consultant in Urban Transport and Sustainability

16 4. Professor Clive Hamilton, Professor Compliance and monitoring of Public Ethics, Centre for Applied The Scientifi c Advisory Service Philosophy and Public Ethics provides advice on approved 5. Professor Chris Dickman, developments or actions. This Professor of Terrestrial Ecology, mainly involves advice on the University of Sydney. compliance of developments and The scientifi c and technical actions with conditions of approval advice work provided by the or regulatory requirements, as well Scientifi c Advisory Service can as assisting clients in the preparation be categorised as follows: of submissions to regulatory authorities. The in-house scientists • pre-decision and casework have reviewed environmental • compliance and monitoring assessment documents, undertaken • policy and law reform research and provided advice on specifi c technical issues for around • community legal education 20 matters in the reporting period.

Pre-decision and casework Policy and law reform The Scientifi c Advisory Service The Scientifi c Advisory Service provides advice on proposed contributes to the EDO’s policy and developments or actions prior to law reform submissions and discussion a decision being made. This mainly papers. This involves research and Advice Technical c and Scientifi involves advice on the impacts of advice on the scientifi c aspects of developments and the adequacy of government policy proposals and environmental impact assessments the EDO’s priority law reform areas. and assisting clients in the preparation In 2009-2010 the in-house scientists of submissions to decision-makers. If have assisted with the preparation the matter proceeds to Court, the of six EDO policy submissions. in-house scientists get involved in aspects of casework, such as briefi ng Community legal education and managing expert witnesses. The Scientifi c Advisory Service In the reporting period, the Scientifi c presents at workshops and seminars, Advisory Service has been heavily provides advice on scientifi c aspects involved in two cases, No Ship of plain English legal guides, and Action Group Inc v Minister for the prepares fact sheets on scientifi c Environment, Heritage and the Arts & issues. In 2009-2010 the in-house Anor and Rivers SOS Inc v Minister for scientists have had input to a Planning & Helensburgh Coal Pty Ltd. number of EDO publications, given To assist with their work, the in-house presentations at conferences and scientists have consulted and worked seminars and have continued to with over 20 experts, both from the lead the Green Offi ce program. Expert Register, and outside of it.

EDO ANNUAL REPORT 2009-2010 17 Workshops Community A total of 33 free workshops were held throughout New South Wales, Programs with all but 3 held in rural and regional NSW. Through workshops, In 2009-2010 the EDO’s the EDO was able to provide relevant community programs were: legal education to over 1000 people. Workshops covered a range of • Community Legal environmental law issues and were Education program often presented at the request of • International program community groups. A concerted effort has also been made over the • Indigenous Engagement program past year to proactively engage new • Accessibility program communities on particular issues by delivering workshops on current environmental legal concerns. This

Community Programs 1. COMMUNITY LEGAL EDUCATION approach ensures that the services of the EDO are more equitably The aim of the EDO’s Community distributed throughout NSW. Legal Education Program (Education Program) is to empower the community to protect the Seminars environment through law. The Eight free seminars covering a program utilises a range of education range of topical issues were held tools including publications, in the Sydney metropolitan area workshops, seminars and conferences, and throughout the Northern to help build community capacity to Rivers region during 2009-2010. engage effectively in environmental These seminars were attended by decision-making and to respond approximately 300 people. EDO to environmental issues. seminars focus on new and emerging Through the Education Program environmental law topics and are the EDO is able to engage early presented by relevant experts. They with the community and help provide an opportunity to examine communities to take a more proactive an issue from different perspectives approach to environmental issues. and also to encourage discussion, including of new ideas for law reform. The Education Program is focused on rural and regional NSW. The Conference Northern Rivers offi ce runs a discrete Education Program in the region 2010 marked the 25th anniversary with the Sydney offi ce directing of EDO NSW. To celebrate, EDO its programs to the remainder NSW convened a national conference of the state. The work of both to refl ect on the evolution of public offi ces is combined in this report. interest environmental law in that

18 time and to consider what challenges and critically analyses the various and opportunities the future might options for private conservation hold. The two-day conference was that are available in NSW. The held in Sydney on 28-29 May 2010. funding for this project came from The conference was well attended, the NSW Government through its which is testament to the quality of Environmental Trust. 10,000 copies the speakers, who included Professor have been printed so far, of which Ian Lowe AO, Dr Nick Wood and about half have been distributed. The Hon Duncan Kerr SC MP. The Plans are underway to update and conference was formally opened by reprint the publication in 2010-2011. The Hon Robert McClelland MP, Attorney General of Australia. • Major Projects Toolkit The Major Projects Toolkit was Publications published during the reporting period with funding from the City The EDO’s range of plain-English of Sydney. The Toolkit is a guide to publications is an important feature of the assessment and approval process Community Programs the Education Program. Publications for major projects under Part 3A of help the EDO to engage with a broad the (NSW) Environmental Planning cross section of the community and and Assessment Act 1979. The toolkit to increase the reach of the Offi ce. was designed to help the community Publications cover a range of subjects respond to Part 3A applications and and come in various formats, most advocate for best practice planning of which are available free, as hard outcomes. 1000 copies were printed copies or online. In 2009-2010 and most have been distributed. the EDO’s publications were: • Rural Landholder’s Guide to • IMPACT! Environmental Law in NSW This is a bi-annual journal that We continued to distribute the examines topical environmental law updated version of the Rural issues from a range of perspectives. Landholder’s Guide to Environmental EDO NSW produces this publication Law in NSW throughout the reporting on behalf of the Australian Network period. This publication has been of Environmental Defender’s Offi ces funded by the NSW Government (ANEDO). Issue 88 was entitled through its Environmental Trust ‘Native Vegetation Management’ and and remains one of the EDO’s Issue 89 was entitled ‘Public Interest most popular publications. To date, Environmental Law in Australia’. approximately 39,000 copies have • A Guide to Private been distributed with plans underway Conservation in NSW to update and reprint over the coming year. The publication has been The EDO published this new well received and also infl uential. publication during the reporting For example, the NSW Farmers period. The booklet outlines

EDO ANNUAL REPORT 2009-2010 19 Associations Dairy Committee page on the EDO website, with over notifi ed the EDO that they are going 5,000 hits in the reporting period. to use the information in the guide to The e-bulletin updates subscribers prepare a more targeted publication on EDO news and events including on best practice environmental media coverage, developments management for dairy farmers. in environmental law and policy, opportunities to participate in • Caring for Country: A Guide state and federal environmental to Environmental Law for decisions and community events Aboriginal Communities with an environmental focus. The EDO has continued to provide this free publication upon request. • Climate Law Bulletin The EDO’s climate bulletin is a • Campaigning and the Law in bi-monthly e-bulletin dedicated to NSW: A Guide to Your Rights climate law and policy. It provides an and Responsibilities. overview of developments in climate

Community Programs This publication provides practical law and policy at both the national information to campaigners about the and international level. Subscribers possible criminal and civil implications have commented that the publication of their actions and is used as a is an “excellent initiative” as well reference guide by many of the major as “well written and timely”. campaigning organisations as well as local community groups and individual • Caring for the Coast: A Guide to campaigners. The publication was Environmental Law for Coastal updated during the reporting period. Communities in NSW This publication is still in draft form, • Environmental Law Fact Sheets with a publication date set down for The EDO’s online environmental October 2010. It is a guide to the law fact sheets are perhaps the most various laws that address coastal widely distributed service provided environmental and planning issues. by the Education Program. The fact The publication of this booklet sheet homepage is the second most has been delayed as a result of visited page on the EDO website signifi cant legislative changes that (after the home page). The fact sheets were introduced throughout the have been reviewed throughout reporting period, and which related 2009-2010 and will be updated by directly to the content of the October 2010. A small range of publication. The booklet is funded by Science fact sheets is also available. the Commonwealth Government’s Caring for Our Country Program. • e-bulletin The EDO’s free weekly e-bulletin Papers and Presentations continues to be a widely distributed resource with a subscriber list of over EDO staff members are often 1,700. It is the fourth most visited invited to provide a public interest

20 perspective at external forums Website covering environmental or legal The EDO website contains an themes. In 2009-2010, EDO extensive range of information on staff delivered 37 presentations the Offi ce’s core functions such as at conferences, universities and information on access to the Offi ce’s continuing legal education seminars. services, copies of policy submissions, EDO staff also published 6 papers in case notes on litigation, information journals, bulletins and books, including: on up-coming workshops and • Collings N and Evans H (2009) seminars, copies of publications and “Access and Benefi t Sharing links to EDO offi ces in other states. – Protecting Biodiversity and In 2009-2010, a total of 304, 000 Indigeneous Knowledge 7(14) web pages were viewed on the Indigenous Law Bulletin at pp 11-15. EDO NSW website. This amounts • Graham K and Thorpe A to an average of over 25,000 page (2009) “Community-based downloads per month, an increase Monitoring, Reporting and of 5% over the previous year. Community Programs Verifi cation of REDD Projects” The address of the EDO website 3 CCLR at pp 303-313. is www.edo.org.au/edonsw • Hallinan J (2010) “NSW and the Sandon Point Case” in Bonyhady 2. INTERNATIONAL T and Macintosh A (eds) Mills, PROGRAM Mines and Other Controversies The The EDO is committed to improving Federation Press at pp 188-206. the effectiveness of environmental • Howarth R (2009) “Submission law as a tool for defending the on the Review of Australia’s environment internationally. For Future Tax System” 2 a number of years, the EDO has National Environmental Law worked with partner organisations Review at pp 33-45. to build capacity in public interest • Ruddock K and Duggin G environmental law in the South (2009) “Climate Change, Coal Pacifi c, primarily in Papua New and Human Rights” 18(2) Guinea (PNG), Fiji and the Solomon Human Rights Defender at p 5 Islands. The EDO’s international work also involves policy development, • Ruddock K (2009) “Emerging placing volunteers through AusAID’s trends in climate litigation”, Australian Youth Ambassadors for Global Climate Change Law Development (AYAD), Volunteering Guide Newsletter, CCH for International Development from • Ruddock K (2010) “US Climate Australia (VIDA) and Lawyers Beyond Litigation hots up - a review Borders (LBB), and participating of recent cases on climate in international networks. change” Global Climate Change Law Guide Newsletter, CCH.

EDO ANNUAL REPORT 2009-2010 21 Capacity-Building in the Solomon Islands, Fiji and the South Pacifi c Samoa on topics including advocacy and litigation skills, The EDO has provided legal climate change, compliance and assistance to organisations in the enforcement, and international law South Pacifi c since 1991, and since 1998 has received funding from • Providing legal, scientifi c and the MacArthur Foundation to policy advice to groups in PNG, conduct capacity-building work in Fiji, the Solomon Islands, Samoa the region. In 2009-2010 the EDO and Vanuatu on issues including provided assistance to organisations development assessment, in PNG, the Solomon Islands, constitutional law, coastal law, Fiji, Vanuatu, Samoa, Kiribati and forestry law and compliance with Tonga, as well as South East Asia. environmental assessments In addition to continuing requests for • The establishment of a buddy legal advice, partner organisations are system between lawyers at

Community Programs increasingly seeking assistance with the EDO and lawyers at the policy and scientifi c matters. Climate Centre for Environmental change continues to be the main Law and Community Rights area in which partner organisations (CELCOR) in PNG and are seeking advice, ranging from • Presenting to a delegation of the developing law on avoided Thai Judges on the work of the deforestation (REDD) to coastal law EDO and the development and adaptation to sea level rise. and operation of public interest Highlights of the EDO’s capacity- environmental law in Australia. building work in 2009-2010 include: • Hosting 18 lawyers from Volunteer Placements across the Pacifi c for a week The EDO is an Australian Partner of training in Sydney in May Organisation for the AYAD, VIDA 2010, helping to foster the and LBB programs. These schemes development of networks enable the EDO to create AusAID between Pacifi c countries funded placements for Australians • Bringing lawyers from PNG and with organisations in the Pacifi c and the Solomon Islands to attend Asia. EDO engagement with these training, watch EDO matters programs has expanded signifi cantly before the Land & Environment in the past two years, enabling the Court and meet with judges, placement of record numbers of barristers, scientists and others volunteers to provide much needed practising law in NSW in support to partner organisations. October and December 2009 The EDO facilitated the creation of 14 • Presenting seminars and training new volunteer assignments in 2009- on environmental law in PNG, 2010. The assignments were in the

22 areas of climate change law and policy, protocol on access and benefi t sharing environmental impact assessment, of genetic resources scheduled for legal advice and landowner advocacy. adoption at the 10th Conference Host countries included the Solomon of Parties in Nagoya, Japan. Islands, Vanuatu, Vietnam, Fiji, Tonga, Bangladesh and Kiribati. International Networks The EDO also continued to The EDO continued to participate support AYAD placements with actively in a range of networks the Centre for Human Rights in 2009-2010, particularly the and Development in Mongolia. Environmental Law Alliance Worldwide (E-Law), an international International Policy network of public interest Engagement environmental lawyers and scientists, and the International Union for In 2009-2010, the EDO’s international the Conservation of Nature policy work focused on climate

(IUCN), an international network Community Programs change and biodiversity. of over 1,000 governments and The EDO attended the 16th NGOs and over 11,000 scientists, Conference of the Parties of the UN legal and other experts. Framework Convention on Climate Change (UNFCCC) in Copenhagen, International Advisory Denmark in December 2009. The Committee EDO was admitted as an observer and provided legal advice and Strategic guidance for the support to Australian NGOs and EDO’s engagement with Pacifi c to delegates from the Pacifi c during communities is provided by the the negotiations. EDO also attended International Advisory Committee meetings of UNFCCC bodies in whose members are: Bonn, Germany, in May-June 2010 1. Emeritus Professor Ben Boer, as legal adviser to the Republic of University of Sydney Nauru. The EDO also undertook considerable work on international 2. Ms Effrey Dademo, Act climate change policy during the Now! Papua New Guinea year, in particular on avoided 3. Mr Taholo Kami, IUCN deforestation (REDD) in the Pacifi c. Regional Offi ce for Oceania On biodiversity, the EDO’s 4. Mr Kosimili Latu, Secretariat Aboriginal Solicitor participated in for the Pacifi c Regional international negotiations concerning Environment Programme the Convention on Biological Diversity 5. Ms Sarah Tsiamalili, European (CBD) through the International Union Papua New Guinea Indigenous Forum on Biodiversity. This included face to face and text- based negotiations for the emerging

EDO ANNUAL REPORT 2009-2010 23 3. INDIGENOUS has worked collaboratively with the ENGAGEMENT NSW Aboriginal Land Council and PROGRAM Native Title Services to present submissions to the NSW Government A key element of the EDO’s concerning Aboriginal cultural heritage indigenous engagement program is protection and legislative reform. the employment of an Aboriginal Solicitor working on litigation, The Aboriginal Solicitor has legal advices, policy, international participated in international advocacy and community education. negotiations concerning the Convention on Biological Diversity As with the previous period, as detailed above. The international the EDO has continued to build focus has also included providing relationships with existing clients capacity building training for as well as developing relationships Aboriginal delegates attending the with new clients, with increasing 9th Permanent Forum on Indigenous requests for legal and policy advices. Issues in New York and the 15th Community Programs The legal advices specifi c to Aboriginal Conference of Parties in Copenhagen interests have included negotiating through the UNSW Diplomacy a draft community engagement Training Programme and the protocol, assisting with a cultural Australian Human Rights Commission. fi shing licence application, as well as Further work of the Aboriginal Aboriginal cultural heritage protection Solicitor included: under the (NSW) National Parks and Wildlife Act 1974. Litigation • participation in meetings of has focussed on an ongoing case the Australian Law Reform in Moree concerning crown land Commission as a member of the and Aboriginal cultural heritage. Aboriginal Advisory Committee The EDO convened a second • participation as a Board Aboriginal Cultural Heritage member of the Forest Roundtable in May 2010. The aim was Stewardship Council (FSC) to facilitate a discussion focussed on • attending quarterly meetings Aboriginal cultural heritage law and of the Indigenous Peoples policy reform in NSW in the context Organisations network of proposed amendments to the hosted by the Australian (NSW) National Parks and Wildlife Human Rights Commission Act 1974 and Regulations that have The Aboriginal Advisory Committee since been gazetted. The Roundtable has continued to provide invaluable brought together Aboriginal clients, input into the work of EDO on an members of the Aboriginal Advisory ad hoc basis, in particular providing Committee, Traditional Owners, guidance on the second Aboriginal representatives of the NSW Cultural Heritage Roundtable. In Aboriginal Land Council and Native Title Services. In addition, the EDO

24 2009-2010, the members of the 4. ACCESSIBILITY Aboriginal Advisory Committee were: PROGRAM 1. Tony McAvoy, Barrister, The EDO’s Community Programs Frederick Jordan Chambers. are complemented by an Accessibility 2. Gerry Moore, Zone Program which aims to extend the Manager, Aboriginal Legal reach of the EDO and broaden Service (NSW/ACT) Ltd. the Offi ce’s constituency. 3. Anthony Seiver, Senior Policy The EDO’s services are available Offi cer, NSW Department to the entire NSW community. of Aboriginal Affairs. The Accessibility Program seeks to encourage certain underrepresented 4. Clare McHugh, Director groups to access our services so as Policy Unit, NSW to achieve an equitable distribution Aboriginal Land Council. of our resources. The Accessibility 5. Natalie Rotumah, Executive Program originally targeted people

Services Offi cer, NSW in rural and regional NSW and Community Programs Native Title Services. Aboriginal communities. The EDO 6. Gavin Andrews, Aboriginal has implemented specifi c programs Liaison Offi cer, NSW targeting these groups. For example, Department of Environment, the publication The Rural Landholder’s Climate Change and Water. Guide to Environmental Law is designed to assist people from rural areas 7. Brad Moggeridge, Indigenous to understand and comply with Water South East Australia laws relating to natural resource Coordinator, CSIRO. management. Similarly, Caring for 8. Megan Davis, Director, Country: A guide to environmental law Indigenous Law Centre. for Aboriginal communities seeks to 9. Tabatha Timbery-Cann, engage Aboriginal communities by Catchment Offi cer, Sydney providing them with important legal Metropolitan Catchment information about land management Management Authority. and Aboriginal cultural heritage. 10. Constance Chatfi eld, Projects targeting these groups have Aboriginal Liaison Offi cer, been integrated into the core work Local Government and of the Offi ce for some time. In recent Shires Association. years, the Accessibility Program has been broadened to encompass The EDO wishes to thank all the two additional groups, people from members of the Aboriginal Advisory culturally and linguistically diverse Committee for their input to the backgrounds, and young people. work of the Offi ce over the past year. In 2009-2010, the EDO has focussed its efforts to engage these target

EDO ANNUAL REPORT 2009-2010 25 groups and make its services more to learn about and apply their skills visible and relevant to them. in environmental law. The EDO has increased its capacity to host People From Culturally student volunteers to six per day. And Linguistically Student volunteers are provided with Diverse Backgrounds training and hands on experience in providing legal advice and casework. The Offi ce seeks to make its services By providing these opportunities to known to and available to people law students, the EDO hopes to be from culturally and linguistically able to contribute to the careers diverse (CALD) backgrounds. of young people looking to enter Introductory information is available the fi eld of environmental law. As in a range of languages on the EDO one departing volunteer put it: homepage which has been expanded “It really has been awesome to include additional languages, working here, I don’t think that including Solomon Islands pidgin. there will be another working Community Programs The EDO continues to provide environment as good as this and I advice to people who need an miss it already. Thanks all of you for interpreter through the Translation being such wonderful friends and and Interpreting Service (TIS) also thanks to the vollies who’ve National. This service allows clients been fantastic workspace buddies! to call the EDO via an interpreter Over this year and a bit at the EDO and is available free of charge. I’ve fi nished uni, graduated, suffered EDO staff met with representatives of through college of law, did my PLT, Epoch Times, an independent Chinese gotten admitted and appeared in newspaper, to discuss the work of the court for the fi rst time! It probably Offi ce and how it may be relevant will be the most eventful year of to Chinese people living in Australia my life and I really appreciate all with a view to promoting the EDO’s the opportunities and experience services through that publication. that the EDO has given me.” The EDO remains committed to In addition to regular volunteers, improving the accessibility of its the EDO accepts formal student services to CALD communities and placements from most universities continues to explore opportunities in the region and volunteers to partner with other organisations completing the Practical Legal Training in the delivery of projects to component of the College of Law. people from CALD backgrounds. The EDO has once again partnered with Maddocks, inviting law students Young People to submit an article for publication in the EDO’s legal journal, Impact. The EDO engages with young The winner, in addition to being people primarily by providing published, is awarded $500. opportunities for student volunteers

26 Finally, EDO staff members have mentored young law students Media and through the University of Sydney’s Women’s Mentoring Program. Communications

The media is important to the EDO as it provides an effective means of highlighting the issues we engage with and promoting the work of the EDO. In 2009-2010, the EDO has received signifi cant media exposure through direct mentions or where the media reported on one of the Offi ce’s matters. Coverage during the year included:

Television The Court decision in the Catherine Hill Bay case received extensive television coverage, including on the Communications Media and ABC News and ABC Stateline. Similarly, the Caroona Coal case received sustained media coverage, including on television. The ongoing battle by the EDO’s farmer clients to prevent proposed coal mining beneath the Liverpool Plains was the subject of a Four Corners story The Good Earth and a story on SBS News Farmers Take on Miners. Other EDO matters that received television coverage include a Four Corners special on the health impacts of coal mining in the Hunter Valley, a Lateline story covering the Bayswater case and the action by No Ship Action Group to prevent the scuttling of the HMAS Adelaide off Avoca Beach.

EDO ANNUAL REPORT 2009-2010 27 Radio • The Land: Powerline Plan Shocks North (7 August 2009) The EDO Northern Rivers utilised local radio to canvass local • Newcastle Herald: $1m tag environmental issues. Staff from that for study of health in Upper offi ce were interviewed on ABC Hunter (12 August 2009) North Coast radio in relation to • Sydney Morning Herald: Too a proposed bill to expand hunting Many Holes in New Indigenous into national parks and also to Heritage Laws (13 August 2009) discuss the provisions in the draft Tweed local environmental plan • The Australian: Mining win for biodiversity protection. for farmers in Caroona (1 September 2009) In other parts of the state, ABC New England Radio reported on a forum to • Illawarra Mercury: Backlash probe coal mine health risks and ABC hits Berkeley Park Proposal South East Radio covered the review (9 September 2009) of Snowy River Water Licences • Sydney Morning Herald: Campers aim to stop coal mine Newspapers expansion (9 October 2009) • Tenterfi eld Star: Transgrid Battle in Articles Media and Communications Media and the Far North (14 October 2009) In 2009-2010 over 100 articles • Northern Rivers Echo: Quarrel referred to either the EDO directly continues over Champions or a matter the EDO was involved Quarry (15 October 2009) in. Local newspapers regularly report on the work of Northern • The Herald: Government falls on Rivers offi ce. Some articles covering its sword: consent for Huntlee EDO work during the year were: is void (19 October 2009) • ABC Online: ‘Productive’ talks over • Sydney Morning Herald: Farmers Snowy fl ows (23 July 2009) take on BHP (27 October 2009) • Namoi Valley Independent: • Moree Champion: Big W debacle Council Forced to Defer on continues (29 October 2009) Airstrip (27 July 2009) • Sydney Morning Herald: Victory • The Illawarra Mercury: Killalea for residents as range approval – How can you sell what you “unlawful” (25 November 2009) don’t have? (27 July 2009) • The Newcastle Herald: Emission • Sydney Morning Herald: Power on trial in Hunter Valley power Firm Sued Over Carbon station case (3 December 2009) Emissions (28 July 2009) • ABC News: Powerline plan • Sydney Morning Herald: World could endanger wildlife Rally Leg Threatens NSW (5 December 2009) Species (6 August 2009)

28 • Sydney Morning Herald: Forests • The Independent: Anger at NSW accused of breaching licence plans for shop on Aboriginal 50 times (12 January 2010) burial site (7 June 2010) • Sydney Morning Herald: Environment Columns jobs vital for Aborigines, says UN study (15 January 2010) Through the Northern Rivers Offi ce, the EDO has written regular columns • Sydney Morning Herald: Standoff in the Northern Rivers Echo and the over the Snowy (30 January 2010) Rural Weekly (Farmers Bulletin). • Solomon Star: Legal Training here Columns have been written on next week (6 February 2010) renewable energy, land clearing, sea level rise, local planning, native • Sydney Morning Herald: Another vegetation, climate change, shark blow to credibility of Tillegra conservation and the burning of cane. Dam project (5 February 2010) • Tweed Shire Echo: Draft Online LEP: a backward step for EDO created a Twitter account and biodiversity? (18 March 2010) now tweets updates on EDO cases • The Daily Telegraph: Protesters and events. To follow us on Twitter want scuttling of HMAS go to http://twitter.com/edonsw

scuttled (19 March 2010) Communications Media and • The Macleay Argus: Minister chose money not Koala (30 March 2010) • The Singleton Argus: Bid to save Common Trust Land at Camberwell (20 April 2010) • Sydney Morning Herald: Plant still polluting river beyond guidelines (20 April 2010) • The Northern Star: Concerns over impact of LEP (27 April 2010) • Sydney Morning Herald: Aboriginal site spared from loggers (29 April 2010) • Sydney Morning Herald: Councils join forces for legal tilt at Barangaroo project (7 May 2010) • Ulladulla Times: NPA to fi ght Narrawallee subdivision (19 May 2010)

EDO ANNUAL REPORT 2009-2010 29 PART B: PRIORITY AREAS

(NSW) Protection of the Environment Climate Change Operations Act 1997. Mr Gray and Ms Hodgson also seek an injunction and Energy requiring Macquarie Generation to immediately cease disposing of waste through the emission of carbon dioxide into the atmosphere. Casework Macquarie Generation responded with a motion to have the matter Seeking to limit greenhouse dismissed which was heard in the gas emissions Land and Environment Court by Pete Gray and Naomi Hodgson Justice Pain. Justice Pain found that the v Macquarie Generation Applicants’ argument that Macquarie Generation is not authorised to emit The EDO commenced Class 4 any carbon dioxide at all is unlikely civil proceedings in the Land and to succeed and dismissed that part Environment Court on behalf of of their case. Her Honour did not Peter Gray and Naomi Hodgson dismiss the Applicants’ secondary against Macquarie Generation. In argument. This was that even if carrying out its electricity generation Macquarie Generation has an implied activities, Macquarie Generation has Climate Change and Energy Change and Climate authority to emit some amount been issued with an environment of carbon dioxide in generating protection licence which licences the electricity, that authority is limited company to emit certain waste, but to an amount which has reasonable not carbon dioxide. The proceedings regard and care for people and seek a declaration that the state- the environment. Therefore, the owned company has been wilfully Applicants’ case as to whether or negligently disposing of waste Macquarie Generation is authorised at their Bayswater Power Station to emit unlimited levels of carbon by emitting carbon dioxide into dioxide can now proceed to trial. the atmosphere in a manner that has harmed or is likely to harm the environment in contravention of the

30 Challenging New Coal-Fired Power variety of different laws. In 2009- Stations 2010, the EDO assisted members of the public in a range of matters Ned Haughton v Minister relating directly or indirectly to for Planning & Ors climate change. Examples include: The EDO is acting for Ned Haughton • Advising a client on in challenging the Minister for superannuation and Planning’s approvals of concept plans climate risk issues for the Bayswater B Power Station and the Mount Piper Power Station • Advising a client on a proposed extension. The proponents of the contract with Greenfl eet for the new power stations are Macquarie use of land for carbon credits Generation (Bayswater B) and Delta • Advising a client on Electricity (Mount Piper) - both of Australian Coal Association which are state-owned corporations. advertising of coal Both proposals are classifi ed as critical • Sending a dispute notice to the infrastructure. The concept plans for Australian Energy Regulator the two new power stations were regarding the Transgrid approved by the Minister for Planning proposal for the Dumaresq to under the (NSW) Environmental Lismore transmission line Planning and Assessment Act 1979. Energy Change and Climate • Providing scientifi c advice on The proceedings were commenced greenhouse gas issues associated in the Land and Environment Court. with the Timor limestone mine Mr Haughton seeks a declaration and seeking the assistance that the concept plan approvals of experts to prepare an are invalid and of no effect; an expert report for the case order quashing the concept plan • Reviewing assessment documents approvals; and, an injunction and calculating the greenhouse restraining each of the proponents gas emissions associated with the from taking any action in reliance Repco Rally at Kyogle to assist the on the concept plan approvals. client to prepare submissions. If these new power stations are powered by coal, they are likely to Policy and Law Reform increase NSW’s carbon dioxide emissions by over 15% and will The EDO policy team undertook make NSW’s greenhouse targets a range of law reform activities on almost impossible to meet. climate change in the past year at a state, national and international level. Legal and Technical Advice These ranged from submissions on Government proposals and advice Climate change encompasses a to environment groups on proposed wide range of issues so advising legislation, to attending international clients requires expertise in a climate change negotiations.

EDO ANNUAL REPORT 2009-2010 31 State Level electricity into the grid against a Most of the impetus for reform, guaranteed payment. On 1 January at least originally, came at the 2010 a new gross feed-in tariff called Federal level. However, the EDO the Solar Bonus Scheme commenced also prepared a submission to the in NSW, providing payment to Department of Planning on the those who produce renewable draft coastal planning guideline – energy through eligible roof-top adapting to sea level rise. The EDO’s solar photovoltaic systems and wind submission called for all further turbines connected to the grid. development to be prohibited by National Level legislation for areas identifi ed as being seaward of an immediate hazard line, EDO’s work at a national level that is, areas at imminent risk from sea straddled the three main areas of the level rise. Moreover, the EDO called emissions trading scheme, renewable for the introduction of specifi c coastal energy and energy effi ciency. This protection zones in the Standard work was done on behalf of ANEDO. LEP to recognise the unique qualities The EDO provided detailed advices of coastal areas and the specifi c to a number of major environment pressures faced in coastal areas. The groups on amendments to improve NSW Government released the fi nal the Carbon Pollution Reduction Climate Change and Energy Change and Climate coastal planning guideline in August Scheme Bill 2009 (CPRS Bill) prior 2010 with no signifi cant amendments. to its deferral. We also provided The EDO made a submission to the specifi c legislative drafting advice NSW Offi ce of Fair Trading which to Humane Society International recommended improving residential regarding the appropriate use and leases in terms of sustainability regulation of forest offsets and initiatives and reducing carbon carbon credits (such as REDD) footprints by increasing energy for inclusion in the CPRS Bill. effi ciency, by amending the Draft The EDO prepared two submissions Residential Tenancies Bill 2010. The to the Federal Government relating Bill passed through NSW Parliament to the updated renewable energy and was assented to on 17 July 2010. legislation. This was a continuation of No amendment was made to the bill the previous years’ work relating to in light of EDO recommendations. former versions of the bill. The EDO In April 2008, the EDO released strongly supported the increase of a Model Climate Law Project the renewable energy target to 20% Discussion Paper. One of the by 2020. The 2009-2010 submissions EDO’s recommendations was that related to the proposed splitting of the government should introduce the scheme into small-scale and large- legislation to implement ‘feed-in’ scale targets, which we supported, laws to allow independent producers and the treatment of new coal gas of renewable power to feed their waste project credits. The legislation passed through Commonwealth

32 Parliament in early 2010. Together The EDO also attended Powershift, with other EDO offi ces, we have a youth climate conference and the been advocating for an increase North Coast Energy Forum to raise to the target for many years. awareness of the EDO’s services Furthermore, the EDO made a amongst people working in or submission to the Prime Minister’s interested in climate-related fi elds. Task Group on Energy Effi ciency calling for an audit of laws creating Case Study: Climate Camp barriers to energy effi ciency. The Several EDO staff members attended Task Group has yet to report the second Climate Camp, this time on the consultation process. in Helensburgh, to provide support International Level to those seeking action on climate change. The EDO fulfi lled many The EDO attended the United roles at Climate Camp. We assisted Nations Framework Convention on with the delivery of workshops by Climate Change Conference of the clarifying the law and the possible Parties in Copenhagen in December ramifi cations of particular actions; we 2009 and the United Nations attended meetings with high ranking Framework Convention on Climate police offi cers to discuss strategy, Change (UNFCCC) inter-sessional process and arrests; we attended meeting in Bonn, Germany from 31 the protest and provided on the Energy Change and Climate May - 11 June 2010. We also attended spot legal advice to participants and the Transparency International we attended Wollongong police Workshop on Corruption in Climate station to assist arrestees and obtain Change Governance in Berlin, and return detained property. Germany, between 12 -14 June 2010. EDO staff members have also The EDO attended the Copenhagen delivered 15 papers and presentations conference to monitor the progress on issues relating to climate change of the UNFCCC for the purpose of such as the renewable energy target; advising Australian NGOs on legal coastal planning and planned retreat; issues and to assess implications of human rights and climate change; the summit for the development climate litigation; and community- of climate law in Australia. based monitoring and REDD.

Education The EDO has been active in delivering a number of workshops, seminars, presentations and papers on climate change related issues. A series of four seminars entitled ‘Climate Law after Copenhagen’ were held in the Northern Rivers region.

EDO ANNUAL REPORT 2009-2010 33 In addition, the Court accepted Environmental the Group’s submission that the Independent Hearing and Assessment Planning and Panel was not properly constituted on the basis that former politician, Development Ian Armstrong, was not an ‘expert’. However, Justice Biscoe found that this did not lead to invalidity because consideration of the expert Casework report was not mandatory. Challenging Inappropriate Hastings Point Progress Association Developments v Tweed Shire Council & Aeklig P/L [2009] NSWCA 285 Hill Top Residents Action Group v Minister for Planning and NSW Sport This matter was part reported in the and Recreation [2009] NSWLEC 185 last annual report. Last year, Hastings Point Progress Association Inc (the In this successful case, the Hill Top Association) appealed to the NSW Residents Action Group Inc (the Court of Appeal a decision of the Group) appealed against the approval Land and Environment Court that by the Minister for Planning of a held that certain provisions of the Regional Shooting Complex at Hill Tweed Local Environmental Plan Top, in the Southern Highlands. (LEP) were inconsistent with the The Group successfully challenged Seniors Living SEPP (as it was then the approval on the basis that the called) and therefore did not need shooting range was prohibited under to be considered by Tweed Shire Part 3A of the Environmental Planning Council when it granted consent and Assessment Act 1979 and the State to a seniors living development. Environmental Planning Policy (Major In a split decision, the appeal was Projects) 2005 (the SEPP). The Court lost in the Court of Appeal.

Environmental Planning and Development and Planning Environmental found that, under the SEPP, the ‘range danger area’, essentially a designated buffer zone to capture stray bullets, Legal and Technical Advice was not permissible in the part of Requests for advice on planning the site zoned as an environmental matters continued to account for conservation area. The Court further a large proportion of the calls to found that the range danger area was the EDO throughout 2009-2010. an essential part of the project, and As this report shows, the range of as a result found the entire approval issues dealt with by EDO in this time void, and made an order restraining was considerable. Some of the 35 the Department of Sport from detailed written scientifi c and legal doing anything further on the site advices provided to the community pursuant to the project approval. in the reporting period include:

34 • Writing a letter to Taree Council • Advising an alliance of local groups indicating their failure to properly over some years resulting in the notify a modifi cation application. shelving of a proposed development Council subsequently required re- at Killalea State Park this year submission of the application and • Advising a local group at Lake provided residents with a proper Wollumboola last year on a period to make submissions development at Culburra beach in • Advising a client about potential the Shoalhaven area. We gave the grounds to challenge a development client a detailed advice on coastal approval at Sandon Point, including issues and the development has conducting a preliminary review now been refused by the Council on of the hydrological component of the basis of insuffi cient information the Environmental Assessment and on impacts on coast, threatened engaging an expert on this issue species and other matters. • Advising clients in Springwood regarding procedural errors Policy and Law Reform in exhibiting a draft Plan of Planning in NSW has been subject Management to develop community to almost continual change over the land as netball courts. As a result, past few years. The EDO has been the Council re-exhibited the actively engaged in these processes. draft Plan of Management for the This includes involvement in various required period and provided forums for the discussion of planning more time for public submissions reforms, including regular meetings • Advising clients on the Concept with the Minister for Planning and Plan approval and project approvals key stakeholders (on proposed for the Barangaroo development changes to Part 3 of the EP&A Act 1979 and the implementation of • Writing to Council about the Joint Regional Planning Panels) and assessment of a development the Director-General of Planning proposed for a fl oodplain on the and Senior Offi cers to discuss south coast which, if approved, Development and Planning Environmental topical developments in planning. would have resulted in a breach of Council’s development control A number of submissions on plan. As a result, Council further planning reform proposals put considered the fl ood issues forward by the Department of associated with the proposal Planning have also been made. For example, we made submissions on: • Reviewing environmental assessment documents and providing comment • the proposed Sydney Growth on issues associated with the Centres Strategic Assessment impact on apiaries of the latest Hub • corruption risks and the regulation waste facility proposal at Orange of lobbying in NSW (ICAC)

EDO ANNUAL REPORT 2009-2010 35 • the review of the National Education Building and Jobs Plan (State The (NSW) Environmental Planning Infrastructure Delivery) Act 2009 and Assessment Act 1979 was • the Discussion Paper for the signifi cantly amended in the reporting Metropolitan Strategy Review period so there was considerable - Sydney Towards 2036 scope for community education on • the review of the State Environmental planning matters. The amendments Planning Policy (Infrastructure) 2007. dealt with both the content of and the process for making local The EDO also made a submission environmental plans (LEPs). Two new on the Productivity Commission online fact sheets were developed Issues Paper - Performance to inform the community about Benchmarking of Australian Business the new process for making LEPs Regulation: Planning, Zoning and and to highlight some key features Development Assessments. of the new Standard Instrument. There has been no government Workshops on the Standard response to any of these submission Instrument and the new process were processes at this point. held in Newcastle, and for the NSW In 2008-09, the EDO prepared a Aboriginal Land Council in Sydney. submission and appeared before the The Northern Rivers Offi ce held House of Representatives Inquiry into a series of workshops on LEPs to Climate Change and Environmental coincide with the updating of local Impacts on Coastal Communities. environmental plans for the Tweed, The Report on the Inquiry was Port Macquarie, Ballina and Lismore released in October 2009. The EDO local government areas. These submission and evidence was referred workshops were designed to help to 13 times, with our summary of the community to respond effectively coastal governance arrangements to the draft plans. The offi ce also across Australia forming part of the prepared a checklist for communities Report. The Report noted EDO’s to use when reviewing their LEPs. Environmental Planning and Development and Planning Environmental overarching recommendation The City of Sydney funded the that a federal coastal framework EDO to present a series of seminars should be established by a COAG exploring the sustainability of Sydney. agreement. One of the Committee’s Each seminar focused on a different key recommendations was that measure of sustainability and relevant the Australian Government experts were invited to discuss develop an Intergovernmental the progress that Sydney is making Agreement on the Coastal Zone towards achieving sustainability in to be endorsed by COAG. that area. In the reporting period, seminars were held dealing with homes, food and transport. More are planned for the second half of 2010.

36 EDO staff did two papers/ presentations on the assessment process in NSW – one for the Nambucca Local Aboriginal Land Council and the other for the book Mills, Mines and Other Controversies published by Federation Press.

Case Study: Reconnecting the Community with the Planning System A major consultancy project for the Total Environment Centre was undertaken jointly by the EDO policy and education teams. This involved drafting a discussion paper on public participation and then conducting a series of workshops to inform the community about recent changes to the planning system and seeking community feedback on the state of planning in NSW. The discussion paper was available on the EDO website. This was downloaded over 400 times and 36 online surveys completed in the reporting period. Workshops were held in Wollongong, Newcastle, Sydney, Moruya, Ballina, and Coffs Harbour. Feedback from the community on the workshops Development and Planning Environmental was very positive, with one participant commenting “I enjoyed my experience at the workshop, which was both informative and well run”. The information obtained was then collated into a report prepared by the policy team for the Department of Planning with recommendations on how to reconnect the community with the planning system in NSW. The Department is currently considering the report.

EDO ANNUAL REPORT 2009-2010 37 commercial purposes. In exchange, Biodiversity Hardie Holdings Pty Ltd was to dedicate over 800 hectares of land for Conservation a conservation reserve. The signing of the documents raised issues about apprehended bias in the decision making process and the consideration Casework of irrelevant matters by the Minister. Promoting Ecologically Further grounds were that North Sustainable Development Rothbury is the only place where the critically endangered plant, Sweetwater Action Group v Persoonia paucifl ora, is found and Minister for Planning & Ors that the Minister had not considered This is the second in a series of the precautionary principle and successful challenges to land swaps biodiversity principle in assessing negotiated by the NSW Government, the development. There were also the fi rst being Catherine Hill concerns about the appropriateness Bay (reported on last year). of locating a large new population in an area that is not well serviced by Biodiversity Conservation In February 2009, the Minister for public transport or other facilities. Planning approved a Concept Plan for the new Huntlee Town Centre The Land and Environment Court in the Lower Hunter. The Concept approved consent orders declaring Plan approval was to facilitate an the Concept Plan approval and area to house over 20,000 people related rezoning of the site to be at North Rothbury, despite the invalid and of no effect, and ordering site being ranked last under the that these decisions be quashed. Department of Planning’s assessment of 91 possible development sites Protecting Koalas in the Lower Hunter Valley. Nambucca Valley Conservation The EDO acted for the Sweetwater Association Inc v Nambucca Shire Action Group Inc (the Group), a Council & Anor [2010] NSWLEC 38 group of concerned residents who The EDO acted for the Nambucca challenged the Concept Plan approval Valley Conservation Association Inc and related rezoning of the site. (the Association) in proceedings A key aspect of the challenge was in the Land and Environment a Memorandum of Understanding Court challenging the decision of and a Deed of Agreement signed Nambucca Shire Council to allow in 2006 by Hardie Holdings Pty a rural residential development to Ltd and the Minister for Planning in proceed in core koala habitat. relation to the Huntlee site, under The Association challenged the which the Minister agreed to facilitate decision on a number of grounds, development for residential and including the signifi cant impact

38 on threatened species (including Society Inc (the Society) in a the koala) and an endangered merits appeal against the Upper ecological community; failure Hunter Shire Council’s approval to consider provisions of the of a limestone quarry near Scone Nambucca Local Environmental in the Hunter Valley. The Society Plan; failure to properly exhibit the was concerned about the impacts proposal after it was amended; and of the quarry on the White Box improper deferral of environmental Yellow Box Blakely’s Red Gum considerations by the Council. Woodland endangered ecological Justice Biscoe upheld the Association’s community (the EEC), impacts challenge and the development on caves and cave dwelling fauna, consent was declared invalid. The and other broader issues including Court held that the Council had road, dust and traffi c impacts. failed to take into account public In the fi rst judgment, Justice submissions made in relation to an Preston, Chief Judge of the Land and earlier version of the development. Environment Court held that there In addition, the Council failed to was not likely to be a signifi cant advertise the fi nal version of the impact on the EEC or vulnerable development, which had changed species and, therefore, no Species signifi cantly from the fi rst application Impact Statement was required. Biodiversity Conservation in 2003 to the fi nal version in 2008. However, His Honour accepted The Court also found that, in the Society’s argument that lack determining the development of full scientifi c certainty as to the application, the Council had presence of caves, biota and a failed to consider the provisions groundwater dependent ecosystem of its own local environmental and the proposal’s impact on them plan dealing with the objectives should be addressed by applying of the relevant land use zones, the precautionary principle. Finding as well as general considerations that the threat of environmental applying to the development. damage to biota within the limestone was scientifi cally likely, the Court Obtaining Better Outcomes for considered that the appropriate Endangered Ecological Communities and proportionate response was to implement a step-wise or adaptive Newcastle & Hunter Valley Speleological management approach, and the Society Inc v Upper Hunter Shire parties were required to provide the Council and Stoneco Pty Limited [2010] Court with appropriate conditions. NSWLEC 48; Newcastle & Hunter Justice Preston also required a Valley Speleological Society Inc v Upper condition providing for a biodiversity Hunter Shire Council and Stoneco Pty offset for the loss of the EEC. Limited (No 2) [2010] NSWLEC 104 In the second judgment, Justice The EDO acted for the Newcastle Preston upheld the grant of and Hunter Valley Speleological development consent subject to

EDO ANNUAL REPORT 2009-2010 39 stringent conditions which signifi cantly NSW was logging the Riverina improved the environmental Forestry Management Area along the outcomes. These include: Murray and Murrumbidgee Rivers • pre-blasting and cave discovery without the requisite legal approval. protocols are to be adopted Most forestry operations in NSW • monitoring for caves, voids, are excluded from assessment under fi ssures and other geodiversity Part 5 of the (NSW) Environmental of signifi cance, and sampling for Planning and Assessment Act 1979 underground fauna species on (EP&A Act 1979), being subject to a and outside the site must take Regional Forestry Agreement (RFA). place for at least one year before The Riverina area was not subject the fi rst blast can go ahead to an RFA as the comprehensive assessment required under an • monitoring the development RFA had not been undertaken. over the life of the quarry by an independent panel of experts In 2005, the Minister ordered that Part 5 activities like those of Forests • requiring the quarry owner to NSW are projects under Part 3A conserve in the long term 60 of the EP&A Act 1979. However, hectares of land (including the Biodiversity Conservation Forests NSW did not have an EEC) as a biodiversity offset, approval under Part 3A to log in in recognition of the value of this area, making the existing logging the biodiversity on the site operations at the time unlawful. and the endangered ecological communities that will be As the matter was progressing affected by the quarrying towards a hearing the NSW Parliament introduced the National • requiring the quarry owner to Park Estate (River Red Gum remediate and conserve the Reservations) Act 2010. The Act six hectares of land that will be places much of the River Red Gum damaged by the quarrying activities. Forests into State Reserves and the logging that continues outside Protecting Endangered of those reserves is now subject to River Red Gums an approval under the Forestry and Red Gum Forest Action National Parks Estate Act 1998. On Inc v Forests NSW this basis, the Group discontinued its case in the Land and Environment The EDO commenced proceedings Court against Forests NSW. in the Land and Environment Court on behalf of Red Gum Forest Action Inc (the Group) against Forests NSW. The Group was concerned about the impact of the logging operations on the endangered River Red Gum, contending that Forests

40 Legal and Technical Advice demolish a shed in the Kwiambal National Park that is a maternity The EDO has a key role to play roost for the vulnerable eastern in helping the community to take cave bat. The Department of action to prevent and minimise Environment, Climate Change adverse impacts on biodiversity, and Water responded by agreeing which is under signifi cant threat not to demolish the shed. in NSW and Australia. In 2009- 2010, the EDO prepared over • Writing to Port Macquarie forty detailed written advices for Hastings Council indicating that or on behalf of clients dealing with a development approval for a threatened species, compliance, rugby club which involved the enforcement and implementation. removal of koala habitat trees had not considered the provisions of State Level State Environmental Planning Policy In 2009-2010, the EDO assisted 44 – Koala Habitat Protection. clients to use various laws in NSW Council subsequently withdrew to help ensure the protection the development application and of threatened species. Some advised it will be resubmitted with a of the assistance provided design that considers koala impacts. Biodiversity Conservation by the EDO included: • Advising a client on a new police • Writing to Shoalhaven Council college at North Head and potential about the need for a species impacts on the Little Penguin and impact statement to be prepared Long-nosed Bandicoot populations. for a development application for As a result of EDO involvement, the expansion of a golf course the client was provided with an requiring the clearing of part opportunity to comment on the of an endangered ecological Fauna Management Plan for the community. As a result, the golf site, with these comments being course was required to prepare incorporated into the plan. The a species impact statement. EDO has remained involved throughout the construction • Advising clients on private process by representing the conservation, including a proposed client at bi-monthly community- trust agreement with the Nature engagement forums. This has Conservation Trust and the impacts been a very positive, open and of exploration activities on a wildlife transparent process whereby the refuge. The trust agreement was community has received updates subsequently signed by the clients, and photographs of the process providing for the ongoing protection and compliance with conditions, of the biodiversity on their land. and can ask questions about how • Writing to the Environment the police are protecting habitat Minister about the National Parks and ameliorating impacts. and Wildlife Service’s plans to

EDO ANNUAL REPORT 2009-2010 41 • Writing to Gunnedah Council of the EPBC Act 1999 to help protect outlining defi ciencies with the biodiversity in Australia. In 2009-2010, environmental assessment EDO solicitors and scientists assisted documents associated with a the community in its endeavours by: development application for an • Writing to the Federal Minister airstrip, leading to consideration for the Environment regarding of the development application non-action by the Department being deferred by Council pending of Primary Industries (NSW) further investigation of the contrary to recommendations in impacts of aerial spraying on the the Administrative Appeals Tribunal environment and a koala population. proceedings NCC v Minister for • Writing to Railcorp about illegal Environment and Water Resources & clearing and impacts on threatened Ors [2007] to implement conditions species at Duck River near for the Ocean Trap and Line Granville. In response, Railcorp Fishery relating to fi shing closures. has undertaken to restore the site • Advising a client on the through a plan of management. development of new Wildlife Last year we reported on the Trade Operations for the South

Biodiversity Conservation successful case of Conservation of Eastern Scalefi sh and Shark Fishery, North Ocean Shores Inc v Byron Shire particularly changes to conditions Council & Ors which involved a affecting Australian sea lions. challenge to Byron Shire Council’s • Writing to Repco Rally Australia approval of the Splendour in the and the Federal Minister for the Grass festival on land containing Environment requesting that a regionally signifi cant wildlife a proposed rally be referred corridor. This year, the importance to the Minister for assessment of the corridor was subsequently as a controlled action under refl ected in the Draft Far North the EPBC Act 1999. Coast Regional Conservation Plan, an important planning document • Writing to the Federal Environment that supports the Regional Strategy. Minister to refer proposed seabed dredging works adjacent National Level to Kingston Pier at Norfolk Island The (CTH) Environment Protection for approval under the EPBC and Biodiversity Conservation Act Act 1999, based on comments 1999 (the EPBC Act 1999) is the provided by marine scientists principal piece of federal legislation and coastal engineers on the for the protection of biodiversity. environmental impact statement. The Federal Environment Minister has the power to assess and approve activities to which the Act applies. There are several ways in which the community can utilise the provisions

42 Policy and Law Reform National Level State Level The EDO, through its policy, science and litigation teams, continued to In NSW, the law reform focus engage actively at a federal level, has been predominantly on the primarily through the wide-ranging biobanking and biocertifi cation Hawke Review of the EPBC Act 1999 schemes that have been developed commenced in late 2008. A number under the (NSW) Threatened Species of detailed advices and submissions Conservation Act 1995. In relation to were provided to the independent biobanking, the EDO has continued review committee, the Environment as a member of the Ministerial Minister and national environment Reference Group and provided the groups - for example, on the issue Department with legal and technical of merits appeals, standing and feedback on the development and review rights, prioritisation, listing fi rst phase of implementation of the processes, the role of strategic scheme. Similarly, for biocertifi cation, assessments, the objects of the Act, the EDO made fi eld trips, engaged the “maintain and improve” test ecologists and undertook extensive and bilateral assessments. This work research to provide the Department was done on behalf of ANEDO. with detailed feedback on legislative Biodiversity Conservation amendments and the development The Final Report of the Hawke of an environmental assessment Review of the EPBC Act 1999 was methodology for biocertifi cation. released in October 2009 and A detailed submission on the contained over 70 recommendations. proposed Commonwealth strategic The various EDO submissions assessment of NSW Biocertifi cation were referenced on 45 occasions regarding the Sydney Growth in the Final Report and several key Centres was also undertaken. recommendations were adopted. No response from the NSW For example, the Report affi rmed Government has yet been given. the primacy of the principles of ecologically sustainable development, Also at a state level, the policy and recommended a tightening of the science teams provided advice to the objects and a focus on strategic North Coast Environment Council approaches, supports a “maintain on how the (NSW) Threatened and improve” test, seeks to improve Species Conservation Act 1995 might public participation and transparency, be amended to insert requirements and makes a raft of positive for the accreditation of consultants recommendations on access to justice. undertaking threatened species assessments, as well as providing Also at the federal level, the EDO has legal advice to environment groups engaged on the issue of biosecurity, on safeguards to enhance the providing advice to the Invasive (NSW) National Parks & Wildlife Species Council on whether there (Visitors & Tourists) Bill 2010. are any impediments in international

EDO ANNUAL REPORT 2009-2010 43 law preventing Australia from private conservation were held in prohibiting the import of genetic Gloucester and Bulahdelah. A briefi ng variants of weeds; and meeting with session on private conservation Department of Agriculture, Forestry mechanisms was held in Sydney and Fisheries and other stakeholders for law fi rms who have agreed to regarding the Beale Review process provide pro bono assistance to the which relates to reforms to Australia’s community as part of the Private biosecurity and weeds legislation. Conservation Project. This element of the Project is being undertaken International Level in partnership with the Public At the international level, EDO Interest Law Clearing House. A participated in a week long workshop number of referrals have already with scientists and lawyers from been made under this arrangement Australia and the USA on improving and we expect to see fi nalised decision-making for our oceans, conservation mechanisms as a result including for fi sheries and marine of the referral service by 2011. parks. Specifi cally, the workshop The EDO convened a public looked at historical baselines for meeting in Lismore to discuss the species and how this information (NSW) Game and Feral Animal Biodiversity Conservation could be used to improve decision- Control Amendment Bill 2009 which making. Funding for this work sought to allow hunting of feral was provided by, amongst others, and some native species in national the Smithsonian Institute and parks and the establishment of the International Union for the private game reserves. There was Conservation of Nature (IUCN). considerable public opposition It is intended that the work be to the bill and Parliamentary published in Science in 2010. debate has been adjourned. Education The EDO also attended a number of events throughout the year to The EDO has received funding from support community action for the NSW Environmental Trust to the protection of biodiversity undertake a Private Conservation and to promote the work of the Project. The aim of the project is Offi ce. These include the Big Scrub to promote the uptake of private Rainforest Day in Bangalow, the conservation in NSW by providing Upper Clarence River Rally in free legal advice and community Tabulam and the Great Eastern education on the various options Ranges Network Day in Mullumbimby. available. A new publication has been produced entitled A Guide to Private Conservation in NSW. The publication is to be complemented by a series of workshops throughout NSW. In the reporting period, workshops on

44 years, the maximum term for an Natural exploration licence under the Act. The Court rejected all 3 grounds. Resource The Court found that the fi rst ground was not established by Management the Applicant, fi nding that the documentary evidence did not show that the Act was not complied with Casework when the licence was renewed prior to its partial transfer to Coal Defending Prime Agricultural Land Mines Australia. In relation to the second ground, the Court found Caroona Coal Action Group v that the legislative requirements for Minister for Mineral Resources a licence transfer were met. The (No 2) [2010] NSWLEC 1 third ground, although established, The EDO took proceedings on was not signifi cant enough to render behalf of the Caroona Coal Action the grant of the licence void. Group Inc (the Group) in the Land The Group is appealing the decision. and Environment Court challenging the exploration licence and coal BHP v Department of Primary Industries authorisation granted to Coal The EDO lodged an FOI request Mines Australia Pty Ltd by the seeking access to BHP’s expression Minister for Mineral Resources. of interest for the exploration Management Natural Resource In the proceedings, the Group argued licence at Caroona. In response, that the licence was invalid on three the Department of Primary grounds. The fi rst ground was that Industries determined that some the licence, which was transferred documents should be released and from the Director-General of the others should not. BHP objected Department of Mineral Resources to the release of some of these to Coal Mines Australia Pty Ltd, was documents and appealed to the not properly renewed in the past, Administrative Decisions Tribunal. so that there was no valid licence in On behalf of the Caroona Coal place to transfer. The second ground Action Group Inc, the EDO was that the proper procedure under sought to be joined to the the (NSW) Mining Act 1992 was proceedings between BHP and not followed when the licence was the Department. BHP objected to transferred because the Minister this application but the EDO was purported to grant a new licence, ultimately successful in joining the rather than transfer an existing one. Caroona Coal Action Group. Finally, the Group argued that the Minister exceeded his power when BHP then withdrew its application to granting the licence because it was the Administrative Decisions Tribunal granted for a period exceeding 5 challenging the decision of the

EDO ANNUAL REPORT 2009-2010 45 Department to release the contested Challenging the Expansion documents. The documents of Gold Mines were subsequently released. Barrick Gold v Neville Chappie Enforcing Water Pollution Laws Williams [2009] NSWCA 275 As reported last year, the EDO Blue Mountains Conservation acted for Neville “Chappie” Society v Delta Electricity Williams in defending an appeal The EDO has commenced civil by mining company Barrick enforcement proceedings on behalf Australia Limited from judgment of Blue Mountains Conservation delivered by Justice Biscoe in the Society (the Society), in the Land Land and Environment Court. and Environment Court against The case concerned an application Delta Electricity under the (NSW) by Barrick to signifi cantly expand Protection of the Environment and intensify its mining operations Operations Act 1997, for causing water at Lake Cowal, including an increase pollution. Water quality testing results in the mine’s operational life by 11 from upstream and downstream of years. Mr Williams is a Wiradjuri a discharge point from Wallerawang Traditional Owner, custodian and Power Station, as well as from the native title claimant in respect discharge point itself, indicate that of the land and waters on which the power station is introducing the Cowal Gold Mine is located. salts and metals into a river which

Natural Resource Management Natural Resource The mine has been the subject of runs into Sydney’s drinking water intense and ongoing community supply. The enforcement authorities concern since its inception. were advised but failed to act, prompting the Society to utilise In the Land and Environment Court, the third party civil enforcement Justice Biscoe held that Barrick’s provisions under the Act. application to ‘modify’ the existing mine approval in fact proposed The EDO successfully obtained a ‘radical transformation’ of the a ‘protective costs order’ in the Cowal Gold Mine. As such, the amount of $20,000. The order Court held that the application caps the costs payable on a party/ did not constitute a modifi cation party basis in the proceedings. This request for the purposes of Part is an important access to justice 3A of the (NSW) Environmental issue as the Society could not afford Planning and Assessment Act 1979. to continue with the proceedings unless its liability was limited. Delta This matter was heard by the Court Electricity has appealed this decision of Appeal which upheld the appeal, to the Court of Appeal. Judgment overturning Justice Biscoe’s orders. has not yet been handed down.

46 Challenging Coal Mining Under fl awed, there was no obligation on the Woronora Reservoir Commission to hold a further public hearing on the revised mine plan and Rivers SOS Inc v Minister for there was no breach of natural justice. Planning & Helensburgh Coal Pty Ltd [2009] NSWLEC 213 The approval allows for an expansion of the coal mine, including extraction The EDO commenced proceedings of up to 3.2 million tonnes per in the Land and Environment Court annum of coal over 23 years using on behalf of Rivers SOS against longwall mining techniques directly the Minister for Planning and beneath the Woronora Reservoir. Helensburgh Coal Pty Limited. The appeal was against the Minister’s Protecting Marine Environments decision to approve the Metropolitan Coal Project under Part 3A of the No Ship Action Group Inc v (NSW) Environmental Planning Minister for the Environment, and Assessment Act 1979. Rivers Heritage and the Arts & Anor SOS was concerned about the The EDO is acting for the No Ship potential for mining operations to Action Group Inc (the Group) in crack or compromise the stability proceedings in the Commonwealth of the bedrock beneath Woronora Administrative Appeals Tribunal Biodiversity Conservation Reservoir and threaten the water (AAT). The Group is challenging supply of the Illawarra community. the decision of the Minister for the The Minister had directed the Environment’s delegate to grant a Planning Assessment Commission permit allowing the scuttling of the (the Commission) to consider ex-HMAS Adelaide off Avoca Beach submissions, hold a public hearing and for the purpose of an artifi cial reef. report on the potential subsidence The Group’s concerns include the impacts of the Metropolitan Coal likelihood of Polychlorinated Biphenyls Project on the environment. After the leaching into the marine environment. public hearing and submission process, The permit was granted under the the mining company submitted a (CTH) Environment Protection (Sea signifi cantly different mine plan for Dumping) Act 1981. The decision consideration. The Commission was made to grant the permit then considered and reported to on 22 March 2010. The NSW the Minister on the revised mine Department of Lands intended to plan, which was ultimately approved scuttle the ship on 27 March 2010. by the Minister without further At an urgent hearing on 24 March community or agency input. 2010, Justice Downes, President There were several grounds of appeal of the AAT, granted a stay on the in this case, with the arguments decision to scuttle the ship until centred on the Commission process. the proceedings are determined. Justice Preston upheld the approval, The proceedings will consider fi nding that the process was not whether the decision of the Minister’s

EDO ANNUAL REPORT 2009-2010 47 delegate to grant the permit is as required by the Act and failed the correct or preferable one on to exhibit any Committee reports the basis of expert evidence. Four prior to the review. If the review is experts were engaged to provide found to be invalid, the variation to expert reports, with two of them the licence may also be invalid]. appearing as expert witnesses at the hearing. This case will also look Legal and Technical Advice at the consistency of the proposed scuttling with the 1996 Protocol to This year the EDO provided 35 the Convention on the Prevention of detailed written advices to clients Marine Pollution by Dumping of Wastes relating to the management of natural and Other Matter 1972. The case is resource management. The main listed for hearing on the 5-8 July 2010. areas of concern were mining, water, native vegetation and forestry. Fighting for Better Regulation Mining of the Snowy River Mining is an ever expanding part Snowy River Alliance v of the EDO’s practice with a Minister for Water considerable number of inquiries The EDO is acting for the Snowy from the community throughout River Alliance Inc (the Alliance) the reporting period. A suite of new in their challenge to the Water mining proposals and exploration Administration Ministerial licences throughout NSW, as well as Natural Resource Management Natural Resource Corporation’s (the Corporation) the expansion of existing mines and review of the Snowy Hydro quarries – such as at North Parkes, water licence, and a subsequent Cadia, Duralie and Blakewood – were variation to the licence. the source of much of this concern. Some of the matters the EDO The (CTH) Snowy Hydro assisted the community with included: Corporatisation Act 1997 requires the Corporation to conduct a • Writing to the Minister for Planning review of the obligations under about apparent breaches of the the licence relating to the “Snowy State Environmental Planning Policy River Increased Flows” and to (Mining, Petroleum Production exhibit a copy of any state of the and Extractive Industries) 2007 in environment reports prepared by relation to proposed auger mining the Snowy Scientifi c Committee. in the Lake Macquarie area. As a result, the SEPP was changed [Postscript: On 23 July 2010, the to prevent mining in the area. EDO commenced proceedings in the Supreme Court of NSW on behalf • Advising a client on petroleum of the Alliance challenging the validity and gas exploration on of the review. The Alliance is arguing the Liverpool Plains. that the Corporation’s review failed • Assisting a client to challenge a to meet the description of “review” proposed expansion of Duralie

48 Coal Mine, including providing Tillegra Dam under Freedom of technical advice on issues relating Information laws. The information to irrigation with waste water has signifi cantly helped the client’s and facilitating expert advice in campaign efforts in relation relation to water re-use and water to the Tillegra Dam proposal. quality in Mammy Johnson’s River. The approval for the dam has • Advising a client on the legality been delayed while the Minister of proposed offsets for the considers whether independent proposed Calga sand quarry. environmental reports are necessary. • Assisting EDO WA on the In another Freedom of Information LNG gas plant proposed for matter, the EDO assisted clients to the Kimberley Coast. apply to access a report into water quality management in Sydney. • Assisting a client to refer the After initially refusing to release the Gloucester Coal project for report, the NSW Government did assessment under the EPBC so following the FOI application. Act 1999 which resulted in the Department assessing the project. Native Vegetation and Forestry Water The management of native vegetation in NSW has been the subject of a Issues relating to water quality and number of legal advices over the water management accounted for a reporting period, with inquiries about number of inquiries to the Offi ce over illegal clearing and private native Management Natural Resource the reporting period. Oftentimes, forestry being prominent, particularly these issues are related to other areas in the northern part of NSW. of natural resource management such Work in assisting the community as mining – for example, the over- on forestry issues included: extraction of groundwater by a sand quarry or the impacts on Mammy • Writing to Forests NSW requesting Johnson’s River of the expansion of that they cease logging of a listed the Duralie Coal Mine – or logging. Aboriginal Place in breach of the Other inquiries included advising (NSW) National Parks and Wildlife on bores for town water and the Act 1974. As a result, Forests impacts on water ecology and NSW stopped the logging. advising a client on alleged breaches • Writing to the Minister for of the Paroo River moratorium Environment about alleged and prospects of challenging works forestry breaches in Yabbra to capture water from the Paroo State Forest. The Department of River. The Offi ce is currently Environment, Climate Change and working on a policy submission on Water substantiated a number the Paroo River moratorium. of the allegations and issued The EDO assisted clients to obtain Forests NSW with four Penalty information on water licences and Infringement Notices in relation

EDO ANNUAL REPORT 2009-2010 49 to the identifi cation of wetlands, The EDO prepared a submission rainforest and yellow-bellied glider in partnership with its Victorian sap feed trees. The Department colleagues to the Murray Darling Basin also issued Forests NSW with a Authority on sustainable diversion formal warning letter in relation to limits focussing on environmental the selection and marking of habitat water and implementing international and recruitment trees, exclusion obligations. The policy team is boundaries and surveys for frogs. involved in ongoing liaison with EDO • Providing ongoing advice to a Victoria and conservation groups client on breaches of an Integrated working on water reforms in relation Forestry Operations Approval, to the Murray Darling Basin Plan. including the requirement to At a state level, EDO presented undertake koala surveying, by evidence to the Natural Resource logging operations near Bega. As Management (Climate Change) a result of this advice, some stop Committee - NSW Parliamentary work orders have been issued. Inquiry into sustainable water Advice provided by the EDO management based on its submission relating to forestry also included on best practice water management the interaction between native with reference to the impacts of forest policies and practices and the climate change. This evidence was mandatory renewable energy target backed up by advice provided by the legislation; the obligation of Forests EDO’s Scientifi c Advisory Service Natural Resource Management Natural Resource NSW to consult, including with the on the predicted impacts of climate Aboriginal community; the role of change on environmental fl ows nuisance under the common law; and water resource management. the powers of the Minister under The EDO also provided ongoing legal the (NSW) Forestry and National advice to the Nature Conservation Parks Estate Act 1998 to remedy Council Water Group which discusses breaches by Forests NSW of forestry water policy and legislative processes. regulations; and potential defences available to logging protestors Native Vegetation charged with various offences. The EDO has again been busy in this area with submissions on Policy and Law Reform the review of the (NSW) Native Vegetation Act 2003 recommending The EDO policy team has signifi cant changes to enforcement worked across a range of natural and proposing a new climate resource management areas. change objective as well as the Some highlights include: National Framework for Native Water Vegetation, which outlined the role of best practice native vegetation Much of the focus of water law reform legislation in underpinning the was at the federal level in 2009-2010. goals of the framework. The EDO

50 also provided advice to EDO The EDO’s participation was NT on draft legislation designed signifi cant in two respects. First, to regulate land clearing in the the EDO and the Wentworth Northern Territory to inform EDO Group of Concerned Scientists NT submissions to the Northern were the only organisations that Territory Government on the issue. participated in the Inquiry that In February 2010, the EDO also represented the interests in the prepared a submission to the Senate environment and the public interest Finance and Public Administration in protecting native vegetation. Reference Committee inquiry into Second, the fi nal recommendations native vegetation laws, greenhouse of the Committee did not include gas abatement and climate change any recommendations relating to laws. The inquiry’s terms of reference compensation for landholders. included examining the impact of Mining Australian native vegetation laws and greenhouse gas abatement The EDO made a submission to measures on landholders, including Industry and Investment NSW compensation arrangements for commenting on the proposed Mining the imposition of such laws. Regulation. The submission referred to performance record, rehabilitation The submission stressed that and environmental management compensation is only payable plans, penalty notices, continuing under the Australian Constitution offences and derelict mine sites. for acquisition, not regulation of Management Natural Resource natural resources, and therefore, no Forestry compensation should be payable to The EDO produced a consultancy landholders for the imposition of report for the Murray Lower Darling laws restricting the clearing of native Rivers Indigenous Nations outlining vegetation. Moreover, there is no legal options for the management right to compensation under state of the Werai State Forest Block constitutions. The submission also in NSW. Following this work, the emphasised that there are strong Werai Forest is to be declared policy reasons for this approach, an Indigenous Protected Area. including that the requirement to pay compensation would stifl e The EDO made a submission to the environmental protection laws. review of the NSW Regional Forest Agreements, and a submission to The EDO policy team appeared the NSW Department of Primary before the Committee via Industries with a focus on ensuring teleconference in April 2010 with the best practice standards for plantations Report of the Inquiry released later under the (NSW) Plantations that month. The submission was and Reafforestation Act 1999. referred to 13 times, including the evidence given before the Committee. We also provided Greenpeace with drafting instructions for a

EDO ANNUAL REPORT 2009-2010 51 new federal law to ban the import of illegally sourced timber.

Education The Education team undertook a range of education projects relating to natural resource management in 2009-2010. Workshops were held in Orange, Griffi th and Harden complementing the publication The Rural Landholder’s Guide to Environmental Law in NSW. Two workshops were also presented on native vegetation law – in Nambucca and Coffs Harbour. The community continued to request information on mining law and we held workshops in Gloucester and Majors Creek dealing with mining, Part 3A and advocacy. The EDO is currently working on a Coastal Law project with funding from the Commonwealth Natural Resource Management Natural Resource Government to produce a publication, Caring for the Coast: A guide to environmental law for coastal communities. A number of workshops on coastal law and climate change will be presented as part of that project. So far, we have had workshops in Nowra, The Entrance and Merimbula. Over the past year, EDO staff delivered a number of presentations on issues relating to natural resource management including using the law to protect the land; property rights and regulation; environment protection and natural resource management; and environmental assessment processes for water.

52 Related proceedings continued in Environmental the Supreme Court against the decision by the Minister for Lands Justice to revoke the dedication of Taylor Oval for public purpose recreation. The EDO sought a declaration that the decision of the Minister for Lands Casework to notify the revocation of Crown Protecting Aboriginal Reserve at Taylor Oval is void, and Cultural Heritage related injunctions. The revocation of the dedication is an important Munro and Nean v Minister for step in allowing the Department Planning and Moree Plains Shire Council of Lands to lease or otherwise The Minister for Planning approved deal with the land to enable the a rezoning application in Moree to Big W development to proceed. facilitate the building of a Big W The parties agreed to consent Justice Environmental department store on Taylor Oval. orders to restrain the Minister for Taylor Oval is the main rugby league Lands from taking any steps to and cricket ground in Moree and revoke the dedication of Taylor Oval also a signifi cant site for the local for public purpose recreation. Aboriginal community who believe it is situated near a burial ground for the Gomeroi nation. Bodies of Aboriginal persons were excavated on the site in 1903. The site has also been important for reconciliation in the town as an area where both Aboriginal and non-Aboriginal people have mixed over the generations. The EDO acted for two elders of the Moree Aboriginal community who challenged the rezoning. The case focused on whether the Planning Minister and Moree Council followed the correct procedure for rezoning land under the (NSW) Environmental Planning and Assessment Act 1979. The Council conceded that they did not follow the correct procedure in exhibiting and approving the draft LEP by which they sought to rezone the land and agreed to the orders to set aside their decisions.

EDO ANNUAL REPORT 2009-2010 53 Defending Environmental Protestors The appeal was heard in the District Court. The protestors argued that Burke v Director of Public Prosecutions there was no reliable evidence The EDO acted for environmental supporting the alleged loss and there activist, Sean Burke, in his criminal was no link between the offence appeal against convictions for and the alleged loss to justify the obstruction and intimidation. Mr awarding of the compensation Burke participated in a peaceful order. The protestors also sought to protest blockade in the Bodalla State question whether it is appropriate Forest and was charged with and for the (NSW) Victims Support and convicted of obstructing the path Rehabilitation Act 1996 to be invoked of loggers and intimidation under by big business to deter or disable the (NSW) Crimes Act 1900. peaceful political expression. The EDO acted for Mr Burke in his In an important decision, the appeal against the conviction. The appeal was allowed and the

Environmental Justice Environmental appeal was heard in the District compensation order was quashed. Court. The Court found that there was no evidence which could support R v Flint, Daines & McLean a conviction for intimidation. Mr The EDO represented three Burke’s appeal was allowed and the protestors who were charged with intimidation conviction was quashed. Trespass and Approach under the (NSW) Forestry Regulation 2009 Woods & Ors v Director of for blockading forestry operations Public Prosecutions in the Red Gum State Forest The EDO acted on behalf of four of Millewa, near Deniliquin. climate change protestors in a The protestors resorted to direct criminal appeal against an order action to prevent the logging of Raymond Terrace Local Court of the iconic forests as they for the protestors to pay Tomago believed the logging was occurring Aluminium Company Pty Limited without lawful authority. $5000 under the (NSW) Victims Support and Rehabilitation Act 1996. Deniliquin Local Court was asked to determine the legality of the logging The protestors attached themselves operations. As there was no approval to railings on the premises of Tomago for the forestry operations, the Aluminium Smelter, blocking the charges could not be upheld. All three passage of trucks. The protestors protestors were found not guilty. were charged and convicted with entering inclosed lands and Police v Adair & Ors; Adair & Ors resisting or hindering police. In v Director of Public Prosecutions addition, a victim’s compensation In an action directed at the failure order was imposed on them. of the Copenhagen climate change talks, 23 protestors from Rising Tide

54 blocked rail lines and stopped a Aboriginal Cultural Heritage coal train to the port in Newcastle. In 2009-2010, the EDO assisted Twenty two of the 23 protestors in the protection of Aboriginal were charged with two offences cultural heritage by: under the (NSW) Rail Safety (Offences) Regulation 2008: one • Advising a client on cultural charge for going onto, and a second heritage law reform, including charge for remaining on, running lines draft Community Consultation associated with rail infrastructure. Requirements for NSW Aboriginal Heritage Impact Permits. As At the hearing, following negotiations a result, the Requirements with Counsel, police agreed not to were improved upon. pursue the victim’s compensation order and agreed to drop one • Preparing a submission on behalf of two charges against the of a Land Council on the cultural protestors. All were convicted of heritage assessment report for the expansion of Champions quarry. the remaining charges; those with Justice Environmental no prior convictions were each • Advising a client on a deed fi ned $250 and those with prior of agreement with Lismore convictions were each fi ned $750. City Council to consult on the The EDO further acted for those heritage impacts of development protestors with no prior convictions applications in the Lismore Shire. in appealing the severity of the • Assisting EDO NT with work sentence on the basis that the on Muckaty nuclear waste Magistrate ought to have exercised dump and providing advice on her discretion under s 10 of the the National Radioactive Waste (NSW) Crimes (Sentencing Procedure) Management Bill for groups Act 1999. The convictions against working with the Traditional the 14 protestors with no prior Owners of Muckaty Station. convictions were dismissed. • Advising a client on issues about accessing Sydney Catchment Area Legal and Technical Advice land and damage to Aboriginal The EDO’s priority area of cultural heritage from Bulli Coal environmental justice is a broad seam and surrounding projects. church, encompassing the protection of Aboriginal cultural heritage, public health issues, access to justice issues and criminal matters. In 2009-2010, EDO solicitors provided 16 detailed written advices for or on behalf of clients on matters relating to Environmental Justice.

EDO ANNUAL REPORT 2009-2010 55 Public Health Policy and Law Reform Where environmental systems are Aboriginal Cultural Heritage damaged or contaminated, there is often a corresponding public health The EDO policy team and EDO’s issue. The EDO often receives Aboriginal Solicitor have invested requests for assistance from the a good deal of time and energy on community on their options in the issue of reform of Aboriginal relation to threats to public health. cultural heritage laws. This included In the past year, this has included convening a second roundtable of providing ongoing advice to a Traditional Owners to discuss law client about the burning of waste reform and specifi cally the issue of on Norfolk Island; writing to the what a new stand alone Cultural Minister for Planning on behalf of Heritage Act should look like. This Ryde residents about the health followed on from a roundtable in risks associated with electricity May 2009 with Indigenous experts, organisations and Traditional Environmental Justice Environmental infrastructure and substations; and assisting a client to draft a Owners where stand alone laws submission on the health impacts were sought. A draft report on of a local electricity substation. the outcomes of the Roundtable has been sent to participants for One signifi cant area of endeavour review and a fi nal report will be relates to the Offi ce’s work with sent to the Environment Minister Singleton Shire Healthy Environment and the Aboriginal Cultural Heritage Group on coal and health in the Advisory Committee in due course. Hunter Valley. This included writing to various Ministers on the issue and In June 2010, the NSW Government the science team undertaking a site made signifi cant amendments to visit and working closely with a client Indigenous heritage laws, including to provide assistance on a report on introducing new strict liability public health in the Lower Hunter offences, increased penalties in an effort to raise awareness of and the broadening of general the health impacts of coal mining. enforcement powers to mirror those The Government responded by in place for polluters. Importantly establishing a network to monitor also, the Government made a air quality across 14 sites in the commitment at the time of the Upper Hunter Valley and promising changes to develop stand alone to develop a health risk assessment legislation within two years. The plan for mining operations. EDO expects to be part of the Working Party of the Environment Minister to progress this work. The EDO also made a submission to the Department of Environment, Water, Heritage and the Arts on the review of the (CTH) Aboriginal

56 and Torres Strait Islander Heritage • A submission to the Attorney- Protection Act 1984. The submission General’s Department focussing strongly supported a comprehensive on two areas: public interest costs review and amendment of the Act orders and funding to enhance and the proposal to introduce a access to justice in the area of public national scheme for the protection interest environmental law. The of Indigenous cultural heritage, Attorney-General’s Department including a nationally consistent has informed the EDO that there set of best practice standards to will be no formal government be implemented and enforced response to submissions but across all states and territories. that these have been considered Furthermore, the EDO made a and have informed a number submission to the Department of proposed access to justice of Foreign Affairs and Trade on measures which are forthcoming; the proposed Access and Benefi t • A submission to the NSW Law

Sharing protocol under the Reform Commission’s inquiry Justice Environmental Convention on Biological Diversity into the law and practice 1993 to emphasise the importance relating to security for costs of protecting Indigenous rights, and associated orders. The particularly around protecting the Law Reform Commission has use of traditional knowledge. indicated that it is preparing a consultation paper in response Access to Justice to the submissions received. In relation to broader access New Freedom of Information laws at to justice issues, EDO’s law both at NSW and Commonwealth reform work included: level have now passed through • A submission to the Legal and Parliament. The EDO provided Constitutional Affairs Legislation submissions on both these processes Committee on the Access to Justice in the last fi nancial year, and many (Civil Litigation Reforms) Amendment of its recommendations were Bill 2009 emphasising that more refl ected in the fi nal versions of focus was needed on removing the bills that were passed. The costs impediments for public EDO had made a number of key interest litigants in the Federal recommendations to achieve a Court. The Committee’s report culture of openness, transparency referenced the EDO’s submission and accountability, including the 11 times and specifi cally endorsed creation of an independent statutory the recommendation to amend position of Information Commissioner, the bill to allow security for costs which has been adopted. orders to be appealable. The bill has yet to pass the lower house;

EDO ANNUAL REPORT 2009-2010 57 Education The EDO presented a comprehensive Corporate Social workshop on defamation, injurious falsehood and potential breaches Responsibility of the (CTH) Trade Practices Act 1974 and hosted a seminar on and Governance the health impacts of coal. A new online fact sheet was produced to provide guidance on commencing Legal and Technical Advice Class 4 proceedings in the Land and Environment Court. The EDO Environmental law is in a constant also legal-checked and edited a state of evolution. New approaches series of fact sheets prepared by the are continually being devised to NSW Aboriginal Land Council on deal with old and new problems. reforms to the planning system. Clients, particularly the peak groups, are also continually looking to the In addition, EDO staff delivered a EDO for different ways of solving number of papers and presentations environmental problems and the on using the law to promote EDO is increasingly asked to assist sustainability; public participation in clients in relation to the activities the enforcement of environmental of corporations or to advise clients laws; Aboriginal culture and on the laws regulating corporations. heritage; avoiding defamation; Strategic action against certain and environmental justice. corporate behaviour can have positive environmental outcomes. In 2009-2010, the EDO completed a number of detailed written advices for or on behalf of clients, including: • Preparation of complaints to the ACCC on behalf of clients about claims made in relation to hunting and conservation in NSW Forests as well as in relation to a planned world rally event in the Northern Rivers • Advice to a client in relation to Corporate Social Responsibility and Governance Social and Corporate Responsibility alleged misleading and deceptive conduct by Monsanto regarding genetically modifi ed crops • Advice to a client on a potential breach of food labelling laws relating to genetically modifi ed products

58 • Writing to the Department Procurement in NSW. The Public of Planning about misleading Accounts Committee released its heritage information in an report on the Inquiry in March 2010. Environmental Assessment. The Committee noted the EDO’s assertion that the NSW Government Policy and Law Reform has an obligation to use its purchasing power wisely by being mindful of The EDO drafted a submission on the environmental consequences the Review of Food Labelling Law of its purchases. Moreover, it and Policy, recommending the need mentioned the EDO’s claim that the for a mandatory environmental Government can help create a market food labelling program. The Offi ce in sustainable products by setting also provided legal advice on law a purchasing example for other reform relating to the labelling consumers in NSW. The Committee of palm oil in food products. endorsed this proposal through The Legislative Assembly Committee Recommendation 6 of its report: released a Report on its Inquiry into “The Committee recommends Environmental Impact Reporting in that the Government establish the NSW Public Sector. The Report whole-of-government and contains over 30 references to the departmental leadership on the EDO’s submission and evidence issue of environmentally sustainable (in 2007-08, the EDO made a procurement by identifying the submission and appeared before the persons or bodies that are best placed Committee to give evidence). The to promote the Government’s goals.” Committee adopted several key EDO recommendations, including recommendations that environmental Education impact reporting be extended to As part of a broad endeavour all NSW public sector agencies, to rethink the boundaries of that agencies should report to environmental law, EDO staff Parliament on their environmental often present on issues outside performance in their annual report, traditional environmental law. This that environmental performance of year, papers and presentations agencies be independently audited have included corporate social and that the NSW Government responsibility and environmental Sustainability Policy be assessed law; the law relating to genetically against the principles in the Global modifi ed organisms; taxation reform Governance Social and Corporate Responsibility Reporting Initiative. In turn, the and torts and the environment. Government’s response to the Report supported two of the four recommendations above. Last year, the EDO participated in the Inquiry into Sustainable

EDO ANNUAL REPORT 2009-2010 59 PART C: REPORTING AND GOVERNANCE

• Hill Top Residents Action Group EDO Clients • Humane Society International • Hunter Environment Lobby Inc. In 2009-2010, the EDO provided • Nature Conservation Council legal assistance to hundreds of clients, including a diverse range • Newcastle & Hunter Valley of individuals and community Speleological Society Inc organisations. Organisations assisted • North East Forest Alliance Inc by the EDO during the year include:

EDO Clients EDO • Old Bar Beach Sand • Barrington Gloucester Stroud Replenishment Group Inc Preservation Alliance • Redhead Residents’ Action Group • Blue Mountains • Save Water Alliance Conservation Society • Snowy River Alliance • Building A Better Kuringai • Stringy Bark Creek Residents’ • Calga Peats Ridge Community Association Inc Group and the Australia Walkabout Wildlife Park • Sydney Coastal Councils Group • Camberwell Common Trust • The Wilderness Society • Caroona Coal Action Group • Total Environment Centre • Catherine Hill Bay • Tucki Community Against Progress Association Mega Quarry • Clarence Environment Centre • Tweed Heritage Residents Association • Darling River Action Group • Valley Watch Inc • Friends of the Koala • Gloucester Residents in Partnership • Greenpeace • Gwandalan and Summerland Point Action Group Inc

60 Acknowledgements • Jennifer Garrick • Christine Graff • Evan Vaughan Hamman Volunteers • Yvonne Hales The Sydney Offi ce has capacity for • Sarah Hort up to six volunteers per day and • Elena Kirillova the Northern Rivers Offi ce also • Catherine Lancaster engages volunteers from time to time. Volunteers assisted with the • Gabrielle Lauder work of the Offi ce across all functions • Vincent Lauverignier but primarily with the provision of • Melissa Lee legal advice and casework services • Montana Linkio Volunteers greatly enhance the Acknowledgements capacity of the Offi ce to provide • Clara MacDermott accurate and timely assistance to • Lisa Maddocks clients. The EDO would like to thank the following volunteers • Roland Miller McCall from 2009-2010 for their • Julie McElroy commitment and hard work: • Emma Ryan McGinn • Melissa Baker • Tamina Mistr y • Andrea Bassett • Jaclyn Nelson • Damian Beaufi ls • Luke Noonan • Dylan Birchall • Marguerite Pettit • Andrew Brickhill • Emma Pollard • Ben Buckingham • Alana Richmond-Rex • Alice Busby-Smith • Matt Roberts • Jennifer Butler • Naivasha Safaya • Brendan Cahill • Danica Sajn • Oliver Cashman • Harshini Samarakoon • Lelien Chua • Bronwyn Scroope • Anicia Clarke • Sonali Seneviratne • Phillip Divisek • Julia Sidnell • Fleur Downard • Allison Smith • Blake Dyer • Chris Taylor • Bianca Fernandes • Elise Trask

EDO ANNUAL REPORT 2009-2010 61 • Etta Watts-Russell • Neil Williams SC • Elliott Weston • Ken Averre • Kylie Wilson • Matthew Baird • John Windschuttle • Fenja Berglund • Yang Xu • Blake Dawson • Alice Chen Yan • Chloe Burnett • Tom Yeoman • DLA Phillips Fox • Daniel Zanello • Lisa Doust • Joanna Zhou • Nick Eastman • Freehills Pro Bono Assistance • Gilbert & Tobin Acknowledgements The legal and scientifi c community • Jackie Gleeson also lend invaluable support to the work of the EDO, providing legal and • Henry Davis York advisory services for a reduced fee • Tom Howard or, in many cases, for no charge. The EDO is deeply grateful to the many • James Johnson barristers, solicitors, scientists and • Geoffrey Kennett experts for their ongoing commitment • Patricia Lane to the provision of pro bono assistance in public interest matters. • Patrick Larkin • Jason Lazarus Legal Assistance • Craig Lenehan The EDO would like to thank the • Sarah Mahmud following barristers, solicitors and fi rms who provided their time and • Chris McGrath assistance with EDO litigation and • Miranda Nagy other matters in 2009-2010: • Chris Norton • Christine Adamson SC • Andrew Pickles • Peter Brereton SC • Sarah Pritchard • Phil Greenwood SC • Fleur Ramsay • Craig Leggatt SC • Richmond Chambers • Ian Lloyd QC • Declan Roche • Stephen Lloyd SC • Mark Seymour • Bruce McClintock QC • Kristina Stern • Tim Robertson SC • Houda Younan

62 Scientifi c and Technical and in no way compromises the Assistance independence of the organisation. The EDO would like to acknowledge the The EDO would like to thank following individuals and organisations the following experts, both on (as well as those who choose to and off the Expert Register, who remain anonymous) for their generous provided assistance during 2009- fi nancial and/or in-kind support: 2010, and all those who provided assistance anonymously: • Geoffrey Ball • Adrian Brown • Andrew Chalk • Craig Dalton • Peter Cosier • Peter deFur • Community of Congewai Catchment Inc • Dr Mark Diesendorf

• DLA Phillips Fox Acknowledgements • Martin Fallding • Environment and Planning Law • Georgia Garrard Association (NSW) Inc. • Ian Goodwin • Dr Richard Gates • Werner Hoyt • Great Lakes Environment • Andy Marr Association Ltd • Iain McGill • Sylvia Hale • Felicity Hall • Wendy Morrison • Dr Ronnie (Helen) Harding • Hugh Outhred • Frank Hubbard • Steve Paulsen • Dr Andrew Kelly • Andy Pitman • Michael Kennedy • Martin Predavec • Robert Kinnane • Debashis Raha • Judy Lambert • Brett Stevenson • David Lemcke • Tim Stubbs • Dr Peter Melser • Harley Wright • Tony Moody Donors • Oatley Flora and Fauna Conservation Association Inc As a non-government and non-profi t organisation, the EDO gratefully • Parks and Playground Movement Inc accepts support from a range of • Warwick Pearse sources. The support received helps • David Pettigrew the Offi ce to achieve its mission • Barbara Richardson

EDO ANNUAL REPORT 2009-2010 63 • Patricia Ryan • James Tedder EDO People • Paul Toni • Philippa Walsh Staff • John Weate At 30 June 2010, the staff • Murray Wilcox AO QC of the EDO comprised: • Willoughby Environment Director EDO People EDO Protection Association Jeff Smith • Hal Wootten AC QC Principal Solicitor Kirsty Ruddock Senior Solicitors Ian Ratcliff (Northern Rivers) Sue Higginson (Northern Rivers) Jessica Wood (Northern Rivers – currently on leave) Solicitors Neva Collings Melissa Jolley BeomJin (BJ) Kim Natasha Hammond-Deakin Policy Director Rachel Walmsley Policy Offi cers Robert Ghanem Richard Howarth (currently on leave) Gillian Duggin Scientifi c Director Tanya Wansbrough Scientifi c Offi cer Kristy Graham Education Director Jemilah Hallinan Education Offi cers Mark Byrne (Northern Rivers) Nicholas Angel Project Offi cer Rosemary Bullmore

64 International Program Director In the Northern Rivers, Jessica Wood Amelia Thorpe returned from leave in a part-time Operations Manager capacity, assisting with some of Meredith MacDonald the enquiry load from Sydney as well as in the Northern Rivers; she IT/Administrator proceeded on maternity leave in John Scanlan late June 2009. Sue Higginson was Receptionist/Administrator promoted to Senior Solicitor and Diana Beaton both she and Ian Ratcliff also gained

experience as Acting Principal People EDO Staff Changes Solicitor while Kirsty was away. The EDO has experienced quite a In the Science Team, there were few changes during the past year, a number of changes. Kristy many of them related to the current Graham resigned as Scientifi c baby boom! The Operations Team Offi cer. She was replaced by Tanya is the only one that has remained Wansbrough. When Tom Holden unchanged throughout the year. left the Scientifi c Director’s position, Tanya was promoted into his role. In the Policy Team, Rachel Walmsley A new Scientifi c Offi cer has been returned from maternity leave recruited and will commence in in November 2009 and Robert August 2010. In the meantime, the Ghanem returned to his Policy Science Team relied on interns until Offi cer position after acting as Policy Kristy returned in June to support Director during Rachel’s absence. the team for a couple of months. Richard Howarth took 12 months leave without pay to gain valuable The Programs area was restructured experience working as an AYAD at the beginning of the year to refl ect volunteer in Fiji. Gillian Duggin was the growing International Program promoted to Policy Offi cer and and other changes. Following her also assisted with the International return from maternity leave, Amelia Program. Her position will cease Thorpe took up the new three day after Richard returns to the Offi ce. per week position of International Program Director. Education is now Felicity Millner left the Litigation a separate program area with Jemilah Team but has remained part of the Hallinan promoted to Education EDO family, having taken up the Director, Nick Angel taking up a part- Principal Solicitor position at EDO time position as Education Offi cer Victoria, a role she held briefl y at and Rosemary Bullmore’s temporary EDO NSW while Kirsty Ruddock position as Project Offi cer was able was on maternity leave. Natasha to be funded for the full year. Hammond-Deakin commenced as a locum while Kirsty was on The Offi ce was fortunate in being leave and she has remained. able to employ a number of casual staff for various periods during

EDO ANNUAL REPORT 2009-2010 65 the year. Gabrielle Brine provided The EDO Patron and members of the casual support to the Operations Board during 2009 – 2010 comprised: Team; Yvonne Hales worked on Patron updating the EDO’s factsheets; Mr Hal Wootten AC QC Andrew Brickhill and Alexandra Cave worked as Science Interns; Chair Sonali Severatne as a Legal Intern; The Hon. Murray Wilcox AO QC Emma Pollard as an International Retired Judge Program Intern; Tisha Dejmanee Attended 8 of 9 meetings

EDO People EDO as Education Assistant and Melanie Vice-Chair Kuhne as Conference Assistant. Prof. Michael Jeffery QC Queens Counsel and Professor Staff Training and (Environmental Law, University of Development Western Sydney) Attended 5 of 9 meetings The EDO continues to support the training and development of its staff Secretary (to AGM 2009) to enhance their capacity to deliver Warwick Pearse high quality advice and assistance for Consultant its clients. The Offi ce is committed Did not re-nominate for election at to allocating funds for external staff 2009 AGM training and development, in addition Attended 2 of 3 meetings to undertaking internal legal education Secretary (from AGM 2009) sessions on specifi c topics with special Mr Andrew Cox relevance for the EDO’s work. In Environmental Consultant 2009-2010, EDO staff attended Attended 6 of 9 meetings a total of 112 training sessions. Treasurer Ms Helen Gillam Board of Management Lecturer (Accounting, University of The EDO is a non-profi t company Technology, Sydney) limited by guarantee and its volunteer Attended 5 of 9 meetings Board provides strategic direction Ms Barbara Adams, PSM and governance to the Offi ce. The Retired Senior Public Servant Board is elected at each annual Attended 8 of 9 meetings general meeting. Board members attend six-weekly meetings, Mr Andrew Burke planning days and some community Solicitor education events. They make a Appointed 23/6/10 major contribution to the work of Attended 1 of 1 meetings the Offi ce, guiding its development Ms Louise Byrne and devoting considerable time Barrister and expertise to the work. Attended 6 of 9 meetings

66 Cate Faehrmann Executive Director, Nature Conservation Council of NSW Resigned 4/6/10 Attended 3 of 8 meetings Dr Ronnie Harding Retired Academic (Environmental Studies, University of NSW) Appointed 21/10/09 Attended 4 of 5 meetings People EDO Murray Hogarth Sustainability Advisor and Writer Resigned 13/5/10 Attended 7 of 8 meetings Mr Frank Hubbard Director, Corporate Responsibility, InterContinental Hotels Group (Australasia) Attended 5 of 9 meetings Ms Kate Smillie Regional Manager, Nature Conservation Trust of NSW Appointed 2/12/09 Attended 3 of 5 meetings

EDO ANNUAL REPORT 2009-2010 67 NSW Government through its Funding and Environmental Trust under the Lead Environmental Community Groups Financial Report Grants Program which contributes to the organisation’s administrative costs. The EDO was awarded $180,000 in funding for the period 2009–2012. Funding from Grants As this funding was not received The EDO is overwhelmingly until mid-way through the year, only dependent on grants to fund its $36,000 was taken up this year with operations. The major source $72,000 available in subsequent years. of funding for the organisation is The John D. and Catherine T. the Public Purpose Fund (PPF). MacArthur Foundation is another This is triennial funding and the major funder of the EDO with current grant is for the period triennial funding of $US250,000 2009 to 2012. The PPF provided from 1 March 2007 to 28 February $1,563,000 or about 65% of the 2010. This funding is for legal capacity EDO’s income in 2009-2010. building work in Papua New Guinea Triennial funding is also received from and in the Pacifi c. The EDO was both the Commonwealth Attorney- successful in obtaining another General’s Department and Legal grant of $US210,000 to continue Funding and Financial and ReportFunding Aid NSW through the Community this work for another three years. Legal Services Program (CLSP). The In addition to the triennial Funding Agreement covering the grants outlined above, the EDO period 2005-2008 was extended received a number of smaller twice for an additional year while grants allocated for a shorter the Commonwealth completed a time and for specifi c projects review of the Program. The EDO during 2009-2010. These were: was pleased to receive another triennial grant for CLSP funding for • Community Legal Centres NSW the period 2010–2013, which will through the Aboriginal Legal provide a more secure fi nancial base Access Program (with funding for all the community legal centres provided by the Public Purpose that are funded under this Program. Fund) to improve delivery of environmental law services to CLSP funds from the NSW Aboriginal clients in NSW Government accounted for $179,200 or about 7.5% of the EDO’s income • NSW Government through its in 2009-2010; Commonwealth Environmental Trust for publication funding amounted to $92,448 and distribution of a revised edition or 3.9% of overall revenue. of the Rural Landholder’s Guide The EDO also benefi tted • City of Sydney Council for a series from a triennial grant from the of seminars and for development of a Major Projects Toolkit

68 • NSW Government through some older matters where it was its Environmental Trust for a necessary to resort to applying on Private Conservation Program behalf of the clients to the Supreme • The Commonwealth Department Court to have costs assessed. of Agriculture, Fisheries and Forestry under its “Caring for our Financial Performance Country” Program to develop and In 2009-2010, the EDO had a surplus distribute a publication, Caring for of $134,934. This result is a little the Coast: A guide to environmental higher than the outcome in most law for coastal communities in NSW years where the surplus/defi cit is • Environment and Planning Law within 5% of annual revenue. This Association (NSW) Inc. for a refl ects the greater than expected research fellowship grant. revenue from legal fees discussed above. As these funds were Income Generation mostly received in the later half of the year or after the end of the In addition to the income received fi nancial year, the Board will have from grants, the EDO generated these additional funds available to other income from fees charged for undertake planned projects during its professional services, education the 2010-2011 fi nancial year. activities, memberships, donations and bank interest. This money Financial and ReportFunding enables the EDO to undertake work which is strategically important but cannot be done within the terms of funding contracts. In 2009-2010, the EDO generated other income of $284,726. This was a substantial increase from the amount received in recent years. Some of this was income from the conference and dinner ($46,264), which was offset by almost the same amount in costs. However, the major contribution to this income was from fees ($172,760). The EDO’s fees for litigation are usually covered by grants of legal aid or capped at a low rate unless there is a successful costs award in favour of the Offi ce’s client. This year, the EDO was successful in recovering costs for clients on some recent matters and eventually recovering costs on

EDO ANNUAL REPORT 2009-2010 69 ENVIRONMENTAL DEFENDER’S OFFICE LIMITED A.C.N. 002 880 764 DIRECTORS’ REPORT FOR THE YEAR ENDED 30TH JUNE 2010

The Directors present this report Signifi cant Changes on the company for the fi nancial in State of Affairs year ended 30th June 2010. 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 Director’s Report Director’s of director as at balance date. Principal Activities Murray Wilcox The principal activities of the Barbara Adams company during the course Andrew Burke of the year were: Provision of Louise Byrne Environmental Law Services Andrew Cox Helen Gillam There have been no signifi cant Ronnie Harding changes in the nature of these Frank Hubbard activities during the year. Michael Jeffery Kate Smillie After Balance Date Events No known matters or circumstances Net Profi t After Income Tax have arisen since the end of the The net profi t of the company fi nancial year which signifi cantly for the fi nancial year was affected or may signifi cantly affect $134,934 (2009 - 46,364). the company’s operations, the results of those operations or the state of affairs of the company Review of Operations in subsequent fi nancial years. A review of the company operations during the fi nancial Future Developments year and the results of those operations are as follows: The company expects to maintain the present status and level of operations The company’s operations during and hence there are no likely known the year performed as expected developments in future fi nancial years. in the opinion of the directors.

70 Environmental Issues The company was not a party to any such proceedings during the year. The company’s operations are not regulated by any signifi cant A copy of the auditor’s independence environmental regulation under declaration as required under Section 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 Director and, accordingly, no dividends Name: Helen Gillam Director’s Report Director’s have been declared or paid Director during the fi nancial year. Name: Frank Hubbard Options Dated this 15th day of September 2010 No options over issued shares or 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.

EDO ANNUAL REPORT 2009-2010 71 BALANCE SHEET AS AT 30 JUNE 2010

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

CURRENT ASSETS Cash and Cash Equivalents 5 706,788 735,361 Trade and Other Receivables 6 150,348 171,543 Other Financial Assets 7 52,650 37,132

Director’s Report Director’s TOTAL CURRENT ASSETS 909,786 944,036

NON CURRENT ASSETS Property, Plant & Equipment 8 56,541 46,750 TOTAL NON CURRENT ASSETS 56,541 46,750 TOTAL ASSETS 966,327 990,786

LIABILITIES

CURRENT LIABILITIES Trade and Other Payables 9 230,711 432,294 Short Term Provisions 10 132,284 125,316 TOTAL CURRENT LIABILITIES 362,995 557,610

NON CURRENT LIABILITIES Long Term Provisions 11 35,221 TOTAL NON CURRENT LIABILITIES 35,221 TOTAL LIABILITIES 398,216 557,610 NET ASSETS 568,111 433,176

EQUITY Retained Earnings 568,111 433,176 TOTAL EQUITY 568,111 433,176

The accompanying notes form part of these fi nancial statements and should be read in conjunction herewith. 72 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 Australian We have audited the accompanying Auditing Standards. These Auditing fi nancial report of Environmental Standards require that we comply Defender’s Offi ce Limited (the with relevant ethical requirements company), which comprises the relating to audit engagements and balance sheet as at 30 June 2010 and plan and perform the audit to obtain the income statement, statement of reasonable assurance whether recognised income and expenditure the fi nancial statements are free and cash fl ow statement for the from material misstatement. year 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

The Responsibility of auditor’s judgment, including the Report Audit Independent 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 an includes designing, implementing opinion on the effectiveness of the and maintaining internal controls entity’s internal control. An audit also relevant to the preparation and includes evaluating the appropriateness fair presentation of the fi nancial of accounting policies used and the statements that are free from material reasonableness of accounting estimates misstatement, whether due to fraud made by the directors, as well as or error; selecting and applying evaluating the overall presentation appropriate accounting policies; and of the fi nancial statements. making accounting estimates that are We believe that the audit evidence reasonable in the circumstances. we have obtained is suffi cient and appropriate to provide a basis for our audit opinion.

EDO ANNUAL REPORT 2009-2010 73 Independence 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 Defender’s Offi ce Limited on 3 September 2010, 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, the fi nancial statements presents fairly, in all material respects, the fi nancial

Independent Audit Report Audit Independent position of Environmental Defender’s Offi ce Limited as of 30 June 2010, and its fi nancial performance and cash fl ows for the year then ended in accordance with the Corporations Act 2001 and the Australian Accounting Standards (including Australian Accounting Interpretations). Joe Pien Chartered Accountant Suite 503, Level 5, 276 Pitt Street, Sydney, NSW, 2000 Dated this 17th day of September 2010

74 PROFIT AND LOSS STATEMENT FOR THE YEAR ENDED 30 JUNE 2010

2010 ($) 2009 ($) INCOME Grants Received 2,002,165 1,805,823 MacArthur 113,304 86,187 Donations and Memberships 12,453 13,586 Conference, Publications & Workshops 48,027 4,931 Professional Fees 172,760 94,969 Interest Received 51,484 52,861 Other Revenue 2 100 2,400,195 2,058,457 Independent Audit Report Audit Independent EXPENDITURE Auditor’s Remuneration - Financial Statements 13,785 9,815 Accountancy and Bookkeeping 34,100 30,403 Bad Debts Written Off - 6,790 Bank and Government Charges 2,005 5,403 Board Costs 1,189 - Conferences, Publications & Workshops 109,326 67,339 Depreciation 22,412 18,993 Doubtful Debts 3,856 - Employees Entitlement Provision 42,189 1,958 Employee Expenses 8,900 1,630 General Expenses - 826 Insurance 12,560 11,988 Legal Fees 3,698 977 Light & Power 5,804 4,917 Loss on Disposal - Fixed Assets 656 - MacArthur Expenses 116,406 99,628 Equipment Lease 6,205 6,205

EDO ANNUAL REPORT 2009-2010 75 PROFIT AND LOSS STATEMENT FOR THE YEAR ENDED 30 JUNE 2010 (Continued)

2010 ($) 2009 ($) EXPENDITURE (Continued) Offi ce Costs 18,529 15,454 Organisational Development 27,498 22,675 Postage & Couriers 1,115 3,666 Printing & Stationery 23,104 20,092 Rent - Offi ce 117,660 118,004 Repairs & Maintenance - 2,766 1,273 General Repairs & Maintenance Salaries & Wages 1,462,103 1,348,858 Staff Training & Welfare 14,179 20,865

Independent Audit Report Audit Independent Staff Amenities 3,522 4,378 Staff Recruitment 1,290 890 Subscriptions 22,824 23,862 Superannuation Contributions 127,941 118,350 Telephone & Internet 36,147 30,160 Travelling Expenses 23,492 16,694 2,265,261 2,012,093 OPERATING PROFIT/(LOSS) 134,934 46,364 BEFORE INCOME TAX

[Note – this is an abridged copy of the Financial Report for the year ended 30th June 2010. 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.]

76 ENVIRONMENTAL DEFENDER’SANNUAL REPORT OFFICE NSW 2009/10

ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT 2008/09

(02) 6621 1111 or 1300 369 791 369 1300 or 1111 (02)6621

Northern Rivers Office MolesworthLevel 71 1, St, PO Box 868, Lismore NSW 2480 Tel: Fax: (02) 3355 6621 Sydney Office Level 89 St, York 1, Sydney NSW 2000 Tel: (02) 6989 9262 Fax: (02) 6998 9262 Freecall: 1800 239 626 www.edo.org.au/edonsw Office (NSW) Defender’s Environmental 2009/10