STEPPING STONES A NEW GENERATION OF ‘RIVER LAW’ AND ITS APPLICATION TO THE WERRIBEE RIVER CATCHMENT WHAT IS THIS ABOUT? • POTENTIAL AND OPPORTUNITIES PRESENTED BY LAW REFORM TO IMPROVE PROTECTION AND RESTORATION OF RIVERS • REGULATORY ARRANGEMENTS APPLYING TO THE WERRIBEE • LESSONS FROM THE YARRA RIVER PROTECTION (WILIP-GIN BIRRARUNG MURRON) ACT 2017 • KEY MESSAGES ABOUT ENVIRONMENTAL JUSTICE AUSTRALIA (EJA) • PUBLIC INTEREST ENVIRONMENTAL LAW PRACTICE • USE THE LAW TO PROTECT THE ENVIRONMENT AND ITS BENEFITS FOR COMMUNITIES • LARGELY FUNDED BY DONORS, TRUSTS, LEGAL COSTS (APPROX. 10% GOVT) • REPRESENT COMMUNITY GROUPS AND NGOS IN LITIGATION • LAW REFORM AND COMMUNITY LEGAL EDUCATION EJA, WATER LAW & ‘RIVER LAW’ • ASSISTANCE TO NGOS IN PREPARATION OF THE BASIN PLAN (MDB) • WATER LICENSING CASES • ADVOCACY WORK IN DESIGN OF PROPOSALS FOR THE YARRA RIVER ACT • PARTNERSHIP WITH YRKA AND COMMUNITY GROUPS • COLLABORATIVE DESIGN PROCESS • ADVOCACY AND ENGAGEMENT WITH GOVT AND ITS ADVISERS THE WERRIBEE CATCHMENT Sub-catchment condition by key proxy variables (Healthy Waterways Strategy) Platypus Very low long-term: Moderate Fish High Very high Frog species Moderate Very high Streamside birds Low High Native vegetation Moderate Very high Macroinvertebrates Moderate Very high Amenity Moderate Very high ISSUES • LAND USE • URBAN DEVELOPMENT IN AND NEAR RIVER CORRIDOR • WATER • URBAN RUNOFF, STORMWATER, WATER QUALITY; ALTERED HYDROLOGY (EG FROM LAND CLEARING, FARM DAMS, STORAGE) • BIODIVERSITY • HISTORIC LAND CLEARING AND BIODIVERSITY LOSS (EG GRASSLANDS, WOODLANDS) IN CATCHMENT AND RIPARIAN ZONES • DEGRADED IN-STREAM ECOLOGY • GOVERNANCE • FRAGMENTATION OF RESPONSIBILITY FOR LAND, WATER, BIODIVERSITY, USE AND DEVELOPMENT RIGHTS. • UPPER CATCHMENT ISSUES NEED TO BE CONSIDERED IN MANAGING LOWER CATCHMENT LEGAL AND REGULATORY TOOLS Legal framework Legal sources and key regulatory tools Land use planning Planning and Environment Act 1987 (Vic); planning schemes Water management Water Act 1989 (Vic); Regional Waterway Strategy Public lands management Crown Land (Reserves) Act 1978 (Vic); Local Government Act 1989 (Vic) Biodiversity conservation Planning schemes; Environment Protection and Biodiversity Conservation Act 1999 (Cth) Pollution control Environment Protection Act 1970 (Vic); State Environment Protection Policies (SEPPs); planning schemes Catchment management Catchment and Land Protection Act 1994 (Vic); Regional Catchment Strategy LAND USE PLANNING OTHER PLANNING TOOLS Tools Examples What does this do? State planning SPPF, cl 12.05-1: ‘To protect and enhance Guidance councils and planners must have policies the significant river corridors of regard to where relevant in land-use metropolitan Melbourne.’ planning and permit decision-making Local planning Wyndham Planning Scheme, cl 21.03 – 1: As above, but at a more specific localised policies Biodiversity: ‘2.1 Protect and enhance level. Includes specific reference to waterways and coastal land…’ waterways in the low Werribee catchment. WATER • LEGAL REGIME FOR MANAGING WATER IS SEPARATE (BUT CAN BE CONNECTED) TO REGIME FOR MANAGING LAND • FLOWING WATER PER SE CANNOT BE OWNED • THE CONTROL AND MANAGEMENT OF WATER VESTS IN THE CROWN • CROWN (VIA MINISTER) REGULATES WATER USE, TAKE, STORAGE, ACCESS VIA COMPLEX SYSTEM OF RIGHTS, LICENCES, ENTITLEMENTS, ETC. • KEY WATER MANAGEMENT INSTRUMENTS INCLUDE BULK ENTITLEMENTS AND WATER LICENCES WATER - BULK ENTITLEMENTS • MAIN WATER MANAGEMENT AND PLANNING INSTRUMENT ON THE WERRIBEE • 6 BULK ENTITLEMENT ORDERS APPLYING TO THE WERRIBEE CATCHMENT • MANAGE TOWN WATER SUPPLIES • DELIVER FLOWS TO MEET WATER LICENCES (EG IRRIGATION) • ENVIRONMENTAL OBLIGATIONS (EG PASSING FLOW REQUIREMENTS) WATER AND LAND USE PLANNING • OPERATE IN SEPARATE LEGAL DOMAINS • IN PRACTICE, LAND AND WATER ARE INTIMATELY INTER-RELATED • INCREASING MEASURES TO INTEGRATE REGULATION OF WATER, LAND AND PLANNING, EG: • STORMWATER MANAGEMENT AND WATER QUALITY (WSUD) • LAND PROTECTION DUTIES (CATCHMENT AND LAND PROTECTION ACT 1994, S 20) • COURTS TEND TO GIVE LAND-USE PLANNING A WIDE AMBIT ORIGINS OF THE YARRA RIVER PROTECTION (WILIP- GIN BIRRARUNG MURRON) ACT 2017 Environmental Justice Australia work Government processes 2014 Lobbying by Yarra Riverkeeper Association (YRKA) ALP commitment to a Yarra Act 2014-16 EJA/YRKA partnership 2014-2017 including: Vic Govt policy-making process 2015-2016, • Community forum 2015 including: • Background work (reports on issues and history) • Ministerial Advisory Committee • EJA-/YRKA led law reform exercise (reform proposals) • Reference group • Engagement and lobbying at ministerial, bureaucratic, advisory • Interim planning controls levels 2017 Engagement with government, Melbourne Water Yarra Action Plan 2017 Passage of the Act Wider engagement on ‘river law’: ‘rivers of the west’ Implementation: community vision, YSP, Birrarung Council YARRA RIVER PROTECTION (WILIP-GIN BIRRARUNG MURRON) ACT 2017 • FRAMEWORK ACT FOR THE YARRA RIVER CORRIDOR BETWEEN THE PORT AND UPPER YARRA DAM • APPLIES TO THE RIVER CHANNEL + CROWN LAND ALONG THE RIVER + MAY APPLY TO LAND > 1KM FROM RIVER IN ADJACENT MUNICIPALITIES • LONG-TERM PLANNING FRAMEWORK (50 YEARS) + INSTITUTIONAL ARRANGEMENTS KEY LEGAL, POLICY AND INSTITUTIONAL MECHANISMS • PURPOSES INCLUDING TO MANAGE RIVER AS ‘ONE LIVING AND INTEGRATED NATURAL ENTITY’ • ABORIGINAL RECOGNITION (SYMBOLIC, PRINCIPLE OF RECOGNITION OF CULTURAL VALUES, REPRESENTATIONAL) • ELABORATE SOCIAL, ENVIRONMENTAL, RECREATIONAL, CULTURAL, MANAGEMENT PRINCIPLES • YARRA STRATEGIC PLAN, INCLUDING 50-YR COMMUNITY VISION • BIRRARUNG COUNCIL • SINGLE GREATER YARRA PARKLANDS • OVERSIGHT ROLE FOR SUSTAINABILITY COMMISSIONER YARRA V WERRIBEE: SOME COMPARISONS YARRA WERRIBEE • EXTENSIVE URBANISATION IN LOWER CATCHMENT + SOME HYDROLOGIC • EXTENSIVE URBANISATION AND HYDROLOGIC MODIFICATION, ESP IN LOWER MODIFICATION CATCHMENT • RURAL/AGRICULTURAL HINTERLAND AND INCREASING GROWTH PRESSURES • RURAL HINTERLAND AND PERI-URBAN GROWTH • LAND USE CONFLICTS (EG URBAN DEVELOPMENT, ENVIRONMENTAL PROTECTION • LAND USE CONFLICTS (EG URBAN DEVELOPMENT, ENVIRONMENTAL PROTECTION) • NO PROTECTION OF CATCHMENT + LIMITED CONTROL FOR WATER SUPPLY • PROTECTED UPPER CATCHMENT + EXTENSIVE CONTROL FOR WATER SUPPLY • ABORIGINAL HERITAGE • ABORIGINAL HERITAGE • LIMITED ‘GREEN CORRIDOR’ PROTECTION; EXTENSIVE CLEARING • MAINTENANCE OF ‘GREEN CORRIDOR’ • LESS HISTORY OF REVIEW AND POLICY MAKING • HISTORY OF REVIEW AND POLICY-MAKING • FRAGMENTED MANAGEMENT AND GOVERNANCE • FRAGMENTED GOVERNANCE AND MANAGEMENT • LESSER INFRASTRUCTURE IMPACTS • MAJOR INFRASTRUCTURE CORRIDOR (EG ROADS) • LESS COMPLEX TRIBUTARY NETWORK? • RECREATIONAL AND SOCIAL USE (EG BOATING, SWIMMING, AMENITY) • VERY LOW TO VERY HIGH RIVER HEALTH INDICATORS • EXTENSIVE TRIBUTARY NETWORK • VERY GOOD TO POOR RIVER HEALTH INDICATORS LESSONS FOR THE WERRIBEE: 1. IS AN ACT NEEDED AND WHAT CAN IT PROVIDE? RESPOND TO FRAGMENTED GOVERNANCE, PROVIDE ? CANNOT AVOID LAND USE OR RESOURCE TOOLS FOR MORE INTEGRATED MANAGEMENT CONFLICTS (STILL NEED TO BE WORKED PROVIDE TOOLS FOR LONG-TERM PLANNING (EG THROUGH) SINGLE STRATEGIC PLAN) ? PROVIDES A FRAMEWORK NOT A NEW CODE PROVIDE SCOPE FOR AMBITION AND VISION OR SET OF RULES (ALTHOUGH STRATEGIC CERTAINTY, STABILITY AND TRANSPARENCY OF PLAN MAY BE A FOCUS OF THIS) LEGISLATION ? DOES NOT DISPLACE EXISTING AGENCIES OR INSTITUTIONAL ARRANGEMENTS FOR OVERSIGHT AND ACTORS, ATTEMPTS TO ALIGN THEM BETTER GUIDANCE PROVIDE A SPACE FOR PUBLIC PARTICIPATION ? CAN THE YARRA MODEL BE DIRECTLY TRANSPLANTED? LESSONS FOR THE WERRIBEE: 2. PURPOSES AND PRINCIPLES YARRA WERRIBEE • ENVIRONMENTAL, SOCIAL, RECREATIONAL, • PURPOSES AND PRINCIPLES GENERALLY CULTURAL , MANAGEMENT PRINCIPLES TRANSFERABLE TO INTEGRATED • PURPOSES INCLUDE MANAGING RIVER AS MANAGEMENT OF THE WERRIBEE ‘ONE LIVING AND INTEGRATED NATURAL ENTITY’ • VERY BROAD, IMPRESSIVE SCHEME OF PRINCIPLES THAT ARE REQUIRED GUIDANCE TO PLANNERS AND DECISION-MAKERS LESSONS FOR THE WERRIBEE: 3. SCOPE OF APPLICATION YARRA WERRIBEE • YARRA STRATEGIC PLAN APPLIES TO ‘YARRA RIVER • APPLICATION OF STRATEGIC PLAN TO THE LAND’: RIVER CHANNEL ONLY? • BED, BANKS, SOIL OF THE RIVER (INCLUDES WATERS) • DECLARED LAND (CROWN LANDS) UP TO 500M • TO CHANNEL + CROWN LAND? FROM THE RIVER • TRIBUTARIES? (ONLY VERY PARTIAL • YARRA STRATEGIC PLAN MAY ALSO APPLY TO LAND MORE THAN 1KM FROM THE RIVER WITHIN APPLICATION IN YARRA ACT) ADJACENT MUNCIPALITIES • ALL THE WAY UP TO HEADWATERS? LESSONS FOR THE WERRIBEE: 4. A LEGISLATED STRATEGIC PLAN YARRA WERRIBEE • BROAD MANDATORY CONTENT: LAND-USE, • STRATEGIC PLAN WITH POSSIBILITY OF WATER LEGALLY BINDING MEASURES A POTENTIALLY POWERFUL TOOL • LEGAL EFFECT OF CONTENT (BINDING, IMPERATIVE) • KEY TOOL FOR INTEGRATED MANAGEMENT • ACTUAL PROVISIONS OF STRATEGIC PLAN • ALIGN THE ACTIONS OF PUBLIC AUTHORITIES WOULD DEPEND VERY MUCH OF • ESTABLISH TARGETS (‘PERFORMANCE ORGANISATION AND ENGAGEMENT OF OBJECTIVES’) COMMUNITY LESSONS FOR THE WERRIBEE: 5. ACCOUNTABLITY AND ENFORCEMENT YARRA WERRIBEE • INDEPENDENT STATUTORY BODY – BIRRARUNG • INDEPENDENT INSTITUTIONS IMPORTANT TO COUNCIL ACCOUNTABILITY AND TRANSPARENCY • PERFORMANCE REPORTING BY SUSTAINABILITY • EMPHASIS ON PUBLIC PARTICIPATION IS VALUABLE COMMISSIONER • LEGISLATIVE DIRECTION FOR PUBLIC PARTICIPATION (EG • REPORTING ROLE OF CES A STRENGTH COMMUNITY VISION, MANAGEMENT PRINCIPLES) • NO EXPEDITED MANNER TO ENFORCE OBLIGATIONS • NO THIRD PARTY PROVISIONS FOR ENOFORCEMENT OF ON PUBLIC AUTHORITIES A WEAKNESS? OBLIGATIONS IN THE ACT LESSONS FOR THE