New CTH Environment Legislation Amendment Act 2015: Minister's Advice

Monday 9 March 2015 @ 2.20 p.m. | Legal Research

On the 5 March 2015, the Federal Government assented the Environment Legislation Amendment Act 2015 (No. 11 of 2015), which, as previously reported by TimeBase, among other amendments, amends the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to address the implications arising from the Federal Court’s decision in Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 (The Tarkine Case).

Purpose of the Act

The Act has a three-fold purpose and amends:

  • the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to address the implications arising from the Federal Court's decision in The Tarkine Case; and
  • the EPBC Act to provide additional protection for turtles and dugong which are listed threatened, migratory or marine species (specifically turtles and dugong) by increasing the financial penalties for various offence and civil penalty provisions; and
  • the Great Barrier Reef Marine Park Act 1975 (Cth) (the GBRMP Act) by providing additional protection for protected species under the GBRMP Act, if those species are in the Genus Dugong (dugong); or the Family Cheloniidae (marine turtles); or are the species Dermochelys coriacea (specifically leatherback turtles).

The Tarkine Case

On 18 December 2012, then Minister for Sustainability, Environment, Water, Population and Communities (SEWPaC), granted approval under the EPBC Act to the Shree Minerals Nelson River Bay magnetite mine (the mine) in the Tarkine area of Tasmania with 29 conditions.

The Tarkine National Coalition (TNC) applied to the Federal Court in April 2013 to seek a judicial review of this approval. On 17 July 2013, the Federal Court overturned the approval, finding "approval for the mine, near Nelson Bay River, was invalid because Mr Burke failed to give "genuine consideration" to conservation advice on the endangered Tasmanian devil."

Justice Marshall listed the critical issues for determination as being "Whether, in deciding to approve the taking of the action, the Minister had regard to a document called “Approved Conservation Advice for Sarcophilus harrisii (Tasmanian Devil)” and in the event of failure to do so, the consequences of such failure."

After the court’s decision, then Minister for SEWPaC said that he would have to consider all information anew regarding the mine in deciding whether to approve the mine. The Minister granted approval to the mine on 29 July 2013 with 30 conditions attached to the approval. The amendments in Schedule 1 of the Bill are explicitly designed to deal with …

"the Federal Court’s decision in the Tarkine case. In that decision the Federal Court (Marshall J) declared invalid the approval given to Shree Minerals Limited under Part 9 of the EPBC Act due to a failure to “have regard to” a relevant approved conservation advice, as required under section 139(2)."

Dugong and Turtles

As noted by the Queensland Department of Environment and Heritage Protection in the Bills Digest:

"Dugong and turtle populations are at risk from increased poaching activities. Some of these activities are believed to be associated with inhumane slaughtering for commercial trade in meat products. Illegal hunting may be a significant threat to the recovery of dugong populations that are already under pressure from habitat loss and incidental kills. Whilst traditional owners are entitled to hunt dugong and turtles for non-commercial use under custom and tradition, commercial trade of the meat is illegal."

The Turtle and Dugong Protection Plan committed the Coalition to provide an additional $5 million for turtle and dugong protection that including to:

  • introduce Federal legislation tripling the penalties for poaching and illegal transportation of turtle and dugong meat;
  • establish a National Dugong and Turtle Protection Plan through the threatened species process; and
  • work with Indigenous leaders towards an initial two-year moratorium on the taking of dugongs.

Schedule 2 makes these amendments.

Both Schedules were due to commence on 6 March 2015m however, the full text of the Act is yet to be published.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Environment Legislation Amendment Bill 2013 (Cth) and Act as reproduced in TimeBase LawOne

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