How do we use the law

to protect koalas?

Revel Pointon, Solicitor, LAWJAM 16

Photo: http://petthreads.com.au/pet-care/8-tips-for-koala-dog-safety/

Outline

•Commonwealth laws and tools

•Changes proposed to EPBC Act

•Queensland laws and tools

•Summary of tools to protect koalas

http://petthreads.com.au/pet-care/8-tips-for-koala-dog-safety/

Separate Cth and State approvals

• A project or action that impacts on koalas might need both Cth & State approvals

• State system riddled with exemptions and exceptions

• Cth no automatic free ride for particular types of actions

History of Cth koala protection

• 2 May 2012 – listed as ‘vulnerable’ threatened species under Cth EPBC Act (only Qld, NSW, ACT)

Means: If project likely to have a ‘significant impact’ then proponent must refer to the Cth Minister for EPBC Act assessment

• But koala impact could be ignored if the referral was lodged with the Cth before that listing took effect

• Dec 2014 – referral guidelines for when there might be a significant impact on koalas were finalised

Could the proposed impact:

Adversely affect habitat critical to the survival of the koala

AND/OR

Interfere substantially with the recovery of the koala through the introduction or exacerbation of key threats in areas of habitat critical to the survival of the koala

Offsets - Cth

• Through development assessment process, if significant impacts on the environment may not be avoided or mitigated ---

---then environmental offsets may be imposed to compensate for the residual adverse impacts of an action on the environment.

• EPBC Act Environmental Offsets Policy

Cth tools you can use to protect koalas

1. EPBC Referral – suggest to Minister that referral required

2. Public consultation on: a) Whether controlled action (ie. needs EPBC

assessment)? - compulsory

b) Draft assessment guidelines (EIS, PER) – not compulsory

c) Draft EIS or PER - compulsory

Acland Example

• Shows Cth law is biased against koalas

• 2012 The Oakey Coal Action Group brought to our attention there were koalas around Acland where Stage 3 mine proposed

• But referral for mine expansion from 2007/3423 lodged before Cth listing of koalas - so koalas not addressed in Cth assessment

• Similar problem for Moreton Bay Rail link 2010/5589 no approval needed

Proposal to restrict community judicial

review rightsLegal standing under EPBC Act – Judicial Review

s487 extends standing for the purposes of judicial review of administrative decisions:

“at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment”

Brought in under PM Howard and Senator Robert Hill in 2000

Consequences if passed

• Many groups would miss out on legal standing, so there would be even less scrutiny via the Court system than there is now

• Other groups would pass the ‘person aggrieved test’ but there would be increased time and delay in Court investigating standing

Now open for public comment:

Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015

• A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999 , and for related purposes

Submissions due: Friday, 11 September

•Template on EDO Qld website

http://www.ratemykoala.com

Current protection - Qld

• Nature Conservation Act 1992 – ‘vulnerable’ in SEQ – all koalas are protected in Qld

• SEQ Koala Conservation State Planning Regulatory Provisions (SPRP) *to move to regulations in planning reform

• Single State Planning Policy (SPP) SDAP

• Local planning schemes

• Queensland Environmental Offsets Framework

• Significant Residual Impact Guideline

State Planning Regulatory Provisions

(Qld)• Prevails over all other planning instruments (s19 & 324 Sustainable Planning Act)

• Regulation depends on type of development (applies to code and impact assessable development) and type of mapped koala habitat

• Highest protection to ‘priority koala assessable development areas’ – Material change of use is prohibited in these areas if it is for urban activity and is in an area specified in the local plan as open space, conservation, rural or rural residential.

• Allows for offsets in certain circumstances

State Planning Policy

• Requires planning schemes to integrate matters of state environmental significance by facilitating a net gain in koala bushland habitat in SEQ

• Includes the Integrated Development Assessment Requirements that apply to development applications – e.g. any environmental offset must be consistent with the Environmental Offsets Act 2014

Offsets - Qld• Delivered through the Qld Environmental Offsets Framework:

• Environmental Offsets Act 2014 

• Environmental Offsets Regulation 2014 

• Queensland Environmental Offsets Policy

• Significant Residual Impact Guideline (Dec 2014)

• Regulated by the South East Queensland Koala Conservation State Planning Regulatory Provisions

• State Government Supported Community Infrastructure Koala Conservation Policy

Qld tools to protect koalas

Nature Conservation Act

1.You can lodge a complaint to the DEHP if you believe the Nature Conservation Act provisions have been breached – ask them to take enforcement action.

2.If the DEHP don’t act – you can seek an enforcement order / injunction in the P&E Court requiring compliance – get legal advice first

Qld tools to protect koalas

Planning law

1.Submission to development application

2.Advise the assessment manager if a development condition is being breached

3.Public consultation on planning instruments – state and local

4.Environmental authority application / EIS – resource project

Qld tools to protect koalas

Vegetation clearing

1.Advise DNRM if you think vegetation clearing is illegal

2.If DNRM don’t take action – take to P&E Court for enforcement order – get legal advice first.

Summary – what can you do?

• Public submission opportunities on individual developments: – EPBC Referrals

– Development applications

– Environmental authorities

• Public submission opportunities on regulatory instruments:

– Planning schemes

– State planning policies

– Federal laws! – Put in a submission to maintain EPBC rights!

What you can do? • Contact the Department of Environment and Heritage

Protection or your local council to report an impact

• Contact Cth Environment Department if matter should be referred

• Ask your council and government to protect koalas.

• Contact the EDO for free legal advice line.

EDO Qld Advice Line• Free advice service for public interest environmental

legal questions• Every Tuesday evening (but send through your

questions anytime!)

• Direct enquiries to:

edoqld@edoqld.org.au

07 3211 4466

Thanks for listening! Any questions?

www.edoqld.org.au facebook.com/EDO.Qldtwitter.com/EDO_Qld

This material is for information purposes and is not legal advice.

The EDO Qld team

This material is for information purposes and is not legal advice.

Redland Koala Planning Appeal

• The Wildlife Preservation Society of Queensland Bayside Branch (Qld) Inc v. Redland Shire Council & Anor [2007] QPEC 1

• Protection of important koala habitat in Southeast Queensland

• Challenge to the approval of a residential subdivision (94 lots) under Integrated Planning Act 1997

• Settled prior to hearing (60% site for conservation), protection of additional koala trees and fencing

Major residential development at Undullah, Qld

Koala sightings on proposed site (Australian Koala Foundation Map)

Moreton Bay Rail Link