(1) Introduction A five-year independent assessment entitled the State of the Environment was published in 2016, noting increasing pressures associated with coal mining and the coal-seam gas industry, greater traffic volumes in capital cities, habitat destruction, and invasive species. Climate change is stated to be ‘an increasingly important and pervasive pressure on all aspects of the Australian Environment,’ and the report notes that ‘record high water temperatures have caused widespread coral bleaching, habitat destruction, and species mortality in 2011–16.’ Against this assessment, the legal and political landscape in Australia is complicated by often divergent Commonwealth, state, and local policies within the Australian federation. On 2 July, an Australian federal election was held due to Prime Minister Malcolm Turnbull’s invocation of a rarely used constitutional procedure enabling the ‘double dissolution’ of both Houses of Parliament. The result was a narrow victory for the incumbent Liberal/National Party coalition government. The coalition was responsible for revoking the carbon pricing mechanism in 2014 and continues to support an alternative policy of ‘direct action’ to mitigate climate change, while also defending coal mine expansions in domestic litigation. The ministerial portfolios of energy and the environment were merged on 19 July to create a new Department of the Environment and Energy, which is now led by the former minister for resources, energy and northern Australia. Whether energy and environmental policy can be mutually supportive will remain a major issue for Australia, especially given the context described by the State of the Environment report as a ‘lack of national leadership, collaboration and coordination.’ (2) Climate Change (A) Australia and the International Climate Negotiations Australia signed the Paris Agreement on 22 April and ratified it on 9 November. This formalized its commitment to participate in the process of pledging ‘nationally determined contributions’ to overall efforts to keep global average temperature increases below 2 degrees Celsius. On 10 November, Australia also ratified the Doha Amendment to the Kyoto Protocol, which provides for a second commitment period of emission reduction targets of developed countries until 2020. Unlike the Paris Agreement, the Doha Amendment has not yet entered into force. Notwithstanding the lack of legal effect of the Kyoto Protocol targets, Australia has signalled its commitment to achieving the 2020 targets as well as the targets it has pledged under the Paris Agreement, which extend to 2030. Ratification by Australia of the Paris Agreement and the Doha Amendment followed the usual parliamentary practice of tabling of the treaties, the formulation of a national interest analysis, and the consideration and recommendation by the Joint Standing Committee on Treaties. (B) Domestic Mechanisms for Emissions Reductions Australia’s nationally determined contribution includes an emissions reduction target of 26–8 percent below 2005 levels by 2030 (volume 26 of this Yearbook, 391–3). A review of Australian climate change policies to work towards achieving Australia’s 2030 target and Paris Agreement commitments was announced in December 2016. The review, which is to be conducted by the Department of the Environment and Energy, will commence in early 2017 and conclude by the end of 2017 (<http://www.environment.gov.au/climate-change/review-climate-change-policies>). The terms of reference include the opportunities and challenges of reducing emissions on a sector-by-sector basis; the impact of policies on jobs, investment, trade competitiveness, households, and regional Australia; and the integration of climate change and energy policy, including the impact of state-based policies on achieving an effective national approach. The review will work in parallel with an Independent Review into the Future Security of the National Electricity Market (NEM Review) and the work of the Ministerial Forum on Vehicle Emissions. The NEM Review will be chaired by Australian Chief Scientist Alan Finkel. A preliminary report was issued on 9 December. Apart from these ongoing reviews, the Climate Change Authority issued the third report of its special review under the Climate Change Authority Act 2011 (Cth). This report, entitled Towards a Climate Policy Toolkit: Special Review on Australia’s Climate Goals and Policy, was released on 8 August. The Authority recommended that the government adopt a ‘policy toolkit that builds carefully on current policies like the Emissions Reduction Fund and the safeguard mechanism and adopt some key new measures to form a long-term and durable solution to Australia’s climate change challenge. For the electricity generation sector, the Authority recommended ‘a market mechanism in the form of an emissions intensity scheme.’ A ‘minority report’ by some members of the Climate Change Authority that went further than these recommendations was released on the same day. On 23 March, the Turnbull government announced that they would establish a AUS $1 billion Clean Energy Innovation Fund ‘to support emerging [energy] technologies’ and retain the Australian Renewable Energy Agency and the Clean Energy Finance Corporation, previously at risk of being shut down by this and the previous Coalition government. Despite the potentially positive face value of the new fund, clean energy organizations are sceptical, observing that the AUS $1 billion represents existing funds that have been shifted around rather than a new investment (<http://www.thefifthestate.com.au/articles/turnbull-announced-1-billion-clean-energy-innovation-fund/81166>). In budget terms, the Clean Energy Innovation Fund represents a reallocation of the Clean Energy Finance Corporation’s AUS $10 billion allocation rather than new spending on clean energy. In addition to this, the government has actively pursued plans to cut funding to the Australian Renewable Energy Agency, a key part of a previous Labor government’s legislative package to encourage clean energy uptake. Proposed cuts of AUS $1.3 billion were defeated in the Senate before a deal involving AUS $500 million of cuts was agreed to by Prime Minister Turnbull and the Leader of the Opposition Bill Shorten. On 15 September, the Department of the Environment and Energy released a Consultation Paper on Mandatory Reporting of Petroleum Statistics. Following the consultation period, the department issued its preferred design paper for mandatory reporting on 20 December. The expected changes are to be introduced in 2018, with enabling legislation expected in the autumn of 2017. The government anticipates that the new system will replace the existing voluntary reporting used to produce the Australian Petroleum Statistics (APS) Report. The APS is used to compile Australia’s official energy statistics and meet reporting requirements under the United Nations Framework Convention on Climate Change, among other uses. A key factor in the government’s decision to introduce mandatory reporting is to ensure that the APS provides accurate, timely, and relevant statistics. Under the current voluntary reporting, many petroleum companies decline to participate or participate intermittently. A senate inquiry into oil and gas production in the Great Australian Bight was re-adopted on 13 September after lapsing at the senate dissolution following the last federal election. The inquiry will examine the potential environmental, social, and economic impacts of an exploratory oil drilling project currently planned by British Petroleum, and any future oil or gas production in the Great Australian Bight. The reporting date is set for 29 March 2017. At the state level, on 22 November, the Victorian government introduced the Climate Change Bill 2016 into Parliament. This bill gives effect to most of the commitments made by the government following the 2015 independent review of the Climate Change Act 2010 (Vic) (see volume 26 of this yearbook, 393). If passed, the bill will repeal and re-enact the current act. The bill’s measures include: emissions reduction targets (including a long-term target of zero net emissions by 2050 and interim five-yearly targets to start from 2021); a mandate for the Victorian Environmental Protection Authority to regulate greenhouse gas emissions; ‘pledges’ to reduce emissions, mirroring the approach taken internationally; and a ‘whole of government’ focus on emission reduction. In August the Victorian government announced a moratorium on the exploration and development of an on-shore unconventional gas coal seam gas in Victoria, including coal seam gas and hydraulic fracturing. The Resources Legislation Amendment (Fracking Ban) Bill 2016 (Vic) was introduced into Parliament in December to effect a permanent legislative ban on these activities. (C) Case Law A controversial coal mining project in the Galilee Basin in the state of Queensland has been the subject of legal challenges since 2014. As noted in previous years of this report, judicial review applications and applications for appeal relating to the Alpha Coal Project proposed by Hancock Coal were brought by the Coast and Country Association of Queensland (CCAQ), represented by the Environmental Defenders Office Queensland (EDO Qld). The CCAQ sought review of the decision to grant a mining lease and associated permission to conduct the environmentally relevant activities (which is required under the Environment Protection Act 1994 (Qld) and is termed an ‘environmental authority’). The proposed mine would result in substantial global greenhouse gas emissions, extracting 40 million tonnes of coal annually (see volume 26 of this Yearbook, 393–4; volume 25 of this Yearbook, 474–5). After applications in both the lower Queensland Land Court and the Supreme Court of Queensland were dismissed in 2014 and 2015 respectively, the CCAQ filed an appeal to the Queensland Court of Appeal that was heard on 7 June and delivered on 27 September (Coast and Country Association of Queensland Inc v Smith & Ors  QCA 242). The appeal was dismissed, with the CCAQ ordered to pay costs. The CCAQ filed an application for special leave to appeal to the High Court of Australia in October. Meanwhile, another major coal mine in the Galilee Basin is the proposed Adani Carmichael mine, which, if developed, would become one of the largest coal mines in the world (volume 26 of this Yearbook, 394–5). The mine has now received state approval from the Queensland government. Litigation opposing the Adani Carmichael coal mine has challenged the federal government’s approval of the proposed mine for several reasons, including the climate change effects if the mined coal is subsequently burned (‘scope 3 emissions’). The Convention for the Protection of the World Cultural and Natural Heritage and the effects of global warming on the Great Barrier Reef were part of the claim for judicial review brought by the Australian Conservation Foundation. The Federal Court dismissed the application on 29 August in Australian Conservation Foundation Incorporated v Minister for the Environment ( FCA 1042). The decision has been appealed. (3) Biodiversity (A) Reform of National Environmental Law The Australian government remains committed to establishing what it calls a ‘One-Stop Shop’ for environmental approvals. This includes a proposal to devolve powers to the states for approving major development projects, including those impacting on world heritage areas, threatened species, water resources, and uranium mining (volume 26 of this Yearbook, 395; volume 25 of this Yearbook, 475–6). Bilateral agreements for approval and assessments have been drafted between the Commonwealth and each state and territory. However, the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014, which would formally implement the bilateral agreements, lapsed in April. It is unclear whether or when the bill will be re-introduced. (B) Threatened Species Australia introduced its first Threatened Species Strategy in 2015 (volume 26 of this Yearbook, 395), which set out targets for improvements to twenty mammals, twenty birds, and thirty plant species on national threatened species lists. On 22 January, the eight remaining mammals and eight remaining birds were announced for the Strategy’s 2020 targets as well as additional initiatives for the Leadbeater’s possum and Christmas Island frigatebird. Australia also submitted a number of proposals at the seventeenth Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, all of which were adopted by a consensus of the parties (<http://www.environment.gov.au/biodiversity/wildlife-trade/cites/cop17>). (C) Illegal Logging Regulations Development of the Australian government’s policies on illegal logging continued in 2016. In December 2014, the Australian government announced an independent review of the impact of Australian laws to combat illegal logging on small business (Illegal Logging Prohibition Act 2012 (Cth); Illegal Logging Prohibition Regulation 2012 (Cth); and see volume 26 of this Yearbook, 396 and volume 25 of this Yearbook, 476–7). The laws establish offences and due diligence requirements around importing or processing illegally logged timber or timber products. The initial ‘soft-start’ compliance period had been set to end on 30 May, but this has been extended until early 2017. Following the publication of the review report and response, the Department of Agriculture and Water Resources published a consultation regulation impact statement in November outlining six potential regulatory options. The department has said that these options ‘seek to improve the trade-off between the cost of complying with “due diligence” requirements and the risk of illegally logged timber entering the Australian market.’ A full statutory review of the broader illegal logging framework will also be conducted in 2017. (4) Marine (A) Marine Reserves In 2012, Australia created the world’s largest representative network of marine protected areas (MPAs) in the world, expanding current reserves from one million to more than three million square kilometres. This was completed under a previous Labor government. When the administration changed in 2013, the then incoming prime minister, Tony Abbott, announced a review of the reserves system (see volume 25 of this Yearbook, 477–8; volume 24 of this Yearbook, 516–17; volume 23 of this Yearbook, 518). This review process has taken three years. On 5 September, the report of the Australian government’s Commonwealth Marine Reserves Review was completed. Among its recommendations were significant changes to the largest part of the reserve network in the Coral Sea. On the same date that the report of the review was released, the minister for the environment and energy announced a public consultation process to create new management plans for the reserves network. (B) Proposed East Antarctic Marine Protected Area After significant efforts to establish two MPAs in Antarctica (see volume 26 of this Yearbook, 397), the 2016 meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in Hobart secured an agreement for a new MPA in the Ross Sea region of the Southern Ocean. This proposal has been submitted by New Zealand and the United States (CCAMLR-XXXV/25 Rev. 1) and will cover 1.55 million square kilometres. Another proposal for a further MPA that would cover 1 million square kilometres in East Antarctica, submitted by Australia, the European Union, and France, has not yet been agreed upon but will be considered again at next year’s meeting. In 2016, Australia also launched a broader Australian Antarctic Strategy and Twenty-Year Action Plan (<http://www.environment.gov.au/minister/hunt/2016/mr20160427.html>). (C) Whaling Following Australia’s successful legal action against Japan in the International Court of Justice (ICJ) in 2015, which led to Japan varying its acceptance of the ICJ’s compulsory jurisdiction, Australia led two resolutions at the International Whaling Commission (IWC) in 2016 that put pressure on Japan to end its scientific whaling programs (volume 26 of this Yearbook, 397; volume 25 of this Yearbook, 479–80; volume 23 of this Yearbook, 520; volume 22 of this Yearbook, 572). The first resolution would see scientific whaling subjected to greater international scrutiny (IWC Res 2016-2). Previously, the IWC had delegated the review of scientific whaling to its Scientific Committee, rather than undergoing detailed consideration by the commission itself. The second resolution calls for an independent review of the commission to improve its transparency and accountability and bring it into line with best practices for multilateral treaty bodies (IWC Res 2016-1). Both resolutions were adopted. (D) Vessel Strike of Marine Species The Department of the Environment and Energy released the Draft National Strategy for Mitigating Vessel Strike of Marine Mega-Fauna in January for public consultation. The draft outlines a framework for identifying species most at risk from being struck by marine vessels such as whales, dolphins, turtles, and dugong, areas where this is most likely to occur, and suggested management measures. The strategy is intended to cover vessels from large ocean-going commercial ships to small recreational boats and jet-skis. The draft notes that it is likely that there will be a significant growth in the number of recreational vessels in Australia as the population increases. (E) Plastics and Microbeads Pollution, especially marine pollution, from plastics and microbeads was a topical issue in Australia in 2016. After many years of campaigning from interest groups, the states of New South Wales and Queensland committed to introducing container deposit schemes in coming years to address marine pollution from discarded drink containers (<http://www.epa.nsw.gov.au/waste/container-deposit-scheme.htm>; <http://statements.qld.gov.au/Statement/2016/7/22/container-deposit-scheme-for-queensland>). These states join South Australia, which has had container deposit legislation since 1977 (<http://www.epa.sa.gov.au/environmental_info/container_deposit>). The Queensland state government also announced in 2016 a plan to ban lightweight, single-use plastics bags by 2018, including degradable and biodegradable bags (<http://statements.cabinet.qld.gov.au/Statement/2016/11/25/palaszczuk-government-releases-discussion-paper-seeking-public-feedback-on-plastic-bag-ban>), and the federal government has announced research programs into plastic waste and microbeads (<http://www.environment.gov.au/minister/hunt/2016/mr20160229.html>; <http://www.environment.gov.au/minister/hunt/2016/mr20160229a.html>). (5) World Heritage (A) Great Barrier Reef Australia’s Great Barrier Reef continues to face serious threats, including from climate change, pollution, development, and fishing. As noted in previous reports, concerns for the reef have crystallized around proposals for a port development and dredging within, and close to, the Great Barrier Reef world heritage area. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) World Heritage Committee (WHC) has been closely monitoring the reef since the proposals came to its attention (volume 26 of this Yearbook, 398–40; volume 25 of this Yearbook, 481–2; volume 24 of this Yearbook, 519–20; volume 23 of this Yearbook, 520–1; volume 22 of this Yearbook, 573). Surveys from a National Coral Bleaching Taskforce in 2016 documented significant coral bleaching across more than 1,000 kilometres of the Great Barrier Reef. The State of the Environment 2016 noted that coral bleaching events, which were caused by record high water temperatures and climate extremes, were not limited to the Great Barrier Reef but were also recorded in other coastal reefs in Australia. The Australian government has introduced several measures to provide greater protection to the reef, including its Reef 2050 Plan (volume 26 of this Yearbook, 399; <http://www.environment.gov.au/marine/gbr/long-term-sustainability-plan>). Australia was required to provide an update on its progress on implementing the Reef 2050 Plan to the WHC and the International Union on the Conservation of Nature (IUCN), which was presented on 1 December. This progress update does not, and did not intend to, report on the state of the reef. Instead, it provides a summary of actions in progress to meet the WHC’s request that Australia demonstrate that the inception of the plan has been effective (<http://www.environment.gov.au/marine/gbr/long-term-sustainability-plan>). The report notes that the majority of actions in the reef plan are classed as ‘on track/underway.’ Also in 2016, the owners of the ship Shen Neng 1 agreed to pay AUS $39 million to the Commonwealth after the ship ran aground on the Great Barrier Reef at Douglas Shoal in 2010, causing the largest known direct impact on the reef (<http://www.environment.gov.au/minister/frydenberg/media-releases/mr20160919.html>). The Commonwealth had originally sought AUS $120 million in remediation costs, which included recovering hundreds of kilometres of paint containing the highly toxic anti-fouling agent tributyltin that had covered an estimated 121 hectares of the shoal. At the request of the Australian government, references to Australian sites were removed from a report entitled World Heritage and Tourism in a Changing Climate that was released on 26 May 2016 by UNESCO, the United Nations Environment Program, and the Union of Concerned Scientists (<http://whc.unesco.org/en/news/1500/>). (B) Plans to Log World Heritage-Listed Forests Dropped The past year saw the end of efforts by the Australian federal and Tasmanian state governments to log world heritage-listed forests in the Tasmanian Wilderness World Heritage Area (TWWHA) (volume 25 of this Yearbook, 482; volume 24 of this Yearbook, 520). Following the release of a UNESCO report in March following its monitoring mission to the TWWHA, both the state and federal governments announced that they had accepted all of the recommendations and would not be pursuing plans to allow logging in the area (<http://www.premier.tas.gov.au/releases/monitoring_mission_report_on_the_twwha>; <http://whc.unesco.org/en/list/181/documents>; <https://www.environment.gov.au/minister/hunt/2016/mr20160320.html>; Report of the joint International Council of Monuments and Sites/IUCN Reactive Monitoring mission to the Tasmanian Wilderness (Australia), 23–9 November 2015 <http://whc.unesco.org/en/list/181/documents>). (6) Trade and Environment (A) Trans-Pacific Partnership (TPP) The TTP, as featured in previous reports is no longer likely to enter into force given that the newly elected US administration under President Donald Trump has withdrawn from the deal (volume 26 of this Yearbook, 376). The text of the TPP includes an Environment Chapter and novel institutional mechanisms for Australia, such as a North American Free Trade Agreement-like consultation and dispute settlement mechanism. Australia is currently pursuing a range of other regional free trade agreements, but it is unclear whether they will also include provisions relating to trade and the environment. (7) Participation The future of public interest environmental litigation in Australia remains in question, with no definitive answer as to whether the current Turnbull government will continue with its predecessor’s proposed reforms to remove standing provisions in the Environment Protection and Biodiversity Conservation Act (EPBC Act) (volume 26 of this Yearbook, 401–2; volume 25 of this Yearbook, 484–5). Standing provisions allow certain individuals and organizations to seek judicial review of decisions made under the EPBC Act (s 487). The Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (Cth) lapsed on 17 April 2016. The Bills Digest notes that the government is concerned about ‘“vigilante” litigants disrupting and delaying key infrastructure projects’ and that the bill is a response to the successful challenge by the Mackay Conservation Group of the decision to approve the Carmichael mine (see above at 2(C)). The State of the Environment 2016 report notes that ‘citizen science’ has increased in Australia, with improved public observations of the environment in areas such as the health of the reef. The five-year report is itself an important avenue for the reporting and monitoring of environmental issues in Australia. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: email@example.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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