PERPETUAL POLLUTION

 A highly successful roadshow was conducted locally over the last weekend in July, focussed on the social, environmental, cultural and economic threats posed by mining.

 The events, held at Copmanhurst, Grafton, Drake and Dorrigo, were organised by the Clarence Catchment Alliance which had invited the Environmental Defenders Office to advise landowners of their rights when approached by a mining company requesting access to their properties.

 Among the many threats that are posed by mining, is the potential, particularly in mountainous landscapes in high rainfall areas, of the pollution of waterways as a result of tailings dam failure. However, a lesser-known pollution threat comes from acid mine drainage (AMD), aka acid rock drainage.

 AMD occurs naturally when sulphide minerals in the waste rock from mining react with air and water to form sulphuric acid. This acid leaches out metals in the rock, which can enter nearby waterways, or even seep into groundwater.

 In the USA it’s been described as the largest environmental problem facing the mining industry, with the international organisation, Earthworks, presenting a stark picture of the impacts, describing it as “perpetual pollution”. This is because it can continue indefinitely, long after mining has ended. They point to a literature review that concluded that “no hard rock surface mines exist today that can demonstrate that large scale acid mine drainage can be stopped once it occurs”.

 AMD also occurs across Australia, including here, in the Clarence River catchment. Drake’s Mt Carrington mine has long been known for AMD, and was responsible for polluting Sawpit Creek, a tributary of the Clarence, in the mid-1990s, and is likely still seeping into the river today, despite significant expenditure by both the mining companies responsible, and NSW taxpayers.

The NSW Derelict Mined Lands Rehabilitation Program spent $155,000 on AMD rehabilitation in the Drake area in 1996, with a further $100,000 budgeted for 1997, and ongoing expenditure ever since.

Now, following a string of failed mining ventures at Mt Carrington, Legacy Minerals, has acquired the mine, announcing yet more exploratory work.

 Can we really afford the risk?

 

-        John Edwards

 Published in the Voices for the Earth column in The Clarence Valley Independent , 6th August, 2025.

A SAD DECISION FOR NATIONALLY THREATENED SPECIES

 NORTH EAST FOREST ALLIANCE

Media Release January 10 2024

Justice Perry ‘s judgement of today in North East Forest Alliance vs The Commonwealth of Australia is that no contemporaneous assessment is required before extending Regional Forest Agreements beyond the originally intended 20 years, noting:

the question of whether or not to enter into or vary an intergovernmental agreement of this nature is essentially a political one, the merits of which are matters for the government parties, and not the Courts, to determine.

NEFA objected to the Governments extending the North East NSW Regional Forest Agreement in 2018 based on 1997 data, without requiring a new assessment, it is therefore extremely disappointing that after a 5 year legal battle this process of not requiring a contemporaneous assessment has been legally validated, NEFA President Dailan Pugh said.   

“This judgement means that it is valid to roll over Regional Forest Agreements (RFAs) forever-more based on data collated in 1997 and politicised outcomes that ignore the science, including the rapidly increasing extinction risk faced by many forest fauna and the accelerating impact of climate heating upon them and forests. 

The original North East NSW forest agreement was made unilaterally by NSW in 1998 based on a 1997 assessment, and was only intended to last for 20 years, after which a new assessment was promised. This was adopted for the joint NSW-Commonwealth RFA in 2000.

After the 20 years was up, in 2018 Premier Gladys Berejiklian and Prime Minister Scott Morrison decided that they would not do a new assessment and, without any consideration of climate change, extended the existing RFA indefinitely as a variation.  

This decision was strongly objected to in 2018 by then opposition environment spokesperson, Penny Sharpe, who said the science underpinning the RFAs is out of date and incomplete, committing that ALP Labor will not sign off on a rollover of the RFAs until there is a proper, independent, scientific assessment of their outcomes, and the assumptions of the original RFAs are revisited. (3)

“The decision to not require a new assessment put at risk the survival of a multitude of species that have rapidly declined since 1997, including many nationally threatened species that are not adequately protected under NSW’s logging rules and are being significantly impacted” Mr Pugh said.

NEFA have identified that within north-east NSW’s State forests that are currently being logged, or proposed for imminent logging, there are nationally significant populations of over 11 nationally threatened animal species and 13 plant species. Of particular concern are the Endangered Koala, Southern Greater Glider, Spotted-tailed Quoll, Hastings River Mouse, Rufous Scrub Bird, and Giant Barred Frog.

We are in the midst of extinction and climate crises, aggravated by the 2019/20 wildfires, rising temperatures and logging, so it is reprehensible that these species are still not receiving the immediate increase in protection Professor Samuel’s review of the RFAs identified as needed back in 2020, said NEFA vice-president Susie Russell.

“It is time for Tanya Plibersek to provide the immediate protection for threatened species identified as required by Professor Samuel in 2020 and for Penny Sharpe to step up and end this sham RFA”, Ms Russell said.

NEFA thanks the Environmental Defenders Office (EDO) for their work in mounting this case, and for the counsel who acted on our behalf: the now Hon Justice Kirk of the NSW Court of Appeal, Claire Roberts and James Johnson.

LEGAL CHALLENGE TO FOREST MANAGEMENT IN NSW

The Environmental Defenders Office (EDO) is challenging the NSW Regional Forest Agreement (RFA) in the Federal Court on behalf of the North East Forests Alliance (NEFA),    The North East RFA, which covers logging in the coastal area from Sydney to the Queensland border, was renewed in 2018 for a further 20 years with rolling extensions that could continue indefinitely.

There are ten RFAs around Australia with three in NSW - the North East, the Southern and Eden.

The RFAs signed between the State and Commonwealth exempt native forest logging from federal biodiversity and approval requirements under the federal Environment Protection and Biodiversity Conservation (EPBC) Act. 

NEFA has for years been concerned about the impact that the RFA has had on vulnerable and endangered species such as Koalas, Greater Gliders, Regent Honeyeaters and Rufous Scrub-birds in our region’s native forests.  This impact has been made worse following the devastating North Coast fires of 2019-20 which killed so many native animals and damaged so much habitat. 

David Morris, EDO Chief Executive Officer said, “We are challenging the Federal Government over its failure to assess how another 20-plus years of logging, against a background of a changing climate, will impact our forest ecosystems, endangered species and old growth forests.

“The Commonwealth didn’t want to incur the costs of conducting a proper assessment, waving through a 20-year extension of native forest logging without proper scrutiny.

“Under the current system, if a population of koalas is being threatened by a new development, the project needs to be assessed at the Federal level.  But if the same population of koalas is being threatened by a logging project, it’s been rubber stamped on the basis of 20-year-old environmental assessments.”

Mr Morris emphasised the importance of agreements such as the RFAs being founded on the latest scientific knowledge on both climate and the state of our forest ecosystems.

Conservationists hope that historical case will lead to positive change in the management of our state forests and protection of the important native species which rely on them as habitat.

            - Leonie Blain

Published in the "Voices for the Earth" column in The Clarence Valley Independent , August 11,, 2021

BUSHFIRE SURVIVORS TAKE LEGAL ACTION

Any notion that climate change is an issue that could be dealt with effectively in some distant future has been shown to be untenable given events of the past few years.  Extreme weather events, severe droughts and longer and more catastrophic bushfire seasons have shown more people that there is a connection between these events and the growing  carbon emissions in the earth’s atmosphere.

Australians concerned about climate change are becoming increasingly frustrated with the ostrich-like attitudes of many of their politicians and government agencies.

One group which is taking legal action in an attempt to force a NSW government agency to do more on climate change is Bushfire Survivors for Climate Action which is taking the Environmental Protection Agency (EPA) to court because of its failure to better protect communities. 

Jo Dodds, president of the group, says that all its members have experienced a bushfire at first hand.  They believe that climate change is a major contributing factor to the cause and growing intensity of bushfires in Australia.

She said that the issue isn’t being taken seriously enough and “There’s a sense that the bushfires are over and we can get back to normal life after COVID-19 – but the fires are going to come harder and more frequently.”

The Environmental Defenders Office (EDO) is representing the group. 

David Morris, the EDO chief executive, said the EPA had “a statutory mandate to protect the environment … but the EPA don’t have a current policy to regulate greenhouse gas emissions.

“Those two things can’t co-exist.

“We’re simply asking the court to tell the EPA go and create environmental quality objectives with respect to greenhouse gas emissions, regulate the pollution and use their existing powers to do so.”

According to the EDO the EPA is in a unique position.  As an agency “with teeth”, it has the power to issue licences to control pollution, as well as putting caps and prices on substances which are harmful to the environment.

The case is listed in the NSW Land and Environment Court in Sydney on May 8.

            - Leonie Blain

This article was originally published in the VOICES FOR THE EARTH column in The Daily Examiner on April 27,  2020

NSW EMISSIONS BILL 'RETROGRADE' AND 'PURE POLITICS'

ENVIRONMENTAL  DEFENDERS  OFFICE  NSW

Media Release

The New South Wales Government has introduced legislation to prevent the regulation of greenhouse gas emissions from Australian coal burned overseas. The move came just days after the Government launched a review of the Independent Planning Commission, following a sustained advertising and lobbying campaign by the NSW Minerals Council.

25 October 2019: The Environmental Planning and Assessment Amendment (Territorial Limits) Bill 2019 was introduced into Parliament on Thursday.

EDO CEO David Morris greeted Wednesday’s announcement of the legislative package as indicating “an unwillingness to grapple with the serious local impacts from Australian coal burned overseas.”

“A day after the Minerals Council gave evidence to ICAC that they were lobbying privately and publicly for changes to the law, the Government has capitulated, without regard for current or future generations.

“It doesn’t matter where Australian coal is burned, it’s Australian communities that are and will increasingly feel the brunt of a changing climate. The Government’s decision artificially carves out climate impacts from Australian coal on local communities – that is an absurd decision.

“In 2019, as the rest of the world rapidly phases out fossil fuels, we should be urgently planning for a just transition for coal and gas communities and a safe climate for our children. Instead, the NSW Government wants to make it law to ignore Australia’s most significant contribution to the problem - emissions from exports. It would appear that this Government’s only plan for addressing the climate crisis is to turn a blind eye.

“The most significant climate judgment in this nation’s history was based on scientific evidence. The Rocky Hill decision made it clear – emissions from Australian coal are not something that happen ‘over there’, they have a deep and lasting impact here at home. That’s why we have to take responsibility for those emissions, and it’s appropriate our laws reflect that. A decision to remove that requirement would be a retrograde step and inconsistent with a science-based response to managing climate change.

“The greatest trick the Minerals Council has played is to hoodwink us into thinking that our export of fossil fuels has no effect locally. That is wrong. It is not based in science.

“As Professor Will Steffen said in the Rocky Hill case, “it is one climate system”. Because of that, burning NSW coal overseas impacts communities here at home. It defies logic that in a time of severe drought and bushfires, a political party claiming to be for and from the bush would legislate against consideration of climate impacts from Australian coal on our communities. Perhaps they don’t think the impacts of climate change on NSW communities matter. Perhaps they don’t accept the science. In either case, it is an indictment on the Government.

“The beauty of the Rocky Hill decision was its basis in science and fact. The appalling thing about the Government’s decision is that it’s based on pure politics and self interest.”

LAND CLEARING LAWS REINSTATED BY NSW GOVERNMENT

The Nature Conservation Council of NSW (NCC) had a short-lived victory in relation to the NSW Government's land clearing regulations last month when the Land and Environment Court found that they were invalid because they had been made unlawfully.  See the CVCC post on the NCC's media release about the court result.

The Environmental Defenders Office (EDO), which ran the case for the NCC, explained that the Minister for Primary Industries made a legal error in the making of the code.  He failed to obtain the concurrence of the Environment Minister, as he was legally required to do, before making the Code.

Commenting on the court decision,  the EDO's Chief Executive Officer David Morris said,"In conceding that they failed to follow due process, the Government gives the strong impression of making laws on the run. This is not simply a matter of incorrect paperwork.  Ecologically sustainable development is not just another box to tick - the Environment Minister has a legal responsibility to protect biodiversity in this state."

Following the court decision - and using the correct procedure this time -  the Government reinstituted the code without amendment.

Although the reinstatement was not unexpected, it was disappointing for the EDO and the NCC as it was done without addressing any of the serious concerns which were raised in the court challenge.

The second ground for the court challenge was that the Ministers for Primary Industry and the Environment did not take into account the legal principles of ecologically sustainable development as they are legally required to do.

This matter was not addressed by the court because, as the Government conceded the first ground, it did not have to answer the second ground for the court challenge.

Whether there is any possibility of a further challenge remains to be seen.

NSW LAND-CLEARING LAWS FOUND TO BE INVALID

The Nature Conservation Council of NSW (NCC) challenged the NSW Government's land-clearing laws in the Land and Environment Court.  Conservationists have been very concerned that these laws, a weakening of the previous state laws, would lead to a dramatic increase in the clearing of native vegetation and catastrophic biodiversity loss.  They also believed that the correct process  in introducing these laws had not been followed.

The NCCs media release on the decision is printed below.

9 March 2018

Court finds NSW Government land-clearing laws invalid

The Land and Environment Court today ruled the NSW Government’s land-clearing laws invalid because they were made unlawfully. 

“The government has bungled the introduction of one of its signature pieces of legislation, and in the process demonstrates its careless disregard for nature in NSW,” Nature Conservation Council CEO Kate Smolski said.

“Today’s ruling is an embarrassing admission of failure by the Berejiklian government and a great victory for the rule of law and the thousands of people who have supported us in taking this action.” 

The Nature Conservation Council, represented by public interest environmental lawyers EDO NSW, launched legal challenge against the government’s land-clearing codes last November. 

NCC had argued through its barristers Jeremy Kirk SC and David Hume the codes were invalid because the Primary Industries Minister failed to obtain concurrence of the Environment Minister before making the codes, as is required by law. The government today has conceded this was indeed the case. 

“It is deeply troubling that the government disregarded the important oversight role of the Environment Minister when making environmental laws, but we are even more concerned about the harmful content of the laws themselves,” Ms Smolski said.

“By the government’s own assessment, they will lead to a spike in clearing of up to 45% and expose threaten wildlife habitat to destruction, including 99% of identified koala habitat on private land.

“These laws were made against the advice of the scientific community and against the wishes of the vast majority of the many thousands of people who made submissions.

“It would be completely cynical for the government to immediately remake these laws without first correcting their many flaws and including environmental protections the community wants and the science says we need.

“Premier Berejiklian must act now to prevent further plundering of our forests, woodlands and water supplies by scrapping these laws and making new ones that actually protect the environment.”

Ms Smolski pledged to continue the campaign to overturn weak land-clearing laws.

“As the state’s peak environment organization, we will do everything we can to expose the damage of land clearing and will not stop until we have laws that protect nature,” she said. 

“These laws are a matter of life or death for wildlife. More than 1000 plant and animal species are at risk of extinction in this state, including the koala and 60 per cent of all our native mammals.

“Land clearing is the main threat to many of these animals, and the laws this government introduced unlawfully are pushing them closer to the brink.

“It is regrettable that we had to take the government to court to make it abide by its own laws, but it demonstrates the critical role organisations like ours play in our democracy.”

Note: While the date at the top of this post is listed as 8 March (obviously the date in the US at the moment), it is actually March 9 in Australia.