Environmental Law in Australia

free essayNatural resources are limited, and without controlled use and effective management, they will become depleted very fast. In today’s world, pollution and destruction of natural resources has gained global attention. It is worth to note that pollution of the environment is not constrained within geographical borders; instead, its effects spread across countries and continents. As a result, world governments and other responsible authorities have risen to mitigate further destruction of the natural resources to promote sustainability. For instance, in Australia, there are legislations that have been enacted to safeguard the environment against misuse and destruction by humanity.

The Environmental Protection and Biodiversity Conservation Act of 1999

This legislation was enacted in 1999 with the aim of protecting the environment and the ecosystem, especially within the areas acknowledged being of national importance. It is regarded as the nationwide environmental law in Australia. It, therefore, implies that all the matters addressed by the legislation are of national significance (EPBC Act 2009). EPBC Act further applies to functions done on the land of the Commonwealth of Australia, as well as those by the government of Australia and its agencies that might have tremendous influence on the environment. This law calls for any person who intends to carry out an activity that can create a considerable impact on the environment to get consent from the environment minister first. Once the project is submitted to the office of the Australian environment minister, its impacts on the ecosystem are evaluated, and decision made on whether to grant the approval or not (EPBC Act 2009). The evaluation process is very thorough and is carried out by a certified institution such as the Department of Environment, Water, Heritage and the Arts.

In addition to individuals and organisations, local governments in Australia are supposed to get authorization from the country’s environment minister in case they are intending to undertake an activity that will touch on an issue that is regulated by the EPBC Act. This subject is hence accorded very serious considerations in order to ensure sustainability in the future (Smith & Ogle 2002). For instance, if a person or an organisation plans to engage in projects that require cutting the indigenous vegetation, controlling pests or diverting the natural water course, they require authorization first (McGrath 2005). Such activities that portray tremendous impact on national matters are referred to the environment minister, who is supposed to assess them and decide on whether to give endorsement or not. After presenting a proposal to the environment minister for approval, the following requirements are supposed to be met (Bates 2002). First of all, the action by the individual of the organisation should not create a significant impact on the World heritage standards of an acknowledged world heritage asset (McGrath 2005). Moreover, the person or the organisation ought not to undertake an action that is likely to cause significant impact. Thus, the proposal will be declined if the action has or is expected to have a significant impact on the environment.

The Hypothetical Case

The issue involves a property owner whose 4,000 hectares of land border and even form part of the Ramsar declared wetland. She intends to increase her economic activities and, therefore, she wants to clear 150 hectares of land, which is within the declared wetlands and close to Cessnock River. She goes ahead and clears around 200 hectares, which is way beyond the initial intended value. Besides, the landowner interferes with the biodiversity of the area because the cleared region harboured dry sclerophyll forest. The forest provided a habitat for many threatened species in New South Wales. Furthermore, the forest is a home for the Dwarf Eastern Sun Bat (DESB), which shares a symbiotic relationship with the tree. The bat benefits by eating leaves of these trees while the tree gains from being pollinated. DESB was found to aid in pollination of Eucalyptus insectivus among other plants. Shannon does not like the dry sclerophyll forest vegetation and, as a result, she intends to do away with it as much as she can. Destruction of these tree species will create a significant impact on biodiversity in the area no matter how gradual it may be done. This implies that Shannon violated the EPBC Act and should not be allowed to continue with her plans. Her actions are found to cause significant impact on the ecosystem in the area. The environmental law is empowered with considerable criminal and civil punishments for those who violate it. Also, this legislation gives permission to the general citizenry to seek a court ruling that will prevent and even halt an activity that has the potential to cause tremendous impact on the nationally guarded resources. This calls for the public participation in the process of safeguarding and implementing environmental legislations.

The Department of Sustainability, Environment, Water, Population and Communities defines wetland as areas of lands where water covers the soil all year or at certain times of the year. Wetlands can be natural, like the Cessnock Wetlands, or can be artificial. The water found in the wetlands can be fresh, saline or flowing like in the case of Cessnock Wetlands. In this case where Dr. Chambers is seeking to obtain an injunction to stop Shanon from making further clearing to expand her agricultural area, it would be important that he demonstrates the importance of wetlands to the courts. Some of the significant roles played by Cessnock Wetlands that Dr. Chambers should prove to the courts include how they reduce the impact of floods from Cessnock River, its role in absorbing pollutants and improving water quality.

Dr. Chambers could also argue that there is an international obligation to conserve wetlands. The international obligation accrues from the Ramsar Convention on wetlands. This convention was signed in 1971 and aims to stop the worldwide loss of wetlands by encouraging proper management of the current wetlands (The Ramsar Convention on Wetland 2013). Since the Cessnock Wetland has been identified as one of the Ramsar Site, the state has already put in place a management framework whose purpose is to protect, conserve and ensure that wetlands are used wisely. By clearing the land that is within the Ramsar declared Cessnock Wetlands, Shannon will be contravening the Ramsar convention treaty rules and regulation.

Many lands that are government protected In Australia are for the conservation of forests and other terrestrial ecosystems. Of the protected areas, the national parks are the prevalent covering about 60 million hectares (Stubbs n.d.). The Environmental Protection and Biodiversity Act of 1999 is the principle commonwealth legislation that establishes management of protected areas. The Act has established the Director of National Parks who is responsible for; administration, management and control of Commonwealth reserves and conservation zones, conservation and management of biodiversity and heritage in Commonwealth reserves and conservation zones. The Director of National Parks also researches and investigates during the establishment and management of national parks and nature reserves (2013). This being the case, Dr. Chambers should bring the court the fact that the Cessnock Wetlands National Park falls under the protection of the EPBC Act of 1999. Shannon, therefore, is supposed to be prevented from her ongoing clearing of land because some of the area she intends to clear is within the Cessnock Wetlands National Park, which is protected by the Director of National parks.

Environmental areas that are listed in by the Commonwealth and the government Acts of environmental protection include the World heritage sites, national heritage sites, and wetlands of national importance. The animal species that are listed for protection involve nationally threatened species, common marine life and migratory species. The importance of this listing is that it provides protection to the environment and especially matters of national environment significance. These listings go a long way in protecting Australia’s biodiversity and international biodiversity by controlling international movement of wildlife, protecting the national heritage and promoting ecologically sustainable development (Environment Protection and Biodiversity Conservation [EPBC] Act 1999 2011). By clearing the Eucalyptus insectivus, Shannon will be doing harm to the areas biodiversity in that she will have destroyed DESB’s habitat together with that of other wild life found in that area. This will destabilize the area’s ecological system greatly.

The best Commonwealth legislation that Dr. Chambers should use in this case is the Environmental Protection and Biodiversity Conservation Act 1999. This because the Act affects landowners like Shannon, developers, industries, farmers, councils, state and territory agencies together with commonwealth agencies. Under the EPBC Act, those planning to carry out any activity on a national park or a wetland of international importance are to find out whether the activity has a significant effect on the surrounding environment. The Act thus requires looking carefully whether the development would impact the wetland, the development would affect any species of threatened plants, animals, or ecological communities, whether the activity will affect world or national heritage places and finally whether the development will affect migratory animals (EPBC Act 1999 2011). In this case, the defendant, Shannon, clearly seems not to have taken all of the above factors into consideration and worse still, she had not applied for approval to proceed under the EPBC Act.

In presenting his case, Dr. Chambers could utilise the precautionary principle to obtain a court injunction on Ms. Shannon. Since the 1980’s, the precautionary principle has been used widely applied in environmental laws and is mostly applied in areas such as climate change, hazardous waste and ozone layer depletion, fisheries management and general management of the environment. The precautionary principle gives Dr. Chambers an advantage as it states that in protecting the environment preventive action should be taken. What is more, environmental damage is expected to be rectified at the source and those contributing to the pollution are to pay. It goes ahead to state that in case of serious threat to the environment, lack of scientific certainty should not be used for delaying environmental protection measures (Stein 1999). Dr. Chambers, therefore, having these facts will prove beyond a reasonable doubt that the clearing of land being carried out by Ms. Shannon may cause irreversible damage to the environment surrounding her Chateau Plonk. As a penalty for ignoring the Commonwealth and the national environmental acts, Ms. Shannon should be made to pay a fine as will be determined by the courts, and also re-plant the already destroyed Eucalyptus insectivus tree species.

Similar Cases: Booth v. Bosworth Case

The outcome of our hypothetical case can be predicted by focusing on a similar case between Dr. Booth and Frances Bosworth. This case was filed in October 2001 at the Federal Court under the EPBC Act. It illustrated the immense value of third party’s rights, which showed that the EPBC Act could be taken outside a World heritage area that would probably create a considerable force on its values. Dr. Booth argued that Frances Bosworth and his colleague Rohan who were farmers had installed an electric fence around their farm to protect their crops and ended up electrocuting thousands of flying foxes. Although they had not obtained legal permission to kill the animals in a bid to protect their crops, they were not prosecuted by the government of Queensland (Environmental Defenders’ Office 2013). The Federal government did not also take any action. Nevertheless, later on, a ruling was made against the farmers because the use of an electric grid was found to cause a tremendous impact on the population of flying foxes in the area. The court found out that there were approximately 18,000 flying foxes that were killed during one plant season in 2000 (Environmentail Defenders’ Office 2013). The judge ruled out that if the lives of the flying foxes were at danger and their species would be lost if they continued to be killed at that rate. Mr. Bosworth’s application to the environment minister in 2002 was declined, which became the first ever to be rejected under the Act.

In addition, depletion of flying fox species would create a great impact on the biodiversity of the World heritage area. Booth v. Bosworth case can require us to find out clarifications on some of the concepts used in the environmental law. For instance, it raised the need to understand the meaning of an event that had a significant impact. A great effect would refer to an occurrence that is vital, outstanding, and one that has regard to its framework or intensity. However, it is worth to note that an activity will most likely create a noticeable influence depending on the nature and degree of the impact (Bienen & Tabor, 2002). Additionally, other factors for considering include its worth, quality of the environment where it is impacted, and size as well as geographic degree of the effect. Therefore, in the Booth v. Bosworth case, installation of an electric grid was an action that created a significant impact on the population of flying foxes and the entire ecosystem of the area (Environmental Defenders’ Office, 2013).