Curtis Island off Gladstone.
Curtis Island off Gladstone. Brenda Strong

Change in law could halt challenges on sensitive projects

A SMALL change to environmental laws moved last year could prevent a legal challenge to Environment Minister Greg Hunt's decision to approve dredging at Abbot Point, a coal mine in the Galilee Basin, and a new LNG export facility on Curtis Island.

The change would rule out any legal challenges to the decisions if the Minister did not take action on official conservation advice when approving such major projects.

But the changes, which were originally proposed to adjust for a recent Federal Court decision on the Tarkine National Park in Tasmania, also have a retrospective clause preventing similar legal challenges in the future.

The new legislation has been passed by the House, but is now the subject of a Senate inquiry, where environmentalists are fighting to have it rejected, while the mining industry says it is needed for investment certainty.

A research paper by the Parliamentary Library released this week further revealed the Environment Legislation Amendment Bill 2013 will protect three major projects under assessment in central Queensland.

That paper said, if passed, the new laws would protect the Abbot Point dredging project and Adani T0 project, Arrow Energy developments and a pipeline at Curtis Island and Clive Palmer's Waratah Coal Mine, from similar legal challenges.

"This will therefore provide those who may enjoy an advantage from such decisions with certainty that those decisions will not be challenged," the paper reads.

However, the paper questioned the need for making such a change apply to past decisions which failed to take into account official conservation advice.

It also questioned whether the amendment raised the issues of "how common this omission it thought to have been in decision-making involving the requirement to have regard to relevant approved conservation advice".

While Minister Hunt, in his second reading speech on the bill, said it would not affect the need to take advice into account, he said it would "ensure that past decision are not put at risk of being invalid".

His comments reflect similar issues raised by the Minerals Council of Australia in a submission to the Senate inquiry.

The resources lobby argued that "project proponents should not be disadvantaged where government is alleged to have failed to carry out its responsibilities".

It submission also pushed for the same protection to be "extended into the future" to protect the mining and resources industry from potential legal challenges based on government failures.

But the Australian Conservation Foundation instead argued that the proper way to address the problems from the Tarkine case was to ensure the Minister always took on official advice, not be allowed to ignore it.

The environmental group wrote that it went against "common sense and the spirit" of environmental laws that it was not a legal error to fail to take on such advice.

"The proposed change protects and therefore encourages sloppy or careless decision making instead of thoroughness and careful consideration," the ACF submission reads.

A Senate hearing on the bill is scheduled for next week, with a final inquiry report due mid-February.



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