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Law of the wetlands

Law of the wetlands

NSW’s Gwydir wetlands have, for the third time, been severely damaged by clearing. Are calls to overhaul state and federal environmental protection laws justified? Kate Gibbs…

NSWs Gwydir wetlands have, for the third time, been severely damaged by clearing. Are calls to overhaul state and federal environmental protection laws justified? Kate Gibbs investigates

ENVIRONMENTALISTS ARE describing it as one of the worst illegal land clearing incidents in Australian history. A stretch of the Gwydir wetlands in New South Wales has been flattened, and the Australian Greens party is pointing fingers at what it calls inadequate laws to protect the wetlands.

According to a report last week by the ABC’s Lateline, two years ago the Gwydir wetlands were an internationally recognised site with thousands of birds nesting. Now, it reported, the water has run dry and a local farmer has bulldozed up to 750 hectares of surrounding vegetation.

The Wilderness Society has also condemned the clearing of what it says it between 500 and 750 hectares of native vegetation on a property within the Gwydir River floodplain.

“The bulldozing of native bush on this scale in the Gwydir wetlands region will be catastrophic to the huge array of migratory birdlife it supports,” said NSW campaigner with the Wilderness Society, Reece Turner.

Sixty kilometres west of Moree in the north-west of NSW, the Gwydir wetlands include four wetlands that make up a Ramsar site — a protection given to it by the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The site is a mixture of freehold and perpetual leasehold lands, managed by private landholders.

In the ABC report, Professor Richard Kingsford from the University of New South Wales claimed that clearing of this scale is “akin to rainforest clearing in the sense that it probably would take 100 to 200 years to establish all of its functionality”.

Furious at the ecological devastation, Australian Greens senator Rachel Siewert has argued that state and Commonwealth environment laws are inadequate to protect Australia’s iconic wetlands.

Siewert claimed that although the federal Department of the Environment and Water Resources could “neither confirm nor deny” that an application to clear an area of land on the Gwydir floodplain had been made to the NSW Government, it had known about the clearing since April this year.

She added that there is not an adequate system in place to protect the region from land clearing. “Irrespective of whether or not there was an application, there is no formal process for a state government to notify the Commonwealth of an application that will adversely affect an area of environmental importance like the Gwydir,” Siewert said.

Under the EPBC Act, the Gwydir wetlands are protected by the international Convention on Wetlands (signed at Ramsar, Iran, in 1971) to be of international importance. Migrating birds travel through the area to breed and nest each year.

In an interview with Lawyers Weekly, Freehills solicitor Jason Johnston said the Act prohibits anyone to take an action, which is broadly defined but includes land clearing, that has or is likely to have a significant impact on the ecological character of a declared Ramsar wetland.

According to Johnston, contravening the relevant sections of the Act attracts several penalties — up to 5,000 penalty units for an individual and 50,000 for a company for a civil liability. There is also a possible criminal liability if the action does result in a significant impact of an ecological character.

But the basic regime is that it is up to individuals to decide whether the action they are proposing to take will have a significant ecological impact. Johnston explains that if a person thinks it will, then they refer the matter to the Commonwealth Minister for the Environment and Water Resources, and the minister will make a determination about whether it is a so-called controlled action. “If so, then you have to go through the approval process,” he said.

“But the point is, it is up to the individual landowner to say ‘oh well, the activity that I am about to do might have a significant impact on some matter that is protected by the EPBC Act, so I had better refer it’,” Johnston said.

There are also provisions in the Act whereby state agencies that become aware of a matter they believe may be covered by the EPBC Act, they refer it to the Commonwealth minister. “But it is not an obligation, it is only an enabling provision,” Johnston said.

The Greens’ Siewert argues that in this way the Commonwealth “simply relies on an informal network of environment law specialists keeping each other informed”.

She labelled the situation “ridiculous”, noting that the state can tell the landholder their actions would have EPBC implications, but it is not required to inform the Commonwealth if a clearing permit has been granted or applied for.

“If a developer or landholder, as in this case, does not notify the Commonwealth of their proposed activity, the first the Commonwealth knows is when the bulldozers roll in,” she said.

“This is totally unsatisfactory. The whole thing depends on an informal communications network, and when communications break down the results can be irreversible,” she said.

According to Johnston, the Greens are proposing that NSW authorities, who have to give NSW approval for any land clearing, may have been aware that this was Ramsar wetland and that there would be implications. “There are informal arrangements whereby you’d normally expect them to alert Commonwealth departments, but there is no obligation to do so and it appears that it hasn’t happened in this case,” he said.

While Senator Siewert calls for an overhaul of the current system, Freehills’ Johnston explains that the EPBC Act is trying to achieve a careful balance between imposing heavy burdens on individuals, and preventing illegal actions on the land.

“They are trying to provide significant protection for a matter that comes within its scope, without imposing a really onerous obligation on individuals to refer every conceivable matter that would have any impact at all on any of the protected matters,” said Johnston.

“It is not a regime like the state pollution laws or the state environmental law where you have to get the permit before you do anything. It is up to individuals to decide that they will be at risk if they do not.”

In October 2004, the Federal Court of Australia imposed a record $450,000 penalty on a NSW farmer and his company for illegally clearing land in the Gwydir wetlands. The penalty followed the Court’s decision in June that year that found Ronald Greentree and his company, Auen Grain Pty Ltd, had contravened the EPBC Act as a result of clearing, ploughing and wheat-cropping activities conducted within the Gwydir Ramsar wetlands. The Court fined Greentree $150,000 and his company $300,000 for significant impacts caused to the wetlands. The Court issued an injunction preventing Greentree from taking any further agricultural activity on the land, and from running livestock on the site until at least 2007.

Freehills’ Johnston said that while clearing in the Gwydir wetlands is not common practice, “as it happens there have already been three cases, all involving essentially the same individual, under the EPBC Act, also for land clearing in the Gwydir”.

Johnston offered his own personal view to Lawyers Weekly, noting that “if this has really happened, and these very precious wetlands are substantially damaged or even destroyed, then it really is a very great shame”.

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