Thursday, June 10, 2010

Environment (Amendment) Act 2010 ….What it means;

Environment Act 2000

The original Environmental Act 2000 was an excellent piece of state-of-the-art legislation. It came into force and was law on 1 January 2004. It states it is an Act to give effect to the National Goals and Directive Principles, in particular the 4th goal which deals with Natural Resources and Environment and to regulate the environmental impacts of development activities in order to promote sustainable development of the environment and the economic, social and physical well-being of people by safeguarding the life-supporting capacity of air, water, soil and ecosystems for present and future generations and avoiding, remedying and mitigating any adverse effects of activities on the environment; and to provide for the protection of the environment from environmental harm.

The Environment Act 2000 achieves this by requiring developers such as mining or oil and gas companies to apply for an Environmental Permit if their development is likely to cause environmental harm.

Environmental Permits

The process for an Environmental Permit is lengthy and it is intended to ensure that all stakeholders in development, including landowners, are informed about the activity that the developer proposes to do and its effect on the environment (sections 41 to 73).

So in the case of a proposed large mine, the miner gives notice of the preparatory work for the mine and then the Director (the Secretary of the Department of Environment) gives a notice requiring the miner to undertake an Environmental Impact Assessment (EIA) and such assessment must include environmental and social impacts and details of public review of the Environmental Impact Statement(EIS) and the approval in principle of the Minister for Environment and Conservation for the proposed activity. Before submitting the EIS, the miner must give an Inception Report to the Director which is a plan for the EIA and the Director if happy with the Inception report, approves it and the miner can proceed with compiling the EIS and then gives it to the Director.

When the Director receives the Environmental Impact Statement (EIS) he must assess it and he may call conferences or seek advice on it but then he must make the EIS available for public review.

When the Director is satisfied that the EIS describes the social and environmental impacts adequately and steps have been taken to minimize environmental harm, he may accept the EIS.

The Director then refers the EIS to the Environment Council along with his report and the public submissions.

When Council receives the EIS it has to consider the EIS , having regard to many matters including objects of the Environmental Act, any environmental harm, public submissions, best practice for the activity, any international treaties etc . If accepted the Environment Council will then make a recommendation to the Minister that approval in principle for the proposed activity be given and they must give written reasons why.
The Minister may then approve or refuse to approve the activity but he must give written reasons for his decision.

Once that approval has been given, the miner can now lodge an application for an Environmental Permit and will submit it along with the Environmental Impact Assessment.

The Director may then grant the permit if he is satisfied that environmental risk has been minimized, the activity will be carried out in accordance with environmental policies and that the activity does not contravene any international treaty, and he shall have regard to a long list of matters including the objects of the Environment Act, the general duty not to cause environmental harm, any public submission, best practice, public interest etc.

The Director can then grant the permit on conditions.

If a person is unhappy with the Director’s decision to grant the Permit, he may apply for a Review of the decision by the Environmental Council, and if he is unhappy with the decision of the Environment Council, he may appeal to the National Court.

Compensation under Environment Act 2000

A permit holder is liable in respect of entry on the land or occupation of the land by the permit holder, to pay compensation for environmental damage he causes as a result of carrying on the acts approved under the permit. Landowners on areas adjourning the land occupied can also get compensation and that is usually drawn up at the beginning as the harm is predicted by the EIS and the EIA. It is done by agreement, and if the parties fail to agree, the Director can make the determination which is appealable to the national Court.

The Environment (Amendment) Act 2010

The amendments introduced by the Environment (Amendment) Act 2010 effectively reverse the protections under the Environment Act 2000 and protect the developer at the expense of the landowners and the environment.

The amendments provide the Director with the power to issue in his sole unfettered discretion authorizations and 4 different types of certificates, which can
1) authorize the miner to do new environmentally hazardous acts not envisaged in the original Permit,
2) exempt the miner from liability from acts done outside the terms of the permit,
3) certify that the miner has somehow complied with the permit by doing certain actions not set out in the permit
4) certify that otherwise preventable environmental harm is “necessary or inevitable” harm and excuse the miner for liability and
5) Certify that what the miner is doing is the best practice environmental practice for the activity.

The Director doesn’t have to consult with anyone (let alone landowners or provincial governments) consider any reports, treaties, the Environment Act 2000 or anything in his decision.

Worse – each of these decisions is specifically spelt out to not be challengeable or reviewable in a court or tribunal.

But worst of all, the amendments state that these decisions and the activities they allow do not form a cause of action in tort or otherwise, or an offence and are not unlawful.

Why is that bad ?

What is a Tort ?

In legal speak, a tort is a civil wrong, as opposed to a criminal wrong. Instead of the perpetrator going to jail, the perpetrator has to pay compensation or is stopped from doing whatever the wrong is. So if a man hits a woman, she can sue him in the tort of battery and seek compensation. Or is a man constantly jumps over another man’s fence and crosses his land without permission, the owner can sue the man for trespass and get an injunction to stop the man from coming onto his land.

So what is a tort in this sense, in the new amendments ? If an activity was conducted under any of these new authorizations or certificates and it caused environmental harm, the landowners could not go to Court and sue to stop the miner from doing the activity. They wouldn’t have any say on the authorization or certificate, would have been kept in the dark until the activity was being performed and then they would be powerless to stop it – however harmful it may be.

The compensation provisions in S87 cover compensation pursuant to the activities under the Permit on land occupied by the permit holder or adjoining such land, but not these new activities under the authorizations. Landowners' rights to compensation for environmental harm which is caused under these authorizations and certificates has been removed.

Factual example: - if Miner A has been dumping mine tailings into a river no 1 under a Permit but decides to start dumping into river no 2 which is not approved under the Permit, and then after 3 years, the landowners along river no 2, 50km from the mine start complaining that their water is always dirty and the fish have disappeared, Miner A could write to the Director to
a) Authorize the activity of dumping into river no 2 for the last 3 years
b) Grant an exemption certificate that Miner A has not been operating outside the now new permit, and
c) Grant a certificate that the dirty river and the disappeared fish are a “necessary or inevitable consequence” of the activity of dumping,

And the Director could issue the authorization and certificates and the landowners couldn’t appeal it, challenge it and they couldn’t sue in nuisance (tort) for an injunction to stop it or for compensation.

It would leave the landowners completely powerless with a dead river.

What specific sections take away landowners’ rights ?

There are 8 new sections which specifically take away everyone’s rights (including landowners’ rights to seek a review of the director’s decision and to sue in tort to protect their land from future or continuing harm and compensation. They are as follows:-

Section 69A. DIRECTOR MAY AUTHORISE ASSOCIATED ACTS

(3) The Director’s decision to grant an authorization is final and may not be challenged or reviewed in any court or tribunal.

Section 69B. ACTIVITY DOES NOT CONSTITUTE A CIVIL CAUSE OF ACTION OR AN OFFENCE

If the Director grants an authorization under Section 69A, the holder of the permit for the associated activity is entitled to carry out that act, or work and the carrying out of that act, work or activity does not constitute a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful.

Section 87A. DIRECTOR MAY GRANT AN EXEMPTION CERTIFICATE

(4) The Director’s decision to issue the Exemption Certificate is final and may not be challenged or reviewed in any court or tribunal.

Section 87B. DIRECTOR MAY ISSUE BEST PRACTICE CERTIFICATE

(4) The Director’s decision to issue the Best Practice Certificate is final and may not be challenged or reviewed in any court or tribunal, except at the instigation of any aggrieved holder of an Authorization Instrument.

Section 87C. DIRECTOR MAY ISSUE CERTIFICATE OF NECESSARY CONSEQUENCE

(4) The Director’s decision to issue the Certificate of Necessary Consequence is final and may not be challenged or reviewed by any court or tribunal, except all the instigation of an aggrieved holder of any Authorization Instrument.

(5) The carrying out of a conduct or proposed conduct, or the occurring of consequences, referred to in a Certificate of Necessary Consequence do not constitute wholly or partly a civil cause of action, whether in torts or otherwise, or an offence and are not unlawful.

Section 87D.DIRECTOR MAY ISSUE A CERTFICATE OF COMPLIANCE

(4) The Director’s decision to issue a Certificate of Compliance is final and may not be challenged or reviewed in any court or tribunal, except at the instigation of an aggrieved holder of any Authorization Instrument.

(5) If carrying out of any act, work or activity that is the subject of a Certificate of Compliance does not constitute wholly or partly a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful.

How do these sections take away landowners’ rights?

These Sections clearly bar access to review by the court and take away an INTERESTED party’s right to sue in tort for compensation for environmental harm or for an injunction to prevent such present or future harm, should the Director in his sole unfettered discretion allow the developer to do an activity that causes environmental harm under his new absolute powers.

It affects “interested parties” as a third party with no interest would have no standing to sue in any event, so the claim by Minister for the Environment Benny Allen that the new amendment Act prevents third parties from interfering in projects is utter nonsense.

The amendments prevent INTERESTED parties from exercising their rights to protect their land.

Landowners are clearly such interested parties. Who else would be suing in tort for prevention for environmental harm ?

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