Australia: Environmental case briefs: May 2004

In this matter, which involved a native title claim, the Full Federal Court considered whether the primary judge erred when finding that some of the native title applicants had abandoned their previously held connection to the claim area. The Full Court considered whether the primary judge erred in failing to address the question of whether, by the traditional laws acknowledged and the traditional customs observed, the appellants have a connection with the land and waters within the native title claim area.

Significant judicial consideration was given to the construction of section 223(1) of the Native Title Act 1993 (Cth) which defines the expressions 'native title' and 'native title rights and interests' and their application to the particular circumstances of the appellants.

The Full Court stated that, in their view, section 223(1)(b) required the primary judge to identify the content of the traditional laws acknowledged, and customs observed, by the Aboriginal community known as the Western Desert Bloc. The Court held that if the traditional laws and customs of the Western Desert Bloc continued to recognise the appellant as a member, 'that would be a powerful indication that the effect of those traditional laws and customs was to constitute a connection between [the appellant] and the claim area. This would be so because [the appellant], by the traditional laws acknowledged, and traditional customs observed, of the Western Desert Bloc had rights and responsibilities in relation to the claim area'.

The Court held that the primary judge did not address the correct question posed by section 223(1) and his decision that the applicant had failed to satisfy section 223(1)(b) was therefore flawed. The Court did not proceed to consider whether the applicant did satisfy the requirements of section 223(1), nor did it remit the matter to the primary judge (as he had since retired), but rather allowed the parties the opportunity to make further submissions on the remaining issues in dispute, if any.

As we discussed in our February 2004 edition of Environment Quarterly, Paul Mees applied to the Federal Court for judicial review of the Commonwealth Environment Minister's decision not to reconsider an earlier decision that the construction, operation and maintenance of part of the Mitcham Frankston Freeway was not a 'controlled action' under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

Mr Mees claimed that, based on the Federal Court's decision in Queensland Conversation Council Inc v Minister for Environment [2003] FCA 1463, the Commonwealth Environment Minister was required to consider indirect impacts of the construction of the Mitcham Frankston Freeway, including the likelihood of a freeway link being built between the Eastern Freeway and the Northern Metropolitan Ring Road in Greensborough as a consequence of the Mitcham Frankston Freeway being constructed.

In his decision in Mees v Kemp [2004] FCA 366, Justice Weinberg rejected Mees' application on preliminary matters. Because Mr Mees made his application for review 12 months after the Minister made his decision, Mr Mees required the Federal Court to grant an extension of time to bring his claim. However, Justice Weinberg held that the delay of 12 months for Mees to bring his claim was 'inordinate and inadequately explained' and the State of Victoria, a third party in the proceeding, would suffer prejudice if an extension of time was granted.

Justice Weinberg was not called upon to assess the substantive aspects of Mees' claims, ie whether the Minister was required under the EPBC Act to consider any environmental impacts on the Banyule Flats from the supposed 'strong chance' that the freeway link would be built following the construction of the Mitcham Frankston Freeway. Justice Weinberg adopted Justice Keifel's comments that the Minister, in deciding whether an action is a controlled action under the EPBC Act, must not consider 'hypothetical possibilities':

Environment Protection Authority v BHP Steel (AIS) Pty Limited [2004] NSWLEC 37
The Land and Environment Court recently fined BHP Steel (AIS) Pty Limited (BHP) (now BlueScope Steel (AIS) Pty Limited) $70,500 after BHP pleaded guilty to one charge of polluting waters and three charges of breaching a condition of its environmental protection licence. BHP was also required to pay the EPA's costs.

The charges all arose from an incident in October 2001 where the cooling liquid in a coke oven battery was contaminated with emulsified tar, leading to numerous blockages. As a result, BHP added fresh water to clear the blockages. As the fresh water could not be recirculated, it overflowed into a recovery basin. However the recovery basin was not designed for the amount of water that flowed into it, with the result that contaminated liquid overflowed into a drain which led to Allan's Creek and the Port Kembla Inner Harbour.

The overflow continued for about 35 hours and amounted to 11 megalitres. It resulted in the deaths of hundreds of fish and other aquatic animals in Allan's Creek. Substantially full recovery of Allan's Creek did not occur until May 2002.

The blockages in the cooling system also resulted in overheating which caused seals on the valve-boxes of the coke ovens to fail and release quantities of raw coke gas into the atmosphere on three occasions over the following few weeks. On one occasion there was a tar droplet fallout which landed on nearby vehicles and adjacent industrial premises. These air pollution incidents were the basis of the charge of breaching a licence condition.

BHP was fined $60,000 for the water pollution offence and a total of $10,500 for the licence condition breaches relating to the air pollution incidents. Justice Lloyd allowed the maximum 35 per cent discount on the fine amount, including 25 per cent for pleading guilty at the earliest possible time and 10 per cent for other mitigating factors. These included BHP's genuine remorse and contrition and its close cooperation with the EPA in preparing a Statement of Agreed Facts. Although BHP had 12 previous convictions for environmental offences at its Port Kembla steelworks (arising from nine separate incidents), these were unrelated to the type of incident the subject of the present case. His Honour accepted that the previous convictions were not evidence of a systemic failure to take proper precautions.

The Land and Environment Court fined Rethmann Australia Environmental Services Pty Ltd (Rethmann) a total of $70,000 and ordered the company to pay the prosecutor's costs after it pleaded guilty to two charges of breaching a condition of an environmental protection licence. The incident was found to have involved a breach of a condition to carry out licensed activities in a competent manner resulting in the discharge of odours.

The defendant conducts a waste management business, including a liquid waste transport and disposal service. It uses a tanker truck equipped with a pump that creates a vacuum inside the tank to suck in liquid waste. Maintenance of this vacuum requires continuous venting of the current gaseous contents of the tank.

In the first incident, the defendant's operator Mr JR Struthers used this system to extract wastewater from premises at Huntingwood. During the course of the 15 to 20 minute operation, a number of persons noticed an odour which was variously described as 'putrid', 'acrid', 'rotten' and 'terrible'. Several persons reported that it made them feel ill and experienced difficulty breathing. After some minutes, a union delegate evacuated the whole factory. No one fell ill.

The second incident occurred at a disused petrol station at Seven Hills, where Mr Struthers and his tanker truck were on the site to collect groundwater which had seeped into a trench dug as a footing for a retaining wall. On beginning the collection, Mr Struthers noticed an odour that he described as 'funny', but he proceeded with the operation which lasted approximately 15 minutes.

As the collection operation proceeded, a number of people on the site suffered headache, nausea, shortness of breath, burning to the back of the throat, difficulty with breathing, coughing, throat closure and dry retching. A temporary hospital was established outside nearby premises where people were treated by ambulance officers and then taken to hospital for further treatment. In all, 23 people attended hospital. Mr Struthers was unaware of these events until after he had left the premises.

Justice Talbot accepted Rethmann's plea of guilty to a breach of a condition of its environmental protection licence on the basis of its vicarious liability for the behaviour of Mr Struthers. His Honour took into account the prosecutor's submissions that in order to meet the condition of its environmental protection licence which requires that the licensed activities be carried out in a competent manner, Rethmann should have had management systems in place that involved specific training of employees to immediately turn off the pump when any odour is detected during pumping, the employment only of persons with a sense of smell of at least ordinary acuity, and regular testing of the sense of smell of drivers who convey liquid waste.

Having regard to Rethmann's previously 'exemplary' environmental record and its performance of a necessary service to the community, his Honour declined to order Rethmann to place a notice of its conviction in the media.

This was an appeal on sentence to the Land and Environment Court from the Wollongong Local Court which found Ebacarb Pty Limited (Ebacarb) guilty of the offence of polluting waters. The offence occurred when 200 litres of liquid described as effluent from a storage tank at a petrol service station was deliberately poured into the road gutter, leading ultimately into Oakley Creek.

The magistrate imposed a penalty of $22,000, the highest penalty the Court could impose. The hearing in the Local Court arose as the defendant elected not to deal with the matter by responding to a penalty infringement notice issued by the Environment Protection Authority (EPA) by paying the sum of $1500.

Ebacarb submitted that the Court, in assessing the seriousness of the offence, should take account of the EPA's initial decision to deal with the matter by way of an infringement notice for the amount of $1500. Counsel for Ebacarb also urged that the magistrate had erred in imposing the 'maximum' penalty of $22,000, ie the jurisdictional limit of the Local Court.

Justice Talbot rejected these submissions. His Honour pointed out, first, that the appeal in the Land and Environment Court was by way of re-hearing, so that the basis of the magistrate's assessment of the penalty was irrelevant.

Second, his Honour rejected the submission that the EPA's initial decision to proceed by way of the penalty infringement notice procedure, with its fine of $1500, could be used as evidence of the EPA's assessment of the seriousness of the offence. His Honour pointed out that the amount of the fine was fixed, and that the EPA could have good administrative reasons relating to cost, convenience and other factors for deciding to proceed in that manner.

Finally, his Honour rejected the submission that the imposition by the magistrate of a penalty equal to the jurisdictional limit of the Local Court amounted to an assessment that the offence should attract the maximum penalty. The maximum penalty (for a corporation) is $250,000 and a court is required to decide what percentage of the maximum is the appropriate penalty in the individual case. In his Honour's example, a court might decide that an offence in the medium to high range should attract a penalty of $80,000. If that court has a jurisdictional limit of $22,000, the court is limited to imposing a fine of $22,000, but that does not amount to an assessment that the offence should attract the maximum penalty.

In holding that $22,000 was the appropriate penalty amount, regardless of jurisdictional limits, his Honour took into account the fact the need for specific as well as general deterrence, the early guilty plea by Ebacarb, and its 'unblemished record' in relation to environmental offences.

The Land and Environment Court rejected an application by the Nature Conservation Council of New South Wales Inc (Council) for a declaration that a water sharing management plan for the Gwydir River Water Source made by the Minister for Sustainable Natural Resources (Minister) under the Water Management Act 2000 (Cth) (Act) is invalid and of no effect.

The Council had objected to the water sharing management plan (Plan), which the Minister purported to make on 21 February 2003, on the grounds that:

• the plan contained no performance indicators capable of measuring the success of strategies in the Plan

• the Plan failed to identify environmental health water, except as water volume in excess of the long-term extraction limit, with the result that there is no environmental water rule for environmental health water within the meaning of the Act

• the failure to consider thresholds for within-river purposes or effluent streams the Plan was not consistent with, nor did it give effect to, the State Water Management Outcomes Plan (SWMOP) as required by the Act, and

• the Minister, when making the Plan, was in breach of a duty imposed by the Act to give priority to protection of the water source and its dependent ecosystem over basic landholder rights.

In the Land and Environment Court, Justice Talbot rejected all these submissions. His Honour reached the following conclusions as to each submission:

• the performance indicators are merely the data which allow the Minister to measure how the Plan is performing, and are to be distinguished from 'performance targets' against which performance is actually measured

• the Act, in providing for the making of rules which identify, establish and maintain each class of environmental water, does not require that the rules specify volumes or amounts of water in a particular year or over any other given period

• the Council's submission with regard to thresholds for within-river purposes or effluent streams is based entirely on a comment attached to a single SWMOP target in the Plan relating to supplementary water access, and has no logical connection with supplementary environmental water, and

• the provisions in the Plan, read as a whole and in conjunction with the Act, do not evince an intention to subordinate protection of the water source and its dependent ecosystem to basic landholder rights.

For these reasons his Honour concluded that the Plan was not relevantly uncertain and that, having regard to the circumstances in which it will apply, its terms are not manifestly unreasonable.

Oil spill

A wax manufacturing company was ordered to pay $50,000 towards environmental projects for water pollution.

The company pleaded guilty to the charge of water pollution under section 39 of the Environment Protection Act 1979, which arose following a spill of white mineral oil into the Maribyrnong River. The spill occurred as a result of the pumping of oil between tanks on the site at its bulk liquid handling terminal. An operator at the terminal failed to turn off a pump after a shift. More than 23,000 litres of white oil flowed from the site, into a stormwater drain and into the river, causing a slick approximately three kilometres long.

Abattoir prosecuted

The Queensland Environment Protection Authority (EPA) charged Mackay meatworks operator, Thomas Borthwick and Sons (Borthwicks), with contravening a condition of its environmental authority after approximately eight tonnes of tallow were spilled into Bakers Creek, south of Mackay, on 1 August 2003. Tallow is a fat-based by-product of the rendering operations at the meatworks.

Appearing in the Brisbane Magistrates Court, the company pleaded guilty to a breach of section 430(3) of the Environmental Protection Act 1994 (Qld) and was fined $40,000. The maximum penalty for a breach of this section by a corporation is $624,375. In determining the fine, the magistrate took into account the fact that Borthwicks had fully cooperated with the EPA. No conviction was recorded.

DEP prosecution for excavation of Willie Pool

In the Bunbury Court of Petty Sessions, the DoE has successfully prosecuted an individual for excavating approximately 3000–4000 cubic metres of peat and rotting vegetation from a wetland lake known as Willie Pool. The wetland was protected by an Environmental Protection Policy. The offence carried a maximum penalty of $62,500 for an individual and $125,000 for a corporation. The individual was fined $600 and ordered to pay the prosecutions costs.

Dairy farmer fined

A dairy farmer was fined $5,000 in the Environment, Resources and Development Court for allowing dairy effluent to escape from a milking shed into a roadside stormwater drain, and potentially into a watercourse within Adelaide's water supply catchment area. The incident occurred when the dairy effluent management system at a milking shed failed.

Tasmanian Alkaloids pleads guilty to environmental charges

Tasmanian Alkaloids, a manufacturer of medicinal opiates, pleaded guilty on 4 February 2004 to wilfully committing an environmental nuisance under section 53(1) of the Environmental Management and Pollution Control Act 1994 (Tas). The company was charged after 10 million litres of waste water was released into Quamby Brook, a tributary of the Meander River, over four days in August 2000.

Chief Magistrate Arnold Shott imposed a fine of $3,500 and recorded a conviction. The maximum penalty available for an offence under this section is $30,000.