This section deals with the relationship between different forms of development and the environment in which they occur. A more detailed account of the regime for land use planning and development control is contained in LOCAL GOVERNMENT AND PLANNING.
Environmental Impact Assessment (EIA) refers to any process that seeks to assess the likely or possible impacts of a development or project before a decision is made as to whether or not the development or project should proceed, and if so, under what conditions. These days, it is to be hoped that almost every decision made by governments, companies and individuals will include some component of EIA. Some forms of EIA are required by law (such as an Environmental Impact Statement i.e. EIS under the Development Act 1993 (SA) or an Environmental Impact Report under the Petroleum and Geothermal Energy Act 2000 (SA)). In other cases, the requirement of a government department to take the environment into consideration when making decisions is purely a matter of policy and not set out in any Act of Parliament.
The two main Acts covering EIA are the Development Act 1993 (SA) (also discussed in LOCAL GOVERNMENT AND PLANNING) and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Environment Protection and Biodiversity Conservation Act 1999 requires that a controlled action must be assessed before it can be approved. Controlled Actions are defined as actions that are likely to have a significant impact on a matter or national environmental significance (MNES). The Act sets out the process to be followed, which includes consultation with the responsible State or Territory Minister as well as public consultation. Not all environmental impacts of the action are considered by the Commonwealth when choosing the appropriate level of assessment. Only the relevant impacts of a matter of national environmental significance that trigger the EIA process in the first place are considered. Once an action is declared to be a controlled action, the Minister can assess the matter in one of five ways:
An Accredited Process (or "one-off accreditation") This process is carried out under some other Commonwealth or State law. For the purposes of the EPBC Act, the Minister can accredit that other process if he or she is confident that the relevant impacts will be assessed. At the conclusion of the process, the Minister will receive a report on the outcome of the EIA so that an informed approval decision can be made. This is the process most likely to be used by the Commonwealth in assessing an action where a State EIS is also required. It avoids the need for two EISs to be prepared.
Assessment on Preliminary Documentation Under this process the Minister assesses the proposed action on preliminary information provided by the developer. The Minister can approve the proposed action if he or she believes on reasonable grounds based on this preliminary documentation that the impacts are properly identified and will be properly managed. There is also a requirement for the Secretary to the Department for Susutainability, Environment, Water, Population and Communities (DSEWPaC) to prepare a report to the Minister.
A Public Environment Report (PER) This process involves the Minister preparing guidelines and the developer preparing a draft PER that is published and made available for public comment. Any public comments are submitted to the Minister along with a report from the Secretary of the DSEWPaC, before the Minister makes a decision.
An Environmental Impact Statement (EIS) Under this process, guidelines are prepared, a draft EIS is prepared and published and public comment is invited. The level of documentation required is extensive and will normally consist of hundreds of thousands of pages. The EIS will pass through a number of stages before a final copy is submitted to the Minister for approval. A report by the Secretary of the DSEWPaC is also required.
Public Inquiry Under the EPBC Act, an office of Commissioner is established. This person is empowered to undertake a public inquiry into the environmental and other impacts of a proposed action. This provision was rarely used under the old legislation and it is not expected to be widely used under the EPBC Act. A public inquiry provides the most thorough process of EIA. On completion of the inquiry, the Commissioner must report to the Minister.
Environment Protection and Biodiversity Conservation Act resources The EPBC Act is the first major environmental legislation where both government and non-government information can be found extensively on the internet. As well as the DSEWPaC links identified elsewhere in this chapter, there is a wide range of material on sites administered by conservation groups such as the World Wildlife Fund, the Humane Society International and the Australian Conservation Foundation. For other relevant links, visit the Environmental Defenders Office web site at http://www.edo.org.au.
Mining is regulated by both State and Commonwealth law, however the State laws are most important. The Mining Act 1971 (SA) is the main legislation governing mining. Although mining has the potential to seriously harm the environment, the Act has few provisions that regulate and protect the environment. The main legislative provision in the Act is that all mineral exploration or extraction must be licensed.
Licences for exploration, miscellaneous purposes and mining are issued subject to certain conditions, some of which are prescribed by the legislation, but most of which are at the Minister's discretion. This high level of ministerial discretion means that it is very difficult to legally challenge environment conditions (or lack of) imposed by the Minister. Traditionally, Courts are reluctant to find that ministerial discretion has been exercised improperly unless there has been a serious error of process.
Another impediment to challenging a minister's decision on a mining matter is that most people will not have locus standi (the legal right to challenge the Minister's decision in court). The Mining Act does not provide for third party challenges or appeals. Generally, the only parties identified by the legislation as having an interest in mining are mining companies, affected landholders and the government itself. When determining conditions to attach to an mineral exploration or production licence, the Minister may consider any factors appropriate to a particular case, but must consider the protection of:
- the natural beauty of the area that will be affected by the proposed lease or licence;
- the flora and fauna of any natural environment or habitat in the area;
- any geological or geophysical features of the area that are of special interest;
- any Aboriginal sites or objects of significance according to Aboriginal tradition, archaeology, anthropology or history.
If notice is given that an application for a lease or for exploration is being considered by the Minister, an affected landowner (or someone else with an estate or interest in the land) may object to the issuing of a mining lease or entry onto land for exploration purposes, on any grounds. There is no appeal if the Minister rejects an objection to a lease. The Environment, Resources and Development Court hears and determines objections to entry for exploration purposes. Whilst the Mining Act covers the whole of South Australia, there are certain other provisions which regulate mining on Aboriginal land and in Reserves under the National Parks and Wildlife Act 1972 (SA). Contrary to popular belief, the vast majority of the area of National Parks and Wildlife Act reserves is available for exploration and mining. Over the last 10 years, the State Government has foreshadowed many amendments to the Mining Act that would reform environment protection, however, as yet, no significant amendments had been made.
If a mining company intends to export the minerals produced, a Commonwealth export licence is also required. Mining may also be considered a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) if the mining action impacts on a matter of national environmental significance. In such cases, the Commonwealth Environment Minister must assess and approve the action. An Environmental Impact Assessment may be required for the mining site. This is in addition to the approvals required under State law.
The environmental impacts of agricultural primary production in South Australia are covered by the Natural Resources Management Act 2004 (SA). Details of this legislation are available on the DEWNR and PIRSA websites.
The Pastoral Land Management and Conservation Act 1989 (SA) deals with the management of sheep and cattle grazing on native vegetation on leases of public land in the outback areas of South Australia. Pastoral leases (or runs) are often thousands of square kilometres in size and many are unfenced. Stock is generally untended and annual (or more frequent) mustering is used to collect stock for sale. In unfenced areas, the location or spread of stock is mainly determined by access to water points. Both natural and artificial watering points are used. The objects of this Act include both resource exploitation and conservation. Conservation objectives are primarily met through a statutory programme of scientific assessment of the condition of land prior to granting or renewal of a lease. Maximum stocking rates are set on the basis of the capacity and condition of the land. Enforcement provisions of the Act include the issue of orders by the Pastoral Board such as orders to de-stock the land for a specified period [s 43]. As pastoral leases consist of rights over public land, an ultimate sanction always exists of cancelling or refusing to renew a lease. To date, this option has never been used.
Fishing (both commercial and recreational) can have a major impact on the environment. This is one of the reasons why fishing is highly regulated. The laws governing fishing are complex and vary according to whether the fishing is being carried out in State, Commonwealth or local government waters or on the high seas (outside Australia's 200km exclusive economic zone).
Within State waters, the main legislation is the Fisheries Management Act 2007 (SA). Amongst the provisions of the Act aimed at conservation are restrictions on:
- commercial fishing of a fishery
- recreational fishing
- fishing locations (some areas are off-limits for fishing)
- fishing methods (some methods are illegal)
The contact point for fisheries matters in South Australia is Primary Industries and Regions SA http://www.pir.sa.gov.au.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.