EPA’s Pilbara report rings
alarm bells
Carolyn Dearing, Watershed Legal (former EDOWA
solicitor)
Following a recent camping trip through the Pilbara, I
read the EPA’s recently released advice to the Minister
of the Environment, entitled Cumulative environmental
impacts of development in the Pilbara region
www.epa.wa.gov.au/Policies_guidelines/strategicadvic
e/Pages/Pilbaras16e2014.aspx with keen interest.
Impacts of development on the Pilbara
Motivated by concerns about the rate, scale and nature
of current and future development in the Pilbara as well
as the impact of other land uses and threatening processes,
the EPA has issued a powerful document which details
the cumulative impacts of development in the Pilbara.
The EPA’s report to the Minister was issued under s16(e)
of the Environmental Protection Act 1986, which provides
that one of the EPA’s functions is to “to advise the Minister
on environmental matters generally and on any matter
which he may refer to it for advice, including the
environmental protection aspects of any proposal or
scheme, and on the evaluation of information relating
thereto”. The EPA’s s16(e) advice to the Minister was
undertaken on the agency’s own initiative, rather than in
response to any referral from the Minister.
Conservationists should applaud the agency for taking
the initiative in investigating cumulative impacts of
development on the Pilbara, and providing reasonable
recommendations for greater protection of the region’s
biodiversity and ecosystems.
Excessive land clearing, overstocking on pastoral leases,
the inadequate system of existing nature reserves and use
of offsets, hydrogeological threats from ground water
abstraction, as well as mine water disposal, are all identified
as key risks.
Another environmental impact on the region that is not
fully understood is the phenomena of mine pit lakes.
These lakes form when mining below the water table
stops and dewatering of the mine pit ends, resulting in
the pit being allowed to fill up with ground water. Pit
lake water is typically contaminated with metals,
metalloids, saline, acidic or alkaline properties, with this
water eventually forming corrupted lakes. The EPA
observes that saline plumes from mine voids can extend
for tens of kilometres from the mine site. EPA’s estimated
numbers of actual and prospective pit lakes in the Pilbara
region are sobering: 97 lakes, 178 proposed pits and 670
open pits that could become pit lakes.
The EPA's recommendations
The EPA’s advice to the Minister makes multiple
recommendations to address the significant risk of
biodiversity loss in the Pilbara as a result of the existing
system of ad hoc environmental impact assessments and
approvals by regulatory agencies, including the EPA.
The advice EPA provides to the Minister also emphasises
the need for better co-ordinated off-reserve conservation
actions due to the lack of biodiversity in the region's
existing national parks and nature reserves.
Apart from adopting a more strategic approach to
environmental assessments, the EPA calls on the
government to create more nature reserves in the Pilbara,
noting that only 6% of the biogeographic region is held
within the State’s formal reserve system – significantly
lower than the 17% international target for biodiversity
conservation (EPA Advice Report, p15).
In addition, the report recommends the development of
a mechanism to pool offset funds paid in by developers
to deliver more broad scale biodiversity conservation
outcomes.
The State’s systems for data capture are also criticised
in EPA’s advice. The agency provides
>> page 5
EPA Pilbara report alarming .............
EPA rejects mining application.............
EDO fights for agency records .............
New solicitor joins EDOWA..................
SAT sets high bar for development.......
Rule changes made at AGM..................
Office closed over holiday period ..........
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Mark Gray Gallery
contents
WA EPA rejects two proposed iron mines in
banded iron formations
Patrick Pearlman, Principal Solicitor, and Rebecca Dennison, EDOWA volunteer
In the October 2014 edition of edonews, we discussed
efforts to protect the unique landforms and biodiversity
of Western Australia’s banded iron formations in the
Midwest and Goldfields regions of the State (edonews,
Oct 2014, pp 3-4). The State government has proposed
protecting these critically important areas from mining
and other development for the past 40 years – largely
without success. EDOWA is currently representing groups
in the Mining Warden’s Court who are pressing their
objections to Polaris Metals’ proposed iron mining in
banded iron formations near Mt Manning (in the Helena
and Aurora Range Conservation Park), which was also
awaiting an assessment decision by the WA Environmental
Protection Authority (EPA).
Understandably, EDOWA was extremely pleased when
the EPA announced its decision to effectively recommend
rejection of Polaris Metals’ proposed mine on grounds
the proposal is “environmentally unacceptable”. EPA’s
decision is available here:
http://www.epa.wa.gov.au/NEWS/MEDIASTMNTSCHR
MN/Pages/1December2014.aspx?pageID=440&url=NE
WS/MEDIASTMNTSCHRMN. The EPA decided that the
proposal should be assessed at the API-B level (Assessment
on Proponent Information – Environmentally
Unacceptable).
The EPA’s 26 Nov 2014 decision follows close on the
heels of its decision earlier in the month (Report 1532)
that a similar iron mining proposal by Sinosteel Midwest
Corporation Ltd in the banded iron formations of Mt
Karara, central Blue Hills, and Mungada Ridge of WA’s
Midwest should likewise be rejected as environmentally
unacceptable. That decision (available at
http://edit.epa.wa.gov.au/EPADocLib/Rep%201532%2
0Blue%20Hills%20APIB%20101114.pdf), coupled with
the EPA’s decision on Polaris Metals, hopefully sets the
stage for Minister for Mines and Petroleum, Hon William
Marmion, to act on conservation groups’ request (assisted
by EDOWA) and exercise his powers under ss 19 and
111A of the Mining Act 1978 to refuse the mining
applications and exempt portions of the area from mining
in the future. Minister Marmion has yet to act on the
groups’ request.
Stay tuned to EDOWA's website or Facebook page for
updates, or call us 9221 3030 if you’d like to find out
more or want to get involved.
Helena and Aurora Range. Smokebush contrasts with banded ironstone
outcrops.
– TWS (WA)
EDOWA continues to fight for access to agency records
Patrick Pearlman, Principal Solicitor
EDOWA frequently assists members of the public who
seek access to records in the custody or control of state
or federal agencies under applicable Freedom of
Information (FOI) legislation. Conservationists and
community activists know that obtaining meaningful
information from these agencies is often a frustrating and
time-consuming effort, involving frequently-invoked
exemptions from disclosure, lengthy processing and thirdparty consultation periods, and significant fees charged
for access.
We are currently handling a number of FOI matters
where agencies have withheld information requested and
which are, or shortly will be, undergoing review. A few
of these matters have raised issues that may be of interest
to members of the public.
In one instance, EDOWA sought external review by
the Information Commissioner (OIC) of the Rottnest
Island Authority’s (RIA) decision to refuse access to
summaries of public submissions to the RIA in response
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to its draft management plan for the island. Those
summaries had been prepared by the RIA’s private
contractor. In its original 27 August 2014 decision, refusing
to provide access to the summaries, the RIA claimed that
the summaries were exempt from disclosure on two
grounds: first, the Cabinet and Executive Council
exemption pursuant to clause 1(1)(b),(c),(d) of Schedule
1 of the Freedom of Information Act 1992 (WA) (WA
FOIA); and second, the Deliberative Process exemption
pursuant to clause 6(1)(a) of Schedule 1 of the WA FOIA.
On behalf of our client EDOWA requested internal review
of that decision on 29 August and, on 11 September, the
agency upheld the original decision – though only the
Cabinet and Executive Council exemption was cited in
the decision.
On 6 October EDOWA lodged a complaint requesting
external review of the RIA’s decision by the OIC. On 28
November the RIA modified its access decision to release
certain emails between the RIA and its contractor,
edonews December 2014
and also provided further grounds in support of its
decision to withhold access to the summaries requested
by EDOWA – apparently in response to an invitation
from OIC staff to do so.
Ordinarily, the public might expect that an agency ought
not to be able to alter the grounds upon which it refused
to provide access to records requested after that decision
has been challenged. However, cases interpreting the
provisions of the WA FOIA indicate that the legislation
(particularly ss 66(5) and (6)) will be applied leniently to
allow the OIC to seek further submissions or information
from the agency in relation to its decision. This
interpretation is also consistent with the OIC’s Complaints
Procedure which states (at Stage 1 - Assessment, paragraph
2), that: “If the agency’s notice of decision does not
comply with the requirements of s 30 of the FOI Act and
does not contain sufficient reasons for its decision, the
Commissioner will require the agency to provide further
information to justify its decision.” Section 30 of the WA
FOIA requires the agency, among other things, to provide
details in relation to a decision to refuse access to a
document, including the reasons for the refusal and any
findings on material questions of fact underlying those
reasons. In addition, s76 of the WA FOIA allows the OIC
to review and remake any access decision of an agency,
which has been interpreted to allow the OIC to make any
decision the agency could have made in relation to the
access application even where the agency fails to rely
upon the correct exemption.
Thus members of the public should be aware that an
agency’s initial rationale for denying access to records is
not necessarily “set in stone” and is liable to being modified
on external review, either by the agency or the OIC itself.
Scope of documentation
One other interesting FOI matter that EDOWA is
working on that may end up the subject of challenge in
court involves the question of what precisely is within
the scope of documents or records to which the public
may have access under the WA FOIA.
Recently, EDOWA sought access to not only agency
documents related to the Department of Fisheries’ response
to the 2 October 2014 shark attack at Wylie Bay near
Esperance, but also requested access to physical evidence
associated with the attack – including the surfboard and
specimens of the sharks caught. Access was sought in
order to allow experts to analyse these articles to assess
whether the sharks responsible for the attack were Great
Whites.
The Department of Fisheries denied access to physical
articles on grounds the WA FOIA is limited to documents.
However, EDOWA believes that the WA FOIA is intended
to be interpreted liberally and, moreover, the ordinary
meaning of “records” in the legislation is broad enough
to include physical articles and things that could allow
information to be extracted from them. In addition, case
law from the United States – whose freedom of information
legislation is typically the model for such legislation in
Australia and other countries – has construed the scope
of records subject to public access to extend to physical
things and materials broader than simply written records.
edonews December 2014
At this point EDOWA will have to seek internal review
of the Department's initial decision. If the Department
confirms its initial decision, EDOWA’s next stop will be
external review by the OIC. Interestingly, s78 of the WA
FOIA allows the OIC to refer a question of law to the
WA Supreme Court. This provision may allow EDOWA
to have the Court determine the issue of what matters fall
within the scope of “records” to which the public may
have access under the FOI legislation.
– V4 Review
New solicitor joins EDOWA
Patrick Pearlman, Principal Solicitor
Please join us in welcoming Ian McLeod as our newest
solicitor.
Ian began working with EDOWA on 3 December 2014,
concluding a recruitment process to replace outgoing
solicitor Carolyn Dearing. Ian began practising law in
2006. From 2006-2011 Ian worked for McLeods Barristers
and Solicitors, practising in the field of planning and
development law. In that role Ian advised local
governments in planning matters and represented them
in proceedings before the State Administrative Tribunal.
As readers may know, EDOWA has begun participating
more frequently in the SAT, so Ian’s background and
experience will be particularly valuable in this regard.
In addition, from 2012-14, Ian was engaged as the
principal solicitor of the Northern Suburbs Community
Legal Centre, engaging in and supervising civil and
criminal litigation primarily in the Magistrate’s Court.
For the past year, he has been a Sessional Lecturer at
Edith Cowan University, lecturing on the subject of
administrative law.
We hope members and supporters will have the
opportunity to work with Ian in the near future.
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SAT endorses rigorous assessment of environmental
impacts on proposed residential development
Su-Mita Hill, EDOWA volunteer
Background
On 21 November 2014 the WA State Administrative
Tribunal (SAT) handed down its decision on appeals by
two companies – Wattleup Road Development Company
P/L and Primewest (Wattleup) P/L, (collectively the
Proponents) – of the WA Planning Commission’s (WAPC)
deemed refusal of a proposal to subdivide land for
residential development at Wattleup Road in the Hammond
Park area of Cockburn.
In a previous decision the SAT refused the Proponents’
applications for a residential subdivision at Wattleup
Road, citing potential dust impacts from the bauxite
residue disposal area (RDA) associated with Alcoa of
Australia Ltd’s (Alcoa’s) alumina production facility at
Kwinana, located some 1.2-1.7km from the proposed
residential developments. The 625ha RDA included an
active residue storage area of 170ha, which receives
approximately 4.4 million tonnes of bauxite residue each
year. Bauxite residue consists of a coarse sand fraction
(termed “red sand”) and a fine silt fraction (termed “red
mud”) and drying/disposing of the residue takes place in
large open areas on the RDA, commonly known as “red
mud lakes”, which are progressively built up with bauxite
residue to a height of 80 metres AHD.
The SAT also cited additional dust impacts associated
with a sand quarry operated by WA Limestone and located
some 50m away from the closest boundary of the proposed
subdivisions.
The Proponents responded to the SAT’s initial 2011
refusal by commissioning on-site air quality monitoring,
in a bid to demonstrate that the proposals would meet
health and amenity standards in relation to dust emissions.
After hearing evidence from eight air quality experts, all
three members of the SAT refused to accept the
Proponents’ data and consequently recommended that
the Minister for Planning refuse the subdivision
applications and dismiss the applications for review.
Monitoring data not sufficiently rigorous
to predict future air quality
What is significant about the SAT’s decision is the
degree of rigour applied to the air quality evidence put
forward by the Proponents and by Alcoa (which had
intervened in opposition to the proposed developments).
The SAT ruled that the Proponents’ air quality monitoring
was insufficient and unreliable on a number of grounds.
As an initial matter, the SAT noted that the data presented
by the Proponents for amenity purposes only accounted
for around one-fifth of a year and did not address adverse
impacts lasting less than 24 hours. More significantly,
the SAT next found that the Proponents’ air quality
monitoring was not representative of future air quality.
With respect to predicting future air quality at the
proposed developments, the Tribunal took into account
three important considerations. First, the SAT noted that
the monitoring was conducted in an average or milder
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Alcoa’s Kwinana facility.
– (We) Can Do Better
than average year, rather than a worst-case year in terms
of wind and rainfall – two important factors impacting
on dust generation and transport. Moreover, according to
the SAT, the Proponents’ data was presented with a
“simplistic” grouping of all winds above 5m per second
and therefore did not acknowledge the existence of
”extreme” wind events.
Second, the SAT accepted unanimous expert evidence
on climate change and stated that adverse future changes
in climatic conditions such as rainfall and wind-speed are
likely and relevant.
Third, the SAT stated that reliable future predictions
must take into account changes in the operations of the
nearby RDA. Those changes – namely the increasing
height of red mud lakes as more residue is deposited over
time – the SAT noted, are likely to lead to increased dust
emissions from bauxite residue as higher altitudes are
necessarily subjected to greater wind speeds.
Industrial amenity
The SAT went on to consider the impact on Alcoa’s
operation of its alumina production facility – particularly
the RDA – if the subdivision applications were approved.
The SAT recognised that an industrial site can have
”industrial amenity”, being the ”beneficial use” its
operators derive from the facility. Avoiding future landuse conflicts was considered a relevant planning
consideration. The SAT considered it likely that residents
of the proposed subdivisions would complain if subjected
to the unacceptable dust levels likely to issue from Alcoa’s
RDA and the nearby sand mine. This was based on
evidence presented by Alcoa of significant land use
conflicts experienced in similar previous situations which
became “quite constraining on the company in several
ways”.
edonews December 2014
Implications for the Wattleup Road sites EPA Pilbara report
Importantly, the SAT did not envisage that the conditions
relating to dust generation and impacts would be such
that the proposed subdivisions would be acceptable until
after operations at the proximate parts of the RDA and
sand quarry have ceased, and furthermore until those
areas have been rehabilitated. This is unlikely to occur
for at least 15-20 years.
Broader implications of the decision
The broader implications of this decision relate to the
SAT’s comments on the need to take account of future
impacts of a changing climate, land-use changes, and the
baseline of a ”worst-case” rather than an average year
when conducting an assessment of likely environmental
impacts. Also worth noting is the SAT’s acknowledgement
that industrial sites can have amenity in terms of preventing
adverse impacts on operators arising from conflict with
residential or other incompatible uses. This may prevent
encroachment on industrial areas in the future in a bid to
pre-emptively prevent complaints by residents against
industry who were “there first”.
Members approve
changes to EDOWA's
organisational rules
Majella Metuamate, Office Coordinator
At the 2014 AGM members of the organisation approved
amendments to the EDOWA’s Rules, designed to simplify
processes, to be consistent with practice and minimise
risk for the management committee. Below is an
explanatory note from the committee. Members and the
public alike can view the EDO rules on our website.
Rule 5 (Qualification for membership of Association)
Changes to Rule 5 make it easier to sign up new
members, by removing the requirement to be vetted by
the management committee and to sign the application
forms as most applications are via the website.
Rule 7 (subscription of members of Association)
The changes clarify that life members of the organisation
do not pay membership S ubscriptions.
Rule 9 (Expulsion of members of Association)
The change allows a member to be expelled from
membership of the Association because of an actual or
potential conflict of interest with the Association’s
objectives.
Rule 10 (Committee of Management)
The change removes the requirement that there be at
least four committee members in addition to the four
officeholders. Other changes to the rest of Rule 10 would
simplify the process for electing management committee
members at general meetings.
Rule 16 (General meetings)
The change allows notices of general meetings to be
sent by email or fax, which will be easier to send and
save paper.
edonews December 2014
– from page 1
recommendations for the establishment of a central register
of land clearing and rehabilitation activities and a
comprehensive inventory of current and potential mine
pit lakes as well as further research on the impacts of
mine pit lakes call.
In relation to rehabilitation, the EPA’s report concludes
that current rehabilitation efforts only achieve an estimated
15% of the pre-mined biodiversity. On this basis, the EPA
has foreshadowed a greater emphasis on avoidance and
minimisation of impacts when assessing mining proposals
in the Pilbara region.
Of particular importance, a more strategic approach to
water management is also featured.
The EPA makes multiple recommendations and
members of the public are encouraged to read the full
report. Importantly, the EPA advice report reveals many
deficiencies in the current regulatory system that need to
be addressed if the unique environmental values of the
Pilbara are to be preserved. The conservation of the
Pilbara's unique biodiversity now depends upon how the
Minister of the Environment responds to the EPA’s advice
and report.
EDOWA closes for the
festive season
Patrick Pearlman, Principal Solicitor
As we have in past years, EDOWA will be closing for
the holidays for two weeks. Members are advised that
the office will close at 4:30pm on 19 December and
reopen at 9am on 5 January 2015. Staff and volunteers
will be taking a (hopefully) well-earned breather before
diving into the morass of environmental and related
matters calling for EDOWA assistance at state and federal
levels.
Happy Holidays to the entire EDOWA family, and to
all our friends and supporters. We look forward to seeing
you again soon in 2015.
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