Managing Tasmania's environment
Feature article published in the Tasmanian Year Book, 2000 (cat. no. 1301.6)
Contributed by Bob Davies, a former Senior Policy Officer with the Department of Environment and Land Management
Attitudes to environmental management have changed over the past 30 years. In Tasmania this can be illustrated by briefly tracing the history of three socially divisive resource development issues which polarised the environment-versus- development debate. Lack of transparency in the development approval process, together with public and government frustration over the uncertainty of outcomes, eventually led to a review of environment and planning laws, and the subsequent development of an integrated resource management and planning system (RMPS). The objective of the RMPS as we move into the next century is to ensure a sustainable future for all Tasmanians. This chapter describes the structures and processes that are now in place for environmental management.
SETTING THE SCENE FOR REFORM
Lake Pedder debate
In 1972, following 12 years of escalating public protest and criticism, Lake Pedder in South West Tasmania was flooded to supply 82 megawatts of electricity for industry. In hindsight this was effectively the end of an era that saw development over-ride environmental values. On the one hand UNESCO had described the lake as ‘a unique wilderness of incomparable significance and value’, on the other was the continuing government policy of hydro-industrialisation; a policy that involved developing Tasmania’s potential hydro-electric power generation to attract resource development industries with offers of large volumes of low-cost electricity. There was a fundamental public clash between the economic growth and efficiency model espoused by government and the Hydro-electric Commission (HEC), and the emerging conservation movement. Such was the depth of the public disquiet over the flooding of Lake Pedder that a Commonwealth Government Committee of Inquiry was established in 1974. The Committee recommended a revision of development approval processes to avoid similar confrontations in the future. These recommendations were ignored by the Tasmanian Government of the day, and further confrontation followed with the HEC’s subsequent proposal to dam the Franklin River.
Franklin Dam debate
The 1980’s Franklin Dam dispute was again primarily concerned with the environmental management of the South West and the protection of wilderness values. The dispute was to embroil the Labor Government, the HEC and the conservation movement in open confrontation, and was eventually resolved when the Commonwealth Government bought into the debate. It began with the HEC proposing that an integrated hydro-electric power development be built initially involving the damming of the Gordon River below its confluence with the Franklin River, and later damming the Gordon River above its confluence with the Olga River. The environmental cost would have been the destruction of 35% of the remaining South West Wilderness area including significant Huon Pine habitat.
Such was the adverse public feeling about the economic and environmental consequences of this development proposal that 10,000 people took to the streets of Hobart to protest. When a referendum was eventually called on the issue in late November 1981, 45% of the votes cast were informal, including 33% which were endorsed ‘no dams’. This precipitated a political dilemma for the State’s Labor Government who promptly prorogued parliament for four months and subsequently lost office when an election was called in May 1982. A Liberal Government with a significant majority was returned to office and determined to progress the Gordon-below- Franklin project.
A change of government, however, did not make the dams issue go away. The Commonwealth Government in Canberra had meanwhile applied to the World Heritage Commission for the listing of the threatened area. By October 1982 there was growing antagonism between the State and Commonwealth Liberal Governments over the need for a dam. In some quarters it was thought an equivalent block of power could have been provided by a thermal power station. Amid continuing public protest, in December it was revealed that Australia’s nomination of the South West as a World Heritage Area had succeeded. By now there was the prospect of a Federal election in the wind, and the Tasmanian Wilderness Society were actively campaigning on the "no dams" case in mainland capital cities. This worked to the benefit of the Australian Labor party who were elected to office on 5 March 1983. Nevertheless the Tasmanian government remained intransigent and refused to accept Commonwealth Executive Council approved regulations under the National Parks and Wild Life Act (Cwlth) aimed at halting the Franklin Dam development. The Tasmanian Government took the issue to the High Court, but in June 1983 the court ruled that legislation to stop work on the dam was valid. The Franklin was saved, but at huge political and social cost. The process had divided the Tasmanian community (up to 1,300 people had been arrested during the course of the Wilderness Society’s Franklin blockade) and the rift has been slow to heal, a situation prolonged by a new and emerging environmental debate over forestry.
Wesley Vale pulp mill debate
Between March 1988 and March 1989 a conflict over the siting of a $1 billion kraft pulp mill at Wesley Vale, the disposal of its processing wastes, and the availability of close to 2 million tonnes of pulpwood per year to feed the demands of the plant, took centre political stage. At issue was the transparency of development approval process, opportunity for public scrutiny of economic, social and environmental data, and the adequacy environmental impact assessment process conducted under the provisions of the Environment Protection Act 1973. The overlapping Commonwealth requirements were also of concern, especially for the developers’ Noranda of Canada and North Ltd, as the project came under the purview of the Foreign Investment Review Board.
The conservation movement argued that the increase in woodchips needed to feed a pulp mill of the size proposed for Wesley Vale would inevitably lead to a substantial increase in woodchip demand, which in turn had the potential to threaten National Estate and World Heritage forests. But, from a State and Commonwealth government perspective, the mill had the potential to provide employment and attract investment to an area of high regional unemployment. It was also claimed the mill would offer substantial balance of payment benefits to the Australian economy. With such polarised views the stage was once again set for confrontation. Local residents in particular felt threatened by the impact of a rail spur and sulphur dioxide emissions on the local rural economy, and there were further concerns about the risk of organochlorines, in waste water discharges, on the marine environment of Bass Strait. An added disquiet arose about the level of timber royalties to be paid for the wood used by the mill, and what benefits the State would actually gain from the mill’s development with substantial profits to flow off-shore.
The basic issue was public access to information about the project, site selection, the adequacy of the environmental impact assessment conducted by the company, the role of the company in influencing or manipulating government policy, and timber availability. Matters began to come to a head with Government proposals to fast-track the development and limit opportunities for public comment. Normal public appeal processes under environment and planning legislation were to be by-passed. The media of the time reporting ‘that the only people who would make use of such provisions would be the anti-development Greenies’.
Government and the companies (Noranda and North Forests) were at pains to stress that the project would eliminate any need for Ministerial exemptions under the Environment Protection Act 1973 (exemptions had previously allowed businesses and others who were unable to meet discharge standards freedom from prosecution under the regulatory provisions of the Act). And further, that the company would spend $100m on pollution control measures. The final analysis being that the proposed development offered considerable benefits to the community as a whole so substantial as to more than offset the limited range of adverse effects that might result.
In January 1989 State Parliament was recalled to debate the Department of Environment’s guidelines for the environmental management plan. There was strong public criticism of the guidelines, a situation fuelled by a comment by the Director of the Department to Cabinet that the mill was a ‘chemical plant rather than a pulp mill’. Parliament, however, approved the guidelines but the companies requested further negotiation. They subsequently issued an ultimatum that unless the guidelines were reconsidered the agreement to development would be terminated. The Minister for Environment then threatened to resign if the guidelines were weakened. Interpretation of the guidelines led to more public disquiet and street rallies on a scale similar to those associated with the protests over the Franklin Dam. When the Tasmanian Government passed The Northern Pulp Mill (Doubts Removal) Agreement 1989 the final decision on the future of the project lay with the Commonwealth Government.
While these matters were being debated and disputed at a State level, the Commonwealth Department of Environment had begun its assessment of the project for the Commonwealth Foreign Investment Review Board. This process helped to flush out the fact that the mill would release a quantity of dioxin in liquid wastes discharged into Bass Strait. Then, unexpectedly, the Commonwealth Minister for Primary Industries announced that the Commonwealth would conduct its own scientific assessment of the environmental effects of the mill because of his concern for the risks to the Australian export markets from dioxins or other chemical effluent. The evaluation concluded that the environmental impact statement (EIS) was grossly inadequate and was critical of the Tasmanian Government’s Northern Pulp Mill (Doubts Removal) Agreement. On the 15 March 1989, the Commonwealth Cabinet decided that it was unable to recommend that the Foreign Investment Review Board approve the project. While the economic benefits of the project were recognised the environmental conditions set by Cabinet were in the wider national interest and should be met.
At this point the companies responded that they could not afford continued expenditure without a guarantee that approval for the project would finally be granted, and cancelled the project.
The need for change
As can be seen from these three examples, the planning and development approval process had failed to deliver outcomes which met the needs of Government for investment or increased employment; developers for certainty of process; or indeed the wider community. These failings had led to deep community division; concern for the transparency and adequacy of impact assessment processes; and, had given investors a negative impression of the difficulty of doing business in Tasmania. The Tasmanian Government had not heeded the recommendations of the 1974 Federal Government Inquiry into the flooding of Lake Pedder, or other commentators who, over the years, had also called for legislative reform. However, by the late 1980s concern for the environment and the sustainability of past practices had become mainstream political and social issues. This change in community values was misread by the Government of the day. Thus, when an election was called by Premier Robin Gray in May 1989 the Liberal party lost office to the Green Independents and a reformist Labor Party which were more in tune with the changed community attitudes. The Labor-Green Accord, while short lived, heralded sweeping reforms affecting the processes of Government and the approach to environmental management.
In the May 1989 election 17 Liberal, 13 Labor and 5 Green Independent candidates were elected to the House of Assembly. The five Green Independents combined with the Labor Party to give the Labor Party government, and the arrangement was formalised through the Tasmanian Parliamentary Accord. The Accord committed both parties to work towards common objectives. A significant component of the reform agenda included proposals for broad and sweeping change to environmental management practices. However, Labor recognised that environmental protection was a complex and difficult issue, and would require a comprehensive overhaul of administrative systems. An early commitment was to put industry on notice that ministerial exemptions were to be phased out over a period of five years.
An integrated approach to sustainable development
With the decision to set a deadline on exemptions there was a further commitment to update environment and planning laws. With the recent experience in Tasmania of failed development projects, development control was recognised as a critical issue and, in the community consultation process that followed, industry and conservation interests indicated general dissatisfaction with the duplicate development approval processes that were in place. Since no one liked the fact that planning decisions were taken in isolation from environmental concerns, and that objections to separate appeal bodies failed to result in holistic appraisal of development proposals, there was much common ground. Following extensive community consultation, and the release of a number of public discussion papers prepared by the then Policy Division of the Department of Environment and Planning, both industry and conservation interests were unanimous in agreeing that there was scope for bringing the two approval systems together. The pressure for this change of approach was not government initiated. Responding to calls for integration, government bureaucrats drafted proposals that took into account these community based views and advised government of a possible legislative framework. The result is now outlined in brief, but not before some brief comment is made about a significant change in political circumstance.
The Labor-Green Accord disintegrated because of differing views over the question of resource security for the forest-based industries. Tensions among the Accord partners had run high in the latter months of 1990 and an election was called for the new year. The election of a Liberal majority government early in 1991 changed the complexion of the legislative reform agenda. Under the Liberal administration there was a much stronger emphasis on development, and this was reflected in the hierarchy of legislation introduced. The point to stress, however, is that the suite of legislation introduced retained the fundamental objective of encouraging developments that were sustainable. While the administrative structures established were much different from those proposed under Labor, many of the environment and planning instruments, such as the objectives of the new laws together with transparent environmental impact assessment processes, common enforcement and appeal processes, were retained.
State Policies and Projects Act 1997 (Tas)
The first of the Bills to be introduced and passed by Parliament was the State Policies and Projects Act 1997. It has four primary functions. First, the legislation provides the umbrella framework for implementing legally enforceable statewide policies for such matters as coastal protection and water quality management. All planning schemes controlling land use administered by local government are obliged to abide by these planning policies. The second function is to prescribe the development approval pathway and assessment process for projects of State significance that have the potential to impact across the Tasmanian economy. The Resource Planning and Development Commission has been given the responsibility under the legislation (amended in 1997) for managing the assessment of economic, social and environmental effects of such projects. The Commission also has the responsibility for recommending to Government whether the proposal should be approved and with what development conditions attached. Government is the decision maker, but can only accept or reject the recommendations of the Commission.
The third function of the State Policies and Projects Act is to provide for State of the Environment Reporting. The purpose of such reports is to take a snap shot over time of changing environmental conditions, and to feed this information back into decision making processes. The reports look at the effects of human activity on the environment, as well as the implications for human health, the status of ecosystems, and economic well being. Over time the SOE reports will become a long term strategic planning tool which will encourage the targeting of scarce resources to priority, or emerging, environmental problems. The reports are produced every five years with the first Tasmanian report published in 1996. Finally, but importantly, the Act introduces and defines the important concept of sustainable development which is the core objective of the resource management and planning system. All decision makers are obliged to further this objective in administering the legislation, and further, the Crown is bound.
As stated in the legislation the objectives of the resource management and planning system are:
- to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity;
- to provide for fair, orderly and sustainable use and development of air, land and water;
- to encourage public involvement in resource management and planning;
- to facilitate economic development in accordance with the preceding objectives; and,
In the objectives, ‘sustainable development’ means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while:
- to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.
The objectives signal that decisions on the use or exploitation of resources needs to take into account the wider economic, social and environmental consequences of development activity. The emphasis has changed from where development is located to how use or development occurs, and what the effects of development might be. Consideration needs to be given to the long term consequences by:
- sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations;
- safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
- avoiding, remedying or mitigating any adverse effects on the environment.
- noting the wider social implications of decisions;
- thinking about future generations;
- planning for the conservation of biodiversity through the protection of habitat, species, and genetic diversity;
- erring on the side of caution (or taking a precautionary approach); and,
This new emphasis comes about because many past practices have been unsustainable leading to, for example, declining water quality in river systems such as the Derwent and Tamar, and unacceptable air pollution in cities such as Launceston. At the extreme species have become extinct, for example, the demise of the Tasmanian Tiger.
Land Use Planning Approvals Act 1993
Since many environmental concerns in the past have arisen from land use planning decisions, the Land Use Planning Approvals Act was introduced to control development through the use of planning schemes. Planning schemes are administered by local government, use common planning principals, and take account of the sustainable development objectives of the law. The Act prescribes the time lines for development approvals together with a uniform set of environmental impact assessment (EIA) principles. Developments that accord with the requirements of a planning scheme, and are a permitted activity, can usually be approved within 42 days. The legislation also provides for the Director of Environmental management to call in a proposal in circumstances where there is a perceived environmental risk.
In the event that there are objections to a development proposal, there is provision for hearings before the Resource Management and Planning Appeal Tribunal. The Tribunal was established by legislation to hear objections on their merit, and not on points of law. A developer can appeal the conditions of a development permit, and the public can appeal on planning, environmental or questions of a project’s capacity to operate sustainably. In addition, the tribunal has a civil enforcement function under the Environmental Management and Pollution Control Act (EMPCA), and can issue orders for securing compliance with environment or planning requirements.
Environmental Management and Pollution Control Act 1994 (EMPCA) (Tas)
EMPCA completed the suite of legislation and was introduced in May 1994. It replaced the dated Environment Protection Act 1973, with its command and control approach to regulatory enforcement, with a new generation of environmental management and enforcement tools. These comprise incentives for industry to go beyond regulatory standards by providing for reduced taxes and permit fees to encourage excellence. Environmental audits are also encouraged, and there are mandatory provisions for industry to negotiate environmental improvement programs. These provide a mechanism for securing compliance with regulatory standards over a specified time frame of not more than three years. Failure to meet the conditions of such a program can attract penalties. The public can appeal the terms.
A more flexible approach to enforcement is also provided by the Act. There are environment protection notices, civil enforcement remedies, and a series of tiered penalties which, at the extreme, include goal terms and million dollar fines for corporate executives. These significant penalties are for what might be considered acts of environmental vandalism resulting in serious environmental harm; a concept underpinning the enforcement provisions of the legislation. The term Environmental harm is defined and has a specific meaning at law.
Lastly, EMPCA details the principles of the environmental impact assessment (EIA) process found in the State Policies and Projects Act, and the Land Use Planning and Approvals legislation. These principles are applied in the assessment of all development projects. Activities listed in a Schedule to the Act are subject to what has become known as level two assessments, and the assessment is made by the Environmental Management Division of the Department of Primary Industry, Water and Environment. The local authority considers compliance with planning requirements. At the end of the approval process the proponent obtains a consolidated development permit with both planning and environmental conditions attached. No longer do investors have to face multiple approval or appeal processes in Tasmania.
NATIONAL AND INTERNATIONAL OBLIGATIONS
While Tasmania has relatively sophisticated legislation for the protection of the environment approaches to environmental management are still evolving. International treaty obligations also have to be factored in. Australia is signatory to over 90 environmental agreements the most notable of which relate to climate change, World Heritage, protection of wetlands and endangered species, marine pollution and biodiversity. And, on 16 July 1999 Commonwealth Parliament paved the way for further discussions with the States with the passage of the Environment Protection and Biodiversity Conservation Act. While at the time of writing the Act has still to be proclaimed, bi-lateral negotiations will have to be entered into with each of the States and territories to accredit the State’s environmental laws. Under these agreements , the Commonwealth basically delegates to the States and Territories responsibility for EIA. The exceptions are six and will be reviewed every five years:
- ensuring the efficient use of resources.
- World Heritage Properties;
- Internationally protected migratory species and whales;
- Nationally threatened species;
Even in these situations where the Commonwealth can intervene, delegation to the States for impact assessment, and scrutiny of activities for potential environmental harm or damage, is still possible. Fundamentally, the aim is to achieve a greater degree of harmonisation between Commonwealth and State processes, particularly with respect to environmental impact assessment procedures and the trigger mechanisms that will require certain types of project to be assessed. The legislation should reduce, if not eliminate, the duplication between State and Commonwealth processes in major project assessment. For the moment there is an element of uncertainty within industry about the extent and reach of this new legislation.
Outside the realm of environmental legislation, there are also a raft of other management tools which have the potential to deliver more sustainable environmental management practices. These include formalised environmental management systems such as international management standard ISO14 001. New corporations law is also starting to have an effect. Section 299(I), Corporations Law, requires businesses operating under certain environmental permits and licenses to produce public environmental reports. National guidelines for these reports are under development. The detail of what is required in an environmental report is at the moment not clear, but should be viewed as part of a wider process requiring enterprises to demonstrate ‘due diligence’. Tasmanian firms are not immune from these trends. The connections are not always made between business efficiency and improved environmental outcomes. But pollution and environmental harm frequently result from waste discharged to either air, land, or water. Most people intuitively know that waste is bad, and in business waste costs money. Looked at in this light, improved environmental management and business efficiency are complementary. This understanding has implications for the State's ‘green image’.
- Commonwealth marine areas;