Understanding sustainability law 9780409345476, 0409345474

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Understanding Sustainability Law

To those who make me think of the future — Alexandra and Catherine

Understanding Sustainability Law Rhett Martin BComm (Melb), LLB (Melb), LLM (Deakin), Grad Cert in Law Teaching (Monash), PhD (Fed) Lecturer in Law, University of Southern Queensland LexisNexis Butterworths Australia 2018

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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Author: Title: ISBN: Notes: Subjects:

Martin, Rhett (Rhett Dee) Understanding Sustainability Law 9780409345476 (pbk) 9780409345483 (ebk) Includes index. Environmental law — Australia. Sustainability — Law and legislation — Australia. Climatic changes — Law and legislation — Australia.

© 2018 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Frutiger LT Std and Bembo. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface In the modern era, Australia has included sustainability criteria into regulation and law, most noticeably through the adoption of principles of ecologically sustainable development. The inclusion of these principles into conservation and resource extraction legislation has spawned a category of law labelled ‘sustainability regulation’. Whilst conservationists might argue they do not go far enough, their inclusion represents a considerable advance from previous eras when the predominant thinking was to grow wealth by being masters of our environment. Sustainability notions accept that rather than mastering or controlling the Earth, we may gain a long-term sustainable future by acting in a unified and purposeful manner, embracing shared responsibility to achieve defined sustainability objectives. The sustainability imperative is gaining momentum and to succeed, all levels of government, business and the community must act as one. To do this successfully, it will be necessary to address sustainability in regulation. Even though there is progress, much more is required to get sustainability regulation where it needs to be. Part of the problem is the tired notion that environmental regulation acts as a brake on economic growth. The fact is that sustainability is spawning new industries and innovative ways to produce things. Limiting economic growth comes from poor planning and a lack of imagination. It also comes from poorly drafted regulation that impedes the very thing it is trying to do. To change behaviour to embrace sustainability requires careful drafting that gets the balance right between economic growth and sustainably protecting the environment. They are not mutually exclusive concepts; instead they can be mutually reinforcing but it requires understanding of how competing aims can be reconciled in regulation. This book addresses one aspect of the sustainability imperative — awareness of the law. By describing the multifaceted nature of sustainability regulation, students, teachers, and anyone interested in sustainability will understand how law and sustainability intersect. With understanding comes a greater awareness of the key drivers of that intersection. Unfettered consumerism is no longer possible, but economic growth remains a key policy target, but that will depend on the bounty

provided by nature. We need to respect this, and recognise limits to the Earth’s carrying capacity as an integral part of policymaking. Sustaining Earth’s life support systems and a sustainable economic growth model are inherently interconnected. Humankind is part of the ecosystem and everything is interconnected. Sustainability regulation will provide a way forward by addressing the balance between sustaining ecosystems and economic growth. Getting that balance right requires understanding the constituent elements of both. It also requires understanding how regulation changes behaviour. Regulation requires a nuanced approach to address the very complexity inherent in ecosystems. In that respect there is still a long way to go. However, Understanding Sustainability Law introduces where we are and where we need to go to in sustainability regulation to help ensure the prosperity of humankind on the Earth. Rhett Martin June 2017

Table of Cases References are to paragraph numbers

A Anderson v Director General, Department of Environment and Conservation (2006) 144 LGERA 43 …. 2.47 — v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400 …. 2.21, 2.48

B BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 …. 2.37, 2.41 Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 165 FCR 211 …. 2.18 Booth v Bosworth (2001) 14 FCR 39; 117 LGERA 168; [2001] FCA 1453 …. 5.40 BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 …. 2.38 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 194 LGERA 347; [2013] NSWLEC 48 …. 2.23 Byron Shire Council v Vaughan [2009] NSWLEC 88 …. 3.48

C Carbon v Palos Verdes Estates Pty Ltd [1990] ELR 179 …. 6.29 Charles and Howard Pty Ltd v Redland Shire Council [2006] QPEC 95 …. 3.64 Chesol Pty Ltd v Logan City Council [2007] QPELR 285; [2007] QPEC 1 …. 2.23, 2.60 Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 …. 6.45 Commonwealth v Tasmania (1983) 158 CLR 1 …. 3.13

Conservation Council of SA v DAC Tuna Boat Owners Assoc (No 3) [2000] SAERDC 67 …. 2.40 CSR Ltd v Caboolture Shire Council [2001] QPELR 398 …. 2.40

D Development Assessment Commission v A & V Contractors Pty Ltd (2011) 109 SASR 276; [2011] SASCFC 21 …. 2.24

E East Melbourne Group Inc v Minister of Planning (2008) 23 VR 605; [2008] VSCA 217 …. 2.23 Enfield City Corporation v Development Assessment Commission (2000) 106 LGERA 419 …. 6.44 Environment East Gippsland Inc v VicForests [2009] VSC 386 …. 1.106, 11.8, 11.42, 11.46, 12.60 — v — [2010] VSC 335 …. 11.79, 11.81 Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254; [1999] NSWLEC 192 …. 6.63 — v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50 …. 10.10, 10.11 — v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 …. 2.57

F Friends of Hinchinbrook Society Inc. v Minister for Environment (1997) 93 LGERA 249 …. 2.34

G Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 …. 3.64 Gray v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720 …. 2.46, 3.51 Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGERA 143 …. 2.37

H

Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 …. 2.39, 2.75 Heavenly Queen Temple Society Inc v Maribynong City Council [2005] VCAT 2005 …. 2.39 Heydon’s case (1854) 3 Co Rep 404 …. 12.46

K Kasky v Nike No S087859, 2 May 2002 …. 11.66 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 …. 12.46

L Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 …. 2.33, 2.37, 2.56

M Marsh v Baxter (2014) 46 WAR 377; [2014] WASC 187 …. 8.53 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 …. 2.51 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 …. 2.28 Minister for Planning v Walker (2008) 161 LGERA 423 …. 2.18, 2.27, 2.28 Minister for the Environment and Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741 …. 4.127

N Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 …. 2.56 Nicholls v Director General of National Parks and Wildlife Service (1994) 84 LGERA 397 …. 2.37

P Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 …. 6.29 Paltridge v District Council of Grant [2011] SAERDC 23 …. 2.30 Phosphate Cooperative Co-of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134 …. 6.45 Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2012] NSWLEC 426 …. 12.55

Q Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322; [2007] QCA 338 …. 3.49, 3.50

R Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 …. 2.26 Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 …. 2.35

S Shannon v Dalby Town Council [2004] QPEC 62 …. 2.39 Simpson v Ballarat City Council (2012) 188 LGERA 123; [2012] VCAT 133 …. 2.30 Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council [2001] QPELR 101 …. 2.30, 2.35 State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 …. 6.61 — v Kelly (1991) 5 ACSR 607 …. 6.63

T Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59 …. 2.49, 3.52 Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; 146 LGERA 10; [2006] NSWLEC 133 …. 1.106, 2.30, 2.35, 2.41, 12.56, 12.57 Tullamore Bowling and Citizens Club Ltd v Lander [1984] 2 NSWLR 32 …. 12.46 Tuna Boat Owners Association of South Australia Inc v Development Assessment Commission (2000) 10 LGERA 1 …. 2.34

W Western Districts Developments Pty Ltd v Baulkham Hills Shire Council (2009) 75 NSWLR 706; [2009] NSWCA 283 …. 3.48 Wik Peoples v The State of Queensland (1996) 187 CLR 1 …. 8.24

Table of Statutes References are to paragraph numbers

Commonwealth Australian Consumer Law …. 4.102 s 18 …. 4.102 s 29 …. 4.102 Australian National Registry of Emissions Units Act 2011 …. 3.21 Biological Control Act 1984 …. 8.41 Biosecurity Act 2015 …. 8.54 Building Energy Efficiency Disclosure Act 2010 …. 3.58, 3.59, 5.9, 7.39 ss 10–21 …. 5.9 Building Energy Efficiency Disclosure Determination 2016 …. 7.39 Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016 …. 7.39 Building Energy Efficiency Disclosure Regulations 2010 …. 7.39 Carbon Credits (Carbon Farming Initiative) Act 2011 …. 3.21, 5.8 Pt 3 …. 3.60 Pt 9 …. 3.60 ss 16–18 …. 3.60 s 107 …. 3.60 Clean Energy Act 2011 …. 3.20, 3.25 Pt 3 …. 3.22 s 5 …. 3.22 s 14 …. 3.24 s 54 …. 3.22 s 54A …. 3.22

s 100 …. 3.20 ss 103–110 …. 3.24 s 111 …. 3.21 s 114 …. 3.21 s 133 …. 3.24 Clean Energy Regulator Act 2011 …. 3.21 Commonwealth Constitution s 100 …. 4.17 Corporations Act 2001 …. 12.30, 12.38 s 588G …. 12.38 Criminal Code Act 1995 Div 137 …. 3.25 Energy Efficiency Opportunities Act 2006 …. 3.57 ss 20–23 …. 3.57 ss 288–317 …. 3.57 Environment Protection and Biodiversity Conservation Act 1999 …. 2.12, 2.18, 2.29, 2.59, 2.126, 3.50, 3.51, 4.126, 4.127, 5.21, 5.40, 7.50, 8.22, 8.35, 8.41 Pt 9 …. 8.35 s 3 …. 2.126 s 3(1)(b) …. 4.126 s 3A …. 2.29, 2.126 s 3A(a) …. 2.12 ss 12–25 …. 5.40 s 67 …. 5.40 s 136(2) …. 2.126 s 144 …. 5.40 s 145 …. 5.40 s 391 …. 2.29, 2.126

Fisheries Management Act 1991 …. 2.102 s 3 …. 2.16, 2.102 Gene Technology Act 2000 …. 8.51, 8.52 Gene Technology Regulations 2001 …. 8.51 Great Barrier Reef Marine Park Act 1975 …. 2.134 s 2A(1) …. 2.134 s 2A(2) …. 2.134 s 3AB …. 2.134 s 7(3) …. 2.135 s 32 …. 2.135 Greenhouse and Energy Minimum Standards Act 2012 …. 3.61, 7.42 National Environment Protection Council Act 1994 …. 6.12, 6.13 Pt 4 …. 6.27 Pt 5 …. 6.27 s 9 …. 6.13 s 14 …. 6.14 s 14(1) …. 6.15, 6.18, 6.20, 6.21, 6.23, 6.25 s 20 …. 6.17 s 23 …. 6.28 National Environment Protection Measures (Implementation) Act 1998 …. 6.27 National Greenhouse and Energy Reporting Act 2007 …. 3.25, 5.8, 8.36 s 9 …. 3.22 ss 12–18B …. 3.25 s 13 …. 3.25 ss 29–48 …. 3.25 ss 73–75A …. 3.25 National Greenhouse and Energy Reporting Regulations 2008 …. 3.25 Native Title Act 1993 …. 8.24

Offshore Petroleum and Greenhouse Gas Storage Act 2006 …. 3.33, 5.41 Pt 6.4 …. 5.41 s 3 …. 5.41 s 266 …. 5.41 ss 312–315 …. 3.35 ss 318–354 …. 3.34 ss 376–378 …. 3.36 ss 379–382 …. 3.36 ss 402–410 …. 3.33 ss 422–425 …. 3.33 s 438 …. 5.41 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 …. 3.33, 3.36 reg 3 …. 3.36, 5.41 Offshore Petroleum and Greenhouse Gas Storage (Management of Greenhouse Gas Injection and Storage) Regulations 2011 …. 3.33 Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011 …. 3.33 Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 …. 3.33 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 …. 9.16 Petroleum (Submerged Lands Act) 1967 s 157 …. 5.41 Product Stewardship Act 2011 …. 9.16, 9.17, 9.22, 9.24, 9.29, 9.32, 9.47, 10.41, 10.42, 12.30 Pt 2 …. 10.41 Pt 3 …. 10.41 Pt 4 …. 10.41 s 4 …. 9.16, 9.18

s 10 …. 9.17 s 12 …. 9.17 s 19 …. 9.18 s 21 …. 9.18 s 37(2) …. 10.41 Product Stewardship (Oil) Act 2000 …. 10.43 Product Stewardship Regulation 2012 …. 9.17, 10.42 Product Stewardship (Televisions and Computers) Regulations 2011 …. 9.19, 10.41, 10.42 Renewable Energy (Electricity) Act 2000 …. 3.54, 5.6, 5.8, 5.42 Pt 2A …. 3.56 s 6 …. 3.54 s 8 …. 3.54 s 31 …. 5.7 s 34A …. 5.7 ss 35–53A …. 3.55, 5.6 Renewable Energy (Electricity) (Large-Scale Generation shortfall Charge) Act 2000 …. 5.8 Renewable Energy (Electricity) Regulations 2001 …. 5.8 reg 23 …. 5.6 Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge Act 2010) …. 5.8 Water Act 2007 …. 2.91, 4.18, 4.32, 4.58, 4.60, 4.96, 4.97, 4.126, 4.128, 8.43, 8.48 s 3 …. 2.91, 4.32, 4.128 s 4(2) …. 2.92, 4.32 s 20 …. 2.91, 4.32, 4.128 s 21 …. 4.128 s 21(4) …. 2.92, 4.32 s 22(1) …. 4.59

s 23(1) …. 4.32, 4.128 s 86A …. 2.93 World Heritage Properties Conservation Act 1993 s 13(1) …. 2.34

Australian Capital Territory Environment Protection Act 1997 …. 6.52 s 5 …. 6.29 ss 137 –142 …. 6.60 Greenhouse Gas Reduction Act 2010 …. 3.37 National Environment Protection Council Act 1994 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Water Resources Act 1998 …. 4.11

New South Wales Access Licence Dealing Principles Order 2000 …. 4.107 Agriculture Regulation 2016 …. 8.36 Biosecurity Act 2015 …. 8.51, 8.54 Catchment Management Authorities Act 2003 …. 4.38 Clean Waters Act 1970 …. 6.1 Crown Land Act 1989 …. 2.106 s 10 …. 2.106, 2.107 s 11 …. 2.106, 2.107 s 11(e) …. 2.107 s 32(1) …. 2.106 Electricity Supply Act 1995 Pt 9 …. 5.13 Electricity Supply (General) Regulation 2014 Pt 8 …. 5.13 Energy and Utilities Administration Act 1987 …. 5.12

Pt 6.A …. 3.63, 5.12 s 5 …. 5.12 s 11 …. 5.12 s 34S …. 12 Energy Savings Scheme Rule of 2009 …. 5.13 Environment Operations (Waste) Regulation 2005 Pt 2 …. 10.52 Environmental Planning and Assessment Act 1979 …. 2.16, 2.27, 2.28, 2.49, 2.108, 3.52 Pt 4 Div 4.1 …. 5.39 s 5 …. 2.108 s 5A …. 2.108 s 76 …. 5.37 s 79C …. 2.26 s 89E(2) …. 5.39 s 89E(3) …. 5.39 s 89K …. 5.39 s 111 …. 5.37 s 112 …. 5.37 s 112(4) …. 5.37 Environmental Planning and Assessment Regulation 2000 Sch 2 cl 7 …. 5.38 Environmentally Hazardous Chemicals Act 1985 …. 10.17 Fisheries Management Act 1994 …. 2.98 s 3 …. 2.98 Game and Feral Animal Control Act 2002 …. 8.41 Local Land Services Act 2013 …. 8.41 Mining Act 1992 …. 5.37, 8.24 s 3A …. 5.37

s 23A …. 5.37 s 62 …. 5.38 Sch 1 cl 22 …. 5.38 National Environment Protection Council (New South Wales) Act 1995 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 National Parks and Wildlife Act 1974 …. 2.20, 2.132, 8.41 s 2A(1)(a) …. 2.132 s 2A(2) …. 2.20 s 41 …. 5.38 s 54 …. 5.38 s 58O …. 5.38 s 64 …. 5.38 Native Vegetation Act 2003 …. 8.34, 8.37 s 6 …. 8.37 Native Vegetation Regulation 2013 …. 8.34 Noxious Weeds Act 1993 …. 8.36 Pesticides Act 1999 …. 8.41 Petroleum (Onshore) Act 1991 s 72 …. 5.38 Protection of the Environment Administration Act 1991 …. 2.12, 2.121 s 6(2) …. 2.12, 2.133 Protection of the Environment Operations Act 1997 …. 2.16, 2.121, 6.59, 10.13, 10.15 s 3 …. 2.121 s 4 …. 10.10, 10.13 s 6 …. 2.121 s 6(2) …. 2.121 s 10 …. 2.121 s 67 …. 6.47

s 115 …. 6.52 s 119 …. 6.59 s 143 …. 10.13, 10.19 s 144 …. 10.13, 10.19 s 144AA …. 10.13 ss 174–176 …. 6.47 s 323 …. 10.15 Sch 1 …. 10.16 Protection of the Environment Operations (General) Regulation 1998 …. 2.57, 2.62 Protection of the Environment Operations (Waste) Regulation 2005 reg 46B …. 10.7 Protection of the Environment Operations (Waste) Regulation 2014 …. 9.25, 10.13, 10.15, 10.18, 10.19 cl 70 …. 10.19 cl 91 …. 10.18 cl 92 …. 10.18 cl 93 …. 10.18 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 10 …. 5.37 State Environmental Planning Policy (State and Regional Development) 2011 Sch 5 …. 5.39 Sch 6 …. 5.39 Sydney Water Catchment Management Act 1998 …. 4.38 Threatened Species Conservation Act 1995 …. 2.133 s 3 …. 2.133 s 97(1)(e) …. 2.133 s 126A …. 2.133

s 140(1) …. 2.133 Waste Avoidance and Resource Recovery Act 2001 …. 9.23, 10.14, 10.42 Pt IV …. 10.14 s 3 …. 10.14 s 3(1) …. 10.7 s 15 …. 9.23, 10.36 s 15(2) …. 9.23 s 15(3) …. 9.23 s 17 …. 9.23 s 18 …. 9.23 Water Management Act 2000 …. 4.11, 4.23, 4.37, 4.65, 4.68, 4.70, 4.71, 4.106, 4.107, 4.131, 4.132, 8.44, 8.49 s 3 …. 4.23 s 5 …. 4.131 s 5(3) …. 4.37, 4.131 s 8 …. 4.131 s 9(1)(b) …. 4.37, 4.131 s 20 …. 4.131 s 54 …. 8.49 s 58(3) …. 4.67 s 60A …. 4.71 s 60C …. 4.71 s 63(2) …. 4.68, 4.132 s 71B(1) …. 4.106 Wildcat Dog Destruction Act 1921 …. 8.41

Northern Territory National Environment Protection Council (Northern Territory) Act 1994 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Pastoral Land Act 2014 …. 8.26

Territory Parks and Wildlife Conservation Act 2006 …. 8.41 Waste Management and Pollution Control Act 1998 …. 2.119 s 4 …. 10.10 s 5 …. 2.119 s 32 …. 2.119 s 47 …. 6.47 s 57 …. 2.119 s 58 …. 2.119 Water Act 1992 …. 4.11

Queensland Animal Care and Protection Act 2001 …. 8.41 Biodiscovery Act 2004 …. 6.11 Biosecurity Act 2014 …. 8.54 Clean Energy Act 2008 …. 6.11 Coastal Protection and Management (Coastal Management Districts) Regulation 2003 …. 6.11 Electricity Act 1994 …. 5.32, 6.11 Ch 5 …. 3.46 s 27(c) …. 5.32 s 31(b) …. 5.32 s 42(c) …. 5.32 Environmental Protection Act 1994 …. 2.84, 2.124, 2.125, 5.30, 5.31, 5.32, 6.11, 6.12, 6.43, 6.48, 6.49, 6.54, 6.55, 10.30, 12.30 Ch 5 …. 5.31 Ch 14 Div 4 …. 5.31 s 3 …. 2.124, 5.31 s 4(1) …. 2.124, 2.125 s 5 …. 2.124, 2.125 s 9 …. 6.54

s 14 …. 6.11, 6.54 s 15 …. 6.54 s 16 …. 6.54 s 17 …. 6.55 s 94 …. 6.33 s 110 …. 5.32 s 112 …. 5.32 s 121 …. 5.32 s 121(1)(f) …. 2.84 s 122 …. 5.32 s 123 …. 5.32 s 124 …. 5.32 s 125(1)(l) …. 5.32 s 319 …. 6.58 s 358 …. 6.48 s 361 …. 6.48 s 363E …. 6.48 s 363I …. 6.48 s 363N …. 6.48 s 426 …. 5.32 ss 426–427 …. 6.43 ss 437–438 …. 6.11 ss 437–440 …. 6.52 s 493A(3) …. 6.58 s 493A(4) …. 6.58 s 493A(5) …. 6.58 Environmental Protection (Chain of Responsibility) Amendment Act 2016 …. 6.49 Environmental Protection Regulation 2008 …. 6.11, 6.54

Environmental Protection (Underground Water Management) and Other Legislation Act 2016 …. 8.47 Environmental Protection (Waste Management) Regulation 2000 …. 6.11, 10.12, 12.30 Fire and Rescue Services Act 1990 …. 6.11 Fisheries Act 1994 …. 2.96, 2.97 s 3(1) …. 2.96 s 3(5) …. 2.97 Geothermal Energy Act 2010 …. 6.11 Geothermal Energy Resources Act 2005 …. 3.46 Geothermal Exploration Act 2004 …. 3.46 Greenhouse Gas Storage Act 2009 …. 3.41, 6.11 Ch 2 …. 3.41 Ch 3 …. 3.41 s 3 …. 3.41 ss 101–105 …. 3.41 Land Act 1994 …. 2.109, 2.110, 6.11 s 4 …. 2.109 s 16(1) …. 2.110 s 16(2) …. 2.110 s 60(1) …. 2.109 Land and Other Legislation Amendment Act 2014 …. 8.26 Land Protection (Pest and Stock Route Management Act) 2002 …. 8.41 Marine Parks Act 2004 …. 6.11 Mineral Resources Act 1989 …. 5.30, 5.32, 6.11 s 2 …. 5.30 s 269(4)(J) …. 5.30 s 271(1)(b) …. 5.30 Mineral Resources Act 1998 …. 2.83

s 2 …. 2.83 s 269(4) …. 2.83 Mining and Other Legislation Amendment Act 2007 …. 3.50 National Environment Protection Council (Queensland) Act 1994 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Native Title Queensland Act 1993 …. 6.11 Nature Conservation Act 1992 …. 2.131, 8.34 s 4 …. 2.131 s 9 …. 2.131 Offshore Minerals Act 1998 …. 6.11 Petroleum and Gas (Production and Safety) Act 2004 …. 2.84 s 3(1)(a)(i) …. 2.84 Public Health Act 2005 …. 6.11 Sustainable Planning Act 2009 …. 2.12, 2.29, 2.59, 2.111, 6.11, 8.34 s 3 …. 2.111 s 4 …. 2.111 s 5 …. 2.111 s 5(2) …. 2.29 s 8 …. 2.12, 2.111 s 11 …. 2.112 Vegetation Management Act 1999 …. 8.34 Vegetation Management Framework Amendment Act 2013 …. 8.34 Waste Reduction and Recycling Act 2011 …. 9.29, 10.12, 10.27 s 4 …. 10.27 s 4(2) …. 10.27 s 9 …. 10.27 s 13 …. 9.29 s 61 …. 10.30 s 62 …. 10.30

s 77 …. 9.30 s 78 …. 9.30 s 83 …. 9.29 s 84 …. 9.30 s 85 …. 9.30 s 90 …. 9.30 s 98 …. 9.29, 9.30 Waste Reduction and Recycling Regulation 2011 …. 6.11, 10.12 Water Act 2000 …. 4.11, 4.24, 4.25, 4.43, 4.83, 4.84, 4.86, 4.112, 4.135, 8.44, 8.49 Ch 2 Pt 3 …. 4.83 Ch 2 Pt 4 Div 4 Subdiv 2 …. 4.112 Pt 2 …. 4.45 s 2 …. 4.24 s 2(a) …. 4.24 s 10 …. 4.135 s 11 …. 4.135 s 19 …. 4.83 s 120B …. 4.83 s 128B …. 4.113 Water Legislation Amendment Act 2016 …. 8.47 Water Reform and Other Legislation Amendment Act 2014 …. 4.43, 8.47 Water Regulation 2002 …. 6.11 Wild Rivers Act 2005 …. 4.135 s 3 …. 4.135

South Australia Climate Change and Greenhouse Emissions Reduction Act 2007 …. 3.42 s 5 …. 3.37 Development Act 1993 …. 2.115

Pt 8 …. 5.36 Environment Protection Act 1993 …. 2.120, 5.34, 9.34, 10.51 s 10(1) …. 2.120 s 10(2) …. 2.120 s 45 …. 6.44 s 57 …. 6.45 s 57C …. 10.32 ss 64–73 …. 10.51 ss 68–71 …. 6.44 Environment Protection Regulations 2009 reg 31 …. 6.45 Green Industries SA Act 2004 …. 9.34, 10.48, 10.49 s 3A …. 10.48 s 5 …. 10.48 s 18 …. 10.49 Livestock Act 1997 …. 8.54 Mining Act 1971 …. 5.33, 5.34 s 34(6) …. 5.33 s 73G(1) …. 5.34 s 73H(1) …. 5.34 National Environment Protection Council (South Australia) Act 1995 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Native Vegetation Act 1991 …. 8.34 s 28 …. 8.34 s 29 …. 8.34 Natural Resources Management Act 2004 …. 4.26, 4.88, 4.89, 4.114, 4.115, 4.136, 5.33, 5.36, 8.41, 8.54 s 7 …. 4.26, 4.136, 5.33 s 17 …. 4.136

s 29 …. 4.136 s 52 …. 4.136 s 76 …. 4.136 s 125(1) …. 4.89 s 125(2) …. 4.89 s 147 …. 4.136 s 150 …. 4.115 s 152(1)(a) …. 4.89 s 153(1)(a) …. 4.90 s 153(1)(b) …. 4.90 s 157 …. 4.90, 4.115 s 170 …. 4.136 Petroleum and Geothermal Energy Act 2000 …. 5.33, 5.35, 5.36 s 3 …. 5.35 s 4 …. 5.35 s 10(a) …. 5.35 s 10(c) …. 5.35 s 10(f) …. 5.35 s 10(g) …. 5.35 s 87 …. 5.35 s 95 …. 5.36 s 99(1)(a) …. 5.36 s 100(2) …. 5.36 s 105(1) …. 5.36 Plant Health Act 2009 …. 8.54 Water Industry Act 2012 …. 4.47 s 3 …. 4.47 Water Resources Act 1997 …. 4.11, 8.44

Zero Waste SA Act 2004 s 5 …. 9.34 s 20 …. 9.34

Tasmania Animal (Brands and Movements) Act 1994 …. 8.54 Animal Farming (Registration) Act 1994 …. 8.54 Animal Health Act 1995 …. 8.54 Environmental Management and Pollution Control Act 1994 s 4 …. 6.56 s 5(2)(a) …. 6.53 s 30 …. 6.53 s 53 …. 6.53 Sch 1 …. 2.122 Environmental Management and Pollution Control Act 1997 …. 4.94 Forest Practices Act 1985 …. 2.74, 2.75 s 4B …. 2.76 s 30 …. 2.74 Sch 7 …. 2.75 Forestry Act 1920 …. 2.74 s 6 …. 2.74 s 7 …. 2.74 s 8(1) …. 2.76 Land Use Planning and Approvals Act 1993 …. 2.116 s 3 …. 2.115 s 3(c) …. 2.115 s 5 …. 2.116 Sch 1 …. 2.116 Mineral Resources Development Act 1995 …. 5.18

s 11(2)(c)(v) …. 5.18 s 29 …. 5.18 s 29(b) …. 5.18 s 43A …. 5.18 s 180 …. 5.18 s 181(b) …. 5.18 Mining (Strategic Prospectivity Zones) Act 1993 …. 5.19 s 4 …. 5.19 s 6 …. 5.19 s 7(2) …. 5.19 s 7(5)(b) …. 5.19 s 7(6)(b) …. 5.19 National Environment Protection Council (Tasmania) Act 1995 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Natural Resource Management Act 2002 …. 4.53 Nature Conservation Act 2002 …. 8.41 Plant Quarantine Act 1997 …. 8.54 Primary Industry Activities Protection Act 1995 …. 8.32 s 4 …. 8.32 Seeds Act 1985 …. 8.54 State Policies and Projects Act 1993 …. 9.32 s 12A …. 9.32 Vermin Control Act 2000 …. 8.41, 8.54 Water Management Act 1999 …. 4.11, 4.27, 4.94, 4.104, 4.139, 8.44 s 3 …. 4.94 s 6 …. 4.27, 4.139 s 6(1)(c) …. 4.27 s 14 …. 4.54 s 14(3) …. 4.139

s 17 …. 4.139 s 55 …. 4.95 s 82(1)(a) …. 4.95 s 95 …. 4.95, 4.104 s 97 …. 4.104 Weed Management Act 1999 …. 8.54

Victoria Catchment and Land Protection Act 1994 …. 4.41, 8.41, 8.54 Climate Change Act 2010 …. 1.96, 1.103, 3.40 Pt 4 …. 1.96 s 14 …. 3.49 Conservation Forests and Lands Act 1987 …. 1.77, 2.128, 12.41 Pt 5 …. 12.41 s 4 …. 2.128 Country Fire Authority Act 1958 s 23AA …. 1.102 Criminal Law and Practice Act 1890 …. 1.31 Domestic (Feral and Nuisance) Animals Act 1994 …. 8.36 Duties Act 2000 …. 1.103 Electricity Industry Act 2000 …. 3.46 Electricity Industry (Wind Energy Development) Act 2004 …. 3.46 Environment Protection Act 1970 …. 2.57, 2.117, 4.23, 5.46, 6.30, 6.59, 6.61, 8.36, 9.26, 10.20, 10.21 Pt IX …. 2.118 s 1B …. 2.117 s 1C …. 2.117 s 1D …. 2.117 s 1E …. 2.117 s 1F …. 2.117

s 1G …. 2.117, 10.20 s 1G(2) …. 10.40 s 1H …. 2.117, 9.26 s 1I …. 2.117, 10.20 s 1J …. 2.117 s 4 …. 6.29 s 16 …. 10.21, 10.22 s 16A …. 10.35 s 18A …. 10.22 s 18C …. 8.48 s 19AD …. 6.34 ss 19AD–19AK …. 6.34 s 19AF …. 6.34 s 19AG …. 6.34 s 19B …. 6.41 s 28 …. 6.50 s 31A …. 6.50 s 31C …. 6.32, 10.31 s 39 …. 6.30 s 41 …. 6.30 s 45 …. 6.30 s 49 …. 2.118 s 49A …. 9.27 s 49AA …. 2.118, 10.32, 12.32 s 49AC …. 10.32 s 49AD …. 2.118, 9.27 s 49AF …. 9.27 ss 49AF–49AG …. 2.118

s 49AH …. 2.118 s 49AN …. 9.27 s 49D …. 6.35 s 49T …. 10.34 s 50 …. 10.34 s 50BC(3)(b) …. 10.35 s 50BC(4)(b) …. 10.35 s 50BH …. 10.35 s 66B …. 6.61 s 67AA …. 6.59 s 137 …. 6.51 Environment Protection (Industrial Waste Resource) Regulations 2009 …. 8.36, 10.26 reg 26 …. 10.21 Fisheries Act 1995 …. 2.95 s 3 …. 2.95 s 28 …. 2.95 s 29 …. 2.95 Flora and Fauna Guarantee Act 1988 …. 1.65, 1.78, 1.79, 2.129, 8.36, 8.41, 11.80, 12.41 Div 2 …. 1.78 s 1 …. 2.129 s 4 …. 2.129 s 19 …. 1.78 s 20 …. 1.78 s 48(3) …. 1.78 Forest Act 1907 …. 1.36 Forest (Licences and Permits) Regulations 1999 …. 1.75 Forestry Rights Act 1996 …. 1.96

Forests Act 1958 …. 1.74, 1.75, 1.77, 1.96, 12.41 s 7 …. 1.75 s 22 …. 11.5, 12.41 s 52 …. 1.75 Forests Rights Act 1996 …. 1.103 Gene Technology Act 2001 …. 8.51 Greenhouse Geological Sequestration Act 2008 …. 3.39 Land Act 1869 …. 1.29 Land Act 1890 …. 1.32 s 10 …. 1.32 Lands Act 1862 …. 1.28 Pt 1 …. 1.28 Livestock Disease Control Act 1994 …. 8.54 Livestock Management Act 2010 …. 8.54 Mineral Resources (Sustainable Development) Act 1990 …. 2.82, 5.25, 5.26, 5.27, 5.28, 5.29, 8.24 s 1 …. 2.82 s 2 …. 5.27 s 2(1)(b)(I) …. 5.25 s 2(1)(b)(III) …. 5.25 s 2A …. 2.82, 5.29 s 2A(2) …. 5.25 s 4 …. 5.29 s 6 …. 5.25 s 7 …. 5.25, 5.27 s 7(2) …. 5.27 s 26(2)(a) …. 5.26 s 26(2)(b) …. 5.26 s 26(2)(d) …. 5.26

s 26AS …. 8.24 s 26B …. 5.28 s 40 …. 5.26 s 78(1) …. 5.26 s 78(2) …. 5.26 s 79(a) …. 5.26 s 81 …. 5.26 s 83 …. 5.26 National Environment Protection Council (Victoria) Act 1995 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Petroleum Act 1998 …. 2.77, 2.80 s 1 …. 2.77, 2.79 s 3(1) …. 2.77 s 3(2) …. 2.77 s 161 …. 2.77 Pipeline Act 2005 …. 2.80 Pt 5 …. 2.80 s 3 …. 2.80 s 4 …. 2.80 Planning and Environment Act 1987 …. 1.83, 2.103 s 4 …. 2.103 s 4(1)(f) …. 2.105 s 6 …. 2.104 s 13 …. 2.104 s 60(1) …. 2.104 Planning and Environment Amendment (General) Act 2013 …. 8.29 Planning and Environment (Planning Schemes) Act 1996 …. 1.83 Plant Biosecurity Act 2010 …. 8.54 State Owned Enterprises Act 1992

s 14 …. 1.72 Sustainability Victoria Act 2005 …. 9.28 Sustainable Forests (Timber) Act 2004 …. 1.76, 1.77, 1.78, 1.80, 2.13, 2.67, 2.68, 2.73, 5.25, 10.49, 11.7, 11.8, 12.41, 12.47, 12.50 s 1 …. 2.68, 12.44, 12.45 s 1(a) …. 11.7, 12.48, 12.49 s 1(ab) …. 11.7, 12.48, 12.49 s 1(ac) …. 12.48, 12.49 s 1(c) …. 11.7, 12.49 s 3 …. 12.48 s 5 …. 1.77, 2.13, 2.14, 2.68, 2.71, 12.44, 12.50 s 5(1) …. 2.72, 2.73, 11.80, 12.50 s 5(2) …. 2.68, 2.69, 12.51 s 5(3) …. 2.69, 12.52 s 5(3)(a) …. 12.52 s 5(3)(c) …. 12.52 s 5(4) …. 1.80, 2.70, 11.80, 11.83, 12.52 s 5(4)(b) …. 12.52, 12.54 s 5(4)(c) …. 11.58 s 5(4)(e) …. 11.58 s 6(1) …. 2.71 s 6(2) …. 2.71 s 11 …. 2.71, 12.41 s 11(2) …. 2.14, 2.71 s 13 …. 2.72 s 17 …. 2.72 s 18 …. 2.72 s 19 …. 2.72 s 19(a) …. 2.14

s 46 …. 11.8 Resources Legislation Amendment (Fracking Ban) Act 2016 …. 8.25 Road Management Act 2004 s 112 …. 1.102 Timber Harvesting Regulations 2000 …. 1.75 Victorian Energy Efficiency Target Act 2007 …. 5.14 Victorian Energy Efficiency Target Regulations 2008 …. 5.14 Water Act 1989 …. 2.86, 2.87, 2.90, 4.11, 4.28, 4.29, 4.40, 4.72, 4.77, 4.82, 4.110, 4.133, 4.134, 6.29, 8.44, 8.48 Pt 3A Div 5 …. 4.110 Pt 4 …. 4.77 s 1 …. 2.86, 2.90, 4.133 s 1(b) …. 4.29 s 1(d) …. 4.28 s 1(j) …. 4.28 s 2(1) …. 2.87 s 3 …. 6.29 s 4A …. 4.134 s 7(3) …. 4.73 s 7(4) …. 4.134 s 8(4)(a) …. 2.89, 4.73 s 22A …. 4.82 s 22B …. 2.86, 4.39 s 22C …. 2.86, 4.40, 4.134 s 32A …. 2.86, 4.134 s 32A(1) …. 2.90 s 33F(3) …. 4.76 s 33S …. 4.110 s 33T …. 4.110

s 33W …. 4.110 s 43 …. 4.77 s 47 …. 4.77 s 48B …. 4.80, 4.134 s 48I …. 4.134 s 64AQ …. 4.79 s 64AT …. 4.79 s 64GA …. 4.76 s 64GB …. 4.76 s 64M …. 2.89 s 64U …. 4.134 s 141 …. 4.77 s 189(1) …. 4.134 Water (Permanent Transfer of Water Rights) Regulations 2001 …. 4.110 Wood Pulp Agreement Act 1936 …. 1.42

Western Australia Agriculture and Related Resources Protection Act 1976 …. 8.41 Bio Security and Agriculture Management Act 2007 …. 8.41, 8.54 Conservation and Land Management Act 1984 …. 2.130 s 5(1) …. 2.130 s 19 …. 2.130 Electricity Act 1945 …. 5.24 s 33E(1)(a) …. 5.24 Electricity Corporation Act 2005 …. 5.24 Electricity Industry (Solar Power Purchase Agreements) Exemption Order 2016 …. 5.24 Environmental Protection Act 1986 …. 2.123, 5.23 s 3A …. 6.29 s 3A(2) …. 6.29

s 4 …. 2.123 s 4A …. 5.23 Fish Resources Management Act 1994 …. 2.99 s 3 …. 2.99 s 4A …. 2.101 s 54 …. 2.100 s 56 …. 2.100 s 66 …. 2.100 Forests Act 1918 …. 1.38 Mining Act 1978 …. 5.23 s 6(1) …. 5.23 National Environment Protection Council (Western Australia) Act 1996 …. 6.15, 6.17, 6.18, 6.20, 6.21, 6.23, 6.25 Petroleum and Geothermal Energy Resources Act 1967 …. 5.20 s 91(1) …. 5.20 s 91(4) …. 5.20 s 153 …. 5.20 Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 …. 5.20 Petroleum Pipelines Act 1969 …. 5.22 s 5 …. 5.22 s 10 …. 5.22 s 10(2)(d) …. 5.22 s 41(1) …. 5.22 s 67(1)(a) …. 5.22 Planning and Development Act 2005 …. 2.113 s 26 …. 2.113 s 27 …. 2.113 Sch 7 …. 2.114

Rights in Water and Irrigation Act 1914 …. 4.30, 4.91, 4.117, 4.138 s 4 …. 4.30 s 5C …. 4.92 s 9(1) …. 4.92 s 10(1) …. 4.92 s 20(1) …. 4.92 s 26GC …. 4.93 s 26GD …. 4.93 Sch 1 cl 29(1) …. 4.117 Sch 1 cl 30 …. 4.117 Rights in Water and Irrigation Amendment Act 2000 …. 4.11 Waste Avoidance and Resource Recovery Act 2007 …. 9.37 s 45 …. 9.37 s 46 …. 9.37 Waste Avoidance and Resource Recovery Levy Act 2007 …. 10.52 Waste Avoidance and Resource Recovery Levy Regulations 2008 …. 10.52 Water Agencies (Powers) Act 1984 …. 4.31 Water Resources Management Act 2017 …. 8.44

International Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific (Antigua Convention) …. 1.12 Art 3(1)(a) …. 1.12 Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992 …. 1.17 Art 2(1) …. 1.17 Art 2(2) …. 1.17 Declaration of the United Nations Conference on the Human Environment …. 1.8

Principle 2 …. 1.8 Principle 3 …. 1.8 Principle 5 …. 1.8 Kyoto Protocol …. 3.11, 3.13, 3.22, 3.30 Art 3 …. 3.30 Art 3(1) …. 3.11 Art 6 …. 3.13 Art 12 …. 3.13 Art 17 …. 3.13 Ramsar Convention on Wetlands of International Importance …. 4.126 United Nations Conference on Environment and Development 1992 …. 1.10, 1.11 Principle 1 …. 1.10 Principle 4 …. 1.10 Principle 8 …. 1.10 United Nations Convention on Biological Diversity 1992 …. 1.16 Art 8(e) …. 1.16 United Nations Convention on the Law of the Sea 1982 …. 1.15 United Nations Framework Convention on Climate Change 1992 …. 1.16, 3.6, 3.7 Art 2 …. 1.16 Art 3(1) …. 3.6 Art 4(2) …. 3.6 Art 7 …. 3.6 Arts 9–10 …. 3.6 Art 11 …. 3.6

United States Alien Tort Claims Act 1789 …. 11.66

Table of Contents Detailed Table of Contents Preface Table of Cases Table of Statutes Chapter 1

Sustainability and its Relationship to the Law

Chapter 2

The Concept of Ecologically Sustainable Development and its Inclusion in Australian Legislation

Chapter 3

Legal Controls over Climate Change

Chapter 4

Managing Water Sustainably

Chapter 5

Energy Consumption and the Law

Chapter 6

Pollution Regulation and Sustainability

Chapter 7

Green Building Regulation and Sustainable Cities

Chapter 8

Sustainable Food Production and the Law

Chapter 9

The Product Life-cycle and the Law

Chapter 10 Waste Management, Recycling and the Law Chapter 11 Sustainability as a Legal Regulatory Inclusion Chapter 12 Future Directions in Sustainability Regulation Appendix 1 Appendix 2 Index

Detailed Table of Contents Table of Contents Preface Table of Cases Table of Statutes

Chapter 1

Sustainability and its Relationship to the Law

Introduction International origins of sustainability and its development into a legal rule The relationship of sustainability to Australian law: case study — Victorian public and private sustainability regulation of forestry A history of Victorian forestry regulation and its relationship with sustainability principles The expansion of regulatory control over forestry — the start of sustainability regulation The Victorian regulatory framework of private forestry

Chapter 2

The Concept of Ecologically Sustainable Development and its Inclusion in Australian Legislation

Ecologically sustainable development foundations The definition and use of ESD in Australian law Definition ESD and its application in legislation Principles of ESD Public interest requirement

The precautionary principle Intergenerational equity Conservation of biological diversity and ecological integrity Valuation, pricing and incentive mechanisms Summary of definition and use of ESD principles in Australian law ESD application across different industry sectors Forestry Victoria Tasmania Extractive industries Victoria Queensland Water resources Victoria Commonwealth Fisheries Victoria Queensland New South Wales Western Australia Commonwealth Land tenure and planning Victoria New South Wales Queensland Western Australia South Australia Tasmania

Environmental protection Victoria Northern Territory South Australia New South Wales Tasmania Western Australia Queensland Commonwealth Nature conservation Victoria Western Australia Queensland New South Wales Commonwealth

Chapter 3

Legal Controls over Climate Change

Introduction Key developments in Australia’s climate change regulatory framework Emissions reduction schemes — state and federal approaches The introduction of a carbon tax The Direct Action Plan Carbon offset programs and carbon capture and storage State developments in climate change law Victoria Queensland South Australia Western Australia

Common law and climate change Other climate change programs The climate change dilemma

Chapter 4

Managing Water Sustainably

Introduction The current water crisis — framing up the problem we face Sustainable water management in Australia A modern historical overview Assessing a water management system Sustainability objectives in water legislation New South Wales Queensland South Australia Tasmania Victoria Western Australia Commonwealth State and federal water management regimes Water and planning for sustainability in each jurisdiction New South Wales Victoria Queensland South Australia Western Australia Tasmania National water planning and management Water access rights — sustainability regulation in access and use

New South Wales Victoria Queensland South Australia Western Australia Tasmania Water markets: water rights and markets Water market key features Tasmania New South Wales Victoria Queensland South Australia Western Australia Does the operation of water markets improve water sustainability? Environmental water and protection Environmental water provisions Commonwealth New South Wales Victoria Queensland South Australia Western Australia Tasmania

Chapter 5

Energy Consumption and the Law

Introduction Renewable energy target and energy efficiency

State-based renewable energy efficiency schemes New South Wales Victoria Queensland South Australia Regulation of energy resource extraction Tasmania Western Australia Victoria Queensland South Australia New South Wales Commonwealth Conservation of energy resources Our energy future Australia’s energy crisis — the Finkel Report

Chapter 6

Pollution Regulation and Sustainability

Introduction Federal regulation of pollution National Environment Protection Measures Air toxicity — NEPM (Air Toxics) Ambient air quality — NEPM (Ambient Air Quality) Assessment of site contamination — NEPM (Assessment of Site Contamination) Diesel vehicle emissions — NEPM (Diesel Vehicle Emissions) NEPM (Movement of controlled waste between states and territories) National pollutant inventory — NEPM (National Pollutant Measure)

Used packaging — NEPM (Used Packaging Materials) The operation of the National Environment Protection Measures Regulatory control of pollution — a state government perspective Defining pollution under state legislation Environment improvement plans Environmental standards and the use of environmental management systems Administrative and regulatory instruments for pollution control Liability for environmental harm Appendix A Appendix B

Chapter 7

Green Building Regulation and Sustainable Cities

Sustainable building — green buildings and sites Rating systems for green buildings Sustainable cities Green buildings in Australia Green star certification — voluntary rating systems NABAR government rating systems Building codes — sustainability requirements Building sustainable cities in Australia The federal Smart Cities Plan Plan Melbourne Sydney’s sustainability plans Sustainable Sydney 2030 — Community Strategic Plan (2014)

Chapter 8

Sustainable Food Production and the Law

Sustainable food production — some introductory concepts How sustainable is food production? Creating greater food sustainability Regulating sustainable food production in Australia Land use and access regulations Environmental regulation and agricultural sustainability Market-based approaches to regulation Regulation of water access Technology regulation and food sustainability The future of sustainable food production — forward thinking regulation Appendix A

Chapter 9

The Product Life-cycle and the Law

Introduction Life-cycle assessment regulation Federal life-cycle and product stewardship regulation State product stewardship schemes New South Wales Victoria Queensland Tasmania and South Australia Western Australia Comparative studies of product stewardship schemes: Asia and Australia

Chapter 10 Waste Management, Recycling and the Law Introduction Defining waste in regulations Waste management and control New South Wales

Victoria Waste avoidance and minimisation regulation Local government control of waste Product stewardship and extended producer responsibility A Municipal Waste Tale of Two Cities — a comparative sustainability case study Systems thinking and waste management: Are our regulations efficient enough?

Chapter 11 Sustainability as a Legal Regulatory Inclusion The form of regulation designed to achieve sustainability Command regulation for sustainability Economic incentives for sustainability as a regulatory inclusion Self-regulation and education instruments for sustainability Choosing the correct regulatory structure — structuration theory System thinking in sustainability regulation Choice of regulatory structure Weighting the factors relevant for tool choice in sustainability regulation Regulatory enforcement and compliance in sustainability Regulatory accountability and legitimacy for sustainability Supranational sustainability regulation Theories of regulation at a supranational level Regulatory instruments at a supranational level Regulatory tools and sustainability — risk-based modality Risk-based modality — recognition of environmentally sensitive areas Risk-based modality — inclusion of the precautionary principle Risk-based modality — certification for sustainability

Risk based modality — sustainability reporting Definitional ambiguity in risk-based models

Chapter 12 Future Directions in Sustainability Regulation Introduction The business sustainability relationship and its regulatory face Sustainability reporting regulation Business finance, production accountability and sustainability regulation The regulation of sustainable markets and marketing Regulation for sustainable production Life-cycle assessments and regulation The sustainable organisation: structural governance regulation Regulation models for effective ecologically sustainable forest management Sustainability regulation — Provisions designed to achieve a sustainability objective Statement of purposes — Sustainable Forests (Timber) Act 2004 s 1 Principles of ESD — Sustainable Forests (Timber) Act 2004 s 5 Conservation of biodiversity — clause 2.2.2 Code of Practice for Timber Production Appendix 1 Appendix 2 Index

[page 1]

Chapter 1 Sustainability and Its Relationship to the Law This chapter examines: •

what is meant by ‘sustainability’;

•

the emergence of sustainability as a distinct concept and its legal development; and

•

the gradual emergence of sustainability into regulation through a case study of regulation in the Victorian forestry industry.

Introduction 1.1

As consciousness has grown over the fragility of the environment and because the growing environmental crisis has impacted people directly, the concept of sustainability has entered the popular consciousness. The word ‘sustainability’ has become assimilated into Australian law, primarily through its inclusion in the concept of ‘ecologically sustainable development’ from the early 1990s. Today the words ‘sustainable’ and ‘sustainability’ have achieved a wide usage that encompasses many social norms. The supermarket may sell foods produced from ‘sustainable agriculture’, government authorities incorporate ‘sustainability’ into titles,1 sustainable yield is an objective for resources such as forestry and the United Nations has long proclaimed ‘sustainable development’ as an aim that will enhance global wellbeing. The citizen may also aim for a ‘sustainable lifestyle’ and even those who eschew the whole idea of sustainability acknowledge the need to live ‘within their means’.

1.2

So what do we mean by ‘sustainability’? The Oxford Dictionary defines sustainability as, ‘the ability to be maintained at a certain rate or level’, but adds a second definition, ‘avoidance of the depletion of natural resources in order to maintain an ecological balance’.2 While the first

definition is relevant, the latter is the primary definitional focus of this text. The definitional aspect of sustainability emphasises the ecological position, and the interaction [page 2] between society, the economy and the natural environment. Society, our economy and the environment are linked and the cross over between all three is where sustainable outcomes derive.3 Whilst definitions that are more complex are warranted to encompass the rate of consumption and the need for the declining rate of the use of nonrenewable resources, the primary focus here is on conserving resources and protecting ecosystems within a development paradigm; that is, focusing on managing natural resources, the conservation of ecosystems and the interaction with development in a way that ensures ecological balance. So the definition of sustainability is important to provide a framework for later discussion. It is important to emphasise its adaptability, and recognise the inherent inconsistency in the idea of ‘sustainable growth’ which is really an oxymoron. Thus, sustainability requires adaptation for different contexts with the primary focus for our purposes enshrined within the concept of ‘ecologically sustainable development’. This definition recognises sustainability as comprising three main elements: (1) intergenerational equity; (2) recognition that not all development can be sustainable;and (3) ecosystem health must be considered equally with profits.4 1.3

The primary focus will be on ecologically sustainable development law focusing on development and the sustainable management of natural resources. The word ‘development’ has a legal significance and refers to a unified process of change directed towards improving the quality of life for communities.5 It is used in a holistic multidisciplinary context encompassing themes such as education, health care, human rights and environmental issues. In the context of sustainability, its focus is on economic development integrating a balance between social and environmental factors. The concept of sustainable development, therefore, integrates economic, environmental and social factors in a delicate balance that is not always readily apparent. Understanding how this balance is to be met, and how the law can play a part in this process, is complex and requires further scholarly research. Recognising that there is a balancing process between these three sometimes disparate elements is a good start though to understanding sustainability law.

[page 3] 1.4

Implicit within the idea of sustainable development is the notion of a limit to progress. This was first prominently articulated by a group called the Club of Rome who published a book called The Limits to Growth.6 It argued technological development and societal growth could not continue as they had done for the last 300 years. The present may be better than the past because of such development but that does not mean that it can continue to improve in the same manner and with the same unchecked use of resources. They argued exponential growth cannot continue indefinitely and that it is important to place restraints or at least structures that controlled the availability of resources. The authors made a compelling case that humanity had to change course in order to survive. This insight led to a greater understanding of the limits to growth and with this, an understanding of how growth had to be sustainable.

1.5

Australian state and federal governments responded to these challenges by agreeing in the early 1990s to include principles of ecologically sustainable development (ESD) in resource management and environmental legislation.7 Whilst ecologically sustainable development has some definition in legislation as a discrete concept, the word ‘sustainability’ itself was not defined in resource management legislation or regulation. Prior to these developments, the law and regulation in Australia had little reference to sustainability themes, although it did, to varying degrees, engage in resource management regulation designed to conserve a resource. The historical motivation was preservation in order to ‘sustain’ the resource from an economic perspective, with less emphasis on environmental factors. Even in the face of strong evidence of resource depletion, the motivation was primarily economic.

1.6

Sustainability and its relationship with the law requires understanding the historical context of resource management. It is not intended to cover each resource sector and its individual relationship with the law in this chapter. It is, however, possible to examine one resource sector in detail to provide historical context to this relationship. A critical analysis is undertaken of a particular sector — in this case the Victorian forestry industry — that provides historical context to how current sustainability regulation has been incorporated into the law. Looking at it critically from this perspective enables us to see the increasing focus the law has had on sustainability from an environmental perspective. That does not mean it has necessarily found the correct balance

between the three themes of ecology, economy and society, but it is a start. [page 4] 1.7

By understanding the development of sustainability regulation emerging over time in the Victorian public forestry sector, it is possible to see the gradual introduction of resource management controls. Assessing the adequacy of those controls is another matter entirely, requiring empirical and qualitative assessment. The discussion in this chapter is not designed to comment on the adequacy of current sustainability regulation. However, it does highlight regulatory gaps and shows that the relationship of sustainability to the law still has a long way to go. A wider discussion of these matters may be found in Chapter 12 which examines the future direction of sustainability regulation. What this chapter seeks to do is take one sector and analyse the emergence of the increasingly important relationship between sustainability and the law. By doing this historical critical analysis, we can identify not only the emerging relationship, but also where further improvements can be made. The relationship between sustainability and the law is changeable and ongoing, requiring analysis that is scholarly with an emerging reform agenda designed to reach an optimum sustainability position. It is at least encouraging that the relationship exists, even though much more needs to be done in order to say the relationship is at an optimum point.

International origins of sustainability and its development into a legal rule 1.8

The first use of principles supporting sustainable development appeared in the Stockholm Declaration of 1972. The concepts of intergenerational and intragenerational resource conservation are referred to with the former now one of the recognised principles of ecologically sustainable development.8 Sustainable development was also referred to in the World Conservation Strategy in 1980.9 The Strategy was directed to government policymakers, conservationists and communities to address concerns over the extent of environmental destruction. It set out objectives of conservation and priorities for international and national action and its goal was described as ‘the integration of conservation and development to ensure that

modifications to the planet do indeed secure the survival and wellbeing of all people’.10 Development was defined as ‘the modification of the biosphere and the application of human, financial, living and nonliving resources to satisfy human needs and improve the quality of life’.11 Conservation was defined as ‘the management [page 5] of the human use of the biosphere so that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations’.12 The Strategy referred to how sustainable development must take account of social, ecological and economic factors. It also had to address both long-term and short-term advantages and disadvantages of alternative actions. This highlighted how development and conservation operate in the same global context and both must be dealt with properly to achieve their dual objectives. The Strategy recognised the inherent limits to growth and that to properly engage in development and conservation, these inherent limitations must be included in development strategies.13 1.9

The next major development occurred in 1987 with the release of Our Common Future,14 clearly linking the issue of environmental protection with global economic development. This report effectively documented the status and future of global economic progress and ecological protection as an interlinked process, thrusting the concept of sustainable development onto the world stage. In particular, it introduced sustainability into international political dialogue, thereby shifting it from scientific debate into a political issue. It further moved sustainability from just a debate on limits to growth, to a profound understanding of the nature of sustainability. Specifically, it was seen as bridging the gap between environmentalists and those calling for further development, especially in the Third World, by proposing a middle way between the two — development that was truly sustainable. The definition of sustainable development given in Our Common Future seeks to recognise this by describing it as development that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs’.15

1.10

The Rio Declaration of 1992 was a statement produced at the 1992 United Nations Conference on Environment and Development, more commonly referred to as the Earth Summit. It referred to sustainable

development in 27 principles aimed at defining the rights of people to be involved in developing their economies, and the responsibilities of humankind to safeguard the common environment. The Declaration recognised that long-term economic progress could only happen if it was linked to the protection of the environment. To achieve sustainable development, nations must engage in a new global partnership involving government, the people and key sectors in society. Principle 1 referred to human beings at the centre of concerns for sustainable development. Principle 4 stated that in order [page 6] to achieve sustainable development, environmental protection constitutes an integral part of the development process and cannot be considered in isolation from it. Principle 8 said nations should reduce and eliminate unsustainable patterns of production and consumption in order to achieve sustainable development and a higher quality of life for people. These principles highlighted that sustainable development was now emerging as a matter for potential inclusion in law rather than a descriptive phrase with no legal relevance.16 1.11

How can the concept of sustainable development be incorporated into a principle of law or at least have some legal effect? Sustainable development within international agreements seeks to embrace the multidisciplinary nature of sustainability by integrating economic development with social justice and environmental protection objectives, to improve the quality of life for the benefit of present and future generations.17 The term ‘sustainable development law’ therefore, is partly based on a body of international legal principles that deal with economic, environmental and social law and how it applies to development that can benefit present and future generations. As a result, the Our Common Future definition of sustainable development continues to evolve and adopt added dimensions. At the United Nations Conference on Environment and Development in 1992, for example, the delegates committed to ‘the further development of international law in the field of sustainable development’.18 The emphasis was on getting the balance right between environmental and developmental impacts. This required embracing the effective integration of economic and social development with environmental protection, but understanding how that was to happen was no simple task.19 It was not just a case of requiring this integration, but also understanding how this could practically occur when these elements

were often disparate and in tension with each other. 1.12

The legal significance of sustainable development is highlighted by its use as an objective, and as a guiding principle, in many international treaties,20 although most have not sought to define it. The Convention for Cooperation in the Protection and Sustainable Development of the Marine [page 7] and Coastal Environment of the North East Pacific is an exception and provides a definition worth quoting in full: Sustainable development means the process of progressive change in the quality of life of human beings, which places them as the centre and primary subjects of development, by means of economic growth with social equity and transformation of production methods and consumption patterns, sustained by the ecological balance and life support systems of the region. This process implies respect for regional, national and local ethnic and cultural diversity, and full public participation, peaceful coexistence in harmony with nature, without prejudice to and ensuring the quality of life of future generations.21

This definition refers to improving the quality of life of people with economic growth that is in balance with ecological biodiversity. It is significant in positing humankind at the centre of development and emphasising social equity aligned with transformed production and consumption patterns. The multi-faceted elements that go into social equity and economic progress highlight the extreme difficulty in balancing often-competing interests. Getting this balance right will be only achieved by understanding the constituent elements within each and how they can operate together in harmony. The law of sustainable development therefore, must seek to bridge these elements in order to advance a sustainability objective. It suddenly becomes apparent that the law has an integral role in working as a tool to achieve a balance, as a mechanism that can be adjusted to different circumstances to maintain that balance and as a means to regulate human behaviour to ensure the balance continues for the benefit of future generations. 1.13

The multidisciplinary nature of sustainability is highlighted by it impacts on different categories of law including environmental, commercial, natural resources and trade law. For example, the 1994 Marrakesh Agreement Establishing the World Trade Organisation recognised sustainable development among its objectives.22 Thus, the WTO Appellate Body found at note 107 in the US – Shrimp Case that the concept of sustainable development integrates economic, social development and environmental

[page 8] protection and intergenerational equity.23 It is important to emphasise here that social development is equally as important as economic development and environmental protection. The social element was emphasised in the 2002 World Summit for Sustainable Development in Johannesburg. The Johannesburg Plan of Implementation stated a need to ‘promote the full integration of sustainable development objectives into programs and policies of bodies that have a primary focus on social issues. In particular, it stated the social dimension of sustainable development should be strengthened …’24 This might imply the elements of sustainable development are somehow equal with each other, although this is mistaken. The elements are to be in balance with one another requiring adjustment according to differing circumstances. 1.14

Developments at an international level highlight that the law of sustainable development is seeking to manage humankind’s interference with nature whilst recognising the need for economic and social development. It is further developed by new scientific insights and a growing awareness of the risks for present and future generations of leaving this intervention unchecked. Its use at an international level recognises that environmental law and development law are not alternate propositions but mutually reinforcing concepts.25 It is no longer possible to see categories of knowledge and law as discrete sectors, but instead they are interlinked based on the interconnectedness of society, economy and ecology. For example, construction law deals with the law of building construction, engineering and related fields. It has evolved as a distinct field of legal enquiry, which has expanded over time to have strong links to energy, oil and gas law. Arguably, this has further developed to include regulation of green buildings and sustainability rating systems for efficient energy use for buildings.

1.15

Has sustainability reached the point of being a legal rule? Some international agreements use principles of sustainability in a way that equates to rules of law. For example, the United Nations Convention on the Law of the Sea 1982, whilst not referring to sustainable development expressly, provides for the management and conservation of biodiversity in exclusive economic zones. It places an obligation on signatories to engage in proper conservation and management processes to ensure that biodiversity in the exclusive economic zone is not

overused. Implicit within this arrangement is the idea of integrating economic and ecological factors in such a way as to provide for a balance. In short, it sets out rules that implicitly adopt [page 9] the concept of sustainable development by mandating the integration of economic development with protection of ecological systems. 1.16

International agreements also recognise that human activity is inherently destabilising and cannot be left unchecked. The United Nations Framework Convention on Climate Change 1992,26 for example, seeks to achieve stabilisation of greenhouse gas concentrations in the atmosphere to prevent dangerous anthropogenic interference with the climate system.27 The aim is to protect the environment by limiting greenhouse emissions and protecting greenhouse gas sinks and reservoirs. This is achieved in ways that will not threaten food production and enable economic development to proceed in a sustainable manner. It refers to principles such as intergenerational and intragenerational equity, and the precautionary principle.28 It also makes specific reference to how the parties have a right to promote sustainable development. The reference to sustainable development in this Convention is described as not being clear nor having an unambiguous normative status.29 Despite this, there is no reason not to accord it similar meaning to its use in other international agreements recognised by international law. The important thing is the express reference in the Convention to sustainable development and the need to promote it. Similarly, the United Nations Convention on Biological Diversity contains a specific obligation to promote environmentally sound and sustainable development in regions adjacent to protected areas.30 This inclusion in addition to the general structure of the Convention supports the interpretation that economy, society and environment must be integrated in ways that promote sustainable development.

1.17

The Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992 also links sustainable development with environmental protection. This requires the parties to take all appropriate measures to prevent, control and reduce any transboundary impact on watercourses and international lakes.31 Thus, a positive legal duty is placed on signatories to avoid any adverse effect on the environment from a change in conditions of transboundary

waters caused by human activity. The Convention also mandates responsibility to prevent, control and reduce pollution of [page 10] waters likely to cause transboundary impact and the requirement to ensure sound ecological water management, conservation of water resources and environmental protection.32 The Convention makes clear reference to the three elements of sustainable development — society, economy and ecology — without expressly using that term. It does so through the aforementioned duties and reference to sustainable development principles such as the precautionary principle, the polluter pays principle and intra- and intergenerational equity principles. 1.18

These international agreements all place responsibility for sustainable development on signatories to varying degrees. In some cases, this responsibility is a legal duty based on a legal rule, whilst in other cases it casts sustainable development in a more aspirational context. They all attempt to balance the needs of development with the needs of the environment. The right to social and economic development is also acknowledged but subject to the right of the environment to be protected to ensure sustainable biodiversity. In other words, there is an attempt to harmonise both categories of rights into legal rules for sustainable development. The developments at an international level have provided the impetus for Australian regulation to include principles of ecologically sustainable development since the early 1990s. Prior to that time, environmental regulation was a slowly evolving thing, more dependent on protecting resources for economic gain than for genuine environmental aims. The following section examines a particular industry sector from a historical perspective. It highlights the evolutionary development of the current form of sustainability regulation.

The relationship of sustainability to Australian law: case study — Victorian public and private sustainability regulation of forestry 1.19

The emergence of sustainability in Australian law did not occur in one set manner at one time. In order to properly address how Australian law has embraced sustainability, this part will use one industry sector to

provide an ‘organic’ history of how it has eventually adopted principles of ecologically sustainable development. This historical review highlights the gradual adoption of sustainability-related measures over time. This history involved a number of stages, each reflective of prevailing mores and attitudes of the time. Eventually there was an emerging recognition of a diminished resource which had to accommodate increasing demand. Initially, there was no notion of conserving a resource, let alone actual sustainability. Resources [page 11] such as forest timber were there for use and little thought was given to managing the resource better from an environmental perspective. Later, there was recognition that the resource needed effective management to meet increasing demand. The next stage involved recognition of the need to conserve a natural resource for reasons other than its extraction. Finally, sustainability regulation became apparent, meaning that regulation specifically adopted sustainability principles — in particular, ecologically sustainable development principles. This recognised that a resource had to be managed for a diverse range of reasons and extraction was only one of them. Understanding these developmental stages enables better understanding of sustainability’s emerging relationship with the law in Australia.

A history of Victorian forestry regulation and its relationship with sustainability principles 1.20

At the time of settlement in the 1830s, Victoria’s 22.7 million hectares were predominantly forested and remained substantially intact until the late 1860s.33 With settlement came sheep and cattle requiring grazing land, resulting in gradual land clearing. Victoria’s forests were seen as an economic resource particularly for timber and so the decline in forest coverage began. There was no general recognition of the need to manage the resource better; instead, a prevailing view was the resource had to be used to maximise economic benefits, particularly for agriculture and farming.

1.21

Some enlightened thinkers saw a broader scope for forests but this was the exception and not the rule.34 The Director of Melbourne’s Botanic Gardens, Ferdinand Mueller, was an early proponent of both the protection and utilisation of forests. He defined forests as a group of plant species with specific biological needs able to regenerate and

improve productivity, and he envisaged the development of forest industries, protected from over-development.35 Mueller noted in 1861 that, ‘… the timber resources of our colony are almost unbounded …’,36 but he tempered this optimism by expressing concern about forests becoming extensively reduced, prompting him to call for forest supervision and restraint on consumption.37 He understood how forests [page 12] affected environmental values by overuse, so he was an early advocate for sustainable use. Indeed, his early advocacy for forest protection expressed an almost reverential view that forests were a gift of nature requiring careful maintenance so that they remained for future generations unimpaired. In that sense, his view seemed to accord with the idea of intergenerational equity which is one of the principles of ecologically sustainable development. His views did, however, have a practical edge demonstrated by his recommendation that local Forest Boards carry out forest administration. He also recommended that one quarter of Victoria should remain forested, which is a comparatively prophetic figure when viewed against the actual loss of forest coverage in Victoria to date.38 1.22

Despite Mueller’s enlightened views of forest protection, he still linked protection of forests with economic development, suggesting that pine species be introduced to the Victorian Alps as he considered them suitable for harvesting. He was an early advocate for the long-term development of forest industries and colonial self-sufficiency in the production of timber and other forest products. What is most important about Mueller’s perceptions on forestry was the enlightened view of management for long-term viability. He became, by his foresight, an early proponent of forest sustainability even though sustainability did not have the same usage as it does now when used in the context of resource management.

1.23

A defining event that altered the early forest landscape was widespread fires on 6 February 1851, known as ‘Black Thursday’, which was reported as consuming as much as a quarter of the state in holocaust conditions and described by historians as the largest bushfire in Australian history.39 The same year saw the discovery of gold causing an increase in population further pressuring forests. The government at the time viewed wood as something that should be available to the people at ‘next to nothing’ cost and thus exercised little control over

forest management.40 1.24

The Gold Rush created demand for wood products and this required sawmilling. The main development in sawmilling came during the gold rush of 1851. Timber use in mine construction, rail sleepers and as fuel for engines increased substantially. The amount of sawmills in the colony expanded rapidly to 141 by the 1860s. Timber-powered steam engines were used as the main power source for mills. The 1860s witnessed a boom in the use of wood in housing construction. Widespread land clearing by farmers [page 13] keen to grow crops on land occurred alongside the development of railways, which saw a big increase in demand for durable timbers for sleepers.41

1.25

The extent of overuse prompted an inquiry in 1865, which recommended forest reserves near centres of mining, and the establishment of indigenous and exotic plantations for the supply of wood and other services.42 The inquiry noted waste and destruction: … the rapid and unnecessary destruction of forests … Much of the prosperity now so evident on the goldfields of Victoria is due to the circumstances that claim holders and lessees of Crown Lands have the opportunity of procuring timber from the indigenous forests at small cost … A great number of persons employ themselves in cutting timber for the mines. They fell the best and destroy more than they use.43

1.26

Another investigation commissioned in 1867 called for, ‘… the best means for securing the permanency of the State Forests of Victoria including their planting and general improvement and to plan regulations for their management’.44 They reported on the widespread cutting without restriction in quantity, for a person’s own use, on Crown lands not reserved or protected from overuse.

1.27

Government regulation under the Department of Crown Lands at this time used an ‘area’ system of timber licensing. An applicant for a timber cutting licence had to be ‘… supported by the recommendation of at least two respectable persons …’45 The Department of Crown Lands had full discretion in issuing a licence on a case-by-case basis. A lessee on property, by contrast, was free to cut timber for any purpose, except sale or barter. Licensing was on the character of the applicant and not on the viability of the resource. Land clearing was not restricted for environmental reasons, which accounts for most of clearing occurring prior to the 1890s.46

1.28

The first attempt to create forest reserves in Victoria was an amendment to the Lands Act in 1862. This enabled the government to proclaim reserves for ‘… preservation and growth of timber …’47 The Board of Land and Works was, however, authorised to issue licences to cut timber on such [page 14] reserves and other relevant regulations and instead of preserving forest was described as ‘facilitating the permanent acquisition of broad acres for sheep grazing’.48 By 1867, nearly 116,000 acres were declared State Forest and timber reserves. Forest cutting was allowed in approximately 83,000 acres of State Forest but there were few forestry officers to oversee such cutting. Thus, whilst ostensibly appearing to proclaim reserves, this Act appeared with a significant condition — the right to continue ad hoc forest harvesting in a large section of State Forest.

1.29

The Land Act of 1869 further extended the alienation of land enabling more land clearing.49 In 1871, an amendment to that Act allowed for the appointment of local Forest Boards for designated State Forest areas, although this only lasted until 1876. It highlights, at least, an attempt to place forest management on a firmer footing even though it had a primary purpose of making land available for selection. These Boards proved ineffective because of their inability to raise sufficient revenue and conflicts among the 13 local Forest Boards over control of neighbouring forests. The Central Forest Board (1874–88), a precursor to the Forest Branch of later Forest Departments, managed the Forest Boards.

1.30

In 1871, a Royal Commission into Foreign Industries and Forests was established. Part of its brief was to consider how to promote ‘… the culture, extension and preservation of State Forests in Victoria and the introduction of such foreign trees as may be suitable for the climate, and useful for industrial purposes’.50 The intent was to develop forest reserves suitable for commercial use and the Commission’s report is an early recognition of the need for forest plantations.

1.31

A Forest Bill introduced into the Victorian Parliament in 1879, set out a new process for creating State Forests and payment of royalties for forest products, with a penalty regime for breaches of the Act, but a lack of support in the House of Assembly saw the Bill fail. A penalty regime was incorporated later, however, as an amendment to the

Criminal Law and Practice Act 1890. This provided for penalties for conviction of ‘any person in illegal possession of the whole or part of any tree, sapling or shrub’.51 1.32

The Land Act of 1890 contained the power to forbid timber cutting on any designated area. Under s 10 of that Act, there was power to set aside temporarily or permanently ‘reserves of timber for sawing or splitting purposes and reserves for the preservation and growth of timber’.52 This was [page 15] an attempt to allocate land for harvesting purposes but it was vague in terms of how such allocation was to take place, gave access for multifarious reasons, and did not stipulate any regulatory control over access. The government effectively had no active constraint placed on the usage of land.

1.33

A Conservator of Forests was appointed in 1888 in an attempt to better manage forests.53 In 1896, an official inspection of forests by the Inspector- General of the Indian Forest Service noted that, ‘State Forest conservancy and management are in an extraordinarily backward state’ and described the reasons as ‘political’.54 He also noted that forest laws were inadequate, waste was rampant and called for a Forests Act and for permanent State Forests with systematic and professional forest management.

1.34

In 1897, another investigation examined areas for permanent reservation for forest purposes.55 Areas recommended included 411,000 acres in East Gippsland and the Wombat Forest at Daylesford. In all, the Commissioners recommended four million acres of new State Forest, although not all recommendations were accepted. Later, a Royal Commission in 1897 was set up, inquiring into all aspects of forest reservations and management, licensing and cutting practices.56 The report was seen as remarkable in its scope and careful description of principal forest regions in Victoria and their condition.57 Referring to the Otway Forest, the Commission noted, ‘in the short space of fifteen years immense tracts of the finest forests in Australia have been devastated by axe and fire in the course of settlement’. It also noted the importance of the Wombat Forest in central Victoria because of its ‘immense supplies of young timber’.

1.35

A further report by the Royal Commission in 1900 noted in many

forests, ‘… permits issued without limit, overcutting without any plan to assure natural reproduction, the cutting of immature timber, gross pilfering as well as waste of good timber …’58 This highlighted inherent waste in an area licence system defined by region, instead of a piece or volume charge based on quantity removed. The latter system was eventually introduced in response to the Royal Commission noting that permits for taking specific quantities of timber at a fixed percentage based on market value were needed. In an early harbinger for future developments in sustainability, the Royal Commission noted in its final report the importance of ‘maintenance in [page 16] perpetuity of forests’ and the regulation of yield to ensure continuous supply, which had not been attempted in a scientific manner in Australia to that point. This report was an isolated voice calling for better forest management practices to guard against profligate waste. It was not an age of sustainable practices, however, since the forest was a resource to be exploited, despite a long history of activism, which was mostly unsuccessful.59 1.36

The prevailing attitude of the government in the late nineteenth century was that only land unsuitable for agriculture be used as State Forest. Clearing for agriculture thereby continued unrestricted until the early 1900s. There was clearly a need for improved forest management, which led to the passage of the Forest Act 1907,60 creating a State Forests Department on 1 January 1908. A Minister of Forests,61 and a Conservator of Forests,62 were also appointed with the latter responsible for forest management prescribed under the Act. Permanent forests were declared on the joint recommendation of the Minister of Lands, the Minister for Forests and the Minister of Mines. The Act allowed for leases or licences to be issued by the State Forest Department for any reserved forest region for cattle grazing and other purposes but lessees could not cut, destroy, injure or remove a tree unless authorised. Leases were for seven years, and licences for one year. There was now a legislative framework for forest care, protection and management, although its full implementation was hampered by a lack of resources.

1.37

An objective of the newly-created State Forest Department was the best forested land remaining under public ownership. State Forests were expected to ensure future timber supplies, but there were few

advocates in this period for conservation of forests for values other than timber, such as for maintaining biodiversity or for recreational activities. One exception was the concern expressed by the Conservator of Forests in the Department’s annual reports over the lack of progress in reserving forested lands. In the 1917–18 annual report, for example, he referred to wanton destruction of forests for wood sleepers on railways, noting in respect to forests of the northern region: If these forests are destroyed and the immature timber on them marketed, the land will for the most part be used for grazing only and if the history of private lands surrounding these reserves is any guide, they will, as soon as the power of transfer is available, quickly merge into larger holding for the keeping of sheep …63

[page 17] He also expressed concern with the ‘… ruin of the Otways, of the Moorombool box forest in the Heathcote district and of the Gippsland Red River Gums …’64 Whilst the Conservator of Forests had the job of proper forest management and might be expected to say this, it is the words used that stand out. Clearly the rate of overuse had not only exceeded sustainable yield levels but had entered into wanton destruction. 1.38

By 1918, Victoria’s public forest estate was approximately 4,000,000 acres, but many considered it low for Victoria’s timber needs.65 Postwar reconstruction required a reappraisal of forestry practices, including a more scientific basis for forest management. In response to this, the Forests Act of 1918 created the Forest Commission, consisting of three commissioners tasked with administering the Act and managing the State Forest Department.66 The new Act gave the Commission the authority to introduce protection measures and more systematic management practices, including planting sufficient areas of softwoods and other species to meet projected increased demand for forest products. The Commission had a policy of extending the amount of softwood plantations and plant sufficient trees to meet demand, implementing a form of sustainability regulation, primarily built around meeting demand rather than a broad-based conservation policy. The Commission also aimed to expand forest reservations and to that end recommended forest reservations in mountainous country in East Gippsland.

1.39

Systematic forest management systems had started and forest plantations began to emerge alongside the appearance of professional foresters as a

distinct professional body. Foresters began to make development projections for Australia’s future wood requirements, arguing for access to more native hardwood forests and for the establishment of plantations. The Premiers Conference of 1920 agreed to a target of 10,000,000 hectares of native forest and 2,000,000 hectares of softwood plantation Australia-wide, with Victoria to contribute 2,250,000 hectares of native forests.67 In response to the call for more plantations, Victoria developed pine plantations in the Otways and in the north-east of the state from the late 1920s.68 1.40

In the 1928–29 Annual Report, the Forest Commission reiterated the main principles of its forest policy at the time, which were: 1. The conservation, development and utilisation of the indigenous forests based on sound forestry principles. [page 18] 2. The establishment of adequate plantations of exotic softwood species. 3. The prosecution of essential research work concerning the natural products of the forest. 4. The need for an effective fire prevention and fire suppression organisation.

1.41

The overarching aim of the Forest Commission was to obtain a sustained annual yield of timber products, meeting demand whilst not decreasing the source of supply, described as ‘sustainable yield’.69 At this time, harvesting was done on mature forests, gradual regeneration occurred, and the intent was not to be exploitative. The forest policy required assessment of native forest species and imported species for their relative merits for commercial use. It was during the late 1920s that Mountain Ash became a good option compared to imported softwood timbers. The Commission sought to improve the position of native hardwoods in place of imports and saw the increased use of Mountain Ash in building materials achieving this objective.70 The Forest Commission responded to increased demand for hardwood by opening up additional mature age forests. By the mid- to late-1930s, demand for native hardwood timbers, and Mountain Ash in particular, increased rapidly.71 It was during this period that Mountain Ash became a major substitute for imported timber, with multiple uses in buildings.72

1.42

The 1930s saw a more defined plantation program, demonstrated by the extent of planting of various pine species in State Forests. It also saw some new developments in use of forest by-products with the ratification of the Wood Pulp Agreement Act on 23 December 1936, sanctioning the use of waste from State Forests for the production of wood pulp. This was a new use for wood since eucalypts were not used for commercial pulp and paper production. Victoria had now entered into a more advanced stage of industrial forestry, bringing with it economies of scale and associated increase in forest revenue.

1.43

On 13 January 1939, ‘Black Friday’, nearly all of Victoria’s mature ash forests were destroyed by fire. This event emphasised the serious impact fire had on Victorian forestry. Prior to the establishment of the Victorian Forest Commission, for example, widespread forest clearing resulted in much debris that burned over summer. Many of these clearing fires went uncontrolled resulting in serious damage to adjacent uncleared forest.73 Fire caused by graziers sometimes went unchecked as well, causing damage to local forests. Wildfires have also severely impacted Victoria’s native forests. The 1939 fires [page 19] resulted in the loss of 71 lives, thousands of head of livestock, decimated townships, 69 sawmills, and 1,364,000 hectares of forest.74 For two years following these fires, foresters were involved in widespread salvaging of wood, particularly in the east-central part of the state.

1.44

The damage wrought by man and fire and the intervention of World War II provided a good impetus for reconstruction in forest industries post-war. Shortly prior to the end of the war in 1944, the Forest Commission recommended completion of salvage work of the 1939 fire damaged ash timber, more access roads, and more forest regions including high quality Alpine Ash to supply the government’s expanded housing program. Between 1946 and 1956, the number of mills near Melbourne doubled from 300 to 600. In response, the Forest Commission sought to control the number and location of mills. Whilst it had no power to restrict mills, it did make forecasts of wood supply in order to monitor the expanding number of mills.75

1.45

The demand for wood products for housing significantly increased with the economic development of Victoria post-war. To meet demand, the sawmilling industry was encouraged to expand into

mountain regions of northeast Victoria and north-central Gippsland and east Gippsland. The production of hardwood sawlogs from State Forests increased markedly with a peak of 1.3 million cubic metres per annum in the mid-1950s.76 This period also saw a search for improved techniques for regeneration and management of ash forests. Much of current forest practices derive from this period including aerial seeding and spraying to clear wattle or scrub. Controlled thinning of forests was also undertaken into the 1960s.77 1.46

The post-war period saw a number of new forest regions opened up and new plantings, including in East Gippsland.78 Victorian plantations acreage increased in this period with strong yield return for pine plantations. The development of softwood plantations was an important substitute for more expensive imported softwoods. This period also introduced clear felling and regeneration, with targeted regeneration programs by the Commission undertaken particularly with Mountain Ash, Alpine Ash, Red River Gum, Box, Ironbark and mixed eucalypt species. [page 20]

1.47

Despite forest management improving by this time, the Forest Commission expressed concerns on the security of the forest resource. In its Annual Report of 1953, for example, the Commission noted: [I]t is of vital importance to the future of the State to ensure that areas carrying or most suitable for, the production of valuable commercial timber … be permanently reserved for future generations.

The Commission was concerned for intergenerational equity of the forest resource. This concern highlighted that State Forests were still seen as a resource to use and exploit, prompting the Commission to effectively express protest. 1.48

The Commission felt that wood felled should be optimally used, and to that end encouraged the development of new industries using wood waste. Australian Paper Mills, for example, began to use wood that was harvested but not suitable for sawmilling, such as unused parts of trees felled for sawlog harvesting and sawmill waste.79 Prompt regeneration of harvested areas was also a priority for the Commission at this time. Furthermore, the government was waste conscious legislating supply agreements using royalty rates for pulpwood. This period also saw the area of permanent forest increasing substantially to almost 5.5 million acres by 1955.

1.49

In 1961, the federal and Victorian state governments agreed to expand softwood planting. This was a necessary requirement to reduce reliance on the importation of softwoods and help remove pressure on native hardwood resources. A state government enquiry at this time supported the Forestry Commission’s proposal for extension of plantations and for silvicultural work to improve productivity of native forests.80 Business entities were increasingly interested in establishing industries based on wood fibre.81 In response to this increased demand, the Commission planned for the establishment of an additional 80,000 hectares over 40 years from 1962. The main planting was for Pinus radiata, which was seen as one of the hardiest and prolific of the softwoods. The total area of softwood plantations by the end of 1965 was 27,000 hectares of which 80% was Pinus radiata.

1.50

The federal and state association with forestry was aided by the establishment of the Australian Forestry Council in 1964. This body brought together state and federal Ministers responsible for forestry policy and enabled a more coordinated policy directive Australia-wide in forestry management. One of the first determinations by the Council was a directive that Australia should [page 21] have a softwood estate of 1,200,000 hectares by 2000. Victoria was required to increase its annual rate of planting to 2400 hectares per annum by 1971 through to 2000.82

1.51

The emergence of wood chip production had a significant impact on the Victorian forestry industry. Some saw it as ‘fast tracking’ modern forestry, enabling coastal forests to be like plantations.83 The industry was not without critics with some arguing the wood chip industry existed before an ‘adequate scientific base had been established for managing Australian hardwood forests’.84 Some industry observers believed that ‘waste users’ such as chip, pulp and paper mills, and particle board and hardboard factories were more important than the growth of plantations.85

1.52

Softwood plantations in the post-war period received increased focus at an interstate forestry conference hosted by the Commonwealth Forestry and Timber Bureau in 1949. It concluded that Australia’s wood requirements required more widespread softwood plantations. It also found the rate of planting was inadequate, that growing softwood plantations was economically viable, and that exotic softwood could

grow more productively than some native species on some lands.86 The Federal Government responded by offering assistance to expand the development of plantations. The Commonwealth eventually agreed to increase the softwood-planting rate to 75,000 acres per year for 35 years from 1966. The target was to grow the softwood plantation estate to 1.2 million hectares with Commonwealth aid with the balance from the States. This plantation program passed the Federal Parliament in May 1967 and continued for 16 years.87 1.53

The Victorian Government encouraged privately-owned plantations in the 1960s. This was promoted through the ‘Farm Forestry’ program starting in 1966, which resulted in an additional 700 hectares of new private plantations, made on farm land over the period 1966–68. A further 5500 hectares was added in 1968–69. This brought the total softwood plantation area to almost 40,000 hectares in Victoria by the late 1960s.

1.54

In 1970–71, the yield of plantation grown softwood logs trebled since 1957 and represented 11% of total wood production. This highlighted the relative [page 22] position of plantation-grown timber to naturally-harvested timber with by far the greater proportion of harvested timber coming from native forest regions. The plantation extension program continued with a further 20,000 hectares planted in the period 1971–76. An estimated 2100 people were directly employed in plantation industries in 1975 with a projected increase to 16,000 when mature plantations became available.

1.55

Industry based on the supply of wood chip from plantations developed in the 1970s and into the 1980s,88 reducing in the 1990s, with the increase in hardwood plantations. This hardwood ‘boom’ was fuelled by tax minimisation arrangements promoting managed investment schemes, resulting in strong growth in hardwood plantations from the late 1990s.89 Despite some opposition, the new plantations were established mainly in the region between Hamilton, Portland and Mt Gambier.90 The tax incentives tended to encourage short-term rotation hardwood rather than long-term sawn timber.91

1.56

The Senate Standing Committee on Social Environment investigated the wood chip industry in 1976. The Forest Commission of Victoria

made a submission about wood chipping in State Forests stating there was a surplus of eucalypt wood unsuitable for sawlogs, but suitable for pulpwood. It argued using the surplus encouraged regeneration and aided fire protection. It also submitted the industry was of long standing in its use of native forests,92 and that operational guidelines minimised or avoided entirely the adverse effects on the forest ecology.93 The acknowledgement by the Commission of the longstanding practice of harvesting for wood chipping in State Forests at that time, highlighted it was economically more cost effective than wood chip from plantations. Wood chips are produced by clear felling or thinning of native forests or plantations. Historically, the primary source of wood chips has been eucalyptus hardwood forests in temperate regions in Australia. In the 1970s and 80s, the high demand for paper had made harvesting of native forests for wood chips a practical option given it was less costly than plantation-sourced wood chips. [page 23] Opponents of the wood chip industry’s use of native forests believed the industry encouraged clear felling, which completely removes all trees from a harvested site and is therefore more ecologically damaging. 1.57

Demand for wood continued to grow rapidly during the 1970s. In the early 1970s, housing represented approximately 70% of the demand for sawn timber. In 1974, for example, the rate of home buildings was 38,000 units a year which doubled by 2000. The Forestry Commission estimated that even with the regrowth of ash forests from the 1939 fires being available, hardwood resources would be ‘totally unequal to meeting our own wood requirements in the future’.94 This was a key motivation for the increased softwood planting program at this time. It was felt that softwoods would outperform plantation-grown hardwoods, partly because they grow at a much quicker rate.95

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The emerging policy of government to gain sustainable yield from native forests was seen in regeneration programs. The extent of regeneration of native forests following harvesting was surveyed in detail over the 1968–69 period. Nearly 4000 hectares were reforested by regenerated-felling activities, by induced or natural seeding following harvesting, or by aerial or hand sowing of seed over this period.96 From a forest management perspective, this period saw the first intensive study of the management of the large ash regrowth

forests in the central highlands from the 1939 fires. More sophisticated harvesting schedules were prepared based on this data, for this region and for Gippsland. 1.59

Along with increased demand for wood, there was an increased demand for wood processing capability. The expansion of forestry into East Gippsland from the 1950s was highlighted by the plethora of sawmills opening up in the 1950s and 1960s in this region.97 By the end of the 1960s, there had been a substantial shift in forest industry activity to the north-central and east Gippsland regions, setting the scene for some high-profile clashes with environmentalists protesting against logging in State Forests. A dedicated conservation movement emerged, helped by the creation of the Land Conservation Council in 1970 whose purpose included increased reservation of forest land for conservation. However, increased public [page 24] awareness of conservation issues saw a defensive response from the Forest Commission with decreased transparency in its operational activities.98

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One clear divide between foresters and conservationists was that the latter saw forests providing multiple uses. The multiple use of forests meant that the forester could, ‘no longer regard timber production as his sole responsibility … it could even happen that timber production came third in priority after water yields and public recreation’.99 This conflict included dispute over the viability of softwood plantations themselves, particularly where there was conversion of native forests for exotic softwood plantations.100 The conflict over plantations and their environmental impact highlighted the complexity of the debate. It was not just conflict between conservationists and public foresters but also the environmental impact of private plantations, creating pressure to stop the conversion of native forests to plantations. Federal funding for softwood planting funding was stopped in 1976, although it continued for a period in Victoria at a state level. The 1970s also saw calls to stop the export of wood chips,101 native forest conversion for plantations and creating more forest reserves and national parks.102 Forest management had become a major political issue, and by the late 1970s it was apparent that further regulation of the public forest sector was imminent.

The expansion of regulatory control over forestry — the start of sustainability regulation 1.61

With the Federal Government’s cut-back on funding for plantations, pressure mounted on the states. The Victorian Forest Commission was becoming more conscious of public demand for use of forests for recreational purposes. For example, in 1972, new reserves set aside in that year as forest parks in Victoria totalled approximately 26,795 acres.103 The Commission recognised that forests had multiple uses and that wood products would not always be the sole priority. This thinking became more entrenched with the election of a Labor Government in Victoria in 1982. The new Minister reconsidered the issue of comparative yields from State Forests and softwood plantations [page 25] in 1984.104 A government inquiry in December 1983 reported on all aspects of the timber industry.105 The guidelines included harvesting undertaken on a regional sustainable-yield basis,106 the need to minimise any adverse effect in the industry on employment, the economic stability of local communities and the overall continued viability of the industry given its economic contribution to Victoria and the need to stay within environmental and land use policy constraints. Part of the inquiry brief considered the withdrawal of some public forests from wood production, less old growth forest harvesting and pressure to expand the pine plantation program. The inquiry highlighted the ambiguity between the use of ‘sustained yield’ and ‘sustainable yield’, with the former relating to wood production and the latter relating to wood and other social benefits. In short, it expressed arguably the first official reference to the modern concept of sustainability. It recommended that public forest management should be: (1) economically viable in terms of wood production; (2) environmentally sensitive with respect to the provision of non-market goods and services; (3) sustainable with respect to the interests of future generations; and (4) assisted by public participation in the planning process. The new Department now defined its role as fostering efficient and stable sawmilling-based industries using ‘sustainable yields’107 of hardwoods from native forests and increasing outputs of softwoods from plantations.

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The new Victorian Government introduced a system for management planning for forestry that included greater community consultation.

Three categories of planning instruments were introduced being: •

state-wide strategic plans;

•

district-based strategic plans; and

•

operational plans for various types of forestry activities within a particular region. [page 26]

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The Government also authorised a review of the structure and administration of the Forest Commission, now amalgamated into the new Department of Conservation Forests and Lands. The Inquiry Report covered the full range of economic, social and environmental impacts of forestry and discussed two main options for East Gippsland:108 1. reducing the sawlog intake to about 75,000 cubic metres per year from 1990; or 2. maintaining the present level of sawlog cut until the old growth resources in the respective districts were exhausted and then reducing to a level which could be supported by the regrowth forests.

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The Inquiry also considered public and private softwood plantations and the projected future rate of new plantings at 2920 hectares per year by the State over the next four-year period up to 1987. With respect to hardwood options in the main regions,109 the report considered its impact on employment and the local community with the aim to define a clear policy directive on hardwood harvesting. This was a time of fervent environmental protest against harvesting in State Forests, so an equitable policy direction between conservation and economic development was at issue.

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The Victorian Government’s Timber Industry Strategy, released in 1986 highlighted that the management of forests was entering a new phase of regulatory control demonstrated by different legislation and regulation, all impacting forests in some way. In 1988, for example, the Victorian Parliament passed the Flora and Fauna Guarantee Act 1988 (Vic), with the aim of protecting the estimated 700 endangered plant and animal species in Victoria. The Act established a procedure for the identification of endangered species and the formulation of ‘Action Statements’ designed to set conservation strategies for them. The

application of this Act was abrogated for certain types of forestry practices.110 Despite this, the Act impacted forestry where identified species subject to Action Statements were present. A species subject to an Action Statement meant that it was under a plan for its conservation. Forestry may be halted if it conflicted with requirements under the Action Statement. 1.66

The period also saw change at an administrative level to forest management. The Department of Conservation, Forests and Lands changed to the Department of Conservation and Environment in 1990. The new Department merged various groups under a unifying aim of ‘sustainable [page 27] resource use, which requires that resources are managed to equitably meet the needs of the present and future generations’.111 A Forest Planning Policy Advisory Group and Forest Management Area Advisory Committee were established to implement this policy. Additionally, forest operator licensing was introduced requiring those engaged in commercial harvesting in public forests to be licensed.

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There was also change at an operational level with the introduction of a Code of Forest Practices. The Code was released for public comment in 1987. Compliance with the Code was a condition of licences to operate in State Forests. In the same year, the new State Conservation Strategy contained objectives the State Timber Industry Strategy had to follow. The Strategy had five aims: •

to maintain essential ecological processes and life support systems;

•

to preserve genetic diversity;

•

to ensure the sustainable use of renewable resources;

•

to ensure the wise use of non-renewable resources;112 and

•

to protect natural areas and ecosystems.

The Victorian Timber Industry Strategy was designed to:113 … reflect the Government’s intention to balance environmental values, the social and economic needs of the community, and the capacity of forests to provide for sustainable levels of all forest values, timber and non-timber.114

The Government was positioning the timber industry to operate sustainably within a new environmental regulatory framework. It was also clear that the health of the timber industry was a major focus with

government policy referring to ‘value adding forest management and value adding forest products’.115 The strategy opposed ‘pulpwood only’ harvesting of native forests and integrated harvesting involving sawlog and pulpwood. Instead, the Strategy committed to ‘multiple-use management’ of forests that included environmental factors as one of the uses. 1.69

Granting fifteen-year licences for harvesting compared to the previous three years highlighted the Strategy’s economic focus. Further announcements included legislated agreements for long-term timber allocations, increasing [page 28] the supply of softwood timber, the establishment of 2000 hectares per year native hardwood plantations, and the stimulation of private, industrial and farm forestry for hardwood and softwood production. This policy position recognised the possibility of hardwood plantations, which had not previously figured as a policy priority. It also sought to encourage value-added processing for sawlogs with a three-year trial of the value adding system for sawlogs. Trials were also introduced to test silvicultural practices other than clear felling.

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The Farm Forestry Loan Scheme was actively encouraging private forestry at this time. In 1991, the Minster for Agriculture116 announced a new Agroforestry policy called ‘Farmtree’.117 Agroforestry was seen as a sustainable basis for growing trees and boosting farm income. Trees grow faster when fertilized through pasture management, and soil fertility improves by the presence of trees. Fast growing softwoods such as Pinus radiata were suitable as well as fast growing eucalypts.118

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The next major policy announcement was the ‘Our Forests, Our Future’ Policy Statement released by the Victorian Government in 2002, heralding a commitment to a more sustainable timber industry with the stated aim of an ecologically sustainable forest management system.119 It committed to not authorising unsustainable levels of logging by announcing that sawlog harvest in State Forests was to be cut by approximately one-third.120 An annual reporting system on sustainable harvesting focused on reporting sustainable yield and to track and verify sustainable sawlog volumes.121 The policy included the establishment of VicForests as an independent commercial entity to monitor the harvesting, marketing and re-establishment of forest areas allocated to it by the Department of Sustainability and Environment.

This new entity was intended to: (1) clearly separate forest policy, regulatory and commercial functions; (2) enhance competition and efficiency in the utilisation of forest produce; (3) identify and directly fund from the government budget community service obligations; and (4) improve transparency in the allocation of rights and use of forest produce. 1.72

The creation of VicForests in 2003 saw the introduction of a statutory corporation responsible for the harvesting of State Forests in allocated areas [page 29] in the whole of Victoria.122 One body created by the State Government responsible for harvesting of State Forests and accountable only to a State Government Department creates a conflict of interest. The entity responsible for commercial forestry was monitored for compliance with regulatory standards by a government department. This has been described as the ‘financial tail should not wag the ecologically sustainable dog’.123

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There were three major reforms in ‘Our Forests, Our Future’ Policy Statement: 1. ensuring Victoria’s forest were managed in an ecologically sustainable manner; 2. making regulatory controls (Victorian Forestry Controls) operate in an open, accountable and transparent manner; and 3. undertaking structural reform with the creation of VicForests as a separate entity in charge of commercialisation of forest produce from State Forests. The Victorian Forestry Controls included public and private forestry being compliant with the Code of Forest Practices for Timber Production. The Code imposed mandatory best practice requirements at an operational level. It had particular relevance to biodiversity protection and sustainability practices.

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Regulatory controls over forests were extended by changes to the Forests Act dividing Victoria into 15 Forest Management Areas (FMAs), each region having a Forest Management Plan (FMP), which must be in accordance with the Code. The FMPs identified which areas of State Forest were to be fully protected called Special Protection

Zones (SPZs), partially protected called Special Management Zones (SMZs), and also General Management Zones (GMZs) allowing for logging operations. Wood Utilisation Plans (WUPs) applied to each FMA and identified which areas in a FMA were to be logged in a particular year. They had to comply with the Code and the FMP and allocate coupes for logging within the areas permitting logging.124 The Code required the creation of Forest Coupe Plans (FCPs), which must be approved before logging commenced. 1.75

The Minister was given the power to grant a timber licence to any person to cut timber on State Forest land.125 Licences for the removal of timber [page 30] were now governed by regulations under the Forests Act.126 These set rates for hardwood sawlog supply levels for each FMA but did not cover the extraction of other forest resources taken out for wood chipping.127 Forest Operator Licences regulated the actions of people working in forestry operations including harvesting and were governed by the Timber Harvesting Regulations 2000 (Vic). Forest Produce Licences authorised a holder to take forest produce from a licensed area and were governed by the Forest (Licences and Permits) Regulations 1999 (Vic). The licence system was designed to ensure that the volume of hardwood logs conformed to the sustainable yield rates. These rates were reviewed every five years and took into account the volume of hardwood sawlogs harvested in each year which were designed not to impact the ability to extract a similar amount in the following year.

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The major legislative provision impacting sustainability was the introduction of the Sustainable Forests (Timber) Act.128 This Act established a framework for sustainable forest management in State Forests. It allowed for the establishment of a ‘Sustainability Charter’ to which all State Forest harvesting must conform and mandated the application of the Code of Practice for Timber Production. The Act’s purpose was to create a structure under which sustainable forest management of State Forests could occur, and provide for security of supply for the public forestry sector. It also required decision makers under the Act to have regard to principles of ecologically sustainable development.

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The inclusion of principles of ESD, however, was a significant change. Prior to the passage of the Sustainable Forests (Timber) Act 2004 there

was no recognition of these principles in either the Forest Act 1958 (Vic), the Conservation Forests and Lands Act 1987 (Vic) or the Code of Practice for Timber Production. In the context of related legislation and regulatory controls over forestry in Victoria, the use of ESD principles was a new and potentially important change. However, the principles were referred to as ‘guiding principles’ only, for which ‘regard was to be had’.129 The ‘regard to be had’ criterion makes their application appear non-mandatory. 1.78

The operation of the ESD principles in the Sustainable Forests (Timber) Act 2004 applies within the context of other legislation and regulatory controls over forestry. For example, the Flora and Fauna Guarantee Act 1988 (Vic) is designed to protect biodiversity. It requires preparation of Action Statements, which are plans for the protection of threatened flora and fauna.130 However [page 31] s 48(3) authorises the Governor in Council to make orders for ‘taking … trading in, keeping, moving or processing of protected flora …’ such orders have been made in respect to logging operations. This means forests were exempted from the Act’s requirements, thereby effectively causing Action Statements to have limited impact on FMPs and decision making in respect to forestry.131 This should also be seen in light of negative assessments of the Flora and Fauna Guarantee Act 1988 (Vic) that highlighted inadequacies in the preparation and review of Action Statements and sometimes a failure to prepare them at all for endangered species.132 Given such an apparent gap in the preparation and enforcement of Action Statements in harvesting regions and the arguably weak regulatory application of ESD principles in the Sustainable Forests (Timber) Act 2004, further scrutiny of the effectiveness of the sustainability objectives for Victorian forestry is invited. The potential exemption of forestry under the Flora and Fauna Guarantee Act 1988 (Vic) is further reinforced by the lack of environmental impact assessment for harvested forest regions. Given that this Act can potentially not apply to forestry and that environmental impact statements are not required when there are changes to the Code, FMPs, WUPs and FCPs, a pattern emerges that renders the basic application of ESD principles problematic and therefore the sustainability objectives for public forestry problematic.

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The application and use of ecologically sustainable forest management

in the context of ESD principles requires more precise benchmarks in order to ascertain whether sustainability standards have been achieved or not. As discussed above, a related issue is the application of the Flora and Fauna Guarantee Act and the use of Action Statements in the context of forest harvesting. An Action Statement for endangered species arguably should not be abrogated for forestry. Also the connection of sustainable yield rates in the context of ecologically sustainable forest management and the application of ESD principles needs to be more clearly articulated in regulation. Another question is how the Code is actually applied, particularly its enforcement. Yet another issue is how FMPs, WUPs and FCPs are prepared in the context of ecologically sustainable forest management and the application of ESD principles. Finally, there is the absence of environmental impact statements in forest harvesting practices to consider. In short, there are a number of regulatory gaps capable of impacting a sustainability objective. 1.80

The application of principles of ecologically sustainable development is one of the peak regulatory challenges of sustainability regulation. One of the [page 32] guiding ESD principles in the Sustainable Forests (Timber) Act 2004 is ‘the need to facilitate community involvement in decisions and actions on issues that affect the community’.133 This principle seems to have had limited impact for decision makers, as there is no specified community participation process detailed in the Act or any related regulatory instruments. The FMPs, WUPs and FCPs are essentially silent on public participation in their preparation and amendment. This is compounded by problems of accessing information particularly about the enforcement of the Code of Practice.134 Even if there is limited public involvement at the decision making stage, this might be excused if there was greater public input at the later review of decision making. Public review of administrative decision making does not happen and there is only limited third party standing rights to take action over decision making generally.

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This regulatory framework was a ‘fragmented and multi-layered forest management regime’.135 Many Acts, regulations, codes and policy guidelines now governed forestry. It invited questions as to its overall consistency and ability to develop ecologically sustainable forest

management standards since decision making was diffused and ran the risk of policy objectives being lost in the implementation of forest management practices. The new regulatory structure had question marks over its ability to deliver true sustainability. It did not, for example, protect any old growth or high conservation value forests where logging could still occur.136 Another gap was its failure to amend the way the sustainable yield rate137 was calculated by assessing the full impact of logging and not just by reference to the amount of sawlog taken out. Arguably its greatest deficiency from an ecological protection standpoint was not outlining how ecologically sustainable forest management was assessed. Without a clear methodology outlining how sustainability objectives were to be achieved, it was difficult to see how the new regulatory regime could be truly sustainable. [page 33] 1.82

The foregoing discussion of regulatory gaps highlights that the relationship of sustainability to the law is an imperfect one. There are regulatory gaps impacting capacity to meet sustainability objectives for ecologically sustainable forest management. A review of the forestry sector highlights a growing but imperfect relationship between sustainability and the law. It demonstrated increased focus on sustainability but at the same time highlighted a number of regulatory gaps. The challenge is to bridge those gaps in a way that can achieve sustainable development in an industry sector that balances ecological protection with an economically viable sector.

The Victorian regulatory framework of private forestry 1.83

The main Act regulating private plantations in Victoria is the Planning and Environment Act 1987 (Vic). It provides the regulatory framework for planning activities related to timber production and harvesting on private land. Under the related Planning and Environment (Planning Schemes) Act 1996 (Vic), each local government area has its own planning scheme based on the Victorian Planning Provisions. Each council is both the planning authority for preparing and amending the local planning scheme and the responsible body for decisions under planning scheme provisions. Therefore, local councils are responsible for planning decisions relating to timber production.

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State and Local Planning Policy Frameworks and the zone system

identify timber production ‘as of right’ (Section 1 land use) meaning a permit is not required in the Farming or Rural Activity zones, subject to compliance with conditions set out in the Victorian Planning Provisions. These include a condition to abide by the Code of Practice for Timber Production 2014. Where a permit is not required for a plantation, the developer must lodge a Plantation Development Notice with the local council, advising location, extent, species and year of planting and expected year of harvest. A Timber Harvesting Plan is lodged prior to the commencement of harvesting setting out where and how much harvesting is proposed. For harvesting native vegetation on private land, planning schemes require a permit. Restrictions and offsets that may apply to the land must be met before this is permitted.138 An offset is the planting of similar vegetation in proportion to the amount of native vegetation harvested. 1.85

The State Planning Policy Framework details strategic issues of statewide importance for planning. It includes measures connected to environmental and landscape values, environmental risk and natural resource management. Every planning scheme in Victoria adopts the planning framework that includes these and other policy areas. There is also a Local Planning Policy [page 34] Framework containing a local strategic statement and local planning policies. They are relevant in the construction of the planning scheme. Under the State Planning Policy Framework, the focus for forestry is to establish softwood and hardwood plantations on predominantly cleared land.139 In addition, it seeks to ensure protection of water quality and soil and that timber production in forests is conducted in a sustainable manner. It mandates the application of the Victorian Code of Practice for Timber Production 2014. Individual planning schemes must be prepared within this framework.

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Planning schemes consist of maps and ordinances or policies. There is a planning scheme for every municipality in Australia. They represent the main regulatory control over private plantations and native forests. The aim of a planning scheme is to provide a clear and consistent framework for decisions about the use and development of land. They also act as a means of implementing state, regional and local policies affecting land use and development.

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The South Gippsland Planning Scheme is an example for application to

private forestry and plantations and includes some key provisions relevant to ecological protection.140 Clause 12.01 covers biodiversity setting out three parts: 1) Objective — the protection and conservation of biodiversity; 2) Strategy — to consider the impact of land use and avoid adverse impacts; and 3) Policy Guidelines — in this case to apply the Native Vegetation — Biodiversity Assessment Guidelines and the Native Vegetation Information Management System. 1.88

The key provision is clause 52.18 covering timber production. This clause requires private timber production to comply with the Code of Practice for Timber Production 2014. The Code is complied with to the satisfaction of the responsible authority, the local council. If a permit is required for timber production then it is possible it may include a requirement for compliance to the Code be acknowledged from other parties including the Minister or referral authority; in other words, a requirement that they consider whether compliance has been met. Clause 52.18–3 requires that after a Timber Harvesting Plan is lodged with the council and prior to commencement of harvesting, the council with the forest manager establish the condition of roads to be used as the cartage route. [page 35] The council must be advised when harvesting is complete to then review the condition of the roads and if, as a result of use for cartage of the harvest they are damaged, to restore those roads to their previous condition. Clause 52.18–4 requires the council to consider the need to encourage plantation establishment in areas significant to national, state and regional economies and in areas impacted by salinity and other forms of land degradation. Other considerations include the role of native forests and plantations in protecting water quality, conserving flora and fauna, preventing land degradation, salinization and preventing adverse effects of groundwater recharge, impact on the natural environment, cultural heritage and visual amenity and whether it is appropriate to require environmental protection standards greater than those in the Code.

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The Code of Practice for Timber Production 2014 includes guidance for timber production on private land. It covers timber harvesting, extraction, roads and regeneration as well as establishment and management operations. It goals include: •

adequate regeneration occurs after harvesting;

•

reforestation is achieved efficiently and with environmental care; and

•

environmental values are conserved and water supply catchments are protected.

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Operational conditions for each harvesting site must be set out in the Timber Harvesting Plan. Compliance with the Code is documented in the Plan. The Code requires private foresters to submit to the Shire a Plantation Development Notice prior to establishment, but not if a permit is required, and a Timber Harvesting Plan prior to harvest. Compliance with the Code is monitored by local government.

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Private native forest harvesting and regeneration must comply with planning schemes and the Permitted Clearing of Native Vegetation — Biodiversity Assessment Guidelines 2013.141 These Guidelines are incorporated in the Victorian Planning Provisions and therefore are part of all planning schemes. Plantations are covered under Part 4 of the Code and contain similar provisions as for private native forests under Part 3 of the Code.

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Timber harvesting practices for private native forest must be consistent with the Timber Harvesting Plan, prepared in accordance with the Code and submitted to the relevant local government authority not less than 28 days prior to harvesting142 The harvesting must be within designated coupes [page 36] and is not permitted in buffer zones.143 The plan must detail the estimated timber volumes harvested as well as: •

methods to minimise impacts on biodiversity, water quality and river health;

•

ways to minimise impacts on significant visual landscape values;

•

ways to minimise impacts on cultural heritage values; and

•

a regeneration program to follow harvesting where required.

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Environmental values standards for private native forests are in clause 3.2 of the Code. It covers protection of water quality by the establishment of buffers and/or filter strips with outcomes shown on the Timber Harvesting Plan.144 It also prescribes methods required to minimise water pollution through use of drainage, artificial structures, buffers and filters to slow and disperse surface flows before reaching waterways.145

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Conservation of biodiversity for private native forest is also covered in the Code.146 It mandates that rainforest communities must not be harvested at all147 and that silvicultural systems must be appropriate to suit the ecological requirements of the forest type.148 Regeneration must be undertaken using species native to the area.149

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Plantations require the lodgement of a Planning Development Notice with the local council not less than 28 days prior to the commencement of site development, unless a permit is required.150 A Timber Harvesting Plan is submitted to the local council not less than 28 days before the commencement of harvesting operations.151 The Code is much more prescriptive about the content of the Timber Harvesting Plan. For example, it must have methods to minimise impacts on water quality and river health from timber harvesting.152

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The Forests Act 1958 (Vic) impacts private land by empowering compulsory acquisition of private land for access and fire management purposes when land is near a State Forest. Private forestry is also impacted by the Forestry Rights Act 1996 (Vic) which originally provided for the ownership of trees to be separate from the land under a Forest Property Agreement. This was placed on title and gave security to the tree owner protecting rights to [page 37] the trees in the event the land was sold. The aim was to provide certainty to investors in the plantation approval process, and in later trading of established plantations. This Act was repealed and replaced by the Climate Change Act 2010 (Vic) where a similar regime is in place.153 Each shire must have a Municipal Strategic Statement setting out the strategic plan and land use objectives for the municipality. This includes timber production and biodiversity conservation and planning authorities must consider the Municipal Strategic Statement in decision making.

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Since plantations have a contribution to ecologically sustainable development, it follows that the regulatory environment should enhance this. Environmental benefits include: •

rehabilitation of degraded land and streams;

•

salinity abatement;

•

provision of habitat adding to biodiversity and carbon sequestration; and

•

providing a renewable resource that provides eco-friendly products.

If plantation forestry is considered sustainable then the regulatory environment should reflect the need to add to and not constrain the development of plantations. Regulation appears to provide a streamlined functionality but impediments do exist and may restrict ecologically sustainable forestry in Victoria by limiting optimal growth of private forestry and plantations. 1.98

Stakeholders in the private forestry industry have identified a number of legislative impediments.154 Inequitable treatment of small-scale and low-impact forestry operations is one identified problem. In particular, the Code of Practice for Timber Production 2014 whilst suitable for industrial scale operations, is considered onerous for farmers on treed landscapes on farms. The Australian Forest Growers believe that smallscale operations should be exempt from compliance measures suitable for large-scale operations. The current exemption for compliance to the Code is five hectares or less. The Australian Forest Growers considered this to be ‘not large enough to be a commercially viable crop’.155

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The Australian Forest Growers consider there is a lack of distinction between plantation forestry and logging in native forests in relation to [page 38] Aboriginal Heritage Regulations.156 The problem, they submit, is unfairly burdening tree growers on once-cleared landscapes. Plantations on land that is already disturbed land is fundamentally different to native forestry yet the regulations make no distinction, which in their submission is an unnecessary compliance burden.

1.100 The Australian Forest Growers also identified a number of ‘red tape’ costs over plantations. This included the cost of preparing management plans and other regulatory transaction costs which they submitted is

higher per hectare than industrial scale operations. This is considered to unfairly discriminate against small-scale farm plantations and the compliance cost is a disincentive to managed investment scheme companies as well. Their submission included three recommendations: 1. a quantitative assessment to examine red tape costs for the private forestry sector; 2. a qualitative assessment showing the impact to uptake of forestry amongst private landholders in Victoria, relevant to legislative disincentives; and 3. a qualitative and quantitative assessment of the impact of private forestry on local and regional economies. 1.101 The Australian Forest Growers made an earlier submission to the Review of the Code of Practice for Timber Production in 2006.157 In that submission, they referred to how local government authorities were not suitable for monitoring compliance with the Code and should be replaced by compliance through the relevant Government Department. They also supported agroforestry and low impact private native forestry in freehold native forests warranting exemption from Code compliance.158 1.102 Local government planning schemes have been criticised as inequitable in that private forestry is singled for ‘special regulations’ that are not applied to other land uses claimed to have less favourable socioeconomic and environmental impacts.159 Application of s 23AA of the Country Fire Authority Act 1958 (Vic) requires private forest growers to establish industry fire brigades which is claimed to discriminate against them since this is not required for other [page 39] large land users with comparable size and fire risk. Regulation for restitution of road damage in clause 52.18–4 and Road Management Act 2004 (Vic) s 112 discriminates against timber production and is considered inequitable given the cost burden involved. 1.103 Under the Duties Act 2000 (Vic), standing timber is a dutiable fixture passing with the land under sale. This is considered by the Australian Forest Growers to be inconsistent with the intent of the Climate Change Act 2010 (Vic) (previously covered by the now repealed Forests Rights Act 1996 (Vic)) which separates ownership of trees from the underlying land. The net effect of the duty is to restrict trading in

established plantations thereby limiting optimal land use. 1.104 Crown land is exempted in clause 52.18 of the Victorian Planning Provisions unless it is leased. Thus, forestry in State Forests is excluded from local government planning requirements that is imposed on private forestry. This places private forestry at a commercial disadvantage by the comparative lack of regulatory oversight of forestry in State Forests. The specific recognition of planning schemes of private forestry and regulation over private forestry by local government means there is no centralised authority which could potentially lead to inconsistency in how each council checks compliance. 1.105 As discussed above at 1.91, the removal of native vegetation in Victoria is regulated under the Victorian Planning Schemes, which incorporate the Permitted Clearing of Native Vegetation — Biodiversity Assessment Guidelines 2013. If a permit for land clearing is granted, an offset making an equivalent contribution to biodiversity will be required. It is unclear whether farmland can be used for plantation development under these offset arrangements. This may hinder smallscale plantation operations on unused farmland. An alternative arrangement suggested by the Australian Forest Growers is for an ‘estate’ permit valid for a reasonable period as better than a coupe by coupe permit arrangement for vegetation clearance. 1.106 This chapter has used the example of one industry sector to illustrate the relationship of sustainability with the law. It has highlights this relationship developed in stages from an initial position where sustainability was not recognised at all to the actual adoption of sustainability as a distinct concept through its use in ESD principles in particular resource sectors. The presence of sustainability in Australian law is primarily legislative-based. Whilst court made law is an important source of law, sustainability primarily arises in case law in reviews of administrative decisions of government bodies.160 Whilst [page 40] common law is important in how ecologically sustainable development principles are interpreted, it should be noted that it is predominantly interpretation of the principles in the context of the specific legislation under review that is the primary focus. Occasionally, judges engage in wider discursive review of sustainability principles and these represent precedents that are important in understanding sustainability’s

relationship to the law.161 1.107 It is apparent that there is much still to be done in the relationship between sustainability and the law to ensure effective sustainable resource management. For example, there is limited scope for the measurement and monitoring of sustainability regulation and its actual capacity to achieve a particular sustainability objective. These issues are explored in later chapters. For now, sustainability regulation in the law does exist in an imperfect relationship, but its presence is at least a start.

1.

See for example, Sustainability Victoria, at: .

2.

See: .

3.

The conceptual interaction between these three elements has been further adapted by sustainability economists such as Herman Daly, who argue economy and society are concentric rings embedded in the environment, implying they are completely underpinned by the environment and not simply three elements of a tripartite partnership: H E Daly (ed), ‘Introduction’ in Toward a Steady State Economy, W H Freeman and Company San Francisco, 1973.

4.

G D Meyers and S C Muller, ‘The Ethical implications, Political Ramifications and Practical Limitations of Adopting Sustainable Development as a National and International Policy’ (1996) 4(1) Buffalo Environmental Law Journal 1.

5.

See: .

6.

H Donella, D L Meadows, J Randers and W W Behrens III, The Limits to Growth: A Report for The Club of Rome’s Project on the Predicament of Mankind, Universe Books, New York, 1972.

7.

National Strategy for Ecologically Sustainable Development — Part 1 Introduction, prepared by the Ecologically Sustainable Development Steering Committee Endorsed by the Council of Australian Governments, December 1992.

8.

Inter- and intragenerational equities are referred to in Principle 2 while conservation of natural resources is discussed in Principles 3 and 5.

9.

International Union for Conservation of Nature and Natural Resources, World Conservation Strategy: Living Resource Conservation for Sustainable Development, United Nations Environment Program, and World Wildlife Fund, Gland, Switzerland, 1980.

10.

World Conservation Strategy, note 9 above, Section 1, paragraph 12.

11.

World Conservation Strategy, note 9 above, Section 1, paragraph 3.

12.

World Conservation Strategy, note 9 above, Section 1 paragraph 4.

13.

F R Thibodeau and H H Herman (eds), Sustaining Tomorrow A Strategy for World Conservation and Development, University Press of New England, Hanover NY, 1984.

14.

Report of the World Commission on Environment and Development, Our Common Future, Oxford University Press, New York, 1987.

15.

Report of the World Commission on Environment and Development, note 14 above, p 8.

16.

D E Fisher, Australian Environmental Law: Norms, Principles and Rules, 3rd ed, Thomson Reuters, 2014, p 166.

17.

M C Cordonier Segger and A Khalfan, Sustainable Development Law: Principles, Practices and Prospects, Oxford University Press, Oxford, 2004.

18.

Principle 27: United Nations Conference on Environment and Development, Agenda 21, Rio de Janeiro, June 1992.

19.

This was emphasised at the World Summit on Sustainable Development, 2002, Johannesburg Declaration: see in particular paragraph 5.

20.

For example, UN Convention on Biological Diversity 1992, Kyoto Protocol 1997 and UN Convention to Combat Desertification and Drought 1994.

21.

Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific (Antigua Convention), Article 3(1)(a) available at: .

22.

Its preamble states, ‘recognising that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development …’

23.

United States — Import Prohibition of Certain Shrimp and Shrimp Products (6 November 1998), WTO Doc WT/DS58/AB/R at note 7.

24.

2002 Johannesburg Declaration and 2002 Johannesburg Plan of Implementation, Report of the World Summit on Sustainable Development, Johannesburg South Africa (4 September 2002).

25.

In Regarding the Iron Rhine Railway (Belgian v Netherlands) (24 May 2005), the court highlighted this reinforcing aspect of these two categories of law.

26.

(1992) 31 ILM 848.

27.

Article 2.

28.

The precautionary principle is where there is a threat of serious environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

29.

Report of the World Commission on Environment and Development, note 14 above, 168.

30.

United Nations Convention on Biological Diversity 1992, Article 8(e) available at: .

31.

United Nations Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Article 2(1) available at: .

32.

United Nations Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Article 2(2) available at: .

33.

P W Woodgate and P Black, Forest Cover Changes in Victoria, 1869–1987, Department of Conservation, Forests and Lands, Victoria, Lands and Forests Division, 1988, p 32 plus map.

34.

L Gillbank, ‘Nineteenth Century Perceptions of Victorian Forests: Ideas and Concerns of Ferdinand Mueller’, in J Dargevel and S Feary (eds), Australia’s Ever Changing Forests II; Proceedings of the Second National Conference on Australia’s Forest History, Centre for Resource and Environmental Studies, Australian National University, Canberra, 1993, pp 3–14.

35.

Gillbank, note 34 above, p 6.

36.

A statement by Mueller accompanying the 1861 exhibition in Victoria to select agricultural and industrial exhibits for the London Exhibition of 1862 of Agricultural and Industrial products.

37.

Speech given on 22 June 1871 to the Industrial and Technology Museum on ‘Forest Culture in its

Relation to Industrial Pursuits’. 38.

See P Woodgate and P Black, Forest Cover Changes in Victoria 1869–1987, Conservation Forests and Land. It confirms in 1869, 88% of the state was covered by forest and by 1987 this had declined to 35% of the state.

39.

M Kiddle, Men of yesterday: A Social History of the Western District of Victoria, 1834–1890, reprinted with corrections, ed, Melbourne University Press, Melbourne, 1980, p 181.

40.

L Carron, A History of Forestry in Australia, Australian National University Press, 1985, p 179.

41.

R F Moulds, The Dynamic Forest: A History of Forestry and Forest Industries in Victoria, Lynedoch Publications, 1991, p 6.

42.

C W Ligar, C Hodgkinson and R B Smith, ‘Report on the advisableness of Establishing State Forests’, Papers Presented to Both Houses of Parliament, Vol IV (Session 1864–5).

43.

Ligar et al, note 42 above.

44.

C W Ligar et al, Advisability of Establishing State Forests, 1867.

45.

This requirement was extracted from the Victorian Government Gazette, 14 July 1852.

46.

C Bradshaw, ‘Little Left to Lose: Deforestation and Forest Degradation in Australia Since European Colonisation’ (2012) 5(1) Journal of Plant Ecology 109–20.

47.

Land Act 1862 (Vic) Part 1. An interesting account of this Act and its failure to do what it was meant to do being to open up land to small farmers can be found at J Ireland, ‘The Victorian Land Act 1962 Revisited’, Masters research thesis, Melbourne University library.

48.

Preamble to Land Act 1862 (Vic) Part 1.

49.

Land Act 1869 (Vic).

50.

Recommendations 23 and 24 of Royal Commission into Foreign Industries and Forests, 1871, accessed at: .

51.

The Act may be accessed here: .

52.

Land Act 1890 (Vic) s 10 accessed at: .

53.

Mr George Samuel Perrin.

54.

B Ribbentrop, Report on the State Forests of Victoria, Melbourne, 1896.

55.

S K Vickery and J Blackburne, Report on Permanent Reservations of Areas for Forests Purposes in Victoria, Lands Department, Melbourne, 1897.

56.

Royal Commission into Forest Reservation and Management including several progress reports, Melbourne 1897–1901.

57.

World Conservation Strategy: Living Resource Conservation for Sustainable Development, note 9 above, p 24.

58.

Royal Commission into Forest Reservation and Management, note 56 above.

59.

It should be noted there has been a consistent history of forest conservation protest and agitation in Victoria but often meeting with little success. See, in particular, S Legg, ‘Political Agitation for Forest Conservation:Victoria 1860–1960’ (2016) 2 International Review of Environmental History 7.

60.

Forest Act 1907 (Vic) accessed at: .

61.

Mr Donald McLean.

62.

Mr Hugh Robert McKay.

63.

State Forest Department, Victoria, Annual Report 1917–18.

64.

State Forest Department, note 63 above.

65.

World Conservation Strategy: Living Resource Conservation for Sustainable Development, note 9 above, p 53.

66.

The first Forest Commission comprised Owen Jones (Chairman), H R McKay and W J Code.

67.

J Ajani, The Forest Wars, Melbourne University Press, 2007.

68.

World Conservation Strategy: Living Resource Conservation for Sustainable Development, note 9 above, p 184.

69.

The concept of sustainable yield of natural capital refers to the ecological yield that can be extracted without reducing the base of capital itself.

70.

In 1931, 80% of flooring laid in Melbourne consisted of kiln-dried Victorian Mountain Ash.

71.

The 1935 output was more than double of that of 1932.

72.

World Conservation Strategy: Living Resource Conservation for Sustainable Development, note 9 above, p 68.

73.

J A McKinty, Forestry in East Gippsland, Proc Roy Soc Vic, 1969, 28: 129–39.

74.

T Griffiths, Forests of Ash, Cambridge University Press, Melbourne, 2001.

75.

Carron, note 40 above. It is worth noting that since a peak in the mid-1950s the number of mills in Victoria has fallen to 100 by 1997 and approximately 40 native hardwood sawmills by 2007.

76.

This can be compared to production of sawlogs in the 2005–06 season for example being approximately 500,000 cubic metres.

77.

Whilst this research showed that thinning was difficult and costly VicForests and the then Department of Sustainability and Environment announced a Thinning Strategy for native forests in 2008.

78.

New planting began in the Allambie–Childers area in the Strzelecki Ranges, for example, and the Mt Cole forest in the Beaufort district following an extended period of rehabilitation in the latter.

79.

Pulpwood production at Australian Paper Manufacturers Maryvale plant for 1955 increased to 4,500,000 cubic feet, nearly double the previous year.

80.

Distribution of Population Committee, Report and Recommendations on Measures to Improve the Distribution and Decentralisation of Population in Victoria, Melbourne, 1961.

81.

Colonial Sugar Refining Ltd was interested in establishing a hardboard factory using pulpwood and APM Ltd wanted to expand its operations at Maryvale.

82.

It should be noted that hardwood plantings were also made but at a lesser rate. For example, between 1967–70 the acreage of plantings rose from 1087 to 1413. This increased at a faster rate in the early 1970s with the 1973 acreage 25% greater than the previous year.

83.

J Dargavel, ‘Prospects Present and Preferred’ in J Dargavel and G Sheldon (eds), Prospects for Australian Hardwood Forests, Centre for Resources and Environmental Studies, 1987.

84.

Dargavel, note 83 above.

85.

T Gunnerson, ‘Economic Considerations of Australian Forestry — The Wood from the Trees’ in M F Day (ed), Australia’s Forests — Their Role in Our Future, Australian Academy of Science, Canberra, 1981.

86.

Ajani, note 67 above.

87.

By 2000, Australia’s softwood plantation estate had grown to 1,000,000 hectares.

88.

Ajani, note 67 above. Bowater-Scott and Australian newsprint Mills built wood production plants

supplied by pine from north-east Victoria. 89.

Ajani, note 67 above.

90.

A region referred to as the Green Triangle.

91.

The 2008 Global Financial Crisis saw a slowing in these schemes, and companies such as Timbercorp withdrew from offering further forestry investments. Investments in MIS schemes reached a peak in 2000 and then declined. By 2007, Victoria had an approximately 219,000 hectares of softwood plantations and 175,000 hectares of hardwood plantations: URS, 2007. Analysis of the Victorian forestry and forest products industry, Department of Primary Industries, Victoria, July 2007.

92.

Pulpwood procurement in native forests had been undertaken for thirty-five years up to 1976 with the establishment of APM Ltd’s operations in Maryvale.

93.

Part of the submission to Senate Standing Committee on Social Environment: Inquiry into the Wood Chip Export Industry, 1978.

94.

Forestry Commission Annual Report, 1974.

95.

Softwoods take about 30 years to reach maturity whilst hardwoods take considerably longer depending on the species.

96.

Regeneration-felling involves the removal of unhealthy over-mature trees which were preventing regeneration.

97.

This discussion of the names of newly-established mills in the East Gippsland region is well covered by R F Moulds, The Dynamic Forest: A History of Forestry and Forest Industries in Victoria, Lynedoch Publications, 1991, pp 129–37.

98.

P A Rawlinson, Woodchipping in Victoria, Patchwork Press/Native Forest Action Council, Melbourne, 1977.

99.

A Rule, Forests of Australia, Angus & Robertson, Sydney, 1967.

100. R Routley and V Plumwood, The Fight for the Forests: the takeover of Australian forests for pine, woodchip and intensive forestry, 3rd ed, Australian National University, Research School of Social Sciences, Canberra, 1975. 101. This was directed in Victoria at the Eden mill which sourced wood chips from Victoria. 102. A period known colloquially as the ‘forest wars’. 103. This was in regions around Lorne, Langi Ghiran and Lake Tyers. See Victorian Forest Commission Annual Report 1972–73 accessed at: . 104. The relevant Minister at this time was Robert Alexander McKenzie. 105. The Inquiry considered options for a long-term strategy for the sustainable development of Victoria’s timber and forest product industries, consistent with the government’s social, economic, employment and environmental policies and objectives. The enquiry report was presented to the Minister for Conservation, Forests and Lands on 21 June 1985. The inquiry was chaired by Professor I S Ferguson. 106. Sustained yield means that the rate and amount of logging can be at a rate that allows for the forest to continue in perpetuity and forest supplies are continually available. It is focused on timber supply and is not necessarily based around environmental issues at least not as a main priority of the concept. It is possibly the first official recognition of the issue of sustainable practices in forestry management in Victoria, at least in terms of its recognition as a concept important enough to be included in a government inquiry. 107. This is the earliest reference identified by the author of the use of the word ‘sustainable’ and was stated in the Department’s Annual Report for 1985.

108. Note 105 above. 109. North eastern, Far East Gippsland, East Gippsland, Central South Gippsland being the main hardwood regions. 110. The application of this Act was abrogated by Order of the Governor and this is discussed later in this chapter. 111. This was the first identified reference in Victoria to intergenerational equity and was stated in its first Annual Report 1990. 112. The reference to ‘sustainable use’ of renewable resources and the ‘wise use’ of non-renewable resources seems odd, since it could arguably make more sense to reverse their use to refer to sustainable use of non-renewable resources. 113. Timber Industry Strategy, Department of Conservation Forests and Lands, Melbourne, 1986. 114. Timber Industry Strategy – Overview Government Statement, Department of Conservation Forests and Lands, Melbourne, 1986. 115. Timber Industry Strategy – Overview Government Statement, note 114 above. 116. Mr Ian Malcom John Baker. 117. Agroforestry is defined as a method of simultaneously growing farm crops and trees. 118. Fast growing eucalypts include blue gums, manna gum and red gum. In Tasmania, a 100-hectare plantation of eucalypts established in 1984 had trees 9–12 metres in height within seven years. The issue of hardwood plantations is a key to ecologically sustainable forest management in Victoria and will be considered in detail in a later chapter. 119. Department of Natural Resources and Environment, Our Forests, Our Future:Victorian Government Policy Statement on Forests, DNRE, Victoria, 2002, p 6. 120. Residual or pulp log volumes were not decreased. 121. Known as Monitoring Annual Harvesting Performance in Victoria’s State Forests. 122. The Victorian State Government, being declared a state business corporation on 18 October 2003, created VicForests as a state corporation under s 14 of the State Owned Enterprises Act 1992. 123. A Walker, ‘Forest Reform in Victoria: Towards Ecologically Sustainable Forest Management or Mere Greenwash?’ (2004) 29(2) Alternative Law Journal 58, p 8. The position of VicForests as the commercial arm of State Forest harvesting will be considered later when review of regulatory theory and appropriate regulatory modality are examined. 124. A coupe is a small area of forest within a compartment (land management area usually identified by geographical features) that is harvested in a single operation. 125. See Forests Act 1958 (Vic) s 52. 126. See Forests Act 1958 (Vic) s 7. 127. This prevented a potential control over sustainable forest harvesting that could have combined the optimum use of forest products with licencing. 128. Sustainable Forests (Timber) Act 2004 (Vic). 129. See generally s 5. 130. See in particular Division 2, ss 19 and 20. 131. See in particular Flora and Fauna Guarantee (Forest Produce Harvesting) Order No 2/2004.80, which authorises the taking of protected flora in State Forest, which is incidental to timber harvesting operations authorised under the Sustainable Forests (Timber) Act 2004 (Vic). 132. Environment Defenders Office, Monitoring Victoria’s Environmental Laws Report No 3, Where’s

the Guarantee? Implementation and Enforcement of the Flora and Fauna Guarantee Act 1988 and the Wildlife Act 1975. 133. See Sustainable Forests (Timber) Act 2004 (Vic) s 5(4). 134. The Lawyers for Forests submission to the Independent inquiry into the Environment Protection Authority 4 November 2015 highlighted the complex enforcement landscape that is split between the Department of Environment Land Water and Planning and the Department of Economic Development Jobs Transport and Resources which hinders access to information. The fact that these Departments are responsible for enforcement is itself an issue and the Lawyers for Forests recommend an independent agency such as the Environment Protection Authority to be responsible. 135. Walker, note 123 above, at p 8. 136. The government did announce the phasing out of logging in the Otways and the Wombat State Forest but this was accompanied by increases in the Central Highlands and Gippsland regions, seemingly to make up the shortfall. 137. The sustainable yield rate in forestry terms is the maximum amount of harvesting to occur without debasing the productivity of the stock. 138. See Victorian Native Vegetation Policy (2002). 139. See clause 14 State Planning Policy Framework. 140. It should be noted that whilst private plantation forestry and private native forestry are broadly treated the same way under this legal regime there are distinctions in relation to permits that may be required that differ between these two categories. 141. These guidelines, of which the latest version is September 2013, are incorporated into all planning schemes in Victoria. They deal with how applications for removal, looping or clearing of native vegetation will be considered in relation to impact on biodiversity. 142. See clause 3.4 of the Code. 143. See clause 3.4.1.3 and 3.4.1.5 respectively in the Code. 144. See in particular clause 3.2.1 covering water quality, river health and soil protection. 145. See clause 3.2.1.9 of Code. 146. See clause 3.2.2 of the Code. 147. See clause 3.2.2.1 of the Code. 148. See clause 3.2.2.3 of the Code. 149. See clause 3.2.2.4 of the Code. 150. See clause 4.1.1.2 of the Code. 151. See clause 4.5.1.1 of the Code. 152. See clause 4.5.1.2 of the Code. 153. See Part 4 of the Climate Change Act 2010 (Vic). 154. See, for example, the submission of Australian Forest Growers, ‘Impediments to private forestry development relating to legislative burdens’, August 2007 and the earlier, ‘Regulatory barriers to private forestry in Victoria: Submission to Victorian Competition and Efficiency Commission inquiry into regulatory barriers to regional economic development’, by Gippsland Private Forestry Inc, September 2004. 155. Australian Forest Growers, note 154 above. 156. The national association representing and promoting private forestry in Australia made a submission

to the Australian Government Inquiry into the Forestry Industry on 21 April 2011. This was before the House of Representatives committee on Agriculture, Resources, Fisheries and Forestry.

157. See: