Woodside's fast track application under scrutiny - ABC News (Australian Broadcasting Corporation)

Woodside's fast track application under scrutiny - ABC News (Australian Broadcasting Corporation)

A proposal to fast-track approvals for Woodside's Kimberley gas hub development had attracted 1,700 submissions by yesterday's deadline.

The broader LNG precinct, north of Broome, has already been ticked off by the Environmental Protection Authority.

But, the EPA now needs to consider whether or not to approve Woodside's facility within the hub.

Woodside wants its processing facility to be treated as a 'derived proposal', or part of the already approved precinct project.

Hands Off Country's submitted the following:

Submission on Woodside’s request to declare a derived proposal for Browse LNG precinct.

We submit that the EPA must refuse to declare the referred proposal to be a derived proposal as the environmental issues raised  were not adequately assessed when the strategic proposal was assessed;

We submit that there has been a systematic failure at all levels in the assessment process in failing to take account of the very real threat of climate change on this proposal. 

·      As reported 26/11/09 in the Broome Advertiser, the federal Climate Change and Water Minister, Penny Wong espoused that ‘major coastal infrastructure’ will be ‘at risk from climate change’ through destructive ‘storm surges and higher than normal tidal movements’. Using a conservative sea level rise scenario (up to 1.1 meters by 2100) the Department Of Climate Change and Energy Efficiency ‘estimates over $226 billion’ worth of commercial and residential assets and accompanying infrastructure are ‘exposed to hazards associated with inundation and erosion’.[1]

·       In Broome it is estimated there is significant potential for roads to be compromised,[2] with the ‘extensive expansion of Dampier Creek ’ and  ‘large areas of the Broome peninsula inundated’, with as much as 21% of the town area submerged.[3] ‘The capacity of local emergency services to cope with increases in the frequency and or severity of coastal storms and floods, as well as the community health implications of extreme weather events’ is a major concern.[4]

·         In Minister for Aboriginal Affairs v Teoh (1995) 128 ALR 353, the High Court held that there was a legitimate expectation that decision makers would act in accordance with conventions which had been ratified by the Commonwealth government. Suggesting, that at a decision-making level, reference must be made to the provisions of such international treaties  as the Kyoto Protocol, which has been ratified by the Australian Government and which acknowledges climate change.

·         The Kyoto agreement was the culmination of a plethora of scientific data about phenomena such as global warming, ozone depletion and the universal loss of biodiversity, and highlighted the trans-boundary implications of nation states activities within and outside their borders. The Climate Commission is documenting contemporary physical and biological changes in Australia, and the  “Observations coupled with models of ice sheet, ocean temperatures, and sea levels all point in one direction: that it is highly likely that human activities are inducing climate change”.[5]  

·      We submit that research, literature and policy on planning for climate change, emphasizes the need to situate adaptation within a sustainability framework.[6] The principles of ecologically sustainable development appear in the Commonwealth National Strategy for Ecologically Sustainable Development(1992), and in numerous Commonwealth and State environmental legislation, including the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and is the ‘principal mechanism’[7] and appropriate tool to solve environmental concerns.

·         ESD[8] is the environmental component of sustainable development  and is  achieved partially through the use of the precautionary principle. This is a ‘common sense principle’ which is incorporated into Commonwealth strategies, international documents and legislation and dictates, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. What is appropriate is a risk weighted assessment of the consequences of various options, as per Preston CJ who reiterated ‘ the precautionary principle…is the satisfaction of two conditions – the threat of serious/irreversible environmental damage and scientific uncertainty as to the environmental damage’.[9]

·         One key question and concern raised in recent court cases is weather the impacts of proposed projects on Climate change should be considered by decision  makers and/ or the Court in deciding whether to ultimately go ahead. The Minister should have regard for the High Courts rulings in regard to the external affairs head of power in the context of environmental protection as per Richardson v Forrestry Commission (1988) 164CLR261, and Lemonthyme and Southern Forests(Commission of enquiry) Act1987 (Cth) whereby , it is clear the Commonwealth can legislate in areas where there is  a reasonable belief that they might possess world heritage characteristics, that could be damaged unless such legislation is enacted.

·         We submit that to meet International obligations and national standards, consideration should be given to the issue of climate change in reaching its decision on whether to determine the Woodside development as derived. As per Gray[10]  Justice Pain, held  the decision failed to take into account the precautionary principle , nor intergenerational equity, while in Walker[11]  Justice Biscoe considered the Ministers failure to consider the increased flood risks to the development as a result of climate change invalidated the consent.  Also the validity of approvals on the grounds that the Minister failed to consider the impact of the projects on climate change as required to do as part of his duty to consider the public interest was examined in Haughton.[12]

·         According to report 4 of the National Sea Change Taskforce,[13] there is legal uncertainty in regard to responsibility and potential liability in regard to development in areas exposed to climate risk and rising sea levels. The legal risks associated with inadequate assessment of planning for climate change adaptation, through granting development approval in areas ‘vulnerable to coastal processes’ is the potential inundation of ‘liability claims’.[14]   Liability claims will arise as this proposed   development is in a  location where “harm is foreseeable” and there has been a “failing to include adequate protective standards in the planning scheme”.[15]

·         We submit that guidance material was non existent or ‘insufficient’ in relation to the provision of information about climate risk and lacked reference to the  potential liabilities’[16] in regard to climate change.

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[1] Department of Climate Change and Energy Efficiency. 2012.

[2] Preliminary Report  2012 Australian Coastal Councils Conference. Hobart.  March 2012. P 13.

[3] Broome Advertiser ‘Grim picture is painted over rising sea levels’ 26.11.2019 .

[4] Preliminary Report  2012 Australian Coastal Councils Conference. Hobart March2012. P 47.

[5] Preliminary Report  2012 Australian Coastal Councils Conference. Hobart March 2012 .P11.

[6] Preliminary Report  2012 Australian Coastal Councils Conference. Hobart March 2012.

[7] Sharon Beder (1993).

[8] The Environmental Law Framework for Sustainable Development – Principles of Sustainable Development in International, National and Local Laws Ilona Millar, Senior Associate, Baker & McKenzie.

[9] The Environmental Law Framework for Sustainable Development – Principles of Sustainable Development in International, National  and  Local Laws. Illona Millar, Senior Associate, Baker & McKenzie.

[10] Gray v Minister for Planning & Orrs(2006) 152 LGERA 258

[11] Walker v the Minister forPlanning and Orrs [2007) NSWLEC 741

[12] Haughton v Minister for Planning and Macquarie Generation and Haughton v Minister for Planning and Delta Electricity.

[13] Gurran, N, Norman, B, Gilbert, C Hamin, E, 2011, Planning for climate change adaptation in Coastal Australia: State of practice, Report No. 4 for the National Sea Change Taskforce, Faculty of Des Architecture, Design and Planning, University of Sydney, Sydney November 2011.p 9.

[14] Preliminary Report  2012 Australian Coastal Councils Conference. Hobart March 2012 .P9.

[15] Baker & McKenzie 2011 in Preliminary Report  2012 Australian Coastal Councils Conference. Hobart March 2012. P 23.

[16] Preliminary Report  2012 Australian Coastal Councils Conference. Hobart March 2012. P 23.