Protection of wetland habitat

AGS acted for the Minister for the Environment and Heritage in the first civil penalty proceeding relating to a wetland protected under the internationally agreed Ramsar Convention.

Section 16 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) prohibits certain actions that have or are likely to have a significant impact on the ecological character of a ‘declared Ramsar wetland’. This section, under which the proceeding was commenced, and other provisions of the EPBC Act effected Australia’s international obligations under the Convention on Wetlands of International Importance especially as Waterfowl Habitat which was done at Ramsar, Iran, in 1971.

The wetland in this case (Minister for the Environment and Heritage v Ronald Greentree & Ors) was on Windella, a farming property near Moree in northern NSW. The area is part of the Gwydir wetlands. These wetlands play an important role in the biological and ecological functioning of the Murray–Darling basin and are an important waterbird habitat. The Windella wetland had been designated under the Ramsar Convention in June 1999. However, in 2003 this site was completely cleared of vegetation, ploughed and planted with wheat.

In June 2004 the Federal Court found that Mr Greentree and one of his companies had breached section 16. The court rejected the respondents’ argument that the Commonwealth had failed to designate the site effectively. The respondents’ contention that they were specifically authorised under state laws to carry out the clearing and cropping activities and accordingly required no further approval under the EPBC Act was also rejected by the court.

The respondents further claimed that the clearing did not constitute a significant impact on the ecological character of the site within the meaning of section 16, because other activities such as the construction of a nearby dam had already damaged the ecology of the wetland. This, too,was rejected on the basis that the Windella site had nonetheless retained important attributes as a wetland which were significantly impacted upon by the clearing and cropping that took place in 2003.

AGS lawyers Stephen Vorreiter and Sonja Marsic, from our Sydney office, ran the litigation, with input from Helen Neville and Greg Prutej, AGS outposted counsel to the Department of the Environment and Heritage.

In June 2004 Justice Sackville of the Federal Court found that the respondents’ actions breached section 16 of the EPBC Act. On 14 October 2004 Sackville J delivered judgment on penalty and ordered that Mr Greentree pay a civil penalty of $150,000 and further ordered that his private company Auen Grain Pty Ltd pay a civil penalty of $300,000. His Honour also ordered Mr Greentree and Auen Pty Ltd to undertake various rehabilitation measures to the site.