Academic journal article Washington International Law Journal

Victoria's Window Dressing: How the Environment Effects Act 1978 Failed at Bastion Point

Academic journal article Washington International Law Journal

Victoria's Window Dressing: How the Environment Effects Act 1978 Failed at Bastion Point

Article excerpt

I. Introduction

Since 1988 the Shire of Orbost, then later, the East Gippsland Shire Council, have explored options to construct a new boat ramp at Bastion Point, near Mallacoota1 in Victoria, Australia.2 In May 1999, the East Gippsland Shire and the Department of Natural Resources and Environment prepared a preliminary brief for the minimum level of studies required for continuing with the development, and those bodies sought advice from the Planning Minister as to how to move forward.3 In August 2000, the Planning Minister responded to this inquiry, stating that they must perform an environment effects statement under the Environment Effects Act 1978 ("EEA").4 Despite the danger to the environment by building on this site, the Planning Minister approved the project,5 contrary to the community's wishes6 and the professionals who evaluated the project's effects.7 Parliament passed the EEA to protect the environment from adverse political motives; but, at Bastion Point, the EEA ultimately fell short.

This comment argues that Victoria's EEA fails to adequately prioritize the environment's health because it centralizes too much power in the Planning Minister and allows political will to prevail over environmental considerations. A case study focusing on the proposed plan to construct a boat ramp, breakwater, parking lot, and beach access road at Bastion Point demonstrates this legislation's weaknesses.

This comment first examines the history of Australian environmental impact legislation and Victoria's efforts to devise its own environmental policies. It then studies a proposed development at Bastion Point, and how the proposal's approval process exposed flaws in the EEA, ultimately leading a community group to challenge the Planning Minister's actions in the Supreme Court. Finally, it examines four proposed changes to the EEA that reduce the Planning Minister's powers and better safeguard the environment from political whim.

II. The Environment Effects Act 1978, Passed to Address Shortcomings of Prior State Policies, is Flawed

This Part consists of several sections. First, it examines the history of environmental assessment legislation in Victoria, which will explain why Parliament overwhelmingly approved the EEA in 1978. It next focuses on the EEA's failure to adequately protect the environment because the statute places too much power in the hands of a politician, the Planning Minister. Then, it describes the Planning Minister's powers in Victorian state government and the Planning Minister's broad powers under the EEA. The next section confronts the problems that arise because the EEA does not define "environment." Lastly, this Part discusses the Planning Minister's Guidelines, a document that provides substance to the EEA.

A. Parliament Devised the Environment Effects Act 1978 to Offer Greater Environmental Protections than Other Existing Legislation But Was Weak when Passed

This section outlines the pioneering efforts to create environmental impact assessment8 procedures first at the federal level and later in the state of Victoria prior to the passage of the EEA. It then discusses the passage of the EEA, complete with a statutory analysis.

1. Federal Environmental Planning Policies Did Not Provide Sufficient Environmental Protections in Victoria

Australia designed its early environmental policies to facilitate the development and extraction of the country's natural resources.9 It also attempted to control or protect the environment, focusing on anthropocentric considerations such as public health.10 However, beginning in the 1950s and 1960s, the government stressed more eco-centric environmental control efforts, targeting specific environmental risks like air and water pollution.11 Then, by the late 1960s and 1970s, conservationist philosophies reached the forefront of the environmentalist agenda and leaked into the political discourse.12 As a result, that era's legislation better balanced environmental, social, and economic factors. …

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