The following is a guest post by David Morris, Principal Lawyer of the Environmental Defenders Office (NT).
The Northern Territory already carries a 1 billion dollar burden for legacy mines. These are mine sites where the company has walked away and left ongoing environmental degradation for the taxpayer to repair. We’d like to think that this is a thing of the past, but recent events show that this not the case. The recent demise of Western Desert Resources (WDR) is a good example. WDR illegally cleared 175km of native vegetation, the company went into administration and, with no likely buyers of the mine, the taxpayer is left to manage the erosion issues and to remove illegal waterway crossings. The fine for the director of the company? $7500! (See ABC article when the decision was handed down in April).
The maximum penalty for the offence of illegally clearing native vegetation is $30,600 for an individual (still woefully inadequate when you consider that the same offence in Victoria can attract a maximum penalty of $182,000). Questions remain about why the penalty given was so low. By comparison, in 2011, a developer in Victoria was fined $40,000 for the illegal removal of 40 trees. It appears that the decision for such a low penalty was made in ignorance of the ongoing cost of managing this area for taxpayers, the loss of credibility for the mining industry and the precedent this establishes.
The principle of general deterrence is of central importance when sentencing environmental offenders. That is, sentences should be sufficient to clearly state to the rest of the community that this type of conduct will not be tolerated. In essence it’s about saying we’re not going to allow you to get off with a slap on the wrist when you prioritise your profit over the long term health and prosperity of the environment.
In the NSW case of Stephen Garret v Dennis Charles Williams, Chief Justice Preston of the Land and Environment Court stated:
“Courts have repeatedly stated that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in relation to compliance with environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains. The amount of the fine should be substantial enough so as not to appear as a mere licence fee for illegal activities.”
As mentioned earlier, the court fined the director of WDR $7,500. In 2013, that same director was paid $429,167 (excluding super) to manage the company. It is difficult to see how the penalty of $7,500 in this case would operate as a general deterrence to others at all. I would argue that the penalty is in reality, meaningless. We’d like to see the NTG ask for the penalty to be reviewed. We’d also like to hear the Minerals Council’s position.
Furthermore, we’d like to see clear guidelines for determining penalties of this type of activity. Determination of the penalty needs to consider the extent of area cleared, the type of area cleared (not all vegetation types are considered the same), an assessment of the economic burden by taxpayers to repair the damage, an assessment of the implications to other parties, and a consideration of reputational loss to the industry.
The issues of industry accountability and the use of legislation to deter activities that might cause environmental harm have arisen during the NTG review of petroleum legislation for fracking. The argument is that if new and improved legislation is introduced to regulate the gas industry, then the potential for environmental damage arising as a consequence will be diminished. If we can learn anything from the recent case against the director of WDR, it is that there are still cowboy operators in the Territory and that penalties must be increased dramatically to deter illegal activity.