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Pollution and environmental offences by Sonia Brownhill William Forster Chambers © Sept 2012.

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1 Pollution and environmental offences by Sonia Brownhill William Forster Chambers © Sept 2012

2 NT legislation  Waste Management and Pollution Control Act (“WMPCA”), Part 11  of general application  Mining Management Act (“MMA”), Part 3, Division 3 and Part 9  applies to mining sites  see also Water Act, esp Part 2, Division 2 and Part 10, Division 3  applies to pollution of water (in a waterway, ground water and tidal water)  see also Marine Pollution Act  applies to ship-sourced pollutants

3 WMPCA – Scope & objects An Act to provide for the protection of the environment through encouragement of effective waste management and pollution prevention and control practices (long title) An Act to provide for the protection of the environment through encouragement of effective waste management and pollution prevention and control practices (long title) Objectives of Act: to protect the quality of the Territory environment (s5) Objectives of Act: to protect the quality of the Territory environment (s5)

4 WMPCA - Application NA to a contaminant or waste: NA to a contaminant or waste: that results from carrying out of a mining activity, petroleum exploration, or petroleum extraction activity, and confined w/i the land on which activity carried out (s6(2)) that results from carrying out of a mining activity, petroleum exploration, or petroleum extraction activity, and confined w/i the land on which activity carried out (s6(2)) released from a pipeline during activity under Petroleum Act, Petroleum (Submerged Lands) Act, Energy Pipelines Act, and confined to land w/i 1 km of centre of pipeline (s6(3), (4)) released from a pipeline during activity under Petroleum Act, Petroleum (Submerged Lands) Act, Energy Pipelines Act, and confined to land w/i 1 km of centre of pipeline (s6(3), (4)) If not so confined, WMPCA applies to all contaminant or waste, not just that which is confined (s6(5)) If not so confined, WMPCA applies to all contaminant or waste, not just that which is confined (s6(5)) NA to a circumstance to which Marine Pollution Act applies (s6(8)) NA to a circumstance to which Marine Pollution Act applies (s6(8))

5 WMPCA – Environmental offences A person must not: A person must not: intentionally pollute the environment where serious environmental harm results (s83(1)) intentionally pollute the environment where serious environmental harm results (s83(1)) pollute the environment where serious environmental harm results (s83(2)) pollute the environment where serious environmental harm results (s83(2)) intentionally pollute the environment where material environmental harm results (s83(3)) intentionally pollute the environment where material environmental harm results (s83(3)) pollute the environment where material environmental harm results (s83(4)) pollute the environment where material environmental harm results (s83(4)) cause an environmental nuisance (s83(5)) cause an environmental nuisance (s83(5)) intentionally cause or permit a contaminant or waste to be stored in a manner/condition/place where it is reasonably likely to leak, spill, escape into the environment and cause environmental harm (s83(6)) intentionally cause or permit a contaminant or waste to be stored in a manner/condition/place where it is reasonably likely to leak, spill, escape into the environment and cause environmental harm (s83(6)) cause or permit a contaminant or waste to be stored in a manner/condition/place where it is reasonably likely to leak, spill or escape into the environment and cause environmental harm (s83(7)) cause or permit a contaminant or waste to be stored in a manner/condition/place where it is reasonably likely to leak, spill or escape into the environment and cause environmental harm (s83(7)) Others: Others: failure to report an incident causing or threatening pollution (s14) failure to report an incident causing or threatening pollution (s14) failure to comply with pollution abatement notices (s80) failure to comply with pollution abatement notices (s80) breach of terms of approvals and licences (s39) breach of terms of approvals and licences (s39)

6 WMPCA: Environmental harm offences 1 st element: pollute the environment “pollute”: “pollute”: (a) emit, discharge, deposit or disturb, directly or indirectly, a contaminant or waste or (a) emit, discharge, deposit or disturb, directly or indirectly, a contaminant or waste or (b) cause, permit, or fail to prevent, directly or indirectly, the emission, discharge, deposition or escape of a contaminant or waste (b) cause, permit, or fail to prevent, directly or indirectly, the emission, discharge, deposition or escape of a contaminant or waste “contaminant”: a solid, liquid or gas or any combination thereof including: “contaminant”: a solid, liquid or gas or any combination thereof including: (a) noise, odour, heat and electromagnetic radiation (a) noise, odour, heat and electromagnetic radiation (b) and (c) prescribed substances or properties (b) and (c) prescribed substances or properties none prescribed none prescribed “waste”: a solid, a liquid or a gas or a mixture of such substances that are left over, surplus or an unwanted by- product from any activity (whether or not the substance is of value), including prescribed substances or properties [none] “waste”: a solid, a liquid or a gas or a mixture of such substances that are left over, surplus or an unwanted by- product from any activity (whether or not the substance is of value), including prescribed substances or properties [none] “environment”: land, air, water, organisms and ecosystems, including: (a) the well-being of humans; (b) structures made or modified by humans; (c) the amenity values of an area; and (d) economic, cultural and social conditions “environment”: land, air, water, organisms and ecosystems, including: (a) the well-being of humans; (b) structures made or modified by humans; (c) the amenity values of an area; and (d) economic, cultural and social conditions

7 WMPCA: Environmental harm offences 2 nd element: environmental harm results “environmental harm”: “environmental harm”: (a) any harm to or adverse effect on the environment; or (a) any harm to or adverse effect on the environment; or (b) any potential harm (including the risk of harm and future harm) to or potential adverse effect on the environment, (b) any potential harm (including the risk of harm and future harm) to or potential adverse effect on the environment, of any degree or duration and includes environmental nuisance of any degree or duration and includes environmental nuisance

8 WMPCA: Environmental harm offences 2 nd element: level of harm “serious environmental harm”: environmental harm that is more serious than material environmental harm, including harm that: “serious environmental harm”: environmental harm that is more serious than material environmental harm, including harm that: (a) is irreversible or otherwise of a high impact or on a wide scale; (a) is irreversible or otherwise of a high impact or on a wide scale; (b) damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance; (b) damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance; (c) results or is likely to result in more than $50,000 being spent on action to prevent or minimise the harm or rehabilitate the environment; or (c) results or is likely to result in more than $50,000 being spent on action to prevent or minimise the harm or rehabilitate the environment; or (d) results in actual or potential loss or damage to the value of more than $50,000 (d) results in actual or potential loss or damage to the value of more than $50,000

9 WMPCA: Environmental harm offences 2 nd element: level of harm “material environmental harm”: environmental harm that: “material environmental harm”: environmental harm that: (a) is not trivial or negligible in nature; (a) is not trivial or negligible in nature; (b) consists of an environmental nuisance of a high impact or on a wide scale; (b) consists of an environmental nuisance of a high impact or on a wide scale; (c) results, or is likely to result, in not more than $50,000 being spent in action to prevent or minimise the harm or rehabilitate the environment; or (c) results, or is likely to result, in not more than $50,000 being spent in action to prevent or minimise the harm or rehabilitate the environment; or (d) results in actual or potential loss or damage to the value of not more than $50,000 (d) results in actual or potential loss or damage to the value of not more than $50,000

10 WMPCA: Environmental harm offences 3 rd element: mens rea (guilty mind) actual knowledge or reasonable forseeability for offences under s83(1), (2), (3), (4): actual knowledge or reasonable forseeability for offences under s83(1), (2), (3), (4): knows OR knows OR ought reasonably be expected to know, ought reasonably be expected to know, that serious or material environmental harm would result from the pollution that serious or material environmental harm would result from the pollution

11 WMPCA: Environmental harm offences 4 th element: mens rea (guilty mind) intentionally pollute the environment for s83(1) (3) intentionally pollute the environment for s83(1) (3) ie the defendant intended to emit, discharge, etc a contaminant or waste ie the defendant intended to emit, discharge, etc a contaminant or waste ie the defendant intended to cause, permit or fail to prevent the emission, discharge, etc of a contaminant or waste ie the defendant intended to cause, permit or fail to prevent the emission, discharge, etc of a contaminant or waste proved by: proved by: (a) an admission by the defendant of their intention [rare] or (a) an admission by the defendant of their intention [rare] or (b) an inference from the doing of the polluting and the circumstances in which it was done (b) an inference from the doing of the polluting and the circumstances in which it was done

12 WMPCA – Environmental nuisance No mental (fault) element: No mental (fault) element: s83(5) [and (7)] = regulatory offence (s88) s83(5) [and (7)] = regulatory offence (s88) mens rea is not an element of the offence mens rea is not an element of the offence still relevant for sentencing still relevant for sentencing “environmental nuisance” means: “environmental nuisance” means: (a) an adverse effect on the amenity of an area that: (a) an adverse effect on the amenity of an area that: (i) is caused by noise, smoke, dust, fumes or odour; and (i) is caused by noise, smoke, dust, fumes or odour; and (ii) unreasonably interferes with or is likely to unreasonably interfere with the enjoyment of the area by persons who occupy a place within the area or are otherwise lawfully in the area; or (ii) unreasonably interferes with or is likely to unreasonably interfere with the enjoyment of the area by persons who occupy a place within the area or are otherwise lawfully in the area; or (b) an unsightly or offensive condition caused by contaminants or waste (b) an unsightly or offensive condition caused by contaminants or waste

13 WMPCA - Defences Only for prosecutions under s83(1), (2), (3), (4) and (6) [not nuisance] Only for prosecutions under s83(1), (2), (3), (4) and (6) [not nuisance] prove offence not result of def’s failure to exercise reasonable diligence (s84(1)) prove offence not result of def’s failure to exercise reasonable diligence (s84(1)) prove def complied with maximum allowable levels for particular contaminant or waste in (s84(2)): prove def complied with maximum allowable levels for particular contaminant or waste in (s84(2)): provision of environment protection objective provision of environment protection objective condition of environment protection approval or licence condition of environment protection approval or licence provision of the Regulations provision of the Regulations

14 WMPCA - Penalties See Environmental Offences and Penalties Act, read with Penalty Units Act 2009 and Regulations [PU = $137] See Environmental Offences and Penalties Act, read with Penalty Units Act 2009 and Regulations [PU = $137] Applicable to offending after 1 July 2011 Applicable to offending after 1 July 2011 Prov’nIntention Environ conseq Environ Offence Level Individ min Individ max Body corp min Body corp max s83(1)PolluteSerious1$52,745$527,450 5 yrs gaol $263,588$2,635,880 s83(2)NoSerious2$21,098$210,980$105,490$1,054,900 s83(3)PolluteMaterial2$21,098$210,980$105,490$1,054,900 s83(4)NoMaterial3$10,549$105,490$52,745$527,450 s83(5)NoNuisance4$0$10,549$0$52,745 s83(6)StoreHarm3$10,549$105,490$52,745$527,450 s83(7)NoHarm4$0$10,549$0$52,745

15 WMPCA – Liability for costs Where person found guilty, Court may make an order requiring the offender to reimburse the costs and expenses incurred by the agency in investigating the offence (s97(b)) Where person found guilty, Court may make an order requiring the offender to reimburse the costs and expenses incurred by the agency in investigating the offence (s97(b)) Can be substantial Can be substantial

16 WMPCA – Other provisions Time limitation: complaint to be brought w/i 12 months after agency first became aware of commission of offence (s94) Time limitation: complaint to be brought w/i 12 months after agency first became aware of commission of offence (s94) Alternative verdicts: for s83(1), (2), (3) and (4), Court may find person charged w higher offence guilty of any of the lesser offences (s85) Alternative verdicts: for s83(1), (2), (3) and (4), Court may find person charged w higher offence guilty of any of the lesser offences (s85) Continuing offences: daily penalties if offending continued after notified of alleged offence (s87(2)) Continuing offences: daily penalties if offending continued after notified of alleged offence (s87(2)) Liability of bodies corporate for acts of employees and agents (s90) Liability of bodies corporate for acts of employees and agents (s90) Liability of directors for offence of body corporate (s91) Liability of directors for offence of body corporate (s91) Liability of partners and members of unincorporated associations (s92) Liability of partners and members of unincorporated associations (s92) Liability of employer (not body corp) for offending of employees (s93) Liability of employer (not body corp) for offending of employees (s93) Articles used in commission of offence may be forfeited to Crown (s98) Articles used in commission of offence may be forfeited to Crown (s98) Court may require offender to publicise offence and consequences (s97(c)) Court may require offender to publicise offence and consequences (s97(c))

17 Move to Mining Management Act (“MMA”)

18 MMA – Scope & objects An Act to provide for the authorisation of mining activities, the management of mining sites, the protection of the environment on mining sites (long title) An Act to provide for the authorisation of mining activities, the management of mining sites, the protection of the environment on mining sites (long title) Objects of Act (s3): Objects of Act (s3): –to ensure the development of the Territory’s mineral resources in accordance with environmental standards consistent with best practice in the mining industry –to protect the environment by [various] –to assist the mining industry to introduce programs of continuous improvement to achieve best practice environmental management

19 MMA - Application MMA applies in relation to all mining sites and mining activities in the Territory (s5) MMA applies in relation to all mining sites and mining activities in the Territory (s5) “mining site”: an area of land: “mining site”: an area of land: –(a) in respect of which a person holds a mining interest; –(b) on which mining activities are being, or have been, carried out; or –(c) declared by the Minister “mining activities”: “mining activities”: –(a) exploration for minerals; –(b) mining of minerals; –(c) processing of minerals, tailings, spoil heaps or waste dumps; (d) decommissioning or rehabilitation of a mining site; –(e) operations and works in connection with such activities; etc NA to ozone-depleting substances prescribed under WMPCA (s26) [none prescribed] NA to ozone-depleting substances prescribed under WMPCA (s26) [none prescribed]

20 MMA – Environmental offences A person must not: A person must not: –intentionally do or fail to do an act in breach of Part 3, Div 1 that causes serious environmental harm on a mining site (s27(1)) –do or fail to do an act in breach of Part 3, Div 1 that causes serious environmental harm on a mining site (s27(3)) –intentionally do or fail to do an act in breach of Part 3, Div 1 that causes material environmental harm on a mining site (s27(5)) –do or fail to do an act in breach of Part 3, Div 1 that causes material environmental harm on a mining site (s27(7)) –do or fail to do an act that is in breach of Part 3, Div 1 that causes environmental nuisance on a mining site (s27(9)) Others: Others: –failure to report incidents (s29)

21 MMA – Environmental harm offences 1 st element: breach obligation under Part 3, Div 1 all persons on mining site (s13): take care of the environment all persons on mining site (s13): take care of the environment a person on mining site (s14): a person on mining site (s14): –comply with instructions and procedures in the management system –follow all reasonable directions given by operator about preventing environmental harm owner of mining site with operator appointed (s15): owner of mining site with operator appointed (s15): –provide operator with all relevant information –ensure operator is compenent and provides adequate resources to establish & implement management system operator of mining site (s16): operator of mining site (s16): –ensure environmental impact of mining activities limited to what is necessary –establish and maintain appropriate management structure of competent persons –ensure workers are competent to perform duties –establish, implement and maintain appropriate environment protection management system –provide adequate resources for implementation and maintenance of system –ensure, by regular assessment, that system operates effectively worker on mining site (s17): worker on mining site (s17): –keep informed about, and comply with, work instructions and procedures –report to operator any serious accident or critical incident or a situation they believe may present a risk to the environment contractor on mining site (s18): contractor on mining site (s18): –similar to worker

22 MMA – Environmental harm offences 2 nd element: causes environmental harm “environmental harm”: “environmental harm”: –(a) any harm to or adverse effect on the environment; or –(b) any potential harm (including the risk of harm and future harm) to or potential adverse effect on the environment, –of any degree or duration and includes environmental nuisance “environment”: land, air, water, organisms and ecosystems on a mining site, including: (a) the well-being of humans; (b) structures made or modified by humans; (c) the amenity values of an area; and (d) economic, cultural and social conditions “environment”: land, air, water, organisms and ecosystems on a mining site, including: (a) the well-being of humans; (b) structures made or modified by humans; (c) the amenity values of an area; and (d) economic, cultural and social conditions

23 MMA – Environmental harm offences 2 nd element: level of harm “serious environmental harm”: environmental harm that is more serious than material environmental harm, including harm that: “serious environmental harm”: environmental harm that is more serious than material environmental harm, including harm that: (a) is irreversible or otherwise of a high impact or on a wide scale; (a) is irreversible or otherwise of a high impact or on a wide scale; (b) damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance; (b) damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance; (c) results or is likely to result in more than $50,000 being spent on action to prevent or minimise the harm or rehabilitate the environment; or (c) results or is likely to result in more than $50,000 being spent on action to prevent or minimise the harm or rehabilitate the environment; or (d) results in actual or potential loss or damage to the value of more than $50,000 (d) results in actual or potential loss or damage to the value of more than $50,000

24 MMA – Environmental harm offences 2 nd element: level of harm “material environmental harm”: environmental harm that: “material environmental harm”: environmental harm that: (a) is not trivial or negligible in nature; (a) is not trivial or negligible in nature; (b) consists of an environmental nuisance of a high impact or on a wide scale; (b) consists of an environmental nuisance of a high impact or on a wide scale; (c) results, or is likely to result, in not more than $50,000 being spent in action to prevent or minimise the harm or rehabilitate the environment; or (c) results, or is likely to result, in not more than $50,000 being spent in action to prevent or minimise the harm or rehabilitate the environment; or (d) results in actual or potential loss or damage to the value of not more than $50,000 (d) results in actual or potential loss or damage to the value of not more than $50,000

25 MMA – Environmental harm offences 3 rd element: mens rea (guilty mind) actual knowledge or reasonable forseeability for offences under s27(1), (3), (5), (7): actual knowledge or reasonable forseeability for offences under s27(1), (3), (5), (7): –knows OR –ought reasonably be expected to know, –that the act or failure to act will or might cause serious or material environmental harm

26 MMA – Environmental harm offences 4 th element: mens rea (guilty mind) intentionally act or fail to act in breach of Div 1 obligation for s27(1), (5) intentionally act or fail to act in breach of Div 1 obligation for s27(1), (5) Possibilities: Possibilities: –the defendant intended to do the act or fail to do the act, knowing that it was in breach of Div 1 obligation [must have known of obligations under Div 1] –the defendant intended to do the act or fail to do the act, w/o knowing that it was in breach of Div 1 obligation [must have known were not doing what was required of them] Intention proved by: Intention proved by: –(a) an admission by the defendant of their intention [rare] or –(b) an inference from the doing of the act/failure to act and the circumstances in which it was done

27 MMA – Environmental nuisance No express mental (fault) element: No express mental (fault) element: –likely that mens rea is not an element of the offence – an offence of “strict liability” –still relevant for establishing defence of reasonable diligence –still relevant for sentencing “environmental nuisance” means: “environmental nuisance” means: –(a) an adverse effect on the amenity of land caused by noise, smoke, dust, fumes or odour; or –(b) an unsightly or offensive condition caused by contaminants or waste

28 MMA - Defences General defences for all s27 offences General defences for all s27 offences –prove offence not result of def’s failure to exercise reasonable diligence (s79(1)) –prove def complied with maximum allowable levels for particular contaminant or waste in (s79(2)):  provision of environment protection objective under WMPCA or  condition of an approval, permit, lease, licence or authorisation under an Act General defence for all offences under the MMA (s80) General defence for all offences under the MMA (s80) –prove act constituting offence or element of offence was in accordance with a guideline in force at time act done or with another code, standard, practice or methodology in force at time act done and reasonable in the circumstances

29 MMA - Penalties See Environmental Offences and Penalties Act, read with Penalty Units Act 2009 and Regulations [PU = $137] See Environmental Offences and Penalties Act, read with Penalty Units Act 2009 and Regulations [PU = $137] Applicable to offending after 1 July 2011 Applicable to offending after 1 July 2011 Prov’nIntention Environ conseq Environ Offence Level Individ min Individ max Body corp min Body corp max s27(1)YesSerious1$52,745$527,450 5 yrs gaol $263,588$2,635,880 s27(3)NoSerious2$21,098$210,980$105,490$1,054,900 s27(5)YesMaterial2$21,098$210,980$105,490$1,054,900 s27(7)NoMaterial3$10,549$105,490$52,745$527,450 s27(9)NoNuisance4$0$10,549$0$52,745

30 MMA – Liability for costs No provision permitting Court to order payment of investigation costs No provision permitting Court to order payment of investigation costs Left with ss 77A, 77C of Justices Act and r14 of Justices Regulations Left with ss 77A, 77C of Justices Act and r14 of Justices Regulations –Court can only order defendant found guilty to pay $710 for 1 st day of hearing and $470 per day thereafter unless –Court is of opinion that circumstances of the case or legal issues are of an exceptional nature

31 MMA – Other provisions Time limitation: complaint to be brought w/i 12 months after CEO first became aware of commission of offence (s77) Time limitation: complaint to be brought w/i 12 months after CEO first became aware of commission of offence (s77) Alternative verdicts: for s27(1), (3), (5) and (7), Court may find person charged w higher offence guilty of any of the lesser offences (s28) Alternative verdicts: for s27(1), (3), (5) and (7), Court may find person charged w higher offence guilty of any of the lesser offences (s28) Continuing offences: daily penalties if offending continued after notified of alleged offence (s71) Continuing offences: daily penalties if offending continued after notified of alleged offence (s71) Liability of bodies corporate for acts of directors, employees and agents (s73) Liability of bodies corporate for acts of directors, employees and agents (s73) Liability of directors for offence of body corporate (s74) Liability of directors for offence of body corporate (s74) Liability of partners and members of unincorporated associations (s75) Liability of partners and members of unincorporated associations (s75) Liability of employer (not body corp) for offending of employees (s76) Liability of employer (not body corp) for offending of employees (s76)

32 Recent sentences  Grant v Darwin Port Corporation (2011)  pleaded guilty to breach of s83(5), WMPCA  causing environmental nuisance  allowed stormwater collected on wharf and infrastructure to flow directly into waters of Darwin Harbour, causing a plume  no environmental harm caused and stormwater system altered so flowed into settling ponds  Max penalty then was $25,000  Convicted and fined $19,000 (76% of max)  Ordered to pay $50,000 in costs  Galton v Alcan Gove Pty Ltd (2011)  pleaded guilty to breach of s27(3), MMA  causing serious environmental harm  failure to implement EPMS by continuing steel tank in service w/o 10 yearly internal inspection  62,000 litres of unleaded petrol leaked into ground water and was moving towards coast  Alcan spent over $3m on remediation to remove petrol from groundwater and prevent coastal breakthrough  Penalty range then was $50,000 to $500,000  Convicted and fined $160,000 (32% of max)  No order for costs


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