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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-05-13 Daily Xml
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Parliamentary Procedure

AQUACULTURE

The Hon. M. PARNELL (16:04): I move:

That the regulations under the Development Act 1993 concerning aquaculture, made on 23 April 2009 and laid on the table of this council on 28 April 2009, be disallowed.

This is the second or third time I have moved a motion to disallow regulations under the Development Act that seek to undermine public participation in the industrial use of South Australia's coastal waters. I commence my remarks in relation to why these are poor regulations that need to be disallowed with a very brief history lesson on how not only this government but also the previous government have eroded the rights of the community to have a proper say on the use of the commons, particularly our coastal waters.

The starting point is that development in this state is governed by the Development Act. 'Development' includes building works and also the change of use in land. 'Land' also includes land covered by water, which means that the Development Act covers the whole of South Australia out to the three nautical mile limit and includes the waters covering Gulf St Vincent and Spencer Gulf. In other words, the same laws apply to development on land as to development in the sea.

This is most important because the sea is not private land; it is commons. If we as a community accept that we need proper processes to govern the use of private land, how much more important is it that we have proper processes to deal with development on public land, particularly land that is the commons or the sea?

This was originally recognised in our planning and development control system by the fact that all aquaculture development in this state was regarded as category 3, which meant that every application for aquaculture in coastal waters had to be advertised for public comment and that the public had the right to appeal against any approvals if they felt that the application was seriously at variance with the planning rules—in this case, the Coastal Waters Development Plan.

In the mid-1990s, the Conservation Council of South Australia started to become increasingly concerned about the proliferation of aquaculture approvals that were based on very limited scientific or environmental information. The concern was that the aquaculture industry believed that it knew the best spots for its activities, but it knew very little about the host environment in which it was establishing itself. The principal campaigner on behalf of the Conservation Council of South Australia was Peter Marchant, a former lighthouse keeper on Neptune Island and a font of knowledge about the marine environment. In fact, Peter was awarded the Conservation Council's premier award, the prestigious Jill Hudson Award for Environmental Conservation, for his efforts on behalf of the marine environment.

It was Peter Marchant who pointed out the appalling process that was being followed by government bodies to assess and approve aquaculture in South Australia. That process included the delegation of all decision-making powers by the Development Assessment Commission to a subcommittee that comprised industry representatives. In other words, the aquaculture industry representatives sat around a table with bureaucrats and made decisions about their colleague's development applications. The Conservation Council urged the government and the Development Assessment Commission to stop this practice, and those calls fell on deaf ears. As their lawyer I did likewise and had no success at all.

We were so confident that the processes being used were unlawful and corrupt that we threatened the Development Assessment Commission and the government that we would appeal against the very next application that was lodged if they did not start processing applications in a proper way. Again, we were ignored. As a result, in 1998 we lodged appeals against the very next development applications lodged. It turned out that they were kingfish applications for Fitzgerald Bay—the very developers who are now concerned about the Point Lowly desalination plant, which is about to discharge, from memory, 4.3 cubic metres of waste per second into the local environment.

When we got to court the lawyers representing the Crown—representing the Development Assessment Commission—effectively admitted to the court that the process was so flawed that they would not contest the appeal. In other words, they threw in the towel and said that it was a no contest. They said, 'We can't possibly win; the Conservation Council is absolutely correct that the process is flawed; we give in.' As a result the case was resolved, with the Conservation Council successful. We did not even argue the merits or otherwise of that particular activity in that location—we did not even get to that stage.

That was not the end of the matter, because in 1999 there were further concerns about the inadequacy of environmental information, so further representations were made to the Development Assessment Commission, and this time the applications challenged were tuna feedlots in Louth Bay near Port Lincoln. I will not go into the history of how those tuna feedlots came to be there; for that background members can read the Environment, Resources and Development Committee report on the matter, a report which eventually resulted in criminal prosecution of leading figures in the aquaculture industry.

In relation to the merits of that case, the Conservation Council argued that those developments were not ecologically sustainable. After this state's longest-ever environment trial, and after hearing from 20 or so witnesses, the full bench of the Environment Court of this state agreed that the developments were not consistent with the planning scheme. They were seriously at variance and therefore were overturned. What happened then is what always happens: outraged industry went to the government—it was the Liberal government back then—and they said, 'Our industry is too important to be subject to the regular laws; we need protection.' They said, 'We've got a problem.'

I agree: they did have a problem. They had a problem with pollution, with nutrient build-up in the ocean, with anoxic sludge developing beneath their cages, with shark interactions and with dolphin deaths. It is not commonly known that the tuna industry off Port Lincoln was the single biggest killer of dolphins in South Australia. Yet, the industry convinced the government that it was not the problem, that the problem was public consultation rights; the problem was the Environment Court applying planning principles; the problem was greenies in court. So, within a week of the court's decision, the government gave the industry the protection it needed and it changed the law, changed the development regulations, the same regulations that I am now moving to disallow. It is using the same technique of changing the law when it gets inconvenient truths.

So back then it changed the law to say that certain forms of aquaculture did need to go through the planning system but did not need to go through public consultation rights—that was the change it made. It said back then that anyone who wants to do aquaculture for a year or less does not have to go through public consultation. We said that that would be abused, that they would come back year after year and get temporary permits and it would not have to go through public consultation. That is exactly what they did: year after year they came back to get their one year permit for the sole purpose of preventing the public from commenting on development on public land in the sea. So, the tuna boat owners photocopied the applications for those 42 cages which had been defeated, relodged them, and of course they were approved because no-one had the right to comment or object, and that is how it was done.

In the meantime, the Aquaculture Act came in. Members need to remember that the Aquaculture Act is a direct response to the concerns raised by the community using community consultation powers and rights under the Development Act. If we had not run those early cases, if we had not challenged the process used back in the mid-1990s, those changes would never have been made. If we had not challenged the tuna feedlots, we would not have an Aquaculture Act. The government responded to the pressure placed on it by the community having rights under the Development Act. Yet, since those times, we have seen every year or two new amendments to the development regulations come along that further erode the rights of the community to engage in aquaculture in a meaningful way. By 'a meaningful way' I mean that, sure, there are opportunities to comment on an aquaculture policy or an aquaculture plan, but none of those rights have attached to them the ability to do anything about it if you are ignored. The beauty of the Development Act process was that, if the government or the decision maker—the Development Assessment Commission, or whoever it was—did not comply with proper planning principles and proper laws, you could go to the umpire and get that changed.

The effect of these changes over a period of time—including my motion to disallow regulations two or three years ago—is that there is a clear trend. It is about privatising the sea for exclusive industrial use. People forget the fact that these developers do not have freehold title, so they do not own the sea. They are there with our leave, and the community is still effectively the owner. If you are another fishing interest or a tourism industry, you have no rights.

I will come now very quickly to the regulations I have moved to disallow. Basically, this is pretty much the final nail in the coffin of public participation rights under the Development Act. We have seen in the past regulations where the government simply puts geographic coordinates in regulations and says, 'Anyone who wants to do aquaculture in that area doesn't have to go through the process.' We have seen that sort of abuse. What we are seeing now is the final straw. These amendments to the development regulations amend schedule 3. As I am sure members know, schedule 3 is a list of activities which do not even relate to development. They are excluded from the definition of 'development'. What is added to schedule 3 is a new point 16, as follows:

Any form of aquaculture development in an aquaculture zone delineated by land not within a council area or a coastal waters development plan is no longer regarded as development.

You do not even need to get development approval. So, primary industries go through the Aquaculture Act. We then have a deeming provision which says that anything that they come up with is automatically incorporated into the Development Act and into the development plan, and therefore, once an area has been identified as good for aquaculture, all public rights of objection come to an end. So, I think this is the last nail in the coffin.

People might say, 'Most of the nails went in a while ago. We have not had appeal rights against aquaculture for some time, so what are you worried about? The only practical intent of these changes is the shuffling around of aquaculture developments within an existing area. How could you be against that?' Certainly, that shuffling around within an area is not as significant a decision as allowing the activity to be established in the first place. The reason I went through that history is that people are saying, 'You don't need these rights any more. The law is now much better. The primary industries aquaculture people are looking at the environment in a way they never looked at it before. Trust them; they've got it right. If they've identified an area as suitable for aquaculture, then no further questions need be asked.'

I went through that history to point out to people that it is the rights that the community had that directly led to all of the improvements. If we were to now say that it is now fixed and no improvements are necessary, I think we would be kidding ourselves as well. They do not have the system right in terms of the proper balance between areas of the sea to be allocated for aquaculture and areas to be allocated, for example, for marine parks. That balance is by no means properly struck, because the reality is that the primary industries people and the aquaculture industry are out there securing the bits of the sea that they want, and the marine park process is lagging many years behind that process.

I know that, the last time I moved for the disallowance of these types of regulations, the response from the major parties was disappointing. Basically, they said that, if you're against aquaculture, vote with the Greens but, if you are for aquaculture, vote with the government. That is simplistic. This motion is not saying aquaculture is bad and that we should not have an aquaculture industry. My disallowance motion says that we do not need to nail this coffin shut. We do need to leave open the possibility of communities having a say over how our land in the sea is used and that those rights have historically led to improvements in the law and in environmental practice, and they can continue to do so as long as we leave the door open for people to be able to participate properly in the planning process. I urge all members to support this disallowance motion.

Debate adjourned on motion of Hon. I.K. Hunter.

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