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Triggers for Commonwealth Environmental Impact Assessment under the
Environmental Protection and Biodiversity Conservation Act 19991
Angus Martyn
Law & Bills Digest Group
23 November 1999
Introduction
This Research Note is a brief guide2 on aspects of the Environmental
Protection and Biodiversity Conservation Act 1999 and draws
on some of the Commonwealth Government's proposals for developing regulations
under the Act. These proposals, contained in an October 1999 consultation
paper3, are subject to change before they are finalised in
2000.
What is environmental impact assessment?
Environmental impact assessment (EIA) is a process by which the possible
environmental effects of a proposed development, plan or policy are identified
and options for preventing or minimising these are put forward. This information
is then used by the decision-maker to determine whether the proposal should
proceed, and if so, under what conditions.
In its broadest sense, EIA can range from a comprehensive process set
out in legislation, involving published reports, peer scientific review
and public consultation, right down to a simple administrative task for
a routine development where the decision-maker might use a simple checklist
approach to ensure any environmental issues have been considered. Given
the time and cost involved in undertaking the more comprehensive forms
of EIA, relevant Commonwealth, State and Territory legislation usually
sets out under what circumstances EIA is required before a decision can
be made on the particular proposal.
Environmental Protection and Biodiversity Conservation Act 1999
Currently, Commonwealth EIA is undertaken under the Environment Protection
(Impact of Proposals) Act 1974 ('EPIP Act'). From July 2000, the EPIP
Act will be replaced by the Environmental Protection and Biodiversity
Conservation Act 1999 ('EPBC Act').
There are three types of triggers under the EPBC Act whereby
Commonwealth EIA may be required. These are:
- Where an action has, will or is likely to have a significant impact
on a matter of national environmental significance.
- Where an action has, will or is likely to have a significant impact
on the environment on Commonwealth land.
- Where an action by the Commonwealth or its agencies has, will
or is likely to have a significant impact on the environment
inside or outside Australia.
A major change from the EPIP Act that is common to all three EPBC
Act triggers is that administrative decisions, such as the granting
of export licenses, are not considered to be actions: see ss.
523-524A. Particularly in relation to the first trigger mentioned above,
it is not clear whether this will lead to an increase or decrease in the
number of Commonwealth EIAs that will be potentially required. An increased
number may result because the Commonwealth will no longer have to have
any connection with the relevant action or its approval. However, this
may be counterbalanced by the fact that the Commonwealth is concerned
with a narrower range of environmental impacts than under the EPIP
Act.
Trigger 1: Matters of national environmental significance
Six 'matters of national environmental significance' are listed in Part
3 of the EPBC Act. These are discussed below.
World Heritage. This applies both to properties on the world heritage
list and those not yet on the list but declared to be world heritage properties
by the Commonwealth. In relation to the second element of the trigger
- significant impact - the October consultation paper suggests that an
action (including outside world heritage boundaries) whereby any of the
relevant listed heritage values are lost or degraded or where the integrity
or authenticity of the value or values is diminished would be considered
as having a significant impact.
Ramsar Wetlands. The Ramsar Convention is designed to protect
wetlands of international importance. Again, the Commonwealth may declare
a wetland to be a Ramsar wetland for the purposes of the EPBC Act
even though a formal listing process has not been completed. Significant
effect impacts (including resulting from actions outside Ramsar boundaries)
might include: measurable changes in waterflows, nutrients, salinity etc,
serious impacts on the habitat or lifecycle of dependent native species,
or the introduction of invasive species.
Listed Threatened species and communities. This is significantly
broader than the Endangered Species Protection Act trigger that
currently exists under EPIP Act. What is considered a significant
impact varies according to category of listing, which in turn reflects
how threatened the species or community is. However, it may include disruption
of breeding cycles, modification of important habitats, the introduction
of potentially harmful species, fragmentation of populations or interference
with the recovery of the species or community.
Migratory Species. This covers species that are protected under
the Bonn Convention on migratory animals, some bilateral migratory bird
conventions or any other relevant international agreement approved by
the Commonwealth Environment Minister. Impacts that may be considered
to be significant are broadly similar to those mentioned under the threatened
species and communities trigger above, although the required degree of
impact is generally higher.
Nuclear Actions. Under the EPBC Act, nuclear actions include
establishing or significantly modifying a nuclear installation (a reactor,
storage/waste disposal or radioactive isotope production facility), transporting
nuclear fuel or wastes, mining or milling uranium ore, decommissioning
or rehabilitating installations, transport facilities or mining / milling
operations. The October consultation paper suggests that undertaking virtually
any of these actions would fall within the meaning of significant impact.
Note that apparently due to the lack of a suitable Constitutional head
of power, some 'nuclear actions' of a non-commercial nature may not trigger
the EPBC Act.
Commonwealth Marine environment ('Commonwealth waters'). For the
purposes of the EPBC Act, Commonwealth waters include fisheries
within State waters that are managed by the Commonwealth. In addition
to actions in Commonwealth waters, this trigger covers actions that take
place either in State waters or on land but impact on Commonwealth waters.
However, impacts from licensed fishing in current State-managed fisheries
in State waters are excepted and do not trigger the EPBC Act.
Significant impacts include compromising ecosystem functions, substantial
adverse impacts on cetaceans (whales, dugongs etc) or listed marine species
(see s.248 of the EPBC Act). They also include water quality changes
that have long term effects on a population of marine species or a marine
community, chemical or heavy metal accumulation in biota where this poses
threats to human health or species viability.
Trigger 2: Commonwealth Land
This trigger is tripped by any action that has, will have or is likely
to have a significant impact on the environment on Commonwealth land.
This covers both land owned or leased by the Commonwealth (eg Commonwealth
reserves and national parks, defence lands etc) and external territories,
excluding Norfolk Island. Actions taken outside of Commonwealth land are
also covered by this provision.
There is no guide to what constitutes a significant impact on Commonwealth
land either in the EPBC Act or the October consultation paper.
This may be addressed in regulations. However, current Commonwealth practice
under the EPIP Act is to utilise existing Australian and New Zealand
Environment and Conservation Council (ANZECC) EIA guidelines to assist
on this issue.
Trigger 3: Commonwealth agencies
The final trigger concerns actions of the Commonwealth or of its agencies
that has, will have or are likely to have a significant impact on any
aspect of the environment inside or outside of Australia. Again, there
is no guidance on the significant impact issue.
Triggers may not lead to Commonwealth EIA
Even if on the face of it, one or more of the triggers appear to have
been met, it does not necessarily mean that the Commonwealth will actually
undertake a comprehensive EIA. For example, there may be a Ministerial
declaration or State bilateral agreement in force that provides that a
Commonwealth approval under Part 9 of the EPBC Act is not required.
An EIA under the EPBC Act also is not required if the action in
question is subject to a regional forestry agreement (including one under
negotiation) or is authorised under the Great Barrier Reef Marine Park
Act 1975. The forestry exception does not apply to areas on the World
Heritage or Ramsar lists.
Endnotes
- See also Research Note No. 16 which deals with bilateral agreements
under the Act.
- Given the space limitations of this Research Note, it should not be
relied on as a guide to the full legal effect of the EPBC Act.
- Regulations and Guidelines under the EPBC Act,October 1999.
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