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Democrats Minority Report
Provisions
of the Environment and Heritage Legislation Amendment
Bill (No.1)
2006
You
can have the best piece of legislation in the world; but, if you have no
political will, it is worth nothing. In the end, it is always going to come
down to political will. But you can also improve the structures to make sure
you get the best out of any piece of legislation and, as such, this legislation
has a lot of improving to do.[1]
Poor Legislative Process
Apart from additions made to
address Heritage issues, the Environment and Heritage Legislation Amendment
Bill (No.1) 2006 contains the first major set of modifying amendments to the
Environment Protection and Biodiversity Conservation Act brought forward since
the Act was first passed in 1999. Yet the Government engaged in no significant
consultation on the Bill with the environment and heritage groups or other
bodies that use the Act regularly.
Senator CARR—
How many people got to see an exposure draft of the bill?
Mr Early—Nobody.
Senator CARR—Surely
an exposure draft would have been circulated to other departments.
Mr Early—No.[2]
The 409 page Bill was debated in
the House of Representatives within a week of its first seeing the light of
day. The Government is now bulldozing this major and wide-ranging pile of
amendments through the Senate without proper time for scrutiny and analysis.
The process is contemptuous of democracy and the environment, and is
particularly unfortunate given the enormous amount of time and energy went into
consultations and considerations when the EPBC Act was in its gestation phase
in 1998-99.
The purpose of properly
examining legislation is to conduct the fundamental task of assessing the
likely effects in the real world of changes to the law, and whether those
effects match what the government says they will be.
The process that has been followed on this occasion is
manifestly inadequate, and has simply not allowed fully considered public and
expert input, or for serious, comprehensive analysis to occur. Every witness
that appeared at the Senate Committee’s hearings raised concerns about aspects
of the package and said they needed more time to examine and assess perceived
problems and potential unintended consequences. For example:
...... if you
wanted a well considered response from the Australian Conservation Foundation,
given the reach we have to various communities of interest around the
country—and, also, we would like to consult with expert advisers on legal
implications—it would take a period of approximately three months for us to
come back with a much more considered response. We just had a chance to read
through and respond to what we saw as some of the most significant changes that
we could perceive. We have not been able to think through all of the
implications in such a long list of amendments. It is just not adequate.[3]
Finally, HSI,
TCT and WWF have strong reservations about the process and timetable for
these
amendments. In the relation to the process, given the substantive nature of the
proposed changes to the threatened species and heritage nomination process for
example, it would have been appropriate to have had a process that included a
discussion paper for public comment to allow proper analysis and scrutiny of
the proposed changes. The exceptionally short proposed timetable for passage of
this large complex bill through the Parliament will thwart proper parliamentary
scrutiny and consideration. As such, the timetable for consideration in the
Senate should be extended to 2007.[4]
Even one of the Government’s own
Committee members admitted that he had not had time to examine the Bill.
I confess
that I have not read the bill in detail. I have barely glanced through the
explanatory memorandum.[5]
The Government has failed to
explain at all why it is necessary for the Bill to pass before the end of the
year, or what the consequences would be of waiting a couple of months to allow
for greater consultation and examination. The truth is that there is no reason
to rush this Bill through. There are no budgetary or national security issues
related to this Bill. What we are seeing is an arrogant government that is no
longer interested in democracy.
Of course this is not the first Bill
the Government has bulldozed through the parliament. Many pieces of legislation
now has ridiculously short Committee Inquiries, with quick reporting dates and
truncated hearings. This sausage machine approach not only means governments
are more likely to get away with implementing outrageous policy before people
have a chance to realise it. Even worse, it means there is a much greater
chance that the legislation itself will have flaws that make it harder to
understand or enforce, or give rise to unintended consequences.
In June 2005 the Prime
Minister, John Howard, promised to use his Senate majority "...soberly, wisely and sensibly.
We won't use it capriciously or wantonly or indiscriminately, and I make that
solemn promise on your behalf to all of the Australian people."
Complex, contentious
legislation, like this Bill, pushed through parliament without proper
consideration and debate mean Mr Howard has gone back on his word.
Given the short time frame
to examine and report on this lengthy and complex bill, it is difficult to
address all our concerns in this minority report.
Strong Environment Laws need
Political Will and Adequate Resourcing
For many years the Democrats had called for a stronger and
more coherent approach on environmental issues at the national level. In the
Democrats' view, major environment issues are too significant to be left to the
vagaries of individual state or local government regimes.
The Environmental Protection and Biodiversity Heritage
(EPBC) Act 1999 was introduced by the Coalition Government in 1998. After a
lengthy Senate inquiry and consultation with many environment groups, the
Democrats' negotiated a raft of major improvements before supporting the
passage of the legislation. Whilst not a perfect Act, it was clearly better
than the laws they replaced, and also provided a good foundation for further
improvement.
The Democrats certainly do not
believe that we now have the perfect Act, that everything is fine; we think
there is a hell of a lot of room for improvement still. But the framework is
now in place for more effective improvements to be built on the foundation that
is there in a much easier way than using the various disconnected acts that
were in place or that currently exist that will be replaced by the new Act when
it comes into force next year.[6]
The EPBC Act is undoubtedly the strongest environment law Australia
has ever had.
I would like
to say that WWF is a science-based solutions-oriented organisation. Because of
that we were heavily engaged in the original passage of the EPBC Act through
the Senate and have been active supporters of the EPBC Act for a number of
years. It is important to put on the record that we did highlight that it was
in our opinion world best practice legislation.[7]
Mr Kennedy from the Human
Society International (HSI) told the Committee he thought the EPBC was a very
powerful piece of legislation:
As you know,
we have been supporters of the EPBC. It is undoubtedly, by any standard, a very
powerful piece of law.[8]
Despite the lack of political
will from the Coalition government to fully use many of the powers contained in
the Act, those environment groups who have sought to use the EPBC Act have
found it useful. Ms Ruddock, Principal Solicitor, Australian Network of
Environmental Defender’s Offices outlined to the Committee some of the
practical benefits resulting from the operation of the EPBC Act:
I guess our
experience with the EPBC Act is that it is an important check, particularly in
states like Queensland where things often slip through, and, for lots of
reasons, are not assessed in relation to their species.
It has been
of very significant assistance in areas of Far North Queensland that I have
worked in. Developments such as the False Cape development that was going
through in Cairns. That was an old development which sort of slipped through
the planning laws with very few checks and balances in that process. The
Commonwealth actually banned the marinas and boating developments in that and
that has been a significant advantage. They also put limits on the amount of
clearing which could occur. Likewise, they have put conditions on a lot of the
marina developments around the Whitsundays that have made it a lot stricter
than the state government would have put on. So, again, it has been of
significant use having those extra conditions. Obviously, none of the
developments have been stopped and, obviously some of my clients at various
times are probably very disappointed in that sense, but that ability to put on
stringent conditions is really important and is part of the checks and balances
that you need in having a national system.[9]
Unfortunately a major lack of
political will and resourcing has meant the Act has not fulfilled its
potential. Mr McIntosh from the Australia Institute (AI) echoed the Democrats’
and many environment groups’ concerns when he told the Committee:
You can have the best piece of
legislation in the world; but, if you have no political will, it is worth
nothing. In the end, it is always going to come down to political will.[10]
Similarly Mr Kennedy from HSI said
both the department and ministers demonstrated a lack of political will:
It has been a hard road to try to
help this Act to be implemented effectively. We have been a hamstrung for a
number of reasons. It is not just resources. In many cases it is clearly a lack
of political will by both the department and different ministers.[11]
The lack of resourcing was raised
as a key area of concern by numerous submissions and witnesses to the inquiry.
For example, Mr Glanznig from WWF was unequivocal in his statement that the
problem with the EPBC Act was not red tape but lack of resources:
The block is
not the red tape. The block is a lack of resources. We make that point about
lack of
resources in our introduction. The federal environment department has been too
under resourced to properly implement the Act.[12]
Ms Ruddock from the Australian Network of Environmental
Defenders Office (ANEDO) told the Committee that in her experience, lack of
resources was often a reason given by the Department for not enforcing the Act:
Our
experience with enforcement certainly has been in the north Queensland office
that we were routinely complaining to the department. We probably complained at
least once a month about an enforcement issue for areas where critical habitat
was being cleared that had not been referred, or some other enforcement issues.
Most of the time the response from the department was: you have third-party
enforcement rights; we do not really have the resources to take it on; how
about you look at it?[13]
Even the Minerals Council of
Australia expressed their concerns with the lack of resources:
From our perspective, the Act itself is one of
the best developed pieces of legislation that currently relates to
environmental approval processes for our industry, and I will limit my comments
to the experience of our industry. However, we found that it is actually the
administration of the Act that poses more issues for us than the nature of the
Act itself. There is a lack of resourcing for that administration that means
that processes are often not as clearly articulated to industry and that there
is the opportunity for companies to have a better handle on what the
expectations of the Act are and perhaps not over-refer, as is our current
practice, which tends to delay the system even more.[14]
The Democrats welcome
recommendation 3 in the Chairs report to review the level of resources made
available for the Department's administration of the Act. Given the concern
raised by witnesses that some of the Government’s worries could be addressed by
better resourcing, rather than changing the process and diminishing
accountability, scientific opinion and public scrutiny, the Democrats believe
that the Bill should be delayed until this review has been completed.
While there are some positive
aspects to the Government's Bill, there are also amendments that have the
potential to seriously weaken it and make it far more politicised, as noted by Mr
McIntosh from the Australian Institute:
In terms of
this bill, you have created a whole collection of new exemptions and a listing
process that is far more politicised. So I simply think that we are going to
get more of the same in terms of outcomes, and in terms of the listing
processes I actually think we are going to get worse outcomes.[15]
The Joint submission between
HSI, WWF, and Tasmanian Conservation Trust (TCT) stated that without changes
the amendments will weaken the Act and it will no longer reflect best practice.
They were also concerned that:
Many of the
proposed amendments are undemocratic in nature – they will disenfranchise the
public and are a significant backward step for public access and government
accountability. Additionally, they will undermine the raft of public
nominations that have been already submitted by individuals and organisations
in good faith by not including a provision that enables already submitted
nominations to be subject to the current public nomination process.[16]
Mr Kennedy from HSI, a strong
supporter of the Act when it was first passed, and a member of the Heritage
Council advising the Government, told the Committee that he is now assessing
whether it is worth the HSI continuing to engage in the process if the Bill is
weakened:
Nonetheless,
we have worked very hard. There have been some successes. Fisheries has been an
example where the Act has had a good impact upon sustainability in a general
sense. So we have to decide as an organisation whether, if these amendments are
passed, we would feel that there was sufficient cause and justification for us
to continue burying further resources into its implementation, based on restraining
nomination processes.[17]
The Australian Democrats are not
opposed to streamlining and improving the Act, so long as scientific opinion
and public scrutiny are not sacrificed in the process. Some of the changes
appear to be reasonable ones deserving of support and there are no doubt some
efficiencies and improvements that are made.
Unfortunately, evidence
presented by witness suggest that much of the "streamlining" as
proposed in this Bill will serve to further politicise the Act, making it
easier for politics to triumph above scientific opinion and will reduce public
scrutiny.
The Democrats agree with the
sentiments expressed by HIS, WWF and TCT in their submission:
Weakening the
legislation and retreating from best practice is an unwise and retrograde step,
especially when the challenges facing our natural environment are becoming ever
more serious.[18]
It will be difficult for the
Democrats to support this Bill with out significant amendments.
Third Party Enforcements and Ministerial Review
One of the key concerns for the
Democrats is the proposed weakening of options for third party enforcement by
removing the review of Ministerial decisions by the Administrative Appeals
Tribunal (AAT) and reinstating requirements for financial undertakings for interim
injunctions.
The move away from third party
enforcements is concerning and flies in the face of proper accountability.
There is absolutely no evidence of this appeal right being misused or even
being used overly frequently. It is simply a blatant attempt to remove a key
check on decisions made by the Minister.
Mr Smith from ANEDO argued that
decision making is by its nature political and that's why it is important for
appropriate boundaries to be placed around decision making. Accountability
mechanisms such as third party enforcement are critical for successful
legislative implementation:
The point was
made before about whether these reforms politicise, if you like, the decision
making process. The thing to remember there is that decision making is by its
nature political and it is really just having mechanisms in place to deal with
that. Previous speakers have already noted that you need to make a distinction
between the scientific aspects of listing, and so on, versus the more political
aspects of deciding whether or not something does or does not go ahead. Those
decisions about whether something does or does not go ahead, by their nature
are political. But there needs to be at least two things: first, some kind of
appropriate bounds around that discretion, some guidance as to the framework in
which a decision is made and, secondly, there needs to be accountability. Those
merits review functions where community groups and so on can take action to
remake that decision and get another body to look at the arguments for and
against it and remake that decision are enormously useful.[19]
The Bill removes the right of
review for the following Ministerial decisions to:
- issue or refuse a permit;
- specify, vary or revoke a condition of a permit;
- suspect or cancel a permit;
- issue or refuse a certificate under section 303CC(5) or a
decision of the Secretary under a determination in force under section 303EU;
- make, refuse, vary or revoke a declaration under sections 303FN,
303FO, 303FP in relation to international movement of wildlife specimens
(section 303GJ).
The Majority of submissions
strongly opposed the removal of the right of review. For example the Nature
Conservation Council (NCC) stated:
Important
decisions must be subject to review if the EPBC regime is to be legitimate,
credible and accountable.[20]
The ANEDO noted the usefulness
of the AAT on considering the effectiveness of conditions imposed by the
minister on projects approval:
Merits review also enables the AAT to consider the
effectiveness of conditions imposed in relation to these decisions.[21]
Ms Ruddock from ANEDO told the
committee that removal of the right of review eliminates a mechanism which has
been important for environmental groups when they wish to bring scientific
evidence to the courts:
The merits
review in the AAT is also a particularly useful mechanism for environmental
groups to bring in scientific evidence and have that heard by the courts to
assess some of the conditions that have been imposed on particular decisions
made by the minister. So removing that right will certainly have a big effect
on their ability to actually also bring scientific evidence before the AAT and
strengthen conditions that are put on some of these decisions.[22]
The Department weakly argued
that on particular matters, the Ministers decisions should not be able to be
overturned:
Basically,
the government believes that, with matters of high public importance, decisions
should be taken by the minister and, as such, should not be reviewable by an
unelected tribunal.
....... a small
number of the permit and declaration decisions noted above require careful
balancing of competing interests and judgements. The Government considers that
where these decisions are sufficiently important to be taken by the Minister as
an elected representative, those judgement calls should not be able to be
overturned by an unelected tribunal such as the AAT.[23]
The Department were not
concerned about the need for accountability.
The Question raised by the Law
Council of Australia as to what happens if the Minister has not exercised their
discretion appropriately remains unanswered:
If the
minister has exercised his discretion appropriately, in accordance with the
provisions of the bill, then the likelihood is that the Administrative Appeals
Tribunal will uphold his or her decision. But what if the minister has not
exercised his discretion appropriately? Is there to be no review? If the
minister believes in the integrity of this bill and the integrity of his or her
decision-making process, then he or she should not be concerned to allow a
judicial review of how he or she came to a decision applying provisions of this
bill.[24]
The Bill also proposed to repeal
section 478 of the Act which currently prevents the Federal Court from
requiring undertakings for damages as a condition of granting an interim
injunction. This will effectively cut out third parties from engaging in
enforcement actions because of fear of accruing unmanageable financial damages.
Ms Ruddock from ANEDO told the committee that groups already do not take
action lightly as the costs associated with litigation are often prohibitive
for a not-for-profit organisation:
Litigation is
very expensive. Even just to file a matter in the Federal Court is, I think,
about $1,700 for an incorporated association, which most of the environmental
groups that we have often acted for have been. On top of that you have hearing
fees and all sorts of other fees that the Federal Court imposes. That is before
you even look at finding a barrister to do the matter for you pro bono or at
reduced fees, and having the EDO involved at very little cost for the community
group. It is very expensive. If you have a costs order awarded against you, you
can be up for a lot of money. The Wildlife Whitsunday Group, which took action
against the federal government last year, had a $300,000 costs bill presented
to them after that court case. So it is significantly difficult for groups like
that to take on litigation such as that.[25]
No evidence was produced that
the current provision had led to excessive cases being made. In fact the
Committee was told that only 10 actions had been made in the past 7 years. Nor
was there evidence that the provision was being abused to make frivolous or
vexatious claims:
Mr Smith—Certainly
you could not define any of the 10 actions that have been undertaken—or,
indeed, the three merits cases—as being frivolous or vexatious. Of course, from
time to time frivolous or vexatious matters can be brought and have been
brought, for example, in New South Wales, but the courts have the mechanism to
deal with them and they throw them out; it is an abuse of process; costs are
awarded—
Senator
BARTLETT—So there is no evidence that you are aware of that there has been
misuse of this injunction provision?
Mr Smith—Absolutely
not, no. A number of judges have commented at length upon this very issue—the
idea that, by having third party rights, there will be floodgates opening and
so on, and the courts will be held up for a very long time in dealing with
these. But clearly there is no empirical evidence to suggest that that has been
the case.[26]
There
was however evidence that the provision was beneficial to everyone that uses
the Act:
Senator
BARTLETT—Would it be fair to also say that at least some of the court actions,
one would suggest, have been of assistance to everybody that uses the Act,
including developers, because it has actually clarified what it means?
Mr Smith—At
the EDO’s annual conference last year we had sitting on the panel the senior
member of the Department of Environment and Heritage and I asked him that very
question. He basically said that the community actions have the distinct
advantage of clarifying the way that things work, of interpreting the
legislation and also of keeping the department and the government on their
toes.[27]
The Committee was told that repeal
section 478 would result in fewer actions being undertaken:
Senator
BARTLETT—It is not just rhetoric to say that your professional experience
would be that these changes will mean that fewer actions will be undertaken?
Ms Ruddock—Particularly
the enforcement actions. Our experience with enforcement certainly has been in
the north Queensland office that we were routinely complaining to the
department. We probably complained at least once a month about an enforcement
issue for areas where critical habitat was being cleared that had not been
referred, or some other enforcement issues. Most of the time the response from
the department was: you have third-party enforcement rights; we do not really have
the resources to take it on; how about you look at it? That is not practical
for many of those groups, as I have said, for the reasons that I have just set
out.[28]
The Democrats support the assertion made that important
decisions must be subject to review if the EPBC regime is to be legitimate,
credible and accountable. The amendments in this Bill will seriously undermine
the ability for this to occur, and they should not be supported.
Threatened Species, threatened ecological communities and
Heritage Nominations and Listing
Concern was also expressed by
many of those who provided evidence to the Committee about the proposed changes
to the threatened Species, threatened ecological communities and Heritage
nominations and listing processes.
According to the explanatory
memorandum, the amendments aim to 'streamline' the nominations process and make
it more 'strategic'.
The Australian Conservation
Foundation (ACF) noted in their submission that there is a backlog of 640
threatened ecological communities requiring assessment and some 250 threatened
species recovery plans having been adopted, but many of these had not been
reviewed and are years out of date.[29]
Rather than put more resources
into addressing the backlog, the Government have decided to replace the current
objective and scientific approach with an annual process for thematic
nominations.
The new process begins with the
repeal of section 185 which removes the requirement for the Scientific
Committee to assess the threatened ecological communities listed on the state
and territory lists gazetted by former Environment Minister Robert Hill in
November 2001. This wipes over 500 threatened ecological communities from the
Committee’s current assessment list. The ANEDO was extremely critical of the
proposed strategy:
While this
may lighten the administrative burden for DEH and the Scientific Committee, and
ease political pressure regarding controversial listings, it is heavy handed
and arbitrary. It is contrary to the principles of ESD and good governance to deal
with the back log of listings in this way....
DEH has
failed to process section 185 and many public nominations under section 191 to
date, despite obligations to do so. The removal of obligations to process and
assess nominations is a serious flaw in the Bill.[30]
Proposed section 194K allows the
Minister without explanation or justification to omit any item from the annual
priority assessment list developed by the Scientific Committee. According to
the ANEDO and the Australia Institute a nominated species may be removed for
commercial or economic grounds regardless of its conservation status:
There is no
public consultation on the proposed list, and the Minister may have regard to
“any matter that the Minister considers appropriate” in reaching this decision.
It is therefore possible under the amendments for a nominated species to be
removed from the final Priority Assessment List on commercial or economic
grounds, regardless of the conservation status of that species.[31]
That has
already occurred under the current process, and in many cases I think it has
been borderline illegal. A classic example is the southern bluefin tuna. It has
quite clearly been threatened. Everybody in the scientific community has known
it has been threatened since the late 1990s. It was nominated and then the
government, under the current process, is forced to assess that, and then the
minister must make a decision on whether it is listed. If you list it under the
current provisions then you cannot be granted an export permit under part 13A,
so the government wants to avoid listing any commercial fish species that is
exported, because that is going to result in a clamp on the relevant industry.
Under the new process, what will happen is that the minister can effectively
block nominations. So, if southern bluefin tuna comes up again, the minister
can say, ‘No, I am not going to assess that.’ If the endeavour dogfish comes
up, he can say, ‘No, I am not going to assess that.’ And as a result we do not
get a list that contains all the species that are technically threatened.[32]
Witnesses told the Committee
that the Minister could effectively delay the listing of a species or heritage
area almost indefinitely:
Even when a
nomination makes it onto a priority assessment list the Minister can specify an
assessment period that is longer than 12 months with no apparent time
limitation (the current statutory timeframe for the Scientific Committee to
consider nominations). He can then give an additional extension to whatever the
unlimited original specified period is, for a further 5 years.[33]
The ANEDO in their submission
pointed out that "the loss of species over the last 5 years demonstrates
the dangers of this approach."[34]
Nominations are further
restricted by section 194F(c), which prevents renomination of species
previously rejected under section 191. The ANEDO argued that this was
problematic:
This is
extremely problematic where new scientific information or evidence becomes
available regarding certain species, for example, southern bluefin tuna, or the
koala.[35]
The proposed amendments also
repeal the requirement for the Minister to make a determination on emergency
listing of heritage sites.
Many submissions and witness
before the Committee were concerned that the new process was arbitrary, gave
the Minister too much discretion and would only serve to politicise the process
even further:
Instead of
the current objective and scientifically determined process, the Minister will
now have broad arbitrary discretion to decide what can and cannot be assessed for
listing and protection under the EPBC Act. The amendments open the way for the
listing process to become highly and blatantly politicised and introduces
provisions that are easily open to abuse to avoid politically difficult
decision making. Enactment of these amendments will be a major retreat from
what is national and international best practice.[36]
We are
concerned that the annual thematic process will also allow for certain
politically contentious nominations to be continually delayed and deferred. For
example, commercial fish species and that kind of thing are always contentious.
They will not actually see the light of a proper scientific assessment because
under this process they can get put on the backburner.[37]
I think they
are politicising an already politicised process. I am concerned that it gives
the minister and the Australian Heritage Council greater control over what goes
up and what goes through the process. I am also concerned that the bill does
not amend the processes for the minister actually making his or her decision on
what gets on the list. My position on all the lists is they should be based on
the relevant criteria. For the Heritage List it should be based on whether the
place meets the criteria. If it meets the criteria, it should go on the list.
In terms of threatened species, if it meets the criteria for being a threatened
species, it should go on the list. There are ample provisions for allowing
developments to go ahead even if species or places are listed, so I do not
understand why the government refuses to adopt such an approach.[38]
The idea of themes was consider
by many environment organisations to be a joke, as species do not become
threatened thematically. Environment groups were also concerned that the
proposed process runs the risk of ignoring meritorious and ecological important
species:
Themes may be
administratively convenient or politically attractive, but alas species do not
become threatened thematically. Rather than focusing resources, a “thematic”
approach to assessing threatened species and ecological communities runs the
risk of permanently ignoring meritorious and ecologically important species and
communities that don’t fit the identified themes or don’t make the priority
list, for whatever reason.[39]
The Democrats are concerned about the potential these
amendments will serve to further politicise the listing process and make delays
and attempts to avoid difficult nominations valid.
If the amendments do proceed
without significant changes, the Democrats would like the Minister to make an
undertaking to ensure that all public nominations (for threatened species,
ecological communities, key threatened processes and Heritage) submitted in
good faith under the existing system will be considered and assessed under the
current nomination process.
Recovery Plans and Critical Habitat
The Democrats are also concerned with
the Bills proposed changes to recovery plans and critical habitats.
The Bill provides that it is no longer
compulsory to have a recovery plan, and allows broad Ministerial discretion
regarding recovery plans.
WWF, HSI and TCT in their
submission noted that the drafting of recovery plans had been slow, but argued
that this was an issue of inadequate resources and not one of too much
information.[40]
As noted by ANEDO in their
submission, "recovery and threat abatement plans are vital tools for
conserving threatened species in Australia, and must be fully supported as a priority for the
Australian Government."[41]
WWF, HIS and TCT outlined in their submission reasons why recovery plans are
important:
Threatened species lists are of critical importance for two
reasons – firstly, to provide a vital index of species decline over time
(irrespective of recovery potential) and secondly, as flagship indicators for
the decline of specific habitats or the impact of particular threats, and
therefore to generate decisive and effective conservation activity to
ameliorate those issues. It is vital that lists be maintained as
comprehensively and timely as possible to prevent inaccurate impressions of the
state of the environment and inadequate conservation measures.[42]
It is the Democrats view that the
proposed amendments to recovery plans are a step backwards. Recovery and threat
abatement plans are vital to the survival of a species and should be
compulsory, not up to the discretion of the Minister.
Similarly the amendment to
critical habitat process that allows for critical habitats only to be
designated "where practicable" and entirely on the Ministers
discretion is clearly inadequate.
ANEDO note in their submission
that broad discretion for other considerations, includes political
considerations and the interest of landholders.
Critical habitat is a crucial
element of threatened species protection. Avoiding its recognition does not make
it less critical to the species concerned and can lead to death-by-neglect.
The Democrats support calls from WWF, HIS, TCT and ANEDO to
amend that Act to:
- provide a formal process for public nominations of critical
habitat, equivalent to the current threatened species nomination process.
- provide a mechanism for automatic consideration for listing
identified in action plans for listing in the register.
- Provide a time frame of 2-3 years in which existing recovery
plans must be revised to identify critical habitat.
- Emergency interim protection orders to be made in relation to
critical habitat.
Strategic Assessments and Bioregional Plans
The Bill includes a proposal to undertake strategic
assessment or bioregional plans. The Democrats are supportive of such a concept
in principle, as we are increasingly concerned about the number of small
projects being approved in their own right but the accumulative effects are not
taken into account. For example, many small developments have been approved in
recent years - albeit sometimes with conditions attached – in coastal areas
around Mission Beach in far Northern Queensland, because when assessed in
isolation, they only have a small impact on the surrounding environment.
However, the cumulative effects of all the developments there have been hugely
detrimental to the habitat of the endangered cassowary.
However, while the principle can be supported, the problem
with the Bill is that there is little detail as to how the strategic assessment
and bioregional plans will work in practice. Evidence to the Committee was also
supportive of the concept but cautious and pointed to the lack of detail:
After
discussing it with a number of colleagues in ACF, I would like to add that
clearly the concept is sound in terms of bioregional planning. That is the way
that we have been working on the future protection regimes and our
sustainability regimes in regions. As a concept it has a lot of merit. We would
like some more time to work through what it means to turn that concept into effective
practice.[43]
Ms Ruddock
- There is really no detail at this stage as to how the bioregional plans
would work as to whether they would actually look at a cumulative impact. There
is nothing in the Act that actually suggests that they could at this stage look
at the region and assess it in the way that would assist in somewhere like Mission
Beach........
Senator
BARTLETT—I do not want to verbal you, but is it fair, in a very shorthand
summary, to say that, as it is presented in the Act, there is no indication
that it will serve that purpose potentially, but that if the details were
fleshed out, it could? Is that a fair summary?
Ms Ruddock—Yes,
that is correct.[44]
While
cumulative impact assessment is desirable in principle and is supported in
principle, the mechanism by which it is achieved is all-important. The ANEDO
submission raises numerous issues pertaining to the amendments designed to
streamline the referrals and assessment process.[45]
One of the key concerns
witnesses raised with the Committee was the potential for the strategic
assessment/bioregional plan to be used as a way to avoid proper scrutiny and
assessment of individual projects:
There is the
potential for this process to be used as a way of avoiding proper scrutiny and
assessment.......Given the nature of the powers conferred on the Minister under
these provisions, there is a risk they will be used to reduce the opportunities
for public consultation and oversight.[46]
This Bill
appears to see proponents relieved of the current requirement to undertake individual
environmental impact assessments if the projects are within areas covered by
“strategic assessments”.[47]
Senator
SIEWERT—I want to pick up where we have just left off, and that is on the
regional plans. Can I just ask you for further detail around something Senator Bartlett
asked? Is it your understanding that, using the planning process in Far North
Queensland, if that plan went to the Commonwealth and they ticked it off, any
development included in that plan would then therefore not be assessed?
Ms Ruddock—That
is my understanding of what could happen. You would effectively get a plan; it
would be accredited. It might be a coastal development plan. I know that is
what the minister had flagged as one of the areas that he wanted to look at.
Once you did something in accordance with that plan, it would be ticked off and
it would not need to go through the EPBC procedure. So, that has got
significant concerns, not just in relation to particular regions that may have
significant species, but with themes like coal or uranium, that there might be
a coal plan or a uranium plan that would then be ticked off and then those
things would avoid having to go through the EPBC process.[48]
One witness told the Committee
that it appeared unlikely that new scientific evidence with respect to an
individual project could be taken into account once a strategic assessment or
plan had been approved:
Senator SIEWERT—
A bioregional plan is prepared. What happens if new scientific information
becomes available? Is that able to be taken into account or is it automatically
not now covered?
Mr
Macintosh—No, if it has been exempted it is exempted, so if new information
arises then you cannot take it into account. The action has already been taken,
or it has already been basically approved under the bioregional plan. The
government could then subsequently remake the bioregional plan, but that is
totally at its discretion.[49]
Mr McIntosh from the Australia
Institute also raised the prospect that once you prepare a plan under another
law and then endorse that plan, that that would result in the exemption of all
development taken in accordance with that other plan from the EPBC Act.[50]
For example:
One thing you
should note about that is that the government is currently carrying out a
strategic assessment on exploration, so my guess is that what will happen out
of that process now, if this bill goes through, is that they will use the
strategic assessment process to exempt petroleum exploration under the
legislation. So it will only effectively go through the petroleum act as
opposed to having to also go through the EPBC Act.[51]
The Department suggested that
some of the concerns raised by witnesses were not justified and were
misleading:
Mr Early—I
think the problem is that people are looking at bioregional plans as something
they are not. For example, I do not believe that an approved bioregional plan
would cover everything that is likely to happen in that bioregion. The way that
we are currently doing our regional risk assessments on a voluntary basis in a
number of regions around Australia is to basically try to, if you like, limit
the number of activities that subsequently need to go through the project
approval. For example, I would see a bioregional plan as identifying the sorts
of things that would be required for particular matters that were likely to
come up within that bioregion, and then it may well say they do not need
approval, but of course the minister has the capacity to attach conditions so
there might well be further conditions that would have to be met. The notion
that somehow or other we could do a bioregional plan and then the Commonwealth
could walk away from that region and not be concerned about anything that might
happen is a little bit misleading.
The Democrats believe that there needs to be further detail
and examination of this part of the Bill before a reasoned assessment can be
made of whether the potential problems outweigh the potential benefits. This is
yet another argument for postponing debate on the legislation in the Senate,
while further details are developed of how the strategic assessments and
bioregional plans will work in practice.
Search & seizure and strict liability provisions
The Democrats believe the strong concerns voiced by the
Scrutiny of Bills Committee[52]
into the penalties for a range of strict liability offences were not adequately
addressed by evidence given to this inquiry. It is not good enough to just
hope that the Minister’s response will allay any fears. Such major penalties
from the use of strict liability should not apply unless there are extremely
good reasons given. To date, the Minister and the Explanatory Memorandum have
given no reasons at all.
The Democrats also note that some of the proposed
enforcement provisions will bring the Act into line with existing measures in
the Migration Act 1958 and the Fisheries Management Act 1991. This is an
example of the problem of allowing a bad principle of excessive curtailment of
legal principles or civil liberties into one piece of law, as it is then used
to justify further similar changes to other pieces of legislation on the
grounds of ‘ensuring consistency’.
Whether it was a slippery slope or the thin end of the
wedge, the original decision by the Parliament to allow such provisions into
law in one circumstance has now been broadened out to have much wider
application.
Improving the legislation
Many of the submissions outlined ways that the Act could be
improved. Unfortunately there is not enough time to outline them all here, and
we would recommend that interested members of parliament and the public read
the submissions made to this inquiry.
In his second reading speech on
the amending Bill, the Parliamentary Secretary to the Environment Minister Greg
Hunt MP said the changes “will allow the Australian Government greater
flexibility and capacity to deal with the emerging environmental issues of the
21st century.”
Two of the biggest economic, social and environmental issues
facing Australia in the 21st century are climate change and water
shortages and mismanagement. Yet our National Environment Act has nothing in it
to address these issues.
It is no surprise that a number of organisations renewed
calls for new matters of National Environmental Significance to be added to the
EPBC Act to go some way to dealing with climate change and water mismanagement.
Four new triggers were suggested:
- Broadscale
Land Clearing - The clearing of native vegetation over 100 ha in any two year
period, or the clearing of any area of native vegetation that provides
significant habitat for EPBC Act listed threatened species or ecological
communities, or that is on the Critical habitat list.
- Greenhouse
- Any actions likely to result in greenhouse gas emissions of over 100,000
tonnes of carbon dioxide equivalent in any 12 month period or is likely to produce
5 Mt of carbon dioxide equivalent over the likely lifetime of the action.
- Unsustainable Water Use - The abstraction of surface and ground water resources
over 10,000 megalitres.
- Dams - The
construction and operation of any large dam, defined as having a crest height
of 15 m or more or a capacity of over 1 M cubic metres.[53]
The argument for including these 4 new triggers is
compelling, and is outlined in Appendix A.
The Majority report response to calls for the new triggers
was inadequate. For a start it only focused on one of the proposed new triggers
- climate change:
6.4 The
committee acknowledges the widely held view that climate change is a matter of
national environmental significance. However, the Act already includes the
capacity for additional triggers to be established. Accordingly, these concerns
are not relevant to consideration of the bill before the committee. No
amendment is required for a new trigger to be adopted.
The Democrats reject the majority
reports response. Of course these concerns are relevant to the Consideration of
the Bill. The Department claim that the Bill is a result of 6 years of review
of the Act, yet it has failed to include any new MNE triggers. This is despite
the fact that the Democrats extracted a pledge from the government back in 1999
to develop a greenhouse mechanism for the EPBC. This promise has never been
fulfilled and this Bill presents the perfect opportunity to fulfil that
promise.
The Majority reports response is
even more galling when this Bill removes the requirement for the Government to
review the need for new triggers every 5 years and publish a report on the
findings.
The Democrats strongly urge the inclusion of these 4 new
triggers to the EPBC.
Conclusion
It is well known that the Democrats’ decision, after
negotiating major improvements, to support the passage of the EPBC legislation
in 1999 was a controversial one. The party was subjected to vociferous
criticism by some environment groups, as were those environment groups and
individuals in the environment movement who supported the Democrats’ actions.
While successive Ministers have not been able to muster the
resources and political will to enable the EPBC Act to show its full potential,
time has shown that the Act clearly is a significant improvement on the laws it
replaced at the time. Even some of the strongest critics of the law at the time
of its passage in 1999 have since turned to it in an effort to achieve better
environmental outcomes.
There have been significant achievements as a result of the
EPBC Act. As evidence to this Inquiry showed, this can occur through mechanisms
other than relying on a Minister to stop a development. Indeed, it is a sad
indication of the lack of interest in enforcement at government level that some
of the biggest environmental wins with this Act have come through conservation
groups and individual citizens taking legal and political action. For this
reason, the Democrats find the proposal to remove appeal rights to the AAT
particularly unacceptable.
Given the Democrats crucial role in bringing the EPBC into
being, and our preparedness to take the hard decision to back the Act, when the
politically easy thing to do would have been to just attack the government for
not producing the perfect law, it is extremely disappointing that the
government has seen fit to rush through major changes – some of which clearly
weaken the Act and open up more loopholes for environmental and heritage
protection to be avoided – without any meaningful consultation with either
other political parties or with the many environmentalists who have defended
the legislation and sought to work with it and demonstrate its worth over many
years. Some of the changes made in this Bill cannot be objectively justified as
being beneficial for environmental or heritage protection, and the legislation
should not proceed until they are removed.
Recommendation 1
As no remotely justifiable case has been made for
urgency, the legislation should be deferred to enable proper consideration and
consultation with the many groups in the community who use the EPBC Act
regularly to assess the best ways to strengthen the Bill.
Recommendation 2
The sections of the Bill which remove the
right of appeal to the AAT for review of Ministerial decisions should be
deleted.
Senator Andrew
Bartlett
Deputy Chair
Appendix A -
Additional Matters of National Environmental Significance
Extract from pages 11-16 of the HIS, WWF and TCT submission
(Submission No. 66)
Land Clearance
New trigger - A person
must not take an action that has, will have or is likely to have a significant
impact on the environment by Broadscale clearing.
New definitions -
Broadscale Clearing means
the removal, damage or destruction of native vegetation that:
- exceeds a combined area of
100 ha in any two year period, or
- provides significant habitat
for listed threatened species or ecological communities, or
- is listed critical habitat.
Native vegetation means
- trees (including any sapling
or shrub, or any scrub),
- understorey plants,
- groundcover (being any type
of herbaceous vegetation), or
- plants occurring in a
wetland,
where not less then 70% of the
vegetation are Native Species
While Australia is one of the
most biologically diverse nations in the world6, it also clears more native
vegetation per year than any other developed nation in the world7. Broad scale
is widely recognised as the key major threat to Australia’s terrestrial
biodiversity.
In January 2003, WWF- Australia
commissioned a scientific analysis of the biodiversity impacts of clearing in Queensland
(which prior to 2003 averaged about 500,000 hectares per year). That study
found that land clearing killed more than 100 million birds, mammals and
reptiles each year in Queensland alone. Satellite data shows that during
1999-2001, 94% of tree clearing in Queensland was for pasture 8. Combine those
figures with the reality that extensive clearing in Queensland has already led
to 107,000 hectares of land in the State showing signs of salinity, with over a
third of this land no longer able to support farming.
The impact of broadscale
clearing is undeniable. Indeed, the 2001 SoE report noted that “the destruction
of habitat by human activities remains the major cause of biodiversity loss”. Not
only does it result in the destruction of native species, but it has the knock
on effect of destroying habitat resulting in further species loss, leading to
the occurrence of dryland salinity, increasing the likelihood of weed
infestation and invasive species movement, leads to soil degradation and
erosion, and contributes ver 13% of Australia’s total carbon dioxide emissions.
The National Objectives and
Targets for Biodiversity Conservation 2001-2005 set the target of all
jurisdictions having clearing controls in place that will have the effect of
reducing the national net rate of land clearance to zero, by 200112. However,
in 2001 alone an estimated 248,000 ha of Australian land was cleared13. The
2001 review of the National Strategy for the Conservation of
Australia's Biological Diversity, noted that object 3.2 of the National
Strategy had not been achieved. Objective 3.2 called for the Australian
Government to “ensure effective measures are in place to retain and manage
native vegetation, including controls on clearing” by ensuring that there were
adequate policies and controls in place throughout the Australian jurisdiction.
Some of the States have made
efforts to halt unsustainable native vegetation clearance. For example, the
Queensland Parliament has passed the Vegetation Management and Other Legislation
Amendment Act 2004, which aims to phase out the large-scale clearing of
mature remnant bushland. However, one of the issue preventing State and
Territory legislation from adequately protecting the environment from excessive
broadscale land clearing is the differing regimes that exist throughout the
country.
Without a national focus on land
clearing activities, the damage to the Australian Nation will continue. In the
past 10 years alone the number of terrestrial bird and mammal species assessed
as extinct, endangered or vulnerable rose by 39%15. The threat and cost of
salinity will also rise. In 2000, about 46,500 sq kms (4.6 million hectares) of
agricultural land was already affected with a high salinity hazard costing an
estimated $187 million in productivity. The EPBC Act is the most appropriate
place for the Australian Government to focus its efforts to combat the impacts
of broadscale clearing.
Given the rate of biological
loss and environmental degradation cause broadscale clearing, it is clear that
current methods of control are failing to work and Australia is falling far
short of its international obligations, such as those under Article 8 (c) – (e)
the Biodiversity Convention.
With broadscale land clearing as
an EPBC Act trigger, the Australian Government can actively achieve the objects
of EPBC Acts by promoting the principles of Ecologically Sustainable
Development. In particular, principles of integrating of long and short term economic,
social and equitable considerations, inter-generation equality and the
conservation of biological integrity.
Greenhouse emissions
New Trigger - A person
must not take an action that has, will have or is likely to have a significant
impact on the environment by resulting in, or that is likely to result in
greenhouse gas emissions of:
- over a 100,000 tonnes of
carbon dioxide equivalent in any 12 month period, or
- 5 Mt of carbon dioxide
equivalent over the likely lifetime of the action.
New Definitions
Greenhouse Gas Emission means
the release of:
- carbon dioxide (CO2),
- methane (CH4),
- nitrous oxide (N2O),
- perfluoromethane (CF4),
- per-fluoroethane (C2F6), or
- any combination of (a) – (e)
above.
Pollution from Greenhouse gas
emissions is a global issue that, within the Australian jurisdiction is best
dealt with at a National level. Greenhouse gas pollution from human sources has
already caused a 0.6°C rise in the global average temperature above the
preindustrial level. This seemingly small change in temperature has already had
a significant impact on the Australian environment by causing coral bleaching
in our marine reserves and World Heritage areas and by increasing the severity
of the recent drought and bushfires across the country.
The Inter-governmental Panel on
Climate Change18 identified a range of impacts on ecosystems, human health and
the incidence of extreme weather events associated with an increase in the
global average temperature of 2°C above the pre-industrial level. This dangerous
temperature threshold must be avoided if the risk of large and irreversible
changes is to be lowered.
By incorporating a greenhouse
trigger into the EPBC Act the Australian Government could have more control
over new developments and any increase or changes in existing projects where
they are likely to result in the release of greenhouse emissions over a 100,000
tonnes of carbon dioxide equivalent in any 12 month period, or is likely to
produce 5 Mt of carbon dioxide equivalent over the expected lifetime of the
action. Australia’s Greenhouse gas emissions are increasing. Indeed, in the 10
years to 2002 Australia's total net greenhouse emissions increased 8.8% to 550
megatonnes (Mt) CO2 equivalent. Even without any further increase, given the
current levels of greenhouse gas pollution and the inherent inertia of the
climate system, the global community is probably ‘locked into’ at least a
further 1°C rise in the global temperature. This is likely to cause major
problems for Australia with increases in extreme weather events, reducing water
resources and negative impacts on natural ecosystems, agriculture and
fisheries.
Greenhouse is already recognised
by the Australian Government as a serious issue with the National Climate
Change Adaptation Programme allocating $14.2 million for preparing
Australian governments, vulnerable industries and communities for the
“unavoidable impacts of climate change”. Review of the National Strategy for
the Conservation of Australia's Biological Diversity noted that objective 3.6
Impacts of Climate Change on Biological Diversity had not yet been achieved. By
incorporating greenhouse gas emissions into the EPBC Act the Australian
government will achieve national, cost effective and efficient ways to
legislate for any further development that will significantly add to the
nation’s greenhouse charge.
On 30 December 1992, Australia became the ninth State to ratify the United Nations Framework Convention on
Climate Change (the FCCC). Under Article 4 of the FCCC, Australia is obligated
to adopt national policies and take corresponding measures for the mitigation
of climate change. By incorporating a greenhouse gas emissions trigger into the
EPBC Act the Australian Government could give effect to its obligations while
securing the objects of the EPBC Act.
Unsustainable Water Use
New Trigger - A person
must not take an action that has, will have or is likely to have a significant
impact on the environment by abstraction or enabling the abstraction of surface
and/ or ground water resources over 10,000 megalitres. By 2000, about
one-quarter of Australia's surface water management areas were already classed
as highly used or overused, with 11% of the surface water management areas and
another 11% of the groundwater management units exceeding the overdeveloped
threshold. The addition of an EPBC trigger where any person wants to undertake
an action that abstracts or enables the extraction or harvesting of surface or
ground water exceeding 10, 000 megalitres will provide the Australian Government
with a more direct way of regulating the impacts that water extraction has on Australia’s
environment. For example, such a trigger would apply to large irrigated
agriculture developments, including those harvesting water from floodplains via
large scale levee banks, channels and dams, which are likely to have a
significant impact on downstream aquatic ecosystems and other users.
Water extraction is a National
issue that often transcends State borders (such as extraction from the Murray
River). Indeed, river systems provide about 73% of the water used in Australia
(~24 000 GL) with a further 21% coming from ground water aquifers. Unsustainable
water use is a major problem in Australia. So much so that, for example, reducing
the level of water over allocation in the Murray-Darling Basin will cost $500
million over five years commencing in 2004-05.
One of the continuing issues
hindering the sustainable use of Australia’s water resources is the sheer size
of the current diversion coupled with the differing legislative regimes in each
of the States and Territories. Australia has 325 surface water management
areas, based on the country's 246 river basins, and 538 groundwater management
units (hydrologically connected water systems). The river systems and catchments
within these areas are at differing stages of use and development and often
pass through differing legislative regimes along their length. For example,
irrigation corporations along the Murray, Goulburn and Murrumbidgee River
systems cumulatively extract over 5,000,000 megalitres each year, effecting the
environment across 3 State borders.
Unsustainable water use affects
all jurisdictions across Australia. In NSW for example 87% of the river length
within the State already has altered hydrologic regimes, while in Tasmania
there as been a 173% surge in surface water use in the past 20 years. In Queensland,
large scale floodplain harvester Cubbie Station on the Balonne River, has a
cumulative storage capacity exceeding several hundred thousand megalitres, and
Australia-wide bulk water licences for irrigation corporations can exceed
2,000,000 megalitres.
Water abstraction is a key
threat to many wetlands of national and international importance. The NLWRA Terrestrial
Biodiversity Assessment study of key threats to wetlands listed in the Directory
of Important Wetlands in Australia 2001 identified hydrological change as
one of the top 4 threats. Additionally, water abstraction is a key threat to a
number of Ramsar listed wetlands, such as the Macquarie Marshes and harvesting
of overland flows, especially in highly variable river systems, and reduces
connectivity between floodplain features, resulting in fragmentation of
freshwater ecosystems.
By adding an EPBC Act trigger
for unsustainable water use, at the level of abstraction over 10,000
megalitres, the Australian Government can control the environmental impacts of
large scale water projects. This will foster the Australian government’s
efforts to achieve the objects of the EPBC Act to provide for the protection of
the environment, to promote the conservation of biodiversity, and to promote
ecologically sustainable development through the conservation and ecologically
sustainable use of natural resources. It will also allow cooperative regimes
with the States, with the level of extraction proving a clear indicator of
whether the proposed water use is a matter of State or National significance.
Unrelenting and unsustainable
use of Australia’s water resources will inevitably mean that river systems,
aquifers, and caste systems will no longer be able to support their native
ecosystems, which, in some cases, exist nowhere else in the world. The
Biodiversity Convention requires the Australian Government to promote the
protection of ecosystems and natural habitats. Additionally, the Ramsar
Convention requires effective management of listed wetlands. With the continued
use of Australia’s water resource at the current level, Australia will fall far
short of its obligations in relation to freshwater ecosystems.
The Construction and
operation of Dams
New Trigger - A person
must not take an action that has, will have or is likely to have a significant
impact on the environment by the construction and or operation of any Large
Dam.
New Definition-
Large Dam means any artificial
barrier that obstructs, directs or retards natural water flow and that
- has a crest height of 15 m
or more; or
- has an impoundment capacity
of over 1 M cubic metres.
Australia is the driest
inhabited continent with annual rainfall averaging only 455 mm. The rainfall
that does occur is distributed unevenly across the continent so that river
flows are nearly 3 times more variable in Australia than the world average29.
Perhaps a consequence of this restricted rainfall is Australia’s fondness of
damming its river systems. Australia has 447 large dams with a combined
capacity of 79 000 GL of water.
This is equivalent to 158 times
the volume of Sydney Harbour. This hydrological modification occurs throughout Australia
to varying degrees and has a potentially devastating impact on the Australian
environment.
The threat to the Australian
environment is increasing with the unsustainable use of the available water
resources. Indeed, between 1983/ 84 and 1996/97, surface water use across Australia
annually increased by 69 per cent (20 300 GL)31. Making large dams an automatic
trigger for the EPBC Act will allow the Minister to create clearer guidelines
on how dams, as a MNES, will be assessed.
The recent Nathan Dam32 Federal
Court Case pointed to the difficulties in assessing large scale dam proposals.
The full Federal Court found that when assessing the dam, the Minister must
consider “all adverse impacts” of the proposal, which was found to be “not
confined to direct physical effects of the action on the matter protected by
the relevant provision of Pt 3 of Ch 2 of the EPBC Act. It includes effects
which are sufficiently close to the action to allow it to be said, without
straining the language, that they are, or would be, the consequences of the
action on the protected matter”.
Making large dam proposals an
automatic trigger for the EPBC Act where they are likely to have a significant
impact on the environment will provide a more direct method for DEH and the
Minister to assess the likely environmental impacts of such an action, reducing
proponent’s uncertainty and creating a common standard by which all large dam
projects are assessed.
As a current example, Queensland's
proposed Mary River Dam has been called in for
assessment by the Commonwealth
Minister for Environment and Heritage. The assessment process may well seek to
focus on specific issues, such as the Queensland lung fish, however the most
important factors in maintaining a functional component of freshwater
biodiversity are maintenance of water quality, provision of adequate
environmental flows and mitigation for potential threats such as cold water
pollution. If it seeks to adequately assess this large dam's impact on MNES,
the Commonwealth may well need to assess the project on the basis of its wider impact
on water.
The issues preventing the issue
of dams from being adequately dealt with in the current regime, despite the
COAG agreement, are not only the differing legislative regimes but also the
failure of some of the States to adequately enforce the existing regimes. In
NSW and Victoria there are approximately 30 large dams that breach statutory
pollution laws (NSW) or water quality protection policies (VIC) regarding water
temperature regimes. For example, from the information available it would appear
that 18 large dams owned by State Water in NSW regularly discharge water that
exceed the maximum allowable 2 degree Celsius temperature range established by
Schedule 3 of the Protection of the Environment Operations (General) Regulation
1998:
cl. 10. Any thermal waste
(being any liquid which, after being used in or in connection with any
activity, is more than 2 degrees Celsius hotter or colder than the water into
which it is discharged).
Amendments to the NSW Water
Management Act 2000 that passed in 2005 mean that if dam operators have in
place a management plan that sets out future management of cold water issues,
then they are exempt from the Protection of the Environment Operations
Regulation.
Some, but not all, have
management plans in place and mitigation efforts are often ineffective in the
short-term. Commonwealth oversight on development and implementation of cold
water mitigation may improve river health over hundreds of kilometres of water
courses in the Murray Darling basin.
Large dam projects can have a
devastating impact on fresh water ecology and biodiversity, not only by
restricting water flow but also by changing nutrient levels, thermal pollution,
sediment build up and simply by being in the way and preventing movement. Dams
also destroy the ecosystem in the inundation zone, and can effectively starve
down stream ecosystems of the water they need to survive.
The Commonwealth and States
agreed in 1994, in COAG's National Water Initiative, that
"proposals for
investment in new or refurbished water infrastructure continue to be assessed
as economically and ecologically sustainable prior to the investment occurring"
(Section 69).
By adding an EPBC trigger on the
development of large dams, the Commonwealth will play a leading role in
implementing this section of the National Water Initiative. Large Dam projects
throughout Australia should be a MNES, and be built in accordance with the
overarching principles of ecologically sustainable development. This would help
the Australian government achieve the objects of the EPBC Act, especially those
in relation to ecologically sustainable development through the conservation
and ecologically sustainable use of natural resources as well as promoting the
conservation of biodiversity.
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