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Additional Comments from the Australian Greens
Introduction
The Environmental Protection
and Biodiversity Conservation Act was intended to be Australia's key
environmental legislation, enacting our commitments under the Convention for
the Conservation of Biological Diversity to "achieve by 2010 a
significant reduction of the current rate of biodiversity loss"[1]as
well as other international commitments ratified by the Commonwealth –
including World Heritage, Ramsar wetlands, and migratory birds. Crucially, the
EPBC Act "...represents the only comprehensive attempt in the history of our
federation to define the environmental responsibilities of the Commonwealth".[2]
While the majority committee
report and our additional comments can and should consider the framing,
implementation and relative effectiveness of particular provisions within the
EPBC Act, the ultimate test of this legislation as a whole must be the measure
of its success in actually conserving biodiversity and protecting our
environment.
Unfortunately to date it has
not achieved this outcome. Biodiversity loss is continuing at an alarming rate
across Australia, and the rate of loss of species and ecological communities
shows no sign of slowing. As the State of the Environment report states: "...biodiversity
continues to be in serious decline in many parts of Australia".[3]
On this key measure of the broader success of the EPBC Act it is clear that it
has not delivered on its promise "to provide for the protection of the
environment".[4]
Native vegetation continues to be cleared at an alarming rate, the
interception and over-extraction of surface and groundwater is creating an
environmental and social disaster in the Murray Darling Basin and elsewhere,
invasive plants and animals continue to devastate natural systems, over-fishing
threatens the health of our oceans and the ongoing viability of our fisheries,
and climate change presents an unprecedented threat to biodiversity – yet the
EPBC Act seems apparently incapable of assisting the government or empowering
the community to act to prevent this tragic loss of diversity.
The context of the EPBC
Act
In considering the relative
success or failure of the EPBC Act, it is clear that the Act does not operate
in isolation, and its effectiveness will be limited to an extent by the nature
and adequacy of the institutional arrangements that support its implementation.
Many of the concerns and criticisms aired by witnesses to the committee inquiry
were focused on the inadequacy of the administrative arrangements and resources
that support the Act's implementation – particularly in relation to
environmental research, monitoring and assessment; compliance and enforcement;
and public participation.[5]
There is a high level of
community concern about the manner in which the structure and implementation of
the EPBC Act has effectively bureaucratised the protection of the environment
and the conservation of biodiversity – producing a moribund box-ticking
approach that fails to protect the environment or deliver a timely assessment
regime.[6]
Ultimately this results in an Act that purports to cover a comprehensive range
of conservation issues and commitments, but which in practice "...
largely divests the Commonwealth of actual responsibility for environmental
protection".[7]
When considered in these
broad terms the EPBC Act fails to enact our international conservation
commitments. It limits Commonwealth responsibility for biodiversity to listed
threatened species and communities and migratory species. It limits
Commonwealth assessment of developments and threatening processes to a narrow
focus on their direct impacts on relevant matters of national environmental
significance, rather than enabling comprehensive assessments and consideration
of cumulative impacts. It reduces the Commonwealth's commitment to protecting
World Heritage, National Heritage and Ramsar Wetlands to protecting the
identified 'values' of these places while failing to protect the places
themselves.[8]
The Australian Greens support
the general direction of the majority committee report, but believe that its
analysis of the limitations of the EPBC Act and the inadequacy of its
implementation does not go far enough in considering the manifest failure of
the EPBC Act to actually protect and conserve biodiversity and our environment
– nor do its recommendations.
The recommendations of the
majority committee report identify and address some serious shortcomings with
the EPBC Act (for instance, in relation to a greenhouse trigger; resourcing
assessment, monitoring and compliance; merits review of ministerial decisions;
and nomination and listing of threatened species). We are concerned however
that a number of the recommendations are neither strong enough nor sufficiently
targeted to solve the problems discussed in the report. In addition, we are
also concerned that there are a number of significant shortcomings of the EPBC
Act that are not addressed in the recommendations, which are listed in the last
section on this report.
The Greens also remain
concerned that many of the opportunities to be proactive on environmental
protection and biodiversity conservation offered by the EPBC Act have
failed to be realised – due to a combination of sustained chronic under-funding
and insufficient political will.
Climate Change
Climate change in particular
presents an unprecedented challenge to environmental protection and
biodiversity conservation that it would seem the Commonwealth is not
legislatively prepared to tackle. While the Rudd Government is introducing an
emissions trading framework to tackle industry carbon emissions, the proposed
framework does not include any mechanism to arrest emissions from vegetation
clearing, logging of native forests or degradation of remnant ecosystems.[9]
Perversely this system allows for the voluntary inclusion of carbon
sequestration in plantation forestry, but fails to account at all for the
significantly higher levels of green carbon sequestered in native forests and
woodlands, or the emissions resulting from the logging or clearing of these forests
or woodlands.
Any simple cost-benefit
analysis of the economics of emission abatement must clearly show that
preventing land clearing is one of the most cost-effective means of reducing
carbon emissions, and that the cost of replacing or offsetting the green carbon
sequestered in native ecosystems is such that it makes it effectively
irreplaceable over relevant timeframes. The EPBC Act, however, fails to provide
a mechanism to tackle the problem of land clearing (except where it impacts
directly on threatened species or ecological communities) and is incapable of
playing a role in contributing to the pressing issue of climate change by
protecting green carbon stores. If anything, the approach taken by the EPBC Act
implicitly assumes that clearing, logging and land degradation will continue to
take place and is acceptable provided that listed threatened species and
ecological communities are protected.
The impacts of climate change
on native ecosystems necessitate an urgent reappraisal of our approach to
biodiversity and ecosystem conservation. The threat of climactic shifts means
that landscape connectivity is critically important. This is particularly
important for highly biodiverse native remnants in a fragmented landscape, as
we see for instance in the wheat belt landscape of the biodiversity hotspot of
south-western WA. Increasing climactic variability and extreme climate events
also mean that managing for ecosystem and species resilience, diversity and
function need to be paramount. We need a new paradigm in environmental
management.
Given the high costs of
reducing carbon emissions and the irreplaceable nature of the green carbon
sequestered in native ecosystems it is clear that we need to prioritise the
protection of existing ecosystems and that developed countries such as
Australia should be looking to stop clearing, seeking to effectively conserve
their remaining native ecosystems, and looking at ways to measure and manage
green carbon. The EPBC Act is not capable of taking on this task and it is arguable
that we in fact require a paradigm shift in our approach to biodiversity
conservation to do so. While the Greens advocate the inclusion of a climate
change trigger for MNES within the existing EPBC Act and the proactive use of
its planning powers to more effectively address the threats posed by climate
change to biodiversity and native ecosystems, we also believe that ultimately a
more effective outcome would be to replace the EPBC Act with a much more
effective and robust framework.
Improving the EPBC Act
It is difficult to do justice
to the depth and range of analysis provided to the committee inquiry and also
the submissions to the Independent Review of the EPBC Act[10]
by community conservation groups and non-government organisations. These organisations
and individuals have raised a number of issues of particular concern that are
listed below. Given the short time frame available for writing these additional
comments it is not possible at this stage to discuss these problems in detail,
so we have confined ourselves to listing the issues of particular concern and
making some key recommendations to address them.
We note that this is in
effect an interim report on this inquiry, with the second part of this inquiry
with a specific focus on Regional Forest Agreements reporting on 24th
April 2009. To this end we will refrain from discussing the issues associated
with RFAs in these additional comments and also hope to address the key
concerns listed below in more detail.
The Australian Greens believe
that the volume and detail represented in this wide range of submissions
provides a good indication of the extent of community engagement and concern
with issues of biodiversity conservation and environmental protection. Many of
these groups have actively engaged in the public processes for the listing of
threatened species and ecological communities over the years, and to this end
we are both disappointed and concerned by the amendments to the EPBC Act under
the Howard Government that reduced the scope for public participation.
We are particularly concerned
by:
-
The broad ministerial discretion
allowed in the direction of and decision making within the Act.
-
Exemptions to the protections
offered under matters of national environmental significance.
-
The devolution of commonwealth
responsibility and decision-making through approved bilateral agreements with
states and territories (without a requirement of similar levels of assessment
or protection).
-
The removal of the right to
challenge ministerial decisions on their merits in 2006.
-
The 2006 changes to the Act that
undermined the listing of threatened species, threatened ecological
communities, key threatening processes and heritage places.
-
The lack of a statutory timeline
to ensure the prompt assessment and listing of threatened species, ecological
communities, key threatening processes and heritage places.
-
The lack of any requirement that
the Minister ensures lists are kept up to date.
-
The lack of consideration of
climate change, water extraction and interception, land clearing, migratory
fish and vulnerable ecological communities as matters of national environmental
significance.
-
The lack of a mechanism to
recognise cumulative impacts under MNES.
-
Failure to effectively use the
Strategic Assessments provisions under the Act to proactively undertake
bioregional planning and pre-emptively address the problem of cumulative
impacts.
-
Lack of requirement for public
consultation in regional strategic assessment processes.
-
Lack of a requirement that the
minister comply with a bioregional plan (rather than simply '...have regard
for...').
-
A lack of guidelines to ensure
where strategic assessment takes place there is no diminution of or exemption
from environmental impact assessment processes.
-
The lack of effective protection of
species and ecological communities listed as threatened under EPBC.
-
The under-resourcing of threat
abatement and recovery plans.
-
Inappropriate use and over-use of
environmental 'offsets' in MNES approval processes under EPBC (threatened
species or communities and critical habitats are not 'replaceable').
-
The focus of limited resources and
effort on assessment and approval processes.
-
Lack of utilisation and resourcing
of the EPBC provisions for:
-
The lack of threat abatement plans
for land clearing or climate change.
-
The absence of any effort to
systematically develop bioregional plans for all of Australia's IBRA
bioregions.
-
The restrictions on public
participation including the length of public consultation periods and the lack
of a legislative timeline for a response from the Minister.
-
The limitations of 'priority
assessment' on public nominations of threatened species and ecological
communities, heritage places and key threatening processes.
-
The disincentive to public
participation in EPBC Act interpretation posed by the risk of orders for
security costs and the threat of costs following a court action.
-
The need to reinstate and expand
the right to appeal the merits of key ministerial decisions.
-
The move away from mandatory
recovery planning for threatened species or communities in the 2006 amendments.
-
The need to require that recovery
plans are sufficiently resourced, implemented, monitored and enforced to ensure
that species or communities actually recover.
-
The failure to list critical
habitats on the EPBC Register of Critical Habitats despite their being
identified as critical to the survival or recovery of threatened species or
communities in recovery plans.
Recommendations
Objects
Triggers
-
Add a Greenhouse Trigger for
Matters of National Environmental Significance for major new greenhouse gas
emitting projects AND require all decision making under the EPBC Act to
explicitly consider climate change
-
Add a Water Extraction,
Interception and Use trigger for MNES for activities involving ground water and
surface water interception and/or extraction
-
Add a Broadscale Land Clearing
trigger for MNES for major new vegetation clearance proposals
-
Add a Migratory Fish trigger
for MNES for species listed under Annex 1 of the UN Convention for the Law of
the Sea
-
Add a Vulnerable Ecological
Community trigger under MNES[11]
Cumulative Impacts
-
Amend the Act to require
assessments of environmental harm take into account cumulative and indirect
impacts
-
Publish administrative
guidelines outlining how the government will take into account cumulative
impacts in referral, assessment and approval processes
Strategic Assessments
Ministerial Discretion
-
Amend the EPBC Act to limit
ministerial discretion so that approvals cannot be given to activities which cause
significant impact to threaten species or ecological communities, to National,
Commonwealth and World Heritage or Ramsar sites
-
Prevent the use of
environmental 'offsets' in relation to MNES
Planning and Proactive Use
-
Better utilise and provide greater
resources for the use of proactive measures under the EPBC Act including
recovery plans, threat abatement plans, wildlife conservation plans,
bioregional plans, conservation zoning, covenants and conservation agreements
-
Develop a threat abatement plan
for climate change
-
Develop a threat abatement plan
for vegetation clearance
-
Strengthen bioregional planning
provisions to require public consultation
-
Amend the EPBC Act to require
the Minister to comply with bioregional plans (rather than simply 'have regard
for')
Public Participation
-
Increase public consultation
periods
-
Reinstate and expand the right
to appeal the merits of key Ministerial decisions
-
Remove the threat of orders for
security for costs and for costs following court action
-
Include a statutory timeline
for response to all public nominations of threatened species and ecological
communities, heritage places and key threatening processes
Regional Forestry
Agreements
-
Repeal the exemption for RFAs
so that they are required to ensure the conservation of threatened species,
ecological communities and critical habitats
Note that issues with RFAs will be covered in more detail in the subsequent
part of this inquiry and we expect to include additional recommendations on
these issues in our subsequent report.
Senator Rachel Siewert
Australian Greens Whip
Senator
Scott Ludlam
Australian
Greens
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