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Additional comments by the Australian Greens
ECITA report on the committee inquiry into the Environment & Heritage Legislation Amendment Bill
(No. 1) 2006
This bill is a catalogue of
measures to delegate, displace and otherwise evade the Commonwealth Government’s
responsibilities for matters of environmental significance.
The bill seems designed to
absolve the Commonwealth from its responsibilities at the same time as
investing even more discretionary powers in the hands of the Minister. This is
particularly evident in the changes relating to bilateral agreements,
bioregional plans, Regional Forest Agreements and conservation agreements.
The recent high court
decision outlining the broad powers of the Commonwealth in relation to
corporations should make it easier for the Government to regulate in the
interests of the national environmental matters covered under the Act. Instead
there is an increased devolution of responsibility back to the States and
Territories.
The bill is clearly intended
to tip the balance further in favour of project developers, as acknowledged in
the Explanatory Memorandum. The intention of this legislation should be to
protect our national environment, not to fast-track and smooth the way for
environmentally destructive activities.
As the depth of environmental
crisis in Australia is becoming more evident the Commonwealth Government
should be seeking to strengthen its environmental protection and biodiversity
conservation legislation, not weakening it.
Matters of National
Environmental Significance
Australian Greens Senators support the inclusion of climate
change as a matter of national significance that should be included as a
trigger under the Act. We are particularly concerned that the existing EPBC Act
fails to take account of the impacts of climate change on Australia's
environmental protection and biodiversity conservation. It is an indictment on
the failure of the Commonwealth Government to engage with the likely
implications of climate change that in 2006 they are introducing amendments to
the EPBC Act that still do not address this issue. While changes to the EPBC
Act alone would not be sufficient to address the wide-ranging implications of
climate change for the nation, Australian Greens Senators regard the introduction of this bill
as another missed opportunity to tackle this issue of national importance.
In addition to climate
change, we propose a number of items which clearly represent matters of
national environmental significance and should be brought within the ambit of
the Act. Given the increasingly serious impacts of climate change on water
resources and the renewed emphasis on the importance of terrestrial ecosystems
as carbon sinks, it is essential that at least the following additional Matters
of National Environmental Significance be added:
- Broadscale land clearing
- Construction of large dams
- Large-scale surface or ground
water extraction or diversion
The absence of such triggers
is an acknowledgement by the Government that it does not consider these issues
to be of national environmental significance, which is hardly a credible
position.
Noting that in recent weeks
the Commonwealth Government has indicated a change in policy and expressed a
desire to begin to engage in International agreements on climate change which
will involve some of these very issues, it would be prudent to delay the
passage of this bill to allow an examination of possible changes to the bill in
light of these new international commitments.
The current requirement under
s.28A of the Act is for the Minister to review the need for new triggers every
five years and to publish a report on the findings. We object to the proposal
to remove this provision, and argue that the passage of the bill should be
delayed until the Minister has tabled the findings of the current review.
Bioregional plans
(Schedule 1, Items 122 and 352)
While in principle the
concept of bioregional planing is worthy of further investigation, in practice
the drafting of these items within this bill opens substantial loopholes and
introduces highly discretionary powers for the Minister to exempt actions if
they are carried out in accordance with bioregional plans.
“There
is the potential for this process to be used as a way of avoiding proper
scrutiny and assessment.... there is a risk they will be used to reduce the
opportunities for public consultation and oversight.” (submission 60; The
Australia Institute)
'Nuclear actions' in
particular may be entirely exempt from assessment under the terms of these
items, for which no explanation is given in the explanatory memorandum.
In his statement to the
Committee, the Australia Institute’s Deputy
Director Andrew Macintosh was very clear about the potential for nuclear
installations to escape public scrutiny:
Mr Macintosh —Yes. As you said, you could prepare a bioregional
plan that exempts a nuclear waste dump, for example, from the operation of part
3. That is the relevant provisions that concern nuclear actions; I think it is
section 22. As a result, once the bioregional plan has been prepared then that
action is exempt and you do not have to go through a public process. The
interesting thing is that in preparing the bioregional plan there is only
guaranteed public consultation in relation to plans prepared in Commonwealth areas,
not in relation to bioregional plans prepared in states.
Senator
SIEWERT —So let me get this right. If it is not in a
Commonwealth area, a state could prepare a bioregional plan saying, ‘It is okay
to have a nuclear waste dump or uranium mining,’ and therefore, because it is
not part of the exemption, it would not need to be assessed.
Mr Macintosh —Yes, that is right. If they prepare a bioregional
plan that said that in a state, yes, that would not have to be assessed under
parts 7, 8 and 9, and also the public would not be guaranteed of having any
consultation on the preparation of the bioregional plan.
We do not support the
Government’s approach to bioregional plans and strongly recommend against the
adoption of these items.
Bilateral agreements and
evasion of Commonwealth responsibility
Many of these amendments appear designed to compensate for resource shortages
within DEH by scaling back important functions within the Department and
evading Commonwealth responsibility for environmental protection.
The main mechanism for
divesting responsibility away from the Commonwealth Environment Minister is
through assessment and approval bilaterals and exemptions such as those seen in
Regional Forest Agreements.
“The
amendments overall reinforce the doughnut-like propensities of the EPBC Act.
The centre, where the Commonwealth is directly responsible for environmental
impact assessment and matters of national environmental significance, is
hollowed out by creating multiple routes for the Minister to divest his
obligations. These routes or processes, modelled on Regional Forest Agreements,
enable classes of actions to be exempted from Commonwealth environmental impact
assessment. The states and territories will become the dominant environmental
decision-makers. The experience of RFAs shows the agreements themselves are
environmentally inadequate and the capacity of the Commonwealth to monitor or
enforce them is weak to non-existent.” (Submission 18; Margaret Blakers)
We therefore support the
removal of the ability to delegate approval powers to States and other
Commonwealth agencies. This will require the Government to provide commensurate
resources to DEH and Minister’s office so that these responsibilities can be
properly discharged.
Furthermore, Australian
Greens Senators believe that Assessment bilaterals should be subject to
Parliamentary scrutiny and disallowance.
Regional Forest
Agreement regions (Item 189)
Sections
38 – 42 of the current Act exempt forestry operations conducted in accordance with
Regional Forest Agreements. We do not support the broad-scale exemption of
forestry operations from proper assessment by the Commonwealth.
“It makes little sense to
establish a uniform national system of environmental protection, but then to
render it inapplicable to the very projects and activities that are likely to
be most contentious and most in need of a public, national approach.
Unfortunately, that is exactly what has happened in some instances. The most
sweeping example is found in sections 38-42 of the EPBC Act, which exempt
forestry operations conducted in accordance with Regional Forest Agreements.
(submission 27; the Australian Conservation Foundation.)
The Australian Network of Environmental Defenders
Offices (ANEDO) note that item 189 has the effect of prohibiting the Minister
from considering adverse impacts of a forestry operation if it is within an RFA
region. That the Government considers it necessary to specifically exclude the
Minister from taking actual environmental damage into consideration simply
because of the existence of an administrative boundary shows how far this
legislation has strayed from a science-based approach.
The Australian Network of Environmental Defenders
Offices notes:
“The limits on Ministerial consideration is
unwarranted. It is artificial in the extreme to excise certain potential real
impacts of a proposal because of an artificial (policy-derived) exemption
(submission 17)
Definition of conservation
dependent species (Schedule 1, Item 353)
This item within
the bill will enable commercial fish species to be listed as 'conservation
dependent' thus ensuring that commercial fishing can continue despite the
species being under threat. This is designed so that species that are
threatened can escape mandatory protections such as export restrictions. To
date, only one commercial fish species has ever been listed under EPBC (the
Orange Roughy), despite several reaching critical thresholds (for example
southern bluefin tuna; dogfish; some shark species). Instead of strengthening
the law, this amendment weakens it.
As a result, a
flawed process for protecting commercial fish species has been further
weakened.
“This process undermines the operation of
the environment protection provisions in the legislation, as well as the
scientific integrity of the list of threatened species. It places the
short-term interests of the fishing industry ahead of the conservation of
biodiversity” (submission 60; The Australia Institute).
The marine environment is clearly an area where national
leadership is called for. Instead, the EPBC Act has perpetuated a complex
administrative arrangement which has hampered true bioregional marine planning
and done nothing to prevent the collapse of commercially important fish
species.
Conclusion
These amendments are being rushed through without adequate
community consultation, before the Australian
National Audit Office has finalised its assessment of the implementation of the
Act, before the public reporting on the triggers of matters of environmental
significance (as is required under the Act) has taken place, and before the
2006 State of the Environment report has been released. These matters together
raise serious questions as to why these changes are being pushed through with
such undue haste, when pertinent information is close to hand. These amendments
are not supported by the community, they do not deliver better environmental
outcomes, and in fact function to further set back environmental protection at
a time when it is crucially needed.
This Bill should be withdrawn.
Senator Rachel Siewert
Australian Greens Senator
for Western Australia
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