Amendments to Appendices I and II to the Convention on the Conservation of Migratory Species of Wild Animals
The treaty action under consideration in this Chapter is an amendment to the Convention on the Conservation of Migratory Species of Wild Animals (1979) (the Convention).
The Convention enables the protection of wild animals that migrate through the jurisdiction of a number of countries, called ‘range states’. In order to protect these migratory species, the Convention obliges range states to apply a similar level of protection to migratory species across their range.
Mr Benjamin Cronshaw, in a submission to the inquiry, described the Convention’s purpose in the following terms:
Conservation and protection of animal species is important. Species protection is not simply about the individual animal, but about upholding a complex and interconnected ecosystem. The loss of one animal could have ramifications for other species, which underlines the importance of species protection. Migratory species may contribute to multiple ecosystems, while also being exposed to greater threats during their travel. Moreover, the nature of migratory species travelling jurisdictions can cause confusion about which country has responsibility for their protection, or how to do so. Thus, there is a need for the international community to cooperate and work together on migratory species protection…
The Convention consists of a main text dealing with the administration of the Convention and the obligations of range states, and two appendices listing species to which the Convention applies. Appendix I lists endangered migratory species and Appendix II lists migratory species that have an unfavourable conservation status.
According to the National Interest Analysis (NIA), countries with range states for Appendix I listed species:
…shall endeavour to conserve the species and its habitat; prevent, remove, compensate for or minimise, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent migration and, to the extent feasible and appropriate, prevent, reduce or control factors that endanger or are likely to further endanger the species…
In relation to Appendix II listed species, range states:
…shall endeavour to conclude agreements where these should benefit the species and give priority to those species having an unfavourable conservation status…
Listings in the appendices are regularly reviewed at Conferences of the Parties, called ‘CoPs’, so that the listings can be adjusted to reflect the status of migratory species.
The amendments under consideration here are the result of the 13th CoP, which took place in India in February 2020. The amendments are deemed amendments, and came into effect on 22 May 2020. Consideration of these amendments by the Committee has been delayed because parliamentary sitting patterns have been disrupted by the COVID-19 pandemic.
Australia is a range state for four of the ten species added to the appendices at the February meeting: the Antipodean Albatross; the Oceanic White-tip Shark; the Smooth Hammerhead Shark; and the Tope Shark (called the School Shark in Australia).
The Antipodean Albatross and the Oceanic White-tip Shark have been listed in Appendix I, and the Smooth Hammerhead Shark and the School Shark have been listed in Appendix II.
The Antipodean Albatross and the Oceanic White-tip Shark are already protected to the extent required under Appendix I of the Convention in Australia. Consequently, under Australian law, it is already an offence to kill, injure, take, keep or move these species.
The Australia Government opposed the listing of the Smooth Hammerhead Shark and the School Shark in Appendix II. According to Mr Geoff Richardson, Assistant Secretary, Protected Species and Communities Branch, Department of Agriculture, Water and the Environment:
… The basis for our opposition to those nominations was that we did not believe … that the species [were] … eligible for listing as migratory, in either appendices, in fact. The basis for that was around the definition of ‘migratory’ that the convention on migratory species includes. In order to be eligible for inclusion on either appendix, a species must have the entire population or any geographically separate part of the population or have a significant proportion of members cyclically and predictably crossing one or more national jurisdictional boundaries.
The Australian Government based its opposition on a number of recent studies using genetic analysis which indicated that, while individual sharks may migrate between one fishery and another, there was little evidence that the species as a whole were migratory. The Committee notes that the studies discussed during the hearing applied only to the school shark.
The management of fisheries in Australia is a complex administrative matrix involving State, Territory and Commonwealth jurisdictions, and a variety of stakeholders, including commercial fishing, recreational fishing, and environmental protection groups.
In relation to jurisdiction, States and the Northern Territory maintain jurisdiction over coastal waters out to three nautical miles from the coast. Beyond that, to Australia’s maritime boundaries at 200 nautical miles from the coast, the Commonwealth has jurisdiction.
Management of fisheries in Australian waters has developed in an organic way, based on specific fisheries. Managing fisheries protection in Australia is consequently subject to a number of cooperative arrangements between the Commonwealth, and the States and the Northern Territory. In general, these cooperative arrangements involve the Commonwealth managing commercial fishing and the States and the Northern Territory managing recreational fishing. The Australian Fisheries Management Authority identifies 21 fisheries, each with its own specific cooperative arrangement.
In relation to how Australia’s commitments under the Convention are applied to fisheries, Mr Richardson advised that:
We do consultation leading up to those meetings and following those meetings with our jurisdictional colleagues who are responsible for managing state licensed fisheries, if you like, that might take these species, either targeted or as bycatch…
Inconsistency between the Convention and the EPBC Act
Australia lodged a reservation for the two species newly listed in Appendix II for which it is a range state. This has been a feature of Australia’s implementation of the Convention, and is a result of an inconsistency between the obligations of the Convention and the relevant Commonwealth legislation, the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).
The relevant section of the EPBC Act, section 209, applies the protections required in relation to an Appendix I listing under the Convention to all listings under the Convention. According to Mr Richardson:
Once listed on Appendix II, parties are only obliged to endeavour to conclude agreements where these would benefit the species. Parties to the convention are not required to prohibit the take of Appendix II species, but under the Environment Protection and Biodiversity Conservation Act there’s a domestic requirement that species listed in either appendix must be added to the list of migratory species, which then enlivens a prohibition on killing, injuring, taking or moving that listed migratory species in Commonwealth waters.
In other words, the EPBC Act imposes the more stringent protections for migratory species relevant to Appendix I listed species to Appendix II listed species. The inconsistency between the EPBC Act and the Convention was included in the Act when it was first made, in 1999.
In 2015, the Committee noted that
… the reservations have been made because the migratory species concerned are regularly caught by recreational fishers. If the reservations had not been made, those fishers would break the law every time they caught a member of the species…
…The Committee appreciates that the reservations have been sought because of what [is described as] an ‘anomaly’ in Australian law. However, the Committee notes the potential for lodging reservations in these circumstances to be misinterpreted as diminishing the level of protection afforded to the migratory species in question.
To date, Australia has lodged reservations in relation to ten species listed in Appendix II.
The EPBC Act is currently subject to an independent review, with an Interim Report released on 20 July 2020. The Interim Report includes the following statement:
The EPBC Act should be amended to clearly delineate between different international obligations arising from Appendix I and II of the Convention on the Conservation of Migratory Species listings. This would allow Australia to meet its international obligations under the … Convention and continue to manage and protect migratory species domestically. To do this, Part 13 of the Act could be modified to allow the take of Appendix II listed species subject to all relevant management arrangements demonstrating that the take would not be detrimental to the survival of the species.
While the Australian Government lodges reservations in relation to Appendix II listed migratory species, it still applies the relevant protections domestically.
Specifically in relation to the Smooth Hammerhead Shark and the School Shark, Australia is a Party to the Memorandum of Understanding on the Conservation of Migratory Sharks (the MoU). The MoU is a non-binding agreement concluded under the Convention for the management of Appendix II listed species, and already applies to the Smooth Hammerhead Shark. The School Shark is expected to be added to the MoU as a result of its listing in Appendix II of the Convention.
In relation to the management of Smooth Hammerhead Shark numbers, the listing of the similar Scalloped Hammerhead Shark in in Appendix II of the Convention in 2014 means that management arrangements are already in place and enforced for:
…all of the [Australian] jurisdictions that take hammerhead sharks.
In practice, this means that the national take of the Smooth Hammerhead is already limited to 70 tonnes across all Australian jurisdictions per year.
The Smooth Hammerhead is commercially fished in Western Australian, New South Wales and Commonwealth managed fisheries. The population varies by fishery location. The shark has been in substantial decline in the NSW fishery, but numbers remain stable in the WA fishery.
The School Shark is subject to a Commonwealth rebuilding strategy developed in 2015 to increase the stock to 20 per cent of its initial unfished biomass within three generations. Consequently, the species is heavily managed in Australian waters, including up to date stock assessments, prohibitions on fishing in breeding areas, and strict by-catch limits.
School Sharks are very long lived (up to 60 years) and are slow to reproduce, with reproduction occurring once every three years. As the rebuilding strategy only came into effect in 2015, not enough time has elapsed for there to be a sustained recovery to date.
Recreational fishers can still catch both species of shark.
According to the NIA, the proposed amendments to the Convention are not expected to impose any additional costs on Australia.
From the Committee’s perspective, the long standing matter of concern remains the inconsistency between the EPBC Act and the Convention. The inconsistency means Australia continues to lodge reservations in relation to Appendix II listings.
While the Australian Government has acted to ensure that the measures required of range states in relation to Appendix II listed species are in place for those species for which Australia has made a reservation, over the long term such reservations may damage Australia’s standing on conservation matters in the international community. The inconsistency has been apparent for some time. The inconsistency was discussed in detail in the Committee’s Report 149, tabled in 2015, and was identified as a problem requiring rectification in a 2009 review of the EPBC Act.
The Committee notes that the Interim Report of the independent review of the EPBC Act has been released, and has identified that the EPBC Act should be amended to ensure the Act is consistent with Australia’s Convention obligations.
The Committee also notes the inconsistency between the levels of protection afforded under EPBC Act and the Convention on the Conservation of Migratory Species, which means Australia continues to lodge reservations in relation to Appendix II listings. The Committee recommends the Government pursue amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), as part of its broader review, to resolve this inconsistency.
Because the amendment to the Convention is a deemed amendment and is already in force, the Committee does not need to make a recommendation in relation to ratification.