Amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora - Johannesburg, 4 October 2016
This chapter reviews the amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The amendments were adopted on 4 October 2016, and were tabled in the Parliament on 15 February 2017.
This chapter will first provide an overview of CITES and its mechanisms for protecting endangered species through trade restrictions and regulations. The specific amendments and the non-binding resolutions adopted in 2016 will then be considered in detail, before presenting the Committee’s conclusions and recommendation.
CITES is a multilateral convention that regulates international trade in endangered species. The Convention lists species identified as being at risk of extinction if subject to international trade. The listings are recorded in three appendices to the Convention, according to the degree of risk.
Appendix I lists species with the highest degree of protection. These species cannot be internationally traded, except under highly specific and highly‑regulated circumstances.
Appendix II lists species that are not necessarily threatened by extinction, but require international trade to be monitored to ‘avoid overutilization’. Species listed under this appendix can be internationally traded only when accompanied by a valid permit from the exporting country. The NIA explains that an export permit can ‘only be granted if the country of export has determined that export of the species will not be detrimental to the survival of that species’. This is known as a non-detriment finding.
Species listed in Appendix III are listed unilaterally by Parties to the Convention and identify species or populations within its jurisdiction where the cooperation of other Parties ‘is needed to assist in regulating international trade and to avoid undermining the domestic regulation’.
More than 35,000 species of fauna and flora are currently protected by one of the three appendices. Australia has been a party of the Convention since 1976. Parties meet every three years to nominate species for insertion or deletion, or to move them between Appendices.
Amendments adopted at the Conference automatically come into force 90 days after the Conference, unless otherwise agreed, and except for Parties that lodge a reservation during that interval.
In Australia, the Convention is given effect by the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). For a listed species to be eligible for export from Australia, it must come from a source approved under the EPBC Act. The specimen must also have been determined to be non-detrimental to the survival of the species in the wild.
The 17th Conference of the Parties
The 17th Conference of the Parties, held from 24 September to 4 October 2016 in Johannesburg reviewed 62 listing proposals, of which 51 were adopted.
As noted above, these amendments come into effect 90 days after the conference at which listings were agreed–2 January 2017–unless otherwise agreed by the parties. Further comment is made on the entry into force of these amendments later in this chapter.
At the Conference, Australia proposed the transfer of two species of Australian endemic birds (the helmeted honeyeater and the Norfolk Island boobook owl) from Appendix I to Appendix II.
Appendix II allows international trade in these species. A trader must obtain a CITES permit from the country of export, and a CITES import permit from the Department of the Environment and Energy (the Department) when importing into Australia. Any CITES permits must be underpinned by a scientific determination that the trade will not be detrimental to the survival of the species in the wild.
Australia is not a Range State (a country in which a named species is found), for the majority of the species covered by the 51 listing proposals. This means these species do not naturally occur in Australia, nor does Australia have an industry in the international trade of the majority of these species. As such, there will be no ramifications for Australia of the listing amendments for the majority of these species.
The amendments that are relevant to Australia include 11 species, and these are examined below.
Amendments to species listings
The amendments adopted by the Parties transfers the helmeted honeyeater from Appendix I to Appendix II. Since its listing in 1975, there has been no evidence that international trade is, or may be, a threat to the survival of this species. The NIA highlights that since 1975, the species has only been exported on three occasions, all for scientific purposes.
The species therefore does not meet the criteria for inclusion in Appendix I.
Prior to the Conference of the Parties, the Department consulted state and territory governments, non-government organisations and researchers on the proposal to transfer the species from Appendix I to Appendix II. The CITES Animals Committee and the Victorian Department of Environment, Land, Water and Planning supported the proposal. No other comments were received.
Norfolk Island boobook owl
The Parties also agreed to transfer the Norfolk Island boobook owl from Appendix I to Appendix II. The NIA states that there has not been any trade in this species since its listing in 1977, and therefore there is no evidence that international trade is, or may be, a threat to the survival of the species.
The species therefore does not meet the criteria for inclusion in Appendix I.
The Department consulted state and territory governments, non‑government organisations and researchers on the proposal to transfer the species from Appendix I to Appendix II. Both the CITES Animals Committee and the Victorian Department of Environment, Land, Water and Planning supported the proposal. No other comments were received.
The Parties agreed to add this genus into Appendix II and agreed that the entry into effect will be delayed by 12 months.
The NIA states that all three species are present in Australian waters, and Australian commercial fisheries interact with thresher sharks. The estimated national harvest is very low, at around 13 000 kg per year and a small quantity (1 000kg to 2 400kg per year) of thresher shark may be currently exported with other shark product from two fisheries in New South Wales.
From January 2018, any exported specimen must be accompanied by an export permit underpinned by a non-detriment finding. A small amount of thresher shark fin may be imported for shark fin soup.
Japan lodged a reservation to the listing of thresher sharks to Appendix II.
The agreed amendments add the silky shark to Appendix II and the Parties agreed that the entry into effect will be delayed by 12 months.
The population of silky sharks has significantly declined due to over‑exploitation in fisheries. The NIA explains that the species is already protected under the EPBC Act and is not exported from Australian commercial fisheries. The listing of the silky shark in Appendix II of the Convention will therefore ‘not have any impact on Australian industry’.
Japan lodged a reservation to the listing of the silky shark to Appendix II.
The Parties agreed to add the genus of mobula rays to Appendix II and delay its entry into force by six months.
Mobula rays found in Australian waters are protected under the EPBC Act, and are not exported from Australian commercial fisheries. The inclusion in Appendix II will not have any impact on Australian industry.
The amendments add the family Nautilidae in Appendix II. The international shell trade largely drives demand for these species, which are traded as souvenirs, jewellery and home décor.
Two of these species are native to Australia, however, there is no current targeted commercial harvest of nautilus by Australian commercial fisheries. Fisheries bycatch and found beach-cast shells may occasionally be exported.
The NIA explains that although the total volume of imports, exports and re‑exports is unknown, it is likely that the majority of specimen shells and decorative shells sold in Australia have been imported.
The effect of the listing in Appendix II will require commercial or personal imports or re‑exports of nautilus specimens to apply for a permit from the Department. Exports of native nautilus must be accompanied by an export permit underpinned by a non-detriment finding. Re-exports of non-native nautilus will require an export permit.
The Parties agreed to transfer the Malaysian population of saltwater crocodiles from Appendix I to Appendix II.
Australia is a range State for saltwater crocodiles, however the Australian population is already listed in Appendix II and the listing will have no impact on Australian trade.
The agreed amendments add the genus of dalbergia (a type of rosewood) to Appendix II, with the exception of those species within the genus already listed in Appendix I. Dalbergia is used in furniture, musical instruments and other high-end timber products.
Only one species is native to Australia and that species is not commercially utilised. Other species within the genus is imported to and exported from Australia both as raw timber and in finished products.
The listing of the genus in Appendix II is also subject to an annotation that clarifies which parts and derivatives of Dalbergia will be exempt from regulation.
The NIA states that the Department’s consultations with industry stakeholders indicated that items manufactured from Dalbergia are predominantly sourced from stockpiled or reclaimed timber, and will be considered ‘pre-Convention’. The NIA explains that to continue trading in these items, a pre-Convention certificate will be required. These are issued free of charge and would only be required for re-export from Australia. Import and export of non-pre-Convention Dalbergia will generally require a permit from the Department.
However, at the public hearing, the Department advised that there is a larger volume of trade of rosewood in Australia than it originally assessed:
In particular, there is a lot of rosewood used in really high-end timber products and musical instruments, interestingly. We have been talking to some manufacturers of guitars who trade internationally, because they are sought-after products, and we have been trying to look at how we can help them to meet the requirements while placing as little burden as possible on them.
Indonesia lodged a reservation to the listing on Appendix II, and India lodged a reservation to the listing of two species within the genus (Dalbergia latifolia and Dalbergia sissoo). Indonesia advised that its reservation will only be in place until 4 July 2017.
African rosewood was first listed in Appendix III by Senegal since March 2016. At the Conference, Parties agreed to transfer this species from Appendix III to Appendix II, thereby introducing uniform requirements regardless of where the specimens are sourced.
African rosewood is used in a range of industries, particularly by musical instrument makers. To continue trading in this species, a permit issued by the Department will be required.
The Parties agreed to list the species of timber, Guibourtia tessmannii, Guibourtia pellegriniana and Guibourtia demeusei (commonly known as bubinga) in Appendix II. The listing is subject to an annotation that clarifies parts and derivatives will be exempt from regulation. The NIA does not explain which parts or derivatives will be exempt.
Bubinga is prized for its aesthetic qualities, and the high value of the timber has resulted in unsustainable exploitation for international trade. Manufactured products containing these species are imported and exported from Australia, and the raw timber is imported for use by a range of industries (particularly by musical instrument makers). To continue trading in these species, a permit from the Department will generally be required.
The agreed amendment adds the clarion angelfish species to Appendix II. Clarion angelfish are popular in the international pet trade.
It is not an Australian native species, however it is traded in the Australian aquarium industry, and there are captive bred populations in Australia.
Following its listing, imports and exports of this species may continue, provided relevant permits are obtained from the Department. To commercially export live specimens, they must be sourced from a captive breeding program approved by the Department.
The 17th Conference of the Parties also adopted and amended Resolutions for the ‘better regulation of international trade in species, and parts and derivatives of species’. The NIA explains that such resolutions are not mandatory but ‘are intended to assist interpretation and implementation of the Convention’.
The EPBC Act provides that the Minister may have regard to Resolutions in making decisions about listed specimens. Amendments to the EPBC Act or its regulations may be necessary to reflect particular resolutions where doing so would provide clarity to Australian regulation of international trade in species, or parts and derivatives of species. The NIA asserts that ‘it is highly unlikely that any such changes would significantly increase the regulatory burden on importers or exporters’.
Domestic ivory trade
The Parties adopted a non-binding amendment to a Resolution on the domestic ivory trade. The amendment recommended that all Parties and non-Parties in whose jurisdiction there is a legal domestic market for ivory that is contributing to poaching or illegal trade, take all necessary legislative, regulatory and enforcement measures to close their domestic markets for commercial trade in raw and worked ivory as a matter of urgency.
The NIA asserts that there is ‘no evidence’ suggesting that Australia is ‘significantly’ involved in the illegal ivory trade. Further, due to strong border controls, the Australian market is unlikely to be driving elephant poaching or international illegal trade.
Australia has some of the strictest laws in the world regulating the domestic ivory trade and above that required under the Convention. In Australia, elephants or derivative products may only be traded in three circumstances: live trade for zoos specimens for science or vintage ivory products existing prior to the original listing of elephants in the appendices in 1975. Other countries have not adopted this approach, and have not restricted the trade to vintage ivory.
The NIA states that ‘there is no intent to close Australia’s domestic ivory market’. However, the NIA acknowledges that the antique industry expressed ‘significant concern’ about the impact on businesses should Australia choose to support proposals to prevent trade in antique ivory species.
The international regulation of the trading and movement of endangered species of flora and fauna have presented difficulties for the international movement of musical instruments which may use derivatives of listed species protected under the CITES Appendices.
The focus of the Convention is on international trade, and contains exemptions for personal and household items. However a musician risks breaching the Convention by travelling across borders with a musical instrument that contained regulated ivory products or was made using a listed species of timber. That travelling musician may be required to present a valid permit from the country of residence as well as a non-detriment finding, upon entering a second country.
In 2016, the Conference of the Parties also adopted non-binding amendments to a Resolution on the non-commercial cross-border movement of musical instruments derived from listed species. This expands on other regional efforts to overcome this challenge, such as Europe’s musical instrument ‘passport’ system.
The NIA explains that the amendments adopted ‘are intended to facilitate cross-border movement of musical instruments, and encourage wider implementation of the Resolution among CITES Parties’.
However, Australia is unable to implement the Resolution through the existing provisions of the EPBC Act. The NIA indicates that the Department is ‘currently exploring options for amending Part 13A of the EPBC Act to enable use of musical instruments certificates and thereby better support transboundary movement of instruments’.
At the public hearing, the Department explained the problem and the intention for legislative amendment:
We have identified options for amendment of the EPBC Act that could facilitate a lot easier travel for bands and musicians with their vintage instruments. We would need an amendment to the act, though, to allow us to recognise the passport system that has been implemented in Europe. Last year we had the Edinburgh tattoo and, because we knew they were coming and there were lots of musicians, we worked closely with the Department of Immigration and Border Protection to manage their entry and exit, as a group, so that individuals did not have to get caught up in the administration. The recognition of passports for musical instruments will require an amendment to the EPBC Act.
The Department advised that it is in the process of forming advice to the Minister on the options for legislative amendments, but could not provide the Committee with a proposed timeframe for these amendments.
In an answer to question on notice, the Department advised that the amendments,
…could be dealt with specifically, in conjunction with a broader EPBC reform package, or as part of the next statutory review of the EPBC Act which is due in 2019. The approach to and timing of dealing with this issue is a matter for Government.
In advance of the 17th Conference, the Department consulted with the following groups:
state and territory governments;
the Indigenous Advisory Council;
the Office of the Threatened Species Commissioner;
relevant industry bodies;
non-government organisations; and
As stated above, the proposals to transfer the helmeted honeyeater and the Norkfolk Island boobook owl were supported by stakeholders.
On the remaining listing proposals discussed at the Conference, the Department consulted stakeholders in the relevant industries. These consultations indicated the greatest interest among Australian industry were the listings of thresher sharks and rosewoods, though the NIA states ‘relevant industries did not express significant concern about the proposals’.
Australia implements the Convention via Part 13A of the EPBC Act. As required under sub-section 303CA(1) of the EPBC Act, a list of species in the Appendices to the Convention was established in 2002. This list must be updated to include all species from time to time included in the Convention Appendices (EPBC Act s. 303CA(3) and 303CA(9)).
The instrument amending the list under s. 303CA has been registered on the Federal Register of Legislative Instruments. It is not a disallowable instrument (under s. 44 of the Legislative Instruments Act 2003).
For Australian wild harvest export fisheries, the Convention’s requirement for a non‑detriment finding is met through the assessment of fisheries for declaration as approved wildlife trade operations (s. 303FN of the EPBC Act).
Since their entry into force, the Department advised that it has been working to ensure that affected businesses are aware of the changed international requirements. The Department has introduced new streamlined administrative processes to ‘enable more efficient and faster processing of CITES permanent applications by Australian businesses’.
Entry into force
The amendments to the Appendices entered into force on 2 January 2017, prior to their presentation in the Parliament and review by this Committee.
Under CITES Article XV(1)(c), amendments to the Appendices automatically enter into force 90 days after the meeting at which they are agreed unless a party lodges a reservation. Consequently, these amendments entered into force for Australia on 2 January 2017, with the exception of the listing for mobula rays which is subject to a six month delayed entry and the listing for thresher sharks and silky sharks which are subject to a 12 month delayed entry.
At the public hearing, the Department noted its ‘regret’ that the Committee was not able to complete its review of the treaty action prior to its entry into force. The Department stated that it has contacted the CITES Secretariat to ‘highlight that these delays have hindered our ability to meet our responsibilities to the Australian Parliament’.
The Conference of the Parties occurs every three years. On previous occasions, the Committee was notified prior to the Conference of the Parties. The Department advised the Committee of the species proposed for listing or delisting under the Appendices. On this occasion the Committee was not notified by the Department.
The Department advised the Committee that the lack of notification was due to the Committee not being established during the period immediately before the Conference on 24 September 2016. The 45th Parliament commenced on 31 August 2016, and the Committee did not meet until 12 September 2016. The Department advised that it was ‘operating in something of a void’.
Canada has a similar process of parliamentary scrutiny of proposed treaty actions and faces similar challenges in the ability for its parliamentary process to be completed before the amendments enter into force. The Department noted however that, at least with respect to the amendments adopted in 2016, Canada lodged reservations for all amendments so that ‘they can work through their domestic arrangements before implementing them’.
Ministerial notification following Conference of Parties
The Minister for the Environment and Energy, the Hon Josh Frydenberg MP, wrote to the Committee on 7 November 2016 advising that most amendments to CITES would automatically enter into force on 2 January 2017, prior to the completion of the 20-day joint sitting period required for this Committee to consider treaty actions.
The Minister advised the Committee that in order to enable domestic implementation of the amendments, the relevant legislative instrument giving effect to the amendments will be lodged prior to 2 January 2017.
The NIA states that preliminary calculations indicate that the additional regulatory burden to Australian businesses due to the amendments – including permit applications and compliance costs – is estimated as $30 431 per year.
To continue international trade in these species, businesses will require the relevant permits or certificates are obtained from the Department prior to any trade occurring. Permits for the trade of species listed in Appendix II cost $65 for a single use permit, or $163 for a multiple consignment authority. Both are valid for six months. Pre-Convention certificates or export of items obtained before the listing of a species, are available free of charge and are also valid for six months.
Reasons for taking the proposed treaty action
The NIA asserts that participation in CITES advances Australia’s interests by ‘promoting Australia as a leading environmental steward’. It also states that Australia’s domestic and regional conservation and trade interests are supported by the Convention by protecting native species form detrimental trade and facilitates legitimate wildlife trade.
Further, the NIA argues that the Convention provides a ‘forum for international cooperation in order for Australia to enhance relationships with other Parties for the benefit of promoting effective regulation of international wildlife trade’.
The Committee supports the treaty action. The amendments as agreed at the Conference of the Parties appear to receive broad support within industry and the community. As the amendments have already entered into force, and are reflected in the relevant domestic regulations, it is not necessary for the Committee to make a recommendation on these amendments.
However, the Committee wishes to make comment on two matters that arose in its review. The first of these is the process for parliamentary consideration of the treaty action prior to its entry into force.
The Committee reiterates previous concerns about the timeframes for consideration of CITES amendments.. The value of the Committee is undermined when there is insufficient or no time to properly consider a treaty. It also deprives the public of an opportunity to have their say.
The Committee’s inquiries subject treaty proposals to parliamentary and public scrutiny. This gives legitimacy to the final treaties.
On previous occasions, prior to the Conference of the Parties the responsible Minister wrote and notified the Committee of the proposed amendments. The Committee is of the view that this is one way of lessening the risk associated with the automatic entry into force clause in the Agreement. On this occasion, the Committee was not notified of the proposed amendments.
The Committee acknowledges that there was a short time-frame between the Committee’s commencement and the Conference of the Parties in September 2016. However the Committee considers the Department could have made more effort to keep the Committee informed.
The Committee notes that other parliamentary democracies, including Canada, have developed legislative scrutiny mechanisms to review treaty actions prior to the entry into force. Indeed, at the 2016 Conference of the Parties, Canada lodged a reservation to all amendments in order to comply with these domestic processes prior to taking binding treaty action.
Although the Committee is cautious about wholesale reservations to treaty actions to which Australia is a party, the Committee is not satisfied with the current process for amendments to this Committee. The Committee believes it does not provide for adequate accountability.
The Committee requests the Department to notify it of future proposed amendments prior to the Conference of the Parties. If the Department is unable to do this, the Committee recommends that the Government lodge reservations to amendments adopted at future Conferences of the Parties so that the parliamentary review of such treaty actions can be conducted before Australia is legally bound.
The Committee requests the Department of Environment and Energy notify it of future proposed amendments to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and its appendices, prior to the Conference of the Parties. If the Department of Environment and Energy is unable to do this, the Committee recommends that the Government lodge reservations to amendments adopted at future Conferences of the Parties so that the parliamentary review of such treaty actions can be conducted before Australia is legally bound.
The second issue that the Committee wishes to address are the proposed amendments to the EPBC Act to allow for non‑commercial, cross‑border movement of musical instruments.
The Committee is concerned by responses from the Department indicating that there is no definitive timeframe to bring forward simple and straightforward amendments to the EPBC Act. Such amendments would allow for the efficient and regular movement of instruments into Australia by musicians as well as providing a more streamlined process for those Australian businesses that are seeking to export their products into an international market.
Though the Committee has not received evidence on any particular approach, the Committee sees benefit to adopting a ‘passport’ system as adopted and implemented within Europe since 2013. Continuing this system would further reduce the regulatory burden on travelling musicians to and from Australia as well as those Australian businesses exporting products to the international market.
The Committee therefore recommends that the Minister for the Environment introduce legislation into the Parliament that amends the EPBC Act to allow for the regular and efficient cross-border movement of musical instruments that would otherwise be regulated by CITES and the relevant Appendices, by the commencement of the Autumn sittings in 2018.
The Committee recommends that the Minister for the Environment introduce legislation into the Parliament that amends the Environmental Protection and Biodiversity Conservation Act to allow for the regular and efficient cross-border movement of musical instruments that would otherwise be regulated by the Convention on the International Trade in Endangered Species, and its associated appendices, by the commencement of the Autumn sittings in 2018.