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Farming and Commonwealth Environmental Law
James Prest
Law and Bills Digest Group
19 February 2002
A fundamental revision of Commonwealth environmental
law was recently achieved by the Environment Protection and Biodiversity
Conservation Act 1999 (EPBCA). This extensive Act replaces five previous
environmental laws. It commenced in July 2000.
The EPBCA provides scope for improved environmental protection,
by providing the Commonwealth government with more direct means for involvement
in environmental matters, as opposed to the previous system of ad hoc
and indirect 'triggers'. It provides for a clearer delineation of Commonwealth
and State roles and responsibilities for the environment. Critics of the
EPBCA argued that it reduced protection for World Heritage properties
and forests, and allowed abandonment of responsibility to States under
bilateral agreements. Nevertheless the EPBCA has potentially wide
ranging application. One area includes activities on privately owned land-farming,
irrigation, and land development.
Land Clearing Controls
Land clearing has long been a matter of considerable political controversy
in Australia. Primary producer interests often resent the intrusion of
regulatory controls over private land. Meanwhile, environmental groups
point to the impacts of native vegetation clearing in terms of biodiversity
decline, salinity, water quality and greenhouse gas emissions.
Land clearing is a matter of considerable environmental importance. In
1996, the State of the Environment report produced for the Commonwealth
concluded that habitat destruction was the major cause of biodiversity
decline in Australia.(1)
Some attempt has been made to restrict vegetation clearing in the States
under partnership agreements made with the Commonwealth in return for
Natural Heritage Trust monies. These agreements required that there be
'no net loss' of native vegetation. However late in 1999 CSIRO research
concluded that the ratio of vegetation clearing to planting stood at 30:1.(2)
Land clearing rates remain particularly high in Queensland, especially
on freehold land. The Queensland Government has been reluctant to apply
controls under the A recent aspect of the land clearing debate has been
the dispute between the Commonwealth and Queensland over the commencement
of clearing controls in that State. Queensland's Vegetation Management
Act 1999 to so-called was amended to remove protection for 'of concern'
ecological communities in the absence of a Commonwealth contribution to
a 'compensation' fund to landholders potentially affected, and a demand
was made for the provision of $103m. in Federal assistance. This is in
spite of other states applying similar controls in previous years without
Commonwealth financial assistance.
Matters of Significance
The EPBCA applies wherever 'an action' (a project, development, undertaking
or activity) has, or is likely to have a significant impact on a 'matter
of national environmental significance' (MNES). At present seven such
matters are specified in the Act. The most important to primary producers
are listed threatened species and ecological communities and World Heritage
properties.
The Commonwealth has not added land clearance as MNES. However, in April
2001, it listed land clearance as a 'key threatening process'(3)
This decision meant that instead of providing a direct route for regulation
of clearing, all that was immediately required was a decision as to whether
to produce a 'threat abatement plan' (TAP). Upon advice from the Threatened
Species Scientific Committee, the Minister decided not to produce a TAP.
Ecological Communities
However the main aspect of the EPBCA at present with the capacity to
affect primary producers is the listing of endangered ecological communities.
So far, a total of 27 endangered ecological communities have been listed
as MNES under the EPBCA.
Of particular relevance to farmers is the fact that in April 2001, four
ecological communities located in NSW and Queensland covering over one
million hectares were listed. Among these, the Commonwealth listed the
Bluegrass Dominant Grasslands of the Brigalow Belt Bioregions as
an endangered ecological community. This Queensland vegetation community
was eligible because over 90 per cent of its original extent has been
destroyed or severely degraded. The key point is that 'actions' such as
clearing-where these have a significant impact on the Bluegrass or other
listed ecological communities-will require both assessment and approval
from the Environment Minister.
Existing Land Uses
However, an 'action' such as clearing does not require approval if it
is covered by one of the exemptions contained in the Act, such as for
'existing uses'. This refers to a lawful continuation of a use of land
that was occurring prior to the Act commencing in July 2000. The exemption
however does not permit an enlargement, expansion or intensification of
a land use.(4) Nor does a contemplated or intended future use
of land amount to an existing use.(5)
On this basis, for example it appears that grazing on a property may
continue without assessment. However if it is expanded by vegetation clearing,
intensified by pasture improvement, or altered by ploughing for conversion
to cropping, these actions would be unlikely to be exempt.
Assessment Thresholds
If the 'existing use' exemption is not available, it is necessary to
ask if the action is subject to approval requirements. These apply if
the action is 'likely to have a significant impact on a listed threatened
ecological community'. Which actions will have such an impact?
Administrative guidelines published in July 2000 state that a 'significant
impact' on an endangered ecological community is likely if the action
will reduce its extent, or fragment an occurrence of the community, or
adversely affect habitat critical to the survival of the community. In
relation to the Bluegrass ecological community, Environment Australia
has advised (in a supplement to the guidelines) that the clearing of less
than 20 hectares or less than 5 per cent of the patch (whichever is the
smaller) will, in its opinion, not be significant.
Triggering the Act
The EPBCA comes into operation when a proposed 'action' (e.g. clearing)
is 'referred' to the Commonwealth Environment Minister for a decision
as to whether approval is required. Without referral the approval process
of the Act will not come into play. A referral can be made by the land
owner, a State or Territory Parliament or a Commonwealth agency. The Minister
may also request that a matter be referred.
If a landowner fails to refer an action which on an objective basis should
have been referred, the landowner is running the risk of prosecution for
breach of the legislation. It is an offence to take an action that is
likely to have a significant impact on a listed threatened ecological
community where a person 'is reckless as to that fact'. The maximum penalty
for the offence is $5.5 million (corporations) or $550 000 (individuals).
To date there have been nine oreferrals of land clearing proposals for
assessment (but only one which involved agricultural clearing), and no
prosecutions for breaches of the EPBCA.
However, there is scope for 'third party' civil enforcement where the
Commonwealth is reluctant to enforce the Act. This scope was demonstrated
by the Federal Court's decision in Booth v Bosworth, involving
an application by a conservationist for an injunction under the EPBCA
to restrain culling of flying foxes by a lychee grower in North Queensland.(6)
Property Rights
The National Farmer's Federation (NFF) has been critical of aspects of
the EPBCA. It recently stated its belief that 'the biggest threat to the
economic fundamentals of Australia's agricultural sector is the increasing
encroachment of federal and state environmental legislation and regulation
on farm management'.(7) In reply, the Australian Conservation
Foundation has called for the introduction of land clearing as a MNES
but also called for 'incentives and structural adjustment payments to
help landholders adopt more sustainable land management'.(8)
At the heart of the controversy over land clearing is the question of
the scope of private property rights. It has never been the case that
the law 'normally' permits private landholders to deal with their property
as they wish, unfettered by any controls. Laws applicable to private property
include planning laws, particularly subdivision and zoning controls (e.g.
on intensive feedlot farming), agvet chemical regulation, pollution law,
etc. Even the common law restricts the capacity of land owners to deal
with their property as they wish, e.g. through the law of nuisance and
riparian rights.
Another aspect is the difficulty in identifying the dividing line between
actions which are the social obligations of all land-holders, and those
actions which involve 'going beyond the call of duty'-ie. actions which
provide a public benefit, the cost of which is borne by the land holder.(9)
The difficulty in defining this point-a matter which depends on value
judgements and scientific uncertainty-will ensure the continuation of
controversy when governments seek to regulate activities on privately
held land.
- Commonwealth State of the Environment Report (1996).
- CSIRO (1999) Mid Term Review of the NHT Bushcare Program, Ch.4.
- EPBCA, s. 188 (3).
- EPBCA, s. 523(2).
- Parramatta City Council v. Brickworks Ltd (1972) 128 CLR 1
at 21-2.
- Booth v Bosworth, [2000] FCA 1878; [2001]FCA 1453, 17 October 2001.
- NFF, Media Release, 3.10.01.
- ACF, Media Release, 1.7.01.
- Bates, G (2001), A Duty of Care for the Protection of Biodiversity
on Land, Consultancy Report for Productivity Commission.
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