Chapter Six
PROTECTING THE ENVIRONMENT
Current Legislation
6.1 The current legislative regime under the Environment Protection
(Impact of Proposals) Act 1974 (EPIP Act) leads to an ineffective
and erratic Commonwealth role in environmental impact assessment, which
is based on whether a proposal involves a Commonwealth action or decision,
such as an approval for Commonwealth funding, an export licence or foreign
investment. This results in an anomalous situation where, on the one hand,
the Commonwealth is required to undertake assessments for proposals that
raise matters of only local or State significance, and on the other hand
is locked out of assessing proposals which raise matters of national environmental
significance, because a Commonwealth action is not involved.
6.2 Another difficulty with the current ad hoc triggers
is that the basis for those triggers is gradually being eroded. For example,
export controls over a range of mineral ores, which once provided the
basis for environmental assessment of export-oriented mining proposals,
were removed in 1996. Privatisation of Commonwealth entities is also reducing
the basis for triggering Commonwealth environmental assessments. [1]
6.3 One witness raised concerns about the implications of privatisation
and the sale of Commonwealth property for the operation of the Australian
Heritage Commission Act 1975, which is also triggered by Commonwealth
actions or decisions:
It is a very grey area at the moment; we are in a state of flux where
that is happening across the board with Commonwealth agencies. Another
good example of that is when Commonwealth property is sold; we have a
great concern about Defence properties in the whole of southern Australia.
Once that has passed out of Commonwealth hands, the sorts of controls,
if any, that will be over those properties are very unclear. [2]
6.4 In fact, the implications are clear: both the Australian Heritage
Commission Act and the EPIP Act cease to apply to the decisions of privatised
entities and they only apply to Commonwealth actions which affect
non-Commonwealth property. This only highlights the need for new triggers
which are directly related to the environment.
Overhaul of Environmental Assessment and Approval Process
6.5 The Government's intention is to address the above deficiencies by
establishing clear and consistent `triggers' for environmental assessments
and approvals, which focus the Commonwealth's involvement on matters of
national environmental significance. The COAG Agreement, endorsed in principle
by the Commonwealth, States and Territories, identified these triggers:
World Heritage properties, Ramsar wetlands, nationally endangered or vulnerable
species, migratory species and cetaceans, nuclear actions, the Commonwealth
marine environment, and places of national heritage significance. [3]
6.6 The Bill addresses the first six of the above matters. The seventh
matter, places of national heritage significance, has not been established
as a trigger, pending the development of a National Heritage Places Strategy.
[4]
6.7 The COAG Agreement identifies an additional twenty three matters
of national environmental significance, in which the Commonwealth has
either a legislative responsibility or a program interest. [5]
These matters have not been identified as triggers for Commonwealth environmental
assessments and approvals.
6.8 Mr Roger Beale, Secretary of the Department of the Environment and
Heritage, summarised the key reforms to the environmental assessment and
approval process:
The Bill improves the current regime for assessments and approvals in
a number of important ways. These include:
Firstly, direct environmental triggers which will replace the current
ad hoc triggers. The triggers are based on whether there
is likely to be a significant impact on any of the six matters of national
environmental significance. Actions by the Commonwealth or on Commonwealth
land can also trigger the Bill. It will no longer be possible for projects
with national environmental significance to escape Commonwealth assessment
or approval, nor will the Commonwealth be dragged into matters that are
of only local or State significance.
Secondly, Commonwealth assessment and approval will be triggered early,
avoiding late intervention by the Commonwealth.
Thirdly, the Environment Minister decides whether to approve the taking
of an action which may have a significant effect on the environment. Under
the current regime the Environment Minister merely provides advice to
an action minister and it is up to the action minister to decide whether
or not to trigger the processes that lead to the Environment Minister
being able to give that advice.
Fourthly, the Environment Minister must take the principles of ecologically
sustainable development into account when making decisions.
Fifth, duplication between the Commonwealth and the States can be reduced
through bilateral agreements.
Sixth, strategic assessment can be used to assess the likely overall
impact of a policy, plan or program. This will allow early assessment
of the cumulative impacts of individual actions taken under the policy,
plan or program. It also makes a more streamlined assessment of individual
actions possible. [6]
Scope of `National Environmental Significance' Triggers
6.9 The scope of the triggers proposed in the Bill was a key concern
raised in evidence. Divergent views were presented to the Committee on
this matter.
6.10 One major industry group, the National Farmers' Federation, accepted
the six triggers identified in the Bill. [7]
However, most industry and business groups argued that certain triggers
were too broadly defined:
While the Bill purports to limit Commonwealth involvement to the six
matters of national environmental significance, a number of these are
sufficiently general in definition to increase radically the reach of
the Commonwealth in environmental processes. [8]
6.11 These concerns focussed on details relating to the definition and
operation of specific triggers, rather than the issue of whether the triggers
were matters of national environmental significance that could be dealt
with appropriately through an environmental assessment and approval process.
Specific concerns about the individual triggers are discussed later in
this chapter.
6.12 Conservation groups generally supported the six triggers in the
Bill and their application throughout the Australian jurisdiction. For
example, the Humane Society International submitted that:
HSI is pleased that threatened species and communities, migratory species,
RAMSAR wetlands and Commonwealth marine areas, are matters of National
Environmental Significance (NES) and that actions affecting them will
be subject to Commonwealth environmental impact assessment, even when
they occur in State or Territory jurisdiction. [9]
6.13 However, conservation groups and individuals maintained that the
list of triggers was too narrow. One view expressed to the Committee was
that the Bill should cover all of the thirty matters of national environmental
significance listed in the COAG Agreement and that `there has been a selective
exercise going on within the Commonwealth jurisdiction as to which things
it is going to deal with'. [10] Other witnesses
considered that, while all of the matters of national environmental significance
listed in the COAG Agreement should be included as triggers, some of these
had greater priority than others:
There are some that have a greater priority than others. The ones that
I identified are the ones that we believe would be a minimum. I think
they included greenhouse, land clearing, land degradation, genetic manipulation,
forestry operations and water allocation. [11]
6.14 The control of feral animals and weeds was also frequently mentioned
as a broad-scale issue that should be included as a trigger. [12]
6.15 Several advocates for a greenhouse trigger acknowledged that it
would be impractical to require assessment and approval of all activities
which involved greenhouse gas emissions. Rather, witnesses suggested that
the Bill could focus on `large projects and other significant sources
of greenhouse pollution'. [13] One suggested
approach was to set a qualitative threshold which would give the Commonwealth
reasonable discretion in deciding which proposals involve `major' or `significant'
emissions. [14] Another suggested approach
was to set `a threshold level of emissions per annum', although that was
seen to be a crude approach, as `often the proposals which are going to
have a significant impact will be cumulative or will be the result of
many smaller decisions that are made'. [15]
A third suggested approach involved strategic assessment:
\DB\PGN\87where the Commonwealth, in conjunction with the States, establishes
ceilings for greenhouse emission. The detail of how those ceilings are
achieved is left to the States. …we are talking about involvement
by the Commonwealth in setting the overall targets to be achieved and
leaving the States to achieve those targets in whichever way they wish
to. [16]
6.16 The World Wide Fund for Nature Australia suggested that a threshold
could also be set for native vegetation clearing, above which proposals
would require approval. The Committee was told that `it is the only way
the coalition will reach its policy goal of no net loss of native vegetation
by the year 2001'. [17]
6.17 Mr Beale pointed out that the Bill should be seen in the context
of the broader range of Commonwealth legislation and programs:
This Bill is not the only Commonwealth Government response to environmental
problems. Many important issues are being addressed by programs such as
the Natural Heritage Trust or the Commonwealth's greenhouse package. Other
Commonwealth legislation addresses such matters as ozone depletion, hazardous
waste and wildlife trade. This legislation focuses specifically on those
matters where a Commonwealth regulatory project approval process is required.
[18]
6.18 However, some witnesses argued that programs alone were not producing
the required outcomes and required legislative backing:
If you take the Greenhouse Office, that is a good start but, although
it is very good on carrot, it has no stick. The issues are so serious
and so important, and it is so important for Federal Government to take
leadership on them, that it is not a time to restrict the matters which
can trigger Commonwealth assessment and approval. You have listed a number
of measures and a number of groups, but we are not having the results
that we need. [19]
and in relation to vegetation clearing:
It is simply our view that measures currently employed by both State
and Federal governments are not working. They are not mitigating the major
threat of clearance of vegetation. Therefore you need to look for new
tools and this will include NES and therefore Commonwealth Government
responsibility. [20]
6.19 The Committee believes that the proposal to reflect all 30 matters
of national environmental significance in the Bill is based on a misunderstanding
of the purpose of the Bill and the COAG Agreement. The Bill is not intended
to be an all-encompassing piece of legislation which addresses all matters
of national environmental significance. It is clear that the Bill focuses
specifically on those matters where a Commonwealth environmental assessment
and approval process is required and on the Commonwealth's legislative
responsibilities relating to biodiversity conservation. The Committee
therefore rejects the claim that the Bill selectively addresses matters
of national environmental significance listed in the COAG Agreement.
6.20 The Committee notes that many of the remaining twenty three matters
of national environmental significance identified by the COAG Agreement
are already addressed by specific Commonwealth legislation, including
hazardous waste; ozone protection; national environment protection measures;
quarantine; agricultural, veterinary and industrial chemicals; motor vehicle
emissions; and wildlife trade. [21] The Bill
is not intended to supplant this existing legislation.
6.21 With regard to the inclusion of `broad-scale' matters as triggers,
the Committee notes that legislation is not always the most appropriate
way of dealing with these matters and that policies and programs are the
most effective responses.
6.22 For example, the Government has also taken a number of initiatives
to control land clearing through the NHT. The $350 million Bushcare program
aims to reverse the long-term decline in the quality and extent of Australia's
native vegetation communities. The Government's policy is that Australia
will be establishing more vegetation than it is restoring in any one year
by 2001. The Government is also addressing land or vegetation clearing
through the Natural Heritage Trust Partnership Agreements with the States
and Territories. In particular, States and Territories have committed
to better management and protection of native vegetation, including undertakings
to put in place effective measures to retain and manage native vegetation.
6.23 Importantly, the Australian and New Zealand Environment and Conservation
Council of State and Commonwealth environment ministers (ANZECC) will
take the lead in developing and implementing a national framework for
the management and monitoring of Australia's native vegetation. The Government
has indicated that it will ensure that commitments made by the States
and Territories, which are linked to financial support from the Natural
Heritage Trust, will be honoured in full. [22]
6.24 In addition the Government has indicated that funding from the Natural
Heritage Trust will assist States and Territories by 2000 to:
- install controls and incentives across all regions and land tenures,
to reduce the rate of land clearing in Australia; limit clearing to
those instances where regional biodiversity is not compromised; and
stop further clearing of endangered ecological communities;
- implement projects to revegetate regions that have been overcleared
in the past; and
- provide incentives to better manage grazing, fire, weeds and feral
animals to protect the biodiversity values of these ecosystems. [23]
6.25 In the Committee's view, claims that the comprehensive policies
and programs related to issues such as land clearing and climate change
are not meeting their objectives are premature, given the timeframes the
Government has set for achieving its targets in these areas and the reality
that significant reductions in greenhouse emissions and land clearing
are medium to long-term challenges.
6.26 The Committee considers that there are significant practical difficulties
in applying an environmental impact assessment approach to climate change,
vegetation clearance, and land and water degradation in a way that clearly
establishes the Commonwealth's responsibility vis-à-vis the States
and Territories. These processes typically result from the cumulative
effect of diffuse, small-scale, individual activities which are more appropriately
regulated at the local and State Government levels and for which it is
difficult to justify a direct legislative role for the Commonwealth.
6.27 In relation to invasive species, the Committee notes that proposed
amendments to the Quarantine Act 1908 will provide for environmental
assessment of proposals to import plants, animals or goods which are likely
to have a significant impact on the environment. [24]
These provisions will prevent the importation of new weeds and pests into
Australia. The Government has also indicated that it will establish an
alert list to facilitate the control of feral animals and weeds that have
already been introduced into Australia. [25]
6.28 The Committee notes that the Bill will deal with `broad-scale' issues
mentioned by conservation groups in the following ways:
- proposals involving broad-scale processes, such as vegetation clearance,
are subject to assessment and approval if they are likely to have a
significant impact on matters of national environmental significance;
- all environmental matters, including broad-scale issues, will be considered
in relation to Commonwealth actions and actions taken on Commonwealth
land and in Commonwealth marine areas; and
- conservation agreements made under Part 14 of the Bill may address
matters such as land and water degradation, vegetation clearance and
invasive species.
6.29 The Committee concludes that the Bill defines a list of clear triggers
for Commonwealth assessments and approvals, which accurately reflects
the Commonwealth's responsibilities and the COAG Agreement. The triggers
will offer certainty to both the public and proponents about the Commonwealth's
role in environmental assessments and approvals.
Additional Matters of National Environmental Significance
6.30 The Bill provides for additional triggers to be prescribed in regulations
following consultation with the States and Territories (clause 25).
6.31 A number of industry groups and State Governments expressed concern
about the ease with which new triggers might be prescribed. For example,
Mr Terry Long, Executive Director of the Tasmanian Minerals Council, was
concerned that the extension of the triggers by regulation would override
bilateral agreements, and introduce a `wild card' which:
is to be played at the discretion of the Federal Environment Minister,
and its nature and its effect are unknown to us. That does not really
sit too well with the idea of certainty and agreement and comprehensive
bilateral agreements which are outlined in the discussion paper.
We would prefer that the Minister did not have that power, or, if the
Minister had that power, that it should be leavened by none of those actions
being able to be taken without a whole of government approach that would,
for example, involve the Resources Minister or even the Cabinet. In other
words, it should be a weighty decision. [26]
6.32 Several submissions to the Committee suggested that matters of national
environmental significance should only be added by legislative amendment,
following agreement by all States and Territories. [27]
6.33 Mr Beale outlined the disadvantages of adding triggers only after
reaching agreement with the States and only through legislative amendment:
There have been two views put in consultations. One is that it should
require the agreement of the States. The difficulty with that is that
it would mean that the Commonwealth would be potentially capable of being
stopped, for example, from implementing an international obligation. If
any one of the States or territories were to block that move, to provide
a bill that was framed in that way would not be consistent, we believe,
with our fundamental obligations. So if tomorrow the equivalent of the
ozone problem were identified and it required global and national action
to address it, the Commonwealth must, at the end of the day, be in a position
to address that after proper consultation, and remembering that we now
have a very comprehensive treaty process, more broadly.
The other suggestion that has been made is: should this not require legislative
action on each and every occasion? Again, that can be a time-consuming
and complex process. The regulatory process allows the Commonwealth to
act with due expedition when that is required, but also allows the Parliament
to disallow the regulation if it considers it to be inappropriate. We
think that that provides the right balance between the concerns of the
States and the Commonwealth's obligation to preserve some element of independent
action in relation to NES. [28]
6.34 Some witnesses suggested that new triggers could be prescribed following
agreement by two-thirds of the States and Territories. This was compared
by one witness to decisions by the National Environment Protection Council,
which are made by a two-thirds majority of Commonwealth, State and Territory
members. [29]
6.35 The South Australian Government and the Australian and New Zealand
Minerals and Energy Council (ANZMEC) also suggested that clause 25 could
be modified to:
- make each of the tests in 3(a) and (b) objective (ie. "regulations
must not be made unless" rather than "the Minister must be
satisfied that"); and
- specify that States must have a specified minimum period of time within
which to see and comment on draft regulations; and
- require the Minister to negotiate with nominated representative Ministers
of each State to attempt to reach agreement amongst all States. [30]
6.36 The Committee appreciates the need to avoid introducing instability
or uncertainty in the regime for environmental assessments and approvals
through the unfettered addition of triggers. A power to extend the triggers
by regulation, if adequately circumscribed, would avoid any `wild card'
effect and allow the Commonwealth to respond to future environmental challenges
and international obligations in a flexible way.
6.37 The Committee notes that certain constraints are already built into
the Bill: before any regulations are made under clause 25(3), the Minister
must be satisfied that all the States and Territories have been given
a reasonable opportunity to comment on any proposal to prescribe an additional
trigger and the proposed regulations must not be inconsistent with Australia's
obligations under international agreements. The Committee also considers
that regulations to extend the triggers will be subject to proper Parliamentary
scrutiny through disallowance by either House of Parliament.
6.38 The Committee considers that the proposal to require in the Bill
whole-of-government agreement before making regulations to extend the
triggers is not practical, and raises significant difficulties, which
are discussed in Chapter 8 in relation to the decision making powers of
the Environment Minister.
6.39 The Committee does not agree with proposals to require the agreement
of States and Territories before extending the triggers. It notes that
the COAG Agreement requires the Commonwealth to consult, rather
than agree, with the States before adding or varying matters of
national environmental significance. [31] A
requirement to reach agreement with all or even two-thirds of the States
and Territories would place unnecessary limitations on the Commonwealth's
legislative capacity, and could severely restrict the Commonwealth's ability
to respond to new environmental challenges and meet future international
obligations, where these call for a Commonwealth environmental assessment
and approval process. The Committee considers, however, that the requirement
in clause 25(3) for consultation with States and Territories could be
strengthened.
Recommendation 3
The Committee recommends that clause 25(3) be amended to strengthen
the obligation to consult with the States and Territories before regulations
are made to prescribe an additional matter of national environmental significance.
6.40 Several witnesses considered the provisions for adding new matters
of national environmental significance to be too restrictive. For example,
according to Professor Janet McDonald:
a list of six matters, with a very convoluted system for adding to that
list by regulation with the approval of all States, is an unnecessary
and inappropriate fetter on the Federal Government's watchdog role on
environmental matters. [32]
6.41 Conservation groups suggested that a safety net provision be included
in the Bill `so that the Environment Minister can form a view that a particular
matter that is not otherwise dealt with in the Bill is a matter of national
significance that ought to attract Commonwealth attention'. [33]
Mr James Johnson, Director of the Environmental Defender's Office, suggested
that the Environment Minister should have a discretionary power to call
in specific individual proposals, to be exercised in accordance with specified
criteria or guidelines laid out in the legislation:
On the one hand, providing such a discretionary power will, it will be
argued, introduce a degree of uncertainty but, on the other hand, providing
criteria by which that discretion is to be exercised will limit the ambit
of that uncertainty. We see this as being something that will be used
in the most exceptional circumstances. It is a reserve power which we
say must be there. If you are going to go down the track of specifying
a list of things in order to try to create some sort of certainty, a corollary
of that must be that where unforeseen, unusual or unique matters are having
a significant impact on a matter of national environmental significance,
even though that matter is not described in here, the Commonwealth ought
to reserve that power to approve and assess that. The alternative which
is pursued in some jurisdictions is to leave it more vague and simply
say `a significant effect on the environment' or `a matter of national
environmental significance'. What you are left there with is determining
on each individual basis whether your matter falls within that. [34]
6.42 The Committee considered that the ad hoc nature of the proposed
safety net would create unnecessary uncertainty about the Commonwealth's
involvement in environmental assessments and approvals. By introducing
an unpredictable basis for determining the Commonwealth's role in assessments
and approvals, a safety net provision would undermine the purpose of bilateral
agreements. The Committee is satisfied that, where necessary, the Commonwealth
will be able to address new and unforeseen matters of national environmental
significance by prescribing those matters under clause 25.
Meaning of `Action'
6.43 Clause 523 of the Bill defines `action' as including a project;
a development; an undertaking; an activity or series of activities, and
an alteration to any of these things. Clause 524 provides that decisions
by Commonwealth or State Government bodies, including funding decisions
and governmental authorisations, are not actions. These provisions will
ensure that the decision-based and indirect triggers of the current
legislation will be replaced by triggers that involve actions with a direct
impact on the relevant aspects of the environment.
Precision and Scope of the Definition
6.44 The term `action' is defined in clauses 523 and 524 of the Bill.
There were conflicting views on the scope of this definition.
6.45 Some submissions argued that the definition of `action' was too
open-ended and should not cover activities not normally subject to State
assessment. [35] On the other hand, many conservation
organisations thought that the definition was too narrow and should, for
example, include all proposals, programs and policies that are likely
to have a significant adverse effects on biodiversity or that involve
climate change considerations, [36] and all
`export licences, FIRB approvals and funding of actions by the Commonwealth'.
[37] The Australian Conservation Foundation
considered that:
For effective ESD to be implemented, this Bill needs to be pulled apart
and reassembled with provision for assessment of policies, Commonwealth
funding and the workings of government. Many of these things have a far
greater impact on environment than site specific developments. [38]
6.46 In the Committee's view it is clear that the EPBC Bill removes the
existing Commonwealth triggers. Clause 524 specifically excludes decisions
by the Commonwealth or Commonwealth agencies (as well as State decisions)
and decisions by a government body to grant a governmental authorisation.
Decisions on funding are therefore excluded. Decisions to grant authorisations
under Acts such as the Export Control Act 1982 and the Foreign
Acquisitions and Takeovers Act 1975 are specifically excluded from
triggering environmental assessments and approvals under clause 524(3).
6.47 The Committee does not find the definition of `action' to be open-ended
or all-encompassing. First, not every action which is covered by clause
523 will be subject to approval; an action must also have, or be likely
to have, a significant impact on matters set out in Chapter 2 of
the Bill.
6.48 Secondly, although the definition in clause 523 is not exclusive
it provides a clear indication of what is meant by the term (a project,
a development, an undertaking, an activity or series of activities, and
an alteration of any of these things), while clause 524 clearly excludes
government decisions and authorisations.
6.49 Thirdly, the Committee sees no justification for excluding actions
which have a significant impact on matters protected by the Bill, but
are not normally subject to State development or environmental approvals.
The Committee considers that the exemption of such activities from the
Bill would mean that neither the Commonwealth nor the State would have
responsibility for protecting matters of national environmental significance
which are affected by these activities.
6.50 The Committee does not agree with the proposition that Commonwealth
decisions, including those on policies, programs, funding, export controls,
and FIRB approvals, should be subject to environmental assessment and
approval. The retention of those triggers would undermine one of the major
reforms being delivered through the Bill and reproduce the current situation
in which matters of only State or local environmental significance can
be subject to Commonwealth processes, and the Commonwealth is potentially
involved very late in a development.
Continuation of a Use
6.51 The Bill provides that a lawful continuation of a use of land, sea
or seabed that was occurring immediately before the commencement of the
Act is not an `action'. This provision ensures that the Bill will not
have retrospective application to existing actions which are lawful. However,
an enlargement, expansion or intensification of an existing use would
not be a continuation of a use (clause 523(2)).
6.52 Industry groups consider that the provision should be clarified
further:
Where the enlargement, expansion or intensification had been approved
under some previous statute or arises from an existing right or action,
then it is a continuation and should be so defined. Where there is no
significant increase in environmental impact, as may often occur with
enlargement, expansion or intensification, then it should be considered
as a continuation and defined as such. [39]
6.53 It is clear that the Bill does not apply to an enlargement, expansion
or intensification of an existing use (such as more intensive harvesting
on a broad-acre farm) that does not have a significant impact on a matter
protected by the Bill. The Committee, therefore, does not see the need
to define such actions as a `continuation' of a use. However, the Committee
considers it desirable to clarify the status of an enlargement, expansion
or intensification which is already authorised by law, for example, where
the stocking rate is increased but kept within the limits set by a pastoral
lease.
Recommendation 4
The Committee recommends that clause 523(2) be amended to clarify
that an enlargement, expansion or intensification of a use of land, sea
or seabed which had been authorised by law immediately before the commencement
of the Act is not an `action'.
Meaning of `Significant Impact'
6.54 Several submissions from both conservation and industry perspectives
argued that the Bill should include guidance on what constitutes a `significant
impact'. Industry groups argued that:
the Bill's failure to define such an important term will enhance the
Commonwealth's ability to expand its involvement in State and Territory
environmental processes and will promote developer uncertainty. [40]
6.55 They suggested that part of the problem could be redressed by use
of the 1996 ANZECC Guidelines and Criteria for Determining the Need for
and Level of Environmental Impact Assessment in Australia. [41]
The Environmental Defender's Office also suggested that the Bill include
criteria for assessing the significance of impacts, as provided for in
United States environmental impact legislation. [42]
6.56 The Committee notes that there are considerable difficulties in
defining this term in legislation. Questions about the significance of
an impact of an action will often relate to the characteristics and circumstances
surrounding a specific action, site or species. The same action taken
in one site may have vastly different impacts in another site. The Committee
is also aware that the courts have interpreted the term `significant',
for example, in terms of whether the impacts of an activity are `important',
`notable', `weighty' or `more than ordinary'. [43]
6.57 The Committee notes that the ANZECC guidelines, and regulations
under the US National Environmental Policy Act, outline a process for
determining whether an impact is significant and matters to be taken into
account in that process, but do not define the meaning of `significant
impact'. [44] Neither the current EPIP Act
nor the Administrative Procedures under that Act define `significant impact'.
6.58 Mr Beale drew the Committee's attention to the guidance already
provided on the meaning of `significant impact' in the Bill and Explanatory
Memorandum:
The Explanatory Memorandum indicates that the Minister will issue administrative
guidelines to provide detailed guidance on whether an impact is significant.
Nevertheless, the Explanatory Memorandum itself contains a good deal of
information about actions which are likely to have significant impact
and the content of the guidelines. For example, paragraphs 49 to 50 and
59 to 60 deal with one aspect of this, but in relation to each of the
major items of NES there are equivalent descriptions. This also is more
advanced than was the case in terms of the base legislation that we are
talking about, that is, the previous legislation. By specifying matters
of national environmental significance that will trigger assessment and
approval, the Bill gives a clearer picture of what is significant than
in the current legislation. [45]
6.59 In relation to threatened species and ecological communities, the
Explanatory Memorandum states:
Not all actions affecting a nationally threatened species or community
will have, or are likely to have, a significant impact on that
species or community. For example, approval will not be required for some
actions which, if carried out on Commonwealth land, would require a permit
under Chapter 5 of this Act - injury or death to one member of a species
will, except in the case of the most endangered species, not have a significant
impact on the species. This clause therefore does not regulate all actions
affecting members of a species or community. In order to discharge Australia's
international responsibilities, including obligations under the Convention
on Biological Diversity, this clause regulates those activities that will,
or are likely to, have a significant impact on nationally threatened
species or communities. [46]
and in relation to the contents of the administrative guidelines:
These guidelines will reflect the fact that, in determining whether an
action will have a significant impact on a species or community, it is
necessary to have regard to factors such as: the extent to which the action
damages or modifies habitat for the species or community (particularly
critical habitat identified in a recovery plan), the extent to which the
action will result in injury or death to members of the species or community
or will interfere with essential behavioural characteristics (such as
breeding and feeding), the effect on important populations of the species
or community, the impact on the geographic distribution of the species
or community, and so on. [47]
6.60 The Committee agrees that there is a need for guidance on the meaning
of `significant impact'. The Committee also recognises the need to allow
such guidance to be adjusted over time in a flexible manner, as the methodologies,
practices and knowledge relevant to environmental impact assessment evolve.
The inclusion of detailed provisions defining a `significant impact' in
the Bill could impose an unwarranted constraint on the effective operation
of the Act.
6.61 In conclusion, the Committee considers that much of the uncertainty
about the meaning of `significant impact' will be overcome by the administrative
guidelines which will be issued by the Minister. The Committee notes that
ultimately, if it is unclear whether an action requires approval, the
proponent can refer the action to the Minister for a decision on whether
approval is required. Under clause 75(5) the Minister must make the decision
within twenty business days of receiving the referral. If the Minister
provides advice that an action does not require approval, a person will
not contravene the Bill if the action is taken in accordance with that
advice (clause 12(2)(c)).
Off-Site Impacts
6.62 Several submissions raised concerns about applying the Bill to activities
with off-site impacts on World Heritage properties, Ramsar wetlands and
Commonwealth marine areas. In relation to World Heritage properties and
Ramsar wetlands key industry groups stated in their submission:
Industry understands and supports the environmental reasons for protecting
the values of areas of international significance rather than considering
the consequences of activities within the boundary of the property. However,
this approach creates considerable uncertainty with regard to actions
outside of the defined area that may have an impact on the values inside
the boundary. Industry is unsure how proposals in this category will be
identified and treated either under bilateral agreements or in the Act
itself. As such, industry considers that it is not reasonable for individuals
or bodies corporate to be liable to prosecution and fines for activities
outside these properties, particularly as recent experience demonstrates
that there is subjective judgement as to the impact on values within.
[48]
6.63 The fishing industry was particularly concerned with clause 23(2),
which regulates actions with a significant impact on Commonwealth marine
areas but taken outside those areas. The industry feared that this would
potentially cover State and Territory fisheries decisions and other marine
decisions. [49]
6.64 Submissions and evidence from the industry argued that this would
be contrary to the COAG Agreement, which was interpreted to limit Commonwealth
involvement in marine matters to actions within the Commonwealth marine
area. [50] Some also disputed whether the Department
of the Environment and Heritage or any Commonwealth department had `the
expertise that resides in the States to properly make marine decisions'.
[51]
6.65 Activities occurring outside the boundaries of World Heritage properties,
Ramsar wetlands and Commonwealth marine areas can have a significant impact
on those places. For example, a large diversion of water in the catchment
area upstream from a Ramsar wetland may cause serious deterioration of
the ecological character of the wetland. In the Committee's view excluding
such activities from the Bill would seriously hamper the Commonwealth's
ability to protect matters of national environmental significance and
would be a departure from both current requirements under the EPIP Act
and world's best practice in environmental impact assessment.
6.66 The Committee considers that any uncertainty about whether actions
with off-site impacts require approval can be clarified by the administrative
guidelines to be issued by the Minister. If it is still unclear whether
an action requires approval, a proponent could quickly ascertain the need
for a Commonwealth approval for an action by referring it to the Minister.
The Committee believes that provisions in the Bill requiring the Minister
to consult with relevant State Ministers before making a decision on whether
an action requires approval will also help to ensure that Commonwealth
processes are triggered and used in an appropriate manner. [52]
World Heritage and Ramsar Triggers
6.67 While there was general support for the inclusion of these triggers,
[53] a number of concerns were raised about
the detailed operation of these triggers, which are discussed below.
World Heritage `Values' and `Ecological Character' of Wetlands
6.68 Clause 12 of the Bill regulates actions that have, will have or
are likely to have a significant impact on the World Heritage values
of a World Heritage property. The Explanatory Memorandum states that:
Not all actions impacting on a World Heritage property will have, or
are likely to have, a significant impact on the World Heritage
values of that property. This clause therefore does not regulate all
actions affecting a World Heritage property. In order to discharge Australia's
responsibilities under the World Heritage Convention, this clause regulates
those activities that will, or are likely to, have a significant impact
on the values which give the property its World Heritage status. [54]
6.69 Several witnesses argued that Australia's obligations under the
World Heritage Convention relate to the protection of the property as
a whole, that the narrow definition of the trigger would restrict the
Commonwealth's ability to protect the properties, or that the World Heritage
values of many of the properties are ill-defined or out-of-date. [55]
Similar concerns were raised in relation to clause 16, which refers to
significant impacts on the ecological character of Ramsar wetlands.
[56]
6.70 The Committee considers that the references in the Bill to the World
Heritage values of a World Heritage property and the ecological character
of a Ramsar wetland will allow the Commonwealth to focus appropriately
on regulating actions which affect the values that give these places their
international status. Other classes of activities that do not affect internationally
recognised values are appropriately regulated by State and local governments.
The references to World Heritage values and ecological character also
provide a basis for determining what constitutes a significant impact
and points to the matters which are to be considered in environmental
assessments and approvals.
6.71 The Committee believes that amending the Bill to regulate actions
with a significant impact on a World Heritage property or Ramsar wetland
would remove the precision about what constitutes a `significant impact'
and create a high level of uncertainty about the requirements under the
Bill. It would also involve the Commonwealth in State and local matters
in which it has little interest.
6.72 The Committee understands that the nomination documents for each
World Heritage property provide information on the values of the property.
The Explanatory Memorandum states that the Minister will issue administrative
guidelines to provide guidance on whether an impact on the values of a
World Heritage property is likely to be significant. [57]
The same approach will apply to Ramsar wetlands.
6.73 The Committee notes that the Bill defines World Heritage values
as the `natural heritage' and `cultural heritage' contained in a property,
terms which have the meaning given by the World Heritage Convention (clauses
12(3) and (4)). It is clear that the obligations arising from the Convention
relate to the natural and cultural heritage of a World Heritage property.
Article 4, a key provision of the Convention, states:
Each State Party to this Convention recognises that the duty of ensuring
the identification, protection, conservation, presentation and transmission
to future generations of the cultural and natural heritage referred to
in Articles 1 and 2 and situated on its territory, belongs primarily to
that State… The Operational Guidelines for the Implementation of
the World Heritage Convention also include procedures for the eventual
deletion of a property from the World Heritage List where the property
has deteriorated to the extent that it has lost those characteristics
which determined its inclusion in the List.
6.74 Similarly, Australia's international obligations, particularly with
respect to environmental assessment, relate to the ecological character
of Ramsar wetlands. Article 3(2) of the Ramsar Convention states:
Each Contracting Party shall arrange to be informed at the earliest possible
time if the ecological character of any wetland in its territory and included
in the List has changed, is changing or is likely to change as the result
of technological developments, pollution or other human interference.
Information on such changes shall be passed without delay to the organisation
or government responsible for the continuing bureau duties specified in
Article 8.
6.75 In addition, a key conservation objective in the Strategic Plan
1997-2002, adopted by the 6th Meeting of the Conference of the Contracting
Parties to the Ramsar Convention, is to maintain the ecological character
of Ramsar wetlands. The Strategic Plan emphasises the need for environmental
impact assessments in relation to proposals that are likely to affect
the ecological character of a wetland. The Committee concludes that, contrary
to the claims above, the framing of the World Heritage and Ramsar triggers
in the Bill accurately reflects Australia's international obligations.
Declaration of Sites Not Yet on International Lists
6.76 Under clause 14 of the Bill the Minister may declare a specified
property to be a declared World Heritage property if the Commonwealth
has nominated the property for listing under the World Heritage Convention
or the Minister is satisfied that the property has, or is likely to have,
world heritage values and some or all of the values are under threat.
Similarly, under clause 17 the Minister may declare a wetland to be a
declared Ramsar wetland prior to designation under the Ramsar Convention
if the Minister is satisfied that the wetland is, or is likely to be,
of international significance and the ecological character of the wetland
is under threat.
6.77 The purpose of these provisions is to ensure the Commonwealth can
discharge Australia's obligations under the World Heritage and Ramsar
Conventions by providing for the identification and protection of sites
which are not yet listed. [58] The Explanatory
Memorandum states that the declaration of a World Heritage property would
only be used as a mechanism of last resort and only then to deal with
significant threats to some or all of the World Heritage values of a property.
[59]
6.78 There are a number of safeguards to ensure that the Bill does not
apply to sites which are not of international significance or which the
Commonwealth is not genuinely assessing for possible nomination or designation.
The period of a declaration must be no longer than is needed for the listing
of the site. [60] A declaration must be revoked
if the Commonwealth decides to withdraw or not submit a nomination for
a site, [61] if the Minister is satisfied that
the site does not have the required World Heritage or Ramsar values, [62]
or if the Minister is satisfied that there is no longer any threat to
any part of the site. [63]
6.79 The Bill also provides safeguards for the interests of States and
individuals who may be affected by the declaration or listing of World
Heritage properties and Ramsar wetlands. Before making a declaration the
Minister must consult the relevant State, except where the threat to the
property is imminent. [64] A site may only
be nominated or designated under the World Heritage Convention or Ramsar
Convention if the Commonwealth has sought to reach agreement with the
owner or occupier of areas that are part of the site and the relevant
State or Territory. [65]
6.80 Industry groups raised a number of concerns about the above provisions.
The major concerns were that:
- agreement should be reached with the affected State before declarations
are made;
- the Bill should require the Minister to be satisfied that the World
Heritage values of a World Heritage property or the ecological character
of a wetland are under `significant threat', rather than a `threat',
consistent with the environmental assessment provisions; and
- the implications of a declaration were unclear for projects that have
already been referred to a State or commenced with State approval. [66]
6.81 The Committee does not agree with the proposition that a declaration
should only be made with the agreement of the affected State. This would
allow the State to veto a declaration and potentially hinder Australia's
ability to meet its international obligations. The Committee considers
that the requirements to consult before the declaration, nomination, or
designation of a site provide considerable safeguards for the relevant
States and owners and occupiers of areas within the sites in question.
6.82 The Committee agrees that in relation to sites which have not yet
been nominated or designated under the World Heritage or Ramsar Conventions,
the Minister should be satisfied that there is a significant threat
to the values or ecological character of the site before declaring the
site. A significant threat would cover any actions that would trigger
environmental assessment under the Bill – that is, any actions that
would have a significant impact on the World Heritage values of a property
or ecological character of a wetland.
Recommendation 5
The Committee recommends that clause 14(1)(b)(ii) be amended so that
the Minister must be satisfied that some or all of the World Heritage
values of the property are under significant threat
before declaring a property to be a declared World Heritage property.
The Committee recommends that clause 17(3)(b) relating to declared Ramsar
wetlands should be similarly amended.
6.83 It is clear that a declaration would not have retrospective application
and would therefore not affect projects that had already commenced with
State approval at the time of the declaration. However, an action that
had not been approved at the time of a declaration could be affected by
a declaration if it were likely to have a significant impact on the values
of the declared World Heritage property or ecological character of the
Ramsar wetland. The Committee considers that further clarification of
this point in the Bill is not necessary.
6.84 The Association of Mining and Exploration Companies (AMEC) also
suggested that the Bill should specify a maximum timeframe of three months,
during which the Minister must resolve whether to nominate a property
for World Heritage or Wetlands of International Importance listing. [67]
6.85 Past experience with World Heritage nominations suggests that a
three month time limit would be too short to cover all situations. The
Committee considers that the time required to assess fully the World Heritage
values of a property or the significance of a wetland will vary considerably
according to the place involved. In view of the constraints already imposed
by clauses 14(6) and 17(5), the Committee believes it would be best to
allow the Minister to set the time limit of a declaration depending on
the circumstances of the case. Judicial review would provide an added
safeguard against any abuse of this provision.
Boundaries
6.86 Industry groups raised concerns about whether there were clear boundaries
for Ramsar wetlands, as some areas have been managed by States and Territories
on a `give and take' basis, whereby parts of the wetlands are excised
in return for compensatory actions. [68]
6.87 The Committee notes that the Ramsar Convention provides for compensatory
actions where an area is excised from a Ramsar wetland. [69]
However, Parties to the Convention are required to inform the Convention
secretariat of any such changes in the boundary of a wetland. [70]
The Committee agrees that any doubt about the boundaries of Ramsar wetlands
should be removed before the commencement of the Act. The Committee considers
that the commencement provisions in clause 2 allow ample time – up
to six months following Royal Assent – for this to occur before the
Act takes effect.
Recommendation 6
The Committee recommends that the Minister and/or the Department of
the Environment and Heritage confirm the boundaries of Ramsar wetlands
prior to the commencement of the Act.
Threatened Species Trigger
Vulnerable Ecological Communities
6.88 A number of submissions argued that vulnerable ecological communities
should also be a trigger. [71] The Department
of the Environment and Heritage explained that the Bill provides for the
listing of vulnerable ecological communities (clause 181), which is a
step forward as they are not listed under current environmental legislation.
Vulnerable ecological communities were not included as a trigger, since
it was not considered essential for their proper management and protection.
[72]
6.89 The Committee notes that the EPBC Bill will increase the level of
protection for vulnerable communities through recovery plans (clause 267),
offence provisions (clause 196), and conservation orders (clause 464)
– provisions which are not currently available under the existing
Endangered Species Protection Act 1992. The Committee accepts that
proposals that have a significant impact on endangered communities
are a higher priority for environmental assessment. The Committee therefore
does not consider it necessary to include vulnerable communities as a
trigger.
Critical Habitat
6.90 Several witnesses suggested to the Committee that critical habitat
should be included as a trigger:
critical habitat is so important that proposals and decisions that may
impact on critical habitat should be a matter of national environmental
significance and trigger Commonwealth approval and assessment processes,
especially in connection with nationally endangered species and communities,
listed migratory species and cetaceans. [73]
6.91 The Committee notes that under clause 270(2)(d) a recovery plan
for a listed threatened species or ecological community must `identify
the habitats that are critical to the survival of the species or community
concerned and the actions needed to protect those habitats'. The Committee
further notes that the Explanatory Memorandum states that administrative
guidelines to be issued by the Minister will:
reflect the fact that, in determining whether an action will have a significant
impact on a species or community, it is necessary to have regard to factors
such as: the extent to which the action damages or modifies habitat for
the species or community (particularly critical habitat identified in
a recovery plan). [74]
6.92 The Committee considers that critical habitat will clearly be identified
under the Bill and considered in the environmental assessment and approval
process. Critical habitat is only one of many factors which need to be
taken into account in determining whether an action has a significant
impact on a threatened species or community. Actions with a significant
impact on critical habitat will have a significant impact on the species
themselves and will be subject to assessment and approval processes. It
is the Committee's view, therefore, that there is no need to explicitly
include critical habitat as an additional trigger.
Key Threatening Processes
6.93 A number of conservation organisations suggested that key threatening
processes should be automatically included in the Bill as a trigger. [75]
6.94 However, the Committee did not receive any convincing evidence that
this proposal would improve the effectiveness of the Bill in achieving
its objectives. Most of the key threatening processes currently listed
under the Endangered Species Protection Act 1992 are natural processes
that do not involve any proponent, for example competition and land degradation
by rabbits. [76] These processes do not lend
themselves to being treated as a trigger, as it is only human actions
that can be regulated through the environmental assessment and approval
process.
6.95 The Committee considers that the Bill already provides for an effective
and strategic approach to reducing the impact of key threatening processes
through the development and implementation of threat abatement plans.
It will be possible to consider any listed key threatening process, to
the extent that it is relevant to a proposal, in the environmental assessment
and approval process.
Nuclear Trigger
Uranium Mining and Milling
6.96 The minerals industry and the South Australian and Northern Territory
Governments opposed the inclusion of uranium mining and milling as a nuclear
action subject to Commonwealth approval, on the grounds that there is
no environmental reason to treat the mining and milling of uranium ore
differently from the mining and milling of other minerals such as gold,
nickel or iron ore. [77] Key industry groups
were also concerned that the Bill may unintentionally capture mining involving
`trace amounts of uranium and other radioactive elements in coal, many
mineral sands, and even in granite as is used in road base'. [78]
6.97 The Committee notes that the COAG Agreement clearly identifies uranium
mining and milling as a nuclear activity subject to Commonwealth environmental
assessments and approvals. The Committee does not agree with the view
that uranium mining and milling is no different from other types of mining,
due to the nature of the materials produced and the high level of public
concern about activities involving uranium.
6.98 The Bill is clearly not intended to capture non-uranium mining.
To avoid doubt, the Explanatory Memorandum states that the mining and
milling of uranium ore does not include `operations for the recovery of
mineral sands or rare earths'. [79] The Committee
considers that the mining and processing of minerals containing incidental
or trace amounts of uranium or other radioactive elements could not reasonably
be interpreted as being a nuclear action. However, to remove doubt consideration
could be given to refining the definition of a `nuclear action'.
Recommendation 7
The Committee recommends that consideration be given to including
a definition of `mining and milling of uranium ore' or of `uranium ore'
to ensure that the mining and milling of non-uranium ores are not misinterpreted
as a nuclear action.
Large-Scale Disposal Facilities for Radioactive Waste
6.99 Clause 22 includes as a nuclear action: establishing or significantly
modifying a large-scale disposal facility for radioactive waste. The term
`radioactive waste' is defined as `radioactive material for which no further
use is foreseen'. The term `radioactive material' is not defined.
6.100 State and Territory Governments which provided submissions to the
Committee were concerned about the meaning of `large-scale disposal facility
for radioactive waste' and `radioactive material' in clause 22 of the
Bill. For example, the Western Australian Government stated:
There is no technical definition of radioactive waste. Arguably this
could include radioactive material of very low activity, or small amounts
of higher level activity such as medical isotopes. This trigger would
then be used to provide for Commonwealth involvement in a wide range of
waste disposal matters at local or regional level which was not the intent
of the Council of Australian Governments' Heads of Agreement.
The relevant definitions of nuclear action with respect to radioactive
waste should be confined by a technical definition of radioactivity so
high level waste is included but low level waste is not. [80]
6.101 These concerns are addressed by the Explanatory Memorandum, which
indicates that a judgement about whether a disposal facility is large
scale will be based on factors including: the activity of radioisotopes
to be disposed of, the half life of the material, the form of the radioisotopes,
and the quantity of isotopes handled. For example, a National Radioactive
Waste Repository would be considered to be a large scale disposal facility,
but radioactive waste disposal facilities operated by hospitals would
not. [81] The Committee concludes that the
intended meaning of a large-scale disposal facility is clear.
6.102 The Committee believes that any further definition of `large-scale
disposal facility' should be left to regulations, as envisaged in clause
22(2). Such a definition may involve highly technical detail which may
be subject to variation with changes in scientific knowledge about the
effects of radioactive waste on the environment and changes in standards
for the storage of radioactive waste.
6.103 The Committee does not agree with the proposition that `radioactive
waste' should only refer to high level waste. This would exclude Commonwealth
consideration of significant radioactivity from large amounts of low level
waste, such as in the proposed National Radioactive Waste Repository,
which the Commonwealth, States and Territories have agreed to establish
to safely manage Australia's low level and short-lived intermediate level
radioactive waste.
Cases in which Environmental Approval is not Needed
6.104 Specified actions covered by bilateral agreements, Ministerial
declarations, conservation agreements, operations in RFA regions, and
actions in the Great Barrier Reef Marine Park are exempt from the requirement
for assessment and/or approval under Part 9 of the Bill. Many submissions
argued against these exceptions. Some suggested that the exceptions were
simply a means for the Commonwealth to sidestep its responsibilities for
environmental matters. [82]
6.105 The Committee notes that the exceptions are only available when
certain conditions have been met. These conditions have been designed
to ensure that the environment is protected in cases where the exceptions
are granted. For example, conservation agreements must result in a net
benefit to biodiversity, and can only be entered into if the conservation
of biodiversity is their principal objective.
6.106 Concerns regarding bilateral agreements, declarations and conservation
agreements are addressed in more detail in later parts of this report.
Concerns about forestry operations and the Great Barrier Reef Marine Park
are addressed below.
Forestry Operations in Certain Regions
6.107 The Bill provides that an action taken in accordance with a Regional
Forest Agreement (RFA) or taken in a region where an RFA is being developed
is not subject to approval. [83] Key conservation
groups opposed this exception on the grounds that:
RFAs have been and are being negotiated without minimum standards for
environmental impact assessment or public participation. They cover a
substantial part of Australia's forests, which in turn provide habitat
for a substantial part of Australia's biodiversity. It is completely inappropriate
that Australia's “Biodiversity Conservation” Bill does not apply
to these forests. [84]
6.108 There were also concerns that once an RFA was in place it would
not be possible to prevent activities which were not ecologically sustainable:
If the RFA - the Regional Forest Agreements - are in place, the forestry
commission can now go into a forest and carry out logging on quite steep
country through creeks and so on and the public has no recourse - as they
have had in the past - no legal way to stop the forestry commission from
doing that sort of damage. [85]
6.109 In fact, a comprehensive assessment to address the environmental,
economic and social impacts of forestry operations is undertaken in each
RFA region prior to the completion of an RFA. Contrary to suggestions
in many of the submissions, the environmental assessments are being conducted
in accordance with the EPIP Act. Interim arrangements for the protection
and management of forests are in place pending finalisation of each RFA.
6.110 When finalised, an RFA will identify which areas of forest must
be protected in reserves and, for areas outside reserves, will identify
the rules that must be followed to ensure forestry activities are ecologically
sustainable. Activities which are in breach of an RFA and have a significant
impact on a matter protected under the Bill will be subject to substantial
civil penalties and remedies such as injunctions under clause 475. The
Committee considers that the Bill therefore provides a strong incentive
for compliance with RFAs.
6.111 The Committee notes that the exception applying to forestry operations
is limited in certain ways by the Bill. The exception does not extend
to forestry operations in a World Heritage property or a Ramsar wetland
(clauses 42(a) and (b)), or to forestry operations which are incidental
to another action, the primary purpose of which does not relate to forestry
(clause 42(c)). For example, an approval will be needed for clearing activity
(even if such activity falls within the definition of `forestry operation')
which is incidental to the construction of a residential subdivision (the
primary purpose of which does not relate to forestry). [86]
6.112 The Committee considers that these provisions provide important
safeguards and will ensure that activities which are not genuine forestry
operations are subject to the normal environmental assessment and approval
requirements.
6.113 The Committee is aware that the development of RFAs involves a
range of interests and a balanced outcome will not always fully satisfy
all sectors of the community. However, given the rigorous and exhaustive
environmental assessment process involved in the development of RFAs,
subjecting forestry operations in RFA regions to further assessment and
approval processes under the Bill would represent unnecessary duplication
without contributing to environmental outcomes.
Actions in the Great Barrier Reef Marine Park
6.114 A number of submissions raised concerns about the exception in
clause 43, whereby actions taken in the Great Barrier Reef Marine Park
and authorised under the Great Barrier Reef Marine Park Act 1975,
do not require approval under Part 9 of the Bill. [87]
Key conservation groups recommended that the Bill be amended so that the
Chair of the Great Barrier Reef Marine Park Authority (GBRMPA) must follow
the assessment procedures set down in the Bill before granting a permit
for an action that may have a significant impact on the environment. [88]
6.115 The Department of the Environment and Heritage has indicated that
the Minister intends that actions involving authorisations by the Great
Barrier Reef Marine Park Authority will be subject to clause 160(2)(d)
of the Bill (that is, prescribed by the regulations) and as a result will
be subject to assessment under the Bill. [89]
6.116 The Committee agrees that the assessment process established by
the Bill should apply to actions authorised under the Great Barrier
Reef Marine Park Act 1975. The Committee endorses the approach proposed
by the Minister, as it would have the effect of requiring GBRMPA to obtain
advice from the Minister before granting an authorisation for actions
that are likely to have a significant impact on the environment. In accordance
with clause 162 the environmental impacts of those actions would then
be assessed under Part 8 of the Bill.
Recommendation 8
The Committee recommends that the authorisation under the Great
Barrier Reef Marine Park Act 1975 of an action which has, will
have, or is likely to have, a significant impact on the environment should
be prescribed as an action under clause 160(2)(d) of the Bill.
Footnotes
[1] For example, see Environmental Defender's
Office, Submission 15, p 9.
[2] Dr Susan Marsden, Australian Council of
National Trusts, Proof Committee Proof Committee Hansard, Canberra,
4 March 1999, p 158.
[3] Council of Australian Governments, Heads
of Agreement on Commonwealth/State Roles and Responsibilities for the
Environment, 1997, Part I of Attachment 1, pp 8-9.
[4] See above, Chapter 3.
[5] Part II of Attachment 1 of the Heads
of Agreement on Commonwealth/State Roles and Responsibilities for the
Environment lists matters such as greenhouse emissions and sinks;
forest protection and management; management of hazardous wastes; international
trade in wildlife; nationally significant feral animals and weeds; conservation
of native vegetation and fauna; and prevention of land and water degradation.
[6] Proof Committee Hansard, Canberra,
4 March 1999, pp 159-160.
[7] Ms Wendy Craik, National Farmers' Federation,
Proof Committee Hansard, Canberra, 4 March 1999, p 120.
[8] Minerals Council of Australia, Submission
335, p 5.
[9] Humane Society International, Submission
554, p 2.
[10] Mr Lindsay Holt, Queensland Conservation
Council, Proof Committee Hansard, Brisbane, 28 August 1998, p 258.
[11] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 283.
[12] For example, Queensland Conservation Council,
Submission 14, pp 1-2; Environmental Defender's Office, Submission 15,
p 9; Australian Flora and Fauna Research Centre, Submission 555, p 1;
National Environmental Law Association, Submission 522, p 2.
[13] Mr Ian Higgins, Greenpeace Australia,
Proof Committee Hansard, Canberra, 4 March 1999, p 130.
[14] Mr Lindsay Holt, Queensland Conservation
Council, Proof Committee Hansard, Brisbane, 28 August 1998, p 258.
[15] Mr James Johnson, Environmental Defender's
Office, Proof Committee Hansard, Sydney, 4 February 1999, pp 86-87.
[16] Mr James Johnson, Environmental Defender's
Office, Proof Committee Hansard, Sydney, 4 February 1999, pp 86-87.
[17] Mr James Pittock, World Wide Fund for
Nature Australia, Proof Committee Hansard, Canberra, 4 March 1999,
p 138.
[18] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 160.
[19] Mr Ian Higgins, Greenpeace Australia,
Proof Committee Hansard, Canberra, 4 March 1999, p 137.
[20] Mr Michael Kennedy, Humane Society International,
Proof Committee Hansard, Sydney, 4 February 1999, p 93.
[21] Respectively, the Hazardous Waste (Regulation
of Exports and Imports) Act 1989, Ozone Protection Act 1989,
National Environment Protection Council Act 1994, Quarantine
Act 1908, Agricultural and Veterinary Chemicals Act 1992, Industrial
Chemicals (Notification and Assessment) Act 1989, Motor Vehicle
Standards Act 1989, and Wildlife Protection (Regulation of Exports
and Imports) Act 1982.
[22] Coalition Policy Document, Our Living
Heritage, 1998, p 29.
[23] Coalition Policy Document, Our Living
Heritage, 1998, pp 29-30.
[24] See item 86, Schedule 1, Quarantine Amendment
Bill 1998, introduced into Parliament on 3 December 1998.
[25] Chapter 9 of this report includes further
discussion on invasive species in the context of the biodiversity conservation
provisions of the Bill.
[26] Proof Committee Hansard, Hobart,
19 February 1999, p 49.
[27] For example, Government of Western Australia,
Submission 241, p 2; Government of South Australia, Submission 523, p
8; Australian and New Zealand Minerals and Energy Council, Submission
545, p 12; Association of Mining and Exploration Companies, Submission
436, p 7; Minerals Council of Australia, Submission 335, p 15.
[28] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 176.
[29] Mr David Buckingham, Business Council
of Australia, Proof Committee Hansard, Melbourne, 18 March 1999,
p 310.
[30] Government of South Australia, Submission
523, p 8; Australian and New Zealand Minerals and Energy Council, Submission
545, pp 11-12.
[31] Council of Australian Governments, Heads
of Agreement on Commonwealth/State Roles and Responsibilities for the
Environment, 1997, p 3.
[32] Proof Committee Hansard, Brisbane,
28 August 1998, p 299.
[33] Mr Alan Bradbury, National Environmental
Law Association, Proof Committee Hansard, Canberra, 4 March
1999, p 114. Also, Environmental Defender's Office, Submission 15, p 8;
Humane Society International, Submission 554, p 13.
[34] Proof Committee Hansard, Sydney,
4 February 1998, p 85.
[35] Association of Mining and Exploration
Companies, Submission 436, p 14; Minerals Council of Australia, Submission
335, p 19; Government of South Australia, supplementary information, 23
March 1999, pp 1-2.
[36] Environmental Defender's Office, Submission
15, p 6.
[37] Blue Mountains Conservation Society, Submission
250, p 1.
[38] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 280. Also, Environmental Defender's Office, Submission 15, pp 9-10.
[39] Minerals Council of Australia, Submission
335, p 19. Also, National Farmers' Federation, Submission 530, p 4.
[40] Ms Tamara Stevens, Association of Mining
and Exploration Companies, Proof Committee Hansard, Perth, 26 February
1999, p 65.
[41] Minerals Council of Australia, Submission
335, p 19.
[42] Environmental Defender's Office, Submission
15, pp 17-18.
[43] For example, Hemmings J, Bailey v Forestry
Commission of New South Wales, (1989) 67 LGRA 200, p 211.
[44] Section 1508.27 of the Regulations for
Implementing the National Environment Policy Act, 40 CFR Part 1508, states
that `significantly' as used in the NEPA requires considerations of both
context and intensity. The regulations list a number of factors to be
considered, such as the degree to which the proposed action affects public
health or safety, unique characteristics of the geographic area, and the
degree to which the possible effects on the human environment are highly
uncertain or involve unique or unknown risks.
[45] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 160.
[46] Explanatory Memorandum, p 27.
[47] Explanatory Memorandum, p 27.
[48] Minerals Council of Australia, Submission
335, p 13.
[49] Mr Bill Nagle, Australian Seafood Industry
Council, Proof Committee Hansard, Canberra, 4 March 1999, p 122;
Mr Brian Jeffriess, Tuna Boat Owners Association of Australia, Proof
Committee Hansard, Adelaide, 12 March 1999, p 229.
[50] Australian Seafood Industry Council, Submission
154, p 2; South Australian Fishing Industry Council, Submission 622, p
7.
[51] Mr Brian Jeffriess, Tuna Boat Owners Association
of Australia, Proof Committee Hansard, Adelaide, 12 March
1999, p 229. Also, Western Australian Fishing Industry Council, Submission
625, p 3.
[52] Clause 74 (2) provides that, as soon as
practicable after receiving a referral of a proposal to take an action
in a State or Territory, the Environment Minister must invite comments
from the appropriate Minister of the State or Territory on whether the
action requires approval.
[53] For example, Minerals Council of Australia,
Submission 335, p 12; Humane Society International, Submission 554, p
2.
[54] Explanatory Memorandum, p 23.
[55] Ms Rachel Siewert, Conservation Council
of Western Australia, Proof Committee Hansard, Perth, 26 February
1999, p 93; Environmental Defender's Office, Submission 15, p 7; Mr James
Johnson, Environmental Defender's Office, Proof Committee Hansard,
Sydney, 4 February 1999, p 82.
[56] For example, Environmental Defender's
Office, Submission 15, p 7.
[57] Explanatory Memorandum, p 23.
[58] Explanatory Memorandum, pp 24, 26.
[59] Explanatory Memorandum, p 24.
[60] Clauses 14(6) and 17(5).
[61] Clause 15(1) and 15(3)(b).
[62] Clauses 15(3)(a) and 17(6)(a).
[63] Clauses 15(3)(c) and 17(6)(b).
[64] Clause 14(2).
[65] Clauses 314 and 326.
[66] Minerals Council of Australia, Submission
335, pp 13-14.
[67] Association of Mining and Exploration
Companies, Submission 436, p 16.
[68] Minerals Council of Australia, Submission
335, p 13.
[69] Article 4(2) of the Convention states:
“Where a Contracting Party in its urgent national interest, deletes
or restricts the boundaries of a wetland included in the List, it should
as far as possible compensate for any loss of wetland resources, and in
particular it should create additional nature reserves for waterfowl and
for the protection, either in the same area or elsewhere, of an adequate
portion of the original habitat.”
[70] Article 2(5) of the Convention states:
“Any Contracting Party shall have the right to add to the List further
wetlands situated within its territory, to extend the boundaries of those
wetlands already included by it in the List, or, because of its urgent
national interests, to delete or restrict the boundaries of wetlands already
included by it in the List and shall, at the earliest possible time, inform
the organisation or government responsible for the continuing bureau duties
specified in Article 8 of any such changes.”
[71] For example, Humane Society International,
Submission 554, p 10; Environmental Defender's Office, Submission 15,
p 29.
[72] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment D, p 8.
[73] Environmental Defender's Office, Submission
15, p 32.
[74] Explanatory Memorandum, p 27.
[75] Humane Society International, Submission
554, p 12.
[76] The other key threatening processes listed
under Schedule 3 of the Endangered Species Protection Act 1992
are: predation by the European red fox, dieback caused by the root-rot
fungus (Phytophthora cinnamomi); predation by feral cats; competition
and land degradation by feral goats; and incidental catch (or bycatch)
of seabirds during oceanic longline fishing operations.
[77] Ms Tamara Stevens, Association of Mining
and Exploration Companies, Proof Committee Hansard, Perth, 26 February
1999, p 65; Mr John Scanlon, Department for Environment, Heritage and
Aboriginal Affairs (SA), Proof Committee Hansard, Adelaide, 12
March 1999, pp 186-187.
[78] Minerals Council of Australia, Submission
335, p 14.
[79] Explanatory Memorandum, p 31.
[80] Government of Western Australia, Submission
241, p 4.
[81] Explanatory Memorandum, p 31.
[82] For example, Australian Conservation Foundation
Gold Coast, Submission 2, p 1.
[83] Clauses 38-42.
[84] Environmental Defender's Office, Submission
15, p 11; Also, Australian Flora and Fauna Research Centre, Submission
555, p 2; National Parks Association of Queensland, Submission 617, p
1.
[85] Mr Michael Hissink, Canberra and South-East
Regional Environment Centre, Proof Committee Hansard, Canberra,
4 March 1999, p 110.
[86] Explanatory Memorandum, p 40.
[87] For example, Queensland Conservation Council,
Submission 93, p 2; Humane Society International, Submission 554, p 13;
Mr Rowan Silva, Environmental Defender's Office of Northern Queensland,
Proof Committee Hansard, Brisbane, 28 August 1998, p 290.
[88] Environmental Defender's Office, Submission
15, p 11.
[89] Department of the Environment and Heritage,
supplementary information, 8 April 1999, p 1.
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