Environment Protection and Biodiversity Conservation Bill 1998 & Environmental Reform (Consequential Provisions) Bill 1998
Table of Contents

Report by the Australian Greens and The Greens (WA)

The Australian Greens and The Greens (WA) wish to thank all those who participated in the Committee's inquiry into the Environment Protection and Biodiversity Conservation Bill 1998.

Introduction

A review of Australia's environmental legislation is well overdue. Since much of the pioneering legislation of the 70s and 80s was passed, there have been considerable changes in our understanding of ecological processes, in our expectations of government, and in our understanding of the extent of the Commonwealth's powers (which can be considerable, as shown by various High Court decisions). We also have a greater desire to deal with the environment and the economy in an integrated manner. Ecologically sustainable development (ESD) has become the concept that encapsulates the desire to ensure that environmental considerations are taken into account in all decision making, economic and social.

The Bill before this Committee is a severe disappointment in terms of providing Australia with forward-looking legislation that can help us face the environmental challenges that are either emerging or already with us. In some respects it is `merely' disappointing; in many others, the Bill has the potential to be a complete disaster. The majority report of the Committee has neglected the evidence on these concerns that was placed before it.

Process Issues

The Australian Greens and The Greens (WA) consider that the development process of the Bill itself reflects the Government's underlying desire to wash its hands of any significant involvement in environmental affairs. The main genesis of the Bill is the Heads of Agreement by the Council of Australian Governments of 1997 (the COAG Agreement).

We do not consider that COAG is a valid basis for legislation because of its secrecy and lack of accountability. The only interest group seriously considered has been government, and the lowest common denominator has often prevailed.

The Australian Greens and The Greens (WA) believe that more genuine efforts to consult with the public during the development of the Bill would have resulted in legislation that better reflected community concerns. Although the Minister released a Consultation Paper on the proposed legislation, many of the witnesses told the Committee that there was limited time to respond to the proposals and the Government appeared not to have taken into account the comments that had been made.

Complaints about the process came from the full range of industry, environment and community groups. Traditional Owners were not consulted in any meaningful way on proposed changes to their lease agreements in Uluru, Kakadu and Booderee. The consideration of the Bill by the public and the Committee was also made difficult by the lack of detail in relation to bilateral agreements and the regulations which are fundamental to an understanding of the implications of the Bill and to its successful operation. Industry groups noted time after time that this created an unacceptable degree of uncertainty for them, and consistently requested that the legislation be delayed.

Conclusion

Overall, the Bill is an attempt to wind the clock back and allow the Commonwealth to retreat from its responsibilities. This is the only explanation, for example, that can be given for limiting Commonwealth environment assessment and approval to a mere six matters in the Bill.

The Commonwealth is also retreating from its national and international environmental obligations in its proposed use of bilateral agreements with the States and Territories to hand over Commonwealth assessment and approval responsibilities. While the Australian Greens and The Greens (WA) have no conceptual difficulties with the States and Territories having a role in assessment processes, this must only occur subject to best practice environment processes and other safeguards, and based on an acceptance of Commonwealth involvement and approval. These safeguards and constraints are missing, reinforcing the overall impression of the Bill that the Commonwealth is giving itself as many avenues as possible to devolve its environmental obligations.

Overall, there are three major fundamental objections to the Bill. These are:

• inadequate definition and use of ESD principles, especially with respect to the importance of public involvement;
• the limited view as to the Commonwealth's responsibilities. For example, excluding several vital matters of national environmental significance; and using bilateral agreements to delegate Commonwealth decision making to States and Territories; and
• the large scope for Ministerial discretion and other exemptions from the Bill. For example, with bilateral agreements, Ministerial declarations and specially accredited processes.

The Bill does contain a number of positive elements. However, these are relatively small benefits when the overall Bill, and the process by which it was developed, is considered. While the Bill purports to deal with matters of national environmental significance, the omissions are so obvious, and the qualifications to those remaining potentially so extensive, that they amount to a fundamental abrogation of the Commonwealth's environmental responsibilities.

Recommendation

That the bill be withdrawn. A genuine community consultation process should be implemented to help draw up replacement legislation that reflects the Commonwealth's responsibility to protect Australia's environment.

Senator Dee Margetts Senator Bob Brown

The Greens (WA) Australian Greens

23 April 1999

 

APPENDIX TO THE REPORT OF THE AUSTRALIAN GREENS AND THE GREENS (WA)

COMMENTS ON BEST PRACTICE ENVIRONMENTAL LEGISLATION

Introduction

As discussed in the above minority report, the Australian Greens and The Greens (WA), consider that the Environment Protection and Biodiversity Conservation Bill 1998 (EPBC Bill) has so many fundamental flaws that it is totally unacceptable and should be withdrawn. The process by which it was developed was also totally unacceptable, displaying a disturbing lack of consideration for the community interest in such vitally important and far-reaching legislation.

However, the Australian Greens and The Greens (WA) also consider that it would be useful to provide some indication as to what best practice environmental legislation with respect to the EPBC Bill could entail. Below are provided a few points elaborating on the approach that we believe should be taken.

Objects of the Bill and Ecologically Sustainable Development

The concept of ecological sustainable development (ESD) was originally designed to ensure that environmental considerations are taken into account in all decision making, economic and social. Unfortunately the phrase has been contorted somewhat in the intergovernmental negotiation process (and hence in the EPBC Bill) so that all Australian governments could at least give lip-service to it. For example, the definition of ESD in the EPBC Bill has the precautionary principle and public involvement as `guiding principles' only, not as core objectives.

Many submissions and witnesses commented that the objects clause contains watered-down objectives that do not project a strong commitment to environment protection and biodiversity conservation. More generally, the EPBC Bill treats ESD as though it means that environmental issues take second place to economic and social issues. For example, while the Bill requires decisions on environmental approvals to take all economic and social considerations into account, ESD principles (such as they are) only need to be taken into account in relation to the particular matter which triggers assessment (clause 136). In effect, the Bill ensures that economic and social factors are incorporated into environmental decisions, but does not require environmental factors to be a part of social or economic decision making.

Hence, the objects of the EPBC Bill, for example, should indicate an unequivocal commitment to protect the environment, rather than `to provide for the protection of the environment'; to ensure ecologically sustainable development, rather than `to promote ecologically sustainable development'; and to conserve biodiversity, rather than `to promote the conservation of biodiversity'. The objects should also explicitly acknowledge the importance of public consultation and involvement in environment protection and biodiversity conservation.

Recommendation

`Ecologically sustainable development' should be defined rigorously in all environmental legislation, and the objects of any legislation should place ecologically sustainable development and its principles at centre stage. For example, qualifications like those in clauses 3(a), (b) and (c) of the EPBC Bill are unacceptable. Public involvement at all key stages in environmental planning and approval processes should also always be required.

Transparency in the Implementation

Effective implementation of any legislation will depend to a large extent on the degree to which the community understands the legislation, is committed to its implementation, and is involved in decisions which will ultimately affect the community itself. One of the principles of ecologically sustainable development included in clause 136(3) of the EPBC Bill is that `decisions and actions should provide for broad community involvement on issues which affect the community'. However, this principle is not adequately reflected in the provisions of the Bill. Adequate public involvement in processes should be established within the EPBC Bill.

It will also be necessary to ensure that there are adequate provisions for the notification and publication of decisions, agreements, declarations, plans and other instruments. In this regard, the Australian Greens and The Greens (WA) note the numerous exemptions in the EPBC Bill from requirements to publish material, on the grounds that it is commercial-in-confidence. Examples include exemptions in relation to conservation agreements (clause 309), assessment reports (clauses 95, 100 and 105), approvals (clause 133) and variation of conditions (clause 143). While the need to protect commercial-in-confidence in appropriate circumstances is appreciated, there is potential to abuse the provisions of the Bill to prevent the disclosure of material which relates to the legitimate interests of the community. Further constraints on the use of commercial confidence, beyond the reference to the Freedom of Information Act 1982, are required.

Recommendation

Effective environmental legislation should provide for transparency and openness in relation to all processes, through the provision for public consultation; public notification of impending decisions; publication of relevant instruments, decisions and reasons; and tight constraints on the use of commercial-in-confidence.

Management Arrangements in National Parks

A major concern expressed to the Committee throughout its inquiry was the lack of meaningful consultation about the proposed legislation. This was most starkly illustrated in relation to the proposed changes to the management of national parks. The EPBC Bill proposes to abolish the Director of National Parks and Wildlife and the Australian National Parks and Wildlife Service as statutory bodies, transfer the leases for Aboriginal-owned national parks from the Director to the Commonwealth, and require Northern Territory representation to be on the Boards of Management for the Kakadu and Uluru National Parks. Clearly, there was no genuine consultation or negotiation on these matters with the Traditional Owners of the parks, who were taken by surprise by the contents of the Bill. This lack of consultation is unacceptable, particularly as the Traditional Owners have freehold title over the relevant national parks and are involved in managing the parks through a close partnership with the Director.

The Australian Greens and The Greens (WA) believe that current management arrangements for Kakadu, Uluru, and Booderee National Parks should be maintained. Any alternative arrangements should be discussed and agreed with the Traditional Owners of the parks.

Recommendation

Current management arrangements for Kakadu, Uluru and Booderee National Parks should be maintained, with any alternative regimes to be discussed and agreed with the Traditional Owners.

Commissioner for the Environment

There is no provision in the EPBC Bill for independent reviews of the environmental role and operations of the Commonwealth Government. A number of submissions and witnesses presented compelling evidence on the need for an independent authority to conduct such reviews and report to the public. The Australian Greens and The Greens (WA) consider that a Commissioner for the Environment would provide an important safeguard for ensuring best environmental practice. For example, a Commissioner could investigate and report on whether any environmental agreements with the States were consistent with rigorous accreditation criteria and whether States were complying with conditions in those agreements.

It is clear that the momentum for achieving ecologically sustainable development in the operations of Commonwealth, which began with the ESD Working Group process in the early 90s, has been lost. The Australian Greens and The Greens (WA) believe that the momentum must be renewed by placing an obligation on Commonwealth departments and agencies to prepare and implement individual strategies for achieving ecologically sustainable development. A Commissioner for the Environment would have an important role in auditing the performance of departments in implementing their strategies. This concept has been put into practice in other countries such as Canada, where the Annual Green Reports of the Commissioner for the Environment and Sustainable Development are providing valuable independent information on the performance of the Federal Government in fulfilling its environmental objectives and promises.

Recommendation

A Commissioner for the Environment should be established as an independent authority to review the performance of the Commonwealth in fulfilling its environmental objectives and priorities. For example, it would review the performance of Commonwealth departments and agencies in implementing their ESD strategies.

Limited Commonwealth Environmental Involvement Matters of National Environmental Significance

There is no question that the EPBC Bill is based on a very narrow view of Commonwealth environmental involvement. There can be no justification to restricting Commonwealth involvement in assessment and approval to a mere six matters of national environmental significance. The set chosen by COAG ignores some of the most significant environmental challenges facing Australia today – climate change, the clearing of native vegetation (which is one of the most serious threats to Australia's biodiversity), the loss and degradation of native forests, and the unsustainable use of water. These matters are undoubtedly of national environmental significance, and should be subject to the Commonwealth's environmental assessment and approval process.

The majority report on the EPBC Bill argues that the Bill is not intended to address all matters of national environmental significance identified in the COAG Heads of Agreement. The Government asserts that broad-scale matters such as climate change and vegetation clearance are being adequately dealt with by programs and policy responses. Yet Australia continues to see, for example, an increase in greenhouse gas emissions and an alarming loss of native vegetation. The involvement of the Commonwealth in Government programs such as the Greenhouse Challenge is not a substitute for the capacity to assess and approve the environmental impacts of particular projects – for example, the building of a large coal power plant. Similarly, the existence of the National Pollutant Inventory is not a substitute for the capacity to assess, approve and impose conditions on a new petrochemical plant. It is clear that administrative approaches alone are not sufficient and require legislative backing.

The majority report also argues that there are practical difficulties in applying environmental impact assessment to climate change, vegetation clearance, and water issues in a way which is consistent with Commonwealth environment powers and which does not overlap with State and local government responsibilities. The Australian Greens and The Greens (WA) note that a number of witnesses and submissions indicated that appropriate thresholds could be applied so that only major activities of national environmental significance require environmental assessment and approval by the Commonwealth.

Recommendation

Any list of matters of national environmental significance requiring environmental impact assessment should include at least climate change, native vegetation, forests, and the sustainable use of water, with appropriate thresholds to exclude matters that are not of national significance. These are in addition to those matters proposed by the Government in the EPBC Bill.

Limits on Environmental Impact Assessment

Even in regard to these six issues the Commonwealth involvement is narrowly defined, and a broad range of exemptions provisions may be applied (see section 2.3 below). For example, as the Bill stands the Commonwealth can only consider the impacts of the activity on the `trigger' – that is, if the trigger relates to threatened species, the assessment and approval of the activity only relates to its impacts on threatened species. Thus, if a coal-fired power station that may have a significant impact on a threatened species is proposed, the Commonwealth will be restricted under the Bill to assessing the impact on that species. Hence the Commonwealth would not be able to assess the impacts on climate change or other matters of national environmental significance, for which the Commonwealth has responsibility.

It is also inconsistent to require the Commonwealth to take into account all economic and social impacts, yet only an extremely narrow range of the environmental impacts. Limiting the Commonwealth to assessing only the impacts `relevant' to the matter of national environmental significance will prevent a holistic approach to environmental impact assessment. This aspect of the legislation represents an unnecessary restriction of the Commonwealth's environment powers and responsibilities. The Commonwealth should be able to examine at least the thirty matters of national environmental significance for which the Commonwealth has responsibility, as acknowledged in the COAG Heads of Agreement.

The Australian Greens and The Greens (WA) consider this aspect of the legislation to be an extraordinary fetter on the Commonwealth's environment powers and responsibilities. The Commonwealth should be able to examine at least the thirty matters of national environmental significance identified in the COAG Heads of Agreement, including greenhouse gas emissions, land and water degradation, and the conservation of native vegetation. COAG has explicitly acknowledged that the Commonwealth has responsibility for these matters.

Recommendation

Commonwealth environmental legislation should require environmental assessment and approval processes to take account of the impacts on at least the thirty matters of national environmental significance identified by the COAG Agreement, not just the impacts relevant to the matter which triggers assessment.

Accreditation of State and Territory Approvals Processes

There appears to be a clear intent on the part of the Commonwealth to use the EPBC Bill to give away its responsibilities for approving actions impacting on matters of national environmental significance. The EPBC Bill does not even provide for sufficient safeguards to ensure that accredited State governments fulfil the national obligations entrusted to them. That these safeguards and constraints are missing reinforces the overall impression of the EPBC Bill that the Commonwealth is giving itself as many avenues as possible to devolve its national and international environmental obligations.

It is unacceptable to devolve approval powers relating to matters of national environmental significance, particularly given the Commonwealth's responsibility for meeting Australia's obligations under international environment agreements and the poor record of States and Territories in protecting the environment.

Recommendation

Any agreements between the State and Commonwealth should meet minimum standards in relation to best practice in environmental protection, public consultation, judicial review, freedom of information, enforcement and standing, and should preserve the Commonwealth's right and responsibility to protect Australia's environment.

Strategic Assessment

The Bill as it stands will allow the Commonwealth to ignore the environmental effects of its own policies and programs, since these are excluded from the definition of `action'. There are some provisions for the strategic assessment of policies, plans and programs in the EPBC Bill, but the non-mandatory nature of the relevant provisions will undermine the intention to encourage the early consideration of policies, plans and programs before they translate into on-the-ground actions with environmental impacts.

The Australian Greens and The Greens (WA) note that while the Bill contains mandatory requirements for strategic assessment of fisheries management plans and policies, it will be possible for Commonwealth Ministers and heads of agencies to evade strategic assessment of other policies, plans and programs. Any population policy, for example, would escape formal scrutiny for its environmental impacts, as would the greenhouse impacts of any policy for the energy industry. The Environment Minister should be able to call in any proposed Commonwealth policy, plan or program, which is likely to result in a significant impact on the environment, so that it may undergo strategic assessment.

The assessment of environmental impacts at an early stage of the legislative process will produce savings for government and community, which will be spared the expense of reversing or repairing any environmental damage resulting from legislation.

Recommendation

The Environment Minister should have the power to `call in' any proposed Commonwealth policy (including any legislative proposal), plan or program which is likely to result in a significant impact on the environment.

Screening of Proposals in Environment Assessment

One of the most critical steps in environmental assessment and approval processes is the screening of proposals, in which the Minister decides whether an action needs approval. If the Minister decides that approval is not needed for an action, the proposal falls outside the regulatory regime of the EPBC Bill and can proceed without assessment. Furthermore, if the Minister has decided that an action does not require approval, under clause 78(3) he or she is unable to revoke that decision once the action has been taken. This is the case, even where the first decision may have been flawed or where substantial new information comes to light which points to the need for environmental impact assessment, such as the discovery of a threatened species in the area where the action is taken.

The Australian Greens and The Greens (WA) believe that public input is necessary to ensure that screening decisions are based on the best available information. For example, local communities are often in the best position to provide information about the location of threatened species and other matters of national environmental significance. The Australian Greens and The Greens (WA) do not agree with the argument in the majority report that members of the public will be able to bring to the attention of the Minister any substantial new information relating to a proposal that may cause the Minister to reconsider his or her decision. In many cases, this would be trying to shut the gate after the horse had bolted.

Recommendation

The decision as to whether an action requires environmental assessment should involve a genuine opportunity for public comment, and the Environment Minister should have capacity to revisit and revoke a decision about whether an action requires an approval, after the action has commenced or been taken.

Large Scope for Ministerial Discretion and Other Exemptions

Many witnesses expressed concern about the numerous avenues for exemption under the EPBC Bill. In addition to the problem of the limitation to six matters that can `trigger' Commonwealth assessment and approval, there are a large number of ways by which the requirement for an approval can be avoided. The way that bilateral agreements can be used in this way is discussed above. The Australian Greens and The Greens (WA) consider it essential that the Commonwealth not be able to evade its environmental responsibilities through Ministerial declarations, conservation agreements, and Regional Forest Agreements (RFAs). Ministerial discretion also needs to be reined in to reduce the potential for making arbitrary decisions and evading obligations to protect the environment and conserve biodiversity.

Regional Forest Agreements

The Bill exempts forestry operations from approval if they are undertaken in accordance with a Regional Forest Agreement (RFA) or within a region in which an RFA is being negotiated. The Australian Greens and The Greens (WA) note that not one environment or conservation group that provided evidence to the Committee expressed confidence in the RFA process.

Hence, the Australian Greens and The Greens (WA) reject the use of RFAs.

Recommendation

The use of RFAs should be rejected.

Identification and Monitoring of Biodiversity

A sound knowledge base is needed to conserve and manage Australia's biodiversity effectively. The identification and monitoring of biodiversity will help to build that knowledge base and provide information that is essential for sound decision making.

However, the relevant clauses in the EPBC Bill only specify that the Minister `may' cooperate with, and provide assistance to, other persons for the purpose of identifying and monitoring biodiversity. This level of ministerial discretion creates great uncertainty as to the extent to which these provisions will be used, if they are used at all.

Recommendation

Legislation must provide for financial and other assistance for identifying and monitoring biodiversity. The Minister should be required to prepare a plan of action and timetable for the identification and monitoring of the key components of biodiversity.

Bioregional Planning

Bioregional planning, which strives to integrate and reconcile biodiversity conservation with the economic and social needs of local communities is widely accepted as an effective and systematic approach to achieving biodiversity conservation. Indeed, the National Biodiversity Strategy recognises the need for, and encourages, bioregional planning.

The Australian Greens and The Greens (WA) support the majority report on the EPBC Bill in its recognition of the need for a definition of a `bioregion' and for genuine public involvement in the development of bioregional plans. However, the majority report does not properly address the discretionary nature of the bioregional planning provisions, which potentially undermines their usefulness. The Australian Greens and The Greens (WA) believe that greater certainty is required in relation to the obligation to develop bioregional plans. In addition, the Minister's discretion to consider a bioregional plan in making any decision under the Bill, as he or she sees fit, must be circumscribed so as not to render bioregional plans almost meaningless.

Recommendation

Bioregional plans to conserve biodiversity should be prepared, according to minimum national standards and with full public consultation.

Wildlife Protection in Commonwealth Areas

A number of witnesses pointed out to the Committee that all native wildlife is protected under State and Territory legislation, unless species are explicitly exempted through a schedule or other mechanism. Yet the Bill only provides for the protection of listed threatened species and ecological communities, listed migratory species, cetacean species, and listed marine species in Commonwealth areas. This is clearly a case where the Commonwealth Government, by proposing to continue its current selective approach, is lagging behind the States and is perpetuating a gap in Australia's legislative regime for wildlife protection. The Australian Greens and The Greens (WA) consider that this gap must be closed.

Recommendation

All native wildlife (animals and plants) be protected on Commonwealth lands and waters, unless specifically exempted in a schedule or other mechanism.

Conservation Agreements

Key conservation groups submitted that conservation agreements can be `a powerful tool to encourage good environmental outcomes on private land'. [1] However, the Bill contains some regressive provisions relating to conservation agreements, in particular the ability to exempt certain activities specified in such agreements from the need for approval. The Australian Greens and The Greens (WA) agree with many witnesses and submitters who argued that this sort of exemption was inappropriate and unnecessary to encourage landholders to enter into conservation agreements.

The Australian Greens and The Greens (WA) do not agree with the assertions in the majority report that there are adequate safeguards to ensure that conservation agreements will not used as a convenient means for exempting developments from the environmental approval process. There appears to be no justification for the exemption, as the provision of financial and other assistance by the Commonwealth is a sufficient and appropriate incentive to enter into these agreements.

Recommendation

Conservation agreements should not be exempted from the environmental assessment and approval process.

Indigenous Rights and Interests

Indigenous groups had significant concerns about the lack of recognition of their rights and interests related to the environment. These included concerns regarding the removal of the protection allowed to Aboriginal people for subsistence hunting, food gathering and land use under s.70 of the National Parks and Wildlife Conservation Act 1975; concerns that the Bill ignores Australia's international obligations under the Convention on Biological Diversity relating to the customary use of biological resources and the protection of traditional knowledge relating to the conservation and sustainable use of biodiversity.

Recommendation

Indigenous rights and interests relating to the environment and biodiversity should be recognised explicitly and adequately in legislation.

Standing

The Australian Greens and The Greens (WA) consider that environmental legislation should provide standing for `any person' to apply for an injunction or seek judicial review of a decision under the legislation. Open standing has been available for many years under NSW environmental legislation and has not resulted in the `opening of the floodgates' with respect to litigation which is vexatious or without substance.

Recommendation

Standing should be available to `any person' to seek an injunction or judicial review of a decision made under Commonwealth legislation.

 

Footnotes

[1] Environmental Defender's Office Ltd, Submission 15, p 36