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
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