Chapter 2


Chapter 2

Background

The Environment Protection and Biodiversity Conservation Act 1999

2.1        The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) is the Commonwealth's primary piece of environment legislation and was designed to address perceived problems with Australia's approach to environment protection.[1] The Act replaced the Environment Protection (Impact of Proposals) Act 1974 and consolidated several other environment-related Acts.[2]

2.2        The objects of the Act include:

  • to provide for the protection of the environment, especially those aspects which are a matter of national environmental significance (MNES);
  • to promote the conservation of biodiversity; and
  • to provide for the protection and conservation of heritage.[3]

2.3        In particular the Act also gives the Commonwealth government responsibility for listed nationally threatened species and ecological communities as a MNES.[4]

2.4        In general, the Act prohibits a person from taking an 'action' without approval from the minister if the action is likely to have a significant impact on a matter of national environmental significance unless approved by the Minister for the Environment.[5]

Review of the operation of the Act

2.5        To date there have been two wide ranging reviews of the Act: one conducted by this committee's predecessor, the Senate Standing Committee on Environment, Communication and the Arts, and a second independent inquiry commissioned by the government and conducted by Dr Allan Hawke.

Senate Standing Committee on Environment, Communication and the Arts inquiry

2.6        Between 18 June 2008 and 30 April 2009 the Senate Standing Committee on Environment, Communications and the Arts conducted an inquiry into the operation of the Act which culminated in the publication of two reports.

2.7        The inquiry was tasked with looking into the 'operation of the Environment Protection and Biodiversity Conservation Act 1999 and other natural resource protection programmes'.[6] Amongst other things, the inquiry was also required to have particular regard to:

  • the findings of the National Audit Office Audit 38, 2002—03: Referrals, Assessments and Approvals under the Environment Protection and Biodiversity Conservation Act 1999; and
  • the cumulative impacts of EPBC Act approvals on threatened species and ecological communities, for example on Cumberland Plain Woodland, Cassowary habitat, Grassy White Box Woodlands and the Paradise Dam.[7]

2.8        The committee tabled its first report on 18 March 2009 which looked at the operation of the Act, and its second and final report on 30 April 2009 which focused on the specific issue of the Act and its interactions with the Regional Forest Agreement Act 2002 (Cth).[8]

Senate inquiry investigation into the listing process

2.9        As part of its inquiry the committee considered the effectiveness of the listing process for threatened species and ecological communities.[9] The committee received evidence from submitters concerned about delays in the listing process and questioning whether some nominations had been inappropriately rejected.[10]

2.10      Some of the concerns stemmed from changes made to the Act by the Environment and Heritage Legislation Amendment Act (No. 1) 2006. These amendments, which were one of the most significant changes to the Act since it came into effect in July 2000, were designed to make the Act 'more efficient and effective, to allow for the use of more strategic approaches and to provide greater certainty in decision-making.[11]

2.11      In its summary of the listing process, the committee stated that it was concerned that the ministerial discretion and indefinite extensions of time for the assessment of threatened species and ecological communities undermine the credibility of the listing process. Accordingly the committee recommended that:

...the process for nomination and listing of threatened species or ecological communities be amended to improve transparency, rigour and timeliness. Changes that should be considered include:

  • Either requiring publication of the Scientific Committee's proposed priority list or reducing ministerial discretion to revise the priority list under section 194K; and
  • Reducing the maximum period allowed for an assessment under section 194P(3).[12]

The Hawke Review

2.12      On 31 October 2008, the Minister for the Environment, Heritage and the Arts, the Hon Peter Garrett AM MP commissioned an independent review of the Act which was to be headed by Dr Allan Hawke (the Hawke review).

2.13      The review was undertaken in accordance with section 522A of the Act which stipulates that an independent review of the operation of the Act and the extent to which the objects of the Act have been achieved must be undertaken within 10 years of its commencement.

2.14      The final report of the independent review was published in October 2009. The Australian Environment Act – Report of the Independent Review of the Environment Protection and Biodiversity Conservation ACT 1999 (also known as the Hawke report) made a number of wide-ranging recommendations aimed at improving the operation the Act.

2.15      Of particular relevance to the current inquiry, the review received a number of submissions calling for an 'emergency' listing power to be added to the Act for threatened species and ecological communities.[13] The cause for concern was the inability of the current listing process to provide for circumstances where there is the potential for immediate significant threats to a species or ecological community.

2.16      The review concurred with these sentiments, stating that 'emergency listing may be important in circumstances in which a nationally significant value is threatened by imminent destruction'.[14] It was further noted that such a provision exists under section 324JL of the Act for the emergency listing of heritage places.

2.17      The review concluded that:

The minister should be given a new discretionary power to make emergency listings of threatened species and ecological communities. In order to ensure that calls for emergency listing do not waste scarce resources nor distract efforts from other priorities, nominators should be expected to:

  • establish that the native species or ecological community would meet the criteria for the listing category for which it is nominated; and
  • establish the case that a threat to a native species or ecological community is severe and imminent.[15]

2.18      Recommendation 16 of the review, which has a direct bearing on the bill, ultimately stated that:

...the Act be amended to give the Environment Minister the power to make emergency listings of threatened species and ecological communities, provided the Minister believes that:

(1) the native species or ecological community meets the criteria for the listing category for which it is nominated; and

(2) a threat to the native species or ecological community is severe and imminent.[16]

Australian government response to the Hawke review

2.19      On 24 August 2011 the Australian government released its response to the Hawke review.[17] The government agreed in principle to recommendation 16 of the review and committed to amending the Act to allow for the emergency listing of threatened species and ecological communities (see Appendix 3).[18] The response stated that:

The government considers that the criteria on which the minister makes an emergency listing of a species or ecological community should be whether the native species or ecological community meets the listing category's criteria, and whether a threat is both likely and imminent and would result in a significant adverse impact.[19]

2.20      The government also noted that:

...the process and test for emergency listing must be stringent to avoid any misuse of process or vexatious claims. Consistent with other emergency listing procedures in the Act, the amendment will allow the minister to seek the advice of the proposed Biodiversity Scientific Advisory Committee...wherever feasible, and to consult with relevant state, territory and Australian Government agencies as appropriate.[20]

2.21      The government indicated that the emergency listing reforms to the Act would operate in a similar way to the existing provisions for the emergency listing of heritage places.[21] The Scientific Committee would also be required to complete a full independent assessment of the species or ecological community with 12 months of the emergency listing occurring.[22]

The listing process for threatened species and ecological communities

2.22      The Act requires the Environment Minister to establish a list of threatened species divided into the six categories including: extinct, critically endangered, endangered and vulnerable.[23]

2.23      The Act also requires the establishment of a list of threatened ecological communities which must be assigned a similar set of categories.[24]

2.24      Nominations for listing may be made during each assessment period, usually conducted over an annual cycle. The process for nomination and listing normally followed during an assessment period involves a number of steps as explained by Mr Peter Burnett of the Department of Sustainability, Environment, Water, Population and Communities:

...the existing process is essentially a public nomination process. Every year a call goes out for public nominations where people think that a species or ecological community may be threatened and eligible for listing. The minister is required under the act to keep a list of threatened species and ecological communities. There is also an expert committee currently known as the Threatened Species Scientific Committee, or TSSC...The steps in the process are that there is a call for public nominations; those nominations come in and are screened by the TSSC...and advice is given to the minister in the form of what is called a proposed priority assessment list, or PPAL. So it is basically the expert group saying to the minister, 'We recommend that you assess the following species or ecological communities for possible listing.' The minister then makes the decision. He either agrees to that list or changes it, but in either case that then becomes known as the finalised priority assessment list, or FPAL. So that then basically gives the committee its work plan or agenda.

Then over the coming year the scientific committee undertakes assessments of those species. They are not all completed within the year, even though there is a new list every year. They are not all assessed and so completed within the year. As you can imagine, some of them are more complicated and take longer than that. But as each assessment is completed...the scientific committee provides its advice to the minister on whether it should be listed as a threatened species or ecological community and, if so, in what category. There are different categories, such as 'vulnerable' or 'critically endangered. The minister makes the listing decision. Once that listing decision is made, the species becomes a matter of national environmental significance.[25]

2.25      If listed, threatened species and ecological communities receive certain protections under the Act including:

  • that a proposed action that has, will have or is likely to have a significant impact on a listed threatened species or community must be referred to and approved by the minister (sections 68 and 75);[26]
  • that the minister may make or adopt a recovery plan or threat abatement plan to provide for the protection of a listed threatened species or community (sections 269A, 269AA, 270A, 270B); and
  • that the minister may make financial assistance available to state governments and individuals to implement recovery plans and threat abatement plans (section 281).

2.26      A species or ecological community listed as threatened under the Act is classified as a matter of national environmental significance (MNES).

2.27      In general, species or ecological communities that are not listed as threatened under the Act do not benefit from the protection mechanisms afforded by it to listed threatened species and ecological communities, regardless of their conservation status.

2.28      The Commonwealth listing of threatened species and ecological communities occurs independently of any state government listings.

EPBC environmental assessment process[27]

2.29      Any proposed action that is likely to have a significant impact on a MNES must be subject to an environmental assessment process under the EPBC Act.

2.30      There are two broad stages to the overall environmental assessment process under the Act:

  • the referral of the action to the minister to determine whether the proposed action is a 'controlled action' or not;[28] and
  • a detailed environmental assessment process for actions deemed to be controlled actions, followed by the minister's decision whether or not to approve the action, and what conditions to attach to any approval.[29]

Referral of proposed developments

2.31      The EPBC Act environment assessment process commences when a proponent wishes to undertake an action that is likely to have a significant impact on a matter of national environmental significance (MNES), such as listed threatened species and ecological communities.[30]

2.32      If the action is likely to have a significant impact on a MNES, the proponent must make a referral to the minister via the department.

2.33      The minister then must make a decision within 20 business days on whether the proposed development constitutes a 'controlled action' and hence whether assessment and approval for the action is required.

2.34      The minster may decide that approval is not required as the proposed action will not have or is not likely to have a significant impact on a MNES. This is referred to as a 'not controlled action' and no restrictions are placed upon the proposed development. The minister may also decide that an action is not a controlled action provided the project is undertaken in a particular manner.[31]

2.35      If the minister decides that an action will have or is likely to have a significant impact upon a MNES, the minister may declare the action a 'controlled action'. The controlled action must then be subject to an assessment and approval process.

Assessment of proposal and decision to approve

2.36      Under the EPBC Act there are several methods for assessing a proposed development which has been determined to be a controlled action. An assessment may be conducted by using:

  • a state/territory assessment process accredited under a bilateral agreement;
  • an accredited assessment process (case by case);
  • referral information;
  • preliminary documentation;
  • an Environmental Impact Statement (EIS);
  • a public environment report or
  • a public inquiry.

2.37      In general, once an assessment by one of these methods has occurred the department must prepare a recommendation report for the minister.[32] The minister must then make a decision whether to approve, approve with conditions or not approve the proposed action.

2.38      On receiving final documentation, the minister must make this final decision within:

  • 40 business days for assessments by public environment report, EIS, preliminary documentation or public inquiry;
  • 30 business days for assessments by a state or territory assessment process; or
  • 20 business days for assessments by referral information.[33]

2.39      Ultimately the minister may decide to approve an action subject to conditions or in rare circumstance, may decide not to approve the proposed development.

Section 158A

2.40      As noted previously, the bill seeks to amend section 158A of the Act to stipulate that species and ecological communities that are listed via the proposed emergency listings process are afforded protection under the Act throughout the federal environmental assessment process and after development approvals are granted by the minister.

2.41      As part of the 2006 amendments to the Act, new provisions were inserted to clarify the application of the Act in circumstances where a listing of threatened species and ecological communities occurs after the minister has made a controlled action decision.[34] Section 158A was included in the Act to ensure that new listings of threatened species and ecological communities or the upgrading of listings:

...do not affect specified assessments and approval decisions that have already been made and do not provide grounds for reconsideration of a 'controlled action' decision...[35]

2.42      According to the Explanatory Memorandum the amendment was intended to provide greater certainty.[36] The Parliamentary Library's Bill Digest for the bill further stated that the amendment 'just removes any legal uncertainty on the issue rather than changing the operation of the EPBCA [the Act]'.[37]

2.43      Section 158A specifies that if the minister has made a decision under section 75 (the primary decision) and decided whether an action is a controlled action, the validity of the primary decision (or any other approval process decision made in relation to the relevant action) is not affected by a subsequent listing event, nor can it be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of the listing event.[38]

2.44      The section also ensures that after a listing event occurs (that is the listing of a new threatened species or ecological community or an upgrade in its listing status), the listing event is to be disregarded in making any further approval process decision in relation to the relevant action.[39]

Current listing process for species or ecological community under significant and imminent threat

2.45      Under the current legislation, a threatened species or ecological community facing a significant and imminent threat would be required to go through the normal nomination and evaluation process outlined above, which can take up to 4 years to consider.[40]

2.46      The Hawke report noted that the provisions of subsection 194G(2) of the Act do allow for the Scientific Committee to consider nominations additional to those put forward in the proposed priority assessment list.[41] The Hawke report also acknowledged that the public is able to contact the minister directly to advise of potential or imminent impacts on a species or ecological community.[42]

2.47      Section 503 of the Act also allows the minister to direct the Scientific Committee to advise on matters relating to the administration of the Act, including inquiring into the status of a species, ecological community or threatening process.

Case study: Freshwater crab and shrimp

2.48      In her second reading speech on the bill, Senator Waters commented that the impetus and urgency for the changes to the Act was the discovery of two new species on Queensland's Cape York Peninsula: a freshwater crab and a shrimp.

2.49      The two new species were identified through the EIS prepared by the Rio Tinto mining company for its planned South of Embley Project, a bauxite mine 50 kilometres south of Weipa in northern Queensland.[43] According to the EIS Summary, surveys of the project area found:

Six species of crustacean. Of these, one species of freshwater crab was assessed by the Queensland Museum as possibly a new species. One specimen of Mysid (shrimp) crustacean was identified by the Queensland Museum and has not previously been recorded in Australia. These species are unlikely to be significantly impacted by the Project.[44]

2.50      The Queensland Museum senior curator of crustacean, Mr Peter Davie, has stated publicly that although he believes the crab is a new species, it would be approximately two years before this would be confirmed.[45]

2.51      The newly found crustacean is believed to only grow to about the size of a 10 cent piece.[46]

2.52      In a supplementary EIS released in February 2012, Rio Tinto indicated that the area of the proposed development where the new species were discovered will be protected from mining by an environmental buffer system that will exceed regulatory requirements.[47] The exclusion zone is intended to be 200 metres wide and include a stand of Darwin Stringybark trees.[48]

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