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27th October 2006
Secretary
Senate Environment, Communications, Information Technology and the Arts Committee
Department of the Senate
PO Box 6100
Parliament House
Canberra ACT 2600
Submission on the Environment and Heritage Legislation Amendment Bill (No. 1) 2006
Dear Secretary,
The Nature Conservation Council of NSW (NCC) welcomes this opportunity to make this submission on the Environment and Heritage Legislation Amendment Bill (No.1) 2006. As the NSW’s peak environmental organisation since 1955, NCC works closely with member groups, local communities, government and business to ensure a positive future for our environment. NCC serves as the umbrella organisation for more than 130 environmental member groups.
NCC strongly supports the Australian Network of Environmental Defender's Offices submission on this Bill. In the pages below, we have highlighted areas that are of most critical concern to NCC.
Review of Ministerial decisions
There are several amendments which remove the right of review by the Administrative Appeals Tribunal (AAT) of Ministerial decisions.
• Important decisions must be subject to review if the EPBC regime is to be legitimate, credible, transparent and accountable.
Threatened Species Nominations and Listing
The Bill repeals section 185.
• This wipes the assessment of 500 threatened ecological communities from consideration by the SC. While this may lighten the administrative burden and ease political pressure regarding controversial listings, it is heavy handed, arbitrary and environmentally problematic.
The current public nomination provision (section 191) is repealed by the Bill, and replaced with an annual process for thematic nominations.
• The nomination and listing must be based on the conservation status of the species only.
• Furthermore, we have concerns that the amendments are inflexible regarding the ability of the SC to take into account new information that may become available post nomination period. This means that important decisions may be made on out-dated information.
The Bill provides that once all nominations relating to the theme for the year are received, the Scientific Committee has 40 days to give the Minister a “priority assessment list.”
• There is no reference to conservation status as being a relevant consideration for inclusion on the Priority Assesment List. There is no public consultation on the proposed list, and the Minister may have regard to “any matter that the Minister considers appropriate” in reaching this decision. It is very concerning that this amendment makes it possible for a nominated species to be removed from the final Priority Assessment List on commercial or economic grounds, regardless of the conservation status of that species.
The new section 189B provides that SC assessments and advice are to be confidential until a listing is made, unless the Minister gives the SC permission to disclose particular information to particular persons.
• In order to make the decisions of the SC transparent, advice provided by them must be made public.
The Minister can reject a nomination not only if it is vexatious, frivolous and not in good faith, or not made in the manner and form specified by regulations (section 194F(3)(a) and (b)). The Minister may de-list an ecological community where satisfied that the listing “is not contributing, or will not contribute, to the survival of the ecological community” (section 187 (3)(b)).
• We have serious concerns that this clause will be open to abuse.
Section 207A(1) provides that in considering whether to list habitat on the Register the Minister must take into account the potential conservation benefit of listing the habitat. Additional considerations may be added or explicitly prohibited in the regulations. Particular material on the register may not be publicly available if “the interests of relevant landholders may be impeded or compromised” (section 207A(3)(3A)).
• We have concerns that the consideration of conservation benefit is not the definitive consideration as the amendments provide a broad discretion for other considerations, including political considerations, to be taken into account or prescribed by regulations.
• The Act needs a mechanism for automatic consideration of critical habitat identified in Action Plans for listing in the register.
• A minimum timeframe of 2 years should be established, within which existing recovery plans must be revised to identify critical habitat, which must in turn be considered for listing on the critical habitat register.
• Furthermore, a provision should be made for emergency interim protection orders to be made in relation to critical habitat.
The Bill rewords section 209(3).
• The migratory species provisions should be further strengthened by including the highly migratory species listed in Annex I of United Nations Convention on the Law of the Sea in the list of international agreements dealing with migratory species in Section 209 (3) of the EPBC Act. The species in Annex I should be considered Matters of National Environmental Significance, as is the case for all the other migratory species listed on international agreements to which Australia is a signatory.
Section 266B requires that there is a mandatory approved conservation advice for each listed threatened species (except for extinct or conservation dependant categories) and each listed threatened community. Sections 267 and 269AA provide that it is no longer compulsory to have a recovery plan. The Bill provides broad Ministerial discretion regarding recovery plans. Section 270 (2A) requires that certain issues such as the identification of critical habitat in a recovery plan, need only be addressed to the extent to which it is practicable to do so.
• There should be an overall increase in resources to DEH to remove the need to sacrifice individual planning for certain species. The fact that recovery and threat abatement plans are no longer strictly mandatory must not result in decreased funding to DEH. Recovery and threat abatement plans are vital tools for conserving threatened species and must be fully supported as a priority for the Australian Government.
• Provisions relating to wildlife conservation plans should be strengthened: first, to make the preparation of wildlife conservation plans compulsory, rather than at the Minister’s discretion; second, to require Commonwealth agencies to act in a manner consistent with wildlife conservation plans, rather than just taking reasonable steps to act in accordance with wildlife conservation plans; and third, to require Commonwealth agencies to implement wildlife conservation plans in Commonwealth areas.
• Similarly, once a key threatening process is listed, the development of a threat abatement plan for that key threatening process should be compulsory, and not at the discretion of the Environment Minister.
Streamlining of the referrals and assessment process
The Bill provides for a new level of assessment called “assessment on referral information,” (Division 3A, section 92 and 93) and refining the processes for assessment on preliminary documentation (sections 94 – 95C).
• NCC supports the provision to publish referral information and invite comment. The process should be strengthened by requiring the designated proponent to provide a summary of all comments received to ensure all views are addressed (section 95B(1)(a)(ii).
The Bill allows the Minister power to approve with or without conditions the taking of certain actions in accordance with a policy, plan or program that has been endorsed under a strategic assessment.
• NCC strongly supports measures to better assess cumulative impact. However, there is no guarantee in the Bill as to the quality of the strategic assessments and the accredited plans and policies. The benefit of avoiding the need for separate approvals and the defence provisions may be abused and lead to poor environmental outcomes unless the accredited plans and policies are robust and underpinned by comprehensive environmental assessment.
Section 46 is amended to allow a bilateral agreement to make a declaration in relation to a broader range of accredited management arrangements and processes than previously.
• The accreditation provisions under the Bill potentially pave the way for large areas or classes of actions to avoid individual EIA under the EPBC Act. The decision to allow a proponent to avoid undertaking an EIA appears to rest exclusively with the Minister. It is difficult to have confidence that this streamlining of approval requirements will function to protect matters of national environmental significance.
Subdivision B, Section 37A provides for the making of declarations that actions do not need approval under Part 9.
• The ability to approve actions undertaken in accordance with a strategic assessment or bioregional plan may be an acceptable reform in theory, but it is impossible to be certain at this stage without knowing the level of detail associated with the strategic assessment or bioregional plan. The Minister’s capacity to exempt specific actions from assessment should be limited to situations where actions such as the specific action were clearly anticipated at the time of the strategic assessment, the impacts of actions such as the specific action were specifically considered as part of the strategic assessment, and the Minister is not aware of any new information that could reasonably suggest that the assessment of the strategic proposal could now not be considered to have adequately dealt with the issues that might be associated with the specific proposal.
Amendments to section 134 provide that the type of conditions the Minister can attach to approvals can include financial contributions towards projects not directly related to the controlled action.
• NCC supports this with three conditions. First, any such financial contribution must go toward remediation and conservation projects and not simply go to Consolidated Revenue. Second, there should be a connection between the conservation project and the development project itself on equity grounds. Third, the basis for the calculation should be set down in regulations for transparency and accountability.
The bill inserts a new Division 3A, section 158 which provides that approval process decisions are not affected by listing events that happen after decisions are made under section 75 (ie, whether an action is controlled). Any subsequent listing of species or declarations of heritage areas or Ramsar wetlands cannot result in the approval being “revoked, varied, suspended, challenged, reviewed, set aside or called in question.” The relevant section is to have effect “despite any other provision of this Act and despite any other law.”
• This approach is inconsistent with the principles of ESD, privileging development interests and certainty over the environment, and almost certainly ensuring the loss of species over time. A better approach would be to allow the Minister to exercise such powers in limited circumstances with the proponent being entitled to compensation, for example, for sunk costs.
The amendments expand the referral and assessment process to allow proponents to submit proposals containing several alternative locations or timeframes.
• This is a reasonable amendment providing that the level of information prepared in relation to each option is comprehensive and not reduced.
The Bill allows the Minister to make policy statements to guide operation of the amended processes.
• NCC supports this amendment, and recommends that DEH clarify the legal status of the policy statements for users.
Proposed Division 1A, sections 74B, C and D, provide that the Minister can promptly refuse an action that would have clearly unacceptable impacts.
• NCC supports the early refusal provision.
The Bill establishes a requirement for the Minister to provide a proponent with an opportunity to comment on the proposed approval decision and conditions. The Minister would also be able to seek public comment on proposed approval decisions and conditions.
• NCC submits that the Minister should also be required to consult with the public on proposed conditions. Additional opportunities for public involvement can only enhance the legitimacy of the proposal and further refine the conditions of approval.
There are a number of amendments in the Bill relating to commercial in confidence information.
• There is potential for abuse of these provisions, and the potential to undermine the transparency and accountability of the regime. Commercial-in-confidence can be used to hide information which undermines a proponent’s case.
The Bill repeals sections 172 and 173 of the Act and substitutes new sections 172
and 173.
• Instead of making data gathering and collating discretionary, the Act should be strengthened by providing more information about species and communities to allow for better decision-making. For example, the Act should require inventories for threatened species to not only identify and state the abundance of relevant species, but also to identify range, habitat, critical habitat, and corridors where known.
Compliance and Enforcement
The Bill proposes to repeal section 478 of the Act, which currently prevents the Federal Court from requiring undertakings for damages as a condition of granting an interim injunction. Under the amendments, the court will retain a discretionary power not to require an undertaking.
• This establishes a significant deterrent and barrier for 3rd parties to seek injunctions. NCC strongly opposes this amendment.
Division 22, section 498B refers to the conduct of directors, employees and agents.
• NCC supports this amendment
The Bill provides that landholders will be liable for the actions of other people if the landholder is: reckless or negligent as to whether a contravention would occur, in a position to influence the conduct of the other person regarding the contravention, and failed to take steps to prevent the contravention (Division 18A, sections 496B-D).
• NCC supports this amendment, however all of the offences should be strict liability offences.
There are a number of amending provisions that make it clear that offences are strict liability offences.
• NCC strongly supports these amendments.
There are extensive provisions in the Bill relating to the powers of officers to carry out compliance and enforcement activities.
• NCC is supportive of greater enforcement of the Act. Adequate resources must be dedicated on the ground for this effort.
Additional amendments
Practice to date has shown that there are real issues concerning access to relevant information. Often, access has been effectively restricted due to exhibition of relevant documents in areas where they will not be viewed, and a failure to make information available electronically.
• All documents that are lodged, including preliminary documentation and Public Environment Reports, should be published on the web to ensure that all people who have an interest in commenting on a particular development have access to the information.
Public exhibition periods do not cease during the Easter or Christmas holiday periods under the EPBC Act.
• Consultation periods do not include Christmas holiday periods.
The DEH has a policy of not releasing assessment reports that are provided to the Minister until after a decision has been made on an approval.
• This means that parties are not able to comment on whether the Minister has adequate information before him to make a decision, until after the decision has been made. Again, this diminishes the role of the public in assisting the decision-making process, and may potentially lead to poor decisions being made.
Improvements required to MNES
• Wetlands of international importance: The current trigger should be expanded beyond wetlands of international importance, to include wetlands of national importance.
• Listed migratory species: The trigger should be further strengthened by including the highly migratory species listed in Annex I of United Nations Convention on the Law of the Sea in the list of international agreements dealing with migratory species in Section 209 (3) of the EPBC Act. The species in Annex I should be considered Matters of National Environmental Significance, as is the case for all the other migratory species listed on international agreements to which Australia is a signatory.
• Marine Environment: The trigger should be extended to include State and territory managed fisheries operating in Commonwealth marine areas, unless those fisheries are appropriately accredited. The provisions for the accreditation of fisheries management regimes need to be strengthened to include strict and comprehensive criteria to be met prior to accreditation; extensive public consultation prior to accreditation; and 2 yearly reviews and audits of accredited management regimes. The list of marine species under s250 should be amended to include shark species such as basking, whale and blue sharks and others. This would help prevent recreational shark killing in Commonwealth waters.
• Greenhouse gas emission trigger: This trigger needs to be added to recognise any development that produces over 100,000 tonnes of CO2 equivalent per year as a matter of national environmental significance. This could be supplemented by provision for all projects on a designated development list (including expansion of existing projects and significant land use change, including significant land clearing and motorway projects) to trigger the approval provisions. This would ensure the trigger was more comprehensive in capturing diffuse emissions.
• Abstraction of surface and ground water resources: This trigger needs to be added and the focus of the trigger should be on major development projects in the Murray Darling Basin (using MDBC Agreement as the basis for power to Act). Criteria for assessing impact should be based on interference with rivers caused by major works (such as dams over a certain size); the extraction or diversion of volumes of water over a certain amount of that are likely to impact upon compliance with the MDBC cap. This is consistent with the NWI objective to have better environmental impact assessment (EIA) for large water infrastructure.
• Land clearing: This trigger should be added and would require three main alternative elements. First, a trigger for the clearing of native vegetation over 100 ha in any two year period; second, a trigger for the clearing of any area of native vegetation which provides habitat for listed threatened species or ecological communities, or listed critical habitat; and third, a schedule of activities that would trigger the Act regardless of the hectares proposed to be cleared (for example, major coastal resort developments).
Conclusion
NCC has some serious concerns about how the proposed amendments to the EPBC Act will change the way Australia’s natural places and species are protected. At a time when we are on the verge of a major biodiversity crisis in Australia we need to be strengthening our environmental laws, rather than weakening them to provide quicker approvals for development interests. The attempt to cater for ‘development interests’ must not be at the expense of accountability, public participation and full consideration of environmental impacts. The amendments also fail to address the most crucial and urgent environmental matters of national significance, such as climate change.
For more information please contact Jaime Hilbert, NCC Biodiversity Conservation Officer on (02) 9279-0955. |
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