Why the environment protection and biodiversity conservation Act's referral, assessment and approval process is failing to achieve its environmental objectives

Environmental and Planning Law Journal

Volumn 21, Issue 4, 2004, Pages 288-311

  Macintosh, Andrew ^a  

^a NONE

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EID: 57349158244     PISSN: 0813300X     EISSN: None     Source Type: Journal    
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References (157)

1. The Environmental Reform (Consequential Provisions) Act 1999 (Cth), which accompanied the EPBC Act, repealed five Acts.
2. Environment Protection (Impact of Proposals) Act 1974 (Cth).
3. Endangered Species Protection Act 1992 (Cth).
4. National Parks and Wildlife Conservation Act 1975 (Cth).
5. World Heritage Properties Conservation Act 1983 (Cth).
6. Whale Protection Act 1980 (Cth).
7. The Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 (Cth), which received Royal Assent in July 2001.
8. Repealed the Wildlife Protection (Regulation of Exports and Imports) Act 1982 and inserted the wildlife trade provisions now found in Pt 13A of the Act.
9. See EPBC Act, Pt 13.
10. See EPBC Act, Pt 13A.
11. See EPBC Act, Pts 13 and 15.
12. See EPBC Act, Pt 15.
13. There are a number of exceptions to, and exemptions from, this general prohibition. It should also be noted that there are exemptions from the entire referral, assessment and approval process as well as exemptions from the assessment process only (eg, where an action is assessed under a State process in accordance with an "assessment" bilateral agreement). Further details of the exemptions are provided in Part 4.2.3 of this article below.
14. See EPBC Act, ss 18 and 18A. Note that the list of threatened species contains six categories: extinct, extinct in the wild, critically endangered, endangered, vulnerable and conservation dependent.
15. See EPBC Act, ss 18 and 18A. Note that the list of threatened ecological communities contains three categories: critically endangered, endangered and vulnerable.
16. See EPBC Act, ss 20 and 20A.
17. Note that the list of migratory species contains all species included in the appendices to the Convention on the Conservation of Migratory Species of Wild Animals (1979) (Bonn Convention).
18. All species included on the lists established under the Japan-Australia Migratory Bird Agreement (1974) (JAMBA).
19. Chinese-Australia Migratory Bird Agreement (1986) (CAMBA) and all species identified in a list or instrument established under an international agreement approved by the Minister for the purposes of the list of migratory species.
20. see s 209.
21. See EPBC Act, ss 16 and 17B.
22. Note that "Ramsar wetlands" are wetlands designated by the Commonwealth under Art 2 of the Convention on Wetlands of International Importance especially as Waterfowl Habitat (1971) (Ramsar Convention) for inclusion on the List of Wetlands of International Importance. The Minister can also declare wetlands to be Ramsar wetlands for the purposes of the referral, assessment and approval process in certain circumstances
23. see s 17A.
24. See EPBC Act, ss 12 and 15A.
25. Note that "World Heritage properties" are properties included on the list kept under Art 11 of the Convention for the Protection of the World Cultural and Natural Heritage (1972) (World Heritage Convention). The Minister can also declare properties to be World Heritage properties in certain circumstances
26. see s 14.
27. See ss 21 and 22A.
28. "Nuclear actions" include establishing or significantly modifying a nuclear installation, transporting spent nuclear fuel or radioactive waste products arising from reprocessing, and mining or milling uranium ore (see s 22).
29. See EPBC Act, ss 23 and 24A.
30. The National Heritage places "trigger" will be inserted by the Environment and Heritage Legislation Amendment Act (No 1) 2003 (Cth), which received Royal Assent on 23 September 2003 and commenced on 1 January 2004.
31. See Sch 1 of the Environment and Heritage Legislation Amendment Act (No 1) 2003 (Cth).
32. See EPBC Act, ss 75 and 77.
33. Assessments under accredited assessment processes are described as assessments "under the Act". However, in reality, they involve the accreditation of another Commonwealth assessment process or an assessment process of a State or Territory for the purpose of the assessment of the relevant impacts of the proposed action. At the completion of the accredited assessment process, a report is required to be submitted to the Minister on the impacts of the proposed activity on the relevant matters protected under Pt 3 of the EPBC Act. The Minister then uses this report as the basis for his or her decision on whether or not to approve the activity.
34. On 21 March 2003, the Minister refused an application for approval under Pt 9 for the first time. The action involved the use of an electrical grid system to kill approximately 5,500 spectacled flying-foxes (Pteropus conspicillatus) in the period November to December 2002. However, as is self evident, by the time the Minister made the approval decision the timeframe for the action had passed. At 30 September 2003, this was the only instance where an application for approval had been refused under Pt 9.
35. At present, the "conditions" imposed under the manner specified process are not binding. If the action is not carried out in the manner specified by the Minister, the person taking the action will only be guilty of contravening the Act if it can be proven that the action had a significant impact on a matter protected under Pt 3. That is, a substantive breach of the provisions of Pt 3 must be proven. It is not enough to simply prove the conditions have been breached. The Environment and Heritage Legislation Amendment Act (No 1) 2003 changed this by prohibiting a person from contravening a condition imposed under the manner specified process.
36. See, eg, Christoff P, In Reverse (Australian Conservation Foundation, 19 August 2002) pp 38-39, http://www.acfonline.org.au/asp/pages/selectlist.asp?strFilterNmValue=IdTopic&strFilterValue=9&IdDocTyp=13 viewed 15 July 2004.
37. See Humane Society International Inc v Minister for the Environment and Heritage (2003) 126 FCR 205.
38. [2003] FCA 64, which considered the legality of statements in administrative guidelines issued by the Department of the Environment and Heritage that people who killed spectacled and grey-headed flying-foxes in accordance with valid permits issued by the States did not have to make a referral under the EPBC Act. Spectacled and grey-headed flying-foxes are both listed as vulnerable under the EPBC Act.
39. Three of the agriculture and forestry referrals were withdrawn before an approval decision was made (Ref Nos 2001/381, 2001/440 and 2001/480). Note that figures provided by the Department of the Environment and Heritage indicate that there have been 27 agricultural and forestry referrals. However, the Department of the Environment and Heritage's public notices website only lists 25. The author has used the lower number for these purposes, as he was unable to obtain written evidence of the existence of the other two referrals.
40. The figures for this graph were provided by the Department of the Environment and Heritage and cross-checked against the figures on the Department's public notices website. There is a possibility they contain errors.
41. Three of the agriculture and forestry referrals were withdrawn before an approval decision was made (Ref Nos 2001/381, 2001/440 and 2001/480). Note that figures provided by the Department of the Environment and Heritage indicate that there have been 27 agricultural and forestry referrals. However, the Department of the Environment and Heritage's public notices website only lists 25. The author has used the lower number for these purposes, as he was unable to obtain written evidence of the existence of the other two referrals.
42. See, eg, The National Strategy for the Conservation of Australia's Biological Diversity (1996) and Australian State of the Environment Committee, n 23.
43. See Pittock B (ed), Climate Change - An Australian Guide to the Science and Potential Impacts (Australian Greenhouse Office, Commonwealth of Australia, 2003).
44. The National Strategy for the Conservation of Australia's Biological Diversity (1996); and Australian State of the Environment Committee, n 23.
45. Note also that, at 30 June 2002, no permits had been issued under Pt 13 in relation to fishing operations that could harm or injure a cetacean or a member of a listed threatened species, ecological community, migratory species or marine species.
46. Section 43A allows a person to take an action that was specifically authorised under a law of the Commonwealth, a State or a Territory prior to the commencement of the EPBC Act, provided no other environmental authorisation was needed immediately prior to the date of commencement of the Act to allow the action to be taken lawfully.
47. Under Pt 10 of the Act, the Minister is required to undertake a strategic assessment of the impacts of actions taken under fisheries management plans and policies that apply to Commonwealth managed fisheries on the matters protected under Pt 3. At the completion of the strategic assessment process, it is expected that fishing operations that are carried out in accordance with fisheries management plans and policies that are endorsed by the Minister will be exempt from the provisions of Pt 3 concerning the protection of the environment in Commonwealth marine areas. Note that the Government has made it clear it has no intention of pursuing breaches of the Act concerning the bycatch of protected species in Commonwealth managed fisheries until the strategic assessments have been completed.
48. See AFMA News (newsletter of the Australian Fisheries Management Authority), Vol 4, Issue 8 (December 2000) p 2.
49. See: Queensland Department of Natural Resources and Mines, Land Cover Change in Queensland 1999-2001, State-wide Landcover and Trees Study Report (Queensland, January 2003).
50. Australian State of the Environment Committee, n 23.
51. National Land and Water Resources Audit, Australian Native Vegetation Assessment 2001, Independent Report to the Commonwealth Minister for the Environment and Heritage and the Commonwealth Minister for Agriculture, Fisheries and Forestry (Commonwealth of Australia, 2001).
52. Queensland Department of Natural Resources, Land Cover Change in Queensland 1997-1999, State-wide Landcover and Trees Study Report (Queensland, September 2000).
53. Queensland Herbarium, Remnant Vegetation in Queensland: Analysis of Pre-clearing Remnant 1997-1999 Regional Ecosystem Information (Queensland, 2001).
54. New South Wales Auditor-General, Performance Audit Report: Department of Land and Water Conservation: Regulating the Clearing of Native Vegetation (The Audit Office of NSW, August 2002).
55. Benson J, "Clearing Rates in NSW - The Full Picture" (2001) 6 Hunter Flora 4 (Hunter Catchment Management Trust, Paterson New South Wales).
56. Cox S, Sivertsen D, and Bedward M, "Clearing in the NSW Northern Wheatbelt" (2001) 7(1) Cunninghamia 101.
57. Bedward M, Sivertsen D, Metcalfe L, Cox S and Simpson C, Monitoring the Rate of Native Woody Vegetation Change in the NSW Wheatbelt, Final Project Report to the Natural Heritage Trust/Environment Australia (National Parks and Wildlife Service, Sydney, 2001).
58. Environmental Research and Information Consortium Pty Ltd, Rates of Clearing of Native Woody Vegetation 1997-2000, Report for the New South Wales Department of Land and Water Conservation (Canberra, 2001).
59. New South Wales Department of Land and Water Conservation, Rates of Clearing of Native Woody Vegetation 1995-2000 (May 2001).
60. New South Wales Department of Infrastructure, Planning and Natural Resources, 2003 - Proposed Land Use - Area Approved For Clearing (2003).
61. New South Wales Department of Infrastructure, Planning and Natural Resources, 2002 - Proposed Land Use - Area Approved For Clearing (2002).
62. New South Wales Department of Infrastructure, Planning and Natural Resources, 2001 - Proposed Land Use - Area Approved For Clearing (2001).
63. New South Wales Department of Infrastructure, Planning and Natural Resources, 2000 - Proposed Land Use - Area Approved For Clearing (2000).
64. Peatling S, "Illegal Land Clearing Strips Vast Swathes of State", The Sydney Morning Herald (17 November 2003).
65. National Land and Water Resources Audit, Australian Native Vegetation Assessment 2001, Independent Report to the Commonwealth Minister for the Environment and Heritage and the Commonwealth Minister for Agriculture, Fisheries and Forestry (Commonwealth of Australia, 2001); Queensland Department of Natural Resources and Mines, n 28.
66. Queensland Department of Natural Resources and Mines, n 28.
67. Australian State of the Environment Committee, n 23.
68. National Land and Water Resources Audit, Australian Native Vegetation Assessment 2001, Independent Report to the Commonwealth Minister for the Environment and Heritage and the Commonwealth Minister for Agriculture, Fisheries and Forestry (Commonwealth of Australia, 2001).
69. See National Land and Water Resources Audit, Australian Terrestrial Biodiversity Assessment 2002 (Commonwealth of Australia, 2002).
70. See Queensland Department of Natural Resources and Mines, n 28.
71. Queensland Department of Natural Resources and Mines, Land Cover Change in the Fitzroy River Catchment 1999-2001, State-wide Landcover and Trees Study Report, (Queensland, 2002).
72. Queensland Department of Natural Resources and Mines, Land Cover Change in the Queensland Murray Darling Basin 1999-2001, State-wide Landcover and Trees Study Report (Queensland, 2002).
73. See Environmental Research and Information Consortium Pty Ltd, Rates of Clearing of Native Woody Vegetation 1997-2000, Report for the New South Wales Department of Land and Water Conservation (Canberra, 2001).
74. New South Wales Auditor General, Performance Audit Report: Department of Land and Water Conservation - Regulating the Clearing of Native Vegetation (Audit Office of New South Wales, 2002).
75. See Queensland Department of Natural Resources and Mines, n 28.
76. The Hon Stephen Robertson MP, "Beattie flags tough new measures to stop illegal clearing", Media Release (22 January 2003).
77. See Bartel R, "Compliance and Complicity: An Assessment of the Success of Land Clearance Legislation in New South Wales" (2003) 20 EPLJ 116.
78. These figures were obtained from the Department of the Environment and Heritage's public notices website. There is a possibility they are incorrect, as the website many contain errors and some referral notices do not state clearly whether the relevant action involves land clearing.
79. At 30 September 2003, three had been approved without conditions.
80. Ref No 2001/229, which involved clearing to establish a hardwood plantation on Melville Island.
81. The scope of any regulations made under s 301A will be limited by the extent of the Commonwealth's Constitutional powers to make laws for these purposes.
82. Ref Nos 2001/422 (Paradise Dam) and 2002/565 (Meander Dam). With regard to the adequacy of the conditions on Paradise Dam, see O'Malley B, "Last Gasp for Lungfish?" The Courier Mail (18 September 2003).
83. See ss 43A and 43B.
84. Upon searching the Department of the Environment and Heritage's public notices website on 1 December 2003, the author could only identify eight referrals concerned fire management activities: Ref Nos 2001/401, 2001/440, 2001/448, 2001/450, 2003/1030, 2003/1181, 2003/1184 and 2003/1272. (There is a possibility other referrals have been made concerning actions involving the use of fire.)
85. See EPBC Act, s 82.
86. See EPBC Act, s 82.
87. See Australian National Audit Office, Performance Audit: Referrals, Assessments and Approvals under the Environment Protection and Biodiversity Conservation Act 1999, Audit Report No 38, 2002-2003 (Commonwealth of Australia, 2003) p 20.
88. See Minister for the Environment and Heritage, Investing in Our Natural and Cultural Heritage - Commonwealth Environment Expenditure 2001-2002 (Commonwealth of Australia, 2001) p 68.
89. Minister for the Environment and Heritage, Towards a Sustainable Australia - Commonwealth Environment Expenditure 2003-2003 (Commonwealth of Australia, 2002) p 65.
90. Statistics on the timeless of decisions concerning the referral, assessment and approval process are in the Commonwealth Department of the Environment and Heritage's Annual Reports, which are available on the Department's website http://www.deh.gov.au/epbc/publications/annualreports/index.html viewed 15 July 2004.
91. See Minister for the Environment and Heritage v Greentree [2003] FCA 857 (8 August 2003).
92. See, eg, the controlled action decision concerning Ref No 2002/849, where the decision to declare that an action involving clearing habitat of the endangered red-tailed black cockatoo (south-eastern) (Calyptorhynchus banksii graptogyne) was not a controlled action was based on the fact that the proponent had undertaken to fence off another area containing feeding habitat. See also the controlled action decisions concerning Ref Nos 2002/842 and 2002/733, where the decision to declare actions that involved the clearance of habitat of the endangered swift parrot (Lathamus discolor) were not controlled actions were based on the fact that the person taking the action had undertaken to re-establish an area of native bushland to provide an equivalent area of habitat.
93. Take the example of a land clearing proposal involving the destruction of an area of habitat of a threatened species. A trade off would involve an undertaking to replant similar plant species as those being cleared in another area on the grounds this revegetated area will provide an equivalent area of habitat as the area being cleared.
94. For example, see Ref Nos 2001/228, 2001/164, 2001/165, 2000/58, 2001/246, 2001/248, 2002/706, 2002/789, 2002/790, 2002/792, 2002/786 and 2002/787.
95. See Sch 4 of the Environment and Heritage Legislation Amendment Act (No 1) 2003.
96. Upon commencement of the Environment and Heritage Legislation Amendment Act (No 1) 2003, the EPBC Act has prohibited a person from contravening the terms of a manner specified decision.
97. see Sch 4 of the Environment and Heritage Legislation Amendment Act (No 1) 2003.
98. See, eg, the controlled action decisions made in relation to Ref Nos 2002/874, 2002/733, 2002/842, 2003/913, 2003/916 and 2003/915.
99. National Land and Water Resources Audit, Australian Terrestrial Biodiversity Assessment 2002 (Commonwealth of Australia, 2002). Note that it is likely that a number of the threatened ecosystems and ecological communities identified in the National Land and Water Resources Audit assessment could be amalgamated for the purpose of listing under the EPBC Act.
100. Semi-evergreen Vine Thickets of the Brigalow Belt South Bioregion in New South Wales was removed from the list. However, it was effectively redefined as part of another ecological community that was subsequently included on the list of threatened ecological communities, being the Semi-evergreen vine thickets of the Brigalow Belt (North and South) and Nandewar Bioregions.
101. See ss 207B and 207C.
102. The relevant species concerned are Diomedea exulans (wandering Albatross), Thalassarche cauta (shy albatross) and Thalassarche chrysostoma (grey-headed albatross). The habitat included in the Register of Critical Habitat for these species are Macquarie Island (for the wandering albatross and grey-headed albatross) and Albatross Island, the Mewstone and Pedra Branca (for the shy albatross).
103. Liberal Party of Australia and National Party of Australia, Our Future Action Plan: A Better Environment (November 2001) at p 22.
104. On the factors that can contribute to a culture of noncompliance, see Bardach E and Kagan RA. Going by the Book: The Problem of Regulatory Unreasonableness (Temple University Press, Philadelphia, 1982).
105. For further discussion on the issues associated with scientific uncertainty, see Farrier D, Whelan R and Brown C, "Addressing Scientific Uncertainty in Local Government Decision-Making Processes" (2002) 19 EPLJ 429.
106. See EPBC Act, ss 391 and 136.
107. See, eg, Booth v Bosworth (2001) 114 FCR 39.
108. 117 LGERA 168.
109. [2001] FCA 1453.
110. Leatch v Director General, National Parks and Wildlife Service (1993) 81 LGERA 270.
111. Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710.
112. Packham v Minister for Environment (1993) 80 LGERA 205.
113. Note that, in certain cases, actions that do not require approval under the EPBC Act will require approval under other Commonwealth environmental legislation (eg, in order to operate a commercial fishing vessel in a Commonwealth marine area you will usually require appropriate licences and permits under the Fisheries Management Act 1991 (Cth)). Similarly, an action that does not require approval under the Act, may require a permit (eg. in order to fish in certain Commonwealth marine areas, you may require a permit to harm or injure a member of a listed marine species).
114. Booth v Bosworth (2001) 114 FCR 39, per Branson J at 64.
115. The term "likely" has been interpreted in a similar manner in the context of the Environmental, Planning and Assessment Act 1979 (NSW).
116. see Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79.
117. Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155.
118. Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186.
119. See Farrier D, Whelan R and Brown C, n 61.
120. [2003] FCA 1463.
121. Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 per Kiefel J at [36].
122. See, eg, Environmental Planning and Assessment Act 1979 (NSW), ss 78A, 79B, 111, 112, 112B, 112C and 115N.
123. Threatened Species Conservation Act 1995 (NSW), s 94.
124. Fisheries Management Act 1994 (NSW), s 220ZZ.
125. National Parks and Wildlife Act 1974 (NSW), ss 91AA and 153B.
126. Contaminated Land Management Act 1997 (NSW), s 7.
127. Environmental Protection Act 1986 (WA), s 38.
128. Environment Effects Act 1978 (Vic), ss 3 and 8.
129. Biological Control Act 1986 (Vic), s 28.
130. Planning and Environment Act 1987 (Vic), ss 12 and 60.
131. Water Act 1989 (Vic), s 42.
132. Environmental Management and Pollution Control Act 1994 (Tas), s 25.
133. Environment Protection Act 1993 (SA), s 64.
134. Gene Technology Act 2000 (Cth), ss 49 and 185.
135. See, eg, Environmental Management and Pollution Control Act 1994 (Tas), ss 5 and 50-53.
136. Environment Protection Act 1993 (SA), ss 5, 79, 80 and 82.
137. Environment Protection Act 1997 (ACT), ss 4, 137-139 and 141.
138. Environmental Protection Act 1994 (Qld), ss 14-17, 436-438 and 440.
139. See Environmental Management and Pollution Control Act 1994 (Tas), s 5.
140. Environmental Protection Act 1994 (Qld), ss 14-17.
141. See, eg, Protection of the Environment Operations Act 1997 (NSW), ss 47-49.
142. Environmental Management and Pollution Control Act 1994 (Tas), Pt 3.
143. Environment Protection Act 1993 (SA), ss 3 and 36.
144. Environment Protection Act 1997 (ACT), Pt 8.
145. Environmental Protection Act 1994 (Qld), ss 18, 20 and 426-428.
146. See, eg, Environmental Management and Pollution Control Act 1994 (Tas), s 5.
147. This issue is also discussed in Scanlon J and Dyson M, "Will Practice Hinder Principle? - Implementing the EPBC Act" (2001) 18 EPLJ 14.
148. Upon the commencement of the Environment and Heritage Legislation Amendment Act (No 1) 2003, the EPBC Act has also provided statutory protection for the "National Heritage values" of National Heritage places. Similar problems are likely to arise in relation to this referral trigger.
149. See Booth v Bosworth (2001) 114 FCR 39.
150. 117 LGERA 168.
151. [2001] FCA 1453 for an explanation of this process.
152. Note, however, that the efficacy of this proposal may be limited due to Constitutional restrictions.
153. EPBC Act, Pt 4, Div 4.
154. EPBC Act, Pt 4, Div 5.
155. EPBC Act, s 43B.
156. EPBC Act, ss 158 and 28.
157. Telecommunications Act 1997 (Cth), Sch 3, s 28.