Federal legislation fails to protect wildlife and the environment

The final report of the independent review of the Environmental Protection and Biodiversity Conservation Act fails to address many substantive, critical issues, says Sue Arnold.

THE REPORT, by Professor Graeme Samuel, is a substantial document with 38 recommendations. Given the extraordinary crises that the catastrophic bushfires and climate change impacts pose to Australia, the report can only be described as a miserable attempt at addressing the most significant environmental issues this nation has faced.

The ABC’s Norman Swan interviewed Sussan Ley, the Federal Environment Minister, soon after the release of the report. It was an extraordinary interview.

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Ms Ley claimed:

“I started this modernisation process [of the EPBC Act] which hasn’t been touched for 20 years.”

She is apparently unaware that section 522A requires an independent review every 10 years. The last review was undertaken in 2008.

Ley continued:

“The Act is incredibly duplicative, it’s failing to protect the environment and failing to support ecologically sustainable development which is actually what its purpose is.”

Ms Ley is incorrect.

Ley is apparently unaware that the EPBC Act fulfils the Commonwealth Government’s obligations under several international conventions, including the Convention on Biological Diversity. Her focus on ecologically sustainable development as the main purpose of the Act is questionable.

Objects of the EPBC include:

'[enhancing] Australia’s capacity to ensure the conservation of its biodiversity by including provisions ... to protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species) and ensure the conservation of migratory species.'

It was abundantly obvious in the initially published terms of reference that the review 'would be guided by principles' including:

'... making decisions simpler, including by reducing unnecessary regulatory burdens for Australians, businesses and government, and supporting investment and creating new jobs.'

Swan questioned Ley regarding Professor Samuel’s recommendation to appoint an independent regulator which Ley had resoundingly rejected in July 2020 when the interim report was released.

According to the article, Ms Ley immediately moved to rule out an "independent cop".

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She said:

The Government will take steps to strengthen compliance functions and ensure that all bilateral agreements with states and territories are subject to rigorous assurance monitoring.

It will not, however, support additional layers of bureaucracy such as the establishment of an independent regulator.

In the Swan interview, Ley now claims:

“I’ve always said an independent regulator is vital and we’re having discussions about form rather than function. Assurance is important."

Another major sticking point for the Morrison Government is the recommendation for national standards which are particularly important, as Ley moves to hand over power to the state governments to approve major projects.

This is yet another duck and weave by the Minister. She said:

"We’re not handing over the power to state governments. States and the Commonwealth are not harmonised and what we will do is accredit states against national standards.

We are retaining control with Commonwealth oversights."

As of yet, there are no national standards. Nevertheless, Ley attempted to ram a streamlined bill through the Parliament last year, knocked back by the Senate. Ley now describes this bill as “giving architecture to the standards".

Some of the major omissions from Professor Samuel’s report are the lack of recommendations or discussion on the impacts of the bushfires. Given that scientists estimate at least three billion animals perished or were displaced by the fires, the failure of the review to address this major biodiversity loss is of concern.

There is no recommendation for the Act to be amended to include provisions for emergency powers which would ensure immediate action to protect vulnerable and endangered species surviving environmental atrocities, for instance.

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While the Government has pledged further funding to bushfire recovery, a deeper look reveals that the plight of koalas has again been ignored.

No recommendations have been made to deal with triggers which would set in motion action on large scale land clearing, cumulative impacts, logging of unburned and burned forests, or climate change impacts. None of the important recommendations in the interim report or evidence given to the Senate Committee on Faunal Extinction appear to have been taken into account by the review.

Australia's biodiversity loss is among the world’s worst, holding the record among seven countries responsible for 60 per cent of the biodiversity loss between 1996 and 2008.

Important evidence was given by experts to the Senate Committee, including evidence from Dr Wendy Craik, a member of the EPBC independent review.

Major concerns over the failure of the Commonwealth Government to develop recovery plans within mandatory time frames; the lengthy delays in assessing wildlife which need to be included or upgraded on the EPBC Act list as vulnerable, endangered or critically endangered; and the introduction of the common assessment method which denies any regional listing of species have not been acknowledged in the EPBC review report.

Evidence given to the Senate committee also voiced concern over ministerial powers. For example, any decision by the Commonwealth Threatened Species Scientific Committee to upgrade a species can be thrown out by the minister.

Ensuring that policies such as the koala referral guidelines are made mandatory haven't been an issue for the review. Currently, developers are permitted to self-refer any project which may remove koala habitat. The koala referral guidelines present a scorecard to evaluate specific habitat.

Once a certain level is reached, the project becomes a controlled action requiring a koala management plan to be approved by the minister.

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Given that self-referral is not mandatory, developers have had a field day. Koala management plans are not open to public comment.

Then there’s the vexed issue of offsets. Without doubt, one of the most unjustifiable policies adopted by state and federal governments has been permitting offsets to habitat destruction to be paid off in dollars.

At one level, governments place a value on environmental assets by estimating the cost of loss which is then used to calculate dollar payments. The option of planting trees or protecting areas, existing parks or reserves provides no protection for wildlife wiped out by development projects.

The EPBC streamlining bill, together with the considerable efforts of the Morrison Government to ensure one-stop approvals for major projects by state governments indicates that the recommendations of the Senate Faunal Extinction Interim Report have been ignored.

Recommendations from the 2008 EPBC independent review have not been acted on, as well.

An awareness that Australia is one of the world’s driest continents, identified as being extraordinarily vulnerable to climate change impacts as evidenced by the 2019-2020 bushfires and preceding drought, has not created any sense of urgency by the Commonwealth or state governments.

Australia has an environmental carrying capacity. Many scientists agree that the nation has exceeded that capacity and the need to address climate change and biodiversity loss are now critical.

Scientists, NGOs and community activists know the writing is on the wall. State governments continue to approve destructive projects with no concern for the outcomes for wildlife.

Professor Samuel’s report could, unfortunately, be reduced to a few sentences.

Climate change and biodiversity loss are impacting the survival of the planet. The EPBC Act and current governments are incapable of providing adequate protection or solutions.

It is time for independent scientific expertise to take over the role with environmental legal specialists engaged to ensure compliance, monitoring and protection of our environmental heritage.