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So far, legislation and reviews have failed to protect environment

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Sussan Ley launched this review of the EPBC Act (image via YouTube).

Australia needs stronger laws, reviews and policies to safeguard the environment from irreparable harm, writes Sue Arnold.

MANY CONSERVATION, legal and scientific organisations are pinning their hopes on the statutory review of the Environment Protection and Biodiversity Conservation Act 1999 ('EPBC Act') which began late October 2019.

Professor Graeme Samuel AC was appointed as the independent reviewer, together with the usual panel of experts to provide advice. 

According to the Federal Government’s blurb, the review is supposed to be looking at how the EPBC Act is operating and any changes needed. 

The questions faced are summed up as:

  • Is the EPBC Act delivering what was intended in an efficient and effective manner?
  • How well is the EPBC Act being administered?
  • Is the EPBC Act sufficient to address future challenges? Why?
  • What are the priority areas for reform?
  • What changes are needed to the EPBC Act? Why?

The EPBC Act is over 1000 pages, plus 400 pages or regulations. The review poses 26 questions, most of them a waste of oxygen and provides unusual interpretations of the purpose of the review. Submissions close in April 2020.

The discussion paper includes an assertion that the EPBC Act 'plays a significant role in the protection and management of our environment and heritage'. A statement which has very little supportive evidence given the parlous state of the Great Barrier Reef, the catastrophic loss of biodiversity as a result of bushfires, drought, state and federal government policies of extinction.

The provisions of the EPBC Act make public interest legal challenges are extremely difficult. Federal and state governments have built high walls to climb for most public interest organisations.

The discussion paper outlines Australia’s future concerns:

Despite recent headwinds, the global economy is also expected to grow in the coming decades and continue its shift towards Asia. 

 

These trends are expected to transition millions of people out of poverty, with 65 per cent of the world’s middle classes expected to reside in Asia by 2030. By 2030, the Asia-Pacific region is expected to consume more than half of the world’s food and 40 per cent of its energy.

 

These global economic trends are likely to create opportunities for the Australian economy and increase the pressure on our environment. A growing global middle class will increase demand for Australian products and resources and the mix of goods and services is likely to change with increased affluence.

 

For Australia, this means the role of tourism in our economy will grow significantly and changed commodity export and business opportunities may emerge. The trend of increased international trade with, and travel to, Australia is expected to create additional demand for wildlife products and increase the risk of the incursion of pests, diseases and weeds.

The paper appears to be based on Government policy rather than any real focus on the environment: no brakes on growth.

Further, it states:

'Treasury’s intergenerational analysis indicates that Australia’s population will continue to age and could grow by 50 per cent by 2050. This level of growth is likely to increase pressure on the Australian environment, with greater demand for our natural resources.'

The focus of the review appears to be the removal of problems experienced by business:

Business and government at all levels are affected by environmental regulation of activities. This regulation is resulting in unnecessary uncertainty and delays with flow on impacts to industry, governments and the community. The review provides the opportunity to modernise national environmental law to improve outcomes for industry and the environment both now and in the future.

Last year, IA published an interview with Greens Senator Janet Rice, Chair of the Senate Inquiry into Fauna Extinction.  

This is what she had to say about the EPBC Act:

The most important issue for the Inquiry is how totally inadequate our current legislation is. We’re dealing with the drivers of extinction. The EPBC Act is totally inadequate to deal with it. There’s no framework for protection. So many projects that are not referred, there’s inadequate actions to minimise impacts, lack of monitoring and compliance.


Federal legislation leaves it up to the states to implement with no mechanisms to follow up.  Offsets are totally a joke, they don’t work, they are accepted as the mechanics to ostensibly  deal with impacts of environmental destruction. In fact offsets are a real mess and they’re not doing the job.

There’s a major disconnect between the Senate inquiry and the Review’s discussion paper. A paper, many would agree, underplays the gravity of Australia’s environmental status.

Let’s take a look at the panel of experts appointed to the review.

Professor Graeme Samuel AC is a Professorial Fellow in Monash University’s Business School and School of Public Health and Preventative Medicine. He is also President of Dementia Australia, Chair of Airlines for Australia and New Zealand. He also holds other chairmanships.  

Professor Samuel is obviously a top government panel choice.

Dr Erica Smyth AC, according to the website, has 45 years experience in the mineral and petroleum industry.  She is currently Chair of the Ministerial Advisory Board for the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). She also chairs the Industry Advisory Board for the ARC Centre for Mine Site Restoration.

NOPSEMA was one of the first "one-stop-shop" approval institutions. From 28 February 2014, NOPSEMA became the sole regulator for petroleum activities in Commonwealth waters that relate to matters listed as "protected" under the EPBC Act. Streamlining reduces duplication in environmental regulation while maintaining strong environmental safeguards.

Bruce Martin is Director of the Indigenous Land and Sea Corporation, the Managing Director Regional Development Corporation and Director of Civil Safety FNQ. He is also the President of the Cape York Peninsula Live Export Group.

Dr Wendy Craik AM is the current Chair of the Climate Change Authority. She recently undertook the Independent Review into Interactions Between the EPBC Act and the Agriculture Sector. Her previous roles include CEO of the Murray-Darling Basin Commission, President of the National Competition Council, Chair of the Australian Fisheries Management Authority, Executive Director of National Farmers Federation and Executive Officer of the Great Barrier Reef Marine Park Authority.

Professor Andrew Macintosh is an environmental law and policy expert at the Australian National University and a leading contributor to environmental and climate change law. He specialises in environmental regulation, federal environmental law and carbon offsets.

No biodiversity experts, ecologists, conservation biologists, marine experts, no public interest lawyers, no conservation organisations.

It seems there are no loud demands that the exponential growth of government-created “independent" panels include representatives of the public interest.

Submissions in response to the 26 questions posed by the review are yet another make-work effort. 

The basics are simple: growth equals environmental destruction. The Australian continent has a limited carrying capacity. 

The EPBC Act is a complete failure, made virtually inoperable by Coalition governments.

Legal experts have made clear the failures of the Federal Government to abide by its ratification of international conventions such as the Convention on Biodiversity and the Convention on Migratory Species. But there’s no provisions in these conventions for public interest legal action, nor action to force federal or state governments to deal with violations.

Professor Samuel writes in his foreword:

'The EPBC Act plays a significant role in the protection and management of our environment and heritage.'

 

A Royal Commission into the EPBC Act scandals would be far more useful than any review. That should be the primary recommendation in this review.

Sue Arnold is an investigative journalist. She heads up Australians for Animals NSW Inc and the U.S. California Gray Whale Coalition. You can follow Sue on Twitter @koalacrisis and Koala Crisis on Facebook here.

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