Vulnerable species like the koala – and the environment in general – are the losers, while developers reign supreme in Environment Minister Sussan Ley's environmental law "review". Sue Arnold reports.
In July, Sussan Ley sent out a statement indicating that as Minister for the Environment, she would
... commence a ten-year statutory review of the [Environment Protection and Conservation] Act by October this year. And it is the right time to have a conversation about the best ways we can ensure strong environmental and biodiversity protection measures that encourage people to work together in supporting the environment.
All Australians will have a chance to share their ideas as part of the next statutory review of the EPBC Act, due to commence by October 2019.
Exactly why Ley waited another three months before commencing the review is unclear. In a follow-up press release, she announced that former competition regulator Professor Graeme Samuel would head the year-long review, 'to tackle green tape and deliver greater certainty to business, farmers and conservation groups'.
Missing from Ley’s pronouncements are key issues relevant to one of the most critical problems — self-referral by developers. Under the current scenario, a developer whose project is likely to destroy or severely impact koala habitat makes the decision whether or not to “refer“ the development to the Federal government as a matter of national environmental significance (MNES), under the provisions of the EPBC Act 1999.
As the koala is listed as "vulnerable" under the EPBC, the referral should never have been reduced to the responsibility of a developer — referral to the Federal government should have been made a mandatory requirement.
A referral is designated as a "controlled action" if the result of a scorecard available from the Government's 'EPBC Act referral guidelines for the vulnerable koala' reaches a certain level. Then the project is assessed by the Federal Department of the Environment and Energy and the minister makes the decision whether to approve the project. Documents relevant to the project are published on the EPBC referral list website and open to public comment — including environmental impact assessments paid for by the developer.
Once the project is approved, a "koala management plan" (KMP) must be provided by the developer before the project commences. However, this is where the proverbial hits the fan as there is no requirement for any public comment, nor any access to the plan.
One of the most important koala management plans has been on Sussan Ley’s desk since July. This is the Lendlease plan for southwest Sydney koalas at their Mt Gilead, now renamed "FigTree Hill" urban project for 1700 residences. This is a project mired in controversy and public outrage because of the risks to the largest expanding healthy koala colony in the Sydney Basin.
IA has been following up this issue with the only section of the Department of the Environment and Energy (DEE) that responds in a timely manner — the Communications and Engagement Branch Media (CEBM) team.
IA: We're trying to establish whether Lendlease Approval 2015/2019 for Mt Gilead sub-division has submitted a Koala Management Plan and if so, whether it has been approved. If it has been approved, can you supply the date and also the Plan? If not, we would appreciate that advice.
DEE: Lendlease submitted to the Department a Koala Management Plan for approval on 9 July 2019 as required by the conditions of their approval (EPBC 2015/7599). This plan has not yet been approved.
The Department is working with Lendlease to ensure the plan meets the conditions of approval.
As the response raised further issues, the following exchange occurred:
IA: Will the KMP be available for public comment?
DEE: The EPBC Act does not require management plans to be made available for public comment prior to approval. Management Plans are assessed by the Department to determine whether they meet the requirements of each projects conditions of approval. Any decision to seek public comment on the KMP is a matter for Lendlease.
IA: Will there be a notice of approval/or non approval published on the EPBC referral website?
DEE: The EPBC approval conditions for this project (EPBC 2015/7599) requires Lendlease to publish the approved KMP on their website for the life of the EPBC approval.
(A quick check of LendLease website indicates no link to any EPBC approvals for any developments much less Koala Management Plans.)
IA: And is the KMP currently available for public scrutiny ?
DEE: See response to questions above.
IA: Developers may self refer under the EPBC Act using the Koala Referral Guidelines to provide a relevant score. But if a developer fails to self refer and there is evidence that the score is incorrect and the project should have been referred, are there any provisions in the Act which would force a developer to refer a project?
DEE: Section 70 of the EPBC Act provides for the Minister to call-in an action if the Minister believes the action may be or is a "controlled action".
IA: However, there is no indication that the Minister has ever used Section 70 to call in an action. Nor is there any evidence that the penalties for failing to self refer have been implemented. These penalties are significant.
DEE: An action that has, will have or is likely to have a significant impact on the koala must not commence until the Minister makes an approval decision. Substantial penalties apply for undertaking such an action without
Commonwealth approval (civil penalties up to $8.5 million or criminal penalties including up to seven years imprisonment).
IA pursued this dearth of important information in a telephone call to the Environmental Defenders Office NSW, to establish the legitimacy of withholding these critically important plans.
Sourcing the plan is important as any approval by the minister must be accompanied by a "statement of reasons" (SOR) which allows 28 days for a response from the public or a conservation organisation. If the SOR has disregarded important information, the approval can be challenged in the Administrative Judicial Review Tribunal.
However, if the public is unable to obtain the plan or the date of approval, then any objection to the SOR becomes impossible.
The EDO lawyer had no suggestions other than to “write to the Department and request that you be provided with the date of any approval”. Or, “request the statement of reasons”.
IA: How can a request for the SOR be made if there’s no date of approval provided?
EDO: You could submit a Freedom of Information request.
IA: But that can take months and meantime the time frame for any appeal in the AJRT would be moot.
EDO: There’s really nothing more we can suggest.
The bottom line to this Monty Python circus is not only the Lendlease koala plan of management which is being withheld, but any developer who has self-referred has no requirement by the environment minister to publish the plan other than “on the developer’s website”.
Given that this would require a large staff to check the multiple developer projects impacting koala habitat throughout Queensland and New South Wales on a daily basis, a new definition of "mission impossible" arises.
Essentially, any koala management plan may be approved. There are no published standards or requirements — much less compliance or monitoring.
A review by some of Australia's leading ecologists sums up the catastrophic situation facing koala survival.
Some 85 per cent of land-based threatened species experienced habitat loss. The iconic koala was among the worst affected. More than 90 per cent of habitat loss was not referred or submitted for assessment, despite a requirement to do so under Commonwealth environment laws.
Our research indicates the legislation has comprehensively failed to safeguard Australia’s globally significant natural values, and must urgently be reformed and enforced.
Sussan Ley’s priorities in a review of the EPBC Act reflect those of the Prime Minister: the environment is the enemy.
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