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Under the microscope: biodiversity protection in Australia

Feature Articles

Cite as: (2005) 79(7) LIJ, p. 58

The current fragmentation of the legislative framework in Australia is a major handicap to more effective biodiversity conservation.

By Wayne S Gumley

Charles Darwin in 1859 was astonished by the differences between the marsupials of Australia and the placental mammals he knew so well from the northern hemisphere. The unique flora and fauna which excited naturalists like Darwin and Joseph Banks was the result of an exceptionally long period of geographic isolation and geological stability on this continent.

However, the European settlement of Australia has resulted in dramatic habitat modification and fragmentation which has severely affected Australia’s native species. Twenty mammal, 20 bird and 76 plant species are known to have become extinct in this period. Seventy-seven species of vertebrate animals and 236 species of vascular plants are considered endangered, and another 66 species of vertebrates and 652 species of vascular plants are vulnerable.[1] And with the full extent of our biodiversity substantially unrecorded, these figures are merely indicative of a larger problem. The 1996 State of the Environment Report for Australia concluded that loss of biodiversity “is perhaps our most serious environmental problem”. The position was updated in the most recent 2001 State of the Environment Report: “Overall, the condition of biodiversity ... is poorer today than it was in 1996. Many serious pressures that undermine biodiversity conservation remain to be dealt with effectively. Many of these issues have been known for a decade or more and were explicitly identified in SoE (1996).”[2] Thus all indications are that the biodiversity crisis is getting worse.

This article will consider the effectiveness of the current legal framework in addressing this problem. This matter is timely as a review of some central aspects of the most relevant piece of federal legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), is currently in progress.

Legislative history

Most state and territory governments introduced legislation protecting native animals and plants in the 1970s. These early measures were mainly concerned with direct interference to animals or plants, while the ecosystems that supported them were generally only protected within national parks or nature reserves on public land. While Australia has an extensive array of public reserves, they comprise only about 7 per cent of total land area.[3] Thus a major challenge is to implement measures that will protect biodiversity on private land and, in particular, habitats on private lands. The first comprehensive piece of legislation to adopt a habitat approach in Australia was the Flora and Fauna Guarantee Act 1988 (Vic). This Act introduced a range of new strategies to encourage protection of habitats, but it has suffered from a lack of administrative support.

In 1992, the Australian government clearly signalled the need for a more comprehensive response to biodiversity protection by signing the United Nations Framework Convention for Protection of Biological Diversity. The objectives of this Convention are conservation of biological diversity (particularly in-situ conservation), the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources”.[4] In the same year, the Australian government formulated a National Strategy for Ecologically Sustainable Development which has as one of its core objectives “to protect biological diversity and maintain essential ecological processes and life support systems”. Ultimately, these objectives were given force in the EPBC Act.

Biodiversity protection under the EPBC Act

The EPBC Act took effect from 16 July 2000. Its objectives (at s3(1)) include the protection of certain “matters of national environmental significance” (MNES) and the ecologically sustainable use of natural resources. The MNES specifically include World Heritage, National Heritage, Ramsar wetlands, listed threatened species or listed threatened ecological communities, listed migratory species, commonwealth marine areas and nuclear activities.[5] Some of these MNES directly concern threats to biodiversity (i.e. listed species and ecosystems) while others have an indirect effect by protecting certain ecosystems (e.g. World Heritage sites, Ramsar wetlands). The EPBC Act has established three broad strategies to meet its objectives:

1. Penalties and offences
The most severe measures under the EPBC Act are a range of civil penalties and criminal offences that may apply to a person who takes action that has a “significant impact” on any MNES. I am aware of only one successful prosecution since the EPBC Act commenced. In that case the defendants were a NSW wheat farmer and a related company who cleared native vegetation within a declared Ramsar wetland. The farmer and the company were fined $450,000 and ordered to re-vegetate the area.[6] The only other case reported in the literature was an unsuccessful prosecution of some travellers found in possession of rare insects. It is difficult to conclude from these two instances that the penalty regime is having a dramatic impact on biodiversity protection.

2. Assessment and approval process
A safe haven is provided for otherwise prohibited actions if they are “approved” by the Minister for Environment and Heritage under Part 9 of the EPBC Act. The approval process broadly ensures that an appropriate form of environmental impact assessment occurs before an action is carried out. Certain activities, including particular forestry operations and actions in the Great Barrier Reef Marine Park, are exempted altogether from the EPBC Act assessment on the basis that the environmental effects of these actions will be assessed under other legislation.

A person who plans to carry out a relevant action must “refer” details of the action to the Minister, who must then decide first, whether the action is one that requires ministerial approval (i.e. a “controlled action”). If so, the Minister must then decide what form of environmental assessment is appropriate. Once an assessment is completed, the Minister must then decide whether to approve the action (based on the assessment report) and may grant approval with appropriate conditions to minimise any environmental risks identified.[7] Statistics to December 2004 reveal that out of 1360 referrals, 324 have been determined to be controlled actions. Of these, 101 cases had assessments completed, and the Minister has approved 90 cases with conditions and nine cases without conditions with just two cases not approved.[8]

Thus extremely few proposals have been disallowed completely under this assessment process. A broader concern has been expressed that relatively few referrals have been made from several industries notorious for their impact on biodiversity, such as agriculture, forestry and fisheries.[9] It should be noted that these industries are subject to other controls (such as state land clearing restrictions, forestry codes of practice and strategic assessments of commonwealth fisheries). However, the adequacy of those controls is questionable. The 2001 State of the Environment Report warned that the rate of land clearance had accelerated since 1996. It has been argued that under the existing Victorian forestry controls, “the effects of logging on threatened species are not accurately known. Accordingly ... it cannot be said that Victoria’s forests are managed in accordance with ESD Principles”.[10] Evidence provided to the recent Senate Committee review of plantation forestry suggested “a severe lack of assessment against proper environmental standards ... reinforced by the Victorian State Government in 2003, when it decided that logging in the Wombat State Forest, regulated under the RFA process, was not sustainable”.[11]

A regulatory failure may also occur if the assessment powers are interpreted in a restrictive manner. For example, in the Nathan Dam case, the Minister decided there was no need to assess the downstream impacts of a major new irrigation dam, including the effects of agricultural chemicals on the Great Barrier Reef World Heritage Area.[12] This view seems to be well out of line with the principles of ecologically sustainable development which are included in the stated objects of the EPBC Act.

Perhaps the most fundamental problem affecting biodiversity is the failure to update the lists of relevant species and ecosystems, which are the most direct trigger for biodiversity assessments and other EPBC Act measures. In 2002 the National Land and Water Resources Audit identified some 2891 threatened ecosystems across Australia, yet a mere 29 ecosystems have been listed. Similarly, some 1615 species of endangered plants and animals have been listed to date, but this is generally considered to be a small fraction of those eligible.[13]

It should be noted that the pivotal MNES are currently under review. On 1 April 2005, the Minister invited public comment on the possible addition of new MNES, as required every five years under s28A of the EPBC Act. A draft report will be released in coming months. Several new MNES have been proposed, including greenhouse gases, coastal development, water use, land clearing, forestry, dioxins, wild rivers and wilderness.[14] Greenhouse emissions are particularly important in this context as they are considered one of the greatest long-term threats to biodiversity.

3. Other measures
The EPBC Act contains many other measures directed at biodiversity conservation including bioregional plans, recovery plans, threat abatement plans, conservation agreements, protected areas, administrative powers, environmental audits, conservation orders and injunctions. Many of these measures are still in the early stages of development.

The recognition of “protected areas” is a fundamental strategy for conservation of biodiversity. A common difficulty with this approach is the presence of competing commercial interests that may endanger the ecological integrity of a protected area. For example, in 1999 UNESCO suggested that Kakadu National Park might be placed on the World Heritage in Danger List due to the approval of the adjacent Jabiluka uranium mine. This was successfully resisted by the Australian government and the issue has been temporarily defused since Rio Tinto Ltd decided to cease mining at Jabiluka in 2000.[15] Another example is the potential conflict between agricultural development and protection of the Great Barrier Reef that was evident in the Nathan Dam case. The political dimensions get even more complicated beyond Australian borders, as in the recent controversy over Japanese whaling for “scientific research” in the Australian Whale Sanctuary. The Humane Society International Inc has attempted to obtain an injunction under the EPBC Act but has lost an application to serve process out of jurisdiction due to the international political nature of the issues and the futility of the action.[16]

On a more positive note, the EPBC Act has created broad standing rules which enable a wide range of interested parties to seek injunctive remedies under s475. This can be seen as a major step forward, as demonstrated by the granting of an injunction to prevent the electrocution of spectacled flying foxes adjacent to the Wet Tropics World Heritage Area.[17]

Conclusion

The current legislative framework can be readily explained as a political compromise, in which the Australian and state governments attempted to divide between themselves responsibility for various segments of the Australian environment. The fundamental flaw in this scheme is that the environment is not segmentable – living organisms and associated ecosystems are interdependent, and our scientific knowledge of these links is still quite poor. The current fragmentation of the regulatory framework in Australia is a fundamental obstacle to more effective biodiversity protection.

The EPBC Act has improved many aspects of environmental assessment and added some powerful new regulatory strategies to assist biodiversity protection at the federal level. However, it is not a complete code for biodiversity protection as it co-exists with a wide range of state and territory legislation in this area. Given that the biodiversity crisis in Australia is severe, and that state and territory governments appear to lack the capacity (jurisdictionally, financially and politically) to take effective action, there is a clear obligation cast on the Australian government to take stronger steps to fulfil its obligations under the Biodiversity Convention, as well as the commitments made in its own policy statements.

The crucial lists of threatened species and ecological communities which drive many EPBC Act measures need to be updated urgently, the full set of MNES which trigger the EPBC Act must be strengthened to properly address highly threatening activities such as forestry, toxic chemicals, land clearing and greenhouse emissions, and the biological integrity of protected areas must be upheld against threatening commercial activities. However, these are merely technical responses, which will not suffice alone. Real protection for biodiversity will also require a new federal and state policy alliance to support a far more effective administration of all components of the legal framework.


WAYNE S GUMLEY is a senior lecturer in the Department of Business Law and Taxation, Faculty of Business and Economics, Monash University and a member of the LIV Environmental Issues Committee.


[1] Department of the Environment, Sport and Territories, National Strategy for the Conservation of Australia’s Biological Diversity Appendix 1: Australia’s biological diversity, 1996.

[2] Environment Australia, Australia: State of the Environment Report 2001.

[3] Australian Government, Geoscience Australia Land Tenure database, 1993 ( accessed at http://www.ga.gov.au/education/facts/tenure.htm ).

[4] United Nations, Framework Convention for Protection of Biological Diversity, 1992, Article 1. Objectives.

[5] See EPBC Act, Ch 4.

[6] Minister for the Environment and Heritage v Greentree [2003] FCA 857 (8 August 2003). The defendants were found guilty and fined a total of $450,000 but the decision has been appealed.

[7] See EPBC Act ss68, 75, 87 and 133.

[8] Department of Environment and Heritage, Referrals, Assessments and Approvals Statistics, 2004, accessed at http://www.deh.gov.au/epbc/statistics.

[9] Andrew MacIntosh, “Why the Environment Protection and Biodiversity Conservation Act’s referral assessment and approval process is failing to achieve its environmental objectives” (2004) 21 EPLJ 288.

[10] Andrew Walker, “Forest reform in Victoria: Towards ecologically sustainable forest management or mere greenwash?’ (2004) 29:2 AltLJ 58 (Apr 2004) at p61.

[11] Senate Rural and Regional Affairs and Transport References Committee, Australian Forest Plantations; A review of plantations for Australia: The 2020 vision, September 2004); Additional comments by the chair, Senator Ridgeway.

[12] See Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 (Full Court, 30 July 2004). The Minister’s decision was successfully challenged under the Administrative Decisions (Judicial Review) Act 1974 (Cth).

[13] See note 9 above.

[14] For example, see submissions to the Department of Environment and Heritage by the Australian Democrats (May 2005), available at http://www.democrats.org.au/docs/2005/AD_sub_to_RMNES.pdf, and Australian Network of Environmental Defenders Offices (2 May 2005), available at http://www.edo.org.au/edonsw/site/pdf/mnes_review.pdf.

[15] However, mining could easily resume if the uranium market continues to strengthen. The recent BHP Billiton takeover offer for WMC suggests a revival of interest in this market.

[16] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 (Alsop J, 27 May 2005).

[17] Chris McGrath, “Key concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)” (2004) 22 EPLJ 20, in which he refers to Booth v Boswell [2001] FCA 1453 (the Flying Fox case).

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