The Environment Protection and Biodiversity Conservation Act 1999

The new Commonwealth legislation, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), came into effect in July 2000. It aims to define, consolidate and streamline the role of the Commonwealth in environmental protection, assessment of environmental effects on nationally significant places and issues, and in biodiversity conservation. The EPBC Act replaces the following existing legislation: Environment Protection (Impact of Proposals) Act 1974, National Parks and Wildlife Conservation Act 1975, Whale Protection Act 1980, World Heritage Properties Conservation Act 1983 and the Endangered Species Protection Act 1992.

The Objects of the EPBC Act defined at s3 are to:

• provide for the protection of the environment especially those aspects of the environment that are matters of national significance
• promote ESD through the conservation and ecologically sustainable use of natural resources
• promote the conservation of biodiversity
• promote a cooperative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples
• assist in the cooperative implementation of Australia's international environmental responsibilities
• recognise the role of Indigenous peoples in the conservation and ecologically sustainable use of Australia's biodiversity
• promote the use of Indigenous peoples' knowledge of biodiversity with the involvement of, and in cooperation with, the owners of that knowledge.

The EPBC Act primarily deals with actions of the Commonwealth, Commonwealth areas and matters of national environmental significance. Matters of national significance have been initially defined as: World Heritage areas, Ramsar wetlands, nationally listed threatened species and communities, nationally listed migratory species, nuclear actions and the marine environment.

The principal provisions and procedures under the EPBC Act concerning biodiversity conservation are as follows:

• lists threatened species and ecological communities, migratory species and threatening processes, and the preparation of recovery plans, wildlife conservation plans and threat abatement plans (TAPs)
• creates offences and penalties for activities such as killing, injuring and trading of listed species or communities in a Commonwealth area
• establishes the Australian Whale Sanctuary
• allows for regulations to be developed dealing with access to biological resources in Commonwealth areas
• allows for regulations to be developed to list non-native species that do, or may, threaten biodiversity, control trade in those species and make plans for their management or elimination
• provides for conservation agreements between the Commonwealth and landholders relating to biodiversity, including possible assistance for management; these agreements are binding to successor landholders
• establishes procedures regarding the nomination and management of World Heritage areas, Ramsar wetlands and biosphere reserves
• allows for the declaration and management of Commonwealth reserves, including regulation of activities, management plans and public consultation; 'conservation zones' may be declared as an interim measure prior to declaration of a Commonwealth reserve
• establishes the Indigenous Advisory Committee, Threatened Species Scientific Committee and BDAC.

Any project that will have, or is likely to have, a significant effect on a matter of national environmental significance needs to be approved and assessed under the EPBC Act. To end the duplication of assessing projects under both state and Commonwealth laws, bilateral agreements are being negotiated so that projects that trigger the EPBC Act will be assessed under the laws of the relevant jurisdiction. The accreditation process is meant to ensure that national benchmarks are met. The first bilateral agreement under the EPBC Act was signed by the Commonwealth and Tasmania on 15 December 2000 and negotiations with other states are well advanced.

Several amendments have been proposed to the EPBC Act, including adding a greenhouse trigger (the seventh trigger in the Act) as well as amending the world heritage provisions. In early 2001, the Minister for the Environment, following advice from the Threatened Species Scientific Committee, listed land clearing as a key threatening process to biodiversity. Several further amendments have been proposed but it is yet to be seen if these are incorporated into the EPBC Act.

Implementation of the 1996 National Strategy for the Conservation of Australia's Biodiversity

The table summarises the findings of the ANZECC (2001) review of the implementation of the 1996 National Strategy. Opinions will differ among interest groups and stakeholders particularly regarding the degree to which an objective is 'partially achieved' (see also discussions of specific issues and indicators).

^A Comprehensiveness, adequacy and representativeness.
^B Denotes significant issues dealt with in this Report where, in the judgment of the authors and on the basis of discussion in the Review, substantive debate is both likely and justified concerning the categorisation as 'achieved'.

Source: ANZECC (2001).

Land clearing approval rates in New South Wales: 1998-2000

The clearing and removal of native vegetation in New South Wales is governed by the Native Vegetation Conservation Act 1998 (NVC Act) in combination with the Threatened Species Conservation Act 1995 and the environmental planning law, the Environmental Planning and Assessment Act 1979. The NVC Act has objects including the protection of 'native vegetation of high conservation value' and the prevention of 'inappropriate clearing of native vegetation'. These objects are to be achieved 'in accordance with the principles of ecologically sustainable development'.

The NVC Act provides a range of mechanisms for the preservation of native vegetation and for the approval of clearing. The general rule is that in order to clear native vegetation, the development consent must be sought and obtained from the Minister administering the NVC Act. 'Clearing' of native vegetation is defined extremely broadly. The likely effect of clearing on threatened species is assessed as part of the development consent process against a statutory eight-part test.

The NVC Act contains a mechanism for the making of regional vegetation management plans (RVMPs). These plans are intended to be the primary instruments for conservation and management of native vegetation. The rationale for regional planning is to take account of regional variations in vegetation and the specific issues that arise (e.g. clearance of 'woody weeds' in western New South Wales). As of October 2000, no RVMPs have been formally made, although some are at an advanced stage of preparation.

The total area of native vegetation for which approval to clear was granted between January 1998 and August 2000 was 208 360 ha with the largest total amount of clearing approved in the North Coast Central West and Far West regions of the State. To date, most applications to clear vegetation under the NVC Act have received approval. Of the 1525 applications conclusively determined as at October 2000, 91.6% of applications were granted consent with conditions. Only 2.16% of these applications were refused, 1.57% were rejected prior to formal assessment and 4.65% were withdrawn by the applicants.

However, some clearing may not proceed despite successful applications for consent. Further, the total area approved for clearing may be less than the area that landholders originally sought to clear. Departmental documents indicate that in practice all clearing approvals are granted conditionally (DLWC 2001a). These conditions generally require the retention and replanting of trees within the approved area to ensure, among other things, preservation of habitat, and protection against land degradation (DLWC 1999; DLWC 2001a, 2001b).

Although approvals to clear are made subject to conditions, the recent (2000) decision of the Land and Environment Court in Carr v. Minister for Land and Water Conservation (2000, p. 175) has thrown some doubt on the Department's approach. The decision overturned a particular development consent on the grounds that specific conditions imposed on the consent to mitigate environmental effects of vegetation clearance had no valid basis in law.

The requirement of the NVC Act to seek consent to clear vegetation is subject to a range of exemptions. These exemptions include purposes ranging from 'private native forestry', 'minimal clearing' (i.e. clearing up to 2 ha per year) and clearing of regrowth less than ten years old. They also cover clearing in the Western Division of New South Wales, clearing on exempt land tenures (e.g. national parks, state forests and listed wetlands), clearing in exempt local government areas and forms of clearing authorised under other legislation (e.g. Rural Fires Act 1997). In total, there are at least 37 situations in which clearing may be exempt from the operation of the NVC Act. As the Act contains no notification mechanism for clearing under exemptions, the extent of such clearing is not known or included in statistics showing total vegetation cleared.

According to the Minister for Agriculture (2000):

Some of the exemptions are poorly defined and open to interpretation. There are also concerns about the cumulative impacts of the exemptions and how they are being monitored and complied with.

The ambiguity surrounding some of the exemptions is causing difficulties in relation to enforcement of the NVC Act (DLWC 2000). In response, a formal review of exemptions was announced in late August 2000. An internal document (DLWC 2000) reviewing the exemptions states:

The exemptions which were meant to act as short term transitional arrangements have become the most problematical part of the Act in terms of achieving compliance.

Further, it says: 'The exemptions appear to be the most significant cause of inappropriate clearing' (DLWC 2000).

It appears there has been little activity regarding formal enforcement of the Act. There have been no prosecutions formally commenced and only nine stop work orders issued since January 1998. By October 2000, 112 warning letters had been sent in response to a total of 471 alleged (but not proven) breaches of the Act. Some observers may conclude that this approach to enforcement may be undermining the effectiveness of the Act in deterring inappropriate and unauthorised vegetation clearance.

In conclusion, the effectiveness of the New South Wales regime for control of native vegetation clearance has been affected by problems of ambiguous exemptions, a willingness to approve most clearing applications and an apparent reluctance to prosecute serious breaches of the NVC Act.

Source: James Prest, Centre for Natural Resources Law and Policy, University of Wollongong.

Albatross and bycatch policy

In 1995, data revealing an estimated take of 44 000 albatross annually through ensnarement on Japanese longlines set for tuna fisheries in the Southern Ocean gained considerable scientific political and public attention. Although applying to all seabirds, it was the threat in particular to vulnerable and endangered species such as the wandering, Amsterdam and northern royal albatross that led to the listing of longline fishing as a key threatening process under the Commonwealth government's [then] environmental legislation, the Endangered Species Protection Act 1992. The provisions of this Act have been retained under the new Commonwealth legislation, the EPBC Act. The original Schedule 3 listing triggered a requirement that a Threat Abatement Plan (TAP) for the incidental catch or bycatch of seabirds during oceanic longline fishing be created by Environment Australia. The TAP was to be a nationally coordinated action to alleviate the effect on seabirds of longline fishing in Australian waters.

Although statutorily required within a maximum of three years, the plan took slightly longer to complete. When released, its stated objective was to reduce seabird bycatch to below 0.05 seabirds per thousand hooks: a 90% reduction in bycatch. The TAP also maintained zero bycatch of seabirds in longline fisheries as an ultimate goal, especially endangered albatross and petrel species. The plan adopted two years ago is to be reviewed at the end of five years of operation.

Under the recommended TAP, a series of bycatch mitigation gear and method modifications have been required. These include the use of tori poles or bird scaring devices, the thawing of bait or weighting of lines to increase the sink rate, a prohibition on the discharge of offal from vessels (in particular during setting and hauling), and the practice of night setting when the birds are, in general, less active. There has not been any dedicated measure of bycatch reduction levels since adoption of the TAP, which makes it difficult to evaluate the efficacy of the policy intervention.

Although anecdotal evidence suggests that these modifications have been broadly successful, unnecessary delay and interagency disagreements have hampered the process. Given the limited five-year life of the plan, these delays may prove to be a significant impediment to the successful reduction of longline seabird bycatch. One area where disagreement has proved problematic is that of the level of observer coverage necessary, and the source of funding, to support such a program. Initial studies suggested between 10 and 15% on-board observer coverage, which was costed at more than $3.5 million over three years. Prolonged discussions in this regard have resulted in an interim agreement to trial ten underwater setting devices, gear technology which has been successful in reducing seabird bycatch in longline fisheries in other countries. The approximate $560 000 cost of these trials will be apportioned at 40:60 between industry and government, respectively. In addition, Australia has also taken the lead in negotiating a regional albatross conservation agreement under the auspice of the United Nations Convention on the Conservation of Migratory Species of Wild Animals, which was signed in June, 2001.

Source: Dr Sali Bache, Centre for Maritime Policy, University of Wollongong.