Interim Report

1.3 - The EPBC Act does not enable the Commonwealth to effectively protect and conserve nationally important matters

June 2020

1.3.1 - The EPBC Act lacks clear outcomes for MNES

The EPBC Act is not clear on what environmental outcomes it seeks to achieve for MNES. The objects of the Act are written broadly which is appropriate for national legislation. However, the Act does not provide specific framing for how these objectives are to be interpreted and applied.

MNES underpin the implementation of environmental regulation in the EPBC Act, but this is not done in a consistent way across the Act. The Act lacks effective mechanisms to describe or measure the environmental outcomes it is seeking to achieve and to ensure decisions are made in a way that contributes to these outcomes. Key plans (such as recovery plans) and other management documents do not clearly link to national outcomes.

Ecologically sustainable development (ESD) is a key principle of the EPBC Act11 is not being applied or achieved. ESD should be the overall outcome the Act seeks to achieve. ESD means that development to meet the needs of Australians today should be done in way that ensures the environment, natural resources and heritage are maintained for the benefit of future generations.

Although decisions under the EPBC Act are required to consider key principles like ESD and the precautionary principle (see Box 2), these are not given sufficient weight or prominence, particularly in development approvals. These principles underpin good environmental decision-making frameworks around the world and were agreed to by the Commonwealth and all states and territories in the Intergovernmental Agreement on the Environment in 199212.

Box 2 - The precautionary principle

The precautionary principle reminds us that if the impacts of a decision are not fully understood, then we should err on the side of caution, to avoid serious and irreversible consequences. Lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

1.3.2 - The way the EPBC Act operates facilitates ongoing decline

Almost all of the ecological focus in environmental impact assessments is on specific, listed individual species and communities. Species and ecological communities are listed using a complex scientific assessment based on internationally determined scientific criteria. After listing, a conservation advice is prepared for each listed species or community. The Environment Minister may also decide that a more comprehensive recovery plan is required.

Currently, there are 719 recovery plans in place for species and 27 in place for ecological communities (of 1,890 listed species and 84 listed communities)13. There is no requirement to implement a recovery plan, or report on progress or the outcomes achieved. Plans that are made are generally not backed by the necessary action to implement them. The way the EPBC Act currently operates implies that the goal is to list a species and prepare a plan, rather than achieve environmental outcomes. Under these arrangements it is not surprising that the list of threatened species and communities has increased over time and there have been very few species that have recovered to the point that they can be removed from the list.

Cumulative impacts on and threats to the environment are often not well managed under the current settings. Assessment and approval decisions are largely made on a project-by-project basis, with the assessment of impacts largely done in isolation of other current or anticipated projects. This approach underestimates the broadscale cumulative impacts that development can have on a species, ecosystem or region. Each individual development may have minimal impact on the national environment, but their combined impact can result in significant long-term damage.

Submissions to the Review have further pointed to the missed opportunity to incorporate Indigenous knowledge, including holistic land management practices, to protect the environment14. In its submission to the Review, the Central Land Council15 state:

‘The knowledge and understanding held by Indigenous peoples, accrued over tens of thousands of years, provides rich expertise that should be more appropriately valued and engaged in protecting and managing Australia’s environment’.

Although the objects of the EPBC Act include an intent to recognise the role of Indigenous people and promote the use of traditional knowledge, in practice this rarely occurs (see Chapter 2).

Provisions for more strategic approaches that can consider cumulative impacts, such as bioregional plans and strategic assessments, have a history of limited use. Administration of the EPBC Act has contracted to focus on core statutory requirements, such as approving projects.

This focus on project-based assessment and approvals sets the EPBC Act up to deliver managed decline, not sustainable maintenance or recovery. The impacts of development are not counter balanced with legislated recovery processes. This is exacerbated by an ineffective offsets policy. The decision-making hierarchy of ‘avoid, minimise, and only then offset’ is not being applied, with offsets too often used as a default measure not as a last resort (see Chapter 8).

The EPBC Act itself does little if anything to support environmental restoration. Stabilisation of decline let alone a net improvement in the state of the environment cannot be achieved under the current system. Given the state of decline of Australia's environment, restoration is required to enable future development to be sustainable.

1.3.3 - Strategic, national-level opportunities are either poorly implemented or missed

When the EPBC Act was introduced it was intended to be part of a comprehensive package of initiatives, including the Natural Heritage Trust Reserve, which has a main objective ‘to conserve, repair and replenish Australia’s natural capital infrastructure’16. The Act is limited in its ability to strategically conserve biodiversity, manage key threats or quickly respond to emerging threats such as bushfires, biosecurity incursions or other natural disasters.

Each MNES is separately described and managed through individual species or community recovery plans, and opportunities for more coordinated action are missed. MNES influence funding programs that encourage restoration and threat abatement (such the National Landcare Program or the Threatened Species Recovery Fund). However, funding is often scattergun, unreliable and short-term and funding cycles do not support an enduring, focused or prioritised approach.

Provision in the EPBC Act for managing threats—such as the listing of key threatening processes (KTPs) and the development and implementation of threat abatement plans—were designed to support a coordinated and strategic approach to dealing with the major threats that cause the majority of extinctions and declines in Australia. However, these mechanisms are not achieving their intent and many threats in Australia are worsening17.

The current list of 21 KTPs is not comprehensive, as the process largely relies on the receipt of nominations from the public. The listing process is slow and subject to ministerial discretion. No new KTPs have been listed since 2014, and several major threats—such as inappropriate fire regimes—are not listed. There is a tendency to focus on immediate or existing threats where strong evidence is available, rather than emerging threats. This is despite evidence that early intervention on emerging threats is more cost effective and achieves better outcomes than responding to entrenched threats18. Persistent and emerging threats can have devastating impact on threatened species and can also lead to more common species becoming rarer.

Even once a KTP is listed, action to address the threat is not required. The decision to make and implement a threat abatement plan is discretionary. The Threatened Species Scientific Committee19 noted in their submission to the Review:

‘A Key Threatening Process listing has no statutory obligations. Thus, a listing is ineffectual unless a Threat Abatement Plan is made or adopted. This constraint means that Key Threatening Processes are not prioritised in a resource-constrained environment.’.

The threat abatement planning process is only up-to-date for 6 of the listed KTPs. The remainder are either not required, an alternative, non-statutory approach is used, or the plans have exceeded or are about to exceed the statutory 5-year review deadline20.

The EPBC Act does not refer to climate change or explicitly require consideration of future pressures. There is no avenue for an emergency listing of newly threatened species in response to natural disasters such as the 2019/20 bushfires.

The administration of the EPBC Act has contracted to focus on core requirements. Pursuing strategic opportunities to improve outcomes in the national interest have become discretionary, particularly when resources are constrained. The Commonwealth has retreated to transactions, rather than ‘leading’ strategically in the national interest.

Footnotes

[11] Section 3A of the EPBC Act defines the principles of ecologically sustainable development.

[12] Inter-Governmental Agreement on the Environment (1992).

[13] Data provided by the Department of Agriculture, Water and the Environment, 16 June 2020.

[14] See the following submissions in response to the EPBC Act Review Discussion Paper for further information: Indigenous Advisory Committee, BHLF-QJCP-UG3C-Z; Kimberley Land Council, ANON-K57V-XZTA-M; Northern Australia Indigenous Land and Sea Management Alliance, ANON-K57V-XQKU-P; Indigenous Reference Group to the Ministerial Forum on Northern Australia ANON-K57V-XYV5-9; Threatened Species Recovery Hub. ANON-QJCP-UGT1-F; Federation of Victorian Traditional Owner Corporations. ANON-K57V-XY7E-T; Northern Land Council, ANON-QJCP-UGJD-R.

[15] Central Land Council, ANON-K57V-XQQ4-U, Submission in response to EPBC Act Review Discussion Paper.

[16] The Natural Heritage Trust Reserve is established by the Natural Heritage Trust of Australia Act 1997.

[17] The discussion in this section draws extensively on submissions in response to the EPBC Act Review Discussion Paper from: Threatened Species Scientific Committee, ANON-K57V-XF2U-J; Australian Academy of Science, ANON-K57V-XQQM-M; The University of Melbourne; The University of Queensland; Australian National University; Charles Darwin University, ANON-K57V-XYS3-4; Invasive Species Council and Bush Heritage Australia. ANON-K57V-XQ1E-C.

[18] Invasive Species Council and Bush Heritage Australia, ANON-K57V-XQ1E-C, Submission in response to EPBC Act Review Discussion Paper.

[19] Threatened Species Scientific Committee, ANON-K57V-XF2U-J, Submission in response to the EPBC Act Review Discussion Paper.

[20] Threatened Species Scientific Committee, ANON-K57V-XF2U-J, Submission in response to the EPBC Act Review Discussion Paper.

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