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Australian Centre for Agriculture and Law, University of New England

Submission in response to discussion paper

Some have argued that past changes to the EPBC Act to add new matters of national environmental significance did not go far enough. Others have argued it has extended the regulatory reach of the Commonwealth too far. What do you think?

The national loss of biodiversity documented in the national State of Environment Report 2016, and the significant additional impacts likely with climate-related drought, fires and flood, demonstrate that environmental governance arrangements, at all levels of government, are not effective. This is for many reasons, including the relative weakness of national and state protections, the problems of non-feasibility of implementation given the available public and private resources; and the lack of a credible system to monitor and discipline effective implementation. A robust system of meta-governance of biodiversity protection is essential to provide (1) independent and scrupulous oversight of the implementation and performance of biodiversity protection at all levels; (2) a viable business model for the efficient implementation of biodiversity protection, to ensure sufficient public and private resources are deployed efficiently; (3) proper addressing of Australia's obligations under the Convention on Biodiversity to a comprehensive biodiversity governance system that does provide strong public and private economic incentives to implement protective regimes, and which does fully engage all stakeholders in effective protection and restoration.

How could the principle of Ecologically Sustainable Development (ESD) be better reflected in the EPBC Act? For example, could the consideration of environmental, social and economic factors, which are core components of ESD, be achieved through greater inclusion of cost benefit analysis in decision making?

The recent processes to approve the Adani mine provide a powerful illustration of the failure of processes to implement ESD in practice. Through a process of fragmentation of the approval for each component of the total project, and politicisation of the EIA process for each component, the overall risks of the development were minimised; and the approvals compromised.
The concept of ESD inevitably requires a tradeoff between ecological loss and economic gain , and the TBL concept assumes that environment, money and society are fungible. It considers each project without considering the broader effect of accumulating harm across the environment, other than where particular species have been identified as most at risk. Given the accumulation of harm, this does not seem to achieve the underlying aims of ecological sustainability. The scientific data amply support this conclusion.
For this reason, I believe that implementation of ESD should more explicitly require consideration of the overall trends in ecological loss, not just site specific and fragmented consideration. Further, it should require consideration of the cumulative impact of projects (past and currently under consideration or development).
Finally, there is a need for objective independent oversight of both the overall effectiveness of ESD processes (at all levels); and the integrity of implementation of processes at all levels of government.

Should the objects of the EPBC Act be more specific?

I refer to the reports of the Australian Panel of Experts in Environmental Law in relation to the overall 'architecture' and drafting of the PBCA. For an overview see https://static1.squarespace.com/static/56401dfde4b090fd5510d622/t/58f99…
In addition, I believe that the legislation should specifically indicate that the legislation is intended to ensure that Australia (both at a national and state level) does implement its commitments under the 1992 Convention on Biodiversity and the associated Rio Convention, referencing the 1972 Stockholm Declaration (http://www.un-documents.net/unchedec.htm) contained 26 policy principles for sustainability and development. Specific parts of the legislation should address each of the specific commitments, note below.
The 1992 Convention on Biological Diversity (https://www.cbd.int/convention/text/ ) contains 42 Articles. The Convention Articles impose broad stewardship obligations on signatory States, requiring among other things: strategies to protect the environment (Art. 6); a robust system of in-situ protection of biodiversity (Art. 8); to manage ex-situ species preservation (Art. 9); govern biodiversity resources for sustainable use (Art. 10); a system of suitable incentives to protect biodiversity (Art 11); systematic impact assessment (Art. 14); and provide funding for the purposes of the Convention (Art. 20). The Rio Declaration on Environment and Development of 1992 (http://www.unesco.org/education/pdf/RIO_E.PDF) contains 27 Principles for implementing the Stockholm Declaration but with an emphasis on sustainable development obligations of signatory states, which are generally considered to be elements in applying the CBD. Other international instruments and jurisprudence extend these principles, but are not the focus of this evaluation.
Four elements from the CBD deserve particular attention.
? The requirement that the signatory state puts in place a viable system of biodiversity protection with at least the following elements: biodiversity strategies, in-site and ex-situ protection, incentives, environmental impact assessment, and sufficient funding. The specific requirements include (but are not limited to):
? That the signatory state has sound strategies to protect the environment (Art. 6) taking into account intergenerational equity (Rio Principle 3)?
? that the signatory state has a reliable biodiversity monitoring system (Art. 7)
? That the signatory has a robust system of in-situ protection of biodiversity (Art. 8)
? That the signatory has a system to manage ex-situ species preservation (Art. 9)
? That there a reliable system to govern biodiversity resources for sustainable use (Art. 10)
? That the signatory has a system of suitable incentives to protect biodiversity (Art 11), including the use of polluter pays and appropriate economic structures (Rio Principle 16)
? That there is a reliable system of environmental impact assessment (Art. 14)
? That there are suitable mechanisms to provide funding for the purposes of the Convention (Art. 20)
? That the signatory state has a viable environmental Impact assessment and protective regime (Rio Principles 4 and 17)
? That the signatory state has addressed patterns of production and consumption and trade (Rio Principles 8, 12, 13, 14)
? Article 10 and Rio Principles 16 and 22, supported by Article 7 (monitoring), Article 12 (research and training), Article 13 (education), Article 14 (impact assessment), Art 17 (information exchange), Article 26 (reports), coupled with the Articles discussed above, outline for the country to put in place a transparent system to govern implementation. Principle 11 of the Rio Declaration contributes the requirement for an effective system of environmental laws.
? The Rio Declaration, notably Principles 2,3,8, and 15 create the requirement to apply the Precautionary Principle, as part of CBD implementation. In the CBD Preamble this principle is stated as where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. A slightly different version is expressed in the Rio Declaration: where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation
? The requirement for benefit sharing and participatory processes. In the CBD citizen engagement issues are given limited consideration other than in the CBD Preamble and Article 15 (cultural respect and benefit sharing), but the Rio Declaration expands this (beyond Indigenous people and women?s interests) to require.
? a system that ensures respect for indigenous people?s interests, including equitable benefit sharing and cultural respect for their interest in genetic resources (CBD Preamble, CBD Article 15, 8, 10 and Rio Principle 22)
? a system to ensure respect for women's interests in biodiversity (CBD Preamble and Rio Principle 20); and
? a system for citizen participation in managing biodiversity (Rio Principle 10).

Should the matters of national environmental significance within the EPBC Act be changed? How?

Given my response 3. above, matters of national environmental significance should not just be limited to narrow biophysical matters. In particular, for example, the balance of economic incentives towards over-use is clearly a matter of fundamental environmental significance, as are issues of benefit sharing, or the inadequacy of resources within the community to implement strategies that could help. The lack of a comprehensive governance system, incorporating non-government actors, is also a matter of fundamental significance. Addressing these matters would require that the national government pay more attention to the feasibility of biodiversity protections, including the improving the feasibility of good environmental stewardship by farmers and other land stewards.
These are matters that must be addressed systematically, if Australia is to alter its current trajectory of biodiversity loss

Which elements of the EPBC Act should be priorities for reform? For example, should future reforms focus on assessment and approval processes or on biodiversity conservation? Should the Act have proactive mechanisms to enable landholders to protect matters of national environmental significance and biodiversity, removing the need for regulation in the right circumstances?

I refer again to the Australian Panel of Experts on Environmental Law proposals for reform as providing key guidance on this. However, I believe that the most fundamental reform that is needed is the meta governance processes that ensure the implementation and integrity of implementation of the legislation.
For details see Martin, P., Kennedy, A., & Williams, J. (2014). Effective Law for Rural Environmental Governance: Meta?Governance Reform and Farm Stewardship. In R. Levy, M. O?Brien, S. Rice, P. Ridge, & M. Thornto (Eds.), New Directions for Law in Australia (pp. 263?272). Canberra ACT: ANU Press. https://doi.org/http://dx.doi.org/10.22459/NDLA.09.2017

What high level concerns should the review focus on? For example, should there be greater focus on better guidance on the EPBC Act, including clear environmental standards? How effective has the EPBC Act been in achieving its statutory objectives to protect the environment and promote ecologically sustainable development and biodiversity conservation? What have been the economic costs associated with the operation and administration of the EPBC Act?

See my responses to 5. above

What additional future trends or supporting evidence should be drawn on to inform the review?

What happens to the environment depends largely on what happens to society, with particular reference to the community that interacts with the environment. Socio-economic trends, particular among land and other resource stewards, will be very significant. This includes the increasing amount of land under Aboriginal stewardship (with questions about the economic motivation and feasibility for them to do what is needed as pressures increase), and the demographics and economics of Australian farmers.
It is not sensible to create a regime that cannot be feasibly implemented by those who will have roles and responsibilities within it.

Should the EPBC Act regulate environmental and heritage outcomes instead of managing prescriptive processes?

I believe the the current model in which national and state laws have a substantial overlap in focus is not efficient. It would make more sense for the EPBCA to spell out Australia's commitments, and to focus on ensuring that between national and state agencies, these are implemented. That would include ensuring a national system of federal/state/local accountability, and ensuring that the system components of governance do operate in accord with our national commitments, and ensuring that implementation is feasible and fair (and happens with integrity).

Should the EPBC Act position the Commonwealth to take a stronger role in delivering environmental and heritage outcomes in our federated system? Who should articulate outcomes? Who should provide oversight of the outcomes? How do we know if outcomes are being achieved?

In the approach I envisage, the national government should set performance standards/goals to be achieved across the whole country, and translate these into state or even regional goals. The mega-governance of these things should be the responsibility of the national government, but largely through an independent environment authority (akin to a national corporations or competition authority).
The current State of Environment reporting should be more directly tied to governance performance, to provide a tangible report card on progress at all levels of government. The role and performance of industries should be explicitly assessed as part of this process.
State and federal accountability for performance (ie achieved outcomes) should be clear and transparent to voters. This would require national and state performance reporting.

Should there be a greater role for national environmental standards in achieving the outcomes the EPBC Act seeks to achieve?

In our federated system should they be prescribed through:

  • Non-binding policy and strategies?

  • Expansion of targeted standards, similar to the approach to site contamination under the National Environment Protection Council, or water quality in the Great Barrier Reef catchments?

  • The development of broad environmental standards with the Commonwealth taking a monitoring and assurance role? Does the information exist to do this?

Under the model I propose, clear performance criteria would be developed at all levels of government, and performance reported.
The State of Environment reports do provide sufficient information to enable evidence-based judgements to be made. Naturally, some will be contested.


How can environmental protection and environmental restoration be best achieved together?

  • Should the EPBC Act have a greater focus on restoration?

  • Should the Act include incentives for proactive environmental protection?

  • How will we know if we?re successful?

  • How should Indigenous land management practices be incorporated?

Restoration has to achieve a greater focus - the losses that have happened, and the need for connectivity to protect what remains, make this inevitable.
The issues of incentives and feasibility are at the heart of effectiveness, and of our international commitments. They have to be addressed.
See for example
Martin, P. (2018). Australia needs a feasible business model for rural conservation. Farm Policy Journal, 15(3), 49?55.
Martin, P., Cosby, A., & Werren, K. (2017). The environment needs billions of dollars more: here ? s how to raise the money. The Conversation, pp. 2?5. Retrieved from https://theconversation.com/the-environment-needs-billions-of-dollars-m…
The matters I have raised above address the need to incorporate Indigenous aspects at the heart of the goals of the EPBCA (reflecting the CBD) and the need to consider the feasibility of their land stewardship given the current poor socio-economic status of these citizens, and the very large areas over which they have stewardship.

Are heritage management plans and associated incentives sensible mechanisms to improve? How can the EPBC Act adequately represent Indigenous culturally important places? Should protection and management be place-based instead of values based?

I am not able to comment meaningfully on these, other than to highlight that current approaches are grossly inequitable in many ways, but particularly in how (often meaningless) consultation is practiced
See
Martin, P. (2018). Free Prior Informed Consent - Mere Politics or Meaningful Change? In C. Lawson & K. Adhikari (Eds.), Biodiversity, Genetic Resources and Intellectual Property (pp. 123?150). New York USA: Routledge, Taylor & Francis Group.

Should the EPBC Act require the use of strategic assessments to replace case-by-case assessments? Who should lead or participate in strategic assessments?

Implicit in my earlier comments is that both strategic and site or issue specific analysis will always be required. However, there should be a hierarchy of implementation, with a strong meta-governance framework to ensure integrity and accountability. In particular it is essential to remove political interference that undermines trust in the system.

Should the matters of national significance be refined to remove duplication of responsibilities between different levels of government? Should states be delegated to deliver EPBC Act outcomes subject to national standards?

Implicit in what I have written is a shift in the role of the commonwealth, more towards ensuring that our international commitments are fully implemented through a nested system of rules and implementation, supported by a viable economic framework, and with powerful evaluation and transparent reporting.

Should low-risk projects receive automatic approval or be exempt in some way? How could data help support this approach? Should a national environmental database be developed? Should all data from environmental impact assessments be made publicly available?

All EIS data and deliberations should be transparent to the community, but so too should be objective assessment of the integrity of these documents and the evaluations, if we are to continuously improve our performance

Should the Commonwealth?s regulatory role under the EPBC Act focus on habitat management at a landscape-scale rather than species-specific protections?

See earlier comments

Should the EPBC Act be amended to enable broader accreditation of state and territory, local and other processes?

see earlier comments

Are there adequate incentives to give the community confidence in self-regulation?

Self-regulation is different to co-regulation. Co-regulation does have some potential but at the present time we lack integrity safeguards to ensure reliable performance. Recent experience with private building certifiers give ample evidence of the potential problems without strong governance mechanisms.
See Lawson, A., & Martin, P. (2018). Evaluating the Governance Potential of Voluntary Stewardship Programs for Farmers. Environmental and Planning Law Journal, 35(3), 331?354. Retrieved from https://hdl.handle.net/1959.11/23510

How should the EPBC Act support the engagement of Indigenous Australians in environment and heritage management?

  • How can we best engage with Indigenous Australians to best understand their needs and potential contributions?

  • What mechanisms should be added to the Act to support the role of Indigenous Australians?

I have addressed this issue in earlier comments.
It is essential not only that Indigenous Australian interests be recognised, and that our commitments to benefit sharing and engagement be genuinely implemented; but also that the practical socio-economic impediments to good stewardship practices on their lands be addressed. If this does not happen, then the future outcomes on Indigenous lands are likely to become a new social justice problem.

How should community involvement in decision-making under the EPBC Act be improved? For example, should community representation in environmental advisory and decision making bodies be increased?

There are fundamental problems with the integrity of community engagement processes at all levels. Adding more representation will not necessarily do much about these. What may help are genuine processes to assess and ensure the integrity of community engagement.
This would be one role of an independent supervisory agency, operating at a national level.

What is the priority for reform to governance arrangements? The decision-making structures or the transparency of decisions? Should the decision makers under the EPBC Act be supported by different governance arrangements?

I have discussed these issues above

What innovative approaches could the review consider that could efficiently and effectively deliver the intended outcomes of the EPBC Act? What safeguards would be needed?

There has been substantial innovation in natural resource governance and in regulatory design and practice over recent years. Concepts like 'smart regulation', behavioural system-based approaches, the use of markets; co-regulation and the like all have potential. I list some of my relevant publications below.
However, the overall issue is the integrity and reliability of the system, and the most significant innovation would be to create a strong national framework for environmental meta-governance. Without this, rapid progress is not likely.
See
Lawson, A., & Martin, P. (2018). Evaluating the Governance Potential of Voluntary Stewardship Programs for Farmers. Environmental and Planning Law Journal, 35(3), 331?354. Retrieved from https://hdl.handle.net/1959.11/23510
Martin, P., Dormer, T., Eyre, D., Toni, P., Gail Broadbent, W., & Sammon, M. (2007). Concepts for private sector funded conservation using tax-effective instruments. Land and Water Australia. Canberra ACT. Retrieved from lwa.gov.au/files/products/land-and-water-australia/pr071389/pr071389.pdf
Martin, P., Bartel, R., Sinden, J., Gunningham, N., & Hannam, I. (2007). Developing a Good Regulatory Practice Model for Environmental Regulations Impacting on Farmers (Vol. 6). Canberra, ACT. Retrieved from https://hdl.handle.net/1959.11/2216
Martin, P., & Hine, D. W. (2017). Using behavioural science to improve Australia?s environmental regulation. The Rangeland Journal, 39(6), 551. https://doi.org/10.1071/RJ17105
Martin, P., Kennedy, A., & Williams, J. (2014). Effective Law for Rural Environmental Governance: Meta?Governance Reform and Farm Stewardship. In R. Levy, M. O?Brien, S. Rice, P. Ridge, & M. Thornto (Eds.), New Directions for Law in Australia (pp. 263?272). Canberra ACT: ANU Press. https://doi.org/http://dx.doi.org/10.22459/NDLA.09.2017

Should the Commonwealth establish new environmental markets? Should the Commonwealth implement a trust fund for environmental outcomes?

We do need a feasible business model for eco-protection and restoration, and government clearly cannot carry the funding burden. However, this requires far more sophisticated thinking than is likely with a government trust fund. it requires the creation of a national environmental business model, involving all public and private options and stakeholders.
I would make the environmental business/investment model a national priority, to be pursued through a new independent authority. It is a very difficult and fundamental problem.
See
Martin, P., & Werren, K. (2009). The use of taxation incentives to create new eco-service markets. In L. Lin-Heng, J. Milne, H. Ashiabor, K. Deketelaere, & L. Kreiser (Eds.), Critical Issues in Environmental Taxation Volume VII (Vol. 7, p. pp 511-530). Oxford University Press. Retrieved from https://hdl.handle.net/1959.11/6110
Martin, P., Cosby, A., & Werren, K. (2017). The environment needs billions of dollars more: here ? s how to raise the money. The Conversation, pp. 2?5. Retrieved from https://theconversation.com/the-environment-needs-billions-of-dollars-m…
Martin, P., Dormer, T., Eyre, D., Toni, P., Gail Broadbent, W., & Sammon, M. (2007). Concepts for private sector funded conservation using tax-effective instruments. Land and Water Australia. Canberra ACT. Retrieved from lwa.gov.au/files/products/land-and-water-australia/pr071389/pr071389.pdf
Martin, P. (2018). Australia needs a feasible business model for rural conservation. Farm Policy Journal, 15(3), 49?55.
Martin, P. (2010). Finding a partial cure for rural policy insanity. Australian Farm Policy Journal, 2(May Quarter), 33?42. Retrieved from https://hdl.handle.net/1959.11/6301
Martin, P., Kennedy, A., Page, J., & Williams, J. (2013). Environmental property rights in Australia : Constructing a new Tower of Babel. Environmental and Planning Law Journal, 30(6), 531?552.

What do you see are the key opportunities to improve the current system of environmental offsetting under the EPBC Act?

I would put this under the issue of meta-governance reform to ensure integrity of the system.

How could private sector and philanthropic investment in the environment be best supported by the EPBC Act?

  • Could public sector financing be used to increase these investments?

  • What are the benefits, costs or risks with the Commonwealth developing a public investment vehicle to coordinate EPBC Act offset funds?

Discussed above

Do you have suggested improvements to the above principles? How should they be applied during the review and in future reform?

See particularly the principles from the Australian Panel of Experts in Environmental Law, cited earlier

Is the EPBC Act delivering what was intended in an efficient and effective manner?

The outcomes, being a demonstrable continuing decline in many aspects of Australia's biodiversity status, clearly indicate regulatory failure.
Beneath this, the failure to implement many of the principles of the Convention on Biodiversity (listed earlier) either through the legislation or through related programs, point to underlying problems. I note in particular the failure to address the meta-governance dimension of implementation, notably incentives and resources, and integrity in implementation.

How well is the EPBC Act being administered?

Not at all well.

Is the EPBC Act sufficient to address future challenges? Why?

No - for the reasons discussed above

What are the priority areas for reform?

Meta governance, notably funding and integrity

What changes are needed to the EPBC Act? Why?

I refer to the earlier answers

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Submission ID
ANON-K57V-XFUB-2

In response to

Discussion paper
Author
Australian Centre for Agriculture and Law, University of New England
Stakeholder Category
Academia and Research

Themes

Threatened species
The objects of the Act
Matters of National Environmental Significance
International obligations
Indigenous Australians
Great Barrier Reef
Environmental Impact Assessments
Cumulative impacts
Climate Change