Alice Twomey

Submission in response to discussion paper

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 have outlined three key areas for reform in the EPBC Act to address major threats to biodiversity.1. Absolute protection of critical habitat that is enforced, monitored and investigated by the regulator;
2. Un-referred habitat loss must be monitored and investigated, and appropriate enforcement actions are taken; and
3. Documentation and assessment of cumulative impacts of all developments, including the trajectories of threatened and common species habitat.

Land clearing is a major contributor to the degradation of critical habitat. To protect key areas for biodiversity the EPBC Act needs to include triggers for major land clearing as well as map critical areas where development can never occur (no-go zones). Inclusion of land clearing triggers may help capture some of the larger scale clearing in locations where both threatened species do and do not exist. It is important to protect critical habitats which do not contain threatened species to protect them before they are listed as threatened or vulnerable. Simmonds et al. (2019) identified that species which are listed as vulnerable are not held to the same level of legislation as species listed as threatened or endangered. This study highlights that unless impact assessment criteria become stricter, vulnerable species may become more at risk, whilst still operating under the Act.

These areas need to be monitored to ensure objectives are being met by an independent regulator. It is paramount that science-based decisions are made from objective decision-making criteria. Currently, the decision-maker for controlled actions is the Minister which adds a political dimension to decisions made under the act. In the current decision-making criteria, there is currently very little in the way of outcomes which need to be achieved.

As it stands, the EPBC Act fails to account for the impact of cumulative effects on the environment. Reside et al. (2019) identified that although the southern black-throated finch is listed under the EPBC Act, mostly incremental habitat loss has resulted in large cumulative loss. Of the 7.7 million hectares of threatened species habitat that has been lost since the inauguration of the EPBC Act, 93% of that land clearing has been unregulated (Ward et al. 2019). Ward et al. (2019) investigated referrals for land clearing and identified that referrals are investigated individually. This means that individual land clearing cases are being approved without taking into consideration the impact on the wider region. For example, if several landholders in an area removed 20 hectares which are considered to not have a significant impact, this can result in complete habitat loss on a larger scale. Broad-scale clearing is a massive issue but so are small land clearing cases due to the cumulative effects on an area. This requires changes to the environmental assessment process for controlled actions.

References:
Melton, C., 2017. How Do Offsets for Habitat Loss Compare with Known Habitat of the Target Species? A Case Study of the Endangered Black?Throated Finch (Poephila cincta cincta) (Doctoral dissertation, Honours thesis, BSc, University of Queensland).

Reside, A.E., Cosgrove, A.J., Pointon, R., Trezise, J., Watson, J.E. and Maron, M., 2019. How to send a finch extinct. Environmental science & policy, 94, pp.163-173.

Simmonds, J.S., Reside, A.E., Stone, Z., Walsh, J.C., Ward, M.S. and Maron, M., 2019. Vulnerable species and ecosystems are falling through the cracks of environmental impact assessments. Conservation Letters, p.e12694.

Ward, M.S., Simmonds, J.S., Reside, A.E., Watson, J.E.M., Rhodes, J.R., Possingham, H.P., Trezise, J., Fletcher, R., File, L., Taylor, M., 2019. Lots of loss with little scrutiny: The attrition of habitat critical for threatened species in Australia. Conservation Science and Practice 0, e117.

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

There needs to be a greater focus on environmental protection rather than habitat restoration. Under the current EPBC Act, Adani’s offset plan is given four years to secure offsets from the time the project starts having environmental impacts. It can take more than 30 years to establish an environment suitable for species to inhabit (Reside et al. 2017), meaning that the four year period in which the habitat is being destroyed without offset attempts can be a time period long enough for critical species to be listed as vulnerable, threatened or endangered. The timeline for which offsets are required to occur does not protect habitat or promote biodiversity conservation.

Melton (2017) conducted a study to identify referred activities occurring within the habitat of the endangered Black-Throated Finch and identified that most of the offsets did not achieve their outcome. The largest threat to this species is habitat degradation. This study identified that most of the land that was offset for these referred activities was filled with weeds and thus threatened the habitat of the Black-Throated Finch. These findings demonstrate the importance of ongoing monitoring and investigation of offset land to ensure the offset goals are achieved. This needs to be enforced by the EPBC Act.

Evidence provided by zu Ermagassen et al. (2019) suggests that offsets do not ameliorate the impact of developments. This study identified that globally, no offset strategy has achieved ‘No Net Loss’ in a terrestrial ecosystem. Additionally, offsets detract from other mitigation alternatives such as impact avoidance and impact mitigation. Offsets need to occur before the controlled action can take place.

To address these key issues, the current system of environmental offsetting under the EPBC Act can be improved by:
1. Mapping critical habitat as a ‘no-go zone’, meaning that it can never be developed; and
2. Changing the timeline for offsetting for controlled actions such that offsets need to be demonstrably working before habitat destruction can occur.

References:
Reside, A.E., Cosgrove, A.J., Pointon, R., Trezise, J., Watson, J.E. and Maron, M., 2019. How to send a finch extinct. Environmental science & policy, 94, pp.163-173.

zu Ermgassen, S.O., Baker, J., Griffiths, R.A., Strange, N., Struebig, M.J. and Bull, J.W., 2019. The ecological outcomes of biodiversity offsets under “no net loss” policies: A global review. Conservation Letters, 12(6), p.e12664.

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

I have highlighted three reasons that the EPBC Act is not sufficient to address future challenges in its current state:
1. The EPBC Act is not enforced;
2. The EPBC Act lacks accountability; and
3. The government is not performing its regulative duty.

Of the 7.7 million hectares of threatened species habitat that has been lost since the inauguration of the EPBC Act, 93% of that land clearing has been unregulated (Ward et al. 2019). The findings from this study suggest that the EPBC Act is not enforced when unregulated habitat is lost (Ward et al. 2019). A large contributing factor for the lack of enforcement of the EPBC Act is that there are no means for accountability. For example, the self-assessment requirements to determine if a land clearing activity will have a significant impact on areas of national environment significance assumes that the landholder will lawfully opt to go for a referral if required. Ward et al. (2019) have identified that this assumption does not hold true. There needs to be accountability for these processes and, ultimately, the government needs to perform its regulative duty.

References:
Ward, M.S., Simmonds, J.S., Reside, A.E., Watson, J.E.M., Rhodes, J.R., Possingham, H.P., Trezise, J., Fletcher, R., File, L., Taylor, M., 2019. Lots of loss with little scrutiny: The attrition of habitat critical for threatened species in Australia. Conservation Science and Practice 0, e117.