Under the Act, certain ‘actions’ are prohibited unless prior approval is obtained from the Australian Government Environment Minister. Actions that ‘trigger’ the approval process under the EPBC Act include those that have, will have, or are likely to have a significant impact on:
• a ‘matter of national environmental significance’ (these matters are listed in the Act); or
EPBC ACT 79 Commonwealth land, and on the environment in general if the action is taken on Commonwealth land; or
• the environment, inside or outside Australian jurisdiction, where the actions are undertaken by the Australian Government or Australian Government agencies. The Department of the Environment and Heritage (DEH) noted that the approach to native vegetation and biodiversity conservation regulation under the EPBC Act differs from that generally taken by the States and Territories:
In contrast to most State and Territory vegetation protection legislation that directly regulates the clearing of areas of native vegetation, the EPBC Act does not specifically apply to native vegetation per se. Rather the EPBC Act is triggered only when a specific action has a significant impact on a matter of national environmental significance such as listed threatened species. (sub. 190, p. 3)
Thus, the legislation potentially could apply to clearing of native vegetation if the action has a significant impact on one of the areas listed above. The definition of action in the legislation is very broad — projects, developments, undertakings, activities or a series of activities, or an alteration to any of these (EPBC Act, s. 523) — but environmental assessment and approval are required only for ‘new’ actions. Approval is not required to continue actions that were authorised before commencement of the Act or that represent a lawful continuation, in the same place, of land use started before the Act’s commencement, unless these actions are enlarged, expanded or intensified (ss 43A–43B). DEH considered that there is confusion about this exemption:
… [there is] a misconception that a cyclical increase in use occurring sometime after the commencement of the Act is an enlargement, expansion or intensification and therefore subject to the assessment and approval requirements of the Act. (sub. 190, p. 16)
The Act contains other exemptions from the environmental assessment and approval process, including discretion for the Minister to exempt an action if it is in ‘the national interest’ to do so. Because of these exemptions, DEH submitted that:
… the overwhelming majority of agriculture activities do not trigger the EPBC Act. Examples include routine grazing (including periodic grazing), cropping and crop rotation, maintenance of existing dams, roads and fences, and continuation of existing weed control programs.
2 Amongst other things, the definition of ‘environment’ under the Act includes ecosystems and their parts, natural and physical resources and the heritage values of places (s. 528).
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the actions of individual farmers rarely meet the threshold test of having a ‘significant impact’ on a matter of national environmental significance as defined in the Act. (sub. 190, p. 3)
Indeed, the Act places more onerous requirements on the Australian Government as a landholder and in terms of its activities, than on the private sector. This is because Australian Government actions that have a significant impact on the environment (which is broader than ‘matters of national environmental significance’) are regulated. In addition, most of the biodiversity provisions in chapter 5 of the Act are binding only on Australian Government agencies, or in Commonwealth areas.
Matters of national environmental significance
The triggers most likely to subject private sector activities to environmental assessment and approval are matters of national environmental significance. The Act currently lists seven of these:
• World Heritage properties;
• National Heritage places (since 1 January 2004);
• wetlands of international importance (Ramsar wetlands);
• listed threatened species and ecological communities;
• internationally protected listed migratory species;
• Commonwealth marine areas; and
• nuclear actions.
In the first three years of the Act’s operation, ‘listed threatened species and ecological communities’ was the most common trigger for assessment, including for agricultural activities (appendix B). DEH argued that:
Conceptually … it is difficult to envisage how or why the farming sector might be treated differently from other sectors, particularly given other sectors are more affected by the protection of species and communities afforded by the Act both in overall numbers of referrals and in the overall value of projects. (sub. 190, p. 5)
The Environment Minister may add additional matters of environmental significance to this list through regulations, but must consult with the States and Territories before doing so.
Some participants commented on the list of matters of national environmental significance. For instance, the Brisbane Region Environment Council (sub. 132, p. 2) considered the triggers ‘narrow and insufficient’ while the
EPBC ACT 81 clearing be included as a matter of national environmental significance so that assessment and approval would be required for land clearing of areas greater than 100 hectares.
Significant impact
As stated above, approval under the EPBC Act is required if an action has (or is likely to have) a ‘significant impact’ on certain matters (for example, a matter of national environmental significance). Despite its importance in the regulatory regime, the term ‘significant impact’ is not defined in the EPBC Act or its regulations. However, DEH has issued EPBC Act Administrative Guidelines on Significance (EA 2000) which set out criteria for judging whether an impact is likely to be significant. Supplements to the Guidelines have been produced for some specific species of interest to the agricultural sector, such as the Bluegrass ecological communities, the Spectacled Flying-fox and the Grey-headed Flying-fox. The Guidelines are currently being reviewed (DEH, sub. 190).
While these publications may help clarify the meaning of significant impact, the National Farmers’ Federation (NFF) observed:
… these guidelines are non-binding, provide no statutory protection and do not provide any guidance as to how a referred action will be assessed. (sub. 128, p. 27)
The absence of clear guidance on the meaning of this term contributes to uncertainty regarding the scope of the operation of the Act. The Queensland Farmers’ Federation (QFF) submitted that:
From a producer’s perspective, the amount of knowledge required for them to determine if an action they propose to undertake constitutes a significant impact and the referral lodgement process is daunting, though the establishment of the EPBC Information Officer based with the National Farmers’ Federation has assisted in clarifying the process and has provided useful advice ... (sub. 177, p. 18)
In addition to producing administrative guidelines and publications such as fact sheets, DEH has established other arrangements to help landholders understand and comply with the Act. Examples include:
• development of the EPBC Act website (www.deh.gov.au/epbc), including a section specifically for farmers;
• funding a full-time EPBC Act officer position at the NFF; and
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referrals of agricultural activities and to give landholders information about how to access maps and data on matters of national environmental significance.
Assessment and approval processes
Actions that trigger the EPBC Act are required to undergo an environmental assessment and approval process that involves three key stages:
• referral by the proponent;
• assessment; and
• approval.
Essentially, the Act requires case-by-case assessment of certain activities to determine whether or not they may proceed. AgForce Queensland commented on this approach:
The Federal systems tend to have more ‘ground-truthing’ involved. For example, the
EPBC Act 1999 referral process aims at examining the individual’s case rather than
adopting a broad landscape approach …
A system closer to the Federal Government’s approach to identifying key issues and managing them on an individual (or regional) basis results in far more positive outcomes. (sub. 54, p. 42)
In its recent audit of referrals, assessments and approvals under the Act, the Australian National Audit Office (ANAO 2003, p. 12) concluded that processes were ‘generally thorough and well documented’ and that they were improving with experience.
Referral
The EPBC Act (s. 68) requires those proposing to take an action that they think will have, or is likely to have, a significant impact on a matter protected, to refer a proposal to the Australian Government Environment Minister for a decision on whether it is a ‘controlled action’. Certain State and Territory agencies may also refer an action or the Environment Minister may request a referral (s. 70).
As noted by Gecko – Gold Coast & Hinterland Environment Council (sub. 127), the requirement for proponents to establish whether an action should be referred can be onerous. However, where a proponent is in doubt, an action may be referred for a binding decision from the Minister on whether it is a controlled action.
EPBC ACT 83 whether the proposal is a controlled action and which of the controlling provisions apply. A controlled action then proceeds to the assessment stage.
DEH (sub. 190) submitted that only 27 of the 958 referred actions as at 31 July 2003, related to ‘agriculture and forestry’. Seventeen of these were ‘not controlled actions’ (or were withdrawn or lapsed) and could proceed. Of those requiring approval, three were approved, one was rejected, one was withdrawn and five were still undergoing assessment. (Appendix B contains additional statistics on operation of the Act). These statistics suggest that the Act is having little direct impact on agricultural activities, a view supported by DEH (sub. 190) and by the ACF:
Apart from contradicting the claims of farmers that the EPBC Act is causing unreasonable hardship on their operations, the figures suggest a disturbing trend of non- compliance within the agricultural sector with the existing provisions of the EPBC Act. … the EPBC Act as currently drafted should be attracting a greater number of referrals from the agricultural sector than it currently is. After all, the agricultural sector is a sector that:
• has a direct impact on approximately 60% of the Australian landscape;
• is largely responsible for clearing over 500 000 hectares of native bushland every year … (ACF, sub. 146, attachment 2, p. 3)
Similarly, WWF Australia considered that:
… the evidence indicates that the EPBC Act has had little or no impact on landholder decisions in relation to clearing native vegetation, and consequently are likely to have had minimal economic effect on landholders despite claims to the contrary … (sub. 108, p. 3)
In contrast, the NFF claimed that:
… the small number of referrals is unrepresentative of the real effect of the Act in producing both real and perceived uncertainty within the farming sector. (sub. 128, p. 12)
While the QFF submitted that:
It is difficult to determine the major impacts on agricultural practices and production, especially any long-term impacts given the EPBC and VMA [Vegetation Management Act (Qld)] are comparatively new pieces of legislation. Further, it is difficult to determine the impacts on individual producers and growers … and the combined impacts of the regimes with other environmental and natural resource management reform agendas, such as agendas associated with water use and allocation. (sub. 177, p. 11)
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Council (sub. DR311, p. 2) noted ‘what appears to be the growing potential of the … [Act] to impact on the mining and resources sector’ after a Federal Court decision in December 20033 indicated that the Environment Minister is required to consider all likely consequential impacts of an action and not just its immediate direct impacts.
DEH also acknowledged that application of the Act to actions in sectors other than agriculture (for example, the Meander Dam in Tasmania and the Paradise and Nathan Dams in Queensland) may affect the agricultural sector. However, it observed that such projects would be subject to State and Territory assessment and approval in any case.
FINDING 4.1
The actual and perceived impacts of the EPBC Act on landholders appear to differ markedly. In terms of preventing activities, or of requiring activities to undergo the assessment and approval process, the EPBC Act to date has had little direct impact on the agricultural sector. However, uncertainty about its potential future impacts has been a concern for some landholders.
Assessment
If the Minister determines that approval is not required, the action may proceed provided other approvals, such as State and Territory approvals, have been obtained. For controlled actions, the Minister must choose, generally within 20 business days, how the impacts of the proposed action will be assessed. The following assessment options are available to the Minister under the Act:
• preliminary documentation;
• an accredited assessment process — a bilateral agreement or Ministerial declaration (see below);
• a public environment report;
• an environmental impact statement; or
• a public inquiry. (s. 87)
These options vary in terms of the information that must be supplied and the extent of public consultation required (appendix B). If a bilateral agreement is in place, the assessment will be conducted by the State or Territory on behalf of the Australian
3 Queensland Conservation Council Inc v Minister for the Environment and Heritage FCA 1463, 19 December 2003.
EPBC ACT 85 which the declaration is made will conduct the assessment. To date, the Minister has usually required assessment on the basis of preliminary documentation or an accredited assessment process. Both of these options may result in fewer delays and lower information costs for proponents relative to the other assessment options.
Bilateral agreements
Some participants were concerned about potential duplication and ‘layering’ of regulatory requirements with respect to the environment. For instance, the QFF stated that:
In isolation the EPBC and VMA [Vegetation Management Act (Qld)] may not disastrously impact on landholders however, together and combined with the myriad of other environment natural resource management focused reforms it is the cumulative impacts that may be the cause of most concern at the grass-roots level. (sub. 177, p. 4)
In addition to potentially reducing duplication of regulatory requirements by restricting the Australian Government’s role to certain matters (such as matters of national environmental significance), the EPBC Act also allows for ‘bilateral agreements’ to reduce potential duplication and inconsistencies in environmental assessment and approval, and to improve timeliness (s. 44). A bilateral agreement between the Australian Government and a State or Territory Government allows for Australian Government accreditation of environmental assessment and/or approval processes in the State/Territory (or vice versa). To date, the Australian Government has signed bilateral agreements with Tasmania (2000), the Northern Territory (2002) and Western Australia (2002). It is difficult to assess whether timeliness has improved as a result of the bilateral agreements due to the limited number and age of such agreements in place, and the fact that only some referrals are assessed under them. Where there is no bilateral agreement, State and Territory assessment processes can be accredited case-by-case (DEH, sub. 190).
Some participants considered that there is no problem of duplication or inconsistency between the States and Territories and the Australian Government. For example, the SA Government noted that ‘there do not appear to be problems in this regard’ (sub. DR324, p. i).
Similarly, the WA Government observed:
There is, in general, no problem of inconsistency between the Commonwealth’s [EPBC Act] … and Western Australia’s native vegetation and biodiversity conservation regimes. The normal practice of the Commonwealth is to accredit the State’s assessment process on a case-by-case basis, so that any dual assessment is avoided. This will be formalised when a bilateral agreement between the Commonwealth and Western Australia comes into effect [this came into effect in
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is carried out by the State for all matters requiring approval under Part 9 of the EPBC Act. (sub. 151, p. 6)
However, the WA Government also noted that the petroleum industry in Western Australia had expressed concerns about overlaps between the EPBC Act and the Australian Government’s petroleum legislation.
The Victorian Government (sub. 185) said that there needs to be a bilateral agreement between Victoria and the Australian Government to recognise the role of Victorian legislation in achieving national environmental goals and to promote cost- effective achievement of those goals.
In contrast, the Brisbane Region Environment Council was concerned that a bilateral agreement might reduce protection for the environment in Queensland:
Future application of the EPBC Act in Qld may be hampered by a bilateral agreement with the Qld Government which would have powers delegated by the Commonwealth particularly to the State Works Act and the inadequate Integrated Planning Act 1997 [IPA]. This IPA has featured many rollbacks of environmental standards … It is an
anathema to most communities and to many thinking Councillors. [italics in original]
(sub. 132, p. 1)
Gecko – Gold Coast & Hinterland Environment Council considered that a ‘layering’ of regulatory requirements by different levels of government can be beneficial:
One of the benefits of this legislation [EPBC Act] is the control on state government infrastructure, where the proponent and the regulator are the same. The other benefit is that the nexus between developers and state government Ministers is broken by the requirement for the Commonwealth to oversee assessment and approval of proposed developments. (sub. 127, p. 6)
Approval
On the basis of the completed assessment, the Minister generally has 30 business days (at least 40 business days if a commission has conducted a public inquiry) to decide whether or not to approve the action (with or without conditions). Generally, before doing so, the Minister must receive a notice from the relevant State or Territory Government that impacts of the action (on matters other than those of national environmental significance) have been assessed.
In deciding whether to approve an action, and whether to attach conditions to it, the Minister must consider economic and social matters in addition to environmental matters (s. 136). Information about economic and social matters is obtained from
EPBC ACT 87 information contained in the assessment documentation (DEH, sub. 190).
In 2002-03, an approval was refused for the first time, while 24 controlled actions were approved with conditions and one was approved with no conditions (appendix B).
Biodiversity conservation
Chapter 5 of the EPBC Act contains other mechanisms to encourage biodiversity conservation. In general, however, only Australian Government agencies are required to comply, or compliance is required only for Commonwealth areas. That said, some non-coercive provisions, such as conservation agreements, may apply to the private sector.
The provisions for listing threatened species, ecological communities and key threatening processes are outlined below. Other biodiversity provisions are outlined in appendix B.
Listings of threatened species, ecological communities and key threatening processes
The EPBC Act requires the Minister to establish a list of threatened (native) species (ss 178–80) and a list of threatened ecological communities (ss 181–2) (table 4.1).
Table 4.1 Categories of threatened species and ecological communities
Threatened species Threatened ecological
communities
Extinct 3
Extinct in the wild 3
Critically endangered 3 3
Endangered 3 3
Vulnerable 3 3
Conservation dependent 3
Source: EPBC Act (ss 178–80; ss 181–2).
In addition, the Minister must establish a list of ‘key threatening processes’ — a process which ‘threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community’ (s. 183).
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all of the eligible threatened species and ecological communities are included in the lists (s. 185), this requirement does not apply to the list of threatening processes. At 30 June 2003, total listings were:
• threatened species — 1611;
• threatened ecological communities — 29; and
• key threatening processes — 13 (DEH 2003, p. 205).
Although not directly comparable (for example, because not all ecosystems would necessarily be eligible for listing as threatened under the EPBC Act), a few participants (for example, the ACF, sub. 146) observed that the total numbers of threatened species and ecological communities listed under the Act are significantly lower than those identified in the Australian Terrestrial Biodiversity Assessment 2002 (NLWRA 2002b), which found that Australia has almost 2900 threatened ecosystems.
The threatened species and ecological communities lists maintained under the EPBC Act do not necessarily match similar lists maintained by the States and Territories. For example, with respect to species found in the Shoalhaven area that are listed under the NSW Threatened Species Conservation Act 1995, Shoalhaven City Council (sub. 98) observed that 24 plants and 26 animals are also listed under the EPBC Act. However, it said that some local species listed under the EPBC Act