Why the EPBC fails to protect our environment
When the Environmental Protection and Biodiversity Act was passed in 1999, it was heralded as a major step towards protecting Australia’s environment. Ten years later it is undergoing its first review and some argue that its weaknesses have caused irreversible damage to the environment. Rebecca Zhou reports.
The EPBC was introduced to streamline federal, state and territorial assessments and approval processes on developments. Based on the United States Act for the protection of endangered species, it was introduced as the key piece of environmental legislation on which the Federal Minister for the Environment bases all his decisions. But critics argue that the act leaves too much decision-making power to the Federal Minister for the Environment and as a result, undermines the act’s effectiveness by allowing approval for environmentally harmful projects.
“In the U.S those decisions are delegated to departmental secretaries and independent assessment panels,” said Avril Bones, an activist for the World Wildlife Fund (WWF) “whereas in Australia, the final sign-off goes to the minister and he has the opportunity to disregard advice from his department or from the scientists.”
An example of this was Federal Minister Peter Garrett’s approval for timber company Gunns to build a pulp mill in Bell Bay, Tasmania. In 2007 then Federal Minister for the Environment Malcolm Turnbull approved the mill with 48 conditions that Gunns was required to comply with before construction. In January 2009, Environment Minister Peter Garrett gave the company the green light for construction but not operation on the grounds that the company had not met one condition- which was to conduct adequate hydrodynamic modelling of impacts of the mill’s effluent would have on the Bass Strait.
There are several problems with the series of approvals at play here. The first goes back to 2007 with Turnbull’s decision. Lawyers for Forests, who launched a case against the environment minister in May 2008 said that the approval and subsequent 48 conditions he established failed adequately to address environmental impacts. The main reason for this is that the EPBC can be interpreted in a way that does not legally oblige him to be aware of all potential impacts. Section 132 of the Act says that the minister may choose to obtain more information only if he or she feels it is necessary.
“The Act allows for an action to be approved without knowing what the impact is on the environment, we don’t agree that this is way the Act ought to be construed,” said Vanessa Bleyer SC, leading attorney for Lawyers for Forests.
In spite of this, the LFF’s case was dismissed in the Federal Court in April 2009. Ms Bleyer says that she intends to appeal to the Full Federal Court in August on the grounds that Garrett’s decision is based on a single subjective judgement and that the Act does not allow for a review of the environmental scientific merits of the decision.
“The overwhelming problem with the case was that it was not a merits review and was not based on right or wrong in protecting the environment,” said Greg Ogle, coordinator of the Wilderness Society’s EPBC reform campaign
In the first appeal judgement, Judge Tracey stated that ‘it is not appropriate, in a judicial review proceeding, for the Court to pass upon the merits of scientific advice’. The lawyers say that the lack of provision for the scientific merits of a decision results in flawed conditions including Turnbull’s decision to use Canadian Guidelines to determine the maximum levels of effluent allowed in the Bass Strait. In his 2007 review of the impact of dioxins from the pulp mill, Scientist Dr Wadsley reported that the Canadian Guidelines were inappropriate for the Australian marine environment. Despite this, the Minister decided to follow the advice of Environment Canada.
“It’s not appropriate to apply Canadian guidelines that deal with an already contaminated freshwater environment and apply that to a pristine saltwater environment,” said Ms Bleyer, “particularly in circumstances where there’s an alternative measure that’s been created and relied on by both Australia and New Zealand. If he had relied on our own protocol, the levels would be much lower than they currently are.”
“The extent of ministerial discretion is a major concern as there is nothing in the object of the Act that requires the minister to protect the environment,” said Mr Ogle.
The object of the Act as stated in Section 3 and that it merely requires the minister to ‘provide’ for the protection of the environment. Section 136 specifically states that the minister must do this while considering social and economic factors. The EPBC Fact Sheet published on the departmental website suggests that the minister is expected to prioritise socio-economic implications of an action. The Fact Sheet states that the minister will always consider ‘these critical environmental decisions in the broader context of Australia’s social and economic needs’.
This inherent weakness of the Act means that ministers are subject to external pressure from powerful industrial lobbyists to place socio-economic benefits over environmental impacts. The case of the controversial McArthur Mine Expansion in the Northern Territory is an example of this.
In April 2007 the Aboriginal Land Council won a legal victory against Northern Territory Mines Minister Chris Natt, revoking his approval of the company Xstrata’s proposal to divert the McArthur River 5.5km to the east in order to conduct open-cut mining. The approval was overturned on the grounds that the minister had authorised the mine without complying with the Mining Management Act 2001.
The Swiss-based company was confronted with three options following the revocation; launch an appeal in the High Court, submit a new application to the Federal Minister or do nothing for the moment being and ‘mothball’ the mine. Xstrata took up the second option and in the last month of the approval process declared that it was to lose 300 jobs in addition to the 20% reduction in ore production it has been forced to make due to low metal prices. In January 2009, Peter Garrett re-approved expansion of the $110 million project, authorising a 5.5 diversion of McArthur River and the engineering of a new ecosystem, acts that scientists argue could lead to dire consequences for the environment.
In a statement to the media following his decision Garrett stated that he had ‘taken into account the financial and employment benefits of the mine expansion for the region’ but the government’s primary concern was the project’s impact on migratory birds and the freshwater sawfish. He has imposed monitoring conditions with the intention of mitigating the impact but environmental scientists say that this is useless.
“Monitoring is good. The point we made is if the monitoring spots a major leak, you can’t go in there and take the toxins out of the river,” said Stuart Blanch, a scientist at the Environment Centre of the Northern Territory. “You can put conditions on it but if there turns out to be a real problem then those conditions won’t change matters that much.”
“People muck around with rivers and you don’t get a good outcome. When rivers have been diverted in Victoria for minefields, they lose their heterogeneity, their variability of habitat. Things like shallow pools, twists and turns in the river, all of these things create variations in habitat that allow the creatures to survive”.
“Engineers can condition some amazing things, it might look pretty good but the proof is in the pudding. Will the sawfish comeback?”
The EPBC does not make it mandatory for the developer to conduct ongoing consultations with the community. In an article in the Australian following the decision in February 2009, Garrett himself highlighted the limitations of the EPBC, conceding that ‘while I cannot require it as a condition of approval, I have strongly urged MRM (MacArthur River Mining, name given to the division of Xstrata in charge of the mine) to communicate the outcomes of environmental monitoring and other reports with the local community.”
Xstrata asserts that a strong engagement with the affected communities is one of their key company policies. In the company’s press release praising Garrett’s decision, it claims to have ‘spent years consulting with local indigenous leaders and communities throughout the open-pit planning and approval process’. The company has also filed consultation summaries to the Northern Territory government. However, they do not offer much transparency into the actual dialogue which was supposed to have occured between the indigenous community and MRM but reads more like a list of FAQs. ECNT scientists like Mr Blanch say that the company had failed to adequately engage with the local community.
“To do consultations with indigenous communities requires a lot of effort because a lot of them don’t speak English,” said Mr Blanch, “and frankly Xstrata has not put in enough money to get interpreters. They just found some traditional owners who were supportive of it and used their comments for promotional material.”
“The consultations have been belated and were not relevant to environmental issues,” said John Hughes, director of the Mining and Native Title Land Rights department of the Northern Land Council. “They have largely been about payments and benefits for the community.”
The areas surrounding the McArthur Catchment are owned by four indigenous groups: the Gurdanji, Yanyuwa Garawa and the Mara people, many of whom reside in the nearby town of Borroloola.
Both activists and scientists of the ECNT have cited rumours about Xstrata promising indigenous members of the community cash in hand or new Four Wheel Drive vehicles in return for their support of the diversion. Other methods have been more subtle, with the company investing over $1 million into a new dialysis unit and a new swimming pool publicly announcing its aims to ‘improve, upgrade and restore infrastructure which may not otherwise be made available’ in a company media release in 2007.
“They came along and said, “if the diversion goes ahead, we’ll give you those things” and a lot of people thought “well if we’re going to lose the river anyway, we might as well gain something from it,”’ said Mr Blanch
“An overwhelming number of the community opposed it, but not all Aboriginal people think the same.”
The mine is now in full operation.
The Act’s manifest objective is to achieve by 2010 a significant reduction in the current rate of biodiversity loss. Yet Australia remains as the nation with the highest rate of mammalian extinction.
A senate inquiry involving submissions from a range of scientific experts, NGOs and developers has been submitted to the minister and will be considered in conjunction to the findings of an independent panel led by Dr Allan Hawke.
“I am looking forward to having to the opportunity to review their findings,” said Mr Garrett, “The review will specifically focus on the way federal legislation interacts with relevant state and territory laws with a view to ensuring that environmental regulatory regimes in different jurisdictions are harmonized to operate in a streamlined and efficient manner.”
A reduction in ministerial discretion and a strengthening of the Act’s object could simplify Mr Garrett’s role by simplifying it. Imposing a legal obligation on him to act solely for the protection of the environment may provide a respite for him in a constant battle against the two fronts of industrial and environmental lobbyists.
Mr Garrett refused to comment on this, saying that he will not speculate on the outcomes of the review and its potential impacts on his role.
Environmental activists are skeptical that anything constructive will come out of the review.
“There hasn’t been any indication that the EPBC reform is very high on the government’s agenda or that they’re really committed to giving better protection to the environment,” said Ms Bones, “the senate inquiry has helped the review to be more than just a simple stamped and approved sort of process but the government’s legislative agenda is too chockers at the moment with the Emissions Trading Scheme and Workchoices reform.”
The review is to be completed by the end of October 2009. A full list of recommendations supplied by the Wilderness Society is available here.