The slippery slopes of failed environmental governance: Who accounts for the regulators?

By David Salt

Liberia is having problems with its environmental governance. And so are we.

Deforesting a biodiversity hotspot

Logging companies are exploiting weak monitoring and enforcement of Liberia’s forestry laws. Apparently, a 2019 audit had found that around 14,000 cubic metres of timber supposedly harvested legally was actually untraceable (and therefore probably illegal) yet permits for the sale and export of much of the timber were still approved. Authorities have known about the case for more than two years, and done nothing. What’s more, the logging company responsible has a long and troubled history of violations.

Well, is anyone surprised? Liberia, a biodiversity hotspot, is one of the poorest and least developed countries in the world. It’s been ripped apart by civil war and disease, and corruption is endemic at every level of the Liberian government. Illegal timber harvesting has, in particular, been an ongoing running sore; as is the case in so many developing countries (like our nearest neighbours, PNG).

Thank God we can trust environmental governance in Australia.

Or can we?

Too steep to log

Over the last year it’s come to light that Victoria’s state-owned timber corporation, VicForests, has been illegally harvesting timber on some of the Central Highland’s steepest slopes, thereby risking the quality of water flowing from these landscapes. This is not a metaphorical slippery slope we’re talking about here.

If that wasn’t bad enough, an investigation undertaken by the ABC suggests the government regulator, whose job it is to monitor VicForests, was alerted to the breaches but failed to properly investigate.

Unfortunately, it’s not the first time the timber corporation has been accused of illegal logging, nor the first time the regulator has been accused of ignoring it.

According to leading ecologist Professor David Lindenmayer, who has been researching these forested landscapes for decades, it’s the story of Australia’s “lawless” loggers, and a regulator failing to regulate.

Buried without consent

And then there’s the sad tale of the mining company Whitehaven Coal attempting to carry out the mass disposal of its mining tyres by burying them in the Leard Forest Precinct, on the ancestral lands of the Gomeroi traditional owners. The land is under a Native Title claim. Under the Environmental Planning and Assessment Regulation 2000, approval of the NSW Aboriginal Land Council is required. Whitehaven has no such approval, something the Land Council has pointed out to them. Allegations have been circulating in the region that Whitehaven attempted to threaten Gomeroi with loss of jobs if they do not sign off on the tyre landfilling.

Sad as this sounds, the more worrying aspect of this story is that the primary environmental regulator for New South Wales, the NSW Environment Protection Authority (EPA), has given the okay to conduct the mass burial of mining tyres. While technically termed “agency advice” and not “approval”, the NSW EPA’s approval of Whitehaven Coal’s application to bury off-the-road mining tyres for the life of the Maules Creek mine, would be subject only to a “review” every two years.

This has led some to suggest that the NSW EPA has been captured by the coal industry in north west NSW.

Against the flow of law

Maybe you think a few thousand giant tyres buried on Aboriginal land against its owners wishes is small beer not worthy of losing any sleep over. If so, what’s your view on the state’s water supply being governed for the interests of irrigators and not the public interest? Impossible you say? Well, not according to the NSW Independent Commission Against Corruption (ICAC). It found that the New South Wales Government was favouring irrigators over other water users in a manner that went against its own laws!

In November of last year, ICAC released a damning report on water mismanagement in New South Wales (NSW), Australia. The report detailed a history of water agencies’ ‘undue focus on irrigator’s interests’, including more than a decade of failure to give ‘proper and full effect to the objects, principles and duties’ of the Water Management Act 2000.

For example, the ICAC found that one of the State’s former top water bureaucrats had held a clear bias in favour of irrigators. It confirmed that this person had provided a select group of irrigator lobbyists with confidential legal advice as part of a strategy to undermine national water laws; that he conflated the commercial interests of certain irrigator groups with the broader interests of the entire state; and that he assumed that the interests of ‘direct’ water users trumped those of ‘indirect’ users (whom he helpfully identified as the environment and First Nations peoples).

Despite this clear finding, the Commission did not find that this approach (let’s call it ‘business-as-usual’) was ‘corrupt’ behaviour. This has led many to suggest that anti-corruption watchdogs are perhaps unable – or unwilling – to take on ‘regulatory capture’ of entire agencies. Regulatory capture might be defined as decision making by public servants that favours particular and regulated interests, rather than incorporating the broader public interest, or the objects of the relevant legislation.

A slippery slope

Corruption is a slippery slope.

There will always be bad actors out there attempting to get the most they can out of a system. That’s why we have laws to constrain them. But those laws are meaningless unless there is monitoring and enforcement to ensure they are respected. And that’s why we have environmental regulators established with these powers.

But we kid ourselves if we believe you can simply set up an environmental regulator and then just leave it – set and forget – because over time things change. Environmental regulators often face funding cuts making it difficult for them to fulfil their mission. Lobbyists influence political parties to modify regulation and oversight to benefit their industry groups, and companies do everything in their power to get the regulators to smile on their enterprise.

The examples I cite here are just those that have come to light in recent months, but it’s happening all the time. That’s why, with the best will in the world, it’s not enough to believe our environmental regulators can be left alone, out of sight, to get on with the job.

Their accountability, transparency and capacity to operate at arm’s length from companies they regulate all need to be constantly reviewed and tested. They need to be examined by a robust free press, questioned by an enquiring general public, and audited and interrogated by anti-corruption government agencies (auditors and independent corruption commissions).

And even if this all happens, things can still turn rotten. It’s a big challenge.

However, in Australia, our national leaders are still unable to create a decent anti-corruption agency despite years of promises. It’s clearly not a priority despite multiple failures over time.

There are so many reasons to feel sorry for Liberia and its attempts curb environmental degradation.

We don’t have those excuses. And we kid ourselves if we believe our environmental regulators are fit for purpose.

Banner image: tmcreynolds at Pixabay

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