Announcing ‘Australia’s Strategy for Nature’

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The strategy you have when you have to have a strategy (without actually having one)

By Peter Burnett

In November 2019 Australia’s federal and state environment ministers signed off on a new national biodiversity strategy. Under the title Australia’s Strategy for Nature, it replaces the previous strategy, Australia’s Biodiversity Conservation Strategy 2010–2030 (the 2010 Strategy), even though the 2010 strategy had more than 10 years to run.

The new strategy comes with its own shiny new website, Australia’s Nature Hub, and it reads pretty well. But here’s the kicker: the new strategy doesn’t actually contain any strategies (ie means to achieving ends).

And there’s no new money or programs to support it, although the new website does serve as an aggregator for existing strategies and programs from various governments. As we’ll see below, the implication seems to be that if you think we need to do more to halt biodiversity decline, do it yourself!

It’s a ‘compliance model’

So what’s going on? If the new strategy were a car, it would be a ‘compliance model’, a car that manufacturers produce in limited numbers to comply with a regulatory requirement to sell ‘zero emission’ vehicles.

The best known example of a compliance car was the EV1, an electric car that General Motors produced in America in the late 1990s. Instead of selling the car to customers, GM leased it to them; once the leases expired it recalled the cars and sent them to the crusher.*

In this case, the requirement generating a compliance mentality is Article 6 of the Convention on Biological Diversity (CBD). Australia joined the CBD, along with most other countries, soon after it was opened for signature in 1992. Article 6 requires each member country to ‘develop national strategies … for the conservation and sustainable use of biological diversity’.

Australia’s history with biodiversity strategies

Australia had started work on a national biodiversity strategy even before the CBD was signed. In fact, in his 1989 Environment Statement, Our Country, Our Future, Prime Minister Hawke made commitments, not just to develop a national biodiversity strategy, but for Australia to play a leading role in what would become the CBD. In marketing terms, we weren’t just ‘early adopters’ in biodiversity policy, we were ‘innovators’.

As they say in the classics, it’s been all downhill from there. The strategy was ready in 1993 but languished when it proved difficult to get the states on board. It was eventually adopted by all Australian governments in 1995, under the title National Strategy for the Conservation of Australia’s Biological Diversity. It’s most significant measures were a national commitment to undertake bioregional planning and a target of arresting and reversing the decline of native vegetation by 2000. The strategy also had major flaws, setting the unfortunate precedent of being adopted without new resourcing, on the basis that many of its measures fell within the scope of existing programs.

There was a change of government federally soon after the strategy was adopted and incoming environment minister Robert Hill worked hard, but with limited success, to give it life. He included provisions for bioregional planning in Australia’s new national environmental law, the Environment Protection and Biodiversity Conservation Act 1999, but these have barely been used. Later, following a five year review of the strategy, he would develop ‘national objectives and targets’, including an objective of halting land clearing, and seek to incorporate these into bilateral agreements with states under the National Heritage Trust, a major funding program. Despite some success, state resistance was ultimately too great to deliver much of significance.

In 2009 another environment minister, Peter Garrett, succeeded in getting a new strategy (the 2010 strategy) endorsed, including 10 ambitious national targets for 2015. In their foreword to the 2010 strategy, ministers noted that despite much effort, biodiversity continued to decline and, as a result, ‘we need to take immediate and sustained action to conserve biodiversity.’

In fact, the problem was so serious that ‘business as usual is no longer an option’. Despite these strong words, most of the 2015 targets were not met (or could not be measured) and I suspect this was the real reason why environment ministers decided to replace the 2010 strategy early: to make the strong language and unmeasurable targets disappear.

A ‘zero emissions vehicle’ for the wrong reasons

Now governments are taking a new tack. Strong warnings and ambitious targets have been replaced by an exhortation that we all work together. The new strategy is sold as an ‘overarching framework’ and is said not only to ‘set the framework for local, state/territory and federal government actions’, but also to ‘help those outside government identify where they can contribute to support national areas of focus’.

I see this as code for ‘all care but no responsibility’: government will identify the problem and the point to both solutions and ways to measure progress, but without specifying any actual strategies in the document. As a result, if ‘those outside government’ (ie, you and me) want to halt the relentless decline of biodiversity it Australia, we will have to do it ourselves, as none of our governments have seen the need to announce any new measures to support this new ‘strategy’.

The only conclusion to be drawn is that Australia’s Nature Strategy has been produced only to comply with the CBD. It’s a ‘compliance model’ and if I were its owner I’d follow GM’s recipe by recalling it and sending it to the crusher. The difference is that I would be doing this, not because its success threatens business, but because its likely failure threatens business (and everything else that depends on biodiversity). This is a ‘zero emissions vehicle’, not because it is propelled by the latest technology, but because it only works if self-propelled. Fred Flintstone would feel right at home in it.

*Killing the electric car: if you’d like to know more about the EV1, it was the subject of a 2006 documentary, Who Killed the Electric Car?

Image by David Zapata from Pixabay

Supplementary Environmental Estimates

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More questions, a few answers and an unwelcome appearance by Dorothy Dix

By Peter Burnett

Senate Estimates are potentially an important process throwing light and meaning on government expenditure and process. Unfortunately, over the years it’s become a bit of a political circus with all parties doing their best to score political points by squeezing answers from unwilling public servants, who in turn try to avoid being drawn into the politics by giving very flat ‘dull-as-dishwater’ and ‘nothing-to-see-here’ answers.

The main Estimates examination of the Department of the Environment occurred in October (and was the topic of my last blog). But there was a follow up; in early November the Estimates Committee held a supplementary hearing on environmental matters.

This doesn’t happen very often, but one circumstance in which it does occur is when an issue has ‘legs’ (ie, is of topical interest) and Senators are in hot pursuit. This was one such occasion, so it’s worth a look.

‘Nothing to see here’

The Senators were pursuing more information on several controversial and well-reported matters on which they no doubt feel they have the Government well and truly on the back foot:

  • Minister Angus Taylor’s letter to Clover Moore, Lord Mayor of Sydney, concerning the climate impacts of the Council’s allegedly excessive travel expenditure
  • allegations of inappropriate interference by Minister Angus Taylor in compliance action under national environmental law concerning endangered ecological grassland communities in the Monaro region (the ‘Jam Land’ case);
  • the associated review by Dr Wendy Craik into interactions between the EPBC Act and the agriculture sector, said by some to have been initiated to appease angry farmers;
  • a letter from retired fire chiefs to the Prime Minister seeking a meeting to discuss their concerns about the increasing frequency and severity of fires as a result of climate change; and
  • the $443m grant made by the Turnbull Government to the Great Barrier Reef Foundation, a private body, and, now, whether the grant was motivated by a desire to avoid the Reef being given a ‘World Heritage in Danger’ listing.

The transcript on what transpired is here if you want to take a look.

None of the responses to questions on these issues revealed anything of great note. Most were to the effect that officers had followed standard bureaucratic processes and either were not privy to, or in the case of the Reef grant, were prevented by Cabinet confidentiality from revealing, anything nefarious that may or may not have been done by the Government.

The most that can be said about the answers is that they show first, that the Government appointed Craik without asking the Environment Department for the usual list of potential appointees; and second that they replaced the Department’s standard flat answer to Clover Moore with a letter of their own. Both of these things tend only to confirm the obvious, that these were purely political decisions rather than standard government decisions on advice.

A new participant at Estimates: Dorothy Dix

One thing that did concern me was the response of officials to a question from Senator McMahon, a government member from the Northern Territory, concerning the recent endorsement by Federal and State environment ministers of Australia’s new national biodiversity strategy, known as ‘Australia’s Strategy for Nature’. This strategy replaces Australia’s Biodiversity Conservation Strategy: 2010 – 2030.

In my earlier blog on the Estimates I reported the questioning that officials received about this strategy being late. This time around at the Supplementary hearing, the question and the answers it elicited resembled a ‘Dorothy Dixer’, the friendly questions that government backbenchers ask of Ministers in Question Time, providing them with an opportunity to make an announcement or other statement favourable to the Government. They also serve the very valuable purpose of using up time that might otherwise be devoted to attacking the Government.

Use of this self-serving practice has attracted increasing criticism to the point that it is under review by a Parliamentary Committee.

We are, however, talking about Estimates, not Question Time. Sometimes government members on Estimates Committees do ask benign questions that have a Dorothy-Dix feel to them. However, it takes both a benign question and a self-congratulatory answer to make a Dixer, and this is the first time I’ve seen an answer from officials that had the feel of a Dixer in Estimates.

A new more ‘flexible’ strategy for saving Nature

In responding to Senator McMahon’s question, officials in effect criticised the previous government’s strategy and complimented the Government for developing a ‘flexible framework’ that would place Australia in a ‘strong’ position to respond to expected developments, including the post-2020 Global Biodiversity Framework that is due to be adopted by the Convention on Biological Diversity (CBD) when it meets in Kunming, China, in February 2020.

This post-2020 framework will replace the ‘Aichi Targets’, which were adopted in 2010 and mature in 2020.

According to the officers, the Strategy for Nature enabled all Australian jurisdictions to be represented on an ‘innovative’ website known as Australia’s Nature Hub which demonstrates ‘how much good work is happening across this country in relation to biodiversity conservation at multiple levels’. The strategy would ‘place us well in the international space’.

And on it went. Rather than simply explaining why the Government had elected to replace the previous government’s strategy before its expiry, and perhaps outlining the content of the new strategy, as public servants would normally do, one official ventured that ‘we thought it was really important to update’ the previous strategy and that ‘we think this will be an important international contribution for how we can frame our global efforts with respect to diversity’. In doing so officials were either revealing their advice to government, something that officials normally refuse to do, or portraying themselves as players, with their own independent views, another no-no.

The use of Estimates by officials to promote government positions and to deploy the promotional language of ‘spin’ is an unwelcome development and, I hope, an unfortunate aberration rather than evidence of a trend.

What’s in the Strategy for Nature?

As for the value of this new Strategy for Nature; well, that’s a big topic and an important one in this time of major and ongoing biodiversity decline. In an up an coming blog I’ll review the Strategy, not only to see if it puts Australia in a ‘strong’ position to respond to the post-Aichi world, but also to see how it might enhance the conservation of Australia’s biodiversity.

Little gems from the 2019 Senate Environment Estimates

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What’s hot and what’s goss in the Federal Department of Environment

By Peter Burnett

The Senate held one of its regular ‘Estimates’ hearings in October. Some of the high profile issues raised in Estimates get reported in the mainstream media, but for those with sufficient interest, Estimates are also a treasure trove of small gems. As these small gems are rarely reported I thought I’d share what came out of the session on the Environment Department with you here. But first, some background.

Preparing for battle

Estimates is a strange ritual. To the casual observer, it is the very acme of boring. Public servants file in and out of the hearing room in troupes, while Senators put a miscellany of questions about what appears to be administrative detail, such as: ‘How many staff in the department?’ ‘How many times has the Minister met with representatives of Rio Tinto while this mine was under environmental impact assessment?’ ‘How much have you allocated to the Threatened Species Recovery Plan for the Striped Earless Dragon?’

Estimates has some of the trappings of a court. For many years I participated as a departmental ‘witness’, giving ‘evidence’. Preparing for it reminded me of preparing for court as well: a lot of swatting, including much time spent learning material that did not attract any questions.

It also reminded me of what people say it’s like to fight in a war: long periods of boredom (while others are questioned) punctuated by intense periods of action when suddenly it’s your turn and Senators are trying to lure you into confirming their suspicions about what the minister has been up to. The media and the minister’s office are nowhere to be seen, but you are acutely aware they are able to watch your every word on closed-circuit TV.

Rules of engagement

It seems to me that Estimates has become increasingly political. A colleague who had participated in early Estimates hearings in the 1970s told me that he attended as a relatively junior officer (now a no-no) and that he was actually asked straight and detailed questions about the ‘estimates’ of expenditure, a much less common phenomenon now. Certainly during my time I felt that some of the interchanges were becoming more combative.

Despite the apparent focus on spending proposals, at some point the Senate ruled that almost any question was an Estimates question, because anything done by ministers or public servants involved government spending, if only on their salaries.

Despite this broad scope, in my experience environment estimates questions tended to fall into a small number of categories, all with political intent. For example:

Questions to buttress a political point on the environment generally; for example, questions about staff reductions or budget cuts, to show that a government was reducing its support for the environment.
‘Spill the beans’ questions, designed to get public servants to reveal what ministers were doing or failing to do; for example, ‘How many meetings did you attend between the Minister and the Farmers’ Federation?’ or ‘How long ago did you brief the minister on these grant applications?’
Probing of policy and regulatory processes, looking at a minimum for some insider detail that might serve as grist for the political mill; such as ‘Have you engaged expert advice on this application to take water from a Ramsar wetland?’

Even though the rules exempt officials from revealing departmental advice to ministers, this doesn’t stop those questions being asked anyway, as a revelation that a minister had departed from public service advice would be potent politically.

Don’t be ‘interesting’

No public servant wants to be remembered for saying something ‘interesting’, so most would endeavour to make their honest answers as dull as dishwater. 

Environment Estimates this October was nothing out of the ordinary, with ‘dishwater’ answers aplenty. Despite this, if you’re prepared to pay attention, there are always a few little gems arising from each session of estimates. And so it was this year.

Below is list of topics that I found interesting. (And you can read the full transcript yourself if you like.)

One thing that stands out for me is the under-resourcing of the Department. There’s mention below for example of non-compliance with FOI regulation because of IT problems, delays in listing threatened species, an overdue national biodiversity report, and an inability to fast track development proposals.

Small gems from the October hearings:

Interference by a minister: Top of the list were attempts to elicit information that might support allegations that Energy Minister Angus Taylor had attempted to interfere with compliance action affecting his farming interests (this has been covered in the mainstream media).

Admit it’s a ‘crisis’: The Greens tried to get the senior climate change official to use the phrases ‘climate emergency’ ‘climate crisis’ and ‘getting worse’ but the replies used the flattest of language such as ‘the climate is definitely changing’.

FOI non-compliance: Labor quizzed the department about its non-compliance with FOI (Freedom of Information requests) and what the minister knew about it – the Department claimed that IT problems had put it many months behind in disclosing FoI releases on its website.

GBR conflict of interest:  Several Senators asked about the Great Barrier Reef (‘GBR’), including an alleged conflict of interest associated with a contract from the GBR Foundation, which holds over $400m of government reef funding, to the Cane Growers Association, which had also hosted a speaking event by a climate skeptic.

Delays in uplisting the Australian Sea Lion: South Australian Senators probed delays in listing threatened species, especially the ‘uplisting’ of the Australian Sea Lion. The Sea Lion questions seemed connected with concerns about oil drilling in the Great Australian Bight.

Underwhelming Special Envoys: There were questions about the role of backbencher Warren Entsch as ‘Special Envoy’ for the GBR–this seemed to be linked to criticisms that efforts by the Drought Envoy, Barnaby Joyce, had been underwhelming (eg ‘briefing’ the PM by text message).

EPBC Review: Senators probed officials for information about the review of the EPBC Act, which was about to be announced — answers revealed little, but it did emerge that a review of the biodiversity offsets policy, due in 2017, had in effect been rolled into the EPBC review.

Ban on exporting waste: Officials expect the government’s proposed ban on export of major waste streams — paper, plastics, tyres and glass — to be in place next year.

GBR – World Heritage in Danger: There were questions about the forthcoming lodgement of a ‘State of Conservation’ report on the GBR to the World Heritage Committee — Senators seemed to be probing for any indication that the Committee might revisit the possibility of a ‘World Heritage In Danger’ listing.

Overdue response to Convention on Biological Diversity: There were also questions about Australia’s overdue sixth national report to the Convention on Biological Diversity (CBD) — the ‘dishwater’ answer was that ‘it’s taken longer than we anticipated’. In the course of answering this, the Deputy Secretary revealed that there was a new national biodiversity strategy, the ‘National Strategy for Nature’, was going for endorsement at a meeting of environment ministers on 8 November.

Fast tracking dam proposals: There were questions about the ‘fast-tracking’ of NSW proposals to build dams, to which a Deputy Secretary replied that the Environment Minister’s expectation was that ‘we will meet the statutory requirement of the Act and not be late in our approvals-which, sadly, is fast-tracking for us these days.’

Follow up on the Craik Report on ag: As to the fate of the Craik Report on agriculture and the EPBC Act, [Ed: apparently done to appease farmers angry about the impact of threatened species listings on their ability to farm] it seems that there will be no response. Rather, it ‘would certainly be a … document that we would draw to the attention’ of the EPBC Act review.

Adani: Not surprisingly, there were several Adani questions. First, a new referral for the North Galilee Water Scheme had attracted 7,000 submissions, but there was no decision yet as to whether this proposal needed an environmental assessment. Second, Adani still had not identified the last 3% of a Brigalow offset required under an earlier approval.

Kyoto carryover credits: As to Australia’s carbon emissions and whether we would meet the 2030 target — we will meet the target, using Kyoto carryover credits ‘to the extent necessary’. Interestingly, officials were not aware of any other country proposing to use Kyoto carryover credits.

Electric vehicle strategy: The government is developing an electric vehicle strategy and expects it to yield no more than a (very small) 10m tonnes of abatement (from an overall target of 695 m).

Abatement vs land clearing: Vegetation accounts for 125.7m tonnes out of the 192m tonnes of abatement contracted under the Emissions Reduction Fund but there is no comparison available to contrast this with the amount of native vegetation lost to land clearing.

On the taboo of triage

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Some hard choices we don’t want to even think about

By David Salt

Former leader of the Liberal Party, John Hewson, made an astounding comment last week during an address to farmers and industry leaders. “Government ministers are not turning up at events if they have the word ‘climate’ in the title,” he claimed.

Hard to believe but everyone knows that political parties of different stripes avoid certain words that trouble the ideologies that underpin the core beliefs of that party. As George Orwell frequently noted (and dictators often put into practice), language is power.

And it’s not just things tagged ‘climate’. I was amazed to observe the word ‘biodiversity’ disappeared from almost all Government messaging after the Liberal Party (under Tony Abbott) took office in 2013. How is it possible that a term like biodiversity*, that emerged from the academic field of conservation science and surely carries no political baggage at all, is seen to be politically taboo?

Priorities

In a general sense I’d ascribe it to broad government priorities: first we fix the economy, then we look after the environment. It’s a common mantra of political leaders and particularly so for those at the conservative end of the spectrum. I won’t discuss here why I believe this prioritisation of economy first/environment later is wrong (on so many levels) because that’s a big and hairy discussion better left to another time. However, it’s closely related to another taboo: don’t question the primacy of economic growth – growth is good, ad infinitum.

Of course, the empirical evidence on climate change and biodiversity decline is incontestable in terms of evidence and the overwhelming scientific consensus. Which is not to say the evidence isn’t contested in the ideological arena of political power? Just consider the denialists’ most recent effort, a publication titled ‘There is no climate emergency’. It was reviewed and shown to be a text-book example of the denialist dark arts exhibiting bias, inaccuracy and cherry-picked information.

However, surely it’s easier to not mention something rather than expend considerable effort in constructing an ever more elaborate lie to deny the existence of that thing.

Which leads me to a taboo word so consequential that we must never breathe its name: triage.

Well, that’s not completely true. In medical settings like hospitals and treating wounded soldiers on battlefields, ‘triage’ is a common and accepted term. Indeed, the idea was born on the Napoleonic battlefield.

Triage comes from the French word ‘trier’, which means to separate, sort, sift or select. It’s all about setting priorities when the need is urgent and resources are limited. On the battlefield (or in a hospital’s emergency ward) doctors and nurses triage patients to ensure appropriate care is given as quickly as possible depending on available resources: “This soldier we can save, this soldier we can’t.” “This patient needs immediate care, that patient will have to wait.”

Triage this

Medical triage underpins some of the toughest decisions humans have to make but society accepts this process because these decisions are made by trusted experts working for the common good.

But when it comes to other forms of triage – namely conservation triage, landscape triage or enterprise triage – we’re entering dangerously taboo terrain.

Conservation triage refers to prioritising resources for threatened species (eg, “this species we can save, this species we can’t do much for so let’s stop wasting funds on it”); landscape triage refers to prioritising resources for different types of land use (eg, “we’ll support farmers working in this region but not those working over there”); and enterprise triage refers to prioritising resources for different business sectors (eg, “renewables is an emerging industry that should be supported but manufacturing is a mature sector that can’t be propped up”).

From a political perspective, these forms of triage are never to be mentioned because as soon as you do you draw a target on yourself. If you suggest that government should favour one thing while letting another fade away you’ll be accused of picking winners and giving up on losers.

Winners and losers

When triage is applied to threatened species the debate becomes particularly heated. If any politician even dares to suggest that resources might be better used if they were prioritised to where they might have the greatest impact, the media (and opportunistic politicians from the other side) immediately ask: “Which species are you giving up on?!”

It’s an effective attack because the broader community believes no species should go extinct, and the government is careful to avoid any discussion on whether this expectation is being met.

Of course, this expectation is not being met. Indeed, the reverse applies. The world is witnessing a biodiversity catastrophe and Australia leads the developed world in our rate of extinction.

The tragic irony of not undertaking robust conservation triage (which necessarily involves transparency and accountability) is that the pitifully inadequate resources available for threatened species conservation are poorly applied resulting in waste and ineffective conservation. Politicians pretend that all species will be saved while making ad hoc, reactive and opaque decisions to save whatever species is the flavour of the month. It’s not only inefficient, it’s quite immoral and represents a deep failure in leadership.

Whatever, don’t mention the word ‘triage’ as a tool of conservation. Not only is it a politically challenging process to prosecute, it also throws a light on our abject failure on threatened species conservation.

Don’t mention it

Similar arguments apply to other forms of triage, such as landscape and enterprise triage. Picking winners highlights the losers and throws a focus on the government’s failure in letting an unsustainable situation develop.

Attempting triage on land management, for example, would require the government to acknowledge that traditional farming is simply not appropriate in many Australian landscapes contexts, especially in light of predictions connected to climate change. Criticising farmers, of course, is another taboo.

It’s easier to simply not mention ‘climate’ (or ‘biodiversity’ or ‘triage’), and hope your pigeons don’t come home to roost until at least after the next election.

*On biodiversity: The word ‘biodiversity’ is a shortening of the term ‘biological diversity’ and broadly speaking refers to the variability of life on Earth. The word took on official usage in the 1980s (and its creation is attributed to the scientists Thomas Lovejoy and Walter Rosen). Truth to tell, while I attribute the demise of the term ‘biodiversity’ in political discourse to a plot by Abbott’s conservatives to avoid all science, a robust study of the decline of ‘biodiversity’ in conservation policy discourse in Australia has revealed that the downturn in usage began much earlier than Abbott’s rise to government in 2013. This study, led by Alex Kusmanoff at RMIT, suggests that from 2003 to 2014 the term ‘biodiversity’ was in steady decline while the term ‘ecosystem services’, an economic framing of the benefits of nature, was on the rise.

Image: Otis Historical Archives Nat’l Museum of Health & Medicine, Creative Commons Attribution 2.0

Federal environmental planning: the broken leg of the stool

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Our national environmental law is a bit wobbly because it doesn’t take planning seriously

By Peter Burnett

Our big and complex national environmental law is called the Environment Protection and Biodiversity Conservation Act 1999 (or EPBC Act). When you unpack its major components (as I did in a recent blog) they sort themselves quite nicely into three streams: 1. Identify Matters of National Environmental Significance (MNES) for protection; 2. Plan for Conservation; and 3. Assess and Approve for Development or Trade.

The streams can be seen as the three legs of a stool, with protecting, conserving and approving designed to combine to ensure that our most important environmental values are looked after, but without blocking economic activity more than is necessary. At least, that’s the theory. Unsurprisingly, there are some problems in practice and in this blog I’ll start with the biggest: the planning leg is half-missing.

One leg is half-missing

The Act provides a planning mechanism for everything that it protects or conserves: bioregional plans for biodiversity and other values; wildlife conservation plans for listed marine, migratory and conservation-dependent species; recovery and threat abatement plans for threatened species; and management plans for heritage places, Ramsar sites and Commonwealth reserves.

The problem is that many of these plans are dated, underdone, or were never created in the first place. I’ll illustrate by examples. In each case I looked up the relevant place or plan on the Department of the Environment and Energy website [www.environment.gov.au] and followed the links.

Dated plans

A number of plans look dated to me. For example, the very first recovery plan listed in the Species Profile and Threats Database, for the great desert skink, was made in 2001 and expired in 2011. The executive summary of the plan says that the Recovery Team will review implementation progress annually and any changes made to the plan will be made available to all stakeholders. There was nothing on SPRAT to indicate whether this had occurred.

Underdone plans

Other plans look underdone. I picked the recovery plan for Carnaby’s cockatoo, an endangered species found in the woodlands and plains around Perth. The species has been controversial because Perth’s development often involves clearance of the cockatoo’s habitat.

The recovery plan identifies eucalypt woodlands as critical to the survival of the cockatoo, in part because they provide breeding hollows, which the plan notes take 100-200 years to develop. It goes on to identify protection of nesting habitat as a recovery action and adopts as a performance measure for this the maintenance of the extent of nesting habitat (trees with nesting hollows).

The implication seems clear: don’t clear old growth woodlands. Moreover, the EPBC Act prohibits the environment minister from acting inconsistently with a recovery plan, so a plan containing a statement like this would block development in these areas.

However, the plan stops far short of such language. Under the heading ‘guide for decision makers’, it states only that the success of the plan requires that decision-makers avoid approving activities that will adversely affect the cockatoo, and that they should minimise or mitigate those impacts that cannot be avoided (ie. apply the ‘avoid, mitigate, offset’ hierarchy). The plan goes on to cite WA EPA guidance that it is ‘unlikely to recommend’ approval of projects with a significant adverse impact on the species.

In effect, the plan simply points out that if decision-makers want to save the cockatoo, significant impacts should be avoided, or at least minimised. By pulling its punches, the plan leaves it open to the federal minister to approve the destruction of critical habitat, provided he or she duly considers the plan and applies the mitigation hierarchy to the extent the minister regards as practicable.

Missing plans

At a larger scale, looking at biodiversity more generally, there are no bioregional plans for Australia’s 89 terrestrial bioregions. Nil, none, zero!

Fortunately, Australia’s marine area is much better catered for, with bioregional plans for four of five marine bioregions, supplemented by management plans for marine park networks in each bioregion plus one for the Coral Sea Marine Park.

It’s the politics stupid

Of course, there is a practical explanation for the absence of terrestrial plans. Bioregional plans require joint federal-state action, except on the small portion of land classed as Commonwealth land. Federal cooperation is never easy, even between governments of the same political flavour. Moreover, preparing lots of plans would be expensive and could well stir up local concerns about the whole gamut of development and conservation issues in the region concerned. Such a scenario is, to say the least, politically unappealing.

Yet without bioregional plans project-based environmental impact assessment (EIA) must proceed without contextualised, place-specific guidance on what needs to be conserved and where development can occur. This perpetuates one of the major flaws with project-based EIA, the ‘death of a thousand cuts’, where small environmental impacts are approved in ignorance of their cumulative effect.

The bottom line

While under-done recovery plans may provide some of the guidance that should be coming from the absent bioregional plans, at the end of the day the stool has only two-and-a-bit legs, leaving development decisions pretty much at the minister’s discretion.

This means that a minister who wasn’t really interested in protecting Matters of National Environmental Significance won’t find themselves hemmed in by plans. Even a minister determined to protect and conserve MNES would find that the absence of contextual information a major problem in seeking to make good decisions, just as it’s hard to see where you’re going in a fog.

Who wants a stool with two and half legs?

Image: A pair of Carnaby’s cockatoos feeding on banksia. This species is endemic to south-western Australia. It has experienced widespread loss of nesting and feeding habitat and is considered endangered under the IUCN Red List, and Australian federal and state legislation. Since the 1950s, numbers of the Carnaby’s cockatoo have declined by more than 50%, with its range contracting by over 30%. Image by Leonie Valentine.

What’s in the EPBC Box?

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Unpackaging Australia’s national environmental law

By Peter Burnett

I’ve decided to pull apart Australia’s national environmental law, the Environment Protection and Biodiversity Act 1999 (EPBC Act). I want to see what makes it tick and, perhaps more significantly, to see if I can explain what makes it tick.

I’m not doing this for fun; there are two major reviews coming up that will delve into this important law and I’d like to have my say in these reviews. If I’m going to have my say, I’ll have to go beyond just knowing what I’m talking about. I have to be able to communicate my understanding to support my point of view.

This is no easy task. A colleague of mine, with extensive experience in public policy but not environmental policy, recently tried to read the EPBC Act. He told me, with considerable frustration, that he found it virtually impenetrable.

I can also draw on personal experience. I recently gave a guest lecture about the Act as part of an environmental law course (the course was for non-lawyers). The blank looks I got from the students, and the absence of questions, challenged me to try a new approach to explaining what this important piece of legislation does.

The two upcoming reviews of the EPBC Act could have significant consequences for environmental law in Australia. The first is being carried out by the Productivity Commission and examines regulation of the resources sector. This review has just started and I discussed it in an earlier blog.

The second review examines the operation of the entire EPBC Act, something that the law requires every 10 years. This review is due to be announced in October.

Only for the ardent

The EPBC Act is around a thousand pages long! And that’s just the Act itself. This doesn’t include supporting regulations and guidelines. There are reasons for this length (and complexity).

Because of the peculiarities of Australian constitutional law, parts of the Act use arcane legal language to attach themselves to certain constitutional hooks.

The Act is also repetitive, because it applies similar processes to different things. The alternative would be to draft master provisions and apply them in multiple places through frequent cross-references. I’ve heard drafters argue that repetition makes the law easier to read but I’m not entirely convinced – what the Act gains in readability through repetition may be lost in the added length.

All in all, reading the Act is only for the ardent.

So, with the blank looks of the students still fresh in my memory, I decided to draw some pictures of it. I’d seen some well-drawn flow charts of some of the Act’s regulatory processes and thought I could do something similar, with a broad readership in mind.

I started with the idea of reverse-engineering a piece of equipment, say an espresso machine: first identify the major components, such as reservoir, boiler and coffee grinder, further dismantling each as necessary to see what it does. Then assemble the machine and observe how the components complement each other to produce a finished product.

So what’s in the box?

It turns out that the Act has 16 major components, at least as I’ve counted them (and leaving out ‘ancillary equipment’ such as compliance powers).

You can see these in my diagram below (Figure 1). The parts fall into three streams, indicating that the Act has three broad functions.

Figure 1: The main components of the EPBC Act (omitting supporting provisions such as compliance powers)

The first stream is about identifying various environmental values for protection. This mostly covers threatened species and special places. Once these values are identified, usually through a formal listing process, they are ‘protected’ by the Act. This means it becomes an offence to do something likely to harm them significantly, unless one obtains permission to do so (see stream three).

Because this is a national law, the values protected are predominantly things of high significance, such as World Heritage places or nationally-threatened species. Hence the term for many of them is ‘matters of national environmental significance’ (or MNES).

Apart from MNES, some values are there because they fall into categories that are protected by federal law alone. For example, marine species are included because the jurisdiction of the Australian states ends three nautical miles from the coast, while our Exclusive Economic Zone goes out 200 nautical miles.

The second stream is about planning for conservation. The Act doesn’t just cover planning connected to MNES and Commonwealth areas. It also provides for bioregional plans across the continent and its territorial sea, although with the major qualifier that for a region within a state (ie most of terrestrial Australia), the plans can only be done in cooperation with that state.

So far, there haven’t been any bioregional plans done with states, something I’ll discuss in another blog.

The third stream is about assessing and approving things that might harm the environmental values protected by the Act, or in the case of trade, the environment generally. The best known component in the third stream is project-based environmental impact assessment, but there is also provision for strategic environmental assessment of development.

This stream also covers assessment and approval of trade in species, whether these be endangered species under the Convention on International Trade in Endangered Species (CITES), native species for export or exotics for import.

Putting the parts together

Despite the complexity of the Act, its components do seem to fit relatively comfortably into these three broad streams. These are based on the protection and conservation of many of Australia’s most important environmental values, plus the power to assess and, if appropriate, approve (usually subject to conditions) developments that might harm what is protected and conserved.

In the broad this seems like a reasonable approach to looking after the environment while allowing for development. However, as I’ll explain in future blogs, there’s devil in the detail. In its current form, the framework does not realise its potential.

‘Best managed reef in the world’ down the drain

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What’s happening around the Park makes a mockery of our ‘best management’ approach

By David Salt

Is it hubris, arrogance or duplicity when the country’s Minister for the Environment can claim, almost in the same breath, that the Great Barrier Reef is ‘the best managed coral reef ecosystem in the world’ but that the science-based outlook for the Reef’s ecosystem has slipped from ‘poor’ to ‘very poor’? I’m not joking, read her press release (it came out last Friday). How does ‘best management’ produce this outcome?

Well, it might surprise some of our readers to hear that I don’t actually disagree with the claim that the GBR is one of the world’s better managed reefs. It’s one of the world’s biggest marine parks with a significant portion of it off limits to all forms of development (around a third) thanks to the application of world’s best-practice systematic conservation planning. And the management of this world-heritage listed park is supported by a range of relatively well resourced institutions (GBRMPA, AIMS and the Centre of Excellence for Reef Studies to name three).

We monitor it well and in many areas we have led the world on reef science. And that’s as it should be because Australian’s love the Reef and expect our elected representatives to look after it. Economists tell us it’s worth looking after because it employs 64,000 people, generates $6.4 billion each year and has a total asset value of $56 billion.

The shadow of climate change

The trouble is, the looming threats overshadowing the Reef cannot be addressed by best-practice management within the Park’s boundaries. They originate outside of the Park and the Government claims it has limited power to address them.

In 2012, the Australian Institute of Marine Science (AIMS) released a major peer-reviewed study that found the GBR was under significant stress and that it had lost half of its hard coral since 1985. The cause of this decline was threefold: storm damage (48%), outbreaks of Crown-of-Thorns starfish (COTS) (42%) and coral bleaching (10%).

All three threats had connections with climate change but the government (in this case the Federal Government and the Queensland Government who together share responsibility for the Reef) claimed climate change is a global issue beyond its capacity to control. (And, it should be noted, since this report came out the GBR has experienced catastrophic bouts of mass coral bleaching in 2016 and 2017).

No, climate change is something the government won’t buy into but what it says it can do is improve water quality.

Dirty water

Water quality refers to the levels of chemicals, nutrients and sediments ending up in Reef waters along the coast of Queensland. These ‘contaminants’ largely originate from land-based activities such as sugar cane, bananas and pastoralism. Declining water quality has been an issue for the Reef for much of the last three decades.

Poor water quality is a problem because it alters the balance of the Reef ecosystem – promotes outbreaks of coral eating COTS, encourages algae to colonise spaces previously occupied by corals and generally lowers the Reef’s resilience* – it’s ability to recover from disturbance.

Given the government’s impotence in the face of climate change, the strategy it has elected to follow is to focus on aspects it claims it can influence. In other words, clean up water quality by changing land management. We can’t force other countries to behave differently (in respect to climate change) but we do, in theory, have power over how we manage our own landscapes.

The belief is that if water quality can be improved, this will contribute to overall reef health which, in turn, means the reef should recover faster whatever disturbance hits it (including climate related episodes of bleaching and super-charged cyclones).

Interestingly, the same day the Environment Minister released the appalling Reef Outlook report, she also released the 2017 – 2018 Reef Water Quality Report Card which gave a very gloomy prognosis: “Across all Great Barrier Reef catchments, water quality modelling showed a very poor reduction in dissolved inorganic nitrogen (0.3%) and sediment (0.5%). There was also a poor reduction in particulate nitrogen (0.5%).” What was it, bad news Friday or something; put all the garbage out at the same time (and this following on from the latest carbon emissions data showing Australia’s emissions are still rising over several years even though we say we’ll reduce them!).

So, even if we ignore climate change (exposing the moral void of our environmental stewardship), the strategy nominated by the government to protect the reef – improve water quality – is also failing to achieve anything. And this is not an isolated statement, there have been many reports in recent years showing government action is not working in improving water quality.

Why is it so hard to fix water quality? Because it’s very expensive (though a lot less expensive than taking on climate change). The government’s own costing on what is required is $8.2 billion over 10 years, and so far it hasn’t even stumped up a tenth of this.

Rating the reports

This government prides itself on its managerial approach. However, no matter how well the Great Barrier Reef Marine Park is managed, it is a sitting duck facing the coming onslaught of climate-related bleaching events and big storms. The fact that the government can’t even clean up water quality just adds insult to injury.

The science has been saying what we need to do for many years (indeed, see comments by Terry Hughes, one of the world’s foremost experts comments on coral reefs, on the Outlook report) but the government hides behind the notion that because one part of the reef system is managed well (the part inside the Park) then they have met their commitments. But that well managed bit is connected to the land component next door and the greater world surrounding it, and those connections are killing the reef.

So, in light of last week’s horror reports on the Outlook for the Reef and the 2017-2018 Reef Water Quality Report Card, I think it would be fair to rate the Government’s progress as FAIL with the comment: hubristic, arrogant and duplicitous; don’t try to dress up a failure as a good effort because to do so just makes it harder to take the tough decisions that are needed.

*Reef resilience – having co-written two textbooks on resilience science (Resilience Thinking and Resilience Practice) that have played a large role in popularising the concept of resilience, it saddens by enormously to see the idea used by governments as a shield to hide behind when they are unable to engage with the science of climate change.

Image: A reef under stress on multiple fronts (Image ARC Centre of Excellence for Reef Studies)