A major report excoriated Australia’s environment laws. Sussan Ley’s response is confused and risky

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By Peter Burnett

This article is republished from The Conversation under a Creative Commons license. Read the original article.

It’s official: Australia’s natural environment and iconic places are in deep trouble. They can’t withstand current and future threats, including climate change. And the national laws protecting them are flawed and badly outdated.

You could hardly imagine a worse report on the state of Australia’s environment, and the law’s capacity to protect it, than that released yesterday. The review of the Environment Protection and Biodiversity (EPBC) Act, by former competition watchdog chair Professor Graeme Samuel, did not mince words. Without urgent changes, most of Australia’s threatened plants, animals and ecosystems will become extinct.

Federal environment minister Sussan Ley released the report yesterday after sitting on it for three months. And she showed little sign of being spurred into action by Samuel’s scathing assessment.

Her response was confusing and contradictory. And the Morrison government seems hellbent on pushing through its preferred reforms without safeguards that Samuel says are crucial.

A bleak assessment

I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the EPBC Act. I believe Samuel’s report is a very good one.

Samuel has maintained the course laid out in his interim report last July. He found the state of Australia’s natural environment and iconic places is declining and under increasing threat.

Moreover, he says, the EPBC Act is outdated and requires fundamental reform. The current approach results in piecemeal decisions rather than holistic environmental management, which he sees as essential for success. He went on:

The resounding message that I heard throughout the review is that Australians do not trust that the EPBC Act is delivering for the environment, for business or for the community.

A proposed way forward

Samuel recommended a suite of reforms, many of which were foreshadowed in his interim report. They include:

  • national environmental standards, legally binding on the states and others, to guide development decisions and provide the ability to measure outcomes
  • applying the new standards to existing Regional Forest Agreements (RFAs). Such a move could open up the forest debate in a way not seen since the 1990s
  • accrediting the regulatory processes and environmental policies of the states and territories, to ensure they can meet the new standards. Accredited regimes would be audited by an Environment Assurance Commissioner
  • a “quantum shift” in the availability of environmental information, such as accurate mapping of habitat for threatened species
  • an overhaul of environmental offsets, which compensate for environmental destruction by improving nature elsewhere. Offsets have become a routine development cost applied to proponents, rather than last-resort compensation invested in environmental restoration.

Under-resourcing is a major problem with the EPBC Act, and Samuel’s report reiterates this. For example, as I’ve noted previously, “bioregional plans” of land areas – intended to define the environmental values and objectives of a region – have never been funded.

Respecting Indigenous knowledge

One long-overdue reform would require decision-makers to respectfully consider Indigenous views and knowledge. Samuel found the law was failing in this regard.

He recommended national standards for Indigenous engagement and participation in decision-making. This would be developed through an Indigenous-led process and complemented by a comprehensive review of national cultural heritage protections.

The recommendations follow an international outcry last year over mining giant Rio Tinto’s destruction of 46,000-year-old caves at Juukan Gorge in Western Australia. In Samuel’s words:

National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.

Confusing signals

The government’s position on Samuel’s reforms is confusing. Ley yesterday welcomed the review and said the government was “committed to working through the full detail of the recommendations with stakeholders”.

But she last year ruled out Samuel’s call for an independent regulator to oversee federal environment laws. And her government is still prepared to devolve federal approvals to the states before Samuel’s new national standards are in place.

In July last year, Ley seized on interim reforms proposed by Samuel that suited her government’s agenda – streamlining the environmental approvals process – and started working towards them.

In September, the government pushed the change through parliament’s lower house, denying independent MP Zali Steggall the chance to move amendments to allow national environment standards.

Ley yesterday reiterated the government’s commitment to the standards – yet indicated the government would soon seek to progress the legislation through the Senate, then develop the new standards later.

Samuel did include devolution to the states in his first of three tranches of reform – the first to start by early 2021. But his first tranche also includes important safeguards. These include the new national environmental standards, the Environment Assurance Commissioner, various statutory committees, Indigenous reforms and more.

The government’s proposed unbundling of the reforms doesn’t pass the pub test. It would tempt the states to take accreditation under the existing, discredited rules and resist later attempts to hold them to higher standards. In this, they’d be supported by developers who don’t like the prospect of a higher approvals bar.

A big year ahead

Samuel noted “governments should avoid the temptation to cherry pick from a highly interconnected suite of recommendations”. But this is exactly what the Morrison government is doing.

I hope the Senate will force the government to work through the full detail of the recommendations with stakeholders, as Ley says she’d like to.

But at this stage there’s little sign the government plans to embrace the reforms in full, or indeed that it has any vision for Australia’s environment.

All this plays out against still-raw memories of last summer’s bushfires, and expected pressure from the United States, under President Joe Biden, for developed economies such as Australia to lift their climate game.

With the United Nations climate change conference in Glasgow in November, it seems certain the environment will be high on Australia’s national agenda in 2021.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

Image by pen_ash from Pixabay

Game of Species: Budget Estimates October 2020

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“Yes Senator? When will we save that adorable possum? I’ll take that on notice.”

By Peter Burnett

It seems that there are 172 species and ecological communities awaiting a recovery plan and that not a single plan had been finalised in the last 16 months! How do we hold government to account about this? Maybe the Senate Estimates Committee can extract some answers.

The average person is unlikely to have heard of Senate Estimates Committee hearings. Even when these obscure (and typically dull) proceedings generate the occasional political frisson, as they did with last month’s unexpected revelation that Australia Post had rewarded high performing executives with Cartier watches, the brand ‘Estimates’ will barely register.

Yet the Cartier watches revelation has now cost Christine Holgate, Australia Post’s Chief Executive, her job, and there were also casualties in the corporate regulator, ASIC. So, despite their obscurity, these are definitely proceedings to keep an eye on.

While Environment Estimates produced nothing as coruscating as the toppling of a CEO, for the aficionado there were, as ever, a few small gems among the dross.

To illustrate my point, in this blog I’ve focused on a perennial favourite with Senators in Environment Estimates – programs dealing with threatened species.

Nothing to see here, possums

One reason for the popularity of threatened species in estimates is that individual ‘cute-and-cuddly’ species such as the koala are very useful in drawing political attention to the complex issues of biodiversity decline and the parlous state of government efforts to do something about it.

Take for example the ongoing failure of the Commonwealth and Victorian governments to produce a recovery plan for Leadbeater’s possum after more than a decade.

Despite the very long delay in producing a recovery plan for the possum, officials gave evidence that they were “working very closely with Victoria”. Was the problem with the Victorian end, asked a Senator? Admirably, the Commonwealth official replied that she did not want to pass the buck to Victoria and so would “take responsibility for the timeframes”.

In that case, could the official give the Senator any information about why it was taking so long and what were the problematic issues? It turned out that Commonwealth officials were trying to understand the implications of Victoria’s 2019 decision to exit native forest industries. Were Victorian officials not being forthcoming with the details? “It is taking longer than I would have expected to get those details from Victoria” came the understated reply.

In that case, could the official tell the Senator what monitoring there was of the possums? Answer: “there is a range of monitoring underway undertaken by the Victorian government under the regional forest agreement” [RFA] but the detail was a matter for the officials who looked after RFA’s and they would not be available until the evening.

What then was the official’s expectation as to the timeframe for completing the recovery plan negotiations? Official: “Knowing that I said ‘shortly’ last time, I’m hesitant to repeat that time frame.”

And so it went on, ultimately leaving us none the wiser as to why the plan was taking so long or when it might be finished.

Not much to see anywhere else, either

The story is no better and the information no more forthcoming at a higher level. So, on this matter of 172 species and ecological communities awaiting a recovery plan and not a single plan being finalised in the last 16 months: And how long will it take to get through this backlog, asked one Senator? “It will take a very long time,” came the helpful senior official’s reply.

The Senator moved on to the government’s Threatened Species Strategy. This initiative was announced by then-environment minister Hunt in 2015. It set targets to improve the recovery trajectories of 20 mammals, 20 birds and 30 plant species by 2020. Although the announcement included several grants in the hundreds of thousands of dollars, there was no ‘new’ money associated with the initiative.  

In thinking about a flagship strategy such as the Threatened Species Strategy, one can almost see the political wheels turning in the minister’s mind. The ‘cute-and-cuddly’ factor works for governments just as well as it does for oppositions and cross-benchers. If one is responsible for nearly 2000 listed species and communities, has a small budget and cannot even keep pace with the paperwork involved in producing recovery plans, what does one do?

The answer, one might infer from the Threatened Species Strategy, is to focus on eliminating something can be the ‘enemy’ (feral cats), and on turning things around for a small number of well-known and/or photogenic species, representing about 3.5% of all listed species and communities. Even these limited objectives are characterised as a ‘stretch target’.

The evidence of officials at Estimates was that, although a final report would not be available until early 2021, after three years the trajectories of the 6 of 20 birds and 8 of 20 mammals had improved. It’s clearly hard to make progress even with a narrow focus.

Perhaps the final results will be better. Perhaps in anticipation of this the current environment minister, Susan Ley, announced recently that there would be a follow-on strategy, this time with a 10 year horizon.

Officials were coy, but the tenor of their evidence concerning this new program was that, once again, there would be no new money involved. So we should probably expect something much like the strategy just ending.

Of course, the government had recently put some significant new money on the table, announcing $150 million for bushfire recovery. Officials said that $28 million of this would go to the department for administration, including to support the preparation of recovery plans.

So we may be about to see a jump in production, and even implementation, of recovery plans. However, this is a one off figure in the context of the enormous environmental damage done by the Black Summer, so it’s hardly something to be welcomed.

And the game goes on

As a former public servant, now an outsider looking in, I find Estimates frustrating to watch. Although you do stumble upon the odd gem, most of what you hear consists of politicians asking politically loaded questions of bureaucrats, who respond with reams of blather, including repeated procedural statements like “I’ll take that on notice” and “that question needs to be directed to [someone else who isn’t here]”.

After one estimates committee which I attended, nearly 30 years ago, my department head commented that “they didn’t lay a glove on us.” From the public servant’s point of you, it’s about running the gauntlet without being wounded.

From my present vantage point as a citizen however, estimates is yet another accountability mechanism where the practice of holding governments to account falls far short of the theory. The game goes on: non-government politicians try and extract information from public servants for political purposes, while ministers and public servants work studiously to reveal nothing beyond the mundane.

As serious as the accountability issue is, the more significant problem lies with programs such as the Threatened Species Strategy, which target a tiny slice of the problem and even then struggle to achieve a modest set of objectives.

Like Rome, the Australia’s environment has been burning. And, like Nero, it seems that for government, the fiddle will remain the instrument of choice.

Image by David Salt

Australian court calls into question Regional Forest Agreements

The days of RFAs may be numbered if the successful challenge by Friends of Leadbeater’s Possum is anything to go by

By Peter Burnett

The recent decision of the Federal Court in Friends of Leadbeater’s Possum Inc v VicForests (hereafter, the Possum Case) could have significant and possibly profound implications for the logging of native forests in Australia. In this case the court found that VicForests, a Victorian Government forestry corporation, was in breach of a statutory Code of Practice for Timber Production that had been accredited under a federal-state Regional Forest Agreement (RFA).

Being covered by an RFA has meant that VicForests was exempt from the normal requirements of the Environment Protection and Biodiversity Conservation Act (EPBC Act). Because of this exemption, VicForests didn’t have to go through an environmental assessment and approval process each time it wanted to log in new areas that might contain endangered species or other ‘matters of national environmental significance’.

Of course, being in breach meant that this exemption was lost.

No simple fix

You might think that VicForests could deal with such a finding by simply bringing itself back into compliance with the code. It’s not that simple, however.

The code of practice required VicForests to comply with the precautionary principle. This in turn required them to conduct on-ground ecological surveys, with a view to avoiding serious and irreversible environmental damage. In this case, damage was possible to two endangered possums, the Leadbeater’s possum and the greater glider.

In considering impacts on the possums, VicForests had relied on desktop modelling (including habitat mapping) instead of conducting surveys. The court said this was a flawed approach. It also found that policies such as VicForests’ Interim Greater Glider Strategy didn’t represent the required ‘careful evaluation of management options’ but rather were defensive documents. The content of these documents suggested that VicForests developed policies out of a sense of obligation and were reluctant to implement them.

The implication is that coming into compliance with the Code would be no small thing. It would require significant changes of approach and attitude. More significantly, given expert evidence that the possums had been detected in or around all of the 66 logging coupes considered in the case, it was likely that the possums, let alone any other environmental value, could severely restrict or even prevent logging altogether.

Playing possum

The Possum Case is on appeal, and of course the appeal could be successful. If it is not successful (and I think Justice Mortimer’s 444 page judgement will be difficult to pull apart in an appeal court because it rests much more on scientific evidence and practice than on the points of law to which an appeal court is confined) the Victorian government’s hand will be forced.

The government will either have to underwrite further losses as VicForests brings itself into compliance with environmental standards, or it will decide to accelerate the transition out of native forest logging. The option of watering down the rules, which is what the federal and Tasmanian governments did in an earlier case, is less likely because, again, the issues relate more to good science and practice than to legalities, making a lowering of the bar more obvious and thus harder to defend.

This is not the first challenge to Australia’s ten RFAs. Green activist and former Senator Bob Brown challenged the Tasmanian RFA in 2006 in the Weilangta case. He won in the first instance but lost on appeal. The Possum Case seems to have prompted him to try again: Brown has already commenced a fresh challenge to the Tasmanian RFA.

The main implication of the Possum Case may be that the days of RFAs are numbered.

A fresh approach

In one respect the end of RFAs would be unfortunate, as the underlying model of regional environmental assessments and approvals is a good one.

In another respect, if RFAs simply provide cover for defensive box ticking and green-washing rather than substantive conservation (something I discussed in an early blog), this would be no great loss.

RFAs provided a mechanism to settle the ‘forest wars’ of the 1990s. So, if RFAs are rendered inoperable by court challenges, will it be back to the forest wars?

Or do we now have a much better appreciation of the many values that our native forests provide; values that include a whole range of ecosystem services beyond timber production, such as carbon sequestration, water yield, habitat provisioning and recreational amenity? Heather Keith and her colleagues reached this conclusion in an important article published in Nature in 2017.

Sometimes we need a jolt to the system to get us thinking differently.

Image: This possum is stuffed: George is a taxidermied male Leadbeater’s Possum (Gymnobelideus leadbeateri) that Friends of Leadbeater’s Possum uses for its educational work relating to this threatened species. George was found dead but intact on the side of a logging road in 2011 in the Victorian Central Highlands. It is assumed that George’s home in the mountain ash (Eucalyptus Regnans) forests was a victim of logging, and as his home was being carted away he fell off the logging truck. (Image by Tirin (www.takver.com) and used under the Creative Commons Attribution-Share Alike 3.0 Unported license.)

Trust us? Well let’s look at your record

Can governments be trusted to set and enforce effective environmental standards?

By Peter Burnett

Can Governments be trusted to set and enforce effective environmental standards? By ‘effective’, I mean standards that protect the environment to the point of halting long-term environmental decline?

I’m asking this question because in the current debate about reform of Australia’s national environmental law, the EPBC Act, environment minister Sussan Ley is saying ‘trust me’ on two major issues, both arising from Professor Graeme Samuel’s Independent Review of the EPBC Act.

First, she is rushing through a small but controversial set of legislative changes while promising more extensive reforms to come.

These initial changes are about reducing duplication and ‘green tape’ by introducing ‘single touch’ environmental decisions. They are posing as the first tranche of reform but are in fact a recycled version of the Abbott government’s ‘one stop shop’.

Second, the Government has rejected the recommendation of the Independent Review that there should be an ‘independent cop on the beat’ to regulate States accredited to make ‘single touch’ decisions. Without such a regulator, it would be up to Minister Ley to call to account any State making decisions that didn’t comply with Samuel’s proposed National Environmental Standards.

Unfortunately, I don’t think the government can be trusted on this. But it’s not about anyone’s personal qualities. It’s about the politics. I base my argument on two examples, Regional Forest Agreements (RFAs) and the Environment Restoration Fund (ERF).

Trust us on the forests

RFA’s were developed in the 1990s as the solution to the ‘forest wars’, especially over the harvesting of old growth forests to produce wood chips. The idea was that, following an environmental assessment, Federal and State governments would produce a 20-year plan, in the form of an RFA, for each forestry region.

There are 10 RFAs across southern Australia. Each one identifies areas for harvest and sets out how the State will conserve ecological values such as threatened species. In return, the Commonwealth grants export licences for forest products covered by the RFA and exempts forestry in RFA areas from the need for development approvals under the EPBC Act.

In 2006 Bob Brown challenged a Tasmanian RFA on the ground that Forestry Tasmania were failing to deliver the protection required by the RFA for several threatened species. He won the initial challenge but lost on appeal.

The interesting point however is not who won or lost but what happened between the initial case and the appeal.

Obviously the Federal and Tasmanian governments were concerned that the appeal court would uphold Brown’s win. So they changed the wording of the RFA. Instead of requiring that the species be protected (by applying agreed management prescriptions), the amended RFA specified that the establishment of the CAR (Comprehensive Adequate and Representative) Reserve System, together with the application of the agreed prescriptions, protected the species.

In other words, instead of requiring an actual environmental outcome, the RFA deemed the agreed inputs to be delivering the outcome.* The two governments were concerned that the law might require, not just that they take action, but that they actually achieve a result!

Trust us on endangered possums

Similar sentiments can be seen at play in the Leadbeater’s Possum Cases of 2018 and 2020, in which environment group Friends of Leadbeater’s Possum took VicForests to court, twice, arguing that the corporation was failing to comply with the RFA and that as a result it had lost its RFA exemption under the EPBC Act. (The cases also related to the Greater Glider.)

The cases are complex, but in brief the Court held that to maintain its EPBC Act exemption, VicForests had to conduct its forestry operations ‘in accordance with’ the RFA.

The first challenge failed because it was based on the failure of the Federal and Victorian governments to conduct, in a timely way, the five year reviews required under RFAs. The court said these reviews, though performing a ‘critical’ role in preserving the currency, appropriateness and effectiveness of the RFA, were not integral to forestry operations.

The second challenge was based on VicForests’ failure to comply to apply the precautionary principle, as required by the Victorian Code of Practice for Timber Production, in planning its logging activities. This time the challenge succeed, because the planning process was integral to forestry operations.

Again, the interesting point here is not so much the outcomes of the cases but the attitude of governments.

First, the Federal and Victorian governments were significantly late in conducting regular reviews of the RFAs. In fact, they missed the first one altogether. And, in playing ‘catch up’, they didn’t review the five Victorian agreements individually but rolled the reviews into one.

This creates a strong impression of initial neglect on both sides, followed by a scramble to get into compliance.

Second, rather than comply with the precautionary principle by undertaking serious on-ground monitoring work, VicForests relied on ‘desktop and other theoretical methods’ which the Court found to be flawed. In fact, the Court said that VicForests had prepared ‘defensive documents … suggesting VicForests felt obliged to have a policy addressing further protection for the Greater Glider, but was reluctant to implement it’.

Again, one is left with the strong impression that protecting the environment was far from the minds of those concerned.

Trust us on restoration

As I’ve written about the Environment Restoration Fund before, I’ll just recap briefly.

This $100m fund was announced in the 2019 Federal Budget, just before the election. The fund was presented as representing ‘practical environmental action’.

The government committed nearly 80% of the funds in the form of election commitments, ie. immediately, without calling for applications and without access to the usual expert advice about how to prioritise the spending for best environmental effect.

In other words, despite serious and ongoing environmental decline, the government’s ‘practical environmental action’ was, in reality, a pork barrel. When challenged about their approach in the Senate, the government’s main defence was that the Opposition did this sort of thing too.

So, who do ya trust?

I could go on, but in my view these two significant examples alone suggest strongly that governments, irrespective of political persuasion, or whether Federal or State, cannot be trusted to implement good environmental policy. Without ginger groups such as Friends of Leadbeater’s Possum to keep them honest, or Professor Samuel’s ‘independent cop on the beat’, they have a strong tendency to ‘talk the talk’ but not ‘walk the walk’.

The politics are just too hard.

With the RFA’s, I’m betting politicians still have an indelible memory of the timber trucks encircling Parliament House, like ‘Indians’ riding around the circled wagons in an old Western, even though this occurred more than 25 years ago. Once bitten, not just twice shy but pathologically averse to stirring up the timber industry.

With the ERF, the Morrison Government was widely expected to lose the 2019 election and perhaps this was an initiative born of desperation. The fact that it worked will only suffice as justification to the most rusted-on Coalition supporters. For the rest of us, it’s only helped to reinforce the widely held view that governments can’t be trusted.

So, while it’s possible that we’ll get a reasonable set of National Environmental Standards out of the current national environmental law review, because talk and even laws are cheap, it’s much less likely that governments would implement them effectively, if left to their own devices.

Bring on Professor Samuel’s independent cop on the beat!

Image by Pixabay

*On appeal, the Full Federal Court said that the change was unnecessary and that, as a matter of interpretation, the original words only required the application of the agreed prescriptions and not the achievement of protection, but this is beside the point.