80% of what we wanted - and they call this a bad Act?

The Environment Protection and Biodiversity Conservation (EPBC) Act 1998, which passed through the lower house last night, has been vociferously debated within and outside the environment movement. Amidst the hype, it is puzzling and disappointing to see that some others have chosen to ignore the sheer fact that the Act, while not a perfect piece of legislation, is streets ahead of the previous legislation - and delivers the overwhelming majority of the improvements the environment movement itself said it wanted.

WWF (World Wide Fund For Nature) - the oldest and most experienced international conservation organisation - rejected the Bill when it was first tabled in July last year. The conservation movement then agreed a common set of amendments needed to the Act. WWF and other leading conservation organisations who were involved recently in providing advice on the Act can confidently say that at least 80% of those amendments have been achieved.

WWF has spent four years drawing on our practical experience and advocating our position to the Government on the basis of these agreed priority issues to achieve better national environment legislation. On the basis of WWF’s advice, the Democrats negotiated a deal with the Government which achieved this 80%.

Over the last week we have seen some highly distorted representations of the true impact that this new Act will have on the Australian environment, reflecting an obsession with the notion that this Act hands the decision to carry out environmental impact assessments down to industry driven State Governments.

Firstly, it is important to remember that the Act is not solely focussed on environmental assessment of development proposals. Put simply, the Act identifies most of the major threats to the Australian environment - including fishing, land clearing, water allocation, invasive species, and climate change - and increases the Commonwealth’s ability to pro-actively manage these threats now or in the near future.

For the first time the Commonwealth environment minister is required to play a role in the regulation of fishing and invasive species. Also for the first time the Commonwealth is able to intervene to question state decisions on water allocation, vegetation clearing and other landscape scale threats by playing a role in the protection of threatened species and ecological communities on state land.

One of the major positive effects of the new Act is to codify the development of bilateral agreements - previously ad hoc arrangements between state and Commonwealth governments to jointly progress environmental responsibilities.

Some conservation groups argue that these agreements ultimately put more power in the hands of untrustworthy State governments, that sufficient Commonwealth powers already exist, and that the Act is less desirable than the present ad hoc arrangements.

This view is difficult to reconcile with the fact that the Commonwealth was involved in only nine environmental impact statements for proposed developments in 1997-98. The most current figures from Environment Australia’s 1997-98 Annual Report indicate that of 235 proposals referred to the Commonwealth in that year, only 13 were subject to further assessment. A large number of the remaining 222 projects were effectively abandoned for the States to assess.

The lack of Commonwealth involvement was due to political decisions - usually made by pro-development industry ministers - and the requirement that the Commonwealth use indirect issues, such as foreign investment, as triggers for Commonwealth involvement in environmental impact assessments. Consequently, the Commonwealth was rarely able to address projects that could cause enormous environmental damage.

WWF seriously questions how any system for involving the Commonwealth in environmental impact assessment could possibly be more deficient. It is our belief that no government will ever voluntarily disapprove any development which will yield significant economic returns. We believe, as the new Act sets out, a process led by the Environment Minister and involving greater Commonwealth participation through bilateral agreements will lead to better conservation outcomes on more issues, and in more places of more importance.

The new legislation takes some of the political whim out of environmental decision making by specifying six matters of "national environmental significance" (NES), that may directly trigger Commonwealth intervention to assess development proposals:

• threatened species and ecological communities
• World Heritage sites
• sites covered by the international Convention on Wetlands, or Ramsar Convention
• nuclear actions
• migratory species
• the marine environment

Taking the example of World Heritage sites, under the new legislation Commonwealth assessment and approval is required for all actions that would have a significant impact on World Heritage properties. The existing World Heritage Act specifically excludes the assessment of damaging activities under current environmental impact assessment legislation - for example, the Port Hinchinbrook development has never been subject to a Commonwealth environmental assessment. Under the new legislation, this assessment would be required.

The suggestion that the Commonwealth could get around this by merely delegating approval processes to the States is conceivable, but only after the development of a management plan which is subject to a rigorous process involving two rounds of public consultation and evidence that there will be no unsustainable impacts on areas and issues identified as being of "national environmental significance" (NES). Implementation of a Management plan may be blocked by either House of Parliament if the State’s approvals process is negligent. Further, management plans can be audited by the Auditor-General, they expire after only five years and must then be reapproved. In addition, for the first time these agreements are required to adhere to minimum Commonwealth standards and operate within enforceable state legislation.

Some conservation groups have levied criticism at the Act - and its supporters - because greenhouse gas emissions have not been included on the NES list. The Commonwealth government has commenced consultation with the States with a view to adding proposed large new greenhouse gas emitters as a trigger, and WWF believes a trigger will be added soon after the Act is proclaimed.

But what of forests? Of grave concern to WWF is the fact that the legislation exempts areas covered by Regional Forest Agreements (RFA’s) from environmental impact assessment. However rather than being a backward step, this is effectively no change to the current situation.

From WWF’s perspective, the challenges faced by the conservation movement in the implementation of the new legislation are:

• to ensure that the minimum national standards to be adopted by the Commonwealth for judging proposed bilateral agreements are rigorous;
• to ensure thorough implementation of the process to conserve threatened ecological communities;
• to finalise and add a greenhouse gas emission trigger to address the threat from climate change.

Overall, WWF believes that the flaws and challenges posed by the legislation should not be considered in isolation from the positive enormous outcomes the new Act will deliver across a broader range of the most critical environmental issues.

The bottom line in 1999 is that the environmental conservation movement must remain focussed on protecting the environment while following a solution focussed working philosophy. WWF (World Wide Fund For Nature) Australia, as an organisation which works across the environmental spectrum, considers this hard fought Bill to be the most significant legislative win for Australian conservation in 25 years.