'Really depressing': National environment laws failing to deliver

Internationally renowned ecologist Professor Hugh Possingham has watched for the past 20 years as the national environmental laws he helped design have failed to protect Australia's threatened species and unique ecosystems.

Since the Environmental Protection and Biodiversity Conservation Act passed in 1999, the list of threatened species and ecosystems has grown by more than one-third – from 1483 to 1974. Among mammals alone, one to two species are being lost each decade. The most recent, the Bramble Cay melomys, a rat native to the Great Barrier Reef, was declared extinct last year – the first loss attributed to climate change.

Environment Minister Sussan Ley has warned the status of koalas in various locations may be upgraded to endangered.Credit: Alex Ellinghausen

About 8 million hectares of threatened species habitat was cleared between 2000 and 2017, and 93 per cent of it was not assessed under the legislation despite the powers existing to do so, a study by leading Australian ecologists including Possingham found last year. Environment Minister Sussan Ley has warned the status of koalas in various locations may be upgraded to endangered.

"We are losing species at a similar rate to what we were 200 years ago and it's fast, as fast as anywhere on the planet," Possingham says, adding populations of threatened species are declining at a rate of 1 per cent a year. "It's really depressing. If our superannuation was declining at 1 per cent a year, we would all be concerned."

Possingham, a laureate fellow of the Australian Research Council, was brought in to advise the Howard government in the late 1990s on what started out as ambitious Commonwealth reforms to modernise the system of environmental protection. He was optimistic when the legislation passed in 1999, but now despairs.

"The intent of the law was any human action that would impact a listed species would not happen or would be modified so it wouldn't have an impact or it would be stopped," he says.

"Look at the data on applications – under 1 per cent of projects have been denied. A lot of habitat has disappeared and most of it wasn't referred [for assessment under the act] and when it is, little happens.

"A lot of richer countries like those in Europe and the US have got their extinction under control, but we haven't ... we are very embarrassed on the international stage. There's no ambiguity in the science, the EPBC Act isn't delivering."

'Green safety net'

Recent catastrophes have wrought havoc on national icons including the Great Barrier Reef and the Murray-Darling river system. The Black Summer fires of 2019-20 killed billions of animals, scorched 10 million hectares of bushland, pushed scores of threatened species towards extinction and endangered populations that had previously been relatively plentiful.

But experts say there is cause for optimism amid the dire tallies of death and destruction, arguing the legislation could "do a hell of a lot" to reverse the damage, provided politicians used its powers to intervene on nature's behalf.

"The act is like a Ferrari, but you've got to take it out of the garage to use it," University of Queensland associate professor of environmental policy Chris McGrath says. "It's got all the tools; the powers are there. It can act as a green safety net for threatened species and the environment. But the political will to enforce the rules is the problem."

The draft of the second statutory review of the EPBC Act, being prepared by former Australian Competition and Consumer Commission chairman Graeme Samuel, is due to be handed to Ley by the end of the month. The independent review of the government's central piece of national environmental law, which must occur every 10 years, is examining whether its objectives are being achieved and providing recommendations to ensure it is "fit for the future".

Once she receives the review, Ley will have to balance the demands of industry, conservation groups and scientists who have complained about the act's administration almost from the day it was passed.

'Gaping chasm'

The legislation provoked bitter divisions in the environment movement at the time, with some groups and the Greens opposing the bill because of what they saw as fatal flaws, including its inclusion of Regional Forest Agreements that enabled states – the primary managers of the environment – to substitute their regulations for federal oversight, and its failure to recognise the widespread threat of climate change.

The Humane Society International's head of campaigns, Nicola Beynon, who represented the organisation when the act was drafted, says it represented "major progress for environmental legislation at the time, but the trade-off was ministerial discretion". The legislation does not compel the federal minister to protect threatened species and their habitat, she says.

"The system is very permissive and even the last remaining habitat for a threatened species could be approved to be cleared," Beynon adds.

Amendments to the act in 2006 weakened community rights to appeal against development approvals and changed the threatened species listing process, which shifted from compulsory investigation of public nominations to a ministerial priority list that "does allow for political considerations to come into the process", she says.

Suzanne Milthorpe, the Wilderness Society's national environment laws campaign manager, says the federal minister's powers under the EPBC Act are firmly established in law, but there is a "gaping chasm" between the objectives of the act and its subsequent use.

"With the Franklin Dam case in 1983, Bob Hawke and the High Court firmly established that the Commonwealth government has extensive powers to protect the environment," Milthorpe says.

"Australia's national environment laws simply don't do what they say on the tin. If the Franklin Dam was proposed today, the EPBC Act would more likely be used to provide political sanction for the dam to be built rather than being used to protect the world heritage area from danger."

The legislation created powers for the federal government to conduct threat-abatement plans to prevent species decline and recovery plans to help bring endangered populations back to health. But conservation advocates warn key threats are not being addressed – such as the risk posed to native flora and fauna by bushfire.

The system is very permissive and even the last remaining habitat for a threatened species could be approved to be cleared.

The Humane Society International's head of campaigns, Nicola Beynon

Catastrophic bushfires were forecast ahead of the 2019-20 event. Threatened species commissioner Sally Box said the "ecological disaster" had left 119 animal species in need of "urgent management intervention".

Despite the fact bushfires were proposed and considered for listing as a key threatening process in 2008, the federal Environment Department has not progressed the matter. The Commonwealth Threatened Species Scientific Committee reminded the government about the listing of fire risk in 2018 and the assessment was reopened for consideration. It is ongoing.

'Red lights'

If it had identified the risk, the federal government could have prevented a mass fish kill in 2019 on the Lower Darling River near Menindee in far-west NSW, says Martin Mallen-Cooper, a native fish expert and adjunct research professor at Charles Sturt University.

The remote region made international headlines when an estimated 1 million native Murray cod and other species perished amid the region's worst drought on record, as shrinking river pools became de-oxygenated and left cramped fish choking for breath.

The site of the fish kills is downstream of Menindee Lakes, a natural lake system that has been engineered for water storage. It had been filled as recently as late 2016 after an unusual winter rain event flooded down from Queensland. But under joint management of federal and state governments, the water was released to flow into South Australia – which Murray-Darling Basin Authority chief executive Phillip Glyde said was done to avoid the high evaporation rates of the shallow lake system.

However, Mallen-Cooper says the "incredibly damaging" event could have been prevented if the risks were identified and contingency plans put in place.

"There should've been red lights going off" to store water ahead of 2019, he says.

"Everyone knew the inflows over the next 12 months would be around the lowest on record. You could see the risk and therefore you should have planned to mitigate it. If you had held back sufficient water, and that would have been a fair bit, you could have prevented the fish kill entirely."

Ley will be challenged in her response to the Samuel review to balance the push to speed up project approvals from industry groups, including the Minerals Council and the National Farmers Federation, and calls from the scientific community and environment movement to beef up federal oversight.

In its submission to the review, the Wentworth Group of Concerned Scientists said the "objectives of the [EPBC] act are not being met", highlighting that it does not account for cumulative impacts that come from a build-up of developments over time.

Among the authors of the submission was Peter Cosier, a senior policy adviser to former environment minister Robert Hill, who declined to comment for this article.

"By themselves, individual developments may have minimal impact on the environment but when combined, their cumulative impact can result in long-term damage," the Wentworth Group said. The submission cited the example of deforestation in Great Barrier Reef catchments, which had created marine pollution and contributed to the fact "numerous marine species including freshwater sawfish are now threatened".

Minerals Council chief executive Tania Constable says "significant growth in regulation" had not led to "better environmental and biodiversity outcomes" and the EPBC Act was hampered by "poor collaboration and co-ordination of policies".

"Resources wasted on duplicative processes should instead be directed to the collection and collation of environmental data, which would support strategic environmental outcomes and business certainty," Constable says.

In April, Ley said she expected Samuel would "identify a range of measures that we can take to prevent unnecessary delays and improve environmental standards".

"Cutting green tape is not about removing protection for the environment – it is about getting rid of unnecessary delays – delays that currently cost environmental groups, businesses and the economy hundreds of millions of dollars," she said.

The minister declined to comment for this article.

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