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Death by a thousand cuts

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25 March 2011

Despite the recommendations of an expert panel, changes to federal environmental legislation have stalled, writes James Panichi

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Above: Opponents of the proposed Gunns pulp mill in Tasmania protest on Bondi Beach during the 2007 federal election.
Photo: James Alcock/ Fairfaxphotos

Above: Opponents of the proposed Gunns pulp mill in Tasmania protest on Bondi Beach during the 2007 federal election.
Photo: James Alcock/ Fairfaxphotos



IN April 2006, Australia’s most important piece of environmental legislation hit the headlines in a way that would change public perceptions forever. That was the day federal environment minister Ian Campbell announced he was intervening to stop a $220 million wind farm in Victoria, a project that had already been given the go-ahead. His justification? That the critically endangered orange-bellied parrot could find itself on the receiving end of a wind-turbine blade.

The decision reeked of politics and was treated with derision. The Victorian government accused the Commonwealth of “forsaking renewable energy to look after its fossil fuel mates,” while speculation mounted that the Howard government was using the move to shore up political support in regional Victoria ahead of the federal election.

Not that orange-bellied parrots vote, of course. And as for the birds’ human supporters, you can safely assume they’re not going to campaign for the Coalition. No – this was all about the local opponents of the wind farms, all of them real Australians with a high battler quotient and a bee in their bonnet that was hard for politicians to ignore.

Rightly or wrongly, the opponents of the project didn’t want an array of turbines whizzing around on their horizon and were determined to stop it. They mounted an effective political campaign and the federal government took heed. Case closed.

The science used to justify the decision was shaky at best. Even the most enthusiastic proponents of the parrots’ plight conceded that the chances of the animals’ stunning plumage falling foul of a gyrating turbine were slim. Then it was revealed that the federal government had approved a Tasmanian wind farm in an area known to be frequented by the very same parrots before their annual migration across Bass Strait.

The laws under which Senator Campbell blocked the wind farms had become a laughing stock. His role as the guarantor of the Australian environment came to be seen as simply another part of the political process, and all decisions made by environment ministers since then have been viewed in the same light.

So when environment minister Peter Garrett decided in 2009 to green-light Xstrata’s expansion of a $110 million mining project in northern Australia, observers assumed it was an attempt to curry favour with business leaders for political ends. And when the current minister, Tony Burke, announced a fortnight ago that he was granting Gunns the final approval to build a pulp mill in Tasmania’s Tamar Valley, conservationists promptly accused the minister of turning his back on the environment.

That’s not to say the ministers have been ignoring scientific evidence when making their decisions. But that’s not the point: the issue is now one of perception. The parrot episode left the impression that approving developments comes down to the whims of one person. Put simply, the federal legislation that gives the minister both the right and the responsibility to interfere in state affairs, the Environment Protection and Biodiversity Conservation Act 1999 (known as the EPBC Act), has a serious problem of credibility.

Yet even with a number of credible recommendations for reform sitting in Burke’s in-tray, the chances of the EPBC Act’s getting a serious makeover appear to be fading. This isn’t just the usual tale of a minister reluctant to accept a cut to his discretionary power. If anything, this is a clash over just what tools are needed to keep politics at arm’s length from the science, and whether the suggested reforms might create a monster that the federal government would struggle to control.


THE EPBC Act gives Canberra authority over a number of clearly defined matters of “national environmental significance.” These include the protection of threatened species and the “ecological communities” that support them, migratory species of birds (prone to crossing state borders), wetlands of international importance, federal marine areas, and world heritage properties. Everything else is a matter for states, territories and local governments. If the feds decide to take on a state government on an environmental matter – for example, over the decision to allow cattle grazing in Victoria’s high country – they need a mandate from the EPBC Act.

As luck would have it, the EPBC Act has a built-in requirement for a review every ten years. In 2008 Peter Garrett announced that the legislation would be examined by an independent panel, to be chaired by former senior public servant Allan Hawke. The Hawke Review undertook two rounds of nationwide consultations and considered over 200 submissions. In less than a year it had prepared a document that recommended root-and-branch reform of the Act.

The recommendations went from the cosmetic (for example, the renaming of the legislation as the Australian Environment Act) to the politically sensitive (the reform of the controversial Regional Forest Agreements, which regulate the management of Australia’s native forests). Yet if there was a common thread to the seventy-one recommendations it was that politics should be taken out of assessing the environmental impact of proposed development. This philosophy permeates the document, right through to the final recommendation, which calls for the establishment of an independent National Environment Commission.

“What we tried to do with our recommendations… was to have much clearer objectives to emphasise the central role of the protection of the environment,” says Paul Stein, a former NSW Supreme Court judge and a member of the Hawke panel. “We were trying to say, ‘Well, it’s OK to have ministerial decisions, but they need to be made in the context of the protection of the environment.’”

While the final decision would still rest with the minister, the new environment commissioner would be responsible for preparing a recommendation based on scientific evidence. The recommendation would then be made public, so if a minister chose to reject the advice, he or she would have to wear the responsibility publicly.

“The commissioner would in no sense be a decision-maker,” says Mark Burgman, professor of environmental science at the University of Melbourne and the self-described “token ecologist” on the review panel. The commissioner’s role, he says, would be “to provide independent, transparent and unfettered advice to the minister, and to the department.”

It was a bold attempt to bring transparency to a decision-making process – and it went further. Hidden behind the yawn-inducing enviro-English of recommendation six is something that, if implemented, could prove revolutionary. The review calls for the expansion of “the role of strategic assessments and bioregional plans so that they are used more often” and the strengthening of the process for “creating these plans and undertaking these assessments, so they are more substantial and robust.”

Just what are strategic assessments and bioregional plans? And how robust do they have to be? These questions take us into the world of environmental assessments – the heart of the legislation.


WHEN the development of a particular area threatens a natural value (protected either by state or federal laws), then an environmental assessment is required under the EPBC Act. This document assesses the impact of the development on threatened species and their habitats; if the impact is revealed to be significant, then the assessment needs to outline how that impact can be mitigated or what compensation might be offered. If the federal minister does decide to intervene, the environmental assessment will be the starting point.

Until now, this information has mainly been provided through environmental impact assessments. These assessments usually work well but are done on a site-by-site basis and don’t take into account impacts over a wider area. Not surprisingly, many scientists consider them to be dangerously inadequate.

In a recent interview on ABC Radio National, Mark Burgman described the impact assessments as “death by a thousand cuts.” “We lose little bits of things, each one of which, by itself, is not referrable to the minister, because it’s not of national significance,” he says. “But if you add them all up, they become a very significant impact.”

The solution, according to the scientific community, lies with “strategic” assessments – regional-scale studies that examine a development’s impact not just on the limited area directly affected, but also on the wider ecosystem. According to Paul Stein, the panel concluded that the adoption of strategic assessments across Australia would be a win–win. “One [benefit] is to give greater protection to the environment where it needs protection; the other is to give greater certainty to government and proponents of development, as to where it is safer to seek development.”

Developers liked what they heard and scientists were keen. It came as no surprise, therefore, that the Hawke Review recommended that strategic assessments – already permitted under current laws – take on a larger role. And the environment minister at the time, Peter Garrett, appeared to be on board.

In a 2009 speech to the International Congress of Ecology in Brisbane, Garrett argued that “bioregional” assessments were the best way forward. “We’re using the strategic assessment provision of the national environment law to inform future decisions on the Kimberley, in Australia’s northwest, and in urban growth areas in Canberra, Sydney and Melbourne, and we’re looking to extend that approach to other regions.”

Everyone agreed to get strategic. Yet people close to the federal department (today known by its over-the-top acronym DSEWPaC) had their doubts and behind closed doors voices of dissent began to be heard. That opposition boiled down to a fear of creating “power blocs” in the assessment process that would ultimately prove hostile to the federal government.

Here’s how it works. Under traditional environmental impact assessments, the Commonwealth deals directly with developers. It may be a piecemeal approach, but the system gives the federal government the power to speak the only language developers understand: offsets. If a development is going to affect, say, one hectare of grasslands, the federal department can demand that the proponents purchase a substantial amount of grasslands elsewhere – maybe eight or ten hectares. Offsets are the Commonwealth’s most effective bargaining chip. They can bite into the developers’ budgets, and that’s exactly how DSEWPaC likes it: the greater the offset, the more the developer will want to scale back the environmental impact.

The fear of those close to DSEWPaC is that the much broader bioregional assessments dilute the department’s power. That’s because strategic assessments bring a number of developers to the table, coordinated by state and territory governments – which are seen by everyone involved (other than the states and territories) as rampantly pro-development. These power blocs of state governments and developers, along with the consultants on their payrolls, create a problem for the federal department.

First, there’s the potential that offsets could be diluted – that the ratio of, say, ten hectares for every hectare affected could be whittled down substantially. But more importantly, after all parties have been locked into a strategic negotiation for two or three years, the Commonwealth’s ability to walk away altogether becomes politically unpalatable. Under the environmental impact assessments, on the other hand, the department can (and occasionally does) tell developers to go jump.

Yet the vast majority of the submissions to the Hawke Review came from groups and individuals who were concerned about the integrity of the science. And whatever the pragmatic worries of those concerned with the administration of the strategic assessments, scientists see broad, regional analysis as an important tool for understanding the impacts of a development across an ecosystem.


PART of the problem for the proponents of strategic assessments is that the first real test case for this approach – the recent expansion of Melbourne’s urban boundaries announced by the former Labor state government – has been an unmitigated shemozzle.

Scientists have been appalled by the plan to expand the city limits by over 43,000 hectares and even Victoria’s new planning minister, Matthew Guy, concedes he still doesn’t know who actually signed off on the expansion. Meanwhile, a group of scientists from the University of Melbourne has campaigned vigorously against the plan, saying it’s particularly concerned with the offset arrangements put in place by the Victorian government.

“A lot of grasslands are to be destroyed, and to compensate for that there would be a proposed grassland to the west of Melbourne,” says Kirsten Parris, a senior research fellow at the university and lead author of a submission to the Hawke Review. “The problem with that grassland reserve is that at the moment it’s on private land, so the land has to be acquired, which would take time.” Scientists were also unable to ascertain whether the state government had allocated funds for future land acquisition. In fact, information of any kind on the agreement currently in place is still hard to come by.

So, if the first real attempt at a strategic assessment has gone so badly, why bother? The problem with the Melbourne assessment is that it lacked what Mark Burgman calls the “architecture” outlined by the Hawke Review recommendations. This includes greater levels of transparency, codes of conduct for consultants supplying information and regular audits by the department of the information provided as part of an assessment.

The recommendations also envisage a “tabula rasa” scenario for development, in which all options would initially be on the table for discussion. In the case of the Melbourne expansion, however, the assessment was presented as a fait accompli – the interested parties were simply brought in to haggle over the offset.

So, the cases for and against both the creation of an independent commissioner and a greater reliance on strategic assessments are still bubbling away. All that’s left is for Environment Minister Tony Burke to announce how many (if any) of the Hawke recommendations he will accept.

Two of the recommendations had already been rejected by Peter Garrett when he was minister. Proposed changes to Regional Forest Agreements are out, as is the idea of a carbon “trigger” for new developments (factories would require special approval, based on the carbon emissions they are expected to generate). Yet Garrett appeared set to accept a large chunk of the recommendations. The same can’t be said for his replacement, Tony Burke.

Mr Burke’s office hasn’t returned my phone calls. But late last year Fairfax journalist Tom Arup reported that Burke had decided to ignore the cabinet submission prepared by his predecessor and ask his department for fresh advice. The implication was that there is a big cleavage between Burke and Garrett. The scientists now fear that those tensions could mean that Garrett’s earlier support for strategic assessments may be reason enough for Burke to steer clear of them.

Meanwhile, Greens senator Rachel Siewert suspects that the fight going on behind the scenes isn’t about the environment or the science, but Burke’s fear of losing power to the states – power blocs outside the federal government’s control. “It really just comes down to what level of involvement the federal government wants to have in state-based issues,” Siewert told Inside Story.

So, a suite of seventy-one far-reaching reforms to the EPBC Act could be dumped and the panel – although presumably not the same panel – might be sent back to the drawing board, leaving the problem of politicised science unsolved. •

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