Turnbull wants to change Australia’s environment act – here’s what we stand to lose


Samantha Hepburn, Deakin University

Prime Minister Malcolm Turnbull is seeking changes to Australia’s national environment act to stop conservation groups from challenging ministerial decisions on major resource developments and other matters of environmental importance.

Turnbull is reviving a bid made by former Prime Minister Tony Abbott to abolish Section 487 of the Environment Protection and Biodiversity Conservation Act (EPBC Act) – a bid rejected in the Senate in 2015. If it goes ahead, the change will significantly diminish the functionality of the act.

The EPBC Act, introduced by the Howard government in 1999, has an established record of success. Judicial oversight of ministerial discretion, enabled by expanded standing under Section 487, has been crucial to its success.

Section 487 allows individuals and groups to challenge ministerial decisions on resources, developments and other issues under the EPBC Act. An organisation can establish standing by showing they have engaged in activities for the “protection or conservation of, or research into, the environment” within the previous two years. They must also show that their purpose is environmental protection.

Repealing this provision would remove the standing of these groups to seek judicial review of decisions. Standing would then revert to the common law position. That means parties would need to prove they are a “person aggrieved” by showing that their interests have been impacted directly.

Many environmental groups will be unable to satisfy the common law test, leaving a very small group of people with the right to request judicial review – essentially, the right to check that federal ministerial power under the EPBC Act has been exercised properly.

This is likely to have a devastating impact on fragile ecological systems and biodiversity conservation strategies.

This is particularly concerning given the dramatic changes affecting the environment from the expansion of onshore resource development and the acceleration of climate change.

Why do we have the EPBC Act?

The EPBC Act was designed to promote the introduction of ecologically sustainable resource development. This means federal environment ministers must take into account the economic, environmental and social impacts of proposals.

The EPBC Act is triggered and developments require Federal approval when they affect:

  • World heritage sites
  • National heritage sites
  • Wetlands
  • Threatened species and ecological communities
  • Migratory species
  • Nuclear actions, and
  • Commonwealth marine areas.

Since its implementation, Section 487 has proved critical to the success of significant achievements in environmental protection and management. Here are just a few examples.

The Nathan Dam case

The Nathan Dam case handed down in 2004 tested the protective scope of the EPBC Act.

Using Section 487, the Queensland Conservation Council and WWF Australia challenged the Federal Environment Minister’s decision to approve the construction of a large dam in central Queensland.

The dam was built to supply water for crop irrigation and other developments in the catchment of the Great Barrier Reef World Heritage Area. The issue was whether the minister, in granting approval, was required to take into account the impact of pollution from farmers using water supplied by the dam.

The Full Federal Court held that adverse impacts such as downstream pollution by irrigators did need to be taken into account by the minister. The importance of this decision lay in the finding that the scope of the EPBC Act was very broad, requiring the minister to consider indirect environmental impacts, including the acts of third parties where those acts could be reasonably anticipated.

The decision also resulted in an amendment to the definition of “impact” set out in the act.

The Wielangta Forest case

In the 2006 Wielangta Forest case Senator Bob Brown of the Australian Greens argued that Forestry Tasmania’s operations were having a significant impact on three threatened species: the Tasmanian Wedge-Tailed Eagle, the broad-toothed stag beetle and the Swift Parrot.

The Federal Court held that the loss of habitat was cumulative and had a dramatic impact on the three protected species. The court concluded that the objectives of the EPBC Act were to protect threatened species as well as restore populations so they were no longer threatened.

Forestry Tasmania had not complied with the Regional Forestry Agreements Act, because there was insufficient protection provided for threatened species. This meant that Forestry Tasmania could not claim an exemption from the application of the EPBC Act.

The decision is important because it highlights the ability of the Act, where judicial review is sought under Section 487 by an interested party, to determine the suitability of state practices for the protection and restoration of endangered species.

The Japanese whaling case

The case brought by Humane Society International Inc (HSI) against Kyodo Senpaku Keisha Ltd (Kyodo) tested the scope of the EPBC Act to protect endangered species in international waters.

HSI sought to stop the Japanese company from scientific whaling in the Australian Whale Sanctuary. In response, Japan claimed it did not recognise Australia’s sovereignty over the Antarctic waters that lay within the sanctuary.

The Federal Court declared that Kyodo was in breach of the EPBC Act and granted HSI an injunction restraining Kyodo from committing further breaches. HSI’s standing under Section 487 was critical – without it, the case would not have been brought.

The Carmichael coal mine cases

In 2014 and 2015 two cases were brought challenging the decision of the Federal Environment Minister, Greg Hunt, to approve the Carmichael coal mine. The coal mine, one of the world’s largest, was to be developed by a subsidiary of the Indian company, Adani.

In early 2015 the Mackay Conservation Group brought an action in the Federal Court arguing that the Minister had failed to consider two listed threatened species, the yakka skink and the ornamental snake.

No judgement was issued, but the court issued a statement that the Minister had failed to take these species into account when making the approval.

In 2016, the Australian Conservation Foundation brought a further case arguing that Hunt had failed to take account of the climate impact from the mine. It’s estimated the burning of coal from these mines will generate approximately 4.7 billion tonnes of greenhouse gas emissions.

In ACF v The Minister for the Environment, the Federal court concluded that the decision of the Environment Minister was legal, did not breach the EPBC Act and did not contravene the precautionary principle because there was no threat of serious or irreversible environmental damage to the Great Barrier Reef National Park.

ACF then sought an appeal from this decision to the Full Federal Court on the 16th of September, 2016. When handed down, the decision will be crucially important for the future of climate governance in Australia.

None of these decisions would have been possible without the groups’ standing under Section 487 of the EPBC Act. Removing these provisions undermines the foundational objectives of Australia’s national environmental act at a time when its protective capabilities are needed most.

The Conversation

Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University

This article was originally published on The Conversation. Read the original article.

Changes to Australia’s marine reserves leave our oceans unprotected


Jessica Meeuwig, University of Western Australia; Craig Johnson, University of Tasmania; David Booth, University of Technology Sydney, and Ove Hoegh-Guldberg, The University of Queensland

Ocean health relies on a strong backbone of protection and management. Marine reserves can be part of the solution, but only if they’re constructed in the right way. Recent recommendations on Australia’s marine reserves would leave more ocean unprotected.

Marine reserves are a mix of multiple-use zones that allow activities such as mining and fishing, and highly-protected zones called marine national parks that are free of extractive activities. These marine national parks are the gold standard for protecting our oceans. Globally, less than 1% of the world’s oceans are fully protected in no-take marine national parks or their equivalents.

Australia is currently deciding how much of its ocean territory it will place in marine national parks and where. To this end, the government recently released its commissioned review of Australia’s Commonwealth Marine Reserve Network.

Such a review is welcome as Australia has yet to provide comprehensive, adequate and representative protection for its oceans. This is despite the general recognition within the Australian community that economic growth depends on a healthy and properly functioning environment.

Marine national parks play a fundamental role in contributing to ocean ecosystem function and provide a means to assess the health of areas outside of these zones that are open to greater use by humans.

This understanding of the interdependence of how we protect and sustainably use our oceans is, unfortunately, largely missing from the review’s recommendations.

The gold standard

In early 2016 the Ocean Science Council of Australia (OSCA) prepared a scientific analysis aimed at helping define what Australia’s marine reserves should deliver.

Based on hundreds of peer-reviewed publications and myriad international consensus statements from researchers on the need for strong ocean protection, the Council concluded that science-based decisions and actions should:

(1) Prevent fishing, mining and other extractive activities on at least 30% of each marine habitat, according to the international standard for ocean protection to deliver protection of both biodiversity and ecosystem services

(2) Improve representation of marine national parks in bioregions (regions of the ocean defined by particular species and climate) and key ecological features (such as the continental shelf and offshore reefs) that were already under-represented in the 2012 marine reserve plans

(3) Build and maintain large, contiguous, highly-protected marine national parks in regions such as the Coral Sea

(4) Quantify the benefits of Australia’s marine reserves so as to make their value to Australia clearer.

We need to monitor and study our ocean ecosystems to understand how they work.
David Booth, Author provided

What the review says

The government review reflects science and community concerns in some respects, recommending for instance that more bioregions have at least one marine national park. This review also recommends more protection for some important coral reefs and there is an expansion of protection from mining in some areas.

Most importantly, the review recognises the fundamental role of highly-protected marine national park zones in the conservation of species and ecosystems. As a corollary of this, the review also recognises that “partial protection” zones within reserves are primarily used to address narrow sector-based concerns such as fishing, and result in reduced conservation outcomes (as reviewed here and here).

It requires explanation therefore that the review mostly fails to recommend zoning changes consistent with its own findings on the science. In comparison with the 2013 recommended zoning, the review’s recommended zoning would:

(1) Remove a total of 127,000 square kilometres of marine national park from the overall network, an area 1.9 times the size of Tasmania, with a net loss of 76,000 sq km

(2) Reduce by 25% the contiguous Coral Sea marine national park

Changes to Coral Sea marine national park proposed by review. Map generated from shape files provided by the Department of the Environment.

(3) Demote 18 areas from marine national park zones to varying forms of partial protection

(4) Shift the location of some marine national parks from the continental shelf to offshore areas as a way of maintaining cover but further eroding representation and indeed reducing protection on the shelf where it is most needed.

Overall, the review’s recommendations would see only approximately 13% of Australia’s Exclusive Economic Zone protected in marine national parks. This falls well below the recommended international standard of at least 30% of habitats being under high protection, or indeed higher levels as recently determined.

Smoke and mirrors

The recommendations in the review are tainted by a feeling of smoke and mirrors. While some of the review’s authors suggest that their recommendations would increase protection, there would indeed be a net loss of highly-protected zones should these recommendations be adopted by the government.

Under the review’s recommendations, Australia would do a great job of protecting the deep water abyss, but achieve little to protect ocean wildlife on the continental shelf where human pressures are highest. This out-of-sight-out-of-mind approach does not address the principles of marine conservation and also departs from recommendations from the research community.

Australian marine national parks are too-often relegated to residual areas of relatively little conservation value simply because these areas are of little value to commercial interests.

The significant erosion of protection in the Coral Sea is further evidence of this failure. Much of the erosion of this important reserve reflects a shift from full protection to partial protection in order to open up more ocean to tuna fishing.

The 25% reduction in large marine national park would increase tuna catch and value by 8-10% across the fishery, worth a mere A$26,376 to individual tuna fishers. This recommendation fails both the science and the economic test.

Where to from here?

The changes recommended by the review in many cases appear to prioritise economic benefits, no matter how trivial, over conservation. This is despite conservation being the core reason behind the marine reserves.

This stands in stark contrast to international moves towards protection of large areas of the ocean as a response to ongoing declines in ocean health.

Key examples of such large-scale protection are US President Barack Obama’s recent expansion of the Papahānaumokuākea Marine National Monument over the North West Hawaiian Islands and New Zealand Prime Minister John Key’s declaration of the Kermadec Marine Sanctuary in New Zealand’s waters.

Australia still has a major opportunity to protect and secure its marine ecosystems and make a significant contribution to global ocean conservation. At the same time we can develop important economic activities such as fishing and mining. Large and well-managed areas are going to become more important, not less, as climate change intensifies.

This will require the federal government to acknowledge and build on the global body of science and create a backbone of representative marine national parks. This will include retention of the Coral Sea’s high level protection and resisting the temptation to shift of marine national parks offshore. At a time of great environmental change, these moves are not just important, but urgent.

This is a contribution from the Ocean Science Council of Australia.

The Conversation

Jessica Meeuwig, Professor & Director, Centre for Marine Futures, University of Western Australia; Craig Johnson, Professor, University of Tasmania; David Booth, Professor of Marine Ecology, University of Technology Sydney, and Ove Hoegh-Guldberg, Director, Global Change Institute, The University of Queensland

This article was originally published on The Conversation. Read the original article.

Why I’m spending three months sailing right around Antarctica for science


Nina Schuback, Curtin University

Spending three months inside a metal container on board an icebreaker in the Southern Ocean, filtering water while attempting to ignore freezing temperatures and huge ocean swells outside. It’s not everyone’s idea of fun … but it’s what I’ll be doing next year, in the name of climate science.

From late December 2016 to March 2017 I will be on board the Russian research vessel Akademik Treshnikov, taking part in an expedition that will take me and 54 other scientists from 30 countries on a complete lap of Antarctica – the first international research expedition to circumnavigate the frozen continent.

The Antarctic Circumnavigation Expedition (with the funky abbreviation ACE) is the first project run by the Swiss Polar Institute, and involves 22 projects covering different aspects of the biology, physics and chemistry of the Southern Ocean.

Rough ride

We’re not expecting the conditions to be particularly fun – but it will be worth it. A better understanding of Antarctica and the Southern Ocean surrounding it is critical – not just for the preservation of this pristine environment but also for the whole planet.

The Akademik Tryoshnikov: home for the first three months of 2017.
Tvabutzku/Wikimedia Commons, CC BY

The Southern Ocean is massive. It is also really far away from everywhere, which makes it hard for scientists to go there and study it. On top of that, there is no land at these latitudes to stop waves from building up, so waves can get really big, making the Southern Ocean a less than ideal environment for scientific work. I’m expecting that all of us will get seasick at some point.

Because of the size and isolation, our understanding of the physics, chemistry and biology of the Southern Ocean is not very good. What we do know is that this region is disproportionately important for the planet’s climate. For example, it was responsible for storing an estimated 43% of the carbon dioxide produced by humans between 1870 and 2005, and 75% of the overall oceanic heat uptake.

The ACE expedition is a unique opportunity to collect data in the Southern Ocean. The voyage will set off from South Africa, visiting all of the Southern Ocean’s main islands and traversing a range of latitudes – visiting the Antarctic coast just once, at Mertz Glacier in East Antarctica.

By spending three months completing a full circuit of the ocean, we will be able to collect an unprecedented set of samples and measurements, which will greatly improve our understanding of the Southern Ocean.

The planned route of the research cruise.
Antarctic Circumnavigation Expedition, Author provided

Productive research

My research is concerned with phytoplankton – microscopic algae that live in the sunlit surface layer of the oceans. Just like plants on land, phytoplankton in the oceans photosynthesise, using the energy from sunlight to “fix” carbon dioxide into organic biomass, producing oxygen as a by-product. The rate of this change in biomass is called primary productivity.

Phytoplankton primary production forms the base of marine food webs, making it a fundamental process of marine ecosystem dynamics and directly relevant to fishery yields.

It is also an important component of the carbon cycle, and therefore global climate dynamics. This is because through a process called the “biological pump” a fraction of the roughly 45 billion tonnes of carbon fixed by phytoplankton every year sinks out of the surface layer and is stored in the deep ocean, away from the atmosphere.

My colleagues and I are trying to improve our understanding of what controls the distribution of phytoplankton, the rates of primary productivity, and the variability in the biological pump in the Southern Ocean.

Unfortunately, even sending a shipload of scientist on a three-month voyage to the Southern Ocean to measure phytoplankton biomass, productivity, and other chemical and physical factors, can only provide a snapshot of what is really going on. Ideally, we need to monitor the whole Southern Ocean over seasons, years, and decades. And this can actually be done, with the help of a technique called satellite ocean colour radiometry.

The main focus of our research is the collection of so-called “bio-optical” data, which will improve our ability to interpret satellite observations and derive better estimates of phytoplankton biomass and productivity in the Southern Ocean. This, in turn, will allow us to use past satellite records to determine how phytoplankton biomass and productivity has changed over the past decades, and help to establish possible connections to ongoing climate change.

It also means that we will be able to use satellite data to monitor, essentially in real time, what is happening to phytoplankton biomass and productivity in the Southern Ocean, without having to rely on frequent and extensive expeditions. But in the meantime, I’ll be more than happy to be part of this adventure.

The Conversation

Nina Schuback, Researcher, Remote Sensing and Satellite Research Group, Curtin University

This article was originally published on The Conversation. Read the original article.