Our nature laws are being overhauled. Here are 7 things we must fix



A koala mother and joey seeking refuge on a bulldozed log pile near Kin Kin in Queensland. Federal environment laws have failed to prevent widespread land clearing across Australia.
WWF Australia

Jan McDonald, University of Tasmania

Environment Minister Sussan Ley yesterday announced a ten-yearly review of Australia’s national environmental laws. It could not come at a more critical time, as the environment struggles under unprecedented development pressures, climate change impacts and a crippling drought.

The laws, formally known as the Environmental Protection and Biodiversity Conservation (EPBC) Act, have been in place for 20 years.




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Announcing the review, Ley said it would “tackle green tape” and reduce delays in project approvals. She said the laws must remain “fit for purpose” as our environment changes.

Serious declines in most biodiversity indicators strongly suggest the laws are not fit for purpose. Some 7.7 million hectares of endangered species habitat has been destroyed since the Act was established and the lists of threatened and endangered species continue to grow.

Environment Minister Sussan Ley pats a koala during a National Threatened Species Day event at Parliament House in Canberra in September 2019.
Mick Tsikas/AAP

The review should ensure Australia’s environmental law achieves what it was designed to do – protect our precious natural places.

The list below reflects the EPBC Act priorities of 70 environmental lawyers and practitioners who were polled by the National Environmental Law Association. Collectively, they have more than 500 years experience of the Act’s operation.

1. Independent decisions with clear criteria

Under the laws, proponents of activities likely to have big impacts on so-called “matters of national environmental significance” must get federal approval. The minister or a representative makes this decision and, in the overwhelming majority of cases, grants approval.

This approval power should be vested in an independent body to take the politics out of decisions. Criteria for deciding on approvals should be clearer, including thresholds for when applications must be refused on environmental grounds.

2. Take stock of cumulative impacts

A search of the EPBC Act will not find any reference to cumulative impacts, or the need to consider whether approval of one proposal is likely to lead to a raft of new projects being proposed. There is little scope to consider cumulative impacts that might happen in future — only when a new proposal constitutes the straw that breaks the camel’s back.

The Act must do better at considering both how proposed activities and future plans will interact, and the background processes of environmental change and decline.

Suburban sprawl north of Brisbane. Environment law experts say the EPBC Act does not take account of cumulative impacts of developments.
Dave Hunt/AAP

3. Provide funds for proper enforcement

Improving the content of the Act is one thing, but monitoring, compliance and enforcement are critical. There is little point imposing tough conditions if no one is there to ensure they are met. This demands an ongoing sustainable funding base that is not dependent on political budget priorities.

4. Better data and transparency

Access to information about environmental decisions is essential for good governance. Not all documents and decisions are publicly available. It is very difficult to track down detailed aspects of approval conditions – for example, the detail of the groundwater management and monitoring plan for the Adani coal mine. This is especially important when the department’s capacity to oversee compliance is so constrained.




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The Act should consider the need for public registers of all documents and data collected as part of decision-making and monitoring processes, including decisions, approvals, conditions, offset locations, compliance reports and monitoring data.

5. Expand scope of national environmental impact assessment

Commonwealth involvement in environmental approvals is limited to specific “matters of national environmental significance”. Land clearing and climate change are not included in the list of such matters, and are usually considered under state laws.

This means activities that may damage native vegetation or lead to rising emissions are only scrutinised under federal law if they might affect other things, such as threatened species or world heritage places.




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Also, the Act only seeks to protect water resources when the proposed project is a large coal mine or coal seam gas venture. New triggers are needed to require federal assessment and approval for all activities that might significantly affect water, native vegetation and climate change.

Rare black cockatoos in Victoria. The number of threatened species has grown while the EBPC Act has been operating.
THREATENED SPECIES RECOVERY HUB

6. Deal with land clearing

Habitat loss is recognised as the primary driver of species decline in Australia. Rates of land clearing have increased dramatically in recent years, despite the operation of the Act.

Stronger protections are needed. These must prevent further clearing of vegetation types that are not adequately conserved in Australia’s system of protected natural areas. In cases where a proponent plans to offset damage caused by their project by restoring land elsewhere, construction should be delayed until work has begun on the restoration project and conservation benefits are occurring.

7. Make strategic assessments truly strategic

Conservation planning and environmental assessment are complex. Major new initiatives can involve interacting influences and trade-offs. The Act’s so-called “strategic assessment” process to some extent accounts for this — for example it might consider development plans across a region, rather than project-by-project.

But strategic planning must occur for a wider range of activities that may have long-term impacts on conservation: for example, the Tasmanian government’s desire to open up the Tarkine region to further mining. The planning must also better consider spatial conflicts and account for future change.

This list is just the tip of the law reform iceberg, but addressing these priorities would be a good start. With only one environmental law expert and no environmental scientist on the newly announced panel, it remains to be seen how these priorities will be addressed, if at all.The Conversation

Jan McDonald, Professor of Environmental Law, University of Tasmania

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

Environment laws have failed to tackle the extinction emergency. Here’s the proof



Koalas are among the threatened native species worst affected by habitat loss.
Taronga Zoo

Michelle Ward, The University of Queensland; April Reside, The University of Queensland; Hugh Possingham, The University of Queensland; James Watson, The University of Queensland; Jeremy Simmonds, The University of Queensland; Jonathan Rhodes, The University of Queensland, and Martin Taylor, The University of Queensland

Threatened species habitat larger than the size of Tasmania has been destroyed since Australia’s environment laws were enacted, and 93% of this habitat loss was not referred to the federal government for scrutiny, our new research shows.

The research, published today in Conservation Science and Practice, shows that 7.7 million hectares of threatened species habitat has been destroyed in the 20 years since the Environment Protection and Biodiversity Conservation (EPBC) Act 1999 came into force.

The Southern black throated finch, one of the threatened native animals worst affected by habitat loss.
Eric Vanderduys/BirdLife Australia



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Some 85% of land-based threatened species experienced habitat loss. The iconic koala was among the worst affected. More than 90% of habitat loss was not referred or submitted for assessment, despite a requirement to do so under Commonwealth environment laws.

Our research indicates the legislation has comprehensively failed to safeguard Australia’s globally significant natural values, and must urgently be reformed and enforced.

What are the laws supposed to do?

The EPBC Act was enacted in 1999 to protect the diversity of Australia’s unique, and increasingly threatened, flora and fauna. It was considered a giant step forward for biodiversity conservation and was expected to become an important legacy of the Howard Coalition government.

A dead koala outside Ipswich, Queensland. Environmentalists attributed the death to land clearing.
Jim Dodrill/The Wilderness Society



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The law aims to conserve so-called “protected matters” such as threatened species, migratory species, and threatened ecosystems.

Clearing and land use change is regarded by ecologists as the primary threat to Australia’s biodiversity. In Queensland, land clearing to create pasture is the greatest pressure on threatened flora and fauna.

Any action which could have a significant impact on protected matters, including habitat destruction through land clearing, must be referred to the federal government for assessment.

Loss of potential habitat for threatened species and migratory species, and threatened ecological communities. Dark blue represents habitat loss that has been assessed (or loss that occurred with a referral under the EPBC Act) and dark red represents habitat loss that has not been assessed (or loss that occurred without a referral under The Act). Three panels highlight the southern Western Australia coast (left), Tasmania (middle), and northern Queensland coast (right).
Adapted from Ward et al. 2019

The law is not being followed

We examined federal government forest and woodland maps derived from satellite imagery. The analysis showed that 7.7 million hectares of threatened species habitat has been cleared or destroyed since the legislation was enacted.

Of this area, 93% was not referred to the federal government and so was neither assessed nor approved.

Bulldozer clearing trees at Queensland’s Olive Vale Station in 2015.
ABC News, 2017

It is unclear why people or companies are not referring habitat destruction on such a large scale. People may be self-assessing their activities and concluding they will not have a significant impact.

Others may be seeking to avoid the expense of a referral, which costs A$6,577 for people or companies with a turnover of more than A$10 million a year.

The failure to refer may also indicate a lack of awareness of, or disregard for, the EPBC Act.

The biggest losers

Our research found that 1,390 (85%) of terrestrial threatened species experienced habitat loss within their range since the EPBC Act was introduced.

Among the top ten species to lose the most area were the red goshawk, the ghost bat, and the koala, losing 3 million, 2.9 million, and 1 million hectares, respectively.

In less than two decades, many other imperilled species have lost large chunks of their potential habitat. They include the Mount Cooper striped skink (25%), the Keighery’s macarthuria (23%) and the Southern black-throated finch (10%).

(a) The top 10 most severely impacted threatened species include those that have lost the highest proportion of their total habitat, and (b) species who have lost the most habitat, as mapped by the Federal Government.
Adapted from Ward et al. 2019

What’s working, what’s not

We found that almost all referrals to the federal government for habitat loss were made by urban developers, mining companies and commercial developers. A tiny 1.3% of referrals were made by agricultural developers – despite clear evidence that land clearing for pasture development is the primary driver of habitat destruction.

Alarmingly, even when companies or people did refer proposed actions, 99% were allowed to proceed (sometimes with conditions).

The high approval rates may be derived, in part, from inconsistent application of the “significance” test under the federal laws.

Hundreds of protesters gather in Sydney in 2016 to demand that New South Wales retain strong land clearing laws.
Dean Lewins/AAP

For example, in a successful prosecution in 2015, Powercor Australia and Vemco] were fined A$200,000 for failing to refer clearing of a tiny 0.5 hectares of a critically endangered ecosystem. In contrast, much larger tracts of habitat have been destroyed without referral or approval, and without any such enforcement action being taken.

Clearer criteria for determining whether an impact is significant would reduce inconsistency in decisions, and provide more certainty for stakeholders.

The laws must be enforced and reformed

If the habitat loss trend continues, two things are certain: more species will become threatened with extinction, and more species will become extinct.

The Act must, as a matter of urgency, be properly enforced to curtail the mass non-referral of actions that our analysis has revealed.

The left pie chart illustrates the breakdown of industries referring their actions by number of referrals; the right pie chart illustrates the breakdown of industries referring their actions by area (hectares). Both charts highlight the agricultural sector as a low-referring industry.
Adapted from Ward et al. 2019

If nothing else, this will help Australia meet its commitment under the Convention on Biological Diversity to prevent extinction of known threatened species and improve their conservation status by 2020.




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Mapping the critical habitat essential to the survival of every threatened species is also an important step. The Act should also be reformed to ensure critical habitat is identified and protected, as happens in the United States.

Australia is already a world leader in modern-day extinctions. Without a fundamental change in how environmental law is written, used, and enforced, the crisis will only get worse.The Conversation

Michelle Ward, PhD Student, The University of Queensland; April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland; Hugh Possingham, Professor, The University of Queensland; James Watson, Professor, The University of Queensland; Jeremy Simmonds, Postdoctoral Research Fellow in Conservation Science, The University of Queensland; Jonathan Rhodes, Associate Professor, The University of Queensland, and Martin Taylor, Adjunct senior lecturer, The University of Queensland

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

To reduce fire risk and meet climate targets, over 300 scientists call for stronger land clearing laws



File 20190308 150700 3qu1wc.jpg?ixlib=rb 1.1
Without significant tree cover, dry and dusty landscapes can result.
Don Driscoll, Author provided

Martine Maron, The University of Queensland; Andrea Griffin, University of Newcastle; April Reside, The University of Queensland; Bill Laurance, James Cook University; Don Driscoll, Deakin University; Euan Ritchie, Deakin University, and Steve Turton, CQUniversity Australia

Australia’s high rates of forest loss and weakening land clearing laws are increasing bushfire risk, and undermining our ability to meet national targets aimed at curbing climate change.

This dire situation is why we are among the more than 300 scientists and practitioners who have signed a declaration calling for governments to restore, or better strengthen regulations to protect native vegetation.




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Land clearing laws have been contentious in several states for years. New South Wales relaxed its land clearing controls in 2017, triggering concerns over irreversible environmental damage. Although it is too early to know the impact of those changes, a recent analysis found that land clearing has increased sharply in some areas since the laws changed.

The Queensland Labor government’s 2018 strengthening of land clearing laws came after years of systematic weakening of these protections. Yet the issue has remained politically divisive. While discussing a federal inquiry into the impact of these policies on farmers, federal agriculture minister David Littleproud suggested that the strenthening of regulations may have worsened Queensland’s December bushfires.

We argue such an assertion is at odds with scientific evidence. And, while the conservation issues associated with widespread land clearing are generally well understood by the public, the consequences for farmers and fire risks are much less so.

Tree loss can increase fire risk

During December’s heatwave in northern Queensland, some regions were at “catastrophic” bushfire risk for the first time since ratings began. Even normally wet rainforests, such as at Eungella National Park inland from Mackay, sustained burns in some areas during “unprecedented” fire conditions.

There is no evidence to support the suggestion that 2018’s land clearing law changes contributed to the fires. No changes were made to how vegetation can be managed to reduce fire risk. This is governed under separate laws, which remained unaltered.

In fact, shortly after the fires, Queensland’s land clearing figures were released. They showed that in the three years to June 2018, an area equivalent to roughly 570,000 Melbourne Cricket Grounds (1,138,000 hectares) of bushland was cleared, including 284,000 hectares of remnant (old-growth) ecosystems.

Tree clearing can worsen fire risk in several ways. It can affect the regional climate. In parts of eastern Australia, tree cover reductions are estimated to have increased summer surface temperatures by up to 2℃ and southwest Western Australia by 0.4–0.8℃, reduced rainfall in southeast Australia, and made droughts hotter and longer.

Removing forest vegetation depletes soil moisture. Large, intact areas of forest typically have cooler, wetter microclimates buffered from extreme temperatures. Over time, some forest types can even become fire-resistant, but smaller patches of trees are typically drier and more flammable.

Trees also form a natural windbreak that can slow the spread of bushfires. An analysis of the 2005 Wangary fire in South Australia found that fires spread most rapidly through paddocks, rather than through areas lined with native trees.

Trends from 1978 to 2017 in the annual (July to June) sum of the daily Forest Fire Danger Index, an indicator of the severity of fire weather conditions. Positive trends, shown in the yellow to red colours, indicate increasing length and intensity of the fire weather season. Areas where there are sparse data coverage, such as central parts of Western Australia, are faded.
CSIRO/Bureau of Meteorology/State of the Climate 2018

Finally, Australia’s increasing risk of bushfire and worsening drought are driven by global climate change, to which land clearing is a major contributor.

Farmers on the frontline of environmental risk

Extensive tree clearing also leads to problems for farmers, including rising salinity, reduced water quality, and soil erosion. Governments and rural communities spend significant money and labour redressing the aftermath of excessive clearing.

Sensible regulation of native vegetation removal does not restrict existing agriculture, but rather seeks to support sustainable production. Retained trees can help deal with many environmental risks that hamper agricultural productivity, including animal health, long-term pasture productivity, risks to the water cycle, pest control, and human well-being.

Rampant tree clearing is undoing climate policy too. Much of the federal government’s A$2.55 billion Emissions Reduction Fund has gone towards tree planting. But it would take almost this entire sum just to replace the trees cleared in Queensland since 2012.




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In 2019, Australians might reasonably expect that our relatively wealthy and well-educated country has moved beyond a frontier-style reliance on continued deforestation, and we would do well to better acknowledge and learn lessons from Indigenous Australians with respect to their land management practices.

Yet the periodic weakening of land clearing laws in many parts of Australia has accelerated the problem. The negative impacts on industry, society and wildlife are numerous and well established. They should not be ignored.The Conversation

Martine Maron, ARC Future Fellow and Associate Professor of Environmental Management, The University of Queensland; Andrea Griffin, Senior Lecturer, School of Psychology, University of Newcastle; April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland; Bill Laurance, Distinguished Research Professor and Australian Laureate, James Cook University; Don Driscoll, Professor in Terrestrial Ecology, Deakin University; Euan Ritchie, Associate Professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences, Deakin University, and Steve Turton, Adjunct Professor of Environmental Geography, CQUniversity Australia

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

Proposed NSW logging laws value timber over environmental protection



File 20180619 38863 ta299m.jpg?ixlib=rb 1.1
Increased logging in NSW could affect threatened species.
Nativesrule, Author provided

Oisín Sweeney, University of Sydney

New South Wales is revamping its logging laws for the first time in two decades, drafting regulations that will govern more than two million hectares of public native forest.

Among the changes are proposals to permit logging in exclusion zones – part of the reserve system – and dramatic increases to the scale and intensity of logging, putting several threatened species at direct risk.

NSW can implement these changes unilaterally. But if it does, NSW will effectively be asking the federal government to agree to changes that directly contradict the federal Threatened Species Strategy and several species recovery plans, and reduce the extent of the reserve system.




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Regional Forest Agreements

The federal government has arrangements with the states called Regional Forest Agreements (RFAs). They provide certainty to logging operations by accrediting state logging rules under federal environment law. No other industry gets this treatment – but RFAs are now expiring after having been in place for 20 years.

But the proposed changes to NSW logging laws clearly prioritise timber extraction over environmental protection. In 2014 the NSW government extended wood supply agreements with timber companies, locking in a commitment to logging at a certain level. The changes are cited as necessary to meet these wood supply agreements.

This means abandoning commitments made under the National Forest Policy Statement in 1992, including the concept of ecologically sustainable forest management. This is a fundamental shift and, because of the impacts on the reserve system and threatened species, against the national interest.




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Overlogging is behind the changes

In its 2016 Forestry Industry Roadmap the NSW government made a dual commitment to maintain logging levels without eroding environmental protection. However, the NSW Natural Resources Commission tasked with finding a way to do this reported “it is not possible to meet the government’s commitments around both environmental values and wood supply”.

The commission therefore recommended the NSW government “remap and rezone” old-growth forest and rainforest to increase the area that can be logged and make up timber shortfalls.

There are three kinds of zones that make up protected forest reserves. The first zone requires an act of state parliament to revoke, but the second and third can be revoked by the state forestry minister.

To further increase timber supply, headwater stream buffers – areas around waterways that cannot be logged – will be reduced from 10 metres to five.

The new laws also permit the logging of giant trees up to 140cm in diameter, or 160cm in the case of blackbutt and alpine ash (preferred timber species).

Northeast NSW to see the biggest changes

In northeast NSW, a new “intensive harvesting zone” will cover 140,000 hectares of coastal forests between Taree and Grafton. These forests are in the Forests of East Australia global biodiversity hotspot and many are included in a proposed Great Koala National Park.




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This will see 45-hectare patches of forest cleared of all but a smattering of small trees. The intensity of logging everywhere else in the “selective” harvesting zone will, on average, double.

Implications for wildlife and forest ecosystems

The new proposals move towards a retention model where habitat features are to be retained in clumps over several logging cycles. This “retention approach” is good in theory, but is undermined by the landscape-wide intensification of logging – particularly in the intensive zone – and the need to maximise timber production, not the conservation of forest species.

Although hollow-bearing trees are to be retained, no younger trees – which will eventually replace their elders – are required to be protected. This means the inevitable loss of hollow-bearing trees, exacerbated by logging rezoned old-growth. There is no longer any requirement to protect eucalypt nectar trees, vital resources for the critically endangered regent honeyeater and swift parrot.

A report on the proposals from the Threatened Species Expert Panel reveals that almost no data was available to design the new environmental protections, and there was great uncertainty as to whether they will work. One panel member commented:

The intensive harvesting zones are being formally introduced to prop up an unsustainable wood supply arrangement at the expense of the environment.

It is frustrating trying to be part of the solution when the underlying driver of the wood supply agreements fundamentally restricts any chance of a balanced approach.

The federal government has a problem

The federal government has already committed to extending Regional Forest Agreements with the states. Yet besides potentially reducing the size of the reserve network, NSW’s proposals directly threaten federally-listed species.

Conservation advice for the marsupial greater glider clearly states the impact of habitat loss and fragmentation through intensive logging.

Greater gliders (Petauroides volans) are vulnerable to loss of tree hollows and habitat fragmentation, which will both be exacerbated under NSW’s proposals.
Dave Gallan

Koalas prefer large trees and mature forests, yet the intensive logging zone will cover almost half of identified high quality koala habitat. Legally, loggers will only have to keep 10 trees of 20cm diameter per hectare – far too few and too small for koalas.

The national recovery plan for the swift parrot proposes the retention of all trees over 60cm diameter – clearly incompatible with the proposed intensive harvesting zone – while the recovery plan for the regent honeyeater identifies all breeding and foraging habitat as critical to survival.

Recent research has predicted a 31% probability of swift parrot extinction in the next 20 years, and a 57% probability for the regent honeyeater. Both birds are priority species under the Australian government’s Threatened Species Strategy.

Public feedback on the proposed changes is invited until June 29. After that, the federal government must decide whether it deems the proposals to be consistent with national environment law in a new Regional Forest Agreement. Signing off on these changes will cast serious doubt on the federal government’s commitment to the national environmental interest.




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The ConversationThe author would like to acknowledge the contribution of Dailan Pugh, OAM and co-founder of the North East Forest Alliance, to this article.

Oisín Sweeney, Senior Ecologist at the National Parks Association of NSW, Research Fellow, University of Sydney

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

Queensland’s new land-clearing laws are all stick and no carrot (but it’s time to do better)


Philippa England, Griffith University

The Queensland government passed legislation last month to prevent the clearing of high-value regrowth vegetation on freehold and Indigenous land. The move has been deeply unpopular with many landholders. They have argued that they are footing the bill for the commmunity’s environmental aspirations – without compensation.

The government’s intention was to reinstate a “responsible vegetation management framework”, broadly in line with legislation first passed in 2004, but which the Newman government repealed in 2013.




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But time has moved on since 2004. Instead of relying on a heavy-handed regulatory approach, a mix of carrots and sticks might have generated economic value for landholders, and reduced land clearing into the bargain.

Why landholders are fuming

Broadly speaking, landholders are worried the government hasn’t listened to their concerns and won’t pay for the land that is now effectively under state regulatory control. The parliamentary committee set up to report on the bill received more than 13,000 submissions (including 777 non-pro-forma submissions) – the largest number received by any committee of the Queensland parliament.




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The government itself has admitted stakeholders were not consulted in the preparation of the bill, although the department report cites a “substantial history” of consultation on many of its measures. Nevertheless, the Queensland Law Society felt that further consultation would have been appropriate given “the sensitive nature of this legislation”.

Many submissions raised concerns about information shortfalls, regulatory duplication and excessive red tape. The department’s fallback position was simply to argue that “the proposed amendments are consistent with the government’s 2017 election commitment”.

Ironically, it is not only landholders who have lost out financially. The Queensland government is now effectively in control of an additional 1.76 million hectares of land, which it intends to leave undeveloped. But, in today’s world, the carbon stored in this land has a market price as well as an environmental value, if it’s properly managed.

Better alternatives

With a little more preparation and creative thinking, the government might have been able to spare our vegetation, create a huge pool of lucrative carbon offsets ready to market to the world, and provide compensation to affected landholders.

For instance, instead of an outright prohibition on land clearing, the government could have put in place a three-year moratorium on land clearing. Landholders could then be given a chance to opt out of the moratorium by transferring their land to a permanent conservation covenant or similar arrangement.

Although some careful drafting would be required to ensure the offsets integrity standards and other regulatory requirements are met, landholders who opted out of the temporary moratorium could become eligible to earn carbon offsets, or any other available financial incentives.




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On the other hand, landholders who do not respond to this financial “carrot” would run the risk of being hit with the (uncompensated) “stick” of a more prescriptive approach (temporary or not) at the end of the moratorium period.

The government could help this transition along by helping landholders sign up for one or more of the various existing schemes for conservation covenants, carbon offsets and biodiversity offsets. One of the main factors preventing greater participation in these schemes is prohibitively high transaction costs, especially in the early stages.

I realise there is a degree of wishful thinking about this proposal. Several hurdles, particularly political ones, would need to be overcome. But if we want serious, fair and enduring land use reform, I think these options merit a more meaningful investigation.

At the moment, a heavy-handed sweep of a pen by politicians in Brisbane has locked both landholders and government out of the market for ecosystem services. Given that the government now essentially owns a huge store of carbon assets, it’s a missed opportunity.




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The ConversationWith a little more creative thinking, Queensland might have provided compensation to landholders at no cost to itself. Instead, it has used a regulatory hammer to impose rules that – judging by past performance – have no guarantee of surviving past the next election.

Philippa England, Senior Lecturer, Griffith Law School, Griffith University

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

Queensland’s new land clearing bill will help turn the tide, despite its flaws


Anita J Cosgrove, The University of Queensland; April Reside, The University of Queensland; James Watson, The University of Queensland, and Martine Maron, The University of Queensland

Queensland’s Labor government this month tabled a bill to tighten the regulation of land clearing. Queensland is by far the worst offender in this area, following a litany of reversals of vegetation protection.

After a period of tightened laws between 2004 and 2013, the Newman government set about unwinding key reforms during its 2012-15 term.

Following these changes, land-clearing rates quadrupled to almost 400,000 hectares per year, to the dismay of conservationists, with rising concern about the impacts on wild animal welfare and wider ecological impacts.




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Why aren’t Australia’s environment laws preventing widespread land clearing?


The state’s Labor government, which retained power at the November 2017 election, made an election promise to tighten vegetation management laws. However, the bill is likely to be fiercely debated after the parliamentary committee tables its report next month.

Although the bill promises a steep reduction in land clearing, albeit without any firm target, there is likely to be a significant gap between what the government has promised and what its legislation may deliver in reality.

To explain why, let’s look in more detail at what the proposed legislation does, as well as what it doesn’t do.

High-value agriculture

The 2013 amendments legalised the clearing of mature forest for large-scale crop-growing developments. The bill will once again ban it, fulfilling Labor’s election promise, but it remains a major point of friction with agriculturalists.

This will not stop the roughly 114,000 hectares that have already been approved from being cleared. It would, however, stop any more approvals.

About 10% of clearing of mature forest is due to high value agriculture approvals.

Self-assessed clearing

Up to 67% of clearing of regulated vegetation is occurring under self-assessment provisions. No permit is required for this, provided that landowners follow the code and give notice of their plans.

Of this self-assessed clearing, about 60% is for “thinning”. The government has now recognised that “thinning is not a low-risk activity” and is removing the main provision that allows it, but is keeping some self-assessed thinning provisions, such as for advanced regrowth.

Other types of self-assessed clearing would continue, particularly the clearing of mulga forests for livestock fodder, albeit under a tighter code. This was a major concession to agricultural interests.

As the bill has not banned self-assessment outright, future land-clearing rates will ultimately depend on how stringent the new codes turn out to be in practice.

“Area Management Plans” are an older, parallel mechanism for allowing self-assessed clearing. Clearing under these plans accounts for up to 38% of clearing of regulated vegetation. The new legislation would phase out existing plans, but would retain a provision to make new area plans, including for thinning.

Google satellite image of remnant forest that was legally thinned under a self-assessable code in 2015. The top half shows intact forest, and the lower half thinned forest.
WWF-Australia

Regrowth

The government promised to protect “high conservation value regrowth”. This includes threatened ecosystems and species habitats that are needed for recovery. The new law would expand these definitions to regulate clearing of regrowing forests older than 15 years, and of regrowth alongside streams in all Great Barrier Reef catchments, not just the northern ones as at present.

This will bring more than a million hectares that are currently exempt under regulatory control, a major step forward. However, the bill excludes regrowth that has been “locked in” as exempt on property maps. Clearing of regulated regrowth may also still proceed under a new self-assessable code, which apparently lacks protections for endangered species habitats or ecosystems.

Exemptions

Exemptions pose a major stumbling block to the government’s promise to “protect remnant and high conservation value regrowth”. An area currently exempt on a regulatory map can be reclassified, and the government plans to do this for more than 1 million hectares of high conservation value regrowth. However, areas that have been “certified exempt” on a property map cannot be reversed – this represents 23 million hectares (13% of the state’s area). The government has reaffirmed its commitment not to reverse these exempt areas.

What’s more, the bill allows ongoing locking in of exemptions. This is a significant issue because more than 60% of all tree clearing is exempt. Most of this is in already locked-in areas, and a large fraction includes advanced regrowth of high conservation importance.

It remains to be seen how much the A$500 million Land Restoration Fund will protect these locked-in areas.




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Land clearing isn’t just about trees – it’s an animal welfare issue too


In light of these loopholes and exemptions, the new law looks set to fall short of what the Queensland government has promised. This is primarily due to ongoing reliance on self-assessed clearing and exempt areas. However, the proposed legislation and funding together should go some way towards turning around Queensland’s soaring land-clearing rates.

Tree clearing will continue to be a hotly contested policy space, and not just in Queensland. New South Wales recently trod the same path, placing a heavily reliance on self-assessed codes. These were recently challenged successfully in court. A similar challenge is under way in the Northern Territory, citing the greenhouse emissions caused by a large-scale clearing approval.

The federal opposition has also pledged to tighten land-clearing controls in national legislation. The tide may well be turning, albeit only slowly so far.


The ConversationThe authors acknowledge the contribution of Dr Martin Taylor, Protected Areas and Conservation Science Manager at WWF-Australia and Adjunct Senior Lecturer at The University of Queensland.

Anita J Cosgrove, Senior Research Assistant in the Centre for Biodiversity and Conservation Science, The University of Queensland; April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland; James Watson, Professor, The University of Queensland, and Martine Maron, ARC Future Fellow and Associate Professor of Environmental Management, The University of Queensland

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

Why aren’t Australia’s environment laws preventing widespread land clearing?


Samantha Hepburn, Deakin University

Australia has national environment laws – the Environment Protection Biodiversity Conservation Act (EPBC Act). Yet given the staggering rates of land clearing taking place, resulting in the extinction and endangerment of plants and animals in Australia, these laws are clearly not working.

About 395,000 hectares of regrowth and old growth vegetation were cleared during 2015-16 in Queensland. Australia is set to clear up to 3 million hectares of native forest by 2030, and more than 1,800 plant and animal species are currently listed as threatened nationally.




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When the EPBC Act was first implemented in 1999, the idea was for it to provide reinforced federal environmental protection to areas of national environmental significance. But in reality, many projects that come within the ambit of the Act are not rigorously evaluated for their environmental impact.

Why isn’t the EPBC Act working?

Land clearing was listed in the 2001 and 2006 State of the Environment Reports as one of the greatest threats to biodiversity.

Deforestation and excessive land clearing fundamentally impacts existing biodiversity, damages fragile ecosystems, destroys wildlife habitat, and increases greenhouse gas emissions. In Queensland, where much of the land clearing is taking place, the state law (Vegetation Management Act) is not strong enough to diminish incentives for land clearing. Yet the national environmental laws have not provided greater protection.

There are several reasons for this. While land clearing is indirectly regulated by the EPBC Act due to the significant impact it can have on the environment, land clearing is not directly addressed by the EPBC Act.

As it stands, land clearing will only attract EPBC Act application where it can be established that it impacts a directly protected entity such as a World Heritage area, Ramsar wetland, threatened species, ecological community, or migratory species. If this connection cannot be established, no environmental assessment under the EPBC Act will occur.

Even where projects do attract the application of the EPBC Act, its capacity to advance best practice environmental impact assessment is highly questionable. One of the biggest problems is that the process of assessment is insufficiently robust.




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This problem is evident in other environmental issues too. Where a bilateral state and federal assessment is approved, as was the case with the Adani coalmine, the federal department often relies on state counterparts to undertake a thorough environmental assessment. Many of the proposals evaluated by state departments are assessed with reference to the least onerous environmental impact assessment available.

This documentation is generally prepared by the project proponent. Unsurprisingly, as a consequence, many of the projects that are evaluated under the EPBC Act are approved, subject to the imposition of environmental conditions. This means the environmental conditions need to be carefully monitored if environmental protection is to be optimised.

This creates a new set of problems. Where a breach is alleged, it must be proved and appropriate sanctions enforced. In reality, this rarely happens, and the sanctions that are imposed can be woefully inadequate. For example, Adani was fined A$12,000 for breaching an environmental condition relating to the release of coalwater in Abbott Point coal terminal, which flowed into the fragile Caley Valley Wetlands.

The substantive problem with the EPBC Act is that its implementation is subject to departmental discretion and therefore the vagaries of government administration. This is particularly problematic given the political nature of many of these decision-making processes.

Lack of rigorous scrutiny

In circumstances where, for example, there is a need to challenge the approval of a resource title in light of its environmental consequences, the EPBC Act relies heavily on environmental groups or other third parties to scrutinise the federal decision-making process.

For example, the Australian Conservation Foundation took strong action in challenging the issuance of the mining licence for Adani’s proposed Carmichael coal mine. It argued the endangered species and climate change impacts were insufficiently taken into account by the then Environment Minister Greg Hunt in exercising discretion under the EPBC Act.




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The case was dismissed because the Federal Court found that this decision was authorised by the discretions included within the EPBC Act. The minister was therefore within his power to decide not to take account of the climate change impacts of such a vast new coalmine. This is concerning given the profound impact that climate change can have upon fragile ecologies in areas of national environmental significance.

These findings indicate a lack of preparedness by the federal minister to accept a causal connection between climate change and domestic coal production, and to focus on narrow jurisdictional boundaries and strict domestic obligations. It also strongly highlights the deficiencies of our national environment act because the existing triggers do not address some of the most important environmental concerns of the modern world.

New environment laws urgently needed

Climate change is almost universally accepted as one the most serious environmental threats. Yet the EPBC Act does not include a climate change trigger (or a land clearing trigger, as discussed above).

This means these key threats to Australia’s environment will not be protected by EPBC Act. They may attract the EPBC Act indirectly, but only if it can be established that they raise a different trigger that is listed under the Act. This calls into question the capacity of our national environment laws to truly protect areas of national environmental significance.

The ConversationIn order to reverse unacceptable rates of land clearing, preserve ecosystems and habitats and diminish greenhouse gas emissions, a new framework for our national environment act is urgently needed.

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.