Why has BHP distanced itself from legal threat to environment groups?


Samantha Hepburn, Deakin University

Australian environment groups this week found an unexpected supporter in BHP, the world’s largest mining company.

BHP has defended green groups’ right to receive tax-deductable donations, in the face of a concerted push from both the federal government and the Minerals Council of Australia.

Given the influential role of the environment movement in Australia, and the legal precedent that NGOs and charities can be political, the big Australian evidently sees value in defending them.

Environment groups’ tax status

Environmental organisations in Australia have traditionally been able to claim tax-deductible status under both the Income Tax Act and the Charities Act, in recognition of the fact that the work these groups do has a clear public benefit. But this status has now come under threat.

The federal government issued a report in 2016 entitled Tax Deductible Gift Recipient Reform Opportunities, examining the administration and transparency of the environment groups. The ostensible aim of this report was to ensure that tax-deductible donations to environmental organisations were being used properly.

Among its key recommendations was that environmental organisations would be required to seek tax-deductible status directly from the Australian Taxation Office (ATO), and that they be registered as environmental charities in order to qualify. The report also recommended removing the list of environmental groups set out under the Income Tax Act.


Read more: Government inquiry takes aim at green charities that ‘get political


Controversially, the report also recommended that the ATO require environmental charities to spend at least 25% of their donation income on “environmental remediation work”, as opposed to campaigning or other activities. The government has subsequently indicated that it is considering increasing this percentage to 50%.

But the Minerals Council of Australia argues that environmental charities should be forced to commit 90% of their resources to on-the-ground environmental remediation, education and research, leaving only 10% for political advocacy.

Support within the LNP

Federal resources minister Matt Canavan has indicated his support for removing tax-deductible status from environmental organisations. In 2015 he stated:

…there are a large minority [of environmental groups] who are clearly engaged primarily in trying to stop fossil fuel development in Australia and I don’t think it’s right that Australian taxpayers, including people who work in the mining industry, be asked to fund those activities.

The Minerals Council of Australia has also backed the removal of tax-deductible status from environmental organisations, claiming that many of these groups are “not environmental organisations but rather professional activist groups whose objective is to disrupt and hamper the resources sector”.

The Minerals Council issued its own report documenting environmental organisations that is claims have committed or encouraged unlawful or unsafe activities or sought tax-deductible donations to support politically partisan activities.

The report specifically refers to activities by organisations including Greenpeace, the Australian Conservation Foundation, the Nature Conservation Foundation of NSW, the Australian Youth Climate Coalition, and Australian Marine Conservation, arguing that their activities are against federal law.

It is also important to note that environmental organisations are not the only groups to receive tax-deductible status. Other groups, such as the Institute for Public Affairs, which often campaigns on behalf of large organisations to remove environmental protections, also has this status.

Environment groups can be political

Legally speaking, there is no doubt that environmental charities and other NGOs do engage in political activities in addition to their focus on public welfare and the environment. This does not prevent them from being treated as charities.

Indeed, in the landmark High Court decision of Aid/Watch in 2011, the court specifically stated that where it is clear that public welfare is a primary motivation, the fact that the organisation also has political purposes is irrelevant.

On this basis, an environmental organisation can engage in activities to promote political change while still maintaining as its principal purpose the conservation or improvement of the natural environment.


Read more: Australia needs politically active environmental groups


Even BHP agrees. In response to the Minerals Council report, BHP announced that it holds a different view. It argued that environmental organisations should not be stripped of their tax-deductible status, because these organisations perform important advocacy roles for policy development in a democratic society.

Subsequently, 100 BHP shareholders have put forward a shareholder resolution through the Australasian Centre for Corporate Responsibility calling on the company to leave the Minerals Council of Australia. They argued that the Minerals Council’s position is directly at odds with “our company’s long-term financial and strategic interests”.

BHP has agreed to review its membership of the Minerals Council of Australia. It is not alone. In 2016, one of Australia’s largest emitters of greenhouse gas, AGL, left the Minerals Council, citing material differences in their respective policies on climate change and energy.

Environment groups should be allowed to do their work

At a time when we are facing a rapidly transitioning energy landscape – with the acceleration of climate change, renewable energy production, new technologies for unconventional gas extraction, and increasing concerns regarding groundwater depletion and contamination – environmental protection is a major public concern.

It’s hardly surprising that in a democratic framework, environmental organisations have become more politically active. They are striving to ensure that the research and education they conduct with respect to the environment is appropriately reflected within the Australian legal framework.

The ConversationThis work ultimately benefits all Australians. These organistions are constantly seeking to improve and protect the natural habitat in which we all live. In a democracy like ours, the work of these groups should not be drained of funding through changes to the taxation system.

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.

Land clearing on the rise as legal ‘thinning’ proves far from clear-cut


File 20170619 770 h5c4tb
A ‘thinned’ landscape, which provides far from ideal habitat for many species.
Author provided

April Reside, The University of Queensland; Anita J Cosgrove, The University of Queensland; Jennifer Silcock, The University of Queensland; Leonie Seabrook, The University of Queensland, and Megan C Evans, The University of Queensland

Land clearing is accelerating across eastern Australia, despite our new research providing a clear warning of its impacts on the Great Barrier Reef, regional and global climate, and threatened native wildlife.

Policies in place to control land clearing have been wound back across all Australian states, with major consequences for our natural environment.

One of the recent policy changes made in Queensland and New South Wales has been the introduction of self-assessable codes that allow landholders to clear native vegetation without a permit. These codes are meant to allow small amounts of “low-risk” clearing, so that landholders save time and money and government can focus on regulating activities that have bigger potential impacts on the environment.

However, substantial areas of native forest are set to be cleared in Queensland under the guise of vegetation “thinning”, which is allowed by these self-assessable codes. How did this happen?

Thin on the ground

Thinning involves the selective removal of native trees and shrubs, and is widely used in the grazing industry to improve pasture quality. It has been argued that thinning returns the environment back to its “natural state” and provides better habitat for native wildlife. However, the science supporting this practice is not as clear-cut as it seems.

Vegetation “thickening” is part of a natural, dynamic ecological cycle. Australia’s climate is highly variable, so vegetation tends to grow more in wetter years and then dies off during drought years. These natural cycles of thickening and thinning can span 50 years or more. In most areas of inland eastern Australia, there is little evidence for ongoing vegetation thickening since pastoral settlement.

Thinning of vegetation using tractors, blades and other machinery interrupts this natural cycle, which can make post-drought recovery of native vegetation more difficult. Loss of tree and shrub cover puts native wildlife at much greater risk from introduced predators like cats, and aggressive, “despotic” native birds. Thinning reduces the diversity of wildlife by favouring a few highly dominant species that prefer open vegetation, and reduces the availability of old trees with hollows.

Many native birds and animals can only survive in vegetation that hasn’t been cleared for at least 30 years. So although vegetation of course grows back after clearing, for native wildlife it’s a matter of quality, not just quantity.

Land clearing by stealth?

Thinning codes in Queensland and New South Wales allow landholders to clear vegetation that has thickened beyond its “natural state”. Yet there is little agreement on what the “natural state” is for many native vegetation communities.

Under the Queensland codes, up to 75% of vegetation in an area can be removed without a permit, and in New South Wales thinning can reduce tree density to a level that is too low to support natural ecosystems.

All of this thinning adds up. Since August 2016, the Queensland government has received self-assessable vegetation clearing code notifications totalling more than 260,000 hectares. These areas include habitat for threatened species, and ecosystems that have already been extensively cleared.

It may be that the actual amount of vegetation cleared under thinning codes is less than the notifications suggest. But we will only know for sure when the next report on land clearing is released, and by then it will be too late.

Getting the balance right

Vegetation policy needs to strike a balance between protecting the environment and enabling landholders to manage their businesses efficiently and sustainably. While self-regulation makes sense for some small-scale activities, the current thinning codes allow large areas of vegetation to be removed from high-risk areas without government oversight.

Thinning codes should only allow vegetation to be cleared in areas that are not mapped as habitat for threatened species or ecosystems, and not to an extent where only scattered trees are left standing in a landscape. Stronger regulation is still needed to reduce the rate of land clearing, which in Queensland is now the highest in a decade.

Protecting native vegetation on private land reduces soil erosion and soil salinity, improves water quality, regulates climate, and allows Australia’s unique plants and animals to survive. Landholders who preserve native vegetation alongside farming provide essential services to the Australian community, and should be rewarded. We need long-term incentives to allow landholders to profit from protecting vegetation instead of clearing it.

Our research has shown that Australian governments spend billions of dollars trying to achieve the benefits already provided by native vegetation, through programs such as the Emissions Reduction Fund, the 20 Million Trees program and Reef Rescue. Yet far more damage is inflicted by under-regulated clearing than is “fixed” by these programs.

The ConversationImagine what could be achieved if we spent that money more effectively.

April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland; Anita J Cosgrove, Research Assistant in the Centre for Biodiversity and Conservation Science, The University of Queensland; Jennifer Silcock, Post-doctoral research fellow, The University of Queensland; Leonie Seabrook, Landscape Ecologist, The University of Queensland, and Megan C Evans, Postdoctoral Research Fellow, Environmental Policy, The University of Queensland

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