Howard's plan to trash environmental laws
By Francesca Davis
The federal Coalition government is proposing to "simplify" environment laws. The plan signals the biggest winding back of environment legislation since the commonwealth first passed national environment laws in 1974.
Since its election in 1996, the Coalition's approach to the environment has been to minimise government responsibilities, eliminate environmental regulations and free developers from restrictions.
Some of the government's actions include the refusal to agree to greenhouse gas reduction at the Kyoto Conference on climate change, attempts to undermine the Basel Treaty on Hazardous Wastes, approval for the Jabiluka uranium mine in Kakadu National Park, the attempt to extinguish native title rights in favour of mining companies and pastoralists, and proposed lower air and water pollution standards.
This has been combined with fanfare and token exercises such as the infamous National Heritage Trust, a slush fund used to buy green support for selling Telstra, and the National Pollutant Inventory, which excludes toxic waste.
Current Commonwealth environment legislation consists of around 20 related acts passed by the Whitlam Labor government and modelled on US legislation of the 1970s. The legislation was a response to the huge increase in awareness of environment issues that began in the 1960s.
Government regulation of development through environmental impact assessments, pollution laws and protection of heritage areas has reduced some of the worst effects. Although many of the commonwealth's powers are discretionary — ultimately political pressure must be brought to bear on the government before it will use them, such as in the Franklin Dam campaign — the laws were still a big step forward.
States' rights
While the commonwealth's justification for not using its powers has often been that it has to respect states' rights, opinion polls in 1993 showed that 73% of people believed that the commonwealth should set uniform standards for air and water pollution, 68% believed it should protect plants and animal species, and 62% believed it should set uniform standards for soil and land degradation. Only 25-35 % believed these matters should be left to the states.
It was hoped that changes to commonwealth laws would establish more national standards and replace administrative discretion with definite legal rights and obligations enforceable by private citizens. The Coalition, instead, is proposing the opposite, leaving the environment prey to the varying standards and economic interests of state governments and big private developers.
The changes narrow what environment laws can cover, provide loopholes for developers and governments to avoid their responsibilities and continue to deny the public any role in monitoring or enforcing environmental protection.
The government's consultation paper proposes that most existing laws be replaced by three new acts: the Environment Protection Act, the Biodiversity Conservation Act and an act on heritage protection.
The government is already drafting the legislation, which will be introduced into parliament in early April. That the drafting has begun before the four-week comment period closes reflects a lack of commitment to public consultation.
The contents of the proposed laws will not become clear until after they are introduced to parliament, too late for public comment.
Limiting assessments
Some things are clear, however. The power of the commonwealth to monitor and control development through environmental impact assessments (EIA) will practically disappear.
The new Environmental Protection Act (EPA) is intended to replace the Environment Protection (Impact of Proposals) Act 1974 and its administrative procedures.
The new act's provisions will be triggered only by an activity or proposal which may have a "significant impact on a matter of national environmental significance". Currently, the act is triggered by all matters which are likely to affect the environment significantly.
The definition of "national environmental significance" is crucial but deciding what constitutes a state rather than a national environment matter is difficult and often a false distinction. Are air and water pollution and land degradation from a mine just a issue only? Does air pollution stop at state borders? What about problems such as the degradation of the Murray-Darling rivers, which affects three states?
Most environmental issues cannot be tackled piecemeal or on a state basis. Problems such as pollution, land clearing or climate change can be dealt with only nationally, or in some cases internationally.
The government avoids this dilemma by randomly selecting seven "issues" and listing them as the issues of "national environment significance". They are: World Heritage properties, wetlands, places of national heritage significance, migratory species and cetaceans, nuclear activities and management, protection of the marine and coastal environments, and nationally endangered or vulnerable species or communities.
Climate change, land degradation and desertification are not even mentioned.
To further narrow its application, the Coalition has also proposed that decisions such as foreign investment approvals, export controls and funding will no longer trigger the act. Because the EIA process applies to all environment legislation, the changes will undermine the effectiveness of the rest of the environment legislation.
Exemptions
Another feature of the changes is that agreements between developers and the commonwealth which would exempt developers from compliance with environmental protection, assessment and biodiversity laws feature prominently.
Under the new EPA, proposals which fall within the terms of a bilateral agreement or management plan will not trigger the act (and consequently, an environmental impact assessment) — in other words, the government can agree to exempt a developer from the act's provisions. It is not specified how such agreements will be developed or approved, nor that they will abide by the same rigorous processes as under the present act.
Under the new Biodiversity Act and Heritage Act, "conservation agreements" appear to play the same role.
The motivations are explained in the consultation paper: "The terms of an agreement may provide that activities on land managed in accordance with the agreement will not trigger the provisions of the Biodiversity Conservation Act or the Environmental Protection Act. This is designed to operate as an incentive for landholders to enter into conservation agreements."
Again, the process for developing these agreements is not outlined.
The Australian Conservation Foundation fears the model for such agreements will be similar to the recent Hinchinbrook agreement — a privately negotiated and enforceable deed of agreement between the commonwealth, the Queensland government and the developer.
Such agreements deprive the public of its right to be informed about environmentally significant developments, to comment on them and to enforce the law if it is broken. The parties can secretly agree to vary the agreement at any time, without the need to notify the public. A breach of a "conservation" agreement would not carry any penalty.
The proposed legislation still allows some role for the public. Under the existing legislation, the public cannot enforce the laws or refer a matter to the environment minister for an EIA unless they have a "special interest". It is the minister who decides whether to proceed with an assessment, and who lists endangered species, communities and populations and processes which threaten them.
Under the new legislation, the situation is more critical because there is no community involvement or enforcement in "conservation agreements", yet such agreements may be exempt from the acts. There is an expansion of those individuals or groups considered to have a "special interest", however.
There are also problems specific to each of the three new acts.
- The Biodiversity Conservation Act
This act is supposed to integrate five acts: the Endangered Species Protection Act 1992, the National Parks and Wildlife Conservation Act 1975, the Whale Protection Act 1980, the Wildlife Protection (Regulation of Experts and Imports) Act 1982 and the World Heritage Properties Conservation Act 1983. It fails to mention climate change or land degradation, both fundamental to integrated conservation and the sustainable use of biodiversity.
It also fails to codify a proactive approach to biodiversity conservation, as required by the Biological Diversity Convention. The commonwealth can regulate access to biological resources only on commonwealth land and water. Proposed bio-regional planning imposes no obligations on states or landholders.
Astonishingly, internationally recognised biosphere reserves will not be considered a matter of national significance and will not trigger commonwealth assessment and approval processes.
There is no commitment by the government to legislate on climate issues.
- Environmental Protection Act
Having limited the use of the EPA, the government would expand the persons who may trigger the assessment process: now not only the proponent may refer the matter to the environment minister but also a state or commonwealth body.
The environment minister will be responsible for deciding whether to grant consent to proposals that trigger the act, rather than the head of a department planning the project. The act will require decisions to be based on ecologically sustainable development principles, although it is not clear how this will be done.
- Heritage Act
The most effective government environment agency in the last 20 years, the Australian Heritage Commission, looks set to be abolished and the current list of national heritage sites broken up. The consultation paper proposes that the commonwealth be responsible only for a national list of heritage places determined by "rigorous criteria and high thresholds".
The proposals, as Greenpeace has commented, will send environmental legislation back to the stone age. They are consistent with the Howard government's economic rationalism and its loyalty to business profits before people and the environment.