EPBC Act, species habitat and controlled actions

To: <>, <>
Subject: EPBC Act, species habitat and controlled actions
From: Simon Mustoe <>
Date: Sat, 20 Jun 2009 22:50:18 +0000
This response refers to the recent posting about large forest owl habitat in 
Lake Macquarie. The situation is interesting and hardly surprising but not 
perhaps for reasons immediately apparent.

I am going to play devil's advocate first off and consider whether there could 
have been merit in the Commonwealth's decision to determine the action "not 
controlled". In this case, "not controlled" would mean not likely to have a 
significant impact on large forest owls. Note, if an action is considered "not 
controlled" there is no requirement for Federal Environmental Impact Assessment 
(EIA) - this does not necessarily mean no EIA, it just means that the "trigger" 
for Commonwealth involvement was not met. State processes may still apply.

There are two parts to the issue:

1) whether the Commonwealth may have been correct in legal terms; and
2) whether the EPBC Act or complementary state legislation could protect such 
species from development, including cumulative impacts (i.e. if the effects of 
lots of similar "not controlled" actions combine).

I haven't the time to read the documentation but the amount of accompanying 
PDFs and the response below, indicate that there was independent review of the 
potential effects before submission of evidence to the Commonwealth. Large 
forest owl habitat seems to have been identified, so why would the Commonwealth 
make this decision when there are clearly protected species and their habitat 
on site?

The Commonwealth would believe that the threshold for a "significant impact" 
was not met. They would have considered the evidence and determined that a 
significant impact risk was so low as to be within the realms of speculation. 
This very low level of threshold for triggering Commonwealth EIA reflects a 
number of benchmark court decisions. To avoid Commonwealth EIA, there should be 
virtually no evidence of a significant impact occurring. There was clearly some 
evidence of a potential impact, so the decision will have been determined based 
on the significance of the effect and what significant actually means.

Significant does have a 'legal' definition (important or notable, within an 
appropriate context or intensity). However, this definition is strongly 
influenced by practical elements of the EPBC Act and existing methods of 
assessing impacts. I've briefly discussed these below.


Not knowing the details of this specific issue, I couldn't make any assertions 
about the reliability of evidence, and I am not going to to do so. There is the 
possibility that consultants came to the view that large forest owls can 
withstand such habitat fragmentation. There are a few good studies to support 
this conclusion so it would not surprise me.

The fact is that in this situation the scope for application of the EPBC Act to 
protected species habitat loss is very narrow. It matters less if habitat is 
affected as, although cumulative impacts on species are supposed to be a 
consideration, this is barely possible to measure. The focus is therefore 
almost entirely on species populations (rather than species habitat). In 
practice, unless there was a possibility that the road construction would:

a) result in removal of habitat that could cause large forest owl mortality; AND
b) this would be likely to substantially threaten the extinction of the 

it would be extremely unlikely that the Commonwealth would see fit to impose 
their control over the action. Even if they had determined the action to be 
"controlled" (i.e. Commonwealth EIA required), the subsequent assessment report 
would probably conclude the same as the existing evidence and result in 
approval. So what would be achieved is a delay in the project, extra paperwork 
and administrative effort, all for the same result.

The Commonwealth can only operate within the constraints of their EPBC Act. 
This doesn't necessarily mean however, that this creates the outcome that we 
expect from such legislation.


There are two possible ways:

1) The habitat lost really was a significant part of large forest owl habitat, 
perhaps at the local scale, and it could cause local extinction. An alternative 
was not to approve the action.
2) The decision to call it "not controlled" was adequate but perhaps there 
could have been requirements to offset lost habitat.

We could endlessly debate point 1 but I am fairly sure it would be fruitless as 
there is likely to be no black and white answer. As I said earlier, my sense is 
that the decision was probably made for good reasons. Outside the law, this 
doesn't necessarily mean it is a "good" decision for large forest owl 
conservation but we cannot necessarily blame decision-makers for this.

I am going to concentrate on Point 2 as this is more commonly overlooked but 
really important for addressing cumulative impacts.

State legislation has got the potential to address cumulative impacts (e.g. NSW 
Biobanking legislation) so the Commonwealth in some cases might choose not to 
be involved, as they would just be duplicating effort. Nevertheless, they can 
where necessary, call an action "controlled" then assign the assessment to a 
state government process. A question you may ask is:

Given that large forest owls are nationally and internationally threatened, why 
would the Commonwealth not use their powers to demand habitat management and 
offset, especially when they have approved / will approve other habitat-loss 
actions, all of which at some unknown point, would result in a significant 
cumulative impact?

Our Commonwealth currently has no reasonable commitment to offsets, so they 
have no policy under which they can force states to address landscape-level 
habitat integrity and fragmentation issues.


The problem is that the Commonwealth's scope of consideration is limited in 
practice. This is both because the EPBC Act focuses to a large degree on 
specific matters such as protected species, rather than "biodiversity" (which 
includes landscape-level structure, function and composition). Take a moment to 
consider this last sentence as it is the main reason why we don't get the 
results we are looking for.

In situations like this, I would always recommend a nicely worded letter to the 
Commonwealth but not necessarily blaming them for their poor decision. We must 
recognise that their decisions are made within boundaries...and acknowledge 
that they are aware of failures and are perhaps keen to receive useful 

In my experience, the Commonwealth are thorough and they do care, but don't 
necessarily have the tools they would like. It is time that we lobbied for 
better biodiversity protection in legislation and policy. This is something 
that Birds Australia and other groups, if better informed, could take up on 
members' behalf. However in most cases, these groups are also so 
species-focused that they miss opportunity to leverage for change.

If we keep repeating concerns about protected species, without giving the 
authorities an alternative option, the message is so trite that it is 
practically useless. I have virtually given up reading conservation articles in 
Wingspan because they never understand this fundamental problem ... the message 
is falling on deaf ears.

As for public concern being shut down. I am not sure this is the case. I can 
think of several opportunities that would have been available for comment. The 
problem is that you won't always know about these. There is a presumption that 
people should find out but perhaps not enough effort to seek public 
consultation. That is a subject for another email.


Simon Mustoe CEnvP, MEIANZ, MIEEM.
Convenor, Environment Institute of Australia and New Zealand Ecology Group 
Director, AES Applied Ecology Solutions PL.

> Date: Sat, 20 Jun 2009 13:29:09 +1000
> From: 
> To: 
> Subject: [Birding-Aus] Masked, Powerful, Sooty and Barking Owl Habitat 
> Trashed in Lake Macquarie
> Hi all,
> Yet more bad news from the Lake Macquarie area for those of us interested
> in forest owls, large and small.  Another open cut and auger mine proposal
> is threatening remaining tracts of bushland in the region, but in the
> meantime a 4km road has been ripped through a crucial green corridor
> supporting owl habitat in the area.
> An area of bushland identified by independent scientists such as Mick
> Todd, and even a few "ecological consultants", plus the Department of
> Conservation and Climate Change in NSW, as being part of important large
> forest owl habitat has been destroyed and fragmented by construction of
> yet another coal haul road facilitating coal export infrastructure in the
> area.
> The road cuts through a significant section of bushland that will be
> familiar to all those who've had the fortune to have taken a wander
> through the area, perhaps chasing a rare sighting of male Masked Owls
> engaging in their fascinating courtship flights and so on. Amazingly, one
> group of ecological consultants who worked on the assessments also called
> in a Barking Owl which I think to be a very rare record for the area, but
> further testimony to why it was and still is considered important and
> worthy of conservation.
> On a more troubling note, what I would like to bring everyone's attention
> to as well is the way that public scrutiny of these sorts of actions is at
> increasing risk of being shut down: anyone interested might have a look at
> some of the documents supporting the company's referral under the
> Environment Protection and Biodiversity Conservation Act. The link is
> here:-
> and tiny url
> The Government in their wisdom decided that the proposal was not a
> controlled action, so the destruction of bushland was not illegal, and of
> course the matter of owl habitat could not be considered under the EPBC
> Act as they are not federally listed species under that legislation. But
> ... although birders may not be interested in the threatened flora
> assessment they might be interested in the disclaimer in that report which
> states:
> "This report is the property of  [insert name of proponent/mining company]
> and must not be referenced or reproduced without permission"
> If the public is unable to reference any report that is submitted as part
> of a public development application and approvals process without
> permission we are in serious trouble if any credible scientist or
> consultant or interested member of the public wishes to investigate and
> legitimately challenge aspects of such reports.
> Go check it all out on line though as I can't actually take the legal risk
> of naming the reports in this email. Thoughts and discussion welcome in
> the interests of birds and conservation.
> cheers
> Craig
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