Re: EPBC Act, species habitat and controlled actions

To: "Simon Mustoe" <>
Subject: Re: EPBC Act, species habitat and controlled actions
Date: Sun, 21 Jun 2009 11:29:00 +1000 (EST)
Hi Simon and all,

Thanks for the thoughtful response, and impeccable if submerged defence of
ecological consultancy as a "profession" and practice. While issues of
practicality and species-focused legislation receives a good hearing in
your discussion, others might be able to provide commentary about the
politics often involved in apparently procedural assessments and
decisions. Think of the debates that emerged over the matter of
Orange-bellied parrots and windfarms for instance.

I'm not suggesting that "politics" were involved in this EPBC Act
referral, and in any case, as I said in the original email, the Government
in its wisdom decided the haul road construction was not a controlled
action, and in any case there were no requirements under the law to take
large forest owls into account in making any decision.

I don't at all agree that the spectacle of lots of attachments to an EPBC
Act referral is inherently a sign that "independent" review of actions has
been conducted. And the premise of "public consultation" supposedly built
into state and federal legislation could be much more effective (to put my
position in the most mild, beige terms!)

As many people on this will know, proponents have years to prepare their
material, plenty of time to ensure they employ the "right" consultants for
the job, and ultimately the public has 10 days to comment under the EPBC
Act. That is a grotesquely distorted arrangement in my view. It is
potentially made worse with the appearance of document disclaimers in
ecological assessments that assert the rights of their copyright "owners"
to approve or deny the ability of any independent party to merely
reference such supporting documents. This matter may warrant some urgent
investigation and clarification by the Government.

Implicitly the devil's advocate position leaves the public in a double
bind: plenty of us are only too aware of broadscale conservation issues
and we work tirelessly and endlessly towards having this critical point
accepted and effected at the policy level. In this case there has been a
growing and extensive body of research informing and supporting debates
about the practicalities of establishing a conservation zone specifically
addressing large forest owl habitat protection for the bushland in the
west-Lake Macquarie area.

But given the only legislation we have involves species-level listings,
when any proposal comes up we do not really have a choice about how to
engage with developments that may impact on listed species in various
ways, including those that are "unforseen" (vehicle strikes on the
trucking/haul road etc, intensification of edge effects impacting on prey
species and so on). We are forced to make submissions that connect to
listed threatened species only: other comments about cumulative impacts
from other developments in the region are rarely admissible.

So ... it's the "vibe" of the politics at the local and regional level I
suspect that is making broadscale conservation commitments increasingly
impossible, and actions that do things like cutting through one of the
last remaining chunks of relatively intact bushland in important areas are
part of this problem. There were other possible routes.



> 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
> species...
> 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 recommendations.
> 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.
> Regards,
> 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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