This response refers to the recent posting about large forest owl
in Lake Macquarie. The situation is interesting and hardly
not perhaps for reasons immediately apparent.
I am going to play devil's advocate first off and consider whether
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
Environmental Impact Assessment (EIA) - this does not necessarily
EIA, it just means that the "trigger" for Commonwealth involvement
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
such species from development, including cumulative impacts (i.e. if
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
to the Commonwealth. Large forest owl habitat seems to have been
identified, so why would the Commonwealth make this decision when
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
realms of speculation. This very low level of threshold for triggering
Commonwealth EIA reflects a number of benchmark court decisions. To
Commonwealth EIA, there should be virtually no evidence of a
impact occurring. There was clearly some evidence of a potential
so the decision will have been determined based on the significance
effect and what significant actually means.
Significant does have a 'legal' definition (important or notable,
an appropriate context or intensity). However, this definition is
influenced by practical elements of the EPBC Act and existing
assessing impacts. I've briefly discussed these below.
COULD THE COMMONWEALTH HAVE BEEN CORRECT IN LEGAL TERMS?
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
so. There is the possibility that consultants came to the view that
forest owls can withstand such habitat fragmentation. There are a
studies to support this conclusion so it would not surprise me.
The fact is that in this situation the scope for application of the
Act to protected species habitat loss is very narrow. It matters
habitat is affected as, although cumulative impacts on species are
supposed to be a consideration, this is barely possible to measure.
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
b) this would be likely to substantially threaten the extinction of
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
assessment report would probably conclude the same as the existing
evidence and result in approval. So what would be achieved is a
the project, extra paperwork and administrative effort, all for the
The Commonwealth can only operate within the constraints of their EPBC
Act. This doesn't necessarily mean however, that this creates the
that we expect from such legislation.
HOW COULD THINGS HAVE BEEN DONE DIFFERENTLY?
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
An alternative was not to approve the action.
2) The decision to call it "not controlled" was adequate but perhaps
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
earlier, my sense is that the decision was probably made for good
Outside the law, this doesn't necessarily mean it is a "good"
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
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
choose not to be involved, as they would just be duplicating effort.
Nevertheless, they can where necessary, call an action "controlled"
assign the assessment to a state government process. A question you
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 /
approve other habitat-loss actions, all of which at some unknown
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
in practice. This is both because the EPBC Act focuses to a large
on specific matters such as protected species, rather than
(which includes landscape-level structure, function and
a moment to consider this last sentence as it is the main reason why
don't get the results we are looking for.
In situations like this, I would always recommend a nicely worded
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
is something that Birds Australia and other groups, if better
could take up on members' behalf. However in most cases, these
also so species-focused that they miss opportunity to leverage for
If we keep repeating concerns about protected species, without
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
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
seek public consultation. That is a subject for another email.
Simon Mustoe CEnvP, MEIANZ, MIEEM.
Convenor, Environment Institute of Australia and New Zealand Ecology
Director, AES Applied Ecology Solutions PL.
Date: Sat, 20 Jun 2009 13:29:09 +1000
Subject: [Birding-Aus] Masked, Powerful, Sooty and Barking Owl
Trashed in Lake Macquarie
Yet more bad news from the Lake Macquarie area for those of us
in forest owls, large and small. Another open cut and auger mine
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
forest owl habitat has been destroyed and fragmented by
yet another coal haul road facilitating coal export infrastructure in
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,
group of ecological consultants who worked on the assessments also
in a Barking Owl which I think to be a very rare record for the area,
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
to as well is the way that public scrutiny of these sorts of
increasing risk of being shut down: anyone interested might have a
some of the documents supporting the company's referral under the
Environment Protection and Biodiversity Conservation Act. The link is
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,
course the matter of owl habitat could not be considered under the
Act as they are not federally listed species under that
... although birders may not be interested in the threatened flora
assessment they might be interested in the disclaimer in that report
"This report is the property of [insert name of proponent/mining
and must not be referenced or reproduced without permission"
If the public is unable to reference any report that is submitted as
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
legitimately challenge aspects of such reports.
Go check it all out on line though as I can't actually take the legal
of naming the reports in this email. Thoughts and discussion
the interests of birds and conservation.
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