Re: EPBC Act, species habitat and controlled actions

Subject: Re: EPBC Act, species habitat and controlled actions
From: Carl Clifford <>
Date: Sun, 21 Jun 2009 12:14:26 +1000

The affected area is rather desirable for development for housing. Developers would probably have no chance of securing development approval, though, on environmental grounds. If the area is degraded by mining, there would be far less impediment to it being opened up for housing. It is a win-win situation. Just a pity the environment or the public are not included in the wins.

Carl Clifford

On 21/06/2009, at 11:29 AM,  wrote:

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

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

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.


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
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
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 large forest owl habitat has been destroyed and fragmented by construction of
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 actions is
increasing risk of being shut down: anyone interested might have a look
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, and
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

"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 and
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 welcome in
the interests of birds and conservation.




To unsubscribe from this mailing list,
send the message:
(in the body of the message, with no Subject line)

Get the best of MSN on your mobile


To unsubscribe from this mailing list,
send the message:
(in the body of the message, with no Subject line)


To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line)

<Prev in Thread] Current Thread [Next in Thread>

The University of NSW School of Computer and Engineering takes no responsibility for the contents of this archive. It is purely a compilation of material sent by many people to the birding-aus mailing list. It has not been checked for accuracy nor its content verified in any way. If you wish to get material removed from the archive or have other queries about the archive e-mail Andrew Taylor at this address: andrewt@cse.unsw.EDU.AU