Re: EPBC Act, species habitat and controlled actions

To: "Carl Clifford" <>
Subject: Re: EPBC Act, species habitat and controlled actions
Date: Sun, 21 Jun 2009 17:53:07 +1000 (EST)
Disturbingly perceptive point Carl!

> Craig,
> 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
> 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.
> cheers
> Craig
>> 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
>> 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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