ON July 9, 1904, Alan Owston shot a female rainbow bee-eater that had migrated north from Australia to the island of Okinawa south of Japan.
This bedraggled bird, now in the American Museum of Natural History, remains the only record of a bee-eater from Japan. Despite this, 70 years after the bird died, the bee-eater was appended to the Japan-Australia Migratory Bird Agreement.
JAMBA, as it is known, is one four international agreements that make migrants matters of national environmental significance under Australia's foremost environmental legislation, the Environment Protection and Biodiversity Conservation Act. Because bee-eaters appear on an EPBC Act list of migrants, every environmental impact assessment has to consider whether a proposed development will have a detrimental effect on the species.
None ever have, because bee-eaters are abundant and widespread. However, for the very reason that they are so common, almost every environmental consultant has a copy-and-paste paragraph justifying why bee-eaters should again be ignored - though they have sometimes had to argue hard to convince those setting conditions.
Today, however, such inclusions are seen as at best a waste of time, at worst a major unnecessary impediment. So too are the many marine species than never touch the sea - including some that never cross water at all if they can help it. Birds like Trumpet Manucodes that never fly across water, even to islands just offshore, are still listed as marine species.
Such errors in listing are more than petty mistakes. They can have major ramifications - both for the species they miss and the species wrongly included.
To take the first group - the ones that ought to be listed. In 2010 I led a review of the status of Australia's birds using mostly the same criteria used to list species under the EPBC Act. The experts around the country who contributed to that year-long review concluded that 125 species and subspecies of Australian bird are threatened. The EPBC list includes just 91 of those.
Similarly 53 per cent of the 206 birds that regularly cross Australian borders on migration are omitted from the migratory bird list attached to the EPBC Act.
As a result, birds well known to be threatened, like the Hooded Plovers that try to survive on the increasingly busy beaches of south-east Australia, remain unprotected despite ongoing declines.
The Threatened Species Scientific Committee, which overseas listing, is well aware of the deficiencies of its lists and has been trying to do something about it. However, despite the efforts of the under-resourced and overworked staff in the Department of Environment, attempts to update the list are glacial given the processes currently used for assessment.
Listing currently involves detailed submissions by members of the public that are exhaustively reviewed one by one, each review taking months. Almost 85pc of species on the EPBC lists are unchanged since the Act was drawn up in 1999. Most of these were a legacy of lists developed earlier still. Despite huge changes in threats, numbers and knowledge, it will be 2060 before all listed species are reviewed let alone deserving new ones added.
Originally the Act did insist that the lists had to be kept up to date. However, after a review pointed out that this wasn't happening, amendments passed in 2006 simply deleted the obligation. Of course, every review of the Act since then has pointed out the same problem, the latest being a Senate committee report handed down just before the recent election.
Reviews have also noted that omissions to the list are only part of the issue. Equally problematic are the species that are included on lists erroneously.
For birds, our review suggested that 22 of the EPBC listed "threatened species" probably should not be there. Similarly 32pc of the listed 287 migratory birds do not meet the definitions of migratory under the Act and only 38pc of the nearly 293 bird species listed as marine occur regularly in Commonwealth waters.
Bad listings damage the credibility and legitimacy of the Act.
As an example, the golden sun-moth used to be found only in native grasslands and grassy woodlands. These have lost 99pc of their original extent and the species is listed as "critically endangered" - the closest category to extinction. Now the moth has learnt to eat Chilean needle-grass, a noxious weed. Some companies with sun moth habitat dominated by Chilean needle-grass they wish to develop, have not only had to buy areas of native grassland to offset sun-moth habitat loss but have also had to destroy the needle-grass in which the moth was found.
Another example is the southern subspecies of squatter pigeon. In the nineteenth century it disappeared from NSW. However, it remains widespread through eastern Queensland as far north as the Atherton Tablelands. It remains listed as threatened under the Act even though it has been known for at least 15 years that the subspecies does not meet the listing criteria. As a result, it comes up time and again in assessments and has to be accommodated in conservation plans.
Most companies roll over when faced with obligations, even if absurd, because they need the permit. They do what is needed and get on with their business. But the payments rankle and provide fertile ground for concerns over green tape.
Bad listings end up bringing the Act into disrepute by insisting on the protection of environmental values that are not threatened and holding up developments that, under other circumstances, would be seen as legitimate.
As recognised by the Senate Committee, the solution is not all that difficult. Under current arrangements nominations for listing are sent to experts for review. This then influences the recommendations of the committee. The solution would be for those experts to review the lists in their entirety, assessing public submissions as part of the review. For only a few contentious species would the committee's judgement be required.
Such reviews could also make recommendations for removal of non-threatened species from lists - something that can currently only be initiated by the TSSC itself. At the moment, this rarely happens because the committee is so busy trying to ensure the list of the genuinely threatened is complete.
Migratory and marine species could readily be dealt with through the same process, though this would need agreement from partner countries.
Money spent by companies on threatened species as part of development proposals far outstrips any direct conservation expenditure. However, such outlays are an investment by the people in biodiversity since many of these costs are tax-deductible. It is therefore essential that they do actually benefit conservation not just pay expensive lip-service.
Surveys have shown that by far the majority of Australians do not want extinctions to occur. Many people, however, have heard stories of developments being delayed to protect species that seem to them to be coping pretty well.
They are often right. It is only with better lists that the EPBC Act will regain its social license and environmental regulation will be seen again as a legitimate way of protecting natural heritage that is at genuine risk of being lost or damaged.
Stephen Garnett is professor of conservation and sustainable livelihoods at Charles Darwin University