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.
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
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.
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
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.
CONCLUSION
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
(http://eianzecology.blogspot.com)
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:-
http://www.environment.gov.au/cgi-bin/epbc/epbc_ap.pl?name=current_referral_detail&proposal_id=4722
and tiny url
http://tinyurl.com.au/x.php?1uoh
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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