How did our environmental laws get so broken, and what can we do to fix them?

Koala populations all across Australia are declining. Picture: Shutterstock
Koala populations all across Australia are declining. Picture: Shutterstock

It is a moment of quiet magic when you manage to spot one of Australia's most famous, yet inconspicuous, mammals tucked up a tree branch. But it's a joy my generation's grandchildren may never know.

"Koalas will become extinct in NSW before 2050 without urgent government intervention," a parliamentary inquiry this week reported.

The news has been met with anger and despair. When Australia's flagship environmental laws, the Environment Protection and Biodiversity Conservation Act 1999, were passed, the koala was thought to be common across Australia. And yet in 2012, the species was listed as vulnerable under the act. Since then, the species has suffered a serious decline. During the Black Summer fires, an estimated 70 per cent of critical populations were lost.

A NSW parliamentary inquiry has now determined the official government estimate of 36,000 koalas within the state was "outdated and unreliable". It has called for urgent action to save the species, including gazetting two national parks as koala sanctuaries and putting a temporary hiatus on salvage logging.

If the quality of legislation could be measured in sheets of A4 paper, perhaps the koala would not be in such a perilous position. At a staggering 263,863 words, the EPBC Act is roughly equivalent in size to James Joyce's Ulysses - and can give the novel often heralded as the hardest to read in the English language a run for its money. The legislation was deliberately drafted with large slabs of repeating text, intended to make it easier to understand. In fact, it's had the opposite effect. Leading environmental lawyer Dr Gerry Bates once said the act was "virtually unintelligible to anyone who hasn't a few days to waste unravelling it".

That's not to say the EPBC Act is not significant. When passed into law, it meant for the first time there was a national approach to environmental protection in Australia. More than 1800 threatened species are now managed under the act.

However, in the 20 years since the laws have been in operation, only two animals have been taken off that list because of conservation action. In that time an area of threatened species habitat bigger than the state of Tasmania has been cleared, most of which has occurred without referral or approval under the EPBC Act. Analysis from the World Wide Fund for Nature Australia shows more than 1 million hectares of land was cleared for agricultural purposes across NSW and Queensland between 2004 and 2017 without even being scrutinised by the EPBC Act. A mere 1499 hectares were cleared after approval under the laws.

There is no strategy to protect many vulnerable species. As of 2016-17, only 38 per cent of threatened species had a current recovery plan. The koala has been in need of one since 2014.

"Little wonder we have so many species like koalas heading towards extinction with so much habitat being destroyed without any authorisation," WWF-Australia conservation scientist Dr Martin Taylor said.

The National Farmers' Federation blames the one-size-fits-all process for why such a small area of land has been referred. Farmers must undertake the same "cumbersome and costly referral process" to clear land as the developers of a new suburb or a new mine.

"The issue is that some projects are quite small, others worth billions, yet broadly the same requirements apply," the federation said.

However environmental groups say the laws fail to take into account the cumulative impacts of development on a species. The act also contains major exemptions such as Regional Forest Agreements, which allow logging of high-conservation-value forests without assessment or approval.

A 2009 review of the laws by esteemed former Canberra public servant Allan Hawke recommended shifting the focus of conservation efforts to a whole-of-ecosystem approach. In a mark of its vintage, it also called for a greenhouse trigger to be built into the laws, which would sunset when the emissions trading scheme came into effect. But with the turmoil of the Rudd-Gillard-Rudd years, and the complexity of navigating major reforms in a minority government, most recommendations were left on the shelf.

In the 10 years since the review, three species of animal - the Bramble Cay melomys, the Christmas Island pipistrelle and Christmas Island skink - have gone extinct. The Wilderness Society says if the 2008 conservation plan for the Bramble Cay melomys - a rat endemic to a tiny sandy island in the Torres Strait - was followed, the species could have survived. Instead, it was never funded and the melomys became the first Australian mammal to succumb to the growing impacts of climate change.

The interim findings of the second major review of the act, undertaken by Professor Graeme Samuel, were handed to Environment Minister Sussan Ley on Tuesday, the same day she announced she'd signed off on Snowy 2.0. Environmentalists lamented the approval was a death warrant for another critically threatened species, the stocky galaxias.

Environment, mining and agriculture groups agree the EPBC Act as it stands isn't working. Occasionally, they even agree on solutions. For instance, the Australian Conservation Foundation, the National Farmers' Federation and the Minerals Council of Australia all argue better mapping of threatened species habitat is required. According to a scathing Auditor-General review released last week, the Environment Department did not even have a map of all the offsets it approved. Plans to create an offset mapping system were abandoned due to "changes in resourcing priorities", and in July 2019, the department stopped loading offset locations into its databases altogether.


What they also agree on is that the department needs more resources. Approval times have blown out since 2013. What used to take an (already staggering) average of 799 days in 2013-14 took 984 days in 2018-19. Only 5 per cent of decisions were made within statutory time frames in 2018-19, despite the number of referrals falling considerably.

The environmental regulation budget fell from a peak of $71 million to $56 million in 2018-19. When the department received an extra $25 million last December, the percentage of decisions made on time jumped to 31 per cent.

"Service delivery is a major driver of delay. Assessment officer turnover, capacity, resourcing, service quality and inconsistent interpretation of the act all affect the cost and timeliness of assessment and approval processes," the Minerals Council of Australia said.

For large mining projects, each day the project is held up can cost $1 million, the council said.

But the cost is also steep for Australia's biodiversity. The Wilderness Society says that since 2000, the number of threatened species has increased by more than 30 per cent. Six species have gone extinct, and another 17 will disappear in the next 20 years if nothing changes.

And yet there is no strategy to protect many vulnerable species. As of 2016-17, only 38 per cent of threatened species had a current recovery plan. The koala has been in need of one since 2014.

There will be many questions Australians will have to grapple with when the Samuel review is released, not least of which is the value we place on our natural environment in a post-COVID-19 world.

The ability of future generations to find the same joy in spotting a koala up a gum tree will depend on our answers.

This story How did our environmental laws get so broken, and what can we do to fix them? first appeared on The Canberra Times.


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