Friends of Grasslands

supporting native grassy ecosystems

PO Box 440
Jamison Centre
Macquarie ACT 2614


EPBC Act Review Secretariat
Department of the Environment and Energy
GPO Box 787


Dear Sir/Madam

Independent review of the EPBC Act: discussion paper

Friends of Grasslands (FOG) is a community group dedicated to the conservation of natural temperate grassy ecosystems in south-eastern Australia. FOG advocates, educates and advises on matters to do with the conservation of grassy ecosystems, and carries out surveys and other on-ground work. FOG is based in Canberra and its members include professional scientists, landowners, land managers and interested members of the public from south east Australia.

Over the years FOG has made numerous submissions to the Commonwealth under the EPBC Act on matters impacting on grassy ecosystems in south-eastern Australia. In the last ten years we have commented on about 60 individual referrals and two strategic assessments. While recognising the benefits of this Act at the national level, our submission raises concerns we have with the current Act and its implementation as well as addressing the questions in the discussion paper.

QUESTION 1: Some have argued that past changes to the EPBC Act to add new matters of national environmental significance did not go far enough. Others have argued it has extended the regulatory reach of the Commonwealth too far. What do you think?

FOG’s view is that the EPBC Act does not go far enough in terms of protecting matters of national environmental significance, and, we believe, this is a consensus of those whose involved in environmental land management and associated research, including many land managers and farmers. More broadly our view is that the EPBC Act has failed “to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance”. We believe that the threatened ecological communities and species with which we are most familiar (grasslands and grassy woodlands in SE Australia) and more generally biodiversity have declined. However, we believe that without the protection of the Act, these declines would be even worse off than they are now. (Also see answer to Q6.)

QUESTION 2: How could the principle of ecologically sustainable development (ESD) be better reflected in the EPBC Act? For example, could the consideration of environmental, social and economic factors, which are core components of ESD, be achieved through greater inclusion of cost benefit analysis in decision making?

We believe the concept of ecological sustainable development could be better reflected in the EPBC Act if good statistical data and analysis could inform decision making. Such comprehensive statistical data and analysis would help to evaluate to what extent the Act has succeeded or not.

These data could be annual time series statistics measuring ecological condition that comply with the international accepted standard of Environment and Economic Statistics. Australia supports such statistics in principle and the Australian government is supporting the development of such statistics but progress in their implementation is slow.

Such statistics would be based on a framework that measures biodiversity at a national level and disaggregated by region, groups of vegetation types and species, and even by individual species. Such a framework would parallel current economic statistics and other national statistics where measures such as gross national product, investment, household income, employment, unemployment, population, health, etc. are available both nationally and at fine level geographic detail. Data used to compile these statistics would initially make use of estimates, expert judgement and the like until better data are developed.

The measures could include:

  1. The area (hectares) of the conservation estate (e.g. national parks, off-reserve conservation, etc.), by type of conservation status, vegetation community and region. Time series would show whether such areas are increasing, remaining steady or decreasing.
  2. A single indicator of biodiversity that may be broken down by vegetation community, region etc.
  3. A composite measure of the populations of each flora and fauna species, again broken down by groups of species or even individual species, by regions, etc.
  4. A single indicator of threats to the national estate, such as weeds, feral animals, waste, etc., broken down by region, vegetation type and fauna species, etc.
  5. Expenditure on biodiversity expenditure in nominal and real terms, and a ratio of expenditure to GDP.

QUESTION 3: Should the objects of the EPBC Act be more specific?

Yes – they need to be phrased as commitments we work towards rather than as a wish list. For example, object (c) should read (c) to ensure the conservation of biodiversity

Alternatively, the primary object of a new Act could be:

“to conserve, protect and recover Australia’s environment, its natural and related cultural; heritage and biological diversity including genes, species and ecosystems, its land and waters, and the life-supporting functions and the multitude of benefits to Australian society that they provide.”

The Act should also include a limited number of secondary objects, including with regard to protecting biodiversity and ecological integrity. For example:

  1. To provide national leadership and partnership on the environment and sustainability, and to achieve ecologically sustainable development;
  2. To recover, prevent the extinction or further endangerment of Australian plants, animals and their habitats, and to increase the resilience of native species and ecosystems to key threatening processes;
  3. To ensure fair and efficient decision-making; government accountability; early and ongoing community participation in decisions that affect the environment and future generations; and improved public transparency, understanding and oversight of such decisions and their outcomes;
  4. To recognise Aboriginal and Torres Strait Islander peoples’ knowledge of Country, and stewardship of its landscapes, ecosystems, plants and animals; to foster the involvement of these First Australians in land management; and expand the ongoing and consensual use of traditional ecological knowledge across Australia’s landscapes.

QUESTION 4: Should the matters of national environmental significance within the EPBC Act be changed? How?

Yes. There are several matters that should be added to the list in some form:

Landscapes, corridors and buffers. As well as listing particular threatened species and communities, a landscape approach needs to be taken. For example, there needs to be recognition of the importance of corridors, and an understanding of the connecting habitat requirements of different fauna species and dispersal range of flora species. There is also a need to recognize the importance of buffers around areas containing MNES, to minimize impacts on the protected matter.

Greater emphasis on non-MNES. Another difficulty is that the Act only protects MNES. It needs to be recognized that there is a danger that sites without threatened species or EECs but are of good-excellent quality (size, condition, native flora and fauna richness and abundance, landscape connectivity etc.) will fall through the net and be developed as they are not protected by legislation, with the inevitable result of those species or EECs eventually becoming threatened.

Interim listing. A difficulty is the time it takes for species and ecological communities to be listed. In the wake of the current bushfire crisis and its massive impact, there are species and communities that will have tipped from being “rare” to being “threatened”. The Act needs some mechanism to list rare species as potentially threatened in the future – and in situations like the current one to require developers to account for impact on these species and communities also until their long term status post bushfire recovery is known.

Failure to prevent loss. Actions that trigger the Act should include something like “failure to prevent the loss of biodiversity (particularly loss of threatened ecological communities, threatened species and important habitat) through poor or inappropriate management”. It is our belief that major declines in biodiversity, threatened species, etc. have resulted from poor management due to lack of sufficient funding, ill-informed management or even in some cases sometimes a hostile attitude to natural values by the landowner. Lack of funding has allowed areas of important biodiversity and populations of rare and threatened species to decline. It should be an obligation on land owners to maintain biodiversity etc.

QUESTION 5: Which elements of the EPBC Act should be priorities for reform? For example, should future reforms focus on assessment and approval processes or on biodiversity conservation? Should the Act have proactive mechanisms to enable landholders to protect matters of national environmental significance and biodiversity, removing the need for regulation in the right circumstances?

We would support mechanisms that would focus on biodiversity conservation outcomes and at the same time reduce the workload involved in EPBC processes. Those responsible for the Act could do more to promote the benefits of biodiversity and encourage government agencies, business and landowners to be good biodiversity citizens. More generally, governments could do more to promote ethical business, including good conservation ethics. Government could lead by example but would need funding to do this. Sadly, the Department of Finance did the opposite in the case of York Park (referral 2017/8028). In our view, approval of this referral provided monetary gains to a developer at the expense of the Golden Sun Moth and with completely inadequate offsets. In our view no development should proceed if it impacts on MNES unless it is essential infrastructure, and we urge the review to investigate this case.

Land owners need to be treated to “carrot and stick” approaches to manage biodiversity. On the one hand, the Commonwealth should have the power to make in perpetuity conservation agreements / conservation covenants with any entity, including private landowners. Agreements and covenants must comply with all relevant plans under the Act and have a binding effect on the title of any property on which they apply

Farming practices such as regenerative farming that support biodiversity need to be encouraged.

Officials of the Department of the Environment could be employed to explain the processes to landowners, developers, etc., to assist in the process, and to help develop proposals that avoid the need for the Act to be triggered. These officials could also talk to stakeholders such as us to inform us of what is happening instead of the crude process where there is little transparency and minimal time to comment on proposals. A related issue is transparency.

It would assist if governments welcomed advocacy groups such as ours to make our case instead of treating groups with hostility. We believe that open and transparent advocacy brings about the best outcomes for all.

However, we wouldn’t want to see the current assessment and approval processes, while less than ideal, reduced. The processes have provided some mechanism to prevent wholesale clearing of areas of high biodiversity values, and to ensure that development impacts are mitigated and offset. However, there are few projects in the area of FOG’s interest that have actually been refused approval, despite impacts on MNES – most are approved with conditions. We accept that this might be necessary in the case of essential infrastructure – an example is referral 2017/8072 (Dudley St upgrade), where significant attempts were made to mitigate the impacts and to provide an adequate offset package. On the other hand, the current process allows developments that are of commercial benefit to proceed at the expense of MNES. Future reforms need to address this weakness of the current legislation as well as strengthening biodiversity conservation in general.

In general we oppose the removal of regulation (see answer to question 18).

QUESTION 6: What high level concerns should the review focus on? For example, should there be greater focus on better guidance on the EPBC Act, including clear environmental standards? How effective has the EPBC Act been in achieving its statutory objectives to protect the environment and promote ecologically sustainable development and biodiversity conservation? What have been the economic costs associated with the operation and administration of the EPBC Act?

Our view is that the EPBC Act is not protecting the environment and conservation of our biodiversity sufficiently. One example is that of lowland Natural Temperate Grassland (NTG) in the ACT. In 2009 the ACT’s Commissioner for Sustainability and the Environment made a number of recommendations concerning 49 NTG sites in the ACT (Report on ACT Lowland Native Grassland Investigation 2009). At the time of this report, six of these sites were in nature reserves and thus protected to some extent. Of the remaining 43 sites, two have been completely lost (2012/6292 (Campbell 5 development), 2010/5548, 2012/6606, 2017/8028 (all York Park)). Another seven have been subject to an EPBC referral, results ranging from avoidance through to some impacts needing offsetting to date (2011/5803 (St John's Church, Reid), 2010/5549 (Lawson South), 2014/7372 (CSIRO headquarters, Campbell), 2017-8072 (Dudley St upgrade), 2010/5750 (Wells Station Rd, Gungahlin), 2012/6320 and 2014/7327 (Amtech, Symonston), 2001/307 (Canberra international airport)). We acknowledge that some of the proposed developments were concerning infrastructure, with reasonable attempts have been made to offset the impacts on MNES, and that most of the sites are relatively small. However, this does not take away from the fact that, despite NTG being listed as endangered, in a ten year period almost 20% of the sites have been subject to development proposals and 4% have been lost completely. Not surprisingly, the listing for NTG has now been upgraded to critically endangered.

One difficulty is the reliance, through the approval process, on offsets to maintain biodiversity. Our concerns about offsets in general can be found under question 24, but our view is that offsets are one of a number of tools to be used to mitigate against loss of biodiversity and should be applied only in a narrow range of situations. This narrow range might include essential infrastructure but should exclude developments for pure commercial gain (e.g. the destruction of York Park). In this narrow range of developments, the mitigation hierarchy should always apply, i.e. avoid, then mitigate, then offset if there is no alternative. We recognise that in some cases where infrastructure is involved, (e.g. Majura Parkway, Dudley St upgrade) the ACT government has gone to considerable effort to avoid threatened species or communities, or to minimise impacts. The destruction of the NTG and GSM population at York Park is a clear example of where the EPBC Act has been ineffectual in preventing unnecessary biodiversity loss.

As well, if there are no options for like-for-like offsets, then the development needing offsetting should not proceed. Alternatives to like-for-like should not be considered if we truly want to retain endangered species and ecosystems.

Another difficulty with the current legislation is that assessment of particular sites containing MNES frequently only occurs when there is a proposal to change land use or develop land that may impact on the MNES. The Act does not take account of lack of mitigation of threats – land clearing, use of herbicides in some situations, and lack of weeding and control of feral animals, despite many of these being listed as threatening processes. Another concern is that a site containing an MNES is neglected or inappropriately managed, then in a referral the argument is made that development approval with offsetting is more appropriate than avoidance because of the reduced biodiversity values of the site.

QUESTION 8: Should the EPBC Act regulate environmental and heritage outcomes instead of managing prescriptive processes?

We agree that the EPBC Act needs to focus more strongly on outcomes.

QUESTION 9: Should the EPBC Act position the Commonwealth to take a stronger role in delivering environmental and heritage outcomes in our federated system? Who should articulate outcomes? Who should provide oversight of the outcomes? How do we know if outcomes are being achieved?

The answer to the first part of this question is a definite yes. There needs to be a clear focus on outcomes and processes should not be allowed to obscure this. As with many issues in Australia, legislative responsibility is unclear and often different levels of government often blame the other for inertia. Generally, Australian citizens expect the political class to show leadership and work co-operatively. History, if we survive in the next fifty years, will be the judge.

There is a strong argument that an independent authority should articulate and oversight the outcomes, especially as current decision-making lacks transparency, has little respect for evidence and bows to vested interests. An independent authority should consist of scientists and community members and other stakeholders knowledgeable of successful land management. Any such authority should spend considerable resources being on-ground and consultation.

Knowing the success, or otherwise, will depend on having the type of data and analysis outlined in our answer to Q2 and in encouraging feedback through its on-ground and consultation processes.

QUESTION 11: How can environmental protection and environmental restoration be best achieved together?

FOG supports the EPBC Act having a greater role in restoration. This has become a focus throughout much conservation work that FOG undertakes and we have several restoration projects. Through observing nature, experimentation and research, knowledge of ecological relationships and functions has grown and success has been achieved in some areas in restoring species and habitat. However, the results have been mixed to date, with restoration of some ecological communities and species remaining beyond reach.

In the wake of the recent massive bushfires, there will be many threatened species and ecological communities that are now in dire straits by the end of this summer. One of particular interest to FOG is the Alpine Sphagnum Bogs and Associated Fen ecological community. Its recovery plan states that “even one highly intense fire in the future may have catastrophic outcomes for the structure, diversity and loss of vegetation in the ecological community over large areas”. The provisions of the Act need to support restoration of such EECs and individual species across State boundaries and in a timely manner post catastrophe. Work done in alpine areas after the 2003 fires on restoring bogs proved highly successful and likely needs to be repeated. One alarming factor is that wild horses, a major threat to bogs, have survived the fire in large numbers and need urgent attention.

FOG, like other groups, has developed strong links with a number of Aboriginal people and groups who have a strong cultural connection with land and a deep understanding of land management, including “burning done the right way”. We have observed that a tremendous renaissance in Aboriginal culture, especially linked to caring for country. Aboriginal people have been in Australia for 60,000 years+ and have successfully lived on country, learning to survive in harsh circumstances comfortably. Learning from our first nation people we have come to understand nature in an entirely new way.

Aboriginal burning has much to offer in restoring ecological function and biodiversity and may be a useful tool in lessening the impact of bush fire. Burning in this way is a labour-intensive activity and will take time to establish broadly.

QUESTION 12: Are heritage management plans and associated incentives sensible mechanisms to improve? How can the EPBC Act adequately represent Indigenous culturally important places? Should protection and management be place-based instead of values based?

This question is not one that we feel generally competent to answer. However, we have some experiences with places we might describe as Aboriginal cultural places. These include landscapes, men’s and women’s places, and trees that may have particular importance, e.g. a birthing tree. Within a landscape, the landscape itself is important as are the many niches, particular plants and other resources from which might be gathered materials for obtaining food, medicines, equipment, weapons and so on. Hence, we need to retain whole landscapes through which culture, lore and practice may be passed on. A critical point here is that Indigenous and non-Indigenous concepts of heritage are very difference, and there is often a reluctance to trust non-Indigenous people with such knowledge. The concept of restoration applies here – knowledge may lie dormant and not even be understood until people come together to discuss and share what they know. Another aspect is that there is a strong theme in Aboriginal culture that Country is a teacher - this is particularly true in the application of burning. We have observed young Aboriginal people begin to appreciate the importance of culture, lore and language through being taught how to burn. Once burning was appreciated, the young people quickly learn language and many parts of their culture. Hence, it is likely that new approaches, and to non-Indigenous people totally un-conceived approaches, are required.

QUESTION 13: Should the EPBC Act require the use of strategic assessments to replace case-by-case assessments? Who should lead or participate in strategic assessments?

FOG has been concerned for many years about the way the referral process allows piecemeal proposals impacting on MNES to go through – death by a thousand cuts. Individual referrals making a minor impact on a small area are approved, but the cumulative effect on an ecosystem that only remains in small patches is detrimental and places the ongoing survival of our grassy ecosystems at risk. The Act’s consideration of MNES should include more of a landscape approach over time.

For this reason, FOG strongly supports more strategic assessments and less case-by-case approaches. As an example, in the early days of the development of Gungahlin in the ACT, FOG responded to invitations to comment on multiple referrals in this area (e.g. 2008/4175, 2009/4816, 2010/5439, 2010/5456, 2010/5565, 2010/5648, 2010/5742, 2011/6126, 2011/6113, 2012/6279 and 2012/6350). One of the comments we repeated in these submissions were concerns about the piecemeal nature of the process and the argument in each small referral that this part of the development would only have a minor impact on MNES. Consequently, the decision in 2013 to conduct a strategic assessment of the remaining areas of Gungahlin was welcome and, we believe, gave a better environmental result than the previous piecemeal approach. Where multiple developments are proposed in the same area within a relatively short timeframe, particularly when these impact on the same species or EEC, consideration should be given to use of strategic assessments rather than a number of smaller assessments.

While FOG thinks that greater use could be made of a strategic approach, consideration needs to be given to whether the strategic framework is applied on a geographic basis (as in the Gungahlin example), or a species/EEC basis. For example, over the past three years there have been several referrals impacting on the Golden Sun Moth (GSM) in central Canberra - 2017/8028 (York Park), 2017-8072 (Dudley St upgrade), 2017/8074 (Canberra Brickworks), 2017/7813 and 2017/7812 (development in Yarralumla, ACT), 2019/8449 (City Hill redevelopment), 2019/8582, 2019/8490 and 2019/8491 (Canberra City to Woden light rail). The long-term result of this piecemeal approach is likely to be complete loss of GSM through the central Canberra area, with a net loss across the landscape due to not all offsets resulting in increases in GSM population on the offset sites. FOG’s view is that, before any further developments impacting on GSM are approved, there should be a strategy developed to guide GSM conservation in the ACT which would provide a context for the significance any particular population such as the central Canberra populations, to assist in decision making about developments impacting on the population. A similar approach would no doubt be useful and deliver a better outcome elsewhere in Australia.

While FOG support greater use of strategic assessments and similar approaches, there are some factors that need to be taken into account:

QUESTION 14: Should the matters of national significance be refined to remove duplication of responsibilities between different levels of government? Should states be delegated to deliver EPBC Act outcomes subject to national standards?

FOG in principle supports removal of duplication of processes. In the past Commonwealth and State processes ran in parallel - this could be very frustrating. Now such processes are often integrated. However, we do not believe that States and Territories should be delegated to deliver EPBC Act outcomes, even if they adopt national standards.

We reiterate our views as submitted in January 2013 to the Senate Standing Committee on Environment and Communications about the Environment Protection and Biodiversity Conservation Amendment (Retaining Federal Approval Powers) Bill 2012, as we believe these are still pertinent:

“FOG’s view is that environmental protection legislation should be both rigorously applied and enforceable. The Commonwealth government, in its administration of the EPBC Act, stands one step removed from many of the economic and other drivers of development impacting on our grassy ecosystems. Because of this, it is more able and willing to make the hard decisions needed to protect our endangered grassland communities, and to insist on adequate offsets where it proves impossible to avoid an impact. State and Territory governments are more likely to gain from particular projects (whether urban, mining or commercial) impacting on high conservation value areas. Political and economic drivers can exert a strong pressure on State and Territory governments, leading to them being more likely to compromise at the expense of the environment.

One issue specific to the ACT is the different roles of the ACT Government in relation to environmental regulation and decision making. The Government owns most of the ACT’s land and, via its Land Development Agency, is the proponent in many development proposals affecting threatened natural temperate grasslands (NTG), box-gum woodlands and grassland-dependent species. If the ACT Government evaluates environmental impacts and has the power to make decisions about approvals under the EPBC Act, this is a clear conflict of interest. There is significant pressure on the ACT Government to release land for housing, both to provide “affordable housing” and to generate revenue for the Government. While the Government has shown some willingness to consider environmental values, avoid destruction of some areas of NTG and box-gum woodlands and (more recently) to offer offsets, there are many examples of either destruction or encroachment on these areas in the ACT. Examples include:

Another concern is that State and Territory governments are generally concerned about their own jurisdictions and take little notice of what may be just across the border. Since connectivity between areas of high quality native vegetation is important to retain this vegetation and dependent species over the long term, the Commonwealth government is more able to look at the big picture and make decisions that include these connectivity issues.

While the desire to streamline environmental approvals is understandable, the problem lies with the lower and different standards of state and territory governments, not the EPBC Act. We favour an alternative approach of greater use of Strategic Environmental Assessment, as recommended by the Hawke Review. This involves an overarching assessment of a broader group of activities at a regional scale with both the State/Territory and federal governments so that subsequent projects can be designed within a framework that better protects the environment and requires less onerous approvals at the project development stage. We have experience of this with the Molongolo urban development in Canberra which has resulted in better outcomes for conservation of the environment and urban development than would have otherwise occurred. However strategic assessment is currently a little used, voluntary and ad hoc process. We suggest that the Act be amended so as to enable wider use of strategic assessment by the Federal Government to better facilitate both conservation and development.”

QUESTION 15: Should low-risk projects receive automatic approval or be exempt in some way?

In our answer to Q5, we outlined ways in which the workload associated with the EPBC processes could be reduced. However, we don’t believe that low-risk projects should receive automatic approval or exemptions. Some consideration needs to be given to whether or not all data relevant to the project has been taken into account, also to the landscape implications of the project, e.g. will it impact on a wildlife corridor. There also needs to be accounting for additional site pressures over time such as the impacts of climate change.

All data from environmental impact assessments (including those for offset sites) should be made publicly available. From the perspective of a community group, there can be no confidence in the decision-making process nor offset calculations if some of the data used is not available. In the interested of both transparency and the ability to make informed submissions, access to all of the data underlying a referral is essential, as is access to ongoing data around development and offset sites.

As well, consideration needs to be given to the adequacy of the metrics used to capture ecosystem functions, services, and quality. For example, baseline surveys at development and offset sites during drought and/or after grazing or fire will not be representative. See question 2 for comments on environmental data indicators.

QUESTION 16: Should the Commonwealth’s regulatory role under the EPBC Act focus on habitat management at a landscape-scale rather than species-specific protections?

The Commonwealth’s regulatory role should be expanded to include habitat management at a landscape scale as well as species-specific protections. This includes corridors that link areas of conservation value, even if the corridors are themselves of lower value. Bioregional plans should be included in assessments, and bioregional planning provisions should be strengthened to allow the Commonwealth to identify ‘no go zones’ where development cannot occur, such as critical habitat, high value conservation areas, and connectivity corridors.

QUESTION 17: Should the EPBC Act be amended to enable broader accreditation of state and territory, local and other processes?

Generally our answer to this question is no - see question 14 above. We have no objection to State, Territory, local and other processes being involved in various ways, but the Commonwealth should not delegate its decision making to such bodies. There may be a role to play in facilitation in restoration work associated with EPBC decisions and monitoring projects consistent with national standards should the latter be developed.

QUESTION 18: Are there adequate incentives to give the community confidence in self-regulation?

FOG does not support self-regulation of any kind. There are very few examples of effective industry self-regulation, and numerous examples of the failures of self-regulation schemes.

QUESTION 19: How should the EPBC Act support the engagement of Indigenous Australians in environment and heritage management?

At present, in our opinion, the EPBC Act does not adequately safeguard the natural and Indigenous cultural values of Australia’s protected areas, heritage places, and other conservation tenures; and does not specifically recognise Indigenous knowledge or enshrine the principle of free, prior and informed consent of First Nations people.

Indigenous groups and communities should be specifically consulted on what reforms they would like for the EPBC Act, and new federal environmental laws. Reforms that groups could be consulted on include:

QUESTION 20: How should community involvement in decision making under the EPBC Act be improved? For example, should community representation in environmental advisory and decision-making bodies be increased?

The public consultation period of 10 working days is too short. This consultation period starts from the day it goes up on the EPBC website – community groups do not have the resources to check websites on a daily basis, so the comment period is in reality shorter. As well, the volume of material attached to referrals is substantial – generally a number of documents and sometimes hundreds of pages, e.g. the initial consultation for referral 2017/8028 was nine documents of 342 pages. It is difficult for community groups to get across such material and arrive at a considered view representing concerns of the organisation in less than two weeks. Changing the public consultation period to 15, or even 20, working days would signal a genuine desire for input from the community.

QUESTION 21: What is the priority for reform to governance arrangements? The decision-making structures or the transparency of decisions? Should the decision makers under the EPBC Act be supported by different governance arrangements?

The current process involves a lack of transparency from the point of view of a community group such as FOG. Much of the process, including consideration of offset packages, is conducted behind closed doors, with public input being limited to a brief two week consultation period. There is no opportunity for groups such as ours to input to mitigation and offset arrangements. In fact, conditions of approval often only mention the requirement for an offset package – it is often some months (or even years) before details are available in the public domain.

FOG would welcome any changes that would make the government decision-making more open, informative and receptive to consultation and advocacy. Offering workshops and training on how the public may assist in consultation processes could make various procedures proceed more smoothly.

Our organisation is very concerned by matters associated with the Taylor case. It has been alleged that an area of natural temperate grassland was cleared on the Monaro and from the media we learnt that the Department is considering prosecution of the principals, including a senior minister in the Commonwealth Government. It is also alleged that the minister also tried to influence another senior minister in a corrupt way. There are numerous issues raised by this case, including that the government is not prepared to protect a critically endangered ecological community, and even worse has been leant on. Possible witnesses in this case have been intimidated. We trust that the review will look into this case and report on it in its findings.

Given the lack of transparency, possibly corruption of decision making, the reduction of environmental funding and the failure of the government to protect biodiversity, FOG supports the establishment of a National Environment Commission that is independent of departmental or ministerial direction and reports annually to parliament on the state of the environment. It would:

  1. Develop and oversee national environmental goals, strategies, plans and standards;
  2. Have the mandate to negotiate with all levels of government regarding Plans etc;
  3. Progress development of National Environmental Accounts that includes, but not limited to, National Environmental Matters;
  4. Gather and publicly disseminate evidence on environmental conditions and trends to inform decisions and improve outcomes over time;
  5. Ensure recovery plans, threat abatement plans, conservation advices and threat mitigation directives are up to date and integrated into bioregional plans.

FOG also supports establishment of a National Environment Protection Authority as the new Commonwealth assessment, approval and enforcement body for environment issues that are nationally important. The establishment and adequate resourcing of an independent national environment protection authority that operates at arm’s-length from government is key. It would:

  1. Be governed by an independent board and headed by a separate chief regulator;
  2. Have statutory duties to use powers and functions to achieve the Act’s aims;
  3. Undertake assessments, approvals, refusals and enforcement of activities that affect environmental issues of national importance;
  4. Undertake impact assessment and approval of actions on land and waters including strategic assessments and accreditations;
  5. Undertake independent compliance, audit and enforcement roles;
  6. Include a separate unit responsible for post-approval project and plan compliance, audits, monitoring and reporting;
  7. Ensure approvals comply with statutory plans under the Act (e.g. recovery plans, threat abatement plans, bioregional plans);
  8. Review, advise and report openly to the Minister on specific development projects; and
  9. Be adequately resourced.

QUESTION 22: What innovative approaches could the review consider that could efficiently and effectively deliver the intended outcomes of the EPBC Act? What safeguards would be needed?

Frankly, in some periods of its history, the Environment agency has been open, trustworthy, and welcoming of community participation. However, the current government has adopted a policy of hostility to science and the environment, and to advocacy groups, and drastic cutting of funding to the agency. We would point out that advocacy, especially if conducted in a respectful and dispassionate way, which we attempt to do, can have important economic, social and environment outcomes. Having a government and/or agency that is enthusiastic about environment protection would be a good starting point.

QUESTION 23: Should the Commonwealth establish new environmental markets? Should the Commonwealth implement a trust fund for environmental outcomes?

FOG would be interested to know of any innovations that may be proposed here. FOG sees the possibility of the development of new markets and growth in the environment industry that could support greater eco-tourism, education and research opportunities, employment and enjoyable volunteer opportunities. This would require greater government funding and funding from new sources.

However, we remain concerned that a market-based approach could lead to the perception (or reality) of developers being able to “buy off” environmental impacts, to the long term detriment of our biodiversity.

QUESTION 24: What do you see are the key opportunities to improve the current system of environmental offsetting under the EPBC Act?

While offsets can deliver a good result in some instances, there are several drawbacks to the view that they are a primary tool to conserve biodiversity. As indicated under question 6, they should only be used in a narrow range of situations. However, there is considerable reliance under the EPBC Act on offsets as a way to allow developments to occur while still attempting to protect biodiversity.

There is an underlying assumption used in transition and state models and in offset proposals, which is that site condition will deteriorate over time without management or intervention. However, government and public land owners should feel an obligation to maintain biodiversity values on land they manage, and private land owners should be encouraged to do the same. Legislative requirements to maintain biodiversity values should be clear to all land owners (see answer to Q4).

Offset calculations are based in part on averted loss rather than restoration gain. The difficulty with this is that the final result will inevitably be net loss across the landscape, since restoration gain is generally less than loss due to development, even if the restoration gain is as much as hoped for. With impacts from climate change (such as drought and bushfires) overlaying restoration activities, the likelihood of restoration work achieving the required gain is small. At this stage, FOG has seen little evidence that restoration gain has meant the offset requirements, although we are aware of situations where, despite considerable resources and efforts, restoration gains have not done so.

FOG is not alone in its view that offsets do not prevent biodiversity loss when developments impact upon MNES. In A review of biodiversity offsets implemented in the ACT under the Environment Protection and Biodiversity Conservation Act 1999, Brooke Connors & Philip Gibbons (Fenner School of Environment & Society, ANU, 2019) found that the like-for-like principle is being met, except that there is a greater per cent of native grassland/derived grassland lost at development sites than gained through offsetting. They concluded that it is unlikely that no net loss is being achieved within a generation, and that no net loss is only possible when based predominantly on restoration rather than averted losses

Simulations by Ascelin Gordon (RMIT, presented at the EIANZ National Biodiversity Offsets Conference, 26-28 Aug 2019) indicate that, even if a site results in no net loss over 30 years, once you look at things at the program scale, you don’t achieve no net loss over time unless development actually stops, and even so you definitely end up with net loss at the landscape scale. At the same conference, Adam Schutz reported that the 2010 review of offsets in South Australia found that most sites were not compliant with conditions and that all of the revegetation Significant Environment Benefit sites surveyed scored half of the potential maximum biodiversity score.

At this point, there is no clear evidence that the use of offsets, while perhaps the best tool we have available, does in fact lead to anything other than biodiversity decline in the long term. There is a need for government to measure and provide quantitative evidence of ecological outcomes from offset sites (e.g. the Molonglo Valley Vegetation Condition Monitoring Report, October 2018). Regular reporting on status and condition of offset sites is required, as is compliance in meeting ecological objectives, providing transparency and accessibility of offsetting processes and outcomes. As well, full disclosure of costs, benefits and obligations should be provided. Such information needs to be collected and analysed over a longer timeframe and, until this occurs, a precautionary approach be taken, i.e. avoid and mitigate before offsetting wherever possible.

Another aspect of offsets that needs more consideration is that of advanced offsets. To be considered a true advanced offset, the offset needs to be in place with a clear assessment of its conservation benefit and the additionality of this benefit prior to the development proposal being considered. To be sure that offsets deliver the desired outcome and lead to no net loss across the landscape, the offset should be in place prior to the development being offset commencing. This would need identification of the offset site, and documentation of the values of the site both prior to and following restoration activities being undertaken. If this is not possible (the usual situation), then given that there is an immediate loss when the development actually commences (a loss that continues for some time at least), the aim of the offset should be a clear net gain to ensure an actual “no net loss” situation in the long run.

We support the development of a scientifically robust National Offsets Policy and nationally consistent and agreed set of principles and standards that guide biodiversity offsetting

QUESTION 25: How could private sector and philanthropic investment in the environment be best supported by the EPBC Act?

A misconception about conservation philanthropy is that there are many sugar daddies (big companies and individuals) out there who are eager to contribute to conservation and other good causes. This is not our experience. What is not recognised is that philanthropy comes from our many members who contribute their time and resources. FOG is a small organisation and produces an annual report and in the calendar year 2018, we compiled data on volunteer hours contributed by our members and estimated that the value of this contribution was $410,000. This does not include the numerous times our members contributed their resources (car running expenses and provision of equipment) which would significantly bump up this figure. Our organisation takes advantage of our tax deductibility status to raise fund which support our grants to individuals and organisations to undertake research, education, produce publications and on-ground work to support grassy ecosystems. Government investment to match monies we grant to support projects, and to publicise the contribution of volunteers and encourage others to join in would be welcome.

There is potentially some benefit in combining small offsets into a larger package that can deliver substantial returns for the MNES in question. It may also allow better delivery of offset packages straddling State/Territory boundaries (provided it relates to the same MNES and biogeographic region). Another benefit might be to sequester some of the offset funding for investment to ensure long term management of offset sites.

Regarding the development a public investment vehicle for offset funds is that of increasing a perception that offsets are a way to buy off impacts on biodiversity. It is essential that offsets are seen as a last resort only, and that offset sites for the MNES in question are available and identified before fund payments by developers occur.

QUESTION 26: Do you have suggested improvements to the above principles? How should they be applied during the Review and in future reform?

Recent events (drought, fire and flood) have shown how we have pushed nature to a new place and with devastating impacts on our economy, social structures and environment. It is too early to assess these impacts and what is concerning is that many consider this a mere aberration before normal times return. Denial runs deep, even by those who say that they believe in climate change. It is clear that we may have to fundamentally rethink our approach to social dislocation, our ability to earn a living, and biodiversity conservation. We trust that the review will seriously address these issues.

Other concerns

The issue that wasn’t raised in the questions was public funding. We want the review to compile time series on government expenditure on biodiversity from the beginning of the Act and to make recommendations about placing environment funding on a secure and sustained basis.

Yours sincerely


Geoff Robertson

11 March 2020