Developers flatten endangered species bill

Issue 

By Peter Anderson

Endangered species legislation now before federal cabinet may still be accepted by environment organisations "with reservations". But if the public's "third-party" rights to challenge development proposals were removed and economic caveats were placed in the legislation with the intent to negate it, then key sections of the movement may oppose the bill.

John Sherlock, director of the World Wide Fund for Nature, told Green Left he had been assured by environment minister Ros Kelly, who is responsible for pushing the legislation through cabinet, that changes to the draft Endangered Species Protection Bill were not decisive and that the revised draft had a very good chance of cabinet approval.

However, the story carried in the press last week indicated that the ability of the legislation to seriously inhibit environmentally destructive development projects had been severely limited, especially by removing the minister's veto over threatening projects. Kelly said the clause giving her veto power had simply been an "ambit claim" and that controversial decisions involving disputes between ministers would have gone to cabinet regardless.

Kelly told the WWF that her failure to keep an appointment to accept petitions with 20,000 signatures in support of her original draft on the eve of the October 8 cabinet discussion of the bill was simply a "misunderstanding". But her failure to appear "astonished and bewildered" the WWF.

Sherlock said that, while the WWF is strictly non-political, he is reaching the point where it is difficult to accept that the Labor government is doing everything possible and the Opposition doing nothing, as Labor claims. He said the government had simply failed to live up to its promises.

"The bill is the last resort as far as the environment movement is concerned. If it is weakened or delayed, there is no way we could ever trust the Keating government to fulfil its promises in the future", he said.

Business opposition

The legislation is scheduled to be tabled in the current parliamentary session. But it has faced opposition from prominent industry and business groups in the rural and mining sectors.

Opponents argue the original draft would give extensive new powers to the minister and unreasonable "third-party" rights to halt development projects.

Eight industry groups — including the Australian Mining Industry Council, the National Association of Forest Industries, the Australian Petroleum Exploration Association, the National Farmers' Federation and the Business Council of Australia — wrote to Prime Minister Keating stating their objections. They claimed the bill represented a fundamental attack on private property rights without the necessary compensation safeguards.

However, even the powers prescribed under the original draft could be used only as a last resort if attempts at compromise and cooperation failed, and could be overridden in the "national interest" in any case. Conservation organisations have repeatedly called for stronger legislation. They see the bill as modest in its powers and focused on promoting cooperation, with little real power to impede developments which are environmentally harmful.

The original draft required only that, once a habitat was listed as endangered, the minister would seek to establish a "recovery plan" with the developers to allow projects (such as mining) to go ahead while taking steps to protect the environment. If that failed, then ministerial veto would have been possible.

The legislation was the product of pledges made by former Labor leader Bob Hawke in the lead-up to the 1990 election. It aims to protect 73 animals and 224 plants. Now, however, the government has been able to use the issue of mass unemployment to blunt environmental objections to developments.

Weaknesses

Environment groups have been puzzled by the claim that the commitment to protect nationally endangered species is inconsistent with the principles of "ecologically sustainable development", fundamental to which is the notion that no species should become extinct as a result of development activity.

The WWF believes anyway that the opposition to the bill may be overstated. The draft contains power only in relation to Commonwealth lands and waters, agencies and approval processes. Many of Australia's nationally endangered species are confined to small pockets of suitable habitat, national parks or protected island reserves, and threats to endangered species are frequently not related to resource development.

Furthermore, there is no provision for public nomination for listing of endangered species. The argument by opponents of the bill that social and economic factors (such as the "value" of sand mining compared to the "value" of endangered grasses) needed to be considered in the listing process would open the system to abuse, says the WWF.

The new bill appears to offer little more power than is already available to the minister in existing legislation like the Environmental Impact (Assessment of Proposals) Act. It is also possibly weaker than many existing state laws, such as those in Victoria and Queensland covering non-Commonwealth land.

Industry predicted dire consequences for development if the provisions remain, but under similar US legislation only 19 of 74,000 separate development applications have been vetoed.

Retreat

Kelly began to buckle to pressure when she accepted a watered down version of the draft after the October 8 meeting. Left out were provisions for the minister to veto a project if an endangered species or its habitat was being threatened. In its place is provision for issuing a 180-day interim conservation order in disputed cases, which can be made permanent if cabinet approves.

However, the 180-day period was immediately watered down to 90 days. Provisions giving the public the right to take out injunctions to protect species were sent to a further meeting of cabinet, but are unlikely to remain in the legislation.

Clauses remaining under the redrafted legislation, which could go before the Senate in November and perhaps become law before the end of the year, include:

  • Provision that species to be listed as endangered be decided on a scientific basis.

  • Where a development requires an export permit, it will trigger the existing Environmental Protection Act, which requires a developer to test for the impact on endangered species.

The fate of this legislation will undoubtedly have a significant bearing on support within the environmental movement for Labor at coming federal elections.