New England Greens Armidale Tamworth Submission to Epbc

NEW ENGLAND GREENS ARMIDALE TAMWORTH SUBMISSION TO EPBC

New England Greens Armidale Tamworth (NEGAT) is a group of the Greens in NSW in northern New South Wales. Our experiences have led us to the conclusion that there is a need for a new Commonwealth Environment Act; one which has, as the primary object of the Act, the protection, conservation and rehabilitation of the environment. This new Act should show an awareness of our international obligations to combat climate change and a commitment to intergenerational equity and the precautionary principle. This new Act should enshrine robust, transparent processes and establish new and trustworthy institutions to propose, monitor and ensure compliance and be subject to on-going review.

NEGAT’s response will be based on a consideration of:

A submission to the Armidale Dumaresq Shire Council concerning the establishment of an underground mine in proximity to the New England National Park (Attachment 1)- Clarks Gully Mine

A submission to the NSW Government concerning the Narrabri Gas Project (Attachment 2)

A submission opposing Maules Creek Modification 4: Sound Levels (Attachment 3)

A submission opposing Maules Creek Modification 5: Olivedene Water Pipeline Modification (Attachment 4)

A submission opposing Maules Creek Modification 6: Roma and Brighton Water Pipeline Modification (Attachment 5)

A submission to the NSW Upper House Inquiry into Koala Populations (Attachment 6) together with our experiences in the catastrophic bushfires of the past season; extensive land- clearing and logging in our area.

Seven Case studies are presented:

1. Clarks Gully Mine 2. The Narrabri Coal Seam Gas Project, Pilliga Forest and adjacent prime agricultural lands 3. The Leard State Forest 4. Koalas 5. Bushfires 6. Logging 7. Land-clearing (Armidale airport precinct)

An outline of each Case will be presented; answers to the relevant specific questions posed by the Review Panel and suggestions as to ways forward will be canvased. Specific questions 1, 2 , 5, 7, 15, 16, 19, 20, 21, 22 will be addressed at the end of the submission

In the conclusion NEGAT will respond to the General Questions: • Is the EPBC Act delivering what was intended in an efficient and effective manner? • Is the EPBC Act sufficient to address future challenges? Why?

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Case Study 1: Clarks Gully Mine (see Attachment 1)

In 2017 a proposal to establish an underground mine in proximity to the headwaters of the Macleay River and the New England National Park came to the attention of NEGAT that. NEGAT believed that the proposal constituted a significant risk to human health, ecological communities and water resources. Our submission specifically addressed issues of water management; tailings treatment; Office of Heritage and Environment Endangered Species; the cumulative effect of an increased mining footprint on the area; inadequate fauna survey methods; dust and air pollution ; lack of discussion with downstream stake holders; lack of planning for decommissioning and rehabilitation and inadequate consideration of Aboriginal cultural heritage issues.

Our submission found that the Environmental Impact Statements were inadequate, even misleading, and that basic environmental issues were not addressed and concluded that ‘Armidale and Dumaresq Council is not in a position to approve the mine until the project has been referred to a number of Commonwealth and State instrumentalities’.

NEGAT’s conclusions drawn from Case Study 1:

The underground mine did not go ahead after a storm of community opposition. This project should never have reached this stage of development; however, inadequate Council oversight and the ‘jobs and growth’ mantra meant that it was only through the vigilance, time, determination and expertise of the local community that the possibility of irreversible environmental degradation was avoided.

Specific Question 15: projects deemed ‘low-risk’ must not receive automatic approval or be exempt in some way. Clarks Gully Mine was presented to the Council in a manner which minimised, even dismissed, the risks which were apparent to well-informed members of the community. Of course all data from environmental impact assessments should be made publicly available. Moreover, these EISs must be researched independently of the developing body; it is simply unacceptable that it became the responsibility of members of the community to ‘redo’ the EIS research prepared for Hillgrove Mines Pty Ltd.

Photo from Armidale Express’ , 1 March 2017, ‘Armidale Regional Council administrator Ian Tiley gives conditional approval for Hillgrove Mines extension at Clarks Gully,’ by Matt Bedford.

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Case Study 2 The Narrabri Coal Seam Gas Project, Pilliga Forest and adjacent prime agricultural lands

NEGAT has been involved in the campaigns to save these forests and plains from coal and coal seam gas mining with Members of Federal Parliament including Senators Bob Brown, Christine Milne and Lee Rhiannon; through advocacy and involvement in the political process (see Attachment 2 submission to Narrabri Gas Project; Attachment 3 Maules Creek Modification 4 (Sound Power Levels); Attachments 4&5 Maules Creek Coal Mine Modifications 5 and 6- water pipeline modifications and Attachment 6 submission to the NSW Upper House enquiry into Koala populations and habitat in NSW

Part a: The Narrabri Coal Seam Gas Project In brief, the Santos Narrabri Gas Project covers an area from Goondiwindi in Queensland, to around Scone and west to Coonamble and Walgett in NSW. It encompasses seven river basins and areas of forest and prime agricultural land. In the face of overwhelming community opposition, based in part on the failure of the New South Wales Government to implement the Chief Scientist’s Recommendations regarding CSG, the Project appears to have the imprimatur of the State Government; the State Planning Minister insisting that the Project proceed to the Hearing stage as soon as possible. This is a preposterous proposition in the current circumstances in a region recovering from droughts, bushfires and in the context of social distancing.

The known environmental problems posed by the Narrabri CSG Project include: • ‘Produced’ water and spills, disposal of water • Contamination of aquifers (including Great Artesian Basin) – admission to contaminating one aquifer see Sean Nicholls ‘Santos coal seam gas project contaminates aquifer, SMH March 8, 2014 https://www.smh.com.au/environment/santos-coal-seam-gas-project-contaminates- aquifer-20140307-34csb.html • Sulphur-reducing bacteria ‘domestic water wells and aquifers contaminated with SRB and co-produced bacteria are unusable for the foreseeable future’, https://www.northerndailyleader.com.au/story/1139619/turning-blind-eyes-on-coal-seam- gas-negative-points/ • Soil contamination • Air pollution • Fugitive emissions and human health impacts • Negative impacts on biodiversity, including on endangered and vulnerable species: The Pilliga, the largest temperate woodland west of the Great Dividing Range, covering more than 500,000 ha, links the volcanic systems of the Warrumbungles and Kaputar and is one of the most biodiverse areas in Australia…(it) contains about 30 distinct ecosystems…(it is) an important biological refuge …(and) is home to over 1,000 native plants and 300 native animals, including approximately 35 threatened fauna and 15 threatened flora species .’ Dr David Paull in ‘The Plundering of Pilliga and Leard Forests and the Surrounding Farmlands’, Pat Schultz p.30 Among the threatened species are koala, black-striped wallaby and pilliga mouse. • Threats to Stygofauna- https://www.australiangeographic.com.au/news/2013/08/bizarre- new-species-stops-pilliga-mining/ Peter Serov

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Vegetation killed by a produced water spill.

Photo: Pat Schultz

Although the company claims ‘rehabilitation’ is possible, the vegetation species planted by the mining company in these spill areas (of which there are 24) is not that found before the spill but species which have a higher salt tolerance.

Part b: Shenhua Watermark Project- EL 7223 In brief, the Chinese-owned Shenhua bought 43 farming properties for $213 million. On January 28 , 2015 the NSW Planning and Assessment Commission approved the mine. The Federal Environment Minister, Greg Hunt, approved the mine on July 4, 2015. The mine area is 789 hectares of endangered box gum woodland and 148 hectares of other bushland, prime habitat for about 262 species. The predicted groundwater draw-down is likely to lower the water table below the reach of the tree roots which will further degrade the health of remaining forests and offsets, and the viability of the koala population. Shenhua blithely assures the community that koalas will be ‘translocated’ -a procedure which is known to have limited success. The Federal Environment Minister, Greg Hunt could have refused the mine based on existing the EPBC Act which was amended in June 2013 to include water resources as a matter of national environmental significance.

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Case Study 3: Leard Forest

From this: Leard Forest is the single largest remnant of native vegetation in the heavily-cleared northern Liverpool Plains. The forest is an 8,000ha biodiversity hotspot identified as a Tier 1 Biodiversity Area i.e. an area that ‘cannot sustain any further loss’ and which is ‘critical to biodiversity persistence’ The area contains 34 threatened or vulnerable animal and plant species, and the mine involves the destruction of 1,100 ha of Critically Endangered Ecological Community and known habitat for 28 threatened species. (Photo Pat Schultz)

To this:

Mining Leard Forest Photo Ros Druce

The physical destruction of habitat is obviously catastrophic in terms of environment and biodiversity. Some of the other environmental and heritage issues posed by these operations: • It is in southern recharge zone of Great Artesian Basin; estimates are that the water table could be lowered by up to 6 metres in some places • Water issues have plagued the mines- see Attachments 3 &4 which concern the retrospective approval of water pipelines by the NSW Department of Planning- a clear abuse of transparent process • Toxic dust and fumes

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• Cumulative effect of 6 operating coal mines in the Liverpool Plains (5 new proposed) • Wildlife exposed 24 hours a day to light and noise pollution • Gomeroi Traditional Custodians: July 2014 Uncle Dick Talbott observed that ‘ Whitehaven’s continued denial of access to the Maules Creek site and the Leard State Forest for the purposes of undertaking ceremony at our ancestral gravesites and sacred ceremonial places is hurtful and shameful.’(Schultz, ibid., p 49) • Final Void- there is no proposal for any restoration of the ‘horizon line’, no decommissioning plans The offsets issue: Both State and Federal Government approval of the mines was based on false and misleading information about offsets. i. A new legal challenge has been launched today (3 April 2020) against the operator of Whitehaven’s Maules Creek mine for failing to secure thousands of hectares of biodiversity offsets for the controversial coal mine near Narrabri in central north NSW. The mine gained federal approval in 2013 on the condition that the company secure 5,532 hectares of biodiversity offsets to compensate for clearing a critically endangered ecological community, known as box gum grassy woodland. Whitehaven had until midnight on Tuesday 31 March 2020 to secure its biodiversity offsets. As predicted by the community at the time the approval was granted, seven years on Whitehaven has been unable to secure those offsets. https://www.edo.org.au/2020/04/03/court-challenge- over-coal-mines-critically-endangered-woodlands-offsets- failure/?fbclid=IwAR2WUTcdizX3dYTRwmrxPo2XjocaU63N9G3aXWdKVC8dv8CoQycp1lw AjYM ii. Whitehaven’s Maules Creek coal mine is a prime example of why biodiversity offsetting doesn’t work. In 2013, Whitehaven gained approval for the mine on the condition that it obtain biodiversity offsets to compensate for clearing the iconic and critically endangered box gum grassy woodland, more formally known as White Box-Yellow Box-Blakely’s Red Gum Grassy Woodland and Derived Native Grassland. Seven years on, it still has not secured those offsets, in the order of some 5,532 hectares. Meanwhile, the bulldozing has continued. The federally listed box gum grassy woodland is an ecological community on the brink of extinction. The iconic woodland once existed across millions of hectares in eastern Australia. Today, there is far less than 5% left in the world. It provides important habitat for rare and endangered species like the Superb Parrot, Regent Honeyeater and the Squirrel Glider. https://www.lockthegate.org.au/legal_action_launched_over_whitehaven_offsets_failu re?fbclid=IwAR27s65XCNs1muLUpVxC_RQuQaNUEk313D01817PKAhWxLfMv_rOBZSFK3 s

NEGAT concludes that no biodiversity offsets should be available for critical habitat due to its essential role in preventing extinction

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Case Study 4: Koalas The plight of Koalas in the area is captured in the submission of the Maules Creek CWS to the NSW Inquiry into Koala populations https://www.parliament.nsw.gov.au/lcdocs/submissions/64526/0087%20- %20Maules%20Creek%20Branch%20of%20the%20Country%20Womens%27%20Association%20of% 20NSW.pdf This submission identified the following as contributing to the dire position of Koala populations in the area: o Clearing on private land o Lack of corridors o Exclusion fencing o Climate change and water harvesting by large landholders o Logging and mining in the forest o Insufficient financial incentive for private conservation o Lack of confidence in the State Government agencies NEGAT is aware that Since 2001, Queensland’s koala population has crashed by at least 50 per cent and the NSW population has declined by between 33 per cent and 61 per cent, according to two new reports by science consultants Biolink. Biolink estimates the 2019-20 bushfires in NSW killed 6382 koalas up to mid-February. These population declines have prompted the World Wide Fund for Nature, which conducted the habitat loss report, to lobby for the koala to be listed as endangered rather than vulnerable. Koala habitat was mostly lost to clearing for livestock pasture; while the main cause in NSW was forestry operations, the report said. The koala was listed as vulnerable under the Environment Protection and Biodiversity Conservation Act in 2012. Under the act anyone seeking to develop or destroy koala habitat must refer their plans to the federal government for assessment. https://www.smh.com.au/environment/conservation/destruction-of-habitat-sped-up-after-koalas- were-listed-as-vulnerable-20200412- p54j6p.html?fbclid=IwAR1XyNaZ698KlqbDBO0OkW2q2x3r0iL8bbLi579byHwIlY-7gyRFoAqctn4

NEGAT is concerned by the news that ‘Amidst the pandemic, koalas are quietly sold out for coal’, Jonathan Moylan, https://www.greenpeace.org.au/blog/koalasnotcoal/

NEGAT’s conclusions drawn from Case Studies 2, 3 and 4:

NEGAT concludes that the our current environmental laws are woefully inadequate in many areas: failure to take serious consideration of the impact of climate change predisposes governments to make decisions which ignore the precautionary principle and are predicated on economic rather than environmental considerations and the failure of governments at all levels to apply due diligence in process fosters environmental destruction and community cynicism at any intention on the part of governments to protect the environment and biodiversity. NEGAT would also point to the growing understanding that many of the decisions made by the State and Federal Governments to the detriment of the environment are not even economically sensible: see, for example this media from Lock the Gate: https://www.lockthegate.org.au/no_need_for_narrabri_nsw_minister_admits_narrabri_gas_unnecessary_and _agrees_overdue_recommendations_need_to_be_fulfilled_before_csg_drilling_anywhere?fbclid=IwAR2G5Cm zxI6IkHLi1fwZFSFgpcMkEwm0_1tm1GmcFPbhmD7xtrk5Zqm7k7QThe current EPBC is simply inadequate.

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Specific Question 1: The regulatory reach of the Commonwealth must be extended to include consideration of climate change. Full expression must be given to Section 3A b. of the Act with reference to the precautionary principle: If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. Specific Question 16: At the very least, The EPBC Act should focus on habitat management at a landscape-scale rather than species-specific protections.

Photo: Herman Beyersdorf

A koala in a backyard in Armidale.

The New England area is seen as a possible refuge for koala populations as climate change and environmental degradation renders adjacent, traditional koala areas uninhabitable.

The New England is considered part of a ‘koala corridor’ ,however development jeopardises koala movement.

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Case study 5: Logging

NEGAT is aware that existing national oversight and governance of forestry has been highly inadequate. For the last 20 years, Commonwealth exemptions have applied to forestry operations under Regional Forest Agreements between the Commonwealth and NSW. These agreements provide an exemption from standard EPBC Act assessment processes, but in many cases rely on poorly enforced state laws. Transparency of decision-making and compliance has been poor, environmental monitoring has been scant and five-year reviews have been delayed.

The Styx River State Forest is a region which has been subjected to inappropriate logging for many years. In an appalling decision made last month, the Forestry Corporation resumed logging in unburnt refuges in the Forest.

i. Forestry Corporation resumed logging in unburnt refuges in the Styx River State Forest despite risks to species including nationally endangered Hastings River mice. Peter Hannan, SMH, March 1 2020 https://www.smh.com.au/environment/conservation/teetering-on-the-brink- https://www.nature.org.au/blog/2020/03/uncovered-logging-in-unburnt-forest- happening-now/half-a-billion-dollars-sought-to-aid-wildlife-recovery-20200228- p545hn.html ii. as you read this, some of the last prime habitat for nationally threatened species such as the Spotted-tailed Quoll and the Hastings River Mouse is being destroyed. Despite unimaginable destruction from the summer of bushfire hell, it’s business as usual for industrial logging. The government is keeping people in the dark about this crisis, but, we’ve obtained video footage of logging happening last week. Will you watch and share the video to help us expose this outrage?

https://www.nature.org.au/blog/2020/03/uncovered-logging-in-unburnt-forest- happening-now/

NEGAT understands that post-fire logging exacerbates an already devastating situation, but the industry ignores the science; see David Lindenmayer, Professor at the Fenner School of Environment and Society, ANU College of Science https://www.abc.net.au/news/2020-01-29/logging-bushfire- affected-areas-australia-increases-fire-risk/11903662

Logging appears to be another instance when environmental degradation fails even to make economic sense. The Victorian budget office estimates that ending logging in Victoria now would save taxpayers $192m- see: https://www.theguardian.com/environment/2020/apr/13/ending-logging-in-victoria-now-would- save-taxpayers-192m-budget-office-estimates?fbclid=IwAR2UHDub-3EzGbBLKKUCHcBXSnSSIkkUR7FzuBiwE2ykXo1Blqa8uejfZ20

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Case Study 6: Bushfires

NEGAT is located in northern New South Wales, an area which experienced catastrophic bushfires in November 2019 during which time the Wytaliba community was devastated by the loss of two members and the destruction of the community and its surrounds. The region was was blanketed for weeks in hazardous smoke. The New England National Park, a significant remnant of Gondwana Rainforest suffered extensive damage which elicited international expressions of concern:

i. ‘NSW bushfires: Inside the community that’s now a ghost town,’ Paige Cockburn , ABC News 14 November 2019 https://www.abc.net.au/news/2019-11-14/nsw- bushfires-inside-small-town-wiped-out-wytaliba/11702106

ii. ‘Revealed: Monumental NSW Bushfires…’, Guardian, Lisa Cox, 3 December, 2019 https://www.theguardian.com/environment/2019/dec/03/revealed-monumental- nsw-bushfires-have-burnt-20-of-blue-mountains-world-heritage-area

iii. ‘UNESCO expresses concern over bushfire damage to Australia’s Gondwana Rainforests’, Guardian, Adam Morton 28 November, 2019 https://www.theguardian.com/australia-news/2019/nov/28/unesco-expresses- concern-over-bushfire-damage-to-australias-gondwana-era-rainforests

iv. ‘Bushfires devastate rare and enchanting wildlife as ‘permanently wet’ forests burn for the first time’, ABC news report Anne Arnold, 6 December 2019 https://www.abc.net.au/news/2019-11-27/bushfires-devastate-ancient-forests-and- rare-wildlife/11733956 - see also photo below

v. The NSW Government reported that, as of 3 February, • 5.4 million hectares (7%) of NSW has been affected by the fires. The severity of fire within this total area varies. • 37% of the national park estate has been affected. • More than 81% of the World Heritage listed Greater Blue Mountains Area and 54% of the NSW components of the Gondwana Rainforests of Australia World Heritage property have been affected by fire. • The most affected ecosystems are rainforests (37% of their statewide extent), wet sclerophyll forests (50%) and heathlands (52%). Locations of more than 293 threatened animals have been affected by the fires as of 3 February 2020. Of these animals: • 99 animal species have more than 10% of their recorded locations within the fire ground 5 animals have more than 80% of their records within the fire extent. https://www.environment.nsw.gov.au/topics/parks-reserves-and-protected- areas/fire/park-recovery-and-rehabilitation/recovering-from-2019-20- fires/understanding-the-impact-of-the-2019-20-fires

NEGAT is aware of the science which points to the vicious cycle by which global warming increases the frequency of bushfires, which increases global warming. The UK Met Office estimates the Australian fires could account for 1 to 2 percent of the acceleration in the growth of the global concentration of carbon dioxide in the planet’s atmosphere in 2020 - https://www.washingtonpost.com/weather/2020/01/24/australia-bush-fires-have-nearly-doubled- countrys-annual-greenhouse-gas-emissions/ .

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NEGAT furthermore is aware that

• we must make increased efforts to reduce greenhouse emissions and demonstrate to the rest of the world that we should all want to reduce the risk of major economic damage and threats to our future from global warming, including droughts and bushfires. One of the worst affected areas in northern NSW was Wytaliba. Residents there said: “We had a bushfire two months ago that burned most of our property. It didn't matter. It burned again. this is climate change” https://www.armidaleexpress.com.au/story/6494023/opinion-we-did-burnoffs- badja-sparks-hits-back/

• hazard reduction burning had little to no effect in slowing extreme bushfires. https://www.theguardian.com/environment/2020/feb/06/hazard-reduction- burning-had-little-to-no-effect-in-slowing-this-summers-bushfires?

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Case Study 7: Logging Armidale Airport Precinct

Clearing of trees to the south of the Armidale airport commenced in the week of Monday 12 August. No community consultation or notification was given.

“The Armidale Express’, in an article Armidale Regional Council’s ecologically friendly business park (August 23, 2019), reported that the Mayor, Councillor Murray, observed that ‘the site was assessed by ecologists as highly degraded, from years of grazing and invasion by perennial weeds.’

However, the land cleared was Yellow Box-Blakely’s Red Gum Grassy Woodland, an endangered ecological community listed under both NSW and Commonwealth environment legislation.

Although the article states that ‘an ecologist was present on site to monitor the trees for any native animals before and during their removal’ at least two glider possums were rescued by passers-by and later released.

Of further concern is our understanding that the current access onto Kia Ora Road from the highway will be closed and residents on Kia Ora Road will access the highway from within the proposed industrial estate. This would necessitate the loss of further native habitat.

Armidale Regional Council has used the lack of legislation to guide the decision-making process which has resulted in the unfortunate decision to clear an EEC rather than remove trees as required for necessary infrastructure.

Although initial assurances were given that Armidale Regional Council had identified an ‘offset’ area there is to date no evidence that this is the case.

Debris from the clearing of the Armidale airport industrial precinct land. The trees have since been chipped. Photos Jan Brahe

NEGAT’s conclusions drawn from Case Studies 5, 6 and 7

Each of these Case Studies highlights the inadequacies in the current legislation with regard to climate change. Case Study 7 highlights the lack of both transparency in process and rigor in legislative implementation of laws designed to protect environment and biological diversity.

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Answers to Specific Questions:

Specific Question 1. See page 7

Specific Question 2. The principle of ecological sustainable development could be better reflected in the EPBC Act in a number of ways. For example, Section 3A of the current EPBC Act defines the principles of ecologically sustainable development as follows: a. Decision making processes should effectively integrate both long-term and short term economic, environmental, social and equitable considerations.

As the respected leader of the environment movement, Gaylord Nelson, observed "The economy is a wholly owned subsidiary of the environment, not the other way around."

NEGAT is convinced that the privileging of ‘economic’ in the definition is inappropriate; the primary consideration must be environmental considerations.

Specific Question 5. The question: 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? Is flawed in its premise and fails to acknowledge the interconnected-ness of the various elements of protecting the environment and biodiversity.

This is the heart of the matter: the need to draft a set of laws for our times rather than attempting to ‘patch up’ outmoded and ineffective legislation.

The suggestion that the Act should have proactive mechanisms to enable landholders to protect matters of national environmental significance and biodiversity is risible given the increase in land- clearing experienced in NSW ahead of the introduction of land-clearing legislation and the predation on water resources by agribusiness.

Specific Question 7. The single future trend which must inform the review is the impact of climate change. In recent years state laws have been weakened, putting national biodiversity, water and soil health at risk, and making it more expensive and difficult to achieve greenhouse gas reduction targets. Human-induced climate change has been a listed as a Key Threatening Process to biodiversity for nearly two decades (listed in 2001).

Our laws must address the impacts of climate change on biodiversity. This means systematically embedding considerations of greenhouse gas emission reduction in law, policy and decision-making frameworks.

A national trigger to oversee high greenhouse gas emitting projects has long been a major gap in the national environmental law and Australia needs to urgently address its responsibilities to meet the Paris Agreement with an economy-wide legal framework and carbon budget that is consistent with avoiding 2 degrees warming. A greenhouse trigger is necessary to ensure that climate change impacts are embedded in strategic planning and that high-emission projects have their impacts thoroughly assessed against international climate goals and national commitments.

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See ‘Be honest Australia, you’re not ‘meeting and beating’ your emissions targets ‘, https://www.smh.com.au/environment/climate-change/be-honest-australia-you-re-not-meeting-and-beating- your-emissions-targets-20200307- p547u1.html?utm_medium=Social&utm_source=Facebook&fbclid=IwAR37F0vd_KBpCNWR1ompfZClOV3S9Bb U7ABooDL6NRRzPl5BNFo1mXGOazc

Specific Question 15. See page 2

Specific Question 16. See page 7

Specific Question 19. The EPBC Act should support the engagement of Indigenous Australians in environment and heritage management through the creation of bodies specifically charged with responsibility and empowered with legislative authority. Such bodies could include an Indigenous Land and Waters Commissioner, and/or Indigenous Cultural Heritage Advisory Council. There must be legislative recognition, protection and funding for Indigenous Protected Areas and new Commonwealth cultural heritage protection laws should replace the outdated Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Customary rights and knowledge should be incorporated into these new laws.

Specific Question 20. Community involvement in decision-making under the EPBC Act could be improved by protection of the rights of interested community members to seek merit reviews and community confidence would be enhanced by transparency in decision-making which must be easily accessible and timely. Provision should be made for ‘protective costs orders’ for legal actions brought in the public interest.

Specific Question 21. This question is another which is flawed in its presentation of a choice between ‘decision-making structures or the transparency of decisions’ as a priority. A robust EPBC Act should have embedded transparent structures and decisions. Compliance and enforcement must be an integral part of decision-making and the community must have the opportunity to seek judicial review of erroneous decisions, civil enforcement of breaches, and performance of non-discretionary duties by the Minister or other decision-makers under the Act.

Harmonised federal-state regulation should occur and the facility to adapt approval conditions as required must be a feature of the EPBC.

There is an evident need for new and trusted institutions which must be guaranteed adequate funded if the environment and its biodiversity is to be protected and intergenerational equity achieved.

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Specific Question 22.

The intended outcomes of the EPBC as outlined in the Discussion Paper:

The objects of the EPBC Act a. to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and b. to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and c. to promote the conservation of biodiversity; and d. to provide for the protection and conservation of heritage; and e. to promote a cooperative approach to the protection and management of the environment involving governments, the community, land-holders and Indigenous peoples; and f. to assist in the cooperative implementation of Australia's international environmental responsibilities; and g. to recognise the role of Indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity; and h. to promote the use of Indigenous peoples' knowledge of biodiversity with the involvement of, and in cooperation with, the owners of the knowledge.

could most efficiently and effectively be delivered by a complete re-envisaging of the legislation.

General Questions and Conclusion:

• Is the EPBC Act delivering what was intended in an efficient and effective manner? No. • Is the EPBC Act sufficient to address future challenges? Why? No. To adequately address future challenges an EPBC Act must foreground the environment and its context (particularly climate change).

Dr Michelle Maloney, of the Australian Earth Laws Alliance, in her presentation ‘Challenging the top- down approach of Australian environmental law’ (at https://drive.google.com/drive/folders/1d3Y8bF- k2grFRVF3BitTzLEJA9F4OKn_) outlines a useful starting point: moving from a human centred approach and adopting an earth centred approach.

The new legislation should: include new, trusted, properly funded institutions; foreground the environment and its biodiversity; allow Australia to fulfil its international obligations with regard to mitigating climate change and encourage communities to participate in protecting environment, biodiversity and heritage.

Additional reference: ‘The Plundering of Pilliga and Leard Forests and the surrounding farmlands’, Pat Schultz, ISBN 978-0-99444646-0-6

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