Minister for Planning C/- Robert Kleeman Unit Manager Policy and Strategic Assessment Department of Planning, Transport and Infrastructure GPO Box 1815 ADELAIDE SA 5000 Email: [email protected]. 28 May 2019 Dear Minister Re: Smith Bay, Kangaroo Island - Deep Water Port Facility I would like to thank the Department of Planning, Transport and Infrastructure (DPTI) and the Department of Environment and Energy (DoEE) for consulting the public on the environmental impact statement (EIS) of Kangaroo Island Plantation Timbers Ltd (KIPT) in relation to the deepwater port and associated infrastructure in Smith Bay on Kangaroo Island (proposal). This submission makes the following key points: 1. KIPT substantially misrepresented the number of MNEs that may be affected by the proposal. 2. Once KIPT was aware of the known, likely, or potential presence of MNEs in the environment that may be affected (EMBA) by the proposal, it had an obligation to carry out detailed surveys, in accordance with best practice standards and DoEE survey guidelines. KIPT and its consultant, EBS Ecology, substantially failed to fulfill this requirement. 3. KIPT and EBS’ failure as set out in 3 above, should be grounds for DPTI and DoEE to apply the precautionary principle in determining whether MNEs are present in the EMBA. 4. KIPT, for the most part, has failed to evaluate or address the environmental impacts and risks associated with the proposed action in relation to MNEs. It has also failed to take into account Significant Impact Guideline 1.1 in relation to making such evaluations. 5. The proposed development will have a significant impact on MNEs in the EMBA. 6. KIPT has failed to demonstrate that potential impacts and risks of the proposed action have been reduced to as low as reasonably possible (ALARP). 7. The proposed is inconsistent with Australia’s international obligations under the Convention on the Conservation of Migratory Species of Wild Animals 1 (Bonn Convention),1 Japan Australia Migratory Bird Agreement (JAMBA),2 the China-Australia Migratory Bird Agreement (CAMBA)3, the Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA)4 and the Agreement on the Conservation of Albatrosses and Petrels (ACAP)5. For the reasons above, it is submitted that that the South Australian Minister for Planning, under s 115 and sch 8 cl 20 of the Planning, Development and Infrastructure Act 2016 (SA) should not approve the proposed action. It is further submitted that the Commonwealth Minister for Environment, under s133(7) of the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) should refuse to approve, for the purposes of a controlling provision, the taking of the proposed action by KIPT. 1 Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 3 June 1992, 331 UNTS 327 (entered into force 21 March 1994) 2 Japan-Australia Migratory Bird Agreement, developed 6 February 1974 (entered into force 30 April 1981) 3 China-Australia Migratory Bird Agreement, developed 20 October 1986 (entered into force 1 September 1988) 4 China-Australia Migratory Bird Agreement, developed 6 December 2006 (entered into force 13 June 2007) 5 Agreement on the Conservation of Albatrosses and Petrels (entered into force 1 February 2004) art 3(1)(a). 2 1. KIPT substantially misrepresented the number of Matters of National Environmental Significance (MNEs) that may be affected by the proposal. On 14 December 2016, the Commonwealth Minister for the Environment made a decision under s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) determined that the proposal was likely to have a significant impact on the following protected matters: • Listed threatened species and communities (sections 18 and 18A); • Listed migratory species (sections 20 and 20A); and • Commonwealth marine areas (sections 23 and 24A). The Commonwealth Environment Minister found that the proposal was likely to have a significant impact on, but was not limited to, the following MNEs: • the endangered and migratory Southern Right Whale (Eubalaena australis); • the endangered Kangaroo Island Echidna (Tachyglossus aculeatus multiaculeatus); • the vulnerable Hooded Plover (eastern) (Thinornis rubricollis rubricollis) • the endangered Southern Brown Bandicoot (eastern) (Isoodon obesulus obesulus). In June 2017, the Development Assessment Commission (DAC) published guidelines to set the level of assessment for the proposed action (Guidelines). Guideline 1.3 requires KIPT to “describe the environment and management practices of the proposal site and the surrounding areas and other areas that may be affected by the proposal”. The term “environment” is defined by the DAC as the “environmental (biological and physical), social and economic effects associated with the development and the means by which those effects can be managed.”6 KIPT is therefore required by the Guidelines to provide information regarding all MNEs that the proposed action may have a significant impact upon for the purpose of providing the Commonwealth Environment Minister with sufficient information whether or not to approve the proposed action under Part 9 of the EPBC Act. In the EIS, KIPT stated that 78 MNES were listed in the Protected Matters Search. Of these, it provided that 68 were either “not present”, “unlikely to be present” or “potentially present but unlikely to be affected by the proposal.” The only 4 species that it identified as potentially at risk of significant impact were those specified by the Commonwealth Environment Minister. 6 Development Assessment Commission, Guidelines for the preparation of an Environmental Impact Statement: Deep water port facility at Smith Bay, Kangaroo Island (June 2017) 3. 3 It is submitted that KIPT misrepresented how many MNES the proposal may have a significant impact on by: • Omitting information on biologically important areas (BIAs) that may, likely, or were known to occur in the proposal area. These included information on the following BIAs, as set out in the Protected Matters Report: o Antipodean Albatross Diomedea antipodensis - Foraging, feeding or related behavior likely to occur within area. o Southern Royal Albatross Diomedea epomophora - Foraging, feeding or related behavior likely to occur within area. o Wandering Albatross Diomedea exulans - Foraging, feeding or related behavior likely to occur within area. o Northern Royal Albatross Diomedea sanfordi - Foraging, feeding or related behavior likely to occur within area. o Shy Albatross Thalassarche cauta cauta - Foraging, feeding or related behavior likely to occur within area. o White Capped Albatross Thalassarche cauta steadi - Foraging, feeding or related behavior likely to occur within area. o Australian Fairy Tern Sternula nereis nereis – Breeding likely to occur within area. o Loggerhead Turtle Caretta Caretta – Breeding likely to occur within area. o Osprey Pandion haliaetus – Breeding known to occur within area. • Representing that MNES are “not present”, “unlikely to be present”, “potentially present” or had a “possible-fly over” presence when they are known to be present in the proposal area. These included: Table 1: Comparison between known MNE presence as stated in the Protected Matters Search Results and KIPT’s representations in the EIS Name EPBC Act Status Type of Presence KIPT (Protected Matters representation Search) 1. Ardenna carneipes Migratory Species or species Possible- fly over habitat known to Flesh-footed occur within area shearwater 2. Chelonia mydas Vulnerable, Species or species Potentially Migratory habitat known to present Green Turtle occur within area 4 Name EPBC Act Status Type of Presence KIPT (Protected Matters representation Search) 3. Dermochelys Endangered Species or species Unlikely to be coriacea habitat known to present occur within area Leatherback Turtle 4. Pachyptila turtur Vunerable Species or species Possible – fly subantartica habitat known to over occur within area Fairy Prion (Southern) 5. Pandion haliaetus Migratory Breeding known to Possible – fly Osprey occur within area over 6. Phoebetria fusca Vulnerable, Species or species Possible – fly Migratory habitat known to over Sooty Albatross occur within area 7. Pultanea villifera Vulnerable Species or species Unlikely var. gladbrescens habitat known to occur within area Yellow Bush-pea, Splendid Bush-pea • Representing that MNES are “not present”, “unlikely to be present”, “potentially present” or had a “possible-fly over” presence when they were likely to be present in the proposal area. These included: Table 2: Comparison between known MNE presence as stated in the Protected Matters Search Results and KIPT’s representations in the EIS Name EPBC Act Status Type of Presence KIPT (Protected Matters representation Search) 1. Botaurus Endangered Species or species Unlikely to be poiciloptilus habitat likely to present occur within area Australian Bittern 2. Calidris canutus Endangered Species or species Potentially habitat likely to present Red Knot, Knot occur within area 3. Calidris ferruginea Critically Species or species Potentially Endangered habitat likely to present Curlew Sandpiper occur within area 4. Calyptorhynchus Endangered Breeding likely to Potentially lathami occur within area present halmaturinus Glossy Black- 5 Name EPBC Act Status Type of Presence KIPT (Protected Matters representation Search) Cockatoo (Kangaroo Island), Glossy Black- Cockatoo (South Australian) 5. Caretta caretta Endangered, Breeding likely to Unlikely to be Loggerhead