Native Vegetation Inquiry
Productivity Commission
LB2 Collins Street East
MELBOURNE VIC 8003

Productivity Commission
Impact    of   Native    Vegetation    and   Biodiversity    Regulations
As a 4th year Environmental Science student at Southern Cross University, I have been exposed to both the theory and motives behind the formulation of Government policy geared toward regulating the ways in which environmental resources are used, and also some short fallings (real and potential) of current legislation in achieving certain objectives.  Among the desired topics for discussion suggested in the ‘Impact of Native Vegetation and Biodiversity Conservation Issues Paper’ is comment from the public regarding assessment of the overall efficiency and effectiveness of current legislative regimes in meeting their stated environmental goals.  This submission will focus on addressing the extent to which the current legislative approach for conserving biodiversity, including the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and the Native Vegetation Conservation Act 1997 (NSW) may hinder the achievement certain stated objectives, namely to;
•	Provide for environmental protection, particularly for matters of national environmental significance (EPBC Act)
•	Promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources (EPBC Act)
•	To prevent the inappropriate clearing of vegetation (NVC Act)
Commonwealth Government involvement in developing a coordinated national approach to conservation
As stated in the EPBC Act, the Federal Government acknowledges the need for a coordinated national approach, in relation to environmental protection, where matters of national environmental significance are concerned.  This is absolutely true, however it could be argued that the logic employed in the conception of the six triggers specified (development activity regarding World Heritage Properties, Ramsar Wetlands, nationally threatened species and ecological communities, migratory species, Commonwealth Marine Areas and nuclear actions) which would necessitate Commonwealth Government involvement in environmental protection is flawed.
By limiting their involvement to this set of criteria, the Commonwealth Government is placing a high level of importance on State boundaries, which are essentially abstract constructions and have no part to play in Australia’s ecological reserve.  In distancing themselves, under the EPBC Act, from involvement in the management of the national environment, the Commonwealth is facilitating the progressive erosion of the viability of Australia’s natural processes.  Is it acceptable to compromise habitat in New South Wales simply because similar habitat may exist elsewhere in Australia?  By withdrawing involvement unless extraordinary circumstances arise, the Federal Government is saying ‘yes’ and allowing for the environment to be compromised on a piece by piece basis.
In terms of planning for the protection of the environment, it could be argued that State Government should not be shouldered with the responsibility of balancing development and conservation objectives in the face of their limited capacity to raise funds through levies on certain activities and income generate through private development.  It is generally understood that State Government rely heavily on attracting private development to finance State-run activities, and for the Commonwealth to set State Government the conflicting tasks of; 
(a)	relying on development activity to finance State initiatives and 
(b)	protecting the natural environment from the negative impacts of development 
is inviting the surrender of ecological viability to financial practicality, displacing environmental costs onto the nation as a whole and future generations.  A situation is created whereby environmental concerns are always going to be compromised by the need for States to generate revenue, thus ensuring that the stated objectives of the EPBC Act will not be achieved.
The divergent attitude of Federal and State Governments, in relation to environmental matters, is effectively illustrated in the well-known battle between Queensland and the Commonwealth over an area of wet tropical rainforest stretching from Cooktown to Townsville.  In the late 80s, The Commonwealth nominated the area for World Heritage Listing based on its outstanding conservation value and contribution to national biodiversity.  However, Queensland Government wished to retain control over the area in order to exploit the financial value of its rainforest timber resource.  The end result was a High Court challenge by the Queensland Government  of the Governor-Generals proclamation under the World Heritage Properties Conservation Act 1983 (Cth), and an embarrassing and damaging campaign launched by the same government, lobbying the World Heritage Bureau not to accept the nomination.  While this episode took place over a decade ago and ultimately resolved in favour of the Commonwealth position, it illustrates the differing approaches of State and Federal Government (which still prevail today) and their capacity to subvert the protection of the environment.
Specific legislation and outcomes of concern
Chapter 3 – Part 5 of the EPBC Act
Following on from the arguments presented so far in this submission, Chapter 3 – Part 5 of the EPBC Act would appear to promote outcomes at odds with the objectives outlined earlier. This section of the Act specifies that development proposals which fall within the terms of bilateral agreements regarding accreditation for State Environmental Impact Assessment Procedures can be assessed and approved at the State level with no Commonwealth involvement.  This will be the case even where the proposed development is likely to have a significant impact on listed matters of national environmental significance.  By devolving developmental approval powers to State Government, the Commonwealth is compromising the integrity of the EIA process and the EPBC Act for all the reasons stated thus far in this submission.  Objectivity is lost and the Commonwealth Government defaults on their stated commitment to specifically address matters of national environmental significance.  The relative importance attached to factors influencing the decision to reject/approve a development proposal would be expected to vary considerably between the Federal Environment Minister and the State Action Minister (as illustrated in Queensland v The Commonwealth).  As such the optimal decision in relation to environmental protection is less likely to eventuate.
Commonwealth Government involvement in controlling landclearing
It is well known that the loss, fragmentation and degradation of Australia’s native vegetation (through landclearing) are the major causes of biodiversity loss, dryland salinity and among the largest components of Australia’s greenhouse gas emissions.  However, native vegetation and biodiversity regulations, as they currently stand under the EPBC Act and NVC Act, appear to be inadequately dealing with this problem.  Since the EPBC Act does not expressly cover landclearing (unless one of the guidelines of national significance is tripped) there is no Federal participation in the regulation of landclearing, despite the importance of its management.  Thus State Government is responsible for approving applications to clear land in NSW under the NVC Act, however there are a number of factors which indicate that this arrangement is not effectively controlling the rate at which land is being cleared.  Firstly, there are no systematic mechanisms in place to monitor compliance with this legislation.  If illegal clearance is not reported by the community, or chanced upon by an employee of the Department of Infrastructure Planning and Natural Resources, there aren’t any provisions for its detection.  Given this state of affairs, it seems fair to assume that a significant amount of undetected clearing is being carried out (or at least has the potential to be carried out) in contravention of State legislation without fear of retribution.  Secondly, of those landclearing activities bought before the Land and Environment Court under the NVC Act (< 5% of detected offences) only a minority result in convictions, and the fines imposed by the Judiciary are fairly light (averaging <$35/ha cleared).  Aside from the likely outcomes of this regulatory approach in relation to illegal clearing, it is also important to note that over 90% of landclearing applications received by DIPNR are unconditionally approved.  This equates to over 100,000ha of native vegetation in 2002 that the State Government of New South Wales (and the Commonwealth Government by default) believe has little to no conservation value..  The message this sends to landholders and the community at large, that landclearing isn’t a serious problem and needn’t be viewed as such should not be dismissed.  If one accepts that landclearing is indeed the single largest threat to national biodiversity, surely a more serious approach to its regulation and prevention should be adopted than that perpetuated by the NVC Act and Federal non-involvement under the EPBC Act (which itself perpetuates the belief that if something isn’t endangered, then it doesn’t warrant protection).   
Further comments
Conserving, maintaining and restoring Australia’s natural resources to acceptable levels of biodiversity conservation and sustainable use is no doubt an enormous task that will never be achieved with a weak handed, subjective and decentralised approach.  The Commonwealth Government needs to employ its power to enact legislation with a view to complying with obligations under international conventions and treaties to which Australia is a signatory.  I realise that legislation is only half the answer because in isolation it does not promote voluntary compliance or concern from landholders, and if time and effort are not expended to ensure that landholders/managers understand and support the reasons for the enactment of legislation, a culture of non-cooperation and conflict may be the end result.  Therefore, in addition to the suggestion that a more centralised, Federal Government lead approach to legislative development and enforcement be employed, the following tools are also suggested as a means of achieving the goals listed as the purpose for the EPBC Act.
	Education: while it is true that there are already a number of educational programs in existence (e.g. in NSW programs such as ‘Farming for the Future’ overseen by NPWS) to inform the general public and rural landholders in particular about the importance of biodiversity conservation, the fact that such initiatives aren’t coordinated across different government agencies, and aren’t expressly concerned with addressing legislative implementation and gaining support from those responsible for achieving the objectives of the legislation (i.e. landholder/managers) means that this important tool in biodiversity conservation is not being employed as effectively as it could be.  Support needs to be garnered at a community level so that educated and motivated individuals will respond to the direction of the government and participate in protection of the environment and conservation of national biodiversity.  
	Economic incentives; obviously, education alone is not the key, just as legislation alone is not the key.  A well thought out system of economic incentives, such as grants for conservation activities by private landholders and community groups and tax deductions for expenses incurred in ALL conservation activities on private land, would allow individuals to adjust their management behaviour voluntarily thus allowing for an environmental improvement without government agencies having to cajole landholders/managers into complying with legislation.  Due to the fact that biodiversity conservation is in the national interest, it only seems fair that the nation as a whole should foot the bill for the conservation efforts of private landholders.  This argument ties in with the earlier assertion that the current system, whereby States are expected to finance conservation initiatives from the State budget, is inequitable.  In much the same way that demanding States with small populations and a highly diverse environment (e.g. Tasmania) pay for their conservation activities, is counterintuitive and unreasonable, so too is the expectation that private landholders with an interest in conservation or with properties in areas of high conservation value should forego income and expend their own financial resources, when the service they are providing will be enjoyed by many others.  Tax deductions, rate relief, assistance with the development of management plans and labour costs for work carried out (e.g. fire management) and equipment purchased would all be of considerable value in the pursuit of environmental protection.  The current State-based initiatives, such as Property Agreements under Part 5 of the NVC Act are definitely a positive development, however the level of funding provided is perceived by landholders and the wider community as inadequate and the overall result lacks the type of cohesion that would be possible with a unified national approach to conservation on private property.
Conclusion
	While the argument above has been presented in a frank and forthright manner, I would like to add that I have a great respect for the level of difficulty faced by those responsible for drafting legislation, especially in relation to the protection of the environment.  The implications are far reaching and there are definitely some tough decisions to be made, particularly trading off short-term financial gains against long-term investment in the manifest and also intangible benefits of conserving the natural environment for future generations and also to maintain a viable, self sustaining ecosystem.  

Best of luck

Aaron Tonna
atonna10@scu.edu.au