States and territories are notoriously conflicted when it comes to protecting the environment.
And this week’s move to shake up Australia’s environmental laws has left conservation groups worried states will still be able to decide whether a controversial project goes ahead.
A major review into environmental protection laws by former Australian Competition and Consumer Commission (ACCC) chair Graeme Samuel has found Australia’s natural environment was in an overall state of decline and under increasing threat.
“The current environmental trajectory is unsustainable,” it said.
The interim report recommends sweeping changes to the law, including developing a set of legally enforceable national environmental standards.
Environment Minister Sussan Ley has promised to introduce the standards, while also pushing ahead with legislation that would allow states and territories to carry out assessments — even before Samuel’s final report is handed down in October.
But the Australian Conservation Foundation (ACF) said this could end up handing more power back to the states, which it said are more beholden to vested interests such as local jobs and royalties.
“The government is cherry-picking the bits of the report they like and rejecting the bits they don’t like,” ACF chief executive Kelly O’Shanassy says.
“States are conflicted. They want development to go ahead. There are conflicts of interest that need to be addressed.”
History of bad deals
State governments have a long history of rolling over to the demands of powerful and politically connected developers, often turning a blind eye to environmental concerns in return for the promise of jobs and tax income.
In 2015 the Queensland Labor government approved the controversial Toondah Harbour wetlands development proposed by Walker Corporation, owned by billionaire Lang Walker.
As the ABC revealed in 2018, the Walker Corporation donated $225,000 to the federal Liberal Party and $23,000 to Queensland Labor the same financial year the development was sent to the federal government for final approval.
Criticism was levelled at the New South Wales government in 2015 for selling Vales Point power station to coal baron and Liberal National party donor Trevor St Baker for $1 million. The power plant was revalued at $730 million two years later.
Australian National University environmental law expert and honorary associate professor Peter Burnett said the money that state governments could make from large projects made them bad environmental protectors.
“Those kinds of factors compel them to approve developments,” he said. “Even if they say they’re committed to upholding certain environmental values, there’s a lot of pressure on them if there are jobs and revenue on offer, which of course there are.”
Devil in the detail
The Samuel review supported the notion that states could approve developments as long as they met a strong set of national standards. It also stressed the need for some kind of regulator to be a “strong, independent cop on the beat” for monitoring compliance and enforcement.
Ley rejected the idea of a separate regulatory body but said the standards would be developed by the federal government and would underpin new bilateral agreements with state governments. This would remove duplication by allowing states to carry out assessments and approvals on the commonwealth’s behalf.
“This is our chance to ensure the right protection for our environment while also unlocking job-creating projects to strengthen our economy and improve the livelihoods of everyday Australians,” she said.
Samuel told Crikey he agreed the states were conflicted when it came to protecting the environment.
“When they are so close to the revenue source of developments, you can understand there’s a conflict of interest,” he says.
But he was confident the government reforms would allow for strong federal oversight.
“All this is doing is shifting the workload from the Commonwealth to the states. The Commonwealth retains control because of the environmental standards in place.”
Burnett was hopeful the government would adopt the spirit of the Samuel report, which stressed the importance of independence and federal control.
“In principle the model is fine, but the devil is in the detail,” he said.
“States and territories are notoriously conflicted when it comes to protecting the environment.”
Neither the States or Commonwealth ever protect then environment. If a developer comes calling, forget protecting the environment. We have just seen massive destruction of koala habitat, so the gazetting of areas that still provide habitat for koalas should be a no brainer, but sadly, no.
The LNP hates the notion that some areas of the country should be “locked up” (i.e. off limits to greedy developers).
Given the rate of tree clearing in the country and city areas, it seems the average Australian hates trees and values the environment at zero.
The EPBC Act was developed by Environment Minister Senator Robert Hill (Howard Govt) and passed in 1999. It received bipartisan support and broadly welcomed by environmental and conservation interests. It covers federal responsibilities; it is not a substitute for the states’ role. The administration of state and federal roles and the requirements of developers impacting the environment, including threatened/endangered (flora and fauna) species, was never confusing or an unreasonable burden. Robert Hill designed a well crafted legislative framework which worked and was effective in achieving its aims. The problem has always been it was never accepted by business and the right wing of the Liberal/National parties. The EPBC Act is not inadequate for purpose. On the contrary, the reason for complaint is its capacity to protect species and the environment. Developers and coalition govts have gone about undermining the Act through funding cuts, delay tactics and treating the processes with contempt. Claims of duplication are incorrect; duplication and respective roles were addressed by the EPBC Act at its inception. Again, the Act has been systematically undermined by the coalition, developers and business lobby groups. To effectively return roles and powers to the states will set environmental and species protection back 20+ years. The proposed changes are not about efficiency; they’re about increasing the ability of developers (backers of the coalition parties) to unreasonably plunder the environment and to maximise financial gain, all at the expense of a deteriorating sustainable environment and the welfare of our threatened and endangered species. Where’s Labor? God knows!
I hope that the content and reactions to the Samuels Interim Report attracts close and critical scrutiny from Crikey and its contributors. This is a big week for those interested in environmental regulatory regimes; but the complexities challenge easy grasp of some primary issues.
This week, the NSW Independent Planning Commission is conducting hearings about whether to approve the Santos Narrabri Gas Project. Considerable attention should be directed to the content of a key document: the Narrabri Gas Project: State Significant Project SSD6367 Assessment Report of the New South Wales Department of Planning Industry and Environment issued in June 2020. Available from ipcn.nsw.gov.au website
That bureaucratic offering should be viewed through the prism of an array of material about another controversial Coal industry proposal. An ABC Radio National interview between Hamish McDonald and Professor Acworth of UNSW on 17 July 2020, 7.50 am. ABC Radio National “New Questions over Shenhua water modelling” is compellingly cogent. theinterview links to a paper published by a Professor Acworth 19 June 2020: “The Old River Mooki Channel– Implications for Open-cast mining at Watermark”. http://www.connectedwaters.unsw.edu.au/articles/2020/06/old-river-mooki-channel-%E2%80%93-implications-open-cast-mining-watermark
Those two sources undermine whatever confidence remains in either the capacity or integrity as a regulatory agency of either DPIE or its Commonwealth counterpart.
Taking the second set of material first. Effectively, in the oral discussion on the ABC broadcast, McDonald elicited from Acworth evidence about Piezeometers installed to measure and monitor water flows. The ones in question were placed on bores in proximity to a BHP and a separate Shenhua coal mining project near Watermark in the upper reaches of the Liverpool Plains near Breeza. Acworth pointed out that BHP sold to the Commonwealth BHP’s rights for over $200 m.
The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, (IESC) conducted an initial review of the Shenhua Watermark EIS in 2013. {Available on IESC web 17 April 2013 Advice to decisionmaker on coal mining project.) The IESC recommended “local scale investigation into groundwater gradients and flow with particular regard to predicted drawdown..before projects proceed’ . Effectively that entailed, as I understand Professor Acworth, that data from piezeometers logs should be collected for better understanding of groundwater at the sites. It meant that bores and piezeometers already installed would be used to collect data for the assessment of the effects of open cut mining and irrigation on the water resources.
Plainly, and culpably, DPIE failed to act on that recommendation. The DPIE allowed the bulk of the bores to be capped, disregarding the obligation on it to monitor and collect data. A local farmer found 5 that had not been capped, with piezeometers intact and gave Professor Acworth access. Those 5 meters had also been neglected; batteries not replaced, resulting in loss of all data when batteries died. Only 3 still had enough life to allow access to data.
Professor Acworth’ scientifically validated report established that the data, properly analysed meant: the level of abstraction of water shown by, is not sustainable in the long term, whether for irrigation or for mining, ….It is difficult to understand how this problem has not been identified previously’.
Professor Acworth complained to Hamish McDonald that efforts to secure a responsive interest to his published data and findings had been futile. Neither State nor federal authorities had responded.
Why should anyone have confidence in a system where IESC recommendations are not only ignored but effectively sabotaged by State DPIE neglect. It seems also the IESC seems to be missing in action. Acworth has not succeeded in generating IESC follow up or notice of the problem now unearthed. What can be made of the regulatory environment when scientifically valid analysis of a scandalous situation attracts no response from those in authority?
Against that background, well may the DPIE disclaim, as it does at the outset of its Assessment of Santos SSD 6367, that the information contained in it may not be accurate, accepting no responsibility for accuracy, currency, reliability or correctness of any information included in the document!
In relation to water resources along the Murray Darling Basin NSW State authorities and enforcement agencies have been stripped of credibility. There is widespread community belief that corrupt misfeasance or neglect has been a feature of whatever oversight has been applied. The DPIE Assessment Report on Santos’ Narrabri Gas Project SSD 6367 highlights the economic benefits of the project. The Department concludes “on balance”, that the project is in the public interest and is approvable subject to strict conditions.
The DPIE Assessment Report on Narrabri Gas Project cannot be relied upon for the science reported therein, for the effectiveness of monitoring or enforcing the “strict conditions’ or for the integrity of the process that gave rise to it.
There are abundant reasons why reform is urgent and desperately needed. It is outrageously bad governance for the LNP to adopt Sussan Ley’s kneejerk response to the Samuels’ report on environmental legislation. Ley rejects the recommendation for an independent environmental authority, seeks to have responsibility for approvals one-shopped to limpdick State bodies like the NSW DPIE but retain in her even more emaciated and listless Commonwealth Department overall veto power over State agencies. That would only compound neglect that already borders on the crime of misconduct in public office, a common law indictable offence since emasculated by the Commonwealth’s 1995 Criminal Code. It is time also to look for reinvigoration of the common law offence that might extend to neglect and improperly motivated conduct by public officials including Ministers, Sportsrorts not excepted.
Wow, thanks Paul.
Given that the Gladys govt in NSW approved coal seam mining under our dams, under the cover of COVID news saturation, I’m not surprised that the process allows them to ignore any form of governance or good sense.
Imagine undermining your own water resources, which I remind you were in the 40% mark just last February before 4 days of torrential rain brought them back to 80%, and put out a few hundred fires while it was there.
Thank you Paul, I will forward this to my 72 yo mum who has just completed her first year of environmental science at uni and is a recent Crikey subscriber :). This will boil her blood.
The Commonwealth gov is above crook governance?
* Malcolm “Australian Rain Corp; grant” Turnbull?
* Greg “A Tax to Make the Polluter Pay” Hunt?
* Fraudberg?
* Melissa “The Price Is Right”?
* Sussan “Gold Coast Penthouse Pet” Ley?
….. “This is coal. Don’t be afraid”?
….. The rorting of the Upper Darling/M-DBA?