In Matthew Denholm’s article in Saturday’s Australian, Greens Senator Bob Brown describes a Howard Government proposal to amend the Environment Protection and Biodiversity Conservation (EPBC) Act 1999, as “…an absolutely pivotal moment in Australian environmental history.”
In a federal court case brought by Senator Brown, Justice Shane Marshall found Forestry Tasmania’s exemption from the EPBC Act did not apply at Wielangta.
Under the EPBC Act, a person or corporation must not take an action that is likely to, or will have, a significant impact on a listed threatened species included in the endangered category. The threatened species in this case include the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot. Under another section of the same act, however, approval is not needed for forestry operations permitted by Regional Forest Agreements (RFA).
The RFA definition of “protect” lay at the centre of contention. The applicant submitted that ‘agrees to protect’ means ‘deliver protection of’ and not ‘agrees to try and protect’ or ‘consider protecting’.
According to the article, Forestry and Conservation Minister, Senator Abetz, said the judgment appeared to create a definition of “protect” that went far beyond that envisaged by commonwealth and state governments. Amendments to the act and the RFA might be necessary and could constitute a speedier way of returning certainty than appealing against the decision.
Senator Brown is quoted as saying “the Government would need to rewrite the EPBC Act to get around the ruling and most likely withdraw from international biodiversity conventions.”
As ratified treaties bind Australia in international law, the EPBC Act is constructed in conformity with its international obligations. The Commonwealth Constitution does not provide the Parliament with specified powers to legislate in respect to the environment in any way, other than under the Section 51(xxix) External Affairs power.