Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report

Chapter 12: Threatened species and ecological communities

Key points

  • Submissions were critical of the level of transparency in the nomination process, in particular for listing of threatened species and ecological communities under the EPBC Act.
  • The use of a conservation theme for nominations for listing of threatened species and ecological communities was viewed unfavourably in some submissions, as it appears to result in nominations outside of the theme being excluded from consideration.
  • A number of submissions suggested changes to the current listing categories for threatened species and ecological communities and the inclusion of an ‘emergency’ or ‘transitional’ listing power in the Act.
  • There is a lack of alignment between Commonwealth and State and Territory lists for threatened species and ecological communities and this can result in inconsistencies and duplications of processes.
  • Submissions raised concerns regarding the perceived level of Ministerial discretion in decision-making for listing threatened species and ecological communities and suggested that the role of the Threatened Species Scientific Committee (TSSC) should be strengthened.

Listing of threatened species and ecological communities

Current provisions of the Act

12.1The EPBC Act provides a legal framework for the conservation and sustainable use of Australia’s biodiversity. Part 13 of the Act provides for the listing of nationally threatened native species and ecological communities, native migratory species and key threatening processes. The decision to list a species or ecological community under the Act establishes a requirement to provide for the protection of that species or ecological community, and creates an obligation for developers and other land owners and managers to avoid having a significant impact on the species or ecological community.

12.2Under ss.178, 179 and 180, the Minister must establish a list of threatened native species, divided into six categories. The 2006 amendments to the Act introduced new provisions for the listing of commercially exploited marine fish (s.179(6)). This allows for commercial fish species to be listed as conservation dependent so that fishing may continue, subject to a plan of management that provides for the recovery of the species.

12.3Regulation 7.01 of the EPBC Regulations specifies guidance for identifying the appropriate category when listing threatened species.

12.4Similarly, under ss.181 and 182, the Minister must establish a list of threatened ecological communities, divided into three categories. The Act defines ‘ecological community’ as the ‘extent in nature in the Australian jurisdiction of an assemblage of native species that inhabits a particular area in nature and meets the additional criteria specified in the Regulations (if any) made for the purpose of this definition’.[1] Regulation 7.02 specifies criteria for identifying the appropriate category when listing threatened ecological communities.

12.5An invitation to nominate a species or ecological community for listing under the Act is extended to the public by the Minister each year. Following the 2006 amendments to the Act, the Minister can now choose to establish a conservation theme when inviting nominations. The establishment of a conservation theme does not however limit the range of nominations that can be submitted; that is, the public can still nominate species which fall outside the theme. Nominations must be made in the form specified in Regulation 7.03.

12.6All nominations submitted within the nomination period, in the form prescribed in the Regulations, are forwarded to the TSSC. The TSSC then prepares a Proposed Priority Assessment List (PPAL) which is forwarded to the Minister. The Minister then determines the Finalised Priority Assessment List (FPAL). The FPAL is made publicly available on the Department’s website.

12.7All nominations included in the FPAL are assessed by the TSSC within the time frame specified by the Minister, generally within one year of the FPAL for species and two years for ecological communities. The TSSC invites public and expert comment on the FPAL nominations as part of the assessment and a technical workshop with experts is often held as part of ecological community assessments.

12.8The nominator is advised if their nomination was not included in the FPAL and that the nomination will be considered for prioritisation in the following nomination cycle. If the nomination is not prioritised a second time, it is no longer automatically eligible for prioritisation in future assessment periods. The nominator is advised of the outcome and that they are able to re-nominate if they wish.

12.9After considering the scientific evidence and consulting with experts and the public, the TSSC provides its listing advice to the Minister. It must advise the Minister on whether a species or ecological community is eligible for listing, having regard only to the entity’s eligibility for listing, and the effect that listing may have on its survival. The Minister must then determine whether or not to list the species or ecological community, again based only on the entity’s eligibility for listing, or the effect listing would have on its survival.

12.10Currently, the EPBC Act does not specifically allow for the use of the precautionary principle in listing species, ecological communities or key threatening processes.

12.11The process is similar to that for listing National Heritage places under the Act (discussed in Chapter 11 of this report).

12.12Following the 2006 amendments, the Minister has made 30 threatened species listing decisions and seven ecological community listing decisions on FPAL nominations. Thirty-four nominations, 17 for threatened species and 11 for ecological communities, are still under assessment.

Key points raised in public submissions

Removal of the requirement to keep the list up-to-date (s.185 of the act)

12.13Prior to the amendment of the Act in 2006, the Minister was required to maintain the lists of threatened species and ecological communities in an ‘up-to-date condition’ by taking ‘all reasonable and practical steps to amend as necessary’. Further, s.185 required that the Minister decide whether to include an ecological community in a list that was administered by a State or Territory. There was strong support in public submissions that s.185 be reinstated.

12.14It was argued that removal of s.185 was to lighten the administrative burden and ease political pressure regarding controversial listings[2] and this amendment was perceived as increasing delays in the listing process. Submitters felt that keeping the lists in an up-to-date condition was critical to the operation of the Act. This flowed from the concern that in the absence of a statutory requirement to keep the list ‘up- to-date’ a Government may allow the list to wither. Whether or not an action is likely to trigger the Act depends upon its likely impact on a listed threatened species or ecological community. Permits for actions on Commonwealth land and investment in species recovery also rely on the species being listed.

Nomination themes

12.15Submissions were critical of a number of components of the process of nominating and listing threatened species, ecological communities and key threatening processes. In particular, the themed nomination approach was viewed as arbitrary, focused on large, iconic species and not consistent with the precautionary principle and principles of good conservation management. The NSW Scientific Committee argued that ‘the recently implemented annual cycle would seem to impose unnecessary constraints on public participation for the convenience of managing nominations. Listing processes in other jurisdictions in Australia and abroad operates effectively in the absence of such an imposition’.[3] The Nature Conservation Council (NCC) noted:

The use of ‘conservation themes’ for each assessment period may encourage nominations from areas and ecosystems under particular threat, such as rivers and wetlands; it could also increase the chance of threatened species slipping through the gaps, or being delayed in the listing process. With the criteria for listing already specified by the EPBC Regulations, these conservation themes seem to be superfluous to the listing process and merely a filter to reduce the number of nominations received.[4]

12.16Concern was also raised as to whether some nominations had been inappropriately rejected as a result of the themed approach. Conversely, the Department advised that the themed approach was used as a mechanism to help focus assessment effort on priority species and ecological communities.

12.17No evidence was found to show that the themed process was being used to manipulate nominations inappropriately. In particular, many of the items placed on the 2008 FPAL were not consistent with the conservation theme. It is the opinion of the TSSC that conservation themes have successfully drawn out nominations from certain types of entities or areas that were previously under-represented on the EPBC lists for threatened species and ecological community.

12.18Submissions supported the public nomination system, however many submissions argued that the process of preparing an application for listing was excessively bureaucratic, technical, time-consuming and slow, making it difficult for non-technical members of the public to contribute.[5] A number of submissions suggested that the PPAL should be made publicly available for comment before it is submitted to the Minister.

12.19The time frame, introduced in the 2006 amendments, of 6-12 weeks in each year in which to submit nominations was viewed by one submission as too brief a period, and imposed unnecessary constraints on public participation. Concerns were also raised about delays in the listing process between nomination and listing. While the 2006 amendments to the Act provide for an annual assessment period, with assessment timeframes and possible extensions for individual nominations determined by the Minister, the lack of a mandatory timeline for the assessment of nominated species and ecological communities remains a concern for submitters.

12.20Comments were made on the listing processes under the NSW Threatened Species Conservation Act 1995 and the Victorian Flora and Fauna Guarantee Act 1998, which were considered to run more smoothly and efficiently compared with the Commonwealth process.

Prioritisation of nominations

12.21The Australian Network of Environmental Defender’s Offices (ANEDO) also commented on the 2006 amendments, noting that since the amendments, once all nominations relating to a theme for the year are received, the TSSC has 40 days to consider the nominations and provide the Minister with a Priority Assessment List. ANEDO argued that:

There is no explicit reference to conservation status as being a relevant consideration for inclusion on the Priority Assessment List. This is inconsistent with Australia’s obligations under the Convention on Biological Diversity. Further there is no public consultation on the proposed list, and the Minister may have regard to ‘any matter that the Minister considers appropriate’ in reaching this decision. It is therefore possible for a nominated species to be removed from the final Priority Assessment List on commercial or economic grounds, regardless of the conservation status of that species. We submit that priority listing process should be removed.[6]

12.22It was argued a priority setting approach was required in determining which species and ecological communities should be considered for listing in the relevant assessment period and the ‘Back on Track species prioritisation framework’,[7] which is an initiative of the Queensland Government that prioritises Queensland’s native species to guide conservation, management and recovery was suggested as an alternative approach.

Categories of threat in listings

12.23In responding to question 13 in the Discussion Paper, which sought comments on whether the categories of threat are appropriate, submitters argued that the eligibility for respective categories of threat should be the exclusive consideration for amending the lists of species and ecological communities. That is, decisions should be based on science, not management considerations.

12.24A recurring theme was that the focus on protecting threatened species was failing to provide a basis for Australian Government action to prevent species from becoming threatened in the first place.[8] The absence of provisions enabling listing of species or ecological communities that are ‘near threatened’, ‘intra-continental migratory’ species or species that are ineligible for listing due to data deficiencies or just fall short of meeting ‘vulnerable’ thresholds was noted. Submitters were concerned that action should be taken before species become eligible for listing as ‘vulnerable’, or ecological communities become listed as ‘endangered’, and therefore be afforded protection under the Act.

12.25It was also argued that for some species and ecological communities there would be significant conservation benefit if protective measures were invoked before further declines occurred, particularly as early preventative measures are likely to be more cost-effective and successful than recovery action at a later time. Submissions argued that recognising an additional category such as ‘near-threatened’ and/or ‘data’ deficient’, species and ecological communities under the Act could be afforded statutory protection and be used as a ‘flag’ for priority funding and recovery actions.[9] Recovery actions are discussed in Chapter 13 of this report.

12.26The TSSC, in their submission to this review, also argued that:

Another improvement could be made if there existed a framework for recognising near threatened, rare and data- deficient species and ecological communities that was linked to Key Threatening Process criteria. This would not necessarily involve a listing and subsequent NES trigger for these categories. However, it becomes important in the role these could have as justifications in law of the establishment of Key Threatening Processes. This and subsequent recommendations are focused on earlier action for protection and/or recovery of declining species and ecological communities, rather than waiting until they are seriously threatened.[10]

12.27The WWF submission went further, suggesting species considered as data deficient should be treated as ‘vulnerable’ until better information is available (a precautionary approach supported by the IUCN).[11]1

12.28The Queensland Government submission stated that:

[t]he criteria used by the Commonwealth for species listing do not necessarily use the latest version of international[ly] accepted criteria (i.e. International union for Conservation and Nature) whereas a number of States use IUCN criteria.[12]

12.29It was recommended that the Act adopt more strictly internationally accepted listing categories and criteria for species, such as those used by the IUCN and similar to those used by a number of the state governments.[13]

Emergency listing

12.30A number of submissions called for the provision of an emergency listing category for species and ecological communities, similar to the provisions for the emergency listing of National Heritage places. Some submissions suggested that a provision for emergency or transitional listing should be considered as this category could be used for newly discovered species, new threats and disasters and whilst additional information was being sought. The NSW Threatened Species Conservation Act 1995 was provided as an example, where, in emergency situations, the NSW Scientific Committee can provisionally declare a species to be endangered in NSW, without going through the public consultation process. [14]

12.31The Humane Society International (HSI) noted:

If excessive timeframes for assessing nominations remain, HSI believes the need for emergency listing provisions is as important as ever. The Minister needs to have the ability to act swiftly where there are immediate or ongoing threats of significant impact to a nominated species or ecological community. Otherwise, given the typical timeframes currently given for assessing nominations, a species or ecological community could well find itself qualifying for a higher category of threat at the point of listing to what it did at the point of nomination.[15]

List alignment

12.32Threatened species lists are maintained at both the Commonwealth and State and Territory level, often using different criteria and listing approaches. In discussing opportunities to reduce duplication between the Commonwealth and State and Territory listing regimes, it was argued in submissions that it is difficult to compare threatened species lists across jurisdictions, and that there is the potential for inconsistent assessments and conflicting information on threatened species. For example, a species may be listed as ‘endangered’ in one State, yet in another State it may be listed as ‘critically endangered’. This inconsistency may be due to the species being subject to a higher degree of threat in one particular state, or it may be due to the fact that in some states, ‘endangered’ is the highest listing category available.

12.33The Urban Development Institute of Australia noted that:

there are opportunities to reduce duplication as the current system is cumbersome and lengthy and there is no mechanism to align the processes especially in situations where State and Commonwealth expectations differ.[16]

12.34Submissions also offered a number of suggestions to progress alignment of Commonwealth and State and Territory lists, including the maintenance of a single national list for threatened species and ecological communities, which, it was argued, would reduce duplication, increase transparency and efficiency and allow for the provision of a greater level of protection. In contrast, some submissions suggested that the States maintain a list of endemic species, through a Commonwealth accredited process,[17] and the Commonwealth maintain a list of cross-jurisdictional species. The Urban Taskforce Australia suggested that ‘all “lower order” heritage, state reservation or threatened species listings should automatically lapse when an equivalent Commonwealth listing is made’.[18]

12.35The NSW Scientific Committee noted that while there are legitimate reasons for differences in listing of species and ecological communities between Commonwealth and State and Territory jurisdictions, it may be possible to develop protocols for joint assessments in the event that contemporaneous nominations arise, or abbreviated supplementary assessments where listings have already occurred in one jurisdiction and are also relevant for consideration in another jurisdiction.[19]

12.36HSI noted that they felt it was perfectly acceptable that there should be discrepancies between Commonwealth, State and Territory lists because they are protecting species and ecological communities according to different scales of responsibility. For example, a species may be threatened within NSW but elsewhere in its range its conservation status may be more favourable such that overall it doesn’t qualify for listing nationally.[20]