Land Clearance (In: Independent Review of the Environment Protection and Biodiversity
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
Chapter 7: Land clearance
Key points
- Many submissions raised concerns about land clearance and its impacts on salinity, water quality and greenhouse gas emissions.
- Land clearance is currently listed as a key threatening process (KTP) under the Act, but it was decided that no threat abatement plan (TAP) be prepared for this KTP.
- While land clearance in some cases is indirectly regulated by the Act due to the significant impact it can have on matters protected under the Act, many submissions advocated that land clearance be introduced as a new matter of national environmental significance (NES).
- The relationship between land clearance and other suggestions to deal with ecosystem conservation needs to be explored further.
Land Clearance and the EPBC Act
Current provisions of the Act
7.1The Act deals with land clearance in a number of ways.
7.2As mentioned in other chapters of this report, actions that will have or are likely to have a significant impact on a matter protected under the Act require approval under the Act. Land clearance activities can often be likely to have a significant impact on a protected matter (such as a World Heritage area, Ramsar wetland, threatened species or ecological community or migratory species), and therefore must be referred for assessment under the Act.
7.3Land clearance is listed as a KTP under the Act. However, the Threatened Species Scientific Committee (TSSC) recommended that creating a TAP for land clearance was unnecessary, given initiatives already in place to deal with land clearance, and the existence of the Native Vegetation Framework.[1]
Definition of land clearance
7.4The EPBC Act does not contain a definition of land clearance; however, State and Territory Acts provide some guidance. One of the more comprehensive definitions is found in the South Australia Native Vegetation Act 1991:
clearance, in relation to native vegetation, means—
(a)the killing or destruction of native vegetation;
(b)the removal of native vegetation;
(c)the severing of branches, limbs, stems or trunks of native vegetation;
(d)the burning of native vegetation;
(e)any other substantial damage to native vegetation,
and includes the draining or flooding of land, or any other act or activity, that causes the killing or destruction of native vegetation, the severing of branches, limbs, stems or trunks of native vegetation or any other substantial damage to native vegetation.[2]
7.5This definition has a number of problems. It has no implicit or explicit time scale, and therefore does not discriminate between land clearance that intends to revegetate, and land clearance that intends ‘permanent’ change. Furthermore, within the set of actions that intend to revegetate, it does not discriminate between those that intend to replace native vegetation with, for example, a plantation forest (which might satisfy carbon objectives) and those that intend to replace native ecosystems with a full complement of the same native ecosystem components. If we are interested in biodiversity outcomes, any definition needs to accommodate these differences. The lack of such differentiation has led to substantial confusion at the international level about what land clearance actually means.
Key points raised in public submissions
7.6Several submissions noted that land clearance was recognised as one of the greatest threats to biodiversity in both the 2001 and 2006 State of Environment Reports[3] and that the current version of the Act has had little effect on reducing land clearance, despite land clearance being listed as a key threatening process since 2001.[4]
7.7Consistent with this view a significant number of submissions argued that land clearance should be included as a matter of NES under the Act. Some of these submissions noted the significant threat to biodiversity posed by land clearance,[5] as well as the risks of increasing salinity and declining water quality.[6] Submissions also noted the greenhouse gas emissions and potential climate change impacts caused by land clearance.[7]
7.8Santos’ submission contended that ‘[i]nclusion of a land-clearance trigger in the Act is not necessary and would duplicate efforts by the States to manage land-clearance activities and protect native vegetation.’[8] Other submissions, however, argued that State laws are ineffective poorly enforced[9] and lack uniformity[10].
7.9It was suggested that the EPBC Act apply to all proposed actions that involve clearance of an amount of native vegetation over a threshold specified in the Act. This would mean that assessment and approval would automatically be required for all such actions – removing the need to establish, for example, that the proposed action would be likely to have a significant impact on a listed threatened species to trigger the Act. For example, The Green Institute recommended that the Act:
be amended to incorporate a trigger making land clearing and native forest logging controlled actions for the purpose of limiting greenhouse gas emissions. The trigger should be actions causing emissions (not net emissions) exceeding 25 Kt CO2-e in a year or clearing of 10 hectares of native vegetation on a parcel of land over a five year period, whichever is the lesser.[11]
7.10Several submissions[12] also supported the insertion of a three-part land clearance trigger the same as, or similar to, that proposed by the Australian Network of Environment Defenders’ Offices (ANEDO) in its submission:
(i)the clearing of native vegetation over 100 ha in any two year period;
(ii)the clearing of any area of native vegetation which provides habitat for listed threatened species or ecological communities, or listed critical habitat; and
(iii)a schedule of activities that would trigger the Act regardless of the hectares proposed to be cleared (for example, major coastal resort developments)’.[13]
7.11The WWF submission further proposed that the assessment of actions caught by this trigger should consider: the impacts on water quality, topsoil, biodiversity generally (e.g. removal of wildlife corridors, biodiversity hotspots, centres of endemism, drought refuges and migratory species habitats) and the potential for increases in dryland salinity.[14]
7.12The W WF submission also suggested that where States and Territories are failing to halt land clearance, the Australian Government should use its bilateral agreements with those States and Territories, and Bioregional Plans within those States and Territories, to help prevent land clearance.[15]
Senate inquiry into the operation of the EPBC Act
7.13The Senate Committee noted that, of the proposals to add triggers to the Act, land clearance was one of the most prominent.[16]
7.14The Report highlighted several arguments made by submitters with respect to land clearance and its regulation under the EPBC Act. For example, ANEDO’s submission to their inquiry noted that the consequences of land clearance:
include the destruction of biodiversity habitat, degradation of soil, degradation of water quality, increased salinity, release of greenhouse gas emissions… [and] while some States have legislation regulating land clearing, ANEDO considered the Commonwealth should have a role in assessing impacts of significant clearing proposals.[17]
7.15One of the recommendations of the Senate Committee, set out in its report, was that:
having regard to the conclusions of the review of the National Framework for the Management and Monitoring of Australia’s Native vegetation currently underway, and in light of advice from the Threatened Species Scientific Committee, the government should consider including a land clearing trigger in the Act.[18]
7.16The Senate Committee also noted that:
At all stages, greenhouse gas emissions and land clearing have been the dominant issues of concern. The committee is in principle supportive of the objective of broadening the scope of operation of the Act in these areas. There are some issues that must be dealt with in seeking the most appropriate way in which to proceed.[19]
Discussion of key points
7.17Land clearance is recognised as an ‘ongoing threat to Australia’s environment.’[20] A significant amount of Australia’s native vegetation has been cleared since European settlement. The 2006 State of the Environment report estimating that, while 87 per cent of Australia’s original vegetation cover remains,
its condition is variable and masks an underlying issue of the decline of many ecological communities. Some ecological communities occupy less than 1 per cent of their original extent as a result of clearing for agriculture, and many others are highly fragmented.[21]
Government roles and responsibilities for land clearance in Australia
7.18Legislation regulating land clearance, or clearance of native vegetation, exists in every State and Territory. under State and Territory legislative arrangements, there are several provisions that allow the clearance of regrowth vegetation under certain circumstances, such as clearance to maintain existing cleared areas for pasture, cultivation or forestry,[22] or land that has been ‘consistently used for agricultural purposes as part of a commercial enterprise since the land was lawfully cleared’.[23] It must be noted that these exemptions differ between jurisdictions and remain in flux – for example, Queensland has recently placed a moratorium, in part operating retrospectively, on clearance specific types of regrowth vegetation.[24]
7.19Commonwealth responsibilities for managing land clearance in Australia are currently set out in the Native Vegetation Framework, which notes that the Commonwealth is:
responsible for coordinating a national approach to natural resource management, environmental and industry- development issues which are of national and international significance. The state of Australia’s native vegetation is one such matter.
7.20However, despite government regulation of land clearance activities for a number of years, land clearance remains a significant threat to biodiversity around Australia.[25] While land clearance rates have declined in recent years, submissions to both the Senate Committee inquiry and to this review have sent a strong message about the need to reduce land clearance in Australia. The map below shows areas in which land clearance is a current threat to species around Australia.
Regions where native vegetation clearing threatens species.[26]
7.21On the basis of the threat that land clearance poses to species, biodiversity and ecosystems across Australia, there are arguments for better regulation of land clearance. Not least of these is the view that the impacts of continued land clearance on the environment are a nationally significant issue. There is less agreement in terms of the best way to tackle this issue or whether and what should be covered by Commonwealth regulation. There is an increasing recognition also of the greenhouse gas emissions impacts of land clearance (for more discussion of land clearance and climate change, see Chapter 8).
7.22In addition, climate change impacts are likely to lead to species moving to find adequate habitat.[27] The Commonwealth Scientific and Industrial Research Organisation (CSIRO), in its recent report Implications of Climate Change for Australia’s National Reserve System: A Preliminary Assessment, discusses potential climate change impacts on species habitat:
A critical component of conserving species is the availability of suitable habitat. Species and ecosystems will change in their requirements and distributions, therefore ensuring that widespread and diverse habitat is protected in the future will be essential for conserving species. …
There is also a need to manage habitat for specific conservation outcomes (facilitating change or maintaining suitable habitat for vulnerable species) and to reduce threats. Habitat protection may also be required to maintain the connectivity required for various ecological processes that occur at landscape scales, including the movement of species in response to disturbance and climate change. However, in some situations habitat connectivity will facilitate processes with undesirable outcomes, including the spread of fire and the expansion of species that may exclude threatened species. Protection of isolated areas of habitat, as well as well-connected ones, would reduce those risks.[28]
7.23The potential need for providing habitat corridors across jurisdictional boundaries and the need to look at habitat diversity at a national scale (discussed further in Chapter 13) also lends strength to the argument that the EPBC Act should contain a better mechanism for managing the loss of nationally significant vegetation.
Referrals for land clearance activities
7.24As noted above, the ANAO raised concerns over the low number of referrals under the EPBC Act for the agricultural sector. Concerns were also raised in the 2006 State of the Environment Report about the increasing impact of land clearance for urban development purposes, particularly in coastal areas.[29] This issue is discussed further in Chapter 5.
Actions potentially covered by listing land clearance as a matter of NES
7.25If, for example, the ANEDO’s suggested version of a land clearance ‘trigger’ was adopted, the following actions would require assessment and approval under the Act:
(i)all actions involving clearing of over 100 ha of native vegetation in any two year period; and
(ii)all actions involving clearing of any area of native vegetation that provides habitat for listed threatened species or ecological communities, or listed critical habitat; and
(iii)a schedule of activities that would trigger the Act regardless of the hectares proposed to be cleared (for example, major coastal resort developments).[30]
7.26While adoption of an ANEDO-type approach of setting numerical thresholds would provide certainty for proponents, this approach could potentially cover a very broad range of actions are likely to already be regulated under existing State or Territory frameworks and could thereby lead to unnecessary duplication of existing State or Territory processes. This would also represent a significant expansion of the Commonwealth’s role. The adoption of such a trigger would also be a departure from the original architecture of the Act which was based on an ‘impact triggers’ approach rather than a ‘specified activity’ approach. The Explanatory Memorandum to the Act noted that the mechanisms for Commonwealth involvement in environment protection prior to the EPBC Act were:
developed in an ad hoc and piecemeal fashion. Accordingly, the various Acts are not integrated within an appropriate conceptual framework. This limits the ability of the existing legislation to secure good environmental outcomes in an efficient manner.[31]
7.27But arguably the impact triggers approach also has its drawbacks – failing to cover actions which cumulatively, if not individually, are of national environmental significance. Whether land clearance is a matter of NES to be regulated in the EPBC Act is a significant point of contention – currently, it is conceptualised by the Act as a process, not a matter protected. As noted elsewhere in this report, one the great attractions of moving to a specified activity approach is that it may avoid the indeterminacy – and subjectivity – of the significant impact test.
[1] Natural Resource Management Ministerial Council, National framework for the management and monitoring of Australia’s native vegetation (2001) (the Native vegetation Framework), at 14 May 2009.
[2]Native Vegetation Act 1991 (SA) s.3.
[3] See e.g. Submission 189: Australian Network of Environment Defender’s Offices, p.22.
[4] See e.g. Submission 188: Conservation Council of New South Wales, p.3.
[5] See e.g. Submission 030 North East Bioregional Network, p.1.
[6] See e.g. Submission 151: Southern Rivers Catchment Management Authority, p.4.
[7] See e.g. Submission 190: Friends of the Earth (Australia), p.5.
[8] Submission 067: Santos, p.3.
[9] Submission 076: Sunshine Coast Environment Council, p.4.
[10] Submission 190: Friends of the Earth (Australia), p.5.
[11] Submission 162: The Green Institute, p.6.
[12] See e.g. Submission 202: Law yers for Forests, p.15.
[13] Submission 189: Australian Network of Environment Defender’s Offices, p.27.
[14] Submission 181: WWF, p.10.
[15] Submission 181: WWF, p.10.
[16] The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: First report (2009) (Senate Committee Report) at 4 May 2009, para [2.35].
[17] Senate Committee report, para [2.49].
[18] Senate Committee report, para [2.58].
[19] Senate Committee report, para [2.53].
[20] Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the Environment 2006 (2006), Chapter 8.1. Available at:
[21] Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the Environment 2006 (2006), Chapter 8.1.
[22]Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) reg.5, Item 14.
[23]Native Vegetation Regulations 2003 (SA) reg.5(1)(zfa).
[24]Vegetation Management (Regrowth Clearing Moratorium) Act 2009 (Qld).
[25] Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the Environment 2006 (2006), Chapter 5.2.
[26] Australian Natural Resources Atlas (2002)
[27] Michael Dunlop and Peter Brown, Implications of climate change for Australia’s National Reserve System: a preliminary assessment (2008), pp. 9-10.
[28] Michael Dunlop and Peter Brown, Implications of climate change for Australia’s National Reserve System: a preliminary assessment (2008), p.10.
[29] See e.g. Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the Environment 2006 (2006), Chapter 5.2.
[30] Submission 189: Australian Network of Environment Defender’s Offices, p.27.
[31] Explanatory Memorendum, Environment Protection and Biodiversity Conservation Bill 1999, p.6.