• Specific Year
    Any

Marsden, Simon --- "A Critique of Australian Environmental Law Reform for Strategic Environmental Assessment" [2013] UTasLawRw 15; (2013) 32(2) University of Tasmania Law Review 276


A Critique of Australian Environmental Law Reform for Strategic Environmental Assessment

SIMON MARSDEN [∗]

Abstract

This article critiques the recommendations for national reform of strategic environmental assessment (SEA) with reference to the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Australian Government response, and national and international experience. While analysis of the recommendations suggests they generally accord with best practice, the Australian Government response has been slow, ad hoc and indecisive. It concludes that prospects for comprehensive national environmental law reform in this area are therefore poor, with the recent change of government and policy indication suggesting the process may well have stalled or been redirected further to the Council of Australian Governments deregulation agenda.

I INTRODUCTION

Strategic environmental assessment (‘SEA’), or ‘strategic assessment’ as it is known in Australia, is a process used to analyse the environmental impacts of policies, plans and programs, in order to expedite the evaluation of the environmental impacts of projects, the process for which is commonly known as environmental impact assessment (‘EIA’).[1] Alternatives and cumulative effects are more appropriately considered in SEA than EIA, and other benefits include avoidance of duplication, and improved governance.[2] After an extensive review of the Environment Protection (Impact of Proposals) Act 1974 (Cth) (‘EP (IP) Act’) in 1999, which examined international SEA experiences,[3] the Environment Protection and Biodiversity Conservation Act 1999 (‘EPBC Act’) came into force, with provisions formally introducing SEA nationally for the first time in Australia.

In the first decade of experience, most SEA applications were in the fisheries sector, mainly because a specific provision required these assessments.[4] While they were largely successful, criticism of the general enabling provision[5] brought law reform in 2006 to encourage the referral of strategic proposals to the Commonwealth environment department for assessment.[6] As a result, various assessments were begun, including most controversially of the plan for a liquefied natural gas (‘LNG’) hub precinct at James Price Point to process the resource from the Browse Basin of Western Australia.[7] The proponent has since withdrawn its application prior to any decision from the Australian Government, although an offshore solution is now being sought.[8] The initial withdrawal was heralded with much fanfare from environmental opponents who were concerned about the impacts on the Kimberley coast and offshore.[9] Other assessments were of a plan for urban development in the Molonglo Valley in the ACT (2008), a program to revise Melbourne’s urban growth boundary (2009), and development of growth centres in western Sydney (2009), all now completed.[10]

At the end of 2009, the Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was released (the ‘Hawke Report’).[11] This followed an inquiry by the Australian Senate into the EPBC Act which was concluded the same year and recommended the Independent Review (‘Senate Report’).[12] Recommendation 1(3) of the Hawke Report suggested increasing the focus on strategic approaches to environmental management, potentially by restructuring the Act to incorporate a new Part 3 specifically dealing with strategic and landscape approaches to environmental protection, which would consolidate existing approaches to SEA (currently in Pt 10), bioregional planning (currently in Part 12),[13] and conservation agreements (currently in Pt 14). This article critiques these suggested reforms and the Australian Government response to them in the light of international and national experience with SEA. It first briefly provides an overview of current procedures before reviewing the background, drivers and general recommendations for reform. It next examines more specific recommendations for procedural reform, and then analyses the response of the previous Australian Government to these recommendations. Some concluding comments follow at the end with respect to the recent change of federal government and the implications for the reform process.

II CURRENT NATIONAL PROCEDURES FOR SEA IN AUSTRALIA

SEA requirements in the EPBC Act are largely discretionary and there is a lack of detailed procedure.[14] If strategic proposals are likely to have significant environmental effects upon matters of national environmental significance (MNES) – such as a listed World Heritage Area or Ramsar site – then agreement between the proponent (which may be a State Government or other stakeholder) and the Australian Government can enable an SEA to be carried out in accordance with the EPBC Act, potentially avoiding individual project level approval at a later time. [15] If agreement is not reached, proponents will need to refer each and every project proposal that may have these affects for assessment.[16] State legislation may still be applicable, and require the consideration of matters of ‘state significance’, whether identified explicitly or not, and in the case of the Western Australian legislation applied to the Browse Basin LNG facility referred to above, may also simplify the later assessment of what are known as ‘derived proposals’.[17]

Under certain circumstances the federal Minister may therefore enter into an agreement with a proponent for an SEA to be prepared.[18] Draft terms of reference (ToR) for the preparation of the SEA report are part of each of these agreements and must be made available for public comment.[19] The ToR will then be revised to incorporate any comments before submission to the Australian Environment Minister.[20] A draft report must then be prepared further to the approved ToR,[21] which must also be publicly available, allowing for comments within no less than 28 days.[22] A revised draft report is next prepared taking the comments into account,[23] and a final Report must then be submitted to the Environment Minister[24] who must make recommendations concerning the plan or program.[25] Finally, the Australian Environment Minister will endorse the plan if satisfied that it adequately addresses the impacts, the recommended modifications to the plan have been made, and the endorsement criteria have been satisfied.[26]

The endorsement criteria form part of each agreement and are designed to establish clear rules for Ministerial decision making to minimise potential challenges.[27] They emphasise that the EPBC Act allows the Minister to approve the taking of actions or classes of actions (such as projects) in accordance with an endorsed policy, plan or program,[28] with the effect that approved actions or classes of action do not need further Ministerial approval. When the Minister decides whether to endorse the policy, plan or program, the Minister must however consider all MNES,[29] economic and social matters,[30] and take into account the principles of ESD.[31]

The SEA process differs from that used in other jurisdictions. In Australia, while the definition of SEA is generally similar, there are differences in purpose and approach which have been clear for some time. In regard to the objective of SEA, the EPBC Act is broader and does not make this explicit, which is very different to legislation elsewhere, in particular the European Union (EU) SEA Directive.[32] The link between SEA and EIA through the process known as ‘tiering’ or ‘nesting’, which in Australia may avoid subsequent project assessment completely, is consequently rather different to the situation in the EU, where SEA is applied to plans and programmes for listed sectors which set the framework for the future development consent of projects under EIA.[33] The proposals subject to the procedure are also different, with detailed frameworks for mandatory and discretionary application as appropriate.[34] Most significantly however, is the purpose of SEA as understood in the Australian context, which for many is viewed as a mechanism for fast-tracking proposals, as indicated in submissions to the Hawke Report as noted below.

While the purpose is overwhelmingly to streamline the evaluation of individual project proposals linked with the strategic proposal, this does not mean that a related EIA is limited to matters not already assessed in the SEA, rather that there will be no subsequent EIA at all. This is because under the EPBC Act, the Australian Environment Minister ‘may approve the taking of an action or class of actions in accordance with an endorsed policy, plan or program’.[35] Unfortunately the language is clumsy, as it states that ‘an assessment be made of the impacts of actions under the policy, plan or program’[36] This does not mean an EIA will be carried out however, as the ‘impacts of actions under’ the policy, plan or program are not the impacts from a project proposal but impacts of the policy, plan or program, which are assessed in the SEA.

III BACKGROUND, DRIVERS AND GENERAL RECOMMENDATIONS FOR REFORM

Drawing attention to the ‘ecosystems approach’ adopted by Parties to the Convention on Biological Diversity,[37] (and indeed other relevant treaties to which Australia is a Party such as the World Heritage Convention),[38] the Hawke Report notes that ‘A recurring theme in public comments throughout the Review has been the Act’s perceived failure to manage adequately the cumulative impacts of actions or threatening processes (including climate change) at a landscape or ecosystem scale.’[39] This is noted also later,[40] in a section concerned with individual project approvals.[41] An ecosystems approach to biodiversity conservation is therefore recommended to assist with this and other recognised problem areas,[42] specifically to amend the Act to include ‘ecosystems of national significance’ as a new MNES,[43] together with vulnerable ecological communities.[44]

In addition to avoidance of cumulative effects, which is addressed further in relation to SEA[45] and regarding EIA,[46] the Hawke Report emphasises the continued role of the Australian Government in relation to MNES,[47] the extension of which into other areas is also considered,[48] and reference is made to support from the Council on Australian Governments (‘COAG’) and State governments for SEA in order to also save time (and cost), provide certainty for proponents and local communities, avoid unnecessary assessments and improve environmental protection. The benefits of SEA are clearly recognised by public submissions to the Review, State governments, and proponents.[49] COAG has agreed that SEA should be used ‘as a means of harmonising environmental regulation across the federation’,[50] and has,

agreed to the identification of opportunities for strategic assessments under the Environment Protection and Biodiversity Conservation Act 1999 to avoid unnecessary delays in development approval processes. Strategic assessments are conducted over an entire region and provide a mechanism to approve classes of development which have been assessed under this process, rather than conducting individual assessments and approvals. Strategic assessments provide certainty for development proponents and reduce duplication, while providing greater protection for the environment.[51]

Further recommendations in the Hawke Report for greater use to be made of SEA include Recommendation 4(1) concerning the national approach,[52] and in particular Recommendation 6(1) concerning regional approaches,[53] that the Australian Government:

(a) expand the role of strategic assessments and bioregional plans so that they are used more often; and

(b) strengthen the process for creating these plans and undertaking these assessments, so they are more substantial and robust.

A number of practical suggestions for reform are made which are extremely significant in order to meet the objectives of Recommendation 6(1).[54] A combination of regional tools is proposed so that the Australian Government can address ‘landscape scale’ effects, which include SEA and bioregional plans. These approaches are designed to ‘guide priorities and focus Australian Government efforts on practices that provide the most effective and efficient means of environmental protection’,[55] and are supported by many, including the Commonwealth Scientific and Industrial Research Organisation (‘CSIRO’), which emphasised the importance of the ecosystem approach.[56] Others focus on the time and cost savings that SEA would bring to developers, such as the Urban Development Institute of Australia, which stressed the avoidance of duplication between government processes,[57] although the Hawke Report comments that EIA will remain ‘where strategic assessments and bioregional plans are not in place and where proponents wish to undertake development that is not covered by accredited plans.’[58]

Another driver for expanding the role of SEA is the wish to expand land use planning beyond the urban setting,[59] and encourage greater synergies with environmental and natural resources planning in an effort to ensure that regional approaches such as SEA and bioregional planning become the rule rather than the exception to it.[60] Although the Hawke Report comments ‘strategic assessment and bioregional plans have potentially different roles’ and that the ‘distinction has not been sharply drawn to date’, it fails to recommend explicitly that bioregional plans should also be subject to SEA. Bioregional plans are also criticised in the Hawke Report for having failed to integrate an ecosystem-based and multiple-use marine management system. This is due in part to the presence of a weak out of date Oceans Policy and the absence of a national binding Oceans Act,[61] and the fact that the marine protected area (‘MPA’) provisions of the Act have a terrestrial focus.[62] It is also because of the focus on the development of the National Representative System of MPAs, and because the enforcement and compliance provisions of the Act do not apply to them.[63]

The only references to SEA of environmental management plans (of which bioregional plans are also a type) are made in relation to the proposal for ‘ecosystems of national significance’, and a potential requirement for SEA for all water plans which authorise actions that will or are likely to have a significant impact upon a MNES.[64] In comparing management planning requirements for listed Ramsar wetlands and World Heritage areas[65] the Hawke Report comments ‘These management plans would be good candidates for strategic assessment under the Act’.[66] In some circumstances however there has been a failure to prepare these plans,[67] and as such Recommendation 34 is made for the Act to be amended to enable the Australian Environment Minister to initiate preparation of these plans and require consultation as part of the process. What are entirely different are environmental management plans which are often stipulated as a condition of project approval,[68] and it would be helpful if these were given a different name from plans for protected areas, (such as environmental mitigation and monitoring plans), to avoid this confusion.

The environmental assessment of environmental management plans for protected areas is an approach that has also been supported elsewhere and is to be strongly recommended.[69] It is also an approach that has been taken up to an extent in the Australian States,[70] and water planning has some synergies with fisheries planning to which the EPBC Act has been extensively applied to date.[71] Recommendation 40 is that fisheries assessments are streamlined into a single assessment framework for both Commonwealth and State managed fisheries and the same is also arguably applicable for water issues.[72] Several recommendations are hence made in respect of applying SEA to water plans, such as amendment of the EPBC Act so the Australian Environment Minister can make agreements with the person responsible for the adoption or implementation of the water plan that authorises actions that may impact upon MNES. This could occur at the time of the plan being made, reviewed or for all areas that do not have plans.[73] If the Basin Plan under the Water Act 2007 were itself strategically assessed as recommended, then water plans prepared under the Basin Plan could be endorsed to avoid further assessment.[74] These Recommendations are consolidated in Recommendation 9. Responding to concerns about climate change is a part of this, which is addressed by Recommendation 10 proposing that the Act be amended to insert a requirement for cost-effective climate change mitigation opportunities as part of SEA and bioregional planning processes, which would include water.

IV SPECIFIC RECOMMENDATIONS FOR REFORM OF EXISTING PROCEDURES

To increase the application and use of SEA in Australia, as well as providing for targeted accreditation of possible actions under the strategic proposal, such an individual projects, there is a fundamental need for safeguards to be built into the process, for example by increasing procedural provisions and improving transparency through greater public involvement. The process should begin early in the formulation of the strategic proposal, alternatives must be addressed, and it must be well supported by information and public participation.[75] These are matters that also have relevance to the assessment of project proposals, for example the consideration of alternatives is subject to Recommendation 26 of the Hawke Report to confer power on the Australian Environment Minister to request information on alternatives.

The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters has been the greatest international influence upon the amendment of environmental legislation to incorporate procedural rights.[76] While not applicable in Australia, Lambropoulos makes a strong case for it in connection with Australia,[77] as do others in the global literature.[78] It has had a major influence on the development of both the SEA Directive[79] and SEA Protocol,[80] particularly in the area of public participation, and in connection with both project and strategic proposals.[81] There is furthermore significant potential for the Aarhus Convention to become a global treaty, which is a trend noted in relation to two other treaties that have been promoted by the same sponsor to the Aarhus Convention, the United Nations Economic Commission for Europe (UNECE).[82] If this happens, Australia could choose to ratify the treaty.

As indicated above, accreditation of actions under the strategic proposal after the SEA process is complete is designed to avoid duplication of assessment processes. In WA as noted these are referred to as ‘derived proposals’,[83] and in some jurisdictions individual project assessments themselves are expedited by making reference to earlier project assessments, such as in Hong Kong.[84] In another Australian jurisdiction, New South Wales, a comparable process existed in relation to Biodiversity Certification under the Threatened Species Conservation Act 1995 (NSW).[85] Development consistent with a planning instrument that has been bio-certified did not therefore previously need further approval relating to biodiversity under the Environmental Planning and Assessment Act 1979 (NSW).[86]

Recommendation 6(2)(b) suggests amendment of the Act for strategic assessments to:

(i) specify mandatory required information for strategic assessments;

(ii) insert an ‘improve or maintain’ test for the approval of a class of actions in accordance with an endorsed plan, policy or program;

(iii) enhance provision for public engagement; and

(iv) create a ‘call in’ power for plans, policies and programs likely to have a significant impact on matters of National Environmental Significance, and amend the term ‘action’ to incorporate these plans, policies or programs.

Recommendation 6(2)(b)(i) is designed to match the information requirements for EIA, and it is suggested that provision be made for this within the existing Regulations.[87] At the present time, as seen above in relation to the SEAs in the ACT, Vic and NSW, the only requirement is for the development of draft ToR and a draft report. Minimum requirements for spatial plans recommended by the Hawke Report are for collation of reasonably available information, identification of MNES and establishment of objectives, examination of options to minimise impacts on protected matters and retain ecological integrity, analyse effects from alternatives, describe mitigation measures and expected benefits, and describe adaptive management approaches in the strategic proposal.[88] It is also suggested that formal guidelines should be established to direct SEA, building on the SEA endorsement criteria which are currently a common part of the assessment process,[89] as seen above in relation to the agreements entered into with the ACT, Vic and NSW.

Recommendation 6(2)(b)(ii) is designed to provide a stronger test for deciding whether or not to approve taking actions in accordance with the endorsed strategic proposal. The ‘improve and maintain’ test operates in NSW in relation to biodiversity certification, and it is proposed that a similar test is applied in relation to SEA’s which may authorise impacts on MNES to ensure that biodiversity integration is not adversely affected, but is rather improved to take account of the significant degradation of a large part of the Australian environment.[90] The test would operate alongside the endorsement criteria above, and it has also been suggested that the Australian Environment Minister should also be obliged to have regard to other matters, including the SEA report, any report by an expert panel and any public submissions.[91] What is further suggested is that the Australian Government should in some circumstances assess environmental effects that fall outside MNES, which were at issue in the assessment fiasco of the Gunns Pulp Mill.[92] In this way, as the Australian Government assesses all effects in relation to Australian Government actions or land, so it is proposed that in certain circumstances it may be appropriate for matters that fall outside of existing powers to be assessed in order to provide for more holistic decision making.[93] Recommendation 25 is to this effect, making three possible alternative suggestions for reform.

Improvement to existing provisions for public participation are the focus of Recommendation 6(2)(b)(iii), recognising that SEAs are likely to be more complex than EIAs and hence require more time and consideration to be given to them, especially again if they are to endorse action taking under them. The Melbourne SEA process has shown that environmental NGOs require more time for consultation on the draft report,[94] and hence the period for comment on the draft report should be extended to 60 business days. Other forms of early engagement, including community meetings and information sessions, are also recommended.[95] The Report deals specifically with public participation and other means of improving the transparency of the process,[96] with a recommendation made that the Act be amended to include public participation as an object of the Act.[97] Improvement to the review mechanisms and access to the courts is also vital to ensure such provisions have teeth and Recommendations 47, 48, 49, 50, 51, 52 and 53 deal with these matters including that the Government consider opening up the controlled action and / or assessment approach decisions in the Act to merits review, extending the definition of legal standing, avoiding undertakings as to damages, prohibiting orders for security of costs in public interest proceedings, and allowing for interpretations of whether a case is a public interest proceeding or not.

Recommendation 6(2)(b)(iv) is for the Minister to have a call-in power for strategic proposals which are likely to significantly affect protected matters, so that agreement with another government is not needed. Other specific provisions concerning Ministerial decision making are also included.[98] A call-in power would help improve the uptake of the process, which currently depends entirely upon this agreement being reached between the Australian Environment Minister and the proponent, which is most likely to be a State government, although it can also be a private corporation or community organisation. The Australian Government would have power to do this because such matters fall within its constitutional powers, and the environment would be better protected as the call-in power could operate much faster than reaching agreement with a State.

Interestingly, there is no suggestion made that the Australian Government could simply require an SEA to be prepared in relation to MNES, which would also be possible within its constitutional powers for the same reasons. What is proposed, however, is that the term ‘action’ be amended to include policies, plans and programs in the definition. This is rather unfortunately contradicted later when it is stated confusingly that: ‘Changes to the definition of action are unlikely to provide material environmental benefits and would likely lead to duplication and delay.’[99]

V AUSTRALIAN GOVERNMENT RESPONSE TO RECOMMENDATIONS OF HAWKE REPORT

The previous Australian Government responded to the Hawke Report in 2011[100] and to the Senate Report in the same year.[101] As the Senate Report does not deal with SEA in any detail and is in any event taken account of in the Hawke Report, this section is focused upon the response to the Hawke Report.[102] To date however, there has been no comprehensive legislative reform of the EPBC Act, although this was the response of the Australian Government to the suggestion for a new ‘Australian Environment Act’ in Recommendation 1 of the Hawke Report. SEA Guidance has however recently been made available,[103] yet the only substantive reform of the EPBC Act since has been the introduction of a bill to the House of Representatives add a new MNES to deal with the concerns in relation to coal seam gas (CSG) development and to coal mining more generally,[104] and for a two year moratorium on aquifer drilling.[105] The environmental effects upon groundwater of these activities have raised major concerns for farming communities and environmental groups and the introduction of a trigger for these activities is designed to ensure Australian Government assessment and approval is obtained in addition to any state regulation. Encouragement of proponents of these developments to undertake a comprehensive SEA may however have been a more precautionary approach to have taken.

Another amendment to the EPBC Act before the Senate prior to the September 2013 election also proposed introducing a moratorium, in this case in respect of development in and around the Port of Gladstone impacting the Great Barrier Reef World Heritage Area (‘GBRWHA’), [106] and this was a key part of the previous Australian Government’s response to the concerns raised by the World Heritage Committee last year which requires a comprehensive SEA to be carried out for consideration in 2015.[107] The site visit by this international Committee was and indeed remains a major embarrassment to Australia, and if Australia is to avoid having the GBRWHA listed on the ‘in danger’ list of the World Heritage Convention, the SEA in preparation must fully address and deal with the concerns of the Committee.[108]

Nonetheless, the Australian Government agreed in substance generally to Recommendation 6(2) of the Hawke Report, which calls for amendment of the EPBC Act in relation to SEA. Commitments have furthermore been made to shift from individual project approvals to strategic approaches and for streamlined assessment and approval processes.[109] The specific recommendations to specify mandatory required information for SEAs,[110] to enhance provision for public engagement,[111] and to assess the performance of accredited systems,[112] are all accepted and will be significant reforms if implemented. The Government Response to Recommendation 40 of the Hawke Report, which recommends a single SEA framework for Australian and State Government managed fisheries, is furthermore an in principle agreement to this framework.

Since the Hawke Report and Senate Inquiry, a number of SEAs have begun. These include: Developing the Mount Peter Master Planned Area in Queensland (2010); Fire Management Policy in SA (2010); a Water Access Program in Tasmania (2010); a Plan for the Protection of Matters of National Environmental Significance in the Perth and Peel Regions, WA (2011); Developing Heathcote Ridge, West Menai, NSW (2011); Urban Development at Gungahlin, ACT (2012); two Plans for Iron Ore Mining in the Pilbara, WA (2012); and as mentioned and triggered by the reactive monitoring mission of the World Heritage Committee, for developments impacting the GBRWHA (2012).[113] These are all proceeding in accordance with the existing legislation, although their number, variety of applications and range of public and private proponents is encouraging.

COAG has also taken up the matter of environmental reform, largely as part of the deregulation agenda. In 2012, it drafted a Statement of Environmental and Assurance Outcomes following a reaffirmation of its commitment to ‘high environmental standards, while reducing duplication and double-handling of assessment and approval processes’.[114] Although primarily directed towards the process of bilateral agreements between the State and Commonwealth Governments, it also emphasises ‘supporting the greater use of strategic approaches, such as strategic assessments and regional environmental plans, which will both increase efficiency and improve management of cumulative impacts’, as another opportunity to deliver environmental outcomes.[115] Although no details were given as to the extent and timing of future reform, COAG noted at the end of 2012 that ‘the Commonwealth will introduce legislative reforms to progress its response to the Hawke review of the Environment Protection and Biodiversity Conservation Act 1999 to further streamline and strengthen environmental regulation.’[116]

VI CONCLUSIONS

Recent environmental controversies in Australia related to the Tasmanian Pulp Mills project, the Murray Darling Basin Plan, the Browse Basin LNG facility, development impacting the GBRWHA, and in connection with the groundwater effects from the CSG industry in NSW and Qld, suggest a much greater role for the application of SEA in Australia. This article is a contribution to that debate in its focus on reform of the SEA requirements of the EPBC Act. It finds that experience to date has served as a powerful driver to regulatory reform, first in 1999 with the initial enactment of the statute, and second in 2006 with reform to encourage greater uptake of its provisions.

In 2013 however, following the federal election and change of government, there appears to be little prospect of further implementation of the previous Australian Government’s response any time soon, despite COAG pronouncements. If anything, the likelihood is for significant amendment to environmental assessment and approvals processes to satisfy the hunger for expedited resource extraction, particularly in Queensland.[117] For whatever reason, the delay is a failure of national environmental governance and suggests Australia remains tied to reactive responses to planning and management, as emphasised starkly by the approach to the GBRWHA. Much more needs to be done to ensure that the precautionary approach is better factored into strategic assessment and approvals processes prior to the planning of and certainly the commencement of development


[∗] BA(Hons) York, LLM Environmental Law (with distinction) Aberdeen, PhD Tasmania; Associate Professor, Flinders Law School. This article is dedicated to the memory of Dr CEP (Val) Haynes, one of the three supervisors of my PhD thesis (UTas, 1999).

[1] See Thomas B Fischer, Theory and Practice of Strategic Environmental Assessment (Earthscan, 2007); Simon Marsden, Strategic Environmental Assessment in International and European Law: A Practitioners’ Guide (Earthscan, 2008).

[2] Monica Fundingsland Tetlow and Marie Hanusch, ‘Strategic Environmental Assessment: The State of the Art’ (2012) 30 Impact Assessment and Project Appraisal 15.

[3] John D Court, Colin J Wright and Alasdair C Guthrie, Assessment of Cumulative Impacts and Strategic Assessment in Environmental Impact Assessment (Commonwealth of Australia, 1994).

[4] EPBC Act s 147. See Simon Marsden,’ Strategic Environmental Assessment and Fisheries Management in Australia: How Effective is the Commonwealth Legal Framework?’, in Simon Marsden and Stephen Dovers (eds) Strategic Environmental Assessment in Australasia (Federation Press, 2002) 47.

[5] EPBC Act s 146EPBC Act. See Simon Marsden, ‘SEA in Australia: An Evaluation of s 146 of the EPBC Act 1999’ [1999] GriffLawRw 23; (1999) 8 Griffith Law Review 394.

[6] John Ashe and Simon Marsden, ‘SEA in Australia’, in Barry Sadler, Ralf Aschemann, Jiri Dusik, Thomas B Fischer, Maria R Partidario and Rob Verheem (eds) Handbook of Strategic Environmental Assessment (Earthscan, 2011) 21.

[7] Commonwealth of Australia and the State of Western Australia, Section 146(1) Agreement Relating to the Assessment of the Impacts of Actions under the Plan for the Browse Basin Common-User Liquefied Natural Gas Hub Precinct and Associated Activities (2008). See also Department of the Environment, Water, Heritage and the Arts, Comparative Analysis of the Feasibility of Alternative Locations for the Development of a Liquefied Natural Gas Precinct (2009). Although the WA Government approved the proposal under its own legislation, the decision has since been declared invalid by the WA Supreme Court. See AAP, ‘West Australian Gas Project Approval Ruled Unlawful’, The Australian 19 August, 2013.

[8] The proponent has now indicated a wish for offshore processing, and the initial process has begun, see AAP, ‘No Guarantee of Offshore Browse Project, The Australian, 15 April 2013; and Author unknown, ‘Woodside Gains Federal Approval to Develop the Browse Basin Gas Field’, ABC News (Online), 3 August 2013 <http://www.abc.net.au/news/2013-08-02/browse-gains-federal-approval/4862334> .

[9] For discussion of this and the SEA of the Great Barrier Reef (GBR), see Simon Marsden, ‘Protecting Heritage on Australia’s Coasts: A Role for Strategic Environmental Assessment? (2013) 15 Journal of Environmental Assessment Policy and Management 1350014-1. The SEA of the GBR has been initiated at the request of the World Heritage Committee, which is concerned above all about the impact of development infrastructure servicing the resources sector.

[10] For full details of these and other land use planning SEA’s, see Simon Marsden, ‘Strategic Environmental Assessment in Australian Land Use Planning’ (2013) 30 Environmental and Planning Law Journal 422.

[11] Allan Hawke, Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth of Australia, 2009) (‘Hawke Report’).

[12] Senate Standing Committee of Environment, Communication and the Arts, The Operation of the Environment Protection and Biodiversity Conservation Act 1999: First Report (2009) (‘Senate Report’). On 13 March 2009, the Australian Environment Minister wrote to the independent reviewer of the EPBC Act and requested consideration of the findings and recommendations of the Senate Inquiry in the Independent Review. The recommendations of the Hawke Report were taken into account in the recommendations of the Senate Report.

[13] Bioregional planning is an approach to environmental management that focuses on the ecosystem rather than the jurisdiction that frames regional planning more generally. Both are distinct from SEA, which evaluates the negative, and possibly unintended, environmental effects from those plans, preferably while they are in preparation.

[14] EPBC Act pt 10, div 1. See generally Simon Marsden, ‘Strategic Environmental Assessment: An International Overview’ in Simon Marsden and Stephen Dovers (eds) Strategic Environmental Assessment in Australasia (Federation Press, 2002) 1, 16.

[15] Guidance has recently been made available, see Australian Government, Department of Sustainability, Environment, Water, Population and Communities, A Guide to Undertaking Strategic Assessments: Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth of Australia, 2012).

[16] EPBC Act pts 7, 8, 9 and 11.

[17] See Marsden, above n 9, 1350014-7.

[18] EPBC Act ss 146(1), 146(1A).

[19] Ibid s 146(1B)(a), or s146(1B)(b)(ii).

[20] Ibid s 146(1B)(b)(iii).

[21] Ibid s 146(2)(a).

[22] Ibid s 146(2)(b).

[23] Ibid s 146(2)(c).

[24] Ibid s 146(2)(d).

[25] Ibid s 146(2)(e).

[26] Ibid s 146(2)(f).

[27] There has been no shortage of these in an environmental context. See generally, Brian J Preston, ‘The Enduring Importance of the Rule of Law in Times of Change’ (2012) 86 Australian Law Journal 175.

[28] Further to s 146B of the EPBC Act.

[29] EPBC Act s 146F(1)(a), ss 146G-M.

[30] Ibid s 146F(1)(b).

[31] Ibid s 146F(2).

[32] European Union, Directive 2001/42/EC of the European Parliament and of the Council on the Assessment of the Effects of Certain Plans and Programmes on the Environment, Luxembourg, 27 June 2001, OJ L197/30 (‘SEA Directive’). See Art 1, where the objective is ‘to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development.’ The objective of the EPBC Act is however set out generally in s 3, which, in including social and economic factors, is broader than the focus on environmental protection.

[33] Directive 2001/42/EC, ibid Art 3(2).

[34] See Marsden, above n 1, chs 9 and 10.

[35] EPBC Act s 146B.

[36] Ibid s 146(1).

[37] Convention on Biological Diversity, opened for signature Rio de Janiero, 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (‘Biodiversity Convention’).

[38] Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature Paris, 16 November 1972, 11 ILM 1358 (entered into force 17 December 1975) (‘World Heritage Convention’).

[39] Hawke, above n 11, [1.33]-[1.34].

[40] Ibid Chapter 7.

[41] Ibid [7.28]-[7.31].

[42] Ibid [4.17]-[4.54].

[43] Recommendation 8. Potential significance of environmental effects upon a MNES is the trigger for the assessment and approvals process under the EPBC Act. Examples include listed World Heritage Areas and National Heritage Areas, of which parts of James Price Point became during the SEA of the proposed LNG facility.

[44] Hawke Report, above n 11, Recommendation 14.

[45] Ibid Chapter 3.

[46] Ibid Chapter 7.

[47] Ibid [2.6].

[48] Ibid Chapter 4.

[49] Ibid [3.34]-[3.35].

[50] Ibid [3.12].

[51] Ibid [2.19].

[52] Ibid Chapter 2.

[53] Ibid Chapter 3.

[54] Ibid.

[55] Ibid [3.2].

[56] Ibid [3.4].

[57] Ibid [3.7].

[58] Ibid [3.8].

[59] See Marsden, above n 10.

[60] Hawke Report, above n 11, [3.1].

[61] Ibid [11.77]-[11.83].

[62] Ibid [11.89].

[63] Ibid [ Ibid [3.31].

[64] Ibid [ Ibid [4.75].

[65] Ibid [9.4]-[9.7].

[66] Ibid [ Ibid [4.54].

[67] Ibid [9.40]-[9.48].

[68] Ibid [7.96]-[7.98].

[69] Simon Marsden, ‘Coordinating Strategic Environmental Assessments of Marine and Terrestrial Plans: Australian Experience in the Sub-Antarctic’, in Robin Warner and Simon Marsden (eds) Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate, 2012) 203, 206.

[70] Simon Marsden and John Ashe, ‘Strategic Environmental Assessment Legislation in Australian States and Territories’ (2006) 13 Australasian Journal of Environmental Management 205.

[71] Hawke Report, above n 11, see [11.2]-[11.28]; Marsden, above n 4.

[72] The Senate Report, Recommendation 7, suggested that the Australian Government review the interaction between fisheries assessments in the EPBC Act and Fisheries Management Act.

[73] Ibid [4.78].

[74] Ibid [4.79]. See Brendan Grigg, ‘Transboundary Environmental Governance in the Murray Darling Basin’ in Robin Warner and Simon Marsden (eds) Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate, 2012) 21, 40.

[75] Hawke Report, above n 11, [3.13], [3.39]. See Victoria Lambropoulos, ‘What Can Australia Learn From The Europeans About Public Participation? Article 6 of the Aarhus Convention and Environmental Impact Statements’ (2010) 27 Environmental and Planning Law Journal 272.

[76] Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, opened for signature Aarhus, 25 June 1998, 2161 UNTS 447 (entered into force 30 October 2001) (‘Aarhus Convention’).

[77] Lambropoulos, above n 75.

[78] See, eg, Elisa Morgera, ‘An Update on the Aarhus Convention and its Continued Global Relevance’ (2005) 14 Review of European Community and International Environmental Law 138; and Veit Koester, ‘The Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (Aarhus Convention)’, in G. Ulfstein, T. Marauhn and A. Zimmermann (eds) Making Treaties Work: Human Rights, Environment and Arms Control, Cambridge University Press, Cambridge, 2007.

[79] SEA Directive, above n 32.

[80] Protocol on Strategic Environmental Assessment to the Espoo Convention, opened for signature Kiev, 21 May 2003, unreported (entered into force 11 July 2010) (‘SEA Protocol’). See Jan de Mulder, ‘The Protocol on Strategic Environmental Assessment: A Matter of Good Governance’ (2011) 20 Review of European Community and International Environmental Law 232.

[81] Marsden, above n 1, ch 4.

[82] The Helsinki Water Convention is now a global treaty and the Espoo Transboundary EIA Convention will become so when an amendment achieves sufficient ratifications. See Convention on the Protection and Use of Transboundary Watercourses and International Lakes, opened for signature Helsinki, 17 March 1992, 1936 UNTS 269 (entered into force 6 October 1996) (‘Helsinki Convention’); and Convention on Environmental Impact Assessment in a Transboundary Context, opened for signature Espoo, 25 February 1991, 1989 UNTS 3029 (entered into force 27 June 1997) (‘Espoo Convention’).

[83] Environmental Protection Authority, Review of the Environmental Impact Assessment Process in Western Australia (2009).

[84] Simon Marsden, ‘Environmental Impact Assessment in Hong Kong: An Evaluation of Principles, Procedures and Practice Post-1997’ (2010) 13 Asia Pacific Journal of Environmental Law 115.

[85] David Robinson, ‘Strategic Planning for Biodiversity in New South Wales’ (2009) 26 Environmental and Planning Law Journal 213.

[86] Bio certification of planning instruments under Schedule 7 of the Threatened Species Conservation Act 1995 (NSW) has since been phased out. For more information on the previous process, see Gerry Bates, Environmental Law in Australia (Lexis Nexis Butterworths, 8th edition, 2013) 556.

[87] Hawke Report, above n 11, [3.44].

[88] Ibid [3.45].

[89] Ibid [3.47]-[3.48].

[90] Ibid [3.45]

[91] Ibid [3.59].

[92] See Lee Godden and Jacqueline Peel, Environmental Law: Scientific, Policy and Regulatory Dimensions (Oxford University Press, 2010) 77, 100.

[93] Hawke Report, above n 11, [7.32]-[7.50].

[94] Ibid [3.57].

[95] Ibid [3.58].

[96] Ibid Chapter 14.

[97] See also the detailed Recommendations 44, 45 and 46.

[98] Hawke Report, above n 11, Chapter 13.

[99] Ibid [7.77].

[100] Australian Government, Department of Sustainability, Environment, Water, Population and Communities, Australian Government Response to the Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth of Australia, 2011) (‘Government Response’).

[101] Australian Government Response to the Senate Standing Committee on Environment, Communications and the Arts Committee Report: Operations of the Environment Protection and Biodiversity Conservation Act 1999 (First, Second and Final Reports) September 2011.

[102] The Australian Government Response to the Senate Inquiry is in any case based on the Australian Government Response to the Review Report.

[103] See Australian Government, Department of Sustainability, Environment, Water, Population and Communities, A Guide to Undertaking Strategic Assessments: Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth of Australia, 2012).

[104] See Environment Protection and Biodiversity Conservation Act 1999 Amendment Bill 2013 (Cth), which proposes amending the EPBC Act to create a MNES for CSG and large coal mining developments which are likely to have a significant impact on a water resource and establishes penalties and offences to prohibit such action.

[105] See the Environment Protection and Biodiversity Conservation Amendment (Moratorium on Aquifer Drilling Connected with Coal Seam Gas Extraction) Bill 2013 (Cth), which would amend the EPBC Act to place a two year moratorium on aquifer drilling connected with CSG extraction and imposes penalties for any contravention. Note also the related Environment Protection and Biodiversity Conservation Amendment (Protecting Australia’s Water Resources) Bill 2011 (Cth) which proposes amending the EPBC Act to provide that mining operations require Commonwealth approval if they will have, or are likely to have, significant impact on the quality, structural integrity or hydraulic balance of a water resource; and impose penalties.

[106] See Environment Protection and Biodiversity Conservation Amendment (Great Barrier Reef) Bill 2013 (Cth), which amends the EPBC Act to prohibit developments within and outside existing port areas along the GBR coastline; implements a moratorium from 20 March 2013 on approval of developments impacting on the GBRWHA until a strategic assessment is completed and deemed adequate by the World Heritage Committee; and prohibits approval of any developments that do not deliver a net benefit to the GBRWHA.

[107] See UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage, World Heritage Committee, 36th Session, Saint Petersburg, Russian Federation 24 June-6 July 2012, Mission Report Great Barrier Reef (Australia) (N 154), 6-14 March 2012. The Australian Government provided an update to the Committee: see State Party Report on the State of Conservation of the Great Barrier Reef World Heritage Area (Australia) 2013, Property ID N154, in response to decision of the World Heritage Committee (WHC) WHC 36 COM 7B.8, Australian Government, February 2013, (Commonwealth of Australia 2013).

[108] See Simon Marsden, ‘Is the Great Barrier Reef ‘in Danger’? (2013) 28 Australian Environment Review 766. See also above n 9, 1350014-10.

[109] Government Response, above n 100, 3.

[110] Ibid 19.

[111] Ibid 20. See also Government Response, 80, 82 and 83, which agrees in part to Recommendations 44 and 45 measures to increase public participation and transparency.

[112] Government Response, above n 100, 20.

[113] For full details of each of these, see <http://www.environment.gov.au/epbc/assessments /strategic.html> .

[114] Council on Australian Governments, Statement of Environmental and Assurance Outcomes, 2013.

[115] The Senate Report, above n 71, 8. See also Council of Australian Governments, Draft Framework of Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999, July 2012, and note Environment Protection and Biodiversity Conservation Amendment (Retaining Federal Approval Powers) Bill 2012 (Cth), which amends the EPBC Act to prevent the Commonwealth from delegating the approval of proposed actions covered by bilateral agreements to a state or territory, while still allowing assessment bilateral agreements.

[116] Council of Australian Governments, Meeting – Communiqué, Canberra, (7 December 2012).

[117] Oliver Milman, ‘Queensland Pushes Tony Abbott for Urgent Approval of Mining Projects’, The Guardian, 12 September 2013.