Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
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
7.1
The Act deals with land clearance in a number of ways.
7.2
As 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.
7.3
Land 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
7.4
The 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
7.5
1
2
This 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.
Natural Resource Management Ministerial Council, National framework for the management and monitoring of Australia’s native
vegetation (2001) (the Native vegetation Framework), http://www.environment.gov.au/land/publications/nvf/index.html at 14 May 2009.
Native Vegetation Act 1991 (SA) s.3.
Key points raised in public submissions
7.6
Several 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
7.7
Consistent 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
7.8
Santos’ 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 uniformity10.
7.9
It 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
7.10
Several submissions12 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
7.11
The 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
7.12
The 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
7.13
The Senate Committee noted that, of the proposals to add triggers to the Act, land clearance was one of
the most prominent.16
See e.g. Submission 189: Australian Network of Environment Defender’s Offices, p.22.
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)
http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4 May 2009, para [2.35].
3
4
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
7.14
The 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
7.15
One 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
7.16
The 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
7.17
Land 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
7.18
Legislation 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
7.19
Commonwealth 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 industrydevelopment issues which are of national and international significance. The state of Australia’s native
vegetation is one such matter.
7.20
However, 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
17
Senate Committee report, para [2.49].
Senate Committee report, para [2.58].
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: http://www.environment.gov.au/soe/2006/publications/report/land-1.html
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)
18
19
7.21
On 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).
7.22
In 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
7.23
The 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
7.24
As 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.
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.
27
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Actions potentially covered by listing land clearance as a matter of NES
7.25
7.26
If, 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
While 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
7.27
30
31
But 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.
Submission 189: Australian Network of Environment Defender’s Offices, p.27.
Explanatory Memorendum, Environment Protection and Biodiversity Conservation Bill 1999, p.6.