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 9: Water Issues
9.1
Issues discussed in this Chapter relate to the management and protection of Australia’s inland waters.
Marine issues are dealt with in Chapter 15 of this report.
Key points

The Commonwealth’s current involvement in inland water issues under the EPBC Act is mainly in relation
to Ramsar wetlands, migratory birds and some aquatic threatened species.

Several submissions suggested that water extraction, use or interception be added as a new matter of
national environmental significance (NES).

Other submissions suggested that wetlands of national importance or wild rivers be listed as new matters of
NES.

The Commonwealth also plays a significant role in water management outside of the EPBC Act,
particularly through the Water Act 2007 and the National Water Initiative.

Improvements may be required to the development and implementation of management plans for Ramsar
areas.
Water extraction as a matter of NES
Current provisions of the Act relating to water use
9.2
The current provisions of the Act that relate to water are limited to the protection of Wetlands of
International Importance inscribed on the list of wetlands under The Ramsar Convention on Wetlands 1
(Ramsar wetlands). Ramsar wetlands are listed as a matter of NES, and are discussed in further detail
later in this chapter.
9.3
Any regulation of a proposed action that will use a significant amount of water under the Act will
therefore only occur if that proposed action will also impact on a matter of NES, for example, the water
extracted will have a significant impact on a listed threatened species or the ecological character of a
Ramsar wetland.
Key points raised in public submissions
9.4
Several submissions argued that existing water management frameworks are not adequately protecting
Australia’s inland water ecosystems.2 The Environment Tasmania submission noted in particular that
‘[j]urisdictional issues have been a key impediment to the creation of effective environmental
outcomes regarding water management.’3 Some submissions cited the deteriorating state of the
Coorong and Lower Lakes wetland and the Murray–Darling Basin (MDB) in general, as evidence of
the need for the Australian Government to regulate water under the Act.4\4 The Australian Network of
Environment Defenders’ Offices (ANEDO) noted its support for the Commonwealth taking an
enhanced role in water management, arguing that water management, especially in the Murray-Darling
Basin, is a ‘vital cross-jurisdictional issue’:
The Commonwealth has signalled a clear intent to become more involved in water management, especially in
the Murray Darling Basin. ANEDO supports an enhanced Commonwealth role for such a vital crossjurisdictional issue.5
9.5
The South Australian Government submission was the only State or Territory Government submission
to deal with inland water issues in detail. This submission noted that:
Water resources that are confined within State boundaries are best managed at the State level and under existing
regulatory processes. However, further consideration should be given to improve current EPBC Act
1
Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, 2 February 1971 (Ramsar
Convention).
2
See e.g. Submission 190: Friends of the Earth (Australia), p.6.
3
Submission 020: Environment Tasmania, p.4.
4
See e.g. Submission 153: The Wilderness Society, p.11.
5
Submission 189: Australian Network of Environmental Defender’s Offices, p.24.
arrangements to cover water resources that cross State boundaries, such as the Murray Darling Basin [and]
Great Artesian Basin.6
9.6
Submissions suggested that the Act does not sufficiently address water management issues associated
with actions such as pipeline construction, large-scale irrigation projects and plantation forestry and
should require Commonwealth regulation and approval. 7 It was also suggested that impacts of
development should be considered ‘in terms of the plausible changes in water availability up to the
year 2100.’8
Water use or extraction as a matter of NES
9.7
A significant number of submissions suggested that water extraction or a similar wording should be
added as a matter of NES. This new matter of NES was worded in various forms, including:

water extraction (discussed in more detail below); 9

impact of development on hydrology; 10

water interception or storage;11

prevention of land and water degradation; 12 and

unsustainable water use.13
9.8
Of the water-related matters of NES proposed, ‘water extraction’ was the most commonly discussed
proposal. Some submitters, such as Woodside Energy, argued that including further matters of NES
such as water extraction as a matter of NES would cause unnecessary ‘actual and potential duplication
and inconsistency with existing State-based regulation’ and that existing issues associated with the
implementation of the Act should be addressed before further matters of NES are introduced. 14
However, most submissions received on this topic were in favour of adding some kind of water
extraction trigger to the Act.
9.9
These submissions tended to argue for the insertion of a matter of NES that would capture actions that
involved the extraction of surface and/or ground water resources over a certain limit (for example
10,000 megalitres (ML))15 or involved the construction and operation of dams with a certain height
and/or capacity.16 It was also suggested that the matter of NES be worded to capture actions that
extracted a certain percentage of a water resource over a period of time.17
9.10
Some submissions also suggested that, in addition to actions that would use a large amount of water,
the matter of NES should be worded to capture actions that are likely to have a significant impact on
groundwater or aquatic ecosystems.18 The Conservation Council of Western Australia suggested that a
water extraction trigger be worded to particularly focus on actions ‘where catchments and resources
straddle State boundaries’.19
9.11
The ANEDO’s recommended formulation for water extraction as a matter of NES received support in a
number of submissions, such as The Wilderness Society. 20 This matter would capture the ‘abstraction
of surface and ground water resources over 10,000 ML which is likely to have a significant impact on
aquatic or groundwater-dependent ecosystems.’21 In their justification for their suggested water
extraction trigger, the ANEDO noted that:
The focus of the trigger should be on major development projects in the Murray Darling Basin. Criteria for
assessing impact should be based on interference with rivers caused by major works (such as dams over a
certain size); the extraction or diversion of volumes of water over a certain amount of that are likely to impact
upon compliance with the Murray Darling Basin Commission cap. This is consistent with the National Water
Initiative (NWI) objective to have better environmental impact assessment (EIA) for large water infrastructure.
6
Submission 199: Government of South Australia, p.24.
See e.g. Submission 020: Environment Tasmania, p.5.
8
Submission 199: Government of South Australia, p.24.
9
See e.g. Submission 173: Conservation Council of Western Australia p.4.
10
Submission 124: Magnetic Island Community Development Association, p.3.
11
Submission 191: Conservation Council of South Australia, p.11.
12
Submission 179: International Fund for Animal Welfare, p.3.
13
Submission 182: Humane Society International, p.4.
14
Submission 120: Woodside Energy, p.3.
15
Submission 190: Friends of the Earth (Australia), p.6.
16
Submission 181: WWF, p.9.
17
Submission 043: Mr Derek Fenton, p.4.
18
Submission 194: Australian Conservation Foundation, p.19.
19
Submission 173: Conservation Council of Western Australia p.4.
20
Submission 153: The Wilderness Society, p.11.
21
Submission 189: Australian Network of Environmental Defender’s Offices, p.24.
7
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
The trigger should also focus on the use of water which significantly impacts the Great Artesian Basin such as
operations by mining companies so as to ensure that the resources in the Basin remain for future generations. 22
9.12
The ANEDO’s submission also recommended that provisions be created to enable the Minister to
release environmental flows to areas in need.23
9.13
During public consultations, one mining industry stakeholder suggested that, if groundwater use or
groundwater extraction was included as a new matter of NES, care should be taken that this matter of
NES does not capture mining operations that involve groundwater formation.
Interaction between the EPBC Act and the Water Act 2007 (cth)
9.14
Several submissions noted the existence of the Water Act 2007, including the ANEDO submission,
which noted that:
it is essential that there are clear links between the Water Act and the EPBC Act to ensure environmental
considerations are fully considered and do not disappear down the gap between the two Acts. 24
9.15
The Australian Human Rights Commission (AHRC) also suggested that the EPBC Act be amended to
include the relationship between the EPBC Act and the Water Act 2007.25
Senate inquiry into the operation of the EPBC Act
9.16
In the Senate Committee’s report on their inquiry into the operation of the EPBC Act, Additional
Comments from the Australian Greens included a concern that ‘water extraction and use’ is not a
matter of NES and recommended that ‘activities involving ground water and surface water interception
and/or extraction’ be listed as a matter of NES. 26
Discussion of key points
Relationship between the EPBC Act and the Water Act 2007 (Cth)
9.17
The creation of the Water Act 2007 significantly changed the role of the Commonwealth in water
management. This Act gives the Commonwealth (through the Murray-Darling Basin Authority) a
central role in the management of water resources in the MDB. However, the Water Act 2007 mainly
applies to the catchments of the MDB. This means that the Commonwealth only plays a limited role in
water management in the 11 other water drainage divisions in Australia. 27
9.18
It was noted in several submissions that many parts of northern Australia remain undeveloped, but that,
with the continuing drought and predicted impacts of climate change on southern Australia, there
would be increasing pressure to develop northern Australian water resources. 28 The Victorian Office of
the Environmental Sustainability Commissioner argued that there should be a:
comprehensive, national system for identifying and protecting these environmental assets [in northern
Australia], which is in place before development pressure builds and ensuring a cooperative approach through
complementary, rather than conflicting, strategic policy design is crucial to protecting their biodiversity. 29
9.19
In this regard it is relevant to note that the Australian Government has created the Northern Australia
Land and Water Taskforce (NALWT). The terms of reference for the NALWT include gaining a
better understanding of opportunities for new sustainable economic development in the north that are based on
water resource availability, and the potential impact of such development on the underlying water balance and
water quality, and on the natural environment, existing water users and the broader community. 30
Submission 189: Australian Network of Environmental Defender’s Offices, pp.24-25.
Submission 189: Australian Network of Environmental Defender’s Offices, p.25.
24
Submission 189: Australian Network of Environmental Defender’s Offices, p.24.
25 Submission 193: Australian Human Rights Commission, p.5.
26
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, Additional comments from the Australian
Greens, p. 103.
27
A map and list of Australia’s drainage divisions and basins is available at: http://www.anra.gov.au/topics/water/overview/index.html
28
See e.g. Submission 145: Office of the Environmental Sustainability Commissioner (Victoria), p.5.
29
Submission 145: Office of the Environmental Sustainability Commissioner (Victoria), p.5.
30
Northern Australia Land and Water Taskforce, Terms of Reference (2008) http://www.nalwt.gov.au/tor.aspx at 22 April 2009. The
‘north’ is defined in the NAWLT’s terms of reference as the key surface and groundwater systems and basins within the Timor Sea and
Gulf of Carpentaria drainage divisions, and that part of the North East Coast drainage division north of Cairns.
22
23
9.20
The NALWT is required to identify the sustainable capacity of the river systems or drainage basins,
opportunities for sustainable economic development, the impact of development on the environment
and other water users, instruments to manage this development and recommend governance
arrangement for these water resources. 31 The NALWT is due to report in December 2009. In addition
to this work, the Northern Australia Water Futures Assessment (the Assessment) is a multidisciplinary
program with the overarching objective of providing an enduring knowledge base to inform protection
and development of northern Australia’s water resources, so that any development proceeds in an
ecologically, culturally and economically sustainable manner. The Ecological Program within the
Assessment aims to understand the key water-dependent ecological assets across northern Australia
and to gain an understanding of the risks to the values of those assets arising from changes in the
hydrological regime. The Ecological Program will pay particular attention to key catchments identified
by jurisdictions as planned development areas (including for increased development of floodplain
structures, farm dams, plantations, groundwater extraction, irrigation and for ‘water storage options’).
9.21
It is hoped that the NALWT’s report and the Assessment will help inform future decisions about
northern water resources, so that the problems being faced today associated with what was termed by
the Minerals Council of Australia as the ‘misalignment of land use planning and resource availability’ 32
are not repeated in the north.
9.22
Finally, the Basin Plan for the MDB is due to come into operation in 2011; however State/Territory
water management plans will only need to be fully compliant with the Basin Plan once current plans
expire (between 2012 and 2019). A water extraction trigger under the EPBC Act may be able to ‘fill
the regulatory gap’ between approval of the Basin Plan and establishment of new water resource plans
that must be compliant with the Basin Plan; however the introduction of a new matter of NES would be
unlikely to affect current water entitlements, as these entitlements are likely to fall under the s.43A
prior authorisation exemption in the EPBC Act 33.
Water extraction trigger
9.23
The sustainable use of water resources has gained an increasing amount of attention over the last 15
years, particularly with the ongoing drought in the southern MDB. The cross-jurisdictional nature of
many of the significant water resources such as the MDB, Great Artesian Basin and the Lake Artesian
Basin suggests that a coordinated national approach to managing these basins is desirable. The
approach taken in the arrangements set out in the Water Act 2007, where the Commonwealth creates a
plan with which State/ Territory authorities must comply in creating local water allocation plans, may
be a useful approach to follow for other major drainage basins in Australia.
9.24
However, there may still be some proposed actions whose impacts on the environment are considerable
to the point that they warrant Commonwealth regulation or management. If this is the case, one option
would be through declaring ‘water extraction’ as a matter of NES under the EPBC Act. From a
practical standpoint, proposed actions that will have or are likely to have a significant impact could
include the construction of on-farm water storages or other dams, extraction of water for mining
activities, the issuing of new water entitlements or water use for new plantation forests.
9.25
A key issue in introducing water extraction as a matter of NES would be defining what constitutes
nationally environmentally significant levels of extraction. Creating a trigger that relies on an action
taking a specific amount of water from a water resource may not be the most effective way of
determining the significance of an action. There is a significant variation in the size of water resource
areas in Australia. What constitutes a ‘significant impact’ on a water resource will therefore vary
according to the size and condition of the particular water resource in the particular circumstances of
the proposed action and in light of existing demands and other possible pressures on the resources.
9.26
It is also important to determine what it is the Commonwealth wants to protect if it is to increase its
role in water management. Australia’s international obligations are not directly concerned with
amounts of water extracted from a particular water resource – the Commonwealth is instead concerned
with potential impacts on environmental assets and aquatic ecosystems that are deemed to be of
national significance. It may therefore be more appropriate for the Commonwealth to act to protect
nationally significant environmental assets or the ecological character of nationally significant aquatic
ecosystems or water resource.
9.27
Providing protection of the ecological character of a water resource under the Act could be undertaken
in a manner similar to that which is currently taken for Ramsar wetlands (a current matter of NES
31
32
33
Northern Australia Land and Water Taskforce, Terms of Reference (2008) http://www.nalwt.gov.au/tor.aspx at 22 April 2009.
Submission 164: Minerals Council of Australia, p.83.
The ‘prior authorisation’ exemption is discussed in more detail in Chapter 5 of this report.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
discussed below), which regulates actions that are likely to have a significant impact on the ecological
character of a Ramsar wetland.
9.28
Arguably the current Ramsar wetland matter of NES may be broad enough to trigger the operation of
the EPBC Act for a substantial number of actions that are likely to have a significant impact on aquatic
ecosystems (particularly due to a consideration of an action’s downstream impacts). However, this
approach to regulating likely impacts on significant environmental assets or the ecological character of
significant aquatic ecosystems through the Ramsar wetlands ‘trigger’ is probably not the best approach
and is likely to be confusing in practice. It may therefore be more appropriate to create a new matter of
NES that relates to water extraction and use.
9.29
This new matter of NES could act to require the Minister to approve actions likely to have a significant
impact on the ‘environmental assets of a water resource’ or on the ecological character of a nationally
significant water resource. The term ‘environmental assets’ is used in the Water Act 2007 and includes
‘water-dependent ecosystems, ecosystem services and sites with ecological significance’.34 The
concept of ‘ecological character’ is currently used in relation to the protection of Ramsar wetlands
under the Act. This concept could be used to identify the attributes to be protected under the EPBC Act
for other nationally significant water resources.
9.30
While the inclusion of a new trigger in the EPBC Act for the ecological character of a nationally
significant water resource would require significant investment in determining what sites have
ecological significance, what constitutes ecosystem services and what services are critical to
maintaining or enhancing the ecological character of each particular water resource, this knowledge is
important and necessary to enable informed decisions to be made about the sustainable use of
Australia’s water resources into the future. As it is part of the objects of the Act to promote the
principles of ecologically sustainable development, including the principles of intergenerational equity,
it may be useful to examine the impacts of actions on the environmental assets of a water resource. 35
Considerations of water use in the EIA process
9.31
When determining whether a proposed action is likely to have a significant impact on a matter of NES,
and therefore requires consideration under the EPBC Act, the potential impacts likely to be generated
by the action, including indirect consequences of the action, must be considered. The downstream
impacts of a proposed action are a type of indirect impact under the EPBC Act. 36 As has been noted in
several submissions, determining the extent to which downstream impacts must be considered is a
challenge for proponents.37 In a water context, it is difficult to determine what is considered
downstream for the purposes of the EPBC Act, particularly when the action impacts part of a large
water resource. For example, does a proposed extraction of water in the Paroo River (in the northern
MDB) need to consider the potential impacts of this action on the Coorong and Lower Lakes (a Ramsar
site) at the southern end of the MDB? It may be helpful for further guidance to be provided on how
downstream impacts (as well as any upstream or facilitated impacts) 38 should be considered by
proponents of proposed actions.
9.32
Further, in considering the long-term impacts of a proposed action, it is important to consider the likely
changes to the availability of resources such as water. For example, water availability in the MDB is
predicted to decline in future decades due to the predicted impacts of climate change. 39 Decisionmakers should consider these impacts in the decision-making process.
Wetlands or wild rivers as a matter of NES
Current provisions of the Act relating to water use
9.33
34
These provisions are outlined earlier in this chapter.
Water Act 2007 (Cth) s.4.
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.3A.
36
Department of the Environment and Heritage, EPBC Act Policy Statement 1.2: Significant Impact Guidelines (2006) p.13. Indirect
impacts are discussed in more detail in Chapter 4 of this report.
37
Submission 139: Hydro Tasmania / Roaring 40s, pp.5-6.
38
See Department of the Environment and Heritage, EPBC Act Policy Statement 1.2: Significant Impact Guidelines (2006) p.13.
39
CSIRO, Water Availability in the Murray–Darling Basin: Summary of a report from CSIRO to the Australian Government (2008)
http://www.csiro.au/files/files/pna0.pdf at 22 April 2009.
35
Key points raised in public submissions
Wild or natural rivers / inland aquatic environments as matters of NES
9.34
Several submissions argued that a water-related matter of NES should include impacts on the
ecosystem dependent on the water (and not just the water itself ). These submissions argued that wild
rivers and inland water systems were a matter of national significance, particularly in light of the
continuing drought and climate change. 40 The victorian Office of the Environmental Sustainability
Commissioner noted that:
Inland waters of national significance, particularly those traversing state borders, would benefit from systematic
and over-arching protection which could be afforded by the EPBC Act. This is because the protection offered
by state legislation may be hampered by trans-boundary issues, insufficient ability to account for cumulative
impacts, and so state legislation may not provide a national perspective in such circumstances. 41
9.35
These submissions called for the inclusion of either wild or natural rivers or ‘high conservation value
freshwater environments’ as a new matter of NES so that proposed actions likely to have a significant
impact on a wild river would require consideration under the Act. 42 Both the National Parks
Association of Queensland and victorian Office of the Environmental Sustainability Commissioner
particularly noted the relevance of this matter of NES to rivers and aquatic ecosystems in northern
Australia.43 The Birds Australia submission, dealing specifically with the protection of migratory
shorebirds in Ramsar wetlands, noted that listing a wetland under the Ramsar Convention had not
adequately protected these birds, and that ‘the EPBC Act must adequately protect important migratory
shorebird sites in [northern Australia] whilst there is still an opportunity to do so before inevitable
further development.’44
Wetlands 45of National Importance or Significance
9.36
Some submissions argued that in addition to recognising Ramsar wetlands as a matter of NES,
wetlands of national importance should also be recognised and protected under the Act and declared a
matter of NES. The ANEDO and Victorian Office of the Environmental Sustainability Commissioner
submissions suggested that this amendment would capture actions that are likely to have a significant
impact on wetlands that are listed in the Directory of Important Wetlands in Australia. 46 The ANEDO
submission also suggested that a trigger be inserted into the Act that would give the Minister the power
to release environmental flows.47
Discussion of key points
Expansion of the wetlands ‘trigger’
9.37
The current Ramsar wetlands trigger already has the potential to be very broad. Wetlands protected
under this matter of NES include any ‘declared Ramsar wetland’. 48 The definition of wetland used in
the Act takes its meaning from the Ramsar convention,49 which includes:
areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is
static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not
exceed six metres … [and] may incorporate riparian and coastal zones adjacent to the wetlands, and islands or
bodies of marine water deeper than six metres at low tide lying within the wetlands. 50
40
See e.g. Submission 100: National Parks Association of Queensland, p.1; and Submission 145: Office of the Environmental Sustainability
Commissioner (Victoria), p.5.
41
Submission 145: Office of the Environmental Sustainability Commissioner (victoria), p.6.
42
See e.g. Submission 100: National Parks Association of Queensland, p.1; Submission 145: Office of the Environmental Sustainability
Commissioner (Victoria), p.5; and Submission 026: Ms Mary Chandler, p.8.
43
Submission 100: National Parks Association of Queensland, p.1; and Submission 145: Office of the Environmental Sustainability
Commissioner (Victoria), p.5.
44
Submission 066: Birds Australia, p.7.
45
See e.g. Submission 189: Australian Network of Environmental Defender’s Offices, p.19.
46
Submission 189: Australian Network of Environmental Defender’s Offices, p.19; and Submission 145: Office of the Environmental
Sustainability Commissioner (Victoria), pp.5-6.
47
Submission 189: Australian Network of Environmental Defender’s Offices, p.25.
48
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.16.
49
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.528.
50
Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, 2 February 1971 (Ramsar
Convention), Art.s 1.1 and 2.1.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
9.38
Wetlands only need to meet one of the nine Criteria for Identifying Wetlands of International
Importance51 to be listed under the Convention. 52 Wetlands are listed under the Act by the Minister
making a declaration under s.17A, and are designated for inclusion in the List of Wetlands of
International Importance under Article 2 of the Ramsar Convention. Once designated for inclusion, the
wetland is included in the List. This is in contrast to the process for World Heritage area listing, where
a country nominates properties to the World Heritage Committee (WHC) for the WHC’s decision
whether or not to list those properties on the World Heritage List.
9.39
Currently 65 wetlands in Australia are listed under the Ramsar Convention. However, the Minister also
has the power under s.17A of the Act to declare a wetland to be a ‘declared Ramsar wetland’ (and
therefore protected under the Act) before it is listed under Article 2 of the Ramsar Convention, further
broadening the potential scope of this matter of NES to cover wetlands that are ‘likely to be of
international importance’53.
9.40
The breadth of the definition and the scope of the Minister’s power to declare wetlands as ‘declared
Ramsar wetlands’ under the Act indicates that many more areas could be listed as Ramsar wetlands,
including areas in northern Australia, therefore expanding the application of the Act. However, it is
important to note that this matter of NES only applies to wetlands of international importance. This
potentially leaves a regulatory gap in the protection of Australian wetlands, as some will be nationally
significant, but will fail to meet the criteria for international importance and will not be protected at a
Commonwealth level.
9.41
The key question is whether the existing system of Ramsar listing and State or Territory management
adequately provides for sound management of nationally important wetlands and river systems. If the
answer is in the negative, then additional protection could be provided by expanding the wetlands
trigger to include Wetlands of National Importance. To define ‘Wetlands of National Importance’, the
Act could use the Criteria for Determining Important Wetlands agreed to by the Australian and New
Zealand Environment Conservation Council (ANZECC) Wetlands Network in 1994. 54 These criteria
are currently used to list wetlands on the Australian Wetlands Database,55 and there are currently 904
wetlands that have qualified as nationally important (of which 65 are also listed under the Ramsar
Convention). It should be noted that the compilation of the list of National Wetlands was intended as a
step toward the development of a national inventory. This was based on existing State or Territory
based information often collected for a range of other purposes and a self-assessment process against
the listing criteria with limited quality assurance at a national level. As an alternative to using this list, a
listing process could be created, similar to the process that currently exists for listing places on the
National Heritage List.
9.42
Introducing ‘wetlands of national importance’ as a matter of NES using the ANZECC criteria would
therefore bring a considerable proportion of Australia’s wetlands and water resources under the ambit
of the EPBC Act. These criteria would have the capacity to incorporate ‘wild’ or ‘natural’ rivers.
9.43
This would constitute a significant expansion of the application of the Act to wetlands in Australia and
would consequently be likely to have significant resourcing issues for the Australian Government.
Nonetheless, it would seem that there are strong arguments in support of extending the protections
afforded under the EPBC Act to wetlands and rivers that are declared to be of national importance.
Comments on this proposal are invited.
Management of wetlands
Current provisions of the Act
9.44
51
Wetlands of international importance (Ramsar wetlands) are listed as a matter of national
environmental significance (NES). This means that any action that is likely to have a significant impact
on the ecological character of a Ramsar wetland must be referred for assessment under Part 9 of the
The Ramsar Convention on Wetlands: The Criteria for Identifying Wetlands of International Importance (2005)
http://www.ramsar.org/key_criteria.htm at 22 April 2009.
52
Department of the Environment, Water, Heritage and the Arts, Ramsar Convention on Wetlands (2009)
http://www.environment.gov.au/water/environmental/wetlands/ramsar/index.html at 23 April 2009.
53
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.17A(1).
54
Australian Wetlands Database, ‘Criteria for Determining Important Wetlands’ http://w w w.environment.gov.au
/water/publications/environmental / wetlands/database/key.html at 22 April 2009. More detail on these criteria can be found in Chapter 3
of Environment Australia, A Directory of Important Wetlands in Australia (2001, 3rd ed)
http://www.environment.gov.au/water/publications/environmental/wetlands/directory.html at 22 April 2009.
55
Department of the Environment, Water, Heritage and the Arts, Australian Wetlands Database (2009)
http://www.environment.gov.au/water/publications/environmentalwetlands/database/index.html t 22 April 2009.
Act. As with other matters of NES, taking an action that is likely to have a significant impact on the
ecological character of a Ramsar wetland is an offence under the Act 56
9.45
The Act also establishes a framework for managing Ramsar wetlands in accordance with the Ramsar
Convention, through the Australian Ramsar management principles set out in Schedule 6 of the EPBC
Regulations.57 These principles cover matters relevant to the management planning and environment
assessment of actions likely to have a significant impact on the site.
Key points raised in public submissions
9.46
The Peel-Harvey Catchment Council noted that:
The Act, and its provisions for stakeholder and community collaboration in Ramsar-site management planning,
has provided an essential tool for coordinated management of the Peel-yalgorup System.58
9.47
As noted above, the assessment and approval provisions of the Act will be triggered by a proposed
action that has or is likely to have a significant impact on the ecological character of the Ramsar
wetland. Bird Observation and Conservation Australia submitted that the use of the concept of
‘ecological character’ made the Act’s protection less effective, as
the use of this vague and ambiguous term allows a range of inappropriate activities (such as shooting of native
waterfowl) and developments to impact on wetlands considered to be of international importance. 59
9.48
It was argued in submissions that the Act and site management plans failed to protect listed wetlands,
with the ANEDO submission stating that:
Management plans are of limited effect as they are only mandatory and enforceable with respect to
Commonwealth land, leaving the majority of land unprotected. Specifically, under section 333 of the Act, the
Commonwealth is only required to use its “best endeavours” to ensure a management plan consistent with the
Convention is prepared and implemented.60
9.49
They proposed several amendments, including that the preparation and implementation of these plans
become mandatory, and that penalties be imposed for ‘failure to sufficiently prepare and comply with
plans in accordance with the “wise use” principles of the convention’. 61
9.50
Some submissions believed that the effectiveness of the operation of the provisions for Ramsar
wetlands and the utility of management plans for those wetlands is limited due to a lack of effective
communication and that effective management planning ‘requires greater cooperation between
industry, State and Commonwealth governments.’62 It was further argued that Ramsar areas need to
have catchment land and sea strategies endorsed by the community and all levels of government to
ensure that their ecological character is maintained. 63
9.51
The AHRC raised concerns that there was no express provision in the Act that requires the Minister to
consult with Indigenous peoples before making a Ramsar wetland declaration.64 The AHRC
recommended that express provisions be made in the EPBC Act to provide for Indigenous involvement
and consultation in the declaration and decision-making processes relating to Ramsar wetlands. 65
Senate inquiry into the operation of the EPBC Act
9.52
The Senate Committee briefly referred to Ramsar wetlands in its report. The Senate Committee
outlined the definition of a Ramsar wetland and the existence of management principles in the EPBC
Regulations for Ramsar wetlands.66
9.53
Additional Comments from Coalition Senators drew attention to the Government of South Australia’s
referral of several actions related to the management of the Ramsar-listed Coorong and Lower Lakes in
56
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.17B.
under Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.335. For a checklist for determining whether a plan
complies with principles, see Department of the Environment, Water, Heritage and the Arts, Australian Ramsar Management Principles
(2009) http://www.environment.gov.au/water/environmental/wetlands/ramsar/management.html at 22 April 2009.
58
Submission 127: Peel-Harvey Catchment Council, pp.2-3.
59
Submission 064: Bird Observation and Conservation Australia, p.4.
60
Submission 189: Australian Network of Environmental Defenders’ Offices, p.68.
61
Submission 189: Australian Network of Environmental Defenders’ Offices, p.68.
62
Submission 095: urban Development Institute of Australia, p.11.
63
Confidential Submission.
64
Submission 193: Australian Human Rights Commission, pp.19-20.
65
Submission 193: Australian Human Rights Commission, p.20.
66
Senate Committee Report, para.3.33.
57
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
the context of raising concerns about State and Territory Governments’ potentially conflicting roles as
developer and assessor of actions. 67
9.54
The Australian Greens also noted in their Additional Comments that the ‘box-ticking approach’68 to
environmental impact assessment fails to enact Australia’s international environmental obligations.
Discussion of key points
Ecological character
9.55
As has been noted in other chapters of this report (for example, Chapter 3), several submissions have
dealt with issues in adequately defining key terms and concepts used in the Act, such as ‘significant
impact’ or the ‘values’ of a heritage place. The use of ‘ecological character’ as the key concept in
assessing impacts on declared Ramsar wetlands is drawn from the text of the Ramsar Convention.
Article 3(2) of the Convention requires in part that:
Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of
any wetland in its territory and included in the List has changed, is changing or is likely to change as the result
of technological developments, pollution or other human interference. 69
9.56
Requiring actions that have or are likely to have a significant impact on the ecological character of a
listed Ramsar wetland to be referred for assessment under the Act makes it simpler for the Australian
Government to stay informed of any actual or potential changes to the ecological character of Ramsar
wetlands. While ‘ecological character’ can be a challenging concept to define, the Australian Wetlands
Database contains reports on each Ramsar wetland in Australia, including the wetland’s hydrological
values, ecological features, physical features and past, present and future factors adversely affecting the
ecological character of the particular wetland. In addition, the Australian Government is progressively
producing Ecological Character Descriptions (ECDs) for all Australian Ramsar sites. 70 This should
provide an adequate basis for determining the ecological character of a Ramsar wetland for the
purposes of assessing any impacts of proposed actions.
9.57
An alternative approach would be to specify appropriate uses on a wetland-by-wetland basis, however
this would be very time-consuming. While appropriate uses should be identified during the
management planning process, there needs to be some test applying to cases where a plan is not in
place. Clearly, the Australian Government needs to ensure relevant description of the ‘ecological
character’ of each listed wetland, just as it develops ‘values’ statements for each National Heritage
place.making and implementing ramsar wetland management plans
9.58
Article 3(1) of the Ramsar Convention provides that:
The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the
wetlands included in the List, and as far as possible the wise use of wetlands in their territory.
9.59
This suggests that, in order to comply with its obligations under the Convention, the Australian
Government should set up a framework to ensure that management plans exist for all Ramsar sites.
9.60
The current approach under the Act relies on States and Territories to make and implement
management plans for Ramsar areas other than in Commonwealth areas. The 2007 Ramsar Snapshot
Study – Final Report noted that there are some data gaps for Ramsar sites, with some documentation
being out of date, not conforming to relevant standards, or not having been completed. 71 However, the
Australian Government’s most recent National Report on the Implementation of the Ramsar
Convention on Wetlands notes that measures are being taken to address these issues, including the
development of Australian National Guidelines for Ramsar wetlands. 72
9.61
One of the methods to ensure that management plans are prepared for all Ramsar wetlands could be to
require the Minister to create a management plan for a listed wetland where no plan is currently in
place. If this amendment was to be made, the Act should also require the Minister to use best
endeavours to produce this plan in cooperation with the owner and/or manager of the Ramsar wetland,
and that this plan should comply with the Ramsar Management Principles contained in the EPBC
67
Senate Committee Report, p.95.
Senate Committee Report, p.98.
69
Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, on 2 February 1971 (Ramsar
Convention) art.3(2), http://www.ramsar.org/key_conv_e.htm at 23 April 2009.
70
Australian Government, National Report on the Implementation of the Ramsar Convention on Wetlands (2008) p.19
http://www.ramsar.org/cop10/cop10_nr_australia.pdf at 19 May 2009.),
71
BMT WBM, Ramsar Snapshot Study - Final Report (2007) 4-3
http://www.environment.gov.au/water/publications/environmental/wetlands/pubs/ramsar-snapshot-study-data.pdf, at 20 May 2009.
72
Australian Government, National Report on the Implementation of the Ramsar Convention on Wetlands (2008) p.12.
68
Regulations. A Commonwealth- only plan should at least set out a description of the ecological
character of each wetland and give guidelines regarding what would be regarded as a significant impact
on that character.
9.62
Some of these issues related to management planning are similar to those discussed in relation to the
EPBC Act and heritage protection and management. These issues are discussed further in Chapter 11
of this report. The important comments about the need to ensure adequate consultation with Indigenous
stakeholders for EPBC Act matters are addressed in Chapter 17 and issues with the decision-making
process, as discussed in the Senate Committee inquiry, are raised in Chapter 19.
Emergency water-related actions
Current provisions of the Act
9.63
under s.28(3) of the Act, the Minister may make a declaration to exempt actions that are necessary for
Australia’s defence or security or in relation to preventing, mitigating or dealing with a national
emergency. The Minister is required to give notice of the declaration of a s.28(3) exemption and a list
of exemptions granted can be found on the Department’s website. 73
9.64
The most recent exemption granted was on 11 February 2009 to the State of victoria for all actions
taken in response to the February bushfires. While this section covers emergencies on a national level,
there is nothing in the Act that covers smaller-scale works that may need to be carried out following,
for example, spillage of untreated waste water into a Ramsar wetland site.
9.65
The Act also provides that certain actions that would normally constitute an offence under the Act
when taken without a permit will not be an offence where the action ‘is reasonably necessary to
prevent a risk to human health’ or ‘is reasonably necessary to deal with an emergency involving a
serious threat to human life or property’. 74
Key points raised in public submissions
9.66
In its submission, South-East Water argued that the EPBC Act should be modified to allow for water
management bodies to undertake emergency works to remediate accidental discharges of waste water,
as the current timeframes in the EIA process delay necessary remedial action. 75 It was suggested that a
provision be inserted into the Act along the same lines as s.30B of the Environment Protection Act
1970 (Vic). This section provides a defence to any offence under the Act if the person charged proves
that:
(a) the discharge, emission or deposit of waste to which the charge relates occurred in an
emergency to prevent danger to life or limb other than an emergency arising from the
negligent act or omission of the person charged; and
(b) as soon as reasonably practicable after that discharge, emission or deposit of waste that person
notified particulars thereof in writing to the Authority or the delegated agency as the case may
be.76
9.67
In the alternate, South-East Water suggested that the Minister be allowed to authorise emergency
remedial action on a temporary basis to be undertaken, similar to s.30A of the Environment Protection
Act 1970 (Vic). This section allows the Minister to approve emergency remedial action and to attach
conditions that minimise any impacts on matters of NES.
Discussion of key points
9.68
Inclusion of provisions permitting temporary approvals for emergency remedial actions would be
useful for water management bodies and for agencies such as the Murray-Darling Basin Authority, in
cases where water must be released, or accidental discharges of waste remediated, within a tight
timeframe. However, this provision should not be allowed to become a method of ‘fast-tracking’
approvals that should be subject to the normal assessment and approval process. Any provision for
approving emergency remedial actions should therefore be very limited in scope.
Department of the Environment, Water, Heritage and the Arts, ‘Exemptions’,
http://www.environment.gov.au/epbc/about/exemptions.html at 15 April 2009.
74
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.197(f ) and (h), 212(f ) and (h) and 231(f ) and (h).
75
Submission 094: South-East Water, pp.3-4.
76
Environment Protection Act 1970 (Vic) s.30B(1).
73
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
9.69
As noted above, s.28(3) empowers the Minister to make a declaration to exempt actions that are
necessary for Australia’s defence or security or in relation to preventing, mitigating or dealing with a
national emergency. This could cover situations where emergency remedial actions need to be taken
by water management authorities.