Analyzing the Impact of Australia's EPBC Act on the Naturelink Cableway: Strengthening Environmental Decision-Making and Impact Assessments
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which commenced on 16 July 2000, fundamentally and radically changes the Australian environmental legal system. The Act represents a major consolidation, update and expansion of previous Commonwealth environmental legislation and jurisdiction to directly regulate impacts on the environment. It adds a distinct Commonwealth tier to environmental decision-making. It is also a major component of the legislative scheme to fulfil Australia’s international environmental legal obligations. But perhaps of even greater practical effect, the Act and Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (EPBC Regulations) fundamentally improves the rigour required for environmental impact assessment in Australia.
The aim of this article is to analyse the application of the EPBC Act to the facts of the Naturelink Cableway, which was proposed to be constructed at Springbrook in Queensland. This case provides an excellent example of how the law has changed with the introduction of the EPBC Act. It also provides a useful example of the threshold for the application of the EPBC Act, specifically, whether an action has, will have or is likely to have a significant impact on a matter of national environmental significance.
The offence, assessment and approval system for actions that have, will have or are likely to have a significant impact on matters of national environmental significance is the most important and far-reaching regulatory mechanism created under the EPBC Act. Together with actions of a person on Commonwealth land or by the Commonwealth generally which have, will have or are likely to have a significant impact on the environment, these are referred to as “controlled actions” (i.e. actions that are unlawful unless authorised under the EPBC Act). Matters of national environmental significance currently include:
- the world heritage values of a declared World Heritage property;
- the ecological character of a declared Ramsar wetland;
- listed threatened species and listed threatened ecological communities;
- listed migratory species;
- nuclear actions; and
- Commonwealth marine areas.
Assessment and approval of controlled actions under the EPBC Act potentially involves three stages. Firstly, upon referral of an action under ss68 or 69 of the Act, the Commonwealth Minister for Environment and Heritage determines whether the action is a “controlled action”. Secondly, if the referral is considered to involve a controlled action, it must be assessed in accordance with the Act and the EPBC Regulations (which may involve the proponent preparing and submitting an environmental impact statement or other assessment documentation). Thirdly, a decision must be made whether to refuse the application or to approve it subject to conditions.
In relation to the second stage, detailed criteria are set out in schedules 1-4 of the EPBC Regulations for the assessment of controlled actions. For example, regulations 3.01 and 7.01 of schedule 4 (Matters to be addressed by draft public environment report and environmental impact statement) provide:
Information [describing the relevant impacts of the action] must include:
(a) a description of the relevant impacts of the action; (b) a detailed assessment of the nature and extent of the likely short term and long term relevant impacts; (c) a statement whether any relevant impacts are likely to be unknown, unpredictable or irreversible; (d) analysis of the significance of the relevant impacts; (e) any technical data and other information used or needed to make a detailed assessment of the relevant impacts.
For information given in a draft public environment report or environmental impact statement, the draft must state:
(a) the source of the information; and (b) how recent the information is; and (c) how the reliability of the information was tested; and (d) what uncertainties (if any) are in the information. In addition, regulation 3.03 of schedule 5 (Australian World Heritage management principles) of the EPBC Regulations requires that “the assessment process should identify the World Heritage values of the property that are likely to be affected by the action and examine how the World Heritage values of the property might be affected.”
These extensive and detailed requirements for the assessment of impacts must also viewed in the context of ss489-491 of the EPBC Act, which provide criminal liability for providing false or misleading information to obtain an approval under the EPBC Act; or in response to a condition on an approval; or to an authorised officer under the Act. These requirements stand in stark contrast to State laws for environmental impact assessment, such as under the State Development and Public Works Organisation Act 1971 (Qld). It is in this context that it can be seen how the EPBC Act has fundamentally and dramatically improved the integrity and rigour required for environmental impact assessment in Australia.
Overview of the Naturelink Cableway
The Naturelink Cableway involved a proposal to construct an 11.6km passenger cableway between Mudgeeraba and Springbrook in the Gold Coast hinterland of south-east Queensland. The proposed passenger cableway consisted of a series of forty-four towers connected by a moving wire cableway system with up to 180, six-person detachable gondolas driven by electrically powered drive stations at both ends of the facility. Four passenger stations, with associated restaurants and amenities, were proposed for the route forming the start, transit and finish points for the cableway.
The proposed cableway route crossed a number of tenures including Springbrook National Park, a protected area under the Nature Conservation Act 1992 (Qld) and part of the Central Eastern Rainforest Reserves (Australia) World Heritage Area (“the CERRA World Heritage Area”). The proposal was declared a “significant project” under s29B of the State Development and Public Works Organisation Act 1971 (Qld) and an environmental impact statement (“EIS”) was prepared under that Act. This comprised initially a report and supporting information in two volumes (“the draft EIS”), which was supplemented with a third volume following public comments (collectively, “the EIS”).
The proposal, supported by the EIS, was referred to the Commonwealth for assessment under the EPBC Act on 25 August 2000. It was declared a controlled action on 21 September 2000 and determined to require an environmental impact statement on 2 March 2001 (this second EIS has not yet been prepared). There were therefore State level and Commonwealth assessment and approval processes operating concurrently in relation to the proposed development.
However, on 8 November 2000 the Queensland Government refused the application on the basis that:
The preferred route of Naturelink’s proponents was simply not acceptable because of the threat to sensitive ecosystems contained in World Heritage listed national parklands. Although refused by the Queensland Government, at the time of writing an application for the cableway remained pending under the EPBC Act.
Application of the EPBC Act to the Naturelink Cableway
There were three matters of national environmental significance potentially significantly impacted upon by the Naturelink Cableway:
(a) the world heritage values of a declared World Heritage property; (b) listed threatened species; and/or (c) listed migratory species.
The focus here will be on the impacts on the CERRA World Heritage Area. Sections 12 and 15A of the EPBC Act create the civil and criminal offence provisions relating to World Heritage properties. It is sufficient for present purposes to reproduce s12:
12(1) A person must not take an action that:
(a) has or will have a significant impact on the world heritage values of a declared World Heritage property; or (b) is likely to have a significant impact on the world heritage values of a declared World Heritage property.
Civil Penalty:
(a) for an individual – 5,000 penalty units [$550,000]; (b) for a body corporate- 50,000 penalty units [$5,500,000]. (2) Subsection (1) does not apply to an action if [the action is assessed and approved under the Act]. A number of elements of this provision require further analysis to understand its application to the Naturelink Cableway.
Action
The EPBC Act does not define “action” although ss523-524A qualify its meaning. In the context of the EPBC Act, the plain meaning of “action” is the process or state of acting or of being active; something done; an act; or deed. The plain meaning of “act” is anything done or performed; a doing; deed; the process of doing. Sections 523-524A of the Act qualify this plain meaning as follows:
523 Actions
(1) Subject to this Subdivision, action includes: (a) a project; and (b) a development; and (c) an undertaking; and (d) an activity or series of activities; and (e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).
524 Things that are not actions
(1) This section applies to a decision by each of the following kinds of person (government body): (a) the Commonwealth; (b) a Commonwealth agency; (c) a State; (d) a self-governing Territory; (e) an agency of a State or self-governing Territory; (f) an authority established by a law applying in a Territory that is not a self-governing Territory. (2) A decision by a government body to grant a governmental authorisation (however described) for another person to take an action is not an action.
524A Provision of grant funding is not an action
Provision of funding by way of a grant by one of the following is not an action:
(a) the Commonwealth; (b) a Commonwealth agency; (c) a State; (d) a self-governing Territory; (e) an agency of a State or self-governing Territory; (f) an authority established by a law applying in a Territory that is not a self-governing Territory. Based on the plain meaning of “action” and the qualifications given to it in ss523-524A, the meaning that can be attributed to it in the EPBC Act is, “a physical activity or series of activities not being a government decision or grant of funding”. This interpretation is consistent with the reference to “activities that are likely to have significant impacts on the environment” in the objects clause of the Act (:s3(2)(d)).
It is important to understand that the qualification that an action “includes an activity or series of activities” provided in s523(d) of the EPBC Act has wide implications for the application of the Act. This qualification puts beyond doubt that the cumulative impacts of a person over time can be regulated because only one “action” is involved. Thus, in the leading case under the EPBC Act, Booth v Bosworth [2001] FCA 1453 (the Flying Fox Case), the physical activity or series of activities of the respondents on their farm in operating annually a large electric grid and other activities (such as shooting) for the purpose of killing flying foxes was the relevant “action” sought to be restrained. It was therefore the cumulative impact of the action of operating of the electric grids annually for 6-8 weeks, shooting and associated activities, for the foreseeable future that was sought to be restrained and upon which the court decided the case. This has important implications for the ability of the EPBC Act to regulate cumulative impacts of individuals.
In considering an “action” for the purposes of the application of the EPBC Act, it is also important to consider ss43A and 43B, which provide a final qualification to the application of the Act in this regard. These sections provide transitional provisions for the application of the EPBC Act by exempting actions that were existing lawful uses of land or had been approved by the Commonwealth or State Government at the commencement of the Act on 16 July 2000.
43A Actions with prior authorisation
(1) A person may take an action [that has, will have or is likely to have a significant impact on a matter of national environmental significance] without an approval under [the EPBC Act] if: (a) the action consists of a use of land, sea or seabed; and (b) the action was specifically authorised under a law of the Commonwealth, a State or a self-governing Territory before [16 July 2000]; and (c) immediately before [16 July 2000], no further environmental authorisation was necessary to allow the action to be taken lawfully. (2) In this section: environmental authorisation means an authorisation under a law of the Commonwealth, a State or a self-governing Territory that has either or both of the following objects (whether express or implied): (a) to protect the environment; (b) to promote the conservation and ecologically sustainable use of natural resources.
43B Actions which are lawful continuations of use of land etc.
(1) A person may take an action [that has, will have or is likely to have a significant impact on a matter of national environmental significance] without an approval under [the EPBC Act] if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before [16 July 2000]. For this purpose, an enlargement, expansion or intensification of use is not a continuation of a use. As the Naturelink Cableway was not an existing lawful use of land and had not been approved before 16 July 2000, the EPBC Act applied to it.
Applying this understanding of the concept of an “action” to the facts of the Naturelink Cableway proposal, based on the EIS the action proposed can be summarised as follows:
- Construction of Falls Station, 12 towers and 3.2km of cableway within, or within 100m of, the CERRA World Heritage Area.
- Construction of stations and towers and operation of cableway in the buffer and wildlife corridors adjacent to the CERRA World Heritage Area.
- Operation of helicopters at low altitudes for up to 10 months within, or within close vicinity of, the CERRA World Heritage Area.
- Operation of the cableway for an indefinite period involving, when operating at maximum capacity, gondolas moving in both directions along the cableway spaced 24 seconds apart.
Likely to have
The EPBC Act requires analysis of whether an action has, will have or is likely to have a significant impact on a matter of national environmental significance. The issues of whether an action has or will have a significant impact must be determined on the balance of probabilities (i.e. that such an impact is more likely than not); however, it is suggested that the issue of whether an action is likely to have a significant impact requires determination of whether such an impact is a real chance or possibility regardless of whether it is less or more than fifty per cent. The issue of whether an action is likely to have a significant impact therefore substantially widens the application of the EPBC Act. Although it would be unfair to criticise the EIS prepared for the Naturelink Cableway for not considering this issue as it is a complex legal issue upon which there was no case law under the EPBC Act when the EIS was prepared, it may be noted that the EIS did not address this issue.
Significant impact
The term “significant impact” is not defined in the EPBC Act; however, in the Flying Fox Case the court defined it as “an impact that is important, notable or of consequence having regard to its context or intensity”. In this context, impact is synonymous with “effect”. Although the Commonwealth has created administrative guidelines to determine whether an action has, will have or is likely to have significant impact, these administrative guidelines were ignored by the court in the Flying Fox Case and should not be relied upon in determining the application of the EPBC Act.
To determine whether the EPBC Act applies to a development or other activity, specifically whether it will cause a significant impact to a matter of national environmental significance, it is important to appreciate the distinction between the action that is proposed and the impact that that action has, will have or is likely to have. This is a distinction between a cause and its effect, both of which are ultimately questions of fact. For example, the operation of a chain-saw or bulldozer is an action while the clearing of vegetation, disturbance of native wildlife and disruption of ecological processes may be impacts of that action. For practical and commonsense purposes there may be some overlap between these concepts as many people would regard the operation of a chain-saw or bulldozer to clear vegetation as a single action. That is not of consequence provided the full impact of the action (including, in this example, the clearing of vegetation) on the matter of national environmental significance in question is understood and assessed. If in doubt it may be useful to consider the physical activity or series of activities involved and then consider what impact this will have on the matter of national environmental significance in question (i.e. break the problem into two, discrete stages).
In relation to the potential impacts of the construction and operation of the Naturelink Cableway, the draft EIS suggested that:
the draft EIS … has demonstrated that given the environmental management strategies that will be implemented, the project can operate successfully with acceptable environmental impacts
[In the draft EIS] impacts are considered for all relevant aspects of the natural, social and economic environments …
No rare or threatened species in the National Park will be affected. No regionally significant flora will be affected.
the studies undertaken for this EIS show that the Naturelink project will not have a significant impact on the World Heritage area In making a referral to the Commonwealth under s68 of the EPBC Act, the proponent went further and stated categorically that, “there are no known uncertainties in the information [given in the referral (which included the EIS)]”.
However, contrary to these statements, the EIS largely did not account for the impacts of the construction and operation of the cableway on individual species, the ecological community or the world heritage values of the CERRA World Heritage Area. While the EIS discussed issues such as vegetation clearance, noise levels, edge effects, faunal displacement, helicopter and breeding impacts, the analysis was far from complete. In particular, in relation to flora and fauna the baseline sampling was simply inadequate. Contradicting the statements extracted above the EIS itself admitted, “given the time limitations, seasonal fauna surveys were not undertaken”. Dr Karen Higgenbottom also commented on this aspect the draft EIS as follows:
Sampling effort [was] inadequate to detect many of species present:
time of year of sampling suboptimal (April-May), especially for reptiles and frogs
rainy weather; a problem for some techniques like spotlighting
fairly low mammal trapping effort (405 small terrestrial trap nights, 81 terrestrial cage trap nights, 219 arboreal trap nights), especially when considering this was spread between multiple sites
no pitfall trapping; not compensated for by additional handsearching
no sampling for nocturnal or aquatic reptiles
methods for bats and owls particularly unsuccessful (3 bat species detected, 1 owl)
(Authors acknowledge this)
Small proportion of total species and significant species expected to be in area detected – as expected from low sampling effort, also may indicate a lack of experience (However authors use list of expected species for recommendations).
Faunal impact assessment and proposed mitigation measures lack depth e.g. little use of relevant literature.
Failure to fully meet terms of reference, which require (e.g.):
analysis of faunal communities, not just single species
seasonal variations in fauna
impact of fire on identified fauna species
quantitative data and/or population estimates for significant fauna species
Professor Ralf Buckley further summarised the failures of the EIS prepared by Naturelink Ltd in a detailed critique of the draft EIS:
[The draft EIS] fails to comply with its Terms of Reference in regard to at least 230 separate stipulations. Most of these omissions are significant, many severe, and a substantial number are sufficiently critical that each of them, taken independently, would completely invalidate the [draft EIS] for proper consideration under the relevant legislation at both State and Commonwealth level. Taken together, the shortcomings render the [draft EIS] inadequate as a basis for any form of approval.
To list a few of these shortcomings: … the core component of the risk assessment is not provided; baseline fauna and water-quality studies are cursory rather than comprehensive … and the impacts of construction noise on wildlife have not been considered. There are many more. …
The [draft EIS] underestimates impacts on the natural environment because its baseline data are incomplete and it ignores a number of significant impact mechanisms. Examples include the impact of noise from pneumatic construction tools on rare rainforest birds; the impact of water treatment chemicals on water quality; the impacts of emergency response measures; …
Professor Buckley highlighted one example of the failure to consider the impacts of noise on wildlife during the construction phase of the cableway in relation to section 12.5.2.3 (General Construction Activities) of volume 1 of the EIS:
This para estimates expected noise levels for construction, presumably including towers within the national park, as 77dBA at 10 metres distance on average, and 92 dBA at 10 metres distance when helicopters are present. This is an enormous increase in sound level over the current ambient levels in the park. Given that many of the birds and animals, eg Albert’s Lyrebird, are extremely sensitive to the smallest human noise disturbance, it seems probable that tower construction would displace these species from large areas around each tower. Arrival and departure of workmen, even on foot, will cause further displacement. The impacts of these effects on the populations of these threatened species in the rainforest areas need to be predicted accurately. This may well prove to be one of the more critical potential impacts associated with the development proposal, yet it is not considered at all in the [draft EIS].
Similarly, the EIS did not consider the scale or intensity of the impacts of the construction and operation of the cableway on the environment. Professor Buckley’s comments in relation to the draft EIS provide another example:
Section 12.6.1 – Environmental Noise Criteria. Predicted noise during the construction period does not comply with the intrusion criteria listed in Table 12.6. These criteria require that noise intrusion not exceed 5dBA above background LA90. Predicted construction noise, however, exceeds current calm-condition background in the National Park area by over 60dBA. Given that an increase in 10dBA sounds twice as loud to the human ear, an increase of 60dBA would be 64 times as loud. This is an enormous impact.
It should also be recognised that the full range, scale and intensity of impacts of the cableway on the CERRA World Heritage Area is difficult to determine, as highlighted in the following comments of Professor Buckley:
Section 14.4.5 – Noise Impacts. The assertions in the paragraph are wrong, and this section fails to comply with requirements of the [Terms of Reference]. Noise impacts during construction would not be “restricted to small areas”. Any noise source at 80-115 dBA, in an area where background noise is 30dBA or less, would have impacts over a wide area. This would disturb nocturnal and diurnal animals – nocturnal animals can still hear during the day time! It is by no means certain that displaced animals would be able to survive elsewhere and return after construction, particularly since construction is expected to last many weeks. Whether displaced individuals can survive elsewhere depends on many factors such as availability of adjacent habitat, food sources, nest sites, etc; territorial behaviour by other individuals already occupying adjacent areas; and on critical factors limiting population size, breeding success, etc. The [draft EIS] does not address any of these issues, and hence fails to comply with [the Terms of Reference] requirements to predict likely impacts on fauna. …
World heritage values
While the assessment of environmental impacts conducted in preparing the EIS appears fundamentally flawed, a further issue is whether there will be an impact on the world heritage values of the CERRA World Heritage Area. The CERRA World Heritage Area was included in the World Heritage List in 1986 and subsequently expanded and re-listed in 1994. It consists of a mosaic of properties in north-eastern NSW and south-eastern Queensland. Springbrook National Park, through which the Naturelink Cableway was proposed to be constructed, was included in the 1994 listing. To determine the world heritage values of a declared World Heritage property under the EPBC Act it has been suggested based on the decision in the Flying Fox Case that there are two issues to be decided (the first is a question of law, the second is a question of fact):
- The legal meaning of world heritage values based upon the definition of “world heritage values” contained in the EPBC Act, the definition of “natural heritage” and “cultural heritage” contained in the World Heritage Convention and the criteria for determining “outstanding universal value” and the associated conditions of integrity stated in the relevant edition of the Operational Guidelines.
- Evidence of the content of world heritage values provided by:
(a) the nomination document prepared by the Australian Government for inclusion of the property in the World Heritage List; (b) the IUCN report presented to the World Heritage Committee for inclusion of the property in the World Heritage List; (c) the criteria for determining “outstanding universal value” and the associated conditions of integrity provided in the Operational Guidelines for which the property was in fact included in the World Heritage List; (d) any management plan or scientific report describing the world heritage values of the property that has been adopted by the Australian Government or the World Heritage Committee; and (e) expert evidence of the world heritage values of the property based upon the nomination document, IUCN report, the Operational Guidelines and any relevant management plan or scientific report.
In making its referral to the Commonwealth under s68 of the EPBC Act, Naturelink Ltd summarised the world heritage values of the CERRA World Heritage Area as follows:
The CERRA represents three of the four criteria for listing of a natural property:
- A record of the Earth’s evolutionary history, geological processes and the resulting landscape features;
- Outstanding examples of ongoing ecological and biological processes;
- Significant areas for the conservation of biological diversity, including those containing threatened plants and animals.
The World Heritage values for which the CERRA were inscribed on the World Heritage list include: rainforests exceptionally rich in primitive and relict species; subtropical rainforest habitat; warm temperate rainforest habitat; ancient ferns and tree ferns; conifers and cycads; birds dating from Gondwana; frogs; reptiles; the diversity of plant and animal species; habitats associated with subtropical rainforest, wet sclerophyll forest and ecotones between rainforest and sclerophyll communities; plant taxa, species of vertebrate fauna and invertebrate fauna of conservation significance.
In light of the decision in the Flying Fox Case this is quite a good summary of the world heritage values of the CERRA World Heritage Area. However, note that the criteria quoted were those used in the 1994 re-listing of the property and it would be more correct to use the current criteria (although these are not materially different). This summary also does not include a reference to the associated conditions of integrity (something that the Naturelink Cableway would impact upon).
Conclusion
In summary, while the world heritage values were adequately identified, the EIS prepared for the Naturelink Cableway largely failed to analyse the impacts of the construction and operation of the cableway. The EIS therefore failed to address whether the construction and operation of the cableway has, will have or is likely to have a significant impact on the world heritage values of the CERRA World Heritage Area. In particular, in terms of flora and fauna, the EIS provided little more than a species list (which itself was incomplete and based on inadequate sampling) and contained only cursory analysis of how the construction and operation would impact on individual species or the ecological community. Overall, the EIS prepared by Naturelink Ltd was more in the nature of a sales brochure for the cableway than a rigorous assessment of environmental impacts.
However, based on the information contained in the EIS and analysis of the impacts on the world heritage values of the CERRA World Heritage that would have been expected to occur, the Naturelink Cableway would have, or be likely to have, an impact that is important, notable or of consequence having regard to its context or intensity (i.e. a significant impact) on the world heritage values of the CERRA World Heritage Area. It therefore appears that the decision by the Minister on 21 September 2000 that the cableway was a controlled action under the EPBC Act was correct. Given the nature of the proposed development and the short-comings of the EIS, it also seems appropriate that the Minster refused to assess the proposal on preliminary documentation (i.e. the 3 volume EIS) but instead required a further EIS complying with schedules 4 and 5 of the EPBC Act.
The Naturelink Cableway proposal provides an excellent example of the application of the EPBC Act and the issues that arise under the Act in practice. The lesson from this case study is that in considering the application of the EPBC Act, it is necessary to define the action to be undertaken and then fully and frankly assess its environmental impacts on the relevant matters of national environmental significance. This is fundamental to considering whether the action has, will have or is likely to have a significant impact on a matter of national environmental significance to determine the application of the Act. Developers who fail to heed these points risk liability under ss489-491 of the EPBC Act for providing false or misleading information. It is pointed to note that the EIS prepared for the Naturelink Cableway was perfectly acceptable under the State Development and Public Works Organisation Act 1971 (Qld) (and was in fact accepted under that Act) but the developer potentially created criminal liability for itself and its directors by submitting the EIS under the EPBC Act. This emphasises the manner in which the EPBC Act has improved the integrity and rigour of environmental impact assessment in Australia.
**Chris McGrath
LLB (Hons), BSc, LLM (Environmental Law), PhD candidate (QUT) Barrister-at-Law**
