Australia's National Stance on Environment

CHAPTER FIVE

5.1 CREEPING NATIONALISATION OF THE ENVIRONMENT

The increasing Commonwealth influence and control over regulation of the Australian environment was broadly legitimised by the Agreements of '92.  Tools of power, such as economic instruments, are not needed under the new agreements.  Nor, indeed, is the threat of the overriding use of the external affairs power, in one or more of the 40 or 50 treaties always needed since the IGAE.

By the InterGovernmental Agreement on the Environment (IGAE), and under the strategic imperatives of biodiversity, climate change and particularly sustainable development, the Commonwealth government is formally positioned to dominate environmental decision-making in Australia in the 1990s in a manner only dreamed of in the 1970s.

The actual instruments of licences and approvals will remain to be administered by State agencies, rather in the manner of outposts of the Empire.  But the ambience, the ethos, of administration will be that of the agreements and the precautionary principle.

A potent and pervasive force is the capability of Federal Ministers to impute dereliction of duty to those State governments who do not keep pace:

responsibilities and interests of the Commonwealth [include] facilitating the co-operative development of national environmental standards and guidelines as agreed in Schedules to this Agreement. ⁽⁹⁸⁾

This paper does not discuss the clearly important potential effect of nationalisation of the environment on other State-Federal activities -- in transport, mining, energy and finance, for example.  These have all been exposed to the winds of ESD, and the NSESD and the IGAE contain promises that changes will be made in the way they are administered.  Section 3.5.2 (above) gave an example of a commitment on CBD parking driven by greenhouse fears.

And looming as a potential cause of interruption to government approvals, or project developments, is the concerned citizen.  Third-party representations that policies, strategies and processes are not being met, will be happily assisted by the growing workforce of environmental lawyers.  Indeed, this appears as one of the great potential hazards of otherwise innocuous agreements, such as much of the Agreements of '92.  The hazard is that some people will understandably want to take them seriously, and take legal action to persuade others to do so.  Each Agreement is thus a new Pandora's box.  Governments should learn that the community is becoming more environmentally literate.  Network television is also a force for nationalisation, of fostering Sydney's interest in Shark Bay, and the like.

The majority of those public servants who draft such Agreements as those of '92 do so in good faith in furthering the policies of their respective governments.  Much effort is involved.  It would be as well if they were aware of the positions faced by their equivalents in both the government of Alberta and the Canadian Government in regard to third-party action on the Oldman River Dam in 1990-1992 (see Appendix 2).

5.2 RELEVANCE OF INTERNATIONAL COMPARISONS

If one tries to make a prediction about the efficiency or otherwise of the NEPA in Australia there are few other countries whose historical experience is either useful or comparable.  The CEPA Position Paper, in 12 pages of its Appendix 2, gives a survey of national environmental agencies in the European Community, Canada, Denmark, Germany, Japan, The Netherlands, New Zealand, Sweden, United Kingdom and the USA. ⁽⁹⁹⁾  It draws not a single conclusion from them.  A more professional analysis, which must be considered in conjunction with the thrust of his overall paper, is given by Fowler for the USA, Canada and the European Economic Community. ⁽¹⁰⁰⁾

The closest comparison may be with Canada.  Two examples are discussed in Appendix 2 to illustrate two points:

• in Canada, National Parks are quite distinct from State or regional parks, and are administered by some 4,000 personnel of the Federal agency, Environment Canada;  and
• the $350 million dam on Oldman River was built after an Alberta environmental impact assessment, but in 1992 the Federal Court of Appeal ruled that a Federal EIA was required.  The Federal EIA recommended that the dam be decommissioned, after the State tried to stop the process and Federal departments were uncooperative.

In Australia, the Agreements of '92 may encourage moves by the Commonwealth agency, ANP&WS, to gain control of major National Parks;  while the Oldman River Dam example may encourage proponents of new projects to seek both State and Commonwealth EIA approvals, regardless of legal need.

The success or otherwise of the evolution and formalisation of Commonwealth involvement in environmental management in Australia first through the ANZECC, then through the CEPA, and then perhaps through the NEPA and its enabling legislation and complementary legislation in each State and Territory, could rest largely on a few key individuals.  The processes must be an Australian decision, recognising Australia's constitution, cultural history, environments and existing government structures.

5.3 REALPOLITIK -- THE CEPA VERSUS THE NEPA

The 39-page InterGovernmental Agreement on Environment (IGAE) is variously regarded.  It is said to be a historic document, purporting to establish "the ground rules" for future dealings between Commonwealth, State, Territory and Local governments on the environment.  It replaces the various bilateral agreements between Commonwealth and State Ministers and Departments, circa 1977, which dealt mainly with EIAs, and which largely accredited State processes.  Such agreements were not sufficient to prevent intergovernmental conflicts on the EIA of the Wesley Vale paper mill.

The scope of the IGAE is far broader than these earlier agreements relating to EIAs.  The IGAE nationalises and nominally federalises Australian environmental interventions and controls by governments.  It combines statements of claims by the various stakeholders (Section 2) and a process of accommodation of interests.

For example, consultation by the Commonwealth prior to entering international agreements will have regard to this Agreement (Section 2.5.2).  The IGAE contains sections on defining Commonwealth interests (Section 2.5.3) and duplication of interests (Section 2.5.4).  But it is very much a blueprint for Commonwealth initiatives, and hence for the CEPA, with possible flow-on to the NEPA.  The IGAE sets out the basis for the proposed National Environment Protection Authority (Schedule 4).

There is no obvious role for the States in the actions of the CEPA.  There is perhaps no reason to doubt the goodwill and the intentions of Commonwealth consultation regarding the gradual and inevitable expansion of the CEPA.  But in the event of conflict, the CEPA is Commonwealth and responsible directly only to the Commonwealth Minister.  That is that.

Commonwealth instruments can be as fully enabled as may be, via such devices as the external affairs power and international conventions as wide-ranging as the Climate Convention and the Biodiversity Convention.  In the spirit of consultation and cooperation of the IGAE, it is generally expected that the Commonwealth will make pace-setting legislation and the States will enact complementary legislation.

Selfish politics can motivate a Commonwealth government as readily as it can a State government.  The endangered species legislation which was so controversial initially in 1992 has now been passed by Federal Parliament.  Processes of consultation leading to both a National Biological Diversity Strategy and a National Endangered Species Strategy appear to have been largely ignored in the rush to meet the perceived urgency of the Federal statute.  The repercussions of that Federal rush into these important and far-reaching strategies are not yet assessed, but it is understood that this Federal legislation is not regarded highly as a model.  Many governments had significant earlier statutes, or were reviewing the needs.

One might consider that the CEPA, the Convention on Climate Change and the National Greenhouse Response Strategy form a package that nationalises the physical environment, with the NEPA as El Supremo.

One might then speculate that a comparable package in the biological environment would be the Australian National Parks and Wildlife Service, the Convention on Biological Diversity, and a yet-to-be-made National Biological Diversity Strategy, with a yet-to-be-made biological clone of the NEPA as El Supremo.

One avenue for possible reassertion of State control might lie in the proposed NEPA.  Clearly the details depend on the enabling legislation, which is not yet available for perusal.  But conceptually, the two-thirds majority rule could lead to a gaggle of States seeking to exert control over a mooted Commonwealth action.

So the fascinating possibility might open up that, far from the proposed National Environment Protection Authority being a weapon for the Commonwealth bully to impose its environmental will wantonly on the beggarly States, the NEPA might actually be a potential protection against an intruding CEPA.

The realpolitik may be otherwise.  A NEPA which is serviced by a statutory Secretariat to the (Commonwealth) Chairman (which Secretariat draws its limited resources from wherever it can, such as the pools of existing talents in DASET and the CEPA, both of which report to the same Ministerial Chairman), would be heavily influenced by the Chairman.  Skills could be used in allocating priorities and agendas on a massive range of topics.  To put this into perspective, for many years the Commonwealth supplied the year-to-year secretariat to the Australian Environment Council, the nominal and informal predecessor of the NEPA, by means of one part-time officer drawn from full-time duties in DASET.  On the other hand, if the statutory Executive Office envisaged for the NEPA appointed and administered its staff, then there would undeniably be another layer of bureaucracy, a tenth environmental agency.  It is difficult to see how it would be justified in adding its own professional experts in, say, air and water pollution, to those in the CEPA, but it is difficult to see how it could be independent and national unless it did so.

Thus the only way that the NEPA could offer substantial environmental independence for the States and Territories would be if its Secretariat was located outside Canberra or with a Chinese wall of armour-plate against the CEPA or DASET intrusion.  The proposed Multi-Function Polis has been suggested in ambit claims.  Even then, and even with strong declarations of State independence in the enabling NEPA legislation, one cannot easily foresee any alternative to an ever-increasing expansion of Commonwealth intervention in environmental issues.

One saving grace could be the very range, variety and dynamics of environmental issues in Australia.  State and local involvement, administration and local decision-making are essential in the real world.  The issue is likely to be whether exercise of those powers is direct or by delegation of authority.  Already, conservation groups have suggested that anything short of direct, increased and centralised control will result in a lame duck" national agency. ⁽¹⁰¹⁾

Section 2.3.2 of the IGAE is an interesting assertion of States' rights, which seems at odds with the role of the NEPA:

Each State has responsibility for the policy, legislative and administrative framework within which living and non-living resources are managed within the State.

Yet the agreed power of the NEPA is that a two-thirds majority vote could force a minority State to follow NEPA policy and NEPA priority, rather than its own government's.

If the need for the NEPA is based on a hypothetical need for uniform national standards of air and water pollution, then that latter need has yet to be established, in matters other than human health.  As discussed earlier (Section 4.4 above) and later (Appendix 1), even if the need for uniform environmental standards was established, it is certain the different parts of the country would have different priorities.  The very notion of the NEPA and a two-thirds majority vote can tolerate no such differences.

All things considered, it is unsafe to proceed with the NEPA until the CEPA has established its own credibility, and tested the environmental and economic benefits of nationalisation of the environment.  The present agreement is for draft legislation for the NEPA to be presented to First Ministers before the end of April 1993. ⁽¹⁰²⁾  I suggest a deferral of at least a year, and a halt to the present moves to create the NEPA.

Specifically a deferral is recommended at least until the CEPA has demonstrated that its work has produced a significant and measurable outcome in increased industrial efficiency and improved international competitiveness, and more effective environmental protection (see Section 7 below).

One might even apply the precautionary principle (see Section 3.5 above) and say that until the nationalisation of the environment is fully known and has been proven to be beneficial, the NEPA is too great a risk, and should not proceed.

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ENDNOTES

98.  IGAE, Section 2.2.1.

99.  CEPA.

100.  Fowler, Proposal for a Federal Environment Protection Agency.

101.  Fowler, ibid.

102.  IGAE, Schedule 4, Section 23.