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Australia – UNESCO’s Queensland Visit: What Does It mean For The Great Barrier Reef?

30 May 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment 

 

In June 2011, the World Heritage Committee expressed "extreme concern" at the approval of a number of large projects within the Great Barrier Reef World Heritage Area in Queensland.

 

The Australian Government responded by committing to a comprehensive strategic assessment of the area under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

 

The strategic assessments could result in a change to existing approval frameworks, but any changes are likely to be some time away.

 

The draft terms of reference for the strategic assessments are open for submissions until 13 April 2012.

 

Introduction

 

In June 2011, the World Heritage Committee (WHC) expressed "extreme concern" at the approval of a number of large projects within the Great Barrier Reef World Heritage Area (GBRWHA), sparking a renewed public focus on the impacts of large-scale development on the Reef. The Government's response has been to commence a comprehensive strategic assessment of the GBRWHA under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

 

So what is the WHC's role in protecting the Great Barrier Reef, and how can it influence Australian Government decision-making? More importantly for industry, what will the recently commenced GBRWHA strategic assessment process mean for coastal development?

 

In June 2011, the World Heritage Committee (WHC) expressed "extreme concern" at the approval of a number of large projects within the Great Barrier Reef World Heritage Area (GBRWHA), sparking a renewed public focus on the impacts of large-scale development on the Reef. The Government's response has been to commence a comprehensive strategic assessment of the GBRWHA under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). So what is the WHC's role in protecting the Great Barrier Reef, and how can it influence Australian Government decision-making? More importantly for industry, what will the recently commenced GBRWHA strategic assessment process mean for coastal development?

 

The WHC's role in protecting the Great Barrier Reef

 

The WHC is an arm of the United Nations Environmental, Scientific and Cultural Organisation (UNESCO). It is responsible for the implementation of the 1972 World Heritage Convention, which aims to protect and preserve sites of universal cultural or environmental significance. Universally significant sites – which include the Great Barrier Reef, as well as Kakadu National Park and the Sydney Opera House – are placed on the World Heritage List, and the relevant State Parties (countries) are given responsibility for their protection and preservation.

 

At a national level, the Australian Government has implemented its international responsibilities under the World Heritage Convention through the EPBC Act. The EPBC Act prohibits a person taking an action that has, will have, or is likely to have a significant impact on the world heritage values of a World Heritage Property, unless the person has approval under the Act (s12). Impacts on the Great Barrier Reef Marine Park (s24B) are similarly prohibited without approval. These controls allow the Australian Government to assess and consider – and where appropriate, prevent – impacts on these internationally recognised sites, to ensure their ongoing protection. 

 

However, the WHC's June 2011 decision was critical of the approvals processes that had permitted significant development in the Great Barrier Reef Marine Park in Queensland. The decision:

 

 noted "with extreme concern" the approval of liquefied natural gas processing and port facilities within the Great Barrier Reef Marine Park;

 

 "urged" the Australian Government to undertake a "comprehensive strategic assessment of the property, identifying planned and potential future development that could impact on the Outstanding Universal Value to enable a long-term plan for sustainable development that will protect the Outstanding Universal Value of the property";

 

 requested the Australian Government to invite a WHC "reactive monitoring mission as soon as possible to consider the state of conservation of the property as a whole"; and

 

 requested the Government to submit, by 1 February 2012, "a report on the course of action taken in response to this decision".

 

Australian Government's Response

 

On 1 February 2012, the Australian Government presented the State Party Report on the state of the conservation of the Great Barrier Reef World Heritage Area to the WHC. The report contained the Government's responses to the WHC's decision.

 

Significantly, the report committed to undertaking comprehensive strategic assessments of the GBRWHA, pursuant to processes set up under the EPBC Act.

 

What is strategic assessment?

 

According to the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), strategic assessment is a collaborative assessment process between the Federal Government and a proponent (which can include State or Local Governments as well as industry). Under Chapter 4, part 10 of the EPBC Act, the Federal Minister for Sustainability, Environment, Water, Population and Communities (Minister) can agree to conduct a "strategic assessment" of the impacts of actions proposed to be taken under a policy, program or plan. Policies, programs or plans can include, for example, large-scale industrial developments, regional-scale development plans and water extraction or use policies.

 

The aim of strategic assessment is to provide a broad, "landscape-scale" assessment of environmental impacts. It allows the Minister to consider multiple impacts – including cumulative impacts – on all matters of national environmental significance, potentially by different parties or projects. Strategic assessment is also intended to be proactive instead of reactive – assessment of impacts generally takes place ahead of proposed developments, instead of in response to an existing proposal.

 

According to DSEWPC, strategic assessment may be the most appropriate form of assessment for high growth areas with a number of projects requiring assessment and approval, projects involving multiple stakeholders or complex, large scale actions.

 

What is the strategic assessment proposed for the GBRWHA?

 

The comprehensive strategic assessment proposed by the Australian Government for the GBRWHA will be undertaken in conjunction with the Great Barrier Reef Marine Park Authority (GBRMPA) and the Queensland Government. It has two components:

 

  • a strategic assessment of the marine ecosystem and GBRWHA islands, to be led by the Great Barrier Reef Marine Park Authority; and
  • a strategic assessment of the Great Barrier Reef coastal zone, to be led by the Queensland Government. 

 

According to the DSEWPC, the comprehensive strategic assessment will "help identify, plan for and manage existing and emerging risks to ensure ongoing protection and management of the unique environmental values of the [GBRWHA] and the adjacent coastal zone". This will be achieved by investigating the adequacy of the existing management arrangements for the GBRWHA, and by assessing current and future development policies and planning in the GBRWHA and the adjacent coastal zone and analysing the likely direct, indirect and cumulative impacts.

 

Agreements between the Federal Government, the GBRMPA and the Queensland Government establishing the strategic assessment were finalised in February of this year, and draft terms of reference have now been published for both components of the strategic assessment. The draft terms of reference set out the requirements for the preparation of the strategic assessment reports.

 

For the coastal component of the assessment, the strategic assessment report will assess the potential impacts on matters of national environmental significance from the implementation of the Queensland coastal management, planning and development framework. The marine component will assess the impacts arising from the implementation of the GBRMPA management arrangements for the Great Barrier Reef Marine Park. These frameworks and arrangements constitute the "programs" being assessed through the GBRWHA strategic assessment process.

 

What's next?

 

The draft terms of reference are open for public submissions until 13 April 2012, and details for making a submission are available here.

 

Once the terms of reference are finalised, the strategic assessment reports will be prepared, released for public comment, and then provided to the Minister in final form.

 

If the Minister is not satisfied that the report adequately addresses the impacts of actions on matters of national environmental significance in the strategic assessment area, or that the programs provide for adequate protection of matters of national environmental significance, he or she can make recommendations to amend the relevant program.

 

Once satisfied, the Minister will endorse the programs (including any modifications made as a result of the recommendations described above) as adequately addressing the impacts to which the agreements relate.

 

The Minister then also has the opportunity to approve the taking of an action or class of actions in accordance with the endorsed program.

 

What is the likely outcome?

 

At a practical level, there could be any of a number of outcomes arising from this comprehensive strategic assessment.

 

The Minister may endorse the existing coastal and marine "programs", leaving the existing environmental assessment and approvals framework intact. Alternatively, he or she may make recommendations for changes to the various frameworks that may impact on the assessment and approvals processes relevant to coastal development.

 

Once the relevant programs are endorsed, the Minister may also approve (or approve with conditions) actions or classes of actions taken in accordance with the approved programs. Where such actions are approved under the endorsed "program", the Minister will be taken to have approved them under the EPBC Act, and the assessment provisions of the EPBC Act will not apply.

 

Conclusion

 

The Australian Government has described the GBRWHA strategic assessment as "by far the largest and most comprehensive strategic assessment undertaken in Australia". The assessment is an important step in ensuring the Great Barrier Reef is adequately protected. However, considering the complexity of the proposed assessment – and given the lengthy timeframes experienced in other strategic assessment processes – the results of the assessment, and any subsequent changes, are likely to be some time away.

 

 

For further information, please contact:

 

Paul Wilson, Ashurst

paul.wilson@ashurst.com

 

 

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