Perth, WA – EDOWA today released a 36-page white paper recommending against passage of the WA Government’s Biodiversity Conservation Bill 2015, at least in its current form.

The Bill, introduced in the Legislative Assembly on 25 November 2015, was touted by Premier Colin Barnett as a “momentous step forward in the conservation of the State’s biodiversity” and “a very significant achievement”.

EDOWA’s paper strongly disagrees with the Government’s assessment, however. According to the paper, the new law’s touted benefits “are illusory at best – a mirage”. While the paper recognises the Bill has some good features (repealing two obsolete laws, substantially increasing potential penalties for violations, providing a process for listing protected or threatened species and ecosystems), according to EDO Principal Solicitor Patrick Pearlman, “the new law takes a giant step back in many other ways”.

The Bill, Mr Pearlman said, “gives virtually unfettered discretion to either the WA Environment Minister or DPAW’s CEO in decision-making, leaves both the scientific community and the public out in the cold when it comes to identifying vulnerable species, critical habitat or key threatening processes, gives offenders defences that will likely undermine enforcement efforts, and broadly exempts government and industry from the new law’s reach”. “Even worse”, Mr Pearlman added, “the Bill appears to promote short-term declines to foster development and permits the Minister to allow species to be taken to the point of extinction”. “That’s simply repugnant to any notion of biodiversity conservation”, he said.

The paper notes that the new law fails to provide the deterrent of imprisonment that exists under many current laws. “Removing even the threat of jail time for harming highly threatened species is particularly disturbing given the Government’s current efforts to jail peaceful protestors for ‘interfering with lawful activity’”, Mr Pearlman said.

Keith Claymore, the paper’s co-author agreed, noting that “the Bill proposes to codify and mandate some programs and processes that been around for many years, but offers little more in the way of actively promoting and advancing biodiversity conservation at a State and bioregional scale”. “Significantly absent in the Bill, when compared to other Australian and overseas biodiversity laws, are provisions for a statewide biodiversity strategy or periodic evaluation and reporting on the state and condition of WA’s biodiversity”, Mr Claymore added.

“Lack of provisions to establish an independent scientific advisory committee to assist with the future Act’s implementation, and lack of provisions for sandalwood management that reflected best practice standards and ensured sustainable use was of particular concern to us”, he said.

EDO’s white paper is being published to encourage informed debate and to ensure the new law isn’t adopted without significant amendments – including allowing citizens to enforce its provisions – and is available on request. The Bill is expected to be debated in Parliament before State elections next year, possibly in this sitting period.

In a decision handed down today, Chief Justice of the WA Supreme Court, Wayne Martin, overturned the WA Environmental Protection Authority’s September 2013 decision to recommend approval of the so-called Roe 8 highway extension. The extension would put a high-speed, limited access freight highway through the middle of the Beeliar Regional Park and would have resulted in what the State conceded were “significant” impacts on critically sensitive wetlands and threatened species of flora and fauna, including 2 species of black cockatoo, the Southern Brown Bandicoot and the Graceful Sun Moth.

The application for review was filed on behalf of Save Beeliar Wetlands (Inc) (SBW), a coalition that has, in one form or another, opposed the RHE 8 project since the current Government first announced its commitment to build the highway extension during the 2008 State elections. The Application was also filed on behalf of Carole de Barre, an individual whose property adjoins the proposed highway extension. Among other things, the application for review claims that the EPA’s environmental assessment of the RHE 8 was affected by the participation of Authority members who were interested in the project’s approval.

The EDOWA said that “In 2013, the State’s approval of a proposed, $45 Billion natural gas processing and export facility at James Price Point north of Broom, was set aside because the EPA failed to properly exclude conflicted members from participating in the assessment. In the approval of the RHE 8 project – another billion dollar-plus project – we see yet again the participation of conflicted Authority members in a State-led project’s assessment. The process once again has let WA’s citizens down.  While not specifically named in the application for review, EDOWA noted that the interests of two (2) former EPA members were implicated, namely: (1) Dr Chris Whitaker, who served as an EPA member from 11 May 2007 (and Deputy Chairman from 18 November 2009) to 17 November 2012, and (2) Dr Rod Lukatelich, who served as an EPA member from 18 November 2009 to 10 May 2014.

Both members, had conflicts of interest that contributed to the Court’s 2013 rejection of the James Price Point gas project. The judicial challenge does not turn solely on conflict or bias, however. “We have also challenged the EPA’s (and Minister’s) failure to consider alternative road alignments or ‘no build’ options in the assessment process and the failure to properly apply EPA policy regarding environmental offsets”, SBW Chairperson Kate Kelly said. “For instance, while Main Roads originally proposed to acquire 468 ha of land to offset Black Cockatoo habitat lost in the highway extension, EPA cut that Medicommitment in half – to 234 ha – and then left the specifics ‘to be decided later’”, she noted. The RHE 8 project is currently awaiting Federal environmental approval.