12 March 2021

On Thursday 12 March, Senior EJA Lawyer Bruce Lindsay gave evidence at the Parliamentary Inquiry into Ecosystem Decline. The Committee heard from scientists, experts and communities of the deteriorating state of Victoria’s ecosystems. Read Bruce’s opening statement below.

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“On behalf of Environmental Justice Australia, I thank the Committee for this opportunity to appear before you today.

EJA is a public interest environmental law firm. We primarily act for community groups in matters concerning protection of nature and the environment. We have also long engaged in law and policy reform work aimed at strengthening and improving our environmental laws and, through those laws, protect the environment and its benefits.

The Committee will hear in greater detail from scientists and communities of the deep peril our ecosystems presently face. Our ecological heritage is degraded. Many, if not all, Victorian ecosystems are deteriorating. Certain factors are commonplace, including habitat loss and impairment, invasive species, patterns of land and resource use, climate change, and pollution.

The outcome is pervasive threat of species extinction, reflected in threatened species lists, and, as recently highlighted by eminent scientists, ecosystem collapse. Ecosystems do collapse, into impoverished, irrecoverable shadows, or ghosts, of earlier forms.

EJA’s interest and expertise is in how our environmental and natural resources laws influence this state of affairs.

I will refer to some matters and solutions raised in our written submission, but I would like to set out certain overarching propositions concerning how law and its administration must approach the tasks of responding to ecosystem decline.

• First, the notion of ‘ecosystem decline’ does not quite capture the full gravity of the situation. Some ecosystems may face steady, incremental deterioration, resulting from pervasive, cumulative impacts. However, ecosystems do not function in a gentle linear fashion; they are both ordered and messy and confront non-linear changes including, as noted, collapse. Two prominent collapsing ecosystems identified by those scientists include Montane Ash forests and the water ecosystems of the Murray Darling Basin. These examples are telling. Their collapse is primarily being driven by law and policy, by statutory decisions and planning: primarily, logging on the hand and water diversion on the other hand. These trajectories are the product of resource management regimes, notwithstanding their environmental or ‘sustainability’ framing. These examples of ‘decline’ are not unique – statutory enabling of ecological harm, such as habitat loss, is pervasive in environmental, planning and resource laws – but they are exemplary of the regulated collapse of ecosystems. The conduct, circumstances and failings of these regulatory regimes have been forensically scrutinized by courts and a Royal Commission. We might ask whether that amounts to what has been termed ‘ecocide’.
• Second, an ‘ecosystem approach’ to law and governance is required. That is an obligation of international law. Law and practice needs to reflect and accommodate the complexity, dynamism and integrity of natural systems. This is not the prevailing approach. The present approach emphasizes in effect the triage of listed threatened species and a highly fragmented approach to management of discrete natural resources. The role of public lands in ecosystem management is highly variable.

The 2019 reforms of the Flora and Fauna Guarantee Act establish clearly an ecosystem approach to biodiversity law. Its intentions include not only protection, but recovery and restoration, of ecosystems. The issue is implementation of this Act.

• Third, an ecosystems approach informs the concept of ‘sustainability’ (or more accurately, ecological sustainability or ESD). Ecological sustainability is foundational to environmental laws, planning laws, natural resources laws, public lands, and marine and coastal laws. Ecological sustainability comprises a series of interlinked principles, rules and norms of law. Most relevant here are the precautionary principle, intergenerational equity, and the requirement to give ‘fundamental consideration’ to the conservation of biodiversity and to ecological integrity.

The basic problem is that sustainability is treated, at best, parsimoniously in decision- and policy-making; more commonly, it is given lip-service. Our view is that implementation of sustainability principles, or ‘giving effect’ to, or acting in accordance with ecological sustainability, must be the basic legal test and obligation under these laws.

The influence of sustainability ranges from ‘favoring’ sustainable outcomes to ‘having regard to’ sustainability principles. The law does not require ecologically sustainable outcomes; administration frequently forecloses them. The gap has occasionally been filled by courts and tribunals, such as in refusing or modifying developments or resource uses.

• Fourthly, in addition to ‘sustainability’ obligations there is another potentially powerful legal strategy. This is to recognize in law that all ecological resources are held on trust, as public resources, for the benefit of all Victorians. This is to set out clearly in legislation – and preferable as a constitutional principle – that ecological and biodiversity assets are distinctive ‘public goods’ whose management and ownership vests in the Crown and which the State holds on trust for benefit of the people. This is to embrace what is known as the ‘public trust doctrine’. It requires the State to manage our natural estate in a manner that preserves, protects and as necessary restores that estate for public purposes and in the public interest. In some ways, this approach is an extension of current law, which vests ownership of certain resources in the Crown and which the courts have recognized as a type of ‘supervisory’ ownership. For example, the Crown has primary authority over native wildlife, water and public lands. The public trust requires those resources to be managed ultimately for their common, public, which is to say inherent ecological, properties.

In the final part of this statement, I would like to deal with more specific issues and reform directions:

• The FFG Act has been revised and arguably ‘strengthened’ but its influence is entirely dependent on discretionary use of instruments under the Act, such as critical habitat protections, or implementation of obligations such as those applying to public authorities under section 4B. We are still awaiting implementation. We have no critical habitat protections. We see no clear, systematic efforts by the public sector to implement section 4B obligations. There has been no movement on updating or preparing Action Statements. Implementation of the FFG Act needs to be a priority and we need further reform of the Act to mandate implementation.
• The present Biodiversity Strategy is advanced as a panacea to ecological crisis and the means to so-called ‘improvement’ at a landscape-scale. This claim is at best brave; more likely misconceived. The method of the Strategy is driven by scarce (and declining) conservation funding. Its methodology is reflective of a predilection for threatened species modelling and limited conservation theory. In our view it has insufficient regard to the full complexities and dynamics of ecological systems. The Strategy is not organized at an ecosystem level, makes no reference to ecosystem recovery or restoration theory, and it is absent key ecological concepts such as keystone species or non-linear change. The Strategy does not systematically contend with one of the major sources of environmental degradation: statutory authorization of harm (such as through development or resource approvals). The Biodiversity Strategy should be revised in order that it align with restoration ecology science and the revised objectives of the FFG Act.
• Restoration is alluded to in law and policy but it has no legislative guidance. Principles and standards of ecological restoration are well-established in practice. They emphatically do not rest on planting a few trees or adding a bit of water. There are sophisticated scientific models, based on preventing ongoing degradation and rebuilding, to the maximum degree practicable, biological diversity, ecosystem complexity and function. They turn on recovery, noting that recovery (like decline) is a choice and depends of setting specific outcomes, targets and means for recovery. The use of environmental offsetting as a restorative device is, on all the scientific and practical evidence, a manifest failure. Its use as a first, rather than last, resort in decision-making was criticized by the recent Samuels Review and we know from experience there are strong pressures to use them in the same way in Victoria, such as through planning decisions. Offsets rules are not tied to restoration ecology. They largely enable decline. Compensatory approaches to ecosystem harm may be inevitable but we need new tools in this space.
• Finally, as legislators one of your tasks is oversight of government administration. The long-term failures of environmental administration is a key source of ecological crisis. We have seen that in Auditor-General reports on Ramsar sites and grasslands. The courts have found it in forestry. Other inquiries have found it in water management. It is not unique to Victoria. The experience of EJA and our clients and partners is that, aside from weaknesses in environmental and resources laws, a key failure is in implementation, observance, and enforcement of the law. We have a basic problem in the environmental rule of law. Frequently, the resources are not there, the will is not there, or the tools are not there to do the job of administration properly. EJA has posed responses to these problems in the form of reformed environmental assessment laws, independent institutions (such as a statutory regulator), much greater opportunity for citizen enforcement and participation, and far greater transparency and scrutiny of administrative actions.

In absence of serious legal and policy reforms the ecological situation will only get more dire. That is amplified and accelerated by climate shifts underway. If environmental laws and governance are merely a fig-leaf to development and resource use ‘business as usual’, which is more or less the current situation, ecosystems will not only decline, some will collapse. Communities will bear the brunt of this. They are already aware of that. They can read the science. They are doing their best to organize in the public interest to protect ecosystems in the face of interests organized to profit from their degradation.”

More information on the Inquiry here.

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