With the number of threatened species rapidly increasing, and those species having increasingly critical conservation status, developers and assessment agencies must be aware of the implications of changes to the threatened species list for current and future project assessments and approvals.
In light of National Threatened Species Day on 7 September, this Insight - part 1 of a two-part series - considers those implications. Part 2 looks at what might be next for Australia’s threatened species laws.
The recently released 2021 Australia State of the Environment Report (2021 Environment Report) has confirmed the seriousness and extent of Australia’s biodiversity loss. In brief, the 2021 Environment Report found that the current state of Australia’s biodiversity and ecosystems is poor and the overall trend is deteriorating. For a detailed review of the 2021 Environment Report, see our Insight ‘State of the Environment Report 2021: key findings and takeaways for Australian businesses’.
Listing of threatened native species and ecological communities under the EPBC Act
A consequence of increasing biodiversity loss is that more native species and ecological communities will be listed and its conservation status upgraded on Australia’s threatened species and ecological communities lists under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and similar state and territory lists.
Under the EPBC Act, the Federal Minister for Environment and Water (Environment Minister) must establish a list of threatened native fauna and flora species (Threatened Species List) and a list of threatened ecological communities (Threatened Ecological Communities List). These lists classify native species and ecological communities into varying categories of conservation status, including vulnerable, endangered and critically endangered.
If a species or ecological community is listed on the Threatened Species List or Threatened Ecological Communities List, its recovery is promoted through several mechanisms including:
- Conservation advice: which sets out the reasons for a species or ecological community being eligible for listing, as well as information about what could be done to prevent the decline of, or support the recovery of, the species or ecological community.
- Recovery plan: which sets out the research and management actions necessary to stop the decline of, and support the recovery of, the listed species or ecological community so that the chances of its long-term survival in nature is maximised.
- Assessment and approval under the EPBC Act: activities, projects or developments that are likely to have a significant impact on a threatened species or ecological community are assessed and approved under the EPBC Act.
Koalas now ‘endangered’
On 2 May 2012, Koalas in Queensland, NSW and the ACT were listed as ‘vulnerable’ under the EPBC Act. Since then, loss of habitat, disease and bushfires have affected Koalas. In response, on 12 February 2022 the conservation status of Koalas in Queensland, NSW and the ACT was upgraded from ‘vulnerable’ to ‘endangered’ under the EPBC Act.
Since February 2022, a further nine fauna species and three flora species have been either included on the Threatened Species List or had their conservation status upgraded. Three new ecologically endangered communities have also been included on the Threatened Ecological Communities List.
The 2021 State of the Environment Report predicts that the number of listed threatened species and ecological communities will continue to grow substantially in coming years, particularly as a result of the 2019-2020 bushfires.
Implications of the upgrade in conservation status at a Commonwealth level
Updated Commonwealth policies
Upgrades in conservation status can trigger a suite of new policies and strategies for the conservation of the threatened species and / or ecologically community.
For example, since the upgrade of the status of the Koala to ‘endangered’, the federal Department of Environment and Energy (DEE) (formerly known as the Department of Agriculture, Water and Environment) published an updated Conservation Advice and the “National Recovery Plan for the Koala” (National Recovery Plan)
The National Recovery Plan sets 2032 targets and includes the following objectives:
- stabilising, maintaining and increasing Koala populations;
- maintaining and improving metapopulation processes; and
- ensuring that Indigenous Australians, communities and other partners (such as local, state and territory government agencies, non-government conservation organisations and researchers) have a greater role and capability in Koala monitoring, conservation and management.
In order to meet these objectives by the 2032 target, the National Recovery Plan sets out a number of strategies, which include increasing and restoring Koala habitat (including protected habitat), integrating Koala conservation into policy, statutory and land use plans and actively managing Koala metapopulations.
The DEE is also currently preparing updated Referral Guidelines under the EPBC Act to reflect the updated status of the Koala as endangered. These Referral Guidelines assist project proponents determine whether their project may have a significant impact on the Koala and therefore require assessment and approval under the EPBC Act.
The Koala Referral Guidelines currently published on the DEE’s website relates to the Koala’s previous listing as ‘vulnerable’ and has been marked ‘not for use’. No announcements have been made as to when the new Referral Guidelines for the now ‘endangered’ Koala will be released. This gap has the potential to lead to delay and confusion in assessing whether there are significant impacts on the Koala, which is already a complex process.
Implications for projects requiring assessment under the EPBC Act
Existing projects which have been lodged, but have not yet had their assessment processes completed under the EPBC Act prior to the upgrade of the Koala status to endangered (or any other changes to the species and ecological community listings), are not impacted by changes in listing.
The EPBC Act provides that a number of decisions relating to the approval process (‘approval process decisions’) are not impacted by such changes, including a decision as to whether an action is a controlled action or not and whether to approve an action. In addition, the change in listing must be disregarded in making any further approval process decisions in relation to the project.
Therefore, projects that were under assessment prior to the change to the conservation status of the Koala to ‘endangered’ will continue to be assessed on that basis.
However, all new projects which were, or will be, referred under the EPBC Act since the status change will need to be assessed having regard to the endangered status of Koalas in Queensland, NSW and the ACT. That is, the assessment will need to consider actual and potential impacts of development on the koala and its habitat in circumstances where the koala is now ‘endangered’ rather than ‘vulnerable’.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.