Part
3a and Other Conservation Impediments by Alan W
Stephenson
THE
Part 3a referred to in the title of this piece, is Part 3a of
the NSW Planning Act. It is not a new piece of legislation but it
first crossed my radar last year prior to my writing of
yet another submission regarding a development which
had the capacity to decimate two populations of
terrestrial orchids, one listed as Endangered under the
Commonwealth Environment
Protection Biodiversity Conservation Act 1999 (EPBC Act
1999) and as Endangered (Schedule I, Part 1) under the NSW
Threatened Species Conservation Act 1995, (TSC Act 1995). The
other species is listed as a Vulnerable Species under both acts. Neither
species is amenable to pot culture, as one is a
saprophyte and the other relies totally on an insect for
reproduction and this insect is quite specific in its habitat
preference, aside from the fact it was only able
to fly about 200 metres, on a good
day.
As
I gathered information outside of the 600 pages presented by the
developer, the words Part 3a kept arising so I decided
to determine what this meant. After viewing the development
proposal as listed on the
website of Planning NSW, I telephoned the contact
number to be informed Part 3a referred to any development
greater than $50M in value, which certainly applied
to this development. Unfortunately this information was
incorrect as the value of the development is
immaterial. The spokesperson also told me the development was
considered "State Significant" (core phrase) as it was to be constructed on a
site which was home to 33 threatened species of flora
and fauna. I said words to the effect "if it was that
significant, why was it the site of such a development?" The
spokesperson was unable to answer that question. Part 3a in a nutshell is any
development the Minister for Planning deems to
be "State Significant" and with that he is the sole
consent authority regardless of the quality or quantity of
threatened species in situ. Developers whether private or a government body can
ask for their project to be declared "State Significant" and
if successful, the local government body which might
normally be the consent
authority for the project, is removed from their position of
authority. Despite this, more than one local Council
has decided to use this to thwart conservationists, as the
usual conservation consent authority is the
Department of Environment and Conservation (DEC). There
is method in their madness to remove this authority from the
decision making.
As
I have in recent years, spent considerable time alongside the
dedicated field officers of the DEC I have great respect for
their work ethic and knowledge. However this knowledge and
experience is
limited to advice only in the case of Part 3a. This
body with a wide experience and knowledge of threatened
species of flora and fauna has effectively been
sidelined, as they may give advice but there is no obligation, either
legal or moral, to heed this advice. Personally I get rather
depressed when decisions regarding threatened
species are made by the wrong department and one
with little expertise. If one were to make a brutal assessment
of Part 3a, it
could be said a "State Significant" decision could be declared on a garden
shed on an otherwise vacant block of
land.
Now
to the EPBC Act as it has as many built in
"Developer Friendly Loopholes". Under this act,
if
an environmental assessment, conducted in the normal manner
prior to an intended development, happens to reveal threatened
species of flora or fauna or an endangered ecological
community, it should (not must) be referred to the DEH for
assessment to see if the development can proceed without
endangering any EPBC listed species. However, the only person able
to make a referral is the proponent or an authorised
agent of the proponent. This means if the average orchid
wanderer manages to find
an EPBC listed species on the proposed development
site he/she cannot legally refer it to the DEH. I was told by
a DEH official that a referral can be made by
undertaking a "very costly and usually lengthy court
process." So much for public availability to our legal
process. And don't even bother trying to get any information
via the Freedom of Information Act. In reality this should be
renamed, The Freedom to Restrict Information Act. At this
point of time the EPBC Act is undergoing several changes to
allegedly rid the act of red tape and make it easier to
use. This is government speak for little or no ministerial or
departmental oversight
with many important parts of the act being
softened to make it almost voluntary. This is what happens
when we give a government of any persuasion almost total control
of parliament. This is the case with the
Commonwealth but similar moves are afoot in the state
parliament, so there is no joy for those in these departments
who have an environmental ethic but are restricted by poor
legislation.
Another
matter surfaced early in 2007 when I
was contacted regarding Polblue Swamp in the Barrington Tops.
This is a beautiful and orchid rich area of montane habitat
which is facing a serious problem. The story is that only
a couple of years ago during construction of a bridge
at a nearby golf course,
rubies and sapphires were revealed and a small scale mining operation has
been underway since
2000, without any public scrutiny. The mining company now plans to
increase activity and apart from destruction or orchids
and habitat, the matter
of water usage and pollution of the Barrington and
Gloucester Rivers becomes a concern. The mining increase will
involve large diameter drilling of these rivers
and several creeks in the Barrington Tops area with
operations within 10 metres of these rivers. All of
this is legal under a Private Mining Agreement and the
exploration license number is EL 5336 and in May 2006 a
further license (EL 6451) was approved extending the
allowable area of
operation. The diversion of a river via culverts is
also a consideration and you thought this only happened in
Third World Countries.
The
problem as I and many others see it is that
these legal operations are being undertaken in a
State Conservation Area. I hope I am not alone but
mining in a State Conservation Area does not sound like a
conservation activity. The area was previously a State Forest
but under the Regional Forest Agreement of only a few years
ago the area was
transferred to one then known as a State Recreation
Area. Many of these State Recreation Areas are now known as
State Conservation Areas and mining is permitted in all of
them. Plans of management
are currently being devised for many of these State
Conservation Areas but the impending NSW election has
seen them put on hold. It is pertinent to note the NSW
Scientific Committee have listed the montane peat
lands and swamp lands as Endangered Ecological
Communities and this
refers to all Sub-Alpine Swamps in the Barrington Tops.
The 12 rivers and many creeks which descend from the
Barrington Tops, supply water to the Manning River, Great
Lakes, Port Stephens, Hunter and Central Coast Regions and a
population of approximately 1,000,000 people. The Central Coast is currently under
severe water restrictions and a $30m pipeline
connecting the water supply of the Hunter with the
Central Coast was completed in December 2005. The water is
pumped from the Williams River, one of those beginning on
Barrington Tops.
To
me the issue of conservation is clear and this proposal is
being undertaken for 6-8 jobs. Any economic value emanating
from these jobs will be soon overtaken by the cost of
environmental reparation and loss of water
quantity and quality from this legal operation; however
I fear that for orchid lovers, the loss of species could be
with us for all time.
These
are just a few problems associated with
a range of legislation, allegedly designed to
protect
our environment. Unfortunately since I assumed the position of ANDS
National Conservation Officer, I am yet
to see a development in an area where
threatened species orchids are known to occur, to
either be refused or directed to another site, as with all
developments some loss of species is certain to occur and
regrettably, more certain
to be permitted than rejected under either state or
federal legislation.
Alan W
Stephenson
Conservation Director
Australian
Orchid Council (AOC
