Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Report 178
2. 2. Bonn Convention-amendments

Introduction

2.1
This Chapter reviews the Amendments to Appendices I and II to the Convention on the Conservation of Migratory Species of Wild Animals. The Amendments were adopted by the 12th Conference of the Parties to the Convention, held in Manila, Philippines, from 23 to 28 October 2017.[1]
2.2
The Convention on the Conservation of Migratory Species (called the Bonn Convention) is a multilateral convention that entered into force in 1983. Australia has been a Party to the Convention since 1 September 1991.[2]
2.3
The Bonn Convention seeks to conserve terrestrial, avian and marine species that migrate across or outside national jurisdictional boundaries.[3] The Convention establishes two categories that define the conservation status of a migratory species: ‘endangered’ for a migratory species that is in danger of extinction throughout all or a significant proportion of the area of land or water that it inhabits (its range), and ‘unfavourable conservation status’ where the requirements for a favourable conservation status are not being met.[4]
2.4
Parties to the Bonn Convention are obliged to:
acknowledge the importance of conserving migratory species and the need to take action to avoid migratory species becoming endangered;[5]
promote, cooperate and support research relating to migratory species;[6]
if they are Range States[7] for species listed in Appendix I, endeavour to take specific measures to conserve the species and its habitat, to prevent the adverse effects of activities that impede or prevent migration and, wherever possible, to prevent or minimise factors that endanger the species;[8]
make the taking of Appendix I species prohibited, subject to limited exceptions;[9] and
if they are Range States for species included in Appendix II, endeavour to conclude agreements where these would benefit the species and give priority to those species having an unfavourable conservation status.[10]

Amendments to Appendix I and Appendix II

2.5
The Convention includes two Appendices listing the species to which the Convention provisions apply. Appendix I lists migratory species which are endangered and Appendix II lists migratory species which have an unfavourable conservation status. Parties to the Convention must protect migratory species listed on Appendices I and II that live within, or pass through, their jurisdiction.[11]
2.6
Article VII of the Bonn Convention requires a Conference of the Parties (COP) to be held every three years. One of the purposes of the Conference is to agree amendments to the Appendices of the Convention. Under Article XI(5), amendments to the Appendices enter into force automatically for all Parties 90 days after the meeting of the Conference. The amendments agreed at the 12th COP entered into force automatically on 26 January 2018.[12]
2.7
Under Article XI(6) any Party may make a reservation with respect to a proposed amendment during the 90 day period.[13]
2.8
Thirty-four species were added to the Appendices at the 12th COP. Australia is a Range State for five of these species, listed in Table 1.
2.1 Five species added to the Appendices of the Bonn Convention at the Conference of the Parties held in October 2017 for which Australia is a Range State
Species
Nominated for
Christmas Island Frigatebird
(Frigate andrewsi)
Appendix I
Whale Shark
(Rhincodon typus)
Appendix I
Dusky Shark
(Carcharhinus obscurus)
Appendix II
Blue Shark
(Prionace gluauca)
Appendix II
Whitespotted guitarfish
(Rhynchobatus australiae)
Appendix II
Source: Compiled from the National Interest Analysis, paragraphs 3 and 4.
2.9
Australia will not lodge a reservation to the listing of the Christmas Island frigatebird or the whale shark which have been included in Appendix I. According to the National Interest Analysis (NIA), these treaty actions are in the national interest as they reinforce Australia’s commitment to the international protection and conservation of migratory species.[14]
2.10
The NIA states that Australia will lodge reservations in relation to the dusky shark, the blue shark and the white-spotted wedgefish, or white-spotted guitarfish as it is known in Australia, which have been added to Appendix II. The NIA notes that Australia supports conservation efforts for these species and will continue to cooperate in international efforts including through the Memorandum of Understanding on the Conservation of Migratory Sharks to which Australia is a signatory. However, the NIA explains that the purpose of the reservations for these species is to avoid unintended consequences in domestic law that arise automatically upon listing.[15]

Amendments for which proposed reservations will be lodged

2.11
According to the NIA, reservations are required against the dusky shark, the blue shark and the white-spotted guitarfish to avoid enlivening unintended measures under Australia’s domestic law that go beyond Australia’s obligations under the Convention. Reservations are not considered to negate Australia’s support of international action related to these species. The NIA claims that Australia maintains suitable domestic management measures, and will continue to cooperate internationally to promote their conservation.[16]
2.12
The NIA also points out that Australia is a signatory to the Memorandum of Understanding (MoU) on the Conservation of Migratory Sharks, developed under the Convention.[17] Relevant species included in Appendix II will automatically be considered for inclusion in that MoU and the NIA says that this will cover the dusky shark, the blue shark and the white-spotted.[18]
2.13
Inclusion of these species on Appendix II would oblige Australia to ‘endeavour to conclude agreements where these should benefit the species’. However, the NIA argues that once listed on either Appendix to the Convention, under the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) the Minister is obliged to include that species on the list of migratory species established under that Act. Therefore, once listed as a migratory species under the EPBC Act, irrespective of whether it is listed on Appendix I or II, it becomes an offence under the Act to kill, injure, take or move the species in Commonwealth areas.[19]
2.14
As the Committee noted previously in Report 149, the provisions of the EPBC Act reflect the protections provided to migratory species listed in Appendix I of the Bonn Convention. In particular this includes the prohibition on the taking of these species except in very limited circumstances. Therefore the listing of these species in Appendix II would automatically result in a prohibition of the taking of these species under the EPBC Act, even though that is not a requirement of the Bonn Convention.[20] Thus, the NIA concludes that Australia’s domestic measures go well beyond that required by the Convention for Appendix II listed species.[21]
2.15
The NIA indicates that these three species are currently caught in various Australian fisheries, both commercial and recreationally, and are subject to suitable domestic management measures consistent with conservation efforts required for species listed on Appendix II. The NIA states that there are strict management measures in place to manage the recreational take of shark species within Australian waters. Application of the domestic take prohibition to these three species is therefore considered to interfere with appropriately managed commercial and recreational fisheries, beyond what is required by the Convention.[22]

Amendments for which reservations will not be lodged

2.16
Of the remaining 31 species to be added to the Appendices, Australia is a Range State for only two of them.[23] These two species will be added to Appendix I. Species listed on Appendix I are considered endangered and therefore the take prohibition applies. Therefore, the NIA notes that the imposition of the EPBC Act prohibition for these species does not go beyond Australia’s obligations under the Convention.[24]

Implementation

2.17
Under the EPBC Act, species listed on Appendices I or II for which Australia is a Range State must be included on the list of migratory species. The Christmas Island frigatebird and the whale shark added to Appendix I are already listed as migratory species under the EPBC Act.[25]

Costs

2.18
The NIA does not expect the amendments to impose any additional costs on Australia in terms of meeting its obligations under the Convention.[26]

Conclusion

2.19
The Committee noted in previous reports that the timing of the COP and the requirements of the Convention make it difficult for it to meaningfully consider any reservations that the Australian Government proposes to make to amendments to Appendix I and II of the Bonn Convention.[27]
2.20
In this case, the COP took place in October 2017 and the Australian Government had until 26 January 2018 to lodge reservations. The timing, as in the past, meant that the Committee was unable, due to the Christmas recess and the sitting pattern, to consider the proposed reservations before lodgement.
2.21
The Committee acknowledges the timely notice with which the Minister for the Environment and Energy alerted the Committee to the proposed reservations on this occasion. This allowed the Committee to consider the issues and gather further information.
2.22
The Committee encourages the Minister and the Department to continue this practice and provide information regarding proposed reservations in a timely manner to the Committee.
2.23
The Committee acknowledges, as it has done previously, that if these reservations are not made Australian fishers would break the law if they caught a member of these species.
2.24
The Committee reiterates its comments from Report 149, acknowledging that, as the EPBC Act has not been amended, the Government has no alternative in these circumstances but to seek a reservation in relation to particular migratory species listed in Appendix II. However, the Committee notes that lodging reservations in this manner has the potential to be misinterpreted as diminishing the level of protection afforded to the migratory species in question.[28]
2.25
The Committee concurs with the NIA that these treaty actions are in the national interest as they reinforce Australia’s commitment to the international protection and conservation of migratory species. However, as the reservations have already come into effect, the Committee does not need to make a recommendation in relation to this treaty action.

[1]     

National Interest Analysis [2017] ATNIA 32 with attachment on consultation Amendments to Appendices I and II to the Convention on the Conservation of Migratory Species of Wild Animals, (Manila, 28 October 2017) [2017] ATNIF 43, hereafter referred to as NIA, para 1.

[2]     

NIA, para 6.

[3]     

NIA, para 6.

[4]     

Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979) (hereafter referred to as the Bonn Convention), Article I.

[5]     

Bonn Convention, Article II.

[6]     

Bonn Convention, Article II.

[7]     

Range States are the parties to the Convention over which a particular migratory species ranges.

[8]     

Bonn Convention, Article III.

[9]     

Bonn Convention, Article III.

[10]     

Bonn Convention, Article IV.

[11]     

NIA, para 2.

[12]     

NIA, para 2.

[13]     

Bonn Convention, Article XI(6).

[14]     

NIA, para 3.

[15]     

NIA, para 4.

[16]     

NIA, para 9.

[17]     

NIA, para 4.

[18]     

NIA, para 21.

[19]     

NIA, para 10.

[20]     

Joint Standing Committee on Treaties (JSCOT), Report 149: Treaties tabled on 10 February 2015, May 2015, p. 7.

[21]     

NIA, para 10.

[22]     

NIA, para 11.

[23]     

NIA, para 12.

[24]     

NIA, paragraph 12 and 14.

[25]     

NIA, para 20.

[26]     

NIA, para 23.

[27]     

JSCOT, Report 125: Treaties tabled on 7 and 28 February 2012, June 2012, p. 15; JSCOT, Report 149, p. 6.

[28]     

JSCOT, Report 149, p. 10.