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Joint Standing Committee on Treaties
Treaties tabled on 7 February 2012

MONTGOMERY, Ms Narelle, Assistant Director, Species Conservation Section, Marine Biodiversity Policy Branch, Marine Division, Department of Sustainability, Environment, Water, Population and Communities

ROUTH, Mr Nigel, Assistant Secretary, Marine Biodiversity Policy Branch, Marine Division, Department of Sustainability, Environment, Water, Population and Communities

Amendments to Appendices I and II to the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979) done at Bergen on 25 November 2011


CHAIR: Welcome. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a formal proceedings of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. If you nominate to take any questions on notice, can you please ensure that your written response to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. I invite you to make any introductory remarks that you wish to make before we proceed to questions.

Mr Routh : The Convention on the Conservation of Migratory Species of Wild Animals is an intergovernmental treaty. It is concerned with the conservation of wildlife and habitats on a global scale. It came into force generally in 1983 and Australia has been a party to the convention since 1991. There are currently 117 parties or countries in total signed up. The convention seeks to conserve terrestrial, avian and marine species that migrate across or outside national jurisdictional boundaries. Parties to the convention must protect migratory species listed on its appendices that live within or pass through their jurisdiction.

The convention has two appendices. Appendix I lists those species which are in danger of extinction throughout all or a significant proportion of their range and, once a species is listed on that appendix, parties are obliged to endeavour to conserve and restore habitats, remove barriers to migration, control factors that are endangering the species and prohibit the taking of the species. Appendix II lists migratory species which are not endangered but have what is called an unfavourable conservation status and which require international agreements for their management and species with a conservation status that would benefit from international cooperation. Once a species is listed on appendix II, parties are obliged to endeavour to conclude agreements where they would be of benefit to the species.

Last year there was the 10th conference of parties to the convention and on 25 November there was an agreement to add an additional seven species to the appendices. This included the addition to appendix I and appendix II of two species that occur in Australian waters or territories. That is a bird, the eastern curlew, and the giant manta ray. The eastern curlew was included in appendix II of the convention back at its inception in 1983 and was proposed for inclusion in appendix I at this most recent conference of the parties last year. The giant manta ray was proposed for inclusion last year in both appendix I and appendix II. It is not common for appendix I and II dual listings to be proposed, but species can be determined as being eligible for listing on both. For example, a species beings considered endangered and as requiring strict conservation measures, such as no directed take and habitat protection and one that could also benefit from international cooperative action, could be the basis for being listed on both appendices.

Prior to reaching a decision on whether to support the listing of these two species on the appendices, we conducted extensive consultation with the relevant Commonwealth, state and territory government agencies as well as non-government conservation organisations and commercial and recreational fishing stakeholders. Broad support was provided by them for the inclusion of the eastern curlew and the giant manta ray on the appendices to the convention. So we actively took the committee's previous recommendations into account when engaging with stakeholders in the lead up to the 10th conference of the parties of last year. We undertook a very comprehensive consultation process on the two listings which were of direct interest to Australia and that is documented in the attachment to the NIA.

The committee will be aware that Australia's Environmental Protection Biodiversity Conservation Act imposes a domestic requirement that the species listed in either appendix 1 or 2 must be added to the list of what are called migratory species under the EPBC Act, to use the acronym. That act then makes it an offence to kill, injure, take or move listed migratory species in Commonwealth waters. So the act does not distinguish currently between species listed on appendix I and appendix II of the convention.

The eastern curlew is already listed under the act as migratory and is subject in addition to that to three international bilateral migratory bird agreements that we have with South Korea, China and Japan. As such, the domestic obligations arising from this appendix I listing have already been met. I would also like to take the opportunity to note that the current requirements to list all species on appendix I and II of the CMS as migratory was identified as an issue during the independent review of the EPBC Act, which was undertaken by Dr Hawke in 2009. Following extensive consultation, the Australian government has agreed to amend the process for listing migratory species to ensure that appendix II-listed species are treated appropriately with respect to their Australian situation. Until those proposed amendments are passed and come into effect, the process that is in place now will obviously continue, and those species need to be listed as migratory under the act. As per the minister's 3 February letter to the chair, the intention is to progress the listing of the giant manta ray as migratory under the act, once the committee has finalised its consideration of the national interest analysis.

Finally, I would like to note that the national interest analysis regarding this issue was tabled by us on 7 February this year, which was the first tabling opportunity that was available following the conference of the parties meeting in November last year.

CHAIR: This is probably as good a time as any to ask about the process for listing species as endangered, vulnerable and so on. Who decides and how are these things calculated? I can imagine that the criteria might be different from species to species—that 5,000 of one species might be all right but 5,000 of another species might be dangerous. Or it could be a question of trends: kookaburras might be very common but if, in one year, 50 per cent of them die then you think 'that's no good' and there have to be some consequences of that. I am just wondering about the process by which things are listed—who decides and what the criteria are.

Mr Routh : The short answer is that ultimately the environment minister decides, but the process for that is that any person can nominate a species to be considered for listing under the act in those various categories that you have referred to. Once a nomination has been received by the department, it is assessed by the department and the process then involves the Threatened Species Scientific Committee, which is appointed by the minister under the Environment Protection and Biodiversity Conservation Act. That committee of scientific experts does the assessment of the merits for whether to list or not, and that recommendation then goes to the minister. There could be several outcomes. It could be that there is not enough data to come up with a definitive recommendation. That tends to happen sometimes with marine species, for instance, but not only marine. There could be a recommendation that a listing is not warranted or there could be a recommendation that a listing is warranted, and that then goes to the minister for his decision.

CHAIR: How does our listing process interact with the listing process of other countries or with international standards? We are talking here about migratory species, so the eastern curlew is a migratory bird and flies from one side of the world to the other. What does our listing mean for other countries? Do we work in concert with them? Is there an international listing process with which we are involved?

Mr Routh : For migratory species, the primary international mechanism is this convention—the Convention on Migratory Species of Wild Animals. Countries are obliged to follow through on what is agreed to be listed under that convention into their national law. We have discussed how we do it here. In addition to that, in the case of, say, the eastern curlew, I mentioned we have three bilateral agreements, with China, South Korea and Japan, some of which are quite longstanding. That is an additional layer of attention. In that instance there is a third layer of attention, which is that there is a partnership agreement which involves those governments plus other governments in the range of that species, and also some non-government partners. The idea of that partnership arrangement is to try and achieve protection of the habitat for that species and other migratory species.

CHAIR: I have heard, and I am sure others have heard, considerable concern being expressed about what has happened to some of the migratory birds in some of the areas that they pass through on their journeys. Eastern curlews and the like are going through the Yellow Sea, Korea, China, Taiwan and those sorts of places, and areas of their habitat are being destroyed. If you are a migratory bird, this is very dangerous for you. So how are we interacting with other countries, particularly those that are party to these treaties, to either monitor what is happening or to raise concerns where there is a basis for doing that?

Mr Routh : There are a couple of components to the way in which we address those issues. In the case of the bilateral agreements that we have with Japan, China and South Korea, we meet with them every two years. At the previous meeting, at the end of 2010, we did raise the issue and express our concern about the loss of habitat. There is another meeting coming up at the end of this year, two years later. That is obviously going to be an issue of interest to us that I expect would be discussed again. So that is one element to it.

As I said, there is the East Asian-Australasian Flyway Partnership, which we were instrumental in establishing in 2006. That arrangement includes a broader range of countries. It is not just the three I mentioned that are used as stopover points, for instance, for these migratory bird species. It involves other countries and also some non-government organisations. We work through that partnership as well.

Another element which I think you touched on, Chair, is the data side of it. We have commissioned an academic at the University of Queensland, or we are part of funding the project that he had underway through the Australian Research Council. We are looking to that to provide some much improved data on the population of migratory birds. At the moment it is a bit imperfect. So in terms of loss of habitat, they are doing a very extensive mapping project to look at the extent of the loss of habitat. That will help us to work out how it is impacting on the species when they then arrive in Australia.

CHAIR: Who is doing that?

Mr Routh : Dr Richard Fuller at the University of Queensland.

CHAIR: And when did that project start?

Mr Routh : It started a year or two ago and it runs through to 2014.

CHAIR: Will you have information from that to take to your meeting at the end of this year?

Mr Routh : We will have some information. In fact, Dr Fuller came and gave us a very interesting talk just recently as part of International Migratory Bird Day. He gave us a very good talk in the department, updating us on where he was up to. We would be looking to take whatever current, validated information he has with us to that meeting.

CHAIR: Yes, that would seem to make sense, seeing as that work is being done. If you only get these opportunities every two years, it is important that action is taken and that there is a scientific and evidence based way of doing that.

Senator SINGH: I want to ask some questions about the giant manta ray. Obviously that is a far-ranging species. It is mentioned that it 'has a high value in international trade and directed fisheries exist that target this species in what is considered to be unsustainable numbers'. I want to ask, firstly: have all the countries whose waters the manta ray travels through signed on to this agreement? If so, do you think they are capable of providing the necessary protections? Also, that quote I just read referred to 'directed fisheries'. What or who are directed fisheries?

Mr Routh : In terms of whether all countries are signed up, there are 117 parties, or countries, signed up to the convention on migratory species. The coverage in the Pacific, for instance, is not very high. From memory it is us, New Zealand, the Philippines, Mongolia—if you call that the Pacific—and Samoa. There are a number of notable absences from it, such as China, Japan, Korea, Vietnam and some of the other coastal states, which are quite relevant both to the eastern curlew and to the manta ray. Our understanding is that in some of the countries that are relevant, those which are signed up to the convention on migratory species, there is a directed take. The fisheries that target the manta ray are in Sri Lanka, India and Indonesia. There may be others. I do not have data with the figures or the extent of the take in those countries, but that is our understanding of where the directed take its most prominent.

As far as protections go, any party, any country, that is signed up to the convention on migratory species is obliged, because it is an appendix I listing, to essentially make it a no-take species. That is the obligation under the convention on migratory species. That is the highest level of protection that is available and that is what has been agreed for the manta ray and the eastern curlew.

Ms Montgomery : I would note that both Sri Lanka and India are parties to CMS and they are two out of the three countries that have the largest targeted fisheries for the manta ray. So it should have an impact within their domestic legislations.

Senator SINGH: Good, because I was going to ask what other measures have been undertaken to discourage countries such as India and Sri Lanka to cease that kind of unsustainable fishing practice.

Mr Routh : It is really a matter for them to domestically implement their obligations under the convention of migratory species.

Senator SMITH: In the context of Western Australia I am looking at the distribution of the eastern curlew. When you look at that you see a strong correlation between its distribution and proposed resource development across the north-west of Western Australia. Can you tell me a little bit more about its habitat? I read here that it is migratory around water habitat, so I assume that it would be more prevalent where there are estuaries or lake systems.

Mr Routh : Yes. First of all, I think it is worth saying that, as you may be aware, whenever there is a significant proposal of the sort you are referring to, the current arrangement is that the department will get involved in the assessment process under the current legislation. The birds make journeys of about 10,000 kilometres. They depend upon a chain of wetlands along the way to refuel, as it were. We do not have a definitive understanding of their biology. We think they live for about 20 years, but that depends; the young birds may have a much shorter life depending on whether they get the food that they need along the way. They are shore bird species, which is what you have said. If you want some further information we can provide it to you. But essentially you are right: they are a shore bird species.

CHAIR: What about their numbers? Have we got information either about what their numbers are or about what the trend is?

Mr Routh : We can provide you with some further information. This goes back to my earlier answer about why we have commissioned the work from the University of Queensland. It is difficult to be definitive, but the trend is not positive. The trend is in a southward direction, so to speak.

CHAIR: I was going to ask about Taiwan. You mentioned having bilateral agreements. I assume we do not have any bilateral agreements with Taiwan and that there is no basis for us to do that. So how do they get roped into these discussions? If I understand it correctly, they are on this East Asian flyway and are part of the birds' habitat. The birds are not aware that Taiwan has no diplomatic status.

Mr Routh : No. You are right—we do not have a bilateral agreement with them on these migratory birds. I don't think they are in that partnership that I referred to either. That is the situation.

CHAIR: I am sorry if you mentioned it and I did not pick it up on the way through, but you referred to a conference of the parties at the end of this year. Do you know when and where that is?

Mr Routh : That is the bilateral agreements—the bilateral meeting. What tends to happen is that in the space of a week the four countries—us, China, South Korea and Japan—hold a series of meetings in the same place. Each country meets bilaterally with the other ones and then, having done that, there is a meeting of all four countries together to discuss the issues.

Ms Montgomery : That is going to be held in Korea in November this year.

Mr Routh : The location rotates. The previous time it was in Japan.

CHAIR: Do you know when in November?

Mr Routh : I don't have the exact date, but we could give you that.

Ms Montgomery : Maybe 5 November?

Mr Routh : Early November.

Senator SMITH: I have a general question. Putting my environmental optimism hat on, let's say the eastern curlew came out of being an endangered species. How frequently are species taken off lists?

Mr Routh : I would need to check, but I think that it is not very frequent. But the mechanisms do exist for species to be delisted, as it were. The department was asked that question last year. There is the ability for that to be done, but clearly the science would need to be there. If the situation for the species improves to such a degree that it no longer needs that level of protection then yes, it can be removed from that list.

Senator SMITH: I would be interested to know: is it more difficult to get on the list than it is to come off the list or is the process the same?

Mr Routh : I don't think I would characterise it as more or less difficult. In both cases it would be principally reliant upon the science. Again, the Threatened Species Scientific Committee would need to analyse the situation, come to a conclusion and make a recommendation to the minister, based on their expert view and the data, that the species warranted being either moved down a category or potentially taken off the list altogether.

Senator SMITH: Is the threatened species committee a domestic committee? That is an Australian committee?

Mr Routh : Yes, it is an Australian committee—that is right.

Senator SMITH: It reports to the minister?

Mr Routh : It advises the minister, correct.

CHAIR: I have come across a couple of examples of species being removed from the list or their statuses being sent in a positive direction. It might even be some of those Western Australian black cockatoos, but I do not want to go on the record because others will know about these things in more detail.

Mr Routh : It also depends on whether it is listed under the Environment Protection and Biodiversity Conservation Act or whether it is listed under state legislation, for instance. So what I am talking about is obviously the national legislation.

CHAIR: You mentioned, or it was mentioned to us, that you may want to talk about balearic shearwaters. The committee has been asked to deal with this as a minor treaty action. I think the committee will be happy to do that, but if you don't want to talk about them that is fine too. We are calm.

Mr Routh : Sorry, it is not ringing a bell for me.

CHAIR: No? All right.

Ms Montgomery : We have not heard that mentioned before.

CHAIR: Right. Thank you for attending to give evidence today. If the committee has any further questions, the committee secretariat may seek further comment from you at a later date.

Resolved (on motion by Senator Singh):

That this committee authorises publication, including publication on the parliamentary database, of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 10:09