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Environment and Communications References Committee
23/02/2017
Construction of the Perth Freight Link

BAILEY, Emeritus Professor John, Member, The Beeliar Group

FINN, Dr Hugh, Private capacity

HOBBS, Professor Richard, Member, The Beeliar Group

[15:48]

Evidence from Professor Bailey was taken via teleconference—

CHAIR: I now welcome our final witnesses. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you all. Do you have anything to say about the capacity in which you appear today?

Prof. Bailey : I am a professor in environmental science and policy at Murdoch University and a member of The Beeliar Group: Professors for Environmental Responsibility

Prof. Hobbs : I am a professor at the University of Western Australia, and I also represent The Beeliar Group.

Dr Finn : I am a lecturer at the Curtin Law School at Curtin University. I am here to talk about black cockatoos and other issues the committee may have.

CHAIR: Thank you all very much. I invite you all to make a brief opening statement, and then we will ask some questions. I ask you to keep your statements to less than five minutes, please. Would you like to go first, Professor Bailey?

Prof. Bailey : Certainly. The points that I would like to put forward really relate to the legal context for your inquiry and, in particular, to the significance of noncompliance with environmental conditions and why that is such an important issue. There is one point I really need to make sure your committee understands, which is the difference between two Supreme Court cases that occurred in 2015 and 2016 with respect to the Roe 8 extension, and they could easily be confused with the issue of noncompliance with environmental conditions. The first case was the 2015 case, in which the EPA was found to have taken no account of its own published policies at the time, and specifically the policy that said that for significant residual impacts to critical environmental assets, such as those impacted by Roe 8, environmental offsets would not be an appropriate means of rendering the proposal environmentally acceptable. That was appealed by the state, and they won that appeal on the grounds, according to the Court of Appeal, that environmental policies put in place by the EPA did not have to be followed.

So we have a situation in which there is some legal vacuum in terms of the requirements placed on the EPA when undertaking environmental assessments. What is more important for now is not the environmental impact assessment process undertaken by the EPA and supported by the office of the EPA; these issues go to the implementation of environmental conditions and the implementation of proposals, which is not within the remit of the EPA but within the remit of the Department of Environment Regulation. That is an important point that needs to be recognised.

In particular, I would draw your attention to the state Environmental Protection Act, section 47(1), which says quite explicitly that the implementation of a proposal must be 'in accordance with the implementation conditions'. Otherwise, 'the proponent commits an offence'. My analysis indicates that what we are concerned with here is the extent to which the proponent—that is, the main roads department—has committed an offence by not implementing the environmental conditions which are set under the state act but, as you have already heard, are also spoken to by the Commonwealth environmental conditions. So these state conditions are of relevance both to the state and to the Commonwealth.

Finally, noting that you were talking about offsets very recently, if you want to return to that point in terms of the environmental policy issue, I would be happy to do so. Those are my opening comments.

Prof. Hobbs : My research group and I work on the ecology, management and restoration of Western Australian ecosystems and we have currently projects focusing on banksia, wetlands, bandicoots, black cockatoos, offsets and everything that is relevant here. I wish to take the opportunity to table our submission, written by myself and my colleague, Dr Leone Valentine, whose research currently focuses on bandicoots and other fauna. In this we focus mainly on the fauna management plan and the evidence for noncompliance. We conclude that the fauna management plan more or less complies with standard practices for bandicoot trapping, but is very poor in relation to reptile trapping and relies on baseline surveys undertaken five or six years ago. We further conclude that the implementation of the fauna management plan has been flawed in several ways. Overall, we have to say that fauna specialists have been doing a good job in the face of very challenging time lines and circumstances. Nevertheless, breaches of trapping protocols have included, as you have heard already, failures to implement the two-day clear period before clearing commences, traps being left open at the wrong times of day, and so on.

Another obvious and persistent breach relates to the failure to correctly install fauna-proof mesh on the fences surrounding the areas. This failure actually makes it impossible to categorically state that areas being cleared are free of bandicoots. We make several other observations in the written statement and we are happy to elaborate on these as you feel necessary.

Dr Finn : I would like to take a moment to table a written submission with regard to the committee. I will not talk for very long. The written statement covers the expertise. I just note that I have studied black cockatoos in the jarrah forest, the Boddington gold mine and also the Gnangara pine plantation, so I know the ecology of the animals. And I also, in 2014, coordinated the Great Cocky Count, which is an annual citizen science survey of black cockatoos in the south-west of WA. I am happy to assist the committee in any way.

CHAIR: What a fantastic job you have. Half your luck!

Senator LUDLAM: Let's start with you, Dr Finn, and the Cocky Count, since you started there. What are the general trends for that species on the Swan Coastal Plain?

Dr Finn : It is well documented now based upon the Great Cocky Count going for a number of consecutive years. There is a downward trend in terms of roost occupancy and the numbers of birds that are recorded at the roosts, upwards of just about 10 to 12 per cent. That has been documented in a peer reviewed paper and the trend has continued, so there is reasonable confidence in the trend. What that would mean is that, within a period of a couple decades, if the trend were to continue, we would be looking at possibly the extinction of Carnaby's cockatoos on the Swan Coastal Plain. Basically, since 2010 there has been annual Great Cocky Counts. It is a once-a-year survey and the trend analysis is conducted by a statistician, Matt Williams, at the Department of Parks and Wildlife, assisted by others. It is a statistical analysis looking at roost occupancy rates and also the numbers of birds, so it actually has two parameters. It is a fairly robust parameter, looking at the decline in abundance.

Senator LUDLAM: I do not know how long you have been in the room. We had extensive discussion with the folks doing the observation on the ground in the area and also with Commonwealth officials a short time ago about condition 4 which relates to surveying of nesting habitat for the cockatoos. Are you familiar with that part of the licence approval?

Dr Finn : Yes. The written submission focuses on how it might construe condition 4 in the ordinary language of it.

Senator LUDLAM: Let's talk through that, then. That is a key issue for me, principally because the folk who were at the table before were able to say, 'There's nothing we can do about a whole range of these concerns. That's somebody else's problem.' The cockatoos were clearly within their bailiwick. How would a service such as this be done? What would it actually look like on the ground?

Dr Finn : What it says in the written submission is that the essence of condition 4 is the detection of the presence of nesting black cockatoos in the hollow. Regarding the language of condition 4 and the text and context of the condition approvals generally, the demand is a relatively high probability of detection. In other words, what the condition on its apparent purpose is intended to do is avoid a false absence—in other words, the clearing of a tree in which there actually were nesting birds. That is not only a breach in the general sense but you are also talking about that being a take, possibly, under the Wildlife Conservation Act.

Senator LUDLAM: What is the definition of that? What does that mean?

Dr Finn : There is the new Biodiversity Conservation Act in Western Australia but it is my understanding that the relevant provisions as regards the taking of animals have not taken effect yet, so it is the old act that applies. A 'take' is defined in section 6 of the Wildlife Conservation Act to include the killing or disturbing of animals. For example, if a tree was felled and there were chicks or a female in the nest and she was killed or the chicks were killed then that might constitute a take. It is a little bit complicated because of the way the taking provisions operate. There is an interaction with a clearing approval, but what is unique about the Carnaby's cockatoos and also the red-tailed black cockatoos is that they are what is called a schedule 1 species, so they have the highest level of protection under the Wildlife Conservation Act and, essentially, a taking of that species or those two species would be exempt from that incidental take provision.

Senator LUDLAM: So you are concerned about the language around disturbance. If you were playing rock music or something at them to see if they were in the trees, that would be construed as disturbing that species. Is that where you are heading?

Dr Finn : The main concern I have is with condition 4. There are obviously factual issues the committee may wish to determine in terms of how the inspection surveys were undertaken. If they were undertaken only by someone going by and brushing against the bottom of a tree one time then that would be inadequate, I think, for what condition 4, by its terms, requires, so that would be a contravention.

Senator LUDLAM: We have been unable as a Senate chamber or as whole or in this committee or through questions to the minister directly to establish how these surveys were done. But if they weren't to be in breach or if you were to be put in charge with a survey such as this, what would it look like?

Dr Finn : The text of condition 4 and looking at what it is intended to do is that high probability of the detection of nesting birds and that avoidance of a scenario where a tree is felled and there were actually nesting birds in it. Given that, you only need the methodologies that would really be reliable, and those are to inspect the hollow directly. That would be the best way of doing it, and that can be done by either an elevated work platform—so, a cherry picker—or someone climbing up the tree. These are not novel technologies. You mentioned drones. That is something which is being pioneered, but there are also pole cameras. In terms of what is reasonable and practical, those technologies are easy to do and they could have been done. That would be my recommendation.

The other alternative is some sort of behavioural observation—and that is Ron Johnstone and Tony Kirkby from the WA Museum. This involves people being out in the field, following the birds to their nests and listening. Again, that takes more time. It really depends on what the factual scenario of what was done in terms of the inspections.

Senator LUDLAM: We have not been able to establish—and sorry to dwell on this, but it feels important—how long it would take and how many people would be needed to clear a five-kilometre stretch of bushland that is very, very dense in patches. You would not be able to get a cherry picker into some of that area, without doing quite significant damage.

Dr Finn : Given the scenario and the terrain there, you would probably expect that they would get arborists in to calm the trees. That is a methodology which presents obvious occupational health and safety issues; so there are issues of reasonability and practicability. I have heard the number of 26 trees. I am not quite sure how that was eventually arrived at, because it appears to differ from what is in the federal approval conditions. Anyway, if there was one person climbing a tree, I do not know how, from sheer human limits, that could happen in a day.

Senator LUDLAM: Especially without being seen by people. That is clever.

CHAIR: You could train a chimpanzee to do it.

Senator LUDLAM: Before we move on, are there any other concerns that you have with any of the other approval conditions that you want to bring to our attention, maybe with a particular view to the Commonwealth conditions or stuff that is within the ambit of this committee?

Dr Finn : The other major issue is offsets. I think my colleague Professor Hobbs would be in a much better position to talk to that.

Senator LUDLAM: I was just talking to somebody who would let fly about offsets! Let me just throw you a dorothy dixer.

CHAIR: Do that and then we will go to Senator Pratt.

Senator LUDLAM: Thank you very much, Dr Finn. That has been really helpful. Professor Hobbs, what do you think of the concept of offsets?

Prof. Hobbs : Without being rude?

Senator LUDLAM: You can be as rude as you like.

Prof. Hobbs : The concept of offsets was a good idea when it was formulated in that there needs to be some compensation for damage to the natural environment that in some way makes up for it. In theory, the concept is a good one in that there is some ecological equivalency in terms of restoration or whatever that in some way compensates for the loss. The problem is that the implementation of the offsets policies is complete rubbish. There is just no actual method for making sure that the offsets that are set are actually having any good impact at all, especially in the case of this Roe 8 offset, where we are allowing nearly 100 hectares of bushland to be destroyed completely and the offset is a simple designation change on existing bushland. There is no net gain in habitat, and so therefore it is a bit of a furphy, if you ask me. The offset does include other management activities to improve habitat around the Beeliar area, but you have to question how the decision was made that these offsets were actually going to compensate for the loss of the woodland.

The other way of doing offsets is to restore areas. That has the positive that you are actually creating new habitat. The problem is that if you are destroying a banksia woodland with trees in it that are 300 or 400 years old, obviously it is going to take you 300 or 400 years to get back to that habitat. If it is replacing Carnaby's cockatoo habitat it is going to take the banksia trees 10, 20, 30 years to recover their ability to produce food for the cockatoos and so on. So there is a big lag between when the damage is done and when the reparation is made. The other problem is the implementation. Restoration is a growing field, but there are still a lot of bumps in the road, and there is no guarantee that the restored site is actually going to turn into prime habitat, even in 30 or 50 years.

Senator LUDLAM: It has been a bit difficult to establish how much of the offset provisions for this project are redesignation, as you describe it, where we just change some lines on a map somewhere, and regrowth or restoration. Do you have a clear picture of what the balance is between the two?

Prof. Hobbs : The main thing that is always quoted is the provision of the new designated conservation area south, near Lake Clifton. I have not had the opportunity to delve into it deeply to see what proportion is made up of all the other bits and bobs, so I cannot comment, I am sorry.

CHAIR: Professor Bailey, do you have any quick comments on offsets? You mentioned them at the end of your statement.

Prof. Bailey : Very quickly, I fully support Richard's view that offsets are becoming a somewhat flawed concept, but specific to Roe 8 I would like to draw your attention to the other offsets, beyond redesignation of land that Richard made passing reference to. A number of those in my view are actually double counted. They are commitments to do things that were already made, independently of Roe 8, and have just been listed again under Roe 8 offset requirements. One example is improved management of Thomsons Lake. The offset conditions there are drawn directly from the Thomsons Lake management plan that was prepared many years ago. So I think we have to be very careful in recognising what offset requirements are truly new and what are just the rebadging and double counting of existing commitments.

CHAIR: Do you know how many hectares have been double counted, as a matter of interest?

Prof. Bailey : It is not the principal offset condition of hectares that is double counted; it is things like the control of Typha at Thomsons Lake, control of arum lily somewhere else. Those are not area dependent conditions but they are commitments that have already been made, generally by what is now the Department of Parks and Wildlife under their act and as a result of the management planning process that they engage in. So it is not possible to give you an area, just a double counting.

Senator PRATT: Dr Finn, on page 5 of your submission you talk about the meaning of detecting the presence of black cockatoos using hollows. You draw the conclusion that there has to be an actual bird there using the hollow. Detecting the absence or presence of a bird—not the recent use of such a hollow—is all they are required to do. Is that right?

Dr Finn : To clarify it, looking at the ordinary language of condition 4, it uses the phrase 'to detect the presence of black cockatoos'. The way I have looked at that is that that phrase is really the essence of condition 4. What it means is that a methodology must be applied which has a high probability of detection for birds actually nesting in the hollow. It is directed at the actual physical presence of birds to the extent that the investigations were relying on indications of use or anything like that. Condition 4 really directs the approval holder to—I think more or less—the inspection of the hollow with a high degree of confidence that there are no birds in there nesting.

Senator PRATT: In other words, the presence of the person doing the survey, for example, might scare the birds away, but they would still have to look inside the nest. What would you expect to find inside a black-cockatoo's nest if it were active?

Dr Finn : It would depend on what stage the breeding was at—if the female was incubating or if the female was at the nestling stage—but, generally speaking, there would be some residue from the bird, and the female particularly as the birds getting into the nestling stage may leave the nest hollow for a period, but you would have the nestling in there. I think the best practice is—and really for me, unless you are going to spend a lot of time and effort into serving the individual trees to use as behavioural observations that Ron and Tony from the WA Museum are so excellent at—then you have to inspect the hollow, particularly in the circumstances here where you have two birds. The other thing I would note is that red tails have been recorded to breed in any month of the year. Although the conditional approval says the breeding season is July to December, that is really probably only appropriate for Carnaby's cockatoos.

Senator PRATT: This approval is trying to avoid—and we have heard evidence on this today—not the destruction of the habitat but rather the destruction of the actual bird because they are present in the hollow at the time of clearing?

Dr Finn : I think that is correct. It is a clear-and-control measure which is designed essentially as a harm-avoidance measure, which, if you get down to the language of it, is designed to avoid a take of the bird. A take would be a killing, a physical injuring or a disturbance of the bird. The EPBC looks at the significant impact. That is a broader context, so you have to look at the state act. But that is the essence of what the federal approved. That is correct.

Senator PRATT: We have asked the department for details of that surveying process, so hopefully they will get back to us. Perhaps we might ask the secretariat to draw that information to your attention for your review so you can examine the robustness of whatever procedure it is that they purportedly undertook.

Dr Finn : Yes, I can take that on notice.

Senator PRATT: Thank you.

Senator LINES: Thank you, for the clear explanation of condition 4 in relation to Carnaby's cockatoos. In your opening statement you talked about the decline of Carnaby's cockatoos in Western Australia—I think most of us are interested to know that there is a decline. So we clear this area and we lose habitat and we clear elsewhere and we lose habitat, but whose responsibility is it to be across the whole of that cumulative destruction?

Dr Finn : That is something that I know the Commonwealth environment department has grappled with: the idea of cumulative impacts. The difficulty is, as you can—

Senator LINES: I will just stop you there. I asked them specifically about cumulative effects and I might as well have been speaking Swahili.

Dr Finn : I understand. A few years ago the department had a decision which went against them. The department runs against the issue of policies getting away from the statutory text. The statutory text states 'significant impact' which has been construed as notable. So the department is desirous of having a policy which would take into account the cumulative impacts, but how that actually gets down to the single proposal and what gives procedural fairness to the proponent, those are difficult questions which I do not know about and have not readily answered; ultimately, they probably require a statutory change. I do not know if that has answered your question, Senator?

Senator LINES: Is it something we should be taking into account when we look at clearing a place? Should we look at other clearing nearby to look at what happened there in relation to Carnaby's cockatoos?

Dr Finn : I think it is necessary. It would be death by a thousand cuts otherwise. That is how species go extinct. It is axiomatic in conservation biology that you have a little slice here and a little slice there, and that is how it occurs. So if the statutes and the policies are not grappling with that then, absolutely, if you want to stop the decline and reverse it, for example, with Carnaby's cockatoos, those are the steps that you need. Keep in mind that, in the Swan Coastal Plain, you are talking about the loss of I think—correct me if I am wrong, Professor Hobbs—some several thousand hectares of natural woodland that would be lost.

Senator LINES: Do you think it is more correctly the remit of a Commonwealth department to have that overall management focus, or should it be with a state department, or both?

Dr Finn : There is the strategic assessment—the Perth and Peel strategic assessment—which is going on at the moment, and it is trying to grapple with some of those issues and how you can characterise the value of different management actions. From my own point of view, the Gnangara pine plantation is absolutely vital. That has been an important food source for Carnaby's cockatoos for three-quarters of a century, and that is almost gone now. That is an elephant in the room that nobody talks about. Then there are the banksia woodlands that are vanishing—and there is the work of Professor Hobbs and his colleague Leonie Valentine. It is not just Carnaby's cockatoos; there are a lot of other animals which will continue to decline because of the loss of those habitats.

Senator LINES: Okay. Thank you.

Prof. Hobbs : If I could just add a comment there. The other thing that needs to be noted is: the more clearing that happens the more precious the bits that are left become.

Senator LUDLAM: I just have a couple more. Can you tell us a little bit about the group that you are representing—the Beeliar Group. What is that? How long has that been around for?

Prof. Hobbs : John, do you want to do that, or should I?

Prof. Bailey : You start, and I will jump in if I feel like it!

Prof. Hobbs : The Beeliar Group: Professors for Environmental Responsibility had its initiation through the Roe 8 process. That was the spark to get a bunch of academics together—and for those of you who know academia you know it is very hard to get any academics to agree about anything at all. We have succeeded in bringing together quite a large group of academics from across the sciences and humanities, focusing on the issue of Roe 8 but also the broader issues that it entails, including town planning. The focus here is obviously on the clearing, but there are the much bigger issues, including the future of Fremantle Harbour, where the rest of the Roe Highway is going to go and all those things, and the professorial group has been involved in those discussions.

Senator REYNOLDS: When did you get this group together? Was it in 2008, when the government announced the Roe 8 policy, or in 2009, when the first environmental processes started? When did you guys come together to do this?

Prof. Hobbs : I am not sure when it was finally formulated, but it really only started late last year.

Senator REYNOLDS: Okay.

Senator LUDLAM: I have a couple more for you, Professor Hobbs. We have been looking at the detail for a little bit, but I just want to ask some fairly high-level stuff and then I will wrap up. I am presuming you are familiar with the fauna management plan that was created for the project.

Prof. Hobbs : Yes.

Senator LUDLAM: How would you describe it in terms of world's best practice, or even domestic best practice?

Prof. Hobbs : There are elements of good practice in it, and there are elements that are not really best practice at all. So, in terms of calling it world's best practice, I do not think that that is a very accurate statement.

Senator LUDLAM: I promise I will not call it that. You are the one with the expertise, so what are the areas, specifically, that you think were deficient?

Prof. Hobbs : The first problem was when the plan was completed, which was a few days after initial work started on the project and a few days before the initial clearing started. There was no opportunity for any outside review of this plan at all. The plan was viewed by people from the Department of Parks and Wildlife a year earlier, and presumably it was adjusted in relation to those discussions. The plan is pretty good in terms of its dealing with bandicoots and so on. As I mentioned in my opening statement, the protocol for sampling reptiles is poor. These animals are largely cryptic and very hard to track effectively, so the length of time given to that trapping is probably insufficient to ensure that you are getting the animals that you want. In addition to that, the plan did not cover turtles, which were discovered as the project began. Again, the trapping period was way too short to ensure that it was effective. Those are the main types of issues that we are looking at. It is all to do with the speed of the process, really. It is the rush of trying to get this happening that makes the implementation of the plan very difficult.

Senator LUDLAM: When it comes to implementation, you have a plan that was developed in a bit of a rush, and it did not sound like there was much time, if any, for peer review. How has what was written on paper translated into real life execution?

Prof. Hobbs : Overall, as I mentioned, I think the fauna specialists have had a tough job to do here, and at least some of them are doing the best job they can. But, having said that, there are many parts of the implementation—and you have heard about them during the day already, with the problems with the trapping and so on. The one I highlighted was the problem of not having mesh fencing put into the barrier fences. To me, that makes it very difficult to see how the trapping protocols can be called effective, because there is no way that you can keep bandicoots out, and so as soon as they are trapped, some are likely to move in. I think there are a whole range of issues like that which need to be looked at.

Senator LUDLAM: Thank you very much, all three of you, for your expertise this afternoon.

CHAIR: For those outside Western Australia in the eastern states who may be noticing what is happening here, what is it about the Beeliar Wetlands that has drawn academic experts like you to set up your own group? What has drawn the huge community response, including those here today? What is special about the Beeliar Wetlands?

Prof. Hobbs : For those outside Western Australia, Western Australia is a very special place in itself. The southwest is one of the declared biodiversity hotspots of the world, so that means that it has a huge diversity of species—flora and fauna—many of which are found nowhere else in the world. The Beeliar Wetlands is one of the jewels in that crown, if you like, and it is very special not just because of its biological status but because of its location in the middle of a city. The biological value is huge, but the social value is huge as well. People love that area. People use it for recreation—and they appreciate the birds, the animals and so on. That is why you get such an emotive response from people when it is being destroyed.

Prof. Bailey : I would make a couple of other comments on that issue, and one will go back to the discussion that we had on cumulative impacts. One of the means of addressing the problem of cumulative impacts is obviously through city planning, and in WA we have had a series of attempts, one of the more recent ones being bush-for-heather. It appears that bush-for-heather sites are not immune from development, so attempts to protect areas from cumulative impacts in this case have failed. In addition, my closing comment is that the Beeliar Regional Park is really the Kings Park of the southern part of Perth, and in the same way that no-one would dream of not recognising the value of Kings Park, the same should apply to the value of the Beeliar Regional Park.

CHAIR: Thank you, gentlemen. That concludes today's hearing. I would like to thank all witnesses for their informative presentations. As usual, I would like to thank Hansard staff and the committee staff—what would we do without them?—and, of course, the senators.

Committee adjourned at 16 : 24