Reviewing LAWS AND INSTITUTIONS RELEVANT TO WETLANDS IN Australia

Dr Bill Phillips

Deputy Secretary General of the Ramsar Convention Bureau

Case Study

prepared for the

Technical Consultation on

Designing Methodologies to Review

Laws and Institutions Relevant to Wetlands

Gland, Switzerland

3-4 July 1998

Introduction

This case study has by necessity been prepared in two parts. The first part considers the period from when Australia became a Contracting Party to the Convention in 1974 through until it adopted the Wetlands Policy of the Commonwealth Government of Australia on World Wetlands Day (2 February) 1997. The second part considers the review of Commonwealth Environment Legislation which began in earnest shortly after the adoption of the Policy and as this case study is prepared (May 1998) is still underway. This review of legislation, while not directed specifically at meeting Australia’s obligations under the Ramsar Convention, does take these obligations into consideration, and is therefore of interest in this context.

PART A - pre 1997

1.0General Considerations

Before examining some of the successes and obstacles in wetland conservation and wise use in Australia it is necessary to set the scene in terms of legislative responsibilities. Australia is a federation of eight provincial jurisdictions. It also has a Federal Government, more frequently called the Commonwealth Government. A third layer, that of local government also exists and there are over 900 such local authorities. The provincial governments have the principal legislative responsibility for natural resource management and each has government infrastructure to implement such legislation. Local authorities are responsible primary for the provision of local services and the collection of associated local taxes and for land zoning, especially in urban areas. In most cases the provincial jurisdictions have the legislative power to override local decisions under planning acts and alike, if so desired.

The Commonwealth Government has relatively limited legislative powers (see below) and therefore seeks to ensure that the national effort directed at conservation and sustainable use of natural resources is achieved through co-ordination, agreed national goals in certain areas, and in some cases financial incentives to the provincial governments, local authorities or private landholders. A national forum of Environment Ministers has been established to assist with this co-ordination which also includes the New Zealand Environment Minister (the Australian and New Zealand Environment and Conservation Council - ANZECC). To provide expert advice to the ANZECC Ministers there are a number of officer-level task forces, or networks, including one that is responsible for advising on matters relating to the Ramsar Convention and Australia’s two bilateral migratory bird agreements with Japan and China. Within the Commonwealth Public Service, Environment Australia provides advice to the Commonwealth Minister for the Environment on these same issues. Australia also has a “higher” forum which seeks to co-ordinate national actions; the Council of Australian Governments (COAG) which comprises the Prime Minister and the heads of government from each of the eight provincial governments.

The act of Australia joining any international treaty requires the full support of the provincial governments, which must give assurances that they will exercise their legislative powers to allow the country to meet its obligations. Despite this, it has been demonstrated by precedent that it is the Commonwealth Government, as the signatory to such conventions, that has the ultimate legal responsibility for their implementation. This, so-called, external affairs power of the Commonwealth Government provides it with the legal recourse to intervene in instances where it considers a provincial government is acting contrary to Australia’s international obligations. This power has never been exercised by the Commonwealth Government in the interests of implementation of the Ramsar Convention.

In terms of day to day legislative responsibilities, there are over 20 pieces of Commonwealth legislation at present which have statutes of direct relevance to environment protection or conservation. These range across areas such as, legislation governing foreign investments in Australia, whale protection, trade in wildlife products and management of world heritage properties. The Commonwealth Government also manages a number of areas for defence purposes and has co-management arrangements in place with the indigenous owners of several nationally and internationally recognised natural areas (among them most notably Kakadu National Park in northern Australia which is both a World Heritage property and Ramsar wetland).

In Australia, it is also notable that income tax is collected centrally by the Commonwealth Government and then returned to the provincial governments with a certain proportion retained by the Commonwealth Government for national programmes, some of which provide funds for natural resource management. This revenue collection role gives the Commonwealth Government a major say on issues such as incentives (both positive and perverse) under the taxation system which for many years were openly encouraging unsustainable land use practices.

1.1Successes and obstacles in conserving and using wetlands wisely in Australia

Australia’s record as a Ramsar Contracting Party up until about 1990 is not an especially proud one. Despite being a Contracting Party to the Ramsar Convention since 1974 the level of awareness of wetland functions, values and benefits was typical of most countries of that time. It is estimated that over 50 % of Australia’s wetlands have been destroyed since Europeans first settled here just over 200 years ago. In some areas 80-90 % of the wetlands were converted to other uses.

While it is not possible to know if the rate of wetland destruction has slowed, Australia today has come a long way since 1990 when the Commonwealth and provincial governments agreed to document the nations important wetlands. This was a landmark decision and the Directory of Important Wetlands in Australia was published in 1993 and with funding through the National Wetlands Conservation and Management Program established by the Commonwealth Government in 1990. A regional workshop was held in 1991 which helped to set the agenda for the program and from there the program (now called simply the National Wetlands Program) has grown to have an annual budget of nearly $3.0m.

Other successes of the program have included the publication of a second, improved edition of the Wetlands Directory in 1996, and now a serious effort to prepare a comprehensive national wetland inventory for the first time. Australia has 49 Wetlands of International Importance and management plans are being prepared for 32 of these at present. The National Wetlands Research and Development Program was established in 1996 to direct greater resources into management-related research.

In 1996 Australia hosted the Sixth Conference of the Contracting Parties to the Ramsar Convention in Brisbane and at that time pledged AUS$ 2.0m over five years for various national and regional initiatives, such as a training program for wetland managers and a partnership program with Wetlands International for promoting the Ramsar principles among the Pacific Island nations and the development of a migratory shorebirds site network for East-Asia-Australasia. Perhaps most significantly, the Commonwealth Environment Minister also committed Australia at this time to the completion of its National Wetland Policy and increased funding for measures designed to support local communities in the conservation and wise use of wetlands. There are many more aspects to the progress which has occurred in Australia in the field of wetland conservation, but for the purposes of this case study I will dwell on development of the Commonwealth Wetland Policy and how it was used to activate a review of legislation and then gain an undertaking from the Government that all relevant legislation would be examined to ensure it was working in the interests of implementing the Policy.

However, before doing that it is helpful to reflect briefly on what were (and in some cases still remain) the obstacles to Australia acting to provide the necessary legislative and other tools for implementing wetlands conservation and wise use to the full extent encouraged by the Ramsar Convention. Ignorance, was and continues to be a major obstacle. While awareness of the values of wetlands has increased through combined government and non-government actions, ignorance remains as a major impediment. The federal system of government must also be recognised as posing an obstacle. Achieving agreement on how to address issues is made that more difficult and time consuming when nine jurisdictions have to work together, rather than just a central government recognising priorities and acting to address them. Another obstacle was also a legislative system that had evolved, in large part, to respond to the needs of the past, and was also very sectoral in approach. Finally, a major impediment was a failure on the part of successive Commonwealth governments to achieve the necessary climate of co-operation and integrated actions between Ministries which is so needed for any activities that fall under the banner of sustainable development.

2.0Implementation of the Ramsar Convention and the Wise Use Concept

2.1Legal and institutional review upon ratification of the Ramsar Convention

At the time Australia ratified the Ramsar Convention there were no apparent plans to pursue a legal or institutional review of the frameworks for implementation. Of course, this was over 25 years ago when Ramsar was the first international convention promoting sustainable development (as we now know it), or wise use as Ramsar knows it. In the history of the Convention it should also be recognised that the designation of Ramsar sites, was, and remains, the flagship of the Convention with most Parties focusing their energies on this aspect of the Convention, and less energy to the implementation of the wise use concept. This has slowly begun to change since the Montreux Ramsar Conference in 1990 when the Convention adopted the Wise Use Guidelines which gave high priority to policy development and legislative frameworks. At the two Ramsar Conferences since (Kushiro, Japan, 1993 and Brisbane, Australia, 1996) the Convention has adopted further guidance on implementing the wise use concept (in 1993) and further strengthened its advice that Parties should prepare National Wetland Policies and undertake legislative reviews through the Convention’s Strategic Plan 1997-2002 (in 1996).

2.2Legislative review

It was in the period after the 1993 Ramsar conference in Japan that Australia began to prepare its Commonwealth Wetland Policy, which included a review of legislation potentially, or actually having either positive or negative impacts on wetlands generally. A consultant was engaged by the Commonwealth Environment Department in early 1995 to prepare a Discussion Paper (resource document) and as part of this an effort was made to identify all relevant legislation which had to be taken into consideration. Likewise, all existing Strategies and Policies of the Commonwealth Government were identified and relevant international conventions and their implications identified.

Around the middle of 1995 two committees were established to advise on the development of the Commonwealth Wetland Policy; one was a cross-sectoral committee named the National Wetlands Advisory Committee and the other was an Inter-departmental Committee comprising representatives of all Commonwealth Government Departments. The cross-sectoral committee included among its members wetland experts, representatives of sectors such a fishing and farming, conservation non-government organisations, local and provincial governments and Australia’s international aid programme (AusAID). Between July and December 1995 these two committees met several times to review drafts of the Discussion Paper and to provide input on aspects where they had expertise. Importantly, this process identified several further pieces of legislation and additional strategies and policies which had to be considered.

In early December 1996 a national workshop was held to review the Discussion Paper and begin shaping the Policy itself. The result was a clear endorsement that the Policy needed to address six key areas if it was to be an effective instrument for the Commonwealth Government to implement wise use and to meet its own responsibilities for the management of Ramsar listed areas under its jurisdiction. These areas were :

  1. management of Commonwealth Government land and waters;
  2. implementing Commonwealth policies and legislation;
  3. involving the Australian people in wetlands management;
  4. working in partnership with the provincial governments;
  5. ensuring a sound scientific base for policy and management; and
  6. international actions.

Following the 1996 workshop, a draft of the Commonwealth’s Wetland Policy was prepared by the Environment Department in consultation with the two advisory committees. At the Sixth Ramsar Conference in Brisbane in March 1996 the draft Policy was released for public comment. This resulted in a number of amendments to the draft before the Policy underwent final comment by the advisory committees and was submitted to the Cabinet of the Commonwealth Government for endorsement and subsequent adoption on 2 February 1997.

2.3Legislation determined to be necessary to implement the Ramsar Convention

The pieces of legislation which were considered necessary to implement the Policy were many and varied. Some of the key ones which are referred to in the Policy were as follows:

2.3.1Non-site specific legislation

  • the Endangered Species Conservation Act 1992 which is of direct relevance because of the responsibilities it imposes on the Commonwealth Government for protecting endangered species and ecological communities;
  • the Wildlife Protection (Regulation of Exports and Imports) Act 1982 which regulates trade in wildlife products;
  • the National Parks and Wildlife Conservation Act 1975 which among other things includes a Schedule of international treaties (including Ramsar) and charges its Director with their implementation.
  • the Foreign Acquisitions and Takeovers Act 1975 which has the power to require environmental impact assessment for development proposals with foreign interests above a certain investment level.

2.3.2Site specific legislation

  • the Australian Heritage Commission Act 1975 which applies to sites listed as nationally important under this Act; and
  • the Environment Protection (Impact of Proposal) Act 1974 which applies to Commonwealth actions potentially impacting on

In addition, the legislative review had identified several further pieces of legislation which should be carefully examined to ensure they were not acting counter to the intent of the Policy. In the Policy these were addressed in one action statement as follows:

“Examine the scope of relevant Commonwealth legislation and associated administrative procedures to ensure these are operating to allow this Policy to be effectively implemented.”

2.4Harmonising the Wetlands Policy with existing strategies, policy instruments and administrative procedures

It was also recognised when formulating the Commonwealth Wetlands Policy that it had to be working in harmony with the existing national Strategies or agreements which had been adopted jointly by the Commonwealth Government and the eight provincial governments. The most notable of these were the following:

  • National Strategy for Ecologically Sustainable Development;
  • National Strategy for the Conservation of Biological Diversity;
  • Intergovernmental Agreement on the Environment;
  • Greenhouse 21C Strategy;
  • National Weeds Strategy;
  • National Forest Policy Statement;
  • ESD Policy for Australia’s Development Co-operation Program; and
  • Commonwealth Coastal Policy.

In the Policy these were addressed in one action statement as follows:

“As a matter of priority develop an Implementation Plan to ensure effective application of this Policy...... The minimum actions in developing the Plan will include:

- reviewing existing, and developing, Commonwealth policies and strategies to establish those with related objectives and mechanisms in order to harmonise their implementation with this Policy:.....”

Another important consideration were officially recognised administrative procedures or guidelines being applied by Commonwealth Government entities. A good example is Australia’s overseas development assistance program, AusAID, which operates in accordance with the Environmental Assessment Guidelines for Australia’s Aid Program. The Wetlands Policy simply notes the existence of these guidelines and commits the Government to continue their rigorous application for wetland-related projects.

3.0Lessons learned from the development of the Commonwealth Wetland Policy

This experience in Australia demonstrates how a Contracting Party to the Convention on Wetlands can use the process of developing a National Wetland Policy to activate a legislative review. The most significant lesson to note is that from the outset it was assumed that the Policy had to provide the most comprehensive framework possible for Australia meeting its Ramsar obligations. The implication of this was that the Policy, and therefore the review process had to be directed at ANY legal, policy, financial or programmatic action which the Commonwealth Government had responsibility for, which was potentially impacting on wetlands. In short this meant the Policy could be used to require reviews in the following areas, many of which are legislatively based in one way or another, to ensure consistency with the Policy, and even more proactive actions to promote wetland conservation and wise use:

  • the management of Commonwealth areas which includes some significant wetlands;
  • all relevant legislation and policy instruments;
  • the expenditures under all relevant Commonwealth funding programs, including those to provincial and local governments and the community;
  • a review of economic policy instruments which could be having either positive or negative impacts on wetlands;
  • co-operative relations with the provincial and local administrations;
  • wetland research and monitoring;
  • Australia’s international aid program;
  • international trade in wetland-derived products; and
  • foreign investment in Australia.

Other lessons learned were as follows:

 the preparation of a detailed Discussion Paper, by an independent consultant, was invaluable in identifying the range of legislation, policies, strategies and programmes which had to be taken into consideration. It had the benefit of providing a resource document that could be the basis for developing the Policy itself;