Department of the Environment

Archived media releases and speeches

The Hon Tony Burke MP

Minister for Sustainability, Environment, Water, Population and Communities

Press conference: new matter of national environmental significance to national environmental law

12 March 2013

TONY BURKE: Thanks very much. As there's been some speculation, people would be aware that the Government is in a position today to announce that we will be adding a new matter of national environmental significance to national environmental law.

This has been the product of a long period of consultation with the community, but also consultation with a number of Members of Parliament around this building.

You see the Members of Parliament who have joined me on the stage, in terms of Janelle Saffin, Justine Elliot, Laurie Ferguson, Deb O'Neill's another one. But I also should acknowledge both Tony Windsor and Rob Oakeshott, who have been very strong in their public advocacy on this issue.

There has been a challenge which up until now we haven't been able to truly resolve, I think, to the satisfaction of the public's expectations. And that is this, whenever I have to as Australia's Environment Minister make a decision about approval or otherwise for coal seam gas or for a large coal mine, people quite properly expect that I will have taken into account by law all the impacts on water resources. It's not an unreasonable expectation when the person making the decision is also the Minister for Water.

I've been with Members of Parliament to a number of places, whether it's been the Northern Rivers, whether it's been the New England area, whether it's been the Darling Downs. And the consistent concern is very much the question, what is the impact on water? Whether it be underground water or whether it be the connectivity potentially to surface water as well.

With that in mind, the only way that I've been able to take those issues into account to date has been if there is an additional connection. The additional connection might be that there is a threatened species which is legally listed, which may well be a hundred kilometres away, but downstream of the water source. And that becomes a link which allows me to in some way indirectly take into account the impact on water.

Last year, through an amendment that was negotiated at the same time as the mining tax with Tony Windsor, Rob Oakeshott as well, but in particular with Tony Windsor - we as a Government came forward and established the Independent Expert Scientific Committee. That Scientific Committee provides an extraordinary resource. You have in the order of $200 million worth of scientific work that gets done as a result of it, which quite specifically is independent of scientific work paid for by the companies.

I think that of itself has provided a real level of community confidence that the scientific work being done has the integrity that people would want. But at the end of that process, we've paid for the work, the work's been done, it's been done independently. It comes back to me for decision and I'm only allowed to take that information into account to the extent that there's an endangered species or a Ramsar wetland or something that's currently listed.

With this in mind, the Government believes that environmental law should be amended in a way that matches community expectations of what our decisions involve. And for that reason the amendments will work this way. It will not be a broad trigger that affects everything relating to water. We have neither the desire, nor the capacity, as a commonwealth government to suddenly become the approval authority over every farm dam in the nation.

But, given that we have already established the Independent Expert Scientific Committee that deals with coal seam gas projects and large coal mines, that is the appropriate gateway to federal approval. So, for those projects which already have a legal definition in the Act because of the Independent Expert Scientific Committee, for those projects there would a new matter of national environmental significance which would call in the full impact on water resources.

For business these sorts of issues and the data required for me to make this sort of decision is data which is largely already collected. It's already collected in different ways for the state approval process. It's already collected in different ways for the work of the Independent Expert Scientific Committee. The missing link hasn't been whether the work gets done. It's whether the work, having been done, is allowed to be taken into account at a commonwealth level.

The final question then is how do you deal with the transition? Because there are a large number of projects that are already in the pipeline, that have already been deemed to be controlled actions. It would create a very perverse outcome if every application that was already in the system and under way was through to the keeper. And we were able to say, well, we're going to meet community expectations, it will just be three or four years down the track before it has an impact.

So what we have determined, and what the legislation will reflect, is that any decision where it's in the approval process, but the Independent Expert Scientific Committee has not yet given me their final report, will be caught by the new matter of national environmental significance.

That does not mean that those projects will have to go right back to the beginning and start their full environmental impact assessment again. What it does mean is they are being contacted by my department and they are being advised, the same way as we frequently seek additional information, they're being asked to provide the additional information which would be required for there to be a federal approval decision which dealt with the full impacts of those projects on water resources.

Against all of this, what we're able to do at the end of it is simple. It means if an approval is given, the community expectation, that I will have taken account all the implications for water resources, will in fact be my legal obligation. It means that, to the extent that water is impacted, we're not only going through a circuitous device of finding a threatened species or finding a downstream link to a Ramsar wetland, we're dealing with a water resource squarely, the way the public generally presume we're already doing.

Against all that, we're making sure the administrative processes for transition are done in a way that we get better scrutiny, are done in a way that we get better quality decisions and more thorough decisions, but not done in a way that just needlessly adds to timeframes and just adds months and years to the process. We have a desire to make sure out of this we get better environmental decisions. We have no interest in simply adding to time lines.

QUESTION: You were already negotiating processes with the states, so does this override those processes? Secondly, the Coalition has said they think that this would be unconstitutional. Are you certain that it would withstand a challenge?

TONY BURKE: On the discussions with the states, we've been informing our state counterparts of this decision in the course of this morning. And for - we are still open to continuing the national partnerships process, but we'll work through how the states want to deal with it now that we've taken this step.

QUESTION: But would this legally override those agreements?

TONY BURKE: No. No, I've got no advice that would say that would occur. On the second issue, Lenore, it was with respect to the constitutionality. All of this relies on the corporations' power, on interstate trade, and on the trade and commerce powers. National heritage laws in the same Act rely on the same powers. So there is no reason to believe that there's a problem here. The national environmental law already uses the same commonwealth heads of power for some of the matters of national environmental significance.

There are others that are reliant on external affairs, but the national heritage is a classic example, which is squarely within the same framework that we're talking about here.

QUESTION: Minister, how many projects are currently caught in this transition phase of where your department is going to contact them and get more information?

TONY BURKE: We're contacting every coal mine or coal seam gas project. Now, there's many of those, but a lot of them are at such a preliminary stage you'd have to say the impact on them would be negligible, because they're just setting up their processes. You also get a number of referrals come to you at a commonwealth level, where they refer very early and make a decision much, much later as to whether or not they want to go ahead with the project itself.

So to give you a meaningful number, it's something that we should be able to provide in the next couple of days. Because if we just go through the total number of referrals you'll get a number of projects which are right at the very early stages where this change is actually meaningless in terms of its impact for timelines, because they haven't even started their assessment process.

But as I say, there will be some where it is significant. And for the ones where it is significant, rather than tell them to start again, what we'll be doing is simply seeking additional information and getting it in that way. For most of them, the data that we require is data they have already collected. The difference isn't whether or not this information is accumulated. It's whether or not this information is legally allowed to be taken into account.

QUESTION: Minister Burke, will this proposed change allow farmers and coal seam gas mining companies to better co-exist out there at grassroots level, do you think, with the concerns around water and tax on agricultural production?

TONY BURKE: Yeah. Colin, I do think there - I do think it will help. The reason I think it will help is simple. While I'm not proposing that we take into account impact on agricultural land as a direct point, you can't talk about impact on water without talking about both environmental and other productive uses.

So I think those involved in agriculture will be very pleased to see this, simply because there has been an understandable frustration. A lot of people say to me they'll live either way with the final decision but they want to know that the process has taken everything into account and to have the current circumstance where we've stepped up to the mark, the data was already being collected, we're now making sure it's being independently analysed, all of those reports are being put together but at the final hurdle, we, by law, don't take them into account at the decision-making point is something that you can understand why people are frustrated.

This will fix that and it means that the integrity of any final decision I think will have a lot more behind it because the legality of the decision will match the expectation.

QUESTION: Is this to now Mr Windsor's satisfaction because he's obviously had a big impact on the changes?

TONY BURKE: I'll leave it for cross bench Members of Parliament to speak for themselves.

QUESTION: Minister, will this take into account associated infrastructure with large coal mining developments such as ports?

TONY BURKE: Whenever you refer a project, you refer all the parts of the project. So, you know, for example, when you deal with a mining operation where there's road clearing and things like that, everything associated with the project gets taken into account.

Shipping movements get taken into account when you build a port and things like that. So the full range of issues get taken into account but that's nothing new.

QUESTION: Minister, there's a wildlife conference on at the moment in Bangkok that has restricted trade of certain species of sharks and manta rays. What's your reaction to that?

TONY BURKE: There are deep problems throughout the world with the practice of shark finning. In Australia, we have a good process which is where shark fins are only used when the entire shark is caught and that avoids the situation of a boat being able to fill itself up by completely depleting an area of sharks but only actually carrying the fins on board.

Continued international cooperation on this is important. I've got to say this government has on issue after issue taken a very hard line when it comes to protection of the ocean. The conference which is going on that you refer to is one of the ways in which hopefully the rest of the world takes a similar level of interest.

Ever year we're getting better than where we were but in the space of one person's lifetime, the oceans have taken an extraordinary hit and sharks are one of the species which has been most hit by that.

QUESTION: Minister, what did you think of the poll out today and the speculation around your leader's bid to [inaudible]?

TONY BURKE: Not that much more than I think about the ones that I'm asked about every few days. You know, there's a leadership ballot going on at the moment. It's happening in the Sistine Chapel but, you know, other than that, these questions get thrown at us every - every few days. Our job's to keep doing our job.

QUESTION: A bit better news today for you?

TONY BURKE: Our job's to keep doing our job.

QUESTION: Minister, on James Price Point, Gary Gray's come out in Western Australian today saying that he supports a floating platform on environmental grounds and also [inaudible] put to Australia for [inaudible] technology.

What's your view on that, and secondly given that one of the two places where the Greens actually did any good in WA was in the Kimberley and it's seen as opposition, local opposition, to James Price Point, would you maybe welcome if Colin Barnett sort of rethought his support for James Price Point and got behind a floating platform?

TONY BURKE: Often to the frustration of many people when it comes to legal decisions, I keep the legal framework really strict. The question for me on James Price Point will be to work through whether or not the terms of reference of a strategic assessment have been met.

That's by law what has to be done and if I get it wrong, all that happens is the decisions get thrown out in court. So that decision will be before me soon to work out whether or not they've met the requirements of those terms of reference.

If they haven't, I'll send it back and say I'm not going to make a decision until you finish the job and beyond that, the strategic assessment decision, when it eventually comes to me, will be the is this an appropriate location or an inappropriate location?

I'm not going to be asked would it be more appropriate to put it somewhere else or to put it offshore. I did approve Prelude. It was of the early approvals that I gave, which I think is a very good project and has a number of environmental benefits. But I'm not using that in any way to reflect on the project you refer to. I'll be dealing with that one according to law.

QUESTION: How quickly can you legislate the change that you're announcing today?

TONY BURKE: The drafting is largely complete, so I expect I'll be able to introduce it into the Parliament before long at all.

QUESTION: This week?

TONY BURKE: Either this week or next week I expect I'll be able to introduce it to the Parliament. The timing on legislative processes - it's not like I'm trying to get it through within a few days or something like that. We'll go through the normal processes of the Parliament.

QUESTION: Minister, Cape York owners are keen to get the area heritage listed. What assurances can you give that ongoing funding will be made to go towards sustainable development?

TONY BURKE: I think one of the most important areas of ongoing funding for the Cape is in what we've done with indigenous rangers. The Indigenous Rangers Program, where instead of getting a park ranger from another part of the country to move up there and do the environmental management, now have people employed to manage their land on their land. It has been one of the most extraordinary and successful environmental programs I have seen.

I have camped with the Indigenous Ranger Program at Coen and a number of locations throughout the Cape, and the work that they do, I think, provides a good guide for how we would be able to make management decisions and management commitments into the future.

The only other thing I'll say with the Cape though, is we have done something there that no other country in the world has done with a World Heritage Listing. And that is that instead of the government having a map and going out to traditional owners and trying to sell it and then pick which traditional owners you want to be photographed besides - you've got the ones who agree with you to create the impression that you've won everybody over - we have handed traditional owners the pen and we've said you draw the map and we'll back you in.

It is the reverse of how these decisions have been made before in Australia and the reverse of how they've been made anywhere before in the world. That does mean the process has been slower than some people would like, but I think the integrity and the decency of the way we are handling Cape York is exactly what Closing the Gap is meant to mean, is exactly what the apology was meant to convey, and exactly what gives meaning to native title.

QUESTION: How soon will you make a decision on James Price Point? I think you said last time you were still waiting for paperwork from the WA government?

TONY BURKE: I understand it's with my department. It hasn't yet been presented to me.

QUESTION: Minister on the Independent Expert Scientific committee. They made numerous recommendations for bioregional assessments. Can you provide any update on those?

TONY BURKE: Look, my office can get that to you. The Independent Expert Scientific Committee have a website with updates as to where it's all at. There's a number of bioregional assessments that they've committed to. I've been signing off on money for it, but the exact where we are at this moment in time on all of that work - I'd rather have somebody get you the technical detail very specifically.

QUESTION: Ms Elliot, you've stepped down from the Parl Sec role to focus on campaigning against coal seam gas during the election - lead up to the election. Can you tell us how you feel about this change? The legislation will it satisfy some of the concerns in your electorate?

JUSTINE ELLIOT: Well, look, obviously, as the Minister has said, there's very widespread community concern. And on the northern rivers, where Janelle and I are, the community have been very, very outspoken about this issue. And I'm sure they'll welcome this latest announcement in terms of strengthening our environmental controls. It is a real concern for them up there.

QUESTION: Are you worried about how the New South Wales government is handling the issue?

JUSTINE ELLIOT: Well, look, both myself and Janelle have been very outspoken on that. We've actually got a petition at the moment demanding that the New South Wales state government make the north coast CSG free. And whilst we'll be out there talking about us as a federal government strengthening these environmental protections, we'll keep reminding people it's the state government that regulates and licences coal seam gas mining, and we'll be keeping the pressure on them.

QUESTION: Minister Burke, are you surprised by the one third reduction of the Green vote in Western Australia at this election? And also former WA Premier, Geoff Gallop, expressing concerns about the diminished vote for Labor in the bush? You've spent some time in regional Western Australia. Can you just give us your view on those two issues?

TONY BURKE: Yes. I haven't been close enough to what was involved during the course of that campaign to be able to provide much more than what's already been reported there. Needless to say, whenever the Labor vote goes well in an election then I'm happier. What happens with other parties there - you know, we had a tough election. We had a very tough election there in WA. Exactly what were all the nuances behind it, I think, WA MPs would be better placed than me to be able to answer that.

QUESTION: Do you think though you're competing for a diminishing vote out in the bush on some of these environmental issues with the Greens; that you need to go back and reconsider some policy positions [inaudible].

TONY BURKE: Oh no. I'm very happy with our environmental credentials. If you look at what are the biggest achievements that we've had this term - protection of the oceans, Murray-Darling Basin, the work that's happening in Tasmania - on each of those you can find different times where, for iconic environmental achievements, the Greens have been in the media bagging them.

On the case of Murray-Darling they actually moved disallowance in the Parliament to try to stop it. You had the Greens in the House of Representatives sitting on the same side of the chamber as Bob Katter. So when it comes to making noise about environmental issues the Greens will make noise. They'll have their conversations. That's fine. When it comes to actually getting runs on the board on specific outcomes I'm very happy with where Labor stands.

QUESTION: Minister, is there any update you can give us on the green tape issue and what your thoughts are at the moment and where it's heading?

TONY BURKE: The last definitive statement on that was what the Prime Minister said following the last COAG. There'll be more for us to say on that, but it won't be today. Okay, thank you very much.

QUESTION: Thanks, Tony.