The Nature Positive (Environment) Bill 2023 places more emphasis on maintaining a flawed treaty implementation model than on enabling Australia’s Ramsar compliance. Here is why.

Written by Carina Bury

 

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The recently introduced Nature Positive (Environment) Bill 2023 in Australia is unlikely to reverse the currently unsustainable trajectory of Australia’s Ramsar wetlands, home to a diverse range of plant and animal species that are disappearing faster than those from other ecosystems. This finding is due to the fact that the historic reform of environmental laws places more emphasis on an outdated treaty implementation model over international environmental law compliance.

“Treaty implementation model” also referred to as “treaty reception mechanism” or “treaty implementation system”, covers all constitutional techniques that are explicitly provided by constitutions and domestic law to receive international law in the domestic system (positive law). It furthermore encompasses all treaty implementation techniques commonly employed (e.g. reliance on existing legislation) and accepted by doctrine but nowhere explicitly prescribed by constitutions or domestic law (law in operation or custom).

The 2022 Australian federal elections renewed hopes for a change in the country’s approach to implementing international environmental obligations. The Albanese government has expressed its determination to introduce sweeping changes to Australia’s national environmental laws, focusing on protecting the country’s environment, especially Matters of National Significance, such as Ramsar wetlands.

This came in response to Graeme Samuel’s Independent Review of Australia’s Environmental Protection and Biodiversity Conservation Act 1999 (‘EPBC Act’), which, read alongside the sobering findings of the 2021 State of the Environment Report highlighted the ineffectiveness of the current national framework for environmental and biodiversity conservation.

Despite Australia’s eagerness to become the first contracting state to join the Ramsar Convention on Wetlands 50 years ago, its domestic response to the Convention has been inadequate. The Commonwealth government has failed to comprehensively review opportunities to review the country’s domestic response to Ramsar and other environmental treaties, despite increased Commonwealth power to implement international environmental treaties since the High Court’s 1983 ruling in the Tasmanian Dam case.

The proposed National Environmental Standards, which form the cornerstone of the ‘Nature Positive (Environment) Bill 2023’, underwent public consultation until March 2024. While the Commonwealth government claims that these standards will enhance Ramsar wetland protection, a thorough analysis suggests that the present approach prioritises immediate economic benefits over international wetland conservation obligations. These proposed standards overlook past shortcomings in adhering to the Ramsar Convention, which may adversely affect Australia’s Ramsar performance.

To avoid this, the ‘Nature Positive (Environment) Bill 2023’ must address critical shortcomings in operationalising Ramsar commitments.

Addressing Key Issues to Ensure Australia’s Ramsar Performance

The implementation of international environmental agreements at the national level has become increasingly challenging due to the broadening scope of obligations that now extend to intra-state issues. This complexity necessitates addressing policy coordination challenges and aligning with other legislative concepts, such as ecologically sustainable development. Furthermore, navigating complex governance structures, including overlapping jurisdictions over the subject matter, adds to the intricacy. Accommodating treaty demands that are constantly evolving, especially in areas susceptible to shifting threats like environmental protection, further compounds the complexity. However, domestic responses are often inadequate to operationalise this normative complexity and evolution of treaty law in domestic law.

This is the situation in Australia’s domestic treaty reception system, which is ineffectual in achieving the domestic integration of the Ramsar Convention. To address these deficiencies in the Nature Positive Bill, three issues must be tackled: the ‘statutory vacuum,’ material loopholes, and coordination issues.

Figure 1: Treaty reception constraints

Figure 1: Treaty reception constraints

 

1. Addressing the ‘statutory vacuum’ phenomenon
One key policy style constraint in Australia is a lack of direction and guidance in setting wetland conservation standards and providing for the necessary wetland conservation measures. Reliance on this policy implementing style is manifested by mere reference to ‘Australia’s [Ramsar] obligations’ as currently, for instance, in s138 of the EPBC Act 1999 (Cth) or reference to general Ramsar demands as in the National Environmental Standards of the Nature Positive (Environment) Bill 2023.

Yet, the Ramsar principles of wise use and conservation must be further fleshed; that is, standards must be clearly defined and outcomes determined to create a circumstance of inconsistency with specific developments, as held in Australian Conservation Foundation Incorporated v Minister for the Environment (‘Adani Case’).

The contrary is the origin of a ‘statutory vacuum’, particularly when confronted with land use decisions in high-land-use pressure scenarios. The above-mentioned National Environmental Standards on Matters of National Importance, including Ramsar wetlands, form the basis for decision-making, including for bioregional planning. Such plans are currently being developed in three of Queensland’s bioregions, one of which is home to Ramsar wetland, Moreton Bay, namely the South East Queensland regional plan.

Bioregional plans developed under the proposed national environmental law reform are in a ‘statutory vacuum’ because the underlying national environmental laws fail to provide for the necessary spatial and substantive application and enforcement of Ramsar treaty demands. This could lead to Ramsar-conflicting outcomes, potentially endangering the delicate balance of these wetland ecosystems.

Ramsar conservation and wise use are not sufficiently made spatially and substantively applicable and enforceable. This is because the underlying national environmental law reform fails to provide for strong standards, involving default conservation zoning of specific environmental values such as Ramsar wetlands. Instead, the bioregional planning scheme is built around a largely discretionary traffic light map, composed of zones of high environmental value, where development will be largely prohibited, amber areas of moderate environmental value, where development is subject to an approval process, and development priority areas, where the planning process can proceed without a separate Commonwealth environmental approval. The zoning scheme does not require Ramsar wetlands, which pertain, subject to the urgent national interest, to no-go-development areas in international law, to be designated as having high environmental value, nor does it single out Ramsar-incompatible activities in Ramsar wetlands per se.

Consequently, bioregional planning can be determined by individual views and interests, as is currently the case for the first planning schemes developed between the Commonwealth and Queensland governments in three regions of the state.

Under the South East Queensland Planning scheme, the strictest conservation category is being planned only for a fraction of the legally defined Ramsar area, Moreton Bay, with which the Nature Positive Plan is intended to align.

Even if it is assumed that certain developments may fulfil the ‘urgent national interest’ test of the Ramsar Convention, abusive decisions are currently legally facilitated under the reformed legislation. The Nature Positive Bioregional Plan is set to be aligned with the 2023 SEQ Regional Plan adopted under state planning legislation in Queensland, whose objective consists of developing 80% of above-average housing for above-average wealthy Australian residents, without any mention of wise use or Ramsar conservation requirements.

This is compounded by the fact that the Bill does not outline when impacts on or adjacent to Ramsar wetlands are acceptable, such as in cases of poverty eradication or critical infrastructure. This lack of clarity is particularly problematic when bioregional plans are being prepared in areas with high development pressure, such as southeast Queensland, which is home to the Ramsar wetland Moreton Bay.

[Sea-level projection for 2030 under the intermediate (RCP4.5) concentration scenario inundating remaining mangrove forests of Ramsar site, Moreton Bay. Source: CoastAdapt. Map: Coastal Risk Australia]

[Sea-level projection for 2030 under the intermediate (RCP4.5) concentration scenario inundating remaining mangrove forests of Ramsar site, Moreton Bay. Source: CoastAdapt. Map: Coastal Risk Australia]

2. Material loopholes
Australia’s response to the Ramsar Convention remains static under the Nature Positive Bill, which is inadequate given the rapidly evolving environmental threats, such as climate change. The bioregional planning scheme does not address sea-level rise, and there is currently no doctrinal or regulatory solution for high-density scenarios in heavily developed areas like the Moreton Bay Ramsar site. Conserving wetlands in the face of rising sea levels is a major challenge, as these ecosystems have limited retreat options (see photo).

3. Material coordination problems
To effectively implement the Ramsar principles of conservation and wise use, it is important to ensure both horizontal and vertical coordination on wetland regulation. Horizontal coordination involves aligning Ramsar with other legislative concepts, while vertical coordination involves harmonising wise use at all levels of government. Ensuring both types of coordination is crucial to avoid inconsistencies, confusion, and uncertainty, which can ultimately lead to a blocked Ramsar standard.

a) The problem of alignment with other legislative concepts (e.g. ESD)
The Nature Positive Bill upholds the EPBC Act’s definition of the principle of ecologically sustainable development (ESD), which conflicts with the Ramsar Convention. This is because ESD expressly encompasses short-term economic interests, such as arguably the controversial and Ramsar-incompatible Toondah Harbour proposal. This creates a problem for decision-making related to Ramsar sites. Even if specific developments were excluded from Ramsar sites under national environmental law, this would only be consistently enforceable if the Bill’s ESD definition aligned with the Ramsar understanding of wise use. An alternative solution would be to establish a clear hierarchy of the Ramsar understanding of wise use concerning decisions made concerning Ramsar wetlands.

b) Unclear hierarchical status, leading to contradictions and confusion.
The Nature Positive Bill aims to protect wetlands and regulate land use planning in a cooperative manner. It does not supersede existing State legislation on wetland conservation and sectoral regulation. However, the issue is that sectoral laws and protected area legislation often do not meet the requirements of the Ramsar Convention. To address this, the Bill should propose to designate Ramsar wetlands as the strictest category of protected areas at the national level. This would prevent incompatible activities, such as residential development, and make it more difficult to downgrade or remove the designation of these areas for short-term economic gain. Professor Cook from Monash University found that 13,000 square kilometres have been lost in Australia from conservation areas due to commercial developments such as hotels and marinas, and forestry, livestock grazing, hunting and fishing being permitted in protected areas.

Conclusion
The proposed Nature Positive (Environment) Bill of 2023 in Australia has the potential to undermine the effective implementation of the Ramsar Convention further. The Bill falls short of the necessary legal clarity and stringent requirements for Ramsar compliance. It also fails to align Ramsar requirements with other legislative concepts. Furthermore, the Bill’s lack of accommodating evolving treaty demands shows Australia’s limited domestic response to international environmental law. This poses significant challenges to Ramsar performance. The Parliament’s decision to pass the Bill in 2024 will be crucial in determining the extent to which Australia’s domestic treaty response system can operationalise the complex nature of international environmental law.

Carina Bury

Carina Bury is a doctoral candidate at the Faculty of Law, University of Hamburg, and a visiting researcher at the ANU Centre for International and Public Law. Donald Rothwell and Alexander Proelss supervise her research. Carina's PhD thesis focuses on the federal challenges to effective treaty implementation, using the Ramsar Convention as an example. She has been awarded a competitive scholarship from the German Federal Environmental Foundation and has published articles in leading law journals. Carina taught as a Guest Lecturer in International Environmental Law (LLM) at the University of Nottingham, UK. Carina has a multidisciplinary academic background in law and political sciences.

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