Megan C. Evans

I never thought I’d be in a situation where I felt the need to defend Gina Rinehart. I’m pro-mining tax, love the Great Barrier Reef, pro-divestment and pro-safe climate. But, I want an informed debate on these issues – and in the case of the proposed Abbot Point coal terminal development, we need to have a decent understanding of the environmental policies which guide the environmental impact assessment process.

Yesterday, the Guardian published an article,  “Criticism over Great Barrier Reef deals for Gina Rinehart’s mining company” which claimed that Rinehart’s company had negotiated down a compensation payment required by the government as part of its approval for the development on the Great Barrier Reef:

Documents obtained under freedom of information show that the previous Labor government demanded $800,000 a year in “biodiversity offsets” from GVK Hancock due to the environmental impact of its proposed coal terminal in Queensland.

But the documents state GVK Hancock considered this amount “excessive” and put in a counter-offer of $375,000 a year.

The government acquiesced to this bargaining, with a figure of $600,000 a year eventually deemed an “adequate” amount.

Most readers would be horrified to learn that a large company had been able to negotiate a payment meant to compensate for the environmental impacts of a development – particularly given the environmental significance of the site, and the identity of the company owner. But, there’s some important context missing from the story.

The article points out that the biodiversity offset payment was reduced from the $800,000 per year originally requested by the government to $600,000. However, this amount is only a fraction of the total biodiversity offset package required in the approval decision [pdf]. The full details of the biodiversity offset strategy are listed in items 34 to 50 in the approval decision document, and include:

40. Offsets must be provided for disturbance impacts (including residual indirect impacts such as edge effects):
a) to habitat identified in pre-clearance surveys of vegetation which meets the definition of the endangered ecological community Semi-evergreen vine thicket of the Brigalow belt and Nandewar Bioregions;
b) to areas of the Caley Valley Wetland identified in pre-clearance surveys;
c) to areas of seagrass identified in pre-clearance surveys; and
d) to MNES identified and confirmed as part of pre-clearance surveys not listed in (a) to (c).

The $600,000 annual payment (condition #44) is required “from construction until the expiry of this approval [1st September 2053] or cessation of operations, whichever comes sooner” to fund the employment of Indigenous Rangers, management for the Great Barrier Reef World Heritage Area and “to fund Net Conservation Benefits”, administered by the Great Barrier Reef Marine Park Authority.

This annual payment is in addition to the securing of biodiversity offsets for the Matters of National Environmental Significance (MNES) required by the EPBC Act Environmental Offsets Policy (as listed in #40 above). We don’t know how much these offsets will cost yet – the project is not yet at a stage where the final biodiversity offset strategy has been released by the proponent or approved by the government. But, offsets cost money – in some cases, millions of dollars – in order to secure and manage land in perpetuity (or until 1 September 2053 in the case of this project).

So, given this condition is indeed “bespoke” rather than being developed according to a specific policy, I think it’s entirely reasonable for the proponent to be able to comment on this condition as a course of natural justice. The government does have the authority to impose the condition, but there is no clear scientific or policy basis for this $600,000 annual payment. I don’t think it makes sense to be completely opposed to negotiation between the regulator and proponent in cases where conditions are bespoke – otherwise, the government could potentially request “a billion-gazillion dollars per year to fund an inland dolphin petting zoo” without the proponent being able to point out that maybe that’s not a reasonable condition.

However, where a condition is imposed that is based on clear policy; for example a biodiversity offset as determined using the guide – which is very much grounded in science – I see far, far less scope for a proponent to “negotiate” on these conditions. If the science says we need a 100ha offset to compensate for impacts to a threatened species, then in my view that’s not as easily negotiable.

While I think it’s great that biodiversity offsets are getting media attention, it’s unfortunate that the Guardian article only gave one part of the story in this case. I can’t comment on the other claims made in the article (the coal dust issue and the timing of the offset strategy) as I don’t know the contents of the FOI documents. I do find it strange that the FOI requests on this project (2008/4468) were made in late 2012 and early 2013, so why this information is only coming to light now is unclear.

There are, however, *lots* of interesting questions about biodiversity offsets and environmental approvals which deserve an informed public conversation – such as: Why are offsets being used as part of environmental approvals when the public has no access to information on how successful they’ve been in the past? Should proponents receive a discount on offset requirements if they prove to be too expensive (the opposite of what offset policy is meant to do), as outlined in the new draft NSW major projects policy? Is it OK to offset a protected area? Should the ACT government use existing protected areas as offsets, as in their new policy? How can we expect proponents to spend huge amounts of money purchasing and managing offsets when the government has such limited (and decreasing) capacity to monitor their progress? In my view, these are issues that have far bigger implications for the environment than a loss of $200,000 a year of management funding.

To have an informed debate on these issues, we need to go beyond “offsets are good” vs “offsets are bad”, Gina vs the reef, or Goodies and Baddies. My PhD research is motivated by a desire to reconcile these divergent views, and to provide a pragmatic way forward. I hope the media can facilitate such a discussion with the Australian and international community in the future.