Article

Wildlife Protection Laws – Are they Applied?

My experience with the Bald Hills wind farm has highlighted what I believe to be a general failure in the application of the laws. The consequence is that many species that are supposed to be protected are not. I have provided a couple of examples below however it would be easy to select more. This failure to respond properly to wildlife protection laws could be occurring on other impact assessments for other types of projects proposed at other locations throughout Victoria.

Rob Hulls
Victorian Attorney General
GPO Box 4356QQ
Melbourne Vic 3001

Dear Sir,

Wildlife Protection Laws – Are they Applied?

1.INTRODUCTION

The State of Victoria has a number of laws specifically for the protection of wildlife. These include the (1) Wildlife Act 1975 and (2) Flora and Fauna Guarantee Act 1988.

The Commonwealth’s (3) Environment Protection and Biodiversity Conservation Act 1999 also creates obligations for the States.

Australia also has obligations under the following treaties.

(4) Convention on the Conservation of Migratory Species of Wild Animals (as amended by the Conference of the Parities in 1985, 1988, 1991, 1994, 1997, 1999 and 2002)

Effective 23 December 2002 (abbreviated as the Bonn Convention or CMS) to which Australia is a party.

Treaties with Japan and China:

(5) Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (Tokyo, 6 February 1974) Entry into force: 30 April 1981,

AUSTRALIAN TREATY SERIES 1981 No 6 (JAMBA) and
(6) Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment
(Canberra, 20 October 1986) Entry into force: 1 September 1988

AUSTRALIAN TREATY SERIES 1988 No 22 (CAMBA).

These state, national and international laws are... [truncated due to possible copyright]  
Rob Hulls
Victorian Attorney General
GPO Box 4356QQ
Melbourne Vic 3001

Dear Sir,

Wildlife Protection Laws – Are they Applied?

1. INTRODUCTION

The State of Victoria has a number of laws specifically for the protection of wildlife.  These include the (1) Wildlife Act 1975 and (2) Flora and Fauna Guarantee Act 1988.

The Commonwealth’s (3) Environment Protection and Biodiversity Conservation Act 1999 also creates obligations for the States.

Australia also has obligations under the following treaties.

(4) Convention on the Conservation of Migratory Species of Wild Animals (as amended by the Conference of the Parities in 1985, 1988, 1991, 1994, 1997, 1999 and 2002)

Effective 23 December 2002  (abbreviated as the Bonn Convention or CMS) to which Australia is a party.

Treaties with Japan and China:

(5) Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (Tokyo, 6 February 1974) Entry into force: 30 April 1981,

AUSTRALIAN TREATY SERIES 1981 No 6  (JAMBA) and
(6) Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment
(Canberra, 20 October 1986) Entry into force: 1 September 1988

AUSTRALIAN TREATY SERIES 1988 No 22  (CAMBA).

These state, national and international laws are frequently referred to in documents produced by the Victorian Government which I would understand would mean that they are being applied.

My experience with the Bald Hills wind farm has highlighted what I believe to be a general failure in the application of the laws.  The consequence is that many species that are supposed to be protected are not.  I have provided a couple of examples below however it would be easy to select more.  This failure to respond properly to wildlife protection laws could be occurring on other impact assessments for other types of projects proposed at other locations throughout Victoria.

The Bald Hills Wind Farm Assessment August 2004 prepared under the Environment Assessment Act 1978 and the Bald Hills Wind Farm Project EES, EES Supplement and Called in Planning Permits Panel Report 24 June 2004 both refer to 1, 2, 3, 5 and 6 above.  There is however no evidence that these statutes were applied to a range of species recorded at Bald Hills and likely to be impacted on by the proposed wind farm.

2. BIRD IMPACT ASSESSMENT FOR BALD HILLS WIND FARM

I would like to point out the following in support of my claim that the survey and impact assessment has not been adequate and species to be protected by law have not been addressed.

Over 160 species of birds are recorded for the Bald Hills area with the FFG Act listing 17, the Environmental Protection and Biodiversity Conservation Act listing 43 as migratory and 2 as nationally endangered whilst CAMBA and JAMBA list 8 species.

Dr Appleton lists 13 bats species for the Bald Hills area including species listed under the FFG Act.

The limited bird survey carried out by Brett Lane and Associates recorded only 81 species of birds and the EES did not address the range of species listed by other authorities and in available databases.  It is very obvious that a brief survey would not be likely to pick the less common birds which in many instances happen to be the ones that are in need of protection.

In addition to the species recorded in the Bald Hills area there are a number of international migratory species that use the nearby coastal wetland and when they move between wetlands fly along the coast. 

The Bald Hills wind farm presents an obstacle to these movements.
DSE can readily provide a print out from their database to give the species in an area to confirm the presence of species.

Because there was a substantial difference in the number of bird species recorded by Brett Lane and Associates and the published records, DSE was asked, through the panel, to attend and provide database information.  DSE did not provide the database information to the panel and the panel did not pursue it.  The panel would have been informed by this information.  Copies of the requests are at Attachment B.

Wind turbines kill birds and scientists have estimated that the Altamont wind farms in California USA have killed between 22,000 and 44,000 have been killed over a 20 year period.  In Spain nearly 7,000 birds were killed in one year.  Large numbers of bat kills have been recorded at wind farms.  This information is readily available however the main point is that poorly site wind farms have the potential to kill large numbers of birds and bats and the only way to determine the impact is to carry out a thorough investigation in the first instance.

Comments of the Panel about the survey and impact assessment work are at Attachment A.  They are self explanatory.

In the following two sections provide examples of two species where the birds did not receive the degree of investigation or impact assessment required.

2.1 White-bellied Sea-eagle

There are nesting pairs of White-bellied Sea-eagle at nearby Nolans Bluff and near Cape Litrap and they are recorded around the proposed wind farm site.  Records provide this information however the flora and fauna consultant did not accept the likelihood of them being near the wind farm site.

The White-bellied Sea-eagle, like the Wedge-tailed Eagle, is listed under the EPBC Act as a migratory species, however in addition, the sea eagle is listed under the State’s FFG Act (Action Statement 60) and CAMBA.  The CAMBA documents the following responsibilities of its partners.

 “Article III
1.        
2. …….
3. Each Contracting Party shall encourage the conservation of migratory birds, especially those in danger of extinction.

Article IV
Each Contracting Party shall endeavour, in accordance with its laws and regulations in force, to:

(a) establish sanctuaries and other facilities for the management and protection of migratory birds and also of their environment: and

(b) take appropriate measures to preserve and enhance the environment of migratory birds.  In particular 

 (i) seek means to prevent damage to migratory birds and their environment, and 

 (ii) ………

There is clearly no scope within this treaty for industrial installations like wind farms to kill White-bellied Sea-eagles and well defined requirement to protect and enhance their environment.

2.2 Predictive Modelling and White-throated Needle-tail

The panel hearing the Yaloak planning permit application required the proponent, Pacific Hydro, to undertake predictive modelling to determine the impact the proposed wind farm would have on the Wedge-tailed Eagle population.  No such exercise was done for the Wedge-tailed Eagle or White-bellied Sea-eagle at Bald Hills, nor did the panel request any such information.

Brett Lane and Associates attempted to model the impact of the turbines on the White-throated Needle-tail at Bald Hills but was unable to execute the required arithmetic without error.  The panel found that Brett Lane and Associates predicted rate of 18 kills per year was wrong and the panel’s calculations indicated it should have been 28 kills per year.  This was the only impact modelling done for Bald Hills.

The White-throated Needle-tail is a migratory species and it is listed under the EPBC Act as migratory and under CAMBA and JAMBA.  The relevant sections of JAMBA are as follows:

“Article III

1. Each Government shall take special protective measures, as appropriate, for the preservation of species or subspecies of birds which are in danger of extinction.

2. ………….

3. ………….

Article IV

1. ………….

2. ………….

3. Each Government shall encourage the conservation of migratory birds and birds in danger of extinction.

Article V

Each Government shall endeavour to establish sanctuaries and other facilities for the management and protection of migratory birds and birds in danger of extinction and also of their environment.

Article VI

Each Government shall endeavour to take appropriate measures to preserve and enhance the environment of birds protected under the provisions of this Agreement. In particular, it shall:

(a) seek means to prevent damage to such birds and their environment;

(b) …………..

(c) …………”.

It is clear again that there is no scope for a wind farm to kill White-throated Needle-tail.

3. SUMMARY

I have provided examples of only two species where there is a lack of assessment and an error in assessment.  There are many other species that were not the subject of impact assessment even though a list containing them was presented to the panel.  A number of species not addressed include those that are listed.

The panel report for the Bald Hills wind farm concluded that:

"The Panel has a concern that the philosophy of the bird analysis was insufficiently responsive to the precautionary principle."

…"the Panel considers that there is insufficient information to allow a credible general conclusion that there will be no material impact on bird species listed under the EPBC Act or the FFG Act."

And yet the panel recommended approval of the wind farm.  This raises the question:

How are wildlife conservation laws applied for the protection of wildlife in Victoria?

I would appreciate your answer to my question and if you require any further information please contact me and I will be happy to assist by providing any information you require.  I would also be pleased to meet with you to discuss the impact of the proposed Bald Hills wind farm on wildlife.

I look forward to your response.

Yours faithfully


Andrew Chapman
 

Attachment A

Extracts from the Bald Hills Panel Report about the bird survey work.
"It should also be noted that Mr Lane did not refer to locally available observations, such as the bird list for Bald Hills Wetland Reserve or other lists available from local field naturalists organisations, and no clear explanation was provided for this omission."

"Further, Mr Lane did not refer to the DSE prepared Landscape Plan for the Gippsland Bioregion Tarwin-Powlett Landscape Zone and Biodiversity Assessments for local individual properties."

"Mr Lane had not used EPBC Act databases, or made reference to locally sourced species lists. Nor had he clearly explained why he had not done so."

There was an "absence of a specifically designed and reported early morning survey segment (dawn to 8-00am) and an equivalent evening segment (5-00pm to dusk)"

"It was not the intention of Mr Chapman or Mr Bluff to suggest that he should bias his survey towards the early morning or indeed evening periods of observation. Their concern simply was that these periods of the day, which happen to be periods when bird utilisation takes place, were not represented in his survey in any formal sense. The Panel shares this concern."

"the Panel has itself examined scenarios in which (for example) a typical day bird utilisation rate might be doubled, further to adding additional and equally distributed early morning and evening survey periods to the study. Such an outcome may be unlikely, but at this stage it cannot be effectively excluded, and reasonable steps to exclude it have not been taken.

One must add into this scenario the lack of formal knowledge and evaluation of the degree to which roosting might be present on adjacent land (and particularly the Bald Hills Wetland Reserve) and the possibility that relevant movements to and from roost that might have affected the site could credibly have taken place within the periods not included in the formal survey. When one also adds to this scenario that the studies contain little formal reference to scoping activities, including the use of local field naturalists data about the presence and activities of particular species to assist in determining its design, a further gap appears.

The Panel can only conclude that this is a body of work that is approaching the threshold beyond which it cannot be used for effective, rationally based public decision making.

The Panel does not as a general comment consider that the bird assessment as presented to the Panel entitles the Panel to conclude that the proposal will not adversely impact on conservation of biological diversity and ecological integrity within the development sites and surrounding lands.  Further there is at this stage insufficient information to allow proper assessment against the criteria of no impact on species listed under the EPBC Act or the FFG Act."

…"submittors highlighted their view that the site was widely used by raptors, particularly Wedge-tailed Eagles. Raptor use was often highlighted on site visits.

"The implication from Mr Lane’s reports are that raptors are not likely to be impacted due to low numbers. Mr Lane provided no specific analysis or model to support this conclusion other than low numbers and his assumptions about family groupings. No estimate of significance, impact or mortality was provided, notwithstanding that overseas work provides some grounds for caution in relation to raptor impacts."

"the proposed site was adjacent to the Bald Hills Wetland Reserve, Kings Flat Fauna Reserve and the Cape Liptrap Coastal Park, the surveys did not include targeted site margin observations of these locations to examine (for example) the degree to which roosting of relevant species might occur in this adjacent land. The degree to which roost to range and range to roost movements, or overflight movements to and from this adjacent land might affect the site were not specifically tested for."

“Mr Andrew Chapman’s submission indicates that the White-bellied Sea-eagle is listed as threatened under the FFG Act and migratory under the EPBC Act.  He also indicated that the Nankeen Kestrel is listed as migratory under the EPBC Act.”

“The Panel was informed by several submittors including Mr Chapman that there are White-bellied Sea Eagle nesting sites at Nolans Bluff and near Cape Liptrap.  A number of other submittors highlighted their view that the site was widely used by raptors, particularly Wedge-tailed Eagles.  Raptor use was often highlighted on site visits.”

…."Mr Lane concluded that the Lathams Snipe will not be significantly affected.  Mr Lane provided no information on the habitat of the Lathams Snipe, no details of any sighting records in the region or any details of migratory routes or their relevance."

White-throated Needletails - "the Panel checked the calculation and has found that by way of a mathematical error, the 18 mortalities per year should in fact be 28."

"Mr Lane concluded that numbers are such that the White-throated Needletail may be affected each spring, but that the impacts are not considered to be significant at a population scale. Mr Lane provides no figures to support this contention other than to say that while the species is listed on the EBPC Act as migratory, it is not listed as threatened at either state or national level."

"At risk of labouring matters, the reports contained a number of data copying, presentation and mathematical errors that, whilst small, altered or affected the results of Mr Lane’s work. Examples of relevant areas with variable figures included the number of species of birds flying at rotor swept height and calculations of mortality figures. A number of tables and figures were wrongly titled or labelled or acknowledged to contain the wrong data. Such errors, although typically small and simple, did not provide confidence as to the reliability of key conclusions in the reports, or of the team responsible for compiling them. These in turn added fuel to community concerns about the adequacy of Mr Lanes work and the soundness of his conclusions."

"In considering whether the approach taken by Brett Lane and Associates was damaged by lack of logical structure, clear reasoning in selection and explanation of methods and accurate presentation of data, the Panel has considered the advice provided in the Best Practice Guidelines for Implementation of Wind Energy Projects in Australia. The Panel appreciates that this document has been prepared for the wind energy industry and understands Mr Lane to have been principle author of the relevant parts.

"The Panel trusts that future EES processes undertaken by this proponent and/or consultant will focus more fully on the need to credibly communicate to the diverse audience that comprises the user group for EES documentation."

"The exhibited EES and SEES natural environment documentation and expert witness reports were disaggregated, poorly structured and difficult to use. In the Panel’s mind, these factors added unduly to community concern about this key subject matter. They have also added unduly to the work required to analyse and respond to the information provided."

"The Panel also has a concern that apparently useful guidelines have do not appear to have been followed. AusWEA as the wind energy industry peak body commissioned Mr Lane to provide some apparently thorough guidelines on ecological survey considerations for would be wind energy proponents. These guidelines take a precautionary approach and, for example, suggest the use of a wide range of possible data sources to indicate species utilisation and volume. However, Mr Lane has not used a number of his recommended sources and to this extent stands as not having followed his own apparently sound advice."
"The Panel notes that much of the doubt has arisen from poor and confused presentation and the lack of a systematic approach to the recording of assumptions and evaluations."

"The Panel has a concern that the philosophy of the bird analysis was insufficiently responsive to the precautionary principle."

…"the Panel considers that there is insufficient information to allow a credible general conclusion that there will be no material impact on bird species listed under the EPBC Act or the FFG Act."

"Turning to bats, the Panel notes a different circumstance and concern. In relation to the Southern Bent-wing Bat, the proponent has undertaken targeted evaluations and these have proved inconclusive as to utilisation. Nevertheless, it has not been suggested that utilization can be excluded, so impact remains possible."

"The Panel notes the possibility that the project may have an adverse impact on the Southern Bent-wing Bat because of the known presence of a colony at Arch Rock."


Attachment B

Request for DSE’s Flora and Fauna and Threatened Species Expertise to Present to the Panel

The Regional (Tarwin-Powlett Landscape Zone) and Local (Jelbart, O’Sullivan and Svensen) biodiversity reports provide a substantial amount of information.  These reports were discussed in cross examination of Brett Lane and Dr Charles Meredith on 23/3/04.  The reports are important in that they cover land in the district of the wind farm and work on them commenced prior to the wind farm proposal. 

The contents of these reports, particularly the lists of protected species for the region and farms, presents a very different picture to that of Brett Lane and Associates Flora and Fauna report for the EES.  The contrast is even greater when comparing the number of species they list as protected with the single species (Orange-bellied Parrot) noted in the DSE submission to the panel.

Comments from Brett Lane and Dr Charles Meredith, both consultants to the wind farm industry, under cross examination on 23/3/04, were critical of the species contained on the map in the Tarwin-Powlett Landscape Zone draft and final reports and reference to a threat to the Orange-bellied Parrot.

These differences of opinion between the industry consultants and the State Government’s flora and fauna and biodiversity expertise need to be reconciled by the panel so it can make decisions based on sound information.

The Biodiversity studies at a regional and local level record Dr Kim Lowe as a person who played a lead role in both of the projects.  The farm studies include survey work to confirm database information.  Advice from Dr Kim Lowe’s team would be valuable to both panel members and presenters.

It is our understanding from the hearing on 23/3/04 that Peter Menkhorst is the flora and fauna expert in the State Government responsible for endangered species.  The Brett Land and Associates Flora and Fauna report quotes Peter Menkhorst extensively- pages 19, 20 and 21 and 3 and 4 in the Bat Investigation report.  Peter Menkhorst is in the flora and fauna branch and he regarded as one of the most knowledgeable and experienced zoologist in Victoria and is he is also within the Government.  His advice and information would also be most valuable to both presenters and panel members.

Under the Planning and Environment Act 1987
Section 161 General procedure for hearings

(1) In hearing submissions, a panel-
(d) is not bound by the rules or practice as to evidence but may inform itself on any matter-
(i) in any way it thinks fit; and
(ii) without notice to any person who has made a submission.

(2) A panel may require a planning authority or other body or person to produce any documents relating to any matter being considered by the panel under this Act which it reasonably requires.
Section 162 Who may appear before a panel?

A person who has the right to be heard by a panel or who is called by a panel may-

(a) appear in person; or

(b) be represented by any other person.

The Minister for Planning has stated that the planning process for the proposed Bald Hills wind farm is to be open and transparent and consistent with this position the opinion from these experts should be made available to the panel.

Request to the Panel

That the panel, using the powers conferred on it direct that key experts, Dr Kim Lowe and Peter Menkhorst each attend the panel hearing in person to make presentations.

And that prior to their attendance the panel furnish them with, giving them a reasonable time for review, a copy of the Brett Lane and Associates reports for the EES and the submission of DSE (No 1083) dated 19 December 2004.

---------------------------

QUESTIONS
To Dr Kim Lowe and to Dr Peter Menkhorst
Page 7 Brett Lane & Associates Pty Ltd, Report No. 2002.17C(2.0), June 2002

“4.0 Matters of National Environmental Significance
Analysis of existing information on the occurrence of fauna species in the region shows that very few species listed on the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 occur on or near the proposed wind farm site.”

Page 31 Brett Lane & Associates Pty Ltd, Report No 2002.17(3.3), April 2002

“4. BIRDS
………..”

“4.1 Sources of Information
………..”

“4.1.1. Existing Information

The primary source of existing information was the Atlas of Victorian Wildlife, which includes details of all common species recorded in the search region (see section 3.1), together with individual records of threatened species.”

Question

Referring to 4.0 - Given region is normally read as a large area.  That is, the size of South Gippsland, but in the case of a topographical unit could be considered the Tarwin/Powlett Zone.  That is the coastal belt from Western Port to Corner Inlet.

And also referring to 4.1.1. - the search region , in section 3.1 being defined as Walkerville to Tarwin Lower and 10 kilometres to the north, an area generally referred to as a district.

1. Is the numbers of bird species, included listed species, recorded for the region and the district included and addressed in Brett Lane & Associates report for the EES?

2. What are the bird species, including listed species, for the:
• Region (Westernport to Corner Inlet),
• District (Tarwin Lower to Waratah Bay) and
• The site of the wind farm

Using;
Birds Australia’s database,
Atlas of Victorian Wildlife database,
The EPBC database,
Information from recognised bird authorities and
other available information.

3. Given their mobility, what bird species retrieved from the above sources, including those listed under State and Commonwealth Acts and Treaties are relevant to the proposed Bald Hills wind farm?

Yours faithfully
Andrew Chapman






 


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