Rosalie Woodruff MP Member for Franklin

Transcription

1 Rosalie Woodruff MP Member for Franklin Franklin Electorate office 7 Franklin Wharf, Hobart TAS 7000 Phone: (03) Rosalie.Woodruff@parliament.tas.gov.au tasmps.greens.org.au 28 th July 2017 Environment Protection Authority Tasmania By epaenquiries@environment.tas.gov.au Re: Draft Finfish Farming Environmental Regulation Bill 2017 The Tasmanian Greens welcome the opportunity to comment on the Draft Finfish Farming Environmental Regulation Bill. We would like to express our concern that the bill fails to address community concern around poor management of the environmental and social impacts of aquaculture in Tasmania, and will not address community concerns arising from the industries expansion into Storm Bay, Port Arthur and Okehampton Bay. In most instances it will not facilitate community participation in marine farming planning decisions. We understand this is not the bill s purpose. It needs to be made clear that planning decisions, including the granting of marine farm development plans and leases, remain the purview of the Department of Primary Industries and Water and the Minister for Primary Industries. What follows are some of our concerns with the draft bill. Existing Finfish Farm Authorisations Under the heading of existing lawful fish farming activities, the bill provides for the issuing of an environmental licence to a fish farming company nearly as of right. In practice, fish farming activities include all circumstances where the proponent holds an existing authorisation to farm finfish. Existing authorisation is defined to include a marine farming licence, granted to companies that hold a lease in state waters under the relevant marine farming development plan area. 1

2 This definition captures all of Tasmania s three large salmon farming companies existing fish farming operations. It would also appear to capture the majority of their future expansion plans. This is because the companies already possess leases, and likely the necessary marine farming licence, in areas they are intending to expand into. In Storm Bay, it would appear to include Tassal s expansion plans off Nubeena, Petuna s plans off Betsy Island and Huon Aquaculture s expansion plans off North Bruny Island. It also captures Tassal s moves into Okehampton Bay and Port Arthur, and a large number of other leases, the ownership of which is not publicly available. These existing and future expansion activities will be automatically granted an Environmental Licence with substantially similar environmental conditions that already apply under the current marine farming licences. The bill does not require the EPA Director to undertake an environmental impact assessment for existing fish farming activities, or for any future expansion where a marine farming licence already exists. Future expansion plans where licences already exist will not be referred to the independent EPA Board for assessment in accordance with the Environmental Impact Principles. No applications will be publicly advertised, and the public will not be invited to make any representations. No one will have a right to appeal the EPA Director s decision to grant the Environmental Licence, despite the fact the initial marine farming licence may have been granted without sufficient public consultation and been issued under a marine farming development plan that was developed by the industry over 20 years ago. The bill therefore continues to exclude affected communities from participating in the marine farming planning process. For all of these existing and future expansion activities it would appear that, in practice, the existing marine farming licence is being rebranded as an environmental licence for political expedience. The bill fails to address community concerns about the regulation of existing fish farming activities, or the industries future expansion of industrial inshore fish farms throughout Tasmania. New Finfish Farms Given the size of the existing fish farming leases around Tasmania that will automatically be issued with an Environmental Licence, it is unlikely the three biggest fish farming companies will be subjected to a full assessment process for some time. 2

3 Even where a new marine finfish farm is proposed that does not possess an existing marine farming licence, it will not necessarily be subjected to the full assessment process. The bill places absolute discretion in the EPA Director to refer the application for a new farm to the independent EPA Board for assessment. If the application is not referred to the Board, it will not be publicly advertised and the public will not be invited to make any representations. No one will have a right to appeal the EPA Director s decision about the granting of the Environmental Licence. No guidelines are provided to guide the EPA Director s decision on whether to refer the application to the Board, or not. This makes it difficult to seek a judicial review of the decision not to refer, because it will be difficult to establish the Director has exceeded the powers provided in the Environmental Management and Pollution Control Act. All applications relating to finfish farms in inland waters, or on land (such as hatcheries) will be subject to a full assessment process (i.e. by referral to the EPA Board). This highlights the absurdity of giving the Director the discretion to refer to the Board for a full assessment, or not, for marine farming operation. The environmental damage that industrial inshore salmon farming has caused in Macquarie Harbour and the Huon and Channel waterways demonstrates the marine environment is just as vulnerable to mismanagement as land-based activities. Public Consultation The bill only provides the opportunity for public comment about new marine fish farms that do not possess an existing marine farm licence. For the above reasons, this appears to exclude the majority of existing marine fish farms as well as the future expansion of the industry where leases and associated licences have already been secured. It would therefore appear to fail to facilitate community participation in marine farming planning decisions, and will not address community concerns arising from the industries aggressive expansion into Storm Bay, Port Arthur and Okehampton Bay. Appeals While fish farming operators can appeal to the RMPAT against the majority of decisions of the EPA Director and EPA Board, very limited appeal opportunities exist for communities, or for other industries and users of the waterways. The only time a pathway for appeal will exist for opponents to the issuing of an 3

4 environmental licence is in the limited circumstances where an application has been referred to the EPA Board. In these circumstances, a person who made a representation during the public comment period can appeal against the EPA Board s decision, provided they lodge their appeal within fourteen days of the Board s decision. Two weeks is an incredibly short period of time, particularly for a community group that may not be able to quickly access or afford legal advice. Transparency While environmental licences will be recorded on the EPA s register of environmental management and enforcement instruments, and available for the public to search, we understand such searches will be subject to a search fee. For the above reasons, the majority of existing and future marine fish farming operations that already possess a marine farming licence will continue to operate without having been subject to the scrutiny of the independent EPA Board, or without having to go through an extensive public consultation process. Furthermore, the Director of the EPA is not required to provide any reasons for making a decision not to refer an application for an environmental licence to the EPA Board. This is hardly designed to engender public confidence in the decisionmaking processes of the regulation of this industry. Variations to Environmental Licences Conditions The bill provides the EPA Director with broad powers to vary the conditions of an environmental licences, including conditions imposed by the Board. This can be done at the request of the fish farm operator or at the Director s own discretion. The Director only has to refer the variation to the Board where it is deemed to be a major variation, with it left to the Director s discretion to determine what meets this threshold. No guidelines are provided as to what constitutes a major variation. This gives rise to the following concern: if a fish farm operator goes through a full assessment process and an environmental licence is granted that contains conditions the fish farm operator is not happy with, this operator can seek to vary those conditions. This can be done without the oversight of the independent EPA Board, and would avoid the public consultation process that produced the initial environmental licence conditions. 4

5 Enforcement The Bill introduces a maximum fine for a salmon company breaching conditions of an environmental licence of $159,000. The scale of the industry and the economic value of decisions made by fish farm companies often in the millions of dollars neutralises the deterrent effect of this fine. The Bill also allows for regulations to prescribe special penalties. These are supposed to be sufficient to neutralise the economic value of the decision of the fish farm operator. Special penalties have already been introduced in Tasmania for limited circumstances where a fish farm operator breaches a maximum nitrogen cap. Despite the ongoing environmental crisis that continues to unfold in Macquarie Harbour, this special penalty remains unenforced. This is because conveniently no nitrogen cap has been put in place in the Harbour, which means it can t be breached. While the Bill provides for an environmental licence to be suspended or cancelled by the EPA Director in a number of circumstances, including for breaching a condition of the environmental licence, history suggests this recourse is unlikely to be used. Marine Farm Exclusion Zones We are concerned the proposed process for creating marine farm exclusion zones prioritises politically expedient decision-making over sound strategic planning. In so doing, it will fail to protect Tasmania s marine environment, other industries and users of our waterways or the community. No formal process, including a minimum public consultation or criteria, have been provided to determine how and where an exclusion zone should be declared. Instead the Bill creates an ad-hoc process, with it left to the discretion of the government of the day. It is therefore inconsistent with the purpose of the Marine Farm Planning Act 1995, s4. Within this, the new section introducing exclusion zones is proposed to be inserted, in that it will not achieve well-planned sustainable development of marine farming activities, including minimising any adverse impacts of marine farming activities and taking into account the community's right to have an interest in those activities. While marine farming activities are excluded from the operation of the Land Use and Planning Approvals Act 1993 (the LUPA ), the objectives of the LUPA have universal 5

6 application in that they reflect the best practice for resource management and planning, whether on land or in our marine environment. The proposal to create marine farm exclusion zones is also inconsistent with the objectives of the planning process established in the LUPA, in that it fails: 1. to require sound strategic planning and co-ordinated action by State and local government; 2. to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about its use and development; 3. to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of the environment ; 4. to promote the health and wellbeing of all Tasmanians and visitors to Tasmania by ensuring a pleasant, efficient and safe environment for working, living and recreation; and 5. to provide a planning framework which fully considers the marine environments capability. It is also inconsistent with the objectives of Tasmania s Resource Management and Planning System, as set out in the LUPA, in that it will fail: 1. to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; 2. to provide for the fair, orderly and sustainable use and development of water; and 3. to encourage public involvement in resource management and planning, In this, sustainable development is defined to mean: the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while a. sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; b. safeguarding the life-supporting capacity of air, water, soil and ecosystems; and c. avoiding, remedying or mitigating any adverse effects of activities on the environment. Tasmania has one of the most biologically diverse marine environments on Earth. Our oceans are brimming with sealife unique to our island, such as southern right whales, fur seals, spotted and red handfish, live-bearing seastar, and the Maugean skate. Parts of our waters also boast the highest known marine plant diversity anywhere. 6

7 The heightened public awareness of the need to protect the marine environment provides a unique opportunity to enter into a comprehensive consultative strategic planning process for Tasmania s state waters to ensure this incredible biologically diverse marine environment is protected for future generations. Much work has already been undertaken in this regard, including the mapping of Tasmania s bioregions. A comprehensive strategy, backed by sufficient resources to ensure compliance, would increase fish populations and protect vulnerable marine habitat, support research, protect other industries including commercial fishers and the tourism industry, protect other users of waterways including recreational fishing and boating, and identify where fish farm expansion can take place. The adhoc declaration of Marine Farm Exclusion Zones will not achieve these outcomes. Marine Farming Planning Review Panel The Bill removes the EPA Director as a member of the Marine Farming Planning Review Panel, the reasons of which are well understood given the Director s relationship with the Board in carrying out statutory functions. Unfortunately, the Bill does not address obvious conflicts of interest in that it fails to separate the regulatory and industry development functions of the Department of Primary Industries and Water and the responsible Minister who still holds the role of promoting and regulating the expansion of the industry. This is particularly concerning given the Review Panel is far from independent. The majority of its members are selected by DPIPWE, the Department which, in the case of fish farming, is answerable to the Minister for Primary Industries. The Review Panel has no independent powers and must perform its functions and exercise its powers in accordance with any directions given by the Minister. The Review Panel and the Minister s final decision does not allow the general public and affected stakeholders a right of appeal, although a right of appeal is available to the aquaculture industry. This is inconsistent with the principal of natural justice. Marine fish farm planning should ostensibly concentrate on regulating the salmon farming industry to ensure the best environmental and social outcomes are achieved in Tasmanian State Waters. However DPIPWE, which appointed the Review Panel Board members, and the Minister, who has the ultimate say on any decision, are also focused on promoting the development of this same industry, which has a goal of doubling its size by Given the conflict of interest arising from the Marine Farming Branch being both the promoter of the industry and its regulator, we believe it should lose its role as the regulator. The Tasmanian Greens have long called for the planning aspects of 7

8 fish-farms to be handled under the Land Use Planning and Approvals Act There is no reason for marine planning to be treated differently from terrestrial planning. If all planning decisions, public consultation and appeals were heard within the usual Resource Management and Planning System, there would be little need for the Department to be involved and no need for a Marine Farm Review Panel. The transfer of the responsibility for environmental control and the management of existing leases to the Environment Protection Authority only serves to highlight the absurdity of leaving the marine farm planning and development functions with DPIPWE. Summary If the aquaculture industry is to provide long-term jobs in Tasmania it must be sustainable and it needs to cultivate widespread public confidence and trust. It can only do so if it is properly regulated. The Greens have been raising concerns about the management of the fish farming industry since the potential environmental and community impacts became apparent. Today, fish farming is of acute public concern with the mismanagement of the industry pushing Macquarie Harbour to the brink of ecological collapse. The industries aggressive expansion into Okehampton Bay and Storm Bay is occurring without appropriate consultation with the community, other industries and users of the public waterway. This has given rise to the broadly accepted perception the Tasmanian Government is regulating and acting in the interest of the salmon farming industry instead of the public interest. The close relationship between Tassal, Huon Aquaculture, Petuna and the Minister, a history of under-regulation and enforcement by the Minister s department, and explicit support expressed by the Liberal and Labor parties for the lack of transparency surrounding aquaculture decision-makiong all affect public trust in the rigour of the regulatory framework. This Bill acknowledges the prominent concerns of sections of the Tasmanian community that the growth of the salmon farming industry has been at the expense of the environment, other users of the marine environment and those living in coastal communities close to aquaculture operations. Unfortunately, the Bill fails to address community concern around poor management of the environmental and social impacts of aquaculture in Tasmania, including at Macquarie Harbour and the Huon and Channel Region. It also fails to address the concerns around the industries aggressive expansion into Storm Bay, Port Arthur and Okehampton Bay. 8

9 In most instances the Bill fails to facilitate community participation in marine farming planning decisions. It certainly fails to mandate transparency about the decisions that will ultimately be made to regulate those private companies operating in sensitive marine environments, which are under the custodianship of all Tasmanians. Sincerely, Rosalie Woodruff MP Greens Environment Spokesperson 9