Macquarie Journal of International and Comparative Environmental Law
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The global distribution of ecosystems is such that the vast majority of terrestrial biodiversity is located within the borders of developing states.[1] Amidst increasingly widespread concerns the biodiversity was vanishing at an alarming rate, the Convention on Biological Diversity[2] (herein after ‘CBD’) emerged as one of the most significant products of the landmark 1992 Rio Earth Summit. The primary objectives of the CBD are, ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources ... by appropriate funding’.[3] The CBD’s Preamble states that, ‘special provision is required to meet the needs of developing countries, including the provision of new and additional financial resources’. To date a total of 188 states have consented to be bound by the CBD.[4] The Convention has retained its position as one of the most important instruments of international environmental law.[5] At the 2002 Johannesburg World Summit on Sustainable Development the assembled world leaders reaffirmed the CBD as ‘the key instrument for the conservation and sustainable use of biological diversity’.[6]
Despite its proclaimed grandeur and virtually universal ratification, the performance of the CBD has been such that, ‘a number of objective reviewers examining the achievement of the CBD, are noting the paucity of what has been accomplished’.[7] After almost a decade of the Convention’s operation, the Conference of Parties to the CBD (herein after ‘COP’) conceded, ‘Addressing the threats to biodiversity requires immediate attention and long-term fundamental changes in the way that resources are used and benefits are distributed’.[8] In relation to this declaration Iles notes, ‘This conclusion was equally applicable at the CBD’s inception, illustrating a lack of progress’.[9] This paper will seek to examine one of the most widely held criticisms of the CBD, namely that its developed country parties have completely failed to meet obligations to provide necessary financial resources for holistic and effective biodiversity conservation in the developing world.[10]
In the aftermath of the 3rd Conference of the Parties to the CBD in 1996, Gurdial Sing Nijar, a representative of the Third World Network, declared,
a disturbing feature [has been] the continued refusal of the Northern countries to honour their commitments to provide new and additional funds to the Southern countries to enable them to implement its provisions to conserve biodiversity.[11]
As this paper will explore, almost ten years and five COP’s later, very little has changed.
The substantive portion of this paper is divided into six parts. Part One outlines the general nature of the financial commitments under the CBD and the mechanisms that have been implemented to facilitate the achievement of those commitments. Part Two examines some of the most recent studies concerning the actual financial cost that would be involved if the goals of the CBD are truly going to be met. In light of the differentiated financial obligations that the CBD places on developed nations, Part Three explores some of the most frequently cited and persuasive justifications for placing a much higher burden for the cost of biodiversity conservation on the North. Part Four analyses the extent to which the CBD’s failure to achieve its financial redistribution goals have been a product of the chosen financial mechanism. Stepping down from the global to the national scale, Part Five conducts a comparative analysis of Australia’s financial contribution to the CBD with those of other developed donor countries. Finally, having concluded that current funding levels are completely unacceptable, Part Six proposes some practical legal reforms that Australia could undertake at a national level to ensure a more adequate transfer of funds to CBD projects.
In the midst of substantial controversy and disagreement between developed and developing nations, a non-specific, non-numeric commitment to the North-South transfer of finances for biodiversity conservation emerged as one of the integral substantive provisions of the CBD.[12] Despite their general nature, the significance of the CBD’s financial obligations should not be underestimated considering that the Convention ‘is the only major conservation treaty that has a central commitment to substantial new funding from North to South’.[13] Article 20 of the CBD states, ‘developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfil the obligations of this Convention’. Article 20 was derived from Chapter 33 of Agenda 21 and United Nations General Assembly Resolution 44/228, which refer to the need to procure, ‘new and additional financial resources ... to be channeled to developing countries in order to ensure their full participation in global efforts for environmental protection’.[14]
In addition to Article 20, the financial obligations of developed member parties are mentioned in several other parts of the CBD. Article 8 outlines the measures to be taken in promoting in situ conservation of biodiversity. While specific discussion of the measures elucidated in Article 8 is outside the scope of this paper it is noteworthy that Article 8(m) obligates parties to ‘[c]ooperate in providing financial and other support for the in-situ conservation [of biodiversity] particularly to developing countries’.[15] Article 9 concerns ex-situ conservation and contains a mirror provision to Article 8(m).[16]
Article 21 of the CBD establishes the institutional structure under which developed member states can make financial contributions to assist developing countries in conserving biodiversity. Pursuant to Article 21, the Conference of Parties to the CBD nominated the Global Environment Facility (hereinafter ‘GEF’) as the financial mechanism responsible for the provision of funds for CBD projects.[17]
Prior to the creation of the CBD, the GEF was established in 1991 as a joint venture of the World Bank, United Nations Development Program (UNDP) and the United Nations Environment Program (UNEP).[18] The GEF’s mandate is to:
... assist countries with a per capita income of less than US$4000 address four main global environmental problems: global warming, pollution of international waters, loss of biological diversity and the depletion of the stratospheric ozone layer.[19]
Rather than making financial contributions directly to CBD projects, developed member countries make set contributions into the GEF that are negotiated during GEF replenishment periods.[20] After a complex and extensive application process,[21] biodiversity projects approved under the GEF may receive, ‘new and additional grants and concessional funding to meet the incremental costs of measures to achieve global environmental benefits’.[22] In laymen’s terms, the GEF essentially funds the difference in cost between a more expensive development project that will protect biodiversity and a cheaper environmentally degrading alternative that would likely proceed in the developing country if GEF funding was not available.[23] In a succinct summary of the underlying philosophy behind GEF/CBD approach to biodiversity funding, Moran notes:
Implementation of North-South transfers for biodiversity conservation has for some time been supported by a clear rationale...they represent compensatory flows which in most cases must at least match the opportunity costs of forgone development benefits.[24]
In late 2005 and the first half of 2006, the GEF released a series of reports containing statistical information on the contributions of developed countries covering the full timeline of the Facility’s existence and projecting into the future. This information has been released primarily to facilitate in the fourth replenishment of the GEF (‘GEF-4’), which at the time of writing, was being negotiated. The data contained in these reports is the foundation of much of the quantitative analysis in this paper.
Calculating the cost of global biodiversity protection involves some degree of speculation due to the enormous complexities involved. Nonetheless, the methodologies used for calculating the real cost of biodiversity conservation have become increasingly sophisticated in recent years.[25] As this improvement has occurred, the estimates of the total cost of global biodiversity conservation have steadily increased.
In 1992, the World Conservation Monitoring Centre calculated that the cost of conservation in developing countries was approximately US$20 billion per annum.[26] However, some eleven years later at the Fifth World Parks Congress, the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice concluded that up to US$33 billion per annum would be necessary ‘to establish and maintain a comprehensive, effective system of protected areas’.[27]
A recent study conducted by nineteen of the world’s leading scientists, environmental economic specialists and international affairs experts concluded that, ‘The estimated mean total cost of an effective, global reserve program on land and at sea is some $45 billion/year. This sum dwarfs the current $6.5 billion annual reserve budget’.[28] While the figure of US$45 billion is undoubtedly a formidable one, this paper echoes the sentiment of Whitten and Balmford:
At the risk of sounding fatuous, we note that developed countries alone spend $17 billion annually on petfood and $34 billion each year on slimming products. It is thus clear to us that the developed world could fund effective conservation in the tropics if it chose to.[29]
It is also noteworthy that the Balmford et al. study also reported that of the current $6.5 billion global conservation expenditure, half this total is spent within the United States.[30] The effect the United States is having on the protection of biodiversity in developing countries is discussed in Part Four of this paper.
BirdLife International, a leading institution in the area of global biodiversity valuation and expenditure[31] notes that in stark contrast to the actual costs involved, less than US$1 billion per annum is currently spent on conservation in the developing world.[32] The gross inadequacy of current levels of expenditure in biodiversity conservation, within the specific context of developed member contributions to the CBD, pursuant to their Article 20 obligations, forms the focus of the remainder of this paper.
Article 20 of the CBD places an exclusive financial responsibility on developed country parties, to ‘provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfil the obligations of this Convention’. Article 20 represents a manifestation of the principle of ‘common but differentiated responsibilities’[33] which is described by Matsui as ‘one of the key concepts of sustainable development’.[34] This part briefly explores three of the most frequently cited and persuasive justifications for why a much higher burden of the cost of biodiversity conservation should be borne by developed countries, despite the fact that the vast majority of in situ conservation must occur in the developing world.
The overexploitation of natural resources by developed countries has been a major cause of global biodiversity loss since the Industrial Revolution. It therefore follows that because developed countries have been responsible (either directly or indirectly) for a massive proportion of biodiversity loss to date, they should be responsible for the provision of financial resources to ensure maximum protection of remaining biodiversity. In relation to the implications that such a historical and ongoing legacy has for differential funding responsibilities in relation to biodiversity conservation, Tisdell observes, ‘[t]he principle that “he-who-benefits should pay”, could provide one reason for the rest of the world giving aid for conservation in the Third World’.[35] Similarly, the IUCN’s Guide to the Convention on Biological Diversity implicitly suggests that the developed world should be responsible for the bulk of biodiversity conservation funding through the statement, ‘Ideally, a larger portion of the financing for biodiversity conservation should come from those who benefit from biological resources such as non-subsistence consumers, business and industry’.[36]
While there are dozens of ways in which developed countries and multinational corporations based in developed countries have exploited the biological resources of developing countries, one particular aspect that has received substantial mainstream media and NGO attention is the destruction of species-rich tropical rainforest for the production of cheap export produce such as hamburger beef for fast-food chains.[37] For example, BBC’s Countryfile has recently reported that, ‘It has been estimated that for every quarter pound hamburger made from rainforest cattle, 5 sq m of rainforest is cleared’.[38] Beyond the mainstream media, the links between consumption patterns in developed countries and the loss biodiversity in the developing world have been noted amongst some of the most respected members of international environmental law community. Jeffrey McNeely and Richard Noorgard assert that, ‘Botswana, for example, exports more than one-half its beef output. Two-thirds of it goes to the European Economic Community (EEC), which has high demand for lean (grassfed) beef. Consequently, EEC aid programs have heavily subsidised cattle ranching in Botswana where cattle are now rapidly replacing wildlife. The wildebeest, for example, has dwindled in numbers through loss of habitat and now total only 10% of their once vast number’.[39] Indeed, the degradation of once ecologically rich land for production of livestock to satisfy demand in developed countries represents an accurate revelation of the overall trend in causes of biodiversity loss in the South.
Although Guruswamy is unreasonably critical of the substantive provisions of the CBD, he is entirely accurate in asserting that:
Any obligations to protect the common heritage of humankind need not fall disproportionately on the poor and the deprived. Given the enormous disparities of wealth among nations, equity, fairness and efficiency require that discharging the burden of protection should fall differentially and more heavily on richer nations.[40]
While the conservation of biodiversity may not initially appear to be as relevant to the realisation of intra-generational equity as direct poverty eradication measures, when properly implemented, the two goals are intrinsically linked.[41] It is the argument of this paper that such a reality provides strong impetus for significant funding by developed countries in fulfillment of their Article 20 obligations.
An examination of recent GEF documentation on CBD funding reflects an increasing tendency to intimately align goals of biodiversity conservation with intra-generational equity. In 2002, GEF’s former Chief Executive Officer, Mohamed T El-Ashry stated:
Since 60 percent of the population in developing countries engage in livelihoods that are dependant on land and water resources, combining conservation with local needs can have benefits that go beyond national boundaries ... poverty alleviation and environmental improvements are two sides of the same coin.[42]
Even more explicitly, on 27 March 2006, the current GEF Chief Executive Officer, Leonard Good stated:
Looking to the future, I think it will be critical to focus on ... biodiversity and its link to livelihoods. At the GEF we will continue to support all of the CBD objectives … but over the next four years we will increasingly focus on the second pillar of mainstreaming biodiversity in production landscapes. We will work directly with farmers and fishermen, and will help them develop such areas as ecotourism, shade protected coffee, biodiversity corridors.[43]
In light of these sentiments, it is clear that beyond preserving the intrinsic value of organisms and ecosystems, the CBD’s differential funding obligations can be justified with reference to the core sustainable development principles of inter- and intra-generational equity.
In an ever-increasingly capitalist world, the economic rationale behind protecting biodiversity represents perhaps the most persuasive justification for differential funding by developed members of the CBD. Indeed, Rubino observes that, ‘the signatories of the Convention on Biological Diversity recognised that biodiversity would not be conserved unless economic reasons for protecting it and using it sustainably were broadcast’.[44]
The acclaimed study of Balmford et al, discussed above in Part Two, far beyond its revelation of the estimated annual cost of biodiversity conservation was even more startling in its postulation of the projected economic worth of an effective global protection network. The study concluded:
... our hypothetical global reserve network would ensure the delivery of goods and services with an annual value (net of benefits from conversion) of between [US]$4400 billion and $5200 billion ... the benefit:cost ratio of a reserve system meeting minimum safe standards is therefore around 100:1 ... Because all of [the study’s] assumptions are biased against conservation, we consider our 100:1 ratio as a low estimate of the likely benefits of effective conservation.[45]
It is submitted that little needs to be said to further emphasise the absolutely astounding findings of Balmford et al’s study. Quite simply, if the figures turn out to be even remotely close to the ultimate reality of implementing an effective global reserve system characterised by in-situ conservation of the type envisaged in Article 8 of the CBD, one need not have an overly active imagination to appreciate the phenomenal progress that would be made towards a truly ecologically and economically sustainable world. Admittedly, (and indeed, gratefully) a significant proportion of this economic return will remain where it is needed most; within the borders of those developing countries where the biodiversity is conserved. Thus, in a purely selfish sense, the developed countries that sufficiently invest money under Article 20 will undoubtedly be doing so for another country’s benefit. However, it would be incredibly naive to presume that developed countries that provide the substantial funds needed for proper biodiversity conservation will not reap enormous economic benefits from the creation of a global conservation network. At the absolute minimum, these wealthy nations will be spared the virtually inevitable cost of having to contribute endless billions in aid and assistance to developing countries that will teeter on the brink of collapse if the catastrophic current rate of biodiversity loss is not reversed.
Ultimately, in light of the revelation of the absolute economic viability of an investment in biodiversity conservation with an estimated 100:1 return, the utter selfishness, narrow-mindedness or perhaps sheer ignorance that is currently motivating the approach of developed countries towards multilateral contributions to biodiversity conservation under the CBD is all the more baffling.
Although the GEF is the primary funding mechanism for the CBD, the GEF simultaneously serves this function for several other major multilateral environmental treaties, namely, the United Nations Framework Convention on Climate Change,[46] United Nations Convention to Combat Desertification[47] and the Stockholm Convention on Persistent Organic Pollutants.[48] It is therefore crucial to appreciate that when Australia and other donor countries pledge money to the GEF, only a portion of those funds goes towards fulfilling obligations under Article 20 of the CBD.
At this point, it is important to acknowledge that this paper is in no way suggesting that biodiversity projects are more deserving of GEF funding than other, equally important sustainability-focused projects such as those related to climate change or international waters. However, in seeking to identify the various reasons behind the acute shortages of CBD funding for developing countries it is important to objectively examine the proportion of total GEF funds that are routed into biodiversity projects.
In regards to the portion of GEF funds contributed towards CBD-based projects, the current Chief Executive Officer of the GEF, Leonard Good, recently stated at the Eighth Conference of Parties to the CBD, that the GEF has:
... funded over 500 [biodiversity] projects worth over $2 billion, of which two-thirds has gone to creating and improving the management of over 1,500 protected areas – over 25% of protected areas worldwide.[49]
However, according to the official World Bank GEF database, there has only been a total of 263 biodiversity projects so far completed, commissioned or in the pipeline,[50] and these projects have received a total of $US1.3261 billion in direct GEF-funding.[51] Even if this anomaly can be explained[52] and one accepts Good’s figures at face value, given that the CBD has been operational for over twelve years, Good’s figures indicate that the mean GEF investment in CBD-related projects has so far been at a rate of around US$17 million per annum. Such a figure must be considered in light of estimates that a complete network of global biodiversity conservation will have an annual cost somewhere in the vicinity of US$33-45 billion.[53] In other words, Good’s figures suggest that to date the GEF has provided between 0.04-0.05 percent of the funds needed to achieve an ideal level of global biodiversity conservation.
Although only three funding replenishment periods have been completed,[54] GEF contributions to the CBD have fluctuated substantially from year to year. Considering that the CBD did not enter into force until 29 December 1993, it is noteworthy that from 1991-94 the GEF spent 45 percent of its budget (US$330 million) on biodiversity projects.[55] However, despite several years of the CBD being fully operational, by 1995-1996, biodiversity projects were only receiving 19 percent of GEF funds.[56] While the nature of GEF transfers to CBD-related projects is such that there is some disparity between the precise figures,[57] the trend of declining proportions of biodiversity funding by the GEF in the years following the CBD’s inception is indisputable.[58] Indeed, in October 1996, BirdLife International published a widely respected report titled, New and Additional Financial Resources for Biodiversity Conservation in Developing Countries 1987-1994. The report concluded:
the GEF is not providing ‘new and additional’ resources. On the contrary, it appears that donors are moving away from biodiversity projects … the GEF is simply replacing previous biodiversity aid, rather than adding to it.[59]
As mentioned above, total direct GEF funding for biodiversity is equivalent to US$1.3261 billion.[60] The total direct GEF contributions for all projects over the full extent of the Facility’s operation equates to US$4.1307 billion.[61] Thus, since the Facility’s creation, an average of 32.1 percent of total GEF distributions have been directed to biodiversity projects. This figure appears to be a reasonable distribution to CBD projects, especially considering that the GEF is the financial mechanism for four major multilateral environmental treaties. Thus, it appears that the CBD’s failure to achieve its financial redistribution goals has not primarily been a product of the COP’s persistence with the GEF as the Article 21 financial mechanism for the Convention. Rather, such failure has been caused by massively inadequate contributions by individual donor countries.
In speculating as to whether the trend of around a third of total GEF allocation being directed to biodiversity projects will continue into the future, it is worth briefly mentioning that at COP-8 in March this year, the Conference of Parties acknowledged substantial concern about the GEF’s new Resource Allocation Framework created in September 2005.[62] Decision VIII/13 of the COP-8 recognises ‘the grave concerns expressed by developing countries, in particular the least developed and the small island developing states, as well as countries with economies in transition, about the implications of the Resource Allocation Framework in limiting the allocation of resources to them in support of the implementation of the Convention’.[63] As its operation only commenced in July 2006, it remains to be seen whether the GEF’s Resource Allocation Framework will result in further reductions to funds allocated to CBD projects.[64]
At the time of writing the fourth replenishment of the GEF (GEF-4) was still being negotiated. However, in light of the above discussion of the real costs of biodiversity conservation it is worth mentioning the contextual framework in which future donor contributions for the GEF are being determined. On 9 November 2005, the GEF published a report titled, GEF-4:Illustrative Burden Sharing.[65] The report outlines three possible scenarios for GEF-4 funding. Unfortunately, these three scenarios are based largely on past contributions of donor countries, rather than on a detailed analysis of the projected costs of achieving the outcomes set forth in the CBD and other multilateral treaties that receive GEF funding. The Report states, ‘Each scenario uses the GEF-3 basic shares and the required minimum contribution of SDR 4 million as the basis for calculating individual donor contributions.’[66] While it should be stated that the three possible GEF-4 scenarios are based on the GEF-3 contributions plus an additional US$3 – $3.5 billion in donations (depending on which scenario is adopted),[67] considering that the GEF replenishment periods typically last for four years,[68] this hardly appears to be an increase that has been calculated with the actual costs of biodiversity conservation in mind (discussed above). History also demonstrates that the contributions of developed countries negotiated at the GEF replenishment stage are often little more than exercises in political leverage. As a poignant illustration of this reality it is noteworthy that during negotiations for the first GEF replenishment, ‘France threatened to cut 30 percent from its contribution to the GEF’s second phase if OECD representation fell below half of the 30 seats’.[69]
In the GEF Trustee Report published 24 May 2006, it was concluded that, ‘a total of USD equivalent 418.6 million is not available for Council allocation due to outstanding contributions, arrears and deferred contributions for the GEF-1 through the GEF-3’.[70] Considering that ‘the net GEF resources available as of [24 May 2006] amount to USD equivalent 658.7 million’,[71] and the current total annual global spending on biodiversity from all sources is only around US$6.5 billion, the failure of developed countries to honour their currently modest commitments is all the more apparent. At 15 May 2006, there were a total of 16 countries with outstanding or deferred contributions owed to the GEF.[72] While two of the countries who have not honoured their GEF commitments are no longer contributing participants,[73] it is noteworthy that current donors with outstanding contributions constitute one-third of all nations on the current roster of contributing participants.[74]
The magnitude of outstanding dues owed to the GEF provides significant validity for G77 representative, Rene Castro’s assertion that,
Developed countries are not complying with their commitments under the Convention, as established in Article 20(2) and thus they are hindering the implementation of the Convention. At the same time they are not permitting developing countries to comply with their commitments.[75]
As noted above, the United States is responsible for spending half of the current US$6.5 billion global biodiversity budget within its own borders.[76] In light of this statistic there is some irony in the fact that the United States is one of only a handful of nations that have not ratified the CBD. Despite being a non-party to the CBD, in recent years the United States has been one of the most influential nations affecting the provision of CBD funds. The current GEF Trustee Report notes:
Since the United States has not yet made a full payment of its contribution to the GEF-3, France, Germany and Japan exercised the pro rata right under the Resolution deferring 6.78% of their contributions to the GEF-3 in proportion to the US shortfall. The total amount deferred by these three donors that is unavailable for Council allocation is USD equivalent 62.40 million.[77]
In relation to GEF-2, and bearing in mind that second replenishment negotiations were concluded some eight years ago, the status quo is such that:
The United States has not fully paid its contributions… The amount in arrears is USD140.67 million … The United States’ outstanding contribution to GEF-2 represents 32.7% of its pledged contribution of USD430 million. In proportion to the US shortfall, Austria, France and Japan have exercised the pro-rata right and deferred commitment of the fourth tranche of their contribution to the GEF-2. As a result, a total of USD equivalent 151.75 million is not available for Council allocation.[78]
These statements of the GEF’s financial affairs highlight the reality that the United States’ accumulation of excessive arrears is not only a tremendous drain in itself but it has also been the catalyst for a negative multiplier effect whereby numerous other donor states are entitled to delay payment of their own contributions.
At the time of writing, the major policy recommendations that were still under negotiation for the GEF Fourth Replenishment (GEF-4) concerned the settlement of financial arrears. The contentious clauses state in part:
At the outset of the replenishment process, the Participants expressed concern about the status of arrears by some Contributing Participants … Participants urge that countries with outstanding arrears commit to a specific arrears clearance plan in the course of the replenishment negotiations.[79]
Therefore, it is evident that the United States’ massive arrears have not only caused a drain in the GEF’s financial resources far beyond the amount this donor actually owes, they have also resulted in substantial delays and conflict in relation to negotiation of funding for GEF-4. In light of the current state of affairs it is arguable that the US, as a non-party to the Convention, is the single nation that is most significantly affecting the capacity of the CBD to effectively promote the conservation of biodiversity in the developing world.
Australia ratified the CBD on 18 June 1993.[80] Since the GEF’s inception in 1991, Australia’s total contribution to the GEF represents 1.69 percent of total funds received from all donor countries.[81] In real value terms[82] Australia has donated a total of US $130.5 million or AU$171.4 million from the GEF’s pilot phase through to the conclusion of the GEF-3 replenishment, as reported on 15 May 2006.[83]
On 9 May 2006, the Treasurer, the Hon Peter Costello MP, released the 2006/07 Australian Federal Budget. Under the heading ‘International environment programs’, the Budget states, ‘Australia will continue its commitment to the Global Environmental Facility (GEF) through an estimated contribution of AU$19.1 million in 2006-07’.[84] Using the official GEF exchange rate this amount is equivalent to US$14.54 million.[85] According to older estimates (which are unquestionably at the lower end of the expense estimation scale), CBD biodiversity projects cost approximately US$35,000 per square kilometre,[86] and based on past-practice the average proportion of available annual GEF funds directed into CBD projects is 32.1 percent.[87] Therefore, it is reasonable to suggest that Australia’s GEF contribution in the 2006/07 financial year, at a generous estimate, will ensure the conservation of approximately 133 square kilometres of biodiverse land in the developing world. To put Australia’s contribution into perspective, the most recent calculations made by the Food and Agriculture Organisation of the United Nations indicate that forests are being lost at a global rate of 130 000 square kilometres per annum.[88]
Having determined that the overall global level of funding to the GEF/CBD is utterly inadequate, this section progresses down the spatial scale and conducts a comparative analysis of Australia’s contributions with other donor countries. The aim of this section is to quantitatively evaluate how Australia measures up to the rest of the world in regards to GEF funding. Ten other donor countries with comparable wealth to Australia have been selected for the study. In addition to examining the percentage of total paid GEF contribution, the GEF contribution of each country is also expressed in per capita terms. The preferred indicator for comparing the wealth of nations, per capita gross domestic product (GDP) is also included as a reference point between the relative wealth of various donor countries. The results of the data comparison are summarised below.
Donor Countries Comparative Contributions to GEF
|
Donor
Country
|
Total GEF Contributions Paid (US$
millions)[89]
(1991 - 15.05.06)[90]
|
As a % Of Total GEF funding received
[91]
|
Mean Annual GEF contribution (US$ millions)
[92]
|
GDP per capita (US$)
[93]
|
Mean Annual GEF Contribution per capita (US$)
[94]
|
|
Australia
|
130.50
|
1.69
|
8.70
|
26,332
|
0.45
|
|
Belgium
|
121.51
|
1.58
|
8.10
|
26,188
|
0.79
|
|
Denmark
|
132.26
|
1.72
|
8.82
|
29,060
|
1.66
|
|
Finland
|
105.91
|
1.37
|
7.06
|
25,240
|
1.36
|
|
Italy
|
434.07
|
5.63
|
28.94
|
25,160
|
0.50
|
|
Japan
|
1432.15
|
18.58
|
95.48
|
26,056
|
0.75
|
|
Netherlands
|
299.42
|
3.89
|
19.96
|
27,847
|
1.26
|
|
Norway
|
128.96
|
1.67
|
8.60
|
30,166
|
1.91
|
|
Sweden
|
242.35
|
3.14
|
16.16
|
24,842
|
1.82
|
|
United Kingdom
|
589.47
|
7.65
|
39.30
|
24,455
|
0.66
|
|
United States
|
1383.94
|
17.96
|
92.26
|
35,619
|
0.33
|
The results depicted above provide some very revealing insights into Australia’s relative contribution to the GEF. Out of the sample group, Australia has the fifth highest per capita GDP, yet is the second lowest (10th place) contributor in terms of GEF contribution per capita, donating a scant average of 45 cents ($US equivalent) per Australian per year. Indeed, in light of the fact that only the United States contributes a lesser annual per capita amount to the GEF, these statistics bear an uncanny resemblance to quantitative data concerning greenhouse gas emissions and climate change policy. The fact that Nordic countries are world leaders in providing finance to developing countries for sustainable development has long been widely acknowledged and is clearly evidenced in the results.[95] As a poignant illustration it is noteworthy that Australia’s GDP is US$1490 higher than Sweden’s GDP yet its per capita GEF contribution represents less than a quarter of Sweden’s average annual pledge.
Ultimately, almost any analytical approach to the data reveals that Australia is far from meeting the requirement to provide funds to the CBD, ‘in accordance with its capabilities’.[96] Both a stand-alone examination of the ‘on-the-ground’ value of Australia’s current annual contribution to the GEF and a comparative analysis of total contributions reveal a vastly different picture to the Federal Foreign Minister’s seemingly forceful declaration:
I am committed to seeing the Government continue to work with the GEF to help ensure that it remains at the cutting edge of efforts to address global environment problems through innovative, flexible and responsive measures that contribute to alleviating poverty and to ensure sustainable development in developing countries.[97]
Although Australia’s bilateral aid contributions are largely outside the scope of this paper, it is important to note the Australian Government’s official position on biodiversity conservation, elucidated in Australian Aid: Promoting Growth and Stability – A White Paper on the Australian Government’s Overseas Aid Program (herein after ‘the White Paper’) released on 26 April 2006.[98] The White Paper is intended to form the overarching framework for all Australian bilateral aid in the near future.[99]
In the chapter titled, ‘What the aid program will focus on’, the White Paper states:
... the Government believes it must be selective in what it chooses to do. The environmental strategy will therefore be limited to three themes ... Climate change and adaptation ... [w]ater ... [and] [i]mplementing and strengthening environmental regulatory regimes.[100]
Despite the fact that the White Paper acknowledges that, ‘degradation of coral reefs [and the] loss of forests ...’[101] are ‘major environmental challenges that will intensify in the coming years’[102] there is no conceivable way of suggesting that biodiversity conservation sufficiently falls under the ambit of any of the three chosen areas.
The total omission of any mention of biodiversity conservation projects in the White Paper unequivocally suggests that the current dismal GEF contribution is the only area where the Australian Government is making and will continue to make any direct financial contribution towards the protection of biodiversity in the developing world.[103] This position stands in stark contrast to Article 20(3) of the CBD that states,
developed country Parties may also provide, and developing country Parties avail themselves of, financial resources related to the implementation of this Convention through bilateral, regional and other multilateral channels.
Both the judicial and political branches of the Australian Government have acknowledged that the Environment Protection and Biodiversity Conservation Act[104] (hereinafter ‘EPBC Act’) is designed to ‘implement the provisions of the Convention on Biological Diversity … into Australian law’.[105] Consequently, this article proposes a number of amendments to the EPBC Act that could provide desperately needed new and additional financial resources for the Australian Government to forward on to the GEF. The insertion of some or all of the proposed reforms discussed below will represent a meaningful step towards the fulfillment of the EPBC Act’s stated objective to foster ‘co-operative implementation of Australia’s international environmental responsibilities’[106] and address the urgent need to implement plans that counter ‘processes that threaten all levels of biodiversity’.[107] In this part, a strong comparative emphasis is placed on the EPBC Act with existing statutory provisions in state-level environmental law in Australia. It is argued that recent reforms to environmental planning laws in New South Wales provide a solid foundation for the Federal Government to consider reforming the EPBC Act, and to facilitate the creation of significant financial resources that can ultimately be directed to CBD projects in the South, while simultaneously promoting better in situ environmental outcomes in Australia.
This article contends that Australia could more actively satisfy its financial obligations under the CBD through the insertion of developer contribution provisions into the EPBC Act. In essence, developer contributions are levies or compulsory donations that are imposed on proponents as a condition of approval by the consent authority of a particular development. While the EPBC Act contains detailed assessment and approval procedures[108] for developments that are likely to have a significant impact on matters of national environmental significance,[109] there is currently no provision for the imposition of developer contributions for approved projects. In contrast, Part 4, Division 6 of the New South Wales, Environmental Planning and Assessment Act[110] (herein after ‘EPA Act’) contains detailed, recently reformed provisions that empower the consent authority to demand payment of developer contributions for projects assessed and approved under the Act.[111]
Section 94A(1) of the EPA Act states,
A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.
Further, the Environmental Planning and Assessment Regulation[112] establishes that the ‘maximum percentage of a section 94A levy is 1 percent of the proposed cost of carrying out the development’.[113] The following paragraph examines the quantity and nature of projects so far approved under the EPBC Act in exploring whether a developer contribution scheme analogous to the one in place under the NSW EPA Act could be a viable source of environmental revenue.
Up until the date of the Department of Environment and Heritage’s 2004-2005, Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999, a total of 105 projects had been approved after assessment under the EPBC Act.[114] To provide an indication of the sort of revenue that could be raised from a 1%-type developer contribution scheme, it is noteworthy that in 2004-05 alone, EPBC Act approvals were given for multi-million dollar projects including: a BHP Billiton petroleum field; a major tourist development on Magnetic Island; a highway extension in Western Australia; and a coal mine development and a golf course on Hamilton island.[115] In light of the scale and nature of these projects it is self-evident that if a developer contribution provision comparable to the NSW EPA Act was inserted into the EPBC Act, a new and viable funding source worth tens of millions of dollars would be created. This additional revenue could ultimately be diverted into Australia’s GEF contribution, thereby facilitating more meaningful discharge of Australia’s CBD obligations with a minimal cost to the taxpayer.
C EPBC Act Civil Penalty Provisions
Under the EPBC Act, if a person takes any action that has or will have a significant impact on a federally listed threatened species or ecological community, the maximum civil penalty that a Court may impose is 5,000 penalty units for an individual and 50,000 penalty units for a corporation.[116] Section 4AA of the Crimes Act 1914 (Cth) establishes that one penalty unit is valued at AU$110. Correspondingly, under the EPBC Act the maximum financial penalty is currently AU$550,000 for an individual and AU$5,500,000 for a corporation. Like funds procured from developer contributions under the EPBC Act, this paper argues that, at least in theory, monies procured from EPBC Act prosecutions could be used to increase Australia’s currently paltry contributions to the GEF and its total disregard for Articles 8(m), 9(e) and 20 of the CBD.
Despite the fact that the EPBC Act received assent on 16 July 1999, to date the Federal Court’s decision in Minister for the Environment & Heritage v Greentree (No 3)[117] is the only case where significant civil penalties have been imposed. In Greentree, Sackville J fined Mr Ronald Greentree and his company, Auen Grain Pty Ltd, a total of AU$450,000 for breaching s 16(1) of the EPBC Act and causing significant adverse impacts to a RAMSAR-listed wetland in northwestern New South Wales.[118]
In evaluating whether the prosecution of environmental crimes can ever be a significant source of Federal funds in Australia, the Greentree decision can be viewed from a number of different angles. On the one hand, the fact that after more than half a decade of operation there is still only one prosecution of any significance under the EPBC Act’s civil penalty provisions suggests that there are substantial resource, procedural and/or motivational impediments preventing rigorous enforcement of the Act. On the other hand, Greentree is undoubtedly a positive demonstration that Australian Courts are indeed willing to impose substantial financial penalties if a breach of the EPBC Act can be shown.
While the often-prohibitive cost of litigation and enforcement is acknowledged, it is nonetheless contended that the existing civil penalty provisions under the EPBC Act are of such magnitude that if they were more fully, forcefully and frequently exercised, there is undoubtedly some scope for the creation of new and additional financial resources.
The administration of the EPBC Act needs to be altered so that prosecutions comparable in scale to Greentree are more commonplace. Additionally, there needs to be a substantial increase in the quantity of successful small to medium scale prosecutions. In relation to lesser prosecutions, it is noteworthy that, according to the EPBC Act Annual Reports, the only other legal action that has involved significant fines occurred in December 2003, when the Federal Court fined two South Australian shark fisherman a total of AU$35,000 plus legal costs for breaches of s 354 of the EPBC Act.[119] The two fishermen were intercepted setting nets in the Marine Mammal Protection Zone of the Great Australian Bight Marine Park.[120] It is difficult to accept that breaches of the EPBC Act are such a rare occurrence that the current prosecution rate is even close to being indicative of offences actually committed.[121]
In addition to more vigorous policing and enforcement of the EPBC Act, this article proposes the creation of a system whereby monies raised from civil penalties are payable into an Environmental Trust Fund. As was the case with developer contribution provisions, in relation to the creation of such an Environmental Trust, a comparative analysis of recent amendments to state environmental law is most beneficial.
From 1 May 2006,[122] the sentencing provisions of the New South Wales, Protection of the Environment Operations Act[123] have been amended such that the court now has power to
order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998 ... for the restoration or enhancement of the environment or for general environmental purposes.[124]
This article proposes that the EPBC Act should be amended to create an Environmental Trust that receives both the payment of civil penalties for breaches of the EPBC Act (in a manner analogous to s 250(1)(e) of the Protection of the Environment Operations Act[125]) and also funds procured from developer contributions (discussed above). The purpose of this Trust, in a manner consistent with s 3(1)(e) of the EPBC Act, would be to ensure the ‘co-operative implementation of Australia’s international environmental responsibilities’.[126] The assets of the EPBC Environmental Trust would be periodically transferred (either wholly or in part) to the GEF.
Having proposed some practical measures by which the Australian Government could make a more substantial CBD contribution with minimal budgetary disruption, this article fully acknowledges that all the legislative reform in the world will be of little avail if the current paltry level of political will to financially invest in global ESD persists in mainstream Australian politics.
There is little doubt that, ‘questions of how biodiversity conservation in the developing world can be financed [have] been at the heart of international debates on conservation for many years’.[127] This article has sought to further expose the increasingly acknowledged reality that beyond the veil of international fora and debate, the inadequacy of actual financial contributions by the North is ensuring that biodiversity loss remains one of the single greatest threats to the future of humanity.
Grossly inadequate donations by developed member participants to the CBD are a negative consequence of the largely voluntary and unenforceable nature of international law. Jeffrey McNeely, one of the pioneers of the CBD from its conceptual begins at the 1982 World Parks Conference in Bali,[128] is acutely aware of this reality and acknowledges:
A major and familiar problem is that the relatively wealthy industrialised countries are hardly driven to pay even their fare share of the bill, far less the considerable funds that would be required if all countries sought to implement the CBD to a level that might be appropriate in, for example, Canada or the UK. The CBD has certainly failed to force the wealthy to pay their fair share of the bill, but of course they would not have ratified if the CBD had the power to force them to do so.[129]
Nonetheless, if current paltry efforts in funding continue, the primary aim of the CBD to slow the rate of global extinctions[130] will be achieved. This modest goal will be achieved, not through positive action, but rather because so many species will have become extinct that the current rate of obliteration will no longer be maintainable.[131] This article has examined the funds made available by developed countries for biodiversity conservation in developing countries under the provisions of the CBD at a variety of scales. The current outlook is incredibly bleak. Until the North starts to invest ‘new and additional financial resources’[132] in greatly increased amounts that are proportionate to the best estimates of the actual costs of global biodiversity conservation as opposed to past contributions, significant validity will remain in the assertion that from its inception, the CBD has ‘mostly reflected the environmental priorities of the industrialised world’.[133]
In a recent speech before the Eighth Meeting of the Conference of the Parties to the CBD, Chief Executive Officer of the GEF, Leonard Good declared, ‘please accept my assurances that the GEF will do everything it can to be an effective financial mechanism for the Convention’.[134] Despite such positive proclamations, an examination of recent official documentation of both the GEF and the various constituents of the CBD reveals that both organisations are acutely aware that current contribution levels by developed nations are imposing a severe impediment on even fractional achievement of the CBD’s objectives.[135] The GEF needs to ensure that its new Resource Allocation Framework does not further reduce the allocation of what are already extremely limited funds for CBD projects.[136] Further, both the GEF and CBD Secretariat need to abandon misleading rhetoric that donor nations are ‘making substantial and, in some cases, extraordinary efforts to replenish the resources of the GEF Trust Fund’.[137] Instead, these multilateral institutions must become more outspoken about the inadequacy of current commitments and join with IUCN representative, Richard Steiner in declaring that, ‘We have to stop fooling ourselves in thinking that past levels of financial support to environmental protection and sustainability are enough- they aren’t’.[138] The fact that the sample study of GEF donors in this article revealed an overall average annual commitment of US$1.04 per capita provides firm empirical support for this conclusion.[139]
While Australia is to be commended for its perfect record in relation to full and on-time payment of GEF commitments, the amount that Australia continues to pledge to the GEF remains grossly inadequate. Contrary to the Federal Government’s claims of, ‘a good record of participating in the development and implementation of a large number of international agreements … in the field of environmental management and protection’,[140] Australia continues to fail to adequately fulfil its obligations to developing nations under the CBD.
In light of the GEF’s established practice of calculating future financial contributions of individual donor countries with reference to that country’s past percentage contribution to the Facility’s overall funds,[141] it is most unlikely that Australia (and other under-committed donors) will be compelled to start contributing a substantially larger proportion of ‘new and additional financial resources’ to help achieve the substantive goals of the CBD.[142] Thus, it is up to the Australian Government and the Australian people to fully acknowledge that adequately investment in biodiversity conservation in the South is a proposition that is advisable not only for reasons of inter- and intra-generational equity, but also for the long-term economic prosperity of both developing and developed countries.
Provided it is properly implemented through grass-roots consultation, community empowerment and sufficient cultural sensitivity, the conservation of biodiversity represents an irreplaceable and monumental step on the pathway to ecologically sustainable development.[143] The time is long overdue for developed countries, including Australia, to build this step using more than leftover pocket change.
[*] Fifth-year student, Bachelor of Environmental Management with Bachelor of Laws, Macquarie University
[1] Andrew Balmford et al, ‘Economic Reasons for Conserving Wild Nature’ (2002) Science 297 950, 950-953; R J Smith et al, ‘Governance and the Loss of Biodiversity’ (2003) 426 Nature 67, 67-70; Tisdell, Economics of Environmental Conservation (2nd ed, 2005) 84; World Conservation Monitoring Centre, Global Biodiversity (1992).
[2] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79, 31 ILM 818 (entered into force 29 December 1993)
[3] CBD, Article 1, emphasis added.
[4] Either by ratification, accession, acceptance or approval. A full listing of parties to the CBD is available at http://www.biodiv.org/world/parties.asp.
[5] J A McNeely, ‘Comment: The Convention on Biological Diversity: A Solid Foundation for Effective Action’ (1999) 26(4) Environmental Conservation 250-251.
[6] The Johannesburg Declaration on Sustainable Development, 26 August-4 September 2002, UN A/Conf.199/L.6/Rev.2 , Paragraph 44.
[7] L D Guruswamy, ‘The Convention on Biological Diversity: Exposing the Flawed Foundations’ (1999) 26(2) Environmental Conservation 79.
[8] COP-6 of the CBD, ‘Strategic Plan for the Convention on Biological Diversity: Decision VI/26’, 7-19 April 2002, The Hague, Netherlands, para 5. Available at www.biodiv.org/decisions/default.aspx?m=COP-06&id=7200# ).
[9] A Iles, ‘Rethinking Differential Obligations: Equity Under the Biodiversity Convention’ (2003) 16 Leiden Journal of International Law 218.
[10] Ibid 234.
[11] G S Nijar, North Undermining Implementation of Biodiversity, Third World Network, available http://www.twnside.org.sg/title/nij-cn.htm.
[12] For further discussion on the heated North-South debate surrounding the precise nature of the CBD’s financial mechanisms during the initial negotiation periods see: L Glowka et al, ‘A Guide to the Convention on Biological Diversity’ (1994) Environmental Policy and Law Paper No 30, IUCN Environmental Law Centre/IUCN Biodiversity Program, 101; P Roberts, ‘International Funding for the Conservation of Biological Diversity: Convention on Biological Diversity’ (1992) 10(2) Boston University International Law Journal 303.
[13] H Synge, ‘The Biodiversity Convention Explained: Part 6. The Funding Mechanism’ (1996) 6 Plant Talk, available http://www.plant-talk.org/stories/cbd6.html.
[14] A/RES/44/228, 85th plenary meeting, 22 December 1989, available http://www.un.org/ documents/ga/res/44/ares44-228.htm.
[15] Emphasis added.
[16] Article 9(e).
[17] See for example: CBD/COP-2, Decision II-6: Financial Resources and Mechanism, UNEP/CBD/COP/2/19, Jakarta, Indonesia, 6-17 November 1995, 9; See also: Mohamed El-Ashry, ‘The New Global Environment Facility’ [June 1994] Finance and Development 48, 48.
[18] G Heggelund, S Andresen and S Ying, ‘Performance of the Global Environmental Facility (GEF) in China: Achievements and Challenges as Seen by the Chinese’ (2005) 5 International Environmental Agreements 324.
[19] Glowka et al, above n 12, 107.
[20] To date three GEF replenishment periods (GEF-1, GEF-2, GEF-3) have been completed. At the time of writing, the fourth GEF replenishment (GEF-4) was under negotiation.
[21] The application process by which nations or organisations within nations obtain GEF funding for projects has been widely criticised including by the CBD Secretariat. See for example, CBD/COP-8, Decision VIII/18 – Guidance to the Financial Mechanism, Eighth Ordinary Meeting of the Conference of Parties to the Convention on Biological Diversity, 20-31 March 2006, Curitiba, Brazil at Point 3; Heggelund et al, above n 18, 323; E Masood, ‘Biodiversity Projects Face Funding Challenge’ (1997) 385 (6612) Nature 106-107.
[22] Heggelund et al, above n 18, 324, emphasis in original, footnotes omitted.
[23] As detailed discussion of the manner in which the GEF distributes funds for biodiversity projects is outside the scope of this paper, this is an over-simplified summary. For a detailed explanation of the GEF’s incremental costing system refer to GEF, Incremental Costs, 29 February 1996, GEF/C.7/Inf.5, available at http://www.gefweb.org/council/council7/ c7inf5.htm.
[24] D Moran, ‘Debt-Swaps for Hot-Spots: More Needed’ (1994) 2 Biodiversity Letters 63.
[25] R Constanza et al, ‘The Value of the World’s Ecosystem Service and Natural Capital’ (1997) 387 Nature, 253-260; R J Smith et al, ‘Governance and the Loss of biodiversity’ (2003) 426 Nature 67, 67-70; A Balmford et al, ‘Global Variations in Conservation Costs, Conservation Benefits, and Unmet Conservation Needs’ (2003) 100 Proceedings of the National Academy of Sciences, USA 1046–1050.
[26] Marlene Jahnke (ed), ‘Financial Resources for Biodiversity Conservation’ (1997) 27(1) Environmental Policy and Law 9.
[27] CBD, Protected Areas: Outcomes of the Fifth World Parks Conference, Subsidiary Body on Scientific, Technical and Technological Advice, UNEP/CBD/SBSTTA/9/6/Add.2, 10.
[28] Balmford et al, above n 1, 952.
[29] A Balmford and T Whitten, ‘Who Should Pay for Tropical Conservation, and How Could the Costs be Met?’ (2003) 37(2) Oryx 247.
[30] Ibid.
[31] In October 1996, BirdLife International published a widely respected report titled, ‘New and Additional Financial Resources for Biodiversity Conservation in Developing Countries 1987-1994’. (See below for further discussion of this report).
[32] BirdLife International, Effective Conservation Requires Much Larger and Better-Targeted Investment (2006) available http://www.birdlife.org/action/science/sowb/response/54.html.
[33] Y Matsui, ‘Some Aspects of the Principle of ‘Common but Differentiated Responsibilities’ (2002) 2 International Environmental Agreements: Politics, Law and Economics 151.
[34] Ibid; See also K Ginther, E Denters and P de Waart (eds), Sustainable Development and Good Governance (1995) 335.
[35] Tisdell, above n 1, 101.
[36] Glowka et al, above n 12, 100, emphasis added.
[37] See for example, L Rohter, ‘Brazil’s Prized Exports Rely on Slaves and Scorched Land’, New York Times, 25 March 2002, 1; ‘Its All a Matter of McDemocracy’, Sydney Morning Herald, 27 June 1997.
[38] BBC, ‘Global Eco top ten: Forests: Causes of Deforestation’ (2006) Countryfile, available http://www.bbc.co.uk/nature/environment/conservationnow/global/forests/page2.shtml.
[39] J A McNeely and R B Norgaard, ‘Developed Country Policies and Biological Diversity in Developing Countries’ (1992) 42 Agriculture, Ecosystems and Environment 195.
[40] Guruswamy, above n 7, 81.
[41] P Campbell (ed), ‘Bridging the Gulf’ (2005) 437 (7059) Nature 595.
[42] M T El-Ashry, Statement of Mohamed T El-Ashry: Chief Executive Officer and Chairman: Global Environmental Facility to The International Conference on Financing for Development, GEF (18 March 2002) 3, 5.
[43] L Good, Mainstreaming Biodiversity: Progress and Challenges: Response to Professor A H Zakri Statement on the Millennium Ecosystem Assessment, 27 March 2006, GEF, Convention on Biological Diversity, Eighth Meeting of the Conference of the Parties, Curitiba, Brazil, 2.
[44] M C Rubino, ‘Biodiversity Finance’ (2000) 76(2) International Affairs 223, emphasis added.
[45] Balmford et al, above n 1, 953.
[46] United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994).
[47] United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, opened for signature 17 June 1994, 1954 UNTS 3, 33 ILM 1328 (entered into force 26 December 1996).
[48] Stockholm Convention on Persistent Organic Pollutants, opened for signature 22 May 2001, 40 ILM 532 (2001) (entered into force 17 May 2004).
[49] Good, above n 43, 2.
[50] Including full-size projects, medium-size projects and enabling activities.
[51] World Bank, World Bank – GEF Database, (2006), accessible at http://www-esd.worldbank.org/gef/.
[52] One possibility is that Good was including some or all of the ‘Multi-Focal’ Projects, which have received direct GEF funding totaling US $248.1million. See: http://www-esd.worldbank.org/gef/fullProjects.cfm.
[53] CBD, above n 27; Balmford et al, above n 1, 952.
[54] At the time of writing, negotiations for the fourth GEF replenishment (GEF-4) were continuing.
[55] Masood, above n 21, 106.
[56] Masood, above n 21, 107.
[57] As noted above, some GEF-funded projects that accomplish biodiversity goals may be recorded on the World Bank database as ‘Multi-focal’ projects instead of ‘Biodiversity’ projects based on the fact that they accomplish goals under other GEF-funded treaties also. To date, ‘Multi-Focal’ Projects have received direct GEF funding totaling US $248.1million. See: http://www-esd.worldbank.org/gef/.
[58] For example, Gurdial Sing Nijar cites the following figures, ‘Assistance from the GEF has fallen from US$332 million in its 1991-93 pilot phase to US$65 million in the fiscal year ending June 1995. In the year ending June 1996 it dropped further to a meagre US$23 million. As a percentage of the GEF portfolio, biodiversity projects represented 40% in the pilot phase, 45% in the fiscal year 1995 and 7% in 1996’; Nijar, above n 11.
[59] Jahnke, above n 26, 11.
[60] World Bank, above n 51.
[61] Ibid. Note: there is a reporting error in the database for Project ID – P098423. This project is reported in the dataset as having a direct GEF contribution of US$10 billion, when the actual contribution, according to the detailed projected description is US$10 million. This error has been corrected for the calculations in this paper. The detailed project description is available http://www-esd.worldbank.org/gef/projectDetail.cfm?ID=1806&projectSize=RP.
[62] GEF, RAF at a Glance: GEF’s New Framework for Allocating Resources, (2006), available at: http://www.gefweb.org/Operational_Policies/raf/.
[63] CBD/COP-8, Decision VIII/13 – Review of implementation of Article 20 (Financial resources) and Article 21 (Financial Mechanism), Eighth Ordinary Meeting of the Conference of Parties to the Convention on Biological Diversity, 20-31 March 2006, Curitiba, Brazil.
[64] GEF, above n 62.
[65] GEF, Illustrative Burden-Sharing (Prepared by the Trustee) 9 November 2005, GEF/R.4/Inf. 19.
[66] Ibid 1, emphasis added.
[67] Ibid, 2-4.
[68] For example the second GEF replenishment (GEF-2) covered the period from 1 July 1998 to 30 June 2002; AUSAID, The Global Environment Facility – Questions and Answers (1998) 3.
[69] O Tickell, ‘Funding Dispute could Hold Up Biodiversity Treaty’ (1994) 367 Nature 309.
[70] GEF, Trustee Report, Meeting on the Fourth Replenishment of the GEF Trust Fund, (2006) GEF/R.4/Inf.23, 4.
[71] Ibid 6.
[72] Ibid 5.
[73] Argentina and Egypt are no longer contributing partners. Both nations have arrears payments from GEF-1 equivalent to a total of US$4.83 million; (ibid).
[74] On 15 May 2006, there were 11 current donor nations with outstanding or deferred payments: USA, Belgium, Canada, Finland, Greece, Nigeria, Pakistan, Austria, France, Japan, Germany; (Ibid). There is a total of 33 contributing participants in the GEF-4 replenishment; GEF, above n 65, 2-4
[75] As quoted in Nijar, above n 11.
[76] Balmford et al, above n 1, 952.
[77] GEF, above n 70, 2.
[78] GEF, above n 70, 3.
[79] GEF, Policy Recommendations for the Fourth Replenishment of the GEF Trust Fund [Draft Negotiation Text: Still Under Discussion] (19 May 2006) GEF/R.4/32, 5.
[80] Commonwealth Department of Environment, Sport and Territories, National Strategy for the Conservation of Australia’s Biological Diversity, available http://www.deh.gov.au/ biodiversity/publications/strategy/chap6.html.
[81] GEF, above n 70, 8.
[82] The GEF typically reports in SDR millions. In the GEF-4 Reference Exchange Rate period of 1 May 2005 – 31 October 2005: the SDR exchange rate was as follows: SDR $1 = AU$1.92629/US$1.46666; (GEF, above n 65, 5).
[83] GEF, above n 70, 8.
[84] Commonwealth of Australia Government, ‘Multilateral Development Banks’, Australian Government Budget 2006-2007 available www.budget.gov.au/2006-07/ministerial/html/ ausaid-09.htm.
[85] GEF, above n 65, 5.
[86] Roberts, above n 12, 317.
[87] Calculated using data available, World Bank, see above n 51.
[88] Food and Agriculture Organisation of the United Nations (FAO) Global Forests Resources Assessment 2005: 15 Key Findings (2005) 3, available http://www.fao.org/forestry/foris/ data/fra2005/kf/common/GlobalForestA4-ENsmall.pdf.
[95] See for example: M T El-Ashry, Financing Global Sustainable Development, GEF International Conference in Preparation for the World Summit on Sustainable Development, 11 June 2001.
[96] CBD, Article 20(1).
[97] AUSAID, above n 68, 2.
[98] A Downer, Launch of the Australia Aid White Paper, 26 April 2006, available http://www.ausaid.gov.au/media/release.cfm?BC=Speech&ID=1620_5976_8939_827_3023.
[99] Ibid.
[100] AUSAID, ‘What the Aid Program will Focus On’, Australian Aid: Promoting Growth and Stability – A White Paper on the Australian Government’s Overseas Aid Program, April 2006, Chapter 5, 41.
[101] Ibid, 40.
[102] Ibid.
[103] Indeed, the word ‘biodiversity’ is only mentioned once in the entire White Paper in a fleeting reference to the Environment Protection and Biodiversity Conservation Act 1999 (Cth); Ibid, 41.
[104] Environment Protection and Biodiversity Conservation Act 1999 (Cth).
[105] Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190, 191 (Black CJ, Ryan and Finn JJ). See also: Commonwealth of Australia, Parliamentary Debates – Second Reading Speech, House of Representatives, 29 June 1999, 7770.
[106] EPBC Act s 3(1)(e).
[107] EPBC Act s 3(2)(e)(iv), emphasis added.
[108] EPBC Act Chapter 4
[109] EPBC Act Chapter 2, Part 3.
[110] Environmental Planning and Assessment Act 1979 (NSW).
[111] For the most recent reforms refer to: Schedule 1 of the Environmental Planning and Assessment Act 2006 (NSW).
[112] Environmental Planning and Assessment Regulation 2000 (NSW).
[113] Environmental Planning and Assessment Regulation 2000 (NSW), Reg 25K, emphasis added.
[114] A year-by-year breakdown of approvals is as follow: 2004-05: 28 Approvals; 2003-04: 26 Approvals; 2002-03: 25 Approvals; 2001-02: 26 Approvals. For details regarding the specific projects approvals refer to: DEH, 2004-05 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999 ‘Appendix 1 – Statistics on the operation of the Act during 2004-05: Protecting Environment and Heritage’ (2005); DEH, 2003-04 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999 ‘Appendix 1 – Statistics on the operation of the Act during 2003-04: Protecting environment and heritage’ (2004); DEH, 2002-03 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999 ‘Appendix 1 – Statistics on the operation of the Act during 2002-03: Protecting environment and heritage’ (2003); DEH, 2001-02 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999 ‘Appendix 1 – Statistics on the operation of the Act during 2001-02: Protecting environment and heritage’ (2002) all available http://www.deh.gov.au/about/ publications/annual-report/index.html.
[115] For a full listing of approved projects and their proponents see: DEH, 2004-05 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999 ‘Appendix 1 – Statistics on the operation of the Act during 2004-05: Protecting environment and heritage’ (2005) available http://www.deh.gov.au/about/publications/annual-report/04-05/index.html.
[116] EPBC Act s 18.
[117] [2004] FCA 1317. Note that an appeal to the Full Federal Court concerning, among other things, the quantum of damages payable, was dismissed with costs. See Greentree v Minister for the Environment and Heritage [2005] FCAFC 128.
[118] Minister for the Environment & Heritage v Greentree (No 3) [2004] FCA 1317, Sackville J, [59-82].
[119] Australian Government Department of the Environment and Heritage, 2003-04 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999, (2004), Part 4 – Monitoring and Compliance, available http://www.deh.gov.au/about/ publications/annual-report/03-04/reports-epbc-monitoring-compliance.html.
[120] Ibid.
[121] The only other small to medium scale prosecution of note was reported in the 2004-05 Annual Report where ‘Parks Australia conducted successful prosecutions of two men for using a vessel in a closed area of the South Alligator River in Kakadu National Park, and one man for using a crab pot and cast net to catch crocodiles on the East Alligator River, also in Kakadu’: DEH, 2004-05 Annual Report on the Operation of the Environment Protection and Biodiversity Conservation Act 1999 (2005) Part 4 – Monitoring and Compliance, available http://www.deh.gov.au/about/publications/annual-report/04-05/legislation-epbc-4.html# monitoring.
[122] The reform instrument was Clause 107, Schedule 1 of the Protection of the Environment Operations Amendment Act 2005.
[123] Protection of the Environment Operations Act 1997 (NSW).
[124] Protection of the Environment Operations Act 1997 (NSW) s 250(1)(e).
[125] Protection of the Environment Operations Act 1997 (NSW).
[126] EPBC Act s 3(1)(e).
[127] Jahnke, above n 26, 9.
[128] McNeely, above n 5, 250.
[129] Ibid 251.
[130] At COP-6 it was declared, ‘Parties commit themselves to a more effective and coherent implementation of the three objectives of the Convention, to achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on earth’. (COP-6 of the CBD, above n 8).
[131] Pierre L Ibisch, Michael D Jennings, Stefan Kreft, ‘Biodiversity Needs the Help of Global Change Managers, not Museum-Keepers’ (2005) 438 Nature 156-156.
[132] CBD, Article 20.
[133] D G Victor, ‘Recovering Sustainable Development’ (2006) 85(1) Foreign Affairs, available at http://iis-db.stanford.edu/pubs/21018/Recovering_Sustainable_Development.pdf.
[134] Good, above n 43, 3.
[135] In relation to the CBD see: CBD, above n 27; CBD/COP-7, Decision VII/21 – Additional Financial Resources, Seventh Ordinary Meeting of the Conference of Parties to the Convention on Biological Diversity, 9-20 February 2004, Kuala Lumpur, Malaysia; In relation to the GEF see: R Steiner, 1% Earth Profits Fund: A Private-Sector Conservation Finance Initiative for the 21st Century, September 2005, IUCN Commission on Environmental, Economic, and Social Policy (CEESP), available http://www.iucn.org/themes/ceesp/ Wkg_grp/Seaprise/Ref%205%20Earth%20Profits%20Fund.doc, 4.
[136] CBD/COP-8, above n 63.
[137] GEF, Potential Reference Currencies for Use in the Third GEF Replenishment, 20 September 2001, GEF/R.3/13, 2.
[138] Steiner, above n 135, emphasis omitted, 4.
[139] Further, the substantially higher contribution level of numerous Nordic countries significantly buoys this figure.
[140] Commonwealth Department of the Environment, Sports and Territories, National Strategy for the Conservation of Australia’s Biological Diversity (1996) available www.deh.gov.au/ biodiversity/publications/strategy/chap6.html.
[141] GEF, above n 65.
[142] CBD, Article 20.
[143] The most recent GEF documentation acknowledges, ‘Where local benefits are an essential means to achieve and sustain global benefits, these should be more systematically addressed in all stages of the GEF project cycle, building on adequate social, environmental and institutional analysis, including gender analysis, with GEF continuing to finance the incremental costs of achieving global environmental benefits. GEF projects should be cost effective in the local context so as not to undermine poverty reduction efforts’. GEF, above n 79, 1.
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