EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Migratory Species Amendment (Orcaella Species Name Update) Instrument 2018
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides for the protection of the environment, especially matters of national environmental significance, and conservation of biodiversity, including the protection and conservation of listed migratory species.
Section 209 of the Act provides for a list of migratory species (the List). The List is a compilation of native species listed in the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), migratory species listed in the Annexes to the Japan-Australian Migratory Bird Agreement (JAMBA), the China-Australia Migratory Bird Agreement (CAMBA), and native species listed under other international agreements approved by the Minister as agreements relevant to the conservation of migratory species (presently the Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA)).
The List of Migratory Species Amendment (Orcaella Species Name Update) Instrument 2018 (the Instrument) is made under section 209(6) of the Act which provides that the Minister or delegate may, by legislative instrument, amend the List as necessary to correct an inaccuracy or update the name of a listed migratory species.
The purpose of this Instrument is to update the scientific name of the migratory species included in the List as set out below:
Orcaella brevirostris to Orcaella heinsohni.
Background
The Instrument updates the scientific name of this species so that the List includes all species required to be included under section 209(3)(a) of the Act. These name changes result from taxonomic revisions to Appendix II to the Bonn Convention, where subspecies are now listed at the species level.
The Orcaella brevirostris (Irrawaddy Dolphin) was included in the List as it was first made in 2000 as it was already included in the Bonn Convention prior to the commencement of the Act. At that time, the O.brevirostris species was considered to have two regional populations: one in South-east Asia and the other in northern Australian waters. As such, the listing of O.brevirostris in the List covered both populations. This reflected the Bonn Convention listing for O.brevirostris, which was made on the basis of the scientific understanding at the time that the two populations were the same species.
Between 2000 and 2009, scientific understanding of the two populations of the Irrawaddy Dolphin changed, and the ‘Australian population’ of that species became known by the scientific name Orcaella heinsohni (the Australian Snubfin Dolphin). This change was formalised in the Bonn Convention in 2009, when the O.heinsohni was listed separately from the O.brevirostris, but with a footnote in the listing that stated that this species was previously included in the listing for O.brevirostris. As such, there was no period when the Australian population of the O.brevirostris (now known as O.heinsohni) was not covered by a Bonn Convention listing.
Section 209(3)(a) of the Act states that the migratory species list must include all migratory species that are native species and included in the Appendices to the Bonn Convention. As such, the migratory species list must be amended to recognise the taxonomic revision of the Orcaella genus in the Bonn Convention by updating the reference to O.brevirostris so that it refers to O.heinsohni instead.
The Instrument does not have the effect of making any changes to the species that are included in the List. The existing listing for the O.brevirostris covered the population of the Irrawaddy Dolphin that is native to Australia. The fact that this population is now known by a different scientific name (O.heinsohni) and a different English name (Australian Snubfin Dolphin) does not mean that it is no longer covered by the existing listing. Rather, it simply necessitates a correction to the name of that listing.
Consultation
Section 17(1)(a) of the Legislation Act 2003 (the Legislation Act) states that before the legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate.
As this Instrument only updates the name of one migratory species and does not make any substantial change to the List, public consultation was not undertaken.
Consultation internationally on the proposed change was undertaken within the Bonn Convention Scientific Council, which supported the recognition of the taxonomic split. As O.brevirostris originally encompassed O.heinsohni, and the species was assessed as eligible for inclusion in Appendix II when originally listed, the Scientific Council recommended that O.heinsohni be included on Appendix II to reflect its original assessment. Parties to the Bonn Convention agreed with the Scientific Council’s recommendation.
Pursuant to section 209(7) of the Act, the Instrument is a legislative instrument for the purposes of the Legislation Act, but section 42 (disallowance) of the Legislation Act does not apply to the Instrument.
The Instrument commences on the day after it is registered on the Federal Register of Legislation.