Federal Government to wind back 30 years of legal protection for the environment

By EDO NSW Law Reform and Policy Director Rachel Walmsley

The Federal Government’s handover of environmental approval powers to the States for development projects will wind back 30 years of legal protection for the environment and put at risk Australia’s World Heritage Areas such as the Great Barrier Reef, Kakadu and the Tasmanian forests.

At the same time, State governments are seeking to ‘fast track’ major developments, such as coal mine and coal seam gas projects, reducing public participation and removing legal rights of local communities to mount legal challenges.

The Federal Government will soon make the States responsible for ‘Matters of National Environmental Significance’ listed under the main Federal law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). These matters include World Heritage Areas, threatened species, wetlands of international significance, migratory species, water resources and uranium mines. Under the EPBC Act, the Federal Government has had responsibility for assessing and approving developments likely to have a significant impact on these matters. This Federal oversight has provided an important check on State powers that has helped ensure Australia’s most important natural assets are managed appropriately. The changes will mean State and Territory governments, alone, will decide whether to approve projects that will impact on these areas of national interest.

World Heritage listed Upper Florentine forest, Tasmania, by Kip Nunn

World Heritage listed Upper Florentine forest, Tasmania, by Kip Nunn

The Bill to implement this so called “one stop shop” approach is currently before the Senate and, if passed, will also allow the States to decide on the ‘water trigger’ which currently requires the Federal Government to assess major coal mines and coal seam gas projects with potential impacts on water resources such as the Murray Darling river system or the Great Artesian Basin – both of which traverse several States.

The Federal Environment Minister Greg Hunt has so far proposed Bilateral Agreements, to delegate environmental approvals, with NSW, Queensland, Tasmania and the A.C.T. and set a deadline of September for agreements to be in place with the other States and Territories. These agreements set up a single assessment and approvals process to satisfy both State and Federal environmental law requirements, to be undertaken by the State or Territory alone.

The Federal Government says the handover of environmental approval powers to the States is designed to remove duplication and ‘green tape’ which is restricting development, whilst maintaining environmental standards. However, a Federal Senate inquiry in March last year found no substantive evidence that the existing regulatory arrangements were imposing unnecessary costs on business, nor would a ‘one stop shop’ process improve business efficiency. Claims of duplication also appear tenuous as States do not currently consider matters of national environmental significance when assessing and approving projects.

The handover of environmental approval powers to the States is flawed because it ignores the inherent conflict of interest for State and Territory governments when considering State-based projects. For example, State governments may stand to gain tens or hundreds of millions of dollars in royalty payments if they approve major mining or coal seam gas projects. In major infrastructure projects like port expansions or highways, the State may be both the proponent and approval authority. Historically, the demise of the Murray-Darling river system, before Federal intervention, provides a glaring example of the inability of the States to consider the national interest or prioritise the national interest over their own financial and political interests.

Minister Hunt’s “one-stop shop” laws will accredit State planning laws which have consistently failed to reach Federal standards for environmental protection, particularly for threatened species. The Australian Network of Environmental Defenders Offices undertook an audit of threatened species in 2012 and found that “no State or Territory biodiversity or planning laws currently meet the suite of Federal environmental standards necessary to effectively and efficiently protect biodiversity.” This is also plain from the 2011 State of Environment Report which found that, across Australia, “our unique biodiversity is in decline, and new approaches will be needed to prevent the accelerating decline in many species.” Australia has one of the worst rates of extinction in the world.
Community being shut out of government decisions and the legal system

As Federal environmental approval powers are being handed to the States, communities are being shut out of government decision-making and the legal rights of communities, at State level, to challenge contentious major projects are being stripped away. In Queensland, the proposed Mineral and Energy Resources (Common Provisions) Bill will mean 90 per cent of proposed projects would not be open for community comment or objection. In NSW, opportunities for merit appeals for contentious major developments such as coal mines and coal seam gas projects have all but disappeared. This is despite the NSW Independent Commission Against Corruption recommending to the NSW Government that the scope of these type of legal appeals be extended as an anti-corruption measure.

Since the landmark Federal intervention in 1983 to prevent the Franklin Dam development in Tasmania, the need for Federal involvement in environmental approvals has been well recognised. The Federal Government rarely uses its powers to frustrate State-based developments, but when it does, it does to avoid unacceptable environmental impacts on nationally significant environmental features.

Faster approvals that deliver poor quality, high risk or unsustainable development are not in the public interest. They are likely to result in water and air pollution, biodiversity decline, and erode community trust in government decision-making.
Any reforms to national environmental regulation must lift the standard of environmental protection rather than lower it. Unfortunately for our iconic natural areas and unique threatened species, the “one-stop shop” will not achieve this.