By Frances Medlock, Solicitor, Commonwealth & Government Liaison, and Rachel Walmsley, Head of Policy & Law Reform
It has been well over six months since the Environment Minister Tanya Plibersek released the Nature Positive Plan, setting out the Australian Government’s priorities for long-overdue national nature law reform. But what has happened since the plan was released, and when will we see new laws?
The Nature Positive Plan responds to Professor Samuel’s recommendations to modernise the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), and outlines some much-needed reforms to our environmental laws. Key elements include setting legally enforceable national standards, establishing a new independent environment protection authority (EPA), improving community participation and trust in environmental decision-making, engaging with First Nations communities, improving data collection and ensuring better understanding of climate impacts. But time is tight to achieve this ambitious law reform agenda, and much of the detail of how these reforms will be implemented is still unknown.
This legal update provides an overview of eight elements of the Nature Positive Plan, providing an update on EDO’s previous analysis, and highlights what still needs to happen in this essential reform process. There are many crucial areas for progression and gaps that need filling before the nature reforms can progress. With more and more species being added to endangered list, an imminent bushfire season ahead, and decisions continuing to be made on new and expanded fossil fuel projects under the Act, it’s more important than ever that momentum continues to reform our nature laws to address the climate and extinction crises.
- Now is the critical window to make the laws needed to achieve nature and climate goals
After two decades of poor outcomes for nature and mistrust in our environmental approvals system, it’s crucial the Federal Government act with urgency in transforming our failing nature laws. The Samuel Review established that the EPBC Act is not fit for purpose, doesn’t protect our at-risk ecosystems or endangered animals, and fails to engender community participation or trust. The most recent State of the Environment Report confirms that rapid reform is needed to turn around the extinction and climate crises.
The Federal Government’s goal of no new extinctions, and commitment under the Kunming-Montreal Global Biodiversity Framework to protect 30% of terrestrial and marine ecosystems by 2030, are commendable. But for these goals to be realised, we must have a comprehensive and fully resourced reform package that enshrines meaningful environmental protection, transparent decision making, and sets nature positive outcomes, in law.
Comprehensive new legislative architecture is critical. We are encouraged that drafting of the new Bills is finally underway by a departmental reform taskforce, but deeply concerned that in the interim the government has pursued the establishment of a market for biodiversity certificates through the Nature Repair Market Bill 2023. This is putting the cart before the horse. The new legal architecture needs to be passed as a priority to establish national standards, decision-making guardrails, and a clear coordinating framework for the range of measures needed to deliver a nature positive Australia. Pre-empting this by attempting to create a novel market which relies on demand generated through nature damage and offsetting arrangements runs the risk of undermining the new laws before they are even introduced.
Standalone legislation for a truly independent Environment Protection Agency (EPA); new cultural heritage legislation designed by First Nations for First Nations; and a full suite of legally enforceable national standards must be the priority. Only these wholescale reforms will address trend of nature destruction, and truly advance the government’s ‘nature positive’ goals. It’s clear that our endangered species and habitats on the brink won’t survive another decade of tinkering around the edges of the EPBC Act – comprehensive reform is needed, and quickly. It is up to this government, in 2023, to make sure that nature protection stays squarely on the political agenda and concrete reform is introduced to the parliament.
- Conservation focused national environmental standards must secure positive outcomes for nature
New national environmental standards will provide the framework for decision-making under the reformed nature laws, and are intended to guide assessment, consultation and approval processes. Drafting has begun on the first suite of standards – relating to matters of national environmental significance (MNES), biodiversity offsetting, regional planning, and First Nations engagement and participation in decision-making. EDO has welcomed ongoing collaboration and consultation with experts on these essential components of the reform, and continues to play a key role in informing the drafting process .
The national environmental standards are an opportunity to make sure the new environmental regime is better than the EPBC Act. One of the main problems with the current EPBC Act is the focus on process and box-ticking. The new standards must instead be outcome-focused, with strong legal protections and measurable goals that can halt nature destruction across the country. They must codify environmental protection, outline where impacts on critical habitats and at-risk species are unacceptable, and reflect our international commitments.
The standards are the backbone of the new environmental laws, and should be progressed urgently. We also note that many of the principles of ecologically sustainable development that underpin our nature laws, from the precautionary principle to consideration of intergenerational justice, must not be left behind as the focus turns to outcomes and standards. Key protections and principles must be brought over to the new laws, to ensure that there is no loss of protection from the EPBC Act – only improvement.
- A well-resourced EPA with full independence will be the best decision-maker under the new laws
The Australian Government has committed to a long overdue and essential component of the new legal framework in the establishment of a federal environmental regulator. With the new EPA responsible for assessments, decision-making including approvals, and post approval compliance and enforcement, the newly named Environment Protection Australia has a big job. This means it’s crucial the EPA be fully resourced from the outset, with enough secure funding to properly fulfil its functions.
The EPA should be established through standalone legislation and established as an independent statutory body. Around the country, EPAs and similar regulators are governed by Boards to preserve their independence and provide strong oversight of regulatory powers, culture, strategic direction, and operation. The new federal EPA should therefore have a skills-based Board which will appoint a CEO subject to statutory skills criteria. This model better protects against political appointments or conflicts of interest, and EDO has consistently recommended it be adopted. The alternative, to allow Ministerial appointment of a single CEO as set out in the Nature Positive Plan, would be concerning for the independence of the EPA and therefore public trust in its decisions. Safeguards including legislated criteria for the CEO’s qualifications and experience, as well as transparency in the recruitment process, are therefore essential.
With good resourcing, and an independent structure that ensures expertise, the EPA will be best equipped to make decisions under the new law, engendering community confidence that decisions and conditions are being made objectively. However, under the government’s proposed laws as flagged in the Nature Positive Plan, the Environment Minister will retain the ability to ‘call-in’ decisions, taking them out of the EPA’s hands, and making the approval decision themselves. If this power is ill-defined or open ended, it risks community trust in the new system and opens up the decision making process to political influence, rather than the consistent and principled administration of the law according to standards. Transparency and certainty are essential to address the failings of the EPBC Act, not discretionary and unconstrained decision making. Any call-in power must have clear and narrowly defined parameters in the legislation, and should be subject to strict consultation requirements, additional public scrutiny, and consistency with principles in the Act must be maintained.
- Rights of First Nations communities must be front and centre in reform process
Environmental burdens such as pollution, environmental degradation and the impacts of climate change are disproportionately felt by First Nations communities, who often have little or no say in the way that decisions are made about their Country. It is essential that new nature laws are underpinned by and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), particularly the principles of free, prior and informed consent. As such, the development of the Standard for First Nations Engagement and Participation in Decision-making – by First Nations for First Nations – must be a priority as the draft legislative package is progressed.
In addition, EDO welcomes the government’s commitment to develop new laws to protect First Nations cultural heritage, acknowledging this a critical and long-over-due reform. This process should be led by First Nations Peoples for First Nations Peoples. To leave either of these crucial reforms off the agenda would unacceptable, and work on these matters must be prioritised.
- Stronger community rights and consultation standards are needed to restore public trust in environmental laws
While drafting of the initial suite of national environmental standards for matters of national environmental significance, biodiversity offsetting and regional planning are progressing, it is important that other elements are not left behind. Community trust in the new Act is essential, as Professor Samuel made clear in his review of the EPBC Act. Without clear pathways for participation and consultation, neither community nor business will have confidence that the laws are operating as intended and delivering verifiable nature positive environmental outcomes. Alongside statutory requirements for consultation on all decisions and policies made under the Act, the government should ensure that a national standard for community engagement is prioritised, and ready to be operational on the commencement of the new legislation.
Merits review, as recommended by Professor Samuel, provides for better scrutiny of decisions and has resulted in better environmental and social outcomes, and better decisions more generally. EDO will continue to advocate for merits review to be available for all decisions under the new act as a key accountability measure.
Third party enforcement is the ability of community members to enforce breaches of the law or environmental conditions. It is an integral part of environmental law regimes around the country, as it gives communities a way to directly enforce nature laws. Third party enforcement mechanisms are an important component of the package of reforms required to ‘future proof’ the new environmental law regime and EDO continues to support the Government in developing robust civil enforcement rights.
- Biodiversity offsetting remains fraught with risks for nature
The Nature Positive Plan indicates that in the new laws “environmental offset arrangements will deliver better overall environmental outcomes”, but what this actually means in law for our species and ecosystems on the brink will be critical. Definitions of ‘better off overall’ or ‘net positive’ are contentious. The plan indicates that under new laws, biodiversity offsetting will provide an option for proponents to trade off damage to nature in one place, by protecting an area or animal in another place, or paying money into a conservation fund. The integrity and risk issues with biodiversity offsets are well documented.1 For example, where offsets allow trade offs between different species or ecosystems (ie, a net loss of habitat for one species is justified by a potential conservation gain for another species), where sites aren’t adequately protected in perpetuity, or where proponents seek to offset critical habitat or endangered species; we end up with a net loss to environment – which continues the trajectory of decline for our wildlife and special places.
Biodiversity offsets should therefore only be allowed in limited circumstances, in line with best practice science-based principles. This means only after consideration of alternatives to avoid, minimise or mitigate the harm. This ‘mitigation hierarchy’ should be clearly set out in legislation as a mandatory pre-condition before any offsetting option is considered, and properly implemented and enforced. New laws and standards must recognise that not everything can be offset – some of our plants and animals are simply too precious and rare to be traded-off.
The new Act must also enshrine the requirement of genuine ‘like for like’ offsets, to ensure that the environmental values of the site being used as an offset are equivalent to the environmental values impacted by the proposed action. For example, if a project was to destroy koala habitat in one area, it should have to protect similar koala habitat elsewhere. And if that koala habitat can’t be found, then the project should not be able to proceed at all. This means the ability of proponents to instead pay into a ‘conservation fund’ as proposed in the Nature Positive Plan, rather than securing any protections on the ground for the affected species or ecosystem, risks creating an option for proponents to simply ‘pay to destroy’.
- Reforms must recognise that climate change and environmental protection can’t be separated
It is nonsensical that our national environmental law does not directly address the greatest challenge facing the Australian environment. In over 1000 pages, the EPBC Act fails to explicitly, clearly and comprehensively address the threat of climate change. Not only does the Act deal with approvals of fossil fuel projects without explicitly addressing greenhouse gas emissions head on, but it fails to adequately deal with the impacts of climate change on matters of national environmental significance, like the Great Barrier Reef and other World Heritage sites.
The Nature Positive Plan includes a commitment to disclosure of scope 1 and scope 2 emissions for new projects, and these estimates will need to be shared with the Climate Change Minister to be assessed against new Safeguard Mechanism targets.2 But neither of these developments require substantive assessment of how a new coal mine might affect the carbon budget, for example, or whether a new gas drilling project could undermine our international obligations to reduce emissions. Without a ‘climate trigger’ in the Act, there is no mechanism for preventing new polluting projects on the basis of their carbon emissions.
Therefore, alongside adding climate change as an MNES to ensure that new projects are assessed for their emissions against our carbon budgets and targets, and the Paris Agreement temperature limits, climate change considerations must be integrated into environmental decision making at every level in the new laws. Actions which increase emissions or harm carbon sinks must be prevented, and we need full mandatory climate impact assessment of all projects and all emissions, as well as comprehensive threat abatement and adaptation planning.
The new legislation will also play a role in facilitating the urgent role out of renewable energy infrastructure. The new nature laws are an opportunity to ensure that many of the mistakes made in relation to fossil fuel energy and traditional mining, aren’t made again when it comes to the energy transition. That means we need speedy assessment of renewable projects, in a way which protects our environment and respects the free, prior and informed consent of First Nations communities.
The climate and biodiversity crises – and solutions – are inextricably linked. EDO is strongly advocating for new laws that deliver outcomes for climate and nature.
- Gaps in reforms risk leaving water protection and forests behind
The Australian Government has committed to expanding the current ‘water trigger’ in the EPBC Act to capture unconventional gas (e.g. fracking). Currently, coal seam gas and large coal mining projects are assessed under the Act when they have a significant impact on water resources. The expansion would ensure unconventional gas, including shale and tight gas, will also be included. This was a key recommendation from the Scientific Inquiry into Hydraulic Fracturing of Onshore Unconventional Reservoirs in the Northern Territory (Pepper Inquiry), required before approvals could open to new fracking projects. Now, we’ve seen the Northern Territory government declare all recommendations implemented, despite no expanded water trigger having passed the Parliament. This is an important reform that urgently needs progress, as the Territory government is pushing ahead with fracking approvals, including in the Beetaloo Basin.
Similarly, the government indicated that Regional Forest Agreements (RFAs) would be subject to the new national environmental standards. This is well overdue and welcomed by many in the community, as RFAs have consistently led to poor outcomes for at risk wildlife and ecosystems, including the endangered greater glider and Swift parrot. Moreover, native forests are natural carbon sinks, and must be protected for the sake of the climate. It’s beyond time the exemption of native forests from our national laws was removed, and the government should act quickly while there are still native forests left to protect.
We cannot miss this window of opportunity to achieve the nature reforms our environment and climate desperately need. A new environmental Act, and establishment of a new independent EPA, present a unique opportunity not only for the Australian Government to achieve its laudable goals and international commitments, but to turn the tide on the extinction and climate crises. Urgency and ambition are more important than ever for national nature law reform, and EDO is strongly advocating for new laws that deliver outcomes for climate and nature.
1 See for example, Audit Office of New South Wales, Effectiveness of the Biodiversity Offsets Scheme, August 2022, NSW Legislative Council, Integrity of the NSW Biodiversity Offsets Scheme, November 2022.