Commentary and compilation by Lawrence Smith, NSW Regional Manager, Niche.
For context, let’s first look at some background information:
The EPBC Act is Australia’s primary national environmental law; it’s more than 1000 pages of complex legislation and, since first introduced in 1999, it has had over 400 pages of regulations added.
This 2019-2020 is the second independent Review undertaken, the prior and first Review was in 2009.
Professor Graeme Samuel AC was appointed in October 2019 as the independent Reviewer for the statutory Review of the EPBC Act. An Expert Panel supported and provided advice to Professor Samuel on specific issues.
The timeline of events:
- Nov 2019: Discussion Paper released
- Apr 2020: Submissions closed
- Jun 2020: Interim Report released
- Oct 2020: Final Report submitted to the Minister
- Jan 2021: Final Report publicly released
Presented in the Final Report, in no uncertain terms, is the conclusion that:
“Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat, further stating that the current environmental trajectory is unsustainable.”
The conclusions went further, to state:
“The EPBC Act is ineffective. It does not enable the Commonwealth to effectively protect environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.
The EPBC Act focuses on nationally important matters, termed ‘matters of national environmental significance’ (MNES). Good outcomes for the environment, including heritage, cannot be achieved under the current laws.”
It is clear that positive sentiments pervade within the Australian communities, as the Report presented an overwhelming message received by the Review that:
“Australians care deeply about our iconic places and unique environment. Protecting and conserving them for the benefit of current and future generations is important for the nation”.
The Final Report Executive Summary concluded:
“The recommended reforms are substantial, but fundamental changes are necessary to reverse the current state of environmental decline and to build the resilience of the environment to withstand future threats.
Adopting these reforms will mean that Australia can meet its future development needs in a sustainable way that delivers long-term economic growth, environmental improvement and the effective protection of Australia’s iconic places and heritage for the benefit of current and future generations.”
The EPBC Act Independent Review 2020, Final Report provides 38 recommendations for reform.
These are set out in tranches:
- Immediate reforms should be delivered to progress priority reforms
- The second tranche of reform should be completed within 12 months
- The third and final tranche should be completed within 2 years.
Five things you need to know about the 2020 Independent Review.
#1 TAKEAWAY: (Recommendations 3, 7, 23, 30)
National Environmental Standards – Independent oversight and enforcement.
Legally enforceable National Environmental Standards: Central to the recommendations is the recommendation that the EPBC Act should be immediately amended to enable the development and implementation of legally enforceable National Environmental Standards (NES).
A new Environment Assurance Commissioner: The Report recommend the establishment of, by statutory appointment, the position of Environment Assurance Commissioner (EAC) with responsibility for strong oversight and audit of Commonwealth decision-making and accredited arrangements.
A new independent Office of Compliance and Enforcement: The creation of a new independent Office of Compliance and Enforcement (OCE) within the Department of Agriculture, Water and the Environment with regulatory powers and tools to enable it to deliver compliance and enforcement of Commonwealth approvals, consistent with the National Environmental Standards.
#2 TAKEAWAY: (Recommendations 1,2, 3)
National-level protection and conservation of the environment and iconic places.
Matters of national environmental significance should be focused on Commonwealth responsibilities for the environment.
- National Environmental Standards recommended by this Review should require development proposals to explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate change scenarios and transparently disclose the full emissions of the development; and
- The water MNES (water trigger) should be amended to apply only to cross-border water resources and the nuclear MNES (section 21/22A) should be retained.
#3 TAKEAWAY: (Recommendations 5, 6, 7, 8)
Indigenous culture and heritage.
The report recommends that to harness the value and recognise the importance of Indigenous knowledge, the EPBC Act should require decision-makers to respectfully consider Indigenous views and knowledge. Immediate reform is required to:
- Amend the Act to replace the Indigenous Advisory Committee with the Indigenous Engagement and Participation Committee. The mandate of the Committee will be to refine, implement and monitor the National Environmental Standard for Indigenous engagement and participation in decision-making.
- Adopt the recommended National Environmental Standard for Indigenous engagement and participation in decision-making.
- Amend the Act to require the Environment Minister to transparently demonstrate how Indigenous knowledge and science is considered in decision-making.
Further recommended is that the Commonwealth Government should;
- Immediately initiate a comprehensive review of national-level cultural heritage protections, drawing on best practice frameworks for cultural heritage laws.
- The Department of Agriculture, Water and the Environment should take immediate steps to invest in developing its cultural capability to build strong relationships with Indigenous Australians and enable respectful inclusion of their valuable knowledge.
- Through the Director of National Parks, should immediately commit to working with Traditional Owners to co-design reforms for joint management, including policy, governance, and transition arrangements.
#4 TAKEAWAY: (Recommendation 27)
Biodiversity offsets – recommended changes to the EPBC Act environmental offsets policy.
The Report recommended that the Commonwealth should reform the application of environmental offsets under the EPBC Act to address decline and achieve restoration.
The environmental offsets policy and its implementation should also be immediately improved to ensure consistency with the National Environmental Standards and offsets are ecologically feasible and deliver genuine protection and restoration in areas of highest priority.
In the first instance improvements are recommended by the following amendments:
- Biodiversity offsets can only be considered after all possible measures to avoid and mitigate the impacts of an action have demonstrably been taken.
- Offset activities must be done in accordance with the suite of National Environmental Standards and be ecologically feasible and achievable.
- Offset plans must be supported by relevant robust scientific evidence, clearly define offset activities, include time-bound milestones, outline corrective courses of action and define who will fund, manage, monitor and report on the ongoing outcomes of the offset area, including indicators and milestones.
- Offset sites must be identified and legally secured prior to commencement of the approved impact, not be used more than once and clearly demonstrate management of activities that ensure attainment and maintenance of the required improvement of indicator(s) for the duration that the migratory species, threatened species or threatened ecological community is affected by the impact.
In addition, as part of the second tranche of reform, the Act should be amended or standalone legislation passed to legislate the revised offsetting arrangements, providing the certainty required to encourage investment in restoration.
#5 and FINAL TAKEAWAY
Separate however intimately related:
In late 2020, the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Amendment Bill) was introduced to the federal House of Representatives on 27 August 2020, and to the Senate on 6 October 2020.
The key amendment proposed in the Amendment Bill is the prevention of actions the subject of an approval bilateral agreement being referred to the Commonwealth.
Not included in the Amendment Bill is the Final Report’s recommended new standards to protect Indigenous heritage and biodiversity.
Specifically, the Amendment Bill proposes a suite of amendments to the Environment Protection and Biodiversity Conservation Act 1999 to: provide that;
- where an approval bilateral agreement declares that an action in a class of actions does not require approval, the action may not be referred to the minister for assessment and approval under Part 7 of the Act;
- enable the minister to complete an assessment and approval of an action where a bilateral agreement with a state or territory is suspended or cancelled, or an approval bilateral agreement otherwise ceases to apply to a particular action;
- remove the current prohibition on approval bilateral agreements applying to an action that has, will have or is likely to have a significant impact on water resources (the water trigger);
- allow the minister to accredit a broader range of state and territory approval processes for the purposes of approval bilateral agreements;
- enable the states and territories to make minor changes to environmental assessment processes without the need for the amendment of a bilateral agreement or the re-accreditation of a management arrangement or authorisation process; and
- make technical amendments in relation to the making and operation of bilateral agreements.
At the time of writing, this amendment bill remains before the Senate, referred to a Senate committee for assessment, with their report due by June 2021.
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