EPBC ACT CHANGES –WILL THEY BE WORTH THE EFFORT?
Legislation before the Senate provides an opportunity to address declining environmental conditions in Australia. However, the emphasis has been on streamlining the approvals process and devolving federal powers to the states and territories. Unless changed, this legislation will mean that on-going causes of decline will continue and be exacerbated by forces of climate change.
Recent opposition to the Government’s proposed changes to the Environment Protection and Biodiversity Act (EPBC Act) by key cross bench Senators raises questions as to what will transpire in the New Year when Parliament resumes. Will those expecting the Bill to enact any new changes that will significantly address threats to the nation’s declining environmental conditions be disappointed? At the last meeting of the “National Cabinet” for 2020, the Prime Minister, Premiers and territory leaders emphasised the importance of streamlining approvals processes. While this may be an admirable objective in many cases, surely it is not what the EPBC Act has as its rationale—namely: environmental protection on matters of national significance (MNES).
The Wentworth Group of Concerned Scientists has long been involved in consideration of effectiveness of the EPBC Act. This included participation in the initial 10-year review (“Hawke Review, 2009). A submission was prepared for the current independent review (“Samuel Review”) drawing on knowledge of a team of scientists and lawyers seeking to ensure that the Act delivers better environmental outcomes while reducing regulatory burden and duplication for business. The Wentworth Group was invited to a Consultative Committee coordinated by the independent reviewer, Professor Graeme Samuel AC. Two Wentworth Group members, Professor Martine Maron, and I appeared before the Senate Inquiry into proposed changes to the Act on 23 November.
I began my presentation to the Inquiry by saying:
“As members of the Wentworth Group, many of us had a great opportunity in the 1990s to assist the Commonwealth in the development of the EPBC legislation. I was appointed in 1998 as Chair of the second State of the Environment report by Senator Robert Hill (SOE, 2001). I have to say that Senator Hill provided us with vision, direction, and incredible support in getting the legislation underway. It was an exciting time. We had the land and water audit going simultaneously. Senator Hill had this great vision of matters of national environmental significance. He recognised that we already had international obligations, such as the Ramsar agreement, and he recognised that we as a nation had to do better in trying to manage those areas of national significance”.
In relation to the SOE 2001 report I noted:
“It highlighted again difficulties the Commonwealth had in working with the states. The basic thrust of our report in 2001 followed that of the report in 1996—that the environment of Australia was in decline, in particular biodiversity and matters associated with water. Our report was provided in such a way that the Commonwealth attempted to make use of many of those findings, particularly with respect to the implications of land clearing and the way in which land clearing at a state level was proceeding at an extraordinarily rapid rate. It was up there in the top three or four in the world in the amount of land clearing. Hill made it very clear that these matters were matters of national significance, as we all know. Subsequent SOE reports in 2006, 2011 and 2016 have shown some improvements but also continuation of the declining trends that we were observing back then in 2001”.
Continued decline in environmental conditions has been reinforced by the conclusions published in the Interim Samuel Review Report (2020) where it states” the overall result is net environmental decline, rather than protection and conservation”.
Members of the Wentworth Group since its formation in 2002 have undertaken many studies aimed at bending back the curve of biodiversity decline in Australia. We have conducted a national environmental account survey that has been brought to the federal government’s attention. Advice on land-clearing issues has been offered to New South Wales. Work on the National Water Initiative and assessment of the Murray-Darling Basin Plan has occupied much of our time in recent years.
From that experience, we have a fairly good understanding of what is going on in respect to environmental change at various time and spatial scales. Present-day implementation of the EPBC Act is not fit for purpose in so many ways least of all because it fails to require the Commonwealth to consider cumulative impacts of development. Cumulative impacts are those which arise from many small impacts of development accumulating across a region resulting in irreparable environmental damage. For example, of the 8 million hectares of potential habitat for listed threatened species and ecological communities that was cleared in Australia between 2000 and 2017, over 93% was not referred to the Federal Government for assessment under the EPBC Act according to a study by Ward et al. in 2019. In assessing developments on a project-by-project basis, the EPBC Act fails to capture most impacts, and as a consequence, it is death by 1000 cuts for threatened species and habitat.
National standards that account for the individual and cumulative impacts of development should be in the Act to achieve three key benefits:
- Australia’s environmental laws will for the first time be capable of addressing the main causes driving species extinctions.
- There would be greater certainty and reduced complexity for businesses because all developers would be subject to a clear and consistent set of standards regardless of the location of the proposed development.
- Efforts of one state or territory to conserve matters of national significance will not be undermined by the lack of efforts of another.
The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 is currently before the Senate. This is despite the fact that the final Samuel Review has yet to be made public. The Wentworth Group argues that the Bill as presented is being rushed without due consideration of his final recommendations, as well as without appropriate requirements for evidence-based and legally enforceable national environmental standards to ensure protection of matters of national environmental significance. We also see the need for an independent body (as recommended by Samuel in his interim report) to provide assurance and compliance with the national standards and related matters of cumulative impact.
It is evident that the Commonwealth sees as top priority with this Bill the need to devolve assessment and approval powers to state and territory governments. This is so-called “streamlining” or “single-touch” approval. Such a reduction in the apparent burden on business to navigate current approval requirements is a worthy cause. Prof. Samuel found the EPBC Act to be “ineffective and inefficient”, and if that is really the case then changes must be made. But should it be at the expense of also addressing key issues that are causing “net environmental decline” to which there is no end in sight? Surely project approval processes are not the root cause of these long-entrenched trends? National Cabinet seems to think so judging from comments by the Prime Minister and some Premiers at the National Cabinet on 11 December (SMH, 12-13/12/20). Yes, there is a promise to come back to issues such as national standards. It was pleasing to see the Senate Inquiry sought more information on what improvements could be made to the Bill at this stage.
The Wentworth Group is arguing that effective national standards are needed before devolution, and as noted above, must ensure that cumulative impacts of development are accounted for in any decision. In addition, we need to be assured that states and territories will harmonise relevant legislation related to decision-making processes on MNES, and that there is an independent “cop on the beat” to facilitate such outcomes. My experience at a state government level tells me that state agencies responsible for decision making on MNES will not only need sustained consistent guidance, but also financial support from the Commonwealth. This is not happening at present in the case of arrangements by which states look after federal international obligations in the management of Ramsar wetlands.
We cannot forget that a key driver for future environmental change is global warming. Climate change has great implications with respect to habitat resilience. Fragmentation of habitats can create great difficulties in migration of species and heating and drying of our landscapes can induce increased fragility to many plant and animal communities. An example of new knowledge of change is the inflow water regime of the River Murray. This is shown in the accompanying diagram (see full report at Murray-Darling Basin Authority, (2020) Basin Plan 2020 Evaluation, MDBA publication number 50/20). Such changes in water flow have profound effects on environmental conditions. It highlights the need for flexibility in the Act to accommodate dynamic shifts in environmental conditions including areas of national/international significance such as Ramsar wetlands. Is it not time to introduce into legislation a requirement that embraces adaptive pathways in MNES including cumulative impacts? That this can be done is shown, for example, in the NSW which allows for wetland migration linked to sea level rise.
State and territory governments are having to respond to the big challenges of forces of climate change. When it comes to MNES they cannot be left to do it alone. It is now the time to recognise through reforms to the EPBC Act how best to manage MNES in a consistent, cooperative and national way, knowing that the states at the moment have many different ways of approaching these problems.
We have the opportunity now to do better as reforms to the EPBC Act are desperately needed. But the Bill before the Senate fails to address on-going causes of environmental decline which devolution and streamlining alone will not fix.
Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2020. For correspondence about this blog post please email email@example.com