Federal government reacts to Samuel’s review of the Commonwealth Environment Protection and Biodiversity Act 1999
The federal government has now issued its formal opinion on the independent report by Professor Graeme Samuel (the review) of the Commonwealth Environment Protection and Biodiversity Act 1999 (EPBC law). Professor Samuel’s final report was published in October 2020.
The Minister of Agriculture, Water and Environment, Sussan Ley, issued the government’s response in June 2021, entitled “A Way to Reform National Environmental Laws”.
Corrs has followed the review and reform process. Previous Corrs articles can be read here:
Key review recommendations adopted by the federal government
The answer accepts the key pillars of reform recommended by the review. Additional Pathway for Reform reports will be released as the process progresses. These “central pillars” of the review to be implemented by the government in the first phase of reforms relate to the following:
- the accreditation of states and territories for the issuance of EPBC Act approvals, known as “single-touch approvals” that are substantiated;
- new national environmental standards; and
- the creation of a new position of environmental officer (EAC) to independently monitor the performance of the accreditation system and the application of the standards.
Legislation to achieve this first stage is currently before the Commonwealth Parliament.
Regarding the recommended standards, partly designed by Professor Samuels and his team, the answer says:
“The detailed standards developed by the review go well beyond the existing requirements of the EPBC law and are inconsistent with the National Cabinet’s agreement to develop preliminary standards in line with the current law.”
As mentioned in the second Corrs article mentioned above, while the government accepts the idea of national environmental standards to inform bilateral accreditation and assessment processes, it does not necessarily agree with what the review suggests as the content of the standards.
One example is the principle of “non-regression”, which was recommended by the review to be included in the overarching standard. It was not included in the first draft standard proposed for adoption. The repeated emphasis on “recovery” measures and strategies in the review was not repeated in the response. But that doesn’t mean it will be ignored over time.
Regarding the accreditation of states and territories so that, as we have noted in previous articles, they can issue EPBC Act approvals, the attempt in 2014 to achieve this failed. Although a new draft law has now been submitted to parliament to make this possible, it is again the subject of controversial debate, as some fears that the states will not fulfill this function.
This time around, however, there are some significant differences. First, the pending legislation requires states to demonstrate that they are able to adequately commit to and apply the standards before they can be accredited. Second, the effectiveness and integrity of the one-touch approval system will be monitored and verified by the new EAC. However, the EAC will not play a role in the assessment and approval of individual projects.
The response also requires the Commonwealth government to undertake regional planning (one of the recommendations of the review) to help better siting and evaluating projects. The intention is to identify a region where this particular type of regional planning can be tried out in partnership with a willing state or territory.
In following this recommendation, the minister was quick to point out that regional planning is already a feature of the EPBC law, in a number of ways, including:
- Strategic assessments;
- Bioregional plans; and
- The Geological Bioregional Assessment Program.
It remains to be seen what questions such regional planning will address.
Digital transformation to accelerate environmental permits and share information
The response highlights the Commonwealth Government’s existing commitment and funding for the digital environmental assessment program. Although the initiation of this program preceded the final review report, its purpose is in line with some of the review’s recommendations.
It is intended that the program will provide consolidated online sources of biodiversity information and result in an optimized digital environmental assessment system. The program’s pilot project is expected to be completed in mid-2022.
New committee for sustainable development
The review recommended the establishment of an overarching committee for sustainable development to oversee and advise the new environmental standards and perform other coordination and advisory functions.
The reply acknowledges that, while this proposal is legitimate, further reflection and consultation on the role and function of the committee is needed.
Improve indigenous people’s engagement and participation in decision-making
The review made a number of recommendations to improve the participation of indigenous peoples in decision-making, including through a new environmental standard, improving the joint management of national parks and improving national laws on cultural heritage.
The response commits to working with indigenous communities on two of these issues, but makes no mention of a proposed review or reform of existing national heritage laws.
What the answer leaves out
The review contained 38 recommendations. The answer obliges the Commonwealth to accept or further examine a significant number of them. However, some recommendations were not mentioned in the answer. They include:
- Streamlining the assessment pathways to enable a risk-based assessment approach appropriate to the magnitude of the impact on matters of national environmental concern (MNES). However, we note that the Commonwealth Digital Environmental Assessment Program mentioned above has the potential to contribute to such an approach;
- Limiting the application of the water MNES (which applies to large coal mines and coal seam gas projects) so that it only applies to transboundary water resources;
- Introducing a limited performance review for project approval decisions – likely always very controversial; and
- improved monitoring and enforcement.
So what will change and when
The creation of a limited set of new interim national environmental standards and the accreditation of states and territories to grant permits under the EPBC law are likely to come soon (subject to the passing of the bills at the moment by parliament).
However, the preliminary standards are unlikely to have a material impact on the evaluation of proposals under the law. This is because the government’s preferred approach is for the preliminary standards to reflect the existing requirements of the law. One wonders why they are even introduced if they don’t “add” anything. However, over time, the standards can be expected to evolve in ways that could significantly affect the assessment.
State accreditation in order to be able to issue EPBC approvals cannot be imposed on any particular state. Even if the current Facilitation Act is passed, there is no guarantee that every state will take the opportunity. However, unlike 2014, it looks like this will soon become a reality.
The position of an EAC is likely to be created before Parliament soon after the Enabling Act has been passed. However, as this position will be more concerned with monitoring and auditing states ‘accreditation and the performance of this system than with evaluating individual projects, it is unlikely to be much perceived by advocates and stakeholders other than the countries’ environmental agencies and administrations more decentralized accredited assessment and approval functions.
It will be interesting to follow the progress of the proposed regional planning process and the Commonwealth Digital Environmental Assessment Program, as both have the potential to influence and hopefully improve existing assessment systems under the law.
Corrs will continue to monitor and report on the reform agenda of the Commonwealth of Nations EPBC law.