EPBC Act review – Final Report released

Professor Graeme Samuels has released the Final Report on the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), finding that Australia’s ‘current environmental trajectory is unsustainable’ and that the ‘EPBC Act is ineffective’.

The Final Report proposes wide-ranging reforms, including the introduction of legally enforceable National Environmental Standards (NES), streamlined single-touch approval processes, strategic environmental planning and management, stronger Indigenous engagement in decision making, and increased data collection and sharing.

Snapshot

• Professor Samuels has recommended wide-ranging reforms for the EPBC Act, largely consistent with the matters considered in the Interim Report (see our earlier post here).
• The Final Report includes 38 recommendations, which will involve substantial legislative and policy reforms if they are to be achieved.
• The NES form the centerpiece of the proposed reforms and are intended to establish clear environmental outcomes for proponents and decision makers. The Commonwealth Government is currently consulting on draft interim NES and their final form will likely differ from the form proposed in the Final Report.
• Other recommendations address compliance and enforcement, devolution of approval processes, increased audit and oversight of the EPBC Act’s administration, a number of recommendations for stronger Indigenous engagement in decision making, and increased data collection and sharing.
• A strong theme of the Final Report is the need for integrated environmental management including strategic and regional planning, and mechanisms for proactive investment in environmental restoration and enhancement.
• The Final Report has recommended that reforms be implemented over the next 12 to 24 months.

Reforms are recommended to take place over the next 12 to 24 months

Professor Samuels has recommended that the proposed reforms be implemented over the next 12 to 24 months, according to three tranches of urgency as follows:

Key proposed reforms

Below are the key proposed reforms from the Final Report and their likely impacts if implemented.

1. National Environmental Standards to be introduced

The cornerstone of Professor Samuels’ recommendations is the development and implementation of legally enforceable NES.

If implemented, the NES are intended to be enacted as Regulations to the EPBC Act and will apply to both decision makers and proponents (including under a devolution of approval functions to States and Territories) .

The form of NES proposed in the Final Report introduce concepts not currently within the ambit of the EPBC Act, many of which will raise the bar for environmental outcomes to be achieved. These include:

• introducing the international law principle of non-regression (which seeks to ensure protection for the environment is not diminished over time);
• requiring that all cumulative impacts on Matters of National Environmental Significance for a project be addressed;
• requiring there to be “no net reduction” of habitat of a listed threatened species or the population, extent or condition of a listed endangered or critically endangered ecological species or community; and
• requiring biodiversity offsets to be “ecologically feasible”.

Draft interim NES are currently being developed by the Commonwealth Government and are expected to differ from the form in the Final Report.

Importantly, the Final Report envisages the NES as the foundation for strategic and proactive environmental planning and management, including investment by Government in environmental restoration and the development of market mechanisms to encourage private investment in environmental outcomes that support achievement of the NES environmental objectives.

What this will mean if implemented: the introduction of the NES could create better environmental outcomes, but may create some uncertainty initially and will require an appropriate transitional period. It is expected that the final NES would require further development as other elements of the proposed reform package are progressed

2. Third-party standing provisions to remain

The Final Report has retained current third-party standing provisions in the EPBC Act, finding there to be insufficient evidence to support claims of ‘lawfare’. The Final Report proposes mechanisms for transparency and independent advice on adequacy of information provided to a decision-maker to enhance confidence and reduce reliance on court processes to discover information.

Professor Samuels has also recommended the introduction of limited merits review for development assessment and approval decisions under the EPBC Act. The Final Report found that legal challenges should be focused on issues that may have a material impact on outcome, rather than on matters of process.

Merits review would allow appeals on the grounds of incorrect discretion or unreasonableness in the circumstances. Appeals on a merits review basis would be limited to a set time frame, to information available at the time of the original decision, to matters likely to have a material impact on environmental and heritage outcomes and where there is a reasonable likelihood of the matter proceeding to hearing.

What this will mean if implemented: The Commonwealth has previously called for standing provisions to be constrained, and has made no comment on the topic since the Final Report’s publication. There is uncertainty as to whether the Government will implement the recommendation or go against it to limit third-party standing provisions.

3. Proponents would have to disclose "full emissions" of a development

While Professor Samuels has maintained the position in the Interim Report that a climate change trigger is not necessary, the Final Report has recommended that the NES require proponents to require development proposals to explicitly consider the likely effectiveness of avoidance and mitigation measures under specified climate change scenarios, and to “transparently disclose the full emissions” of a proposed development.

What this will mean if implemented: No detail is provided as to which climate change scenarios might need to be considered, nor what disclosure of emissions might be required. If implemented, proponents will have to carefully consider emissions resulting from developments (possibly including down-stream emissions).

4. Enhanced involvement of Indigenous peoples

The Review has strongly recommended the inclusion of Indigenous peoples’ knowledge and science within the EPBC Act and environmental management. Recommended reforms include:

• establishing a new Indigenous Engagement and Participation Committee (IEP Committee) to replace the existing Indigenous Advisory Committee. The IEP Committee would have a stronger formal role and be responsible for implementing and monitoring Indigenous engagement and participation in decision making.
• requiring the Environment Minister transparently demonstrate how Indigenous knowledge and science is considered in decision-making.
• a review of national laws for protection of Indigenous cultural heritage

What this will mean if implemented: These reforms would see greater collaboration and partnership with Indigenous peoples during EPBC Act processes, with practical biodiversity conservation and environment protection outcomes

5. Improve data availability

Professor Samuels has maintained the position in the Interim Report that a “national supply chain of information” will deliver better quality information to the public, proponents and governments, leading to better decisions and faster, lower cost assessments. A NES has been developed and annexed to the Final Report in respect of data and information, and Professor Samuels recommends that it should be immediately implemented to identify, prioritise and manage high-value and critical datasets.

What this will mean if implemented: The Commonwealth would be responsible for ensuring that a national environmental information supply chain Custodian is assigned and provided with appropriate technical and policy support. The other NES would be supported by this the data and information NES to provide certainty and consistency for environmental assessment under the EPBC Act. While improved data availability would be beneficial for both proponents and decision makers, adequate funding and resources will be necessary to implement this recommendation

On 1 April 2019, amending legislation commenced that gave effect to significant reforms to the financial assurance regime in Queensland, which will require most operators to make ongoing and regular contributions to a pooled fund scheme, to be administered by the Scheme Manager. All existing financial assurance was deemed to be ERC and mining companies have been transitioning into obtaining formal ERC decisions and obtaining risk category allocation decisions from the Scheme Manager that together determine how a mining company will provide financial security for their operations.

6. Devolution - accreditation of State and Territory processes

The first recommended step for reform is that the NES be established and enforceable with stable accreditation settings and independent oversight to underpin existing bilateral agreements with the States and Territories. In the longer term, Professor Samuels recommends that the EPBC Act should be amended to fully replace the bilateral agreements going forward.

What this will mean if implemented: In a media release on 28 January 2021, Commonwealth Minister for the Environment the Hon Sussan Ley MP said that, “All state and territory leaders agreed the immediate priority was to implement single touch approvals by passing legislation to streamline approval processes and to develop national environmental standards reflecting the current requirements of the EPBC Act”. In August 2020 the Government introduced the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Bill) (currently before the Senate), which provides for amendments to strengthen bilateral agreements under Part 5 of the EPBC Act and better support the devolution of approvals functions to the States and Territories. The Bill’s intended ‘single touch’ approach is consistent with the Final Report’s recommendation, although does not address other recommendations for the Final Report, such as NES or the independent Environment Assurance Commissioner to ensure accredited parties are capable of meeting the NES.

7. New roles and statutory bodies

The Final Report has recommended the immediate establishment of an array of new and recast statutory bodies. These include:

• Office of Compliance and Enforcement: to deliver compliance and enforcement outcomes consistent with the NES.
• Environment Assurance Commissioner: to provide independent monitoring, auditing and reporting on the operation and performance of Commonwealth and accredited decision-makers according to the NES.
• Ecologically Sustainable Development Committee: to provide advice on planning for and implementing the NES, amongst other responsibilities.

What this will mean if implemented: While the introduction of new statutory bodies may assist in improving environmental outcomes and trust in the EPBC Act, the effectiveness of these new bodies will ultimately depend on funding and resources allocated to them

By Peter Briggs, Partner, Heidi Asten, Partner, Melanie Debenham, Partner and Madeline Simpson, Special Counsel.

Assisted by Michael Bidwell, Solicitor, Brigitte Rheinberger, Solicitor and Andrew Mahler, Clerk.