Agriculture under the spotlight as its interaction with the EPBC Act is reviewed – have your say

By Nick Thomas, Nicole Besgrove

24 May 2018

A review of the interaction between the EPBC Act with the agriculture sector is considering options to reduce the regulatory burden on farmers, but could have implications for other industries as well.

The Australian Government has commissioned an independent review of the interaction of its primary environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), with the agriculture sector. Broadly speaking, its purposes are to review current regulatory settings and identify opportunities to reduce red-tape.

A targeted consultation program is currently underway with farmers, key industry stakeholders and environmental NGOs, and written submissions can be made until Friday, 15 June 2018.

The review is being conducted by Dr Wendy Craik AM, who previously has held positions as an executive director of the National Farmers Federation, CEO of the Murray-Darling Basin Commission, Commissioner of the Productivity Commission, and panellist for the NSW Government review of its biodiversity laws, which led to sweeping reforms to those laws.

It is a short-term review, with a report due in mid-2018. A full review of the EPBC Act is due to commence in late 2019.

Purposes of the Review

The Government has issued lengthy Terms of Reference for the Review, but, as stated in a Briefing Paper it commissioned, the main purposes are:

  • to provide an overview of the appropriateness of the current regulatory settings of the EPBC Act in regard to their impact on the agriculture sector, with consideration to the objects of the EPBC Act; and
  • to outline options to practically improve how the agriculture sector is regulated under the EPBC Act and to reduce the regulatory burden faced by farmers and applicants.

Interestingly, the Briefing Paper states that, although the agriculture industry has expressed concern about the EPBC Act and the way in which it is administered:

  • since the EPBC Act commenced in 2000, the number of referrals under the EPBC Act from the agriculture sector has remained consistently low, compared with referrals from other sectors;
  • most referred actions in the agriculture sector have been determined not to require EPBC Act approval – possibly because agricultural actions are likely to be routine land management activities, ongoing activities which commenced before the EPBC Act came into force in July 2000 (ie. "continuing use"), or activities which received all required environmental authorisations prior to July 2000; and
  • almost all "controlled actions" in the agriculture sector assessed in the past 18 years have ultimately been approved.

However, it appears there is a concern that difficulties in understanding the EPBC Act might be leading to under-referrals of projects to the Government for consideration as to whether approval is required.

The main issue for farmers is legislative constraints on land clearing and, while these constraints are applied mainly at the State level, the EPBC Act also restricts land clearing.

What's in and out of scope

The review will focus on terrestrial food and fibre production, in all levels of farming enterprise.

The Government's Briefing paper makes it clear that the review will not look at fisheries, forestry operations covered by a regional forestry agreements and coal seam gas development. Mining activities, particularly offsets from those activities can be considered. However, changes or proposed amendments to State and Territory vegetation management legislation will not be considered in this review.

Some opportunities for reform

The Briefing Paper offers some suggestions for possible beneficial use of the EPBC Act or potential reform. We have outlined some of these, and some other opportunities, below.

  • advanced offsets: The EPBC Act allows the Government to require offsets for impacts via conditions of approval, and, increasingly, biodiversity offsets are being required. The Government has released policy papers outlining the possibility for a landowner to establish an advanced offset, for later use in offsetting project impacts. The Briefing Paper suggests that farmers who cannot clear part so their land should consider using that land for advanced offsets.
  • species and community listings: There is long running concern about how species and ecological communities are listed as threatened under the EPBC Act, and the fact that listings of similar species or communities under the EPBC Act and State legislation are, at times, inconsistent. The Briefing Paper refers to the recent initiative of a Common Assessment Method, to align Commonwealth and State listings. So far, the NSW and ACT Governments have agreed to apply this to ecological community listings.
  • how significant is "significant"?: The EPBC Act requires proponents to assess whether their proposed activities such as land clearing are likely to have a significant impact with respect to a protected matter under the PBC Act, such as threatened species. It can be very difficult to determine whether the "likely significant impact" threshold has been met. The Briefing Paper refers to Government initiatives to clarify the threshold for activities such as paddock tree management.

    The Briefing Paper also raises the possibility of an area-wide strategic assessment, as a means of avoiding activity-specific assessments in the area. However, as the Briefing Paper points out (rightly, in our view), strategic assessments can be very expensive and time-consuming, and are not necessarily favoured.
  • one-stop shop: The Briefing Paper refers to the Government's proposal for a "one-stop shop" for environmental approvals, which was proposed in 2014. The intention was to establish bilateral agreements under the EPBC Act which would accredit State law to provide approvals which would remove the need for EPBC Act approvals, but the proposal was blocked in the Senate. The brief discussion of that initiative here suggests the Government may try to revive it, possibly as part of the EPBC Act review next year.

The bigger picture

The current review could provide real assistance for the agriculture industry, if some of the issues in the Briefing Paper and other issue within the scope of the Review's terms of reference are addressed.

More broadly, the review's recommendations could assist proponents of all kinds of activities.

In this sense, perhaps the Review offers an early indication of the Government's priorities for the full EPBC Act review next year.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.