25 Jul 2019

Report recommends clarifying EPBC Act operation and more opportunities for biodiversity offsets

By Nick Thomas, Nicole Besgrove

There will be a bigger focus on EPBC Act compliance, especially for the agriculture industry, and more opportunities for biodiversity offsets, if the Australian Government adopts the recommendations in a recently released report.

An independent report to the Australian Government has found that the agricultural sector does not understand the EPBC Act, or is disincentivised to refer agricultural actions under the EPBC Act, and recommends changes to improve environmental protection in agricultural activities.

The recommendations, if adopted, would affect not only the agriculture industry but a wide range of other industries as well.

The Australian Government commissioned Dr Wendy Craik, a highly regarded agricultural expert and government administrator, in May 2018 to undertake an independent review of its primary environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and the EPBC Act's interaction with the agriculture sector.

We previously examined the purpose and scope of the independent review, which involved targeted stakeholder consultation with farmers and farmer representatives in a range of locations around Australia. Consultation closed in June 2018 and a Final Report was provided to the Government dated 28 September 2018.

Now almost 10 months after it was finalised, the Government has released the Final Report ahead of its statutory review of the EPBC Act which is due to commence no later than October 2019.

The Craik Report's main findings

The Final Report found that farmers mostly interact with the EPBC Act in relation to nationally threatened species and ecological communities, which is one of nine current matters of national environmental significance (MNES) which the EPBC Act approval scheme is designed to protect.

The Final Report identifies a number of concerns that were raised during the consultation process about the operation and application of the EPBC Act to the agricultural sector, including:

  • a need for more clarity in the overarching objectives for regulating agricultural activities;
  • a need for better awareness in the agriculture sector of its obligations under the EPBC Act and, for those who are aware, an need for better understanding of how to address those obligations;
  • a need to reduce complexity and cost associated with the existing environmental impact assessment and threatened species and ecological communities listing processes, so they better address "the realities of agriculture" and incentivise farmers to engage with the EPBC Act (including referring their agricultural activities for approval);
  • a need for more strategic approaches to assist the agriculture sector and maintain high environmental standards; and
  • a need for more funding to provide effective assistance to proponents in the agriculture sector, to improve EPBC Act compliance.

Recommendations to improve agriculture's understanding of the EPBC Act

The Final Report makes 22 recommendations, which if fully implemented, Dr Craik believes will "deliver practical benefits for agricultural development and environmental protection in Australia". The recommendations fall within four categories:

Awareness and understanding: Recommendations 1 to 7 relate to improving the agriculture sector's awareness and understanding of the EPBC Act and how it applies to agricultural activities. The recommendations include:

  • better collaboration between agriculture sector experts and environment and biodiversity experts to identify innovative practices and activities as well as area of prospective agricultural growth, and
  • more agriculture sector specialisation within the Department of the Environment and Energy (DoEE), including case officers to manage referrals of proposed activities from the agriculture sector for determination on whether EPBC Act approval is required..

Listing and delisting: Recommendations 8 to 11 propose amendments to the EPBC Act listing process for species or ecological communities.  Key outcomes would be:

  • a requirement for public consultation before a decision is made to list the species or ecological community;
  • agricultural expert representation on the body responsible for listing, the Threatened Species Scientific Committee;
  • consideration of the impacts of a proposed listing on the agriculture sector; and
  • risk-based ground-truthing of conservation advices and recovery plans for listed species and ecological communities before those advices and plans are finalised.

Environmental impact assessment: Recommendations 12 to 16 are aimed at improving the environmental impacts assessment process.  They include:

  • specifying the acceptable survey methods for proponents assessing the potential impacts of their proposed activities;
  • allowing a professional association to accredit environmental professionals to carry out EPBC Act assessments, though non-accredited experts could also carry out assessments;
  • establishing an online tool for an automated processing of decisions that an activity does not need EPBC Act approval;
  • improving harmonisation of environmental offset assessment methods between the Commonwealth, State and Territories, either by developing a common assessment method for offsets or developing a Commonwealth standard for offset assessment methods that States and Territories can choose to meet by seeking accreditation; and
  • allowing a proponent to request that the Commonwealth Minister revoke, vary or add conditions of an EPBC Act approval where an existing condition:
    • is no longer relevant;
    • is establishing a perverse outcome;
    • cannot reasonably be undertaken due to changing circumstances or new information; or
    • could be undertaken in a more cost-effective manner.

Strategic approaches and new initiatives: Recommendations 17 to 22 provide recommendations of  non-regulatory tools aimed at enhancing the protection of MNES and reducing the regulatory burden on the agriculture sector. These include:

  • establishing a system to enable access to and re-use of data collated for referrals of proposed activities to DoEE, to save proponents time and money on later referrals and assessments;
  • a national review of approaches to EPBC Act environmental offsets and advice on their effectiveness in achieving stated objectives;
  • development of a common assessment method for EPBC Act environmental offsets; and
  • establishing a National Biodiversity Conservation Trust Fund to support the protection of MNES through adoption of a market-based approach that incentivises farmers and other proponents to protect and actively manage MNES outside of the legislative requirements.

How the Craik Report fits into the Government's plans

The Australian Government has not yet indicated how it will respond to the recommendations.

However, the Government is due to review the EPBC Act starting no later than October 2019, because the EPBC Act itself requires that it be reviewed at least every 10 years, and the recommendations from the independent report will be considered as part of that review process. This is likely to not only have implications for not only the agriculture sector but for proponents of all types of activities.

If you would like any more information about the Final Report or to understand your organisations obligations under the EPBC Act, please contact us.

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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.