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23 Jul 2020

Samuel Review's Interim Report: national environment law needs reform both wide and deep

By Karen Trainor, Brendan Bateman, Claire Smith, Nick Thomas, Sallyanne Everett, Damien Gardiner, Kathryn Pacey, Brad Wylynko, Kate McLean and Jessica Howe

Legally enforceable National Environmental Standards are a key foundation of the Samuel Review's interim proposals for fundamental reform of national environmental law.

The Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), released on 20 July 2020, sets out preliminary views on the EPBC Act and how it operates. The Interim Report recommends profound reform directions with a view to increasing trust in national environmental laws, and providing efficient regulation.

What's recommended in the Interim Report

National Environmental Standards

The Interim Report recommends the introduction of legally enforceable National Environmental Standards as a cornerstone of the proposed reforms. The proposed National Environmental Standards will serve two fundamental purposes:

  • improving outcomes for Australia's biodiversity and heritage and ensuring development is sustainable over the long term by delivering strong, clear and nationally consistent obligations; and
  • creating a more efficient, accessible and transparent regulatory system, reducing assessment timeframes and supporting devolution of assessment and approval roles to the States and Territories where appropriate.

As a starting point, the Interim Report proposes that the National Environmental Standards should include requirements relating to:

  • ecologically sustainable development;
  • matters of national environmental significance (MNES);
  • transparent processes and robust decisions, including:
    • community consultation;
    • adequate assessment of impact, including climate impacts on MNES;
    • emissions-profile disclosure;
    • judicial review;
  • Indigenous engagement and involvement in environmental decision-making;
  • data and information;
  • environmental monitoring and evaluation of outcomes;
  • restoration and recovery; and
  • wildlife permits and trade.

These proposed requirements are based on key principles such as prevention of environmental harm and non-regression, and have been developed using existing policies, commitments and requirements of Commonwealth law.

Reducing duplication in approvals

The Interim Report recommends that a model for accreditation of States and Territories to determine applications for EPBC Act approvals be implemented, under which EPBC Act responsibilities would be devolved to States and Territories who can demonstrate that their systems can deliver environmental outcomes consistent with the proposed National Environmental Standards.

The Commonwealth would retain an essential role in setting the National Environmental Standards (in consultation with the States and Territories), providing and administering the terms of State and Territory accreditation, providing assurance oversight, and retaining step-in rights.

Protection of Indigenous culture and greater Indigenous involvement in decision-making

The Interim Report recommends that the proposed National Environmental Standards include a specific standard on best practice Indigenous engagement, to ensure that Indigenous Australians who speak for and have Traditional Knowledge of Country have a proper opportunity to contribute to decisions made under the EPBC Act. It also recommends that the role of the Indigenous Advisory Committee be recast, with the EPBC Act establishing an Indigenous Knowledge and Engagement Committee, responsible for providing the Commonwealth Minister with advice on a standard for Indigenous engagement as part of the proposed overarching National Environmental Standards.

Focus on restoring the environment

The Interim Report finds that the operation of the EPBC Act needs to shift from permitting gradual environmental decline, to halting decline and restoring the environment, which will allow development to continue in a sustainable way. It says active mechanisms are required to restore areas of degraded or lost habitat to achieve net environmental gains. Under the current arrangements, as a condition of approval, an environmental offset  can be required to protect areas similar to that which has been destroyed or damaged.

The Interim Report has identified opportunities for national leadership outside the EPBC Act that can enhance environmental restoration and which should be considered, including:

  • leveraging existing markets, including the carbon market, to help deliver restoration; and
  • greater collaboration between governments and the private sector, to encourage investment in both in the environment directly, and in innovation to bring down the costs of environmental restoration activities.

Federal Government response to the Interim Report

Following the release of the Interim Report, Minister for the Environment Sussan Ley has confirmed that the Commonwealth will prioritise the development of new National Environmental Standards, streamlining approval processes with State governments, and national engagement on indigenous cultural heritage. Minister Ley plans to introduce relevant legislation in late August 2020.

Other “priority areas” which the Minister has highlighted in response to the Interim Report include:

  • commencing discussions with “willing states” to enter into agreements for “single touch approvals” – “removing duplication by accrediting states to carry out environmental assessments and approvals on the Commonwealth’s behalf”; and
  • exploring market-based solutions for better habitat restoration which will significantly improve environmental outcomes while providing greater certainty for business, and establishing an environmental markets expert advisory group to assist in this process.

What didn't make the cut?

Full merits review

The Interim Report sets out the current framework for legal standing to commence Court proceedings and reviews under the EPBC Act. While the Interim Report does not conclude whether the current, broad standing rules under the Act should be curtailed, it has advised that provision for a full merits review should not be introduced. This, it says, is because opening decisions on appeal or review to the admission of new documentation or materials for consideration delays decisions without necessarily improving outcomes.

GHG trigger, and additional triggers generally excluded

While many submissions to the Interim Report suggested that the EPBC Act should be expanded to include a greenhouse gas trigger, and other additional triggers, the Interim Report does not agree that the triggers within the Act should be broadened. The Interim Report states that the remit of the EPBC Act should not be expanded to cover environmental matters that are State and Territory responsibilities, as to do so would result in muddled responsibilities, duplication and inefficiency. The Interim Report recommends that the EPBC Act should focus on the places, flora and fauna that the Commonwealth is responsible for protecting and conserving in the national interest.

Water trigger to remain

Despite a number of submissions to the Review advocating for the removal of the water trigger, the Interim Report has recommended that the water trigger be retained with modifications, including that the trigger be limited only to projects that risk irreversible depletion or contamination of cross-border water resources. The Interim Report also recommends that the water trigger is specifically addressed in the National Environmental Standards, with clearly defined key terms.

What's next for the Interim Report?

Comments are invited on the Interim Report until 9am Monday, 17 August 2020.

The Environment Minister has flagged legislative amendments to support the introduction of national environmental standards, devolutions and engagement on indigenous cultural heritage will be introduced towards the end of August 2020.

Professor Samuel’s Final Report, including recommendations to government, is due to be delivered to the Minister for the Environment by 31 October 2020.

Click here to read the Interim Report and have your say.

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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.