Preview of new nature laws reveals both promise and problems

Last week, HSI Australia joined the two-day stakeholder ‘lock up’ to preview some of the proposed elements of our new nature laws. Our take? There are a number of features that, if done well, have good potential to drive the transformational change we’ve been asking for. Unfortunately, as it’s currently being drafted, there are too many ways to avoid strict protections for nature and there are still some major gaps—climate change being the most obvious. 

Potential for wins for nature  

It’s clear that the current Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is no longer fit for purpose and Australia is facing an extinction crisis. That’s why we’ve welcomed the Government’s commitment to revitalising our national environmental legislation and preventing new extinctions. Ensuring these goals are achieved will require laws that put nature first.  

The key positives for nature in the documents we saw last week include introducing a definition of ‘unacceptable impacts’ in the laws and introducing National Environmental Standards to guide decisions made by a new Environment Protection Australia (the EPA). The majority of decisions will be made by the CEO of the EPA, which is something we have been asking for for many years and is very welcome. We look forward to seeing further detail on how the EPA will be established and operate in future consultations. 

Defining ‘unacceptable impacts’ 

Under the new laws, the CEO of the EPA will not be able to approve projects that have an unacceptable impact on nature. That is a huge step forward.  

Unfortunately, there were some key definitions missing in the information we were given, so it wasn’t possible to tell what will actually be captured by the concept of ‘unacceptable impact’ for all protected matters. We need to ensure that ‘unacceptable impact’ captures everything it should. 

The concept of ‘Critical Protection Areas’ 

For threatened and migratory species and ecological communities, there is a new concept in the laws— ‘Critical Protection Areas’. It will be unacceptable to adversely impact Critical Protection Areas or reduce the viability of a species or ecological community in the wild. This is another positive step but there remains some ambiguity in the definitions which needs to be removed to ensure strong protections.  

National Environmental Standards 

National Environmental Standards will guide decision making to ensure that for projects that are not deemed unacceptable upfront, proposals will only be allowed to proceed where they can meet the Standards. We were told in the consultation that some of the key elements of what was originally proposed for National Environmental Standards will now be in the main legislation (which we support), but those elements weren’t available during this consultation, so it’s currently difficult to know how effective the Standards will be. Of significant concern is that the decision maker must only be ‘satisfied’ that a project is not inconsistent with the Standards. Using the term satisfied in this way means that decision makers are only held by their belief or opinion, not an objective test. That’s not something we can support. 

More work is needed to hear community voices and fix offset systems 

When projects are being assessed they will go through a new pathway—either a low impact pathway for projects that are not likely to have a significant impact on protected matters, or a standard pathway for those that may have a significant impact.  

Community consultation standards are worrying 

Another key change is that companies will have to do their own community consultation before submitting their application to the EPA. We understand that the intention is to ensure the community have an opportunity to have their say early in the process, but we have some very significant concerns with the proposed community consultation standard: 

• There are very few mandatory requirements for this process; 
• What will be consulted on won’t necessarily be the final application that will be submitted to the EPA;  
• The company is the one responsible for deciding who to consult with and then summarising community consultation (although they will have to provide the original submissions as well);  
• There were no provisions for allowing consultation without sharing confidential information with the proponent; and 

• There appears to be no requirement for the EPA to take community feedback into account directly when making an approval decision. If this is carried through it would be a retrograde step from the current situation.  

We recommend the Government follows the previous advice given to them by Places You Love, led by Environmental Defenders Office and the Wilderness Society, on what a good community consultation standard would look like. 

Offset payments don’t have to be directed to the species/community impacted 

Once a proposal has been through the assessment pathway, there is a consideration of whether any residual significant impacts must be offset. The draft offset standard we saw last week includes some good principles for companies sourcing their own offsets, however it also provides the alternative of making a conservation payment to Government. This system includes a process by which this payment doesn’t have to be spent on the threatened species or ecological community being impacted by the development. This is a significant weakening of the current offset system and is one of the key risks in the new framework so far.  

Planning for recovery 

We also previewed how conservation planning is shaping up, including that there will be ‘recovery strategies’ and ‘threat abatement strategies’. ‘Recovery strategies’ will replace current recovery plans and conservation advices. There will be three core elements: 

• Recovery action statements: outline priority proactive actions; 
• Management advice statements: provide guidance for appropriate management; 
• Protection statements: a regulatory component to support decision making on developments, which will include, for example, Critical Protection Areas for a species.  

Protection statements will inform what is captured in the definition of ‘unacceptable impacts’ and will inform National Environmental Standards, but it’s not clear that protection statements will be mandatory. That’s a significant problem. 

Protections must not be undermined 

There are two proposed pathways by which the Minister can take a decision away from the EPA, one is stronger than the current system and one is weaker.  

The stronger pathway is the National Interest Exemption which is being tightened to only relate to emergencies or threats around defence or national security and nationally significant harm, and is time limited. The new system will also allow the Minister to impose conditions as part of the exemption. Given past abuses of the National Interest Exemption to approve significant impacts on threatened species of flying-fox and shark, this tightening of the loophole is very welcome. 

However, we are extremely concerned about the second pathway, the so-called ‘call-in’ power. It allows the Minister to take any decision away from the EPA and approve projects that will have unacceptable impacts and not meet National Environmental Standards. Such huge discretion does not belong in our environmental laws. 

Where to from here? 

We’ve been told we can expect to see the actual legal drafting for the reforms previewed so far, as well as proposals for some other aspects of the laws, in early December. We’ll be looking to ensure that the concerns we’ve identified above are addressed and that the new components of the laws we preview are strong. There’s still a long way to go until we see new laws introduced into Parliament. HSI will keep working hard to ensure the new laws are designed to stand up to vested interests and to put nature first.