Last week, the federal Government announced the most comprehensive set of proposed reforms to Australia’s national environmental laws since the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was first introduced. The Government’s ‘Nature Positive Plan: better for the environment, better for business’ formally responded to the findings and recommendations of the second 10-yearly independent review of the EPBC Act by Professor Graeme Samuel AC (Samuel review), which was submitted to the Government in October 2020 and released to the public in January 2021.
In this article we provide an overview of the key reforms set out in the Nature Positive Plan, in particular the development of National Environmental Standards (Standards), the establishment of a new federal Environment Protection Agency (EPA) and a system for single touch approvals, as well as reforms to environmental offsets and the creation of a nature repair market, and what they could mean for industry in years to come.
The Government adopted the key recommendation of the Samuel review, being to develop and implement a set of Standards to underpin the operation of the EPBC Act by setting out the environmental outcomes that the EPBC Act seeks to achieve. The Government has said that its first priority will be to develop the Standard for Matters of National Environmental Significance (MNES), using the MNES Standard contained in the final report of the Samuel review as the starting point for public consultation. Standards relating to First Nations Engagement and Participation in Decision-Making, Community Engagement and Consultation, Regional Planning, and Environmental Offsets will next be given priority. A Standard for Compliance and Enforcement will follow the establishment of the new federal EPA, and a Standard for Data and Information will follow the establishment of the Data Division.
All Standards will be enshrined in legislation and will be subject to regular review. They will apply to all decision-making under the EPBC Act and will be administered and enforced by the federal EPA. Any future amendments to existing Standards will be able to strengthen, but not weaken environmental protection.
The Government will establish a federal EPA to be responsible for approvals, compliance and enforcement under the refreshed EPBC Act. The EPA’s regulatory functions will be funded according to a cost recovery, ie user pays, model. The core responsibilities of the federal EPA will be to:
The Minister will retain a power to ‘call in’ any decision that would otherwise be made by the EPA, as well as to approve proposed developments that would have an unavoidable negative impact on MNES, but only where this would be clearly in the national interest. Although the Minister will be able to issue the EPA with a public Statement of Expectations, she will not otherwise be able to direct the agency. The Minister will retain responsibility for policy, regional planning and Standard-setting activities under national environmental law.
States and territories will be able to apply to become accredited under the EPBC Act to allow for single touch decision-making. The Minister will be responsible for deciding whether to accredit a state or territory to carry out environmental assessments and make approval decisions, which will require compliance with the Standards, and full transparency of environmental performance data and decision-making. The Government has said it will work with the parties to existing accredited arrangements and agreements to integrate the new Standards and requirements into their processes. At present, assessment bilateral agreements are in place with all states and territories, however there are no approval bilateral agreements.
To further streamline environmental assessment under the EPBC Act, the Government will rationalise the six existing pathways for assessment of proposed developments to implement a new, risk-based approach. For proposed development that clearly requires detailed assessment, the Government has said it will explore options to advance straight to assessment and bypass the referral phase.
The Government will introduce a new hierarchy applying to environmental offsets which will be strictly enforced. Proponents will be required to demonstrate that they have made attempts to avoid and mitigate harm to MNES before resorting to environmental offsets. Where they are unable to find or secure like-for-like offsets which deliver a net benefit for MNES, they will be permitted to make a conservation payment. Conservation payments will be priced according to the cost of like-for-like habitat restoration (including land value) and management, and an additional premium designed to address risks and ensure an overall environmental benefit from the proposed development. Payments will be made to and invested by a body such as an independent government trust, eg the NSW Biodiversity Conservation Trust. To provide certainty and confidence in the application of offsets, a Standard for Environmental Offsets will be developed. A National Environmental Offsets System will be released by the end of 2022, which will track and report on the use and delivery of environmental offsets.
Under current settings, it is difficult for proponents and investors to invest in nature or establish offsets without some form of land ownership or tenure. Usually offsets will be established through the purchase of land or entry into bespoke contracts with landholders. In recognition of this issue, the Government will establish a nature repair market to make it easier for individuals and businesses to invest in nature. Along with the carbon market, it will be subject to regulation by the Clean Energy Regulator, and once it is operating effectively, the EPA may permit certain types of market projects identified through the nature repair scheme to be used to meet approval obligations.
To give project proponents greater certainty by providing clear indicators of conservation priorities and where development impacts will largely be prohibited, the Government will implement a new regional planning system. Regional plans will be built around a new three-tiered map designed to pre-identify areas for protection, restoration and sustainable development. Land will be mapped as either Areas of High Environmental Value, where development will largely be prohibited, Areas of Moderate Environmental Value, where development will be allowed subject to approval, or Development Priority Areas, where development can proceed without a separate EPBC Act approval. The meaning of the term ‘High Environmental Value’ will be the subject of specific consultation.
The Minister will be required to approve regional plans following a negotiation with relevant states or territories, as well as regional natural resource management bodies and local government. The Government will work with state and territory governments to identify locations for initial regional plans. Priority areas for consideration will be those experiencing development pressure and with high biodiversity values, eg urban growth areas, renewable energy zones and future development areas. Once they are in place, individual projects will need to demonstrate compliance with applicable regional plans.
In addition to the above headline reforms, the Government has committed to a range of other reforms, including:
The Nature Positive Plan is the first step in a process of consultation and discussion. The Government has said that a package of new national environmental legislation will be prepared in the first six months of 2023 to implement the reforms, and stakeholders will be given an opportunity to comment on an exposure draft Bill, along with the draft Standard for MNES. In 2023, the Government has committed to focussing on the development of the MNES Standard, the design of the federal EPA, including the development of an appropriate cost recovery model, and working with states and territories to identify initial locations for regional plans.
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