National Environment Standards, independent enforcement and indigenous engagement 7 min read
The Final Report of the of the once-in-a-decade review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) has identified new, legally enforceable National Environmental Standards, independent oversight and enforcement, and indigenous engagement as key immediate actions required to fundamentally reform the Act.
If implemented in full, the reforms will be a significant departure from current regulation of national environmental matters and indigenous cultural heritage protection.
A total of 38 Recommendations have been made in the Final Report, with key recommendations being:
National Environmental Standards
- New, legally enforceable National Environmental Standards are the centrepiece of the recommended reforms. A full suite of National Environmental Standards are included in the report and have been recommended for immediate implementation, with further standards recommended for development over time.
- The National Environmental Standards are identified as the first step to enable state and territory accredited assessment (ie a 'single touch' approval process). It is recommended that states and territories must demonstrate, as thresholds for accreditation, that they have the capacity to deliver the outcomes of the National Environmental Standards, and the public is provided the opportunity to comment on a proposal.
Independent oversight and enforcement
- A new independent, statutory position of Environment Assurance Commissioner (EAC) is recommended to be created and be responsible for reporting on the performance of the Commonwealth, states and territories in the implementation of the National Environmental Standards;
- A new independent Office of Compliance and Enforcement within the Department of Agriculture, Water and the Environment is recommended to be created. It is recommended the new office have modern regulatory powers and tools to enable it to deliver compliance and enforcement of Commonwealth approvals, consistent with the National Environmental Standards.
Indigenous cultural heritage protection
- The immediate adoption of a new National Environmental Standard for Indigenous engagement and participation in decision-making is recommended.
- The replacement of the Indigenous Advisory Committee (IAC) with a new Indigenous Engagement and Participation Committee is recommended. The mandate of the new Committee will be to refine, implement and monitor the National Environmental Standard for Indigenous engagement and participation in decision-making.
- Further review and reform of current laws that protect Indigenous cultural heritage is recommended to ensure that laws reflect best practice requirements for Indigenous heritage legislation.
Due to the size and scale of the proposed reforms, the Final Report suggests a two-year process to implement all recommendations.
The Government has committed to engaging with stakeholders regarding the recommendations in the Final Report, and announced its commitment 'to national standards, to a single touch approval process, rigorous assurance monitoring for bilateral agreements and the modernisation of indigenous cultural heritage protection'.
In late 2020, the Government introduced the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 as a first step in the reform process which was targeted at the devolution of EPBC Act approvals to the states and territories.
Given that the proposed National Environmental Standards form the cornerstone of the proposed reforms, stakeholders should consider the proposed National Environmental Standards and take up opportunities to consult with the Government regarding its response to the recommendations in the Final Report.
When the Interim Report was released in July last year, we identified 8 key recommendations to be aware of. We outline below how those recommendations have progressed.
1 - Devolve federal functions and streamline processes
The Final Report recommends that accrediting state or territory arrangements would be on an ‘opt-in’ basis, and they should be required to demonstrate that their system operates in a way that is consistent with the National Environmental Standards.
Six steps are identified in the recommended accreditation model:
- Make the National Environmental Standards;
- Accreditation assessment – demonstration by the state / territory that it can deliver the outcomes of the National Environmental Standards and public comment is available;
- Accreditation by the Government to provide accountability and legal certainty, including a formal check by the proposed EAC;
- Transparent pathways to enable the Federal Environment Minister to intervene in a proportionate and escalating way at times when accredited arrangements are not performing well;
- Strong audit and independent oversight by the EAC; and
- Regular review - to ensure accredited arrangements are contributing to environmental outcomes.
2 - Develop National Environmental Standards
The proposed National Environmental Standards and those for further development are identified in Appendix B of the Final Report, with detailed draft recommended Standards for:
- Matters of National Environmental Significance;
- Indigenous Engagement and Participation in Decision-Making;
- Compliance and Enforcement; and
- Data and Information.
3 - Leave climate change regulation out of the EPBC Act
The Final Report confirms that the EPBC Act should not duplicate the Government's framework for regulating emissions.
However, the Final Report also recommends (Recommendation 2) that National Environmental Standards should require development proposals to explicitly consider the likely effectiveness of avoidance or mitigation measures on nationally protected matters under specified climate-change scenarios, and to transparently disclose the full emissions of the development.
4 - Introduce limited merits review
The Final Report confirms a recommendation for 'limited merits' review ‘on the papers’.
It is recommended that this type of review should be:
- available to proponents and those with standing;
- limited to the material available at the time of the original decision;
- apply to the approval decision and the application of conditions; and
- related to consideration of decisions where the exercise of discretion was incorrect in the circumstances or the decision was unreasonable in the circumstances.
The proposed outcome of the review is that it should result in either the decision being affirmed or referred to the original decision-maker with recommendations on remaking or varying the decision.
5 - Ramp up compliance and enforcement action
As identified in our key takeaways above, the Final Report recommends the creation of both the new EAC and a new independent Office of Compliance and Enforcement within the Department of Agriculture, Water and the Environment. It is recommended the new office have modern regulatory powers and tools to enable it to deliver compliance and enforcement of Government approvals, consistent with the National Environmental Standards.
6 - Consider biodiversity offsets as a last resort
The following immediate and long-term changes have been proposed to offset arrangements:
Offsets should only be acceptable:
- when they are applied in accordance with the recommended National Environmental Standards for MNES;
- where an offset plan demonstrates that they can be ecologically feasible; and
- where outcomes from offsets can be properly monitored and measured.
Amendments to the EPBC Act that require:
- offsets to be ecologically feasible and deliver genuine restoration in areas of highest priority;
- a decision-maker accept offsets that encourage restoration offsets to enable a net gain for the environment to be delivered before the impact occurs; and
- a public register of offsets for all federal, state or territory offsets sites, designated as a national interest environmental dataset.
7 - Modify water trigger
The 'water trigger' MNES (section 24D/24E) should be amended to apply only to cross-border water resources.
This amendment should occur in the second tranche of reforms.
8 - Promote use of Indigenous knowledge
The Final Report found:
The way the advice of the Indigenous Advisory Committee (IAC) is sought and taken into account by decision-makers typifies the culture of tokenism.
A National Environmental Standard for Indigenous engagement and participation in decision-making has been recommended. The Report starts that:
'The purpose of the Standard is to ensure that Indigenous Australians who speak for and have traditional knowledge of Country are empowered to participate in decision-making, and their views and knowledge are respectfully and transparently considered in the operation of the EPBC Act.'
The report further recommends that the EPBC Act should establish an 'Indigenous Engagement and Participation Committee, responsible for providing the Environment Minister with policy advice on the National Environmental Standard for Indigenous engagement and participation in decision-making, and for monitoring and reporting on the effectiveness of its implementation'.
The Report further recommends that a starting point for the review of cultural heritage protection laws is the Best Practice Standards in Indigenous Cultural Heritage Management and Legislation that has been developed by the Heritage Chairs and Officials of Australia and New Zealand, in partnership with Indigenous heritage leaders.
Stakeholders should consider the proposed National Environmental Standards and other reforms proposed in the Final Report and seek engagement opportunities with the Government to help shape the implementation of the broad-ranging recommendations that have been made.