New environment laws could help or harm nature depending on the minister

Australia’s national environment law has failed to stop the loss of unique ecosystems, plants and animals over the past 25 years.

At the same time, a long wait for development approvals via the Environment Protection and Biodiversity Conservation (EPBC) Act has frustrated the business community.

The current process of rewriting the law may end up being just as frustrating for stakeholders as Environment Minister Murray Watt aims for what he calls a balanced package that delivers gains for the “environment and business”.

Clear lines are needed if the legislation is to improve the lot for our natural treasures and species threatened with extinction.

But as it stands, key mining and conservation stakeholders are uncertain about what these lines will be.

The current legislation has long been criticised by conservationists for not seeking outcomes that benefit the environment and the discretion it grants environment ministers, allowing them to override recommendations from their own department.

The proposed changes keep decisions firmly in a minister’s hands while trying to legislate a limit to destruction.

This has the miners worried they may be burdened with more green tape preventing development, while conservationists worry crucial ecosystems will still be destroyed.

The new bill also introduces a “restoration fund” that has come under scrutiny for potentially and perversely allowing further destruction to habitats.

Determining ‘unacceptable impacts’

Two key tools were introduced in draft laws, tabled last week in parliament, that aim to improve environmental outcomes.

One is the principle of having “net gains”.

That means any damage to nationally important environmental values is not just offset by buying land with similar habitat, but actually creating more.

The second tool creates several categories of “unacceptable impacts” for environmental destruction that cannot be offset, so should not be touched.

The existing legislation had no definition of what was unacceptable, leaving it completely up to the interpretation of the minister.

Theoretically, the new categories should mean proponents are quickly refused for projects that are seen as too damaging to the environment.

That is compared to current laws, where projects that have applied to alter parts of World Heritage sites, for instance, have seen the wait for a refusal range from one month to more than six years.

To speed things up, the new legislation for an unacceptable impact to a World Heritage site is defined as: 

A significant impact that causes, will cause, or is likely to cause, loss, damage or alteration to part or all of the World Heritage values.

Another category covering threatened species says it is unacceptable to “seriously impair” its viability or do “serious damage” to irreplaceable habitat. (In the 10 years to 2021, about 200,000 hectares of threatened species habitat was approved for destruction under the EPBC Act.)

Mr Watt told Insiders on Sunday these provisions would stop people from drilling the Great Barrier Reef or driving a species to extinction.

“If there was conclusive evidence that a particular project was going to drive a species to extinction, then without wanting to prejudge a future decision, I think it’s likely that a minister would knock that back,” he said.

That’s a high bar of destruction.

The ambiguity comes in with trying to determine what is below that and what the minimum threshold for refusal might be.

And that will actually come down to whether a minister is “satisfied” that there are unacceptable outcomes or not.

Laws spark wide interpretation

Under the existing law, the minister only has to take conservation advice from the federal environment department when making a decision to approve or refuse developments.

Peak groups, such as the Chamber of Minerals and Energy in Western Australia, are concerned that all the new categories for unacceptable impacts are too broad and will inadvertently stop many industry activities.

Conservation ecology professor Brendan Wintle, from the Biodiversity Council, said the interpretation would be open to any given government of the day — be that in favour of nature or development when deciding development applications.

“And presumably it will be open for contestation in the courts, and nobody wants that,” Professor Wintle said.

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Justine Bell-James, an environment law professor at the University of Queensland, said the legislation should not come down to ministerial discretion if decisions were made based on scientific facts.

“You’re giving a political decision-maker the power to determine something that has already been proven by a scientific expert,” Professor Bell-James said.

She said the legislation would be stronger if it were worded: the minister must not approve a project if it would have unacceptable impacts.

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Professor Bell-James said, as a whole, there were aspects of the legislation that could be used for good outcomes for the environment, but also negative ones.

“There’s so much in there if it fell into the hands of the wrong person who didn’t have the interests of the environment at heart; it could be used in a really negative way,” she said.

The law includes an additional national interest exemption, meaning environmental standards could be overwritten to approve a development.

Mr Watt has confirmed this national interest test could be used for something like a rare earth mine or gas project if that was what the minister of the day decided.

One big unknown is how a proposed set of “national environmental standards”, to be regulated if legislation passes, would guide decision-making.

A review of the EPBC Act five years ago suggested that rigorous standards should be the central framework for reform. 

However, Professor Bell-James said the issues around ministerial discretion and the national interest exemption would still exist even if the standards were scientifically robust.

The ‘pay-to-destroy’ clause

Under the proposed legislation’s principle of providing “net gains”, critical habitat for threatened species and ecosystems that are not considered “irreplaceable” would need to be offset if destroyed for a project.

These critical habitats, according to the draft, are areas that include:

• Activities such as foraging, breeding, roosting or dispersal of threatened species
• The long-term maintenance of a threatened species or ecological community
• The maintenance of genetic diversity and long-term evolutionary development
• The reintroduction of populations or the recovery of the threatened species or ecological community

Developers would either need to come up with offsets that result in a net gain themselves or pay money into a new restoration fund administered by the federal government.

But state government versions of these types of funds have a spotty history.

“We know the NSW biodiversity offset scheme has ended up amassing huge amounts of money that can’t be spent because they can’t find equivalent habitat to restore,” Professor Bell-James said.

The NSW government updated its laws to try to fix the problem late last year, but there have also been similar issues with a scheme in Western Australia’s Pilbara mining region.

“It only works where you’re paying into a fund to do offsetting on something that is demonstrably offset-able,” Professor Wintle said.

Otherwise, a developer could pay into a fund, no longer be liable, and the problem would rest with the government and the taxpayer.

Restoration funds will also be crucial for new bioregional plans that will try to deliver landscape-wide offsets in locations with tricky tenure issues, like the Pilbara.

The idea of net gains could be on the chopping block, however, if Mr Watt decides to seek a deal with the opposition to get his legislation through parliament.

Shadow environment minister Angie Bell told ABC News Breakfast, on the day the legislation was tabled, that including “net gain” definitions had big problems.

She said, alongside other issues, the bill was “completely unworkable”.

“Bigger bureaucracy, more red tape, more green tape for proponents who would like to get an assessment approval,” she said.

Mr Watt said he was open to hearing proposals from other parties, but the goal was still a balanced package.

But losing fundamental targets like having net gains, or even no net loss, could lose what the reform was about in the first place.