The largest piece of environmental legislation in Australia, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), is set to undergo significant reform this year. The twenty-three-year-old Act has been consistently criticised for being outdated, including in the 2021 State of the Environment Report. In December last year, the Federal Government released their ‘Nature Positive Plan’ which provides an overview of upcoming environmental reforms. As well as creating a new Federal Environmental Protection Agency (EPA), the Nature Positive Plan proposes several changes to the EPBC Act.
The EPBC Act regulates the approval of projects or developments which are likely to have a “significant impact” on the environment where that impact is a “matter of national environmental significance”. The Act provides an exhaustive list of matters of national environmental significance, which include world heritage properties and the Great Barrier Reef.
Projects which fit this criteria must be referred to the environment minister, who can approve or reject the proposal. A Minister can only approve a proposal if it does not pose “an unacceptable risk” to the matter of environmental significance in question. Earlier this year, Minister for the Environment and Water Tanya Plibersek exercised her power under this process to reject Clive Palmer’s application for a coal mine in Queensland.
The good: Frack off
Water resources are currently only considered a “matter of national environmental significance” if a proposed project is a coal seam gas development or coal mine. The Nature Positive Plan revealed that Labor intends to expand the water trigger to include unconventional shale and tight gas, which would capture hydraulic fracking projects.
In the fracking process, fracking fluid, a mix of water, sand, and hazardous chemicals, is injected into shale rock to displace natural gas. This process uses an enormous amount of water and poses severe contamination risks as the fluid can return to the surface or spill into natural water sources.
The expansion of the water trigger will hopefully capture most fracking projects, which are currently subject only to State or Territory approval. While this is no guarantee that fewer fracking projects will be approved, it provides an additional layer of environmental protection and scrutiny, and creates a further opportunity to legally challenge fracking projects.
The bad: Government accountability
Disappointingly, the government will not introduce a right to merits review — the ability to challenge the Minister’s decision on the basis that they did not make the correct decision considering the evidence available — in the new legislation. Currently, the Minister’s decisions can only be challenged in court under judicial review, which requires the party bringing the claim to prove that the Minister made an error of law, for example, if the decision maker failed to consider a mandatory consideration of the Act.
A refusal to grant a right to merits review diminishes government accountability as the quality of decision making is not subject to review. An inability to conduct merits review leaves open the prospect of inconsistent decision making across governments, which is common. For example, Clive Palmer’s mining proposal which was rejected by Tanya Plibersek had proposed to export six times less coal than Adani’s Carmichael coal mine, which was deemed not to pose an unacceptable risk to the environment by the Liberal Government in 2015. This is despite both projects having a similar proximity to the Great Barrier Reef.
The murky: First Nations Partnerships
The centrepiece of the Nature Positive Plan is the introduction of new “National Environmental Standards” (NES). Once legislated, projects that require approval under the EPBC Act must comply with the NES.
While the Nature Positive Plan establishes that one of the NES will be ‘First Nations engagement and participation’, the plan fails to articulate how this will actually manifest. The plan also states that the existing EPBC Act’s Indigenous Advisory Committee will be “enhanced” but did not explain what this “enhancement” will be.
While the plan noted that the government is currently working in partnership with First Nations communities to determine the parameters of the NES, it is disappointing that at this stage, promises regarding First Nations engagement are vague and incomplete.
As the strength of Australia’s response to the climate crisis is dependent on the will of the government in power, strong environmental legislation must act to safeguard the environment. The proposal of an independent Federal EPA is exciting, but it is yet to be seen how independent the new EPA will actually be, and whether it will have the power to hold governments to account.
While the government is separately working with the First Nations Heritage Protection Alliance to co-design reforms to First Nations cultural heritage legislation, the proposed First Nations engagement reforms to the EPBC Act are ambiguous and underdeveloped, which at this stage is not good enough.
From what we’ve seen so far, the new legislation may be adequate so long as Australia has a government willing to reject new fossil fuel projects. However, without the introduction of merits review or guarantees as to the powers of the EPA, the proposed reform leaves too much trust in the hands of ministers.
