On 31 October 2008 the Minister for the Environment, Heritage and the Arts announced an independent review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The independent review is due to be completed before 31 October 2009 and the review panel is charged with the task of examining:
- the operation of the EPBC Act generally
- the extent to which the objects of the EPBC Act have been achieved
- the appropriateness of the current Matters of National Environmental Significance (MNES), and
- the effectiveness of the biodiversity and wildlife conservation arrangements.
An interim report was released in June 2009 after extensive public consultation. The purpose of the interim report is to identify major themes raised in the review and the various related Senate Committee and government enquiries. The interim report was open for public comment until 3rd August 2009. It does not make any recommendations but is merely a preliminary discussion and analysis of key issues.
The purpose of this article is to provide a brief overview of some of the major key issues raised in the interim report.
Principles of Ecologically Sustainable Development (ESD)
The principles of ESD are relevant to several provisions of the EPBC Act. For example one of the objects of the EPBC Act is to promote ecologically sustainable development through the conservation and ecologicallysustainable use of natural resources. Therefore, any time the Minister or other decision maker is required to consider the objectives of the EPBC Act, he or she must necessarily consider the principles of ESD. The difficulty identified in public submissions is in identifying how the principles of ESD are to be applied. To that end, the interim report discusses the possible insertion of a preamble to the EPBC Act to serve as further guidance for decision makers, proponents and interested community members in how the principles of ESD will be taken into account in the decision making processes under the EPBC Act.
Matters of National Environmental Significance (MNES)
The interim report notes that there is a general acceptance of the current list of MNES. A key criticism of the current MNES was that there were not enough matters for the EPBC Act to adequately deal with environmental challenges. Therefore submissions indicated that there is a need to update the current list of matters with the current list of MNES to address current and emerging national environmentally significant issues such as:
- greenhouse gas emissions and climate change impacts
- water issues (including water extraction, wild rivers and wetlands of national importance)
- land clearing
- gene technology and the release of genetically modified organisms
- invasive species
- vulnerable ecological communities (in addition to the current MNES of threatened species and communities), and
- wilderness areas, habitat-related MNES and biosphere reserves.
In relation to climate change for example, the trigger would operate by setting a threshold of emissions release over a certain period or over the lifecycle of the project. Projects which exceed that threshold would need to undergo assessment and approval under the EPBC Act. In relation to land clearance, the interim report notes that legislation regulating land clearance, or clearance of native vegetation, exists in every State and Territory. However, land clearance remains a significant threat to biodiversity around Australia. On that basis, many submissions argued that the impacts of continued land clearance on the environment are a nationally significant issue.
Consistent versions of how a land clearance trigger would work include requiring the assessment and approval and the EPBC Act of all actions involving clearing of over 100 hectares of native vegetation in any two year period or actions involving the clearing of any area of native vegetation that provides habitat for the listed threatened species or ecological communities or listed critical habitat.
Interaction with State, Territory and Local Governments
There is significant discussion in the interim report about the extent to which the Commonwealth should be involved in environmental impact assessment. At present, the Commonwealth can only assess, approve and condition projects to the extent they have a significant impact on a MNES. Some submissions argued that the Commonwealth should assume greater responsibility for a broader range of environmental impact assessment and not just for those projects impacting upon MNES.
Under the EPBC Act actions that will have or are likely to have a significant impact on a MNES must be referred to the Federal Environment Minister for a decision as to whether that action is a controlled action requiring assessment and approval. Many concerns were raised in public submissions about:
- the number of referrals made – concerns relating to whether projects were “slipping through the net”, and
- the quality of referral documentation – concerns relating to the fact that some referral documentation was considered to be inaccurate, too general and lacking scientific rigour.
Some submissions have argued for the ability of third parties to refer projects to the Minister for a decision as to whether they are a controlled action. The interim report notes that if a power for third party referrals were to be enacted, there would have to be safeguards against vexatious or frivolous third party referrals and the requirement for that third party to declare any conflict of interest to prevent improper third party referrals attempting to limit trade competition. There may also have to be requirements for sufficient referral documentation and the need to prove to some extent that the action will have a significant impact on one or more of any MNES.
In relation to the quality of referral documentation the Department for Environment, Water, Heritage and the Arts has advised that, in the period between July 2008 and December 2008, only 34% of referrals contained enough information on receipt to be deemed valid without the need to request additional information from proponents. The interim report identified several measures to address this issue, including:
- the introduction of an incentive to produce high quality referrals, such as the capacity for a faster assessment method, for example by referral documentation, and
- the implementation of standards, guidelines, accreditation and audit assistance.
Strategic and Bioregional Assessments
The interim report uses the term “landscape scale assessment” to refer to assessments associated with strategic bio-regional approaches, as opposed to species-by-species protection or projectby- project assessment. While the EPBC Act provides for landscape scale planning and assessment approaches, these mechanisms are rarely used. The interim report appears to favour a shift of focus towards such landscape scale assessment approaches.
Review Mechanisms and Access to Justice
Many community groups have expressed concern about the judicial review and merits review mechanisms in the EPBC Act. The interim report states that there are good reasons for the EPBC Act to be amended to include an open-standing provision to permit any person who considers that a decision was not made in accordance with procedural requirements to bring a judicial review application in the Federal Court. As currently framed, the EPBC Act includes an expanded definition of “interested persons” to include an individual or corporation that has engaged in a series of activities for the protection or conservation of, or research into, the environment at any time in the two years before the making of an application.
One of the more significant issues relates to the requirement for a person wishing to seek an interim injunction to provide an undertaking as to damages by which the person agrees to pay compensation to persons who may have been adversely affected by the operation of such an interim injunction at the end of a legal proceeding. Until the amendment to the EPBC Act in 2006, the Federal Court did not have to require an applicant to give such an undertaking. However, that provision was repealed. The interim report notes that there is a case for this provision to be reinstated.
The final report for the independent review of the EPBC Act is due to be released by 31 October 2009. This final report will discuss and analyse key themes and options and make specific recommendations under the terms of reference. We will continue to update you on these important developments.