Time to fix Australia’s national environment protection laws

EJA has joined with many other individuals and organisations in making the case for new and improved national environment protection laws, lodging our submission to the second 10 yearly review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). We are proud founding members of the Places You Love Alliance, a national alliance of conservation groups calling for better legal protection of Australia’s environment. We’ve contributed to and support the Alliance’s shared platform arguing for a new generation of national environmental laws. EJA lawyers Nicola Rivers and Bruce Lindsay lead the team in developing our submission, elaborating on areas where we have particular expertise and longstanding areas of focus. Some highlights include:

Improve the capacity to respond to catastrophes like this summer’s bushfires

The bushfires catastrophe is an example of the broader climate crisis, and biodiversity protection laws need to respond to this. The Act requires a suite of emergency provisions to deal with major crises like the bushfires, and significantly improved monitoring and accountability. This includes provisions such as the power to make emergency listings for threatened species and ecological communities and other relevant matters under matters of national environmental significance (MNES); a greater focus on threat abatement, and the ability for the Minister to more easily declare new MNES.

Increasing indigenous knowledge involvement and rights

In our view, the mere consultation approach is insufficient to properly incorporate Aboriginal rights and interests in environmental management. The adaptation of existing protective mechanisms (e.g. heritage listing or national park establishment) is important but ad hoc and does not deal with how environmental law can or should systematically reconcile with the unique and distinctive place of Aboriginal peoples. In short, the EPBC Act perpetuates a terra nullius conception of the environment, softened with terms of recognition and very limited consultation provisions. A post-colonial EPBC Act is needed or at least legislative reform that moves genuinely in that direction.

A national standard-setting role for the Commonwealth for plastics and air pollution

At present, the EPBC Act does not regulate pollution such as air pollution or plastic pollution. Most pollution issues are regulated at the state level by state EPAs and other environmental regulators. For some pollution issues, it is appropriate for state governments to continue to have primary responsibility. However, some pollution issues are being regulated inconsistently and ineffectively across states, with the result that pollution levels and impacts in some areas are unacceptable. Plastic pollution and air pollution are two such areas. These issues are nationally significant and require a national approach. In our view, the Commonwealth Government should play a standard-setting role to limit and control harmful pollution that pose risks to environmental and human health.

Our national environmental laws need to include climate change – mitigation and adaptation

Climate change is largely ignored in federal environmental laws, and in the EPBC Act in particular. Given the severity of the 2019/2020 bushfires and widespread impacts of global warming on nature and communities, it would be reckless in 2020, to review the EPBC Act and not recommend that it address climate change. This review should be taken as an opportunity to create several tools and obligations to assist Australia to do its fair share keep global warming to 1.5 degrees, and ensure that ecosystems are given their best chance to adapt to the unavoidable impacts we are already experiencing.

Urban biodiversity, and a focus on restoration of ecosystems

The overwhelming majority of the Australian population lives in cities or other urban centres, such as regional towns. It is a glaring omission in environmental law and policy that so little if any, consideration is given to the specific circumstances of urban biodiversity. The EPBC Act reflects this failure. Environmental law mainly applied to the urban context where general measures, such as those contained in MNES, apply to urban contexts, rather than providing any specific legislative guidance or direction on biodiversity in the urban context as such. This is despite a relatively high degree of protected areas, threatened species and other biodiversity residing in (and adapting to) urban settings. There has emerged also increasing recognition of the importance of protecting and restoring nature in cities, such as expressed in Victoria’s most recent biodiversity strategy, in the extensive literature on ‘green cities’, and in ‘re-wilding’ movements.

Remove the exemption for logging

Regional Forest Agreements (RFA’s) should be abolished. They are inconsistent with conservation of forest–dependent species and inappropriate given the massive destruction of forests by the bushfires. Forestry should be treated the same way as any other industry under the Act. Read our full submission here.