ELLEN MAYBERY
EJA SENIOR SPECIALIST LAWYER AND ECOSYSTEMS LEAD
We don’t often have the opportunity to completely overhaul our national environment laws. As environmental lawyers, we know just how urgently it’s needed.
Federal Environment Minister Tanya Plibersek has just announced plans for a new national framework of environment laws.
New environmental protection laws could set a course towards healthy, regenerative and thriving ecosystems. If done right, these reforms could turn around Australia’s extinction crisis – and fix countless other threats to places, plants and animals.
But as the government’s plans currently stand, they won’t go far enough to stop environmental damage, protect nature, or end extinction.
Our current federal environment laws are contained in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It is timely to reflect on the words in the title of this legislation.
Australia is facing an extinction crisis, and in part this is because the EPBC Act doesn’t do enough to protect the environment and ensure biodiversity conservation.
Instead, the current laws focus on a narrow range of issues for the environment and open the door for decisions, like approvals of mining projects, that do not have at their core the protection of the environment. Considerations about the environment only come into play in limited situations and, while there are processes to protect threatened and endangered species, these processes lack adequate funding and lag behind the reality of the extinction crisis.
There are some things to celebrate in the reforms proposed by Minister Plibersek today.
The government has committed to:
- introducing National Environmental Standards, the ‘cornerstone’ of reforms suggested by Graeme Samuel AC’s review of the EPBC Act
- an independent Environment Protection Agency (EPA) that will be the decision maker for environmental approvals and be responsible for compliance and enforcement
- expanding the water trigger, requiring environmental assessment of all unconventional gas projects.
We also celebrate that the community’s unrelenting calls for better laws for environmental protection have brought us to this juncture, where we have a once –in-a-lifetime opportunity to get these laws right.
Of all the reforms, there are six that EJA lawyers believe are an urgent priority for the Minister to get right:
National Environmental Standards
We welcome the government’s commitment to legally enforceable, binding, National Environmental Standards, to set clear outcomes for nature that bind decision makers. But to be truly effective and protect nature, the full suite of Standards must be developed by independent experts as an urgent priority, so their impact can be fully assessed. And they must apply to all industries, including forestry, from their introduction.
INCORPORATE FIRST NATIONS KNOWLEDGE
Our new nature laws must truly value and incorporate the rights, knowledge and culture of First Nations people. We welcome the government’s proposal to introduce new stand-alone federal cultural heritage legislation but believe the whole framework of our national environmental laws must recognise that, as the ongoing custodians of this land since time immemorial, Aboriginal and Torres Strait Islander traditional knowledge is integral to protecting and caring for the environment.
INDEPENDENT EPA & PROPER RESOURCING
National Environmental Standards need to be backed by a genuinely independent Federal Environment Protection Agency (EPA) and significant funding, including for recovering threatened species. Our new laws will only work if they are properly resourced.
CLIMATE ASSESSMENT & SCOPE 3 EMISSIONS
New laws must curb climate damage. Our climate is breaking down, and this is a key driver of extinction in Australia and around the world. Climate impacts must be fully and explicitly integrated into environmental decision making. All projects seeking approval must also disclose their Scope 3 emissions for assessment.
COMMUNITY ENFORCEMENT
Communities must have the right to participate in and challenge government decisions, through mechanisms like merits review and third-party independent enforcement of our laws. Environmental decision making must be transparent and accountable, and this includes ensuring communities have a legal voice to stand up for our environment.
CONSERVATION PLANNING & NO CREATIVE ACCOUNTING
To achieve zero new extinctions, the new federal laws need a strong conservation planning framework and must ensure offsets cannot be used as payments for destruction. To properly protect critical habitat, a land clearing trigger should be introduced to require the environmental assessment of land clearing proposals.
As the government works towards changing our federal environmental laws next year, Environmental Justice Australia lawyers will keep you up to date on the proposed changes, so you know what the detail really means for the protection of nature.
And we will continue to ensure that all the important detail is in place so our federal environmental laws finally do what they say on the tin – environment protection and biodiversity conservation.