There is no such thing as a free lunch
The Albanese government is now the latest in a string of governments that have tried and failed to reform the law known formally as the Environmental Protection and Biodiversity Conservation (EPBC) Act. This is despite two major independent reviews calling for wholesale change. Labor’s capitulation does not, however, change the facts. Australia’s natural environment is deteriorating rapidly. Laws are urgently needed to protect our nation’s valuable natural assets.
For policymakers, this suggests environmental laws should define minimum viability thresholds. Some thresholds would be absolute; others would be crossable in one location provided equivalent restoration was done in another. Environmental groups could take satisfaction that thresholds would be maintained in most cases. Ecosystems would function, rivers would flow. But governments would still override thresholds for important economic and social reasons, say to approve a critical minerals project. What’s in it for corporate Australia? Business would gain upfront certainty about what can be approved and quicker approvals for projects. Environmental litigation would fall. But development options would be narrowed and offsets would become more expensive. The government would achieve a key goal: major environmental reform. But it would have to say no more often, and be transparent about crossing environmental thresholds.
The unwritten rule of environmental policy is that economy trumps environment. ‘Nature positive’ reforms threaten to put it the other way round, or at least to shift the dial in that direction. And the states (beginning with Western Australia) are not happy about it. Crunch time is approaching.
Fully implemented, the ‘Nature Positive’ model on which the reforms are built could completely reframe decisions to approve (or not) development projects following environmental impact assessment (EIA). However, it all comes down to ‘who pays’?
Will ‘Nature Positive’ deliver real change or just a new opportunity for box ticking and political window dressing? As a concept, Nature Positive has plenty of potential for good biodiversity outcomes and its endorsement in the Henry Review is a good thing for biodiversity nationally. However, like ESD before it, Nature Positive can be hollowed out or reduced to a slogan if that is where the politics takes it.
The Henry Review found, essentially, that the NSW Biodiversity Act is not working and that biodiversity continues to decline in the state of New South Wales. Although the law is complex, the policy bottom line is simple: biodiversity is protected to a degree, but this will never stand in the way of development prioritised by government. The review proposes to switch off the discretionary ‘balancing’ that occurs under the auspices of the Ecologically Sustainable Development principles (under which the ‘balance’ almost always favours development). And to switch on a ‘nature positive’ framework.
It seems time is being called on the forest settlement of the 1990s. These developments are already destabilising the federal government’s environmental law reform agenda, and could even derail it. The government could use the time between now and next year’s Senate debate on its reform package to work up a new approach. It could be built around forest restoration, conservation and Indigenous empowerment, as experts are proposing. If it doesn’t, we are headed for quite a stoush.
The Senate has just wrapped up its Budget Estimates hearings. The good news is that most of the ‘substance’ relates to increased activity. The recent years of inactivity on the environment are clearly over. The bad news is that it will take a long time to generate fresh momentum.
The Albanese Government’s ‘Nature Positive Plan’ announced last week is a much-anticipated response to Professor Graeme Samuel’s 2020 Review of the Environment Protection and Biodiversity Conservation (EPBC) Act. The plan is packed with policy announcements, most of which stick close to Samuel’s recommendations. But the path of this big agenda stretches far over the political horizon and is littered with hurdles. Here are ten hurdles the minister will have to jump, just for starters.
One of the main findings of the Samuel Review of the EPBC Act was that it was not trusted, either by business nor by the wider community. Restoring trust requires a fundamental shift from process-based decision-making to outcome-based decisions. This requires standards supported by regional plans and stronger institutions, including information systems and compliance regimes. At the end of the day, people will only trust environmental laws that truly protect and conserve the environment.
The consequences of Australia’s long-term underfunding of our national environmental law, compounded in some cases by lack of political vision or will, are that many of the foundations of the current system of environmental protection and conservation provided for by the EPBC Act are either significantly under-done, or not done at all.
Proposals for regulatory streamlining, and for the alignment of federal and state environmental assessment laws have been floated at various times over the last 30 years. Graeme Samuel’s review recommended a harmonising of both environmental processes and outcomes between federal and state jurisdictions. To do this we need to: Develop national standards; build a risk-based decision-making system; accredit states to take most of the decisions.
Taking Indigenous knowledge and values seriously in environmental policy is not limited to the transformation recommended by Professor Samuel under the EPBC Act. Providing for ‘respectful consideration of Indigenous views and knowledge’ will take time and investment.
To transform our national environmental law, we need to begin with ‘standards’
Discretionary, bottom-up decision-making is no way to achieve consistent & ecologically sustainable outcomes.
The EPBC Act is the most important environmental law in the country, but it doesn’t work. To achieve what it was established to do it needs to:
– pursuing national environmental outcomes (rather than just be a prescriptive regulatory processe);
– shift from Indigenous tokenism to full use of Indigenous knowledge;
– simplify regulatory outcomes between federal and state jurisdictions;
– lay new foundations for quality decision-making; and
– restore trust in decision-making.
While Labor lifted its game at the last minute with its environmental law reform policy, they can hardly be said to be environmental-policy high performers. So, what’s ‘on the record’ and ‘off the record’ for our new government when it comes to the Environment? What should our new environment minister prioritise?