Federal Government responds to Samuels Review of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999

The Federal Government has now released its formal response to Professor Graeme Samuel’s Independent Review (the Review) of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Professor Samuel’s Final Report was issued in October 2020. 

The Minister for Agriculture, Water and the Environment Sussan Ley issued the Government’s Response, entitled ‘A Pathway for Reforming National Environmental Laws’, in June 2021. 

Corrs has been tracking the review and reform process. Previous Corrs articles can be read here:

• Review of Prof Samuel’s Interim Review Report;
  
  
• Do new draft EPBC National Environmental Standards ignore Independent Review of EPBC Act recommendations?; and
  
  
• Pending changes to the environmental approvals process.

Key Review recommendations adopted by Federal Government

The Response accepts the central pillars of reform recommended by the Review. Further ‘Pathway for Reform’ reports will issue as the process progresses in stages. Those ‘central pillars’ of the Review to be implemented by the Government in the first stage of the reforms relate to the following:

• the accrediting of states and territories to deliver EPBC Act approvals, referred to as ‘single touch approvals’, which will be underpinned by;
  
  
• new National Environmental Standards; and
  
  
• the creation of a new position of Environmental Assurance Commissioner (EAC) to independently oversee the performance of the accreditation system and application of the Standards.

Legislation to achieve this first stage is currently before the Commonwealth Parliament.

Some qualifications

In relation to the suite of Standards that were recommended, and to some extent drafted by Professor Samuels and his team, the Response says that:

“The detailed Standards developed by the Review go well beyond existing EPBC Act requirements and are not consistent with the agreement of National Cabinet to develop interim Standards that reflect the current Act.”

As mentioned in the second Corrs article referred to above, while the Government accepts the idea of National Environmental Standards to inform bilateral accreditation and assessment processes, it does not necessarily agree with what the Review suggests ought to be the content of the Standards. 

An example is the principle of ‘non-regression’, which the Review recommended should be included in the overarching Standard. It has not been included in the first draft Standard proposed to be adopted. Indeed, the Review’s repeated emphasis on ‘restoration’ measures and strategies, has not been repeated in the Response. That is not to say though that over time, it will be ignored.

In relation to the accreditation of states and territories, to enable them to issue EPBC Act approvals, as we observed in previous articles, the 2014 attempt to achieve this faltered. While a new Bill is now before the Parliament to enable that to occur, it is again proving controversial because of an apprehension in some quarters that the states will not properly acquit that function.

This time around though there are some significant differences. First, under the pending legislation, states will need to be able to demonstrate that they will be able to appropriately commit to and apply the Standards before they can be accredited. Secondly, the effectiveness and integrity of the ‘one touch approvals’ system will be monitored and audited by the new EAC. The EAC though will not have any role in individual project assessment and approval.

Other Issues

Regional planning

The Response also commits the Commonwealth Government to undertaking regional planning (one of the Review recommendations), to assist with the better siting and assessment of projects. The intention is to identify a region in which to pilot this particular type of regional planning in partnership with a willing state or territory.

In committing to this recommendation the Minister’s Response was quick to point out that regional planning is already a feature of the EPBC Act, under various guises including:

• Strategic Assessments;
• Bioregional Plans; and 
• The Geological Bioregional Assessment Program.

It remains to be seen just what issues such regional planning will deal with.

Digital transformation to accelerate environmental approvals and share information

The Response notes the Commonwealth Government’s existing commitment to, and funding of, the Digital Environmental Assessment Program. Initiation of this Program in fact preceded the final Review Report but its purpose aligns with some of the Review’s recommendations.

It is intended that the Program will provide consolidated sources of biodiversity information on line and help lead to a streamlined digital environmental assessment system. The pilot of the Program is due for completion in mid-2022.

New Sustainable Development Committee

The Review recommended the creation of an overarching Sustainable Development Committee to oversee and provide advice on the new Environmental Standards, and to perform other coordination and advisory functions.

The Response concedes that while this proposal has merit, it needs further thought and consultation in relation to the Committee’s role and function.

Improving Indigenous engagement and participation in decision making

The Review made a number of recommendations about enhancing Indigenous participation in decision making, including through a new Environmental Standard, improving joint management of National Parks and improving national cultural heritage laws.

The Response commits to engaging with Indigenous communities in relation to two of these matters, but does not mention any proposed review or reform of existing national cultural heritage laws.

What the Response omits

The Review contained 38 recommendations. The Response commits the Commonwealth to the adoption or further consideration of a significant number of them. Some recommendations, however, have not been mentioned in the Response. They include:

• rationalising assessment pathways to enable a risk-based approach to assessment, proportionate to the level of impact on Matters of National Environmental Significance (MNES). We note, however, that the Commonwealth Digital Environmental Assessment Program, mentioned above, has the potential to contribute to such an approach;
  
  
• limiting application of the Water MNES (which applies to large coal mines and coal seam gas projects), so that it only applies to cross border water resources;
  
  
• introducing limited merits review for project approval decisions – always likely to be very controversial; and
  
  
• improved monitoring and enforcement.

So what will change and when 

The creation of a limited suite of new Interim National Environmental Standards, and accreditation of states and territories to grant EPBC Act approvals is likely to occur soon (subject to passage of the Bills before the Parliament at the moment).

However the Interim Standards are not likely to materially affect assessment of proposals under the Act. That is because the Government’s preferred approach is to simply have the Interim Standards reflect existing requirements of the Act. One wonders why they are being introduced at all if they do not ‘add’ anything. Over time though, the Standards might be expected to evolve in ways that could affect assessment in significant ways.

State accreditation, to enable them to grant EPBC approvals, cannot be forced on to any particular state. Even if the current facilitating legislation is passed, there is no guarantee every state will take up the opportunity. Nonetheless, unlike 2014, it is looking as if this will become a reality soon.

The position of an EAC is likely to be created soon after the passage of the enabling legislation now before the Parliament. But as that position will be more concerned with monitoring and auditing the accreditation of states, and the performance of that system, rather than with individual project assessment, it is unlikely to be noticed much by proponents and other stakeholders, apart from the state environment departments administering devolved accredited assessment and approval functions.

It will be interesting to follow the progress of the proposed regional planning process and the Commonwealth Digital Environmental Assessment Program, as these both have the potential to affect, and hopefully improve, existing assessment systems under the Act.

Corrs will continue to monitor and report on the Commonwealth’s EPBC Act reform agenda as it evolves.