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Implications of the Interim report on Commonwealth environmental protection laws

Professor Graeme Samuel recently released his Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The report is highly critical of the EPBC Act, reporting that it neither ensures effective environmental and biodiversity protections nor efficiently regulates business.

In the report, Professor Samuel makes several recommendations, some of which have already become priority areas for the government. These have significant implications for the energy and resources industry. 

Professor Samuel made multiple recommendations. The recommendations with the most significance to industry are:

  • That the Government ‘hardwire’ the requirement for Ecologically Sustainable Development (ESD) into the EPBC Act. This would require the Minister for the Environment to make a thorough assessment of ESD principles before delivering a decision, and not just ‘consider’ them.
  • That an ESD committee be created that takes into account the views of various stakeholders, including indigenous advisory groups and industry representatives. The committee would have an advisory role and assist the Minister in her decision making.
  • That the Commonwealth set National Environmental Standards that:
    • Improve outcomes for Australia’s biodiversity and heritage
    • Create a more efficient, accessible and transparent regulatory system that reduces assessment timeframes
  • That the assessment and approval roles be devolved to the States and Territories where appropriate. They would then have regard to the National Standards in making those decisions, so that they are made consistently across the country.

Implications for the mining and energy sector

There are already bilateral agreements between the State and Federal governments that allow States to take the lead on some project approvals. However, these recommendations would see accreditation become widespread.

The recommendations would see the Government implement a ‘one touch’ regime that would allow States and Territories to undertake the assessment and approval processes on behalf of the Commonwealth. The approach would remove duplication, reduce timeframes and costs for industry and provide certainty going forward.

Reduced time

Widespread accreditation would allow the States and Territories to process environmental approvals without needing to go through the Federal system. Under the current system, there is significant regulatory duplication, which causes a lot of delay. The interim report found that resources sector projects take almost three years (1,103 days) to gain approval, while the permitting process for a new mine takes around three and a half years. Prime Minister Scott Morrison has stated that he hoped the new system will see that time cut in half, for an average of 21 months.

Increased transparency and certainty for business

Professor Samuel noted that industry submissions to his report indicated a loss of trust in the Act and its operation. The cumbersome process is slow and contains a lot of duplication. There is also a perception that it facilitates ‘lawfare’ by allowing the use of legal challenges as a tool to delay projects and drive up costs.

The development of National Environmental Standards should bring more consistency to the approvals process. The Standards should be outcome-focus instead of process-driven. This will cut down on the capacity for ministerial discretion and increase transparency. It’s hoped that it will provide certain for industry and reduce the delays in obtaining approvals.

Opportunity for collaborative approach

The government will also begin discussions with private industry, as per another of Professor Samuel’s recommendations, to explore “market-based solutions for better habitat reform that will significantly improve environmental outcomes while providing greater certainty for business”. 

This may present an excellent opportunity for mining and energy companies to work collaboratively with government going forward, both to invest in the environment directly and to explore opportunities for innovation.

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