Nature conservation and
environment laws
(Commonwealth): EPBC Act
ENVM3103/7123 WEEK 2 LECTURE
DR NATALIE JONES
Aims of todays lecture
1.
Introduce the EPBC Act
2.
Define a key concept underpinning the EPBC Act: ‘Matters
of National Significance’
3.
Discuss the EPBC Act in practice: processes, approvals and
conditions
4.
Discuss recent updates to the EPBC Act
5.
Present a case study
What do you know about
the EPBC Act
Take 3 - 4 minutes to discuss with the person next
to you what you know about the
‘Environmental Protection and Biodiversity
Conservation Act’
Part 1
EPBC Act: what is it?
1.
A law that has been passed by the Australian Parliament (EPBC ACT 1999): central piece of
environmental legislation.
2.
The aim of the law is to protect Australia’s environment, especially matters of ‘national
environmental significance’.
3.
Legal framework through which Australia achieves its international environmental obligations.
Flora
Fauna
Ecological
communities
Heritage
places
EPBC Act: protecting the environment
from ‘actions’
1.
‘Actions’ can be: a project, a development, an activity or series of activities. Can also be
changes to these things. In reality difficult to put bounds around where an action starts and
stops.
2.
Examples include construction, expansion of project, alteration or demolition of buildings,
structures, infrastructure or facilities; industrial processes; mineral and petroleum resource
exploration and extraction; storage or transport of hazardous materials; waste disposal;
earthworks; impoundment, extraction and diversion of water; agricultural activities;
aquaculture; research activities; vegetation clearance; culling of animals; and dealings
with land.
EPBC Act (1999): background
•
Introduced to:
• Provide federal oversight of environmental protection and a more co-ordinated approach; and
• To manage environmental species and ecosystems of international significance (international obligation):
•
•
•
•
RAMSAR wetland sites
World Heritage Sites
Migratory species
Every 10 years it is reviewed:
•
1st major review: recognition that the Act is not working in achieving its aims and 71
recommendations for changes.
•
2nd major review: context of bushfires (climate change reality) on one hand, and Covid-19
(economic recovery) on the other. Samuel Review submitted Oct 2020.
•
Whole range of issues put on the table to explore.
•
Conclusion: environmental law is outdated, ineffective and requires fundamental reform.
EPBC Act: balancing act
Economic and
social needs
Environmental
protection
Part 2
Key concept: ‘Matters of National Environmental
Significance’ (MNES)
Law implemented to protect ‘Matters of National Environmental Significance’
9 Matters of National Environmental Significance are defined and which need to be considered under
the EPBC Act:
•World heritage areas
•National heritage places
•Wetlands of international importance (listed under the Ramsar Convention)
•listed threatened species and listed ecological communities
•listed migratory species (protected under international agreements)
•Commonwealth marine areas
•Great Barrier Reef Marine Park
•nuclear actions (including uranium mines)
•water resources (concerning coal seam gas and large coal mining development).
World heritage areas
Areas listed on the World Heritage List, UNESCO
“World Heritage sites are places that are important
to and belong to everyone, no matter where they
are located. They have universal value that
transcends the importance they hold for one
particular nation”.
https://www.dcceew.gov.au/parks-heritage/heritage/about/world-heritage
“Outstanding value to humanity”. UNESCO
20 Sites in Australia, including Gondwana
Rainforest of which Springbrook National Park is
part of.
https://www.behance.net/gallery/5296407/World-Heritage
World heritage areas
World Heritage sites are remarkable for their
cultural and/or natural significance.
The WHC recognises the importance of places that
connect us to our shared heritage – capturing
tangible and intangible values associated with
important places.
These places are recognised and protected under
the World Heritage Convention (1972).
United Nations Educational, Scientific and cultural Organisation
World heritage areas
Example of development application rejected:
Clive Palmer’s Central Queensland Coal Project:
https://www.abc.net.au/news/2022-08-04/environmentminister-proposes-blocking-palmer-qld-coal-mine/101302142
National heritage areas
These are “natural, historic and Indigenous places of
outstanding significance to the nation”.
https://www.dcceew.gov.au/parksheritage/heritage/places/national-heritage-list
Include places of Indigenous significance, historic buildings,
natural landscapes and cultural landscapes.
119 National Heritages Sites in Australia see Gov database
full list and description: https://www.dcceew.gov.au/parksheritage/heritage/places/national-heritage-list
https://www.abc.net.au/news/2023-02-25/sa-cuttlefish-on-nationalheritage-list/102023608
National heritage areas (Queensland)
1.
Australian Fossil Mammal Site – Riversleigh
2.
Dinosaur Stampede National Monument, Lark Quarry
3.
Elizabeth Springs [springs from Great Artesian Basin]
4.
Fraser Island (K’Gari)
5.
Glass House Mountains National Landscape
6.
Gondwana Rainforests of Australia
7.
Great Barrier Reef
8.
QANTAS Hangar, Longreach
9.
Tree of Knowledge, Barcaldine
10. Wet Tropics
Listed threatened species and ecological
communities
http://www.environment.gov.au/cgi-bin/sprat/public/sprat.pl
Flora and Fauna Species listed by the Australian Government as:
◦ Extinct;
◦ Extinct in the wild;
◦ Critically endangered;
◦ Endangered; or
◦ Vulnerable
Ecological community listed by the Australian Government as:
◦ Critically endangered;
◦ Endangered; or
◦ Vulnerable
Northern hairy nosed wombat
Listed threatened species and ecological
communities
Example of project triggering threatened ecological community
trigger and endangered fauna:
Defense Housing Australia proposed to build housing
development in critically endangered grasslands in Canberra
and on the endangered striped legless lizard and golden sun
moth
Development will involve clearing natural temperate grassland
of south-eastern highlands.
Application has been made to Federal Government for approval.
https://www.theguardian.com/australia-news/2022/sep/23/act-urges-tanya-plibersek-to-quash-defence-housing-plan-thatwould-destroy-critically-endangered-grasslands
Listed threatened species and ecological
communities
Example of project triggering threatened endangered fauna
Plan to release coal-seam gas wastewater into the Dawson River
(Queensland) has been examined, and an environmental
assessment has determined that this will pose to the:
• Critically endangered white throated snapping turtle
• Vulnerable Fitzroy River turtle
https://www.theguardian.com/australia-news/2022/oct/12/governmenturged-to-reject-plan-to-release-csg-wastewater-near-bum-breathingturtles-queensland-habitat
Listed migratory species
Listed as migratory species: species that migrate to Australia or pass through
or over
An action will be assessed to determine potential impact on:
◦ Habitat of migratory specie
◦ Promote invasive species that can harm migratory species
◦ Lifecycle of the specie (breeding, feeding, migration or resting)
EPBC Act provides key mechanism through which Australia aims to meet
obligations and responsibilities for protecting/managing migratory species.
Activities related to nuclear energy
Nuclear actions covered by EPBC Act include:
• Establishing or modifying a nuclear reactor, nuclear
waste facility
• Transporting nuclear materials
• Uranium mining
Commonwealth
marine environment
◦ The Commonwealth marine area is any part of the
sea, including the waters, seabed, and airspace,
within Australia's exclusive economic zone and/or
over the continental shelf of Australia, that is not
state or Northern Territory waters. The
Commonwealth marine area stretches from 3 up
to 200 nautical miles from the coast. The
Commonwealth marine area includes most of
Australia’s oceans. (Australian Government)
Miller et al 2018, : https://www.frontiersin.org/articles/10.3389/fmars.2018.00229/full
◦ Development actions and projects carried out in
these marine areas need to be assessed and
Federally approved.
Ramsar Wetlands
◦ International convention signed in Ramsar, Iran, in 1971.
◦ Wetlands of international significance: “ representative,
rare or unique wetlands, or are important for
conserving biological diversity” (Federal Government).
◦ Areas where water covers the soil (all year, or part of
the year.
https://natureglenelg.org.au/celebrating-international-recognition-for-the-glenelgriver-estuary-and-wetlands-of-discovery-bay/
Ramsar Wetlands
◦ Proposal is predicted to impact approximately 42
hectares of Ramsar treaty wetlands.
◦ Endangered shorebirds, and a number of vulnerable
species.
◦ Federal decision as part of EPBC process to be made by
Environment Minister Tanya Plibersek.
https://theaimn.com/rejection-of-toondah-will-reset-labors-soul-inredlands/
Great Barrier Reef Marine Park
◦ Under the EPBC Act, activities/actions in or outside the marine park that are
likely to have impact on the Great Barrier Reef need approval from the Federal
Minister.
◦ For example:
◦Impacts habitats or ecosystems
◦Effects a population of a species
◦Substantially changes air quality or water quality
◦Results in pest species being introduced in the marine park
◦Results in persistent or potentially harmful substances accumulating in
the marine environment
◦Has an impact on heritage values of the marine park.
Water resources (concerning coal seam gas
and large coal mining development)
◦ 12th March 2013: Coal seam gas or large coal mine
development which has "a significant impact on a
water resource" added to list of MNES
◦ If an action from the CSG or coal industry has, will
have, or is likely to have a significant impact on a
water resource, it will need approval from Federal
Environment Minister.
Water resources (concerning coal seam gas
and large coal mining development)
◦ Proposal to turn a former 1.2 hectare open cut coal
mine and powerplant site into a lake as part of a
rehabilitation project.
◦ Wants to fill the new lake with water from the La
Trobe River and underground aquifer, over 20 year
period.
◦ Potentially cheaper option compared to other ways
of rehabilitating the site.
◦ Important decision as coal mines continue to close.
https://reneweconomy.com.au/can-an-old-coal-pit-be-turned-into-alake-hazelwood-plans-set-off-water-trigger/
What do you
think?
Do you think the EPBC Act is effective
in protecting these matters of
environmental significance?
Why/why not?not?
Part 3
EPBC Act in Practice
Referral
Assessment
Approval
Referral:
•
•
•
•
•
•
Who is taking an action
Description of the action
Nature and extent of possible
impacts
Proposed mitigation measures
Maitz, N. M., Taylor, M. F. J., Ward, M. S., & Possingham,
H. P. (2023). Assessing the impact of referred actions on
protected matters under Australia's national
environmental legislation. Conservation Science and
Practice, 5( 1),
e12860. https://doi.org/10.1111/csp2.12860
•
•
Are there matters of national environmental
significance in the area? (including adjacent or
downstream areas)
Is there potential for impact on MNES, direct or
indirect?
Will those impacts be significant?
If so, how will they minimised or avoided?
EPBC Act in Practice
What are ‘significant’ impacts?
https://www.dcceew.gov.au/environment/epbc/p
ublications/significant-impact-guidelines-11matters-national-environmental-significance
Diagram by Chris McGrath
In the first 19 years of operation of the EPBC Act, less than 30% of referrals were determined
to be controlled actions (will or likely to have significant impact on protected matters,
therefore requires Assessment and Approval. 0.3% were refused
Source:
‘Green Lawfare’
Term used to describe groups (public interest) who use the law to stop development projects, or
sabotage or disrupt development projects.
A term used against groups who bring environmental matters to attention within the legal system.
No evidence to show that ‘green lawfare’ really exists, with findings of environmental court cases
suggesting that ‘green lawfare’ is a myth. See study Reynolds et al (2020) who examined: is tactical
lawfare being used to disrupt and delay development projects in Australia?
Public
interest
OR
Public
menace
‘Green Lawfare’
Term used to describe groups (public interest/NGOs) who are prevised to use the law to stop development projects, or sabotage or
disrupt development activities.
Used in a negative way to describe those who use the legal system to challenge decisions made by the Government related to the
EPBC Act.
Seen as a public nuisance, rather than presenting a legitimate challenge to decisions made –wasting time and public resources.
A term used against groups who bring environmental matters to attention within the legal system.
No evidence to show that ‘green lawfare’ really exists, with findings of environmental court cases suggesting that ‘green lawfare’ is a
myth. See study by Reynolds et al (2020) who examined: is tactical lawfare being used to disrupt and delay development
projects in Australia?
Reynolds, Annika and Ray, Andrew and O'Connor, Shelby, Green Lawfare: Does the Evidence Match the Allegations? –
An Empirical Evaluation of Public Interest Litigation under the EPBC Act from 2009 to 2019 (March 1, 2020).
Environmental and Planning Law Journal, Vol. 37, 2020, Available at SSRN: https://ssrn.com/abstract=3991294
‘Green Lawfare’
Should public interest groups be prevented from challenging
Government decisions in relation the EPBC Act?
What do you
think?
Why/why not?
?
Public
interest
OR
Public
menace
Part 4
Recent updates to the EPBC Act
2nd 10-yearly review of EPBC Act (Samuel Review)
Key findings:
•“Australia’s natural environment and iconic places are in an overall state of decline and are under increasing
threat. The current environmental trajectory is unsustainable”
•The EPBC Act is ineffective. It does not enable the Commonwealth to effectively protect environmental
matters that are important for the nation. It is not fit to address current or future environmental challenges”
•“Good outcomes for the environment, including heritage, cannot be achieved under the current laws”
•“The Act is complex and cumbersome and it results in duplication with State and Territory development
approval processes”
•“The EPBC Act needs to be completely overhauled”
Recent updates relating to the EPBC Act
New environmental laws to be developed and debated throughout this year. Amendments expected
end of 2023.
New environmental protection agency
Will be guide by three key principles:
Establish new
national
environmental
standards
Regional
planning
Independent
National
Environment
Protection
Agency
Introduce new
offset
standards
Establish new ‘national environmental
standards’ (NES)
•“provide a consistent, science-based approach to assessing the potential impacts of
activities on matters of national environmental significance (MNES)”
•This will provide more clarity and predictability.
•Standards will outline the outcomes the EPBC Act aims to achieve in relation toe the MNES
(not currently defined). Development will need to improve the environment, not just limit
damage.
•Standards will also be developed for:
•
•
•
•
First Nations engagement and participation in decision making.
Community engagement and consultation.
Regional planning.
Environmental offsets
What do you think?
‘Any decisions around development will need to
improve the environment, not just merely limit
damage.’
Based on your disciplinary expertise:
What questions come to mind in relation to how that idea
will be implemented or achieved?
and/or
What kind of things need to be considered to make that
idea of ‘improving the environment through development
activities’ a reality?
Regional planning
•Proposal for a ‘traffic light system’ to more clearly communicate to businesses and
industry what is ‘suitable for the development’.
•Aim is to streamline the decision-making process.
•Commonwealth and State Governments will work together in carrying out this regional
planning, and will include First Nation People’s values, aspiration, knowledge and
science (aim to complete by 2028)
•Will include monitoring to measure environmental quality overtime.
Regional planning: traffic light system
Areas that are ‘precious and irreplaceable’
with high conservation value will be
deemed off-limits for any development
Areas will be identified that require
moderate environmental consideration to
avoid as many impacts as possible
Priority areas for development will be
identified based on minimal threat posed
by development of that land
For example, areas with World Heritage or
National Heritage values, Ramsar wetlands, critical
habitat for threatened species
Introduce new offset standards
Environmental offsets are currently used by developers as a
means to compensate for environmental impacts that may result
from a given action.
Recognition that current offset arrangements are contributing
to environmental decline.
Offset arrangements will undergo reform to ensure
environmental gain: development of ‘National Environmental
Standards for Environmental Offsets’.
Independent National Environment
Protection Agency
•Responsible for compliance and enforcement of environmental laws, including EPBC
Act.
•Responsible for collecting and managing environmental data and information. Improve
environmental protection by overcoming major gaps that currently exist in information
and monitoring.
•Build trust in the system.
Explore further….
https://www.dcceew.gov.au/sites/default/files/
documents/nature-positive-plan.pdf
Aims of todays lecture
1.
Introduce the EPBC Act
2.
Define a key concept underpinning the EPBC Act: ‘Matters
of National Significance’
3.
Discuss the EPBC Act in practice: processes, approvals and
conditions
4.
Discuss recent updates to the EPBC Act
Fieldtrip: Springbrook
Relates to Group Assignment
Thursday 16th of March
Link to sign up and pay ($25) on Blackboard – see announcements
Registration due 10th March
Bus leaves at 8am
Opportunity to attend court case
See Announcement on Blackboard for details
Tutorials start this week
Forming groups!