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Proposed Changes to Environmental Protection law


The principal federal environmental legislation over the past eleven years has been the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). In 2008 the then Minister for the Environment Heritage and the Arts, Peter Garrett, commissioned an independent review into the EPBC Act. The review was undertaken by an expert panel led by Dr Allan Hawke, and the report was tabled in Parliament on 21 December 2009. The review put forward 71 recommendations. The Australian Government has now released its response to the review on 24 August 2011. In a speech to the National Press Club, the Minister for Sustainability, Environment, Water, Population and Communities, Tony Burke, outlined some of the more important aspects of this response.

In relation to recommendations on project assessment, the Minister said that the Government would expand the use of Strategic Assessments. Strategic Assessments focus on landscape values and cumulative impacts of development. Under the proposed changes, this would mean that for certain activities there would be no need for a developer to carry out a separate environmental impact statement. Proposals could be considered directly for approval or rejection, and decisions made as to what environmental conditions are attached to any approval. Strategic Assessments are carried out with cooperation of the state or territory government, however if no agreement is forthcoming the Australian government may chose to carry out a similar assessment resulting in the development of a Regional Environmental Plan.

The question arises as to whether future coal seam gas projects would be exempt from further assessment if a strategic assessment were to be carried out, for example, over the entire Darling Downs. There appears to be no clear answer to this at present.

To further streamline the environmental approval process, the Minister indicated that state governments will be able to approve projects under the EPBC Act, provided that they meet soon to be developed national standards. At present only joint assessment of projects can be carried out by states and territories, and not approvals.

Among the recommendations that the government did not accept was for the merit review of approval decisions by Courts. The Minister felt that this decision was the duty of the Minister and not the judiciary.

The Government did accept the recommendation to introduce Ecosystems of National Significance as a new “trigger” for assessment and approval under the EPBC Act, alongside existing matters of national environmental significance. This is designed to protect areas that are not necessarily endangered but are ecologically important The Minister used the example of the Cassowary corridor:

where you find an area that's used for nesting, an area that's used for foraging, they're a long way apart, [and] neither of them at the moment are particularly endangered nor is the corridor between them. But unless you acknowledge the entire ecology then you create an unthinkable situation for one of our most iconic species. To be able to allow an area like that to be eligible for a level of protection before we get to the line of last resort, I have to say, is good public policy.
The Minister noted that it is essential to properly manage protected areas, once they are established, and proposed that developers may contribute financially to such management as a form of environmental offset. A draft offsets policy has been released for consultation.

The Government has proposed cost recovery for the assessment and approval processes and a consultation paper on this topic will be released.

The overview of the reform outlines the major elements of the package released by the Government. A draft National Biodiversity Policy has also been released for public comment.

(Image sourced from: Queensland Department of Environment and Resource Management)