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What is the EPBC Act and why, as outdoors people, we should care about it

Blue Mountains National Park

The EPBC Act, short for Environmental Protection and Biodiversity Conservation Act, is Australia’s national environmental legislation. It came into force in 2000 and its main objectives are to provide for the protection of the environment and promote ecologically sustainable development and conservation of biodiversity.

The EPBC Act achieves these objectives by giving the Commonwealth government a role to play in assessing and approving actions that will have an impact on what the Act calls ‘Matters of National Environmental Significance’ (MNES). There are currently nine MNES which are:

- World Heritage places

- National Heritage places

- Wetlands of international importance (Ramsar Wetlands)

- Listed threatened species and communities

- Listed migratory species

- Nuclear actions

- Commonwealth marine areas

- Great Barrier Reef Marine Park

- Water Resources that are impacted by coal seam gas and coal mining

If anyone wants to take an action which will have a ‘significant impact’ or is likely to have a ‘significant impact’ on a MNES, it is prohibited unless the Commonwealth government has given approval, or the action is subject to an exemption such as a Regional Forests Agreement. There are three steps to the Commonwealth approval process.

Firstly, the action is referred to the Department of Agriculture, Water and the Environment.

The Department then conducts an environmental impact assessment of the project. Considering this assessment, as well as the social and economic impacts of the project, the Minister then decides whether to approve or deny the action, or, as is common, approve with conditions.

This provides a basic overview of the operation of the EPBC Act. For an idea of how it has been used, from the commencement of the Act until 30 June 2019, there have been 6253 actions referred to the Minister. Of those, 5088 actions were approved, and only 21 were denied.

Kosciuszko National Park

How does the EPBC Act relate to the outdoors?

As outdoors people, the natural environment is a huge part of our lives. Whether we work or recreate in these outdoors spaces, we all have an interest in ensuring these natural environments receive effective protection and conservation. Often, the State protections are not sufficient, hence robust federal protection is vital for the long-term survival of our outdoors spaces.

Think of the area where you do any sort of outdoors activity. Is it a National Park, a local nature reserve, the ocean, a lake? This area will afford the protection of the EPBC Act if it falls under one of the nine MNES mentioned above.

The list of Australia’s World Heritage Areas is found here. It includes big-ticket items like the Great Barrier Reef, the Blue Mountains, Kakadu, Lord Howe Island, Fraser Island, Ningaloo Coast, Uluru-Kata Tjuta National Park, Willandra Lakes, tropical Rainforests in Queensland and the Gondwana Rainforests across NSW and Queensland.

The list of places of National Heritage is much longer and can be found here. Some notable outdoors places include the Australian Alps National Parks, Grampians National Park, Warrumbungle National Park, the West Kimberly, Ku-ring-gai Chase National Park and the Glass House Mountains. For oceans, wetlands and other National Parks, visit this interactive map available here.

If your outdoors space isn’t a MNES, you are relying on the presence of a listed threatened or migratory species in order to trigger the protections of the EPBC Act, the list of which can be found here.

If there is a MNES in your outdoors area, then any action proposal needs to be approved by the federal Minister for the Environment.

Why has the EPBC Act been in the news recently?

There are two reasons why the EPBC Act has been coming up in the news recently.

Firstly, the interim report of the EPBC Act’s 10 yearly review was released in June. In short, the review was scathing. The interim report criticised the Act as ‘ineffective’ and ‘not fit to address current or future environmental challenges’, and said that fundamental reform is needed. This should be extremely worrying to outdoors people, as the places where we work, recreate and love may be at risk without effective legal protection

Secondly, in early September an amendment to the EPBC Act, known as the Streamlining Environmental Approvals Bill, was passed by the House of Representatives. Currently before the Senate, this Bill attempts to introduce ‘one-stop’ or ‘single touch’ approvals by allowing the Commonwealth to enter into bilateral agreements with the States as to approvals processes. Essentially, the Federal government is trying to devolve its role in environmental approvals, citing the need for reduced regulatory burden and economic activity promotion. However, there are several extremely concerning issues with these proposed changes.

It is worrying that the government is trying to make amendments to the Act before the review is complete. On top of this, the Bill does not even mention the reforms recommended by the interim review, such as national environmental standards and an independent compliance and enforcement body. Whilst a ‘one-stop’ approvals process may be quicker, States don’t always act with the national interest in heart. They may have conflicting interests in the matters, such as receiving royalty payments from logging or mining operations. Furthermore, as found by a recent report, State environment laws are even weaker than the federal laws. This could have disastrous consequences for environmental protection.

How can the EPBC Act better protect our outdoors spaces?

At a broad level, implementing the recommendations suggested by the interim report are a good start. These include legislated National Environmental Standards, and an independent compliance and enforcement body. More specifically relating to outdoors spaces, National Parks and Nature Reserves could be added as a MNES, hence attracting the protections of the EPBC Act. This has been suggested and endorsed by the National Parks Australia Council. Having these parks and reserves as a MNES will ensure that ALL these areas receive appropriate protections from development, regardless of World or National Heritage listing, or the presence of listed threatened species, and hence preserving vital biodiversity and protecting these areas for the future generations.

What can I do to help?

A great way to start is to learn about the MNES in your favourite outdoors spaces and around your home. Are there any National or World Heritage listed places, Ramsar Wetlands, and perhaps most importantly, what are the threatened species in your area?

Secondly, protest the Streamlining Environmental Approvals Bill! If you’re comfortable, you could write to or call the crossbench senators, particularly if you are one of their constituents, asking them to oppose the Bill. Senators Stirling Griff, Rex Patrick and Jacqui Lambie have said that they will oppose the Bill, but it would only take one of them to vote for the Bill for it be passed.

Finally, stay informed. The final report of the EPBC review is expected to be released at the end of October. The Senate is next sitting from the 9th to the 12th of November and will potentially vote on the Bill then.

Learning about the inadequacy and ineffectiveness of Australia’s environmental laws can be very bleak and frustrating. However, it’s not all bad - there have been some significant wins in Australia’s environmental law - stopping the Franklin River in Tasmania from being dammed in the 80s, and more recently, the NSW Land and Environment Court using climate change as a reason for denying the Rocky Hill Mine to name a few! Engaging with organisations like the Environmental Defenders Office, the Australian Conservation Foundation and Environmental Justice Australia can help you learn more about environmental law reform and stay up to date with the changes.

Uluru-Kata Tjuta National Park

Author Bio

Pippi Callan

Alongside her studies in law, Pippi loves being outdoors and is a keen hiker and trail runner. She is passionate about environmental law reform and climate action.

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