Details of amendments secured in negotiations between the Greens and the Albanese Labor government
Native Forest Logging
Regional Forestry Agreements (RFAs) have previously been exempt from assessment under the EPBC act. These agreements meant that native forest destruction could be approved by State forest agencies without needing to be assessed under national environmental laws.
In negotiations with the Greens, the Labor Government has agreed to remove the RFA exemption. This will mean that RFAs must now be consistent with national standards, and subject to EPBC Act provisions. This change is beyond what the Minister previously floated publicly. This will be phased in over 18 months.
Removing the exemption and accrediting RFAs under the Act is consistent with the Samuel recommendations. It will make forestry subject to national environmental standards and unacceptable impact and net gain tests. The EPA will monitor operations and, on advice from the EPA that a State forest agency is failing to comply with national standards, the Minister can suspend or revoke the RFA. The Minister can also call-in forest activities for assessment.
These changes will make it much harder to get approval for future destruction of native forest and improve oversight of forestry operations.
Land Clearing Exemptions
Most land clearing has never been assessed under the EPBC because it has been subject to a “continuous use” loophole. The original intention of this transitional provision was to allow activities that regularly occurred before the 1999 commencement of the Act to continue.
However this provision has been exploited so that clearing of land has occurred on a massive scale with no legal or administrative oversight.
The Greens have secured the Labor government’s agreement to remove the continuous use exemption for clearing of vegetation over 15 years old, bringing destructive clearing under national environmental laws. Clearing remnant vegetation that will have a significant impact on threatened species, ecological communities, globally listed wetlands or the Great Barrier Reef will now need to be assessed against the National Environmental Standards and cannot be approved where it will have an unacceptable impact.
In particular, clearing “high risk vegetation” within the Great Barrier Reef catchment will trigger an assessment, noting that UNESCO has recognised that land clearing is one of the greatest threats to the World Heritage values of the Reef. This change will go some way towards protecting those values.
The Minister has also undertaken to issue a ‘statement of intent’ to the EPA once it has been established to ensure that monitoring and enforcement of land-clearing is prioritised by the Agency.
While these changes will not ban land clearing, they will lead to monitoring and enforcement of currently unregulated clearing, assess the impacts of clearing and ensure clearing that will have unacceptable impacts are refused.
Coal & Gas Fast-Track/Loopholes
Labor’s proposed laws created new pathways that coal and gas projects could use fast-track projects through the environmental approval process.
These include the ‘streamlined assessment pathway’, the ‘bioregional plan’ pathway (which marks out “go and no-go zones” in designated geographical areas) and the ‘national interest pathway’ (which allows a project to avoid unacceptable impact and net gain requirements).
The Greens have secured changes so that coal and gas projects are explicitly excluded from these three fast-track pathways and will have to proceed through full environmental assessment processes, including public consultation and engagement rights.
Water Trigger
In previous balance of power parliaments the Greens established a “water trigger” that requires large coal mining or coal seam gas fracking projects that may have significant impact on water resources to be assessed by the Federal government. We later negotiated an extension to include all unconventional gas in the trigger.
Labor’s original proposal would have allowed these assessments and final decisions to be made by State Governments that do not have any assessment processes in place and are often conflicted in wanting coal and gas projects to proceed quickly.
The Greens have fought to ensure the water trigger stays in federal hands.
Devolution of powers to states
The Greens have been very concerned about allowing the states to get ‘accreditation’ that allows them to assess and make decisions over projects without Federal oversight. State and Territory governments often have greater financial or political incentives to support projects, and Federal approval powers have provided an important safety net against unacceptable developments.
While the government would not remove approval accreditations, the Greens have negotiated further safeguards, including requiring States to first demonstrate that they have complied with an assessment accreditation, mandatory call-in powers to allow the Federal Minister to regain control for particular projects, and a requirement for the Minister to respond to EPA advice that a State is not meeting its National Environmental Standards.
Reined in the wide ministerial discretions
The Greens have secured important changes to tighten requirements for projects and decisions to be aligned with the National Environmental Standards. Rather than a legally weaker test of being “not inconsistent”, decisions will now need to be consistent with standards.
While some discretion remains, this will mean stronger assessment and a more robust test to judge decisions against.
Establish an Inquiry to review the National Environmental Standards
The suite of National Environmental Standards against which decisions will be judged will not be finalised until after the law has passed. Drafts of two standards have been released, with more expected in coming months. These standards will still be subject to parliamentary oversight, and the government has committed to a Senate Committee process to ensure the standards can be properly interrogated by the Greens and the Senate.
Offsets
The government has proposed a Restoration Contributions Fund for offsets, allowing developers to simply pay to destroy, with no requirement that the fund be spent on ‘like for like’ measures to compensate for threatened species or communities damaged by a project.
The Greens have secured a restriction that would prevent the Restoration Contributions Fund being used to offset impacts on “protected matters”. These matters will be determined by the Minister at a future date, with the advice of the Threatened Species Scientific Committee. These ‘protected matters’ will include any habitat identified in protection statements and could include other critically endangered species, ecological communities, and other species nominated.