Professor Graeme Samuel’s Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was released in late January 2021.
The report pushes an overhaul of national environmental laws – and at the centre of these reforms is the development of National Environmental Standards.
To help address the issue of duplication with state and territory development approval processes, the new National Environmental Standards are intended to set the boundaries for decision-making and deliver the protections needed for "matters of national environmental significance", such as threatened species.
National Environmental Standards will however only work as part of a reform package, and, as Samuel notes, will only work if there is a mandated and rigorous compliance and enforcement regime to ensure that decisions made are consistently and fairly enforced in accordance with the law. The report proposes the establishment of an Environment Assurance Commissioner and a new, beefed-up enforcement office within the federal environment department, as well as an improved role for Traditional Owners.
Thoughtfully, Samuel cautions that: “Governments should avoid the temptation to cherry-pick from a highly interconnected suite of recommendations”. But to date, precisely that has already happened. The Morrison Government is continuing its moves to introduce new "streamlining" legislation that aims to hand back environmental approval powers from the Commonwealth to the states – all before the EPBC Act gets the reforms it needs, and the report recommends.
Like its predecessor (the Hawke Review, undertaken about a decade ago), the Samuel Review is scathing of Regional Forest Agreements (RFAs) between the Commonwealth and states which allow the logging industry exemption from the EBPC Act. The Samuel Review believes that the environmental considerations under the RFAs
and associated legislation are weaker and do not align with the EPBC Act’s assessment of "matters of national environmental significance". It is also noted that there is insufficient Commonwealth oversight of RFAs and the assurance and reporting mechanisms are weak. Who knew? This is a repeated point made by conservation groups such as VNPA for decades. (See Another Decade)
To end the special treatment of the logging industry, the report recommends an increase in the level of environmental protection afforded in RFAs by way of the Commonwealth immediately requiring them to be consistent with the proposed National Environmental Standards and, during the second tranche of reforms, amending the EPBC Act to replace the RFA exemption.
Victoria’s outdated RFAs were only recently renewed for another ten years, showing that there is often little appetite for fundamental change. Similar recommendations by the Hawke Review a decade ago were ruled out almost immediately by the then federal Labor government.
The report also highlights that stakeholders are concerned that the Commonwealth does not deliver effective oversight of how system-level approaches that are exempt from the EPBC Act have been implemented, nor how they are delivering environmental outcomes. The report cites RFAs as an example of this and Strategic Assessments as another. Concerns about the failure of the Melbourne Strategic Assessment are acknowledged in the report, including VNPA’s specific submission on these issues as they relate to critically endangered grasslands threatened by development in Melbourne’s urban growth area. (See Renewed rush to "clear" the way) The report notes that: “The use of a strategic assessment in some cases, for example for growth corridors of major cities, has been a work around rather than the most ideal planning tool”. This is Canberra speak for "it’s not working and probably shouldn’t have been used in the first place".
However, while acknowledging the failing and legally complex nature of these exempt approaches, the report essentially
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