Should issues of environmental importance just be a matter for the state where they occur, or are they a concern for all of Australia and the world at large?
This question was posed again and again throughout the 20th century, and as Australia started to accept its obligations within world heritage frameworks, it left the environment wedged between pro-development states and the pro-conservation Commonwealth.
The inevitable collision occurred with the most dramatic dispute: the Franklin Dam case.
On one side was Tasmanian premier Robin Gray, whose understanding of conservation values could be summed up by his opinion of the Franklin River as “nothing but a brown ditch, leech-ridden, unattractive to the majority of people”. Arguments against the dam made no sense to him.
On the other was prime minister Bob Hawke, who passed the World Heritage Act in an attempt to clarify the division of power. Hawke was convinced of the South West wilderness’ natural values, and believed Australia had an obligation to protect it. He took the Tasmanian Government to the High Court to test the laws – and the Constitution.
Justices interpreted the “external affairs” powers in the Constitution as allowing the Commonwealth’s global environmental obligations to override the power of the states.
The case set a precedent and allowed the Commonwealth to win again and again in similar cases throughout the 1980s and 90s until, in order to end the constant disputes, the Environment Protection and Biodiversity Conservation Act was established in 1999, bringing all matters of environmental law together in the one place.
It was designed to set in stone, once and for all, Australia’s environmental obligations from threatened species management to international treaties.
But just like the dispute that started it all, it has been mired in fierce political battles.
And thanks to its poor design and departmental neglect, the laws have been an abject failure.
The laws – 20 years on
Two reports from June outlined just hunsow poorly the EPBC Act was being administered by the federal Environment Department.
The second – Professor Graeme Samuel’s interim periodic 10-year review of the EPBC Act – found it “does not enable the Commonwealth to effectively protect environmental matters that are important to the nation”. Australia’s natural environment was “in an overall state of decline”, and the trajectory was “unsustainable”.
He recommended legally-enforceable National Environmental Standards, providing a clear guide as to how decisions contribute to environmental outcomes.
“National Environmental Standards will clearly demarcate the objectives in managing the environment, and the outcomes sought,” Professor Samuel wrote. “This is important to help the community know what they can expect from the EPBC Act. It is also important for business, who seek clear and consistent rules.”
The EPBC Act was being used by the Commonwealth to allow for “gradual decline” of the Australian environment, rather than restoring it, he found.
“Key threats to the environment are not effectively addressed under the EPBC Act. There is very limited use of comprehensive plans to adaptively manage the environment on a landscape or regional scale,” the interim report reads.
The final report is due later this year.
Pushing ahead with reform
Rather than wait for Professor Samuel to finish his work, Environment Minister Sussan Ley pushed the government’s reforms to the EPBC Act – the “Streamlining Environmental Approvals Bill” – through the lower house last week without debate.
And where the original intent of the EPBC Act was to give the Commonwealth final approval powers over environmental matters, the government plans send it in the other direction – back to the states.
It wants to negotiate agreements with each state and territory government – a “one-touch” approval system” – picking up a portion of Professor Samuel’s report which recommended that states could be more efficient than the Commonwealth at carrying out assessments. As the ANAO found, clearly the federal Environment Department was not the best place to handle the EPBC Act itself.
But there was one major omission from Ms Ley’s bill: there were no National Environmental Standards. They would have ensured that states and territories did not weaken protections for threatened species and habitat in the approval of development.
Ms Ley has since promised that the standards would be passed into law sometime after the current bill, and that signing up to the standards would be a condition for each state and territory in reaching a bilateral agreement with the Commonwealth.
She said her bill would “reduce regulatory burden, promote economic activity and create certainty around environmental protections”.
Independent Clark MHA Andrew Wilkie said it was “environmental vandalism in the extreme” and, when combined with the Tasmanian Government’s Major Projects Bill, would “allow it to fast-track dodgy projects”.
And the fight isn’t over yet.
Tasmanian senator Jacqui Lambie has confirmed she would not support the bill if it was put to the Senate before Professor Samuel’s final report was released. Senator Lambie’s vote put a stop to prime minister Tony Abbott’s attempt to reform the EPBC Act in 2014.
Without her support, the government needs either of South Australian senators Rex Patrick or Stirling Griff, but given concerns about NSW’s potential to build news dams in the Murray-Darling Basin under the new laws, their support seems unlikely.
The Tasmanian experience
Of course, Tasmania already has a bilateral agreement with the Commonwealth that attempts to circumvent the EPBC Act: the Regional Forest Agreement.
It allows logging to proceed without being assessed under Commonwealth environmental laws, but is now subject to a legal challenge from the Bob Brown Foundation. That Federal Court case centres on the RFA not making ecologically sustainable management of forests, among other factors, legally binding.
If successful, it would mean logging would need to be assessed under the EPBC Act again, and past activities would be legally void.
Tasmanian Forest Products Association chairman Bryan Hayes said the RFA had been effective from a forestry perspective because relying on a national regulatory body would be “clumsy”.
“In Tasmania, we have so many endemic species – devils, swift parrots, quolls and others – that having one national regulatory instrument that seeks to cover all of them is a task too far,” he said.
“The RFA is designed to address local issues and allow the states to manage the ecological management of flora and fauna at a local level.
“The only position we’re lobbying for is that we expect our legislators at a state and federal level to address any deficiencies in the legal structure of the RFA so that it can continue to operate effectively and efficiently into the future.”
But Wilderness Society federal policy director Tim Beshara said the Commonwealth should provide oversight of environmental approvals to avoid the states becoming “the assessor and the approver”.
“Federal environmental law is meant to prevent significant impacts to world heritage and endangered species, assessed for the specific area. It’s already tailored to the locality, so it’s not one-size-fits-all, it’s what is required to provide protection for what we want to maintain for all Australians,” he said.
“Some things are of national and global importance, and shouldn’t have a decision made by local and state governments.
“Just because a project has local political support, doesn’t mean it should have social licence.”
A supportive state
In the past 18 months, the Lake Malbena case has brought into focus the friction between the Tasmanian Government’s approval of wilderness development and the EPBC Act.
Opposition to the project involved the alleged degradation of wilderness values via the presence of a helicopter – values which were determined under global standards.
Under the proposed reforms however, the Lake Malbena project would have likely already been approved, given the Tasmanian Government supported it.
Tourism Industry Council of Tasmania chief executive officer Luke Martin said “robust environmental laws” were essential.
“But we must ensure these laws are practical, and there is not unnecessary additional red tape and regulatory burden that create angst for all stakeholders,” he said.
Tasmanian Environmental Minister Roger Jaensch was supportive of the Commonwealth’s plans, believing it reduced “duplication in the environmental approvals system”.
He said national standards were a key part of this.
“Having consistent National Environmental Standards will set clear rules for decision-making and support ecologically sustainable development,” Mr Jaensch said.
“Tasmania is not alone in our need to protect our environment while we secure and progress major projects to support our economic recovery from the COVID-19 pandemic. We need the right framework in place to achieve both.”
It now waits to be seen whether the federal government puts the reform before the Senate in 2020.