By Peter Burnett
This is a version of an article published on 12 December 2022 in The Conversation; it contains some additional material.
The Albanese Government’s ‘Nature Positive Plan’ reform package last week, announced by Environment minister Tanya Plibersek last week, is a much-anticipated response to Professor Graeme Samuel’s 2020 Review of the Environment Protection and Biodiversity Conservation (EPBC) Act. It will be a major plank in the Albanese government’s 2023 agenda.
The plan is packed with policy announcements, most of which stick close to Samuel’s recommendations. Major stakeholders have welcomed the package, none more so than Samuel himself, who expressed ‘complete elation and unqualified admiration and respect’ for Plibersek.
The heart of the plan is a bold decision to drop the current ‘box-ticking’ approach to development approval. Instead, decisions must deliver environmental outcomes that reflect new national environmental standards.
As Plibersek puts it, the government now has a ‘big agenda’ supporting a vision of ‘net zero and nature positive by 2050’.
Dauntingly for her, the path of this big agenda stretches far over the political horizon and is littered with hurdles.
Here are ten hurdles the minister will have to jump, just for starters.
1. Climate trigger
The Greens and several cross-benchers have already criticised the absence of a ‘climate trigger’ in the reforms. This would expose large developments to having their carbon emissions limited as a condition of approval. Developments might even be refused for excessive emissions.
The government argues that regulation should not duplicate other measures, especially the safeguard mechanism, which already limits emissions from major facilities. Fair point, but so is the concern that Australia’s primary environmental law, designed to protect matters of national environmental significance, does not deal with the most significant environmental threat of all.
There is scope for a limited climate trigger, to fill gaps in climate regulation, so perhaps a deal will be done. Large-scale land clearing is climate-significant, but not regulated for carbon impacts. Similarly, Australia does not regulate large developments for their ‘scope 3’ downstream domestic emissions (eg, domestic gas production). Now that we have a Climate Change Act and an emissions budget, there is a case for a reserve power not to approve projects on the ground that there is no room left in this budget to accommodate these omissions.
2. Weasel words in the standards
Setting standards for nature-based decisions is cutting edge; the idea is to spell out exactly what a healthy environment looks like, and how much environment we need.
Samuel worked with stakeholders to include some draft standards in his report; in doing so he rightly counseled against ‘weasel words’ — words that rob the standards of their punch, like ‘as far as possible’.
But one person’s weasel words are ‘flexibility’ to another. It won’t be easy keeping the devil out of the detail.
3. Sell standards to states
To eliminate duplication, a major bugbear for business, the reforms provide for states to be accredited to take decisions that are otherwise for federal government, provided they meet the standards. If the states agree to meet the standards for federal decisions, environment groups may push to apply the standards to state-only decisions. States will resist being driven by federal policy.
4. Get into bed with states on regional planning
Regional environmental plans sit alongside national standards at the heart of the reforms. Standards will define what needs to be protected, while plans will say where protected values lie and how much protection is needed, on a traffic light system: red for irreplaceable, orange for values that can be offset, and green for minimal restrictions.
Federation makes it almost essential that the federal government partner with states in preparing regional plans. Plans could be based on Australia’s 56 Natural Resource Management regions or 89 bioregions.
Plibersek has moved early, signing an MOU with Queensland to work together on regional plans on the day she announced the reforms. Even so, this is a long and winding road — time-consuming, expensive and politically challenging.
5. Forest deal
Regional forestry agreements (RFAs) are exempt from the EPBC Act, though both have been criticised for similar failings: inadequate conditions on development, inadequately enforced.
One can almost feel the rumble of logging trucks in the cautious language of the plan to ‘begin a process of applying’ the new national standards to RFAs, in consultation with stakeholders.
6. Respect Indigenous views and values
Professor Samuel was rightly passionate about bringing true respect for Indigenous views and values into the EPBC Act. The challenges however do not stop with respectful engagement.
The Rudd Government endorsed the UN Declaration on the Rights of Indigenous People (UNDRIP) and a Parliamentary Committee is considering its domestic application. A key UNDRIP principle is free, prior and informed consent. If we listen respectfully to Traditional Owners, but are told ‘no’, will this translate this into a veto?
7. Kick-start nature repair markets
The Albanese government has placed significant emphasis on the environmental role of the private sector, through ‘nature repair markets’. The plan promises to establish the functional components of these markets.
The government says it cannot foot the repair bill alone. That may be so, but the private sector is motivated by profit, supplemented at the margins by social licence and philanthropy. The government may build a market but with these motivations only a few will come. Often, there just is no business case for voluntary action.
It would be different if we put a price on biodiversity, as we briefly put a price on carbon but, thanks to Tony Abbott, that idea is ‘dead, buried and cremated’.
Offsets seek to compensate Nature for approved loss, eg clearing habitat for construction. The compensation should be ‘like for like’, eg growing new koala habitat to substitute for cleared habitat. The bottom line is that if offsetting is not possible, nor is the development.
The plan will replace this last restriction with a rule that if offsetting is not possible, pay cash and proceed. Government will spend it on something else, applying a ‘better off overall test’ (BOOT).
If we run out of koala offsets, would feral cat reduction, which benefits quolls but not koalas, leave nature better off? Does the offset need to save two quolls for every koala lost, or is one for one enough? Tricky.
This policy would fit better with a policy goal of conserving whole ecosystems rather than individual species.
9. Build not just trust but support
Samuel found that all sides had lost trust in the EPBC Act. Some things are easily fixed. Full transparency, clear policies, reasons for decision given routinely.
Ironically, things that restore trust will tend to box decision-makers in, just as magicians would find it much harder to perform their tricks if we could see into the magic box.
10. Buckets of money
Of the many hurdles confronting Plibersek in the near term, the highest sits in her own Cabinet room, where she will seek funding in the 2023 Budget. One recent study found that federal and state spending, on threatened species alone, was 15% of what was needed.
Whatever funding is announced, history suggests it will fall several zeros short of what Nature needs.
The biggest problem with the EPBC Act has not been what sits within it, but what does not sit behind it. It has been chronically under-resourced and under-implemented. EPBC is a story of unrealised vision.
We cannot afford a repeat of the EBPC story — better to dig deep and make the Nature Positive Plan work.