Strike a better balance for project approval and land

There’s no love for the creaky, bloated 20-year-old Environment Protection and Biodiversity Conservation Act. The law is meant to strike a balance between competing interests but it is no longer fit for purpose. It neither aids economic progress nor adequately protects our iconic places. Last week National Farmers Federation president Fiona Simson told the National Press Club that “for too long, draconian and complex environmental regulation has shackled farm businesses”. So-called green tape is a drag on mining, too, with six peak mining and resources groups pushing for an overhaul of the Act, calling for the removal of “unnecessary duplication and complexity” to provide greater certainty for businesses. Delays on big projects can cost companies up to $1m a day. Lawfare also has been a major hurdle to projects such as the Adani and New Acland coalmines in Queensland, a salmon farm in Tasmania and tourist facilities.

According to the Institute of Public Affairs, the lawfare provision of the EPBC Act had put $65bn of investment at risk by holding up major projects, such as dams, coalmines and roads, in court for a total of 10,100 days, or almost 28 years, since 2000. Last month, the Australian National Audit Office slammed the Environment Department’s handling of approvals for major projects. Apart from delays, the Auditor-General found problems with the quality of decisions in protecting national and world heritage sites, marine areas and water resources. The average time overrun for decisions was 116 days, with 79 per cent of approvals containing conditions that did not comply with process or contained clerical errors. According to the report, the measure of how well environmental protection laws were working was limited by the “the absence of effective monitoring, reporting and evaluation arrangements”.

Presented with this evidence of sub-optimal processes and poor all-round outcomes, the Morrison government has vowed to address the Act’s myriad failings. It made a $25m “congestion-busting” funding injection. As well, it launched a full-scale review, which considered 30,000 submissions, by Graeme Samuel, the former head of the competition watchdog. On Monday, Professor Samuel issued an interim report that found broken trust in a system that was slow and cumbersome. It serves no one’s interest. The average time taken for a large industrial project to be approved is 1013 days, and that’s before court challenges and onerous post-approval requirements. “The operation of the Act is dated and inefficient, and it is not fit to manage current or future environmental challenges, particularly in light of climate change,” he found.

Professor Samuel outlines sweeping change, forcing greater responsibility on to the states to fast-track projects and slash regulation. It makes sense to have “single-touch approvals”, as proposed, to remove duplication with Canberra. Environment Minister Sussan Ley will negotiate with the states to accredit them to carry out assessments and approvals on the commonwealth’s behalf. She said the government would develop national environmental standards by the end of next month to underpin the new bilateral agreements. The pandemic and its associated shutdowns, which have put investment on ice and led to a huge drop in employment, have raised the stakes. Reform demands nothing less than a swift overhaul.

Significantly, the report found both state and federal governments had failed in their obligations to traditional owners. “There is a culture of tokenism and symbolism,” it says. “The EPBC Act prioritises the views of Western science, and Indigenous knowledge and views are diluted in the formal provision of advice to decision-makers.” More is needed to “support better engagement with Indigenous Australians and to respectfully incorporate traditional knowledge of country in how the environment is managed”. Ms Ley said she would work with Indigenous Australians Minister Ken Wyatt and state ministers to modernise the protection of Indigenous heritage.

The Morrison government has rejected the report’s recommendation for an “independent cop on the beat” to oversee enforcement of new rules. Labor and environment groups had championed a US-style Environmental Protection Agency. Ms Ley also ruled out expanding the Act to include climate triggers, as did the report, arguing the current framework for regulating greenhouse gas and other emissions would be retained. While Labor is wedged, as Graham Lloyd writes, the review is also asking the government to get serious about policing. Professor Samuel has found the current collaborative approach to monitoring, compliance, enforcement and assurance is too weak and penalties do not provide an adequate deterrent.

There will be a consultation period and the full report is due by the end of October. While devolution is sensible, there should be scope to finesse, streamline and buttress different parts of the Act in coming months to achieve better outcomes. As Lloyd argues, the ultimate objective is a system that will give business confidence to make decisions and environment groups less incentive to lodge frivolous legal actions to stall development. As we emerge from the pandemic, with millions of workers idle, investment in a deep hole and confidence shattered, the nation needs new projects, of all sizes, to get back on track. The Morrison government should not a waste a moment to restore trust and reliability in an approvals system that is well beyond its use-by date.