5 things we need to see in Australia's new nature laws

Australia’s abysmal rates of extinctions^[1] and land clearing^[2] since European colonisation are infamous globally. Our national environmental legislation has largely failed^[3] to protect biodiversity, including many threatened plants, animals and ecological communities. But change is afoot.

The federal government is reforming our national environmental law^[4]. Following a scathing review^[5] in 2021, the legislation is being rewritten. While amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)^[6] are yet to be tabled in parliament, the government says “rolling consultation^[7]” has begun.

About 30 environment, business and industry groups^[8] attended “targeted stakeholder workshops” last month. Public consultation begins with two webinars, on November 23 and 28. Government officials are offering to “explain how the proposed changes are designed to work and how they compare to existing laws”. But they are not sharing the draft legislation yet.

How can we assess whether these new laws can prevent further species loss and habitat destruction? Here’s an essential checklist of five things the law must include if we are to avoid calamity and hasten environmental recovery.

Read more: Labor's plan to save threatened species is an improvement – but it's still well short of what we need^[9]

1. A climate trigger

The EPBC Act does not explicitly discuss and account for climate change and its impacts. So the federal environment minister is not legally bound to consider – or authorised to refuse – new or expanded coal mines and fossil gas fields^[10] based on their future climate impacts.

But climate change clearly threatens biodiversity^[11] and special places such as the Great Barrier Reef^[12], as well as human communities and culture^[13].

Read more: We should use Australia's environment laws to protect our 'living wonders' from new coal and gas projects^[14]

2. Habitat means homes for wildlife

Protection of sufficient and connected habitat must be central to Australia’s national environmental law. If homes for swift parrots^[15], koalas, greater gliders^[16] and other threatened species continue to be destroyed^[17] and fragmented, it is all but guaranteed Australia will fail in its stated quest to avoid further extinctions.

Northern Australia is home to exceptional but declining biodiversity that is increasingly threatened^[18] by development of pastoral, cotton and fracking industries^[19].

Significant increases in land clearing^[20] and water extraction^[21] are seldom referred under the EPBC Act, let alone assessed.

Environmental law reform must stem the accelerating loss of biodiversity^[22] in this region and elsewhere^[23]. Reforms must include expanding the water trigger to apply to shale gas fracking^[24], and ensuring significant land clearing is referred and assessed.

It is also crucial that federal approval powers are not devolved to states and territories^[25], particularly in remote regions where so much damage occurs out of sight and out of mind^[26].

Read more: Land clearing and fracking in Australia's Northern Territory threatens the world's largest intact tropical savanna^[27]

3. Setting clear objectives and measuring outcomes

The new laws must state policy objectives such as no new extinctions^[28] and no actions that accelerate climate change^[29].

Decision-makers must be required to address direct, indirect and cumulative^[30] threats that undermine these objectives.

The new National Environment Standards^[31] (the centrepiece of this law reform) must stipulate red lines not to be crossed, such as no clearing of any critically endangered ecological communities or critical habitat of threatened species.

We should always seek first to avoid harm, then keep harm to a minimum, and only as a last resort, offset remaining impacts^[32] – and then only with credible offset plans that fully account for uncertainties in delivering environmental compensation^[33].

4. An independent umpire

We need a well-resourced, independent umpire, operating at arms length from government. This “independent cop on the beat^[34]” will need powers to prevent activities and developments deemed too harmful for biodiversity.

The government has vowed to create a national Environmental Protection Agency^[35]. The functioning and powers of such an entity risk being severely undermined if the environment minister of the day has the ability to “call-in” projects and make unilateral decisions over whether they can proceed. That would also create concern regarding industry influence and pressure on ministers to approve projects^[36].

It’s essential ministers not only have regard for environmental standards but also follow them to the letter of the law.

5. A Voice for Country and culture

Our national environment laws must make room for genuine Aboriginal and Torres Strait Islanders participation^[37] in how matters of cultural and environmental significance are managed.

Our new nature laws must interact with federal cultural heritage laws, which are also under reform. Entities of cultural significance, such as humpback whales and dingoes^[38], must be cared for in a way deemed appropriate by Indigenous Australians. Such a mechanism must be co-designed with Aboriginal and Torres Straight Islanders.

Policy must continue to be developed in partnership with Aboriginal and Torres Strait islander people. We suggest a Land and Sea Country Commissioner, “a Voice for Country”, could lead this ongoing collaboration. We also need to ensure groups are adequately resourced and supported to Care for Country.

We must do better

The time has come to lift our ambitions and truly protect our nation’s precious environment and biodiversity.

Australians want effective, urgent action^[39] from government. For cultural, social, economic and environmental reasons, biodiversity conservation should be treated as a public good and receive bipartisan support. It’s not an optional extra. We simply must invest in nature. We cannot afford not to^[40].

References

1. ^{^} extinctions (theconversation.com)
2. ^{^} land clearing (theconversation.com)
3. ^{^} national environmental legislation has largely failed (theconversation.com)
4. ^{^} reforming our national environmental law (www.dcceew.gov.au)
5. ^{^} scathing review (theconversation.com)
6. ^{^} (EPBC Act) (www.legislation.gov.au)
7. ^{^} rolling consultation (www.dcceew.gov.au)
8. ^{^} environment, business and industry groups (twitter.com)
9. ^{^} Labor's plan to save threatened species is an improvement – but it's still well short of what we need (theconversation.com)
10. ^{^} fossil gas fields (theconversation.com)
11. ^{^} threatens biodiversity (www.theguardian.com)
12. ^{^} Great Barrier Reef (theconversation.com)
13. ^{^} human communities and culture (www.abc.net.au)
14. ^{^} We should use Australia's environment laws to protect our 'living wonders' from new coal and gas projects (theconversation.com)
15. ^{^} swift parrots (www.theguardian.com)
16. ^{^} greater gliders (theconversation.com)
17. ^{^} continue to be destroyed (www.theguardian.com)
18. ^{^} threatened (territoryrivers.org.au)
19. ^{^} development of pastoral, cotton and fracking industries (theconversation.com)
20. ^{^} land clearing (www.abc.net.au)
21. ^{^} water extraction (www.abc.net.au)
22. ^{^} accelerating loss of biodiversity (theconversation.com)
23. ^{^} and elsewhere (theconversation.com)
24. ^{^} expanding the water trigger to apply to shale gas fracking (www.abc.net.au)
25. ^{^} devolved to states and territories (www.theguardian.com)
26. ^{^} out of sight and out of mind (www.abc.net.au)
27. ^{^} Land clearing and fracking in Australia's Northern Territory threatens the world's largest intact tropical savanna (theconversation.com)
28. ^{^} no new extinctions (www.theguardian.com)
29. ^{^} no actions that accelerate climate change (theconversation.com)
30. ^{^} cumulative (theconversation.com)
31. ^{^} National Environment Standards (www.dcceew.gov.au)
32. ^{^} only as a last resort, offset remaining impacts (onlinelibrary.wiley.com)
33. ^{^} uncertainties in delivering environmental compensation (doi.org)
34. ^{^} independent cop on the beat (epbcactreview.environment.gov.au)
35. ^{^} Environmental Protection Agency (www.dcceew.gov.au)
36. ^{^} pressure on ministers to approve projects (www.theguardian.com)
37. ^{^} genuine Aboriginal and Torres Strait Islanders participation (theconversation.com)
38. ^{^} such as humpback whales and dingoes (theconversation.com)
39. ^{^} want effective, urgent action (biodiversitycouncil.org.au)
40. ^{^} afford not to (www.theguardian.com)