Submitted 27 March 2024
Farmers for Climate Action (FCA) appreciates the opportunity to provide a submission to the consultation process for the proposed New Nature Positive Laws.
FCA welcomes the government’s commitment to implementing recommendations from the Samuel Review (2020). We are pleased that the government is reforming the EPBC Act and introducing Nature Positive Laws to ensure the continued effectiveness of Australia’s environmental protection mechanisms so they can continue to deliver benefits for Australia’s environment.
Key Points
- FCA is concerned that the reforms do not take adequate steps to address high emission projects and therefore supports the inclusion of a climate trigger in the EPBC Act to require activities likely to produce over a certain volume of greenhouse gas emissions are considered by EPA.
- The independence of the new EPA must be ensured. To do this, the Bill must:
- Either remove the ‘Ministerial Call in Power’ entirely or include it only in cases where the EPA has not made a decision within an allowed timeframe.
- Clarify the functions of the CEO of EPA and the scope of ministerial influence.
- Ensure that only EPA has enforcement powers under proposed reforms to the EPBC Act, and not entertain any proposal which would seek to give third-party enforcement powers to any other body.
- Clarify arrangements for the interaction of federal and state environmental agencies and legislation to avoid additional green tape.
- Improve definitions of ‘protected matters’ and ‘unacceptable impact’.
- Ensure that individuals and communities directly impacted by a proposed action are given priority in community consultations.
- Remove the provision which requires ‘like for like’ restoration of a protected matter under a regional development plan, and instead ensure that development cannot take place if it will harm a protected matter irrespective of the zone it is in.
About Farmers for Climate Action
Representing over 8,000 farmers and backed by 45,000 supporters nationwide, Farmers for Climate Action (FCA) recognises the importance of safeguarding the ability of farmers to produce food and fibre for the nation and export, while seeking the deep emissions reductions we need to limit warming to 1.5 degrees if possible. FCA is a movement of farmers, agricultural leaders and rural Australians working to influence Australia to adopt strong climate policies by growing the number of farmers, farming communities and elected representatives championing ambitious action.
Climate Trigger
FCA is concerned that the reforms do not take adequate steps to address high emission projects, in particular new fossil fuel projects. Climate change is the central environmental issue of our time, one which interacts with and impacts on all the other issues considered under the EPBC Act. Projects with climate impacts are definitely matters of national significance.
The lack of a climate trigger in the proposed reforms suggests that the Act will not effectively require the consideration of climate change as a threat to the environment. The EPBC Act must require that any proposed action which will or is likely to generate more than a set amount of greenhouse gases per annum, based on scientific data, is given adequate scientific scrutiny. It is not clear that this is currently happening through other legislative mechanisms, and including a climate trigger in the EPBC Act would provide an environmental safety-net to ensure this scrutiny occurs.
Including a climate trigger mechanism in the EPBC Act, instead of stand-alone legislation, means that high polluting projects will be addressed sooner, with more national consistency, and independently, by the new EPA. The threshold for the trigger should be determined through analysis of data and evidence – FCA does not seek to suggest what this should be in this submission.
Development of Government Agencies, including Environmental Protection Australia
FCA welcomes the proposed establishment of Environmental Protection Australia (EPA) as an independent regulatory body for Commonwealth environmental laws. FCA hopes that EPA will remove the uncertainty from environmental approvals and matters which have been caused by changes in government, and politicisation of the environment.
Independence and Ministerial Call in Power
The inclusion of a broad ‘ministerial call-in power’ which gives the minister the ability to make a decision before EPA on a matter is strongly opposed. FCA considers that this mechanism could result in the independence of the EPA being undermined. Instead, to ensure a timely decision on key projects, FCA proposes that EPA be given a set practicable timeframe to make a decision, and if it fails to do so, then the Minister may step in and make a decision. This will ensure efficiency, and accountability of EPA and uphold their independence.
Similarly, the actual and perceived independence of the EPA CEO must be maintained. The proposed powers whereby the Minister may provide a statement of expectation to the CEO of EPA, clearly sway the function of the CEO. Further, it must be clear that in advising and assisting the minister in their regulatory functions, the CEO has discretion as to decisions and functions of EPA, which the minister cannot interfere with. Clarity should be provided around how the CEO will assist and advise the minister in their regulatory functions when certain regulatory and enforcement will transfer from the minister to EPA. Ensuring that there is clear independence of EPA in the reforms is necessary to maintain the positive action of environmental protection into the future.
Third-party enforcement
FCA does NOT support the suggestion of third-party enforcement relating to breaches of matters which fall under the EPBC Act. Such a move would open farmers and other project proponents to potentially vexatious litigants, seeking to delay projects and costing proponents through legal fees. The Regulator is governed in a way that provides checks and balances of power to the public, and therefore is the only agency which should be able to bring an action under the Act.
Jurisdictional interaction and efficient regulation
FCA understands the current climate trigger proposal is designed to capture high emissions-activities and will therefore not apply directing to farming operations. Agriculture is a highly regulated sector – whether it is effluent management, employment law, food safety or animal welfare. This already heavy regulatory burden means that any additional regulation must be efficient and avoid red tape and its associated costs. There will need to be clear guidelines around the interaction between state and federal environment protection bodies, and legislation, which is set out in any reforms. This should include which body has priority on what matters, and how the EPBC Act will work with state legislation.
Standards and Protected Matters
While FCA welcomes the inclusion of Matter of National Environmental Significance and National Environmental Standards, clearer definitions are required. There are concerns that ‘protected matters’ and ‘unacceptable impact’ outlined in the consultation paper, are poorly defined, and could lead to unintended interpretations, providing clarity around
these definitions is necessary.
Concerns over ‘like for like’ Restoration for Development and Penalties
FCA’s farmer members strongly oppose the use of offsets in environmental legislation and development planning. The ‘like for like’ standard is an unachievable approach to
biodiversity protection and conservation – it is often impossible to find a ‘replacement’ or ‘substitute’ for a damaged ecosystem. FCA considers that requiring ‘restoration actions’ and ‘projected gains’ in addressing impacted ecosystems cannot be reliably applied as a tool to address damage to ecosystems.
Community Consultation on Regional Plans
Community consultation is a cornerstone of good planning and requires clear guidelines to ensure value for both participants and those managing the process. It is vital that the proposed regional development plans include genuine and deep consultation with impacted farmers and their communities.
The EPBC Act is a keystone of Australia’s environmental protection regime. As such, it must provide the scope and ability to ensure that Australia’s environment is safeguarded from harm, particularly in an era of climate change. FCA requests that you consider the content of this submission and continue to consult widely with a view to improving the proposed Nature Positive Laws, so they are fit for purpose. Should you wish to discuss this submission further, please do not hesitate to contact myself or Megan Hill, General Manager Policy and Advocacy, using the contact details below.
Yours Sincerely,
Natalie Collard
