Introduction

The Biodiversity Council welcomes the opportunity to provide feedback on the draft National Environmental Standard for Matters of National Environmental Significance (MNES).

Our understanding

The consultation includes a policy paper and legislative instrument. The legislative instrument formalises the standard as law under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The policy paper explains how the standard is intended to work.

Overall assessment

The development of National Environmental Standards formed the centrepiece of the Samuel Review recommendations, as clear outcomes and requirements provide benefits to the community, businesses and government.

The Review noted that precise, quantitative standards for MNES will “provide for effective environmental protection and biodiversity conservation and ensure that development is sustainable in the long-term.” The Review suggested that future standards could include quantitative measures such as population size and trends and area and quality of habitat.

The Samuel Review developed a recommended National Environmental Standard for MNES that provides a model against which the legislative instrument can be compared. The Review suggested that the recommended standard for MNES is a first and immediate step that should be taken and that it would:

...clarify the existing settings of the EPBC Act to define clear limits of acceptable impacts for MNES, while accepting flexibility for development. They represent an improvement on the status quo, where opaque rules and unfettered discretion in decision-making often results in the trading away of environmental outcomes.

The Review noted that the standards would support more streamlined decision making because “[i]f the outcomes are clear and legally required, it does not matter who makes project assessment and approval decisions.”

The legislative instrument as currently drafted falls well short of what was proposed by the Samuel Review. The language is weak throughout, with regular use of non-binding terms such as “should” rather than binding terms such as ‘must’ or ‘will’, and regular use of vague terms such as ‘support’ and ‘promote’ rather than specific and positive language such as ‘ensure’ and ‘increase’. Rather than set clear outcomes for matters of national environmental significance, it focuses on process. There are no clear requirements to be met, no criteria to support decision-making and no thresholds or acceptable impacts. It is unclear what benefit the standard will provide beyond what is already addressed by the amended EPBC Act.

The lack of requirement to demonstrate progress toward objectives of the act with scientifically robust monitoring data is hugely disappointing given the focus that the Samuel Review placed on the role of data and evidence as the “true north” in the words of Graeme Samuel.

Some specific areas of concern are listed below. Download the submission for more details.

1. The application of the standard is narrower than that proposed by the Samuel Review
2. The instrument does not adequately address cumulative impacts
3. The instrument does not require consistency with conservation planning instruments
4. The instrument does not include monitoring, evaluation, reporting and improvement
5. The objective for threatened species and migratory species is inadequate

How to strengthen the standard

The Standard should apply to plans and policies that relate to MNES, not just decisions relating to actions.

The legislative instrument should be strengthened by:

Cumulative impacts

• Referencing cumulative impacts in the text of the provisions themselves, not just the notes
• Setting thresholds on cumulative impacts across multiple actions and establishing how accumulating impacts will be measured and reported and who will be responsible for the measurement and reporting, and
• Clarifying who must assess and judge whether an individual impact will push cumulative impacts beyond the specified threshold.

Consistency with conservation planning documents

• Ensuring protection statements adhere to existing conservation planning documents, such as recovery plans and listing advice, and confirmed by the Threatened Species Scientific Committee

Monitoring, evaluation and improvement

• Include monitoring, reporting and evaluation requirements, including who will be responsible for monitoring and reporting, and ensuring public visibility of monitoring and reporting outcomes.

Objectives for threatened species and migratory species

• Strengthen the objectives to ensure that “Populations of threatened species and habitat, including critical habitat of the listed threatened species where the habitat is irreplaceable and necessary for a threatened species survival in the wild, is protected, conserved and restored to ensure the survival and recovery of the threatened species. AND
• Protection and recovery actions maintain and increase the abundance and distribution of threatened species, and ensure the viability of threatened species in the wild.” (download the full submission to see proposed amendments to the MNES Standard)