List of recommendations
Recommendation 1
4.62The committee recommends that the Australian Government undertake further consultation regarding the definition of 'nature positive' to ensure that it is consistent with Australia's international commitments, including the Global Biodiversity Framework.
Recommendation 2
4.65The committee recommends that the Minister consider measures to encourage the incorporation of First Nations traditional environmental knowledge into Environment Information Australia and in particular, in determining the baseline for nature positive, and in the register of national environmental information assets, with appropriate protections for Indigenous Cultural and Intellectual Property and the confidentiality of culturally sensitive information.
Recommendation 3
5.72The committee recommends that amendments be made to the Nature Positive (Environment Law Amendments and Transitional Provision) Bill 2024 to consider introducing greater procedural safeguards for the issuing of Environmental Protection Orders (EPO), including considering requirements for limited merits review, and requiring the Minister (and subsequently the CEO of the EPA) to disclose the underlying facts that have led to the issuing and scope of an EPO.
Recommendation 4
5.78The committee recommends that amendments be made to the Nature Positive package of bills to introduce a new National Environmental Standards making power to enable the Minister to make, review and amend National Environmental Standards as disallowable legislative instruments.
Recommendation 5
5.79The committee recommends, subject to the other recommendations found in this report, that the Senate pass the Nature Positive (Environment Protection Australia) Bill 2024, the Nature Positive (Environment Information Australia) Bill 2024, and the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024.
Coalition Senators’ Recommendations
The Coalition recommends that major and far-reaching amendments would need to be made to these three Bills before they should be passed.
The Coalition also recommends that the passage of these three Bills be deferred until after the finalisation of Labor’s promised wider overhaul of the Environment Protection and Biodiversity Conservation Act 1999.
Australian Greens’ Recommendations
Recommendation 1
This package of bills is insufficient and fails to protect Australia’s environment. The Senate should amend this legislation to implement stronger protections for forests, critical habitat and the climate.
Senator David Pocock’s Recommendations
Amend Schedule 2 of the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 to bring forward amendments to close the loophole exempting native forest logging from the Environment Protection and Biodiversity Conservation Act 1999.
Recommendation 2
Amend Schedule 2 of the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 to include the following amendments to the Environment Protection and Biodiversity Conservation Act 1999:
Repeal the exemption for continuous uses of land in section 43B of the EPBC Act; and
Add new provisions to compel referral and assessment of planned deforestation greater than 20 hectares in threatened or migratory species habitat, a threatened ecological community, or in Great Barrier Reef catchments, and require the assessment and approval decisions to consider the cumulative impacts of a native vegetation clearing on each threatened species or listed MNES impacted.
Recommendation 3
The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to ensure the independence of the Environment Protection Australia by requiring an independent governance board. The functions of the Board should include the appointment of a Chief Executive Officer.
Recommendation 4
The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to establish clear objectives for the EPA in the exercise of relevant functions, powers or duties. These objectives must include: to enhance the protection and restoration of Australia’s environment, and prevent the degradation of the environment and reduce risks to human health.
Recommendation 5
The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to set out clear, legislated duties for the EPA. Duties must include a duty to protect the environment and human health from the harmful effects of pollution, destruction, degradation and waste, through assessment, enforcement, monitoring, reporting and standard setting.
Recommendation 6
The Nature Positive (Environment Protection Australia) Bill 2024 should be amended to increase transparency and accountability by establishing a legislative presumption in favour of publication of key information and decisions, including delegation of functions and powers by the Minister to the EPA.
Recommendation 7
The Nature Positive (Environment Information Australia) Bill 2024 should be amended to include a definition of nature positive in accordance with the internationally accepted definition.
Recommendation 8
The Environment Protection and Biodiversity Conservation Act 1999 should be amended to create a legislated definition of ‘unacceptable impacts’ on a matter of national environmental significance and a requirement that the Minister cannot approve an action which will have unacceptable impacts.
Recommendation 9
The impact of climate change on the Australian environment must be captured in national environment laws. The bills should be amended to include amendments to the Environment Protection and Biodiversity Conservation Act 1999 requiring full disclosure of all direct and indirect emissions likely to be caused by projects seeking approval under the Act, and an explicit requirement to consider the climate impacts of these projects should be included in the assessment and approval provisions of the Act.
Senator Lidia Thorpe’s Recommendations
Recommendation 1
The Stage 2 Nature Positive bills should not pass in their current form, and should only be passed once they are amended in a way that will genuinely improve the health of Country.
Recommendation 2
The Federal Parliament and its committees must fundamentally change their procedures, practices and policies around consultation to ensure that First Peoples and other strategically under-represented populations can meaningfully contribute and provide evidence in an accessible, timely and appropriate manner.
Recommendation 3
The development of all environmental legislation, policies and resourcing arrangements must include a broad consultation process with First Peoples, their communities and knowledge-holders on a grassroots level. This must occur in a way that adheres to the rights and obligations set out in the United Nations Declaration on The Rights of Indigenous Peoples (UNDRIP), including the principles of self-determination and Free, Prior and Informed Consent.
Recommendation 4
The Federal Government must begin Treaty negotiations with all Sovereign First Peoples as a matter of urgency to enable all language groups to uphold their cultural authority over the Country, self-determine their own aspirations and have greater control over decisions relating to the management of Country.
Recommendation 5
The Federal Government must progress its work program for strengthening protections for Country and First Peoples’ tangible and intangible cultural heritage as a matter of urgency, including the establishment of transparent timelines and broad public consultation processes that allow for appropriate scrutiny and accountability.
Recommendation 6
The Federal Government must implement in full all recommendations from the 2021 A Way Forward report into the destruction of Juukan Gorge, including the introduction of new standalone cultural heritage legislation as a matter of urgency. This must include broad consultation to ensure that cultural heritage laws align with all new environmental laws, and National Environmental Standards to protect any further destruction of First Nations tangible and intangible cultural heritage.
Recommendation 7
In accordance with its commitments under the Nature Positive Plan and the recommendations of the Samuel Review, the Albanese Government must immediately release the draft National Environmental Standard for First Nations Participation and Engagement in Decision-Making and engage in a broad consultation process, including the provision of a clear timeline for development and implementation of the Standard in this term of government.
Recommendation 8
The Federal Government must ensure that First Peoples’ perspectives and ecological knowledge is embedded in all environmental policy, practices and approaches to nature protection, including the Nature Reform package and Environment Protection and Biodiversity Conservation Act 1999, to prevent the ongoing destruction of First Peoples’ cultural, intangible and tangible heritage. This must include appropriate protections for culturally sensitive information and Indigenous Cultural and Intellectual Property, in recognition of the fact that First Nations knowledge is not a resource to be extracted.
Recommendation 9
First Peoples must have a greater role in decision making about Country, including strengthening the role of the existing Indigenous Advisory Committee (IAC) by:
clearly specifying the functions of the IAC in legislation, including tasking it with overseeing the development, implementation, monitoring and review of the National Environmental Standard (NES) for First Nations Engagement and Participation in Decision Making;
providing that the IAC may provide advice to other statutory decision-makers and relevant agencies, including the CEO of Environment Protection Australia (EPA), any advisory body established by the EPA, the Head of Environment Information Australia (EIA), the Threatened Species Scientific Committee, and the Australian Heritage Council;
improving transparency of the IAC’s work, including publication of advice provided by the IAC to the Minister and other statutory decision-makers; and
providing for the frequency and procedures of meetings, including publishing of its agendas and records of meeting minutes on the Department’s website (subject to non-disclosure of confidential or sensitive matters).
Recommendation 10
Amend the EPA Bill to legislate a ‘board with CEO’ model, with adequate provisions to ensure a strong and independent EPA and that the CEO carries out their functions consistently with clear duties and purposes of the EPA.
Recommendation 11
Amend the EPA Bill to legislate Objects of the EPA Act and clear duties on the CEO, including duties to deliver nature positive outcomes, halt and reverse the decline of listed threatened species, and adhere to the principles of Free, Prior and Informed Consent in engaging with First Nations.
Recommendation 12
The Data and Information National Environmental Standard must be prioritised alongside the First Nations National Environmental Standard and EIA must be legislatively required to act consistently with these standards to appropriately deal with First Nations knowledge and protect Indigenous Cultural and Intellectual Property, in accordance with Article 31 of the UNDRIP.
Recommendation 13
Amend the EIA Bill to insert a definition of nature positive based on the Global Biodiversity Framework.
Recommendation 14
The Nature Positive baseline should be established as a matter of urgency in the EIA Bill to avoid Country and cultural heritage being destroyed by any further delays, to be implemented using the 2021 State of the Environment Report and prioritising areas under threat due to exploration and expansion, rather than relying on the CEO to establish a baseline.
Recommendation 15
Amend the EPBC Act to include a strong legislative framework for the development and implementation of legally binding National Environmental Standards in the form of disallowable legislative instruments, in accordance with the Government’s commitment and the recommendations of the Samuel Review. This framework must include:
a legislated timeline within which priority Standards must be developed, beginning with the First Nations Engagement and Participation in Decision Making, Data and Information, and Matters of National Environmental Significance;
allow for the application of Standards to decisions and function under the EPBC Act;
arrangements around the governance, implementation, monitoring and review of the Standards;
a non-regression clause so that future Standards cannot weaken existing Standards; and
appropriate provisions to take effect in the event that the legislated timeline is not met.
Recommendation 16
Amend the EPBC Act to strengthen critical habitat protections and provide clear definitions of unacceptable impacts for each Matter of Environmental Significance.
Recommendation 17
Amend the EPBC Act to repeal the exemption for Regional Forestry Agreements and ensure the EPBC Act can apply to native forest logging to halt the destruction of our sacred sites, our totems, and so many threatened forest-dependent species.
Recommendation 18
Amend the EPBC Act to ensure appropriate referral of land clearing for impact assessment and requirements for the consideration of cumulative impacts in decision-making under relevant sections of the Act.
Recommendation 19
Repeal the continued use of land exemption at section 43B of the EPBC Act to end the agricultural sector’s exploitation of this loophole and allow for EPBC regulation of deforestation in threatened species habitat.
Recommendation 20
Amend the EPBC Act to insert provisions to restrict the use of biodiversity offsets in line with best practice.
Recommendation 21
The Nature Positive bills must be amended to require explicit consideration of climate impacts and full emissions contributions of new projects, aligning the legislation with our climate targets under the Climate Change Act 2022 and the reformed Safeguard Mechanism.
Recommendation 22
Amend the EPBC Act to expand the existing water trigger to include consideration of the cultural values of water resources and ensure it applies to carbon capture and storage projects.
Recommendation 23
The Minister for Environment and Water must use their powers under the EPBC Act to protect Country by:
calling in Tamboran and Empire Energy’s gas fracking wells for assessment under the EPBC water trigger;
repealing the EPBC approvals for Defence Housing Australia’s unlawful and destructive development at binybara/Lee Point;
adequately assessing the Hunter Gas Pipeline, which will have devastating impacts on Gomeroi Country, including groundwater, biodiversity, and the climate; and
calling in Adani’s coal mine for review under the EPBC water trigger in light of new scientific studies revealing the mine’s devastating impacts on water resources.