3 of the worst EPBC Act failures for nature & communities

3 of the worst EPBC Act failures for nature & communities

Communities in Australia deserve a fair say in decisions made about the environment—but the system is rigged against them.

The federal government is in the process of reforming Australia’s nature laws. Here are three shocking cases that show why these reforms must give the community a fair say in environmental decision-making.

Governments & corporations come and go; nature & communities live with their decisions forever.

The law that’s failing nature and people

Australia has a national environment law. It’s called the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act), and it’s been in place for the last 20 years. It has a very important job. The law is supposed to block threats to the habitat of threatened species—like the koala and swift parrot—and ensure all governments work together to preserve Australia’s unique ecosystems for the future.

But our national environment law is not currently working to protect nature. Almost all projects assessed by the Federal Government get the green light—even when it’s clear there’ll be devastating impacts on nature and the community is overwhelmingly opposed. Because of this, Australia is now ranked #1 in the world for mammal extinctions, and #2 for biodiversity loss.

But we know that when communities are given a fair say in the decision-making, there are better outcomes for people and nature.

The three shocking examples below show how the EPBC Act is failing communities and the environment—failures the federal government must correct in its federal nature law reforms.

1. Santos’ Narrabri gasfield (Pilliga, NSW)

Photo: Sally Hunter
"We tried everything we could possibly think of to get people's voices heard and it didn't work. I don't know how you outweigh those vested interests." — Sally Hunter, community member & farmer
When the coal seam gas industry came knocking on the farm doors of Sally Hunter's neighbourhood of Narrabri, NSW, she already understood the battle that lay ahead. Her parents had faced unrelenting pressure from gas companies to sign over access to their land in western Queensland years earlier, and Sally saw firsthand how the system was rigged against them.
“The policy settings aren't right to stop these kinds of projects, and then they're exploited by the companies who know how to do that. And they're backed up by these processes that aren't independent, by these people who aren't independent, who make the decisions… The system is broken."
For years now, Sally’s community has been in a fight for their future against Santos' Narrabri Gas Project, which proposes 850 coal seam gas wells scattered over 950 square kilometres in north-western NSW. At risk is two-thirds of the Pilliga forest, a biodiversity hotspot and the largest temperate woodland in eastern Australia,¹ which sits atop part of the Great Artesian Basin—the nation's largest groundwater basin and the lifeblood of inland Australia.

Community members like Sally hold grave concerns about CSG wastewater contaminating this precious water supply, and are worried about impacts of the fossil fuel project on the climate and the region’s threatened wildlife—including koalas, spotted-tailed quolls, squirrel gliders and the Pilliga mouse.

Community members rally in the Pilliga. Photo: Naomi Hogan

Traditional owners have also made it clear they oppose the Narrabri Gas Project. The Gamilaraay/Gomeroi people have been fighting Santos for over a decade, but say their concerns over climate change and cultural heritage destruction have been ignored.²

Back in 2014, Santos referred its gasfield proposal under the EPBC Act as it was ‘likely to have a significant impact on listed threatened species and communities, water resources and Commonwealth Land’. During this process, the NSW government received close to 23,000 submissions from members of the public—with 98% of them opposed to the project. This is the greatest number of submissions ever received by the NSW government regarding a major resource project.

Sally and the community dutifully attended the Independent Planning Commission (IPC) hearings into the Narrabri Gas Project and gave their impassioned objections. But in the summary, their pleas were brushed aside.

"They were not reflecting the 90% of people that were speaking in opposition; they were glossing over that and would quote back the couple of people who were supportive,” Sally reflects. “It was just apparent that….it was just a facade, this whole dance about the so-called independent assessment of it all.”

The IPC approved the project and passed it to the then-Federal Minister for the Environment, Sussan Ley, who decided to forgo any public consultation because “the views of the public… were well understood." She gave the project the final tick two months later. In her Statement of Reasons for approving it, the Minister referred to the widespread public opposition in just three paragraphs out of 670 outlining why it should go ahead.

"[Governments] want us to be completely exhausted and emotionally drained from this process so that they can still approve the projects and have no legal recourse. That's what the process is for. It's to wear people out. To break them—it's a form of torture. And it works. It's very effective.”

Sally’s community feel like they’ve been ignored at every turn. One way they’re fighting back is by building a renewable battery through a community-run energy company they started—to demonstrate that community decisions are better for people and nature.

Still, finances for the Narrabri Gas Project and agreements for the gas pipelines are yet to be finalised. Although they’re exhausted, while there is still hope, locals like Sally have no choice but to keep battling on.

How our right to a fair say was denied

🗙 The right to know
The government approved the project before Santos announced where it would drill, meaning the impacts of the project were not clear to the community—or the government

🗙 The right to participate
The public made 23,000 submissions opposing the project to the IPC, and the Environment Minister used this to argue there was no need for a comment process as part of her EPBC assessment. The use of "discretion" in deciding whether to conduct additional public consultation under the EPBC Act limits the rights of communities to participate in the decision-making

🗙 The right to challenge
The community had no access to merits review—meaning no opportunity to seek a review of bad decisions

2. Gunns Pulp mill (Tamar Valley, Tas)

Photo: Anti-pulp mill protest that drew an estimated 15,000-strong crowd in Hobart | Geoff Lea
“Everyone thinks it was purely environmental. It was actually a community campaign, a socio-economic campaign that began because of a great sense of injustice, because the costs and the risks were going to be borne by the community and the benefits, if any, were going to be gained by private enterprise with massive government support.'' — Bob McMahon, community member & activist
At its height, Gunns Ltd—an ASX 200-listed company—had a market value of $1 billion and was Tasmania's largest private landowner. Most of its profits came from woodchipping clear-felled old growth forests. It built its empire using close relationships with state and federal governments, political donations, and by using the law to intimidate and silence its critics.³

In 2003, Gunns announced its plan to build a giant pulp mill in the Tamar Valley, near Launceston, to be fed with native forests. When the project struggled to clear planning hurdles, former Labor Premier Paul Lennon infamously fast-tracked its approval using an alternative assessment process with hand-picked consultants.
“The message it sends is that if [a company is] unhappy with the process… then [it] can throw [its] hands in the air, claim that it will cost all these jobs and lots of money that won’t be invested in the economy, and government will do summersaults to appease [it]. It is a very worrying message from the perspective of good decision-making.” — Barrister Chris McGrath

The proposal for the mill was supported by then-Prime Minister John Howard, Opposition leader Mark Latham, the Tasmanian government and the Chamber of Commerce.⁵ But the community was against it from the start—and with good reason. On the other side of the planet, toxic chemical waste from a new pulp mill was suspected as the cause of the horrific demise of wildlife and plantlife at a wetlands in Valdivia, Chile, devastating the community there.

After locals in Tasmania raised these concerns with the state government, two investigators from its pulp mill task force visited the Valdivian wetlands, but determined that the cause of the dramatic loss of bird life was ''inconclusive''.

Local Bob McMahon wasn’t buying it, so he travelled to Chile himself to find out the truth from Dr Eduardo Jaramillo, a professor of ecology and marine biology—whose scientific investigation confirmed that the cause was indeed the mill's wastewater effluent.
As the movement against the mill at Tamar Valley gained momentum, protests of up to 15,000 people marched through the streets. But despite this overwhelming community opposition, in late 2007, the then-Federal Environment Minister Malcolm Turnbull approved the mill, saying it met ‘world's best practice standards’—a dubious and disputed claim. Wilderness Society challenged the decision and had it successfully overturned on appeal, due to issues with the approval process.

In early 2011, Environment Minister Tony Burke again granted approval for the project, but by this point, Gunns was on its last legs. And in 2012, eight years after the mill was first proposed, the company went into administration—$900 million in debt.
“It was the people who stood up for their air-shed, for their marine environment, for their local amenity and for their forests—and ultimately [despite inadequate federal nature laws] defeated the biggest company in Tasmania, and a government that was willing to corrupt the process to further a commercial interest.”—Wilderness Society’s former Tasmanian Campaign Manager, Vica Bayley

How our right to a fair say was denied

🗙 The right to know
A community member had to travel to the other side of the world to access the truth about the potential environmental impacts of a new pulp mill, after the government’s own investigators labelled the evidence “inconclusive”

🗙 The right to participate
Gunns was able to convince the government to establish an alternative, ‘fast-track’ process to approve the pulp mill under the EPBC Act. Because of this, the community was not given reasonable time to have a meaningful say that could be taken into account by the decision-maker.

🗙 The right to challenge
The community had no access to merits review—meaning no opportunity to seek a review of bad decisions

3. Adani’s Carmichael coal mine (central Qld)

Image: John Englart/Flickr
“People power has been the only thing keeping Adani’s coal in the ground for ten years.” — Stop Adani campaign
Adani’s $21.7 billion Carmichael coal mine in Queensland is the biggest mining project in Australia’s history. The proposal comprises six open-cut pits and up to five underground mines, for the supply of coal to power plants in India.

The mine is located on the ancestral lands and waters of the Wangan and Jagalingou people, who have not consented to the project. The original proposal would have resulted in hundreds of billions of litres of precious groundwater being drained for the mine’s operations; 500 more coal ships travelling through the Great Barrier Reef World Heritage Area every year; and the coal produced by the mine adding billions of tonnes of carbon pollution to the Earth’s atmosphere at a time of global climate crisis.

The movement to Stop Adani is one of the largest environmental campaigns in Australia’s history. At its height, the Stop Adani campaign supported over 125 local sub-groups, organising thousands of events over many years—including over 500 rallies.⁶

Yet despite the sheer scale of the opposition, the mine has received support from all levels of government, and there are close connections between those with political power in Australia and the Adani Corporation owner in India.
“This situation seems [to demonstrate]...the significant power that business interests have over government policy in contrast to citizens’ lack of independent influence.” —Robyn Gulliver, Commons Library

The project was first approved under the EPBC Act in 2014 by then-Federal Environment Minister Greg Hunt, who ignored expert advice from the Independent Expert Scientific Committee. The Mackay Conservation Group launched a challenge, and it was found that Mr Hunt failed to consider advice about two species: the yakka skink and the ornamental snake. Following the court decision, the Federal Government gave Adani re-approval to build its massive coal mine in 2015.

Later that year, the ABC revealed that Adani failed to disclose to the federal government that its Australian chief executive ran a mining company in Zambia that pleaded guilty to serious environmental harm.⁷ Instead of this counting against them in the assessment process, the Federal Environment Department said Adani likely made a "mistake”. Less than two weeks later, the mine received its final environmental approval from the Queensland government.

In 2016, the Queensland government declared the Carmichael coal mine to be "critical infrastructure"—invoking special powers in a bid to fast-track its remaining approvals. State Development Minister Dr Anthony Lynham said the move would mean “less red tape” for the project.

Today, due to the sustained community pressure of the Stop Adani movement, the Carmichael coal mine is operating, but not as planned.⁸ Despite the mine being years behind schedule, much smaller in scale than initially hoped and worth a lot less, Bravus Mining & Resources (formerly Adani) is still getting special deals from the Queensland government—including an agreement to defer royalty payments for an undisclosed period, amounting to an estimated $271 million dollar taxpayer subsidy, and a secret contract with state government-owned water corporation SunWater.⁹

How our right to a fair say was denied

🗙 The right to know

Adani failed to disclose that its Australian Chief Executive ran a mining company in Zambia that pleaded guilty to serious environmental harm

The Queensland government is withholding details of its secret deals with Adani, now operating as Bravus Mining & Resources—allowing the coal giant to defer royalty payments for an undisclosed period, which is costing taxpayers millions—and handing over water resources for the mine without informing Traditional Owners

🗙 The right to participate
Expert advice from the Independent Expert Scientific Committee was ignored by then-Federal Environment Minister Greg Hunt when the project was first approved in 2014

The Queensland government invoked special powers in a bid to fast-track the mine’s remaining approvals, denying the community enough time to have a meaningful say

🗙 The right to challenge
The community had no access to merits review—meaning no opportunity to seek a review of bad decisions

So how do we fix this?

Right now, the federal Labor government is reforming the EPBC Act, and it needs to enshrine a fair say for the community. Here are 3 of the key changes we're calling for.

1. Proponents can’t be allowed to run the show without appropriate oversight from the decision-maker (EPA/Minister)

    Problem: The federal government’s draft reforms risk undermining the integrity of decision-making by outsourcing their responsibility for consultation about proposed developments to the very proponents that are seeking approval to undertake these developments.

    Evidence: A reliance on proponents self-referring projects and conducting their own endangered species surveys has weakened our federal nature laws for 20 years, and handing over control of public consultation to proponents will make things worse.

    Solution: The best way to ensure consistent and appropriate consultation with the community would be for the EPA to undertake those consultations to clear and consistent standards on all proposed projects–rather than relying on proponents. If the government is insistent on outsourcing consultation to proponents, there must be unambiguous mandatory requirements for proponents and rigorous oversight by the EPA.

    2. Internationally recognised standards for public comment and affected community consultation must be met

      Problem: Consultation processes should enable public comment from the broader community and participation of affected communities by adhering to internationally recognised guidelines–yet the draft reforms fail to incorporate them.

      Evidence: Australians love nature and expect a fair say in environmental decisions. Genuine community participation is essential to the integrity of decision-making, results in better environmental outcomes and minimises risk for proponents because it reduces the likelihood that approvals will be challenged. It can help ensure that all project risks are identified and that all available mitigation measures are properly considered.

      Solution: Reforms that reflect international benchmarks for public comment and affected community consultation, including a requirement for transparency regarding the impact of community feedback on the proponent’s application and the decision-maker’s final decision.

      3. The community must be able to challenge bad decisions

        Problem: The draft standard does not give the community the opportunity to seek a merits review of bad decisions.

        Evidence: Merits review improves accountability and is critical to ensuring the best decisions are being made in line with the intent of the legislation.

        Solution: EPA and ministerial project-level assessments and decisions must be subject to merits review.
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