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Bates, Gerry --- "Editorial: Rethinking regulations" [2021] PrecedentAULA 60; (2021) 167 Precedent 2

RETHINKING REGULATION

By Dr Gerry Bates

Writing this editorial just two weeks before COP26, arguably the most important global conference ever held that, some commentators say, could dictate the fate of our planet, it is important to focus attention not just on how to achieve a sustainable transition away from fossil fuels, but also on how to better manage our land to build resilience to climate-induced droughts, floods, bushfires and resultant loss of biodiversity.

Since colonisation, European farming practices have dramatically changed Australian landscapes, resulting in serious land degradation and loss of complex ecosystems. Removal of native vegetation has adversely affected how water flows through the landscape, removing the primary mechanism that slowed the flow and built the floodplains. Today the rivers and creeks of many catchments and their tributaries are deeply incised, with serious implications for catchments’ water-holding and water-filtering capacities, as well as their ability to sequester carbon (significantly higher in hydrated soils). Other significant impacts relate to the height of the water table, agricultural productivity, biodiversity and ultimately the resilience of a catchment to extreme climatic events.

Does environmental law have a part to play in redressing the balance, healing the land and promoting climate resilience? This edition highlights its potential to do so – but its authors note how far the law has yet to go, given the gaps in policy, accountability mechanisms and legislation, the lack of integration of legislative measures across Australia, and the extreme vulnerability of certain population groups to the effects of climate change.

The regulation of environmental and natural resources management traditionally adopts a process-driven approach that assumes development of land needs to be regulated by government to avoid or minimise environmental harm. This approach does not distinguish between projects that may have adverse impacts and those with beneficial outcomes for restoration of the environment. One such activity I am currently engaged in, with the Mulloon Institute,^[1] is the landscape rehydration scheme, which breathes new life into landscapes through soil replenishment and return of biodiversity.

Such schemes also offer a win–win outcome for agricultural productivity and restoration of habitat. Yet landowners proposing land rehydration projects are forced to complete multiple assessments to gain multiple approvals from different government agencies. This adds complexity and significant expense to any proposal: potentially tens of thousands of dollars to secure development consents, conduct cultural heritage, biodiversity and fisheries assessments and obtain water licences. The Mulloon Institute has spent over $350,000 and waited more than 30 months for approvals to rehabilitate the Mulloon Creek Catchment. Not surprisingly, private landowners frequently do not proceed with land rehydration projects that would have beneficial environmental outcomes and promote drought resilience.

An outcomes-based rather than process-driven approach by government would far more effectively encourage landowners and lessees to carry out land rehydration and other environmentally beneficial projects. This approach would recognise that, although short-term construction of works may have impacts, particularly on biodiversity, the longer term benefits for soil replenishment and habitat restoration would far outweigh any negative impacts. This could be achieved by adopting a code-based system, drawn up by all interested regulators and overseen by one primary regulator, which landowners would inform of their intent to commence a code-approved activity. The primary regulator could monitor and enforce compliance with the code. This would remove the expense and complexity of the current process-driven system of environmental regulation, replacing it with an outcomes-based approach for projects with proven or anticipated environmental benefits.

The NSW Crown Lands Commissioner’s recent report acknowledges the need, regarding beneficial environmental projects, for:

‘[a] more proactive approach to achieving environmental outcomes on Crown land, which can be facilitated through the removal of legislative impediments. Currently environmental protection, restoration, rehydration or enhancement works require the approval or concurrence of multiple authorities and departments ...

Recommendation: Simplify the assessment and approval requirements for environmental works to a single approval.’ ^[2]

The question now is whether government agencies are prepared to meet the threats triggered by climate change by removing disincentives to the completion of beneficial environmental works on private and public land and accelerating the uptake of climate resilient restoration projects. If the science is right, we don’t have much time left to fundamentally change how we rethink and apply environmental regulation.

Dr Gerry Bates authored the standard university text Environmental Law in Australia (now in its 10th edition) and founded the Environmental and Planning Law Journal in 1983. His past roles include Member of state Parliament (Green Independent) and lecturer, and he has received awards for outstanding contributions to environmental law from the National Environmental Law Association and the Law Council of Australia.

^[1] See <https://themullooninstitute.org>.

^[2] Evaluation of the Crown Land Management Act 2016 Implementation: Findings and Recommendations (Report, July 2021) 36.