Fig 1. Northern Brushtail Possum (at Nightcliff Market 2025), listed as vulnerable nationally.

Background

Australia’s main federal law to protect threatened species is the Environment Protection and Biodiversity Conservation (EPBC) Act.

In late 2025, much needed reforms to the EPBC Act were passed by government. The detail of these reforms are now being finalised into standards that are critical to tackling Australia’s extinction crisis.

Based on the Lee Point defence housing project in Darwin, Friends of Lee Point (FLP) believe that policy will continue to be ignored or simply used as explanatory information.

Consequently, the FLP submissions are limited to the draft legislative instruments, refer EPBC reforms for consultation documents. The two FLP submissions are:

1. Submission on draft Matters of National Environmental Significance (MNES) Standard – legislative instrument

General comments

Wording – strengthen the wording in the standard, replace the word “should” with “must” or “shall”.

Hierarchy Principle– It is imperative that avoidance measures are properly investigated and reported on before considering other measures. This step should be done openly and transparently to build public trust ie. reports made available to the public.

Specific comments

In addition to the general comments above, the amendments below in red are being recommended to the legislative instrument provided in the consultation documents:

8 Principle 1—Actions appropriately consider the application of the mitigation hierarchy

Requirement to have regard to the mitigation hierarchy

Step 1—Avoidance

If possible, impacts to protected matters ~~should~~ must be avoided by taking measures to anticipate and prevent significant impacts to protected matters before those impacts occur.

ADD Note:

Note: Where possible, other locations shall be independently investigated and reported on to avoid impacts to protected matters.

Reason – Apart from mining ore bodies, many projects have viable location options. Having location options independently evaluated would give the community confidence that all reasonable avoidance measures have been properly investigated.

9 Principle 2—Actions appropriately consider impacts to protected matters

In considering the nature, extent or severity of an impact on a protected matter, regard ~~should~~ shall be had to the context in which the impact might occur.

Note 1: The context includes, for example, the unique context of a protected matter, including the past, present and reasonably foreseeable future events, circumstances and threats affecting the protected matter.

Note 2: The context may also, depending on the particular matter being considered (for instance, when considering bioregional plans and strategic assessments) include the following:

(a) the interaction of different stressors, for example the combined impacts of light, noise, and habitat clearance to breeding success of endangered species as a result of an action or a number of actions;

(b) the combination of past, present and reasonably foreseeable future events, circumstances and threats affecting the protected matter; and

ADD to Note 2

(d) conserving biodiversity corridors.

Reason – Habitat loss and fragmentation is regarded as the main cause of biodiversity loss in urban areas. Minimising fragmentation means conserving biodiversity corridors where possible.

Further comment – Rewrite Principle 2 to make it more outcome based. Include a requirement to report on whether the impact is in a biodiversity corridor or near one.

11 Principle 4—Appropriate evidence, first nations engagement and consultation

Actions ~~should~~ shall be supported by appropriate and suitable:

(a) data and information;

(b) consultation with Aboriginal and Torres Strait Islander people and contribution of their knowledge; and

ADD Note 1

Note 1: Marked-up aerial photographs are to be offered to Aboriginal and Torres Strait Islander people as part of the consultation process.

Reason – Drawings are not always understood by the public, especially by people with English as second language. Many First Nations people from remote areas have flown in aircraft and readily understand aerial photography.

People at the consultation events are not always the key people and the information will need to be passed on.

ADD Note 2

Note 2: Prior to any development commencing “Free, Prior and Informed Consent“ shall be sought.

Reason – “Free, Prior and Informed Consent” is a specific right for indigenous people that was adopted by the United Nations in 2007 as a crucial aspect of sustainable development.

2. Submission on draft Environmental Offsets Standard – legislative instrument

General comments

Wording – strengthen the wording in the standard, replace the word “should” with “must” or “shall”.

Offsets – The standard needs to acknowledge that offsetting or compensation payments may not be appropriate. Critical habitat is declining for threatened species and restoring habitat eg. old growth forest can be cost prohibitive and is not always successful.

Restoration contribution charges – introduce stronger upfront restrictions. For projects funded by the Australian Government, restoration contribution charges involve transferring funds around government ie. with no incentive to properly protect the environment.

Specific comments

In addition to the general comments above, the amendments below in red are being recommended to the legislative instrument provided in the consultation documents:

Principle 1—Feasibility

(3) A high degree of certainty s~~hould~~ shall be demonstrated through:

(a) existing substantiated expert knowledge or peer reviewed science on how the offset activity will achieve offset objectives with a high confidence of success, taking into consideration the reasonably foreseeable future adverse impacts of climate change (including recommended actions in conservation planning documents); or

(b) independent verification of prior success for an analogous activity; or

(c) independent expert review and endorsement of the proposed offset activity and associated outcomes for the protected matter, as well as comprehensive adaptive management plans, and

(d) Independent assessments of the proponent’s past performance in meeting outcomes of the Act.

Reason – Poorly delivered offsets by proponents can adversely increase impacts making the offset activity not feasible.