Earlier this year, the Parliament of Australia passed the Environment Protection and Biodiversity Conservation Amendment (Reconsiderations) Bill 2025, changing how some environmental decisions can be reviewed under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The Bill limits the power of the Minister for the Environment to reconsider certain past decisions. It aims to provide “certainty and fairness to industry, workers and communities, where industries have already been operating for a significant amount of time”.

It follows requests made to the Minister to reconsider decisions on salmon farming in Macquarie Harbour, Tasmania, particularly about the potential impact of this ongoing action on the Maugean skate, an endangered species listed under the EPBC Act.

The amendments are seen as controversial and are already the subject of Federal Court proceedings, in which the Bob Brown Foundation is seeking orders requiring the Minister to determine the reconsideration requests, despite the new limitations introduced by the Bill.

RECONSIDERATION FRAMEWORK

Under the EPBC Act, the Minister must decide whether a proposed action requires approval because it is a controlled action. A controlled action would be prohibited under Part 3 of the EPBC Act (which concerns matters of national environmental significance) if carried out without a controlled action approval issued under Part 9 of the EPBC Act.

When deciding whether a proposed action requires such approval, the Minister may determine that the activity is not a controlled action if it is carried out in a particular manner. In other words, a ‘not a controlled action – particular manner’ decision (NCA-PM decision).

Under section 78 of the EPBC Act, the Minister can revoke certain decisions made about an action and substitute a new decision if they are satisfied that it is warranted by matters including:

• The availability of substantial new information or a change in circumstances (not foreseen at the time of the first decision) about the impacts that the action has, will have, or is likely to have on a matter of national environmental significance.
• The initial decision determined that the action was an NCA-PM, but the action is not being undertaken or will not be undertaken in the manner identified in that decision.

Where an NCA-PM decision is revoked and substituted with a decision that the action is controlled, the action needs to stop until a controlled action approval is sought and obtained.

WHAT’S CHANGING – AND WHY IT MATTERS FOR LAND USE PLANNING AND DEVELOPMENT

The Bill seeks to restrict the Minister’s power to revoke and substitute an NCA-PM decision where:

• The identified manner required the action to be taken according to a management arrangement made, approved or administered by the government of a State or Territory.
• The action is being taken.
• The action has been ongoing or recurring for at least five years.

In effect, this puts a limitation period on the review of NCA-PM decisions. In the mining industry, this change may influence whether past decisions on how environmental impacts are managed in resource planning and mine site development can be reviewed in light of new information.

Where projects involve ongoing interactions with the environment, such as open-cut operations, tailings management or mineral processing facilities, which were previously determined not to be controlled actions when undertaken in a prescribed manner, the risk profile may shift if regulatory oversight is restricted beyond the five-year window.

As noted in the second reading speech for the Bill, while the salmon farming example is driving the Bill, it is “potentially not an isolated event”.

IMPLICATIONS FOR THE MINING INDUSTRY

While the Bill was prompted by a case involving aquaculture, its effects extend to any sector that involves long-term land use or recurring operations, including mining. It applies broadly to any action with potential environmental impact, including those related to mining operations with ongoing environmental interactions that are not prescribed activities.

SCOPE FOR FURTHER REFORMS TO THE EPBC ACT

In October 2020, Professor Graeme Samuel AC completed the second independent review of the EPBC Act and published a final report, the Samuel Report, which concluded that the EPBC Act is “outdated and requires fundamental reform”.

Relevantly, the Samuel Report stated: “The current approach lacks a clear articulation of environmental outcomes and a mechanism for evaluating and reporting on the effectiveness of the EPBC Act. The lack of an overarching framework to support evidence-based and adaptive management, and to optimise monitoring and reporting effort, remains a key shortcoming that needs to be addressed.”

The changes made by the Bill do not seek to address these observations. Rather, by narrowing the scope for reconsidering NCA-PM decisions, the Bill may limit the opportunity for adaptive management of longer-term impacts and the consideration of emerging information around the cumulative effects of ongoing activities.

The explanatory memorandum to the Bill acknowledges that “better information, along with the increasingly dynamic nature of the environment, increases the likelihood that actions originally determined to be unlikely to have a significant impact on a protected matter under the EPBC Act could in future meet the threshold for reconsideration.”

While the government’s Nature Positive Plan, published in December 2022, sets out a pathway to broader reform of the EPBC Act in response to the Samuel Report, progress on proposed reforms has been deferred.

IMPLICATIONS FOR FUTURE MINING PROJECTS

This Bill highlights the importance of environmental due diligence at the outset of a project. Mining proponents may need to assess not only whether approvals are in place but also how those approvals might interact with the evolving environmental landscape, particularly if opportunities for future review are now limited.

For mining and resource projects or related activities operating under an NCA-PM decision, the passing of the Bill may mean that the decision is no longer challengeable. For anyone with an interest in an ongoing action that has commenced within the last five years under an NCA-PM decision, the passing of the Bill may put a deadline on requests to reconsider the NCA-PM decision.

This raises the importance of comprehensive upfront due diligence and a clear understanding of environmental constraints. Projects that involve recurring land use, such as extraction sites, logistics, or utilities infrastructure, must ensure long-term compliance with their approved of action, particularly if circumstances or site conditions evolve.

Share this story