Minerals Council of Australia claim officials already trying to enforce controversial Nature Positive rules

Federal environment officials are allegedly already assessing mining projects using controversial ‘Nature Positive’ principles — despite them not even being law yet.

Environment Minister Tanya Plibersek’s office said the serious allegation was “incorrect”, stating all applications are assessed under the existing legislation.

But The Nightly can reveal the Minerals Council of Australia chief executive Tania Constable last year wrote to Ms Plibersek with concerns officials were jumping the gun on the planned re-write of the Environment Protection and Biodiversity Conservation Act (EPBC Act).

In a letter dated August 15, Ms Constable said members were reporting that department assessment officers were already “referring” to policies being developed under Labor’s Nature Positive Plan when considering applications.

At that stage, the consultation process on the overhaul of the EPBC Act — which is still going — was in its very early stages.

“This practice is not appropriate and should cease,” Ms Constable said of the department’s alleged conduct.

Achieving “nature positive” outcomes — which means repairing and restoring nature, not just protecting it — is at the heart of Labor’s planned environment protection reforms.

Under the Nature Positive Plan which Ms Plibersek published in December 2022, a company might be required to purchase environmental offsets or make “conservation payments” to cover the damage from their projects.

“Many of the proposed tools that will be available to proponents, such as conservation payments, are not currently available today,” Ms Constable wrote in the letter to Ms Plibersek, which was released under Freedom of Information.

“As such, it is not appropriate to require nature positive outcomes when the tools to achieve this are not yet available.”

Ms Constable said existing applications must be assessed under the existing EPBC process and shielded from the new regime to “avoid material delays to approval timeframes or standards”.

Asked to respond to the council’s allegation, a spokeswoman for Ms Plibersek said: “That’s incorrect”.

“Under the Albanese Government, each and every application under the Environment Protection and Biodiversity and Conservation Act has been and will be strictly assessed under the existing law,” she said.

Ms Constable’s concerns were outlined in a 12-page letter to Ms Plibersek detailing several suggestions on the redesign of the EPBC Act.

Among the recommendations, she said all project assessments must take into account social and economic factors as well as environmental considerations.

The new federal environmental protection watchdog should be restricted to making straight-forward decisions, she said, with rulings on all complex projects left to the minister.

The mining industry’s concerns with the Federal Government’s plan have only grown since Ms Constable’s letter.

The Nightly earlier this month obtained a leaked Minerals Council briefing paper outlining a number of concerns with the proposal — including the prospect of heavy fines for breaches of environmental laws.

The Nature Positive Plan is Labor’s response to former ACCC boss Graeme Samuel’s review of the EPBC Act, which found the federal environmental protection system was broken.

The final closed-door consultation session on the EPBC Act overhaul is scheduled for next week.

Speaking on Sky News on Thursday, Ms Plibersek again promised the planned overhaul would mean less red tape for business. and better outcomes for the environment.

“We want jobs and prosperity for Australia, and we want to make sure that our kids can see a koala wild in a tree in 30 years’ time.,” she said.

“We need to be able to do both.”