Mining giant BHP warned Albanese Government months ago ‘Nature Positive’ legislation would create big issues

Australia’s biggest company has warned that a proposed overhaul of national environmental laws could make application processes more complex, blow out approval times and increase costs and litigation risks for business and industry.

Mining giant BHP urged the Federal Government to appropriately manage the transition to the Nature Positive Act and consult meaningfully with industry in a report on Australia’s competitiveness released in November last year.

“The Australian Government is about to embark on a significant change to its environmental legislation,” said the report.

“The proposed transition from the current process-based EPBC Act to the new standards-based Nature Positive Act, if not managed appropriately, has the potential to make permitting processes even more complex, increasing regulatory burden, approval timelines and litigation risk as well as increasing the cost associated with offsetting impacts.

“Because of this we strongly encourage the Government to ensure the reform process is not rushed and that all stakeholders are continued to be offered the opportunity for meaningful consultation to enable workable outcomes.”

The Nightly has revealed widespread business and industry concern over the proposed legislative overhaul, including fears investment would plummet amid heightened uncertainty and penalties would soar to nearly a billion dollars.

The consultation process with the industry has also been attacked over secrecy, with industry stakeholders prohibited from taking phones and laptops into lock-up-style meetings where they are forced to take handwritten notes.

The BHP report said high environmental and social permitting standards would be essential but urged caution to ensure changes, including the commitment to establishing a national environmental protection agency and greater recognition of Indigenous heritage, did not increase complexity.

“High standards in environmental and social permitting are welcome and essential,” BHP said in the report.

“However, it is important that these aims are achieved without increasing complexity and leading to significant permitting delays.

“Australia’s recent approach falls short on these measures.”

A key industry issue with current environmental laws is duplication in permitting, with separate applications required for state and territory agencies, as well as slow processing times.

The Nature Positive Laws are intended as a replacement to the Environmental Protection and Biodiversity Conservation Act introduced by John Howard in 1999, which a review by former Australian Competition and Consumer Commission chairman Graeme Samuel found was ineffective and increased the cost to business without adequately protecting the environment.

BHP Australia president Geraldine Slattery on Monday warned Australia’s past prosperity from easy-to-access deposits of iron ore, metallurgical coal and natural gas wouldn’t be enough to sustain the nation going forward and it was crucial the economy remained competitive.

“Streamlining approvals and permitting — without reducing standards — for new projects will create jobs and opportunities including for small business, local and Indigenous businesses,” she told a business conference in Sydney.

Other industry concerns with the proposed laws include expanding the scope of heritage areas and a lack of clarity over whether the minister or the soon-to-be-established federal environmental protection agency will have the final say on applications.

A Minerals Council of Australia briefing note, obtained by The Nightly, warned industry concerns were being ignored by the federal environment department.

Environment Minister Tanya Plibersek promised to strengthen environmental protections, slash red tape and speed up decision-making times when she announced an overhaul of the EPBC in December 2022.