Why it’s ‘easier to get a permit to destroy nature’ than fix it

Before colonisation, the waters of the Murray River were home to a frenzy of prized Murray Cod — about 10 times as many as today.

But as newfangled paddle steamers arrived in the 1800s, waterways like the Murray River were transformed into aquatic highways.

And suddenly, things changed for fish like the Murray Cod.

For millennia, giant river red gums that lined the river banks would die, fall into the water, and create woody debris called “snags”.

Among the decaying trunks and branches, fish would seek shelter, find food and hunt prey.

So important were snags to Murray Cod, that even today, most are found within one metre of a snag.

But snags were a nuisance for the paddle steamers, regularly puncturing and sinking the boats.

Thus, in 1855 “de-snagging” began: an industrial program of epic proportions that continued for 140 years, removing millions of dead trees from the Murray River.

Today studies have revealed that denuded stretches of the river are empty of Murray Cod.

An unexpected challenge

Creating snags by pushing old trees into the water should be a relatively simple way to restore an iconic piece of Australian nature.

Or at least, that’s what conservationist and recreational fisher Cassie Price thought.

“But what we didn’t expect was the regulatory side of putting these back,” said Ms Price, CEO of OzFish, a charity that restores environments for the benefit of both nature and recreational fishers.

Environmental protection laws began to hold up OzFish’s plan to restore nature.

Ms Price said OzFish would sometimes get grant funding from governments but then environmental approvals would take so long the grants would expire before any work was done.

In some cases, governments would see potential safety risks from those snags and force OzFish to take on perpetual legal liability for any damage.

Ms Price said that didn’t make sense and would make restoration projects impossible at a larger scale.

She said the snags should be treated like a naturally fallen tree, with no legal liability.

“I think if we see it as natural habitat restoration, then once that work is done, [it] becomes a feature of the natural landscape,” she said.

‘Square peg in a round hole’

Experts say this is a systemic problem with Australia’s environmental laws.

Justine Bell-James, an associate professor of law at the University of Queensland, said from a regulatory point of view, destroying nature was “less complicated”.

Dr Bell-James said that’s because the existing laws were created to protect nature from excessive harm, not to improve nature.

“When people want to do restoration, in the eyes of the law, it’s just another kind of interference with the environment. So for that reason, restoration practitioners have to go and apply for the same sorts of permits that a developer does or that a mining company does,” she said.

“It’s like trying to fit a square peg into a round hole.”

Both Mr Bates and Dr Bell-James said nature-destroying projects, like residential buildings, agricultural clearing and major infrastructure, have special pathways to grease the wheels of the regulatory system: things like biodiversity offsets, complying development codes and prioritised infrastructure.

Those either don’t apply or aren’t available to projects that aim to restore nature, Mr Bates said.

Dr Bell-James has published research showing the problems experienced by OzFish are widespread — particularly for those who work on coastal and marine ecosystems.

She said some projects required a dozen different planning and environment permits from different government agencies, and often the agencies themselves didn’t know what sorts of permits were needed for restoration projects.

Mr Bates said this was a big problem for the federal government, since the only significant environmental reform they’ve passed through parliament — the Nature Repair Market — aims to incentivise private enterprise to “invest” in repairing nature, in return for certificates they can sell.

“Investors won’t be able to invest in something if they can’t get the certificate,” Mr Bates said.

We asked federal Environment Minister Tanya Plibersek about whether these regulatory barriers would be a problem for the Nature Repair Market.

She redirected our questions to the environment department, where a spokesperson said the market is designed to make nature repair easier.

“When methods are developed, relevant regulations are taken into consideration,” the spokesperson said.

A gruelling process

This is not just an abstract legal problem — delays caused by environmental regulations may have led to the local extinction of an endangered frog.

The historic Carwoola Station sits on the Molonglo River, just outside Canberra

It looks like typical Australian countryside but there are problems under the surface.

“The river is degraded, and it’s really impacting on the biodiversity in the valley,” station owner, environmentalist and farmer Rob Purves said.

He said the river was once shallow and slow-moving. It was dotted with ponds, and would regularly spread out over flood plains, which sucked up water in wet periods and slowly let water out during dry spells.

It was a moist environment, perfect for the endangered green and golden bell frog.

But now, like most creeks and rivers in farmland, it is deep and fast-moving and there is little water left in ponds for native species like the green and golden bell frog.

The charismatic amphibian was common across the Southern Tablelands of New South Wales.

But by the 1980s, the frog appeared to be extinct from the region.

In 1999, a single remaining population was found on Carwoola Station and a neighbouring property on the Upper Molonglo River.

Mr Purves decided he needed to secure the future of that crucial population of frog and the NSW government proposed funding works through the Saving our Species program.

Working with the Mulloon Institute, which specialises in restoring degraded fast-flowing creeks into slower-moving water bodies surrounded by ponds and flood plains, they got cracking on plans.

The idea there was to install some “leaky weirs” in the river. They would slow the water, allowing it to build up in wet weather, and naturally wet more of the landscape.

That rehydration would trigger native plants to grow.

And it would, crucially, create a resilient habitat for the green and golden bell frog.

“What’s happening here is an attempt at returning it more to what it was,” Mr Purves said.

But despite government grant funding, money from Mr Purves, and the expertise of the Mulloon Institute, which has completed projects like this elsewhere, the team were held up by regulatory barriers for years.

First, the project needed a development application approved by the local council. Then the system changed, and the development application was no longer needed — approval would go via NSW government agencies.

As they navigated that, they were told it needed to be approved under one scheme, and then after progressing down that pathway, they were told they needed a different sort of approval.

“It’s taken regulators within the NSW government a long time to get their head around the project,” Ms Hall said.

In fact, it would take six years and more than $250,000 to get all the necessary approvals.

And because not a single frog could be saved in the interim, that final paperwork may have come too late.

‘Going to be left behind’

If that was the cost of getting approvals in place to restore habitat in just one location for one species, spare a thought for the costs across the country as Australia tries to make good on promises it has made on the global stage.

The Earth is in the midst of the sixth mass extinction event — the first caused by humans — and Australia is at the forefront of the problem.

Globally, mammals are being lost at a rate perhaps 100 times what would be expected without human-induced changes.

Australia has experienced more extinctions of mammals than any other continent. Thirty-five per cent of all global mammal extinctions since 1500 have happened in Australia.

Recognising that, Australia signed up to an international agreement in 2023 committing us to nature restoration at a scale never seen before.

The Kunming-Montreal Global Biodiversity Framework binds Australia to restore 30 per cent of all degraded land, rivers and marine areas by 2030.

Michelle Ward from Griffith University said that amounted to about 5 million hectares of land.

Work by the Wentworth Group of Concerned Scientists suggests there’s another 18 million hectares of land around inland lakes, wetlands and rivers to repair to meet the agreed target, and meet other environmental goals.

Combined, that’s an area about the size of Victoria.

Dr Ward said there were some good initiatives restoring nature, but it’s nowhere near the scale required.

And if that doesn’t sound difficult enough, the federal government says it’s going to reach that target without direct funding or intervention.

Instead, it plans to incentivise businesses to use the voluntary Nature Repair Market.

However, investors famously don’t like uncertainties — and regulatory uncertainties are a big problem.

Dr Bell-James said investors would likely ignore restoration projects that face complex approval processes.

Too little, too late?

Despite all the barriers slowing work down, projects do still get over the line.

Six years on from the first application, the Mulloon Institute’s attempt to rehydrate the river on Rob Purves’ property to save the green and golden bell frog was approved in late 2024

But it might be too late.

“Over the past three annual surveys, we haven’t had records of the green and golden bell frog on the Molonglo flood plain at Carwoola,” Ms Hall said.

As work there begins, and the search for the frog continues, groups doing nature repair are pushing for reforms.

To fix the problem, Dr Bell-James said local and state governments should adopt self-assessable codes, which if complied with, allowed nature repair projects to skip some regulations.

The Queensland government is already looking at doing this and has developed a draft code for waterway restoration.

Gerry Bates said if the federal government wanted nature restoration to grow under its Nature Repair Market, it should coordinate codes like that across the country.

“There’s definitely a disconnect between federal intent and state regulatory systems that are not geared to nature repair projects,” he said.

“That’s the problem.”