This Insight is part of our series examining reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) through the introduction of the Environment Protection Reform Act 2025 (Reform Act).

In this Insight, we focus on sections 43A and 43B in Chapter 2, Division 6 of the EPBC Act - the 'legacy exemptions' or 'grandfathering provisions' that have allowed certain longstanding projects and land uses to continue without federal environmental approval for over 25 years. The exemptions now face unprecedented questions about their continued existence.

Significant features of the Reform Act are:

• removal of the section 43B grandfathering exemption for land clearing where land has not been cleared for at least 15 years;
• section 43B would no longer apply to land clearing within 50 metres of watercourses, wetlands or drainage lines in the Great Barrier Reef Marine Park catchments; and
• operations with specific pre-2000 environmental authorisations under section 43A are unaffected by these amendments, meaning the prior authorisation exemption pathway remains available for qualifying legacy projects.

The key changes to sections 43A and 43B brought by the Reform Act are summarised below.

The EPBC Act's protective framework

The EPBC Act protects matters of national environmental significance (MNES) under Part 3, including:

• World Heritage properties;
• National Heritage places;
• Ramsar wetlands of international importance;
• Nationally threatened species and ecological communities;
• Migratory species protected under international agreements;
• Commonwealth Marine areas;
• Nuclear actions; and
• The Great Barrier Reef Marine Park (GBRMP)

While the EPBC Act generally requires assessment and approval for activities that may significantly impact these matters, sections 43A and 43B provide specific exemptions. For 25 years, grandfathering clauses have allowed projects and land uses commencing before 16 July 2000 to continue without new EPBC approvals, recognising that projects approved under pre-existing environmental statutes should not require new federal approvals based on the introduction of a new Commonwealth law that consolidates these statutes.

Section 43A – The prior authorisation exemption

1. A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
   1. the action consists of a use of land, sea or seabed; and
   2. before the commencement of this Act, the action was authorised by a specific environmental authorisation; and
   3. immediately before the commencement of this Act, no further specific environmental authorisation was necessary to allow the action to be taken lawfully; and
   4. at the time the action is taken, the specific environmental authorisation continues to be in force.

   (1A) For the purposes of paragraphs (1)(c) and (d), a renewal or extension of a specific environmental authorisation is taken to be a new specific environmental authorisation unless:

   1. the action that is authorised by the authorisation following the renewal or extension is the same as the action that was authorised by the authorisation before the commencement of this Act; and
   2. the renewal or extension could properly be made or given without any further consideration of the environmental impacts of the action.

   Note:  If a renewal or extension of a specific environmental authorisation is taken to be a new specific environmental authorisation, the condition in paragraph (1)(c) or (d) would not be met.

    

    

    

2. In this Act:

environmental authorisation means an authorisation under a law of the Commonwealth, a State or a self-governing Territory that has either or both of the following objects (whether express or implied):

1. to protect the environment;
2. to promote the conservation and ecologically sustainable use of natural resources.

specific environmental authorisation means an environmental authorisation that:

1. identifies the particular action by reference to acts and matters uniquely associated with that action; or
2. was issued or granted following a consideration of the particular action by reference to acts and matters uniquely associated with that action.

Section 43A exempts actions specifically authorised under Commonwealth, State or Territory law before 16 July 2000, provided:

• the action was specifically authorised by an environmental authorisation in force immediately before 16 July 2000;
• no further environmental authorisation was required as of 15 July 2000; and
• the action remains within the scope of the original authorisation.

For example, cattle grazing under a Crown land licence under the Land Act 1958 (Vic) before 16 July 2000 may qualify, provided the licence was granted with environmental impact considerations and no further authorisation was required. However, any expansion, modification or intensification beyond the original approval would void the exemption.

Section 43B – Actions which are lawful continuations of use of land etc

1. A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.

2. However, subsection (1) does not apply to an action if: 

1. before the commencement of this Act, the action was authorised by a specific environmental authorisation; and 
2. at the time the action is taken, the specific environmental authorisation continues to be in force. 

Note:  In that case, section 43A applies instead.

3. For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:

1. an enlargement, expansion or intensification of use;
2. either:

(i) any change in the location of where the use of the land, sea or seabed is occurring; or
(ii) any change in the nature of the activities comprising the use;

 that results in a substantial increase in the impact of the use on the land, sea or seabed.

Section 43B was introduced to ensure exemptions apply specifically to environmental assessment and approval requirements, rather than exempting actions from all parts of the Act. It was amended in 2006 to clarify that the exemption does not apply to actions involving significant location or nature changes that substantially increase impact.

This section provides an exemption for actions that are lawful continuations of land, sea or seabed use that commenced before 16 July 2000. To qualify, the use must have:

• been lawful at the time it started;
• commenced before 16 July 2000;
• continued without any interruptions or change in activities;
• remained in the same location; and
• nature, scope and impacts of the use must remain essentially unchanged.

Qualifying activities may include routine grazing at historical stocking rates, crop rotations within previously cultivated areas, maintenance of existing infrastructure (dams, irrigation schemes, roads), ongoing weed control under established methods, and forestry operations within existing plantation areas. Any enlargement, expansion or intensification of the use would not qualify and may require referral if likely to significantly impact MNES. For example, increasing stocking rates beyond historical levels, clearing previously uncleared vegetation, expanding cultivation into new areas, intensifying land use practices (grazing to intensive cropping), and changing the activity nature (grazing to mining).

New listings of threatened species, ecological communities or National Heritage places do not affect the application of these exemptions to activities that are already covered. However, if an action does not qualify and is likely to impact MNES or the environment on Commonwealth land, it must be referred to the Australian Minister for the Environment & Heritage for assessment and approval.

Tightening of the legacy exemptions: 2006 amendments

Section 43A was significantly tightened by a 2006 amendment (effective in 2007), requiring prior approvals be a 'specific environmental authorisation'. This closed loopholes where proponents relied on general permits without real environmental assessment. The approval must relate to a law with environmental protection or conservation purpose, specifically identify the particular project or be granted after considering its unique environmental impacts, and have been in force immediately before 16 July 2000. The Act (especially after 2006 amendments) makes clear that any 'enlargement, expansion or intensification' of use, or significant change in nature or location, removes section 43B protection.

Use of the legacy exemptions in practice

Sections 43A and 43B have provided a critical compliance pathway for diverse industries and land uses across Australia. These provisions have enabled mining operations, agricultural activities, infrastructure projects and other developments to continue without federal environmental approval, provided they satisfy the strict criteria.

• Mining and resources sectors: Many large-scale mining operations operating today were originally approved under state and territory environmental laws during the 1980s and 1990s, before the Commonwealth framework. Section 43A was designed to preserve the validity of those prior approvals, recognising these operations had undergone rigorous environmental assessment under applicable state regimes. This has meant some mining companies have avoided EPBC Act referrals for operations maintaining unchanged operational footprints with valid pre-2000 environmental licences. However, the exemption is fragile. Any post-2000 expansion of mining areas, production capacity increases, extraction method modifications, or other operational changes altering the original operation's nature, scope or intensity typically void the exemption entirely, triggering EPBC Act assessment requirements (noting State and Territory approvals may also be required but are beyond the scope of this update).

   

• Agriculture and land management: The agricultural sector has derived substantial benefit from section 43B, allowing farmers and landholders to continue longstanding pre-EPBC Act land management practices including grazing livestock, cultivation and routine land management. Cattle grazing under a Crown land pastoral lease issued before July 2000 can lawfully continue without EPBC approval, provided stocking numbers, grazing patterns and land management remain consistent with historical bounds. Crop rotation within areas under continuous cultivation since before the Act's commencement generally qualifies, as does routine maintenance like fence repairs, dam maintenance, and established weed control programmes using historically consistent methods.

   

• Infrastructure and utilities: Infrastructure and utilities sectors have relied upon section 43B for ongoing maintenance and operations of pre-commencement facilities. Infrastructure maintenance presents a compelling scenario for this exemption as many facilities require regular upkeep. For instance, a major dam or irrigation scheme constructed in 1980 typically requires periodic dredging, structural repairs, and routine maintenance of pumping stations, channels and control structures. As long as these represent genuine continuation of historical operation, they may proceed under section 43B without triggering EPBC assessment. Similarly, road maintenance within existing corridors involving resurfacing, pothole repairs, drainage maintenance and vegetation management consistent with historical practice would likely qualify. However, the distinction between permissible maintenance and prohibited expansion can be subtle and legally significant. Any upgrade, expansion or intensification such as widening a road, increasing dam wall height, or installing new infrastructure elements altering environmental footprint may take the activity outside the exemption's scope and require full EPBC assessment.

Recent enforcement: The exemptions are not bulletproof

While sections 43A and 43B have provided valuable regulatory certainty for 25 years, recent Commonwealth enforcement actions demonstrate an increasingly assertive regulatory stance and reveal the narrow interpretation courts apply to these exemptions. These actions serve as clear reminders that exemptions aren't absolute shields against EPBC Act liability, and proponents bear a substantial burden to prove eligibility.

1. The Greentree Case (Greentree v Minister for the Environment & Heritage [2005] FCAFC 128)

This landmark Federal Court decision stands as a cautionary tale for landholders assuming historical land use automatically confers exemption status for expanded or intensified activities. The case involved farming operators who cleared and ploughed a substantial portion of a Ramsar-listed wetland providing critical breeding and feeding habitat for migratory bird species. The farmers argued their cropping activities represented lawful continuation of pre-EPBC Act grazing and farming, contending the transition from grazing to cropping was merely agricultural practice variation. However, Justice Sackville comprehensively rejected this argument, concluding the clearing and cultivation was not lawful 'continuation' but rather unlawful expansion into a portion not previously cleared or cultivated. The wetland had retained its natural vegetation and ecological character prior to clearing, and the farmers' actions represented fundamental land use change for that specific area.

The Federal Court ultimately imposed injunctions to prevent further clearing and financial penalties, sending a clear message that broadscale land-clearing of previously uncleared habitat, particularly in high conservation value areas like Ramsar wetlands, falls entirely outside section 43B immunity. The key legal principle – any expansion beyond the precise historical footprint voids the exemption entirely, and proponents cannot rely on general farming activities elsewhere on a property to justify clearing previously undisturbed areas.

2. Springvale and Angus Place coal mines

The enforcement action involving Springvale and Angus Place coal mines in New South Wales provides another instructive example of how post-commencement operational changes can fatally undermine claimed exemptions, even for long-established industrial operations. This case resulted in a substantial $1.45 million enforceable undertaking after exemption claims were challenged. The operators had relied on historical approvals under NSW mining and environmental legislation. However, after the EPBC Act commenced in 2000, both mines undertook various expansions and modifications. Most significantly, Angus Place obtained a formal extension approval in 2006 authorising mining beyond the original footprint. In 2005, the Commonwealth listed temperate highland peat swamps on sandstone as an endangered ecological community, and subsequent surveys revealed that the endangered peat swamps were present within the mines' lease areas, including zones affected by post-2000 operational changes.

Key lessons from enforcement

These enforcement actions, along with other compliance matters pursued by the Department over recent years, establish several critical principles that all proponents relying on legacy exemptions must understand and heed.

• First and foremost, both the Department of Climate Change, Energy, the Environment and Water and the courts interpret sections 43A and 43B narrowly and strictly. These are exemptions from a regulatory scheme designed to protect MNES, and they will not be given an expansive or generous interpretation. Any ambiguity will typically be resolved in favour of requiring EPBC Act assessment and approval rather than allowing exemption.
• Second, any post-2000 operational changes, no matter how minor they may seem to the proponent carry the very real risk of voiding the exemption entirely. This includes formal approvals for extensions or modifications granted under state or territory laws, changes to operational methods or technologies, increases in production or intensity, and expansions into new areas. The safer course is to assume that any material change will trigger EPBC Act obligations unless clear legal advice confirms otherwise.
• Third, while new listings of threatened species, ecological communities or heritage places do not automatically create new EPBC Act obligations for genuinely unchanged operations that qualify for exemption, they dramatically increase regulatory scrutiny and the likelihood of enforcement action if the exemption claim proves to be invalid. Proponents should expect heightened attention from regulators when protected matters are newly listed in areas where exempt activities are claimed to be occurring.
• Fourth, the burden of proof rests squarely and heavily on the proponent to demonstrate that they qualify for the exemption. This is not a matter where the benefit of the doubt will be extended. Proponents must be able to produce comprehensive documentary evidence including original pre-2000 approvals, historical operational records, aerial photography, production data, and other materials, proving that their current activities fall within the exemption's strict criteria.
• Finally, the consequences of getting this wrong can be severe and multifaceted. Enforcement action can result in substantial civil penalties (currently up to $11 million for corporations), criminal prosecution in serious cases, court-ordered injunctions halting operations, enforceable undertakings requiring significant financial contributions and operational changes, and serious reputational damage that can affect social licence to operate, investor confidence and stakeholder relationships. In an era of enhanced environmental awareness and activism, the reputational risks of EPBC Act non-compliance should not be underestimated.

Changes to the EPBC Act under the Reform Act

The Reform Act, as introduced to Parliament on 30 October 2025, does not explicitly repeal sections 43A and 43B. However, the future of these exemptions is far from certain, and significant limitations have already been imposed.

The Reform Act has been amended in the House of Representatives to limit the application of the grandfathering provisions in relation to land clearing. Specifically, new subsections have been added after section 43B(2).  

Inserted

(2A) Subsection (1) does not apply to an action if:

1. the action consists of, or involves, clearing vegetation from land; and
2. the land is within 50 metres of any of the following in a catchment area of the Great Barrier Reef Marine Park:

1. a watercourse (within the meaning of the Water Act 2007);
2. a wetland;
3. a drainage line.

(2B) Subsection (1) does not apply to an action if:

1. the action consists of, or involves, clearing vegetation from land; and
2. at the time the action is taken, the land has not been cleared of vegetation for a period of at least 15 years; and
3. the action is not a forestry operation.

(2C) In this section:

catchment area of the Great Barrier Reef Marine Park means the area falling within the boundary described in the dataset that:

1. is titled Great Barrier Reef catchment and river basins;
2. has a dataset scale of 1:100,000; and
3. specifies the boundaries of all river basins draining to the Great Barrier Reef; and
4. is dated 5 May 2018; and
5. is held by the government of Queensland.

Note 1: An indicative map of this area is set out in Schedule 2.

Note 2: The dataset could in 2025 be viewed on the Queensland Spatial Catalogue's website.

forestry operations means any of the following done for commercial purposes: 

1. the planting of trees;
2. the managing of trees before they are harvested;
3. the harvesting of forest products;

and includes any related land clearing, land preparation and regeneration (including burning) and transport operations. For the purposes of paragraph (c), forest products means live or dead trees, ferns or shrubs, or parts thereof.

Section 43B will not apply to an action if the action involves clearing vegetation from land within 50 metres of a watercourse, wetland or drainage lines in a GBRMP catchment area. This means even if land was historically cleared and continuously used for agriculture, the exemption is now unavailable for clearing activities within the 50-metre riparian buffer zone. Section 43B also will not apply if the action involves clearing vegetation from land that hasn't been cleared for at least 15 years, unless the action is a forestry operation. Agricultural landholders in Great Barrier Reef catchments can no longer rely on section 43B for land clearing within 50 metres of waterways, wetlands or drainage lines. The GBRMP catchment area covers a significant portion of Queensland extending as far west as the Great Dividing Range, encompassing vast agricultural regions. Any person undertaking land clearing within 50 metres of a waterway in this area must now assess whether clearing may significantly impact MNES and, if so, refer the action for EPBC approval. Land regenerated for 15 years, or more is treated as new vegetation clearing and requires EPBC approval if it may significantly impact MNES. These amendments represent significant narrowing of the section 43B exemption, particularly for agricultural land uses in environmentally sensitive areas. Forestry operations retain some protection under subsection (2B), but only for the 15-year rule, and not the GBRMP catchment area rule.

Implementation and enforcement challenges

The practical implementation of these amendments, particularly subsection (2A), presents substantial challenges. Significant Departmental resources may be required to notify and enforce this change across the vast GBRMP catchment area. Many agricultural operators may be unfamiliar with EPBC Act referral requirements, having operated in reliance on lawful exemptions for 25 years. The transition from exempt status to regulated activity will require extensive education, outreach and compliance support. The wording of subsection (2A) applies to an action which involves vegetation clearing within 50 metres of a waterway. This broad language may create unintended consequences whereby larger actions involving clearing both within and outside the 50-metre buffer are denied any exemption use entirely. For example, a landholder proposing to clear 100 hectares (only 2 hectares within the buffer zone), may find the entire 100-hectare clearing action loses exemption status because it involves clearing within the buffer. This interpretation could significantly expand the amendment's practical reach beyond its apparent policy intent of protecting riparian zones.

The amendments already passed represent only the beginning of potential changes. Environmental organisations are actively lobbying to remove or narrow these historical exemptions. The Greens have publicly called for reforms to 'remove existing exemptions to state-controlled lethal shark net programmes' and ensure 'outdated exemptions for activities like broadscale land clearing ... have no place in modern law'. 

The Reform Act proposes significant changes to environmental governance and enforcement affecting how exemptions are scrutinised. A new federal National Environmental Protection Agency (EPA) would be created to enforce the law and oversee environmental assessments, providing more independence and scientific rigour. The proposed EPA will have enhanced investigation, monitoring and enforcement powers, including greater use of technology and data. The Reform Act significantly increase penalties for environmental breaches with maximum civil penalties for companies expected to rise substantially (the existing maximum of 50,000 penalty units which is approximately $11 million may increase). New enforcement tools include environmental protection orders, enforceable undertakings and civil penalties for a broader range of contraventions. The new federal EPA is expected to take a more proactive compliance monitoring approach. The Reform Act introduces new National Environmental Standards (NES) applying broadly across activities affecting MNES. The new regime moves towards standards-based regulation, where activities must meet specific environmental performance standards. Even if sections 43A and 43B remain in legislation, activities relying on these exemptions may still need to demonstrate NES compliance to avoid enforcement action.

How the NES will interact with legacy exemptions remains unclear and will depend on the final form of standards and transitional provisions.

Industry concerns

Responses from affected industries have been swift. Queensland government ministers representing primary industries and natural resources have characterised the amendments as federal overreach disproportionately targeting Queensland's agriculture and resources sectors, which they argue already operate under robust state environmental regulations. Proponents argue the Reform Act imposes new Commonwealth powers overriding Queensland's existing approval frameworks and tying family farms in additional regulatory requirements comparable to those faced by major mining operations. Beyond regulatory burden concerns, agricultural representatives have raised practical safety and biosecurity implications of restricting vegetation management within riparian buffer zones. Industry stakeholders argue the amendments may inadvertently increase bushfire risks by limiting fuel load reduction and firebreak creation near watercourses, increase risks to infrastructure from debris accumulation during flood events, create hazards for communities with schools and hospitals near watercourses in catchment areas, and impede biosecurity management by restricting control of invasive weeds and pests. These industry concerns warrant careful consideration as they must be balanced against legitimate environmental protection objectives. The environmental case rests on well-documented evidence that riparian vegetation plays a critical role in filtering agricultural runoff, preventing sediment and nutrient pollution, maintaining water quality and providing habitat connectivity for threatened species. The Great Barrier Reef has experienced significant degradation due to poor water quality from catchment land use, and riparian zone protection is recognised as a key reef protection strategy. However, the restriction's breadth and potential for unintended consequences suggest refinement may be needed.

Watch this space:

Will sections 43A and 43B survive the reform process? Clients covered by a 43A or 43B exemption should not assume they are entirely safe under the new regime. At the very least, the reform spirit is to tighten environmental oversight, so one can expect higher scrutiny of any claimed exemptions. Particular sectors (such as agriculture, forestry and mining) may face additional limitations on their ability to rely on these exemptions. Even if the exemptions remain, transitional provisions may require re-assessment of claimed exemptions within a certain timeframe.

How will the new National Environmental Standards interact with legacy exemptions? The interaction between NES and legacy exemptions remains as an area of uncertainty. Activities may need to satisfy both the exemption criteria and the NES requirements, creating dual compliance obligations. NES could be drafted to apply regardless of exemption status, effectively requiring all activities affecting MNES to meet minimum standards. Even exempt activities may face new monitoring and reporting obligations to demonstrate NES compliance. NES may require adaptive management approaches that could be difficult to reconcile with continuation of historical practices.

Are you actually exempt? The biggest risk is assuming you are exempt when in fact you are not (or no longer). Sections 43A and 43B have precise criteria, if those conditions aren't met, your activity may be unlawful without approval. The burden is on operators to demonstrate an exemption. Any post-2000 changes to operations may have voided any exemption without operators realising. It is often difficult in practice for operators to be able to demonstrate by way of documents that operations have remained unchanged since before 16 July 2000. With enhanced enforcement powers on the horizon and a new EPA with greater resources, the risk of detection, investigation and potential non-compliance is increasing.

What about activities in Great Barrier Reef catchments? The new subsection (2A) creates immediate compliance obligations for landholders across a vast geographical area. The GBRMP catchment area extends from the coast to the Great Dividing Range, encompassing major agricultural regions including significant portions of the Burdekin, Fitzroy, Burnett Mary and other river systems. The precise boundaries of catchment areas and the 50-metre buffer zones may require expert determination, potentially involving professional surveyors and GIS specialists. What constitutes a "watercourse", "wetland" or "drainage line" may be contested, particularly for ephemeral or seasonal water features that only flow during wet periods.

What about farm dams or constructed channels? Landholders with existing plans to clear vegetation near waterways must now urgently consider whether EPBC referral is required. The cost of obtaining EPBC approval (including ecological surveys, impact assessments and potential offset requirements) may be substantial, easily reaching tens or hundreds of thousands of dollars for significant clearing proposals. For many agricultural operations, these compliance costs may fundamentally alter the economic viability of planned activities. Given that many operators in the GBRMP catchment have relied on section 43B exemptions for 25 years and may have limited familiarity with EPBC Act processes, there is a significant risk of inadvertent non-compliance during the transition period.

What about regenerated land? The new subsection (2B) creates significant implications for land that has been out of production. Land that has not been cleared for 15 years is treated as new vegetation for EPBC purposes, regardless of its historical use. Historical aerial photography may be required to prove when land was last cleared, creating evidentiary challenges for landholders who may not have maintained comprehensive records. 15 years of regrowth can create significant ecological value, potentially providing habitat for threatened species, supporting ecosystem functions and sequestering carbon. The exception for forestry operations may create definitional disputes about what constitutes "forestry" i.e. does it include plantation forestry only, or also native forest operations? What about agroforestry or carbon farming activities?