More bilateral agreements to reduce EPBC Act red tape

By Nick Thomas.

Key Points:
The Council of Australian Governments last week indicated that Commonwealth-State bilateral agreements will be developed across the nation under the Environment Protection and Biodiversity Conservation Act 1999 in an effort to reduce red tape for environmental approvals.

The message from the Council of Australian Governments (COAG), following its meeting last Friday (14 July 2006), was clear - we need to reduce the regulatory burden across Commonwealth, State and local government in environmental assessment and approvals processes. There are, no doubt, many means by which cross-jurisdictional reform could be achieved in environmental law. The means which COAG proposed is bilateral agreements under the Environment Protection and Biodiversity Conservation Act 1999 ("EPBC Act").

The EPBC Act is the key Commonwealth environmental statute. One of the primary functions of the EPBC Act is to provide a Ministerial approval regime for actions (such as development projects) which are likely to have a significant impact on prescribed "matters of national significance", and certain actions which involve Commonwealth agencies or Commonwealth land.[1]

The EPBC Act provides several avenues of exemption from the approval requirement. Most of these would apply in only a very limited range of circumstances. However, the bilateral agreements exemption has the potential to apply in all circumstances.

A "bilateral agreement" is an agreement between the Commonwealth Government and a State or Territory Government which provides for one or more of several prescribed matters, including "minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State or Territory (or vice versa)".

There are two types of bilateral agreements which fall within this category:

• approval bilateral agreements effectively provide for the accreditation of a State or Territory assessment and approval process, and thereby remove the requirement for assessment and approval under the EPBC Act; and
• assessment bilateral agreements effectively provide for the accreditation of a State or Territory assessment process; they remove the requirement for assessment under the EPBC Act, and allow an approval under the EPBC Act to be given on the basis of the State or Territory assessment process.

The value of accreditation under a bilateral agreement is highlighted by a number of recent legal challenges to the validity of the Commonwealth Minister's decision in the course of the approval process under the EPBC Act. While the most recent legal challenge failed[2], others have succeeded.[3]

So far, the Commonwealth has been prepared only to negotiate assessment bilateral agreements, which means that approval requirements are duplicated but assessment requirements are not. Assessment bilateral agreements have been signed by Queensland, Western Australia, Tasmania and the Northern Territory but yet to be completed with the remaining States and the ACT.

The Communiqué issued by the COAG representatives at the end of their meeting stressed the importance of bilateral agreements in reducing duplication and providing greater certainty for business. This suggests that there is renewed impetus for the finalisation of bilateral agreements, which is an encouraging sign. We have previously advocated the use of bilateral agreements as a means of reducing uncertainty and streamlining assessment and approval processes.

Significantly, the COAG Communiqué goes on to refer to the finalisation of outstanding assessment bilateral agreements as "a stepping stone to the conclusion of approval bilateral agreements". This suggests that the Commonwealth Government may be prepared to remove the requirement for approval of an action under the EPBC Act altogether, if the action is assessed under an appropriate State law in accordance with the terms of the relevant bilateral agreement.

The timing for concluding negotiations on bilateral agreements is unclear, but it appears unlikely that significant changes to the EPBC Act are on the agenda. The COAG Communiqué states that relevant Government officials will report back to COAG "by the end of 2006 with strategies further to improve and streamline environmental approvals processes, within the existing architecture of the EPBC Act" [emphasis added].

                        

 

[1] The current so-called "matters of national significance" are:

• the world heritage values of a declared World Heritage property;
  
• the National Heritage values of a National Heritage place (that is, a place which has been included on the National Heritage list);
  
• the ecological character of a declared Ramsar wetland (that is, a wetland of international significance for migratory bird species listed under the Ramsar Convention);
  
• listed threatened species and ecological communities;
  
• listed migratory species;
  
• the environment if the action is a nuclear action; and
  
• the environment in a Commonwealth marine area.
  

Approval is also required for actions by a Commonwealth agency which are likely to have a significant impact on the environment, and actions by any person which are likely to have a significant impact on the environment on Commonwealth land.

[2]  such as Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment& Heritage [2006] FCA 736 (see our Alert here)

[3] such as Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190  (see our Alert here)

 

For further information, please contact Nick Thomas.