First stage of Northern Territory's reform of environmental framework starts with new draft environment protection law

By Nicole Besgrove, Margaret Michaels
11 Oct 2018
The Northern Territory Government is seeking feedback on a new draft environmental law, as part of the first stage of its program to reform the Territory's current environmental regulatory framework, by 3 December 2018.

In line with a key election commitment to review and reform the current environmental regulatory system in the Territory, on 4 October 2018 the Government released a draft Environment Protection Bill and draft Environment Protection Regulations for eight weeks of public consultation.

In addition to the draft Bill and Regulations, a suite of supporting material has also been released by the Department of Environment and Natural Resources to assist with understanding the draft Bill, Regulations and reform program.

The two-stage reform program

The aim of the reforms is to achieve a robust regulatory system that the community can trust while providing certainty to encourage industry investment and economic growth - while still protecting the environment.

The environmental regulatory reform program will be progressed in two stages:

  • Stage 1: reform the environmental impact assessment process and introduce a new environmental approval that may be granted by the Minister for Environment and Natural Resources (Minister) at the completion of the assessment process. This will be done through the draft Bill and Regulations which is to replace the existing Environmental Assessment Act and Environmental Assessment Administrative Procedures.
  • Stage 2: reform how the Territory manages its wastes, pollution, clearing of native vegetation and the environmental impacts of mining activities. These reforms will result in:
    • amendments to the future Environment Protection Act;
    • the repeal and replacement of the Waste Management and Pollution Control Act and Litter Act; and
    • changes to the Mining Management Act and Water Act.

A new environmental impact assessment system

The draft Bill introduces changes to the environmental impact assessment system which will:

  • establish pathways for referral of proposed actions (or projects) to the Northern Territory Environment Protection Authority (NT EPA). The process for referral is set out in the draft Regulations;
  • place responsibility for referring a proposed project to the NT EPA with the proponent, although there is also provision for a call-in notice to be given if the NT EPA believes that a proponent is taking an action that should be referred for environmental impact assessment;
  • increase public scrutiny and opportunities for participation within the process;
  • establish different tiers of assessment, to provide for more streamlined assessment processes;
  • retain the environment impact statement and inquiry processes;
  • introduce capacity to conduct strategic environmental impact assessments; and
  • support the environmental impact assessment process with defined offences and regulatory powers.

A new environmental approval

The draft Bill introduces a new requirement for an environmental approval to be granted by the Minister at the completion of the assessment process, or refusal where there is likely to be unacceptable impact on the environment, now or in the future.

All proposed projects which trigger the requirement for this new environmental approval will need to be assessed under the new environmental assessment process discussed above. The NT EPA will manage the environmental assessment and will prepare a draft environmental approval (or a statement of unacceptable impact) for consideration by the Minister. The Minister is then ultimately responsible for either granting or refusing the environmental approval after consideration of the following matters when making that decision:

  • must have regard to the following in deciding whether to grant or refuse an environmental approval for an action:
    • the objects of this Act;
    • whether the proponent is a fit and proper person (as prescribed in the draft Regulations) to hold an environmental approval;
    • the potential impacts and benefits associated with the action;
    • any other matters the Minister considers relevant.
  • before granting an environmental approval for an action, be satisfied that:
    • the community has been consulted on the design of the action; and
    • the significant impacts of the action have been appropriately avoided or mitigated or can be appropriately managed; and
    • the action is acceptable; and
    • the action is consistent with the principles of ecologically sustainable development; and
    • if appropriate, residual significant impacts will be appropriately offset.
  • The Minister may also have regard to the matters prescribed by the Regulations and any other matters the Minister considers relevant in determining whether a person is a fit and proper person to hold an environmental approval.

    The draft Bill proposes that the Minister will be able to impose any conditions on an environmental approval which the Minister considers necessary for the protection of the environment (in addition to any standard conditions which can be made under the Regulations), including conditions imposing financial requirements such as providing an environmental protection bond or paying an environmental levy; or conditions requiring reporting of compliance with the approval; or conditions relating to an environmental offset.

    There are supporting provisions in the draft Bill for transferring, amending, suspending and revoking the environmental approval.

    General environmental duty

    In line with other Australian jurisdictions, an enforceable general environmental duty will be introduced which requires that a person must not take an action that may impact on the environment unless the person takes all reasonable and practicable measures to avoid or minimise any resulting environmental harm.

    If a person causes unauthorised environmental harm (ie the environmental harm has not been authorised by an approval under the Act) in taking an action the person must, to the greatest extent practicable:

    • remediate the environmental harm; and
    • restore any ecological functions impaired by the action.

    The general environmental duty also requires that any residual adverse environmental impacts of an action taken by the person are appropriately mitigated and managed

    It is an offence not to comply with the general environmental duty, however the maximum penalty is not yet known as it has not been inserted into the draft Bill.

    Environmental protection declarations

    The Minister will be able to make declarations for the protection of the environment and for the purposes of the environmental impact assessment process, including declarations to establish:

    • Territory environmental objectives which will be used to inform when an action is to be referred based upon its potential for significant impact;
    • environmental triggers which will be used to inform when an action is to be referred to the NT EPA for consideration under the environmental impact assessment process and may consist of the following:
      • referral triggers (activity-based and locality-based) which set out those activities or areas where an activity is proposed that require a referral to be made to the NT EPA; and
      • approval triggers (activity-based and locality-based) which set out those activities or areas where an activity is proposed that must receive an environmental approval before proceeding; and
    • protected environmental areas and prohibited actions. The effect of these declarations will be that a proponent will not be able to make a referral for a proposed action that is located in a protected environmental area or for an action that is prohibited.

    Environmental offsets

    The draft Bill provides that the Minister may establish an environmental offset framework and requires the Minister to maintain a register of any offsets.

    Financial provisions

    The draft Bill contains the following financial provisions which are designed to ensure that the person undertaking a project is responsible for any environmental damage that may occur, and the costs of rehabilitating and remediating that damage:

    • environmental protection bond: the Minister may require a person to pay a bond (cash or bank guarantee) as a condition of the grant of an environmental approval which will be determined after considering the environmental risks and impacts of the action and the level of uncertainty in assessing those risks and impacts and the management measures to deal with them. Any amount of the bond which is not used is refundable if the remediation or rehabilitation requirements of the environmental approval have been completed to the Minister's satisfaction. There is provision to allow for the bond to be recalculated at different stages of the action to which the environmental approval applies to ensure that it is appropriate given the level of environmental risks and impacts.
    • environment protection levies: the Minister may require a class of persons (to be prescribed in the Regulations), for example a particular industry, to pay a non-refundable levy for the following purposes:
      • the taking of actions in the event of an environmental emergency;
      • the carrying out of works for the rehabilitation of the environment;
      • the carrying out of works for the remediation of environmental harm;
      • research into the environmental impacts of particular industries;
      • research into the management of the environmental impacts of particular industries; and
      • other activities relating to protecting or enhancing the environment.
    • environment protection funds: one or more environment protection funds may be established by the Minister to hold environmental bonds or levies which may be used to provide funds for those purposes outline above for environmental protection levies.

    Compliance and enforcement

    The draft Bill contains a range of compliance and enforcement tools, which include:

    • Environment protection notices: may be issued by the Chief Executive Officer (CEO) for the purpose of securing compliance with the general environmental duty, the conditions of an environmental approval, or a requirement prescribed by regulation.
    • Stop work notices: may be issued by the NT EPA for the purpose of preventing or minimising the environmental impact of an action and minimising any financial benefit to the proponent of proceeding with an action without an environmental approval.
    • Closure notices and closure certificates: the Minister may issue a closure notice to require a proponent of a project which required an environmental approval to undertake continued monitoring and management action at the project location after the environmental approval has expired or been revoked. A closure notices may be issued if the Minister considers on reasonable grounds that as a result of anything done or that has occurred at a site may result in future contaminants if not appropriately managed (for example, old landfill sites). Closure certificates can be issued at the completion of a project to say that all necessary rehabilitation and remediation measures have been implemented to the Minister’s satisfaction. The intent is that where a closure certificate has been given, the land can be sold or handed back without the proponent incurring any further liability for remediation.
    • Enforceable undertakings: the CEO may accept an enforceable undertaking made by a proponent of an action or an approval holder to:
      • carry out specified remediation or rehabilitation work to rectify environmental harm resulting from an action taken by the proponent or the approval holder that is allegedly in contravention of this Act or an environmental approval; or
      • to do any other specified act or thing approved by the CEO.
    • Emergency authorisations: the CEO may give a written authorisation to a person authorising an act or omission that might otherwise constitute a contravention of the Act or an environmental approval if the CEO is satisfied that:
      • urgent circumstances exist that make it impracticable for the person to obtain an exemption under the Act; and
      • the act or omission is justified by the need to protect the environment; and
      • unless the CEO waives this requirement, the person has paid the fee prescribed by regulation.
    • Duty to notify environmental incidents: an approval holder who is responsible for the action must, immediately after becoming aware that an incident has occurred on land on which the action is being carried out which causes or threatens material environmental harm (ie. environmental harm that is not trivial or negligible in nature or results in actual or potential loss of not more than the amount prescribed by the regulations) notify the CEO of the incident and all relevant information about it. Similarly, the following persons must also provide a similar notification to the CEO immediately after they become aware of the incident:
      • a person, other than an approval holder, who is conducting or participating in the action with responsibility for the action;
      • a person who is providing equipment or facilities for use on the land in carrying out the action;
      • the owner or occupier of the land on which the action is being carried out; and
      • an environmental auditor carrying out an environmental audit of a site at which an incident occurs or has occurred. The auditor is to provide the CEO with all relevant information about the incident if the impact of the incident is continuing.

    Merits and judicial review of decisions

    Only an "affected person" may apply to the Civil and Administrative Tribunal for a merits review of those reviewable decisions specified in Schedule 3 of the draft Bill which include the following (amongst others):

    • decisions of the Minister to declare, amend or revoke a Territory environmental objective or environmental trigger;
    • decisions to declare a protected environmental area or prohibited action;
    • decisions to grant or refuse an environmental approval;
    • decisions to impose a condition on an environmental approval;
    • decisions to amend, refuse a request to amend, revoke or suspend an environmental approval; and
    • decisions to issue environment protection notices, stop work notices, closure notices and emergency authorisations.

    An "affected person" is specified in Schedule 3 of the draft Bill for each reviewable decision and includes the proponent and an "eligible person" which means any of the following:

    • a person who is directly or indirectly affected by the decision;
    • a member of an environmental, community or industry organisation, whether incorporated or not;
    • an Aboriginal Land Council;
    • a Registered Native Title Prescribed Body Corporate or a registered claimant under the Native Title Act 1993 (Cth);
    • a local government body; and
    • a person who has made a genuine and valid submission during an assessment or approval process under this Act. A "genuine and valid submission" by a person does not include a submission by the person in the form of a letter or petition prepared by another body or organisation; or a submission made after the end of the submission period, unless the Civil and Administrative Tribunal considers that in the circumstances it should be considered a genuine and valid submission.

    The draft Bill allows any person to seek judicial review (ie. proceedings challenging the lawfulness of the decision-making process) of a decision of the Minister, the CEO, the NT EPA or an environmental officer under the Act whether or not any right of the person has been affected by, or as a consequence of, the decision.

    Have your say

    To have your say on the draft Bill and Regulations, mail your submissions to [email protected] before 3 December 2018.

    It is understood that consultation on the Stage 2 reforms has already commenced and will be continuing throughout late 2018 and early 2019.

    Please contact us if you would like further information on the draft Bill and Regulations or require any assistance in drafting your submission.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.