NT reform of impact assessment and approval system takes next step, but without general environmental duty

By Nicole Besgrove, Margaret Michaels
18 Apr 2019
The draft environmental legislation will be revised and amended, and the enforceable general environmental duty removed, before being introduced into the NT Legislative Assembly.

The Northern Territory's new impact assessment and approval system is closer, with the Government planning to introduce the Environment Protection Bill into the Legislative Assembly next month. The shape of that Bill will be similar to the draft version we examined last year – but not identical. As a result of the stakeholder submissions received during the eight-week consultation period, the Government has announced in its Response to submission on draft environment protection legislation for the Northern Territory that it will make some changes to the draft Bill and Regulations.

Most significantly, the NT Government has decided to defer the provisions relating to environment protection policies and the general environmental duty until the second stage of its environmental regulatory reform program.

We understand that the second stage of reforms will relate to how the Territory manages its wastes, pollution, clearing of native vegetation and the environmental impacts of mining activities, leading to:

  • 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.

Establishment of environment protection policies

Under the draft Bill, the Minister would have been 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:
    • 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, so that a proponent could not make a referral for a proposed action in a protected environmental area, or for a prohibited action.

A number of submissions identified that there was not enough detail about environment protection policies for stakeholders to understand their likely content and their proposed use. Combined with the limited criteria to inform the Minister’s decision to declare these policies, this led to ambiguity and concern.

In response, the NT Government stated that the majority of the environment protection policies will relate to the "establishment of measures or limits for the generation of wastes and pollution and particular management standards for certain matters of concern, such as impacts from noise". Therefore, these provisions will be removed from the draft Bill and considered as part of the next stage of the reform program.

General environmental duty

The draft Bill proposed the introduction of an enforceable general environmental duty under which 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.

Under this, a person who caused unauthorised environmental harm (ie. not authorised by an approval under the Act) in taking an action must, to the greatest extent practicable:

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

Any residual adverse environmental impacts of an action taken by the person would also have to be  appropriately mitigated and managed.

Some submissions identified a concern with the interaction between this proposed duty and the similar duty under the Waste Management and Pollution Control Act (which applies to a person who conducts an activity or performs an action that causes or is likely to cause pollution resulting in environmental harm or that generates or is likely to generate waste).

The NT Government noted that while the "general environmental duty is an essential element of environment protection legislation, it is not a key feature or requirement of the impact assessment and environmental approval system". Therefore, the relevant provisions will be removed from the draft Bill and considered (particularly the potential duplication between the proposed duty and the duty under the Waste Management and Pollution Control Act) as part of the next stage of the reform program.

Provisions to be revised, reviewed and/or amended

In its Response, the NT Government has also identified a range of matters in the draft Bill which will be revised, reviewed and/or amended before it is introduced to Parliament.

Objects of the Bill

These are to be revised to include explicit recognition of the rights and interests of Aboriginal Territorians and reviewed to ensure that the objects accurately reflect the purpose of the legislation in delivering improvements to the impact assessment system and delivering better environmental outcomes for the Territory.

Definitions and concepts

These are to be reviewed and where possible revised to address the various concerns raised, such as the definitions of "action" and "environment" and the concept of "significant environmental harm" and "significant impact" plus the inclusion of other important definitions such as "Fit and Proper Person" in the draft Regulations rather than the draft Bill. 

Principles of ecologically sustainable development

The Bill will be amended to:

  • define "ecologically sustainable development" (ESD) and ensure that the wording of the principles is more consistent with wording in the Rio Declaration;
  • delete the proposed principle of economic competitiveness;
  • include additional principles addressing requirements for decision-making to be evidence-based, science-based, risk-based, and ethical, and supporting public participation and accountability in decision-making; and
  • require decision makers to apply ESD in their decision-making.

Environmental objectives and triggers

The Bill will be amended to:

  • provide additional information on the purpose of triggers, when they may be declared, and the consequence of the trigger on the requirement for a person to refer a project; and
  • remove the provisions enabling the Minister to declare "approval triggers". 

Environmental protection declarations

The Bill will be amended to:

  • remove ambiguities about when the Minister may make a temporary environmental protected area declaration;
  • impose time limits on the application of a temporary declaration; and
  • transfer the power to make permanent declarations of protected environmental areas and prohibited actions from the Minister to the Administrator. .

Environmental impact assessment process

A number of amendments will be made to the legislation, mainly the Regulations, to address the various matters raised by the submissions, including:

  • clarification of "acceptance" provisions and when the NT EPA may refuse to accept a referral;
  • additional criteria to assist the NT EPA to make decisions on the appropriate assessment method;
  • clarification and limitation of the NT EPA’s powers to reconsider the assessment method during an assessment process;
  • revisions to the proposed process for a Proponent Initiated Environmental Impact Statement to clarify that this process retains the same level of public participation as the standard environmental impact statement process;
  • removal of matters relating to the establishment of standard terms of reference as these can be addressed by the NT EPA administratively;
  • clarification of provisions relating to the termination of assessment processes;
  • revisions to the maximum decision-making timeframes;
  • new responsibilities for proponents in the impact assessment system – most significantly, conducting appropriate consultation as part of designing any project. This would include consulting with Aboriginal communities in a culturally appropriate manner, seeking and presenting community information, including Aboriginal traditional knowledge, of the natural and cultural values of potentially impacted areas, and (as relevant) applying the principles of ESD and management hierarchies specified in the Bill;
  • amendments to the NT EPA's consultation obligations in respect of the draft environmental approval and assessment report;
  • revision of the provisions relating to strategic assessments to provide additional clarity about when these may be undertaken, the definition of "action" in relation to these assessments, and the link between strategic assessments and the assessment methodologies specified in the Bill;
  • amendments to clarify when a strategic assessment may be undertaken and the link between these assessments and the assessment methodologies identified in the Regulations; and
  • amendments to the provisions relating to variations to clarify that variations are subject to the same tests as other types of referrals (i.e. potential for significant impact on the environment or meets a referral trigger) and to improve the presentation of these provisions to provide greater clarity about their application. .

Environmental approvals

The Bill will be amended to:

  • clarify the relationship between the environmental approval and other regulatory approvals and to provide that the environmental approval takes precedence over other approvals;
  • address concerns about unnecessary delays in approval processes, by removing those provisions enabling the Minister to extend timeframes for making a decision following completion of the impact assessment process;
  • clarify requirements for the Minister to afford proponents natural justice where the Minister proposes to accept a statement of unacceptable impact; and
  • remove provisions relating to the development of standard conditions, as these matters can be addressed administratively. 

Financial provisions

A number of amendments will be made to the Bill to address the various matters raised by the submissions:

  • to the provisions enabling the NT EPA to seek to recover costs from proponents for consultation before incurring such costs;
  • clarify that a proponent cannot be subject to two bonds for the same purpose under different legislation;
  • clarify that a condition that extends a bond beyond the period of the approval can only apply for the period that any post closure and rehabilitation monitoring is required; and
  • defer provisions relating to financial assurances at site closure until a future stage of the reforms. 

Review by the NT EPA and environmental audits

The Bill will be amended to:

  • delete provisions allowing the NT EPA to conduct a review or require an audit with respect to action to which an environmental approval applies that is being carried out or after the action has been carried out;
  • clarify the circumstances under which the CEO may require an audit, which will include that the CEO believes or suspects on reasonable grounds that an approval holder has contravened, or is likely to contravene, a condition of the approval, or  a person has contravened, or is likely to contravene, another provision of the Act; and
  • simplify the provisions in the Regulations relating to the registration and certification processes for auditors and practitioners to enable the adoption of processes and registers from other jurisdictions or recognition of particular certification schemes. 

Compliance and enforcement

All relevant offence provisions contained in the Bill will be revised to provide for tiered offences and penalties that reflect the seriousness of the offending (ranging from reckless acts to strict liability offences). The Bill will also be amended to:

  • reduce the time period for seeking an injunction from any time within three years down to 90 days from the date of the alleged contravention of the Act;
  • clarify that civil proceedings are a court process and not a negotiation by the CEO;
  • limit standing for civil proceedings to a person who is impacted by an alleged action or omission that contravenes, or may contravene, the Act;
  • give the CEO a time-limited power to issue an emergency environment protection notice where:
    • an approval has been given;
    • the person is complying with the approval;
    • the action is seen to be causing significant environmental harm;
    • it is the reasonable belief of the CEO that urgent action is necessary for the protection of the environment and to meet the objects of the Act; and
    • it is the reasonable belief of the CEO that there exists a ground for revocation of the approval in accordance with the Act; and
  • to expand the grounds for granting an emergency authorisation to include an alternative ground of protecting critical public infrastructure. 

Review of decisions (standing)

The review provisions will be amended to limit review processes in the impact assessment and approval system to judicial review only (ie. proceedings challenging the lawfulness of the decision-making process). Merits review will be removed.

These changes to the review and standing provisions were previously announced by the NT Government shortly after the draft Bill was released for consultation. Originally, merits review was to be available to an "affected person", which was defined widely, for a range of reviewable decisions listed in Schedule 3, and open standing (ie. any person) for judicial review 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. It is now proposed that judicial review will be limited to:

  • proponents;
  • persons directly affected by the decision; and
  • persons who made genuine and valid submissions during the assessment and approval process. 

Exempt from compliance

The power to make a regulation exempting a person from compliance with the Bill or sections of the Bill will be deleted. 

Transitional provisions

These provisions were absent in the draft Bill, but will be included to:

  • transition projects currently under assessment into the new system at the next appropriate decision point with these projects requiring an environmental approval; and
  • not require that projects that have already completed an assessment process to seek an environmental approval. 

Revised draft Bill and further consultation on the way

It is understood that both the draft Bill and Regulations are currently being reviewed in order to determine what needs to be done to addressed the key issues raised in the submissions.

The NT Government anticipates that a revised Bill will be introduced to Parliament in May 2019 and subsequently referred to the Public Scrutiny Committee for inquiry and report. Once the Bill has been referred to the Committee, there will be a further opportunity to make submissions via the Committee's public consultation process.

In its Response, the NT Government has also confirmed its commitment to introducing "chain of responsibility" legislation as first announced as part of its response to the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory. It is understood that this will be progress separately to the current reforms to the environmental impact assessment and approval process.

Related Insights

Get in touch

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.