19 May 2014

More progress on bilateral agreements under EPBC Act, and draft approvals bilateral agreements

Streamlined Federal environmental assessments and approvals are one step closer with the introduction of changes to the Environment Protection and Biodiversity Conservation Act 1999 into Federal Parliament, and the release of new draft approvals bilateral agreements for New South Wales and Queensland.

The biggest changes in the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 are the removal of the CSG water trigger, and the restriction of the referral process.

Coal seam gas water trigger to be removed

The Bill proposes to remove the "Windsor amendments", so that actions that involve coal seam gas development or large coal mining development that are likely to have a significant impact on a water resource can be subject to an approvals bilateral. This would greatly increase the utility of approvals bilateral agreements, particularly in jurisdictions with a higher number of resources projects.

Referral process restricted where a bilateral in place

Consistent with encouraging use of the accredited approvals process of the relevant State or Territory, the referral process will not be available to actions already approved under a bilateral agreement, or actions that are being, or are to be, assessed under a bilaterally accredited authorisation process.

The Minister has a discretion to determine whether these changes apply to actions referred before the amendments' commencement date.

Depending on the particular authorisation process, this proposed amendment potentially impacts on the ability of proponents to seek a "not a controlled action" determination, or elect whether to proceed through the EPBC Act process or a State or Territory process for the assessment and approval.

Regulations and planning instruments will be considered for the approvals bilateral agreement

The effect of an approvals bilateral is that the Minister can accredit a process set out in a law of a State or Territory, and approvals under that accredited law do not need a separate approval under the EPBC Act, for the matters specified.

This accreditation is proposed to be extended beyond a "law" so that the Minister may accredit an authorisation process set out wholly or partly in a law of the State or Territory or an instrument made under such a law. There will be a mirror extension to the definition of "authorisation process". 

Local government to be authorising entities for an approvals bilateral agreement

The restriction that approvals bilaterals can only apply to actions approved by a State or Territory will be removed, so that other entities (eg. local governments) could be the authorising entities for an approvals bilateral.

 Amendments to State law won't automatically derail bilaterally accredited authorisation process

If a State or Territory amends the law that is the bilaterally accredited authorisation process, the Minister will have a new power to determine that the process may continue without further accreditation for the purposes of a bilateral.

This is subject to the amendment not having, or being unlikely to have, a material adverse impact on a matter protected under the EPBC Act, or a person's ability to participate in the authorisation process.

Transitional arrangements for projects when the approvals bilateral agreement no longer applies to them

If a project is undergoing assessment and the bilateral agreement is either no longer applicable (for example, if the relevant action is removed from the class of actions covered in the bilateral), or is cancelled or suspended, the Bill sets out a transitional process.

In the circumstances, the action will be deemed to have been referred to the Commonwealth Environment Minister. The Minister will be able to declare that a partly or fully completed assessment under a State or Territory process can be used for assessing the relevant impacts of the action under the EPBC Act. 

Draft approvals bilateral agreements

Draft approvals bilaterals for New South Wales and Queensland were released on 14 May 2014 for public comment by Friday 13 June 2014.

Under the Memorandum of Understanding with the State of Queensland and the NSW Governments, it is intended that the Commonwealth Minister will have concluded an approvals bilateral with both States by approximately mid-September 2014.

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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.