30 May 2019

Last chance to have your say on the Northern Territory's Environment Protection Bill

By Nicole Besgrove, Margaret Michaels

After removing the general environmental duty and making amendments in response to submissions, the NT Government introduced the Environment Protection Bill 2019 to Parliament and it has now been referred to the Social Policy Scrutiny Committee for inquiry and report. Submissions can be made until 14 June 2019.

We previously examined the draft Environment Protection Bill 2019 and its associated Regulations when they were released on 4 October 2019 for eight weeks of public consultation. In its Response to the submissions made with respect to the draft Bill, the NT Government stated that it would remove the general environmental duty and make a range of amendments to the draft Bill before its introduction to Parliament.

On 16 May 2019, the NT Government introduced the amended Bill and it was subsequently referred to the Social Policy Scrutiny Committee for inquiry and report by 6 August 2019.

What are the amendments?

At a glance, the NT Government has generally made its amendments in line with its response, particularly those items which we previously examined with respect to:

Objects of the Bill

The objects have been amended to make specific reference to the well-being of the people of the Territory, to recognise the role of environmental impact assessment and approval in protecting and managing the environment of the Territory, to provide for broad community involvement, and to recognise the role of, and participation by, Aboriginal people and communities.

Definitions and concepts

A range of definitions highlighted in the submissions have been inserted, deleted, amended ore remain the same, most notably:

  • the definitions of "action" and "environment" were not amended despite concerns raised in submissions;
  • the definition of "significant impact" was not amended, however its wording is now also captured in the amended definition of "significant environmental harm" discussed below;
  • the definition of "significant environmental harm" has been amended to include additional elements to establish the requisite threshold harm instead of the broad element of causing a significant impact on the environment. "Significant environmental harm" now means environmental harm that:
    • is of major consequence having regard to:
      • the context and intensity of the harm; and
      • the sensitivity, value and quality of the environment harmed and the duration, magnitude and geographic extent of harm; or
    • would, or is likely to, cost more to remediate than the monetary amount prescribed by regulation;
  • at section 62 the criteria for the "fit and proper person" test is now specified rather than by reference to the Regulations. When determining whether a person is or is not a fit and proper person to hold an environmental approval, the Minister may have regard to whether there are reasonable grounds to believe that the person has done any of the following in addition to those matters prescribed by regulation and any other matters the Minister considers relevant:
    • contravened a law of the Territory or another jurisdiction that relates to environmental matters, including matters relating to pollution, biodiversity, natural resources, planning, development or waste; or
    • contravened a law of the Territory or another jurisdiction that relates to work health and safety; or 
    • committed an offence against any law of the Territory or another jurisdiction that involves an element of fraud or dishonesty; or
    • behaved or is likely to behave in a way that is inconsistent with the person's duties as an approval holder;
  • "material environmental harm" is still defined as environmental harm that is not trivial or negligible in nature, but it has been amended so that it is no longer quantifiable by actual or potential loss of an amount prescribed by the regulations and is instead to be "less serious than significant environmental harm". 

Principles of ecologically sustainable development

A range of amendments have been made to (amongst other things):

  • define ecologically sustainable development (ESD) for more consistency with the Rio Declaration;
  • require that the decision-maker not only consider, but also apply the principles of ESD;
  • provide that decision-making processes should provide for community involvement in relation to decisions and actions that affect the community;
  • provide that decisions be based on the best available evidence in the circumstances that is relevant and reliable; and
  • remove the proposed principle of economic competitiveness. 

Environmental objectives and triggers

The Bill has been amended to include the purpose and effect of referral triggers. In particular:

  • a referral trigger requires a proponent of an action to refer the action to the NT EPA for assessment in accordance with the regulations;
  • an activity-based referral trigger identifies actions that the Minister considers are likely to have a significant impact on the environment; and
  • a location-based referral trigger identifies areas that the Minister considers are:
    • of significance because of a feature of the natural or cultural environment; and
    • likely to be subject to significant impact by actions.

The Minister may still declare (by gazette notice) referral triggers (activity-based and location-based) but can no longer declare approval triggers. In declaring a referral trigger:

 

  • the Minister may specify circumstances in which, and the thresholds above which, actions are to be subject to the trigger;
  • it must be prepared in accordance with the regulation; and
  • the Minister must publish a statement of the reasons for making a declaration. 

Environmental protection declarations

A new provision has been inserted to clarify when the Minister may make a temporary environmental protected area declaration, require consultation with the NT EPA, require reasonable efforts to advise owners/occupiers of the making of the temporary declaration and require a statement of reasons to be published. Relevantly, the Minister may, by Gazette notice, make a temporary declaration if the Minister believes on reasonable grounds that:

  • the environment or an aspect of the environment of the area should be protected; and
  • the declaration of the area is necessary to further the objects of the Act.

A temporary declaration can be in effect for the period specified in the Gazette notice, but cannot exceed 12 months. A temporary declaration must not be made in respect of an area within 3 months after the day on which a previous temporary declaration affecting that area expires, unless it relates to a different matter.

In the draft Bill, the Minister was able to make permanent declarations of protected environmental areas and prohibited actions, however this has been amended so that only the Administrator can make these declarations. 

Environmental impact assessment process

The Response to submissions provided that amendments would be made, mainly the Regulations, to address the various matters raised by the submissions with respect to the environmental impact assessment process. Revised Regulations have not been released for further consultation, however a range of amendments have been made to the Bill including (amongst others) the following:

  • new and amended provisions regarding the NT EPA's process for consideration and assessment of referred actions and strategic proposals;
  • insertion of a general duty of proponents to provide information to, and consult with, communities affected by the proposed action, including Aboriginal communities from whom traditional knowledge and understanding should be sought;
  • referrals of a prohibited action or an action prohibited in a protected environmental area are prohibited;
  • new provisions regarding a "significant variation" to the proposed action which is a variation that:
    • will alter the action to the extent that a referral trigger that did not previously apply to the action now applies; or
    • has the potential to have a significant impact on the environment; or
    • will result in new or additional areas being subject to a potential significant impact on the environment;
  • clarification of when a strategic proposal can be referred for strategic assessment. This can occur when a proposed action or group of proposed actions individually or in combination with each other will have the potential to have a significant impact on the environment or will meet a referral trigger;
  • new provisions regarding statutory authorisations to be applied for and granted for a referred action while an environmental impact assessment of the referred action is being carried out under the Act; and
  • the required time to make a decisions is 30 business days after the Minister receives the assessment report and draft environmental approval. 

Environmental approvals

The Bill has been amended to:

  • clarify that an environmental approval prevails over other statutory authorisations to the extent of any inconsistency;
  • remove the ability to impose standard conditions on an environmental approval;
  • remove the ability of the Minister to extend the required time for a decision to grant or refuse an environmental approval; and
  • include a show cause process which must be complied with before the Minister decides to accept a statement of unacceptable impact. The Minister must give written notice to the proponent and allow the proponent to give a response within the specified period which is not to be less than 10 business days. 

Financial provisions

Amendment has been made to the financial provisions to:

  • clarify that an environmental protection bond must not be imposed on a person for a purpose if a bond or security has been, or is required to be, provided by the person under another Act for the same, or substantially the same, environmental impacts;
  • clarify that the purpose of environment protection bond includes the payment of the reasonable costs of post-closure reporting and monitoring and the conditions of an environmental approval may require that the availability of an environment protection bond extend beyond the period to which the environmental approval relates to include any period for which post-closure reporting and monitoring are required;
  • remove the provisions relating to financial assurance which were previously triggered by an application for a closure certificate. In its Response to submissions, the NT Government stated that financial assurance would be deferred until a future stage of the reforms. 

Review by the NT EPA and environmental audits

Amendments have been made to remove reviews by the NT EPA while an action to which an environmental approval applies is being carried out or after the action has been carried out and the ability of the NT EPA to direct a person to cause an environmental audit. The requirement for an environmental audit is only triggered by direction of the CEO only if the CEO believes or suspects on reasonable grounds that an approval holder has contravened, or is likely to contravene, a condition of an environmental approval. 

Compliance and enforcement

Some of the key amendments which have been made to the compliance and enforcement provisions include the following:

  • the penalties have been inserted for each of the offences contained in the Bill, which include specific penalty units, imprisonment and reference to the applicable environmental offence level prescribed by the Environmental Offences and Penalties Act 1996 (NT);
  • the time period for seeking an injunction has been reduced to any time within 90 days from the date of the alleged contravention of the Act;
  • standing for civil proceedings has been limited to a person who is affected by an alleged act or omission that contravenes or may contravene this Act. Previously an "eligible applicant" could bring proceedings and this included a broader range of persons; and
  • amendments to the emergency environment protection notice provisions to give the CEO the power to issue a notice to a person if:
    • an environmental approval has been granted for an action; and
    • the CEO believes on reasonable grounds that the action is causing significant environmental harm; and
    • the CEO believes on reasonable grounds that urgent action is required for the protection of the environment and to meet the objects of the Act; and
    • the CEO believes on reasonable grounds that a ground revocation of an environmental approval exists.

This power is in addition to the power of an environmental officer to issue an emergency environment protection notice where the officer considers that urgent action is required for the protection of the environment.

Whether an environment protection notice is issued by the CEO or environmental officer, it will expire at the end of 10 business days and 72 hours respectively unless the further specified action is taken. 

Review of decisions (standing)

As previously announced and reiterated in the Response to submissions, the review provisions have been 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) and merits review has been removed. Rather than any person, whether or not any right of the person has been affected by the or as a consequence of the decision, having standing for judicial review, only the following will have standing for such proceedings:

  • proponent of an action to which the decision relates; or
  • an applicant for the decision; or
  • a person directly affected by the decision; or
  • a person who has made a genuine and valid submission during an environmental impact assessment and environmental approval process under the Act to which the decision relates. A genuine and valid submission does not include a submission in the form of a form letter or petition prepared by another body or organisation; or a submission made after the end of the submission period, unless the court considers that in the circumstances it should be considered a genuine and valid submission. 

Exempt from compliance

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

Absent from the draft Bill were the transitional arrangements. The key provisions in the final version of the Bill provide for the following:

  • if an assessment of a proposed action commenced under the former Act but an assessment report was not completed before the commencement, the former Act continues to apply to that assessment;
  • an assessment report prepared under the former Act before or after the commencement is taken to be an assessment report for the EP Act;
  • if an assessment report for a proposed action was completed under the former Act before the commencement and the proposed action had not commenced before the commencement:
    • an environmental approval is not required for the proposed action if a statutory authorisation is required under a prescribed Act (ie the Mining Management Act 2001, Petroleum Act 1984, Planning Act 1999, or Waste Management and Pollution Control Act 1998) to permit the action;
    • an environmental approval is required for the proposed action if no statutory authorisation under a prescribed Act is required to permit the action;
  • if an assessment report for a proposed action is completed under the former Act after the commencement, an environmental approval is required under the new Act for the proposed action; and
  • a regulation may provide for a matter of a transitional nature and may have retrospective operation to a day not earlier than the commencement. Where the regulation is to have retrospective operation, it is not operate to the disadvantage of a person (other than the Territory or a government authority) by:
    • decreasing the person's rights; or
    • imposing liabilities on the person. 

Future reforms

The NT Government originally included an enforceable general environmental duty in the draft Bill, however this was removed from the final version of the Bill introduced to Parliament. It is understood that the general environmental duty will be considered as part of Stage 2 of the reform program which will relate to how the Territory manages its wastes, pollution, clearing of native vegetation and the environmental impacts of mining activities.

It is also understood that the NT Government's commitment to introduce "chain of responsibility" legislation similar to that which applies in Queensland to extend responsibility for environmental harm to persons and companies 'related' to the offending company will be progressed separately to the current reforms.

Have your say

To have your say on the Bill, mail or email your submissions using the details specified here by close of business Friday, 14 June 2019.

The Committee is to inquire into and report on:

  • whether the Assembly should pass the Bill;
  • whether the Assembly should amend the Bill;
  • whether the Bill has sufficient regard to the rights and liberties of individuals; and
  • whether the Bill has sufficient regard to the institution of Parliament.

Please contact us if you would like further information on the draft Bill 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.