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03 Oct 2019

Environment protection heating up in the Northern Territory

By Nicole Besgrove, Margaret Michaels

A new law now requires consideration of the impacts of a changing climate, in a major step to overhaul the environmental protection regulatory regime in the Northern Territory.

In what the NT Government is calling a significant step in creating a contemporary environmental protection regime, the NT Parliament has passed the Environment Protection Bill 2019 (with amendments) which will repeal the Environmental Assessment Act 1982 and the Environmental Assessment Amendment Act 1994.

After lengthy public consultation of a draft Environment Protection Bill and draft Environment Protection Regulations late last year, the NT Government made several amendments, including removal of a general environmental duty, before the Bill was introduced to Parliament on 16 May 2019. Following its introduction, the Bill was referred to the Social Policy Scrutiny Committee for inquiry and report by 6 August 2019. On 20 June 2019 the Legislative Assembly approved an extension of the Committee's report date to 17 September 2019.

Despite concerns from some members of the Assembly that there was not sufficient time to scrutinise the Social Policy Scrutiny Committee Report which was provided on 17 September, after a 14 to 6 vote against a motion to defer consideration, the Bill along with 36 proposed amendments was debated and passed on 19 September 2019. The Bill is currently awaiting assent

36 amendments to the Environment Protection Bill 2019

We have previously examined the key provisions of the Bill introduced to the NT Parliament and the subject of inquiry and report of the Committee, all of which remain intact in the Bill as passed. Upon commenced, the Act will provide the new environmental impact assessment system in the Territory, including 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, for those projects which trigger impact assessment.

After consideration of the Committee's Report, the NT Government proposed 36 amendments to implement the Committee's recommendations, which were made to the Bill before its passing by the NT Parliament.

The most notable amendment is the inclusion of a requirement to take into account the "impacts of a changing climate" when assessing, planning and carrying out actions that may have a significant impact on the environment in addition to the principles of ecologically sustainable development, the environmental decision-making hierarchy, the waste management hierarchy and ecosystem-based management as already set out in the Bill. The purpose of this change is to ensure that the new environmental impact assessment system considers how:

  • developments may have an impact on the climate, for example through the release of greenhouses gases; and
  • changes in climate may impact on developments, for example through sea level rise or the southern movement of species.

In addition to a number of technical amendments which we have not mentioned, the balance of the changes are generally minor in nature and include:

Environmental decision-making hierarchy: it will now be mandatory that the environmental decision-making hierarchy be applied by decision-makers, proponents and approval holders when making decisions in relation to actions that affect the environment and to ensure that the potential for actions to enhance or restore environmental quality is identified and provided for to the extent practicable. The original drafting allowed scope for its application to be discretionary.

Statement of reasons: there are a number of declarations and decisions which trigger a requirement to publish a statement of reasons, however the Bill was silent as to the requisite timing of publication. In order to improve certainty for the community that a statement of reason (where required) will be published in a timely manner amendments were made to require that a statement of reasons be published "as soon as practicable" after:

  • a declaration of environment objectives;
  • a declaration of referral triggers;
  • a decision to amend or revoke an environmental objective or referral trigger (a statement of reasons for this decision was not originally required, however this requirement was inserted as an amendment);
  • a decision to accept or refuse a proposed environmental objective or a referral trigger or an amendment to an objective or trigger recommended by the NT EPA;
  • a declaration making a temporary declaration of a protected environmental area;
  • a decision to make permanent declarations of protected environmental areas; and
  • a decision to grant an exemption to a proponent or approval holder from the requirement to provide information where direct by the Minister.

Power to revoke or amend environmental objectives and referral triggers: when amending or revoking an environmental objective or a referral trigger, the Minister must now do this by gazette notice. It is understood that the specific processes associated with amending and revoking declarations, including public consultation requirements, will be set out in regulations.

Declarations and revocations of protected environmental areas and prohibited actions: with respect to these declarations amendments were made to:

  • replace the Administrator with the Minister to place responsibility for making these declarations with the Minister and improve consistency with the respective responsibilities and obligations of the Administrator and Ministers in the Territory system of government;
  • require that the Minister table declarations and any subsequent revocation of declarations in the Legislative Assembly within six sitting days of the declaration being made; and
  • require that the statement of reasons for any declaration and any subsequent revocation of declarations to be published at the time of gazettal for consistency with the "as soon as practicable" timing inserted into the Bill.

Fit and property person test: the Bill specifies those matters which the Minister must and may have regard to when determining whether a person is or is not a fit and proper person to hold an environmental approval, including whether there are reasonable grounds to believe that the person has contravened a law of the Territory or another jurisdiction that relates to "environmental matters" which has been amended to "physical or biological environment" to broaden its application. Also, a new provision has been inserted which allows the Minister to consider other relevant factors such as impacts on nature or built heritage and Aboriginal sacred sites.

Granting an environmental approval: the Minister will now be required to prepare a statement of reasons for a decision to refuse to grant an environmental approval, to publish that statement of reasons as soon as practical after the decision is made, and to give a copy of the decision to the proponent, the NTEPA and relevant statutory decision-makers.

Amending an environmental approval: the Minister may amend an environmental approval, including at the request of the approval holder and on the Minister’s own initiative in other limited circumstances. Amendment was made to identify those matters that the Minister must consider before amending an environmental approval at the request of a proponent.

Revoking an environmental approval: the Bill specifies the limited circumstances in which the Minister may revoke an environmental approval. Originally one of those circumstances was if the Minister believes on reasonable grounds that the environmental impacts of the action cannot be appropriately avoided mitigated or managed or, if appropriate, offset. Amendment has been made to require that the Minister's belief in that regard must be the result of compliance monitoring and enforcement activities.

Environmental audits: originally the CEO’s powers to direct an audit were limited to those circumstances where the CEO reasonably believes or suspects that an approval holder has, or is likely to, contravene the environmental approval. Amendment was made so that the CEO will also be able to direct an audit where the environmental impact appears to be significantly greater than was indicated during the original environmental impact assessment and decision making process.

Power to direct proponents and approval holders to provide certain environmental information: the Minister has the power to direct proponents and approval holders to provide certain environmental information, including data. A person who is directed to provide this information is able to apply for an exemption from the requirement on the ground that it would be unreasonable for the proponent or approval holder to provide the required information. Amendment has been made to insert the decision making criteria for the Minister when considering granting an exemption to a proponent or approval holder from an obligation to provide information, including that the Minister must be satisfied that granting the exemption will not undermine the objects of the Act.

Assent on the way, with regulations to follow

The Bill is currently awaiting assent, with commencement then to occur on the day fixed by the Administrator by Gazette notice, which the NT Government expects to occur in March / April next year.

It is understood from the draft Daily Hansard of Parliamentary proceedings that the NT Government is working to finalise the regulations in the coming weeks and these will be released for consultation.

If you would like any further information on the Environment Protection Bill 2019 please contact us.

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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.