Three days before the consultation period for the guidance material for the NT's new environmental regulatory regime ended, the NT Government notified the new Environment Protection Regulations 2020. Subsequently, the Environment Protection Act 2019 commencement date was notified as 28 June 2020 by gazette notice.
We previously examined the draft Environment Protection Regulations 2019 which were released for consultation late last year. The draft Regulations addressed:
- environmental objectives and referral triggers;
- protected environmental areas or prohibited areas;
- referrals of proposed actions and strategic proposals;
- relevant processes and powers for the NT EPA to follow in conducting the new environmental impact assessment process;
- significant variations to a proposed action or strategic proposal; and
- other matters such as the fit and proper person test, significant environmental harm, making a claim on environment protection bonds, registers of environmental auditors and environmental practitioners, environmental incident reporting, and infringement notices.
While the Regulations as made are for the most part similar to the draft consultation version, the following changes and additions should be noted.
Generally, the submission period for the NT EPA's public consultation of an accepted proponent initiated EIS referral as well as certain notices relating to, and referrals of, a significant variation was 30 business days irrespective of whether it was for standard or strategic assessment. Otherwise it was to be 15 business days after the date of the notice.
Under the current Regulations the submission periods will now vary between 20 business days, 30 business days and 40 business days depending upon whether or not it is an accepted / not accepted proponent / approval holder initiated EIS referral or the proponent has or has not provided draft terms of reference (ToRs) (or amendments to existing ToRs) and whether it is a standard or strategic assessment.
Effect of refusal of environmental approval
The draft Regulations provided that if the Minister makes a decision to refuse to grant an environmental approval for a proposed action or strategic proposal, the proponent was not eligible to refer the same or substantially the same proposed action or strategic proposal to the NT EPA for 12 months after the decision is made. This period has now been extended to two years.
As part of the assessment process the following changes have been made:
- cumulative impact assessment: when included in an environmental impact assessment, it is now to also take into account the combined impact of the proposed action / strategic proposal and those other existing actions approved actions or actions the subject of an application for approval under another enactment occurring or proposed in or near the area of the proposed action / strategic proposal;
- social impact assessment: if required, must now be carried out in accordance with any guidelines specified for the regulation by the Minister responsible for social policy;
- terminating EIS process: the period after which the NT EPA may terminate the environmental impact assessment process where a proponent fails to provide additional information as directed, fails to prepare a supplementary environmental report, fails to submit a draft environmental impact statement or fails to prepare a supplement to an environmental impact statement has been reduced from 2 years to 12 months after the end of the period specified for submission of the relevant material; and
- proponent response to submission: the NT EPA can invite the proponent to provide a response addressing any public submissions made within 15 business days.
Registration of environmental auditors and environmental practitioners
The Regulations now set out:
- the process for registration as an environmental auditor and registered environmental practitioner which includes satisfying a "fit and proper person" test;
- the process for renewal and suspension of a registration;
- the process for the CEO to determine classes of environmental auditors and environmental practitioners; and
- the requirements with respect to the public registers of environmental auditors and environmental practitioners to be maintained by the CEO.
Review of decisions
A new schedule has been inserted to specify the types of decisions under the Regulations that can be reviewed by the Northern Territory Civil and Administrative Tribunal and who has legal standing to seek review. These reviewable decisions are a number of decisions which the CEO can made about the registration of an environmental auditor or an environmental practitioner.
There are more comprehensive provisions which set out the process and criteria for extensions of time for proponents and approval holders. A proponent or approval holder has the ability to make an application to the NT EPA for an extension to:
- an assessment period specified under regulation 99; or
- any other specified period within which a proponent or approval holder is required to prepare a document or information under these Regulations or to the NT EPA.
Infringement notices and penalties
Infringement notice offences (ie. an offence for which an environmental officer may give an infringement notice) no longer include the following environmental offences:
- breach of a direction by a person carrying out an environmental audit to provide all relevant information for carrying out the audit;
- where a person intentionally engages in conduct which obstructs compliance by another person with a closure notice in relation to land in the land register and the person is reckless in relation to that result; and
- where an incident occurs in the course of carrying out an action which results in material environmental harm and the person who holds the approval for that action intentionally or recklessly fails to notify the CEO of the incident.
The "other offence" provisions and corresponding penalties have now also been prescribed in a separate schedule. These include the following offences:
- contravening a call-in notice;
- recklessly making a representation of being registered as an environmental auditor or an environmental practitioner when not a registered as such;
- contravening a direction of an environmental officer;
- a qualified person intentionally carrying out an environmental audit or part of an environmental audit where they have a conflict of interest, is reckless in relation to that circumstance and does not have the authorisation of the CEO to engage in the conduct despite the conflict of interest;
- contravening a requirement relating to an environmental officer's powers;
- contravening a requirement to give the CEO a notice with respect to land the subject of an environment protection notice or a closure notice; and
- a proponent or an approval holder contravening a direction notice from the Minister to provide information.
If you would like to understand what the new environmental regulatory regime means for your operations in the Northern Territory in advance of its commencement on 28 June 2020, please contact us.