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23 Dec 2020

New EPBC Act assessment bilateral agreement for the NT out for consultation – have your say

By Nicole Besgrove, Karen Trainer and Margaret Michaels

The draft revised assessment bilateral agreement between the Commonwealth and the Northern Territory is open to comment until 29 January 2021.

Following the commencement of the Environment Protection Act 2019 (NT) (EP Act) on 28 June 2020, the existing Northern Territory Assessment Bilateral Agreement from 2014 is now outdated.

Accordingly, the Commonwealth Government has now released the draft Northern Territory Assessment Bilateral Agreement for consultation; once finalised and signed by both the Commonwealth and Northern Territory Ministers for the Environment, it will revoke and replace the 2014 Agreement.

What is the purpose of the draft NT Assessment Bilateral Agreement?

The purpose of draft NT Assessment Bilateral Agreement is to provide for the accreditation of assessment processes for the assessment of those actions requiring approval under both the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (ie. controlled actions) and the EP Act so that a single assessment process applies, and duplication is avoided. This means that the Commonwealth Minister for the Environment can rely upon the accredited NT assessment processes for a controlled action and a separate assessment under the EPBC Act will not be required.

The draft NT Assessment Bilateral Agreement does not negate the need for separate approvals under the EP Act and the EPBC Act (an arrangement which is currently the subject of proposed reforms by the Commonwealth Government), but it does provide terms of agreement about:

  • the desirability of avoiding inconsistent conditions applying to approvals and the use of best endeavours in that regard; and
  • co-operation in the monitoring of compliance with conditions attached to approvals (and their enforcement), with the aim of reducing duplication.

What does the draft NT Assessment Bilateral Agreement apply to and what processes are accredited?

The draft NT Assessment Bilateral Agreement applies to actions (including actions that are proposed by a referred strategic proposal) that occur wholly within the Territory including its coastal waters and are controlled actions under the EPBC Act.  

For controlled actions, which do not occur wholly within the Territory, or that will occur in the Territory but have relevant impacts in other jurisdictions, the NT and Commonwealth Governments are to consult and use their best endeavours to reach agreement about the appropriate assessment process with any other affected jurisdictions.

The draft NT Assessment Bilateral Agreement declares that the classes of action that will not require assessment under the EPBC Act are those, which require an environmental impact assessment by the NT EPA and are to be assessed by one of the following processes under the Environment Protection Regulations 2020 (NT):

  • referral information: taken to correspond to assessment on preliminary documentation under the EPBC Act;
  • supplementary environment report: taken to correspond to assessment on preliminary documentation under the EPBC Act;
  • environmental impact statement: taken to correspond to assessment by an environmental impact statement under the EPBC Act; and
  • inquiry (not assessed by any other method of environmental impact assessment): taken to correspond to assessment by inquiry under the EPBC Act.

The draft NT Assessment Bilateral Agreement also sets out additional assessment requirements, which relate to the selection of the assessment approach, the assessment documentation, assessment by inquiry and the assessment report.

The draft NT Assessment Bilateral Agreement will not apply to the following excluded actions:

  • actions have been determined to be a controlled action prior to the Commencement Date (ie. the date the NT Assessment Bilateral Agreement is executed by the parties or, if executed on separate days, the date on which it is executed by the last party to do so);
  • actions that must not be taken as prescribed by regulation; and
  • actions consisting of or involving the construction or operation of any of nuclear installations that are a nuclear fuel fabrication plant, a nuclear power plant, an enrichment plant, or a reprocessing facility.

Have your say

Submissions on the draft NT Assessment Bilateral Agreement can be made until Friday, 29 January 2021 in the manner prescribed here.

If you would like further information about bilateral agreements or any assistance with your submission, 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.