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09 Jul 2020

NT environment and petroleum reforms have commenced: what you need to know

By Nicole Besgrove, Karen Trainor and Margaret Michaels

The long-awaited new environmental regulatory regime has now commenced in the Northern Territory along with significant changes to the petroleum legislation. Proponents for projects that will have an impact on the environment and those in the petroleum industry need to understand how these reforms will operate.

In the month of June we have seen the commencement of the new Environment Protection Act 2019 and its Regulations along with significant amendments to the petroleum legislation in the Northern Territory. Below is a snapshot of what the reforms are all about.

Environmental regulatory regime

In a move to modernise the environmental regulatory regime in the Territory, the NT Government introduced the Environment Protection Bill 2019 into the NT Parliament in May 2019 and subsequently referred the Bill to the Social Policy Scrutiny Committee for inquiry and report. The Environment Protection Act 2019 and Environment Protection Regulations 2020 commenced on 28 June 2020 and repealed the Environmental Assessment Act 1982 and the Environmental Assessment Amendment Act 1994.

The Act establishes 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.

The NT EPA will manage the environmental assessment and will prepare a draft environmental approval (or a statement of unacceptable impact) for consideration by the Minister. When deciding whether or not to grant an environmental approval, the Minister must have regard to a number of matters including whether the proponent is a fit and proper person to hold that approval.

We previously examined the Regulations which were notified in April and commenced along with the Act on 28 June 2020. The Regulations provide for a number of processes and matters as set out under the Act, namely:

  • 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.

Originally, the Bill contained an enforceable general environmental duty which required that a person must not take an action that may impact on the environment unless the person takes all reasonable and practicable measures to avoid or minimise any resulting environmental harm. Similar duties are imposed in other Australian jurisdictions. However, the NT Government decided to defer the general environmental duty provisions along with those provisions relating to environment protection policies until the second stage of its environmental regulatory reform program.

It is understood that the second stage of reforms will relate to how the Territory manages its wastes, pollution, clearing of native vegetation and the environmental impacts of mining activities and will result in:

  • amendments to the new Environment Protection Act;
  • the repeal and replacement of the Waste Management and Pollution Control Act and Litter Act; and
  • changes to the Mining Management Act and Water Act.

Petroleum amendments

On 28 November 2019, the Petroleum Legislation Miscellaneous Amendments Bill 2019 was introduced into the NT Parliament and subsequently referred to the Legislation Scrutiny Committee for inquiry and report. Following consideration of the Committee's Report, the Bill was passed and received assent on 30 March 2020.

We have previously examined the Act which, upon its commencement on 28 June 2020, amended the Petroleum Act 1984 and the Petroleum (Environment) Regulations 2016 to introduce the following significant changes:

  • allow for regulations to be made with respect to land access agreements, compensation to owners / occupiers and environmental security bonds;
  • impose new public consultation requirements for inviting applications for the grant of an exploration permit, with submissions being a mandatory consideration when the Minister is making a determination about the release of blocks;
  • require certain decisions by the Minister to consider and apply the principles of ecologically sustainable development such as decisions to grant, refuse or renew an exploration permit or production licence;
  • require the following set-backs for petroleum operations (except for those works undertaken before the new amendments commenced) unless the permitee or licensee has the written consent of landowners and in some cases, occupiers, native title holders and the Board of Trustees of the cemetery (as the case may be):
    • carrying out operations on land that is used as, or within 50m of land being used as, a residence, yard, garden, orchard or cultivated field;
    • carrying out operations on land that is used as, or within 200m of land being used as, a cemetery;
    • carrying out operations on land that is within a distance of 200m of any artificial accumulation of water or any outlet from which water may be obtained;
    • constructing a well, wellhead, pipeline or petroleum processing facility on land that is used as, or within 2 km of land being used as, a habitable dwelling (ie. all buildings or premises where people reside or work, schools and associated playgrounds, permanent sporting facilities and hospitals or other community medical facilities) (note that there is no consent exemption with respect to this prohibited operation); and
    • constructing a well or well pad on land that is within 1 km of a designated bore.
  • introduce a new offence for a person to interfere with authorised activities being conducted under a petroleum title or with the exercise by the titleholder of a right under the petroleum title.

If you would like any further information with respect to the environment and petroleum reforms in the Northern Territory or understand what this means for your operations 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.