Additional Commonwealth approvals triggers will soon apply to
large coal mining and coal seam gas projects, following the passage
of a Bill through the Federal Senate yesterday.
The Bill will amend the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) to include as a "matter of
national environmental significance" an action involving coal
seam gas development or large coal mining development that has,
will have, or is likely to have a significant impact on a water
resource. As a consequence, these actions will require approval
under the EPBC Act once the changes commence.
During its passage through the House of Representatives, the
Bill was amended to prevent water trigger-related actions from
being able to be approved by the States and Territories under an
approvals bilateral agreement. The Senate retained this amendment,
despite some stern opposition to it from industry groups and the
An approvals bilateral agreement is an agreement between the
Commonwealth and a State or Territory which allows actions to be
assessed under an accredited State or Territory process and
approved by the State or Territory without further assessment or
approval from the Commonwealth Minister under the EPBC Act. They
differ from assessment bilateral agreements, which accredit a State
or Territory assessment process but still require the action to be
separately approved by the Commonwealth.
Currently, the Commonwealth and all States and Territories have
assessment bilateral agreements in place. The Government attempted
last year to negotiate approvals bilateral agreements with the
States, and the Federal Opposition has indicated its intention to
re-commence those negotiations if it wins government in September
2013. The amendment is particularly significant, because it could
make the water trigger the only exception in the EPBC Act to
Commonwealth authorisation of State approvals of EPBC Act matters,
if approvals bilateral agreements are made.
Passage through the Senate
A number of amendments to the Bill were proposed in the
These included proposed amendments to:
extend the application of the water trigger to shale gas,
tight-gas and coal gasification;
prevent the Commonwealth Minister from approving the taking of
the water trigger-related action unless he or she is satisfied that
the land owner has obtained independent legal advice, has obtained
advice in relation to the likely impacts of the action and has
freely given informed consent in relation to the taking of the
include actions which have or are likely to have a significant
impact on the environment within National Parks as a matter of
national environmental significance.
The proposed amendments were voted down and the Bill passed the
The Bill is awaiting assent by the Governor-General. The changes
will commence the day after the Bill is assented to.
Implications for CSG and large coal mining projects
Proponents of large coal mining and coal seam gas projects,
including those already undergoing assessment, will need to
consider the effect of the new water trigger on their projects.
In particular, proponents will need to consider the timing of a
referral under the EPBC Act to minimise unnecessary rework and
duplication in their environmental impact assessment process.
Once commenced, the amendments have the potential to:
increase the number of large coal mining and CSG projects which
require EPBC Act approval, which would not otherwise trigger other
broaden the scope of the Commonwealth Government's
assessment in the exercise of its approval functions; and
result in additional assessment requirements, resulting in
delay to future projects and projects currently undergoing
assessment, where those projects meet the criteria to be considered
by the Minister for the new water trigger.
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 bulletin.
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This legal update is an overview of existing eligible project activities and new project types proposed to be developed.
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