Streamlined Federal environmental assessments and approvals are
one step closer with the introduction of changes to the Environment
Protection and Biodiversity Conservation Act 1999 into Federal
Parliament, and the release of new draft approvals bilateral
agreements for New South Wales and Queensland.
The biggest changes in the Environment Protection and
Biodiversity Conservation Amendment (Bilateral Agreement
Implementation) Bill 2014 are the removal of the CSG water trigger,
and the restriction of the referral process.
Referral process restricted where a bilateral in
Consistent with encouraging use of the accredited approvals
process of the relevant State or Territory, the referral process
will not be available to actions already approved under a bilateral
agreement, or actions that are being, or are to be, assessed under
a bilaterally accredited authorisation process.
The Minister has a discretion to determine whether these changes
apply to actions referred before the amendments' commencement
Depending on the particular authorisation process, this proposed
amendment potentially impacts on the ability of proponents to seek
a "not a controlled action" determination, or elect
whether to proceed through the EPBC Act process or a State or
Territory process for the assessment and approval.
Regulations and planning instruments will be considered
for the approvals bilateral agreement
The effect of an approvals bilateral is that the Minister can
accredit a process set out in a law of a State or Territory, and
approvals under that accredited law do not need a separate approval
under the EPBC Act, for the matters specified.
This accreditation is proposed to be extended beyond a
"law" so that the Minister may accredit an authorisation
process set out wholly or partly in a law of the State or Territory
or an instrument made under such a law. There will be a mirror
extension to the definition of "authorisation
Local government to be authorising entities for an
approvals bilateral agreement
The restriction that approvals bilaterals can only apply to
actions approved by a State or Territory will be removed, so that
other entities (eg. local governments) could be the authorising
entities for an approvals bilateral.
Amendments to State law won't automatically derail
bilaterally accredited authorisation process
If a State or Territory amends the law that is the bilaterally
accredited authorisation process, the Minister will have a new
power to determine that the process may continue without further
accreditation for the purposes of a bilateral.
This is subject to the amendment not having, or being unlikely
to have, a material adverse impact on a matter protected under the
EPBC Act, or a person's ability to participate in the
Transitional arrangements for projects when the
approvals bilateral agreement no longer applies to
If a project is undergoing assessment and the bilateral
agreement is either no longer applicable (for example, if the
relevant action is removed from the class of actions covered in the
bilateral), or is cancelled or suspended, the Bill sets out a
In the circumstances, the action will be deemed to have been
referred to the Commonwealth Environment Minister. The Minister
will be able to declare that a partly or fully completed assessment
under a State or Territory process can be used for assessing the
relevant impacts of the action under the EPBC Act.
Under the Memorandum of Understanding with the State of
Queensland and the NSW Governments, it is intended that the
Commonwealth Minister will have concluded an approvals bilateral
with both States by approximately mid-September 2014.
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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