On 28 May 2014 the Commonwealth Government
(Commonwealth) and the State Government of Western
Australia (State) released their draft Assessment
Bilateral Agreement (Bilateral Agreement) for
The Bilateral Agreement:
will replace the current agreement between the Commonwealth and
State (dated 21 March 2012 and amended on 16 July 2013) (the
seeks to create a "one-stop shop" for federal
environmental assessments required under Part 8 of the
Environment Protection and Biodiversity Conservation Act
1999 (EPBC Act) by accrediting the Western
Australia assessment procedures as meeting the EPBC Act
is open for public comment until Friday 27 June 2014.
The State is a step behind Queensland and New South Wales who
have released draft bilateral agreements with the Commonwealth for
environmental approval procedures, in addition to environmental
At the end of last year the Commonwealth gave notice of its
intention to develop a bilateral agreement to allow the State to
decide whether or not a controlled action is approved under Part 9
of the EPBC Act.
In this Alert, Partner Sarah Macoun and Solicitor Kylie
Panckhurst outline how the Bilateral Agreement is intended to
operate for Western Australia.
Current "two-stop shop"
Where a proposed action is likely to have a significant impact
on a matter of national environmental significance
(NES), that proposal must be referred to the
Commonwealth Minister for the Environment
(Minister) under the EPBC Act. The Minister will
decide if the proposed action is not a controlled action, not a
controlled action if undertaken in a particular manner, or a
controlled action. The first two decisions do not require further
approval before the proposal can proceed.
A "controlled action" is an action that has, will
have, or is likely to have a significant impact on a matter of NES.
The controlled action will require approval from the Minister and
is subject to the formal assessment and approval process under the
EPBC Act. The type of assessment process is decided when the action
is determined to be a controlled action.
A proposal which is a controlled action under the EPBC Act will
usually trigger Part IV of the Environmental Protection Act
1986 (WA) (EP Act). This means the proposal
will be subject to assessment and approval under both the State and
Commonwealth processes, except where the current agreement
The current agreement between the State and the Commonwealth
allows the Minister to rely on certain State environmental impact
assessment processes in assessing actions under the EPBC Act. This
means that where the proposed action is being assessed under
Division 1 of Part IV of the EP Act and in the manner approved by
the current agreement, further assessment is not required by the
Minister under Part 8 of the EPBC Act. However, separate decisions
are still required by the Commonwealth and the State as to whether
the action is approved.
Bilateral agreement "one-stop
The Bilateral Agreement will operate in a similar manner to the
current agreement and the Public Environmental Review
(PER) and Environmental Review and Management
Program will remain accredited assessment processes. The Bilateral
Agreement also accredits a broader range of EP Act assessment
processes and procedures as satisfying assessment requirements
under Divisions 4, 5 and 6 of Part 8 of the EPBC Act. Most notably,
these processes include Part V of the EP Act clearing assessments
and category A assessments on proponent information, provided such
processes comply with the additional administrative requirements
set out in Schedule 1 of the Bilateral Agreement.
Once the Bilateral Agreement is fully operational the State will
assess proposed actions that are likely to have a significant
impact on a matter of NES. However, separate decisions will still
be required by the Commonwealth and the State for the action until
an environmental approval bilateral agreement is completed for
The Bilateral Agreement is open for submissions until 27 June
2014 and can be found
This legal update is an overview of existing eligible project activities and new project types proposed to be developed.
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