Australia: 2015 - The year of environmental bilateral agreements in WA

HG Environment Alert: 7 January 2015
Last Updated: 12 January 2015
Article by Karen Browne, Olivia Williamson and Kylie Panckhurst

Western Australia has welcomed 2015 with the commencement of an environmental assessment bilateral agreement between the Commonwealth of Australia and the State of Western Australia, and the release of another draft bilateral agreement with respect to environmental approval processes.

In this Alert, Associates Olivia Williamson and Kylie Panckhurst set out the key points and an overview of the bilaterals.

Key points

The bilateral agreements aim to reduce the overlap that many proponents encounter in obtaining an environmental approval where there are both Commonwealth and State requirements.

The Assessment Bilateral:

  • commenced on 1 January 2015;
  • applies to actions notified by the Commonwealth as "controlled actions" and subject to State assessment under an accredited process; and
  • in certain circumstances, both the Commonwealth and State can monitor and enforce approval conditions for an action assessed under the Assessment Bilateral.

The Draft Approval Bilateral:

  • is open for public comment until 13 February 2015;
  • will enable the State to issue a single environment approval covering both Commonwealth and State requirements;
  • will not be available in respect of actions which have progressed to a certain point of Federal or State assessment at the commencement date of the bilateral agreement;
  • requires State decision makers to consider Commonwealth policies relating to matters of national environmental significance in deciding whether to approve actions; and
  • proposes to apply the WA Government Environmental Offsets Policy and Guideline, however if the offset is not consistent with the Commonwealth offset assessment guide or comprises less than 90% direct offsets, the State must advise the Commonwealth before making the approval decision.

Assessment Bilateral

On 1 January 2015, a new bilateral agreement between the Commonwealth of Australia and Western Australia commenced relating to environmental assessment (Assessment Bilateral). The new Assessment Bilateral revokes the previous bilateral agreement in this regard.

The Assessment Bilateral allows the Commonwealth Minister for the Environment to rely on specified Western Australian environmental assessment processes (declared processes) in assessing actions under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The list of declared processes is set out in Schedule 1 of the Assessment Bilateral document.

The Assessment Bilateral is relevant to proponents or applicants where:

  • the Commonwealth Minister has notified that an action proposed to take place in Western Australia is a "controlled action"; and
  • the Western Australian Minister advises the Commonwealth Minister that the action will be assessed using an accredited process.

In determining the assessment approach for a proposed action, the Assessment Bilateral states that the State will decide on a form of assessment that will allow the Commonwealth Minister to have sufficient information to make an informed decision whether or not to approve the proposed action and, if so, under what conditions.

The Assessment Bilateral is said to be a step toward establishing a 'one-stop-shop' for streamlining environmental approvals in Western Australia. The intention being that:

  • the Commonwealth and the State consult on the conditions relevant to matters of national environmental significance; and
  • the Commonwealth approval conditions are limited to matters not addressed by State conditions.

While a 'one-stop-shop' in the sense of obtaining an approval, both the Commonwealth and the State can monitor compliance. Further, both or either government may take action to prosecute a person who contravenes an approval condition for an action assessed under the Assessment Bilateral, provided that the condition relates to a matter of national environmental significance.

Draft Approval Bilateral

Just prior to the new year, the Federal Environment Minister and the Western Australian Minister for Environment released a draft bilateral agreement on environmental approvals (Draft Approval Bilateral). There is no agreement currently in place in this regard.

If finalised, the Approval Bilateral will enable the Western Australian government to issue a single environment approval covering both Commonwealth and State requirements. The single approval will avoid the need for a proponent to engage separately with each level of government to obtain an environmental approval to undertake an activity.

As presently drafted, the Draft Approval Bilateral proposes a declaration that an action does not require approval under Part 9 of the EPBC Act if the approval process for that proposed action has been accredited by the Federal Environment Minister. A list of the proposed 'accredited processes' is set out in Schedule 1 of the Draft Approval Bilateral document and includes Assessment on Proponent Information, Public Environmental Review, Public Inquiry, Strategic proposal and derived proposal and Native vegetation clearing permit.

A proponent or applicant will need to apply in the approved manner for assessment and approval under the finalised bilateral agreement. The Draft Approval Bilateral currently excludes actions already referred to the Commonwealth Minister which are being assessed under the EPBC Act when the agreement commences. Actions that have progressed past specified stages of the State assessment processes will also be excluded from the bilateral agreement.

In assessing and deciding whether to approve actions, the Draft Bilateral Agreement records that the State decision makers will consider Commonwealth policies relating to matters of national environmental significance. Clause 6.1 of the Draft Bilateral Agreement however is notable in this regard. The clause relates to offsets and states that the WA Government Environmental Offsets Policy and Guidelines apply to offsetting significant residual impacts on matters of national environmental significance. However if the offset is not consistent with the outcome indicated in the Commonwealth offset assessment guide or comprises less than 90% direct offsets, the Draft Bilateral Agreement requires the State to advise the Commonwealth before making the decision. The Draft Bilateral Agreement details an escalation process if there is a dispute or concern.

The Draft Approval Bilateral is open for public comment until 13 February 2015. Further information about making a submission is available on the Commonwealth Government's Department of Environment website.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Karen Browne
Kylie Panckhurst
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