Australia: New draft environmental regulations for NT onshore oil and gas industry released

Key Points:

The Northern Territory Government has released new environmental regulations to achieve a best-practice environmental regulatory regime for the NT oil and gas industry.

On 5 March 2016, the NT Government released its draft Petroleum (Environment) Regulations which have been prepared as the next step to establishing a robust best-practice environmental regulatory regime to reduce environmental impacts and risks associated with onshore oil and gas activities to a level that is as low as reasonably practicable and acceptable. Submissions can be made on the draft Regulations until Monday, 4 April 2016.

Foundation and key principles

It is understood that the foundations of the draft Regulations have been formed from extensive consultation and consideration of the following:

  • the best-practice regulation in South Australia and Western Australia as well as lessons learned from onshore oil and gas development in North America;
  • academic review by industry expert Dr Tina Hunter in 2012; and
  • the Independent Inquiry into Hydraulic Fracturing in the Northern Territory undertaken by Dr Allan Hawke AC in 2014-15.

From this the key principles of the draft Regulations have been identified as:

  • Risk-based: focus on the key risks and impacts that must be managed.
  • Outcome-focused: do not prescribe what actions oil and gas companies must take, but require clear definition of environmental outcomes and performance standards and measurements criteria to ensure outcomes are met.
  • Ecologically Sustainable Development (ESD): all onshore oil and gas activities must be consistent with the principles of ESD which are:

decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

the principle of inter-generational equity – that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making; and

improved valuation, pricing and incentive mechanisms should be promoted.

Environmental Management Plans (EMP)

The key principles outlined above will be delivered by the draft Regulations through its mandatory requirement for an interest holder1, who proposes to carry out a regulated activity, to prepare, and have approved, an EMP before the activity can commence.

A "regulated activity" is defined under the draft Regulations as an activity or a stage of an activity:

  • carried out, or proposed to be carried out, under a technical works programme for a petroleum interest; and
  • that has, or will have, an environmental impact.

Such activities include, but are not limited to:

  • land clearing;
  • earthworks (for example, cutting, filling, excavating or trenching);
  • the construction, operation, modification, decommissioning, dismantling or removal of a well, pipeline or other facility;
  • establishing seismic lines or drill pads;
  • conducting seismic or other surveys;
  • drilling;
  • the release of a contaminant or waste material; and
  • the storage of petroleum and hazardous substances.

However, regulated activities will not include the following low impact or reconnaissance activities:

  • driving on existing roads or tracks;
  • walking on a petroleum interest area to perform field studies that do not involve the use of equipment that will disturb the land;
  • taking water samples;
  • taking rock samples without the use of heavy machinery; and
  • airborne surveys.

The EMP must be submitted to the Minister only after the interest holder has undertaken appropriate stakeholder engagement which is to be determined by the extent of the stakeholder's connection with or use of land at the relevant location. A "stakeholder" is a person or body whose functions, interests or activities may be affected by an environmental impact resulting from the regulated activity, including a person who owns or leases in the relevant locations; an Agency or other statutory body; or a community organisation.

The draft Regulations set out the requirements for the form and content of an EMP and the "approval criteria" against which the Minister will assess the EMP, which includes a detailed list in Schedule 1. These requirements read together prescribe what an EMP must include, which can be summarised as follows:

  • a detailed description of the regulated activity (or activities) to be carried out under the EMP;
  • the location of each regulated activity and a detailed description of the environment that may be effected;
  • an evaluation of the environmental impacts and risks of each activity;
  • the environmental objectives and environmental performance standards, including measurement criteria to be used for those objectives and standards;
  • an implementation strategy, including the arrangements for ongoing monitoring of the interest holder's environmental performance and an emergency contingency plan;
  • the stakeholder engagement undertaken and plans for further stakeholder engagement;
  • a description of the relevant legislative requirements and how they are met; and
  • any other information necessary to demonstrate that each regulated activity for which the EMP is made will be carried out in a manner:

consistent with the principles of ESD; and

by which the environmental impacts and risks will be reduced to as low as reasonably practicable; and

by which the environmental impacts and risks will be of an acceptable level taking into consideration good oilfield practice, the nature and scale of the activity and the particular environment that will be affected by the activity.

The NT Government has also released Environment Regulations Information Papers, one of which includes a flowchart that outlines the form and content requirements.

Minister approval of EMP

Once an EMP has been prepared and submitted to the Minister for approval, the Minister must make one of the following decisions within 30 days of submission (or if more than 30 days is required, in accordance with the proposed timetable specified in a notice from the Minister to the interest holder):

  • if the whole EMP meets the approval criteria: approve the whole EMP (with or without conditions) and give the interest holder an approval notice;
  • if only part of the EMP meets the approval criteria:

approve that part of the EMP and give the interest holder an approval notice for it; and

give the interest holder a resubmission notice 2 in relation to the part of the plan that does not meet the approval criteria;

  • if no part of the EMP meets the approval criteria: give the interest holder a refusal notice for the EMP.

Other key features

The other key features of the draft Regulations at a glance are:

  • The requirement for revision of an EMP where certain events occur. These include where there is a new regulated activity, a change to an existing regulated activity, a new environmental impact or risk, a significant change to the existing environment, a change in interest holder, if requested by the Minister and at the end of each period of five years.
  • The EMP is to be published by the Minister. Information of a commercially confidential nature will be withheld as well as any other information if the Minister is satisfied there are reasonable grounds for doing so.
  • Revocation of approval of an EMP where an offence has been committed under the Regulations, where a requirement under the Regulations has been contravened or where no appropriate step under the Regulations is taken by an interest holder in relation to a refusal of a proposed revision, request for revision by the Minister or at the end of each period of 5 years.
  • Review of certain decisions to the Civil and Administrative Tribunal. An interest holder can seek review of the decision of the Minister to approve or refuse the EMP (or part) and decision of the Minister to revoke the approval of an EMP.
  • Offence provisions which relate to the following:

carrying out a regulated activity without an EMP;

contravening the EMP;

continuing with a regulated activity if a new environmental impact or risk occurs and the circumstances are not provided for in the EMP;

not giving notice and written reports to the Minister of a reportable incident3

not giving a written report to the Minister about recordable incidents4; and

not keeping prescribed records in accordance with the Regulations and making them available.

  • Transitional provisions which provide that:

An approved plan5 in place immediately before commencement of the Regulations will continue to apply after commencement for the lesser period of either the period for which it is approved or 12 months after commencement. This means that a new EMP under the Regulations would need to be submitted and approved before the regulated activity can continue.

environmental directions will continue to apply after the commencement.

Where an EMP has already been prepared and submitted to the Minister for approval but no decision has been made immediately prior to commencement of the Regulations, the Minister must continue to consider that EMP as if the Regulations had not commenced and once approved the EMP has effect as if it were approved under the Regulations.

Interaction with other key environmental assessment processes

Where the environmental impacts and risks of the regulated activity are, in the opinion of the NT EPA, a matter which could reasonably be considered to be capable of having a significant effect on the environment, the environmental impact assessment (EIA) process under the Environmental Assessment Act (NT) will be triggered.

Furthermore, where the activity has, will have, or is likely to have a significant impact on a matter of national environmental significance (MNES), the Environment Protection and Biodiversity Conservation Act (Cth) will be triggered.

The NT Government has released a flowchart which outlines the proposed interaction between the draft Regulations and State and Federal environmental impact assessment processes.

What next?

Submissions on the draft Regulations can be made by email or post as specified on the Government's website.

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. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions