Australia: NT EPA seeking feedback on significant effects definition

"Significant effects on the environment" will be a key term in the NT's environmental assessment regime.

The Northern Territory Environment Protection Authority is seeking feedback on what constitutes "significant effects on the environment".

On 13 July 2016, the NT EPA released its draft Environment Guideline - Identification of significant effects on the environment which is to provide guidance on the meaning of, and relevant considerations for, "significant effects on the environment" under the Environmental Assessment Act 2013 (EA Act). Submissions can be made by no later than 5pm on Monday, 15 August 2016.

Environmental Impact Assessment

The regulatory framework for the assessment of environmental impacts (actual or potential) of a proposed project or proposal in the Northern Territory is under the EA Act and the Environmental Assessment Administrative Procedures.

The object of the EA Act is to ensure, to the greatest extent practicable, that each matter affecting the environment which is, 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, is fully examined and taken into account in, and in relation to:

  • the formulation of proposals;
  • the carrying out of works and other projects;
  • the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the Commonwealth, the States and other Territories);
  • the making of, or the participation in the making of, decisions and recommendations; and
  • the incurring of expenditure,

by, or on behalf of, a person, either alone or in association with another person (a "proposed action").

The object of the EA Act is achieved through the operation of the Procedures which contain the environmental impact assessment (EIA) process. The NT EPA has prepared a flowchart of the EIA process, however the key stages for current purposes can be summarised as:

  • Where a project or proposal is a "proposed action" (ie. it is likely to have a significant effect on the environment) a Responsible Minister (that is, the Minister primarily responsible for authorising the proposed action) must give the NT EPA a written notification of a proposed as soon practicable after being informed of the formulation of that proposed action.
  • The NT EPA can also require the notification of a project or proposal, following consultation with a Responsible Minister, when that project or proposal has not been notified as per the above, but the NT EPA considers it to be a proposed action.
  • In either case, the NT EPA is then required to make a decision (with or without requesting additional information from the proponent) as to whether or not an EIA in the form of either a public environmental report (PER) or an environmental impact statement (EIS) is necessary in respect of the proposed action.
  • Where a decision is made that EIA is required, the NT EPA prepares a description of the matters relating to the environment which it considers are necessary to be dealt with in the PER or EIS as the case may be (referred to as the Terms of Reference).
  • Once the PER or EIS has been prepared in accordance with the Terms of Reference and submitted by the proponent, it will complete the public consultation and assessment stages. The NT EPA will then prepare and provide to the Environment Minister an assessment report about the proposed action it thinks fit for the protection of the environment.

What does the draft Environment Guideline do?

The entire EIA process is focused on the effect a proposed action will have on the environment and whether that effect will be significant, however there is currently no guidance on the meaning of "significant effect on the environment". This creates considerable uncertainty for Responsible Ministers, proponents, authorising agencies and the community in general.

The objective and scope of the draft Environment Guideline is to provide guidance on what "significant effect on the environment" means for the purpose of the EIA process outlined above. To summarise, the draft Environment Guideline contains the following meaning and relevant considerations for which feedback is being sought:

  • literal meaning: a change in the surroundings of man that is large or important enough to be noticed1; and
  • relevant considerations: in determining whether a proposed action is likely to have a significant effect so as to require assessment by the NT EPA, the following are some matters to which the NT EPA may have regard:
    • ovalues, sensitivity and quality of the environment which is likely to be impacted;
    • extent (intensity, duration, magnitude and geographic footprint) of the likely impacts;
    • consequence of the likely impacts (or change);
    • resilience of the environment to cope with the impacts or change;
    • cumulative impact with other actions;
    • level of confidence in the prediction of impacts and the success of proposed mitigation;
    • oobjects of the EA Act, NT EPA policies, guidelines and procedures, or other NT environmental acts; and
    • public concern about the likely effect of the proposed action on the environment.

It is also noted that the determination of whether the effects on the environment are potentially significant can also be informed through reference to performance criteria, triggers or risk criteria with reference to the particular contexts of the proposal or by reference to:

  • NT EPA guidelines on particular matters or standards;
  • relevant definitions of significance under the EPBC Act and national standards; and
  • the presence of planning or policy frameworks and/or other statutory decision-making processes that can regulate the mitigation of the potential effects of a proposed action on the environment.

Feedback by 5pm on Monday, 15 August 2016

Submissions can be made in accordance with the details on the NT EPA's website.

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1This meaning is derived from the Oxford dictionary definitions of "significant" and "effect" and the EA Act definition of "environment".

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.

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