Australia: Overhaul of the NT environmental regulatory framework on the horizon

The Northern Territory Government is progressing the review of its current environmental regulatory framework, considering advice on a new environmental law and an overhaul of the existing assessment and approval procedures.

The Northern Territory Environment Protection Authority (NT EPA) recently released its Roadmap for a modern environmental regulatory framework for the Northern Territory which is its finalised advice on overhauling the current environmental regulatory framework following on from the Hawke Review.

The Roadmap

In 2014 the then Country Liberal Territory Government commissioned Dr Allan Hawke AC to conduct an independent inquiry into the use of hydraulic fracturing as a method to extract oil and gas resources in the NT. During the Inquiry, it was recommended that the NT Government review the Environmental Assessment Act and in light of this, the NT Government commissioned Dr Hawke to conduct a review of the Northern Territory's environmental assessment and approvals processes (the Hawke II Review).

In May 2015 Dr Hawke delivered his report Review of the Northern Territory Environmental Assessment and Approval Processes which recognised that the Territory's existing environmental regulatory framework has been in place for many years and had not kept pace with changes in modern technology or project methodology.

In August 2016, the NT EPA released its Draft Advice Regarding Dr Allan Hawke's Review of the Northern Territory's Environmental Assessment and Approval Processes for public consultation. After consideration of the submissions made in response to the draft, the NT EPA finalised its advice which includes seven recommendations to reform the current environmental regulatory framework.

Recommendation 1: Single environmental whole-of-government environmental approval

The NT EPA has proposed a single, whole-of-government environmental assessment and approval framework with the following stages:

  • proponents refer their proposal that could have potentially significant environmental impacts and/or risks to the environment;
  • the NT EPA determines whether or not that proposal requires an environmental impact assessment and, if so, the level of assessment that would apply;
  • the NT EPA assesses the proposal's potentially significant environmental impacts and/or risks to the environment;
  • the NT EPA prepares an Assessment Report, including recommendations of conditions on any approval, for submission to the Minister responsible for the environment portfolio (currently the Minister for Environment and Natural Resources) (Environment Minister); and
  • the Environment Minister decides whether to issue or refuse an environmental approval, including any conditions on it.

This approach has been modelled on the Western Australian framework, which clearly separates assessment of the environmental impacts from Ministerial decisions. The NT EPA considers this to be the leading approach to environmental impact assessment and approval. Some of its key arguments to support it are:

  • the NT EPA is best placed to consider potential impacts on the environment;
  • the independence of the NT EPA from the government will ensure that its advice is not influenced by political considerations; and
  • the most appropriate Minister to issue a single environmental approval is the Environment Minister who:
    • does not have a concurrent role to attract and support industry and development, which would be a source of criticism in terms of a conflict of interest; and
    • is more likely to have a holistic view of the Territory's environment and potential cumulative impacts of proposals on the environment.

Recommendations 2&3: reviewing and revising the Environmental Assessment Act

In its Roadmap, the NT EPA has identified a range of ongoing weaknesses in the current environmental impact assessment legislation.

The first is that if there is no responsible Minister for a proposal that could have a potentially significant environmental impact and/or risks to the environment, it may not be referred to the NT EPA for assessment. There is currently no mechanism for conducting an environmental assessment or providing an approval when there is no responsible Minister.

Secondly, ecologically sustainable development (ESD) is not included as an objective in the legislation and there is no overarching government policy or guidance for the achievement of ESD in the NT.

Other concerns arise from assessment. The current legislation does not allow for strategic assessment, but is rather focused on new proposals or expansions of existing projects. Furthermore, the assessment options are limited and there is no mechanism for the NT EPA to make recommendations about conditions to be placed on a project or for the management of a proposal.

Finally, there is no mechanism to require conditions of an environmental approval to be reflected in the sectoral approvals issued by the responsible Minister and other relevant Ministers and authorities, or to ensure that conditions of the environmental approval are complied with and reported on.

To address these weaknesses, the NT EPA proposes a new piece of environmental impact assessment legislation with the following features.

Generally, the new legislation would facilitate both single proposal assessments and strategic assessments by the NT EPA, which could prepare guidelines which identify the different levels of assessment and the processes and procedures that are to be followed. It would also be designed to maximise transparency and public participation in environmental decision-making and management, including appropriate opportunities for public comment prior to decisions being made and the NT EPA and Ministers publishing Statements of Reasons for decisions.

More specifically, the proponent would be responsible for notifying the NT EPA of any proposal that has the potential to have a significant environmental impact and/or risk to the environment (ie. submitting a Notice of Intent (NOI)) with penalties to apply for non-compliance with this responsibility. The NT EPA would be able to require a proponent to submit an NOI when appropriate (ie. "call in" powers).

Where a proponent has not notified a relevant proposal, the Environment Minister and other Ministers would be able to refer proposals to the NT EPA for consideration under the environmental impact assessment process.

The NT EPA would be able to publish a list of exemptions for which an NOI is not required (for example, the types of proposals that are unlikely to have potential significant impacts on the environment) and prepare guidelines for when an NOI is or is not likely to be required.

There would also be clear and transparent guidelines for how the NT EPA is to make decisions about the level of assessment a proposal may require.

The NT EPA would also be able to:

  • require a proponent, where practicable, to submit an entire proposal for assessment;
  • recommend conditions, including a requirement that an environmental management plan be prepared to the satisfaction of the NT EPA or the requirements of other government agencies, and conditions to monitor, review, audit and report on it; and
  • enforce compliance with the conditions of the approval issued by the Environment Minister.

Any subsequent approvals from other sectoral agencies (for example approvals under the Mining Management Act or the Waste Management and Pollution Control Act or the Planning Act) would have to be consistent with the Environment Minister's approval and conditions.

Proponents would have to provide annual compliance reports on the implementation of environmental approval conditions, which would be made public.

Recommendation 4: Discharging and emitting wastes

Currently the management of environmental impacts from wastes and pollution and the impacts of developments on the environment is spread over different pieces of legislation and regulators.

This can often result in duplication, inconsistencies and confusion, says the NT EPA, and ultimately undermine the intent of the relevant legislation and the desired environmental outcome, and lead unnecessary time delays.

The NT EPA sees the issue and enforcement of licences to discharge or emit wastes to land, water, sea or air environments as one of its own functions, which should be embodied in a single consolidated piece of legislation: an Environment Protection Act. This should:

  • establish a general duty of care for all persons to protect the environment and avoid environmental harm;
  • provide a level playing field across industry types;
  • be based on the potential for environmental impact and/or risk rather than types of industry;
  • establish the NT EPA as the single environmental regulator;
  • allow the NT EPA to delegate the power to issue licences and ensure compliance to those NT public servants with the appropriate training, skills and experience;
  • provide that activities associated with ensuring compliance with licences would be performed by the staff supporting the NT EPA and any significant compliance actions, such as prosecutions, require approval by the NT EPA; and
  • allow the NT EPA to prepare policies and other guidance material establishing its expectations and requirements in relation to the management of the environment and the exercise of its powers and functions.

Recommendation 6: Environmental impact assessments

The NT EPA considers that its credibility and value lie in its independence and the expertise of its respected members. The NT EPA is independent from government as:

  • it cannot be directed by the Minister for Environment and Natural Resources;
  • its members are not public servants; and
  • its responsibilities and decisions are subject to a high level of transparency as this is required by each piece of legislation under which it acts.

The NT EPA is comprised of board members that must have the necessary experience and expertise to make decisions and recommendations on environmental impact assessments, environmental approval decisions, approval conditions and enforcement decisions.

Therefore, the NT EPA's advice is that it continues to conduct environmental impact assessments for proposals that may have a significant impact on the environment, regulate the activities that may have significant impacts or risks to the environment, and provide strategic advice on matters of environmental importance with continued access to the expertise of sectorial agencies where necessary.

What happens to the NT EPA's recommendations now?

While at this stage, it is not clear which (if any) of the NT EPA's recommendations will be implemented, the recommendations provide a guide as to the areas of possible amendment to the NT environmental regulatory framework in the future.

A timeline or program for reforming the environmental regulatory framework has not yet been released by the Government. However, if implemented, the recommendations would represent a significant overhaul of key elements of the assessment and approval procedures for proposals that have the potential to have a significant environmental impact and/or risk to the environment in the NT.

RELATED KNOWLEDGE

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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