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

Last Updated: 20 February 2017
Article by Nicole Besgrove and Margaret Michaels

Most Read Contributor in Australia, November 2017

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.


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

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

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”

Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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