An overview of the draft Environment Protection Bill and Regulations
23 November 2018
The NT Government is currently seeking public submissions on its new laws for environmental impact assessment in the Northern Territory – the draft Environment Protection Bill (draft Bill) and draft Environment Protection Regulations (draft Regulations) (together, draft EIA laws). These laws are a 2016 election commitment.
EDONT’s view is that these reforms are long overdue and are very welcome. For this reason, the EDONT is strongly encouraging everyone to make a submission as it is the key way to have your voice heard about these vital new laws. This is a ‘once in a generation’ opportunity to bring about transformational change to environmental protection in the Territory.
The Northern Territory’s current laws governing how the environmental and social impacts of major development are assessed and decisions are made (environmental impact assessment, or EIA) were introduced in 1982. They are widely acknowledged to be completely inadequate, failing to meet modern environmental regulatory standards and community expectations. They are in desperate need of a complete overhaul.
EDONT considers the draft EIA laws are well placed to transform environmental protection in the Northern Territory, if the government properly supports and resources the new system. Although there are areas for improvement in the draft EIA laws (or areas where we don’t yet have enough information), on the whole we are very supportive of these proposed laws.
EDONT is disappointed the NT Government is not proactively engaging the public in these reforms (such as by holding public seminars). They have, however, published a range of fact sheets that describe the proposed new laws.
Public submissions are open to anyone and are due by 3 December 2018.
Here are our thoughts on some of the key positive elements of the draft EIA laws, and some concerns and areas for improvement, to assist you to write your own submission.
1. A standalone environmental approval from the Minister for the Environment, on advice from NTEPA
This is the core, essential element of the new EIA laws. For the first time, an environmental approval will now be issued by the Minister for the Environment, on the advice of the NTEPA. The NTEPA may recommend an approval should be refused if it has ‘unacceptable impact’. The Minister needs to consider a range of matters including whether the proponent is a ‘fit and proper person’ to hold an approval.
This differs from the current situation where the ‘sector’ Minister approves the environmental impacts of a project (e.g. the mining Minster endorses the environmental impacts of a mine) – a situation which inherently gives rise to potential conflict of interest. Although the NTEPA currently can provide recommendations about environmental impacts, under the law, these can be ignored.
2. Strong guiding objects and principles to govern how decisions are made
The principles of ecological sustainable development (ESD) are included in the draft Bill and decision-makers must ‘have regard to’ them when making decisions.
ESD principles are well-accepted in equivalent legislation around Australia, and are based on principles adopted by all States and Territories in 1992. They include concepts such as ‘inter-generational equity’ (considering both current and future generations in making decisions) and ‘the precautionary principle’ (scientific uncertainty shouldn’t be used to defer actions to protect the environment). Their inclusion provides important guidance for how decisions should be made and how the draft EIA laws will be interpreted and administered.
The draft Bill also includes a decision-making hierarchy to ensure that activities:
take steps to avoid impacts on the environment;
take steps to mitigate adverse impacts; and finally,
offset remaining impacts.
This approach is generally consistent with international best practice.
3. Detailed framework and process for environmental impact assessment
The Act sets out a detailed procedure for environmental impact assessment and approval of development that may impact the environment. Detailed, mandatory processes are important to bring clarity, certainty, rigour and accountability to the EIA system in the NT, which is currently lacking.
The draft Bill enables ‘triggers’ to be set by the Minister that will automatically require an approval based on an activity (e.g. fracking) or a locality (e.g. proximity to threatened species habitat). Similarly, triggers may be set for when a proponent must refer their proposal to the NTEPA for a decision about whether it needs an approval or not.
The new process incorporates important elements to increase public participation opportunities in EIA in the NT – including requirements for public comments for most key decisions, such as proposed triggers, and approvals.
The new EIA laws should also improve transparency, as they require all approvals and assessment documents to be available to the public (on an ongoing basis) and require reasons for decisions to be published. These provisions are vital for transparent and accountable decision-making.
See the NT Government’s fact sheet and flow-chart describing the EIA process here.
4. An enforceable ‘general environmental duty’ to avoid environmental harm
The draft Bill establishes a new ‘duty’ to avoid or take steps to minimise environmental harm. It will be an offence to engage ‘recklessly’ in unauthorised conduct that causes environmental harm. This duty is an environmental safeguard that will be available as a tool for the government to hold accountable anyone who causes environmental harm without approval.
5. Strong protection tools and financial tools for Environmental Minister/ Department
The Environment Minister and Department are provided with new environmental protection tools under the draft EIA laws. These include an ability to declare protected environmental areas, to prohibit certain actions (to protect the environment) and to create environment protection policies.
The draft Bill also establishes a range of financial tools, including requiring bonds as a condition of approval, applying a levy to an industry, and establishing funds for environmental protection.
6. Comprehensive compliance and enforcement powers
The draft EIA laws contain a comprehensive suite of compliance and enforcement powers, many of which are currently not available to protect the environment in the NT.
The draft Bill includes a range of offences in cases where a proponent does not comply with requirements specified under the draft EIA laws. The Department and NTEPA are given important powers to investigate potential breaches and take action to enforce compliance, including environment protection notices, stop work notices and closure notices. There are also opportunities for civil enforcement (e.g. seeking an injunction to prevent something occurring that will harm the environment).
Key concerns and areas for improvement
1. The draft EIA laws fail to acknowledge Aboriginal interests and integrate appropriate consultation and participation for Aboriginal people and communities
The draft EIA laws are silent on the environmental, social and cultural interests of Aboriginal communities and people in relation to activities that have an impact on the environment. It fails to appropriately have regard to Aboriginal culture and communities in the decision-making process.
We strongly consider the draft EIA laws need to explicitly recognise and implement culturally appropriate consultation practices for Aboriginal communities and people, including through integrating these ideas in the guiding principles of the draft Bill.
2. Appeal rights are excluded for those acting in the public interest to protect the environment
EDONT strongly considers that third party appeal rights, both for ‘judicial review’ and for ‘merits appeal’ must be included in the draft EIA laws to ensure these laws operate for the public interest.
These appeal rights are critical for ensuring accountable decision-making, acting as a safeguard against corruption and upholding the rule of law.
Although the draft Bill currently includes these fundamental rights, the NT Government has recently back-flipped and publicly committed to significantly narrowing (for judicial review) and removing (for merits review) these rights from the draft Bill. This will significantly undermine accountable decision-making, restrict access to justice and undermine the rule of law. This decision is particularly disappointing as including merits appeals to NTCAT was part of the election commitment (p13) and would be consistent with the recommendations and findings of the Final Report of the Scientific Inquiry into Hydraulic Fracturing in the NT.
For more on this important issue, see our Explainer post here.
3. Some elements of the EIA process undermine accountability and good decision-making for the environment and the public interest
Some provisions in the draft EIA laws are inconsistent with accountable, best-practice decision-making focused on protecting the environment and the public interest.
Although decision-makers must consider the principles of ESD (see above), they are not required to specify how the principles have been considered in a statement of reasons. This undermines genuine, transparent consideration of these principles.
Timeframes in the EIA process are too short (e.g. 30 days exhibition of complex draft environmental impact statements), undermining genuine public participation and input.
If there is a delay in the Minister reaching a decision on an approval within a required timeframe, the approval is assumed to be approved. This undermines accountable, considered decision-making.
At times, proponents are given inappropriate access to influence the EIA process. For example, proponents (but not the public) are invited to comment on their draft approval. This creates risk for undue influence and corruption and needs to be removed to ensure objective, accountable and transparent decision-making.
4. The draft Bill includes a wide power to exempt anyone from the Act
The draft Bill allows the Regulations to exclude any person from complying with the Act. There are no constraints or safeguards placed on when this power can be used. This exemption means that Regulations, which are not subject to Parliamentary scrutiny and debate, could be used to exclude an entire industry (e.g. fracking, pastoralism or mining) from compliance with the Act.
This is an excessive power to be included in Regulations and could be used to fundamentally undermine the Act’s operation and confidence in the regime. A more appropriate approach needs to be included in the Act, such as subjecting this power to a requirement that the Regulations can only exclude compliance with the Act if this is consistent with the objects of the Act, and requiring reasons to be published for any exemption.
5. Procedures for EIA should be in the draft Bill, not the Regulations
The Regulations currently contain all the procedures for environmental impact assessment under the various ‘pathways,’ including how proposals are amended and modified. They also include significant provisions for public participation, transparency and accountability.
These are all matters that are ordinarily included in an Act, not Regulations, which can be changed easily without Parliamentary oversight. The substance of the entire EIA process must be included in the draft Bill. The Regulations are suitable for administrative matters, such as setting application fees.
6. Some important details are currently missing in the exhibition materials
The draft EIA laws are missing important details in some key areas, including:
What the proposed ‘location’ and ‘activity’ triggers will be – how these triggers are set will be crucial in determining what activities and impacts will require assessment under the new Act
Maximum penalty amount for offences – to ensure that offences act as an appropriate deterrent (and punishment), they must be set at a high enough level to ensure they cannot be factored into the ‘cost of doing business
Transitional arrangements – how proponents that are currently being assessed under the existing legislation (Environmental Assessment Act) will be transitioned to the new system, and how projects that have been approved under other legislation will be transitioned to having an environmental approval, will be critical for ensuring the ongoing legitimacy of the new system.
The NT Government should release details about their proposals on these issues as soon as possible.
7. Proper resourcing will be essential to success of the new system
Finally, it is important to emphasise that the new EIA laws will be ineffective if sufficient resources are not directed towards implementing and properly administering them, and compliance and enforcement is not properly resourced.
The NT Government must commit to proper resourcing of the new system to deliver genuine reform to the NT’s environmental regulatory framework.
The EDONT encourages all Territorians to have their say on these changes to the environmental regulatory framework.
Send your submission via email before 3 December 2018 to: email@example.com