Hearing set to commence: legal challenge by Environment Centre NT to EPA and Pastoral Land Board on over 20,000 ha land clearing at Maryfield Station
5 December 2018
Environment Centre Northern Territory v Pastoral Land Board
Environment Centre Northern Territory v NT Environment Protection Authority (‘Maryfield litigation’)
In early 2018, the Environment Centre Northern Territory (ECNT), represented by the Environmental Defenders Office (NT)(EDONT), commenced proceedings challenging decisions of the NT Environment Protection Authority (EPA) and the Pastoral Land Board (PLB). Together, these decisions permit the clearing of over 20,000 ha of native vegetation at Maryfield Station, 200km south-east of Katherine. This is the largest single land-clearing permit ever issued in the Northern Territory. ECNT is challenging the decision of the EPA to not require a formal environmental impact assessment of the proposed clearing and the subsequent decision of the PLB to allow the clearing to go ahead.
This is the first case to challenge a land clearing approval on climate change grounds in the NT. It is also the first time the decision-making processes of the PLB and the EPA under this legislation have been challenged in the NT Supreme Court.
The matter is listed for final hearing in the Supreme Court of the Northern Territory on Thursday 6 – Friday 7 December 2018.
ECNT contends that the EPA’s decision not to require an environmental impact assessment of the proposed clearing is unlawful. ECNT identifies a range of grounds for this, including that the EPA failed to follow its own decision-making procedures and that the EPA did not consider whether the land clearing would have a significant impact on the environment in terms of its contribution to greenhouse gas (GHG) emissions. ECNT will argue that the EPA acted unlawfully in considering itself unable to consider GHG emissions in their decision-making because the Northern Territory government did not have appropriate policy on this issue.
A valid decision by the EPA was a necessary precondition for the PLB approving the clearing. So ECNT contends that the PLB’s decision to approve the clearing is also unlawful.
If ECNT is successful, the decision to grant the largest single land-clearing permit in the NT will be set aside and both the EPA and the PLB will be required to remake their decisions.
This is an important test case about the obligations of the PLB and EPA, both statutory authorities that exercise significant powers. It also highlights deficiencies in existing law and policy around environmental assessment, climate change and land clearing in the Northern Territory.
We are grateful to barristers James Hutton and Peter Bellach for their assistance in this matter.
In June 2016, the PLB received an application from Maryfield Station, a pastoral station approximately 550km south east of Darwin, to clear over 20,000 hectares of native vegetation. In June 2017, a full year after receiving the application, the PLB referred the matter to the EPA to assess whether an environmental impact assessment (EIS) or public environmental report (PER) was required under the Environmental Assessment Act, given the size and scale of the proposal.
Both the EPA and PLB are statutory authorities with defined responsibilities under legislation. They are both comprised of boards with multiple sitting members and therefore make collective decisions.
Where the EPA considers a proposal to have the potential to have a ‘significant effect’ on the environment, the EPA will require an environmental impact assessment. The EPA will then review the assessment and make recommendations as to whether the proposal should be approved.
In late October 2017, the EPA Chairperson wrote to the PLB indicating it considered that the Maryfield application did not require assessment under the Environmental Assessment Act. The EPA’s statement of reasons can be found here: https://bit.ly/2rldwT9
In November 2017, the PLB determined to grant a permit for the clearing. The permit did not apply conditions that had been recommended by the EPA.