New dawn for environmental regulation in the Northern Territory

By Gobind Kalsi, Eve Lynch, Isaac St Clair-Burns, Alana Humphris
Climate Change Environment & Planning Mining Oil & Gas

In brief 6 min read

A new environmental protection regime in the Northern Territory will commence imminently. The Environment Protection Act 2019 (EP Act) and Environment Protection Regulations 2020 (NT) will commence on 28 June 2020. All operators and proponents should prepare for commencement of this new regime.

Key takeaways

The impending commencement of the EP Act and Regulations is the first stage of the wholesale reform and modernisation of the Territory's environmental regulatory regime. The new regime will replace the Environmental Assessment Act 1982. The key takeaways are:

  • New environmental approval – for the first time, there will be a requirement for operators in the Northern Territory to hold an 'environmental approval' for proposed actions that will have a significant impact on the environment or require referral under a 'referral trigger'. The Minister will issue the approval following receipt of an assessment report prepared by the NT Environmental Protection Authority (NT EPA).
  • Activity-based or Location-based triggers – the EP Act permits the establishment of activity-based or location-based triggers which will require actions to be referred to the NT EPA for assessment.
  • Climate change – the EP Act will require the consideration of 'the impacts of a changing climate' as part of the environmental impact assessment process conducted by the NT EPA under the Act.
  • Broader conditioning powers – a broad range of conditions will be able to be imposed on the new environmental approval issued under the EP Act, including through the establishment of an environmental offset framework under the Act, and the ability to impose conditions requiring the provision of environment protection bonds and levies.
  • Duty to notify – the EP Act will introduce a duty to notify for an incident which causes or threatens to cause material or significant environmental harm.
  • Review rights – the EP Act will introduce judicial review rights of a decision of a Minister for Environment and Natural Resources (Minister), the CEO, the NT EPA or an environmental officer under the Act for particular persons. Notably, it was originally proposed that a merits review would be available, however this was removed following consideration of the Bill by the Legislative Assembly Committee process
  • Further reform – in response to submissions to the draft Bill, the NT Government deferred the introduction of a General Environmental Duty to the future stages of the reform agenda. Similarly, the Legislative Assembly Committee report included a commitment from the NT Government to introduce 'chain of responsibility' legislation similar to that in Queensland.
  • Transitional arrangements – the EP Act includes transitional provisions for actions currently being assessed under the Environmental Assessment Administrative Procedures 1984.

    Notably, the NT EPA may terminate the current assessment process if the NT EPA considers that continuing the assessment process is no longer appropriate because of the passage of time since the assessment process commenced. This would apply in circumstances where a proponent has taken no or limited steps in the assessment process before the new Act commences.

New environmental approval

The requirement for an approval under the new regime will be triggered if a 'proposed action' or 'strategic proposal' has the potential to have 'significant impact' on the environment; or meets a referral trigger.

Like its federal counterpart, an 'action' is broadly defined and can include (but is not limited to) any project, development undertaking or works.

A strategic proposal is defined to include a policy, program, plan or methodology which may result in a combination of actions that should be considered in together.

Activity and location-based referral triggers

Referral triggers can be 'activity based' (where the action is likely to have a significant impact on the environment) or 'location based' (where an area of environmental or cultural significance has been identified and is likely to be impacted by actions).

It is an offence for a person to engage in conduct that is part of carrying out an action for which a referral trigger applies without authorisation under the EP Act.

The Minister is responsible for declaring referral triggers. None have been declared to date.

Overview of the assessment process

The Regulations set out the relevant processes for conducting the new environmental impact assessment process. The key assessment pathways available are:

  • assessment on referral information;
  • supplementary environmental report;
  • environmental impact statement (EIS);
  • a proponent initiated EIS assessment (ie a voluntary EIS assessment); or
  • public inquiry.

The above processes include public consultation requirements and provisions for submissions to be made by third parties.

The regulations also address the processes that applies if there is a 'significant variation' to a proposed action after it has already commenced the assessment process.

A 'significant variation' is defined to mean a variation that:

  • will alter the action to the extent that a referral trigger that did not previously apply to the action now applies; or
  • has the potential to have a significant impact on the environment; or
  • will result in new or additional areas being subject to a potential significant impact on the environment.

Ultimately, the assessment process results in the preparation of an assessment report by the NT EPA.

The EP Act Minister must decide to grant or refuse an environmental approval within 30 business days of receiving the NT EPA's assessment report and draft environmental approval. If no decision is made, the Minister is taken to have accepted the NT EPA recommendations for the action.

High level overview of new assessment process

Review rights

The Act introduces judicial review rights of a decision of a Minister, the CEO, the NT EPA or an environmental officer under the Act if the person is:

  • a proponent of an action to which the decision relates; or
  • an applicant for the decision; or
  • a person 'directly affected by the decision'; or
  • a person who has made a genuine and valid submission during an environmental impact assessment and environmental approval process under this Act to which the decision relates.

Any proceedings under the EP Act will be heard and determined by the Northern Territory Supreme Court.

Duty to notify

The EP Act imposes obligations on 'specified persons' who observe or become aware of an incident which causes or threatens to cause material or significant environmental harm on a site on which:

  • an action is being carried out under an environmental approval; or
  • a proposed action is undergoing environmental impact assessment.

A 'specified person' includes:

  • the approval holder for an action;
  • a qualified person who is carrying out an environmental audit of the site;
  • an owner of the site; or
  • an occupier of the site.

Failure to notify is an offence under the EP Act, even in circumstances where notification might incriminate the person making the notification (however any information provided in a notice is not admissible as evidence against the persons for the purpose of an offence or penalty under the EP Act).

Steps you should take now

The impending commencement of the EP Act and Regulations is a significant reform to environmental regulation in the Northern Territory and one that will impact all persons operating and developing projects in the Territory. Planning should commence now regarding how the reforms will impact future decision making and project timelines.

The NT EPA has presently released a number of guidance documents for submission and comment, with submission dates closing in May and June. Operators in the NT should closely consider these documents as they will impact the way in which the new regime is administered.

Proponents with projects currently being assessed under the Environmental Assessment Administrative Procedures 1984 should take advice regarding how their assessment will complete upon the commencement of the new regime.