Water licences for mining and petroleum activities in the Northern Territory open for consultation

A new bill requiring water licences for mining and petroleum activities along with new enforcement powers, new offences and increased penalties will now be the subject of inquiry and report by the Economic Policy Scrutiny Committee. Submissions can be made until 19 September 2018.

The Water Legislation Amendment Bill 2018 was introduced into the Northern Territory Legislative Assembly on 22 August 2018 to fulfil a key Northern Territory Labor Government election promise to protect the Territory's water resources and to bring access to, and use of, water by the mining and petroleum industries into line with all other industries operating in the Northern Territory.

The purpose of the Bill is to:

• amend the Water Act to enable it to regulate water use by, and associated with, mining and petroleum activities in the same way as applies to all other water users;
• update the offences and penalties in the Water Act for compliance with Part IIAA of the Criminal Code and alignment with national water industry best practice; and
• make consequential amendments in the Water Act, Mineral Titles Act, Mining Management Act and Petroleum Act to ensure consistent, unambiguous regulation of water use by mining and petroleum projects.

After its introduction to the Legislative Assembly, the Bill was referred to the Economic Policy Scrutiny Committee for inquiry and report by 27 November 2018.

Exemptions for mining and petroleum activities to be removed

Currently under the Water Act:

• obstruction of, or interference with, a waterway is prohibited unless the obstruction or interference is authorised. This does not however apply if the interference or obstruction occurs in the course of a mining or petroleum activity; and
• the provisions regulating surface water and ground water do not apply to an action or omission which occurs in the course of carrying out a mining or petroleum activity.

The Bill proposes to repeal these exemptions for mining and petroleum activities so that those provisions which regulate the interference with waterways, taking water from waterways, doing bore work, taking ground water from bores and recharging aquifers will apply.

New enforcement, offences and penalties

The Bill also proposes a number of amendments with respect to enforcement powers, offences and penalties which are discussed in detail in the Explanatory Statement accompanying the Bill. Some of the key amendments include:

Remediation notices: a new division which allows for a remediation notice to be issued in place of an infringement notice or prosecution, where the Controller believes on reasonable grounds that:

• a person is contravening or has contravened prescribed provisions of the Water Act in circumstances that make it likely the contravention will continue or be repeated; and
• a matter relating to the contravention is reasonably capable of being rectified; and
• it is appropriate to give the person an opportunity to rectify the matter.

The Controller of Water Resources will also have powers to recover reasonable costs against a person who fails to comply with a remediation notice and establishes any costs incurred as a debt to the Territory.

Infringement notice scheme: this scheme in the Water Regulations enables an authorised officer to give an infringement notice to a person the officer believes has committed an infringement notice offence. A new Schedule is to be inserted into the Regulations that identifies each infringement notice offence and its associated prescribed amount of penalty units which apply.

Increased financial penalties: significant increases to the penalties for a range of offences under the Water Act are proposed to provide an adequate deterrence against offending. For example, the maximum penalty for the offence of taking surface water without authorisation would be 500 penalty units for the primary offence and 1,000 penalty units or imprisonment for two years if the aggravated offence involved intentional conduct and the offender is reckless in regard to outcome. Currently, the maximum penalty for a first offence is 15 penalty units and for a second or subsequent offence is not less than 15 penalty units or more than 85 penalty units (a penalty unit is currently $155, so the penalties would rise from $2,325 – $13,175 to $77,500–$155,000).

Criminal liability for offences (occupier): an occupier of land carries liability for offences committed under the Water Act on the occupied land, whether they are committed by the land occupier or by another person. The legal burden of proof is placed on the defendant. A defence to prosecution for an offence is provided, where the defendant proves that he/she took reasonable steps and exercised due diligence to prevent the offence occurring.

Criminal liability for offences (occupier): an owner of land is taken to be an occupier of the land unless the owner proves that at the time the offence was committed he/she was not an occupier of the land and the occupier was not an associated person of the owner.

Criminal liability for offences (executive officer of body corporate): in line with other legislation, an executive officer of a body corporate (ie. a director or other person who is concerned with, or takes part in, the management of the body corporate) commits an offence if:

• the body corporate commits an offence by contravening a declared provision and the officer was reckless about whether the contravention would happen; and
• the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and
• the officer recklessly failed to take reasonable steps to prevent the contravention.

Liability of joint approval holder: if a joint holder of an approval commits an offence against this Act involving contravention of the approval, each other joint holder of the approval is taken to have committed the offence.

Continuing offences: the court may, in addition to any penalty imposed for the offence, impose a penalty of up to of 10% of the maximum penalty prescribed for that offence for each day during which the offence continues after the day the offence is charged. If the offence continues after the person is found guilty, the court may:

• find the person guilty of a further offence; and
• in addition to any penalty imposed for the further offence, impose a penalty of up to 10% of the maximum penalty prescribed for that offence for each day during which the offence continues after the day the person was first found guilty.

Part IIAA of the Criminal Code: this part of the Criminal Code applies to offences against the Water Act as part of the updating of offences that have remained unchanged since 1992. Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences.

Committee inquiry and report – have your say

The Terms of Reference for the inquiry and report require the Committee to consider:

• whether the Assembly should pass the Bill;
• whether the Assembly should amend the Bill;
• whether the Bill has sufficient regard to the rights and liberties of individuals; and
• whether the Bill has sufficient regard to the institution of Parliament.

A report is to be provided by the Committee by Tuesday 27 November 2018.

The Committee is now inviting all interested parties to provide comment and feedback on the Bill. Submissions are to be provided to the Secretary, Economic Policy Scrutiny Committee by Wednesday 19 September 2018.

If you would like any assistance with your submission please contact us.