Draft regulations for the NT's new environmental regulatory regime released for consultation

In a major overhaul of the environmental regulatory regime in the Northern Territory, the NT Parliament passed the Environment Protection Bill 2019 (with amendments) on 19 September 2019. The Bill has now received assent and upon commencement it will repeal the Environmental Assessment Act 1982 and the Environmental Assessment Amendment Act 1994.

We previously examine the first iterations of the draft Bill and draft Environment Protection Regulations when they were released on 4 October 2018 for eight weeks public consultation. We subsequently examined the Environment Protection Bill which was passed following inquiry and report by the Social Policy Scrutiny Committee.

As a consequence of changes being made to the Bill in response to the public consultation processes and the inquiry by the Committee, a number of changes to the draft Regulations were required.

The NT Government has now released its revised draft Environment Protection Regulations for further public consultation following consultation with industry groups, land councils, environmental groups, government agencies and other key stakeholders. The draft Regulations are accompanied by a number of supporting materials.

What to the draft Regulations provide for?

The draft Regulations provide for a number of processes and matters as set out under the Act, namely:

Environmental objectives and referral triggers

The draft Regulations set out the processes for the Minister for Environment and Natural Resources (Minister) to follow when making, reviewing, amending and revoking declarations of environmental objectives or a referral trigger, including the public consultation requirements.

Protected environmental areas or prohibited areas

The draft Regulations also set out the processes for the Minister to follow when making, reviewing, amending and revoking declarations of protected environmental areas or prohibited actions, including the public consultation requirements.

Referrals of proposed actions and strategic proposals

The processes the Northern Territory Environment Protection Authority (NT EPA) must follow when considering referrals of projects that may have a significant impact on the environment are also set out in the draft Regulations. These include the processes for public consultation, consultation with Government agencies, and the development and publication of statements of reasons for decisions.

Environment impact assessment process

The draft Regulations set out the relevant processes and powers for the NT EPA to follow in conducting the new environmental impact assessment process including, amongst other things:

• the matters that may be included in an environmental impact assessment, which include a biological or physical environment assessment, a health impact assessment, a social impact assessment, a cultural impact assessment, an economic assessment and/or cumulative impact assessment;
• a power for the NT EPA to direct the proponent to give any additional information that the NT EPA considers is reasonably necessary to undertake an environmental impact assessment to meet the objects of the Act;
• the processes for public consultation and publication or provision of submissions received during assessment process;
• a power for the NT EPA to engage or request a person or body that the NT EPA considers is suitably qualified to give advice in relation to any material, information or documents given to the NT EPA during an environmental impact assessment process;
• a power for the NT EPA to direct the proponent to include in the material, information or documents given to the NT EPA as part of an environmental impact assessment process an independent review by a qualified person;
• the processes for suspension and termination of, and the withdrawal from, the environmental impact assessment process;
• the process for the reconsideration of the method of environmental impact assessment;
• show cause process which applies where the Minister has an intention to refuse to grant the environmental approval following a recommendation from the NT EPA; and
• the specific processes associated with conducting each of the following methods of impact assessment, including the preparation of an Assessment Report:
  • assessment on referral information;
  • assessment by supplementary environmental report;
  • assessment by environmental impact statement (EIS), including provisions for a "proponent initiated EIS"; and
  • assessment by inquiry.

Significant variations

The draft Regulations set out the processes for the referral and assessment of "significant variations" received during or following an impact assessment process. A "significant variation" of an action is defined under the new Act as 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.

Prescribed matters

The draft Regulations also prescribed a number of matters required by the Act which relate to the following:

• fit and proper person test: the matters to have regard to determining whether a person is or is not a fit and proper person to hold an environmental approval;
• significant environmental harm: "significant environment harm" has two thresholds:
  • the consequence: the environmental harm is of major consequence having regard to the context and intensity of the harm and the sensitivity, value and quality of the environment harmed and the duration, magnitude and geographic extent of the harm; or
  • the monetary amount to remediate: the environmental harm would, or is likely to, cost more to remediate than the monetary amount prescribed by regulation. Under the draft Regulations this amount has been prescribed as $50,000;
• environment protection bonds: the process for making a claim on an environment protection bonds that may have been required as a condition of an environmental approval;
• registers: the requirements for the Chief Executive Officer to establish registers of environmental auditors and environmental practitioners;
• environmental incident reporting: the relevant information to be given in a notice when reporting environmental incident; and
• infringement notices: the draft Regulations establish the infringement notice scheme for those infringement notice offences listed in the Schedule. The Schedule currently lists environmental offences which relate to certain conduct with respect to referral triggers, protected environmental areas and prohibited actions, contraventions of conditions of an environmental approval, continuing obligations, directions to carry out environmental audits, directions to provide relevant information, directions to produce audit documentation, environment protection notices, stop work notices and closure notices, conduct which obstructs compliance with closure notices and failure to notify a significant environmental harm incident.

Have your say

To have you say on the draft Regulations, written submissions can be made to the Department of Environment and Natural Resources in the manner prescribed here by Monday 16 December 2019.

If you would like any assistance with drafting your submission or to understand the impact which the new NT environmental regulatory regime will have for your organisation, please contact us.

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