review of the environmental assessment bilateral agreement ...€¦review of the environmental...

Review of the Environmental Assessment Bilateral Agreement between the

Commonwealth and Northern Territory

Review Report

A review of the Environmental Assessment Bilateral Agreement between the Commonwealth Government and the Northern Territory under section 65 of the

Environment Protection and Biodiversity Conservation Act 1999

October 2014

Disclaimer

The authors do not warrant that the information in this document is free from errors or omissions. The authors do not accept any form of liability, be it contractual, tortious, or otherwise, for the contents of this document or for any consequences arising from its use or any reliance placed upon it. The information, opinions and advice contained in this document may not relate, or be relevant, to a reader’s particular circumstances. The views and opinions expressed in this publication are those of the authors and do not necessarily reflect those of the Australian Government, the Commonwealth Minister for the Environment, the Northern Territory of Australia or the Northern Territory Minister for Lands, Planning and the Environment. While reasonable efforts have been made to ensure that the contents of this publication are factually correct, the Commonwealth and the Northern Territory do not accept responsibility for the accuracy or completeness of the contents, and shall not be liable for any loss or damage that may be occasioned directly or indirectly through the use of, or reliance on, the contents of this publication.

CONTENTS

EXECUTIVE SUMMARY ................................................................................................................. 1

Introduction .................................................................................................................................. 2

Background ................................................................................................................................... 3

The Agreement ......................................................................................................................... 3

Amendments to NT legislation ................................................................................................. 3

Amendments to the EPBC Act .................................................................................................. 4

Proposals assessed under the Agreement ............................................................................... 4

Review of the operation of the agreement ................................................................................. 5

Process and consultation ......................................................................................................... 5

Adequacy of public comment and consultation ...................................................................... 5

Adequacy of assessment of likely impacts on MNES ............................................................... 6

Efficient, effective, timely process and minimising duplication of two assessment processes .................................................................................................................................................. 7

Other Issues .............................................................................................................................. 9

Approvals and condition-setting .......................................................................................... 9

Greater data and information sharing ............................................................................... 10

Undertaking to assess environmental impacts (other than relevant impacts) ................. 10

Indigenous peoples ............................................................................................................ 11

Approval bilateral agreement ............................................................................................ 11

Evaluation and recommendations ............................................................................................. 13

Recommendations ................................................................................................................. 13

Conclusions ............................................................................................................................. 14

Appendix 1 – The Agreement ..................................................................................................... 15

Appendix 2 – Projects Assessed Under the Agreement ............................................................. 26

Appendix 3 – List of Stakeholders .............................................................................................. 28

Appendix 4 – Review Questions ................................................................................................. 29

1

EXECUTIVE SUMMARY

This review considers the assessment bilateral agreement between the Commonwealth and Northern Territory Governments entered into on 28 May 2007 (the Agreement). This is a five year review of the Agreement, as required by subsection 65(2) of the EPBC Act.

In 2013, key stakeholders were invited to provide written comment on the operation of the Agreement. Key stakeholders included proponents, relevant government agencies and non-government organisations.

Consultation revealed that while the Agreement is substantially achieving its objects, there are aspects of its operation that could be improved. Issues identified through stakeholder consultation focused on the following key elements relating to the Agreement:

amendments to Northern Territory and Commonwealth legislation affecting the Agreement;

adequacy of existing public comment and consultation processes;

adequacy of environmental impact assessment documents, assessment reports and processes undertaken in the Northern Territory, particularly in relation to matters of national environmental significance;

relationship between the Agreement and the Commonwealth approvals process, including management of Commonwealth conditions; and

other issues, such as data sharing and indigenous engagement.

In response to these identified issues, the review has produced the following key recommendations:

1. The Commonwealth and Northern Territory consider entering into a replacement bilateral agreement (new Agreement) that accredits environmental assessment by the NT EPA under the amended Environmental Assessment Act and Environmental Assessment Administrative Procedures.

2. The new Agreement reflect the requirements of section 48A of the EPBC Act and current notification arrangements between the parties in relation to controlled action decisions.

3. The Commonwealth and Northern Territory commit to improved public access to information and to information sharing between government agencies.

4. The new Agreement recognise the role and interests of Indigenous peoples, including provision for Indigenous engagement during the assessment of actions.

5. The Commonwealth and Northern Territory maintain a commitment to avoid the use of inconsistent condition sets.

6. The Commonwealth and Northern Territory consider entering into administrative arrangements to support the operation of the new Agreement.

The parties note that the substance of these recommendations have since been addressed through the proposed new assessment bilateral agreement, published for public comment between 7 April to 6 May 2014.

2

INTRODUCTION

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the Commonwealth to enter into bilateral agreements with the states and territories. Such agreements can provide for the accreditation of state and territory environmental impact assessment processes, and are known as assessment bilateral agreements. If a proposed action is assessed in accordance with an accredited process under an assessment bilateral agreement, it does not require separate assessment under the EPBC Act.

On 31 May 2002, the Commonwealth Government and the Northern Territory entered into an assessment bilateral agreement relating to environmental impact assessment under section 45 of the EPBC Act. That agreement expired after a period of five years (2002 – 2007). A review of the agreement was undertaken in 2007 and an amended bilateral agreement was entered into on 28 May 2007 (the Agreement). A copy of the Agreement is attached at Appendix 1.

Subsection 65(2) of the EPBC Act requires the Commonwealth Environment Minister to review the operation of a bilateral agreement at least once every five years while the agreement remains in effect. Under clause 20 of the Agreement, the Commonwealth and Northern Territory agreed that reviews will be carried out jointly, will evaluate the operation of the agreement against its objects and seek the views of key stakeholders.

To meet these requirements, the Commonwealth Department of the Environment (DoE) initiated a review of the Agreement in consultation with the Environment Division of the Department of Lands, Planning and the Environment (DLPE) and the Chair of the Northern Territory Environment Protection Authority (NT EPA) in March 2013. Consultation with a range of key stakeholders occurred during 2013. This report, finalised in October 2014, focuses on the operation of the Agreement between May 2007 and January 2013, while taking into consideration more recent stakeholder input and other relevant information.

Both the Northern Territory and Commonwealth Governments have recently amended legislation in a way that affects the Agreement (further discussion of the amendments is at pages 3 and 4 below). This review has given the Commonwealth and the Northern Territory an opportunity to address the impact of the amendments on the Agreement.

The recommendations of this review are being considered to support the delivery of a ‘one stop shop’ for environmental approvals in the Northern Territory, in particular for the development of a new assessment bilateral agreement between the Northern Territory and Commonwealth Governments (the new Agreement). Implementation of the one stop shop policy will accredit the Northern Territory’s environmental assessment and relevant approval systems to create a single process for nationally protected matters, reducing duplication and streamlining environmental approval processes.

3

BACKGROUND

The Agreement

The Agreement aims to:

‘minimise duplication of environmental impact assessment processes between the Commonwealth, strengthen intergovernmental co-operation and promote a partnership approach to environmental protection and biodiversity conservation’ (clause 1).

In addition to this broad aim, the objects of the Agreement are to:

protect the environment;

promote the conservation and ecologically sustainable use of natural resources;

ensure an efficient, timely and effective process for environmental assessment and approval of actions; and

minimise duplication in environmental impact assessment processes through Commonwealth accreditation of Northern Territory assessment processes (clause 2).

The Agreement achieves these aims and objectives in part through the accreditation of the following environmental impact assessment processes under Northern Territory legislation:

Environmental Impact Statement (‘EIS’) under the Environmental Assessment Act,

Public Environmental Report (‘PER’) under the Environmental Assessment Act, and

Inquiry under the Inquiries Act.

A controlled action does not require assessment under the EPBC Act if the action is assessed by one of the above processes and in accordance with the manner described in Schedule 1 to the Agreement. Schedule 1 sets out specific requirements to ensure that assessment of matters of national environmental significance under the above processes will be adequate. For example, the Northern Territory must prepare an Assessment Report, or Inquiry Report, which contains enough information about the impacts of the action on matters of national environmental significance to let the Commonwealth Environment Minister make an informed decision whether or not to approve the taking of the action under the EPBC Act.

Assessment in accordance with Schedule 1 ensures an integrated and coordinated approach to environmental assessment for actions requiring approval from both the Australian Government (under the EPBC Act) and the Northern Territory.

To facilitate the efficient administration of assessments under the Agreement the Commonwealth and Northern Territory entered into administrative arrangements in accordance with clause 18 of the Agreement in 2002.

Amendments to NT legislation

The Northern Territory Environment Protection Authority Act (NT EPA Act) commenced on 1 January 2013. The Act established the NT EPA and identifies it as the entity responsible for administering assessment under the Environmental Assessment Act. It also introduced additional transparency and reporting responsibilities on the Northern Territory Environment Minister and the Northern Territory Minister responsible for approving specific projects following assessment under the Environmental Assessment Act.

4

Assessment of controlled actions by the NT EPA under the amended Environmental Assessment Act is not accredited by the existing Agreement. This is because Schedule 1 of the Agreement identifies that various things are to be done by the Northern Territory Minister, but they will now be done by the NT EPA. This means that any controlled actions assessed by the NT EPA under the new Environmental Assessment Act will also require assessment under Part 8 of the EPBC Act.

Amendments to the EPBC Act

The Commonwealth Government recently amended the EPBC Act to make water resources a matter of national environmental significance, in relation to coal seam gas and large coal mining development (known as the ‘water trigger’). This means that such developments will require assessment and approval by the Commonwealth Environment Minister.

Should the Commonwealth Environment Minister determine that the water trigger applies to a proposal that is, or will be, assessed under a bilateral agreement, the state or territory will be required to also undertake an assessment of the likely impacts of the proposal on water resources in addition to any other applicable matters of national environmental significance.

Proposals assessed under the Agreement

Since its commencement on 28 May 2007, 11 projects have been, or are being, assessed under the Agreement. The majority of these projects concern mining proposals. A list of all projects assessed, or being assessed, under the Agreement is at Appendix 2.

In addition to these 11 projects, a further 7 projects had begun assessment under the Agreement, but could not proceed following the amendments to the Northern Territory Environmental Assessment Act. Most of these projects are now being assessed under Part 8 of the EPBC Act through a one-off accreditation of Northern Territory assessment processes.

Since the commencement of the Agreement, there have been a total of 27 controlled actions in the Northern Territory, meaning that just over 67% of all projects within the Northern Territory that require approval under the EPBC Act have, or would have (if not for the recent amendments), been assessed under the Agreement.

5

REVIEW OF THE OPERATION OF THE AGREEMENT

Process and consultation

In accordance with clause 20 of the Agreement, key stakeholders were invited in May 2013 to provide written comment on the operation of the Agreement. Key stakeholders included proponents, relevant government agencies and non-government organisations. A list of stakeholders that were invited to comment is at Appendix 3.

Assessment and approval officers within DoE were also consulted.

Stakeholders were provided with a set of questions to assist them in providing comment (see Appendix 4). The key issues canvassed were:

adequacy of public comment and consultation processes;

whether there had been adequate and proper assessment of the likely impact of actions on matters of national environmental significance; and

the efficiency, effectiveness and timeliness of the assessment process, and the degree to which it minimised duplication of two assessment processes.

Stakeholder comments on the key issues are outlined below. Where appropriate, a suggested response has been provided.

Adequacy of public comment and consultation

Feedback from proponents, government agencies and assessment officers within DoE was that the assessment process provided for adequate public comment and consultation. In particular:

Darwin Port Corporation commented that they do not have any issues with the adequacy of public consultation or access to documentation.

The Power and Water Corporation noted that the Agreement has achieved a reasonable level of public consultation and that assessment documentation has been readily accessible to the public. Publication on the Northern Territory Government environmental websites is useful given the local community’s familiarity with those websites.

The DoE’s Supervising Scientist1 stated that it was not aware of any issues related to the length of the public consultation process or access to assessment documentation, however, they would not support any reduction in the public comment period as the review of complex technical issues can take considerable time.

Assessment officers from DoE noted that the Northern Territory consistently comply with requirements for public consultation on assessment documentation under their legislation.

The Northern Territory Department of Lands, Planning and the Environment (DLPE)2 noted there is adequate opportunity for the public to comment, but that experience has shown

1 Formerly the Supervising Scientist Division. Commonwealth agencies referred to in this report reflect the

Commonwealth agency structure as at July 2014.

2 Formerly the Department of Lands and Planning. Northern Territory Government agencies referred to in this

report reflect the NT agency structure as at July 2014. References to DLPE in the body of this report do not include references to the Environment Division of DLPE managing the assessment process.

6

that unless the project has a high perceived impact on the environment the public do not attend public information sessions.

Adequacy of assessment of likely impacts

Submissions on the adequacy of assessment of impacts on matters of national environmental significance addressed two key areas: assessment guidelines and assessment reports.

Assessment Terms of Reference

DoE assessment officers noted that the Terms of Reference (previously ‘guidelines’) for an assessment prepared by the Northern Territory are thorough and address what is required by the EPBC Regulations. The Supervising Scientist also noted that the Terms of Reference have encompassed all the relevant impacts of the actions. Finally, the Northern Territory DLPE noted that the guidelines for the East Arm Wharf expansion encompassed all real or perceived impacts.

However, the Power and Water Corporation noted that it is generally difficult to filter the high priority from the very low risk matters in Terms of Reference.

The Northern Territory Department of Land Resource Management also submitted that further attention needs to be given to the breadth and scope of the Terms of Reference developed for particular projects. They observed that often a proponent is required to undertake studies to completely document the surrounding environment irrespective of whether the proposed action will measurably impact on some of those environmental parameters. The Terms of Reference appear to provide a catch-all approach, rather than clearly focusing on elements of the environment likely to be impacted.

Assessment Reports

Consultation between Commonwealth and Northern Territory government agencies revealed concerns over the ability of assessment reports to adequately assess environmental impacts on matters of national environmental significance.

The NT EPA has noted that under the Environmental Assessment Administrative Procedures the Northern Territory cannot prevent a proponent from publishing a draft environmental impact statement or public environment report that does not contain adequate information. The Northern Territory cannot prevent a proponent from submitting a supplement that does not contain adequate information. The Northern Territory often exercises its statutory powers to request further information from proponents although cannot control the adequacy of any information that may be submitted. This power can be exercised only once after the supplement is received, and if the information is inadequate the Northern Territory has no avenues to seek further information.

Feedback from DoE assessment officers and the Supervising Scientist confirms this circumstance, noting that assessment reports received under the Agreement do not generally contain enough information for the Commonwealth Environment Minister to make an informed decision whether or not to approve an action and what conditions (if any) should be applied to an approval.

This can result in an assessment that has been unable to conclude that the environmental impacts have been fully assessed, or that has recommended further assessment of particular issues (for example, specific species information, or downstream impacts). The different

7

regulatory regimes enable the Commonwealth to ensure that the information it obtains through its further information requests is adequate to complete the assessment.

This means that the Commonwealth must ‘stop the clock’ to request further information from proponents. A review of assessments that have proceeded to approval under the Agreement indicates that the Commonwealth ‘stops the clock’ on approximately 75% of occasions.

DoE and the Supervising Scientist agree that by the conclusion of the assessment process, sufficient information has been obtained to allow the Commonwealth Environment Minister to make a decision under the EPBC Act. The Supervising Scientist further stated that assessments they have been involved in have adequately and properly assessed the likely impacts of actions on matters of national environmental significance and, overall, they have contributed to environmental protection and sustainable development.

In contrast, Darwin Port Corporation were of the view that the environmental impact statements/development proposals/environmental management plans and the assessment reports generally contain sufficient information about the action and its relevant impacts on matters of national environmental significance.

The Power and Water Corporation also noted that environmental assessment under the Agreement has been relevant and that the outcomes of the assessments have contributed to the conservation and ecologically sustainable use of natural resources. However, this had been at a significant cost to applicants.

Response

The assessment bilateral arrangements between the Northern Territory and the Commonwealth to be implemented under the one stop shop policy will include detailed provisions on the content of assessment reports, ensuring assessment reports prepared by the Northern Territory satisfy EPBC Act requirements and provide proponents sufficient assurance for development proposals.

It is also recommended that the NT EPA and DoE implement administrative arrangements which set out an agreed process for comment on draft documentation for environmental impact statements and public environment reports to use their best endeavours to ensure that documents contain adequate information. Updated administrative arrangements are being developed between the Northern Territory and Commonwealth Governments as part of the one stop shop policy.

It is further recommended that the Commonwealth provide guidance material regarding sufficient information to support an assessment report, in particular in relation to impacts on matters of national environmental significance. The Northern Territory should provide such guidance material to proponents, so that proponents are better informed of the information that should be included in environmental impact assessment documents.

Efficient, effective, timely process and minimising duplication of two assessment processes

DoE officers have reported that the assessment process under the Agreement is timely and efficient up until the point at which further information needs to be requested (as discussed above). Officers attribute this success to the good working relationship between the government agencies, including a high level of open and clear communication. DoE officers report that they are kept informed of issues and expectations held by the Northern Territory

8

and proponents and they do not require direct contact with proponents prior to receiving an assessment report. This avoids confusion and double handling during the assessment process.

The Supervising Scientist also noted that the agencies work well together and that, in their view, the Agreement functions reasonably well and has reduced duplication. They further noted that ongoing contact and cooperation at the officer level was important to assist the process and achieve timely outcomes.

The Power and Water Corporation noted, however, that in their view the process and procedures were not entirely clear, particularly in relation to the relationship between local and federal reviewers. Further, they stated there was an apparent lack of collaboration and transparency between the State and Commonwealth levels with one party blaming the other for any arising issues, including time delays. They noted that there is a need to improve collaboration and transparency between the Parties and ensure that there is an extra level of detail on contact persons and process.

Despite these opportunities for improvement, the Power and Water Corporation stated that the Agreement had minimised duplication between the Commonwealth and Northern Territory assessment process, which had been a great advantage and that the loss of a bilateral process would be likely to lead to longer time frames, greater costs and a lack of consistency.

The Northern Territory DLPE noted that in their experience there were a multitude of people in DoE managing the assessment, that the process is not timely, and that there is overlap, especially where waters or the harbour is involved. Further, they submitted that the process is too rigid, the Commonwealth requires overly precise information and locks in projects without allowing any leeway or minor modifications to happen during the development of the design. For example, changes to the design footprint to meet safety requirements should be prioritised over environmental concerns and that changing the dredge footprint for a channel to allow safe ship manoeuvring should not require a 6 month variation process. In their opinion, this is over the top red tape. They also noted that some of the Commonwealth management plan requirements are very broad and did not provide enough information meaning there are a number of iterations of the plans before they are accepted by DoE.

The Northern Territory Department of Land Resource Management also noted that improving communication between the Commonwealth and Northern Territory at all stages of the assessment and approval process would be beneficial. Further, they raised concerns with duplication during assessment because of the Commonwealth’s unnecessary attention to matters other than matters of national environmental significance. For example, during the Ichthys environment assessment process, the Northern Territory Government sought a tripartite approach to addressing voluntary offsets in relation to matters of national environmental significance impacted by the project. They submitted that the Commonwealth chose not to participate but raised additional matters near the end of the process which were not contemplated during offset negotiations, which impacted on timelines for final decisions. The Commonwealth assessment determined that the clearing of native vegetation for the liquid natural gas site warranted additional offsets. They submitted that this matter was not raised with the Northern Territory and that the rationale for insisting on an additional offset requirement was difficult to understand and disproportionate to the loss of vegetation.

9

Response

It is recommended that the Northern Territory and Commonwealth consider entering into a replacement assessment bilateral agreement that accredits the amended Environmental Assessment Act to ensure that duplication is minimised as far as possible.

In addition, the NT EPA and DoE recognise the need to maintain good working relationships and to provide clear and consistent guidance on the roles of respective agencies during the assessment and approval processes to prevent delays and ensure consistency. It is recommended that new administrative arrangements be agreed to facilitate the operation of the Agreement and ensure it is implemented as efficiently and effectively as possible.

Other Issues

Stakeholders also raised a number of other issues relating to environmental assessment and the Agreement. A summary of those issues with suggested responses are outlined below.

Approvals and condition-setting

Darwin Port Corporation submitted that although assessment has been thorough, it has resulted in conditions that are at times onerous and seem to lack a strong scientific basis. They are of the view that this issue is not strictly limited to the Northern Territory Bilateral Agreement as they note that other sea ports around Australia have raised similar issues.

Darwin Port Corporation commented that the Northern Territory with its smaller population has a comparatively smaller environment department and resources. Mechanisms need to be in place to ensure that the outcome of the assessment would be the same irrespective of what state or territory the assessment is conducted in. Seaports commercially compete with one another nationally, and therefore some shouldn't be made less competitive or projects made more onerous because assessment was conducted in a particular state or territory. Darwin Port Corporation provided an example of this inconsistency in relation to the East Arm Wharf Expansion.

“The East Arm Wharf Expansion is a relatively small project within an existing port facility which attracted 49 EPBC Act approval conditions, whereas the INPEX project is a much larger project on a Greenfield site but only has 18 conditions. While this may be justifiable, it would appear to be disproportionate.”

Darwin Port Corporation commented that efficiencies could be gained by minimising the amount of 'sub approvals' that are required to proceed with a project (i.e. the various management plans which require individual approval). They were of the view that it would be better if these "management plans" could be requested as part of 'further information' during the application process rather than as a condition of approval. They argued that this will avoid multiple ministerial approvals and give the proponent a clearer understanding of all obligations prior to commencement of the project.

Finally, Darwin Port Corporation commented that an indicator of a good application and assessment process was fewer conditions on an approval with key issues being identified, communicated and addressed in the application early in the project development.

The Northern Territory DLPE also noted that there is overlap between Commonwealth and Northern Territory conditions, especially in relation to dredging. They consider the Commonwealth’s conditions excessive, for example, the requirement to undertake a

10

Sediment Sampling Plan, get it approved and then do the sampling as stated in the plan (required for off-shore disposal of material not onshore).

Response

The Commonwealth and Northern Territory have noted the comments made by Darwin Port Corporation and the Northern Territory DLPE in relation to the approval of projects and condition setting. However, the Agreement relates primarily to the assessment of proposals and approval remains the responsibility of the respective governments. Despite this, clause 17 of the Agreement recognises the desirability of avoiding inconsistent conditions and requires that the Commonwealth Minister consider any conditions set by the Northern Territory.

Greater data and information sharing

The Power and Water Corporation noted that the assessment system is cost inefficient with significant duplication of effort from applicants with regards to data that is not readily available to others. They called for leadership and greater collaboration of data and expertise by local and federal agencies.

Response

The Commonwealth and Northern Territory are committed to continually improving the quality and quantity of information and data that is both shared between government agencies and made available to the public. Clause 24 of the Agreement reflects this commitment providing that:

‘Where feasible, the parties agree the they may each use data within the control of the relevant departments of government of the other party for the purposes of meeting their respective responsibilities relating to the agreement of the assessment of environmental impacts under their respective Acts, and to make data available to the other’.

Commitments to public access and information sharing arrangements will also be a key component of the assessment and approval bilateral agreements that will facilitate the one stop shop policy.

Undertaking to assess environmental impacts (other than relevant impacts)

Assessment bilateral agreements must include an undertaking that the state or territory will assess, to the greatest extent practicable, the environmental impacts (other than relevant impacts) that the following actions assessed under the bilateral agreement have, will have or are likely to have (see EPBC Act, section 48A(3)):

actions taken by a constitutional corporation;

actions by a person for the purposes of trade or commerce between Australia and another country, between 2 states, between a state and a territory, or between two territories;

actions whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries,

actions taken in the Territory.

Clause 9 of the Agreement reflects this requirement. The Commonwealth [and Northern Territory] consider where an assessment is undertaken in accordance with Schedule 1 of the

11

Agreement, the environmental impacts (other than relevant impacts) will be assessed ‘to the greatest extent practicable’.

Clause 9.2 also imposes a notification requirement on the Commonwealth. Clause 9.2 provides that the Commonwealth must notify the Northern Territory whether a controlled action is an action to which clause 9 applies. The Commonwealth does not currently provide such notifications and, as clause 9 applies to all controlled actions in the Northern Territory, submitted that it is not necessary.

Response

It is recommended that the Agreement:

Reflect that the Commonwealth and the Northern Territory consider that the impacts of an action (other than the relevant impacts) will be assessed ‘to the greatest extent practicable’ where it is assessed in accordance with Schedule 1. This is consistent with other bilateral agreements (see for example, clause 10.4 of the assessment bilateral agreement between the Commonwealth and New South Wales).

Remove the notification requirement in clause 9.2 of the Agreement, to reflect current practice.

Indigenous peoples

The Commonwealth and Northern Territory recognise the importance of engaging Indigenous peoples in the assessment of actions, particularly where the impacts of those actions relate to Indigenous cultural heritage. This is also reflected in the objects of the EPBC Act (see section 3).

The Indigenous Advisory Committee is supportive of greater recognition of the role of Indigenous peoples in promoting conservation and ecologically sustainable use of natural resources in the Agreement.

Response

It is recommended that the Agreement is amended to include a new clause recognising the role and interests of Indigenous peoples.

Approval bilateral agreement

The Northern Territory Department of Land Resource Management submitted that progressing an approval bilateral agreement would likely reduce the Commonwealth’s propensity to duplicate the assessment process and streamline approvals.

Response

On 16 October 2013, the Commonwealth Government announced that it would pursue a one stop shop framework, leading to approvals bilaterals with each willing jurisdiction. The framework is a three stage process comprising:

1. Memoranda of Understanding;

2. New assessment bilateral arrangements, updating any existing agreements; and

3. Approval bilateral arrangements.

On 19 December 2013, a Memorandum of Understanding (MoU) was finalised with the NT, along with finalisation of MoUs with all other jurisdictions. Negotiations for assessment and

12

approvals bilateral are currently being undertaken, in accordance with commitments under the MoUs (see Appendix 2). There will be opportunities to comment on these agreements.

13

EVALUATION AND RECOMMENDATIONS

As noted above, the specific objects of the Agreement are to contribute to:

protecting the environment,

promoting the conservation and ecologically sustainable use of natural resources,

ensuring an efficient, timely, and effective process for environmental assessment and approval of actions, and

minimising duplication in environmental assessment of relevant impacts within the meaning of section 82 of the Environment Protection and Biodiversity Conservation Act 1999 through Commonwealth accreditation of Northern Territory processes.

The review has demonstrated that, overall, the Agreement is operating in a manner that achieves its objects. It has contributed to protecting the environment and promoting the conservation and ecologically sustainable use of natural resources by providing for adequate public comment and consultation, and assessment of impacts on matters of national environmental significance. Environmental assessment of actions under the Agreement has been efficient, timely and effective, primarily due to a good working relationship between the Commonwealth and Northern Territory agencies. Finally, accreditation of Northern Territory assessment processes has minimised duplication of environmental assessment of impacts on matters of national environmental significance for the majority of controlled actions in the Northern Territory over the past 5 years. Without the Agreement, many projects would have required assessment by both the Northern Territory and the Commonwealth.

Recommendations

Although the Agreement is broadly achieving its aims there is room for improvement, in particular mechanisms to assist proponents to provide adequate assessment documentation and improved communication between parties at the preliminary stage of assessment. To ensure duplication is minimised and environmental assessment remains as efficient and effective as possible it is recommended that:

1. The Commonwealth and Northern Territory consider entering into a replacement bilateral agreement (new Agreement) that accredits environmental assessment by the NT EPA under the amended Environmental Assessment Act and Environmental Assessment Administrative Procedures.

2. The new Agreement reflect the requirements of section 48A of the EPBC Act and current notification arrangements between the parties in relation to controlled action decisions.

3. The Commonwealth and Northern Territory commit to improved public access to information and to information sharing between government agencies.

4. The new Agreement recognise the role and interests of Indigenous peoples, including provision for Indigenous engagement during the assessment of actions.

5. The Commonwealth and Northern Territory maintain a commitment to avoid the use of inconsistent condition sets.

6. The Commonwealth and Northern Territory consider entering into administrative arrangements to support the operation of the new Agreement. The administrative arrangements should:

14

a. articulate the roles and responsibilities of the government agencies,

b. set out agreed communication protocols,

c. include processes for consultation on draft guidelines and assessment documentation to the extent possible given legislative frameworks, and

d. set out processes for obtaining advice from the Independent Expert Scientific Committee for coal seam gas or large coal mining developments that have a significant impact on water resources.

Conclusions

The issues identified in this review are being actively considered by both the Commonwealth and Northern Territory Governments, in particular under current negotiations in relation to the Commonwealth’s one stop shop policy.

To date, the six key recommendations of this review have been or are being addressed in the following ways:

1. The new Agreement currently being developed between the Northern Territory and the Commonwealth as part of the one stop shop policy will accredit appropriate environmental assessment as undertaken by the NT EPA.

2. The new Agreement includes a statutory undertaking consistent with the requirements of section 48A(3) and reflects notification arrangements between the parties.

3. The new Agreement provides for increased public access to information, including arrangements for access by Indigenous communities.

4. The new Agreement requires the assessment process to recognise Indigenous roles and interests, including providing for Indigenous consultation.

5. The new Agreement requires parties to use best endeavours to consult on proposed conditions.

6. Administrative arrangements to support the new assessment and approval bilateral agreements are currently being developed. The matters identified under recommendation 6 above will be considered under these arrangements. Additional matters, reflecting the changes to the Commonwealth role under the one stop shop policy, will also be considered under these arrangements.

15

APPENDIX 1 – THE AGREEMENT

AN AGREEMENT BETWEEN THE COMMONWEALTH OF

AUSTRALIA AND THE NORTHERN TERRITORY

UNDER SECTION 45 OF THE COMMONWEALTH

ENVIRONMENT PROTECTION AND BIODIVERSITY

CONSERVATION ACT 1999

RELATING TO ENVIRONMENTAL IMPACT ASSESSMENT

16

Aim

1 The agreement aims to minimise duplication of environmental impact assessment

processes, strengthen intergovernmental cooperation and promote a partnership approach to

environmental protection and biodiversity conservation. In particular, this agreement

provides for the accreditation of the Northern Territory environmental impact assessment

processes (set out in Schedule 1) to ensure an integrated and coordinated approach for

actions requiring approval from both the Commonwealth (under the Commonwealth

Environment Protection and Biodiversity Conservation Act 1999) and the Northern

Territory. This agreement will therefore enable the Commonwealth to rely on the Northern

Territory assessment process set out in Schedule 1 in assessing actions under the

Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

2 The specific objects of this agreement are to contribute to:

(a) protecting the environment;

(b) promoting the conservation and ecologically sustainable use of natural resources;

(c) ensuring an efficient, timely, and effective process for environmental assessment

and approval of actions; and

(d) minimising duplication in environmental assessment of relevant impacts within the

meaning of section 82 of the Environment Protection and Biodiversity Conservation

Act 1999 through Commonwealth accreditation of Northern Territory processes.

Parties to the agreement

3 The parties to this agreement are the Northern Territory and the Commonwealth of

Australia.

Term of agreement

4 The agreement will expire thirty years after it was entered into on 31 May 2002, noting that

a review of the operation of the agreement must be carried out at least once every five years

while the agreement remains in effect.

Nature of the agreement

5 This agreement is a bilateral agreement for the purposes of section 45 of the


6 The parties note that, with the exception of clause 9, assessment means assessment of the

relevant impacts, within the meaning of section 82 of the Environment Protection and

Biodiversity Conservation Act 1999.

7 The parties note that any breach of the agreement will not give rise to any right of action,

other than as prescribed in the Commonwealth Environment Protection and Biodiversity

Conservation Act 1999, against the party in breach.

17

Effect of this agreement

8. Certain actions do not require assessment under the Commonwealth Environment Protection

and Biodiversity Conservation Act 1999

8.1 Pursuant to subsection 47(1) of the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999, it is declared that an action does not require

assessment under Part 8 of the Commonwealth Environment Protection and Biodiversity

Conservation Act 1999 if the action is assessed in the manner specified in Schedule 1 to this

agreement.

8.2 Clause 8.1 applies to actions which are taken wholly within the Northern Territory,

including its coastal waters. In relation to actions which are taken in more than one

jurisdiction (including the Northern Territory), the parties agree to consult and use their best

endeavours to reach agreement with other affected jurisdictions on an appropriate

assessment process, such as the process set out in Schedule 1.

8.3 Consistent with section 49 of the Commonwealth Environment Protection and Biodiversity

Conservation Act 1999, the parties note that the provisions of this bilateral agreement do

not have any effect in relation to an action in a Commonwealth area or an action by the

Commonwealth or a Commonwealth agency. However, the parties further note that

discussions will take place between the Commonwealth and the Northern Territory in

relation to implementing Attachment 3 of the COAG Heads of Agreement on

Commonwealth/State Roles and Responsibilities for the Environment (“Compliance with

State Environment and Planning Laws”). Following those discussions, the parties intend to

amend this agreement, as necessary, so that it will apply to actions in a Commonwealth

area, and actions taken by the Commonwealth or a Commonwealth agency, where it is

agreed that those actions will be subject to State environment and planning laws.

8.4 Consistent with subsection 49(2) of the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999, the parties note that this bilateral agreement does not

have any effect in relation to an action in Kakadu National Park or Uluru-Kata Tjuta

National Park.

9. Northern Territory to ensure that impacts other than relevant impacts are assessed

9.1 This clause applies to an action that:

(a) is a controlled action (as determined by the Commonwealth Environment Minister)

taken or proposed to be taken in the Northern Territory; and

(b) does not require assessment under Part 8 of the Commonwealth Environment

Protection and Biodiversity Conservation Act 1999 if an assessment is conducted in

accordance with Schedule 1 of the agreement; and

(c) is an action:

(i) taken or proposed to be taken by a constitutional corporation;

(ii) taken by a person for the purposes of trade or commerce between Australia and

another country, between two States, between a State and Territory, or between

two Territories;

(iii) whose regulation is appropriate and adapted to give effect to Australia’s

obligations under an agreement with one or more other countries; or

18

(iv) taken in the Northern Territory.

9.2 The Commonwealth undertakes that the written notice referred to in clause 11.2 will

indicate:

(a) whether the Commonwealth believes that the action covered by the notice is an

action to which this clause applies; and

(b) if so, which of paragraphs (i)-(iv) in clause 9.1(c) applies to the action.

9.3 The Northern Territory undertakes to ensure that the environmental impacts that the action

has, will have, or is likely to have (other than the relevant impacts) are assessed to the

greatest extent practicable.

Procedures to be followed

10. Northern Territory to use best endeavours to encourage actions to be referred by persons

taking the action.

10.1 The parties will work cooperatively to ensure that proponents are aware of their obligations

under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999,

and will use their best endeavours to encourage proponents to refer actions that are

proposed to take place in the Northern Territory that may require approval under the

Commonwealth Environment Protection and Biodiversity Conservation Act 1999 to the

Commonwealth Environment Minister.

10.2 The parties agree to develop administrative arrangements which will streamline the referral

process for proponents. Where possible the parties will develop administrative

arrangements which will allow proponents to simultaneously satisfy both Commonwealth

and Northern Territory requirements. In this respect, the parties note that section 69 of the

Commonwealth Environment Protection and Biodiversity Conservation Act 1999 – which

provides that a State or Territory or an agency of a State or Territory that is aware of a

proposed action may refer the action to the Commonwealth Environment Minister – may, in

appropriate cases, provide a mechanism for streamlining the referral process.

10.3 Subject to sections 69, 70 and 71 of Commonwealth Environment Protection and

Biodiversity Conservation Act 1999, the parties recognise that final responsibility for

referring actions which may require approval from the Commonwealth Environment

Minister under the Commonwealth Environment Protection and Biodiversity Conservation

Act 1999 lies with the person proposing to take the action. In making the undertakings set

out in this clause, the parties do not accept any responsibility for the actions of proponents

who may or may not choose to refer actions.

11 Commonwealth to inform Northern Territory of decision about whether a proposed action

is a controlled action

11.1 This clause applies to an action or proposed action that is:

(a) referred to the Commonwealth Environment Minister under the Commonwealth

Environment Protection and Biodiversity Conservation Act 1999; and

(b) proposed to be taken in the Northern Territory.

19

11.2 For every decision by the Commonwealth Environment Minister that an action proposed to

be taken in the Northern Territory is a controlled action, a written notice of the decision will

be provided to the Northern Territory Environment Minister within ten business days of the

decision being made.

12 Confirmation by Northern Territory that an accredited process will apply

12.1 This clause applies where:

(a) the Northern Territory receives a written notice from the Commonwealth

Environment Minister that an action proposed to take place in the Northern

Territory is a controlled action; and

(b) the action does not require assessment under Part 8 of the Commonwealth

Environment Protection and Biodiversity Conservation Act 1999 if assessed in the

manner specified in Schedule 1 to this agreement.

12.2 The Northern Territory undertakes that within ten business days of receiving the written

notice referred to in clause 11.2, the Northern Territory Minister will indicate in a written

notice given to the Commonwealth Environment Minister whether the action is expected to

be assessed by the Northern Territory in the manner specified in Schedule 1 to this

agreement.

12.3 If the Northern Territory Minister asks the Commonwealth Environment Minister, under

section 79 of the Commonwealth Environment Protection and Biodiversity Conservation

Act 1999 to reconsider the decision that the action is a controlled action, then the ten day

period referred to in subclause 12.2 begins on the day that the Northern Territory receives

the notice described in subsection 79(3) of the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999. This notice, amongst other things, informs the

Northern Territory of the outcome of the Commonwealth Environment Minister’s

reconsideration.

13 Assessment documentation

13.1 The Northern Territory undertakes that when an action is assessed in the manner specified

in Schedule 1 to this agreement it will:

(a) provide a copy of the Assessment Report or the Inquiry Report to the

Commonwealth Environment Minister as soon as possible after the Report is

accepted by the Northern Territory Minister; and

(b) provide copies of any other assessment documentation relevant to the relevant

impacts to the Commonwealth Environment Minister as soon as reasonably

practicable (and in any event not more than ten business days) after the date on

which the Assessment Report or the Inquiry Report is accepted by the Northern

Territory Minister.

13.2 The Northern Territory may, when it provides the Assessment Report or the other

assessment documentation referred to in clause 13.1, also provide assessment

documentation relating to social and economic matters if such information will be relevant

to the Commonwealth Environment Minister’s considerations under section 136 of the


20

13.3 The Northern Territory notes that the Commonwealth Environment Minister must decide

whether or not to approve an action assessed under this agreement, and to attach any

conditions to an approval, within 30 business days after receiving an Assessment Report

from the Northern Territory which contains sufficient information to make an informed

decision.

14. Additional information

If, in deciding whether to approve the taking of an action assessed under this agreement, the

Commonwealth Environment Minister uses any information described in paragraph

136(2)(e) of the Commonwealth Environment Protection and Biodiversity Conservation Act

1999, the Commonwealth Environment Minister undertakes to provide a copy of this

information to the Northern Territory Minister. The intention of this clause is to give the

Northern Territory an opportunity to comment on the accuracy of this information before

the Commonwealth Environment Minister decides whether to approve the taking of the

action, subject to the requirements of section 130 of the Commonwealth Environment

Protection and Biodiversity Conservation Act 1999 relating to the time period within which

the Commonwealth Environment Minister must decide whether to approve the action.

15. Monitoring compliance with conditions

15.1 Clauses 15, 16 and 17 apply where an action:

(a) is taken in the Northern Territory; and

(b) requires the approval of the Commonwealth Environment Minister under Part 9 of

the Commonwealth Environment Protection and Biodiversity Conservation Act

1999; and

(c) requires approval (however described) under the Northern Territory Waste

Management and Pollution Control Act, Planning Act, Mining Act, Mining

Management Act, Petroleum Act, Petroleum (Submerged Lands) Act, Water Act,

Fisheries Act, or Aquaculture Act.

15.2 The parties agree to cooperate in monitoring compliance with conditions relating to, or

affecting, a matter protected by Part 3 of the Environment Protection and Biodiversity

Conservation Act 1999 attached to approvals, with the aim of reducing duplication. To this

end the parties agree:

(a) that each party will inform the other of any conditions attached to the approval(s) to

take the action; and

(b) that best endeavours will be used to put cooperative arrangements in place for

monitoring compliance with conditions on any action which is approved by both

parties. The aim of these arrangements is to ensure that reporting requirements for

the proponent, and other monitoring efforts such as site inspections, are not

duplicated.

16. Enforcing conditions on approvals

The parties agree to inform one another before commencing enforcement action against a

person for breaching conditions of an approval for an action which has been approved by

both parties, where the conditions relate to, or affect, a matter protected by Part 3 of the

Environment Protection and Biodiversity Conservation Act 1999.

21

17. Conditions attached to an approval

The parties recognise the desirability of avoiding, to the extent practicable, attaching

inconsistent conditions to approvals for an action under the Environment Protection and

Biodiversity Conservation Act 1999 and Northern Territory legislation. To this end the

parties:

(a) note that the Commonwealth Environment Minister is required by the provisions of

section 134 of the Commonwealth Environment Protection and Biodiversity

Conservation Act 1999 to consider any relevant Northern Territory conditions when

deciding whether to attach a condition to an approval; and

(b) agree to inform one another before varying the conditions attached to an approval

for an action which has been approved by both parties, where the condition relates

to, or affects, a matter protected by Part 3 of the Environment Protection and

Biodiversity Conservation Act 1999. The parties also agree to inform one another of

any such variation after it has been made.

18. Administrative procedures

The parties agree to jointly develop administrative procedures to ensure that the

requirements of this agreement are administered efficiently in accordance with their

separate legal requirements. The parties note that the administrative procedures will provide

for consultation on draft assessment documentation including draft assessment reports. The

administrative procedures will also include guidelines on the exchange of any information

about assessments between Environment Australia and the relevant Northern Territory

agency.

Maintaining the agreement

19. Monitoring compliance with the agreement

The parties recognise that, under the Commonwealth Auditor-General Act 1997, the

Commonwealth Auditor-General may audit the operations of the Commonwealth public

sector (as defined in section 18 of that Act) in relation to this agreement.

20. Reviewing the agreement

20.1 The Commonwealth Environment Minister is required by section 65 of the Commonwealth

Environment Protection and Biodiversity Conservation Act 1999 to cause a review of the

operation of this agreement to be carried out at least once every five years while the

agreement remains in effect, and give a copy of each report of the review to the Northern

Territory Minister.

20.2 The parties agree that:

(a) each review of this agreement under section 65 will be carried out jointly by the

Commonwealth Department of the Environment and Water Resources and the

relevant Northern Territory agency;

(b) each review will evaluate the operation of the agreement against the aim of the

agreement; and

(c) the views of key stakeholders will be sought as part of each review.

22

21 Minor amendments to the agreement

21.1 The parties note that section 56A of the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999 provides that the Commonwealth Environment

Minister may make a written determination that the Commonwealth Environment Minister

intends to develop a draft amendment to a bilateral agreement, where the Commonwealth

Environment Minister is satisfied that the amendment will not have a significant effect on

the operation of the bilateral agreement. Section 56A of the Commonwealth Environment

Protection and Biodiversity Conservation Act 1999 also sets out a publication requirement

where the Commonwealth Environment Minister makes a determination.

21.2 Prior to making such a determination the Commonwealth Environment Minister must reach

agreement with the Northern Territory Minister on the wording of the amendment.

22 Cancelling or suspending the agreement

22.1 The parties note that sections 57 – 64 of the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999 provide that the Commonwealth Environment Minister

may cancel or suspend all or part of this agreement (either generally or in relation to actions

in a specified class) under certain circumstances. Sections 57 – 64 of the Commonwealth

Environment Protection and Biodiversity Conservation Act 1999 also set out a process for

consulting on the cancellation or suspension of all or part of this agreement.

22.2 In accordance with section 63 of the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999 the Commonwealth Environment Minister must cancel

or suspend all or part of this agreement at the request of the Northern Territory Minister, but

only if the request is made in accordance with the agreement.

22.3 The parties agree that a request to cancel or suspend all or part of this agreement is made in

accordance with this agreement if:

(a) the request is made on the grounds that the Northern Territory Minister is not

satisfied that the Commonwealth has complied or will comply with the agreement;

or

(b) the request is made on the grounds that the Northern Territory Minister is not

satisfied that the aim of the agreement is being achieved; and

(c) before making the request, the Northern Territory Minister has informed the

Commonwealth Environment Minister in writing of the reason(s) for requesting the

suspension and allowed a period of at least twenty business days for the

Commonwealth Environment Minister to respond.

Exchange of information

23. Each party agrees to promptly comply with any reasonable request from the other party to

supply information relating to the management or administration of assessments covered by

this agreement

23

24. Where feasible, the parties agree that they may each use data within the control of the

relevant departments of government of the other party for the purposes of meeting their

respective responsibilities relating to the agreement or the assessment of environmental

impacts under their respective Acts, and to make data available to the other. The parties

agree that data will remain the property of the owner and its use will be subject to such

licence conditions as may be agreed. The parties agree that, subject to clauses 28 and 30,

data will not be used or communicated to any other person without the permission of the

owner.

Conflict resolution

25. Acting in a spirit of cooperation, the parties agree:

(a) in the event that any dispute arises under this agreement, the parties will aim to settle

it by direct negotiation using their best endeavours; and

(b) discussions aimed at resolution will normally take place at senior officials level in

the first instance.

This clause is subject to the rights and obligations of each party under relevant sections of

the Environment Protection and Biodiversity Conservation Act 1999 (including those

sections dealing with cancellation and suspension of bilateral agreements).

26. The parties will notify and consult each other on matters that come to their attention that

may improve the operation of this agreement.

Relevant plans and agreements

27. The parties note that a number of agreements and plans may be relevant to assessments

under this agreement. The parties undertake that, when actions are assessed under this

agreement, relevant agreements and plans will be taken into account as necessary. The

parties agree that where the assessment covers impacts on:

(a) World Heritage values of a World Heritage property, any management plan for the

property is relevant;

(b) National Heritage values of a National Heritage place, any management plan for the

place is relevant;

(c) the ecological character of a Ramsar wetland property, any management plan for the

wetland is relevant;

(d) a listed threatened species or ecological community, any recovery plan for the

species or community, and any threat abatement plan for a process that threatens the

species or community is relevant;

(e) a listed migratory species, any wildlife conservation plan for the species is relevant.

Freedom of information legislation

28. If a party receives any request, including under Freedom of Information legislation, for any

documents originating from another party which are not otherwise publicly available, the

parties will consult on the release of those documents.

24

29. The parties recognise the need for expeditious consultation on such requests so that

statutory obligations can be met without delay.

Public access to assessment documentation

30. The Northern Territory agrees that documentation relating to the assessment of each action

which is assessed in the manner specified in Schedule 1 will be available to the public,

except where corresponding information would not have been available to the public if the

action had been assessed by the Commonwealth under the Commonwealth Environment

Protection and Biodiversity Conservation Act 1999.

Groups with particular communication needs

31. The Northern Territory will, in giving effect to the requirements in Schedule 1, make

special arrangements, as appropriate, to ensure that affected groups with particular

communication needs have adequate opportunity to comment on actions assessed in the

manner described in Schedule 1. The parties note that indigenous people affected by a

proposed action may have particular communication needs, and will ensure, where

appropriate, that affected indigenous people have adequate opportunity to comment on

actions assessed in the manner described in Schedule 1.

Interpretation

32. A reference in this agreement to the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999, the Northern Territory Environmental Assessment

Act, or the Northern Territory Inquiries Act is a reference to the relevant Acts as in force at

the date of this agreement. If any of the Acts are subsequently amended in a manner that

affects the operation of this agreement, the parties will seek to agree as soon as practicable

on whether it is necessary to make another bilateral agreement varying or replacing this

agreement.

33. A reference in this agreement to an Act includes a reference to any regulations and

instruments under that Act (including the Administrative Procedures made under section 7

of the Northern Territory Environmental Assessment Act).

34. A reference in this agreement to the impacts of an action (or the relevant impacts of an

action), includes a reference to any impacts (or relevant impacts, as the case may be) of that

action outside of the Northern Territory.

35. Unless the contrary intention appears, the terms used in this agreement have the same

meaning as in the Commonwealth Environment Protection and Biodiversity Conservation

Act 1999.

36. Administrative Procedures means the Administrative Procedures made under section 7 of

the Northern Territory Environmental Assessment Act.

37. Assessment documentation means any formal report, study, agreement, submission or

correspondence prepared by or received as part of the formal assessment processes set out

in Schedule 1. This includes draft reports or studies which would normally be publicly

available under those assessment processes.

38. Assessment Report means the report prepared by the Northern Territory in accordance with

item 6 of Schedule 1 to this agreement.

25

39. Commonwealth Environment Minister means the Minister administering the

Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and

includes a delegate of the Minister.

40. Inquiry Report means a report prepared by a Board of Inquiry in accordance with item 6 in

Schedule 1 to this agreement.

41. Northern Territory Minister means the Minister administering the Northern Territory

Environmental Assessment Act and includes a delegate of the Minister.

42. Relevant Northern Territory agency means that Northern Territory government agency

which is from time to time administering the Northern Territory Environmental Assessment

Act.

43. Report means a public environment report prepared under the Northern Territory

Environmental Assessment Act.

44. Statement means an environmental impact statement prepared under the Northern Territory

Environmental Assessment Act.

Funding

45. The parties agree that, twelve months after the commencement of this agreement, and every

twelve months thereafter until the expiry of this agreement, they will review the additional

implementation costs that the Northern Territory may have incurred during the relevant

twelve month period of the agreement. The Commonwealth agrees to reimburse the

Northern Territory the additional implementation costs.

46. In clause 45, the additional implementation costs are the costs that the Commonwealth and

the Northern Territory agree:

(a) have been incurred by the Northern Territory in implementing this agreement; and

(b) would not, in the absence of this agreement, have been incurred by the Northern

Territory in carrying out an adequate assessment of each action to which Schedule 1

applies.

Signed for and on behalf of the COMMONWEALTH

OF AUSTRALIA by:

Signed for and on behalf of the

NORTHERN TERRITORY by:

SIGNED SIGNED

The Hon Dr David Kemp MP

Minister for the Environment and Heritage

The Hon Kon Vatskalis MLA

Minister for the Environment

Date: 1 May 2002

Date: 31 May 2002

26

APPENDIX 2 – PROJECTS ASSESSED UNDER THE AGREEMENT

No. EPBC Ref Project Title Proponent Status

1 2007/3293

Eni Australia/Transport - water/Injin Beach/NT/Blacktip Project - Wharf Construction

Eni Australia B V

Completed

Withdrawn -28/06/2007

2 2007/3558

Compass Resources NL /Mining/Batchelor/NT/Browns Oxide Project, New Tailings Storage Facility(2)

Compass Resources NL

Completed


3 2008/4260

Redbank Mines Ltd/Mining/Savannah Way via Borroloola/NT/Expansion of Existing Redbank Oxide Leach Operations, New Pits, Upgraded Road and Facilities

Redbank Copper Ltd

Completed

Approved -02/05/2011

4 2008/4371

Arafura Resources Ltd/Mining/Stuart Highway 135km N/W of Alice Springs/NT/ Development of Rare Earth Oxide and Phosphate Mine at Nolans Mine Site

Arafura Resources

Ltd

Active

Undergoing Assessment -

03/09/2008

5 2009/4794

Energy Resources of Australia Ltd/Mining/250km east of Darwin, 11km east of regional centre of Jabiru/NT/Construction of a Heap Leach Facility to treat low grade ore at Ranger uranium mine

Energy Resources of Australia Ltd

Completed


6 2009/5113

Power and Water Corporation/Waste management (sewerage)/Darwin/NT/Augmentation of the East Point Effluent Rising Main and Extension of East Point Outfall

Power and Water

Corporation

Completed

Approved-

01/03/2013

7 2010/5304

Department of Planning and Infrastructure - Major Projects Unit/Manufacturing/Darwin Harbour/NT/East Arm Wharf Expansion Works

Northern Territory

Department of Lands and

Planning

Completed

Approved-

05/03/2012

27

8 2010/5324

HNC (Australia) Resources Pty Ltd/Mining/Batchelor, Northern Territory /NT/Development of Area 55 Oxide Project

HNC (Australia) Resources

Pty Ltd

Completed


9 2010/5431

Darwin Port Corporation/Transport - water/Darwin Harbour/NT/Shipping Channel Enhancement Darwin Port

Corporation

Active


07/05/2010

10 2011/6090

Northern Territory Department of Lands and Planning/Residential development/10km south of Palmerston /NT/Proposed City of Weddell

Northern Territory

Department of Lands and

Planning

Active


13/12/2011

11 2012/6242

Western Desert Resources Ltd/Mining/Savannah Way, Gulf Region /NT/Roper Bar Iron Ore Mine and Transport Infrastructure

Western Desert

Resources Ltd

Completed

Approved -6/12/2012

28

APPENDIX 3 – LIST OF STAKEHOLDERS3

NT Environmental Defenders Office

Energy Resources Australia

Arafura Resources Ltd

Tenax Energy Pty Ltd

Darwin Port Corporation

Vista Gold Australia Pty Ltd

NT Power and Water Corporation

Tellus Holdings Ltd

Western Desert Resources

Parks Australia

Indigenous Advisory Committee

Northern Territory Department of Land Resource Management

Northern Territory Department of Lands, Planning and Environment

Northern Territory Environment Protection Authority

Department of the Environment

Supervising Scientist (DoE)

3 Stakeholder references are correct as at July 2014.

29

APPENDIX 4 – REVIEW QUESTIONS

Public comment and consultation

1. Have the assessment processes conducted under the Bilateral Agreement provided an

adequate opportunity for public consultation and access to assessment documentation?

Consideration of environmental impact

2. Have assessments carried out under the bilateral agreement ensured that there has been

an adequate and proper assessment of the likely impacts of actions on matters of national

environmental significance (relevant to the Environment Protection and Biodiversity

Conservation Act 1999)?

3. Have the assessment guidelines encompassed all the relevant impacts of the actions?

4. Have the environmental impact statements/development proposals/environmental

management plans and the assessment reports contained sufficient information about the

action and its relevant impacts on matters of national environmental significance?

5. Have the outcomes of the assessments carried out under the bilateral agreement

contributed to:

a. the protection of the environment; and

b. promoting the conservation and ecologically sustainable use of natural resources?

Efficient, effective and timely process, minimising duplication of two assessment processes

6. How did you find the process – for example did you know who to provide information to

and were procedures clear?

7. Do you believe the process was efficient? And if not, how could its efficiency be

improved?

8. Has the bilateral agreement minimised duplication between Australian Government and

Northern Territory environmental assessment processes in respect of matters of national

environmental significance?

9. Can you tell us more about your experience – eg were you informed of the outcomes,

satisfied with communication?

review of the environmental assessment bilateral agreement ...€¦review of the environmental...

Documents