- The Federal Government is continuing to progress the implementation of its ‘one stop shop’ reforms for environmental approvals, despite the fact that the support of the Senate has yet to be secured for the necessary supporting legislative amendments.
- Draft approval bilateral agreements have been released for most States and Territories, with the exception of the Northern Territory and Victoria.
- The bilateral agreements have a relatively broad application, although there is room for processes beyond major EIA approvals to be accredited. Questions also remain as to the practical implementation of the agreements, particularly in respect to the setting of offsets.
Background to the ‘one stop shop’
The Australian Government has committed to delivering reforms to the environmental approval system through the accreditation of State processes under the national environmental law to create a single environmental assessment and approval process. These reforms have been labelled the ‘one stop shop’.
The reforms are being implemented through the use of existing provisions of the Environment and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). These provisions allow the Commonwealth to enter into bilateral agreements to accredit State environmental protection processes, including both assessment and authorisation processes.
Amendments to the EPBC Act are also proposed to further facilitate streamlining through the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014. Most significantly, the Bill proposes to remove the exclusion on States and Territories assessing and approving large coal mining and coal seam gas development likely to have a significant impact on a water resource, also known as the ‘water trigger’. The Bill is currently before the Senate, with the Greens and Palmer United Party blocking its progression.
The reforms have been met with some opposition with concerns raised as to whether it is appropriate for the States to regulate national environmental concerns and the potential for a reduction in environmental safeguards and environmental assessment standards. The Government has responded to these criticisms by reinforcing its focus on the maintenance of high environmental standards and the development of an assurance framework including auditing and reporting requirements which have been built in to the bilateral agreements.
However, more recently the additional obligations being placed on State assessment and approval processes have led to concerns regarding the increased complexity of these processes and the potential burden on State resources.
Current status of bilateral negotiations
The three stage process for the one stop shop reforms commenced in late 2013 with Memoranda of Understanding being negotiated with the States and Territories to set out each party’s commitment to the process, key principles and associated timeframes.
Each State and Territory has also now signed up to a new or updated assessment bilateral agreement. These agreements allow the Commonwealth Minister for the Environment to rely on a broader range of State or Territory assessment processes for the purpose of EPBC Act approvals, with the stated aim of a ‘one project, one assessment’ outcome.
The development of approval bilateral agreements is the final stage of the reforms, and is still underway despite initial plans for a September 2014 deadline. Currently all States and Territories with the exception of Victoria and the Northern Territory have released draft approval bilateral agreements which are now being finalised.
What does the new process look like so far?
- Assessment and approval will be undertaken under the bilateral agreements for all of the EPBC Act ‘triggers’, with the exception of actions undertaken on Commonwealth land or in a Commonwealth marine area and specific carve outs from the nuclear action trigger for the construction and operation of nuclear installations such as nuclear power plants.
- Although the scope of the State assessment processes covered by the bilateral agreements has been broadened in some States, there is still scope for expansion beyond major environmental impact assessment processes.
- Once the approval bilateral agreements commence, no Commonwealth input will be necessary for accredited processes. Referral, assessment, approval, condition setting, appeal and compliance functions will all be fulfilled by the State, incorporating Commonwealth issues.
- Specific provisions are included in the approval bilateral agreements for the setting of offset conditions, with the guiding principles reflecting a combination of both the relevant State and Commonwealth offset policies. A more consistent approach to offset conditioning is welcomed by industry, however it remains to be seen how this process will be administered.
- Under the approval bilateral agreements, both the Commonwealth and State and Territory Ministers have the ability to determine that the agreement does not apply to an action where there is the potential for ‘significant or irreversible harm’ (or a similar threshold) to a matter of NES. There are also broader powers under the EPBC Act for the suspension or cancellation of bilateral agreements, either generally or in relation to a specified class of action or controlling provision.
- Questions remain regarding the practical implementation of the bilateral agreements, particularly as a number of matters are left for consultation or to be outlined in more detail in supporting documentation.
- The bilateral agreements will be subject to a five yearly review and regular public reporting requirements.
This article was written by Fiona Sinclair, Senior Associate, Perth.