On 28 May 2014 the Commonwealth Government (Commonwealth) and the State Government of Western Australia (State) released their draft Assessment Bilateral Agreement (Bilateral Agreement) for public comment.
The Bilateral Agreement:
- will replace the current agreement between the Commonwealth and State (dated 21 March 2012 and amended on 16 July 2013) (the current agreement);
- seeks to create a “one-stop shop” for federal environmental assessments required under Part 8 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by accrediting the Western Australia assessment procedures as meeting the EPBC Act requirements; and
- is open for public comment until Friday 27 June 2014.
The State is a step behind Queensland and New South Wales who have released draft bilateral agreements with the Commonwealth for environmental approval procedures, in addition to environmental assessment procedures.
At the end of last year the Commonwealth gave notice of its intention to develop a bilateral agreement to allow the State to decide whether or not a controlled action is approved under Part 9 of the EPBC Act.
In this Alert, Partner Sarah Macoun and Solicitor Kylie Panckhurst outline how the Bilateral Agreement is intended to operate for Western Australia.
Current “two-stop shop” arrangement
Where a proposed action is likely to have a significant impact on a matter of national environmental significance (NES), that proposal must be referred to the Commonwealth Minister for the Environment (Minister) under the EPBC Act. The Minister will decide if the proposed action is not a controlled action, not a controlled action if undertaken in a particular manner, or a controlled action. The first two decisions do not require further approval before the proposal can proceed.
A “controlled action” is an action that has, will have, or is likely to have a significant impact on a matter of NES. The controlled action will require approval from the Minister and is subject to the formal assessment and approval process under the EPBC Act. The type of assessment process is decided when the action is determined to be a controlled action.
A proposal which is a controlled action under the EPBC Act will usually trigger Part IV of the Environmental Protection Act 1986 (WA) (EP Act). This means the proposal will be subject to assessment and approval under both the State and Commonwealth processes, except where the current agreement applies.
The current agreement between the State and the Commonwealth allows the Minister to rely on certain State environmental impact assessment processes in assessing actions under the EPBC Act. This means that where the proposed action is being assessed under Division 1 of Part IV of the EP Act and in the manner approved by the current agreement, further assessment is not required by the Minister under Part 8 of the EPBC Act. However, separate decisions are still required by the Commonwealth and the State as to whether the action is approved.
Bilateral agreement “one-stop shop”
The Bilateral Agreement will operate in a similar manner to the current agreement and the Public Environmental Review (PER) and Environmental Review and Management Program will remain accredited assessment processes. The Bilateral Agreement also accredits a broader range of EP Act assessment processes and procedures as satisfying assessment requirements under Divisions 4, 5 and 6 of Part 8 of the EPBC Act. Most notably, these processes include Part V of the EP Act clearing assessments and category A assessments on proponent information, provided such processes comply with the additional administrative requirements set out in Schedule 1 of the Bilateral Agreement.
Once the Bilateral Agreement is fully operational the State will assess proposed actions that are likely to have a significant impact on a matter of NES. However, separate decisions will still be required by the Commonwealth and the State for the action until an environmental approval bilateral agreement is completed for Western Australia.
The Bilateral Agreement is open for submissions until 27 June 2014 and can be found here.