The NT Government's consultation draft Environment Protection Bill will be amended so that judicial review will only be allowed for decisions made in the environmental assessment process.

On 4 October 2018 the NT Government released a draft Environment Protection Bill and draft Environment Protection Regulations for eight weeks of public consultation in line with a key election commitment to review and reform the current environmental regulatory system in the Territory.

When released for consultation, the draft Bill included both merits and judicial review for decisions made in the environmental assessment process with wide-ranging standing for who could seek to review those decisions.

On 30 October 2018, the NT Government announced that prior to the draft Bill being introduced into Parliament it will be amended in response to concerns raised by industry so that:

  • judicial review (ie. legal proceedings challenging the lawfulness of the decision-making process) only be allowed when seeking a review of decisions made in the environmental assessment process, including those decisions made by the Minister and the NT EPA; and
  • standing for judicial review only apply to those directly affected, and those who made a valid and genuine submission to the decision making process.

In the original draft Bill released for consultation, there was open standing arrangements with respect to judicial review and merits review was also available for an “affected person”. An "affected person" was specified in Schedule 3 for each reviewable decision and included the proponent and an "eligible person" which means any of the following:

  • a person who is directly or indirectly affected by the decision;
  • a member of an environmental, community or industry organisation, whether incorporated or not;
  • an Aboriginal Land Council;
  • a Registered Native Title Prescribed Body Corporate or a registered claimant under the Native Title Act 1993 (Cth);
  • a local government body; and
  • a person who has made a genuine and valid submission during an assessment or approval process under this Act.

The draft Bill provides that a "genuine and valid submission" by a person does not include a submission by the person in the form of a letter or petition prepared by another body or organisation; or a submission made after the end of the submission period, unless the Civil and Administrative Tribunal considers that in the circumstances it should be considered a genuine and valid submission.

It is understood that the NT Government will look to introduce merits review in the new environment protection legislation for operational approvals made by the Department of Environment and Natural Resources to regulate wastes and pollution and the environmental impacts of mining and other industries.

Have your say

Consultation on the draft Bill and Regulations remains open until 3 December 2018. To have your say, email your submissions to environment.policy@nt.gov.au.