For almost 40 years, the principal Northern Territory law aimed at protecting the environment from the impacts of major development has been the Environmental Assessment Act 1982 (NT) (EA Act).
At a mere six pages and not having been amended in any meaningful way since 1982, the EA Act has governed how the environmental and social impacts of major projects, such as mines, are assessed and approval decisions made in the Northern Territory.
But on Sunday 28 June 2020, this all changed.
With the start of the new Environment Protection Act 2019 (EP Act), the Northern Territory reaches a hugely significant reform milestone bringing its outdated environmental impact assessment (EIA) laws into line with those of other Australian states and territories.
A history of failure
The EA Act has been fraught with problems. History has demonstrated that it consistently failed to adequately safeguard against serious environmental, social and cultural impacts from development in the Territory.
Most significant is that neither the Northern Territory Environment Protection Authority (NTEPA) nor the Minister for the Environment and Natural Resources has the legal power to approve or reject a proposal, even if they think that project may cause unacceptable impacts. Nor do they have any powers to provide ongoing environmental oversight of projects that are approved. These powers are left with the portfolio that is also charged with promoting a particular sector – giving rise to significant risk of conflict of interest.
EDO has been involved in numerous projects over the years which have illustrated the failure of the EA Act to operate as a proper safeguard:
- The approval, despite a recommendation of ‘unacceptable impact’, of the conversion of the controversial McArthur River Mine into an open cut mine which, in requiring the diversion of the McArthur River, has triggered numerous significant mine management and environmental problems that continue to this day;
- The construction of Port Melville, off the coast of Darwin, without an NT environmental impact statement or approval, despite its potentially significant impacts on threatened species habitat;
- The approval by the Pastoral Land Board of over 20,000ha of clearing of native vegetation at Maryfield Station without any formal environmental impact assessment process, despite this clearing potentially amounting to 18.5% of the NT’s annual greenhouse gas emissions.
Due to the lack of mandatory public access to information and reporting requirements under the EA Act, it has also meant that seeking access to information had to rely on cumbersome freedom of information laws, involving significant time and resourcing – both the community’s and the Government’s, often to limited avail.
The EDO had long called for a complete overhaul of this failed system, welcoming the Northern Territory Government’s delivery of legislative reforms during 2018 and 2019 and engaging closely with the consultation process to deliver a modern environmental protection regime that is more closely aligned with the rest of the country.
With many of our recommendations in place, the Environment Protection Act was passed in September 2019 and commenced, repealing the EA Act, on 28 June 2020.
A much-needed upgrade
The EP Act represents a significant first step towards a more modern legal framework for the Northern Territory. If properly implemented, we are optimistic it will result in far better outcomes for the environment and communities.
A key feature of the EP Act is the new environmental approval process. Where a proposed development has the potential to have a significant impact on the environment, it will need to proceed through the EIA process and require an environmental approval, regardless of the type of development.
For the first time the Minister, on the advice of the NTEPA, will issue these approvals, imposing conditions to manage the environmental impacts of the projects – and follow up with compliance action if an approval is not adhered to. Importantly, the NTEPA also has the power to recommend a project be refused if it has unacceptable impact – if that recommendation is accepted by the Minister, the approval must be refused.
Other significant provisions of the Act include:
- Strong guiding objects and principles based on ecologically sustainable development and the best practice ‘avoid, mitigate, offset’ decision-making hierarchy;
- Emphasis on the importance of participation of Aboriginal people and communities; and
- Inclusion of the mandatory consideration of “a changing climate”;
- New tools the Minister can use for environmental protection, such as the power to declare protected areas and prohibited actions;
- Prescriptive consultation processes in the EIA process;
- Mandatory publication of information and publication of reasons for decisions;
- Comprehensive compliance and enforcement powers, and significant financial penalties for breaches and offences.
Of course, the new legislation is not perfect. Disappointingly, the Northern Territory Government decided not to include vital third-party merits appeal rights, nor a broad open standing provision for judicial review, which together would support accountable decision-making, reduce corruption risks and support the rule of law and access to justice.
There also remains, in our view, excessive discretion on the part of the NTEPA in relation to some of its key decisions under the new Act. Appropriate guidance materials, drafts of which the EDO has been scrutinising, are necessary to ensure decisions are made in accordance with the law and the intent of the new regime.
Will it deliver?
These significant reforms, while only the first stage of the Northern Territory’s proposed environmental reform program, represent a long-awaited and much-needed transformation of the Northern Territory’s environmental impact assessment framework.
Although many other Territory environmental laws are still in urgent need of reform, the EP Act presents a real opportunity to achieve significantly better – and more just – outcomes for the environment and communities across the Northern Territory.
Success of the new regulatory regime will rely significantly on a culture shift on the part of the Northern Territory’s regulators, and proponents operating here, to ensure that the new legislation is rigorously implemented, followed and enforced and – therefore – for the EP Act to live up to its promise.
We will closely watch the unfolding implementation of this new framework and continue our work with our clients and Territory communities to ensure the new legislation is rigorously applied for the benefit of the Northern Territory’s incredible environment.
See EDO’s proposal for a Climate Change Act for the Northern Territory.
-  Kirsty Howey and Gillian Duggin, ‘A mine that can’t be closed? The McArthur River Mine and regulatory failure in the Northern Territory’ (2019) 34(1) Australian Environment Review 3, 4.
-  Martin Farrer, ‘Approval of Port Melville supply base near Darwin quashed by Federal Court’, The Guardian (online, 22 October 2016) < https://www.theguardian.com/australia-news/2016/oct/22/approval-of-port-melville-supply-base-near-darwin-quashed-by-federal-court>.
-  https://www.edo.org.au/2019/09/04/landmark-legal-challenge-saves-20000-hectares-of-native-vegetation/
-  Environment Protection Act 2019 (NT), s 57.
-  Environment Protection Act 2019 (NT), s 69 (1)(a)-(c).
-  Environment Protection Act 2019 (NT), s 84(1).
-  Environment Protection Act 2019 (NT), s 66.
-  Environment Protection Act 2019 (NT), s 79(1).
-  Environment Protection Act 2019 (NT), s 3(a)-(e).
-  Environment Protection Act 2019 (NT), s 18.
-  Environment Protection Act 2019 (NT), s 26(a)-(c).
-  Environment Protection Act 2019 (NT), ss 35, 36.
-  Environment Protection Act 2019 (NT), s 38.
-  Environment Protection Act 2019 (NT), Part 9.
-  Environment Protection Act 2019 (NT), s 11.