While all care has been taken in the preparation of our Fact Sheets, they are a guide only and are no substitute for legal advice in individual cases. For any specific questions, you should seek legal advice. This Fact Sheet last updated: 18 April 2019.
This Fact Sheet provides an overview of the process for the environmental assessment and approval of hydraulic fracturing (‘fracking’) activities in the Northern Territory.
The NT government has indicated it is now receiving Environmental Management Plans (EMPs) for fracking exploration activities. An EMP is the final environmental approval required before the activity can start. Under recent changes to the law, EMPs for fracking activities must be placed on public exhibition for 28 days. Any person can make a submission on the EMP.
To help you participate in this process, this Fact Sheet explains the EMP process, including setting out the matters the Minister for the Environment needs to consider before approving or refusing to grant an EMP.
What is the EMP application process?
The Petroleum (Environment) Regulations (PER) establish the approval process for EMPs. An interest holder (i.e. the fracking company) who plans to carry out a ‘regulated activity’ must submit an EMP for approval to the Minister for the Environment (Minister). A regulated activity is an activity carried out in connection with a technical works programme for a petroleum interest and has or will have an environmental impact or risk (cl 5, PER). It includes things such as land clearing, earthworks, establishing seismic lines or drill pads, drilling, hydraulic fracturing, release of a contaminant/waste and storage and transport of petroleum and hazardous substances.
An EMP may only be submitted for approval after the interest holder has carried out stakeholder engagement. A ‘stakeholder’ is defined as a person or body whose rights or activities may be directly affected by the environmental impacts or environmental risks of the regulated activity proposed to be carried out; or an agent or representative of such a person or body.
The interest hold must:
- (a) give each stakeholder information about:
- (i) the regulated activity the interest holder proposes to carry out; and The EDONT acknowledges the generous support of the Northern Territory Law Society Public Purposes Trust to enable publication of our Fact Sheets.
- (ii) the location (or locations) where it is proposed to carry out the activity; and
- (iii) the anticipated environmental impacts and environmental risks of the activity; and
- (iv) the proposed environmental outcomes in relation to the activity; and
- (v) the possible consequences of carrying out the activity to the stakeholder’s rights or activities; and
- (b) allow a reasonable period for the stakeholder to respond to the information given by the interest holder (cl 7, PER).
Petroleum activities that could reasonably be considered to be capable of having a significant effect on the environment must be referred to the NT Environment Protection Authority, which may require an environmental impact assessment to be prepared under the Environmental Assessment Act (NT).
In addition, where an activity that has, or will have, the potential to have a significant impact on a matter of national environmental significance it must be referred to the Commonwealth under the Environment Protection and Biodiversity Conservation Act 1999.
An EMP must include required information. The Minister can require further information to be provided (cl 10, PER).
Where it relates to the drilling of a well or to hydraulic fracturing, an EMP must be released for public comment for 28 days. There are some exceptions to this publication requirement including for a modified plan or a plan relating to the drilling of a water (cl 8A and 8B PER).
The public comments received by the Minister must be published.
The Minister must then:
- make a decision within 90 days to approve the EMP; or
- give the interest holder a resubmission notice; or
- extend the time to consider the EMP (cl 11, PER).
It is understood that the NT Environment Protection Authority (NT EPA) will be required to provide advice to the Minister on each EMP for fracking activities in accordance with its responsibilities under the Northern Territory Environment Protection Authority Act (ss 29B – 29D).
What information must be included in an EMP?
A plan must include a summary of the plan followed by comprehensive information about all matters necessary to be included in order to meet the approval criteria (cl 8 and Schedule 1, PER).
The summary of a plan must include the following:
- (a) a description of the regulated activity to which the plan relates;
- (b) the location (or locations) of the activity;
- (ba) if the activity is hydraulic fracturing – the details about any chemical or other substance that may be in, or added to, any treatment fluids to be used in the course of the activity;
- (c) the existing environment that may be affected by the activity;
- (d) the environmental impacts and environmental risks of the activity;
- (e) the environmental outcomes in relation to the activity;
- (f) a list of stakeholders with whom the interest holder has carried out stakeholder engagement;
- (g) the stakeholder engagement carried out and information about future stakeholder engagement.
The matters in Schedule 1 of the PER must be addressed by the EMP.
How does the Minister decide?
The Minister can only approve an EMP if the Minister is reasonably satisfied that the approval criteria have been met (cl 9, PER), which are:
- The EMP includes all information required under Schedule 1. This includes a description of regulated activity, description of existing environment, assessment of environmental impacts and environmental risks (including cumulative impacts), environmental outcomes and environmental performance standards, and chemicals used in the course of hydraulic fracturing. It must demonstrate how all ‘legislative requirements’ will be met. This will include the Code of Practice for Onshore Petroleum Activities (which is currently only in draft form). It must include an Implementation Strategy, information about stakeholder engagement carried out, and arrangements for recording, monitoring and reporting information about the activity.
- The EMP is appropriate for the nature and scale of the regulated activity to which the plan relates.
- The EMP demonstrates that all environmental impacts will be reduced to a level that is ‘as low as reasonably practical‘ and ‘acceptable‘.
When considering whether the proposed activity is carried out in a manner where environmental risks and impacts are as low as reasonably practical and acceptable, the Minister must take into account the principles of ecologically sustainable development (ESD) (cl 4, PER), and each environmental assessment recommendation (by the NTEPA) if an environmental report or statement has been prepared under the Environmental Assessment Act.
The Minister is also required to taken into account any comments received through the public exhibition period (cl 11, PER).
What happens next?
If the Minister is satisfied that the EMP meets the approval criteria, s/he must approve the plan, with or without conditions (cl 11, PER).
If the Minister is not satisfied that the EMP meets the approval criteria, s/he must give the interest holder a resubmission notice, or refuse to approve the plan (cl 11, PER).
The EDONT acknowledges the generous support of the Northern Territory Law Society Public Purposes Trust to enable publication of our Fact Sheets. The Minister is required to publish a statement of reasons with an approval notice or a refusal notice (cl 12, 13, PER).
There are currently no merits appeal rights available for third parties against this decision. This is a recommendation the Fracking Inquiry provided must be implemented prior to any production activities commencing.