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Explainer: the new Environment Protection Bill, appeal rights and what it means for fracking

Yesterday, the NT Government backflipped on its inclusion of open standing for judicial review, and merits appeal rights, in its new Environment Protection Bill.

It made this decision before the wider community had the chance to have its say – submissions on the Bill do not close until 3 December.

This post explores what this means, particularly in the context of the NT Government’s commitments on fracking.

The Environment Protection Bill creates a new environmental approval for the first time

Earlier this month, the NT Government released its long-anticipated draft Environment Protection Bill, an election commitment from 2016. The Bill was placed on public exhibition for 2 months to provide the community and stakeholders with the opportunity to consider the detailed reforms and prepare submissions. We understand the Bill is intended to be presented to Parliament early next year, and if passed into law, commence in late 2019.

The Bill sets up a new framework for how the government assesses the environmental impacts of development. For the first time in the NT, it creates a specific ‘environmental approval’ that must be granted (or refused) by the Environment Minister.  

This means that if a development meets a specified ‘trigger’ or level of impact, the proponent (e.g. a fracking company) will need to:

  • prepare an environmental impact statement that identifies the environmental values it will impact and how it will mitigate those impacts, and
  • seek approval to proceed from the Environment Minister.

This process is a fundamental safeguard that ensures decision-makers are informed of all the environmental and social risks of a development and provides rigour and transparency to their decision-making.

Under the NT’s current outdated laws, the only approval that is required is from the sector Minister e.g. the Minister for Primary Industry and Resources for mines and petroleum activities. The NT EPA can provide advice to that Minister (and can require an assessment be undertaken), but there is no obligation for the NT EPA’s advice to be followed.

The new environmental approval will be a key safeguard against conflict of interest by separating the approval powers from the Ministers (and their departments) responsible for promoting their sector.

The importance of this kind of safeguard was acknowledged in the Fracking Inquiry and was a key reason why it recommended removing the power to grant environmental approvals for fracking from the Department of Primary Industry and Resources (and the Minister).

This new approach is long overdue in the NT and is a welcome development.

The Environment Protection Bill includes broad appeal rights

Broad (“third party”) appeal rights are also critical safeguards in environmental legislation. These enable any person or group (such as an environment group, a land council or Aboriginal group, a neighbouring property owner) to challenge a government decision in Court, regardless of whether or not they have a ‘direct’ interest in the decision. 

There are two types of appeal rights that can be provided to third parties:

  1. Judicial review – put simply, these are challenges about whether a decision-maker followed the law in making the decision. In the NT, these appeals are to the Supreme Court.
  2. Merits review – these are appeals or reviews of decisions based on the merits (i.e. whether a decision was good or bad). A Tribunal or other review body ‘steps into the shoes’ of the original decision-maker to review the decision. In the NT, these appeals are generally to the Civil and Administrative Tribunal (NTCAT).

Ensuring third parties, and not just the proponent of a development or major project, have access to these appeal rights is important to:

  • Uphold the rule of law – where government doesn’t follow its own laws, or is unwilling to properly regulate a development, it is important that other third parties can step in and seek to have the Court adjudicate to uphold the law.
  • Prevent corruption – for decisions that are at risk of being influenced by corruption (e.g. mining approvals), the opportunity to have a decision revisited by a neutral Tribunal or Court is a critical safeguard.
  • Deliver better, more accountable decisions – the scrutiny and transparency appeal rights provide ensures decision-makers have greater awareness of their legal obligations and the evidence they make decisions on. This leads to better, more consistent and transparent decision-making.

The Environment Protection Bill currently includes third party appeal rights for both types of appeal – and is an important part of the overhaul of the current environmental laws in the NT.

Yesterday, the Government indicated that it would amend the Bill (before consultation ends) to:

  • narrow access to ‘judicial review’ to only those directly affected by a decision (e.g. proponents) and people who have made a submission, and 
  • completely remove merits appeal rights.

What does all this mean for fracking in the NT?

The Fracking Inquiry strongly supported both kinds of appeal rights “to maintain accountability and integrity in any offshore shale gas industry”.

The Fracking Inquiry was clear about the importance of these appeal rights for the full spectrum of decisions made about fracking (Final Report, section 14.9[1]).

However, because it was looking specifically at the legislation that regulates fracking activities (in accordance with its terms of references), the Inquiry’s recommendations are specific to including these third-party appeal rights in the Petroleum Act and Petroleum (Environment) Regulations.

In committing to implement all 135 recommendations of the Fracking Inquiry in full, the Northern Territory Government has identified that it will be amending the petroleum legislation to include third party appeal rights[2].

This means that appeal rights will still be available for a range of decisions about fracking under the petroleum legislation. This hasn’t changed as a result of yesterday’s decision. These changes remain an important step for accountability in decision-making about fracking. 

However, the only environmental approval required under the petroleum legislation is a more operational type of approval (“environment management plans”) for fracking. This type of approval is focused less on the upfront impacts of the activity as a whole, and more on identifying, mitigating and managing ongoing operational management risks and issues for the environment.

Why is it important for fracking that the appeal rights be retained in the Environment Protection Bill?

While appeal rights against decisions under the petroleum legislation are very important, the reality is that the key approval that will consider the environmental impacts of a large-scale fracking project will be in the new environmental approval issued under the Environment Protection Bill.

This is the upfront project approval. It is at this point in time that the full spectrum of environmental, social and economic impacts of a project in the landscape are identified and evaluated and is the key point at which requirements can be imposed on a fracking company to amend their proposal to reduce its impacts.  

In contrast, the operational environmental approval (the Environment Management Plan issued under the Petroleum (Environment) Regulations) is focused more on managing environmental impacts associated with ongoing operation.

For this reason, EDO considers it extremely important that the same level of appeal rights are included in the Environment Protection Bill, to ensure that there is the level of oversight and accountability anticipated by the Fracking Inquiry.

When preparing the Environment Protection Bill, the Northern Territory Government had originally decided to include appeal rights consistent with those applied specifically to fracking decisions – this was reflected in the version of the Bill released earlier this month. This was an important recognition of the findings of the Fracking Inquiry Final Report and was commendable.

Unfortunately, based on yesterday’s announcement, they have retreated from this position.  

This means that although there will be some appeal rights for fracking, they will not be available for the most significant decision –the granting of an environmental approval.

EDONT will be strongly recommending that the Government reinstate its original approach to judicial review and merits appeal in the Environment Protection Bill.

[1] https://frackinginquiry.nt.gov.au/inquiry-reports?a=494300

[2] See recommendations 14.23 and 14.24 in the Implementation Plan: https://hydraulicfracturing.nt.gov.au/__data/assets/pdf_file/0007/545344/actions-by-recommendation.pdf