Environment Law in the Northern Territory

Environmental impact assessment overview

Introduction

In the Northern Territory, two sets of laws govern environmental impact assessment of proposed activities.  These are:

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 protects parts of the environment that are nationally significant according to the Act (called “matters of national environmental significance” or MNES).  It provides the legal process for the assessment of proposed actions that are likely to have a significant impact on one or more matters of national environmental significance.   The Commonwealth Minister for Environment is responsible for deciding whether a proposed action requires an environmental assessment. At the conclusion of the assessment process, the Commonwealth Minister for Environment makes a decision about whether or not a proposed action will be granted approval to go ahead.

The Northern Territory Environmental Assessment Act applies to all parts of the Northern Territory environment.  Environment is defined to mean ‘all aspects of the surroundings of man [sic] including the physical, biological, economic, cultural and social aspects’.  The Act provides the legal process for assessment of proposals that are capable of having a significant impact on the environment. The Environment Protection Authority is responsible for deciding whether a proposed action requires an environmental assessment in consultation with the Northern Territory Environment Minister (the Minister for Lands, Planning and Environment).

Unlike the Commonwealth Act, the Environmental Assessment Act only enables the Northern Territory Environment Protection Authority to make a recommendation about whether or not a proposed action should go ahead.  The Environment Protection Authority has no power to approve or refuse to approve actions that may have a significant impact on the environment.  The responsibility for approving or refusing an action that may have a significant impact on the environment is given to the Minister who is responsible for approving the type of action in question (the ‘responsible Minister’).  For example, the decision about whether a mining operation can proceed is the responsibility of the Minister for Mines and Energy.

Which environmental impact process applies?

Under the Environment Protection and Biodiversity Conservation Act 1999, an action will require environmental assessment if it is likely that it will have a significant impact on a matter of national environmental significance.  There are Significant impact guidelines that explain what impacts are considered to be significant for each of the matters of national environmental significance.

Under the Environmental Assessment Act, an action will require environmental assessment if the Environment Protection Authority reasonably considers that a matter could be capable of having a significant effect on the environment. The law gives the Environment Protection Authority a high level of discretion to decide whether the environmental impacts of a proposal are significant enough to need environmental assessment.

In the Northern Territory, the only publicly available information about the types of projects that may require formal assessment is the Guide to the Environment Impact Assessment Process in the Northern Territory, published by the Environment Protection Authority. There is little detail in the guidelines to explain how the Environment Protection Authority decides what is of a matter of environmental significance in the Northern Territory.

In May 2013, the Environment Protection Authority published draft guidelines to assist proponents to understand the environmental impact assessment process.

Actions impacting matters of national environmental significance

If a proposed activity is likely to have a significant impact on a matter of national environmental significance, the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 will apply.

Proposed actions that take place on land owned by the Commonwealth or offshore within Australia’s Commonwealth marine areas are assessed under the assessment process set out in the Environment Protection and Biodiversity Conservation Act 1999.

For more information about this environmental impact assessment process, read our Fact Sheet on environmental assessment under the Environment Protection and Biodiversity Conservation Act 1999.

Actions impacting matters of Northern Territory environmental significance

If the Northern Territory Environment Protection Authority decides that a proposed action is capable of having a significant impact on the environment, an environmental impact assessment will be required under the Environmental Assessment Act and the Environmental Assessment Administrative Procedures.

For more information about the the Northern Territory environmental impact assessment process, read our Fact Sheet on environmental impact assessment in the Northern Territory.

Assessment under the bilateral agreement

There is a bilateral agreement between the Commonwealth and the Northern Territory that accredits the Northern Territory environmental impact assessment processes for proposed actions that require approval from the Commonwealth under the Environment Protection and Biodiversity Conservation Act 1999 and from the Northern Territory government.

The bilateral agreement allows the  Commonwealth Minister for Environment to agree that the matters of national environmental significance be assessed by the Northern Territory government in accordance with the bilateral agreement. A form of environmental assessment takes place under the Environmental Assessment Act and the Environmental Assessment Administrative Procedures using what are called ‘modified procedures’.

However, the Commonwealth Minister for Environment is still responsible for making decisions about whether or not to grant approval for the proposed actions that impact matters of national environmental significance. Therefore, where the bilateral agreement is applied, the assessment is done at a Northern Territory government level but the approval for actions impacting matters of national environmental significance is still done at a Commonwealth government level.

For more information, read our Fact Sheet on environmental impact assessment under the bilateral assessment process.

How does the public find out about a proposal and which form of assessment process will be used?

Under the Northern Territory Environmental Assessment Act and Environmental Assessment Administrative Procedures, members of the public will only find out about a proposal if the Environment Protection Authority decides that a form of environmental assessment is necessary.  This is because proposals that are referred to the Environment Protection Authority are not publicly advertised, and there is no opportunity for public comment unless the Environment Protection Authority decides that environmental assessment will proceed.

If the Environment Protection Authority decides that a proposal will be subject to environmental assessment, the Environment Protection Authority must notify the public of the form of environmental assessment in the newspaper.  Members of the public have 14 days from the date of the notice being placed in a newspaper to comment on the scope of the proposed environmental impact assessment.

Under the Environment Protection and Biodiversity Conservation Act 1999  all actions which are likely to have a significant impact on a matter of national environmental significance must be referred to the Commonwealth Government Department of Sustainability, Environment, Water, Populations and Communities.  Referral documents can be viewed online on the Invitations to Comment webpage of the Department of Sustainability, Environment, Water, Population and Communities.  People have the right to make comments on a referral within 10 business days.  This deadline is strict, so it is important to make comments within 10 business days.  The Department of Sustainability, Environment, Water, Populations and Communities website has guidance on how to search for referral documents and how to make comments.  Referral documents are available for public comment, whether or not the assessment process takes place under the Environment Protection and Biodiversity Conservation Act 1999 or the bilateral agreement.