Approval Bilateral Agreements under the EPBC Act – the NSW Agreement explained
Introduction
The Australian Government is committed to delivering a one stop shop for environmental approvals. This will simplify the approvals process, ensuring that only one environmental approval that covers both Commonwealth and state requirements is needed for an action. Many actions previously required approval at both the Commonwealth and state or territory level.
Memoranda of understanding have been signed with each state and territory, setting out governments’ commitment to the process, timing for implementation of the policy, and key principles. One of the objectives of the process is to develop a bilateral agreement for accrediting NSW processes under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’).
This document explains how the draft approval bilateral agreement for NSW is intended to operate. It outlines the key components of the agreement.
Commonwealth environmental regulation in Australia
The EPBC Act is the Commonwealth’s central piece of environmental legislation. It provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities, Ramsar wetlands and heritage places. Under this legislation, the Commonwealth is responsible for assessing and approving actions, such as mines or port developments, which may impact on the nine matters of national environmental significance.
The Commonwealth’s responsibilities can overlap with separate state processes. Proponents often need to engage with two governments to obtain environmental approval to undertake an activity. This overlap can be reduced if the Commonwealth enters into an approval bilateral agreement with a state or territory so that the state covers both Commonwealth and state requirements.
Section 45(2) of the EPBC Act enables the Minister (on behalf of the Commonwealth) to enter into a bilateral agreement with a state or territory that provides for one or more of the following:
a. protecting the environment
b. promoting the conservation and ecologically sustainable use of natural resources
c. ensuring an efficient, timely and effective process for environmental assessment and approval of actions
d. minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the assessment or approval processes of the state or territory (or vice versa)
An approval bilateral agreement allows the state or territory to assess and approve (or decide to not approve) proposed actions that are likely to have a significant impact on a matter of national environmental significance. In the absence of such an agreement, these proposals would require a separate assessment and decision by the Commonwealth under the EPBC Act.
For actions that are within the scope of an approval bilateral agreement – that is, actions that have been assessed and approved in accordance with an ‘accredited authorisation process’ – no additional assessment or approval of the action is required under the EPBC Act.
An accredited authorisation process is a state or territory environmental assessment and approval process which has been assessed by the Commonwealth as meeting the requirements of the EPBC Act, and accredited by the Commonwealth Environment Minister for the purposes of an approval bilateral agreement (http://www.environment.gov.au/topics/environment-protection/environment-assessments/bilateral-agreements/nsw).
The agreement for NSW comprises the following components:
· Body of the agreement – outlines how the potential impacts of actions on matters of national environmental significance are to be assessed and addressed under accredited NSW authorisation processes set out in the laws of NSW, and includes provisions to help ensure that unsustainable or unacceptable impacts on matters of national environmental significance are avoided
· Schedule 1 – outlines which actions in NSW will not require approval under the EPBC Act, and the accredited authorisation processes by which those actions will be assessed and approved or not approved
· Schedules 2-4 – outline further commitments for cooperation between jurisdictions to support the objectives of the agreement and the one stop shop policy
Additional details regarding the key components of the agreement are detailed below.
Introduction: Parties, Background and Objects
The introductory sections provide context for the operation of the agreement. These clauses set out the parties to the agreement, and relevant context for Commonwealth and state roles and responsibilities, and the overall purpose of the agreement.
1. Definitions and interpretation
This clause includes definitions, and the general principles of interpretation that apply to the agreement.
2. Nature of this agreement
This clause meets the requirement in section 45(2)(b) of the EPBC Act that a bilateral agreement must be ‘expressed to be a bilateral agreement’, and clarifies that it is not intended to create any legal obligations between the parties other than as provided in the EPBC Act, in particular, contractual obligations. The EPBC Act provides that an approval bilateral agreement has a legal effect – which is that proposed actions will not need to be approved under the EPBC Act if they are approved under an accredited state authorisation process.
3. Agreement period
This clause provides for the agreement to commence when signed by both parties and to continue unless the agreement is cancelled in accordance with the EPBC Act or rescinded or revoked by further agreement between the parties.
While it operates, the agreement must also be subject to periodic review, under both section 65 of the EPBC Act and clause 12 of the agreement.
4. Effect of this agreement
This clause includes a declaration that actions in the class of actions specified in Schedule 1 do not require approval under the EPBC Act and identifies the matters of national environmental significance to which the declaration applies. This declaration meets the requirements of section 46(1) of the EPBC Act. The clause also identifies the actions that are included or excluded from the scope of the agreement. This clause sets out the position relating to scope, including:
· the action must occur in NSW or its coastal waters
· where an action occurs in more than one jurisdiction (for example, where a highway upgrade project crosses state boundaries), the relevant jurisdictions will work together to coordinate assessment and approval processes
· the agreement does not apply to actions that occur in a Commonwealth area, or actions that are undertaken by the Commonwealth or a Commonwealth agency
· the agreement does not apply to actions that have already been approved (or taken to be approved), refused, or determined to be clearly unacceptable by the Commonwealth Minister
Actions that are being assessed under the EPBC Act when the agreement commences will not be covered by the agreement, unless the proponent of those actions decides to withdraw the action from the Commonwealth process and have it assessed and approved under an accredited state process.
5. Assessment
This clause is included to ensure that an adequate assessment of an action is undertaken to meet EPBC Act standards (http://www.environment.gov.au/resource/standards-accreditation-environmental-approvals-under-environment-protection-and). This includes ensuring that:
· proponents have early notice of whether an accredited authorisation process would apply and ensuring that proponents identify the likely impacts on matters of national environmental significance
· there is sufficient information on the impacts of an action for the decision-maker to make an informed decision
· the level of assessment is proportionate to the level of environmental risk
· the Assessment Report includes (or identifies the source of) the information and opinion on which an assessment is based
This clause also includes requirements that NSW seek and take into account expert advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development in relation to coal seam gas or large coal mining developments that are likely to have a significant impact on water resources
The agreement also provides that NSW may seek advice from the Commonwealth on Australia’s international obligations as these relate to matters of national environmental significance, or other expert advisory bodies established under the EPBC Act.
The agreement also gives effect to section 48A(2) of the EPBC Act in providing an undertaking that the state will assess, to the greatest extent practicable, the environmental impacts of certain actions on things other than matters of national environmental significance.
6. Decisions on approval
The intent of this clause is to ensure that decision making in relation to actions that are likely to have a significant impact on a matter of national environmental significance is robust and meets EPBC Act requirements, and unacceptable or unsustainable impacts on matters of national environmental significance are avoided. It outlines the key requirements for making an approval decision under the agreement.
Clause 6 includes a commitment by NSW to apply the ‘avoid, mitigate, offset’ hierarchy to guide the assessment and approval of actions that relate to matters of national environmental significance. For those matters, clause 6 also:
· includes details of the approach that will be taken to the application of environmental offsets
· ensures approvals are not inconsistent with relevant plans
· ensures the consideration of Commonwealth policies and guidelines
· includes the requirement for approval documentation to explicitly identify any relevant conditions
The ‘avoid, mitigate, offset’ hierarchy of principles is defined in accordance with the definitions in the EPBC Act Environmental Offsets Policy (2012), the Commonwealth’s offset policy (http://www.environment.gov.au/resource/epbc-act-environmental-offsets-policy). The clause specifies the two approaches to offsets that NSW will apply in order to achieve this intent. To support this, the transitional review of this agreement referred to in clause 12.2 will include a review of the effectiveness of the Draft NSW Biodiversity Offsets Policy in meeting the relevant objects of the agreement, including whether measures are in place to ensure that long-term environmental outcomes are being achieved.
Where a residual significant impact cannot be adequately addressed by applying an offset, NSW will apply the escalation process set out in clause 16 of the agreement. This approach is consistent with the Commonwealth’s proposed assurance framework.
NSW decision-makers must not make approval decisions that are inconsistent with certain EPBC Act plans or policies, Australia’s obligations under relevant international treaties and, for world heritage, national heritage and Ramsar wetlands, the relevant management principles. This reflects sections 51 to 54 of the EPBC Act. If either party forms the opinion that there may be an inconsistency between a proposed decision by NSW to approve an action in accordance with NSW law and Australia’s international obligations or treaties, that party may determine that the action is not one to which the agreement applies.
Consistent with the Memorandum of Understanding, NSW decision-makers will take into account Commonwealth policies relating to matters of national environmental significance when assessing and deciding whether to approve actions.
The clause also requires that policies be taken into account as published from time to time if they are identified in the Administrative Arrangements between the parties. Cooperative arrangements for the ongoing development of plans and policies are set out in Schedule 3 of the agreement.
Decision-makers must consider statutory plans and policies relevant to listed threatened species and ecological communities and listed migratory species. Such statutory plans and policies are intended to promote the survival of, and enhance the conservation status of, each listed species or community. This is an issue which the Commonwealth Minister must consider when deciding to enter an agreement or accredit an authorisation process (sections 53(1)(b), 53(2)(b), 54(1)(b) and 54(2)(b)).
Any approval conditions relating to matters of national environmental significance must be explicitly identified in the approval documentation.
7. Transparency and access to information
The intent of clause 7 is to ensure that there is transparency in process and access to information, noting the specific considerations of Indigenous peoples and particular needs groups.
Assessments and decisions must recognise the role and interests of Indigenous peoples in promoting conservation and ecologically sustainable use of natural resources and promote the cooperative use of Indigenous peoples’ knowledge of biodiversity and Indigenous heritage (reflecting the objects of the EPBC Act (see sections 3(1)(f) and 3(1)(g) respectively)).
NSW is required to ensure that the views of Indigenous peoples are treated as the primary source of information on the value of Indigenous cultural heritage to which a particular matter of national environmental significance relates. This requirement reflects the National Heritage management principles (see clause 6 of Schedule 5B to the EPBC Regulations). NSW must also take reasonable steps to obtain the views of Indigenous peoples in relation to a proposed action that is likely to have a significant impact on any matter of national environmental significance that relates to Indigenous cultural heritage.
NSW is required to have regard to guidelines published by the Commonwealth in relation to consultation with Indigenous peoples. The Commonwealth proposes to develop guidance in cooperation with NSW.
NSW is required to publish information relating to proposed actions, including approval decisions, assessment reports, and guidance material on the Internet. Under Schedule 4 of this agreement, the parties have also committed to further explore the alignment between Commonwealth and NSW Indigenous consultation requirements.
NSW will endeavour to make special arrangements to ensure groups with particular communication needs have an adequate opportunity to access assessment and approval documentation and to provide comment. Groups with particular communication needs include those with a vision or hearing impairment, those who are illiterate or for whom English is a second language, and those who, because of a disability, have difficulty accessing paper documentation or using a computer.
To ensure that matters of national environmental significance are considered in their national context, decision-makers must accept comments or submissions on proposed actions from anyone in Australia, if those comments or submissions are made in accordance with the requirements of the accredited authorisation process. Transparent assessment and decision-making processes are an important mechanism for ensuring that the objects of the agreement and the EPBC Act, and the ongoing responsibilities of the Commonwealth, continue to be met.
The consideration and publication of public comments will be undertaken by NSW in accordance with the relevant accredited process.
8. Cooperation
The intent of this clause is to ensure co-operation and communication between the parties in the application of this agreement.
Where the Commonwealth becomes aware of a proposed action that may require assessment and approval under an accredited process, it will notify NSW.
This clause, in conjunction with Schedule 2, supports the goal of improving environment outcomes by ensuring adequate information is collected and available to both the public and government. The provision of this information will underpin the implementation of the Commonwealth’s assurance framework.