Draft ACT Approval Bilateral Agreement

draft approval bilateral agreement

made under sections 45 and 46 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Commonwealth of Australia

(Commonwealth)

and

The Australian Capital Territory

(ACT)

Bilateral Agreement under sections 45 and 46, EPBC Act Draft as at 03/06/20141

DRAFT

Table of contents

Details

Provisions

1.Definitions and interpretation

2.Nature of this Agreement

3.Agreement Period

4.Effect of this Agreement

5.Assessment

6.Decisions on approval

7.Transparency and access to Information

8.Co-operation

9.Heritage management plans

10.Administrative Arrangements

11.Reports

12.Review

13.Sharing Information – ongoing EPBC Act matters

14.Audits

15.Rectification

16.Escalation

17.Suspension or cancellation

18.Amendment

19.Freedom of information

20.General provisions

Schedule 1 – Declared class of actions

Schedule 2 – Open access to Information

Schedule 3 – Guidance documents for Matters of National Environmental Significance

Schedule 4 – Additional streamlining measures

Execution page

Bilateral Agreement under sections 45 and 46, EPBC Act Draft as at 03/06/20141

DRAFT

Details

Parties

The parties to this Agreement are:

1. the Minister for the Environment for and on behalf of the Commonwealth of Australia (Commonwealth); and
2. the Chief Minister for and on behalf of the Australian Capital Territory (ACT).

Background

A.Under the Intergovernmental Agreement on the Environment 1992 and the Council of Australian Governments Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment 1997, the parties committed to working together across their shared responsibilities to protect and conserve Australia’s environment.

B.Both the Commonwealth and the ACT are committed to cooperative efforts to strengthen intergovernmental cooperation on the environment and to minimise costs to business while maintaining high environmental standards.

Objects

C.Under the Memorandum of Understanding dated 19 December 2013, the Commonwealth and the ACT committed to the establishment of a ‘one-stop-shop’ for environmental approvals under the EPBC Act, removing duplication of assessment and approval processes while maintaining high environmental standards.

D.This Agreement facilitates the establishment of a ‘onestop shop’ for environmental approvals by:

1. identifying the ACT authorisation processes that maybe accredited by the Commonwealth Minister under section 46 of the EPBC Act; and
2. declaring that the actions in the class of actions specified in Schedule 1 do not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Schedule 1.

E.This Agreement aims to:

1. ensure Australia complies fully with all its international environmental obligations;
2. ensure matters of national environmental significance are protected as required under the EPBCAct;
3. promote the conservation and ecologically sustainable use of natural resources;
4. ensure an efficient, timely and effective process for environmental assessment and approval of actions; and
5. minimise duplication in the environmental assessment and approval processes of the Commonwealth and the ACT.

F.The parties will use their best endeavours to implement the commitments in this Agreement acting in a spirit of cooperation and consultation to achieve an efficient, timely and effective process for environmental assessment and approval.

Provisions

1.Definitions and interpretation

1.1Definitions

In this Agreement, except where the contrary intention is expressed, terms have the same meaning as in the EPBC Act and otherwise the following definitions are used:

1.2Interpretation

In this Agreement, except where the contrary intention is expressed:

(a)the singular includes the plural and vice versa, and a gender includes other genders;

(b)another grammatical form of a defined word or expression has a corresponding meaning;

(c)the meaning of general words is not limited by specific examples introduced by ‘for example’ or similar expressions;

(d)a reference to a clause, paragraph, Schedule or annexure is to a clause or paragraph of, or Schedule or annexure to, this Agreement;

(e)a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, reenactments or replacements of any of them; and

(f)notes and headings are for convenient explanation or reference only and do not form part of this Agreement or affect the meaning of the provisions to which they relate.

1.3Priority of Agreement documents

(a)If there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(i)Schedule 1; then

(ii)the details and operative provisions of this Agreement; then

(iii)theremaining Schedules in their order of appearance.

(b)Administrative Arrangements will be read subject to this Agreement.

2.Nature of this Agreement

(a)This Agreement is a bilateral agreement for the purposes of section 45 of the EPBC Act.

(b)The parties do not intend this Agreement to create contractual or other legal obligations between the parties, other than as provided for in the EPBC Act.

(c)Transitionalsupport from the Commonwealth in the form of embedded officers will be provided in accordance with the Administrative Arrangements.

3.Agreement Period

This Agreement commences on the Commencement Date and continues until it is rescinded or revoked by further agreement between the parties or it is cancelled in accordance with the EPBC Act.

Note: Section 65(2) of the EPBC Act requires the Commonwealth Minister to cause a review of the operation of this Agreement to be carried out at least once every five years while this Agreement remains in effect. The operation of provisions of this Agreement may also be suspended under the EPBC Act for a period of time specified in a notice of suspension.

4.Effect of this Agreement

4.1Declaration

Subject to clause 4.2, it is declared that an action does not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Item2 of Schedule 1 to this Agreement if the action is in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

4.2Scope

(a)Clause 4.1applies to an action which occurs within the ACT.

(b)Wherean action forms part of a larger action that does not occur wholly within the ACT, the ACT will consult and use its best endeavours to coordinate its assessment and approval processes with other relevant jurisdictions.

(c)Consistent with section 49 of the EPBC Act, the provisions of this Agreement do not have effect in relation to:

(i)an action in a Commonwealth area;

(ii)where an action is not wholly within a Commonwealth area – that part of the action that is in a Commonwealth area; or

(iii)an action taken by the Commonwealth or a Commonwealth agency unless expressly provided for in the class of actions specified in Item 4 of Schedule 1 to this Agreement.

(d)This Agreement does not apply to an action if:

(i)the taking of that action was approved, was taken to have been approved, or was refused under Part 9 of the EPBC Act, or determined to be clearly unacceptable under Division 1A of Part 7; and

Note: Section 146D of the EPBC Act provides that an approval under section 146B of the EPBC Act is taken to be an approval under Part 9 of the EPBC Act.

(ii)that approval, refusal or determination that an action is clearly unacceptable remains in force.

(e)The declaration in clause 4.1 does not apply to an action in the ACT that was referred under Part 7 of the EPBC Act to the Commonwealth Minister before the Commencement Date, unless the referral of the action has been, or is, withdrawn under section 170C of the EPBC Act, or has lapsed, or lapses under section 155 of the EPBC Act.

(f)To avoid doubt, the declaration in clause 4.1 does not apply to an action that is substantially the same as an action the taking of which was refused, or determined to be clearly unacceptable, under the EPBC Act, as referred to in clause 4.2(d).

5.Assessment

5.1Identification of impacts on Matters of NES

(a)If approvalis sought for an action under an Accredited Process, the ACT will:

(i)notify the proponent of the action that there may be no requirement for an approval of the action under Part 9 of the EPBC Act; or

(ii)require the proponent of the action to identify the likely impacts on each Matter of NES.

(b)If approval is sought, other than under an Accredited Process, the ACT will notify the proponent of the action of their obligation under the EPBC Act to refer an action which is likely to have a significant impact on a Matter of NES to the Commonwealth Minister.

Note 1: The notification under clauses 5.1(a)(i)and (b) may be undertaken in accordance with standard guidelines, which outline the obligation of proponents to consider the application of the EPBC Act where an action is likely to have a significant impact on a Matter of NES, and, if that Act may apply, to obtain an approval under an Accredited Process or, if such a process is not likely to or will not apply, to refer the proposal for a decision under section 75 of the EPBC Act.

Note 2: The requirement to identify impacts on Matters of NES in an application referred to in clause 5.1(a)(ii) may be included in guidelines or standard templates for applications.

5.2Undertaking to assess impacts on Matters of NES

(a)The ACT undertakes to ensure that there will be an adequate assessment of the impacts that actions that may be approved in accordance with an Accredited Process:

(i)have or will have; or

(ii)are likely to have,

on each Matter of NES.

(b)For the purpose of clause 5.2(a), the impacts on a Matter of NES are adequately assessed if:

(i)they are assessed in accordance with applicable ACT Laws and to the extent permitted by those Laws (whether expressly or impliedly); and

(ii)they are assessed in accordance with clause 5.3.

Note: ‘Impacts’ include direct and indirect impacts, as defined in section 527E of the EPBCAct.

5.3General approach to assessment

Where a proposed action may be approved in accordance with an Accredited Process:

(a)the ACT will, in determining the assessment requirements for the proposed action, ensure that there is sufficient Information on the relevant impacts of the proposed action to allow the decision-maker to make an informed decision whether or not to approve the proposed action and, if so, under what conditions. The extent of the assessment will be proportionate to the level of likely environmental risk; and

(b)the ACT will ensure that:

(i)all relevant impacts of the action on Matters of NES are identified separately in the assessment process. This means that impacts must be explicitly assessed for each Matter of NES that is likely to be significantly impacted upon by the action;

(ii)in relation to listed threatened species, listed threatened ecological communities and listed migratory species – impacts are assessed with regard to the full extent of those matters’ range; and

Note: For example, clause 5.3(b)(ii) would require an assessment of impacts with regard to the national extent of a listed threatened species’ habitat.

(iii)the Information and opinion on which the assessment is based is included, or its source identified, in the Assessment Report.

5.4Seeking expert advice

(a)The ACT may seek advice from the Commonwealth on Australia’s international obligations as they relate to Matters of NES. The advice will be sought, as agreed by the Senior Officers’ Committee, with details to be set out in the Administrative Arrangements.

(b)The ACT may seek advice from expert advisory bodies established under the EPBC Act or from the Department, as agreed by the Senior Officers’ Committee, with details to be set out in the Administrative Arrangements.

5.5Statutory undertaking

Where an action:

(a)is taken or proposed to be taken in the ACT; and

(b)is covered by the declaration in clause 4.1,

the ACT undertakes to ensure that the impacts that the action has, will have, or is likely to have on a thing which is not a matter protected by a provision of Part 3 of the EPBC Act, are assessed to the greatest extent practicable.

6.Decisions on approval

6.1Avoid, mitigate, offset hierarchy

(a)To avoid unacceptable or unsustainable impacts on Matters of NES, the ACT will:

(i)apply the ‘avoid, mitigate, offset’ hierarchy of principles for guiding the assessment and approval of a proposed action under an Accredited Process; and

(ii)if a residual significant impact cannot be offset consistent with clause 6.2 –the ACT will apply the escalation process set out in clause 16.1(a), as if there were a dispute between the parties.

(b)For the purposes of clause 6.1(a)(i) of this Agreement, the ‘avoid, mitigate, offset’ hierarchy of principles are the following in order from clause 6.1(b)(i) to (iii):

(i)significant impacts on Matters of NES should be avoided;

Note: For example, changing the route of a proposed access road to avoid impacts on an endangered ecological community may comprise an avoidance measure.

(ii)after all reasonable avoidance measures have been put in place, mitigation of any residual significant impacts on Matters of NES must be undertaken; then

Note: For example, putting in place measures to reduce sediment runoff from a development site that may otherwise affect a threatened fish species may comprise a mitigation measure.

(iii)once all reasonable avoidance and mitigation measures have been applied, or reasons are made public as to why avoidance or mitigation of residual significant impacts on Matters of NES is not reasonably achievable, the ACT will require offsets in accordance with clause 6.2 for those impacts.

6.2Offsets

(a)For the purposes of clause 6.1(b)(iii), the ACT will apply the ACT Offsets Policy, including use of the ACT Environmental Offsets Calculator or the Offsets Assessment Guide under the EPBC Act Environmental Offsets Policy.

Note: The ACT Offsets Policy provides for the application of the ACT Environmental Offsets Calculator, and in certain cases, application of the Offsets Assessment Guide under the EPBCAct Environmental Offsets Policy.

(b)For the purposes of clause 6.2(a), the ACT will apply an offset that delivers an outcome equivalent to, or better than, the outcome that would result from application of the EPBC Act Environmental Offsets Policy.

(c)If:

(i)the relevant decision-maker considers that a proposed offset (which may include proposed offsets for a region or class of development) is consistent with the EPBC Act Environmental Offsets Policy but not with the outcome indicated by theACT Environmental Offsets Calculator, or the OffsetsAssessment Guideunder the EPBC Act Environmental Offsets Policy(whichever applies in accordance with the ACT Offsets Policy and associated guidelines)because of the unique nature of the impact or a proposed offset; and

(ii)the Commonwealth Minister agrees that the proposed offset would provide an acceptable environmental outcome consistent with the objects of the EPBC Act,

the relevant decision-maker may apply the proposed offset referred to in clause 6.2(c)(i).

(d)The ACTwill publish Information showing how the offset applied under clause6.2(a) or 6.2(c) was derived.

(e)Where relevant, offsets may contribute to the biodiversity conservation priorities of the Commonwealth and the ACT governments, identified in plans or other instruments mentioned in clauses 6.3and 6.4, or identified in accordance with the Administrative Arrangements.

(f)The ACT will provide Information on offsets, including the nature and location of the offset, consistent with arrangements for Information exchange detailed in Schedule 2.

(g)To ensure that offsets derived in accordance with this clause 6.2 are delivering long-term environmental outcomes for relevant Matters of NES in accordance with the objects of the EPBC Act, the evaluation of this Agreement referred to in clause 10.2 may include a review of the effectiveness of the ACT Offsets Policy, in meeting the objectives of this clause 6.2.

(h)The ACT will consult with the Commonwealth before changing the ACT Offsets Policy and associated methodologies.

(i)A reference in this clause 6.2 to:

(i)the EPBC Act Environmental Offsets Policy and the Offsets Assessment Guide under the EPBC Act Environmental Offsets Policy, includes a reference to that Policy or Guide as adopted and amended from time to time;

(ii)the ACT Offsets Policy is a reference to the policy titled the ACT Environmental Offsets Policyand published by the Environment and Sustainable Development Directoratefor the ACT Government in August2014, and includes a reference to that Policy as adopted and amended from time to time; and

(iii)the ACT Environmental Offsets Calculator, is a reference to the ACT Environmental Offsets Calculator and the Environmental Offset Assessment Methodology referred to in theACT Offsets Policy, as adopted and amended from time to time.

Note: The ACT may provide notice to the Commonwealth if it proposes to make a decision that is different to the requirements of this clause 6.2 and, if so, escalation procedures apply as provided for by clause 16.