Castledine Gregory Law and Mediation

New Assessment Bilateral Agreement under EPBC Act Released for Comment

Content

A draft new assessment bilateral agreement under the Commonwealth’s Environment Protection and Biodiversity Act 1999 (EPBC Act) has been released for public comment, with submissions due by 27 June 2014.

 

Background

 

The EPBC Act regulates actions which are likely to have a significant impact on a matter of national environmental significance.  Such actions (or developments) generally require the approval of the Commonwealth Minister for Environment, as well as approval under the relevant state’s or territory’s environmental laws.

 

In Western Australia, the Environmental Protection Act 1986 (EP Act) regulates developments which are likely to have a significant impact on the environment. Such developments are assessed under the EP Act by the Environmental Protection Authority (EPA) and the CEO of the Department of Environment Regulation (DER).

 

As a consequence of the overlap between the EPBC Act and the EP Act, proponents may need to comply with duplicative environmental assessment requirements and conditions of approval. This duplication has been recognised by the Commonwealth Minister for Environment, who is endeavouring to create a “one-stop shop” for environmental assessments and approvals within each state and territory in Australia.

 

As part of establishing this “one-stop shop”, the Commonwealth and Western Australian Governments are proposing to enter into two new bilateral agreements: one concerning environmental assessments and the other concerning environmental approvals.

 

New Assessment Bilateral Agreement

 

A draft new assessment bilateral agreement was released for public comment on 20 May 2014. Once the new assessment bilateral agreement comes into effect, it will replace the existing assessment bilateral agreement.

 

Both the existing and draft new assessment bilateral agreements enable the Commonwealth Government to rely on the assessments of developments undertaken by the EPA and the DER. However, there are some important differences, which include:

 

  • A new obligation requiring the Western Australian and Commonwealth Governments to work together to ensure Commonwealth conditions are strictly limited to matters not addressed in the Western Australian Government’s assessments and approvals;
  • A new obligation requiring the Western Australian Government to use its best endeavours to inform proponents that an action may need to be referred to the Commonwealth Minister under the EPBC Act;
  • The Commonwealth Government is no longer obliged to reimburse the Western Australian Government for its costs of implementing the assessment bilateral agreement;
  • The new agreement explicitly states that the Western Australian Government may request advice from Commonwealth Government agencies; and
  • The new agreement amends the classes of actions which are covered by the assessment bilateral agreement, including by expanding it to cover certain types of native vegetation clearing.

 

Submissions on the draft assessment bilateral agreement are due by 27 June 2014.  More information on how to make a submission is available at http://www.environment.gov.au.

 

At this time, no further information has been provided on the status of the approvals bilateral agreement, which would enable the Western Australian Government to issue approvals under the EPBC Act, rather than merely assessing the impacts of developments for the purposes of the EPBC Act.

 

The approvals bilateral agreement is due to be finalised by December 2014.

 

For further information, contact Castledine Gregory.