This article applies to organisations that carry out actions in the Northern Territory which will or could have a significant impact on the environment.
Environment Protection Act 2019 (NT); Environment Protection Regulations 2020 (NT)
The Environment Protection Act 2019 (NT) (the Act) and the Environment Protection Regulations 2020 (NT) (the Regulations) commenced on 28 June 2020.
The Act and Regulations have overhauled and modernised the environmental regulatory system in the Northern Territory (NT) by improving the environmental impact assessment process and introducing a new approval system for certain proposed actions by proponents. Under the Act, a proponent means a person proposing to carry out, or carrying out, an action, who must have regard to environmental objectives under regulation 78 of the Regulations. The Act brings the NT’s environment protection laws in line with the other Australian states and territories. The previous Environment Assessment Act 1982 (NT) which was only 9 pages and did not contain any compliance obligations has been repealed.
The most significant changes have been set out below.
Environmental impact assessment
The Act establishes an environmental impact assessment process that is designed to stop actions that would have an unacceptable impact on the environment. Under the new process, the Northern Territory Environment Protection Authority (NT EPA) will analyse actions that have the potential to significantly impact the environment.
Organisations, as proponents, must refer a proposed action to the NT EPA if that action has or could have a significant impact on the environment or if the action meets a referral trigger.
The significant impact of an action is an impact of major consequence having regard to:
- the context and intensity of the impact; and
- the sensitivity, value and quality of the environment impacted on and the duration, magnitude and geographic extent of the impact.
A referral trigger is either a type of activity that would likely significantly impact the environment or a location that is likely to be subject to significant impact by actions. Referral triggers will be declared under the Act, however, currently, no referral triggers have been declared.
Depending on the proposed action referred to it, the NT EPA will determine how the assessment will be conducted. It can be done in the following ways:
- by referral information;
- by supplementary environmental report,
- by environmental impact statement; or
- by inquiry.
Each of these assessment methods varies in the amount of public or community consultation required and the requirements for the proponent.
Proponents of actions have general duties under the new environmental impact assessment process including:
- to provide communities that may be affected by a proposed action with information and opportunities for consultation to assist each community’s understanding of the proposed action and its potential impacts and benefits;
- to consult with affected communities, including Aboriginal communities, in a culturally appropriate manner;
- to seek and document community knowledge and understanding (including scientific and traditional knowledge and understanding) of the natural and cultural values of areas that may be impacted by the proposed action;
- to have regard to the environmental objectives when doing anything required of the proponent under the process;
- to consider the principles of ecologically sustainable development, the environmental decision-making hierarchy and waste management hierarchy in the design of the proposed action; and
- to notify the NT EPA of a significant variation of the proposed action.
The NT EPA has released guidance to assist proponents subject to the new environmental impact assessment process.
If a proposed action is referred to the NT EPA for an environmental impact assessment, the action cannot go ahead unless the NT EPA gives the proponent an environmental approval. This is significant, as environmental approval has not been required previously in the NT.
Approval may also be subject to conditions. The failure to comply with these conditions or acting without approval could attract a penalty for an individual of a fine of up to 3,850 penalty units (currently $608,300) or 5 years imprisonment or for a body corporate a fine of up to 19,240 penalty units (currently $3,039,920).
If the NT EPA suspects that an approval holder has or is likely to contravene their approval, it may also direct the holder to cause an environmental audit to be conducted.
Duty to notify incidents
The Act requires organisations to notify the NT EPA if they become aware of an incident that has occurred at a site at which:
- an action is being carried out under an environmental approval; or
- a proposed action is undergoing environmental impact assessment; and
- that incident causes or threatens material environmental harm or significant environmental harm.
The organisation must notify the NT EPA in the approved way as soon as practicable and in any case within 24 hours.
The failure to notify the NT EPA of an incident could attract a penalty for an individual of a fine of up to 3,850 penalty units (currently $608,300) or 5 years imprisonment or for a body corporate a fine of up to 19,240 penalty units (currently $3,039,920).
The Act also creates a number of offences for occupiers or land, employers and executives.
Under section 263 of the Act, an occupier of land must take reasonable steps and exercise due diligence to prevent a specified environmental offence occurring on the land. The occupier of land will be taken to have committed a specified environmental offence if a person commits a specified environmental offence and the offence occurs wholly or partly on the land or part of the land.
Under 265 of the Act, in certain circumstances, an executive officer of a body corporate commits an offence if the body corporate commits a relevant offence.
Under section 267 of the Act, conduct engaged in on behalf of a person other than a body corporate (the employer) by an employee or agent of the employer within the scope of the employee or agent’s actual or apparent authority is taken to have been engaged in also by the employer.
The changes introduced by the Act and Regulations are considerable and only the most significant have been discussed above. Relevant staff should be made aware of the new environmental assessment process and the role the organisation plays in it. Organisations should also implement systems to ensure that they comply with the new obligations on proponents and approval holders as discussed above.
For further information please contact the Law Compliance team:
Phone: 1300 862 667