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Draft approval bilateral agreement for NSW and Qld
More efficient environmental assessments and approvals processes are on the way with proposed changes to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the proposed introduction of new draft approvals bilateral agreements for New South Wales and Queensland. The draft approvals bilaterals were released in conjunction with the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation Bill) 2014 (Cth) (Bill).
Approvals bilaterals effectively allow a State approval to double as an EPBC Act approval (not to be confused with assessment bilateral agreements, which have been in place around Australia for some time). Close observers will recall amendments to the EPBC Act which sailed through in 2013 together with the introduction of the water trigger, which effectively barred approvals bilaterals from applying to large coal mining and coal seam gas projects likely to have a significant impact on water. Critically, this bar would be lifted under the Bill if passed. This amendment would greatly increase the use of any approvals bilateral agreements in relation to resources projects.
New South Wales
The Draft Approval Bilateral Agreement between the Commonwealth and NSW (Draft NSW Agreement) accredits various NSW environmental assessment and approval processes. Currently, the relevant assessment processes are already accredited under the existing bilateral agreement, but the approvals bilateral would mean that no separate approval is required under the EPBC Act for a project to proceed, if the terms of the agreement are met. In NSW, ‘accredited processes’ for the purposes of the bilateral agreement will include the process for:
- the making of a determination by a consent authority to grant development consent or to modify a development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), including State significant development
- the making of a decision by the Minister to approve State significant infrastructure (SSI) or modify an approval for SSI under Part 5.1 of the EPA Act, and
- project approval and granting of modifications under section 75W of the former Part 3A of the EPA Act for transitional Part 3A projects.
Authorisations processes also include actions authorised by the grant or variation of a licence under:
- Part 6 of the Threatened Species Conservation Act 1995 (NSW), and
- Part 7A of the Fisheries Management Act 1994 (NSW).
The above proposed ‘accredited processes’ must be allowed by both Houses of Parliament. It will be interesting to follow how this is managed through the Senate.
Importantly, the relevant NSW consent authority must refer any coal seam gas or large coal mining developments that are likely to have a significant impact on water resources to the Independent Expert Scientific Committee for Coal Seam Gas and Large Coal Mining Development (IESC). Advice from the IESC must be taken into account in deciding whether or not to approve an action.
The processes under the bilateral agreement will not be available to actions already approved under the EPBC Act or to actions that have been refused, or determined to be clearly unacceptable, under the EPBC Act. Any current referrals that are being assessed by the Commonwealth will remain within the scope of the Commonwealth approval process unless withdrawn by the proponent (in which case the proponent may elect to have the application dealt with under state laws once the approval bilateral agreement is operational). The Bill sets out a transitional process whereby the project may be referred to the Commonwealth, in the event of a project undergoing assessment and the bilateral agreement is no longer applicable, or is cancelled or suspended.
On 14 May 2014, the Draft Approval Bilateral Agreement between the Commonwealth and the Queensland State Government (Draft Qld Agreement) was released for public comment. The Draft Qld Agreement is broadly similar to the Draft NSW Agreement. Under the Draft Qld Agreement, the Queensland Government can assess and approve proposed actions likely to have a significant impact on a matter of national environmental significance (MNES) through identified classes of actions and State authorisation processes. This removes the need for separate assessment and decision by the Commonwealth under the EPBC Act.
The Draft Qld Agreement would apply to assessment and issuing of:
- environmental authorities for resource projects for which an Environmental Impact Statement has been prepared under the Environmental Protection Act 1994 (Qld), and
- environmental approvals required for a project declared to be coordinated projects under the State Development and Public Works Organisation Act 1971 (Qld).
The term ‘environmental approvals’ is not defined and could apply to a number of approvals relevant to coordinated projects. However, the Draft Qld Agreement will not apply to any actions which have already been referred but not decided under the EPBC Act (unless the referral is withdrawn or lapsed) before the date the final approval bilateral agreement commences. The Draft Qld Agreement will require the State Government to seek and take into account expert advice from the:
- Great Barrier Reef Marine Park Authority, for actions that are within or likely to impact on the Great Barrier Reef Marine Park, and
- IESC, when deciding applications to which the water trigger applies.
For enforcement purposes, approval conditions which relate to MNES must be specifically identified.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.