The lack of strong and modern laws in the Territory for regulating mining, oil and gas, other heavy industry and pollution has been highlighted in recent years by pollution incidents and poor decisions. Our laws are out of date, highly skewed towards industry, allow significant pollution events to occur without punishment, and fail to facilitate strategic level environmental assessments.
Five key reforms have been proposed to the Territory Government to address these shortcomings.
1. Rewrite the Environmental Assessment Act
This key statue must be rewritten to reflect best practice environmental assessment approaches, including addressing deficiencies addressed by the EPA in their advice ‘The Environment Protection Authority’s Final Advice on Improving Environmental Assessment in the Northern Territory’ (April 2010).
The Act needs to be amended to include provisions that ensure that the outcomes of an environmental assessment process (recommended conditions and standards etc) are incorporated into subsequent approvals; including public accountability on how the findings of an environmental assessment report are being incorporated into a subsequent approval. (This would include approvals under the Mining Management Act, the Planning Act, the Waste Management and Pollution Control Act, the Petroleum Act etc). The Act should explicitly provide for strategic environmental assessment to be undertaken in relation to locations where multiple developments are proposed, such as for the Limmen Bight/Roper River region; cumulative impacts of developments in a region, such as urban and industrial expansion around Darwin Harbour; or the adequacy of regulatory regimes to address emerging threats, such as how to cut carbon pollution by 2020 in the face of substantial greenhouse gas emissions from natural gas and unconventional oil and gas. The Inquiry provision under the Act should be used to investigate new technologies and industry types, such as unconventional shale gas, to understand their potential benefit for and impacts on the Territory, and to ensure adequate protection is provided to the Territory’s resources through appropriate approval and regulatory provisions. It is important that an inquiry process be open to public input and participation.
- Large residential developments
- Gas exploration, extraction, and processing
- Mining exploration, extraction and processing (including extractive industries)
- Chemical processing facilities
- Aquaculture development
- Intensive agriculture
- Major land clearing
- Utility construction and operations
- Linear developments
- Abattoirs etc
2. Amend the Waste Management and Pollution Control Act
The Waste Management and Pollution Control Act should contain clearly defined offence provisions and establish strict liability (legal responsibility for environmental harm even if the person found strictly liable was not at fault or negligent). The failure by the NT Environment Department in 2011 to secure a substantial penalty against the Darwin Port Corporation for copper concentrate pollution at East Arm Wharf in 2009/10 demonstrated the need to strengthen this law by adopting this tougher legal standard. Offence provisions should not be reliant upon on “intention to cause harm” as this places the onus on government to prove harm (and is therefore costly and resource intensive for government) and is difficult to prove. Offence provisions within the Act need to be reviewed and linked to the act of polluting. The Act should also introduce strict liability offences, allowing government to respond to all pollution events and ensure appropriate clean up (and clean up costs) can be pursued. Government departments should also be provided with a range of enforcement tools to encourage compliance, be provided with powers to step in and remedy situations where there is continuing non-compliance and tiered offence regimes to penalise and deter non-compliance and polluting behaviour. The Act should apply across the Northern Territory jurisdiction and all land uses. Certain activities or industry types should not be exempted from the offence provisions of the Act, such as is currently provided under s6(2) for mining activities, oil and gas production, and oil or gas pipelines. These exemptions must be removed. The current system does not promote a level playing field between industry types and promotes inconsistency in regulatory approaches (for example INPEX will be regulated by the WMPC Act, however activities at the Rio Tinto Alcan Gove processing plant are not). In the medium term, the Environment Centre NT envisages the need to rewrite this statute to be a more effective and strongerEnvironment Protection Act.
3. Amend the Mining Management Act
The Mining Management Act needs to be amended to include public consultation and engagement provisions, allowing the public to have access to information about mining activities (including exploration activities and mine management plans) and their ongoing operations. This should include the advertising of an application for authorisation under the Mining Management Act, the community right to say “no” and a third-party appeal process. As for proposed changes to the WMPCA, an environmental offence under the Mining Management Act should not be linked to environmental harm (which places impetus on government to prove environmental harm), rather the legal threshold should simply be whether pollution has occurred. The Mining Management Act should not be the primary regulatory framework for controlling off-mine processes, such as transporting minerals to ports or loading ships. Rather, these should be regulated by the Environment Department under the Waste Management and Pollution Control Act.
4. Review and strengthen the Petroleum Act
The Petroleum Act, and the limited capacity of the Resources Department to effectively regulate onshore oil and gas exploration and production, require urgent strengthening. The Montara oil spill in the Timor Sea, from 21 August to 3 November 2009, revealed systemic failures in regulation and compliance enforcement in the NT Resources Department. This same Department is responsible for regulating onshore oil and gas exploration and production, including extensive areas that are being targeted for unconventional shale gas. Unconventional shale gas and fraccing have caused great concern amongst farmers and the wider community in eastern states, and other countries. These practices may threaten landscapes, water resources, sites of cultural significance to Indigenous people, pastoral lands, as well as the climate due to the substantial carbon pollution generated by the industry. A thorough review of the Petroleum Act is needed to ensure that:
- Applications for exploration permits and production licences are referred for consideration under the Environmental Assessment Act.
- The outcomes of an environmental assessment process are incorporated into the decision-making process on whether to grant either an exploration permit or production licence, including public accountability on how matters raised during the environmental assessment are addressed in a subsequent permit/ licence.
- Discretion on whether to grant either an exploration permit or production licence be incorporated into the Act to ensure protection of the environment where appropriate. • Conditions relating to the environmental operations of a facility can be included on an exploration permit and/ or production licence.
- Conditions to regulate the ongoing environmental performance of a facility be included in the Act AND be strengthened in the Schedule of Onshore Petroleum Exploration and Production Requirements 1993. As recommended for both the Waste Management and Pollution Control Act and Mining Management Act, this should include appropriate offence provisions to allow government to take action in the event of a pollution incident.
5. Amend the Environment Protection Authority Act
The establishment of an Environment Protection Authority in the Northern Territory was an important step towards ensuring better environment protection and ecologically sustainable development. However, the EPA remains small, has a meagre budget, and has few powers. Whilst it has produced important reviews for the Territory Government to consider since 2009, Territorians are still waiting for tangible improvements in policies and legilsation to be put in place by government in response to these reviews. Accordingly, the EPA Act should be amended to include provisions that the Environment Minister be required to formally respond to reports and recommendations received from the EPA within a specified timeframe, and to make this response publicly available. A case in point is the failure of the Territory Government to publicly respond to the EPA’s advice regarding Ecologically Sustainable Development in the Northern Territory (released February 2010) through inter alia illustrating how it is progressively amending key statutes to establish ESD and its principles as the objects of relevant statutes. 6. Ensure regulatory regimes are well resourced While best practice legislation is needed to empower agencies to effectively and appropriately protect our environmental assets, the success of a regulatory regime will only come when there is political will and adequate budgetary support to enforce the legislation.