Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval, Assessment Approach, Decision on Approval, Variation of Conditions of Approval and Lapsed Proposals

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly matters of national environmental significance. This includes protection of the World Heritage properties, listed threatened species and ecological communities, listed migratory species, the Ramsar listed wetlands, the nuclear actions prohibited by the Commonwealth, the impact of proposals on Aboriginal objects of cultural significance, and the impact of sea dumping. The EPBC Act was introduced to address the problem of environmental degradation and biodiversity loss, providing a framework for the conservation and sustainable use of the environment. The Act is administered by the Australian Government and is overseen by the Parliament of Australia. The policy objective of the Act is to promote the protection and sustainable use of the environment, ensuring that development and other activities do not significantly harm the environment. The EPBC Act provides a regulatory framework for the approval of certain actions that may impact the environment. The Act includes provisions for the assessment and approval of activities that may have a significant impact on matters of national environmental significance, such as the clearing of native vegetation or the impact of a development on a listed threatened species. The Act also includes provisions for the management of protected matters, such as the listing and protection of threatened species and ecological communities. The Act provides for the involvement of the public in the decision-making process, ensuring that relevant stakeholders have the opportunity to provide input on proposed activities and the potential impacts on the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 applies to any actions that are likely to have a significant impact on matters of national environmental significance, as designated under the Act. This includes listed threatened species and ecological communities, wetlands of international significance, world heritage properties, and other specified environmental aspects. The Act applies to a broad range of persons and entities, including corporations, individuals, and government agencies, and encompasses various industries such as mining, residential development, and transport. The geographic reach of the Act is national, extending across Australia, including its territories, and applies to actions both within and outside of Commonwealth land. The Act does not apply to actions that have already been assessed and approved under its provisions or those that fall below a specified threshold of significance. Additionally, the application of the Act may be extended or restricted through subordinate instruments, such as regulations and codes of practice, which provide further detail on the types of actions that require approval and the assessment process. The Department of the Environment and Energy is responsible for ensuring the timely notification of referrals for approval under the Act, although there may be occasional instances where notifications are missed or delayed, which are subsequently addressed to maintain the transparency and integrity of the approval process.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a pivotal piece of legislation in Australia that focuses on the protection of the environment, particularly endangered species and ecological communities, and the management of activities that may impact these areas. Under sections 75 and 133 of the EPBC Act, certain actions are determined to require approval if they may have a significant impact on matters of national environmental significance, such as listed threatened species and communities (sections 18 and 18A). For example, the Cloncurry Heap Leach Copper Project and associated infrastructure in Queensland, and the exploration drilling programme for Christmas Island are actions that have been determined to require approval due to potential impacts on listed threatened species and communities (EPBC Act s.75). Conversely, actions such as the South Coast Highway Cheynes East Intersection upgrade and realignment in Western Australia, and the upgrade and revitalisation works on Shields Street in Cairns have been determined not to require approval under the same sections (EPBC Act s.75). The obligations imposed by the EPBC Act on parties and entities conducting activities that may impact listed threatened species and communities include submitting detailed proposals for assessment and approval, where required. This involves providing comprehensive documentation on the potential environmental impacts and mitigation measures. For instance, entities such as Chinova Resources Cloncurry Mines Pty Ltd, Phosphate Resources Limited, and BHP Billiton Mitsui Coal Pty Ltd have had to submit preliminary documentation for their respective mining projects (EPBC Act s.87). Additionally, approved actions come with specific conditions that must be adhered to, ensuring that environmental impacts are minimised. These conditions are detailed in the approval decision notices, as seen in the approvals for Guanaba Experience ecotourism development in Queensland and the clearing of vegetation to expand the waste rock dump at Greenbushes in Western Australia (EPBC Act s.133). Failure to comply with the provisions of the EPBC Act can result in significant penalties and consequences. The Act outlines various offences, including unauthorised actions that may impact listed threatened species and communities. Under section 474 of the EPBC Act, the maximum penalty for individuals involved in these unauthorised actions is AUD 330,000 or five years imprisonment, or both. For corporations, the penalties can be even higher, reaching up to AUD 1.65 million or five times the value of the benefit obtained from the unauthorised action. Additionally, the Act provides for the variation of conditions of approval under section 143, and the lapsing of proposals under section 155, both of which may lead to further regulatory scrutiny or the need for re-application. For instance, proposals such as the Hanwood Stage 5 Residential Development in New South Wales have lapsed if not processed within the required timeframe (EPBC Act s.155). The Department of the Environment and Energy has implemented quality assurance procedures to minimise missed notifications, ensuring transparency and public access to the referral history.