EPBC Act Part 7-9 decisions published, 12/07/2021 to 18/07/2021

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to provide for the protection of the environment, particularly with respect to matters of national environmental significance. The Act aims to ensure that proposed actions likely to have a significant impact on the environment are assessed and managed appropriately. The EPBC Act is administered by the Department of Agriculture, Water and the Environment, which is responsible for the approval, assessment, and management of actions that may impact the environment. The policy objective of the Act is to strike a balance between environmental protection and economic development, while also promoting sustainable use of natural resources and conservation of biodiversity. From 12/07/2021 to 18/07/2021, the Department of Agriculture, Water and the Environment published decisions relating to various projects under the EPBC Act. These decisions include approvals, non-approvals, and extensions of time for certain projects, such as wind farms, mining operations, residential developments, and waste management facilities. The decisions were made based on the potential impact of these projects on the environment, including matters of national environmental significance such as wetlands of international importance, listed threatened species and communities, listed migratory species, and Commonwealth marine areas. The Department of Agriculture, Water and the Environment has implemented systems and ongoing quality assurance procedures to minimise the risk of missed notifications within the required timeframe.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 applies to a wide array of entities, industries, and activities across Australia, focusing on the protection of the environment, particularly those actions that may impact on matters of national environmental significance such as listed threatened species and communities, wetlands of international importance, listed migratory species, and Commonwealth marine areas. The Act governs both Commonwealth and non-Commonwealth actions, and it includes provisions for approvals, assessment processes, and conditions to mitigate environmental impacts. The Act applies to both individuals and corporations, and its reach encompasses various sectors, including energy generation and supply, mining, tourism and recreation, commercial development, residential development, and waste management. The jurisdictional scope of the Act is national, as it is a Commonwealth Act and applies across all states and territories of Australia. There are certain exclusions and exemptions within the Act, such as activities that are covered under other specific environmental laws or where the impact is deemed to be negligible. The application and interpretation of the Act can be extended or restricted through subordinate instruments such as regulations and guidelines, which provide additional detail and specificity to the broader legislative provisions.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) include sections 75, 87, 130, 133, and 166. Section 75 requires the Minister to determine whether certain actions will have a significant impact on matters of national environmental significance, and if so, whether those actions require approval (s.75). Section 87 outlines the assessment approach to be used for determining whether an action will have a significant impact (s.87). Section 130 provides for the extension of time for certain approval decisions (s.130). Section 133 allows the Minister to approve an action with conditions if it is likely to have a significant impact (s.133). Section 166 sets out the offences and penalties for non-compliance with the Act (s.166). The Act imposes several obligations on the parties or entities it governs. These include providing detailed information about the proposed action and its potential environmental impacts, complying with any conditions imposed on an approval, and adhering to any requirements or guidelines issued by the Minister. The Act also requires the Minister to consider the potential environmental impacts of the proposed action on matters of national environmental significance, such as listed threatened species and communities, wetlands of international importance, and Commonwealth marine areas. Additionally, the Act requires the Minister to consult with relevant stakeholders, including state and territory governments, Indigenous communities, and the public, when determining whether an action requires approval or when considering the conditions of an approval. The EPBC Act includes various offences and penalties for non-compliance. For example, section 166(1) makes it an offence to take an action that is likely to have a significant impact on a matter of national environmental significance without the required approval. The maximum penalty for this offence is $666,666 for a corporation and $133,333 for an individual. Section 166(2) makes it an offence to contravene a condition of an approval, with a maximum penalty of $666,666 for a corporation and $133,333 for an individual. Section 166(3) makes it an offence to fail to comply with a direction or requirement issued by the Minister, with a maximum penalty of $666,666 for a corporation and $133,333 for an individual. In addition to these penalties, the Act also provides for the imposition of injunctions, orders for remediation, and other civil and criminal consequences for non-compliance. The Department of Agriculture, Water and the Environment has implemented systems and ongoing quality assurance procedures to minimise any risk of missing a notification within the required timeframe. Where a missed notification is identified the practice will be to notify these even though the timeframe for notification has lapsed. This will ensure that the history of notifications for each referral is available to the public. The Department of Agriculture, Water and the Environment regrets any inconvenience that may be caused by a missed notification. It should be noted that late notifications have not affected subsequent processing of referrals or assessments and they do not affect decisions made.