EPBC Act Part 7-9 decisions published, 15/11/2021 to 21/11/2021

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Australian Parliament to provide for the protection of the environment, particularly in relation to matters of national environmental significance. The EPBC Act addresses the gap in environmental protection by establishing a framework for the assessment and approval of activities that may have significant environmental impacts. The policy objective of the Act is to ensure that environmental considerations are integrated into decision-making processes affecting the environment. The Department of Agriculture, Water and the Environment is responsible for the administration of the Act, including the publication of decisions and notifications regarding referrals for approval under the Act. Recently, the department has published decisions related to various projects, including mining and energy projects, and has implemented measures to minimise the risk of missed or delayed notifications to the public.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to various entities and projects across Australia, focusing on the protection of the environment, particularly in relation to listed threatened and migratory species and ecological communities. This Act encompasses a broad range of industries, including mining, energy, and private developments, and governs the conduct and transactions that may impact protected species or communities. The EPBC Act is a Commonwealth Act and therefore applies nationally, extending its jurisdiction over actions that may have significant environmental impacts regardless of state or territory boundaries. However, certain exclusions and exemptions apply, such as projects already regulated under state or territory laws, or those that fall below specified thresholds of environmental impact. The Act's application can also be extended or restricted through subordinate instruments, such as regulations or codes of practice, which provide additional detail on specific environmental considerations or management practices. Despite the Act's stringent requirements, the Department of Agriculture, Water and the Environment has implemented quality assurance procedures to ensure that notifications and assessments are conducted timely and effectively, though occasional lapses in notification timeliness are acknowledged and addressed.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) highlighted in the document concern the assessment and approval of projects that may impact on matters of national environmental significance, such as listed threatened species and communities, and listed migratory species. Section 75 of the EPBC Act requires that certain actions be approved by the relevant Minister, and these include actions that may significantly affect matters of national environmental significance (sections 18 and 18A) or listed migratory species (sections 20 and 20A). Section 133 of the EPBC Act provides for the approval of actions with conditions, and this is evidenced by the approval of the Yalyalup Mineral Sands Project, WA (reference 2017/8094), which was approved with conditions on 12 November 2021. The EPBC Act imposes obligations and requirements on parties and entities to ensure that any actions they take do not significantly harm matters of national environmental significance, and this includes taking all reasonable and practical measures to avoid, mitigate, or offset the impact of the action. The Act also requires the Minister to consider the likely impact of the action on matters of national environmental significance, including any impact on listed threatened species and communities or listed migratory species. The Act provides for an assessment process to determine the impact of an action, and this is evidenced by the assessment approach taken for the Carbone Bros Pty Ltd Sand Extraction Project (reference 2021/9034) and the Century Estate Contracting Pty Ltd project (reference 2021/9065). Breach of the EPBC Act may result in criminal or civil consequences, including fines and imprisonment. Section 474 of the EPBC Act provides for a maximum penalty of up to $66,000 or imprisonment for up to two years, or both, for a corporation that engages in an action that contravenes a condition of approval. Section 477 of the EPBC Act provides for a maximum penalty of up to $660,000 or imprisonment for up to five years, or both, for an individual who engages in an action that contravenes a condition of approval. The Act also provides for the recovery of costs incurred by the Minister in relation to the contravention, and this is evidenced by the decision to approve the Yalyalup Mineral Sands Project, WA (reference 2017/8094) with conditions. In summary, the EPBC Act requires that certain actions be approved by the relevant Minister and imposes obligations and requirements on parties and entities to ensure that any actions they take do not significantly harm matters of national environmental significance. Breach of the Act may result in criminal or civil consequences, including fines and imprisonment. The Act provides for an assessment process to determine the impact of an action, and this is evidenced by the assessment approach taken for the Carbone Bros Pty Ltd Sand Extraction Project (reference 2021/9034) and the Century Estate Contracting Pty Ltd project (reference 2021/9065). The Act also provides for the approval of actions with conditions, and this is evidenced by the decision to approve the Yalyalup Mineral Sands Project, WA (reference 2017/8094) with conditions.