|
Assessment Bilateral Agreement under the Environmental Protection
and Biodiversity Conservation Act 1999(1)
Angus Martyn
Law & Bills Digest Group
23 November 1999
What is a bilateral agreement?
The Environnmental Protection and Biodiversity Conservation Act 1999
(the 'EPBC Act') comes into force in July 2000. Under the EPBC
Act, a bilateral agreement is a written agreement between the Commonwealth
and a State or Territory which relates to virtually any matter connected
with the environment. A key purpose of such bilateral agreements will
be to allow accreditation of State(2) environmental processes
and systems by the Commonwealth.(3) In this context, an accredited
process is one that is run by a State for which the Commonwealth agrees
beforehand satisfies its own legal and/or policy requirements, thus doing
away with the need for a separate process.
It is likely that the most common initial use of bilateral agreements
will be to accredit State environmental assessment processes. Such assessment
bilateral agreements (s.47 of the EPBC Act) still leave the
Commonwealth free to make its own decision about whether a proposal should
go ahead after the completion of the State assessment process.(4)
The EPBC Act also allows for so-called s.46 approval bilaterals,
under which the Commonwealth would agree to be bound by decisions made
by the State on the basis that those decisions were in accordance with
a management plan that itself is part of the bilateral agreement. Such
management plans must be tabled in Parliament and are subject to disallowance,
giving either House effective power of veto over the Governments entry
into approval bilaterals.
In terms of what they actually apply to, either type of bilateral agreement
may cover what is described in the EPBC Act as a 'class of actions'.
A bilateral may define a class as narrowly or broadly as the signing Governments
wish. For example, an agreement might provide that the Commonwealth accredits
a State's intended assessment process for a specified mine development.
Alternatively, it might say that, until further notice, this process satisfies
the Commonwealths requirements for any future mining assessments that
arise in the next five years. Given the effort required to negotiate a
bilateral, it is probable that their coverage will be relatively broad
rather than restricted to individual projects.
How is an assessment bilateral agreement made?
For the Commonwealth to develop an assessment bilateral agreement, it
must first publish(5) its intention to do so.
A draft agreement must then be published and public comment invited for
a period of at least 28 days. In revising the draft, the (Commonwealth)
Environment Minister must 'take into account' any comments received during
this period and must 'consider' the role of interests of indigenous peoples
in relation to a number of matters: see s.49A (C) of the EPBC Act.
Once the bilateral agreement has been completed and signed, the Commonwealth
Minister must publish it, along with his/her reasons for entering into
the agreement and a report on the public comments received on the draft
agreement.
What standards apply to bilateral agreements?
The EPBC Act provides that before the Minister can enter into
an assessment bilateral:
- the Minister must be 'satisfied' that the accredited assessment process
will in fact assess all impacts on Part 3 'matters of national environmental
significance'
- the State must agree that, in relation to certain actions,(6)
the environmental impacts additional to those affecting matters of national
environmental significance will be assessed to the 'greatest extent
possible'
- the Minister must be guaranteed of receiving a final assessment report
containing sufficient information to allow him/her to make an 'informed
decision' of whether to approve the relevant proposal
- the agreement must include provision for the Auditor-General to audit
Commonwealth (but not State) activities in relation to the agreement.
The Minister is also bound by certain conditions where agreements relate
to some of the matters of national environmental significance. In general
terms, these are that the Minister must be 'satisfied' that the agreement
is 'not inconsistent' with Australia's treaty obligations, promotes management
of any relevant world heritage properties or Ramsar convention wetlands
in accordance with principles to be set down in regulations, and, in the
case of threatened species/ecological communities, promote the species/communities
conservation status and are not inconsistent with any recovery or threat
abatement plans.
In addition, there are a number of proposed benchmarks for bilateral
agreements listed in the Commonwealth's October 1999 consultation paper.(7)
If adopted, these would be incorporated into regulations. The major proposals
are:
- Transparency-all assessment documents are to be publicly available
unless they would be restricted under the EPBC Act on the grounds
of national security, advice to the Minister or commercial in confidence
- Guidelines for assessment-this proposal specifies that an agreement
is to contain provisions that assessment guidelines are to be prepared
in certain ways and have a certain scope according to the level of assessment
decided upon. This may include, for example, that public comment be
sought on draft guidelines
- Level of assessment-s.87(1) of the EPBC Act sets out
four increasingly intense 'levels' of assessment. Agreements must set
out criteria which the relevant State Minister must consider in deciding
on which general level to adopt. However, these criteria do not specify
the choice of any particular level according to the anticipated impacts,
degree of public concern etc
- Public comment on draft documentation-the agreement must contain
certain minimum standards for public consultation, including advertising
of the assessment process. Under this proposed benchmark, it appears
these standards will be similar to the those set out under the EPBC
Act
- Assessment and inquiry reports-agreements must specify that
assessment and/or inquiry reports must contain certain things such as
proposed conditions of approval, monitoring and enforcement provisions
etc.
Suspected contraventions
Any person may refer to the Minister a matter that they believe is a
contravention of the agreement. Except where the referral is vexatious/frivolous,
or insufficient supporting information is supplied, the Minister must
make a decision on the alleged contravention, including the taking of
any remedial actions. The Minister's reasons must be published.
Remedial actions can include suspension or cancellation of the agreement
if the Minister is not satisfied that the State is both complying
with the agreement and giving effect to it such that it 'accords' with
the object of the Act and 'promotes the discharge of Australia's obligations'
under international agreements.
Except in emergency situations in relation to matters of national environmental
significance, the Minister must consult with the relevant State or Territory
Minister before suspending or cancelling the agreement and give 10 business
days notice before it takes effect. Published reasons for suspension/cancellation
must be given as soon as practical.
How does a suspension or cancellation affect existing proposals?
Once a decision has been made by the Minister on the basis of an assessment
done under a bilateral agreement, the fact that the agreement is suspended
or cancelled at a later stage does not invalidate the decision. For example,
if the activity in question was approved by the Minister, it may continue
to go ahead.
Also, if the Minister has already received the assessment report as defined
under s.130(2) of the EPBC Act at the time of the suspension or
cancellation, the Minister may still approve or reject the proposal in
question.
If the assessment is incomplete or the report not received at the time
of the suspension or cancellation, the Minister cannot make a decision
and would have to make other arrangements. For example, the Minister could
decide to trigger an 'assessment on preliminary information' process (see
Part 8 of the EPBC Act) and make a decision at the completion of
this assessment process.
Endnotes
- See also Research Note No. 15 which deals with environmental impact
assessment triggers under the Act.
- 'State' should be read to include self-governing Territories, e.g.
ACT.
- See the Commonwealth's Consultation Paper Regulations and Guidelines
under the EPBC Act, October 1999, p. 5.
- These type of agreements are the focus of this research note.
- Details as to publishing requirements will be included in regulations
yet to be drafted.
- The actions relate to the four Constitutional heads of power on which
the EPBC Act relies: corporations, trade and commerce, external
affairs and Territories.
- See endnote 2 above, p. 7.
|
