Australia’s principal national environmental law is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This Act provides a national scheme of environmental protection, and biodiversity and heritage conservation. Under the Act, the Commonwealth is responsible for matters of national environmental significance (MNES, as defined in the EPBC Act), and state and territory governments are responsible for matters of state and local significance.
This chapter discusses the Australian Government’s role in relation to the environmental impacts from gas exploration and extraction activities in the Beetaloo, with a particular focus on greenhouse gas (GHG) emissions. It covers the following three topics:
matters of national environmental significance in the Beetaloo;
collaboration between the Australian and NT governments; and
Australia’s international climate change commitments.
The EPBC Act is one of six key statutes that provides a role for the Commonwealth in the protection and conservation of heritage, including Indigenous heritage. Chapter 5 examines the role of the Australian Government in relation to cultural heritage in the Beetaloo and the protection of sacred sites in the area under the Territory’s Northern Territory Aboriginal Sacred Sites Act 1989 (NT).
Matters of national environmental significance in the Beetaloo
In 2017, the Australian Government announced a program of bioregional assessments to be conducted in three onshore areas that were underexplored but prospective for shale and tight gas. These assessments comprised the Geological and Bioregional Assessment (GBA) Program.
The GBA Program included the Beetaloo GBA region. In 2020, results from Stage 2 of the assessment were presented, showing the presence of a number of MNES listed for protection under the EPBC Act:
MNES that occur, or potentially occur, in the Beetaloo GBA region are 14 threatened species, 13 migratory species and one species that is both threatened and migratory. Within the Beetaloo GBA extended region there are one threatened ecological community, 15 threatened species, 15 migratory species and two species that are both threatened and migratory. Other protected matters in the Beetaloo GBA region consist of 21 listed marine species. Within the Beetaloo GBA extended region are located 23 listed marine species, and five areas of Commonwealth lands.
The GBA Program Stage 3 results were presented in late 2021. Consistent with earlier evidence to the inquiry, the report found:
There are no pathways of ‘potentially high concern’ between unconventional gas resource development and water and the environment in the Beetaloo GBA region. All potential impacts can be mitigated through compliance with existing regulatory and management controls, with a high degree of confidence.
Santos Ltd (Santos) representative, Ms Tracey Winters, Acting Executive Vice President, Environment, Sustainability and Governance, concurred that any potential impacts can be mitigated or reduced:
We operate within a regulatory framework that protects and recognises the interests of a wide range of stakeholders… There have been 13 independent scientific inquiries into oil and gas and hydraulic fracturing in Australia. In all cases the evidence has shown that these activities can be done safely and without harm to water or the environment and that risks can be mitigated or reduced, and in many cases eliminated altogether, with the implementation of recommendations from those inquiries.
The committee notes that not all stakeholders share this view (see, for example, Chapter 5) and that, as the exploration of Beetaloo shale gas reserves continues, it is possible that these surveys will identify further MNES, as well as fauna and flora that is protected, or should be protected, under NT legislation.
The committee notes also, from the Unlocking the Beetaloo, The Beetaloo Strategic Basin Plan (Beetaloo Strategic Basin Plan), that the Australian Government considers implementation of recommendations from the Independent Scientific Inquiry into Hydraulic Fracturing in the Territory (the Pepper Inquiry) to have imposed ‘strict conditions on unconventional gas development [which] lie parallel with regulations under the EPBC [Act] that protect matters of national environmental significance’.
As discussed in the Interim Report, and in Chapter 4 of this report, the full and proper implementation of these recommendations is in dispute.
In its Interim Report, the committee adopted an important recommendation of the Pepper Inquiry: that the EPBC Act be amended to include a water trigger for onshore shale gas developments. At present, MNES include the protection of water resources from coal seam gas developments and large coal mining developments, but not onshore shale gas developments.
Witnesses pressed the need for this legislative amendment, including, for example, Ms Jade Kudrenko from the Arid Lands Environment Centre:
[T]he only recommendation of the Pepper inquiry that is the sole responsibility of the federal government is recommendation 7.3, which is that the Australian government amend the EPBC Act to apply the water trigger to onshore shale gas developments… The EPBC Act currently does not protect Beetaloo water, which is at risk of these shale gas activities. We know that shale gas uses large quantities of water and poses risks to groundwater through contamination. As Territorians we just want our water to be valued and we want it to be protected.
Dr Kirsty Howey, Co-Director of the Environment Centre NT (ECNT), agreed that a water trigger is crucial to protect groundwater in the Territory from impacts of the gas industry:
I do want to mention the state of the Northern Territory's water laws, which the Environmental Defenders Office [EDO] last year diagnosed as the worst in the country, or among the worst in the country. Because of the state of the Territory's laws, it's absolutely vital that the water trigger be expanded to include shale gas, otherwise we are just not going to get the assessment of the cumulative impacts of this industry on our water resources, which is of the utmost importance to every traditional owner…and pastoralists… Ninety per cent of consumptive water in the Territory is from groundwater. We have to have every protection in place.
Ms Alina Leikin, Special Counsel to the EDO, added:
…there really isn't any material or substantive reason why the water trigger shouldn't apply to shale gas, when it applies to coalmines and coal seam gas. It's not the case that the risks are lower. It's not the case that the water resources that might be impacted are significantly different. There really doesn't seem to be any probative reason why the water trigger shouldn't be expanded in that way.
Before making its water trigger recommendation, the Pepper Inquiry reached the same conclusion:
Currently, the water trigger in the EPBC Act does not apply to shale gas developments despite water resources clearly being of environmental significance to these developments. There is no good reason why that Act should not be amended to apply the water trigger to onshore shale gas.
Mr James Tregurtha, Acting Deputy Secretary, Major Environment Reforms Group at the former Department of Agriculture, Water and the Environment (DAWE, now the Department of Climate Change, Energy, the Environment and Water (DCCEEW)), acknowledged that the proposal for a water trigger was the one recommendation from the Pepper Inquiry specifically relevant to the Commonwealth environment portfolio.
In March 2022, Mr Tregurtha advised that the Australian Government was focussed on its response to the second statutory review of the EPBC Act, conducted by Professor Graeme Samuel (the Samuel Review), and had ‘no plans to extend the water trigger to cover unconventional or shale gas’.
However, following the 2022 Federal Election, the Albanese Government responded to the Samuel Review, announcing that the Commonwealth government will be amending the water trigger in the EPBC Act:
The existing water trigger will be expanded to include all forms of unconventional gas (e.g. shale and tight gas). Decisions will be supported by independent expert advice, ensuring the environmental and water impacts of these proposed developments are managed. The government will consult with industry and other stakeholders to deliver these improved protections for water resources and to avoid unintended consequences.
The committee notes that the Australian Government plans to introduce a suite of environmental reforms in response to the Samuel Review. The legislation is expected to be introduced in the second half of 2023.
The committee welcomes this response and calls on the Australian Government to expeditiously introduce the legislation into the Parliament.
The committee recommends that, consistent with Pepper Inquiry Recommendation 7.3, the Australian Government bring forward legislation to amend the Environment Protection and Biodiversity Conservation Act 1999 to expand the water trigger to include all forms of unconventional gas, to be in operation by 31 December 2023.
On 15 March 2022, the then Minister for the Environment and the then Minister for Resources and Water jointly announced that $62.3 million would be provided in the 2022–23 Federal Budget, to invest in the delivery of up to 10 regional plans in priority development regions.
Mr Declan O’Connor-Cox, Assistant Secretary in the Environment Protection Reform Branch at DAWE, advised that ‘there are a number of considerations when considering which locations are suitable for a regional planning approach’. Further, ‘decisions have not been made about the locations where those  regional plans will be developed’.
His colleague, Mr Tregurtha, clarified that the Beetaloo might be considered for regional planning purposes:
…we have been thinking about what a relevant location for potential regional plans would be. That, of course, goes to areas where there is prospectivity for development—regardless of whether that's mining development, agricultural development or commercial or residential development—and where we know there are nationally protected matters, which, as you'd be well aware, is pretty much anywhere these days. If you look at those areas where there are protected matters, we're very conscious that there are threatened species in the Beetaloo basin area and that there is prospectivity for development there. So that is potentially one of many areas that we would look at in giving advice to government.
More recently, DCCEEW has commenced work on regional planning, stating that ‘priority areas for consideration will be those experiencing development pressure and with high biodiversity values’. As part of its planning, the department advises that it will undertake ‘a highly collaborative’ approach:
We will involve the local community, all levels of government, business, natural resource management organisations, environmental NGOs, First Nations people, and technical experts. This collaboration will be key in developing regional objectives and outcomes, with a focus on the unique priorities of each region. First Nations peoples’ values, aspirations, knowledge, and science will be incorporated into the objectives of every regional plan. We will embed local First Nations cultural knowledge in each plan to ensure appropriate methods of caring for Country are fostered throughout the planning process.
Should the Beetaloo be proposed for regional planning purposes, the committee cautions that the cumulative impacts of fracking will require very careful consideration. This comment applies equally to the management of threats to biodiversity, noting the number of known, and possibly unknown, MNES in the region.
The committee notes the intention to consult broadly in relation to regional planning proposals and, in respect of First Nations people, urges the DCCEEW to consult in a timely and appropriate manner. The committee also notes the Australian Government’s partnership with the First Nations Heritage Protection Alliance (see Chapter 5), consistent with which regional plans will consider cultural heritage priorities.
Australian and NT Government collaboration
The Australian and NT Governments share responsibility for environmental management in the Beetaloo. In March 2022, DAWE’s Mr O’Connor-Cox advised that the Commonwealth had not yet received any Beetaloo-related referrals for environmental approval under the EPBC Act.
However, the Beetaloo Strategic Basin Plan identifies additional measures by which the Australian Government intends to help the NT Government create an efficient and rigorous regulatory environment for the Beetaloo. The main measure relevant to the committee’s inquiry was the negotiation of ‘a Bilateral Energy and Emissions Reduction Agreement with a Beetaloo focus’.
Bilateral Energy and Emissions Reduction Agreement
The Australian Government is currently progressing a series of bilateral energy and emissions reduction agreements with state and territory governments, developed by the former Australian Government, designed to improve energy reliability and affordability across the country, and to support the transition of energy markets to lower emissions technologies.
In April 2022, the Australian and NT Governments announced the signing of a ‘landmark’ Commonwealth–Northern Territory Bilateral Energy and Emissions Reduction Agreement (Bilateral Agreement). The agreement provides for the Commonwealth to contribute $660 million to help deliver ‘affordable and reliable power, unlock gas supplies to help prevent shortfalls in the domestic market, and invest in key emissions reduction projects’.
Specific commitments set out in the Bilateral Agreement are referred to in Chapter 4.
International climate change commitments
Australia is a party to several multilateral and bilateral commitments to address climate change (for example, the UN Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement and the Glasgow Climate Pact). Throughout the inquiry, multiple submitters and witnesses referred especially to the Paris Agreement and indirectly also to the United Nations Conference on the Parties (COP) held in Glasgow in October‑November 2021 (COP26).
The Paris Agreement is a legally binding international treaty that was adopted by 196 Parties at COP21 in Paris on 12 December 2015 and entered into force on 4 November 2016. This agreement aims to strengthen the global response to the threat of climate change by holding the increase in the global average temperature to well below 2°C above pre‑industrial levels and pursuing efforts to limit temperature increase to 1.5°C.
The Paris Agreement works on a five-year cycle of increasingly ambitious climate action carried out by countries. By 2020, countries submitted their plans for climate action, known as nationally determined contributions (NDCs).
In their NDCs, countries communicate actions they will take to reduce their GHG emissions in order to collectively reach the goals of the Paris Agreement. Countries also communicate the actions they will take to build resilience to adapt to the impacts of rising temperatures.
In its first NDC (2016), Australia committed to reduce GHG emissions by 26 to 28 per cent below 2005 levels by 2030. Prior to COP26 in Glasgow, the former Australian Government revised Australia’s NDC to reduce GHG emissions to net zero by 2050 and reaffirmed the 26 to 28 per cent below 2005 levels by 2030.
COP26 and Australia’s response to climate change
COP26 took place with the aim of accelerating action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change. The first of four key goals was to secure global net zero emissions by mid‑century and keep 1.5 degrees within reach:
Countries are being asked to come forward with ambitious 2030 emissions reductions targets that align with reaching net zero by the middle of the century.
To deliver on these stretching targets, countries will need to:
accelerate the phase-out of coal
speed up the switch to electric vehicles
encourage investment in renewables.
Following COP26, Professor Jacqueline Peel, Director of the Melbourne Climate Futures initiative based at the University of Melbourne, wrote in respect of the first key goal:
The beating heart of the Paris Agreement is its system for countries to make, and ratchet up over time, their climate action pledges. In the lead-up to COP26, many countries strengthened their targets for 2030 and made net zero commitments.
Both Professor Peel and several submitters to the inquiry commented on Australia’s failure to strengthen its NDC prior to COP26. Mr Michael Cook, for example, argued:
…Australia is a signatory of the Paris Agreement, the central purpose of which is to keep global temperature rise ‘well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius.’ The idea that the Federal government of Australia is prepared to be a signatory to such an important international agreement, while at the same time supporting the exploration and development of new gas mining operations in the Northern Territory, specifically the Beetaloo Basin, is at best contradictory and at worst deplorable.
Following the 2022 Federal Election, the Albanese Government informed the UN Framework Convention on Climate Change that Australia had enhanced its NDC.
Reflecting the new NDC, in July 2022, the Australian Government introduced the Climate Change Bill 2022 into the Parliament. This bill, among other things, set out the government’s GHG reduction targets, as follows:
reducing Australia’s net greenhouse gas emissions to 43% below 2005 levels by 2030…
reducing Australia’s net greenhouse gas emissions to zero by 2050.
The Australian Parliament passed the bill, with the Climate Change Act 2022 commencing operation on 13 September 2022.
The committee expresses its disappointment that Australia’s GHG emissions reduction target was not strengthened prior to COP26 and welcomes recent government initiatives in this area. The committee notes that the 43 per cent target acts as a floor, rather than a ceiling.
The committee also welcomes the provisions in the Climate Change Act that allow the Climate Change Authority to advise the Australian Government on GHG reduction targets to be included in a new or adjusted NDC. The committee notes that the Act requires that future NDCs ‘must represent an enhancement of Australia’s level of ambition’.
Some committee members are of the view that these targets should have already been revised prior to COP27 held at Sharm El Sheik, Egypt in November 2022.