THE TERRITORY WITHOUT A RESPONSIBLE MINISTER
The Chair of the EDO NT, Will Crawford, shares his thoughts on Port Melville and the failure of the NT’s Environmental Assessment Regime
In October last year the Environment Defenders Office (NT) Inc. (EDO NT) represented the Environment Centre Northern Territory (ECNT) in Federal Court proceedings against the Commonwealth Minister for Environment (Environment Minister). The ECNT challenged the approval given for the construction of the Port Melville (Port) development on Melville Island (one of the Tiwi Islands). Although the ECNT was successful in its initial Court action, the then NT Government’s chaotic response to reports that construction had commenced without environmental or ministerial approval highlighted disturbing deficiencies in the environmental protection regime that currently operates in the NT.
Background The Port and the wharf facility were originally constructed in 2003 for the export of woodchips for forestry on Melville Island. The forestry operation changed hands in 2004 when it was acquired by Great Southern Limited. In 2007 the Port was closed down by Great Southern Group and in 2009 the Group was placed into administration. Sometime in late 2013 Ezion Offshore Logistics Hub (Tiwi) Pty Ltd (Ezion), a wholly owned subsidiary of Singaporean-listed logistics company, Ausgroup Limited, acquired the Port facility.
The backdrop to this unfolding drama is the Tiwi Islands, which have a rich natural environment and are home to a significant number of rare native and migratory species.
The Proposed Port Melville and Marine Supply Base development In February 2014, Ezion submitted a Notice of Intent (NOI) to the Northern Territory Environment Protection Authority (NT EPA) for a major redevelopment of Port Melville including the creation of a marine supply base to support and fuel large vessels. The NOI included a proposal for a new wharf, a warehouse, workshop, a 150 person accommodation village, a woodchip stockpile area and fuel storage featuring multiple tanks which were 16 metres high and 30 metres in diameter to hold 10 million litres of fuel each.
In a media release to the Singapore Stock Exchange in September 2014, Ezion stated that it was in the process of developing a 30 million litre tank farm for the purpose of meeting the distribution requirements of the oil and gas multinationals that are operating in the Timor and Arafura Seas.
By the time the NOI was submitted in February 2014, construction work on the Port side was well advanced.
Legislative Framework Under the Environment Assessment Act 1982 (NT) (EA Act) the purpose of a NOI is to provide information to the NT EPA to assess whether the action requires assessment and whether a referral is required to the Commonwealth.
The NT’s environmental assessment procedures are found in the EA Act and subordinate Administrative Procedures. In short, following upon the receipt of the NOI the NT EPA must first decide whether or not an Environmental Impact Statement (EIS) is required to be produced by the proponent. If so required, the NT EPA must then provide an assessment report (Environment Impact Assessment (EIA)) to the NT Environment Minister about the proposed action. After receiving the report, the NT Environment Minister must forward the report to the ‘responsible minister’ (Responsible Minister) for his or her consideration. Finally, the ultimate responsibility for approval, and any conditions imposed upon an approval, lies with the Responsible Minister.
NT Failure to Identify the Responsible Minister: One of the chief flaws in the EA Act is that the Responsible Minister is not properly identified in the legislation. On 6 May 2015 the then NT Environment Minister, Gary Higgins, stated to the press: “there is no responsible minister for signing off on a port development” in a legislative “loophole” which meant the Port Melville project was not pulled up for its lack of an EIA. Accordingly, it appeared that the planning laws had allowed the Port to be constructed in the absence of an EIS and formal ministerial approval of the process.
The Chief Minister at the time, Adam Giles, held “port developments” under his portfolio responsibilities. However his office denied he was responsible for the Port Melville facility because it was considered private infrastructure, not a port and that the only declared port at that time was the Port of Darwin. Likewise, the Planning Minister, Peter Chandler, did not accept he was the Responsible Minister.
EPA Decision that No EIS Required In October 2015, the NT EPA remarkably announced that it now considered that the upgraded Port Melville could be managed in a manner that avoids significant environmental impact. This was despite the fact that the proponent Ezion had not supplied an EIS or public environmental report.
EPA Failure to Refer the Proposal to the Commonwealth Minister under EPBC Act Section 69 of the Environment Protection and Biodiversity Conservation (EPBC) Act 1999 (Cth) (EPBC Act) allows an agency of a state or Territory that is aware of a proposal to refer the proposal to the commonwealth Minister for a decision as to whether the action is a ‘controlled action’. It is unclear as to why the NT EPA did not refer the action to the Commonwealth.
Federal Government Investigation & initial decision In June 2015, the Commonwealth Department of Environment (Department) conducted an investigation into the project. It found that provided the Port’s operator met 12 conditions set by the Department, the operational activities at the Port were unlikely to have a significant impact on a matter of environmental significance. The Commonwealth Environment Minister at the time, Greg Hunt, concluded that the project was not a controlled action if undertaken in a particular manner (i.e. in line with the 12 conditions) and hence did not trigger the requirement for further assessments under the EPBC Act.
Environment Centre’s Litigation In February 2016, the EDO NT on behalf of its client, the ECNT, filed proceedings in the Federal Court contending that the Environment Minister’s decision under section 75A of the EPBC Act that the activity was not a controlled action if undertaken in a particular manner (and thus not subject to the assessment regime of the EPBC Act), was reviewable under the Administrative Decisions Judicial Review Act (Cth) (ADJR Act) on the basis that the decision was an improper exercise of the Environment Minister’s power.
As part of the legal action, the ECNT made an application for a Maximum Costs Order (also called a protective costs order). The application was to limit to $10,000 the maximum amount of any costs ordered in the event of an adverse costs finding. This was an important application because a costs order that might have followed an unsuccessful challenge of the Minister’s decision would have left the ECNT at risk of insolvency. The Commonwealth ultimately consented to the application. Had the order not been secured, the ECNT would not have proceeded with their claim. This order was ground-breaking because as far as we are aware, it is the first order of its kind in the Federal Court made in favour of a community environment group.
The submissions to the Court argued primarily that the Minister’s exercise of power was uncertain because particular manner conditions 1, 2 and 4 - designed to prevent detrimental environmental impacts - were vague, ambiguous, unenforceable and not identified with requisite certainty (ADJR section 5(2)(h)). Additionally, the ECNT advanced grounds that the Minister had no evidence before him that the conditions would have the requisite effect of reducing impacts on matters of national environmental significance to something less than significant.
On 21 October 2016, prior to the matter going to hearing, the Commonwealth consented to orders requested, namely that the decision by the Environment Minister that the project was not a controlled action because it would be undertaken in a particular manner was invalid. The decision was quashed and referred back to the new Commonwealth Environment Minister Josh Frydenberg for a decision. Essentially what occurred was that the Minister conceded he had made a legal error.
The Variation Proposal by Ezion On 24 November 2016, Ezion wrote to the Commonwealth Department to vary the original proposal by halving the vessel berthing numbers from the previous proposal of 480 vessels per year to 233 vessels per year. The reason cited by Ezion was that changed regional operating and market conditions had prompted the reduction.
Subsequent Ministerial Approval In December 2016, a delegate of the new Environment Minister approved the Port expansion project as outlined in the variation, finding it was not a controlled action. A spokesperson for the Environment Minister stated that the supply base at Port Melville is not likely to have significant impact on the environment. This is despite an EIS or an EIA not having been completed. Further, because the new decision made no reference to the 12 conditions imposed upon the project under the first Environment Minister’s decision, these conditions no longer apply. Despite this, the project is now of a substantially smaller scale than the one first approved and the documentation provided by the proponent to the Minister is of a far higher quality than that which was provided before when the original decision was made.
Need for Reform of Environment Assessment Act 1982 (NT) The stand out moral of this story is that the environmental assessment processes in the NT need urgent reform. The EDONT is glad that this reform was a key platform that the current Gunner Labor Government took to the last election and one we understand is progressing. It’s important to note that a similar process was begun under the previous Labor government, but was never seen through.
Obviously, some glaring requirements for reform are to rid the process of sectoral approvals, removing the need for a Responsible Minister at all and to include penalty provisions for companies that fail to comply with the new statutory framework.
This reform must be a critical priority for the Northern Territory Labor Government in the second half of this year to address this issue and to prevent the reoccurrence of the circus that became the ‘Territory without a Responsible Minister’.
Will Crawford is a lawyer for the Northern Land Council and the Chair of the EDONT. Image credit: Keith McGuinness
