Major environment and mining reforms come into effect in the Northern Territory - what you need to know

Changes to the Northern Territory Environment Protection Act 2019 (NT) took effect on 1 July 2024.

The changes focus on clarifying the operation of environmental impact assessment and approvals processes in the Territory, and extend existing compliance and enforcement powers under the Environment Protection Act 2019.

The changes also introduce a new consolidated, risk-based licensing system to manage mining activities, and a new framework for the remediation and management of legacy mines.

 

Environment Impact Assessment Processes

The Environment Protection Legislation Amendment Act 2023 (NT) (Amendment Act) has inserted a new definition of environmental impact assessment, and environmental impact assessment process into the Environment Protection Act 2019 (NT) (EP Act). These amendments clarify:

• when an environmental impact assessment commences and concludes;
• that the referral process itself does not form part of the environmental impact assessment; and
• receipt and consideration of the referral does form part of the EIA process.

Significant variation notifications

The Amendment Act has clarified the process for consideration of significant variations to actions or strategic proposals which had not originally been referred for assessment under the EP Act (usually because the action or strategic proposal had no potential for significant impact on the environment).

Under the changes, where an action or strategic proposal had not previously been referred for assessment, but where a variation has the potential to have a significant impact on the environment, (for example where a project footprint is proposed to be expanded), it will be treated as a new referral to the Northern Territory Environment Protection Authority under section 48 or 49 of the EP Act and assessed accordingly.

Consolidation and separation of environmental approvals

If more than one approval applies to a site, at the request of a proponent or approval holder, the minister may consolidate the environmental approvals and grant one environmental approval in their place.

Similarly, a proponent or approval holder may request that an environmental approval be separated into two or more approvals.

Where the minister considers amendments to the conditions of an environmental approval are necessary for the consolidation or separation of the approvals, the minister is now empowered to make those amendments.

Proportionality

The existing decision-making principle contained within the EP Act has been amended to require that decisions or actions directed at minimising harm are proportionate to the impact that is being addressed.

Unauthorised harm to protected environmental areas

Under the previous framework, offences in respect of unauthorised actions in protected environmental areas were limited to harm which was caused within the environmental protected area. This created a situation where a person could undertake unauthorised actions outside the boundaries of a protected area which cause harm to the area, without triggering the offence provision. The Amendment Act has broadened the offence provisions to ensure focus remains on the impact on the protected area, rather than the location where the unauthorised conduct occurred.

 

Clarify and Compliance

The Amendment Act also works to:

• broaden the scope of compliance and enforcement capabilities under the Environment Protection Act 2019, including the creation of new offence provisions;
• replace closures notices with monitoring and management notices, to help differentiate between monitoring and management notices, and closure certificates;
• ensure consistency with existing provisions, and provide greater certainty to the mining industry; and
• ensure the chain of responsibility scheme applies to the petroleum industry. These changes serve to enforce environmental compliance and address potential inconsistencies with the Corporations Act 2001 (Cth).

The new obligations and offences aim to better reflect the relevant levels of environmental risk, and culpability of an alleged offender.

 

Environmental Mining Licence

The Amendment Act also establishes a new risk-based licencing system to manage mining activities. The new environmental (mining) licence has replaced authorisations under the repealed Mining Management Act 2001.

An environmental (mining) licence is required when an activity involves substantial disturbance to a mining site.

The new licensing scheme has three categories, based on the risk of impact of the mining activity.

 

Licence Category	Description	Risk rating
Standard Condition Licence	mining operator can meet pre-determined risk criteria and conditions	low risk to the environment
Modified Condition Licence	mining operator can meet the risk criteria, but requires adjustment to the standard conditions to ensure the environment is appropriately protected	low to medium risk to the environment
Tailored Condition Licence	mining operator is unable to meet the risk criteria or standard conditions. Tailored licence conditions are required to ensure that the mining activity does not cause significant harm to the environment	high risk to the environment

 

Transitional arrangements ensure existing mining authorisations and management plans will be deemed to be authorised under the new environmental (mining) licensing framework. Deemed licences will remain valid for four years, and must transition in that time. Deemed environmental (mining) licences have limitations and cannot be amended nor transferred.

 

Legacy Mines Remediation Act 2023

The Legacy Mines Remediation Act 2023 (NT) (LMR Act), which also commenced on 1 July 2024, repeals the Mining Management Act 2001 and establishes a new framework for the remediation and management of legacy mines.

The LMR Act provides for:

• a new framework for the Mining Remediation Fund;
• payment of the mining remediation levy;
• the relevant authorisations to carry out remediation activity; and
• a framework for the oversight of legacy mines.

 

Going forward

Proponents should consider how these reforms affect their operations in the Territory. While the transitional provisions may maintain a business as usual approach to licensing for some projects, proponents will need to understand the limitations of grandfathered mining authorisations, particularly if an amendment or transfer is in the pipeline.

Proponents will also need to consider that environmental approvals may be required for project expansions, even if the original action did not require approval.

 

Written by Kathryn Pacey, Partner, Jasmine Wood, Senior Associate, Jessica Barge, Solicitor.