Public comments and decisions on actions referred under the EPBC Act

Welcome everyone to the public consultation and the EPBC Act Presentation. We still have a few of our attendees coming in. Before we get started, I would like to present an Acknowledgment of Country in the Ngunnawal language.  This is Ngunnawal Country, today we are all meeting together in Ngunnawal Country, we acknowledge and pay our respects to elders, and I would like to extend that respect to the Ngambri people, which is the land I’m also on but also recognising that this webinar will be listened to on many other lands across the country. Thanks for coming along.

Today we will talk about public consultation, and we will specifically be talking about the assessment of individual project proposals in part 7-9 of the EPBC Act, otherwise known as the Environment Protection and Biodiversity Conservation Act.

One of the things that makes this legislation different to other environmental legislations is that the [EPBC Act] focuses on matters of national environmental significance. These are things such as World Heritage Areas, listed threatened species, Ramsar wetlands and other things. It also, however, covers Commonwealth land, Commonwealth marine areas and actions by Commonwealth agencies. This is quite important because it covers a different legal test depending on which part of the Act is interacting with which part of the environment.

The community is consulted at several points and community consultation is one of the most important functions of the EPBC Act and an important part of our decision-making process. The EPBC Act also covers a range of other things, including strategic and regional assessments. We will not be covering those in detail, as they have their own consultation processes that are a little bit different.

An example of community input we're hoping to see is what the project site means to the community. This is often in this context for the EPBC act, someone has proposed to undertake a project on a given parcel of land or sea.  We need to understand what the overall context is, both in terms of the environment, but also in terms of the cultural, recreational, heritage areas and other aspects of the proposal. And the project as a whole that we are assessing: what does it means to the community? how the area is used by the Community? and are there additional sources of information that we may have missed that we need to take into account?

For instance, has the proponent (the person proposing to take the action) identified all the stakeholders, including First Nations groups? There are specific consultation requirements we recommend to proponents for First Nations Groups to make sure that all the appropriate people have been consulted.

In addition, we're looking at what additional surveys might be needed to understand the risks and if there are any additional sources of information that may be missed, such as citizen science programs, academic research, and local knowledge and observations.

Given we have a few more people online, I just like to recognise that, this presentation is going to be recorded, and hopefully we'll be putting it up on our website or also making it available to participants after this.

One of the things we are interested in is this perspective of the community on the issues of concern.

The Minister must consider social and economic factors when making any decision on approval under the EPBC Act. The two things we look at is local information. Recognizing we're not on the ground, we will visit most sites during the assessment process, but that is often one or two visits, sometimes more depending on the needs of the project. However, we haven't been living there for 20 years, we don't understand the community's use of the area, the local history, flood, fire, contamination.

The community can provide us a lot of information on other users who may be affected.

We will also often seek information on any controls that might be needed to protect the environment and any suggestions the community may have for alternatives to the action.

Which part is this in terms of referral decision?

The referral is where proponents first enter the act. And essentially a referral is where the proponent makes a description of what they would like to do. For instance, a mine, a dam, some other project. The proponents describe the footprint of their action. They also describe what they believe may be the potential impacts on the environment, and the department then needs to make a decision on whether this project has what's known as a significant impact. The department has administrative guidelines on significance impacts, and they define types of significant impact on a matter of national environmental significance including, World Heritage areas, the ecological character of Ramsar wetland or individual species including migratory species - these are important and common considerations.

For most projects, the significance is against these matters of national environmental significance. Where the action is occurring on Commonwealth land, such as defence areas, in marine areas such as the exclusive economic Zone of Australia, or where the Commonwealth itself is taking the action. In that instance, the Commonwealth itself is the primary regulator and a different legal test applies. The whole environment is protected in that situation.

Within these referrals, this is the first touch point for most proponents, but for all proponents, but also for most community, there's a notification placed on our website. Unfortunately, this stage this must be manually checked, so you need to check on a reasonably regular basis to see when something's coming up. In the future, you can register for notifications in your area or certain types of actions.

But there's a 10-day comment period for the EPBC Act website. Now the key consideration at this point is like I said before, should the project be in or out of the EPBC system and we're looking at do we need to give this a formal approval. We're particularly looking at how it would impact on those matters of national environmental significance or the whole of environmnt.

The next stage you would see a public consultation is on the draft terms of reference. In this instance we have made a decision that this is in the EPBC act system. In addition to any state or local approvals the project might need, the project now needs a Commonwealth approval, a formal Commonwealth approval.

It means we would direct assessment documentation and be prepared. This is an optional step on the draft terms of reference and it's essentially the scope setting for that environmental assessment.

It's not always done, but it is of the of the optional steps, it is the most common call for comments that you might see on our website. It's more likely to be sought for very complex projects or for new industries that have not been previously assessed, where we'd be looking to see what the Community's view is on the scope of the environmental assessment.

Consultation on draft terms of reference may be used for public environment reports, environmental impact statements, and this period specified by the Minister or delegate.

The next one, which is a mandatory step, and you will always see if something is in our system and requires assessment, is the draft environmental impact statements, public environment reports or preliminary documentation. This is a mandatory part of the process. The proponent must make the assessment documents available in both electronic and hardcopy form. The proponent must collect all comments the community and stakeholders make on their project and they must pass all of those on to the to the department.

The proponent must then address those comments in a revised set of documents. The department then does an assessment as to whether they have adequately addressed those comments and would then make that then moves into the next stage, which is the approval stage. But in this instance, it’s a mandatory part of the process and we're particularly looking at all parts of the project now. This is where we're we are looking at: Have all parts of the environment that are going to be impacted by inadequately described? Have all parts of have alternatives to the proposed action? This is a requirement as well. The proponent must consider alternative ways of doing their business.

In addition, we're looking at the economic and social aspects of the proposal and how they're described and whether that what the Community's views on this and the Minister must take into account the overall Community consideration of this. That's the social and economic aspects of the decision.

The least common consultation step is one that's been used recently for the first time, and that is a consultation on draft conditions of approval.

The key consideration here is if we were to approve this, and it is an if, are the proposed conditions sufficient to protect the environment?

This is optional. It's been, as I said before, it's mostly been used for. It's been recently used for the first time and the comments will be sought by the department’s website only at this stage.  Those are the four touch points where public consultation will be sought within for individual projects within the EPBC Act.

These are not the only public consultation processes the department works with. However, there are some that do relate to the EPBC Act and are directly relevant to the assessment and approval of individual projects.  Are there other groups that need specific information listed? Species, ecological communities, and heritage places have their own formal listing process and consideration process comments may be sought as part of that if you go on to the department's website dealing with listed with threatened species.

You'll see there's a sign on button there where you can sign up to receive a regular newsletter that tells you about these processes and gives you a tailored list of things that will be that are open for consultation, but also notifies you of changes after that, such as changes to listing status.

Another example of where the department go out for comment is recovery plans. Species recovery plans are where the department is looking for looking to develop a plan to recover a species back to a safe and stable condition.

And a good example, the little beastie, the bird you can see there that is the Fourty-spotted Pardalote, a beautiful species in Tasmania and its recovery plan is open for public comment right now. It is a separate assessment to individual projects. However, it's incredibly important because the minister's decision cannot be inconsistent with the recovery plan.

When these recovery plans are made, they have a significant effect on how we make decisions, they don't just cover regulation though, they cover a whole range of other positive actions that to recover the species back to its original hopefully back to its original condition.

The other item we would consult on would be supporting systems such as the Protected Matters Search Tool.  The department made significant changes recently to how we support proponents in their decision making. Includes essentially a series of computer maps, but also information on the environment.  when we're testing these systems out, we would often go out for public consultation.

One of the things people often ask us and I think we haven't given particularly good guidance of in the past, is giving you tips for providing comments like, well, how do you get the most impact for the comments that you're making and what is the department really looking for?

EPBC processes are usually focused on a specific protected matter and that as I mentioned before, that can be the whole environment, but generally it's a specific protected matters or matters.

The consultation will be aimed at a specific task in the assessment process. [When you] make your comments specific to that process such as that referral decision will make your comments much more impactful.

I would preface that I would just make it clear and preface that though. All comments we receive are read. We read them all. All comments are taken seriously and are taken into account.

What I'm giving you guidance on here is the overall views of the project and impacts on wider issues may be relevant for the social and economic consideration, but specific stages of the of the assessment we're after for quite specific information. Referral decisions as I mentioned before focused on how significant impacts are and whether additional matters are likely to be impacted.

Draft guidelines – We're seeking input on the scope and coverage of those comments on assessment documents. We're testing the completeness, quality of investigations and whether alternatives have been explored, and draft decisions are testing the overall acceptance and whether additional conditions should be imposed to protect the environment.

Here's some examples of some of the recent releases we've just given, and these are not something that is enormously relevant to what we're talking about today, but we might as well provide you with some information on some of the recent releases of the department's provided so koala guidance materials.

This will have a material change on how we assess and approve certain proposals.  Koala has been listed as endangered in the ACT, NSW and Queensland and a species recovery plan has been produced.  The key change is that previously the koala in these areas was listed as vulnerable, which means that important populations are given protected are protected as a matter of national environmental significance. At the endangered category, all populations are considered important, and they are all given a protection under the Act.

Within ACT, NSW and Queensland, a range of new guidance materials have been prepared as a result, identification of habitat for the endangered koala and referral guidance for the endangered koala is primarily aimed at proponents to help them identify when they need to refer their projects.

In addition, we've commissioned the Australian National University to provide some much more detailed reviews of the current science around the koala. This includes a review of impacts on koala from bushfire, review of habitat restoration methods and the review of the habitat criteria and survey methods.

Another important part of our work has been wind farm industry guidance.  We recognize that both we have an onshore component of the wind industry, but also increasingly a very significant pipeline of projects for the offshore renewable space.  We've produced some specific guidance here. Offshore renewables environmental approvals are an overview guide that covers the interaction between the act I'm talking about today, the EPBC Act and a new piece of legislation which is the Offshore Energy Infrastructure Act, essentially how these two approval processes work together. We've also produced quite a detailed review of the impacts of birds from offshore wind farms in Australia. This is a reference source, and this is primarily geared towards proponents and regulators, but also provides information for the assessment teams within the department. We make all these things publicly available just so that we run an open process, so you can see what's going on.

The next cab off the rank will be offshore renewables environmental factors guidance.  This is a more detailed guidance on the leading practice approaches to assessment and management of environmental factors. We're hoping to have this done by the end of this calendar year.

[Brief pause for questions and chatter]

I didn't introduce myself properly at the beginning. Terribly rude of me. My name is Cormac Farrell and I'm the Director of Environment Assessment Policy within the Department of Environment of Climate Change, Environment, Energy and Water.  Sorry about that. I should have introduced myself properly at the start. Do we have any questions?

Fantastic. Someone's asked, “You mentioned the proponent received comments that are then passed on to the department. How's the public assured that all comments legitimately passed on to the department?”

It is a legal requirement that the proponent passes all those comments on to the department. If they were not to pass the comments on then and the community noticed that and felt they hadn't been, it would potentially invalidate the decision.  It's true that we don't specifically have a way of checking in that the comments aren't provided to the department for instance. But we require the proponent to pass those on to us.

We have any other comments, we've got some new ones.

[Cormac gesturing attendees to turn microphone on mute]

“Is there any situation or circumstance where a referral would not be required or exempt, such as a landfill remediation to project protect and improvement environment?”

There are some exempt projects, actions with a prior authorization that predates the [EPBC] Act. There are relatively small numbers of those. Now the act has been in place for over 20 years. The ones that predate the EPBC Act, where it's a continuation of existing legal activity that does not require any further authorization or approvals, that is exempt under the EPBC Act. [For example] certain forestry operations within regional forest agreement areas are exempted and the Minister, [..] and grant exemptions under certain circumstances to projects.

However, this is a really important point, for instance, where someone's undertaking an action and they would refer it as to whether it needed approval. In that situation, the department and the Minister can only take into account negative impacts because this is a screening test at referral stage. This is just the referral stage.

The decision should be in or out of the assessment system totally, even if the eventual outcome of the proposed project could be mitigated adequately, we would, the decision may well be that it's not, it's not actually exempt. It still must be considered on its merits. If the impacts are likely to be significant, it would need to get an approval in the situation where those environmental impacts would be net positive, it's likely that that would be approved, but in terms of that referral decision only negative impacts are considered. We don't do any sort of balancing at that stage in terms of positive and negative impacts.

Yes, proponents [are] compelled to provide all the comments – it’s a requirement of the of the process.  All comments that proponents receive must be provided to the department and they must be provided as a list to us and the comments themselves. Any submissions from the community must be provided in full, unabridged, and not modified in any way to the department. The proponent must then address those comments and show that they've addressed them in their assessment documentation to the department.

We will assess the adequacy of that at that at that time. But they are compelled because it's a legal requirement of the process. Again, like I said earlier, if they did not provide all those comments directly to that they did not pass them on directly and if they did not address them, the process will stop and but also if it's found subsequently that they did not pass those on or adequately if they for whatever reason did that, it would potentially invalidate that decision.

“People making a submission to the Portal Assessment System, do you need to give a name? But what else? Is e-mail enough? Phone number enough?”

I must say I'm not entirely sure. I believe that you just need to give your name. I don't think you're required to give it further contact details. I don't think you need to give your home address.

“If the minister decides the project is too damaging, can they reject the project?”

Cormac Farrell: Quite a straightforward answer. The Minister can reject a proposal, can refuse a proposal and there are some certain situations in which the Minister would sometimes allow proposal to come back so that that sometimes occurs. The department would have a discussion with the proponent about why a certain project was refused. But yes, short answer is the minister can refuse projects and has done so several times in the past.

“If the proponent states in the [Environment Impact Statement] EIS they have been entered into a binding commercial agreement with the State [Government] and [local] council, what bearing does this have on the assessment?”

In terms of the Minister's decision, it's not binding on the department and it's not binding on the Minister.

What it is, is it would be taken into account in terms of the potential for mitigations to be enacted.  The Minister would be making the decision on the likelihood of approval conditions if they are to be met if they were placed, where there is a binding commercial requirement that's been placed on them by the State [Government] or[Local] council that may be that the department would have more confidence that something would be enacted though if there's a [binding] commercial arrangement that is part of the consideration of economic and social, but it's not part of the Minister's decision in other respects, so we would be assessing primarily on the environmental impacts of the proposal.

[There] is a good question here by anonymous, “Is the signing a template submission count as much as a personalized submission by a member of the public?”.

In a simple sense, yes, in that all submissions must be passed on completely to the department and all submissions are considered. As I said before though, your submissions [are] likely [to be considered] if it's tailored and provides new information or detailed information specific to the project. We often see many petition style letters. That is an important gauge of community sentiment.

[I have] one personal example, before my employment with the department. I was a private consultant doing environmental impact assessments, and we had a local community group come to comment on one of the one of the projects I was working on. They were a birdwatcher group, and they had a very detailed database of birds that had been found on the site and that was fantastic provided really detailed information, not just on birds that have been seen, but where they've been seen on the site and allowed a much more detailed identification of bird wildlife corridors within the [project] site. It caused a material change to the protection of that [project] site and how it was likely to be used in the design –  that's a good example of where a more personalized submission or one that's providing a lot of additional information has a lot more impact, but mainly because of the material impact of that information.

“How long can a proponent delay be forwarding a final EIS before the referral expires?”

We have several processes within the EPBC Act to essentially to terminate an assessment. If we reasonably believe that no further action has been taken by the proponent and we would often write to them. It would be a considerable length of time sometime, and we would then write to the proponent to say you know, are you, are you actually going to do this or not, do you wish to proceed, and so that we are then able to lapse proposals if there's too much of a delay, one of the things we would consider would be, for example, where a consultation process has been run and then a very, very long time as a lapse. Since then, there may well have been changes to the environment which are material and may need to be reconsidered. It may require a new referral, or it may require a reopening of consultation. Where we feel that consultation has not been adequate for whatever reason, the Minister has the option of reopening some types of consultation.

“If a project is approved as controlled action has commenced and an unexpected find is recorded, species not assessed, should this trigger a stop works and the proposal reassessed?

This is what's known as a ‘reconsideration’ and it can happen where there's a substantial change to the environment or something is an unexpected find. There are occasionally where there's a particularly for indigenous heritage, which is something that's important and sometimes you will not be able to detect it until, for instance, excavations happen. There's often in, sometimes there are in the approval conditions, specific steps that need to be taken then in a general sense, and this relates to the previous answer.

If there's been a substantial delay in an action commencing and most of our approvals have a time limit, so you must commence the action within a certain time. And that's to prevent this sort of situation arising where a new species has moved in, or a species has recovered because we of course want species to recover, and they are likely to reoccupy sites that they may not have been detected in previously. That's where you do have that option. It's under a several sections of the act allow reconsideration of decisions where substantive new information has been determined

“If a minister refuses a development, it finally a submission, does the proponent have a right of appeal? “

The proponent has a right of appeal under administrative law. The proponent and members of the public can request a statement of reasons to be given as to why a particular decision has been made.

But generally, no, there is not an automatic or not an automatic appeal from function within the EPBC Act itself. They would generally need to restart the process if project is refused.

Just a follow up [question] to the answer: “Can the Minister reject a proposal after a controlled action has been declared but prior to the assessment process being complete by draft EIS?”

Generally, no. We need to make sure that we maintain due process and fairness for proponents and for the and for the public. Once a once a decision has been made that it needs an approval, it cannot commence. The action cannot commence until that approval is granted. That would then mean that the process has to follow its complete course and the decision is made at the end of that process after the assessment documentation has been prepared.

[Next] question is, “how is this webinar promoted to the public? I could not find all the departments website”

This [webinar] was not promoted to the public. There was a specific request by stakeholder groups to provide this information. One of the things that we've recognised when preparing this is that we haven't done this previously much at all.

One of the things about the strange new normal of video conferencing. I used to do this [public consultation] for the department when I was in the early days of the EPBC Act, but we would do that face to face. There's a chance now for us to record a more detailed and better, better quality version of this presentation, and this could be something we could, we would consider distributing more widely. However, this would also be something that's recorded as well. This presentation is being recorded and potentially can be provided later.

“Can assessment look at something wider than a proposed project that the proposal impacts on part of a sensitive environment area, but a part of a trend impacting the area over time?”

 Oh, this is a good question. One of the issues [under the EPBC Act] is it's not a planning scheme.  The planning schemes which would normally handle those smaller impacts and those wider area impacts, it is one of the great challenges of assessments under our system is that the individual project is assessed on its merits and in some respects the assessment would look at that wider, there's wider impacts on the environment in that their effect on the species and the species recovery and at the overall trends that are affecting the species and whether the project is exacerbating any of those. But generally, no, we would not consider those. We would not directly consider cumulative impacts.

Is there a standard time frame department takes in the validation? When the project impacts are a detailed level and submitted through the online portal after a pre-referral meeting hasn't raised any further question requirements?

I'm not sure I quite understand, I think you're trying to say is there a sort of a validation that we would do with proponents?  Short answer is no. There is a validation process within the department, when a referral is submitted, there is a validation process to make sure that it includes all the relevant information. If that doesn't include the relevant information required for the decision, we would stop the clock, go back to the proponent before this is before it's published and before you as the as a community commenter.

Would see the project if it appears on the on the referrals list for consultation it means it's been through that validation step, and it has the minimum meets the minimum requirements of a referral.

Last questions and then we might close this webinar.

 

“Public consultation with a proponent or consultation with a particular community group is inadequate prior to the decision. Can the Minister require more consultation of the issues?”

Short answer is yes. Sometimes we have issues that are with the technology where people. We realized later that people have not been given sufficient chance to comment. We can reopen consultation and can direct additional consultation at the discretion of the Minister.

One thing I would note that we if you have further questions, you are welcome to provide them into the e-mail that you have that you received the Environment Protection e-mail.

“Given the extent of the new listing of species, especially the koala, does the department have resources to deal with the potential influx of referrals?”

Short answer is yes. If you look at the recent budget, additional resources were provided to the department. We are confident that we have the resources to deal with those referrals.

The next question is, “if the proponent is unsuccessful, is there an opportunity for them to restart with yet another proposal? When does it end?”

Proponents and anyone can refer any project to the department, and we must assess it. One thing worth noting though. It is a relatively expensive process, and in addition, unless there's a material change to the project or to the environment, the decision would be very much the same. [Proponents] could do that [restart another proposal], but it's probably a little bit of a pointless exercise I would suggest.

We generally don't see that happening. What would happen is if people are refused, they would often come and discuss with the with the department why their project was refused. As I mentioned before, they can receive a statement of reasons that lays out those reasons for that decision and they would often be strongly advised to go and revise their proposal to minimise the impacts.

“Is there a need to quote page numbers in EIS or headings?”

Short answer is no. We find that most of the comments people make are around the issues that they're concerned with within the assessment documentation and the proponent must address the issues that have been raised.  it's not necessary to provide page numbers in the US. It might make it easier for the proponent or preparing the documentation to see which part of the which part of their EIS you're specifically discussing, but it's not an absolute requirement.

“Opponent has a vested interest in what the comments are, and the process seems to rely on trusting proponents to pass on community comment. How can we in the Community Trust that it will be passed on one of our paths to confirming that have indeed been passed on?”

As I said before, the department, the proponent must address the comments. While the names and addresses are generally suppressed, the comments are usually listed in the order in which they've been received.  I think you could be the community is able to see whether they're submission has been received and passed on.

If the department has already said a development is unacceptable, they have a reason to change that decision.

With significant new information and potentially new mitigation measures that would reduce the risk to the environment because it is a risk-based decision, that's possible, but generally unless all other things remaining equal, the decision will be the same.

“If a project is going to have a significant impact on a matter of national environmental significance. However, community consultation identifies that community support [on a potential decision] is strong [..] What is likely to be their department or the minister's decision?”

The Minister has freedom to make decisions on a fairly wide latitude.  The department will make a recommendation to the Minister of State which as to what the decision should be, and any recommend that we make recommendations on approval conditions to reduce impacts to an acceptable level. However, the ultimate decision is the ministers’. I can't really say what the likelihood of that decision is. It will be a value judgment based on the risks to the environment as well as economic and social aspects.

Because some of the commenters mentioned it would be desirable to do this again, and I hope to speak to you again, if there's any further follow up questions, please feel free send them into the department, and we might look and see if we can do something like this again.

Good night, everyone.