On 17 October 2016, the NSW Department of Planning (Department) announced that it is reviewing the Environmental Impact Assessment (EIA) process for State Significant Development (SSD). A discussion paper has been released which flags a number of changes to the EIA process for SSD applications. The purpose of the review is to establish a new set of guidelines for assessing large projects.
McCullough Robertson’s resources blog provides regular updates and discussion on legal developments affecting the coal, metals, oil and gas and renewables sectors.
Friday, 21 October 2016
Wednesday, 30 March 2016
Amendment seeking a balance between the right to peaceful protest with the need to ensure public safety.
The Inclosed Lands, Crimes and Law Enforcement Amendment (Interference) Act 2016 (Inclosed Lands Act) received assent on 22 March 2016. It is aimed at seeking a balance between the right to peaceful protest with the need to ensure public safety. The Inclosed Land Act:
- creates an aggravated form of the offence of unlawful entry on inclosed lands, increasing the penalty from $550 to $5,500. This maximum penalty relates to land on which a business being conducted and where the offender interferes with the conduct of the business or does anything that gives rise to a serious risk;
- gives additional search and seizure powers where a police officer suspects on reasonable grounds that a person has anything that is intended to be used to lock-on or secure a person to any plant, equipment or structure for the purpose of interfering with the conduct of a business or undertaking and that is likely to be used in a manner that will give rise to a serious risk to the safety of any person; and
- removes limitations on the exercise of police powers to give directions in public places to prevent obstructions of persons or traffic in the case of demonstrations, protests, processions or organised assemblies.
Thursday, 17 March 2016
Engage Early - Best practice Indigenous engagement – new EPBC Act guidelines
The Commonwealth Department of Environment (DoE) has published a guideline that
outlines best practice strategies to engage with Indigenous groups called ‘Engage Early: Guidance for proponents on
best practice Indigenous engagement for environmental assessments under the
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)’ (EngageEarly).
‘Engage Early’ will apply to projects requiring approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act), although the guideline contains useful engagement strategies for projects more generally.
Engage Early’ sets out the following strategies and provides examples of best practice of each:
Notably for proponents, ‘Engage Early’ places a significant focus on engagement prior to referral of a project under the EPBC Act. This engagement is to be in addition to the usual public consultation requirements for matters assessed under the EPBC Act or other State based approval processes. Proponents are required to undertake genuine engagement with Indigenous people and report on this engagement as part of the broader environmental assessment documentation.
In addition to any requirements of the Native Title Act 1993 (Cth), Engage Early emphasises the importance of appropriate engagement with Indigenous people in circumstances where a project will overlap with areas that could be subject to a native title claim or determination in the future.
Another focus of ‘Engage Early’ is an intention to link environmental offsets that are carried out under the EPBC Act with opportunities for Indigenous people to fulfil the offset requirements using a collaborative approach – such as through an Indigenous enterprise that can use offset funding to carry out management activities to enhance the environment.
As a guideline, ‘Engage Early’ has limited legal force however as we have seen with similar guidelines issued by DoE, this document sets out DoE’s expectations as they relate to Indigenous engagement and is therefore an important guide for proponents of new projects.
We recommend that proponents, particularly those with projects that require engagement with Indigenous people and referral under the EPBC Act, become familiar with the best practice requirements and where environmental offsets are required, consider opportunities to work with Indigenous people to fulfil these requirements.
‘Engage Early’ will apply to projects requiring approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act), although the guideline contains useful engagement strategies for projects more generally.
Engage Early’ sets out the following strategies and provides examples of best practice of each:
- identifying and acknowledging all relevant affected Indigenous peoples and communities;
- committing to early engagement at the pre-referral stage;
- building trust through early and ongoing communication for the duration of the project, including approvals, implementation and future management;
- setting appropriate timeframes for consultation; and
- demonstrating cultural awareness.
Notably for proponents, ‘Engage Early’ places a significant focus on engagement prior to referral of a project under the EPBC Act. This engagement is to be in addition to the usual public consultation requirements for matters assessed under the EPBC Act or other State based approval processes. Proponents are required to undertake genuine engagement with Indigenous people and report on this engagement as part of the broader environmental assessment documentation.
In addition to any requirements of the Native Title Act 1993 (Cth), Engage Early emphasises the importance of appropriate engagement with Indigenous people in circumstances where a project will overlap with areas that could be subject to a native title claim or determination in the future.
Another focus of ‘Engage Early’ is an intention to link environmental offsets that are carried out under the EPBC Act with opportunities for Indigenous people to fulfil the offset requirements using a collaborative approach – such as through an Indigenous enterprise that can use offset funding to carry out management activities to enhance the environment.
As a guideline, ‘Engage Early’ has limited legal force however as we have seen with similar guidelines issued by DoE, this document sets out DoE’s expectations as they relate to Indigenous engagement and is therefore an important guide for proponents of new projects.
We recommend that proponents, particularly those with projects that require engagement with Indigenous people and referral under the EPBC Act, become familiar with the best practice requirements and where environmental offsets are required, consider opportunities to work with Indigenous people to fulfil these requirements.
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