September 28, 2020

Volume X, Number 272

September 28, 2020

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Have Your Say – Public Consultation on How Western Australia Can Modernise Its Environmental Protection Legislation Now Open

Public consultation is currently open for the Western Australian (WA) government’s proposed amendments to the state’s environmental protection legislation. The proposed changes aim to modernise the state’s environmental protection legislation to address the new challenges and priorities that have arisen in environmental protection in the 30 years since the Environmental Protection Act 1986 (WA) (EP Act) was introduced. With Australia currently experiencing perhaps the most catastrophic bushfire season in living memory, and the CSIRO reporting an increase in extreme weather conditions, rising sea levels and a warming of Australia’s climate and oceans by approximately 1°C since 1910, it is important that we consider how our environmental protection legislation can best address these emerging challenges. This coincides with the Commonwealth government conducting its review of the federal Environmental Protection Biodiversity Conservation Act 1999 (Cth) and calling for industry and the community submissions, reflecting that environmental protection legislation reform is of timely importance in Australia.

The WA state government has released a draft bill and a discussion paper, and is currently seeking feedback on the proposed amendments, in particular whether the amendments meet the expectations of community and industry in protecting the environment and promoting sustainable development. Submissions close on 28 January 2020 with all stakeholders invited to share their views on the proposed amendments by making a submission to the Department of Water and Environmental Regulation (DWER).

The key drivers behind the EP Act amendments are to modernise the legislation for the benefit of future generations; create a “one-stop shop” for industry and developers, promoting sustainable development and best practice environmental protection through effective regulation; and address issues currently undermining the effective and efficient implementation of the EP Act.

The draft bill proposes amendments to the parts of the EP Act dealing with environmental impact assessment, environmental regulation, enforcement and appeals. Some of the notable changes to the environmental impact assessment (EIA) include:

  • Reforms aimed to simplify and streamline the process to be followed when a proponent wants to change a proposal, or the conditions that relate to it, after referral but during assessment

  • The introduction of a new power of the Environment Minister (the Minister) to amend conditions without a full inquiry, where there is no significant change to environmental impacts

A significant change to the powers of the Minister under Part IV is also proposed. The change would allow the Minister to determine, with the consent of the proponent, that the implementation obligations of the proponent and DWER imposed by an implementation statement no longer apply. If introduced, this change will allow ministerial statements for proposals that the proponent has decided not to proceed with to be withdrawn, removing any obligations that applied under that ministerial statement. The draft bill also enables the Minister to reverse the decision to withdraw a ministerial statement, which would assist in the situation where a proponent later decides it wishes to implement a proposal, which was the subject of a withdrawn ministerial statement. These proposed changes will simplify the process and provide greater certainty to proponents and DWER as to their obligations under ministerial statements.

Other changes include the removal of Works Approvals under Part V Division 3, a shift towards strategic approaches rather than case-by-case assessments, cost recovery for EIA under Part IV, substantial reforms to Part V Division 2, which deals with clearing of native vegetation, to name a few. You can download the draft bill and discussion paper, and review all the proposed changes. 

In December last year, the WA chapter of the National Environmental Law Association (NELA(WA)) held a briefing presented by Sarah McEvoy, the Executive Director of Strategic Policy and Programs and DWER, where she provided attendees with an overview of the key changes proposed by the draft bill and called for public submissions. Mariko Eleanor Hunt, an associate in our Perth office, was recently appointed as the Vice President of NELA(WA).

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 16

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