Looking Towards a New Set of Nature Laws for the NT
A history of failings
The history of environmental regulation in the Northern Territory is marred by a series of failures, some catastrophic. Redbank mine has been leaching toxic metalliferous water into the environment for many decades. There have been a number of radioactive leaks at the Ranger Uranium mine in Kakadu. Katherine Water supply is now contaminated by PFAS Chemicals, and the NT is littered with dozens of old mines sitting in perpetual care and maintenance, or waiting for proper rehabilitation.
The political will for proper monitoring, compliance and enforcement of regulations in the Northern Territory is lacking. Current laws do not require all development proposals to be rigorously assessed and provide unfettered discretion to the Northern Territory Environmental Protection Authority (NTEPA).
The Tanami pipeline, which will fuel the Granites Gold Mine, was not assessed through an Environmental Impact Statement (EIS). The NTEPA alone decided hundreds of kilometres of land clearing and trenching would not have a significant impact on the environment. It also decided 20 000 ha of clearing in the Top End did not need an EIS.
Another big problem is that some approval decisions are being made by people from the same industries under application. Pastoralists currently assess land-clearing applications through the Pastoral Land Board and the mines department currently assesses the adequacy of rehabilitation plans.
National campaigns like the Places You Love Alliance are driving conversation about the inadequacy of Australia’s environmental laws as one of the key causes of natural biodiversity decline. Flora and Fauna extinction rates continue to rise, as water tables and rivers struggle to sustain the communities that depend on them due to poor regulation. The Australian East Coast is now a global deforestation hot spot, and Australia is now ranked 37th on the Global Environmental Democracy Index behind Mongolia and Zimbabwe.
Here in the Northern Territory one of the worst recorded instances of mangrove die back globally occurred across the Top End due to extreme weather conditions in 2016, and more small mammals are becoming extinct. 51% of the Territory has recently been opened up to the process of hydraulic fracturing, which poses further risks to groundwater and will contribute to the Northern Territory’s increasing carbon emissions.
As we continue to learn of increasing rates of extinction, pollution and temperatures a paradigm shift in environmental law is needed so that it genuinely protects ecosystems rather than merely facilitating development.
The good news is that the Northern Territory is currently undergoing reform of a range of environmental acts and regulations in the NT, as committed to by the Gunner Government upon election in 2016. The significance of these reforms is unprecedented, with the opportunity to create a stronger set of laws that provide a much greater level of protection to the Territory environment.
However implementing the recommendations from the Independent Scientific Inquiry into Hydraulic Fracturing Final Report has completely overwhelmed the environmental reform agenda. Significant resources are now required for the implementation process which has super-ceded the environmental reform agenda. Whilst the final fracking report acknowledges the need for significant regulatory reform, the reform needs to be applied across all areas, not just the petroleum and gas industry.
Five new mines?
Another key issue is that five new mine proposals are currently being assessed, without the new environmental laws in place.
The risk is that these mines are being expedited through the approval process before the more stringent environmental laws are introduced. It is important that these mines are not ‘grandfathered’ or given exemptions under the new environmental laws.
There are also concerns about the capacity of the NT EPA to regulate five operational mines in the South when they currently regulate none. Other than the Harts Range Garnet Mine, which was operational for a year and inconsistent manganese production at Bootu Creek, no major mines have been approved for over three decades in arid NT.
Of the recent mine approvals, the NT EPA acknowledged a high degree of uncertainty in potential impacts. Despite this, several approvals have been granted on the premise that the company will prove the safety of the operation at a later point, through documents that are not publicly available.
Commonwealth approval was granted for the Nolans Rare Earth Mine near Aileron on the condition that the company “demonstrate that groundwater drawdown does not occur” at two key sensitive ephemeral swamps. The approach of ‘Approve first, prove safety later’ is risky and irresponsible.
The Nolans Rare Earths Mine could create a multi-generational hazardous legacy of tailings heavily laced with radioactive material. The potential impacts are dead zones for many generations to come. The significance of this is far beyond what is captured in a technical assessment report.
The TNG MT Peake Vanadium/Titanium Mine planned near Barrow Creek on Kaytej country could kill thousands of River Red Gums through water use. While the Central Land Council has noted this is an unacceptable impact, there is no legal guarantee for the protection of the trees in the approval. The rehabilitation and closure plans for the mine remain conceptual and incomplete, but were nonetheless approved. It is therefore possible that the amount held in an environmental bond for security could be vastly underestimated.
The Chandler Project is a prime candidate for assessment under the new Environment Protection Act. A proposal for a deep salt mine followed by a hazardous chemical waste dump on Maryvale and Henbury Stations near Titjikala, 130kms south of Alice Springs could see 400 000 tonnes of hazardous waste per year for 25 years stored under the current regulatory system. This project needs to be assessed under a new regulatory regime that ensures the water, land and people of central Australia are protected for the entire life of the project. The risks of this complex project require a contemporary and robust regulatory system.
The current approach exempts it from the Waste Management and Pollution Control Act regulated by the Environment Department and exacerbates uncertainty and risk. Assessing the project through the lens of an Environment Protection Act that considers the overall environmental impact and regulates it through the Department of Environment and Natural Resources and the NT Environment Protection Authority would provide a greater level of oversight and protection.
Other mining proposals include the Jervois Copper and base metal project North East of Alice Springs and the Ammaroo open cut phosphate project near Ampilatwatja.
There are no legitimate policy justifications to expedite these mine approvals when there is still a great deal of uncertainty about the environmental impacts of these mining projects and the role of the new environmental regulations. Nonetheless industry “considers that the policy and regulatory settings of the consecutive Governments hinder the Northern Territory’s development” (AMEC NT Reform Strategy 2017).
AMEC and other mining groups talk of the approvals timeline as if an approval is a foregone conclusion. Their confidence is obvious and probably well founded as projects in the Northern Territory are rarely rejected. Only the McArthur River mine expansion was rejected by the NT EPA only for the decision to be later overruled.
A critical juncture
This is a critical juncture for the Northern Territory in terms of the how we acknowledge and address our weak environmental laws.
We anticipate that a consultation paper outlining the new Environment Protection Act will be released in the last quarter of the year. This will be accompanied by the publication of Territory Environmental Objectives. These are being developed as informal factors to guide the environmental assessment process and will include objections such as a projects impact on the climate, landform and water. These will ensure that no project with an environmental impact will escape rigorous environmental assessment.
Unless there are coercive penalties for non-compliance, mining companies and others guilty of environmental offences will continue to cause harm with apparent impunity. The Northern Territory needs law that holds corporate directors personally responsible for any environmental harm that their companies are responsible for. These laws, known as ‘Chain of Responsibility’ have been effective in Queensland in holding directors accountable and should be introduced here.
Environmental decisions should be made based on the best available science without industry intervention, there needs to be full and open public participation, decisions need to be strictly monitored, and breaches apprehended. There will be several opportunities to contribute to the design of these laws through the public consultation process.
For too long special interests and industry have dictated the scope and degree to which they are subject to environmental law. Only through implementing ambitious reform will we be able to trust in Government to protect our valuable ecosystems and ensure development is ecologically sustainable.
We will continue to advocate for the strongest and most progressive reform in line with national campaigns pushing for the next generation of environmental law. This message is strengthened if many people engage with the reform process through making submissions.