Council of Australian Governments, November 1997
Environmental approval processes
1. The Commonwealth and States will seek to establish bilateral agreements which will replace, wherever possible and appropriate, the case-by-case assessment and approval process. Where an activity or proposal (‘proposa') is within the scope of a bilateral agreement, the environmental assessment and approval process will be dealt with by the relevant State and the Commonwealth in accordance with the provisions of that agreement.
2. For proposals other than those subject to a bilateral agreement, the case-by-case assessment and approval process will be streamlined to achieve more certain, timely and open decisionmaking.
3. Bilateral agreements will provide for Commonwealth accreditation of State processes and, in appropriate cases, State decisions (for example, agreed management plans). Bilateral agreements will also provide for State accreditation of Commonwealth processes and, in appropriate cases, Commonwealth decisions.
4. In particular, bilateral agreements will:
- detail the level of Commonwealth accreditation of State practices, procedures, processes, systems, management plans or other approaches;
- as appropriate, codify decisionmaking criteria and provide for delegation or recognition of decision-making, dispute resolution, reporting, public notification, information exchange, monitoring, auditing and review of the agreements based on their operation and effectiveness; and
- detail the level of State acceptance and accreditation of Commonwealth processes and decisions.
During the formulation of such agreements, the States will have regard to the implications for Local Government.
5. Where the Commonwealth considers that a proposal:
- is not covered by a bilateral agreement; or
- if covered by a bilateral agreement, is not being dealt with by the State in accordance with that bilateral agreement;
the Commonwealth may request a State to refer the proposal to it and that proposal will be dealt with under the case-by-case process.
Case-by-Case assessment and approval
Referral to the Commonwealth
6. Where the relevant State authority is formally notified of a proposal that does not fall within the terms of any bilateral agreement and:
- involves a matter of national environmental significance as referred to in Part I of Attachment 1; or
- the State considers may involve such a matter of national environmental significance;
the State shall refer that matter to the Commonwealth as soon as practicable after formal acceptance of the notification.
The States shall, in consultation with the proponent, ensure that before referral, the nature and scope of the proposal is clear and that adequate information is provided to the Commonwealth for decision-making.
Where a State and the Commonwealth agree to a more streamlined process than the one above, this different process will apply.
7. Proponents may refer proposals directly to the Commonwealth for a determination of whether a matter of national environmental significance exists once a formal notification has been made to the relevant State agency. On receipt of the proposal, the Commonwealth will notify the State of the referral and, in consultation with the State and proponent, ensure that the nature and scope of the proposal is clear and that adequate information is provided.
8. Where adequate information is not available under paragraph 6 or 7, the Commonwealth may seek further information necessary for its deliberations.
National environmental significance determination
9. Within four weeks of any referral from a State under paragraph 6 or a proponent under paragraph 7, or the subsequent provision of any necessary further information by a State or a proponent under paragraph 8, the Commonwealth will:
- determine whether or not a matter of national environmental significance exists in relation to a proposal; and
- where a matter of national environmental significance exists, determine the scope of Commonwealth interest in the proposal and the nature and extent of involvement that the Commonwealth wishes to have in the decision-making process, including details of the decisions the Commonwealth is required to take; and
- advise the relevant State and the proponent.
If the Commonwealth does not respond within four weeks of referral, or the provision of the necessary further information, then the State may proceed with decision-making on the proposal as though a determination had been made under paragraph 12 that a matter is not of national environmental significance.
As soon as practicable after the determination, the Commonwealth will produce written reasons as to why the matter is, or is not, of national environmental significance.
10. In the case of a proposal which may involve a matter of national environmental significance which is not referred to the Commonwealth under paragraphs 6 or 7, the Commonwealth may request a State to refer a proposal to it. The State will be obliged to respond within three weeks. The Commonwealth will determine, within a total of four weeks of such notification, whether there are matters of national environmental significance in relation to the proposal. The making of a determination will be subject to the nature and scope of the proposal being clear and adequate information being provided.
11. Where a difference of opinion exists about any of the matters referred to in paragraphs 9 or 10, the Commonwealth and State Ministers responsible for the matters under consideration shall use their best endeavours to resolve the issues within four weeks of the difference of opinion arising. If there is no resolution of the matter the Commonwealth Minister will, within two weeks thereafter, determine whether a matter of national environmental significance exists in relation to the proposal and:
- produce written reasons as to why the matter is, or is not, of national environmental significance; and
- give public notice of the determination, the reasons for the decision, and the details of the decision-making process including the nature and extent of Commonwealth participation; and
- prior to such publication under (ii), advise the State and the proponent of all those matters.
12. If the Commonwealth determines under paragraphs 9, 10 or 11 that there are no matters of national environmental significance in relation to a proposal, such a determination is binding in relation to environmental considerations and the proposal will be considered in accordance with State environment approval processes.
13. The parties agree that the Commonwealth determination on national environmental significance under paragraphs 9, 10 or 11 can only be reviewed in exceptional circumstances when either substantial new information has become available or where there has been a substantial and unforeseen change in circumstances which are critical, and of direct relevance, to the Commonwealth's determination. The parties agree to consult promptly in these circumstances.
Assessment and approval process
14. Where there is a determination that a matter of national environmental significance exists in relation to a proposal, the Commonwealth and the State or States concerned will, within six weeks of the determination, agree on the environmental assessment and approval process to be followed, the range of issues relating to national environmental significance matters to be addressed in the process and the timelines for the stages of the decision-making process. This will include the nature and extent to which the Commonwealth and the State(s) are to give full faith and credit to the results of these processes.
If there is no agreement within six weeks, the Commonwealth may determine, within an additional ten days, that a Commonwealth process will be followed in addition to any State process. The State(s) must be notified accordingly.
15. The Commonwealth and the States agree to legislate, as necessary, to implement this Attachment.
Prior to such legislation being introduced, each State will consult with Local Government on the implications of the provisions of this Attachment for Local Government.
The Commonwealth will ensure that its legislation provides a framework for the recognition and implementation of bilateral agreements.