AER 30.8 - Morris

If it’s broke, fix it!The Northern Territory’s shambolicenvironmental assessment laws: The PortMelville experienceDavid Morris ENVIRONMENTAL DEFENDERS OFFICE NT

The Port of Melville is located on Melville Island, the

larger of the two Tiwi Islands to the north of Darwin in

the Northern Territory (NT). The Port and the original

wharf facility were constructed in 2003/4 for the export

of woodchips.1 Recently, a major redevelopment of the

Port, the construction of which occurred without any

form of environment approval, has thrown the Port’s

operation, and the Territory’s weak environmental assess-

ment laws, into the spotlight. There are a great number

of deficiencies in the NT’s environmental assessment

regime. This article, however, will focus only on the

elements of the regime, which allowed this major

re-development to occur without any form of environ-

mental assessment.

Background

The Islands, the forestry industry and theoriginal wharf

Melville Island, on which Port Melville is con-

structed, is Australia’s second largest island, behind

Tasmania.2 The Islands are sites of international conser-

vation significance, being home to no less than 38

threatened species, including the endangered Tiwi Masked

Owl and Olive Ridley Turtle. The Islands also host the

world’s largest breeding colony of the internationally

significant seabird, the Crested Tern, and provide nesting

sites for a number of internationally significant marine

turtles.

The Islands most significant industry is forestry

plantations for woodchip production.3 Approval for

large scale forestry operations on Melville Island under

the Environment Protection and Biodiversity Conserva-

tion Act 1999 (Cth) (EBPC Act) was given by the then

Commonwealth Minister for the Environment and Heri-

tage, Robert Hill, on 12 August 2001.4 The approval

allowed 26,000 hectares of forestry operations on Melville

Island and was met with opposition by environmental-

ists.5

From 2001, Sylvatech Pty Ltd ran the forestry opera-

tions until Great Southern Limited (Great Southern)

acquired it in 2004. In 2009, following considerable

controversy, the Great Southern Group was placed in

administration.

The Port Melville site is situated on 36 hectares of

land and was cleared of native vegetation during the

Port’s original construction. It is not clear whether this

clearing, or the original construction of the port, was the

subject of any environmental assessment or approval.6

Since its construction in 2004, the original wharf was

used by Great Southern for the export of woodchips.7

The original wharf was damaged by a cyclone in 2005,

and ultimately failed in 2007. Prior to going into

administration, Great Southern had intended to have a

central role in the reconstruction of the port facility,

stating in its submission to the Senate inquiry on forestry

and mining operations on the Tiwi Islands, “over the

next three years, Great Southern will be planning,

designing and constructing a new ship loading facility

on the site of the existing general cargo wharf at Port

Melville. This is likely to require expenditure of $40 to

$50 million”.8

The new owners, the new wharf and the newplans for Port Melville

In September 2010, Ezion Offshore Logistics Hub

(Tiwi) Pty Ltd (Ezion) entered into a 50-year lease with

the Tiwi Land Council (TLC) for the Port Melville land.

The lease gave Ezion an exclusive arrangement as

operator of the Port.

In July 2014,AusGroup acquired Ezion, withAusGroup’s

CEO presenting the investment as the opportunity to

develop the “marine base asset”.9 The company viewed

itself “as the only Australian approved bunkering service

provider”. Bunkering generally refers to the storage of

petroleum in tanks for ship refuelling.10

In a media release to the Singapore Stock Exchange

on 25 September 2014, Ezion Holdings Limited stated

“EOLH (Ezion Offshore Logistics Hub (Tiwi) Pty Ltd)

is in the process of developing a 30 million litre tank

farm at Port Melville to meet the fuel storage and

australian environment review February 2016 219

distribution requirements of the oil and gas multination-

als that are operating in the Northern Territory of

Australia and the Timor Sea”.11

The upgrade of the Port is a large-scale project worth

in the order of $130 million.12 The latest TLC publica-

tion, ‘The Tiwi’ states “this project would be considered

large scale anywhere in Australia and is happening right

here in Tiwi”.13

According to the February 2014 Notice of Intention

(NOI) provided to the Northern Territory Environment

Protection Authority (NTEPA) by the proponent, the

development involves:

• a new wharf (already installed prior to the submis-

sion of the NOI); and

• on-shore facilities including a warehouse, fuel

storage (two 10 million litre above ground tanks),

workshop, woodchip stockpile area, office facili-

ties, wash-down facilities, container inspection

facilities, drainage basins for the capture of sedi-

ment in run-off and a 150 person accommodation

village.14

The March 2015 edition of “The Tiwi” says, “The

most significant milestone/feature is that the steel fuel

storage tanks have started coming out of the ground.

When these tanks are completed each will be 16m high

x 30 metres in diameter and will hold 10 million litres of

fuel for a total tank farm holding capacity of 30 million

litres”.15

An earlier edition of “The Tiwi” discussed the

construction of the wharf, stating:

The M&C “first landing party” arrived at Melville Island tocommence the construction of the new Port Melville wharf.In the 4 months since then we have:

• mobilised heavy plant and equipment from all overAustralia to the remote Tiwi site to undertake thesespecialised marine construction works,

• earthworks including the excavation of approxi-mately 25,000m3 of material for the approach pon-toon pocket and the abutment wall construction,

• driven 110m of sheet pile varying from 16m to 8mlong,

• installed 800m of purpose built tie-rods,

• driven 30 914mm OD piles varying from 16m to 30m into the seabed which equates to approximately600m of pile in the ground.

• fabricated and installed 120 tonnes of structuralsteelwork, completed in Darwin,

• moved the 3 pontoons into position,

• installed the mooring and berthing furniture, and• built a wharf.16

The description in the NOI and the above descrip-

tions in “The Tiwi” provide an understanding of the

scale of the works (including marine construction works)

that have occurred as part of the Port’s upgrade.

Environmental assessment of the Port’s upgrade

It is not disputed that the construction has occurred

without any form of environmental approval, however,

whether the construction required approval is the bone

of some contention.

In February 2014, at the request of the NTEPA, the

proponent did submit a NOI. The listed objectives and

scope of the NOI are “[to provide] the required infor-

mation for an initial assessment of the proposed Port

Melville development under the Northern Territory Envi-

ronmental Assessment Act and Environmental Assess-

ment Administrative Procedures … this information

aims to allow the Northern Territory Environment Pro-

tection Authority (EPA) to determine the level of assess-

ment required”. It is worth noting that by the time the

NOI was submitted to the NTEPA, work on the Port site

was well advanced.17 The NTEPA’s Director, Dr Freeland

is reported as stating that the NOI’s information was “so

deficient in information” that they had to seek further

information which, as of 6 May 2015, had not been

forthcoming.18 To date, the NTEPA has not made any

statements about whether an environmental assessment

is required for the construction activities required in the

upgrade of the Port.

A recent investigation by the Commonwealth Depart-

ment of the Environment found that the construction

activities at the Port did not require referral under the

EPBC Act because the “action” (the construction) was

“unlikely to have a significant impact on a matter of

national environmental significance (MNES). This inves-

tigation and the assessment of whether the construction

activities would have a significant impact on any MNES

took place after the fact and retrospectively. This is

clearly not the way environmental assessments are

supposed to occur. Thomas and Elliot, in Environmental

Impact Assessment in Australia: Theory and Practice,

note, “The EIA process should be applied as early as

possible in decision making”.19

It remains unclear what further work is required to

complete the Port Melville site; however, it is trite to say

that facilities at the Port are nearing completion. If this

type of construction work, occurring in an area of

international conservation significance, does not require

referral because of the potential to significantly impact

MNES, it is hard to think of a construction project that

would.

AusGroup’s managing director Gerard Hutchinson

was recently reported as stating, “the construction of the

port and fuel facility at Port Melville remain on track for

completion in mid-2015 and following the award of a

number of vessel charter agreements it is now expected

that the port and marine services business will be in a

position to commence positive contribution in Q1 FY16”.20

australian environment review February 2016220

Legislative framework

EnvironmentalAssessmentintheNorthernTerritory

Environmental assessment of development proposals

in the Northern Territory is governed by the Environ-

mental Assessment Act 1982 (NT) (EA Act) and the

Environmental Assessment Administrative Procedures

1984 (NT) (the Procedures).21

The object of the EA Act is “to ensure, to the greatest

extent practicable, that each matter affecting the envi-

ronment which is, in the opinion of the NT EPA a matter

which could reasonably be considered to be capable of

having a significant effect on the environment is fully

examined and taken into account in, and in relation to”

certain actions, defined as “proposed actions”.22 Works

of the kind being undertaken as part of the upgrade at

Port Melville would usually be considered “proposed

actions” under the EA Act.

The details about how environmental assessments are

to take place in the territory are found in the Procedures.

Clause 6 of the Procedures sets out how projects are

supposed to be referred to the NTEPA for a decision on

whether or not environmental assessment is required.

Clause 6 provides:

6 Notification of proposed action to NT EPA

(1) A responsible minister shall, as soon aspracticable after being informed of the formu-lation of a proposed action, cause notificationto be given in writing (in an approved form) tothe NTEPA specifying the proposed actionand the name and address of the proponent in

respect of the proposed action.[emphasis added]

Where notification does not occur via the responsible

minister under cl 6, the NTEPA has the power to require

a proponent to provide it with notification.

Following the receipt of a notification (which comes

in the form of a NOI), the NTEPA decides whether or

not an EIS or PER is required. Clauses 8–13 of the

Procedures set out the relevant actions required and the

statutory timeframes that must be met (including periods

for public comment).

The NTEPA’s involvement in the process of environ-

mental assessment in the Territory is at an end once it

provides an “assessment report” about the proposed

action (which can include any recommended conditions)

that it thinks fit for the protection of the environment to

the Minister for the Environment (Minister) under cl

9(3) for a PER or cl 14(3) for an EIS. The NTEPA’s role

is purely advisory.

After receiving the NTEPA’s assessment report, the

Minister must forward it to the responsible minister

(along with any comments) for their consideration. The

ultimate responsibility for approval (and the imposition

of conditions), or otherwise, of any particular proposed

action lies with the responsible minister.

In the event that a proposed action may have an

impact on a MNES23 under the EPBC Act at the

Commonwealth level, the “modified procedures” apply.

The modified procedures were inserted into the proce-

dures by an amendment made on 3 May 2003, following

the execution of a bilateral agreement between the

Northern Territory and the Commonwealth made under

s 45 of the EPBC Act. The modified procedures apply

where a proposed action (under the EA Act) is also a

controlled action, for the purposes of the EPBC Act. The

modified procedures have the effect of “upgrading” the

Northern Territory’s assessment procedures so that they

are in line with the more stringent requirements of the

EPBC Act.

Port Melville and the failure of the NTassessment regime

The Port of Melville experience highlights some

important deficiencies in the NT environmental assess-

ment regime. First and foremost, the whole NT regime

for environmental assessments hinges upon there being

a “responsible minister” for any given project. “Respon-

sible minister” is defined in the EA Act as “in relation to

a proposed action, … the Minister primarily responsible

for authorising the proposed action”.

Now that all seems straight forward enough, how-

ever, in relation to Port Melville, the government stated

that there is no responsible minister. This is despite the

Chief Minister being listed as the minister responsible

for “ports development” under the Northern Territory

Administrative Arrangements Order.

Various representatives of the NT Government made

statements about the process followed with regard to the

environmental assessment of Port Melville. The Former

Minister for Lands and Planning, Peter Chandler, report-

edly stated, “I know there was EIS involved in this

process”.24 That statement was later contradicted by the

current Minister for the Environment, Gary Higgins,

who told the ABC that, “a loophole in planning laws

allowed the port to be constructed without an environ-

mental impact statement (EIS) and despite no minister

signing off on the project” … “there is no responsible

minister for signing off on a port development”.25 A

spokesman for the Chief Minister, Adam Giles, stated

that “[Giles’ responsibility for ports] did not apply to the

Port Melville facility because it was considered private

infrastructure, not a port”.26

The development at Port Melville did not require any

permit or approval under the Planning Act 1999 (NT)

(Planning Act). The land on which the port is situated is

“unzoned land” and is therefore not subject to land use


controls. The only planning control that would apply tothe site is the requirement to obtain a permit for clearingin excess of 1ha of native vegetation. In this case,because the Port site had already been cleared, no permitunder the Planning Act was required, and the Ministerfor Lands and Planning was therefore not the respon-sible minister.

This may seem peculiar, however it is legally correct.With the exception of the Port of Darwin, which isregulated by the Darwin Port Corporation Act (NT) andthe Marine Act (NT), none of the territory’s other portsare regulated at all; at least not by NT law.27

The need for law reform in this area, particularly thedifficulties with the regime relying on an identifiable“responsible minister” and the lack of an offence provi-sion for a proponent failing to refer a proposed action,have been previously identified. In 2010, the NTEPAmade a comprehensive submission to the NT Govern-ment outlining its recommendations for improving envi-ronmental assessment in the Northern Territory. Thatsubmission noted significant and numerous flaws in theNT’s environmental assessment regime. Notably thoseconcerns included:

• the definition of “proposed action” and the lack ofdefined triggers determining the need for referral tothe NTEPA for assessment;28

• having the ‘responsible minister’ responsible forreferral, rather than the proponent;29 and

• the lack of offences under the EAAct which could beused to make a proponent accountable.30

Additionally the NTEPA’s submission noted that “the

Administrative Procedures also assume that all proposed

actions require a form of administrative approval”, and

therefore will have a responsible minister.31 Obviously

in the example of Port Melville that was not the case.

The EPA stated in their submission: “The EPA

recognises that the development of triggers will require

an investment of time and resources; however it sees this

element of the reform as important”.32 The Port Melville

example has highlighted that the absence of both a

“trigger” (for referral) and a responsible minister has

meant a “large scale” project in an area of considerable

environmental significance has been completed without

any form of environmental impact assessment. As stated

above, to date, the NTEPA has made no finding about

whether the construction activities at the Port will

require assessment, nor is it clear whether the proponent

has addressed the information deficiencies that Dr Freeland

highlighted.

Dr Freeland is reported as telling the ABC that:33

He could require AusGroup to go through a full publicenvironmental impact statement process … but there wouldonly be a point to that if the Territory Governmentlegislated to make a minister responsible for giving the finalapproval for signing the completed EIS off, and that couldtake some time.

Dr Freeland states that the legislation makes the job

of the NTEPA “extremely difficult” and in the author’s

view, he is correct. Failures of successive governments

to achieve meaningful legislative reform in this area

have left the NTEPA a mere advisor to the NT environ-

mental assessment regime.

It is unclear why the NTEPA did not use the power

available to it under s 69 of the EPBC Act. That power

enabled the NTEPA to, at any time after becoming aware

of the upgrades at the Port, refer the matter to the

Commonwealth Minister for the Environment for a

decision whether or not the action was a controlled

action. The exercise of this power would have seen an

assessment regime triggered and could have, to some

extent, addressed Dr Freeland’s stated concerns about

the company’s failure to “abide by the spirit of the [NT]

act”.

The Port Melville experience provides the latest

example that the NT’s environmental assessment regime

requires significant reform. This example also demon-

strates that the NT is currently ill equipped to assume

federal powers to approve developments, and indeed

that the NT’s current powers should be the subject of

greater scrutiny and complete legislative overhaul.

David Morris

Principal Lawyer

Environmental Defenders Offıce Northern Territory

Footnotes1. Ezion Offshore Logistics Hub (Tiwi) Pty Ltd, Notice of Intent

(NOI) Port Melville, February 2014, p 10.

2. Australian Govermnent, Geoscience Australia, National Loca-

tion Information: Islands—Largest Islands, locatedat:www.ga.gov.au/

scientific-topics/geographic-information/landforms/islands#heading-

1.

3. Commonwealth of Australia Senate Standing Committee on

Environment, Communications, and the Arts Reference Com-

mittee, Report on Forestry and mining operations on the Tiwi

Islands, October 2009, p 2.





5. See the submissions to the Senate Inquiry on Forestry and

mining operations on the Tiwi Islands submitted by, The

Environment Centre Northern Territory located at: http://

ecnt.org.au/tiwi-forestry/ and the Australian Conservation Foun-

dation located at: www.acfonline.org.au/ sites/default/files/

resources/ACF_Tiwi_Island_Senate_Inquiry_Submission_March_2009.pdf.

6. A Aikman, Port Melville to be referred for environmental

assessment, The Australian, 8 May 2015 “Advice from the

Northern Territory Minister for the Environment and Heritage

australian environment review February 2016222

(Chris Burns) on 14 August 2003 confirmed that no formal

environment assessment was required”.

7. Matilda Minerals, who negotiated a port access agreement with

the forestry proponent, to enable it to ship mineral concentrate

from Melville Island, also used the original wharf.





9. Asia Pacific Equity Research, JP Morgan, Ezion Holdings Ltd,

22 July 2014.

10. Asia Pacific Equity Research, JP Morgan, Ezion Holdings Ltd,

22 July 2014.

11. Ezion Holdings Limited, Media Release dated 25 September

2014, Singapore Stock Exchange.

12. Land Development Corporation, Tiwi Islands Investment Pro-

spectus, 2014, p 15.

13. Tiwi Land Council, Developments at Port Melville, The Tiwi,

March 2015, p 8.

14. Ezion Offshore Logistics Hub (Tiwi) Pty Ltd, Notice of

Intention (NOI) Port Melville, February 2014, p 10.

15. Above, n 11.

16. Tiwi Land Council, Built a Wharf, The Tiwi, October 2013, p

8.

17. Ezion Offshore Logistics Hub (Tiwi) Pty Ltd, Notice of

Intention (NOI) Port Melville, February 2014, see p 10.

18. ABC News Report, NT Govt admits planning ‘loophole’ meant

Port Melville was built without environmental impact state-

ment, Wednesday 6 May 2014, 5.12pm.

19. I Thomas and M Elliot, Environmental Impact Assessment in

Australia: Theory and Practice, The Federation Press, Sydney,

2005.

20. Companies & Markets, AusGroup posts profit of A$2.05m in

Q3, The Buisness Times, May 11 2015, located at: http://

www.businesstimes.com.sg/companies-markets/ausgroup-posts-

profit-of-a205m-in-q3.

21. The Procedures are not supported by any regulations that set

out offences (and corresponding penalties) for failure to com-

ply with the Procedures. As such, the Procedures are currently

unenforceable.

22. Environmental Assessment Act(NT) ss 3, 4.

23. As set out in Part 3 of the EPBC Act.

24. K Wild, NT govt admits planning “loophole” meant Port

Melville was built without environmental impact statement,

ABC News Online, updated Wednesday 6 May 2015.

25. Above, n 24.

26. Oaten, J, NT Chief Minister Adam Giles responsible for “ports

development” but not Port Melville, his offıce says, ABC News

Online, updated Thursday 7 May 2015.

27. We note that some ports related to mining activities in the NT

are regulated via the Mining Management Act.

28. Northern Territory Environment Protection Authority, The

Environment Protection Authority’s Final Advice on Improving

Environmental Assessment in the Northern Territory, 2010, pp

v, 21–23.



Environmental Assessment in the Northern Territory, 2010, pp

v, 21–23.



Environmental Assessment in the Northern Territory, 2010, p

vii.




21.




22.

33. Bardon, J, Port Melville: Developer AusGroup ‘surprised’ by

accusations of environmental delays and deficiencies, ABC

News Online, posted Friday 15 May 2015.


Documents

AER 30.8 - Morris