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Planning and environment

New powers granted to the Coordinator-General under State Development legislation

The Queensland Government has amended the State Development and Public Works Organisation Act (‘SD Act’) following Parliament’s recent passing of the Revenue and Other Legislation Amendment Act (No.2) 2008 (‘Amending Act’).

The SD Act allows the Coordinator-General to declare complex projects of environmental, economic and social significance to be a ‘significant project’ for which an Environmental Impact Statement (EIS) is required. The amendments clarify that a proponent can apply for a significant project declaration or alternatively, the Coordinator-General can declare a project to be a significant project.

State and local governments have traditionally charged assessment fees for development applications. Under the amended SD Act, similar powers have now been granted to the Coordinator-General, allowing for the recovery of the costs of any services the Coordinator-General considers necessary to assist in assessing significant projects. Costs which the Coordinator-General may seek to recover from a proponent include any costs associated with the commissioning of an independent report into the project or the costs of public notification.

These recent amendments also clarify that the Coordinator-General’s decisions relating to significant projects are not subject to the Judicial Review Act 1991. Previously a decision of the Coordinator-General was regarded as being outside the scope of judicial review as there were no final decisions made of an administrative character. The Coordinator-General will however be required to provide reasons to a proponent whose application for a significant project declaration or a change to an existing proposal is rejected.

The Coordinator-General has also been granted increased compliance and enforcement powers. The Coordinator-General will be able to issue enforcement notices to compel compliance with any conditions imposed under the SD Act. The enforcement notices will mirror similar notices that can be issued under the Integrated Planning Act 1997 and Environmental Protection Act 1994. The maximum penalty (for a corporation) for non compliance with an enforcement notice is $832,500.00.

In certain circumstances, the Coordinator-General will be able to seek an enforcement order in the Planning and Environmental Court if there is a past, current or threatened contravention of an enforceable condition. The maximum penalty (for a corporation) for non compliance with an enforcement order is $1,500,000.00 or two years imprisonment.

Proponents of significant projects must take into account potential costs arising from the Coordinator-General’s ability to recover any expenses considered necessary for deciding applications under the Act. Proponents should also carefully scrutinise conditions attaching to Coordinator-General’s evaluation reports as the Act now contains powers for the Coordinator-General to compel compliance.

Native title reforms on the agenda in 2009

In late 2008, the Federal Government released two discussion papers with the broad aim of delivering greater intergenerational social and economic wealth for indigenous communities under native title agreement negotiations. The foreshadowed reforms have been instigated as part of the Rudd Government’s overall pledge to ‘close the gap’ between indigenous and non-indigenous Australians.

In the first discussion paper released on 8 December 2008, ‘Optimising benefits from Native Title Agreements’, a number of key reforms are proposed with the aim of delivering meaningful, long term social and economic benefits to indigenous communities. The discussion paper raises a number of issues for comment and possible legislative reform. Key issues raised include:

  • agreements - the creation of template Indigenous Land Use Agreements (ILUAs) containing both optional and mandatory clauses imposing minimum statutory benefits, which may assist with dispute resolution

  • benefits - encouraging the provision of more effective benefits under ILUAs which allow for sustainable intergenerational socio-economic development including support for employment, leadership and resources to assist with negotiating agreements, and

  • taxation - the creation of new trust vehicles, tax incentives and tax exemptions to ensure long term financial benefits to indigenous groups.

If a number of the reforms proposed in the discussion paper are ultimately adopted by the Federal Government, they will need to be taken into account when drafting and negotiating native title agreements. Submissions on the issues raised in the discussion paper can be made by 13 February 2009.

The second discussion paper, entitled ‘Proposed minor native title amendments’, was released on 23 December 2008 and outlines reforms to the rules governing the admissibility of evidence in native title proceedings and the areas covered by Native Title Representation Bodies (NTRBs). The discussion paper proposes that the role of the Federal Court of Australia in managing claims be expanded in a bid to increase the portion of native title claims resolved through negotiation and mediation. This proposal reflects the Federal Government’s concerns that costly litigation serves to reduce the potential benefits accorded to indigenous communities under native title legislation.

Further details will be available once the consultation process is completed and the draft amending legislation released. The Federal Government expects the amendments to come into effect in July 2009. Submissions on the second discussion paper close on 16 February 2009.

The proposed regulatory reforms reflect the Federal Government’s preference that litigation be avoided in settling native title disputes. Amendments to the Native Title Act and related legislation, including taxation laws to optimise benefits delivered to indigenous communities, are likely in 2009.
Who does this affect?

Companies whose business operations are involved in the energy and resources sector.

What do you need to do?

This publication aims to provide you with an overview of recent legal developments that are relevant to your business. Should you wish to discuss any of the information attached please contact the relevant Partner.

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