1. If it’s broke, fix it!
The Northern Territory’s shambolic
environmental assessment laws: The Port
Melville experience
David 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 the
original 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 new
plans 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

2. 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 to
commence the construction of the new Port Melville wharf.
In the 4 months since then we have:
• mobilised heavy plant and equipment from all over
Australia to the remote Tiwi site to undertake these
specialised 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 8m
long,
• installed 800m of purpose built tie-rods,
• driven 30 914mm OD piles varying from 16m to 30
m into the seabed which equates to approximately
600m of pile in the ground.
• fabricated and installed 120 tonnes of structural
steelwork, 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

3. 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 EAAct 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 as
practicable after being informed of the formu-
lation of a proposed action, cause notification
to be given in writing (in an approved form) to
the NTEPA specifying the proposed action
and 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 NT
assessment 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 EAAct 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
australian environment review February 2016 221

4. controls. The only planning control that would apply to
the site is the requirement to obtain a permit for clearing
in excess of 1ha of native vegetation. In this case,
because the Port site had already been cleared, no permit
under the Planning Act was required, and the Minister
for 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 is
regulated by the Darwin Port Corporation Act (NT) and
the Marine Act (NT), none of the territory’s other ports
are regulated at all; at least not by NT law.27
The need for law reform in this area, particularly the
difficulties 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 NTEPA
made a comprehensive submission to the NT Govern-
ment outlining its recommendations for improving envi-
ronmental assessment in the Northern Territory. That
submission noted significant and numerous flaws in the
NT’s environmental assessment regime. Notably those
concerns included:
• the definition of “proposed action” and the lack of
defined triggers determining the need for referral to
the NTEPA for assessment;28
• having the ‘responsible minister’ responsible for
referral, rather than the proponent;29
and
• the lack of offences under the EAAct which could be
used 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 public
environmental impact statement process … but there would
only be a point to that if the Territory Government
legislated to make a minister responsible for giving the final
approval for signing the completed EIS off, and that could
take 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
Footnotes
1. Ezion Offshore Logistics Hub (Tiwi) Pty Ltd, Notice of Intent
(NOI) Port Melville, February 2014, p 10.
2. Australian Govermnent, Geoscience Australia, National Loca-
tionInformation:Islands—LargestIslands,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.
4. 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

5. (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.
8. 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 27.
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.
29. 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.
30. Northern Territory Environment Protection Authority, The
Environment Protection Authority’s Final Advice on Improving
Environmental Assessment in the Northern Territory, 2010, p
vii.
31. Northern Territory Environment Protection Authority, The
Environment Protection Authority’s Final Advice on Improving
Environmental Assessment in the Northern Territory, 2010, p
21.
32. Northern Territory Environment Protection Authority, The
Environment Protection Authority’s Final Advice on Improving
Environmental Assessment in the Northern Territory, 2010, p
22.
33. Bardon, J, Port Melville: Developer AusGroup ‘surprised’ by
accusations of environmental delays and deficiencies, ABC
News Online, posted Friday 15 May 2015.
australian environment review February 2016 223