As it has done in previous years, the Western Australian Environmental Protection Authority (EPA) recently released its 2021-2022 Annual Report (Report). In doing so the EPA gave an overview of its key activities and observations for the past year.
The Report also provides the opportunity to telegraph emerging themes and practices. “Engagement with stakeholders (embracing views and concerns)” emerged as one such theme.
The EPA has long considered stakeholder views and concerns (primarily through the consultation hub and public submissions) under its administrative procedures (eg, in the application of the significance test and in providing its s44 report and recommendations on key environmental factors).
Specifically, the Report states:
The EPA recognises that stakeholder engagement is integral to the Authority being informed about proposals and referrals.
Engaging in a manner that encourages trust and respect ensures the EPA is well positioned to acknowledge and understand stakeholders’ views and concerns. This commitment to consistent, fair, and transparent environmental assessment process means documents related to proposals can be found on the EPA website and those for public comment are published on our consultation hub.
Strong community engagement by EPA members and support staff from the Department of Water and Environmental Regulation crystallises expectations for proponents and helps inform our strategic advice and policy.
However, the Report goes further in emphasising the use of site visits and associated direct engagement with stakeholders, including discussion “of proposals in the field with subject matter experts leading to more informed environmental advice being provided to the Minister for the Environment.” The EPA is congratulated on its use and clear commitment to this approach.
In assessing a referred proposal, section 40 of the Environmental Protection Act 1986 (WA) (EP Act) provides that, amongst other things, the EPA may:
- require any person to provide specified information; and
- may make such investigations and inquiries as it thinks fit.
Provided the EPA affords natural justice, the use of site visits and targeted infield discussions with stakeholders and subject matter experts plainly falls within the broad scope of the EPA’s statutory powers for environmental impact assessment (EIA).
However, it remains unclear whether the EPA is committing to such site visits simultaneously involving proponents, stakeholders, and decision-making authorities. The EPA’s facilitation of direct engagement between proponents, stakeholders and decision-making authorities has, historically, been an EIA gap (which, in some cases, could undermine acceptance of Part IV outcomes or even judicial review challenges).
The more expansive use of these powers may lead to increased transparency and certainty of practices and procedures. Including the progression towards the use (of the historically unused) power for a public inquiry under section 40(2)(c) of the EP Act for more complex and controversial proposals.
The active streaming of EIA into informal inquires (with on-site and direct engagement between the EPA, proponents, stakeholders and decision-makers and possibly the targeted use of facilitated mediation practices) and formal section 40(2)(c) public inquiries has the potential to further embrace the views and concerns of stakeholders at a time of increasing community interest and literacy in, and activism for, sustainable development and ESG touchpoints.
This article was written by Mark Etherington, Partner.