Almost every obligation in the Environment Act 2000 is keyed to the level of the activity. Section 42 sets the framework; the Regulation fills in the lists.
Section 42 — how the levels are set
(1) Subject to subsection (2), the Regulations shall prescribe activities to be level 1, 2 or 3 activities.
(2) Activities that (a) involve matters of national importance, or (b) may result in serious environmental harm, may be prescribed as level 3 activities.
The lists themselves are in the Regulation. Section 42(2) states the criterion for the top tier, and it points back to section 5 — traditional social structures, clean water and subsistence food, biodiversity and rare species habitats, the role of landowners in decisions about their land, and sustainable economic development — and to serious environmental harm.
The Environment (Prescribed Activities) Regulation, which contains the schedules of level 1, 2 and 3 activities, is not carried in the PacLII Papua New Guinea legislation databases. It is named here rather than linked; the current schedules should be obtained from the Conservation and Environment Protection Authority.
What each level requires
| Level 1 | Level 2 | Level 3 | |
|---|---|---|---|
| Permit needed? | No — unless a section 45 notice is served | Yes — s 44(1)(a) | Yes — s 44(1)(a) |
| Register intention before preparatory work? | No | Yes — s 48, at least one month before (unless the Regulation excepts the category) | Yes — s 48 |
| Environmental impact assessment? | No | Only if the Minister makes a determination of national importance under s 50(2) | Yes — mandatory notice under s 50(1) |
| Minister’s approval in principle? | No | Only where EIA was required | Yes — s 59 |
| How objectives are applied | Codes of Practice, Protection Orders, Clean-up Orders, Emergency Directions — s 6(2)(b) | Permit conditions and negotiated improvement plans and management programmes — s 6(2)(c) | |
| Delegation by the Director | General | General | Only to an appropriately qualified employee of the Authority — s 16(3) |
Section 43 — existing activities
(a) were being carried on at the date of coming into operation of the Regulation defining the levels; and
(b) have since that date not changed their nature so as to involve the carrying out of a level 2 or level 3 activity that was not previously being carried out.
An existing activity does not need a permit under section 44(2) — but the protection is conditional on the activity staying the same, and it can be removed by a section 45 notice. Under section 45(1) the Director may, by National Gazette and newspaper notice, require operators of existing level 2 or 3 activities to apply for a permit within not less than 28 days.
Moving up a level
- Section 44(1)(b) — a change in process, or expansion of works or plant in relation to an existing activity such that a level 2 or level 3 activity is carried out, without a permit, is an offence: up to K100,000 for a corporation, K50,000 or two years for an individual.
- Section 48(1)(b) — a person who proposes to change the nature of a level 2 activity such that it becomes a level 3 activity must register that intention with the Director at least one month before commencing preparatory work.
- Section 50(2) — a proposed level 2 activity may be pulled into full assessment where it involves an industrial or manufacturing process not previously used in Papua New Guinea, is the subject of obligations under an international treaty or convention ratified by Papua New Guinea, or poses a threat of serious environmental harm.
A level 2 determination under section 50(2) is made by the Minister on the recommendation of the Council, and it has the effect that the activity relates to matters of national importance. Once a notice under section 50 has been served, section 50(4) provides that a permit application may not be accepted unless the assessment has been completed and the Minister has given approval in principle.
Sections 60 to 62 — who applies, and when it can be accepted
- Section 60(1) — the application must be made by the person or body carrying out or responsible for the activities at the place named.
- Section 60(2) — for a corporation, the person signing must be the most senior person with overall supervision and management of the activities at that place.
- Section 61 — the Director may accept an application where satisfied it contains an adequate description of the nature and extent of the physical and social environmental impacts likely to result.
- Section 62(1) — an application relating to a level 3 activity (other than an existing activity), or a level 2 activity subject to a section 50(2) determination, shall not be accepted until an environmental impact assessment has been conducted.
- Section 62(2) — the Director may nevertheless enter into discussions with an applicant about what information will be needed.
The senior person with overall supervision must sign personally. That matters when things go wrong: section 126 deals with the liability of corporate officers, and the identity of the signatory is on the record from the outset.
Working out your level
- Describe the activity precisely against section 41(1) — works, plant, resource extraction, contaminant release.
- Check the Regulation schedules for the level, including thresholds by scale or volume.
- Check whether it is an existing activity under section 43 — and whether its nature has changed.
- If level 2 or 3, register the intention with the Director at least one month before any preparatory work.
- If level 3, expect a mandatory EIA notice under section 50(1).
- If level 2 but novel, treaty-related or seriously harmful, plan for a possible section 50(2) determination.
- Do not lodge a permit application prematurely — under section 62 it cannot be accepted before the assessment is done.
Sources
- Environment Act 2000 — ss 5, 6, 16, 41–45, 48, 50, 59–62, 126; Part V
- Conservation and Environment Protection Authority Act 2014
- Investment Promotion Act 1992
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.