Australia: Proposed changes to notification and objection procedures to bar "anti-mining extremists"

Key Points:

Changes to notification and objection procedures for mining leases and environmental authorities could be included in legislative reform in conjunction with the Modernising Queensland's Resources Act Program.

The Department of Natural Resources and Mines (DNRM) is currently pursuing its Modernising Queensland's Resources Acts (MQRA) Program, the goal of which is to replace existing resources legislation with a single, common Act governing all resource tenure.

One area for which scope for streamlining and harmonising has been identified is the notification and objection rights of the public in relation to mining lease (ML) and environmental authority (EA) applications. The changes are proposed in the newly released, "Mining lease notification and objection initiative discussion paper" which makes the proposals set out below.

Notification and objection rights

Currently, public notification of all ML and EA applications is duplicated under both the Mineral Resources Act (MRA) and Environmental Protection Act (EP Act). Further, the current notification obligations for MLs do not differentiate between different scales, risk levels and impact levels. The changes set out below seek to reduce costs and regulatory burden, and to streamline the application process.

Coordinated Projects

The proposal is that a project that involves a ML that is a coordinated project for which an environmental impact statement (EIS) is required under the State Development and Public Works Organisation Act 1971 (Qld) will still be publicly notified under that Act (but not also under the MRA and EP Act).

Submissions can then be made on the EIS and anyone who makes submissions on the EIS will then retain the right to object to the EA. This could, however, have the effect of broadening the number of submitters who may become objectors to the EA.

Only landholders whose land is directly affected by the proposed ML (which we believe means within the ML area) and local governments will be notified, and these are the only people who can object to the ML application (ie. the public objection right to the ML would be removed).

Standard projects

For ML applications that are not coordinated projects, but still require a site-specific EA application, the public notification will only occur under the EP Act. Anyone who makes a properly made submission on the EA application will retain the right to request that their submission be taken as an objection to the EA.

Again, only landholders whose land is directly affected by the proposed ML and local government bodies will be notified and again, these are the only people who can object to the ML application (ie. the public objection right to the ML is proposed to be removed).

Court process

At present, the Land Court makes recommendations to the Department of Environment Heritage and Planning (DEHP) as to whether an EA should be approved and, if so, with or without conditions. The proposed changes will allow the Court to only hear appeals on site-specific applications after DEHP has already made its final determination on the EA.

The Land Court also conducts hearings for ML application objections and recommends to the Minister whether a ML should be granted with or without conditions. Under the proposed model this will not change. However, the matters described in the MRA for the Court to consider will be refined to remove overlap or duplicate matters which the Court can decide under other legislation (such as environmental matters), ensure that there are clear grounds for objection, and exclude highly technical, financial and commercial in confidence matters.

The model will not change the fact that objections to both the EA and ML for the same proposal will be heard at the same time.

Compensation

The current process requires compensation to be agreed to or determined by the Land Court prior to the grant of the ML. The proposed model will enable compensation to be agreed at any time, so long as it is no later than three months after the grant of the ML. If this does not occur, compensation will be a matter for the Land Court to determine.

A concern with this new model is the fact that only preliminary activities are authorised on the ML until a compensation agreement is finalised. Therefore, even if advanced activities were already being undertaken on an exploration permit or mineral development licence prior to the grant of the ML, the ML holder will have to effectively suspend their operations during these three months (and possibly longer while compensation is before the Land Court).

DNRM has indicated that this proposal is geared towards having the security of tenure, despite a possible suspension in activities.

We consider that the ML holder's rights prior to the grant of the ML should be preserved as part of any amendments to the regime.

Restricted land

At present, the MRA requires that all restricted land (such as houses, buildings and dams) be identified at the point in time at which a ML application is made. When a ML is granted, unless written consent of the landholder is lodged with the DNRM before the last objection day, the restricted land within the area being applied for is excluded from the area granted.

The proposal is that any ML with surface rights (which, should be effectively every ML) will be free of restricted land, with the landholder being compensated for the loss of these areas.

Other changes are proposed for restricted land in the Consultation Regulatory Impact Statement " Towards a standardised consent framework for restricted land across all resource types" in exploration tenements and for other resource tenements, including Petroleum Tenements.

Next steps

Submissions on the discussion paper close at 5pm on Friday 28 March 2014. They can be made by email to mqra@dnrm.qld.gov.au (subject Mining Lease Notification and Objection Initiative).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.