Resources Update 5 November 2015

Transcription

1 Resources Update 5 November 2015 In this edition we review proposed amendments to the Western Australian Mining Act including the low impact activities framework and tenement PROPOSED AMENDMENTS TO THE WESTERN AUSTRALIAN MINING ACT The Mining Legislation Amendment Bill 2015 (Bill), originally introduced into the Western Australian Parliament on 22 April 2015, has now been passed by the Legislative Assembly and is currently being considered by the Legislative Council. The Bill introduces various amendments to the Mining Act 1978 (WA) (Mining Act) including: consolidating all environmental management provisions and separating them from the provisions of the Mining Act that deal with the grant and administration of mining tenure; and changes to Western Australia s mining laws, in response to the practice of tenement The Bill also allows for the final stage of environmental reform that the Western Australian Department of Mines & Petroleum (DMP) committed to in 2012 as part of the Reforming Environmental Regulation program. In particular, the key environmental reforms in the Bill include removing the requirement for native vegetation clearing permits under the Mining Act, consolidating multiple site approvals, and creating a new notification system for low-impact activities. The Bill follows on from the consultation paper released by the DMP in April 2015 which proposed changes to the Mining Act to implement a framework for low-impact authorised activities relating to prospecting and exploring (Consultation Paper). Presently, all exploration and prospecting activities require an approval through a programme of work (regardless of the scale of the activity). Under the proposals in the Consultation Paper, which are now reflected in the Bill, certain low risk exploration and prospecting activities would not require submission for regulatory assessment. In proposing these reforms DMP has recognised that small areas of disturbance can be managed with no environmental impact and that many of these activities do not need an individual environmental assessment. LOW-IMPACT ACTIVITIES The Bill provides a major overhaul to the environmental provisions of the Mining Act by inserting a new Part IVAA into the Mining Act which will deal with environmental management of mining tenements, including: requiring certain activities to be approved by submitting a programme of works or mining proposal (including mine closure plans); allowing certain low-impact activities to be carried out without approval (provided notice has been given of the proposed activity); and providing for conditions to be placed on mining tenements for preventing, reducing or remediating environmental harm and directly imposing certain other conditions in relation to environmental management. The primary intention of the new Part is to provide a legislative structure for a risk-based and outcomes-focused approach to environmental regulation of the mining industry. The effect of the key proposed amendments is set out in the table below:

2 Division Proposed sections Description 2 103AE (prospecting, exploration and retention 103AF (mining leases) 103AG (miscellaneous 3 103AH (mining leases) 103AI (miscellaneous Sets out the notification and approval requirements applying to prospecting or exploring for minerals and related activities. In particular, the new sections impose conditions on mining tenements preventing specified activities from being undertaken on particular tenement types until the holder has met the requirements under proposed Divisions 4 or 5. Sets out the notification and approval requirements that apply to mining operations proposed to be carried out on a mining lease. In particular, the new sections make it a condition of every mining lease and miscellaneous licence that a licensee who proposes to carry out a prescribed relevant activity (such as clearing land) which is a low-impact activity must first either give a notice of a low-impact activity in accordance with proposed Division 5, or have it approved by way of a mining proposal in accordance with proposed Division 4. Note that Section 103AF will apply to exploration for minerals carried out on a mining lease and section 103AG will apply to exploration for minerals carried out on a miscellaneous licence AU and 103AV Sets out the requirements for carrying out prescribed low-impact activities, including notification of low-impact activities where those activities have not been approved by a programme of works or mining proposal under Division 4. Low-impact activity notification Under the proposed Division 5 of the Mining Act, proponents will be required to notify the Director General of Mines when a low-impact activity is proposed to be undertaken, and again when the activity has been completed. In addition, it will be a condition of every mining tenement that the tenement holder must only carry out a low-impact activity in accordance with prescribed requirements in respect of that activity unless the activity has already been approved through a programme of work or a mining proposal. The Consultation Paper clarifies that notification of low impact activities will likely occur via an online electronic process whereby the tenement holder will be required to notify the DMP of the nature of the activity, the proposed commencement and the completion date. Tenement holders will be required to demonstrate that the intended activity meets the low-impact activity criteria which will be prescribed in the Mining Regulations 1981 (Regulations) (see below for further information). No fees will be charged for notifications. Once notification occurs, the tenement holder will be able to commence the low impact exploration or prospecting. The DMP will not undertake an individual assessment (taking away the requirement to wait for an approval) but the tenement holder will be required to still undertake the appropriate environment appraisal and maintain records and evidence that the relevant activity is low-risk. Current obligations on tenement holders to meet their tenement conditions will remain in place. Standard environmental management conditions under the Mining Act must still be maintained, and any disturbance must still be reported through the Mineral Rehabilitation Fund Act 2012.

3 Defining low-impact activities The proposed amendments to the Mining Act provide that the definition of low-impact activities will be prescribed in the Regulations. Low-impact activities criteria are still being developed in consultation with stakeholders. However, in its Consultation Paper, the DMP proposed a definition of low impact activities which is a combination of: 1. the locality in which the activity occurs; 2. the type of activity; and 3. the way in which the activity is carried out. Low impact activities will be able to be authorised on any granted tenement under the Mining Act, subject to specified environmental exceptions. The types of activities that will constitute low impact activities include clearing of native vegetation, reconnaissance in light vehicles, certain exploration drilling, clearing for construction of temporary access tracks, scrape and detect operations where the total area cleared per tenement for the purpose of the operation is less than 2 hectares at any one time, excavation (including costeaning, soil sample, soil investigations, shafts) for the purpose of exploration sampling, clearing for the purpose of maintenance of pipelines and ancillary infrastructure activities including around existing facilities and buildings, and clearing for camp sites and storage areas, and similar incidental purposes. Low impact activities will need to be carried out in such a manner that: 1. limits or avoids harm to the natural environment; 2. soil erosion and other similar land degradation is limited or avoided; 3. surface and subsurface water quality is not negatively affected; 4. limits impact to flora and fauna species, habitats and ecological communities; 5. limits or avoids direct and indirect harm to riparian vegetation; and 6. cumulative disturbance is limited to a maximum land area to be agreed (DMP is still seeking comment on what should be considered an appropriate maximum land area). These three criteria will need to be satisfied for an activity to be considered low impact and exempt from the requirement for a programme of work approval under the Mining Act. Given this, it is recommended companies and individuals become familiar with the framework and proposals reported by the DMP and outlined below. Obligations and penalties All tenement holders will have an obligation to adhere with a general environmental duty of care. Deemed conditions (which will be prescribed in the Regulations) are proposed for both prospecting and exploration activities that seek to operate as low-impact activities. These deemed tenement conditions will aim to cover a range of matters from weed control and soil erosion to basic record keeping. There will also be prescribed penalties for breach of the conditions which may make a particular tenement liable for forfeiture, or a penalty of up to $150,000 depending on the severity. Accordingly, it is noted that despite the introduction of a more efficient and cost effective low impact activities regime, certain environmental standards must still be maintained. Comparison to other States and Territories Although the proposed amendments are a new addition to Western Australia, they already exist in different forms within other States and Territories. We have provided an overview of some of the other jurisdictions which have adopted a similar low impact based system (see following table). The aim of this is to provide a comparison and is not intended to be a definitive overview of these particular systems.

4 State or Territory Differences SA SA has adopted a minerals general determination which must be adhered to unless an alternative low impact exploration program for environment protection and rehabilitation (PEPR) has been developed and approved by the Minister. Exploration activities that do not fall within the scope of the generic PEPR require a separate PEPR approved by the minister. The generic PEPR is valid for all exploration licence holders conducting low impact exploration activities in accordance with the defined scope. Certain locations and sensitive environments where low impact exploration is taking place may require separate approval above and beyond the generic PEPR (such as parks and reserves). This is similar to WA with a focus on the location of the tenement. The generic PEPR provides a list of activities that are covered as low impact mineral exploration and also a list of activities which are not covered. SA has an inclusionary and exclusionary definition. Main difference to the proposed WA definition of low-impact activities is that it just lists the activities allowed under low impact exploration, whereas WA separates this into the types of activities and how the activity is carried out. VIC Low impact exploration does not require an approved work plan. There are 2 levels of low impact exploration. The first part of the definition actually defines low impact exploration. This is in the form of a list of excluded activities. Therefore this differs to WA, as WA has a defined low impact with a list of included activities. In other words, an exclusionary definition in Victoria compared to an inclusionary definition in WA. WA also has the locality requirement which does not exist in Victoria. WA has a three pronged approach to the definition which is easier to interpret and operate with, while Victoria has a long list. The second part of the definition states reconnaissance activities (such as mapping, sampling, non-intrusive surveys, airborne surveys) are automatically low impact activities. This is subject to the exception that it does not involve the use of equipment (other than non-mechanical hand tools) to excavate on the land, the use of explosives or removing or damaging of any tree or shrub on the land. NSW In NSW the minister has discretion in determining low impact activities (which contrasts to the structure of WA). The Minister may grant a low impact exploration licence or prospecting title where exploration activities are unlikely to have a significant impact on the relevant land. Before being granted a low-impact exploration licence, notice must be served on various people (registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander Bodies). The Minister (by notice in the Government Gazette) determines what activities may be undertaken in a low-impact exploration licence. Currently the types of activities which may be authorised by a low impact exploration licence include aerial surveys, sampling by hand methods, geological and surveying work that does not involve clearing, drilling activities that do not involve clearing or excavation (other than the minimum required to establish the drill site) and environmental field work that does not involve clearing. Relationship to new assessment fees for Programmes of Work and Mining Proposals DMP has proposed the implementation of cost-recovery assessment fees for Programmes of Work and Mining Proposals. Originally scheduled to be introduced from 1 July 2015, this has been deferred to complement the passage of the Bill. While there is no direct relationship between the Bill and the introduction of these assessment fees, the introduction of a low-impact activity framework will remove the need for assessment of activities meeting the low-impact definition. This will mean that no assessment fee is payable as no assessment will be required.

5 TENEMENT WAREHOUSING AMENDMENTS The Bill is also, in part, a response to concerns regarding the practice of tenement The Mining Act currently does not prevent an applicant for a mining tenement from withdrawing an application and immediately lodging a new application over the same area of land. Some applicants have taken advantage of this legislative loophole to effectively reserve land without being subject to the expenditure requirements for granted tenements under the Mining Act. Some applicants may also deliberately slow down the approvals process to keep applications over large areas of land pending, even when additional requirements such as Native Title and Aboriginal Heritage and environmental agreements have been finalised. These practices are known within the mining industry as mining tenement warehousing, squatting or parking, and are contrary to the use it or lose it principle that underpins the Mining Act. The Bill includes new subsections to section 58 of the Mining Act (application for exploration licence) to address the practice of tenement The new subsections clarify that where an application for an exploration licence has been lodged and the original application has not been granted or refused (including where the original application has been withdrawn), if a successive application is lodged by the original applicant (or a related party) over the same or substantially the same area of land, then the successive application cannot be granted unless the Minister advises the mining registrar that there are special circumstances for doing so. The Bill does not clarify what special circumstances would justify the grant of successive applications. However, it may include, for example, where an applicant has redefined the area in an original application because it has been unable to reach an agreement with a stakeholder. CONCLUSION The amendments appear to be a positive step in removing unnecessary mining and exploration green tape. Under the proposed amendments to the Mining Act, low impact activities will be administered under a notification process where the tenement holder is required to notify DMP of the nature of the exploration or prospecting activity. Low-impact exploration and prospecting activity will be subject to prescribed environmental standards and conditions that will need to be reported against annually. The reforms have the potential to save mining companies and individuals significant amounts of time and money and are intended to make low-impact prospecting and exploration activities easier to achieve for mining companies and individuals operating in Western Australia. Contacts Stuart Mengler Principal Energy & Resources smengler@ Hayley Lawrance Special Counsel Energy & Resources hlawrance@ These materials have been developed for the purposes of general information only. They do not constitute specific legal advice on particular issues and should not be relied on for that purpose. Allion Legal No part of this publication may be copied or reproduced without written prior consent or as permitted by law.