Review of the Environmental Impact Assessment Process - Changes to approval process for large projects

On 17 October 2016, the NSW Department of Planning (Department) announced that it is reviewing the Environmental Impact Assessment (EIA) process for State Significant Development (SSD). A discussion paper has been released which flags a number of changes to the EIA process for SSD applications. The purpose of the review is to establish a new set of guidelines for assessing large projects.

Amendment seeking a balance between the right to peaceful protest with the need to ensure public safety.

The Inclosed Lands, Crimes and Law Enforcement Amendment (Interference) Act 2016 (Inclosed Lands Act) received assent on 22 March 2016. It is aimed at seeking a balance between the right to peaceful protest with the need to ensure public safety. The Inclosed Land Act:

• creates an aggravated form of the offence of unlawful entry on inclosed lands, increasing the penalty from $550 to $5,500. This maximum penalty relates to land on which a business being conducted and where the offender interferes with the conduct of the business or does anything that gives rise to a serious risk;
• gives additional search and seizure powers where a police officer suspects on reasonable grounds that a person has anything that is intended to be used to lock-on or secure a person to any plant, equipment or structure for the purpose of interfering with the conduct of a business or undertaking and that is likely to be used in a manner that will give rise to a serious risk to the safety of any person; and
• removes limitations on the exercise of police powers to give directions in public places to prevent obstructions of persons or traffic in the case of demonstrations, protests, processions or organised assemblies.

Kate Swain

Engage Early - Best practice Indigenous engagement – new EPBC Act guidelines

The Commonwealth Department of Environment (DoE) has published a guideline that outlines best practice strategies to engage with Indigenous groups called ‘Engage Early: Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)’ (EngageEarly).

‘Engage Early’ will apply to projects requiring approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act), although the guideline contains useful engagement strategies for projects more generally.

Engage Early’ sets out the following strategies and provides examples of best practice of each:

• identifying and acknowledging all relevant affected Indigenous peoples and communities;
• committing to early engagement at the pre-referral stage;
• building trust through early and ongoing communication for the duration of the project, including approvals, implementation and future management;
• setting appropriate timeframes for consultation; and
•  demonstrating cultural awareness.

Notably for proponents, ‘Engage Early’ places a significant focus on engagement prior to referral of a project under the EPBC Act.  This engagement is to be in addition to the usual public consultation requirements for matters assessed under the EPBC Act or other State based approval processes.  Proponents are required to undertake genuine engagement with Indigenous people and report on this engagement as part of the broader environmental assessment documentation.

In addition to any requirements of the Native Title Act 1993 (Cth), Engage Early emphasises the importance of appropriate engagement with Indigenous people in circumstances where a project will overlap with areas that could be subject to a native title claim or determination in the future.

Another focus of ‘Engage Early’ is an intention to link environmental offsets that are carried out under the EPBC Act with opportunities for Indigenous people to fulfil the offset requirements using a collaborative approach – such as through an Indigenous enterprise that can use offset funding to carry out management activities to enhance the environment.

As a guideline, ‘Engage Early’ has limited legal force however as we have seen with similar guidelines issued by DoE, this document sets out DoE’s expectations as they relate to Indigenous engagement and is therefore an important guide for proponents of new projects.

We recommend that proponents, particularly those with projects that require engagement with Indigenous people and referral under the EPBC Act,  become familiar with the best practice requirements and where environmental offsets are required, consider opportunities to work with Indigenous people to fulfil these requirements.

Kate Swain, Liam Davis, Patrick Stewart

Commencement of the Resource Legislation Package in NSW

We recently published an article on the Resource Legislation Package passed by the NSW Parliament on 2 November 2015.

The Resources Legislation Package is made up of five separate pieces of legislation which make extensive changes to the Mining Act 1992 (NSW) (Mining Act) and Petroleum (Onshore) Act 1991 (NSW) (Petroleum Act).  The following parts of the reform package came into effect on 18 December 2015.

All sections of the Mining and Petroleum Legislation Amendment (Grant of Coal and Petroleum Prospecting Titles) Act 2015 (NSW) commenced except for one minor provision related to opal mining. Most importantly, this means that the new process for allocating coal and coal seam gas titles will now apply.  As a result, the direct allocation of an exploration licence for coal will be limited to circumstances where the application is made by an existing holder of a exploration licence, assessment lease or mining lease for an ‘operational allocation purpose’.

The Mining Amendment (Licences for Operational Allocation Purposes) Regulation 2015 (NSW) which amends the Mining Regulation 2010 (NSW) (Mining Amendment Regulation), together with the ‘Guidelines for coal exploration licence applications for operational allocation purposes’, also commenced on 18 December 2015 and prescribes the following as ‘operational allocation purposes’:

• in relation to applications by holders of exploration licences or assessment leases – the purpose of both developing a better mine design proposal and recovering coal resources that would otherwise be likely to be sterilised, and
• in relation to applications by holders of mining leases, each of the following: 
• the purpose of extending the life of a mine 
• the purpose of developing a better mine design
• the purpose of recovering coal resources that would otherwise be likely to be sterilised, and
• the purpose of obtaining an exploration licence for coal over the subsoil above or below the stratum to which the mining lease concerned relates or over the surface above the land to which that mining lease relates. 

The Mining Amendment Regulation also provides that:

• an application for an ‘operational allocation purposes’ can only be sought over a maximum surface area of 33% of the area of the land to which the existing exploration licence, assessment lease or mining lease concerned relates, and
• with reference to clause (b)(iv) above, the boundary of subsoil or the surface area of the land to which the application relates must not exceed the boundary of the area of land to which the mining lease concerned relates.  

One section of the Mining and Petroleum Legislation Amendment (Harmonisation) Act 2015 (NSW) commenced enabling the beneficial use of gas on an exploration licence or assessment lease.

Limited sections of the Mining and Petroleum Legislation Amendment (Land Access Arbitration) Act 2015 (NSW) commenced enabling seismic works under either an exploration licence or assessment lease (Mining Act) or petroleum title (Petroleum Act) on a road without owner’s consent.

The remaining sections of the above legislation are yet to commence.

Petroleum (Onshore) Amendment (Beneficial Use of Gas) Regulation 2015 (NSW) commenced under the Petroleum Act.  This new regulation amended the Petroleum (Onshore) Regulations to enable the beneficial use of gas on an exploration licence or assessment lease following the commencement of the relevant section of the Harmonisation Act.

As noted in our previous publication, the Protection of the Environment Operations Amendment (Enforcement of Gas and Other Petroleum Legislation) Act 2015 (NSW) commenced 1 December 2015.

The Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015 (NSW) has still not commenced.  

Samantha Daly, Kate Swain

Commencement of enforceable undertakings in Queensland

From today, legislation passed by the former State Government allowing enforceable undertakings (EUs) to be entered into under the Environmental Protection Act 1994 (Qld) (EP Act) will commence. 

The EUs add to the suite of enforcement mechanisms already available to the Department of Environment and Heritage Protection (EHP), including:

• warning notices and letters
• penalty infringement notices
• environmental evaluations
• environmental protection orders
• clean-up or direction notices
• suspension or cancellation of licence, permit or authority, and
• prosecution.  

EUs are binding agreements with EHP in relation to a contravention, or alleged contravention, against the EP Act.  The undertaking should deal with remedying or preventing non-compliances, or other actions proposed to achieve legislative compliance, as well as measures for enhancing the protection of the environment.

The legislation allows an operator in Queensland to propose an EU to EHP, which can accept or reject the proposal.  An EU can be accepted even if prosecution proceedings have been started, so long as they have not concluded.  Once accepted, an EU prevents the commencement of proceedings for so long as it is complied with (existing proceedings must be discontinued after acceptance).  All accepted EUs will be published on EHP’s website. 

Failure to comply with an EU will amount to a separate offence against the EP Act, in addition to any underlying conduct, which is immediately actionable in the Magistrate’s Court. 

The EHP has added a guideline on EUs to its set of compliance guidelines, providing a clear policy indication of circumstances in which an EU will not be accepted (similar to amendments made to the Guidelines for Transitional Environmental Programs recently). 

For Queensland operators, EUs provide a viable alternative to prosecution or the suspension or cancellation of an authority under the EP Act.  The legislation specifically provides that entering into an EU is not an admission of guilt.  Given some of the requirements surrounding EUs, however, we consider they are unlikely to be a practical or popular alternative to lower order enforcement or for relatively minor non-compliances.  EUs have been used by operators and regulators in NSW for some time following non-compliance.  We anticipate that they will be used in similar circumstances here in Queensland.  

 

Tim Hanmore, Jessica Snell, Claire Meiklejohn

Extension to NSW mining purposes exemption

On 15 November 2010, amendments were made to the Mining Act 1992 (NSW) which made it an offence to carry out certain ‘mining purposes’ without holding a mining lease that was in force over the relevant land.

The relevant ‘mining purposes’ are defined as:

• the construction, maintenance or use of any reservoir, dam (including a tailings dam), drain or water race, and
• the removal, stockpiling or depositing of overburden, ore or tailings to the extent that it is associated with mineral extraction or mine beneficiation.

Mining purposes that had commenced prior to the above amendment coming into force on 15 November 2010 could rely on transitional arrangements to allow them to continue, provided that the person carrying out the activity obtained a mining lease before 15 November 2015.

By way of order dated 9 September 2015 the Minister has extended this transitional arrangement by exempting persons carrying out the above mining purposes from the requirement to obtain a mining lease where:

• the mining purpose was carried out, or in the course of construction, immediately prior to 15 November 2010, and
• the mining purpose has not been abandoned for a continuous period exceeding twelve months since 15 November 2010 (other than repair or maintenance).

This exemption will cease to have effect on 15 November 2017.

Samantha Daly, Patrick Holland, Kate Swain

Judicial immunity in Land Court proceedings

State Development and Public Works Organisation and Other Legislation Amendment Bill 2015

Anthony Lynham, Queensland’s Minister for State Development and Minister for Natural Resources and Mines, introduced the State Development and Public Works Organisation and Other Legislation Amendment Bill 2015 (Qld) into Parliament late on Wednesday. 

The Bill, if passed, will reinstate community objection rights for mining projects and clarify that judicial immunity applies to Land Court members presiding over these objections hearings, and other administrative matters.  This addresses concerns arising from the recent Queensland Supreme Court decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107 which cast some doubt over the scope of this immunity.

Background

The Queensland Supreme Court recently handed down its decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107.  That decision had the (likely unintended) consequence of causing delays in the progression of a number of mining approval matters currently before the Land Court of Queensland. 

The BHP decision considered whether disclosure under Chapter 7 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) was required in objections hearings referred to the Land Court under the Mineral Resources Act 1989 (Qld) (MRA) and Environmental Protection Act 1994 (Qld) (EPA).  His Honour Justice McMurdo held that Chapter 7 UCPR does not apply to the hearing of objections referred to the Land Court, because the relevant court rules allow the Land Court to apply the UCPR in relation to a ‘proceeding’, but that a hearing of objections was not a ‘proceeding’ in the Land Court Rules. 

Judicial immunity

The decision had wider implications for the Queensland resources industry as it raised concerns about whether the judicial immunity provided to Land Court members under the Land Court Act 2010 (Qld) (Land Court Act) extends to objections hearings, which are administrative in nature and not considered a ‘proceeding’ under the Rules.  The immunity granted to advocates and witnesses might have been questioned on the same basis.  This uncertainty effectively stalled a number of objections matters which would otherwise have progressed over the past few months.

Land Court Act Amendments

The Bill introduced on Wednesday (15 July) contains proposed amendments to section 35 of the Land Court Act to confirm that judicial immunity applies whether the Land Court Member is exercising a judicial power or performing an administrative function, such as objections hearings.  The proposed amendments also ensure that this immunity applies retrospectively. 

Importantly, the proposed amendments will not only encompass hearings in the Land Court relating to objections to mining leases and environmental authorities, but also ensure the immunity applies to Land Court matters relating to the determination of compensation to landholders for the grant of mining leases under the MRA.

Additional amendments to section 21 (Rules of the Land Court) will also enable the Land Court to make rules in relation to all functions and powers conferred to it.  This includes rules related to disclosure during both proceedings or when exercising an administrative function. 

Stakeholder engagement

The transitional provisions provide that the amendments may be modified by regulation, with any transitional regulation to expire after 12 months.  These provisions herald the desire for stakeholder engagement, including with the Land Court Members, over the ensuing months to assess the effectiveness of the amendments and any need for future amendments to the Land Court Act or Rules.  Stakeholders should keep an eye out for the next opportunity to engage on the issues.

Today (17 July) is the last Parliamentary sitting date for the month.  It is likely that Parliament will be seeking to ensure the Bill is passed before the end of today’s sitting to ensure objections matters can con continue expeditiously. 

Peter Stokes, Tim Hanmore