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.

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

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

Risk based approach to compliance and enforcement - NSW Division of Resources and Energy

The NSW Division of Resources & Energy (DRE) has published its new Compliance and Enforcement Policy which introduces a risk-based approach.  

The DRE will determine its enforcement approach by identifying the likelihood of a particular event occurring and the consequence to the community, industry and DRE should that event occur. 

The DRE’s Compliance & Enforcement branch (established on 31 July 2014) oversees and investigates non-compliances with obligations created by the grant of a right to explore, extract or produce petroleum or minerals in NSW, as well as unlawful mining or petroleum extraction activities.  Its functions include:

• monitoring overall industry compliance
• developing compliance initiatives and programs, and
• determining the level of enforcement to be applied in cases of non-compliance.

The risk-based approach to compliance and enforcement means that businesses who have not complied with relevant polices, regulations, approval or licence conditions are deemed ‘high risk’, while business that do comply are determined to be ‘low-risk’.

The DRE’s stated regulatory objectives are:

• to maximise a titleholder's compliance with legislation and policies governing coal, mineral, petroleum and coal seam gas activities
• to provide for a healthy and safe work environment for mineworkers resulting in zero deaths and a reduction in serious injuries occurring in the workplace
• to promote a culture of environmental protection and best practice environmental management in the exploration, mining and petroleum industries
• to educate and provide guidance to industry and the community
• to demonstrate consistency in the compliance and enforcement actions taken by DRE
• to promote transparency in DRE's decision making processes
• to conduct thorough and timely investigations of potential non-compliances or alleged breaches of legislation, policies or approvals
• to exercise enforcement action in a professional, transparent and effective manner
• to encourage self regulation and timely reporting of non-conformances to Government, and
• to protect the interests of the State and the people of NSW.

The DRE has identified that it will focus its regulatory actions on ‘those who consciously choose not to comply with the law’, and will be undertaken in order to raise industry awareness and to encourage a change in attitude or behaviour.  The 2015-2016 compliance priorities will be:

• titleholders, prospectors or mine operators whose activities potentially have significant safety implications
• titleholders, prospectors or mine operators whose activities actually or potentially have a significant impact upon the environment, community or government revenue
• titleholders, prospectors or mine operators whose activities whose activities attract significant public interest
• titleholders, prospectors or mine operators whose activities who have a history of non-compliance with title conditions, and
• titleholders, prospectors or mine operators who are not undertaking effective exploration.

The DRE’s auditing program will include compliance inspections and assessments, desktop audits, targeted audits and comprehensive audits, which will review information about business operations through onsite investigation and intelligence gathering.

 

Enforcement actions can include financial penalties, permit penalties (imposition of restrictive conditions) and suspension or cancellation of licences, permits and authorities. 

 

Explorers and miners in NSW should be aware of the new Compliance and Enforcement Policy being implemented by DRE and should ensure that they comply with the conditions of any mining or petroleum tenement. Additionally, if your activities attract significant public interest you may get extra attention from DRE notwithstanding a strong environmental record. We can assist you with understanding your obligations under your tenement conditions.

 

Samantha Daly, Patrick Holland, Kate Swain, Felicity Douglas 

Reforms to NSW state significant development assessment

The Minister for Planning, The Hon. Pru Goward, has announced proposed changes to how state significant development (SSD) proposals are processed.  In an effort to reduce the current lengthy delays, the NSW Government has made a commitment to cut the average time that it takes to process SSD applications (including mines) by up to 170 days. 

The reduction in processing time for SSD applications will be achieved through the introduction of:

• clear timeframes for certain assessment processes
• clearer guidance to the Planning Assessment Commission (PAC) on the application of government policies, and
• the appointment of case managers to manage planning applications. 

The Minister also proposes to establish a panel of independent experts to advise the NSW Government and the PAC on technical issues.

The timeframes are not enshrined in law and the proposed changes do not include deemed approval provisions, so it remains to be seen whether the reforms will result in a significant reduction in processing times for SSD applications. 

 

Samantha Daly, Patrick Holland, Kate Swain

New land acquisition and mitigation policy for NSW mining, petroleum and extractive industries

The NSW Government has released a new State Environmental Planning Policy Amendment (Gas Exploration and Mining) 2014 (SEPP Amendment) which came into force on 19 December 2014. 

The SEPP Amendment introduces a new land acquisition and mitigation policy to formalise landholder protection from noise and dust for State Significant Developments (SSD) in the mining, petroleum and extractive industries. 

This means that decision-making bodies are now obliged to take into account the new 'Voluntary Land Acquisition and Mitigation Policy' in determining development applications.  This policy provides guidance on measures to reduce the impact of noise and dust on adjoining properties from proposed new activities.  It applies to all undetermined SSD applications and any future applications to modify existing operations. 

The policy provides that the acquisition price to be paid by a proponent be an amount no less favourable that a 'market value' rate calculated as if the land was unaffected by the development and with reference to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Land Acquisition Act).  This requirement is controversial as the Land Acquisition Act is a statutory scheme introduced for use by NSW government authorities during compulsory acquisition of private land for a public purpose. 

The policy also has the potential to significantly impact proponents of SSD in the mining, petroleum and extractive industries, as it introduces voluntary land acquisition criteria for particulate matter applicable to the majority of workplaces on privately owned land (in addition to residences). Importantly, the consent authority maintains discretion as to whether or not to apply the particulate matter acquisition criteria to workplaces, with a range of factors for the consent authority to consider including the nature of the workplace.

Under the policy, a 'workplace' is defined to include 'a lawfully operating office, industrial premises or intensive agricultural enterprise where employees are grouped together in a defined location, but does not include broad-acre agricultural land, heavy, hazardous or offensive industry or businesses intentionally located close to mining operations.'

Outcome

The requirement that the Land Acquisition Act criteria be applied to acquisition of some types of workplaces affected by dust has the potential to make smaller SSD applications and modifications unviable, as the cost of relocating and compensating a business owner could be substantial. 

Samantha Daly, Patrick Holland, Kate Swain

Introduction of risk-based scheme for NSW EPLs

Holders of environment protection licences (EPLs) could see their administration fees increase in the 2016/17 financial year.

On Friday 2 May 2014, the Protection of the Environment Operations (General) Amendment (Licensing Fees) Regulation 2014 (Licensing Regulation) came into effect.  The Licensing Regulation introduces a new risk-based licensing scheme that aims to encourage EPL holders to improve their environmental performance.

The risk-based licensing scheme will change the way that EPL fees are calculated and inform the level of regulatory intervention imposed on EPL holders.

Higher fees and a greater regulatory burden will be imposed on operators who have a poor environmental management history or who are carrying out operations that pose significant risks to the environment.  Fees can be reduced when steps are taken to mitigate the environmental risks caused by an operation. 

For more information and comprehensive detail on the Licensing Regulation, please visit the McCullough Robertson website.

Samantha Daly, Patrick Holland, Kate Swain

New ‘fit and proper person’ test to apply on NSW mining title grants

The NSW Government has introduced legislation that replaces the ‘public interest’ test with a ‘fit and proper person’ test which is to be applied by a decision maker when determining whether to grant, renew or transfer an authority under the Mining Act 1992 (Mining Act).

The new fit and proper person test includes consideration of whether the person has contravened relevant legislation; the person has held a mining right or petroleum title that has been cancelled, suspended or revoked; whether the person is of good repute, and the person's character, honesty and integrity.

These changes will significantly increase the uncertainty associated with obtaining, renewing and transferring mining titles in NSW.

Resources participants should also be aware of The Mining and Petroleum Legislation Amendment Bill 2014 that introduces amendments to the Mining Act and the Environmental Planning and Assessment Act 1979, requiring a proponent of a mining project to hold an underlying coal title or have the consent of the title holder prior to lodging a development application for a project that involves the extraction of coal.

The amendments provide that an application (including a modification) for a coal mining project cannot be made or determined unless the applicant is the holder of a mining authority for coal over the land in question or has written consent from the holder of the coal mining authority.  A mining authority is not required over the whole of the land to which the application relates but must be in force for the land where extraction of coal is proposed. 

For more information and comprehensive detail on the above changes visit the McCullough Robertson website.

Samantha Daly, Patrick Holland, Kate Swain

Draft NSW Biodiversity Offsets Policy for Major Projects

There is currently no standard method for the assessment of impacts of major projects on biodiversity. The draft NSW Biodiversity Offsets Policy for Major Projects (Offsets Policy) is seeking to introduce a standardised approach that provides guidance in assessing and offsetting the biodiversity impacts of major projects.

At this point in time, biodiversity impact assessments are undertaken on a case-by-case basis which can result in significantly different offset requirements for different projects.  The Offset Policy aims to minimise these discrepancies and provide an assessment procedure that is practical and reasonable.

The Offsets Policy will apply to major projects in NSW (projects that are declared State Significant Development or State Significant Infrastructure by the Minister for Planning and Infrastructure).

The policy principles

The policy is underpinned by seven key principles:

Principle 1 – Impacts must first be avoided and unavoidable impacts minimised through mitigation measures.

Proponents must avoid and minimise impacts before considering offsets.  A proponent will need to justify why impacts can’t be avoided or minimised.

If an impact can’t be avoided, a reasonable effort must be made to minimise the impact, and offsets used to compensate for the remaining impacts.

Any impacts that are more complicated and severe (e.g. extinction of a species) will require additional consideration by a consent authority before an offset can be used.

Principle 2 – Offset requirements should be based on reliable and transparent assessment of losses and gains

The Framework for Biodiversity Assessment will need to be applied on behalf of proponents in a transparent and repeatable method for assessment by ecological consultants who are accredited specialists under the existing NSW BioBanking Scheme.

Principle 3 – Offsets must be targeted to the biodiversity values being lost or to higher conservation priorities

Offsets will need to have a ‘relationship’ to the biodiversity values being lost:

• Vegetation - the policy no longer requires like-for like’ offsets.  The offsets can now include similar vegetation in the same locality if those vegetation types are more highly cleared than the vegetation that will be impacted by the development in question
• Threatened species - if a species is not critically endangered or listed under the Environment Protection and Biodiversity Conservation Act 1999, with approval, a species may be offset with a similar species in the locality that is under the same or greater level of threat, and
• Aquatic biodiversity - offsets can include similar aquatic habitat in the catchment that is more threatened than the aquatic habitat being impacted upon.

The Offset Policy will broaden the scope of entities that can fulfil offset requirements, and recognises that protecting and improving biodiversity of a similar value, but under a greater level of threat can also provide benefits to the state.

 

Principle 4 – Offsets must be additional to other legal requirements

Offset land can already be managed under legal requirement. The Offset Policy requires offsets to be in addition to other existing native vegetation management.

Public land can be used for offsets even if it has existing legal requirements for environmental management, however a 5% - 7.5% overall discount to the number of biodiversity credits will apply to that land.

Land that is used to create carbon credits which are not 'legal requirements' (i.e. voluntary carbon offsets) can also generate biodiversity credits under the scheme. This means that one offset site can potentially generate both biodiversity credits and carbon offsets.

Principle 5 – Offsets must be enduring, enforceable and auditable

As the impact on biodiversity is usually permanent, the mechanism used to manage an offset site must also be enduring.  As such management actions are required to be enforceable and auditable and comply with the following criteria:

• objective of ongoing management
• sufficient resources available
• plan of management in place
• mechanism can't be altered without an alternative arrangement, and
• the conservation of the offset must be in perpetuity and disclosed to future owners.

Currently, Biobanking agreements are the only mechanism in NSW that satisfy all of the above criteria.

Principle 6 – Supplementary measures can be used in lieu of offsets

Supplementary measures may be used in lieu of offsets if an appropriate offset site cannot be found, however reasonable attempts must be made before supplementary measures will be considered by a consent authority.

Supplementary measures will need to be commensurate with the cost of establishing an offset site.

Principle 7 – Possibility to discount offset if the proposal will provide significant social and economic benefits to NSW

In very limited circumstances, a consent authority will consider modification of offset requirements if it would otherwise prevent a project from proceeding.
 

How the policy will work

The policy principles will guide the Framework for Biodiversity Assessment.  The Framework for Biodiversity Assessment proposed by the Offsets Policy has two stages.

Stage 1 – Biodiversity assessment

Under the Offset Policy, a proponent is required to:

• avoid and minimise impacts on biodiversity
• assess the remaining impacts
• determine if the impacts require further consideration, and
• complete a biodiversity assessment report.

Stage 2 – Fulfil offset requirements

Subject to the outcome of the biodiversity assessment report, the proponent is required to prepare a Biodiversity Offset Strategy setting out one of the following ways to fulfil the offset requirements:

• offset a site secured by a biobanking agreement
• mine site rehabilitation
• contribution to supplementary measures, or
• contribution to a biobanking fund.

The proponent must then submit the biodiversity assessment of Offset Strategy as part of the project application for consideration by consent authority.
 

Biobanking agreements

The preferred offsetting method will be through a biobanking agreement, where an offset site is dedicated to protecting and improving biodiversity to counterbalance the losses of biodiversity on the development site. This is materially different to the current situation whereby proponents have a choice of what method they choose to secure land (eg conservation agreement, covenant etc).

The offset site can be owned by a proponent or, alternatively, the proponent can contribute monetary payments to a landowner to manage an area of biodiversity on their land. 

Improvements in biodiversity on an offset site will be calculated in ‘biodiversity credits’.  A biobanking agreement will identify the number and type of biodiversity credits that will be generated through the landowner’s management actions.  A proponent can then purchase biodiversity credits to compensate for the loss of biodiversity on their development site. 

Once the biodiversity credits have been purchased, they are ‘retired’, removing them from the market to prevent them from being traded in the future.

Voluntary conservation agreements (VCA) are currently the preferred offset mechanism for most major projects in NSW as they provide greater flexibility for the proponent. Also, one of the benefits of a VCA as opposed to a biobanking agreement is the exemption of this land the subject of a VCA from Council land rates.  The Local Government Act 1993 does not currently exempt land the subject of a biobanking agreement from land rates.
 

New flexible ways to achieve your offset requirements

The Offsets Policy has introduced new, more flexible ways (in addition to the biobanking agreements) in which proponents can achieve their offset requirements to ensure that the best and most credible offsets are provided:

• Mine site rehabilitation - Proponents will be able to count ecological rehabilitation of mine sites in calculating offsets, where there are 'good prospects of biodiversity being restored'.
• Broadening of the 'like-for-like' biodiversity requirement - this recognises that the exact same biodiversity may not always be available for an offset.  If like-for-like is not available, offsets that are a 'higher conservation priority' may be targeted, provided they have a relationship to the biodiversity being lost.
• Supplementary measures - If all reasonable measures have been made to locate an offset site, but one is not able to be found, a proponent is able to provide funds for supplementary measures such as:
• threatened species recovery programs
• threat abatement programs, or
• contribution to biodiversity research and survey programs.
  The contribution will be calculated based on what the cost of an offset site would have been for that project.

 

Possibility of a discount on your offsets?

The Offsets Policy will allow a consent authority to reduce offset requirements in certain limited circumstances, where ‘significant social and economic benefits accrue to NSW as a consequence of the proposal’, and the project’s offset requirements may make the project unviable. 

The potential to reduce offset requirements has been introduced under the Offset Policy in recognition that under the Environmental Planning and Assessment Act 1979 a consent authority is required to consider the social and economic aspects of a proposal.
 

Biodiversity offsets fund

The NSW Biodiversity Offsets Fund for Major Projects (Offsets Fund) complements the Offset Policy’s supplementary option by enabling proponents to contribute a monetary amount to satisfy their offset requirements. The fund will then purchase offsets on behalf of the proponent.  The establishment of the Offsets Fund will:

• give proponents increased certainty - proponents will be able to understand upfront how much money they will need to contribute to fulfil their offset requirements
• enable a more strategic and coordinated purchase of offsets located in strategically important biodiversity areas in NSW such as land adjacent to wetlands and rivers, and
• facilitate landowners to establish offset sites on their land that could result in an additional income stream. 

 

Transitional provisions

The transitional period is likely to commence during the second half of 2014.  It is intended that after approximately 18 months, the policy will be implemented through legislation. It is not clear from the draft Policy how the Policy (once finalised) will apply to current development applications where Director-General’s requirements have been issued but the development assessment process is not yet complete.

The Offset Policy will not apply to existing offset sites secured under other long-term mechanisms.
 

Find out more at our free seminar

Partner Samantha Daly and Director of Umwelt environmental consultants Barbara Crossley will lead a panel of experts:

• Environmental law expert Patrick Holland from McCullough Robertson’s Sydney office
• Travis Peake, Manager Ecology/Associate, Umwelt – expert in biodiversity assessment and offsets, and
• Andrew McIntyre, Regional Manager, Hunter Central Coast at the NSW Office of Environment and Heritage

in a free seminar in the Hunter Valley focusing on what you need to know about the NSW Biodoversity Offsets Policy.

Date: Friday 2 May 2014

Venue: Singleton Diggers Club, York Street, Singleton  NSW  2330

Time: 7.15am for 7.30am - 9.00am (light breakfast included)

RSVP: Monday 28 April 2014

Enquiries: Donna White on 1300 MCR 888 (1300 627 888)

Click here to register.

Samantha Daly, Patrick Holland, Kate Swain

Reporting of pollution incidents in NSW – a reminder that not all pollution incidents need to be notified

Environment Protection Authority v Bulga Coal Management Pty Limited [2014] NSWLEC 5

Our client Bulga Coal Management Pty Limited (Bulga) has successfully defended a charge brought by the Environmental Protection Authority (EPA) that Bulga failed to notify the EPA of a pollution incident that occurred at the Bulga Coal Mine as soon as practicable after it became aware of the pollution incident.

This was the first prosecution under the Protection of the Environment Operations Act 1997 (NSW) (the Act) since its inception in 1997, where a plea of not guilty has been entered to the charge of failing to notify under section 148 of the Act.  The EPA has advised the Court that it will not appeal this decision of her Honour Justice Pain in the Land and Environment Court.

The EPA prosecuted Bulga for failing to notify the EPA of a leak from a tailings pipeline as soon as practicable after it occurred.  Bulga pleaded not guilty to this charge and argued that the notification occurred as soon as practicable after the relevant personnel formed the opinion that the incident had caused or threatened material harm.  Bulga did not dispute that the pollution incident had occurred, however it disputed that it had failed to report the incident ‘as soon as practicable’ after becoming aware of the incident, as required under section 148 of the Act.

This case clarifies that the obligation to notify the relevant authorities is triggered when the person forms a subjective awareness that material harm has been caused or threatened (as opposed to the objective position when the person first becomes aware that a pollution incident has occurred).  The Act was amended in November 2012 to require immediate reporting (promptly and without delay) of pollution incidents which cause material harm, however the subjective awareness requirement of whether material harm has been caused is still applicable.

Under the Act, material harm to the environment requires:

• actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
• harm that results in actual or potential loss (including measures to prevent or make good harm to the environment) exceeding $10,000.  

This means that the person must be actually aware that:

• the pollution incident has occurred, and
• the pollution incident has caused or threatened harm to ecosystems that is not trivial, or that it will cost more than $10,000 to clean up the damage,

before that person has an obligation to report the incident.

This decision potentially has far-ranging implications for environmental law in other Australian jurisdictions.

Background

At approximately 11.30am on Sunday, 9 October 2011, a Bulga employee became aware that coal tailings had escaped into Nine Mile Creek (an intermittent waterway which at the time was a dry creek bed).  The tailings had escaped as the result of the failure of a steel T piece in the tailings pipeline, and were described as a ‘trickle’.  The Bulga employee formed the opinion that the potential harm to the ecosystem was trivial as there were no signs of harm to animals or plant life in the area of spill, and the tailings were non-toxic. 

The employee followed Bulga’s internal processes, by taking immediate steps to stop the leak and prevent the further spread of tailings, and by contacting both the Environment Manager and CHPP Manager to inform them of the incident.  The Operations Manager, who was responsible for external reporting of environmental incidents under the Company’s internal incident management procedure, formed the positive view after being informed of the details of the incident that the incident was not causing or threatening material harm to the environment and therefore was not required to be reported on the Sunday.

The following morning, the relevant personnel assembled on site to inspect the pollution incident, and at this time the view was formed by the relevant employees that the cost of the cleanup of the incident would be more than $10,000.  The Operations Manager therefore made the decision that the incident should be notified to the EPA as soon as practicable, and this occurred within one hour of that opinion being reached.

Ultimately, the final clean-up cost to Bulga was $94,550 in internal costs and the external costs amounted to $193,440.

Forming an awareness

The EPA argued that the offence in this case was made out as the EPA was only required to prove, as a matter of objective fact, the incident was of that type and when the relevant Bulga personnel became aware of such an incident was irrelevant. The Court adopted Bulga’s submissions concerning the context of sections 147 and 148 of the Act, that section 147(1)(b) naturally allows the person on whom the duty is cast to make reasonable inquiries as to the anticipated clean up costs that would be incurred to make good any (trivial) harm to the environment caused by the incident.

Overall, the Judge agreed with Bulga that not all pollution incidents are required to be notified to relevant authorities under the Act, as this would lead to a substantial drain on the finite resources of those authorities.

With respect to the EPA’s argument, Her Honour held that if this position was adopted it would lead to unfair results as a person could be held criminally liable for an offence even if they were not aware that the incident was a type that should be reported. Her Honour also suggested that the EPA’s position would be contrary to the principles identified by the Court of Criminal Appeal which reaffirmed the common law presumption that knowledge is an essential element of every offence unless expressly displaced by the drafting of the relevant statute.

The Judge found that a prosecutor must prove beyond reasonable doubt that the defendant failed to report an incident; and in addition, that the defendant was aware that the pollution incident has caused or threatened harm to ecosystems that was not trivial; or that it would cost more than $10,000 to clean up the damage from the incident.

This does not mean that a person can turn a blind eye to the question of whether material harm has been caused and then later argue that they never considered the question.  The Judge noted in this case that an actual knowledge of the materiality of the harm caused could be inferred if the person could be found to be aware of suspicious circumstances or deliberately failed to inquire (wilful blindness).

What to do to ensure you are not prosecuted for failure to notify
It is imperative that your organisation has a clear process to ensure that pollution incidents are managed and reported in accordance with its obligations under the Act. 

In addition, holders of Environmental Protection Licences are required to have implemented Pollution Incident Response Management Plans (PIRMP) and to regularly test these under the Act.  The EPA recently completed its annual compliance audit program of PIRMPs and only one licensee was found to be fully compliant.

As soon as a pollution incident is identified the processes outlined in your organisation’s internal policy or, if applicable, under the PIRMP should be followed.  The PIRMP must identify the person who is responsible for reporting a pollution incident and outline the process that person must following to determine if the incident is reportable, including the process for determining whether the ‘material harm to the environment’ thresholds have been reached.

Importantly, this case has confirmed that it is acceptable for a company to undertake an internal decision-making process to assess whether material harm to the environment has been caused or threatened and therefore whether the incident needs to be reported. In the case of Bulga this process took 24 hours, which the Court ultimately found acceptable given the internal processes undertaken by Bulga during that period and the evidence as to the beliefs that were formed by the Operations Manager during that time as to whether or not material harm to the environment had been caused or threatened.

In forming a view as to whether the incident has caused or threatened to cause material harm – in addition to considering the actual or potential harm to ecosystems that may result from the incident, the responsible person should consider whether it will cost more than $10,000 to clean up the incident. The following questions will assist that person in forming a view as to the materiality of harm:

• how much labour will be involved in the clean up?
• will any equipment need to be brought in to remove material?
• will extensive water sampling be required?

If the responsible person forms the view that the pollution incident has caused or threatens to cause material harm then that person must report to all appropriate regulatory authorities IMMEDIATELY (which means promptly and without delay).

The key message from this case is that it is acceptable to have a hierarchical internal process for determining whether a pollution incident has caused or threatened to cause material harm but that process must be followed to avoid prosecution for ‘failure to notify’.

If you would like McCullough Robertson to review your organisations internal policy or PIRMP, or you would like further information on this topic, please contac our team.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

20% reduction in coal washery rejects levy for NSW operators

From 1 March 2014, NSW occupiers of licensed waste facilities will benefit from a 20% reduction in the levy payable on the disposal of coal washery rejects.  The new levy is $13.30 per tonne, down from $16.60.

What is the levy?

Since November 2009, each tonne of coal washery rejects that are received offsite and applied to land, have been subject to the coal washery rejects levy.  

Under the Protection of the Environment Operations Act 1997, occupiers of licensed waste facilities in NSW are required to pay a levy for each tonne of waste received. Different contributions are payable depending on the type of waste, where it was generated and the location of its disposal.

The aim of the coal washery rejects levy is to motivate the improvement of environmental management of coal waste by making the disposal more expensive, providing an incentive for mine operators to develop an alternative to disposal.

Important change to the levy

Following 30 June 2010, the coal washery rejects levy increased to $16.60 per tonne, up from the initial rate of $15.00 per tonne.

Legislative amendments have been introduced reducing the rate of the levy payable on the dispose of coal washery rejects by 20% for occupiers of licensed waste facilities.  The amendments took effect on 1 March 2014, resulting in a significant reduction in the levy to $13.30 per tonne.

The levy applies once the coal washery rejects is received at the licensed waste facilities irrespective of when it is applied to land.

Exemptions

There are two general exemptions from the requirement to pay the levy, namely:

• the Coal Washery Rejects (Coal Mine Void) Exemption 2009, and
• the Coal Washery Rejects General Exemption 2009.

The Coal Mine Void Exemption applies if:

• the coal washery rejects can only be applied to land to fill a coal mine void, to the original ground level
• the application of the coal washery rejects to land must conform to an approved rehabilitation plan for the site, and
• the application of the waste occurs within six months of receipt at the site.

The General Exemption provides that coal washery rejects which are applied to land in earthworks for civil engineering applications are exempt from certain licensing, contributions and reporting requirements.  The General Exemption does not apply to coal washery rejects that are applied to land for the purposes of mine site rehabilitation.

If your organisation is currently paying the coal washery rejects levy you should consider whether one of these exemptions may apply.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

Expanded CSG exclusion zones to protect critical industries in the Upper Hunter

NSW CSG exclusion zones

The NSW Government announced this week further exclusion zones for coal seam gas (CSG) development across NSW.  The exclusion zones will now apply to an additional 2.7 million hectares of land across NSW in order to protect current and future residential areas as well as critical industry clusters in the Upper Hunter.

CSG exclusion zones are already in place for existing residential areas throughout NSW.  These exclusion zones apply a two kilometre buffer around the residential areas to prohibit any new CSG activities.

The latest announcement will see a prohibition of CSG activities in an additional seven rural villages as well as future residential growth areas.  The rural villages that have been identified include:

• parts of Broke and Bulga, and all of Camberwell and Jerrys Plains, in the Singleton Local Government Area
• all of Sutton Forrest in the Wingecarribee Local Government Area
• part of Goonengerry in the Byron Local Government Area, and
• all of Modanville in the Lismore Local Government Area.

This means that approximately 95 per cent of dwellings in NSW that are covered by current petroleum licences will be protected from any further CSG exploration and development.  The exclusion zones around these rural villages will not impact on State Significant mining developments which will still go through the gateway process before proceeding to the environmental assessment stage.

The future growth residential areas where CSG activities will also be prohibited are in the Gosford and Great Lakes council areas.

These exclusion zones will not prohibit CSG activities which already have development consent.

Upper Hunter Critical Industry Clusters

The wine and equine industries will also be protected from new CSG activities with the addition of 288,000 hectares of critical industry cluster (CIC) land being added to existing CSG exclusion zones. This means that any new CSG exploration or development will be prohibited in the mapped CIC areas.

In addition, development applications for State significant mining in the mapped CIC areas will be subjected to the Gateway process. Finalisation of the CIC mapping will have the greatest impact on mining operations around Muswellbrook with approximately 200,000 hectares being declared as equine clusters.

Petroleum extraction rights under mining leases

These CSG exclusion zones do not apply to those miners that have petroleum extraction rights under existing mining titles.  The CSG exclusion zones only apply to CSG development for the purpose of petroleum exploration or production pursuant to a petroleum title granted under the Petroleum (Onshore) Act 1991. The recovery, obtaining or removal of CSG in the course of mining is not covered by the exclusion zones.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

ICAC recommends fundamental changes to exploration licence approval process

On 30 October 2013, the Independent Commission Against Corruption (ICAC) provided its report to Parliament titled ‘Reducing the opportunities and incentives for corruption in the State’s management of coal resources’.  The Commission’s report makes 26 recommendations to prevent and minimise the reoccurrence of corruption as identified in recent ICAC investigations into the granting of exploration licences (ELs) in NSW.

Key recommendations

The key recommendations made by ICAC include:

• the development of a set of predetermined factors to provide guidance in the release, allocation and development of NSW coal resources
• the establishment of a steering group chaired by the NSW Department of Planning and Infrastructure and made up of senior public servants from the Resources and Energy Division of the Department of Trade and Investment, Regional Infrastructure and Services, the Department of Planning and Infrastructure and the NSW Treasury to develop a protocol for the release and allocation of ELs
• the establishment of an assessment panel comprised of experts from the departments identified above to provide further technical information and analysis to the steering committee and to provide a triple bottom line assessment of the environment, social and economic factors of allocating an EL in a particular area
• the assessment panel should conduct technical analysis of preferred companies to determine if each company has the technical expertise to undertake the exploration activities and analysis of their financial position for their capacity to fund exploration work
• the  Government’s decisions on the release of mature areas for ELs and the auction of those ELs should be linked to the likelihood of approval to mine
• the auction method should be the preferred approach to allocating the State’s coal resources and this auction process should be overseen by the New South Wales Treasury.  Where direct allocation is appropriate, it should be the subject of oversight by an assessment panel comprised of practitioners with relevant expertise from the key departments
• the current renewal of ELs should be replaced by exponentially escalating lease rent, allowing commercial decisions to be made in an environment of certainty, removing the incentives to renew ELs repeatedly without progressing to mining, and
• the development of a transitional regime for moving all existing ELs to this rent based arrangement.

Implications for current tenement holders

The following significant implications arise as a result of these recommendations:

• the renewal of ELs in the future may be subject to exponentially increasing rent arrangement whereby the tenement holder is required to increase payments to the NSW Government each time the EL is renewed
• the existing practice of sitting on tenements for extended periods of time without meaningful steps being taken to develop the resource is unlikely to be possible under the proposed regime
• an auction process may be applied to grant the majority of ELs which means that the company with the highest cash bid or highest exploration work program will be awarded the EL
• if preliminary exploration in a particular area does not fall within the strategic assessment areas recommended by the NSW Department of Planning and Infrastructure, there is potential that future ELs will not be granted over the area, and
• there will be a more stringent analysis of the technical and financial capabilities of a preferred company to carry out and fund the exploration activities before an EL is granted.

Direct allocation

Importantly, ICAC recognises that in some situations direct allocations will continue to be necessary but there should be greater oversight of the direct allocation system.  Specifically, the ICAC recommends the assessment panel adopts a ‘triple bottom line’ approach when advising on direct allocations.  Potential arguments identified in the ICAC report for direct allocation applications include when the applicant mining company:

• is seeking an EL in close proximity to its existing operations
• is the only mining company interested in the resource, or
• can better serve the wider interests of the government by the innovative work programs they are proposing.

On this basis, mining companies may still be able to obtain ELs through direct allocation but any new regime for granting ELs is likely to place significant constraints on this allocation process.

Next stage

The recommendations will be provided to the relevant public authorities for consideration, with a response required within three months prior to any plan of action being implemented. 

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

Mining lease conditions slashed and application processing times reduced

On 17 October 2013, the NSW Resources and Energy Minister, Chris Hartcher announced significant amendments to the standard conditions for exploration licences and mining leases which will result in the removal of conditions that are already covered by obligations under the Mining Act and other mine safety legislation.

The amendments also involve the deletion of conditions relating to matters that are already regulated by other government departments, such as the Department of Planning as well as other outdated and redundant conditions.

The removal of the duplications will cut the number of conditions for future standard coal mining leases in NSW from 24 conditions to nine. The standard ‘Mining Lease Conditions (Coal) 2013’ now relate to the following limited matters:

• landholder notification following the grant or renewal of the lease
• satisfactory rehabilitation of disturbance following the completion of activities
• the preparation of approved Mining Operations Plans, an annual rehabilitation report and annual compliance report
• notification to the Department in the event of an environmental incident which breaches the mining lease, the Mining Act 1992 (NSW)or the Protection of the Environment Operations Act 1997 (NSW)
• the preparation of ‘eligible subsidence management plans’ which will dictate the level of subsidence that is permitted to be caused by underground mining operations
• optimisation of resource recovery of the minerals that are the subject of the mining lease
• the payment of a security deposit for the fulfillment of obligations under the mining lease, and
• making every reasonable attempt to enter into cooperation agreements with overlapping title holders.

The purpose of these amendments is to minimise the costs of doing business in NSW and boost investment certainty. Significant obligations which have now been deleted from the standard conditions relate to environmental harm, working requirements (i.e. minimum number of personnel), blasting, safety, prevention of soil erosion and pollution, roads and tracks, trees and vegetation and indemnities.

This means that if your mining lease is granted or renewed after 17 October 2013 you can expect significantly reduced obligations to be imposed under the new mining lease conditions. All mining leases granted or renewed prior to this date will continue to operate under the previous conditions that were issued.

Assessment timeframes reduced

The Government has also committed to reducing the times for assessing coal exploration licences and mining leases will be cut from 150 days to 95 days, while times for processing renewal applications will be reduced from 100 days to 55. These changes came into effect on 1 July 2013.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

The gateway process commences for the assessment of mining and petroleum development

On 4 October 2013, the gateway assessment process for mining and petroleum development on strategic agricultural lands came into effect through amendments to the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 (NSW) (Mining SEPP Amendment) and the Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2013 (NSW) (Gateway Regulation).

The gateway assessment is an independent, upfront scientific assessment of the impact of new state significant mining and petroleum development on strategic agricultural land and its associated water resources.  The gateway assessment process must be undertaken before certain mining and petroleum development can proceed to full environmental assessment.

Updated strategic agricultural land maps have been included in the Mining SEPP Amendment identifying areas of biophysical strategic agricultural land and critical industry cluster land (such as viticulture in the Hunter Valley).  At this stage the gateway process applies to two million hectares of strategic agricultural land which was mapped in the Upper Hunter and New England North West regions of the state. Mapping of the remaining areas of the state is currently underway.

The Mining and Petroleum Gateway Panel (Gateway Panel), comprising independent scientific experts, has now been established to review proposed mining or petroleum development and issue gateway certificates.

This means that if you propose to lodge an application for a mining or petroleum development on specified strategic agricultural land at any point in the future, your application must be accompanied by a gateway certificate in respect of the proposed development, or a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.

Site verification certificates

A site verification process has been introduced by the Government to enable proponents of mining and petroleum development, and in some circumstances landowners, to verify if land is classified as biophysical strategic agricultural land.

A proponent or landowner can apply to the Director-General of the Department of Planning and Infrastructure for a site verification certificate confirming that specified land within the area of a development is or is not biophysical strategic agricultural land.

When determining an application for a site verification certificate, the Director-General must have regard to the criteria set out in the Interim Protocol for Site Verification and Mapping of Biophysical Strategic Agricultural Land published in the NSW Government Gazette on 12 April 2013.

In addition, if a proponent identifies that the proposed project site contains land identified as strategic agricultural land in the relevant maps, the proponent can choose to challenge this status by applying to the Director-General for a site verification certificate.  The fee for the site verification certificate is $3,900.

If the Proponent is not the landowner, prior to requesting a site verification certificate, written notice must be provided to the owner of land or an advertisement must be published in a newspaper circulating in the area in which the development is to be carried out within specified time periods.

The Gateway Regulation now requires site verification certificates to be included in s149 planning certificates issued by local councils.

Gateway certificates

A gateway certificate can be issued by the Gateway Panel and is issued as an ‘unconditional certificate’ (if the proposed development meets the relevant criteria) or as a ‘conditional certificate’ (if the proposed development does not meet the relevant criteria).  A gateway certificate is valid for five years.

A conditional certificate will include recommendations of the Gateway Panel to address the proposed development’s failure to meet relevant criteria and the certificate may also recommend that further studies be undertaken.

If a gateway certificate application relates to development on land that has been identified as biophysical strategic agricultural land, the Gateway Panel must refer the application to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IES Committee) established under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for advice regarding the impact of the proposed development on water sources.

Changes to the environmental assessment process

Development applications for mining and petroleum projects will now have added complexity, as the gateway process introduces additional formal steps prior to (and in some circumstances during) the environmental assessment process.

If a gateway certificate has been issued for a proposed development, the Gateway Regulation requires the Director-General to address any recommendations of the Gateway Panel set out in the gateway certificate.  The Director-General must also consult with the Gateway Panel when preparing environmental assessment requirements for the proposed development, and have regard to the need for the requirements to assess any key issues raised by the Gateway Panel during the consultation process.

The Gateway Regulation also requires the Director-General to have regard to any gateway certificate recommendations of the Gateway Panel, even if the certificate is issued after a proponent has been notified of environmental assessment requirements.  The Gateway Regulation includes a provision which enables the Director-General to modify those environmental assessment requirements if it is considered necessary.

The Gateway Regulation now also require a consent authority to refer an application for development consent for a mining or petroleum development that is accompanied by a gateway certificate, to the Minister for Primary Industries for advice regarding the impact of the proposed development on water resources.  The Minister for Primary Industries when considering the impacts of a proposed development on water resources must have regard to the Aquifer Interference Policy, and particularly the minimal impact provisions.

Coal seam gas development exclusion zones

The Mining SEPP Amendment also introduces additional coal seam gas development exclusion zones and buffer zones (land within two kilometres of an exclusion zone), which prohibits coal seam gas development on or under certain land.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

Proposed changes to Environment Protection Licences

In September 2013, the NSW Environment Protection Authority (EPA) released details of the proposed changes to the environmental licensing framework under the Protection of the Environment Operations (General) Regulation 2009 (NSW) (Regulation).  A new risk based licensing scheme (Scheme) is intended to come into effect from 1 January 2015.  Submissions to the EPA on the proposed introduction of the Scheme close on 1 November 2013.

Purpose of the Scheme

The Scheme is designed to provide an incentive for environmental protection licence (EPL) holders to comply with the environmental protection standards set by the EPA.  Under the Scheme, licensees assessed as having a poor environmental performance record will incur higher licence fees because they require a greater level of regulatory intervention, e.g., more intensive monitoring.  This allows for a risk assessment process that is proportionate to the level of environmental risk that the EPL holder generates which does not shift the burden of costs of such activities to the community.

The risk assessment process

The EPA will conduct a risk assessment for each EPL holder in consultation with the holder in order to determine:

• the appropriate environmental management category (A, B, C, D or E in descending order of performance), and
• the appropriate environmental risk level (1, 2, or 3 in ascending order of risk) for their activities.

The category will determine the risk of the EPL holder so that the EPA is able to ascertain the regulatory intervention required for that particular licensee.

To make this determination, the EPA will have regard to three factors:

• the day-to-day operations at the site
• the risk of pollution incidents occurring at the site, and
• the environmental management performance of the licensee.

Furthermore, the EPA will take into account the EPL holders history, including past compliance and non compliance and ways in which the EPL is trying to control or mitigate environmental risks.

Review of risk assessments

Following the initial risk assessment, the process will be repeated after a period of five years, unless:

• an environmental incident or report of non-compliance triggers a review ; or
• an EPL holder requests that the EPA review their environmental performance before that time.

Calculation of the licence administrative fee

The licence administrative fee for each EPL holder will be calculated based on their environmental management category and environmental risk level in accordance with the method set out in Schedule 1 of the Regulation.

Public availability of information

The environmental risk level for each EPL holder will be published on the EPA’s Public Register in order to provide the public with increased access to information on the environmental performance of industrial operators and facilitate greater transparency in regard to environmental assessment processes.

Implications of the proposed amendments

The proposed new scheme for assessing a licence holder’s risk will mean that licensees that rate higher on the risk assessment scale will be more heavily regulated by the EPA in addition to having increased administrative fees.  This includes increased pollutant fee units and increased fees payable for clean up notices, prevention notices and noise control notices.  This means that if your operations have a poor environmental performance record as a result of past conduct, you are likely to be impacted most significantly by these changes.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

The new Rail Infrastructure Noise Guideline

In May 2013, the NSW Environment Protection Authority (EPA) released the Rail Infrastructure Noise Guideline (RING).  The RING replaces the Interim guideline for the assessment of noise from rail infrastructure projects 2007 (NSW).  The purpose of the RING is to streamline the approval process for rail infrastructure projects and protect the wellbeing of communities from the impacts of projects likely to result in increased noise levels.

Projects subject to the RING

The RING applies at the project assessment stage to:

• new heavy, light and non-network rail lines extending beyond industrial sites
• the redevelopment of existing lines that are in use or disused, and
• land-use development that is likely to generate additional rail traffic on an existing rail network.

Mitigating noise impacts

The RING imposes specific trigger levels for cumulative rail noise on the different types of rail infrastructure projects.  All feasible and reasonable noise mitigation measures must be considered for projects that are likely to exceed the specified levels once they are operational.

Calculating noise levels

The noise trigger levels refer to noise at receiver locations in areas of residential land-use in urban, suburban and rural settings and do not include ambient noise from other locations.

For redeveloped projects the trigger levels take into account noise from existing projects and require the calculation of increases in noise only.

Key differences in the RING from the interim guideline

The EPA has made several changes to the scope of the instrument:

• light rail systems and non-network rail lines are subject to the RING
• there are no exemptions for minor works
• the trigger levels for non-rail land-use developments have been revised
• rail track owners are required to assess the magnitude of any increase in noise levels over a 15 hour day time period and a 9 hour night time period where residential development encroaches on rail lines, rather than for each hour, and
• projects which exceed the specified triggers are now required to reduce noise levels towards the trigger levels.

Implications of the RING

If you are the proponent of a rail traffic-generating development or non-network rail lines you must consider whether your development will exceed the specific noise and vibration trigger levels.  If these noise levels are likely to be exceeded when the rail project is operational, you must consider ‘feasible’ and ‘reasonable’ noise mitigation to reduce the noise impacts towards the trigger levels and address these mitigation measures in your environmental assessment.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

New Aboriginal Cultural Heritage Act proposed

Major reforms to Aboriginal cultural heritage (ACH) legislation have been proposed by the NSW Government.  A new Aboriginal Cultural Heritage Act (ACH Act) will replace Part 6 National Parks and Wildlife Act 1974 (NSW) (NPW Act) which relates to Aboriginal objects and places.  The proposed ACH Act will maintain the existing provisions relating to Aboriginal objects and places, and will incorporate new provisions relating to cultural values which are not currently recognised in the NPW Act.  The closing date for public submissions on the reforms is 14 February 2014.

The intention is to update and contemporise the existing legislation, aiming to provide clarity and certainty for Aboriginal people in NSW and to proponents.  The ACH consultation process for major developments will be streamlined and the code-based standards for assessing ACH will result in reduced delays, as there are clear time frames for consultation, development of assessment plans and finalising Project Agreements.

Streamlined process

The introduction of Local ACH Committees will supersede the current requirement for proponents to consult with multiple registered Aboriginal parties.  Each Local ACH Committee will comprise of a maximum of ten nominated people, who have an identified connection to country.  A similar process has been successfully implemented under the Aboriginal Land Rights Act 1983 (NSW), which outlines a process of identifying people who have the association with and authority to speak for Country.

If a project crosses multiple Local ACH Committee boundaries, representatives will form a Regional Project ACH Committee.  The aim is that Local and Regional Project ACH Committees will become a ‘one-stop-shop’ for projects, and will work with proponents to negotiate and agree on outcomes, on behalf of the wider Aboriginal community.

Proponents will also be assisted by the introduction of Local ACH Maps.  These will show areas of high, low and no ACH value, as well as areas where knowledge is incomplete.  Each Local ACH Committee will map where these values are within their region.

A Plan of Management for each Local ACH Map will also be developed, which will outline the specific strategies for managing each type of ACH value identified in the map.  Key ACH priorities will be identified and can be incorporated into individual Project Agreements.  Project Agreements will be negotiated between the proponent and the local ACH Committee, and will be required for certain activities in areas which have been mapped as having incomplete or high ACH values.

Dispute resolution and penalties

It is intended that the proposed ACH Act incorporate dispute resolution processes, as well as appeal processes, however these are still being developed.

Amendments to the NPW Act in 2010 introduced heavy penalties for causing harm to ACH objects and places.  Those penalties, along with the existing offence and defence provisions will be included in the new ACH Act.  New penalties have also been proposed for failure to comply with a Project Agreement and for failure to comply with consultation requirements.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

New native title claims in the Hunter Valley and Lake Macquarie

Native Title claim NC2013/002 – Lower Hunter to the Central Coast areas

On 13 May 2013, the Awabakal and Guringai People lodged the Native Title claim NC2013/002 (Claim NC2013/002) with the National Native Title Tribunal (NNTT).  The Claim NC2013/002 covers an area of approximately 3923 square kilometres, and encompasses parts of the Lower Hunter Valley, Newcastle, the Central Coast, as well as all of Lake Macquarie and its surrounds (excluding areas in which native title has been extinguished).

Claim NC2013/002 was accepted for registration in the NNTT on 13 June 2013, and was registered on the same day.  Claim NC2013/002 was publicly notified on 9 October 2013.  The Native Title Act 1993 allows persons not included in Claim NC2013/002, to apply to become a party to Claim NC2013/002 prior to 8 January 2014.

Claim NC2013/002 satisfied the registration test on 13 June 2013, giving the Awabakal and Guringai people as ‘registered native title claimants’, the right to negotiate in relation to future acts, including mining, in the claim area where native title has not previously been extinguished, if the future act process is triggered.

If you propose to carry out a future act in the area included in Claim NC2013/002, you will be required to negotiate with the Awabakal and Guringai people.  The right to negotiate process will not stop your project or development from going ahead, however it gives the native title claimants a right to have a say about the project.  This process also enables the native title claimants to negotiate an agreement, which may include compensation.

Native Title claim NC2013/006 – Upper Hunter to Newcastle areas

On 19 August 2013, Mr Scott Franks and Mr Robert Lester lodged Native Title Claim NC2013/006 on behalf of the Plains Clans of the Wonnarua People.  This claim has not yet been accepted for registration by the NNTT.

This claim encompasses an approximate area of 11,358 square kilometres including parts of the local government regions of Cessnock City Council, Dungog Shire Council, Hawkesbury City Council, Liverpool Plains Shire Council, Maitland City Council, Muswellbrook Shire Council, Singleton Shire Council and the Upper Hunter Shire Council (excluding areas in which native title has been extinguished).

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain