Land Court Objections for Environmental Authorities re-introduced

On Friday 17 July 2015, the State Development and Public Works Organisation and Other Legislation Amendment Bill 2015 (bill) was passed. The bill was originally introduced into Queensland Parliament by the Minister for Natural Resources and Mines and State Development (Minister) with the stated aim of restoring community objection rights relating to mining developments.

The most significant amendment is the repeal of s 47D of the State Development and Public Works Organisation Act 2015(Qld) (SDPWOA), previously introduced by the Newman LNP government.

Section 47D of the SDPWOA applied to all existing and newly declared coordinated projects. It provided that the assessment of conditions imposed under an Environmental Authority (EA) for mining activities by the Coordinator General could not be objected to under the Environmental Protection Act 1994 (Qld). The removal of objection rights allowed proponents to avoid additional potential proceedings in the Queensland Land Court, and with that, the additional delay and costs that such objection hearings cause.

The repeal of s 47D of the SDPWOA was an election promise made by the Palaszczuk Government, with a view to restoring community objection rights relating to mining developments. The proposed amendment will ensure all applications for EAs will be subject to public notification and submissions by objectors. The Minister cited the concerns of rural landholders and communities regarding environmental issues such as water pollution and land degradation.

Shadow Minister Cripps, in opposing the repeal, noted that the Land Court has no jurisdiction to amend conditions for projects approved by the Coordinator General and that the repeal does not change this position:

‘When the Land Court heard the matter, the court would then advise that it had no jurisdiction to hear an objection that pertained to conditions placed on an EA for a resource project by the Coordinator-General. The amendment that I moved on 9 September 2012 clarified the matter so that an objection could not be lodged in the first instance and that the time and the money of the applicant, the respondent and the court was not unnecessarily wasted.’

Mr Michael Roche, Chief Executive of Queensland Resources Council, raised concerns regarding the repeal, stating that ‘the changes reopen an avenue used by activists to frustrate mining projects by clogging the Land Court with futile legal action’.1

Judicial immunity in Land Court proceedings

The bill as passed also includes amendments to the Land Court Act 2000 (Qld). The amendments confirm that Land Court members and registrars are conferred the same privileges regarding judicial immunity and protection as a member or registrar of the Supreme Court.

This amendment was included in response to concerns received after the Supreme Court’s finding in BHP Billiton Mitsui Coal Pty Ltd v Isdale2 that the hearing of an objection under the Mineral Resources Act 1989 (Qld) and the Environmental Protection Act 1994 (Qld) is not a ‘proceeding’, requiring disclosure under chapter 7 of the Uniform Civil Procedure Rules 1999 (Qld). Since that decision, there had been concern among Members of the Land Court that they could be exposed to personal liability, as the Land Court’s statutory immunity only extended to ‘proceedings’. The changes clarify that the immunity granted to Land Court members extends to the exercise of administrative function as well as judicial powers.

The amendments also allow the Land Court to introduce its own rules for proceedings.

NSW removes consideration of ‘economic considerations’ from approvals process

The New South Wales Government has released proposed amendments to the planning policy governing the assessment of mining proposals.

It is proposed that the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, known as the Mining SEPP, be amended to remove the requirement for the significance of the resource (and the economic benefits of developing the resource) to be the primary consideration in the development approval process. The relevant provision of the Mining SEPP is clause 12AA, which was originally introduced in November 2013.

The repeal of this section results in economic considerations not being prioritised in the assessment of mining development, and may lead to other factors, such as environmental protection and social welfare, naturally being given more weight in the assessment process.

Planning Minister Rob Stokes states ‘the protection of the environment and the promotion of the social and economic welfare of the community have always been objects of planning legislation’.

Submissions on the proposed amendment close on 21 July 2015.