Why is it important?
Mine closure is an area of increasing importance and proper planning is now expected at the earliest stages of project development. In order to obtain the approvals required to commence mining operations it is necessary to provide adequate assurance to the regulator and key stakeholders that successful mine closure can be achieved.
In each jurisdiction there are a range of legal obligations relevant to mine closure which must be complied with throughout a mine’s life. In recent years, regulation specifically requiring upfront planning for mine closure has increased.
Further to the minimum standards set by legislation, proper planning for mine closure can be of benefit in the following ways:
- while early planning for closure may involve more upfront costs, it can reduce the ultimate cost of closure and increase the likelihood of rehabilitation success
- it is useful to gain acceptance from key stakeholders and a ‘social licence to operate’ which can lead to the positive exercise of discretion in obtaining approvals
- progressive mine closure reduces a company’s financial risk in respect of closure and can result in decreased provisioning requirements from the regulators
- avoiding ongoing liability as a result of poor mine closure practices, and
- minimising the risk that regulators will step in and intervene, removing an operator’s control of its site.
What are my obligations in relation to mine closure?
In each jurisdiction there are numerous general legal obligations relating to closure which arise under legislation and pursuant to common law principles, for example environmental and contaminated sites legislation and the laws of nuisance and negligence. In addition, there are specific requirements for proponents to address mine closure through the mining and environmental approval processes.
Most commonly, proponents are required to submit a general mining plan before commencing operations, of which mine closure is one part. However, most jurisdictions are currently looking to Western Australia which amended the Mining Act 1978 (WA) (Mining Act) in July 2011 to require the upfront preparation of mine closure plans, and to give legislative force to prescriptive guidelines for the preparation of mine closure plans. These new requirements are being imposed not only on new operations but on all existing mine sites in Western Australia operating pursuant to the Mining Act.
What are the key legal issues when preparing mine closure plans?
Through our experience reviewing mine closure plans prepared in the WA context, we have the following tips for operators preparing mine closure plans.
- Compliance issues
Significant compliance issues can arise in preparing mine closure plans. Outlining the activities already undertaken and the proposed closure method will throw the spotlight on whether there has been compliance to date with legislation and approval requirements.
Care should be taken with the language used to avoid raising unnecessary alarm. Commitments should be reviewed as the regulators may require sufficient justification for changes to the closure method in the future.
- Completion criteria
Most regulatory regimes require completion criteria to be developed as part of documenting mine closure obligations. A balance should be reached between setting completion criteria that are measureable and achievable, to ensure compliance can be demonstrated while allowing for adaptive management if circumstances and priorities change and as technology, research and trials develop.
Where financial assurances required by the regulator are based on an estimate of the site’s rehabilitation liability, having clear completion criteria will assist to ensure that this liability can be reduced in respect of areas that have been rehabilitated.
- Legal obligations register
There is a specific requirement in WA to prepare a register of all statutory based legal obligations as part of the mine closure plan. The intention for this register is to capture all the legal obligations relevant to closure which have been imposed on a mine site through the various approval processes.
It is often a complicated process to navigate the numerous approvals documents, to determine where the relevant obligations are sourced and what actually constitutes a legal obligation ‘relevant to rehabilitation and closure’. We recommend legal review and the use of appropriate qualifications to ensure commitments are accurately portrayed.
- Post-mining land uses
The post-mining land use will be the basis for developing completion criteria and performance indicators. Therefore, the greater the sensitivity of the future use, the higher the standards of remediation that might be expected, practically and legally. In particular, statements as to future use, who will be responsible for remediation and to what standard should be carefully drafted.
In considering relinquishment the regulators will be looking for a final landform that is safe, stable, non-polluting and contains a self-sustaining native ecosystem or an agreed alternative land use. A mine closure plan and particularly closure criteria should be drafted with an eye to relinquishment.
Difficulties can arise practically as a result of poor environmental management of a site, failure to seek appropriate technical input, inadequate rehabilitation trials and monitoring. But can also be a result of making commitments that have not been properly considered and carefully drafted.
- Contaminated sites
A mine closure plan should align with the mine sites’ contaminated sites management strategy. Contaminated areas should also be considered when determining the next proposed land use as the regulator is unlikely to accept pastoral use on soil with significant contaminants present without proper remediation.
Complications may arise in dealing with environmental offsets, and associated long term monitoring requirements, while allowing for relinquishment to occur as soon as possible.
- Confidential information
In some jurisdictions, approval documents including mine closure plans are made publicly available. Any information required to be included that is of a confidential nature should be identified so it is not included in the public document.