On 22 April 2015, the Mining Legislation Amendment Bill 2015 (WA) (Bill) was introduced into the Western Australian Parliament.
By way of background, in December 2012 the Ministerial Advisory Panel handed down its report ‘Reforming Environmental Regulation in the WA Resources Industry’. That report made 14 recommendations to then Minister for Mines and Petroleum under four broad categories. The Mining Legislation Amendment Act 2014 (WA) effected the recommendations under the first of those categories, and the Bill proposes to effect the remaining recommendations.
The Bill proposes to amend the Mining Act 1978 (WA) (Mining Act) and will consolidate the environmental management provisions of the Mining Act into one Part by inserting a new Part IVAA. It is intended that Part IVAA will provide a risk-based and outcomes-focused approach to environmental regulation under the Mining Act. Part IVAA expands upon the existing environmental regulation provisions of the Mining Act and will have six Divisions, which are discussed below.
The Bill also proposes to amend the Environmental Protection Act 1986 (WA), so that a clearing permit will not be required under that Act if native vegetation clearing is approved under Part IVAA of the Mining Act, and to make consequential amendments to the Mining Legislation Amendment Act 2014 (WA) and the Mining Rehabilitation Fund Act 2012 (WA).
Division 1 – Preliminary
Division 1 of Part IVAA provides that the object of Part IVAA is to support the responsible environmental management of mining, including land rehabilitation and mine closure.
Division 1 also allows the Mining Regulations 1981 (WA) (Regulations) to prescribe activities as ‘low-impact activities’ for the purposes of Part IVAA. The DMP has released the consultation paper ‘Proposed Low Impact Authorised Activities for Prospecting and Exploration under Amendments to the Mining Act 1978’ (Consultation Paper).
The Consultation Paper (accessible here) proposes that the Regulations will define a ‘low-impact activity’ by reference to the locality in which the activity occurs, the type of the activity and the way in which the activity is undertaken. The Consultation Paper provides that those criteria will need to be satisfied in order for an activity to be a low-impact activity and gives examples of activities which are currently proposed to be low-impact activities.
Division 2 – Programmes of work
Division 2 of Part IVAA imposes a number of conditions on every prospecting, exploration and retention licence in relation to undertaking a ‘relevant activity’ or a low–impact activity.
Division 2 provides that a ‘relevant activity’ in relation to a prospecting, exploration or retention licence includes prospecting and exploring for minerals and the clearing of land, or using machinery to disturb the surface of land, in order to prospect or explore for minerals.
The conditions which Division 2 imposes on every prospecting, exploration and retention licence include:
- that a licensee must not undertake a relevant activity that is a low-impact activity within its licence area until it has given the prescribed notice or has an approved programme of work relating to that activity; and
- that a licensee must not undertake a relevant activity that is not a low-impact activity within its licence area unless it has an approved programme of work relating to that activity.
Division 2 also imposes similar conditions on every mining lease and miscellaneous licence; however the lessee or licensee does not need to comply with the applicable conditions if an activity is proposed under an approved mining proposal.
The transitional provisions of the Bill concerning programmes of work that have been approved prior to the Bill’s commencement are discussed below.
Division 3 – Mining proposals
Division 3 of Part IVAA imposes various conditions on every mining lease and miscellaneous licence in relation to undertaking a ‘relevant activity’ or a low-impact activity.
The definitions of ‘relevant activity’ under Division 3 differ to that under Division 2. Under Division 3, a ‘relevant activity’ in relation to a mining lease or miscellaneous licence includes conducting, and clearing land or using machinery to disturb the surface of land in order to conduct, ‘prescribed mining operations’. It is expected that the Regulations will set out the operations that will be ‘prescribed mining operations’.
Among other conditions, Division 3 imposes the following conditions on every mining lease and miscellaneous licence:
- a lessee or licensee must not undertake a relevant activity that is a low-impact activity within its lease or licence area until it has given the prescribed notice or has an approved mining proposal relating to that activity; and
- a lessee or licensee must not undertake a relevant activity that is not a low-impact activity within its lease or licence area unless it has an approved mining proposal relating to that activity.
Division 3 also imposes conditions on mining leases and miscellaneous licences in relation to reviewing mine closure plans that are contained in approved mining proposals.
The Bill contains transitional provisions relating to mining proposals that have been approved prior to the commencement of the Bill, which are discussed below.
Division 4 – Requirements and approvals
Division 4 of Part IVAA sets out the form, content and lodgement requirements for programmes of work and mining proposals, and allows the Director General of Mines to publish guidelines in relation to the content of programmes of work and mining proposals.
Division 4 also sets out the matters the Director General of Mines must consider in deciding whether or not to approve a proposed activity in a programme of work or mining proposal. These matters include the effect a proposed activity may have on the environment, whether a programme of work or mining proposal adequately identifies the foreseeable risk of environmental harm resulting from a proposed activity, and whether the programme of work adequately identifies measures to be undertaken to avoid or minimise such risk.
A programme of work or mining proposal that has been approved under the Mining Act prior to the commencement of the Bill, and any activity proposed under such a programme of work or mining proposal, will be taken to be approved under Part IVAA. However, a mining proposal will only be taken to be approved under Part IVAA for 6 years after the Bill commences. A programme of work or mining proposal that was lodged prior to the commencement of the Bill but not approved by then will be subject to approval in accordance with Part IVAA.
Division 5 – Low-impact activities
Division 5 of Part IVAA sets out the notice requirements for low-impact activities. It also provides that it is a condition of every mining tenement that a low-impact activity that has not been proposed in an approved programme of work or mining proposal must be undertaken in accordance with the prescribed requirements for that activity. It is expected that the Regulations will prescribe those requirements.
Division 6 – Other conditions
Division 6 of Part IVAA enables certain conditions to be imposed on all mining tenements, including conditions:
- for the purposes of preventing, reducing or remediating environmental harm on land or from clearing or offsetting the loss of cleared vegetation;
- requiring the holder to establish or maintain native vegetation on land;
- for the purposes of preventing mining operations being carried out within a specified distance of the natural surface of land;
- requiring the holder to monitor operations (including remediation and offset operations), or environmental harm, conduct analysis of monitoring data, and provide reports and analysis to the Director General of Mines; and
- requiring the holder to lodge security for compliance with any condition imposed.
The Bill also proposes to include sections 103AZC and 103AZD in Division 6, which will commence 2 years after the Bill commences. Section 103AZC will impose a condition on every mining lease and miscellaneous licence (other than one granted under a Government agreement) requiring the lessee or licensee to maintain an environmental management system in respect of the approved operations undertaken on its lease or licence area (as applicable) and to keep that system relevant to its operations and the operating conditions on the land.
Section 103AZD will impose a condition on every mining lease and miscellaneous licence requiring the lessee or licensee to, in carrying out mining operations on its lease or licence area (as applicable), take all reasonable and practicable measures to avoid or minimise the risk of environmental harm occurring. A lessee or licensee will be deemed to comply with that condition if its operations are carried out in accordance with its environmental management system and that system was maintained in accordance with section 103AZC.
It is proposed that the same penalty regime which applies for breaches of specific conditions placed on tenements by the Minister will apply to the conditions imposed under Part IVAA. This would mean that if a condition imposed under Part IVAA was breached the tenement holder could face forfeiture of the tenement or a fine up to $150,000, depending on the severity of the breach. The Bill also proposes a maximum penalty of $20,000 for providing false or misleading information in any document or notice given under Part IVAA.