The strategic cropping land (SCL) protection regime may be law by January 2012, following a State government announcement last week that draft legislation will be fast-tracked into Parliament this month (October).

With this news, the Minister for Natural Resources also released details of a framework for the regime's application to transitional projects, and the requirement for those projects to mitigate their permanent impacts on SCL. See our June 2011 update for an explanation of which existing projects will be 'transitional projects' under the SCL regime.

Where it is not possible to avoid or minimise permanent impacts to SCL, transitional projects must mitigate those impacts, in accordance with mitigation principles (released in May 2011), which focus heavily on ascribing a financial value to the project's impacts on SCL. The new framework sets out the process that will be applied by during the project approval process:

  1. determining the value of the mitigation measures required to offset the permanent impacts on SCL (to be calculated by the Department of Environment and Resource Management (DERM));
  2. selecting the mitigation measure that must be taken (financial contributions to a mitigation fund, or entry into a negotiated agreement in relation to other proposed measures to offset the project's permanent impacts on SCL); and
  3. approval by the Department of Employment, Economic Development and Innovation of the proposed mitigation measures.

Importantly, the value of the mitigation measures must be sufficient to offset the loss of "productive capacity of the land being alienated". Like-for-like offsets, e.g. re-creation of SCL elsewhere, are not considered sufficient to mitigate permanent impacts on SCL. A per/hectare zonal rate will be established under the SCL legislation.

The framework may also apply to certain projects in Strategic Cropping Protection Areas in exceptional circumstances, and to projects in the Strategic Cropping Management Area. Exceptional circumstances may be found to exist for projects of significance to the public, or where the resource or site in question cannot be found elsewhere in the State.

The government does not intend to consult with industry and the public in relation to the draft SCL legislation until after it is introduced into Parliament this month. Proponents for new and existing projects that will be affected by the SCL regime should keep a close eye on the DERM website for further details in relation to consultation opportunities over the next few weeks.