Proposed public interest test to apply to all mining tenures in Queensland

The Mines and Energy Legislation Amendment Bill 2008 (Bill) (introduced into the Queensland Parliament on 7 October 2008) proposes to amend the Mineral Resources Act 1989 (Qld) (MRA) to introduce a public interest test for the approval processes for the grant, renewal and variation of, and determination of conditions for, mining tenements in Queensland. While there has always been some discretion on the part of the Minister and other relevant decision-makers, this amendment introduces a new element, the potential scope of which is not yet clear.

The Bill proposes to amend the MRA by introducing a public interest test in relation to, effectively, all mining tenures, which moves beyond the current regime where public interest was only expressly applied to some aspects of mining leases. Specifically, the Bill amends the provisions of the MRA to require the relevant decision-maker to consider the public interest when making decisions that deal with:

• the grant, variation, renewal and refusal of mining claims, exploration permits, mineral development licences and mining leases;
• the conditions to apply to mining claims, exploration permits, mineral development licences and mining leases upon grant, variation or renewal;
• the grant, conditions and cancellation of prospecting permits;
• the approval of work programs in relation to exploration permits;
• the addition of other minerals to existing mineral development licences and mining leases; and
• the variation of the land used to access mineral development licences and mining leases.

A purpose of the introduction of the public interest test in the Bill may be to enable the Government to have flexibility in relation to concerns about oil shale mining and uranium mining. However, the application of the public interest test applies to all mining tenements, not merely those relating to oil shale or uranium.

The Bill does not define the term "public interest". Currently in relation to the MRA, the only points of reference as to the public interest considerations that the mining registrar or the Minister might take into consideration are in section 318AK of the MRA (in relation to overlapping coal and petroleum tenures) and in limited case law relating to section 269(4)(k) of the MRA.

It is not clear whether this guidance in respect of public interest will be useful in relation to these new MRA provisions.

Implications

In the absence of a clear definition of "public interest", a level of uncertainty arises as to what will be expected when seeking the grant, variation or renewal of, or determination of conditions for, mining tenements in Queensland. Depending on the definition or approach adopted, the Government will potentially have broader powers to refuse mining tenures and impose conditions going forward.

If nothing else, it confirms that even if a mining tenement holder has complied with the requirements of the mining tenement, it should not assume that the mining tenement will be renewed.

Other amendments in the Bill

The Bill also proposes to make amendments in relation to the following issues:

• an effective prohibition on the venting or flaring of incidental coal seam gas by the holder of a mining lease without first offering to give that incidental coal seam gas to the holder of an overlapping petroleum lease;
• amendments to introduce a common date for annual rental payments for mining claims, mining leases and mineral development licences to 31 August;
• the introduction of a moratorium on the development of the McFarlane oil shale deposit; and
• the Government's guaranteed assistance package for Collingwood Park landowners whose properties have been damaged by subsidence.

If you have any queries about the Mines and Energy Legislation Amendment Bill 2008, please contact a member of our Energy and Resources team.