Environment Protection and Other Legislation Amendment Bill 2008

By Karen Trainor.

Key Points:
SAA Mine Operators will need to be aware of the three year cut-off period for applications for an environmental authority; an amendment to a transitional authority; or a transfer or surrender of the transitional authority.

The Environmental Protection and Other Legislation Amendment Bill 2008 was tabled in State Parliament by the Minister for Sustainability, Climate Change and Innovation, on 11 March 2008.

The Bill will primarily amend the Environmental Protection Act 1994 (Qld) ("EP Act"), with consequential amendments to the Integrated Planning Act 1997 (Qld) and the Mineral Resources Act 1989 (Qld) ("MRA"). The main purpose of the Bill is to provide a process to transition nine Special Agreement Act ("SAA") mines to be environmentally regulated by the EP Act.

When first established, many of these SAA mines were given special conditions which were different to the environmental protection regime that applies today. This was because of the different economic conditions which encouraged the State Government at the time to give greater certainty to mining companies given the scale of capital investment the mines required.

Transitional environmental authority / Conversion

The Bill proposes to declare that any SAA environmental authority (mining) that was in force immediately before the commencement of the proposed Act is a transitional authority. The transitional authority (SAA) carries with it the conditions that were imposed on the mine before the commencement of this Bill and all conditions that would reasonable be expected to have been a condition of the environmental authority.

Existing financial assurance

If, under the MRA or under a SAA, security has been deposited, lodged or required, a condition is taken to have been imposed under the EP Act requiring the authority holder to give the Environmental Protection Agency ("EPA") financial assurance for each relevant mining lease. The reason any security previously deposited covers both tenure matters and also environmental matters is to ensure continued cover for environmental matters now managed under the EP Act. Compliance with rehabilitation conditions will remain the primary purpose of the security, so security must be accessible under EP Act.

Amendments to the transitional authority

The EPA can amend a transitional authority (SAA) for an existing project, where the conditions:

• cannot be accurately and reliably determined
• are unclear, uncertain, contradictory or otherwise not reasonably enforceable; or
• do not cover an aspect of the project that may cause environmental harm.

The EPA is also able to amend any condition of a transitional authority (SAA) when a new plan of operations is lodged. When a new plan of operations is lodged, all the conditions of the transitional authority (SAA) are reviewed, clarified and amended as necessary and incorporated into a complete written environmental authority.

In addition, the Minister may amend a transitional authority (SAA) as long as the Minister gives notice and considers any written representations made by the holder within the stated period of the notice.

Special provisions for transitional authorities (SAA)

Transitional authorities (SAA) are considered to be non-code compliant authorities, issued for a level 1 mining project under the EP Act. The holder of a transitional authority (SAA) has to apply for an environmental authority (mining activities) for a level 1 mining project, or the amendment, transfer or surrender of the transitional authority (SAA), within three years after the commencement of the Act. If these alternatives are not complied with, the transitional authority ends. This means that the company would not be able to mine because it would not have an environmental authority to do so.

Environmental authority assessment

The EPA does not require an environmental impact statement (EIS) for any activity that is approved under the transitional authority (SAA). A draft environmental authority for these activities does not require public notice. An EIS will be required if the new authority application includes activities that are not currently approved and that meet the criteria for requiring an EIS.

The special agreement Acts and any rights granted under that Act are to be considered as a State Government agreement when applying the standard criteria when approving or refusing a new authority application.

To facilitate the transition process the proposed Act allows for the following:

• if the original application was with an environmental management overview strategy, the strategy is taken to be an environmental management plan
• if a certificate of application for the mining lease was endorsed by the mining registrar under the pre-amended MRA[1], then a person is taken to have given and published an application notice
• if the person gave an environmental impact statement under the pre-amended MRA, then the EIS process is taken to have been completed
• if an objection was lodged with the mining registrar under the pre-amended MRA (and not heard by the Land Court[2] under the Act), the objection is taken to be a properly made objection
• if the Tribunal made a recommendation under the pre-amended MRA relating to an environmental matter, an objections decision on the same terms as the recommendation is taken to have been made; and
• if before commencement of this proposed legislation a plan of operations for a relevant mining lease for a transitional authority (SAA) was in force under the MRA, then the plan of operations for the authority will continue in force until the end of the stated period.

Conclusion

SAA Mine Operators will need to be aware of the three year cut-off period for applications for an environmental authority; an amendment to a transitional authority; or a transfer or surrender of the transitional authority.

The Bill is intended to apply contemporary environmental standards without disadvantaging mining companies and is not intended to affect the right to mine or any other aspects of the special agreement Acts. Many (SAA) mining companies are already operating under the standards set out in the EP Act. In that case the amendments are expected to impact on environmental administration and have limited impact on direct mine environmental management.

Thanks to Peter Snedden for his help with this article.

For further information, please contact Karen Trainor.