Streamlining bureaucracy: Efficiency improvements proposed for approvals processes under the Mining Act 1978 (WA)

By Brett Cohen, Brad Wylynko, Dan English and Scott Howieson
27 May 2021
The Streamlining (Mining Amendment) Bill 2021 (WA) proposes changes to update current approval processes, with the aim of improving efficiency for both tenement holders and regulatory authorities.

The WA State Government recently released the exposure draft of The Streamlining (Mining Amendment) Bill 2021 for consultation, aiming to address inefficiencies entrenched in approval processes under the Mining Act 1978 (WA). The recommended changes are intended to substantially reduce the administrative burden on both tenement holders and enforcement agencies in submitting and reviewing work proposals, and in turn decrease assessment and approval timeframes.

The move was flagged in the State Government's "WA Recovery Plan" and is designed to help unlock future mining opportunities, one of the State’s priority initiatives in its policy response to the COVID-19 pandemic.

In this article, we set out the key proposed changes, and the likely impacts on both existing and future tenement holders.

Low Impact Notifications

The Mining Act regulates all activities conducted on mining tenements related to clearing or the use of mechanical equipment for ground disturbing purposes, including prospecting activities, exploration activities and prescribed mining operations.

Under the current framework, almost all operations, irrespective of their likely impact on the environment, require the submission of either:

  • a programme of work (eg. for prospecting licences under section 46(aa); for exploration licences under section 63(aa); for mining leases under section 82(1)(ca)(i)); or
  • a mining proposal (eg. for mining leases under section 74(1)(ca), section 82(1)(ca)(ii) or section 82A(2)(a)).

This in turn creates a substantial administrative workload for both DMIRS and the tenement holder, as a complex, lengthy document must be prepared and reviewed for the conduct of even minor activities. Approval times for these operational documents can be drawn out, which can impact the flexibility of tenement holders to react to external factors and adjust their operations accordingly, which appears unnecessary where a correction is likely to have limited effect on the environment.

As an alternative, the Bill distinguishes low-impact activities from other operations taking place on the tenement – these low-impact activities are to be subject to a considerably quicker approvals process. Instead of preparing a programme of work or mining proposal, tenement holders would submit a Low Impact Notification (LIN), which would be approved by an automated process, imposing standard conditions (to be prescribed) on the conduct of the activity.

The scope of what constitutes a low-impact activity is yet to be defined, though it will be characterised by the location, type of activity and method by which the proposed activity would be completed. In terms of location, the proposed amendments contain a power for the Minister to declare (by notice in the Gazette) excluded areas, removing the capacity for proponents to obtain a LIN in respect of activities in that area. Presumably this mechanism will be used to ensure that activities in areas of environmental significance undergo an appropriately vigorous environmental assessment through the more onerous programme of work process.

Approvals Statements

The proposed changes will reform the current tenement condition system (section 71), which involves separate conditions (and associated duplication and confusion) applied to the individual tenements that comprise project land. Determining which conditions are applicable to particular tenements can be difficult and imposes an unnecessary administrative burden on both tenement holders and DMIRS in maintaining and monitoring compliance.

The Approvals Statements reform proposed by the Bill would consolidate all relevant information into a single document, detailing all conditions applicable to the mining proposal and all expected closure outcomes. As compared to the current approach, a single, clear Approvals Statement should improve not only the tenement holder's understanding of the obligations it is subject to, but the ability of DMIRS to monitor compliance, and overall deliver efficiencies and improve compliance results.

The Approvals Statement is designed to be updated through the life of a project, allowing conditions to change with relevant circumstances.

Mine Development and Closure Proposal

Finally, the proposed Bill amalgamates mining proposals and mine closure plans into a single Mine Development and Closure Proposal (MDCP). Under the current regime, the two documents contain a high level of duplication and crossover. For example, each document requires a separate description of the activity and risk assessment, in addition to baseline environmental information.

The MDCP would contain detailed information on the proposed mining operations, decommissioning of proposed mines, rehabilitation of land the subject of the mining tenement, closure outcomes and any other prescribed information.

Impact on existing mining operations

The Bill is in consultation phase until mid-year. So for the foreseeable future, all regulated activities will still require authorisation consistent with the current regulatory framework, and those activities not using machinery to disturb tenement land can continue without environmental approval. Once the Bill is passed, proponents will have a choice of authorisation, whether it be by a LIN, a programme of work or a MDCP.

All operations authorised by a current programme of work will not be affected if the Bill is passed, and activities authorised by a mining proposal will continue to have approval for a transitional period of six years after the commencement date of the Bill. Applications for extensions can be made to the Minister as the end of the transitional period approaches. Otherwise, after the expiration of the transitional period, actions authorised by mining proposal will need to be assessed through a MDCP, to be approved by an Approvals Statement.

Consultation on the Streamlining (Mining Amendment) Bill 2021 – and beyond

DMIRS is currently undertaking consultation with a range of interested parties related to the mining industry on the Bill, and will be holding a number of information sessions in May to provide an overview of the changes. The definition of "low-impact activity" will be prescribed by the Mining Regulations 1981 (WA), and will be subject to a separate consultation process after the passage of the amendments to the Act.

Public consultation on the Bill is open until 25 June 2021, with further information available on the DMIRS website.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.