23 Sep 2009

Government review of Western Australian resources approvals - the aim for certainty and confidence

by Brett Cohen, Theresa Le Bas, Mark van Brakel

The Report's recommended reform initiatives may, if implemented, herald significant changes to WA's planning and approval processes.

"A weak economy is a far greater threat to the environment than is responsible development."

The Minister for Mines and Petroleum, the Honourable Norman Moore MLC, tabled the "Industry Working Group Report - Review of Approval Processes in Western Australia" in the Legislative Council on Wednesday, 12 August 2009. The Report will now be considered by the Premier's Ministerial Taskforce on Approvals and Major Projects Development in the context of a broader review of State approval processes.

The Report recommends that the Ministerial Taskforce considers a number of reforms across the legislative regime regulating mining and petroleum activities in order to provide greater certainty and confidence in WA's resource sector through the co-ordinated and balanced consideration of social, economic and environmental issues.

The Report's recommended reform initiatives may, if implemented, herald significant changes to WA's planning and approval processes, including:

Expand the role of the Environmental Protection Authority

Expand the role of the Environmental Protection Authority (EPA) to assume the current roles and functions performed by the Department of Environment and Conservation in:

  • administering Part V of the Environmental Protection Act 1986 (WA) (EP Act), which includes the grant of native vegetation clearing permits as well as works approvals and licences for the construction and operation, respectively, of prescribed premises; and
  • compliance and monitoring functions relating to contaminated sites classified under the Contaminated Sites Act 2003 (WA).

To facilitate the expansion of the EPA's role and enhance the transparency of the environmental assessment process, resource the EPA through its own dedicated budget and staff rather than continuing the existing arrangement where resources are allocated through the budget and staff of the Department.

Remove existing restricted access arrangements by providing the EPA with full access to the Department's technical databases in order to ensure fully-informed assessment and decision-making in environmental approval processes.

Allow the State Administrative Tribunal to hear environmental appeals

Establish a new jurisdiction for the State Administrative Tribunal (SAT) to hear all environmental appeals currently considered by the Appeals Convenor regarding decisions made under Part IV and Part V of the EP Act (in the course of making recommendations to the Minister for the Environment, the final decision maker). The Report advocates that this recommendation will encourage greater participation by parties, procedural rigour and transparent decision-making.

The Standing Committee on Legislation made a similar recommendation in its recent "Report 14 - Inquiry into the Jurisdiction and Operation of the State Administrative Tribunal". The Standing Committee's report, which was tabled in the Legislative Council on 20 May 2009, included a recommendation that the SAT be empowered to review all decisions made under Part V (but not Part IV) of the EP Act.

Create a one-stop shop for mining and petroleum approvals

Integrate both the assessment and approval of environmental factors into mining and petroleum approval processes through the following reforms:

  • integrate the assessment of social, economic and environmental factors into the decision-making criteria for mining and petroleum proposals;
  • in particular, integrate and merge the native vegetation clearing principles of the EP Act into the mining and petroleum legislative regime and approval process in recognition of the fact that the Department of Mines and Petroleum already administers clearing regulations by delegation from the DEC;
  • create a single approval for mining and petroleum proposals which records a determination on all social, economic and environmental factors; and
  • nominate a single decision-making authority to assess and determine an approval for an individual mining or petroleum proposal.

The Report also suggests that the Ministerial Taskforce consider whether the concept of a single approval could also replace the existing requirement to obtain separate environmental approvals under Part IV (Ministerial Statements) and Part V (including works approvals and licences for prescribed premises and clearing permits to remove native vegetation) of the EP Act.

Reform native title and Aboriginal heritage processes

The Report observed that uncertainty and complexity and the resulting delays associated with native title and Aboriginal heritage disproportionately affect approval timelines for mining and petroleum activities. Recommendations include:

  • that native title "future act" processes be initiated expeditiously and at the same time as other non-native title processes where practicable;
  • a renewed focus on resolving native title claims, by using the Federal Courts where mediation is not satisfactorily progressing claim resolution within reasonable timeframes; and
  • a series of administrative and regulatory reforms to establish clear guidelines and fee structures for the conduct and registration of Aboriginal heritage surveys. The Report stated that information received indicated that a heritage survey "industry" has developed over the past five years that has contributed to unacceptable work practices, unnecessary heritage surveys and unnecessary expense for the mining and petroleum exploration industry; and
  • that there be administrative reform of the Aboriginal Heritage Act to improve the efficiency of the processes covering section 18 consents, the site register, record-keeping and condition-setting.

Additional resourcing of Warden's Court

The approval of a mining tenement cannot be progressed until an objection has been resolved. Objections are heard in the Warden's Court. The Report observed that objections presently can take between 6-12 months to resolve. To address this the following recommendations were made:

  • additional resourcing of the Warden's Court to ensure objections (which it was noted were often maintained largely for commercial leverage) lodged by native title parties, are actively prosecuted and progressed to avoid other statutory approval processes and to reduce the objections backlog;
  • appointment of a full time Mining Warden (the five magistrates appointed as Wardens currently spend only 10-50 percent of their time on mining matters) and appointing retired magistrates as additional Mining Wardens; and
  • as estimated 95 percent of objections lodged under the Mining Act 1978 are resolved prior to hearing in the Warden's Court, it is recommended that suitable persons be appointed as Wardens of Mines to facilitate pre-court conference meetings and reduce the number of objections.


To cater for the demand for railway transport in the Pilbara the Report contains a recommendation that the Mining Act be amended to allow for a miscellaneous licence that included the development and use of railways. A miscellaneous licence can cross other mining tenements and other land titles and importantly does not extinguish native title. The Report observes that the existing way of obtaining title for rail, under the Land Administration Act 1997, requires a resumption of native title which can lead to delays an increased compensation costs.

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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.