23 Sep 2009

The regulation of uranium mining in Western Australia: Ban lifted

by Brad Wylynko, Lara Wilmot

The lifting of the ban on uranium mining opens the door to a significant new area of mining for WA.

On 17 November 2008, the newly elected Liberal/National government in Western Australia lifted an eight-year ban on uranium mining. The lifting of the ban opens the door to a significant new area of mining for WA.

According to the Department of Mines and Petroleum (DMP), WA contains known resources of 189,000 tonnes of uranium oxide in 29 projects stretching from the Pilbara to the Goldfields. The removal of the ban paves the way for miners to capitalise on these deposits. However, before doing so, miners have had to wait for clarity on the environmental regulatory framework.

At a recent uranium conference in Perth, the DMP stated that, in its view, the existing regulatory framework, when combined with international and Commonwealth legislation, is sufficient for the development of uranium mines. The Department also emphasised that the State has regulated the mining, transportation and export of minerals containing radioactive substances, such as mineral sands, for over 30 years, in accordance with world's best practice.

The EIA Process

The Government's position is that, as the methods used to mine uranium are generally the same as those used to mine other minerals, the uranium industry can be regulated in generally the same way. As such, uranium mining proposals will undergo the standard environmental impact assessment process by the Environmental Protection Authority (EPA) under Part IV of the Environmental Protection Act 1986 (WA) (EP Act).

Upon referral, it is likely that large-scale uranium mining projects will be subject to assessment at a relatively high level to ensure that public concerns regarding environment and safety are appropriately addressed. For example, the first uranium project referred to the EPA since the ban was lifted, BHP Billiton's Yeelirrie project in the Western Australian goldfields, was set at an assessment level of Environmental Review and Management Programme — WA's highest level. This is consistent with the level recently set for the expansion of the Olympic Dam project in South Australia.

An ERMP level of assessment requires a proponent to first prepare an Environmental Scoping document, setting out the environmental factors raised by the proposal, and then an impact assessment . The assessment is submitted to the EPA and subject to a 10-12 week public review period. Once the proponent has responded to the issues raised in submissions, the EPA prepares a report containing recommendations to the Minister as to whether the proposal is unsatisfactory, supported with conditions, or supported without reservation.

Of course, in addition to the State process, the Commonwealth may also conduct an assessment under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Under the Act the mining or milling of uranium ores is classified as a "nuclear action", and as such, is a matter of national environmental significance. Accordingly, a proponent is required to obtain federal approval. As Western Australia has a bilateral agreement with the Commonwealth in relation to environmental assessment, any project which is assessed at an ERMP level is eligible to be assessed concurrently.

In addition to the EP Act and EPBC assessment processes, there are a number of uranium-specific legislative requirements.

At the mine

At the mine site, there are both Commonwealth and State requirements.

For example, the Australian Radiation Protection and Nuclear Safety Agency has issued the Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (2005) Code. The Code regulates public radiation exposure, and the management of radioactive waste.

In WA, the Radiological Council, through the Radiation Safety Act 1975, requires a person proposing to mine or mill radioactive substances to hold a licence. The Act also provides that a premise, at which radioactive substances are manufactured, used or stored, must be registered.

From mine to port and beyond

In addition to mine site requirements, the Radiation Safety (Transport of Radioactive Substances) Regulations 2002 (WA) require that a licence be obtained to transport radioactive substances. Permits to possess and transfer uranium ore concentrates are also required under the Commonwealth Nuclear Non-Proliferation (Safeguards) Act 1987 to ensure the physical security of nuclear materials within Australia.

In order to export uranium, a licence is required pursuant to the Customs (Prohibited Exports) Regulations 1958 under the Customs Act 1901, and, export applications must be assessed by the Department of Industry, Tourism and Resources and the Australian Safeguards and Non-Proliferation Office.

Clearly, although there are no new legislative provisions proposed, the mining of uranium will require diligence in both the operational and legal spheres.

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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.