02 Feb 2012
How will Queensland's new Strategic Cropping Land Act affect resources projects?
by Mark Geritz, Patrick Cranley
If you are planning a resource project and land you wish to develop is shown as potential Strategic Cropping Land on the trigger maps published by DERM, what needs to be done to get the project up and running?
The Strategic Cropping Land Act 2011 (Qld) commenced on 30 January 2012 and has implications for the resource industries in Queensland as it aims to protect areas of the State's land, defined as Strategic Cropping Land (SCL), from certain mining and petroleum exploration and development activities.
The Department of Environment and Resource Management (DERM) has published SCL trigger maps on its website which show potential SCL throughout the State.
If you are a proponent of resource projects and land you wish to develop is shown as potential SCL on the trigger maps, your options are:
if you accept the land is SCL, you will need to either comply with the Standard Conditions Code or provide an assessment of the impacts of your development to DERM in order for it to impose certain conditions required by the Act on the development before you get under way; or
if you do not accept that the land is SCL, you can apply to DERM to request a validation decision in relation to that land.
If you do not agree that land identified on the trigger maps as potential SCL is actually SCL, you may undertake an on-ground assessment and request that DERM make a validation decision in relation to that land.
A validation decision assesses whether the land complies with the criteria for SCL set out in the Act. DERM may consider, among other things, the relevant zonal criteria and whether the land has the required cropping history to be SCL.
The process of asserting that the trigger maps are inaccurate may be time consuming and costly, and these costs will be borne by the proponents themselves. Further, as the Act does not give rights of access to land for the purpose of carrying out on-ground assessments, proponents may encounter further difficulties and / or costs in carrying out this assessment.
What if it is SCL?
If DERM determines that potential SCL is SCL or a proponent elects to accept the trigger maps as they are, then the impacts of a proponent's development on that land must be assessed as part of the existing assessment processes.
For resource activities, such as mining and petroleum projects, impacts on SCL will effectively be assessed as part of a proponent's environmental authority application. If a project is located on SCL, the environmental authority will not be granted until DERM has assessed the impacts of the project on that SCL and decided whether any conditions need to be imposed.
The greatest risks will be for projects with permanent impacts on SCL, as these impacts will only be permitted in exceptional circumstances. An application that exceptional circumstances apply to the development attracts a fee of $46,253.
As an alternative, for certain projects Proponents can elect to comply with a Standard Conditions Code, which has been published by DERM, in which case the standard conditions will become conditions of a proponent's environmental authority. This alternative may in certain circumstances expedite the assessment process as well as keep costs down. However, the Code is likely to be of limited use to resource projects as, while it covers certain exploration activities, it does not cover mining (surface or underground).
Might you be exempt?
There are exemptions available for some developments. Specifically, the Act will not apply to the following:
a development approval, environmental authority or resource authority (such as a mining tenement or petroleum authority) in force before the Act commenced (although the amendment, renewal or re-grant of such authorities may be caught);
an environmental authority application and its related mining lease or petroleum lease application that is subject to an EIS requirement, if the EIS stage was completed on or before 31 May 2011; and
an environmental authority application and its related mining lease or petroleum lease application if a draft environmental authority was given on or before 31 May 2011.
Having land mapped in the SCL trigger maps does not automatically prohibit any further development on that land. The trigger maps are a guide only and may be reassessed as above or certain exemptions may apply before developments can proceed.
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