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06 Dec 2018

New rehabilitation framework for mining projects in Qld

By Kathryn Pacey, Karen Trainor and Olivia Back

Progressive Rehabilitation and Closure Plans and a new public interest consideration for mines have been introduced into Queensland.

Significant rehabilitation reforms are currently underway in Queensland. For those undertaking or considering undertaking mining activities, it is important to understand the new rehabilitation regime, brought about by the passing of the Mineral and Energy Resources (Financial Provisioning) Act 2018. The Act makes significant rehabilitation reforms to the Environmental Protection Act 1994 (EP Act), including the introduction of Progressive Rehabilitation and Closure Plans (PRCPs) for mines.

Progressive Rehabilitation and Closure Plans: an overview

PRCPs – the new Progressive Rehabilitation and Closure Plans – will replace the previous Plan of Operations and apply for all mining leases for the life of the mine.

The PRCP will be separate to the environment authority (EA) and has its own processes for approval (including conditions), amendment, amalgamation/de-amalgamation and surrender.

A PRCP consists of two parts:

  1. the rehabilitation planning part of the PRCP; and
  2. a PRCP Schedule, which is the enforceable part of the PRCP. The Schedule outlines the milestones and rehabilitation outcomes for both land that can be progressively rehabilitated to a stable condition for surrender and land that cannot. Land is considered in a stable condition if it is safe and structurally stable, there is no environmental harm being caused on or in the land, and the land can sustain a post-mining land use.

If land cannot sustain a post-mining land use then it is classified as a non-use management area (NUMA). Land is deemed a NUMA if rehabilitation would cause a greater risk of harm than not carrying out rehabilitation or both the risk of environmental harm is confined to the area of the tenure and failing to rehabilitate the land to a stable condition is justified, having regard to cost of rehabilitation and public interest.

Unlike the rehabilitation planning part of the PRCP, the Schedule must be approved – with or without conditions – by the chief executive of the Department of Environment and Science (DES). The Schedule requires approval separately to the EA, however the EA overrides the Schedule in the event of inconsistency. Non-compliance with the Schedule or its enforceable conditions is an offence. The Schedule must be audited every three years and a report provided to DES.

The impact of PRCPs on existing mines

The requirement for a PRCP will be phased in for existing mines. Once the amendments to the EP Act have commenced, DES will have three years to give each EA holder a notice requiring it transition from a Plan of Operations to a PRCP. The PRCP start date is scheduled for 1 November 2019. For a mining lease, the Plan of Operations will remain in force until the Plan of Operations expires or the day the Schedule is approved, whichever occurs earlier. DES will need to consider the conditions of the current EA when approving the PRCP, but will not be bound to approve the PRCP in a way that is consistent with the current EA

For existing mines, exemptions to certain rehabilitation requirements for PRCPs have been allowed. An exemption applies if an outcome for the land has been identified under a land outcome document (such as an EA or EIS assessment report), and the outcome is the same as, or substantially similar to, the outcome if it were a NUMA under the Schedule. For example, if an EA condition authorises a void, then the PRCP cannot retrospectively impose a different rehabilitation outcome. Further, no public notice of the PRCP is required if the land use is stated in the current EA.

A new public interest consideration for mines

Under the new regime, the EP Act will now include a requirement that a proposed Schedule must not be approved unless, if a public interest evaluation is required, the public interest evaluation report (PIER) recommends that it is in the public interest to approve the areas as a NUMA. Amongst other things, the PIER must consider the benefit to the community resulting from the mining activity or resource project, any impacts on the environment and community and whether there are alternative options to approving the area as a NUMA.

Where a project has been through an EIS process under the State Development and Public Works Organisation Act 1971, recommendations of the PIER will prevail over conditions stated by the Coordinator-General. The PIER and any documents relied upon to exempt a holder from justifying a NUMA will be accessible on the public register.

Managing residual risks: have your say

A discussion paper on managing residual risks at rehabilitated resource sites has also been released by the Queensland Government. The paper provides an opportunity for you to have your say on the management of residual risks, as well as the financial assurance framework more broadly, with submissions open until Friday, 1 February 2019.

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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.