The NSW Government has released for public consultation the Mining Amendment (Standard Conditions of Mining Leases – Rehabilitation) Regulation 2020 (the Mining Amendment Regulation). The Mining Amendment Regulation will prescribe new standard mining lease conditions relating to mine rehabilitation through amending the Mining Regulation 2016. The Government intends that the new mining lease conditions will support best practice mine site rehabilitation to ensure NSW has a sustainable minerals industry. These new conditions will replace existing rehabilitation conditions on current mining leases and will be added to all new mining leases. The new mining lease conditions will require rehabilitation risk assessment, annual reporting and more detailed rehabilitation management planning aimed at bolstering requirements for progressive rehabilitation. The new conditions are being introduced to create uniformity around the conditions that apply to mining leases and to increase transparency and improve accountability by allowing the NSW Government to better monitor how rehabilitation is performed and progressed over time.
Current position
Mine rehabilitation is currently regulated through the provisions of the Mining Act 1992, Mining Regulation 2016 and standard conditions imposed on mining leases under those instruments. The standard conditions for NSW mining leases provide that "any disturbance resulting from the activities carried out under [the] mining lease must be rehabilitated to the satisfaction of the Minister". Rehabilitation is to be carried out progressively, that is, as soon as reasonably practicable following disturbance and must achieve the approved rehabilitation objectives and rehabilitation completion criteria.
The detailed plan for the rehabilitation of a mine site is set out in the Mining Operations Plan (MOP), which a lease holder must prepare and comply with as a condition of its mining lease. The MOP is the key plan documenting rehabilitation obligations for a site. It must be approved by the Minister prior to commencing any significant surface disturbance activities, including mining operation, ancillary mining activities and prospecting. It identifies:
- the post mine use for the land;
- the areas that will be disturbed;
- how the mine will be managed and rehabilitated to achieve the post mining landform and land use(s) approved under the development consent; and
- how mining operations, ancillary mining activities and prospecting will be carried out in order to prevent and or minimise harm to the environment.
The mining lease holder is also required to prepare an annual rehabilitation report, to the satisfaction of the Minister, that must demonstrate how rehabilitation is progressing against the performance measures and criteria established in the approved MOP. Any breaches of mining lease conditions or the provisions of the Act or Regulation must also be reported.
Proposed changes
The new standard mining lease conditions, if made, will introduce a new rehabilitation reporting system for "small" and "large" mines. Additional conditions will apply to ‘large mines’ which are those the subject of one or more mining leases, where the activities carried out under at least one of the leases requires an environment protection licence under the Protection of the Environment Operations Act 1997.
Documentary/reporting requirements
The new standard conditions will require mining lease holders prepare documents as part of its rehabilitation planning, in accordance with the Mining Amendment Regulation and the relevant approved 'form and way' documents. The documents include:
- rehabilitation objectives and rehabilitation completion criteria;
- forward programs and annual rehabilitation reports; and, for large mines,
- a final landform and rehabilitation plan.
All documents must be prepared and submitted to the Secretary for approval (see timeframes section below). The Department will be preparing guidelines to assist mine operators but these have not yet been released.
Below is a brief outline of each:
Rehabilitation objectives and rehabilitation completion criteria (small and large mines)
Rehabilitation objectives describe the rehabilitation outcomes required to achieve the final land use for the mining area. Rehabilitation completion criteria are the criteria which, if met, demonstrate the achievement of the rehabilitation objectives. The rehabilitation objectives and rehabilitation completion criteria must be submitted using the relevant online form and include the final land use domain, mining domain, rehabilitation objectives, indicator(s), rehabilitation completion criteria and validation method. An example is to be provided in the guidelines (when released).
Final landform and rehabilitation plan (large mines)
A final landform and rehabilitation plan contains a spatial depiction of the final land use and is included in the rehabilitation management plan for a large mine. A rehabilitation management plan defines the rehabilitation outcomes to be achieved by the lease holder in relation to the mining area and sets out the strategy to achieve those outcomes. A rehabilitation management plan is to include the following:
- a description of how the lease holder proposes to manage all aspects of the rehabilitation of the mine;
- a description of the steps and actions the lease holder proposes to take to comply with the conditions of the mining lease that relate to rehabilitation;
- a summary of rehabilitation risk assessments conducted by the lease holder;
- the approved or, if not yet approved, the proposed –
- rehabilitation objectives; and
- rehabilitation completion criteria; and
- for large mines – final landform and rehabilitation plan;
- a statement of the performance outcomes and the ways in which those outcomes are to be measured and monitored.
Annual rehabilitation report and forward program (small and large mines)
A forward program provides the mining and rehabilitation schedule for the mining area, and a summary of the spatial progression of rehabilitation, for the next three years.
An annual rehabilitation report is to include:
- a description of the rehabilitation undertaken over the reporting period;
- a report demonstrating the progress made through the phases of rehabilitation provided for in the forward program applying to the reporting period;
- a report demonstrating progress made towards the achievement of the approved or, if not yet approved, the proposed -
- rehabilitation objectives and rehabilitation completion criteria; and
- for large mines – the final land use as spatially depicted in the final landform and rehabilitation plan.
The content of these plans are not particularly new – the MOP already sets out the areas that will be disturbed and identifies how the mine will be rehabilitated to achieve the post-mining landform and land uses(s). Further, mining lease holders are currently required to prepare a similar annual rehabilitation report on the progress of rehabilitation against pre-identified performance measures/criteria. However, the amendments provide greater clarity through separating the information that would ordinarily be included in a MOP into separate documentary requirements and creating the 'form and way' template documents which stipulate exactly what needs to be included in each document.
MOPs will be replaced with the targeted rehabilitation management plan (required for large mines) and the annual reporting and scheduling of rehabilitation in the annual rehabilitation reports and forward programs are intended to replace the annual environmental management reports that are currently required.
Preventing or minimising harm to the environment
Under the new standard mining lease conditions, a lease holder will be expressly required to take all reasonable measures to prevent or, if that is not reasonably practicable, to minimise, harm to the environment caused by activities under the mining lease. Currently, a MOP is required to identify how mining operations will be carried out in order to prevent/minimise harm to the environment but there is no obligation to "take all reasonable measures". Mining lease holders will also now be required to identify and record any reasonably foreseeable hazard that presents a risk to the lease holder's ability to comply with this requirement to prevent or minimise harm.
Other requirements
Mining lease holders will need to conduct rehabilitation risk assessments either before preparing a rehabilitation management plan (for large mines), before submitting rehabilitation objectives for approval (for small mines), whenever a hazard is identified (as mentioned above) or whenever directed in writing to do so by the Secretary. The lease holder must incorporate the risk control measures it identifies (in its risk assessment) into its forward program and, for large mines, the rehabilitation management plan.
The lease holder must ensure that it rehabilitates land and water in the mining area to achieve the final land use for the mining area as stated in the approved rehabilitation objectives and rehabilitation completion criteria and, for large mines, as spatially depicted in the approved final landform and rehabilitation plan.
The amended conditions will continue to require lease holders to record compliance with their lease condition obligations, and report non-compliances (within 7 days of becoming aware of the non-compliance). Lease holders will also have to follow other notification requirements relating to development applications, modifications of development consent and nominated contact persons.
Transitional arrangements and timeframes for submitting new documents
Transitional arrangements for existing mines will allow time for lease holders to prepare for the new requirements. The conditions and new requirements in the Mining Amendment Regulation will apply to all mining leases from the relevant date being:
- for existing large mines – the date that is 12 months from the date that the Mining Amendment Regulation is made;
- for existing small mines – the date that is 24 months from the date that the Mining Amendment Regulation is made;
- for any other mining lease – on the date the lease is granted.
The timeframes for submitting documentary requirements depend on the type of document being submitted and certain conditions under either the mining lease or the development consent. For example, if the final land use for the mining area is required by a condition of a development consent and is modified under section 4.55(2) of the Environment Planning and Assessment Act 1979, the date the final form and rehabilitation plan must be provided is:
- within 30 days after the application for the modification of the development consent is granted, or
- if an authorised period applies – within the authorised period after that application is granted.
The lease holder must publish the forward program, annual rehabilitation report and rehabilitation management plan on its website within 14 days after its preparation and, if later amended, within 14 days after its amendment.
Portal
A new mine rehabilitation online portal will be introduced to help collect rehabilitation spatial data into a centralised database that will be made publicly available. The portal will help mining companies and the NSW Government to accurately record and track areas of disturbance and rehabilitation progress across individual sites as well as to better plan for future rehabilitation to achieve the final land use. Lease holders will be required to submit rehabilitation spatial information associated with existing MOPs and annual environmental management reports (and future rehabilitation management plans and the annual rehabilitation report and forward programs under the new mining lease conditions). See the NSW Government's FAQs for further information.
Takeaways
Public consultation on the Mining Amendment Regulation and the 'form and way' documents is now open and submissions are due by 6 November 2020.
These new mining lease conditions relating to rehabilitation have been introduced to improve clarity and enforceability of rehabilitation outcomes. The new mining lease conditions will need to be complied by both existing and future mine operators. It is important that mining companies are aware of the new conditions that will be imposed on its existing mining leases and prepare to transition from the current MOP process to comply with these new requirements. This may include undertaking risk assessments of current progressive rehabilitation success against the prescribed rehabilitation objectives as well as auditing against final landform requirements depending on the phase of the mining operation.