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15 Oct 2020

The future of seabed mining in the Northern Territory to be decided

By Nicole Besgrove, Karen Trainor and Margaret Michaels

With the moratorium on seabed mining due to expire in March 2021, the NT EPA will finalise its review for the NT Government, with public submissions due by 9 November 2020.

On 6 March 2012, the NT Government announced a three year moratorium on granting titles permitting exploration for minerals or mining and on issuing authorisations permitting mining activities within the coastal waters of the Northern Territory until a review of actual or potential impacts of seabed mining has been undertaken. Petroleum exploration and production and port development were excluded from the Moratorium.

The Moratorium was later extended on 5 March 2015 for a further three years and again extended until March 2021.

The NT Environment Protection Authority (NT EPA) has now released its independent draft Review of Seabed Mining in the Northern Territory-Environmental Impacts and Management (NT EPA Draft Review) for public consultation. It is understood that after consideration of the comments received during public consultation, the NT EPA will finalise its review and advice for submission to the Minister for Environment to allow the NT Government to determine its policy position on seabed mining in the Territory moving forward.

NT EPA Draft Review

Seabed mining in Australia is considered to be a new and controversial industry and the NT EPA have identified the likely target resources in the Territory coastal waters as aggregate sands or gravels, mineral sands containing gold, diamonds and rare earth minerals, offshore salt deposits, and mineral deposits (manganese, phosphate, bauxite) that are extensions of known onshore resources.

It is understood that the NT EPA Draft Review has been prepared after consideration of national and international experiences, community concerns, contributions from a range of experts engaged by the NT EPA, and the regulatory experience and reforms of the Territory, including the new Environment Protection Act 2019 (EP Act) which commenced earlier this year.

The NT EPA has stated that seabed mining has the potential to have direct, indirect and cumulative impacts on environmental values and other resource industries of the Territory and concludes that there are current knowledge gaps in relation to this industry which result in:

  • uncertainty about the condition of the existing environment;
  • the extent of impacts from seabed mining;
  • the ability of industry to manage impacts; and
  • the ability for the environment to recover from impacts.

The NT EPA Draft Review contains a number of key findings and conclusions which outline what steps the NT EPA believe would be required before seabed mining could be considered acceptable and successful in Territory coastal waters. We have extracted the key findings and conclusions from the NT EPA Draft Review under the headings below.

Transparent, robust regulatory and policy framework

Seabed mining activity in the Northern Territory must occur within a transparent, robust regulatory and policy framework that promotes ecologically sustainable development and establishes clear expectations on industry. This framework should be supported by:

  • the declaration of marine environment protection "no go" areas for areas with high biodiversity, economic, recreational and/or cultural value; and
  • standards for seabed mining practices and environmental management.

Activity-based referral trigger

The NT Government should consider declaring a "seabed mining" activity trigger under the EP Act so that referral to the NT EPA is required to determine whether environmental impact assessment is required.

Categorising seabed mining activities

Seabed mining activities can be broadly categorised into three classes, based on their potential for significant environmental impact:

  • Manageable impacts – are likely in some relatively data-rich, low sensitivity locations. Potentially significant impacts may be effectively managed under current environmental impact assessment and regulatory arrangements.
  • Uncertain impacts – are likely in some situations, based on either the impact of seabed mining or the condition/quality of the receiving environment. Potentially significant impacts may be effectively managed based on the extensive collection of new environmental information and knowledge prior to environmental impact assessment.

Unacceptable impacts – are likely in some situations where serious risks and high uncertainty remains and no amount of information or knowledge is likely to adequately address the residual impacts in a reasonable time and at a reasonable cost. The NT EPA considers these proposals are likely to be unacceptable and may trigger a recommendation for early refusal.

Uncertainty and information requirements environment impact assessment

Currently, the lack of adequate environmental information and knowledge about the existing condition of environmental values and the potential impacts from seabed mining is a major barrier to the robust environmental impact assessment, approval and appropriate conditioning of seabed mining in the Northern Territory.

Proponents will be subject to considerable information requirements necessary for robust environmental impact assessment, including adequate baseline data that encompasses the substantial natural, temporal and spatial variation in marine and coastal environments.

Collection of adequate data

The collection of adequate data at a regional scale required for environmental impact assessment requires co-ordination between industry, government, research agencies and other stakeholders, rather than a piecemeal approach at the individual project scale.

The establishment of a government managed and resourced central data repository is essential. An accessible data repository would enable the most effective use of environmental data collected by industry, research organisations and government agencies and ensure that data is:

  • collected to appropriate data standards;
  • ·verified and stored securely; and
  • shared amongst all stakeholders.

Environmental monitoring

Approvals for seabed mining should require environmental monitoring that informs regulation of proposal-specific management targets, as well as evidence-based understanding of environmental impacts to support future impact assessment and regulation of the industry. Data should be available to the public.

Adaptive management

The NT EPA considers that the use of adaptive management would be highly problematic in managing the high levels of uncertainty and risk associated with the mitigation of potentially significant environmental impacts from seabed mining proposals. Any effective use of adaptive management would be limited in its application to clearly defined issues.

Environmental offsets

The NT EPA considers that environmental offsets cannot currently be readily or easily applied to seabed mining proposals in NT coastal waters. The collection of pre-impact baseline data does not qualify as an environmental offset.

Closure and rehabilitation

In the absence of specific guidance, seabed mine closure and rehabilitation should follow the best practice principles of the International Marine Minerals Society Code for Environmental Management of Marine Mining, the International Council on Mining and Metals for Mine Closure, and the WA Guidelines for Preparing Mine Closure Plans.

Requirements to achieve environmental protection outcomes must include: extensive baseline information, appropriate financial assurance, progressive rehabilitation, agreed rehabilitation objectives, completion criteria and monitoring of rehabilitation success. These requirements should be captured in specific closure and rehabilitation criteria and guidance developed by government with substantial industry and stakeholder input.

Effective rehabilitation and biological recovery is unlikely to be feasible where seabed mining removes or alters extensive areas of the seafloor or for seabed mining proposals greater than five years duration.

Independent expert advisory group

Independent expert groups can provide valuable advice to regulators and industry during the planning, assessment, operational and rehabilitation stages of seabed mining projects, should seabed mining proceed in the Northern Territory beyond a limited number of small-scale operations.

The cost of funding an expert advisory group would appropriately lie with the proponent.

Community engagement and consultation

The powers afforded by the EP Act to the Northern Territory Government and the NT EPA provide a strong framework for community involvement in the environmental impact assessment and approvals process and, ultimately, environment protection.

Transparent, meaningful community engagement and consultation should commence early in project planning prior to the impact assessment and approvals process, and extend to project implementation and closure.

Further investigation of learnings from the Northern Territory (Hydraulic Fracturing Inquiry), national (NOPSEMA) and international (NZ and BMAPA) experiences will be valuable to guide the Northern Territory Government’s position, implementation and communication pathways.

Have your say

Submissions in relation to the NT EPA Draft Review can be made online here until 9 November 2020.

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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.