Evacuation Grounds: The Newman Government’s Mining Reforms - Part 2 Common Provisions, Mining lease application and notification

Tuesday, 13 January 2015

The Newman Government’s Mining Reforms - Part 2 Common Provisions, Mining lease application and notification

by George Houen

Continuing from Part 1 Common Provisions, Restricted Land

Marking Out: the white posts a metre high which, for generations, have visually located the boundaries of a mining lease will be history. At lodgement stage, unless directed otherwise by the chief executive, the lease applicant will only need to describe the boundaries on paper, by GPS coordinates or the like. Physical markers are no longer compulsory.

While the chief executive has power to order the applicant to physically mark the lease boundary in some way, that may or may not happen And when you do eventually receive formal notice of the lease application, it won’t necessarily even include a map of the proposed lease boundaries.

Notice: No longer will mining applications be publicly advertised – the Mining Lease Notice will be given but only to the owner and/or occupier of the subject land, or of land across which access is required, plus the owner of adjoining land, the owner of infrastructure (eg. powerline or pipeline) and the relevant local government. An even smaller selection of persons are permitted to object – ie. the owner of land subject to the lease, the owner of any land required for access, the owners of adjoining land, and the local government. Objecting will likely be futile and risky, as will be explained below.

The old certificate of application, which was required by the Act to be issued as soon as the lease application was accepted, is eliminated and not replaced. To the extent it was issued as required, the certificate gave landowners prompt notice that someone had applied for a mining lease and the details of the application. But in practice that basic right was denied because, especially in recent years, the department issued the certificate, not at the start as required but at the end, simultaneously with issue of the certificate of public notice (where it served no purpose). Elimination of the certificate of application means the department can in future leave affected landowners in the dark without breaking the law.

For larger projects requiring an EIS or the processing of a complex environmental authority application, the objection phase is typically delayed 4 years or so after lodgement. Landowners left in the dark for that lengthy period could fail their duty to the bank to disclose the encumbrance, could commit in ignorance to new improvements or other personal or business plans that would be affected by the proposed lease, could buy or sell land in ignorance of the lease application and so on.

The Mining Lease Notice replaces the old, publicly advertised certificate of public notice. The new notice has the limited purpose of directly notifying the few people who still have objection rights of their opportunity to object to the lease application. An additional purpose will be to give the landowner the one and only formal notice of the details of the application (but on larger projects where it matters most, typically 4 years too late).

The Mining Lease Notice for standard lease applications (ie. small mining covered by area limits and standard environmental conditions) is to be given to the same list of affected persons as soon as the chief executive is satisfied the applicant is eligible and that the application complies with the Act. If the department complies with this statutory obligation, that will at least ensure prompt notice of standard applications to landowners affected by small mining. However, the reforms mean it will also likely be futile for these owners to object, as explained in Part 3.