Wednesday, 14 January 2015

The Newman Government’s Mining Reforms - Part 3 Common Provisions, Objections

by George Houen

Photo sourced [here]
Objections - environmental approval  

The Environmental Protection, State Development and Mineral Resources Acts all apply.    

  • For environmental approval of small (standard) mining applications, nobody will be notified and nobody may object.
  • Where the Coordinator General conducts an EIS for large (site specific) mining, he or she can (and I believe will) block all environmental objections.
  • Only on the small number of mid to large projects where Environment and Heritage (DEH) - rather than the Coordinator General - conducts the EIS or the alternative environmental approval process, will there be assured public notice and a right to object.

For standard mining applications, there will be no advertising of the application and no direct notice to affected landholders of the application for, or grant of, a standard environmental authority. And nobody – not even the affected landowner - will have a right to make submissions or to object. Nobody can challenge decisions by the chief executive of DEH to issue environmental authority for standard mining projects. Nobody can submit that extra conditions are needed. Even if the applicant has a bad past record or is otherwise unworthy of being granted environmental authority, nobody can raise those concerns. On its record, DEH will invariably decide in favour of the miner.

For environmental approval of large (site specific) projects: 

  1. If an EIS has already been completed through either the Coordinator General or alternatively DEH, any submissions previously made on the EIS (except any part relating to a Coordinator General’s condition) may, if the submitter requests, become objections initially to DEH and ultimately to the Land Court.
  2. But if the Coordinator General, in stating conditions for the proposed environmental authority, has also stated he or she is satisfied the conditions adequately address environmental effects of the mining activity, no submissions can go forward as objections.
  3. For a non-EIS project, the application to DEH for environmental authority and the application documents will be publicly advertised and any person may make submissions. Then once DEH makes its decision, submitters may elect to have their submissions treated as objections to be heard by the Land Court. 

 I believe, based on past performance, we can expect that in every case where the Coordinator General conducts an EIS he or she will invoke that power to prohibit objections. With standard environmental applications also rendered untouchable, only on the small number of site specific applications conducted exclusively by DEH is it assured that notification will continue and the right to object in the Land Court remain. 
Photo sourced [here]

Objection to mining lease applications.

 For small (standard) mining applications –
  1. Only the owners of land subject to the mining lease, or of access land, or of adjoining land and the Shire Council, may object to the mining application; and
  2. Grounds of objection are for the first time restricted and severely limited, as below.

For medium and large (site specific) applications –
  1. As to the application for mining lease, only the owners of land the subject of the application, and of any access land and of any adjoining land and the Shire Council may object.
  2. Permissible grounds of objection for owners of subject land are specified and severely restricted, ie: whether the Act has been complied with; whether mining is appropriate land use; whether mining supports sound land use management; impacts on the surface of the land within the mining lease; impacts on affected persons.

As is the case now, the Court can only allow objectors to give evidence and make submissions within the scope of their grounds of objection duly lodged.  All five of the new grounds of objection for owners of the subject land are inconsequential. They will be impossible, or near impossible, to substantiate with evidence. Impacts on the surface land might be a potentially viable ground if it referred to the owner’s land outside the lease, but it doesn’t – it refers only to land within the lease.

 A new provision covering both environmental and mining lease objections reinforces the Court’s existing ability to strike out non-conforming objections. A costs order against the objector would usually follow a strike out order. Since the court has always had discretion to strike out objections, this provision isn’t necessary. Perhaps it is included to further discourage objections.

 Some of the issues which are important and meaningful  for landholders, but on which objections are prohibited by the new restricted grounds, include:  is the land actually mineralised; are the size and shape of the lease  justified; is the proposed term justified;  is the applicant’s past record satisfactory;  would the project cause damage to the balance land, does the lease cut off vital access roads, does the applicant have the financial and technical capability for the project.

Adjoining owners have an even shorter list of permissible grounds of objection, but one is potentially viable:  impacts on the existing use of adjoining land.

Under the reforms, the important matters on which it is the Court’s job to report have been selectively culled. The Court can no longer report on: whether the proposed lease is mineralised and the lease size and shape OK; whether  utilisation of the deposit is acceptable; whether the applicant has the necessary financial and technical resources; whether the applicant’s past record is satisfactory; whether term of lease sought is appropriate, etc.  Those matters will in future be decided by the Minister alone, without either landholder input or the Court’s independent assessment.

 In a nutshell, as they affect mining lease applications the reforms:
  1. restrict the right to object to only specified landowners and the Shire; and
  2. restrict the grounds of objection to relatively inconsequential matters which will be difficult if not impossible to support with evidence;
  3. consequently render it likely futile to object and for those who do object, increase  the risk of a costs order;  
  4. remove from the Court’s jurisdiction the responsibility to assess and report on the bona fides and merit of mining lease applications; and
  5. consequently restrict the Court’s ability  to independently advise the Minister on the merits of mining applications.
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