Rehabilitation of the Latrobe Valley Coal Mines: Integrating Regulation of Mine Rehabilitaion and Planning for Land and Water Use Professor Alex Gardner, University of Western Australia Law School Elda Poletti, Mining Law Consultant Lauren Downes, Research Associate, University of Western Australia Law School Laura Hamblin, Research Associate, University of Western Australia Law School The research presented in this article was supported by CRC TiME. The content of the article is a revised version of a case study undertaken for the project “Mapping the regulatory framework of mine closure”. The support of the Australian Government through the Cooperative Research Centre Program is acknowledged. The article is current to March 2024. This case study considers the challenges of implementing effective regulatory processes for rehabilitation of open cut coal mines in one of the world’s largest brown coal reserves, the Latrobe Valley, Victoria. The Latrobe Valley coal fired energy industry is experiencing a transition hastened by a serious coal mine fire in 2014 and climate change. The Latrobe Valley mines and their associated power stations either have closed (Hazelwood 2017) or are scheduled to close (Yallourn 2028 and Loy Yang 2035) with final rehabilitation to follow. The case study demonstrates the leading role of the Mineral Resources (Sustainable Development) Act 1990 (Vic) in mine rehabilitation regulation. The MRSD Act was significantly reformed in 2019 to introduce important mine rehabilitation reforms and integrate mine rehabilitation regulation with land use and water use planning, all operating in the context of the Climate Change Act 2017 (Vic). The principal integrative instrument is the Latrobe Valley Regional Rehabilitation Strategy (2020, amended in October 2023). We suggest further research to improve the regulatory outcomes. May 20, 2024 By ER Law Admin ARELJ, General, Industry, Resources and Energy 0 Comment Read More >>
How Good is Queensland's Law Reform Commission Inquiry into Mining Lease Objections? John Southalan Barrister (WA Bar Association), Mediator (NMAS), Adjunct / Clinical Professor (UWA, Murdoch, Curtin) This article is written in personal capacity and does not represent the views of any organisation with which the author is associated. Grateful thanks for comments and feedback on earlier drafts from Prof Deanna Kemp, Julia Keenan, Prof Alex Gardner, Rodger Barnes and others who are not identified. Any errors remain the author’s responsibility. The Queensland Law Reform Commission is reviewing the processes to decide contested applications for mining leases and associated environmental authorities in Queensland. The Commission has published several background papers, providing material and analysis of much broader use that just Queensland law reform. One paper explores key drivers shaping mining’s future: decarbonisation and critical minerals’ demand; rising focus on environmental, social and governance principles; and increasing recognition and respect for First Nations’ rights. Another paper summarises (and compares) the objections processes for mining leases and associated environmental authorities in six jurisdictions: Queensland, Western Australia, New South Wales, Northern Territory, British Columbia (Canada), and South Africa. The Commission’s papers provide excellent summaries and material for anyone wanting to understand mining law and policy processes – what currently exists in these significant mining jurisdictions, and what the future may hold. May 20, 2024 By ER Law Admin ARELJ, General 0 Comment Read More >>
Renewable Energy Guidelines and Accelerated Approvals The Clean Energy Council, in collaboration with KPMG, has released its Leading Principles: First Nations and Renewable Energy Projects. The document provides detailed guidelines on how to address challenges to effective engagement and sets out best practice principles to engage with First Nations People on renewable energy projects. May 6, 2024 By ER Law Admin Energy, Environment 0 Comment Read More >>
Recent updates from Malaysia and Southeast Asia Acknowledging the need in its country, the Government of Malaysia has recently introduced several new programs that aim to improve low carbon and renewable energy generation in the country. April 29, 2024 By ER Law Admin General, Resources and Energy Energy, Educational 0 Comment Read More >>
Mining strategies and risks for 2024 KPMG has recently released its Australian Mining Risk Forecast 2024 that outlines the top-ranking risks for the mining and metals industry. The report is based on material risks of mining companies in the ASX 300. April 9, 2024 By ER Law Admin Environment, Mining, Resources and Energy 0 Comment Read More >>
Legislative updates in Queensland and Western Australia The Governments in Queensland and Western Australia have recently released several consultation papers, reports and proposed legislation that impact the resources sector. April 4, 2024 By ER Law Admin General, Resources and Energy 0 Comment Read More >>
High Court decision on the right to mine The High Court recently handed down its decision in Harvey v Minister for Primary Industries and Resources [2024] HCA 1. The case considered the meaning of mining activities under the Native Title Act 1993 (Cth). The case involved an application for a mineral lease that Mount Isa Mines applied for in 2013 under the Mineral Titles Act 2010 (NT). The application was to process sediment from a channel to a dredge spoil emplacement area but did not involve any production of minerals. The applicant gave notice under section 24MD(6A) of the Native Title Act but the native title holders argued the notice should have been under section 24MD(6B) instead. February 28, 2024 By ER Law Admin Resources and Energy 0 Comment Read More >>
An Update From Across The Globe As lawmakers settle into 2024, we’re now seeing progress on policy and legislation in jurisdictions across the globe. February 23, 2024 By ER Law Admin Environment, International, Mining, Oil and Gas, Resources and Energy 0 Comment Read More >>
Land Access Agreements for Petroleum Exploration in the Northern Territory: the Tanumbirini Station and Beetaloo Station Decisions Bradly Torgan BA (Duke), MRP (UNC), JD (UNC), MEL (Syd) Special Counsel, Ward Keller, Darwin NT The Tanumbirini Station and Beetaloo Station decisions, first before the Northern Territory Civil and Administrative Tribunal and then on appeal to the Northern Territory Supreme Court, represent the first decisions under the land access agreement provisions of the Petroleum Regulations 2020 (NT). They establish jurisdictional boundaries under which the Tribunal can determine an access agreement, guidance on when the Tribunal will exercise its discretion to do so, and guidance on the terms of an access agreement. The decisions also provide a cautionary tale to landowners demanding compensation prospectively for anything other than the drilling of a well. The parties may agree to comprehensive prospective compensation in principle, but if negotiations fail and the matter goes to litigation the landowner stands to get nothing beyond compensation for the drilling of a well. Introduction The Petroleum Regulations 2020 (NT) (the Regulations) came into force on 1 January 2021. Amongst the changes from the Petroleum Regulations 1994 (NT) that the Regulations replaced was the requirement for a land access agreement (access agreement) to undertake exploration activities:[i] a petroleum interest holder could no longer commence regulated operations on a particular area of land without having an access agreement in place with the landowner or occupier of the land holding a registered interest, referred to in the Regulations as the designated person.[ii] In the Northern Territory, the designated person is typically a pastoral lessee under the Pastoral Land Act 1992 (NT). While the Petroleum Act 1984 (NT) (the Act) provides for compensation to pastoralists or other owner/occupiers for any damages or deprivation of use of the land caused by the interest holder,[iii] access agreement guidelines prior to the Regulations had no force of law. The requirement that an access agreement be in place prior to exploration commencing arose from a recommendation of the 2018 Final Report of the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory (Fracking Inquiry),[iv] which the Northern Territory government had commissioned and whose recommendations it promised to implement in lifting a moratorium on hydraulic fracturing that had been in place since 2016. The recommendation was designed to level what was seen as an unequal negotiating structure between pastoralists and petroleum companies that disadvantaged the pastoralists. The enactment of the access agreement provisions brought the Territory more into line with other jurisdictions for which agreements are required before most petroleum exploration activities can occur.[v] The Regulations contain twenty-five standard minimum protections (SMPs) that every access agreement is required to address.[vi] They include the minimum amount of compensation payable for the drilling of a well on the land,[vii] sometimes referred to as SMP 12, and a statement of whether it is anticipated that any of the exploration and related activities carried out on the land will lead to a decrease in market value of the land. If that question is answered in the affirmative, the agreement must provide a preliminary assessment of the amount of the decrease.[viii] This statement and assessment is sometimes referred to as SMP 13. What the SMPs do not mandate, however, is determinations of prospective compensation payable for anything other than a minimum amount for the drilling of a well. The Regulations provide a multi-step negotiations process, including alternative dispute resolution.[ix] If negotiations fail, the interest holder can apply to the Northern Territory Civil and Administrative Tribunal (Tribunal) for determination of an access agreement.[x] Judicial review by the Northern Territory Supreme Court may be sought on questions of law for any Tribunal decision determining or refusing to determine an access agreement.[xi] While most access agreements in the Northern Territory are the result of successful negotiations between the interest holder and the designated person, negotiations in two instances failed, with the interest holder seeking and securing determinations of access agreements by the Tribunal. The decisions in access agreement disputes before the Tribunal, Sweetpea Petroleum Pty Ltd v Rallen Australia Pty Ltd (Tanumbirini)[xii] and Sweetpea Petroleum Pty Ltd v Yarabala Pty Ltd & BB Barkly Pty Ltd (Beetaloo),[xiii] dated 7 February 2022, addressed access over two adjacent pastoral leaseholds in the gas rich Beetaloo sub-basin, Tanumbirini Station and Beetaloo Station. The decisions were similar, but consequential orders in Tanumbirini resulted in the determination of an access agreement over Tanumbirini Station,[xiv] while the decision in Beetaloo remained interlocutory. The Tanumbirini determination was upheld by the Northern Territory Supreme Court in Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd (Tanumbirini Appeal),[xv] issued on 20 April 2023. A ruling upholding the Beetaloo decision, Yarabala Pty Ltd and BB Barkly Pty Ltd v Sweetpea Petroleum Pty Ltd (Beetaloo Appeal),[xvi] followed on 9 June 2023. This article first analyses the Tanumbirini decision because of the similarities between it and the Beetaloo decision, although differences between the two are noted, before turning to the Tanumbirini Appeal. The article then reviews major differences between the Tanumbirini Appeal and Beetaloo Appeal before discussing the impacts of the decisions. [i] Petroleum Regulations 2020 (NT), reg 12(1). [ii] Above n 1, Regulations, regs 3, 13(1)(b). [iii] Petroleum Act 1984 (NT) (28/11/2022–22/06/2023), s 82(1). [iv] Hon Justice Rachel Pepper (Chair), Final Report: Scientific Inquiry into Hydraulic Fracturing in the Northern Territory (NT Government, 2018), Rec 14.6, 394-395. [v] See, e.g., Petroleum and Geothermal Energy Resources Act 1967 (WA) (PGER Act), s 16; Petroleum (Onshore) Act 1991 (NSW) (PO Act), s 69C; Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act), s 43. [vi] Above n 1, Regulations, reg 14, sch 2. [vii] Above n 1, Regulations, reg 14, sch 2, cl 12(1). [viii] Above n 1, Regulations, reg 14, sch 2, cl 13(1). [ix] Above n 1, Regulations, regs 14, 25-26. [x] Above n 1, Regulations regs 14, 29. [xi] Northern Territory Civil and Administrative Tribunal Act 2014 (NT), s 141(1). [xii] Sweetpea Petroleum Pty Ltd v Rallen Australia Pty Ltd [2022] NTCAT 1. [xiii] Sweetpea Petroleum Pty Ltd v Yarabala Pty Ltd & BB Barkly Pty Ltd, NTCAT File no 2021-02699-CT (7 February 2022). As of the date of the writing of this article, Beetaloo has not been published. [xiv] Above n 12, [2022] NTCAT 1,Tanumbirini, n 1. [xv] Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd [2023] NTSC 36. [xvi] Yarabala Pty Ltd and BB Barkly Pty Ltd v Sweetpea Petroleum Pty Ltd [2023] NTSC 50. February 8, 2024 By ER Law Admin ARELJ, Energy, General 0 Comment Read More >>
Recent State legislative updates Both Victoria and South Australia have recently progressed significant legislation focused on renewable energy. The Victorian Government’s Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Bill 2023 has had its second reading in the Legislative Assembly. The Bill is intended to reduce the cost of power bills, create tens of thousands of jobs and encourage investment in the State’s renewable energy industry. January 25, 2024 By ER Law Admin ARELJ, Resources and Energy 0 Comment Read More >>