COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES

1. Introduction

Why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Addressing this question presents an important theme for this comparative review of some core features of the regulatory frameworks for mine closure in three Australian States. It also raises important questions for future legal research.

Western Australia, Queensland and Victoria have prominent but vastly different, and thus uniquely significant, mining industries. Western Australia’s mining industry has a long history of large and smaller scale mining of a diverse range of minerals by various methods that pose significant mine rehabilitation challenges.[i] Queensland’s mining industry is similarly large and diverse, dominated by export coal production, and planning future minerals development in a decarbonising world.[ii] Victoria has a smaller mining industry with a large historical legacy dominated by a coal mining industry for domestic electricity generation in the Latrobe Valley, which is closing as the State actively transitions to renewable power sources.[iii] These States also have significant differences in the regulation of their mining industries.

What all three States do have in common is the significance of their mining industries to both the State economy and the communities who depend on or live near mining operations. Importantly, all three States are confronting large legal and regulatory challenges in managing mine rehabilitation and closure. The key to addressing these challenges is effective mine closure planning: the closure of a mine site has ripple effects that are not merely environmental and economic, but social and cultural too.

The initial approval of a mine closure plan occurs before any mining has begun and, with the life cycle of a mine often spanning decades, regulatory bodies are approving hypothetical closure scenarios, potentially subject to vast changes. Regulatory bodies may then seek to enforce closure requirements enshrined in a plan that may wane in relevance as mining operations progress, the updating of which may depend on the miner. Yet remedying the regulatory system so that it creates adaptable but consistently effective mine closure outcomes for affected communities still begins at planning. Although that planning is an iterative process across the life of the mine, it is very important at the initial stage of approval. Recent legislative reforms in all three States are adding to the regulatory rigour and adaptability of mine closure planning, though there are very different legal requirements for community consultation. This article aims to explain and assess the regulatory reforms by undertaking a comparative analysis of mine closure planning across Western Australia, Queensland and Victoria, with a focus on the initial approval stage and how stakeholders and communities are brought into that process. The facilitation of continuous and comprehensive community engagement is critical to ensuring that mine closure planning accounts for environmental, economic, social, cultural and safety outcomes after mine closure, but it has not been possible to consider here the process of ongoing mine closure planning, especially for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment.[iv]

The article begins by considering core concepts of mine closure planning and the regulatory goals that inform it. It then provides a comparative overview of each State’s mine closure planning requirements under the mineral resources, environmental and land use planning laws and draws out some of the different regulatory structures and processes for mine closure within each State. The third step in our analysis compares the ways in which those laws provide for local communities’ participation in mine closure planning, with specific attention to whether the regulatory provisions create legally enforceable rights for effective community engagement. The article concludes with a summary of the key points from the discussion of three themes in our analysis: (i) the importance of clear definitions of core concepts and key goals, (ii) mine closure planning as an essential part of a mining proposal, and (iii) the legal definition of community engagement and consultation rights.

Mine closure planning and implementation is necessarily influenced by many other spheres of law including taxation law, investment law, water law, and the rights of traditional owners, to name a few. A potentially directly relevant Commonwealth law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which may require environmental impact assessment of a mining proposal and closure plan and lead to approval conditions supplementing State requirements.[v] Whilst acknowledging the importance of these adjacent spheres of the regulatory frameworks for effective mine closure planning, this article does not attempt to address their impact. In particular, the rights of Traditional Custodians are a crucial part of mine closure planning that are only briefly noted here and that would benefit from future research.

2. Core Concepts and Key Goals

Mining, environmental and planning laws across Australia lack definitions of important terms regularly employed in relation to mine closure planning. The definitions of “closure”, “rehabilitation” and “repurposing” are fundamental but unsettled. Below, we provide general definitions of these concepts as they inform key goals of the subsequent discussion of mine closure planning.

2.1     Closure

Traditionally, the term “mine closure” has been used to refer to the point at which mining operations have ceased and the mine is being decommissioned, often because the asset is no longer considered profitable for the operator.^[vi] The contemporary meaning may be broader, encompassing relinquishment of the mining tenure. A mine can be put into “care and maintenance” rather than being entirely decommissioned (this is distinct from closure) or be “relinquished” after being decommissioned and rehabilitated. A mine can also be legally “abandoned” by an operator through forfeiture, surrender or expiry of the lease. All of those are types of mine closure. This can raise questions of the extent of closure liabilities of a new operator that takes on the tenure.

Mine closure can also be partial, where either one element of operations is shut down, or one part of the land ceases to be used for mining. Successful rehabilitation to the point of relinquishing the land back to the State is still unusual in Australia, but there are examples of closure, including examples of long-lived large-scale mines having successfully rehabilitated some areas that have been relinquished back to the State.^[vii]

2.2     Rehabilitation

Mine “rehabilitation” typically refers to the process of repairing damage to the landscape caused by mining practices and operations.^[viii] Most contemporary conceptions of mine closure include a requirement to rehabilitate impacted land. At a minimum, the mine site must be made safe and the risk of structural collapse must be minimised.^[ix] However, regulatory standards for the definition of mine rehabilitation generally go further than mere physical safety and stability and include a requirement to rehabilitate the mine site to a level that will support future land uses.^[x] The common standard of mine rehabilitation requires the land to be restored to its pre-mining state as much as possible, where there is no other beneficial restorative use.^[xi] The Regulations may also permit mining infrastructure to be retained for future use by community members for non-mining purposes (see 2.3 Repurposing, below).^[xii] It is important to note that no existing legislated standards address reparations for damage to cultural sites, despite destruction of cultural sites being a possible impact of mining activity.

The rehabilitation process must be tailored to each mine site and account for different regional land-use plans, such as for water catchment or agriculture. This makes it difficult for any regulator to set uniform standards: rather, regulators and industry bodies generally prepare comprehensive guidelines to assist companies in meeting the legal requirements in collaboration with authorities and local communities.^[xiii] Yet there is an evolving legal standard that rehabilitation should be progressive and the outcomes achieve a safe and stable land form that causes no environmental harm or pollution and is capable of sustaining post-mine land use (see discussion below in relation to Queensland in Part 3.2 and Victoria in Part 3.3).

2.3     Repurposing

The core meaning given to this term is the adaptation of the concept of closure to include repurposing of mining assets to future non-mining uses instead of their removal and the rehabilitation of the mined area. However, the repurposing of mine assets or mined land forms may be presented as a part of rehabilitation. Generally, there is a lack of clearly established regulatory measures governing repurposing of mine assets into non-mining uses, so this aspect of mine closure is presently more subject to the social license to decommission and repurpose.[xiv] This can leave questions about managing residual risks of repurposed assets. A transformative approach to mine closure and repurposing should also encompass community and Traditional Custodian concerns, including addressing residual risks.

2.4     Comparative Summary of Core Concepts and Goals

In broad terms, the definition of mine closure spells out the key goals: decommissioning, rehabilitation and relinquishment of tenure. Closure may be partial, built on progressive rehabilitation. There are evolving legal standards for rehabilitation outcomes to achieve land forms that are stable, non-polluting and can sustain a post-mine land use. Those goals may also now be served by repurposing mine land forms and assets for post-mine land uses, though legal definitions of this concept are indefinite.

3. Mine Closure Planning – an Essential Part of Presenting a Mining Proposal

This part provides an overview and comparative summary of how mine closure planning is regulated in each of our three focus States. The provision of financial security for rehabilitation commitments is also a key step in the closure planning process, which we do not consider here.

3.1     Western Australia

Western Australia has two foundational pieces of legislation that regulate the making and approval of mining proposals and mine closure plans:

• The Mining Act 1978 (WA) (Mining Act) administered by the Department of Mines, Industry Regulation and Safety (DMIRS).
• The Environmental Protection Act 1986 (WA) (EP Act WA) administered by the Department of Water and Environmental Regulation (DWER) and the Environmental Protection Authority (EPA).

3.1.1  Alternative Pathways to Approval under the Mining Act

The Mining Act and the EP Act WA interact to establish two alternative pathways for seeking approval, including environmental impact assessment approval, of a minerals production operation.

1. The first pathway (the traditional pathway) involves the application for a mining lease with a mining proposal^[xv] that may be referred by any person for environmental impact assessment (EIA) under the EP Act WA where the proposal is likely, if implemented, to have a significant effect on the environment (see below Part 3..2).[xvi] If an EIA is required, it must be completed before the Minister for Minerals may grant the mining lease. The grant of the mining lease will authorise the commencement of mining operations.
2. The second pathway (the deferred proposal pathway introduced in 004)^[xvii] authorises a mining lease application without a mining proposal if the application is supported by a statement of proposed mining operations and a “mineralisation” or “resource” report. Only the proponent may refer such an application for environmental impact assessment.^[xviii] A mining lease granted under the deferred proposal pathway is granted with a condition requiring the lessee to obtain written approval of a mining proposal from the Executive Director of DMIRS Resource and Environmental Compliance Division before carrying out any mining operations.^[xix] Almost all mining lease applications are made by the deferred proposal pathway.^[xx] Once a mining proposal is submitted to DMIRS for approval, it may be referred to the EPA for an EIA under the EP Act WA and must be so referred by the Executive Director if it appears to be likely to have a significant effect on the environment.^[xxi]

The key point here is that a mining proposal process by either pathway must contain a mine closure plan (MCP).

The Mining Act definition of “mining proposal” includes an MCP.^[xxii] In turn, an MCP is defined to be a document that has the form and content “required by the guidelines” that are approved and made publicly available by the Director General of Mines.^[xxiii] It is also a statutory condition of a mining lease that the lease holder must review the MCP and obtain written approval of the reviewed MCP every three years after it was approved, either in the grant of the lease or under the deferred proposal pathway.^[xxiv] However, the Mining Act fails to address three important legal questions about the guidelines and the effect of an approved MCP.

First, the Mining Act does not state the legal effect of the guidelines on the decision to approve an MCP. On the basis of the High Court decision in Forrest & Forrest v Wilson, a case which interpreted the Mining Act provisions regulating the mining lease application process, there is a duty to fulfill the statutory requirements of the application process.^[xxv] Contrary to the DMIRS statement,[xxvi] the statutory guideline prescription of the form and content of the MCP is less likely to be legally binding because the Mining Act references are merely by way of definition of terms and there are no operative provisions in the Mining Act that give a binding legal effect to the guidelines in reviewing or approving a mining proposal or MCP. The lack of standard legislative process in making the guidelines also tells against their having a binding legal effect, though it is likely that the Minister granting a mining lease or the prescribed official approving a mining proposal would be legally bound to have due regard to the prescriptions of the guidelines.^[xxvii]

Second, the Mining Act does not specify the legal effect of the approval of a mining proposal or MCP, nor separately confer any legal force on those documents. The Mining Act does provide that a lease holder in breach of any of the statutory covenants or conditions is liable to have the lease forfeited or pay a financial penalty not exceeding $50,000,[xxviii] but it is not clear that a condition requiring compliance with a mining proposal or MCP is incorporated into the mining lease. Thus, there is a legal duty to have an approved mining proposal and MCP, and the lease is liable for forfeiture or penalty if the MCP is not reviewed every three years, but there is no statutory legal sanction for breach of the MCP.

Third, the practice seems to be to include approved MCPs on the Mining Act register, Minedex,^[xxix] though it is not clear what is the legislative basis for doing so, or its legal effect.^[xxx]

3.1.2  The Role of Environmental Impact Assessment

The Mining Act mining lease process interacts with the EP Act WA process for EIA, which has some important definitions.[xxxi] The EP Act WA defines “proposal” broadly, including as a “project, undertaking or development”, and defines a “significant proposal” as one likely, if implemented, to have a significant environmental impact.^[xxxii] A “mining proposal”, as defined in the Mining Act, will often come within the EP Act WA definition of a “significant proposal”, which makes it eligible for any person to refer to the EPA to determine whether an EIA is required.^[xxxiii] A mining proposal presented under either the traditional or deferred pathway can be referred to the EPA for assessment, but only the mining lease applicant can refer a mining lease application made under the deferred proposal pathway. The EPA decides whether an EIA is needed and sets the requirements of the EIA process for each proposal in accordance with its statutory powers, administrative procedures and guidelines.^[xxxiv]

In order to make an assessment of a mining lease application, the EPA applies environmental principles set out in the EP Act WA.^[xxxv] These principles are aimed at providing direction for the EPA in meeting their objectives; namely, using its best endeavours to protect the environment and prevent, control and abate pollution and environmental harm.^[xxxvi]

Under the Environmental Protection Amendment Act 2020 (WA) (the EP Amendment Act), numerous changes have been made to the provisions of the EP Act WA, Part IV, Environmental Impact Assessment. ^[xxxvii] While none of them specifically addresses mine closure planning or the relationship between the EP Act WA and the Mining Act, three points may be made about the potential effect of some amendments on mine closure planning.

1. The amendments do not substantially amend the essential EIA process but have added greater flexibility to the EPA, and ministerial and proponent roles in EIA, such as expressly providing that the EPA may, in its assessment, “take into account other statutory decision-making processes that can mitigate the potential impacts of the proposal on the environment”. This consideration could be the basis for reducing regulation under Part IV.[xxxviii] One may ask whether the mine closure planning process under the Mining Act guidelines is a “statutory decision-making process” as the process is not defined by statute.
2. The amendments introduced EIA cost recovery fees for proponents and the requirement to consider the cumulative impacts of a proposal on the environment as part of the EIA.^[xxxix] These two new features of the EIA process likely add costs that would not be incurred under the Mining Act mine closure planning process.
3. The EP Amendment Act removed the provisions in Part IV for dealing with a proponent’s confidential information; new confidentiality provisions are in the Regulations.^[xl] It is a question for further research how the new confidentiality provisions compare with the confidentiality of the Mining Act mine closure planning process and what effect each may have on the transparency of the process.

The Part IV EIA provisions are especially important in relation to mines developed under State Agreements, which are a feature of the Western Australian mining regulatory landscape.^[xli] State Agreements are legal agreements between companies and the State Government, authorised by Acts of Parliament, and are used predominantly to facilitate large resources projects.^[xlii] They are individually negotiated and the tailored terms can allow companies exemption from several other regulatory requirements.^[xliii] Their use is declining, though many existing projects are still conducted under a State Agreement and new mines may be opened under existing agreements.^[xliv] The use of individual agreements allows for a more tailored set of requirements, such as the construction of infrastructure and closure requirements that deal with unique features of the affected region.^[xlv] Modern political discourse highlights that allowing for individual agreements can be anti-competitive.^[xlvi] The significant legal point about State Agreements is that the mining leases are granted “as of right” after a mining proposal under the State Agreement is approved, but the process of approving the proposal and granting a mining lease is removed from the Mining Act. The EP Act WA requirements of EIA are still applicable and mine closure planning may be required through that process.^[xlvii] The EPA may refer to the Mining Act mine closure plan guidelines in conducting its assessments.[xlviii]

3.1.3  Statutory Guidelines for Mine Closure Plans

The most recent Statutory Guidelines for Mine Closure Plans (the Guidelines) came into operation in March 2020.^[xlix]

The Guidelines suggest a set of standard conditions to be incorporated into the mining lease conditions on approval of the MCP for small mining operations, including that rehabilitation be “in a progressive manner where practicable” to ensure that the landforms are “safe, stable, non-polluting, integrated with the surrounding landscape and support self-sustaining, functional ecosystems or alternative agreed outcome to the satisfaction of the [relevant DMIRS officer] …”.^[l] The implication is that the outcomes will be agreed with the stakeholders consulted by the mining lessee.

For large mining operations, the Guidelines are brief and set out the structure and content requirements of closure plans but do not establish closure standards; there is not even a suggestion that rehabilitation be progressive.^[li] The closure plan must set out:

• “all legal obligations for rehabilitation and closure that will affect the post-mining land use and closure outcomes”;
• the post-mining land uses and an environmental risk closure assessment; and
• the completion criteria and closure analysis that will be used to determine whether rehabilitation and closure are successfully completed.^[lii]

There is much doubt about the legal effect of the content of the MCP. The provision in the Statutory Guideline that the MCP “must detail all legal obligations for rehabilitation and closure” cannot give legal effect to the MCP content unless the MCP purports to be some form of contract entered into with the Department. The closure plan must be approved by the Executive Director, Resource and Environmental Compliance, DMIRS, and it will be the plan setting the criteria for assessment of the mine closure, except where the plan is amended or additional conditions are set by DMIRS or through the EIA process.^[liii] DMIRS also has an Environmental Objectives Policy that provides overarching objectives for mine closure for industry, community and the Department, the principal objective being: “Resource industry activities are designed, operated, closed, decommissioned and rehabilitated in an ecologically sustainable manner, consistent with agreed environmental outcomes and post-mining land-uses without unacceptable liability to the State”.^[liv] The question, addressed in Part 4.1 below, is how are the outcomes and post-mining land uses agreed?

3.1.4  2022 Legislative Amendments

The Mining Amendment Act 2022 (WA) (Mining Amendment Act) was assented to on 28 September 2022 but its key provisions were not (March 2023) proclaimed into operation.[lv] It amends the Mining Act to replace the existing provisions regulating repair of injury to land and mine closure planning,[lvi] streamlining the process for authorisation of prospecting and exploring for minerals and for authorisation of mining operations. The Mining Amendment Act was presented as improving the efficiency of approvals processes for the industry and government, which it does.[lvii] It retains the traditional and alternative pathways for seeking approval of proposed mining activity.[lviii] However, it also strengthens the legal enforceability of the conditions of approval for mining operations, including for mine closure planning.

In summary, the Mining Amendment Act inserts “Part 4AA – Conditions and Approvals” creating four new instruments to be submitted for ministerial approval of mining activity:

1. an automated approval for an “eligible mining activity” (EMA) by the lodgement of an EMA notice to undertake prescribed activity with minimal disturbance to the surface of the land subject to automatically assigned prescribed conditions, though this could be excluded from more sensitive categories of land;
2. a programme of work authorising activity preparing for and carrying out prospecting or exploration that is not an EMA;
3. a mining development and closure proposal authorising activity preparing for and carrying out mining operations under a mining lease, the approval of which must be recorded in an approvals statement (described below); and
4. a mine closure plan for planning and reporting on the decommissioning, rehabilitation and closure of mined land, which must be lodged by a date specified in an approvals statement and include the closure outcomes.

An approvals statement records, in relation to a mining lease, the terms of an approval, including conditions and any relevant information, proposed closure outcomes and the date by which a mine closure plan must be lodged. It must be made available for public inspection. An activity must not be carried out except in accordance with one of these instruments and compliance with these approved instruments, including an approvals statement, is a condition of a mining lease.[lix] Non-compliance with a tenement condition still renders the tenement holder liable to have the mining lease forfeited or pay a financial penalty.[lx]

The instruments that pertain specifically to mine closure planning are the mine development and closure proposal, the approvals statement, and the MCP. Each must contain information regarding decommissioning, rehabilitation of land and the closure outcomes, but the MCP is described as “a planning and reporting document”. There are no amendments that guide public consultation on mine closure planning, and only the approvals statement needs to be made available for public inspection.[lxi] Unless a Government agreement (referred to above as a State Agreement) provides otherwise, these instruments do not apply to a mining lease held under the agreement.[lxii] The amendments strengthen governmental enforcement of closure planning but appear to reduce transparency and say nothing about community consultation.

3.2     Queensland

The Queensland regulatory system for mining rests on two core legislative pillars:

• The Mineral Resources Act 1989 (Qld) (MR Act Qld) administered by the Department of Resources (DoR); and
• The Environmental Protection Act 1994 (Qld) (EP Act Qld) administered by the Department of Environment and Science (DES).
  1. 1. The MR Act Mainly Regulates Resource Tenure and Infrastructure

The MR Act establishes most of the procedural aspects of acquiring mining tenure, including the process of application for a mining lease and the relevant considerations when determining whether or not to grant the application.^[lxiii] The holder(s) of an existing prospecting permit, exploration permit for coal or a mineral development licence, or a person with the consent of the permit or licence holder, may apply for a mining lease in respect of any area within their exploration tenements.^[lxiv]

An application for a mining lease must be accompanied by a Statement outlining the mining program (including the method of operation and expected start time) or outlining the alternative proposed use of the lease area (such as infrastructure).^[lxv] The application should state the resources (human, technical and financial) proposed to be committed to the mining operations and give details of the applicant’s financial and technical resources.^[lxvi] There is no express provision in the MR Act for the mining program to include an MCP, as recent reforms (discussed below, Part 3.2.2) have incorporated this requirement into the application for an environmental authority under the EP Act Qld.^[lxvii] If objections are made to the mining lease application or to a related environmental authority application, the Chief Executive of the DoR must refer the application and all objections notices, including those to the environmental authority application, to the Land Court for hearing and recommendations to the Minister.^[lxviii] In making those recommendations, the Land Court considers a range of factors that relate to the technical and financial capacity of the applicant to conduct the proposed operations and land use factors, such as whether the proposed mining operation is an appropriate use of land.[lxix]

The MR Act also sets out relinquishment requirements, which need to be considered when undertaking mine closure planning. It suffices to explain here that part of the MR Act closure requirements includes an onus on the mine lease holder either to remove all mineral and property from the area or to provide security to cover the cost of the State selling or destroying the remaining property.^[lxx]

3.2.2  The EP Act Mainly Regulates Rehabilitation of the Land and Environment

The EP Act Qld sets the environmental standards for any resource activity undertaken in Queensland, defined as including any activity that involves a “mining activity”.^[lxxi] The relevant requirements were significantly amended by the Mineral and Energy Resources (Financial Provisioning) Act 2018 which amended the EP Act Qld to require that an environmental authority for a mining activity include a “progressive rehabilitation and closure plan”, and established new financial security provisions.[lxxii] The key point here is that mine closure planning has been integrated into the Environmental Authority (EA) under the EP Act Qld, Chapter 5, administered by the DES. An application for an EA relating to a “site specific application for a mining activity relating to a mining lease [must] be accompanied by a proposed [Progressive Rehabilitation and Closure] plan” (PRC Plan).^[lxxiii]

The main purposes of a PRC Plan are to require the holder of an EA for a site-specific mining lease application to set out how and where environmentally relevant activities will be carried out to maximise progressive rehabilitation to a “stable condition” and to provide the condition to which the EA holder must rehabilitate the land before the authority can be surrendered.^[lxxiv] Land is in a stable condition if it (a) is safe and structurally stable, (b) is not causing environmental harm, and (c) can sustain a post-mining land use.[lxxv]

The EP Act Qld prescribes the form and content of the PRC Plan for achieving these purposes,^[lxxvi] including:

1. the nature and likely duration of the relevant mining activities, plus the methods and milestones for rehabilitating the land to a stable condition,
2. a proposed PRC Plan Schedule defining how and where the activities will be carried out and the “post-mine land uses” (PMLUs) or “non-use management areas” (NUMAs) to result from the rehabilitation plan, and
3. an explanation of (a) how each PMLU or NUMA is consistent with the outcome of consultation with the community and any governmental land use strategies or plans, and (b) reasons why a NUMA cannot be rehabilitated to a stable condition.

The PRC Plan Schedule may propose a NUMA only if (a) rehabilitating the land would cause a greater risk of environmental harm than not rehabilitating it, or (b) the risk of non-rehabilitation is confined to the area of the resource tenure and it is in the public interest not to rehabilitate that land to a stable condition.^[lxxvii] A specific statutory limit on proposing a NUMA is that a void situated wholly or partly in a flood plain must be rehabilitated to a stable condition.^[lxxviii] If a PRC Plan Schedule proposes a NUMA at the end of the application stage, the administering authority must ask a qualified entity to carry out and report to the administering authority on a public interest evaluation of it.^[lxxix]

The EP Act Qld, Chapter 3, also establishes a comprehensive process for an EA approval and for Environmental Impact Statements (EISs). The EA approval process has four stages: application, information, notification and decision.[lxxx] PRC Plans may be incorporated as part of or accompany an EIS before an EA application is made,^[lxxxi] in which case the information stage of the EA application will not apply unless there are proposed changes to the PRC Plan considered in the EIS process.^[lxxxii] However, if an EIS has not been undertaken before, the administering authority may require an EIS as part of the information stage of a site-specific EA application for a mining activity.^[lxxxiii] The EIS process is aimed at assessing both the adverse and beneficial social, economic and environmental impacts of a project as well as how to mitigate adverse impacts and propose an environmental management plan.^[lxxxiv]

There are detailed criteria for the DES to consider when deciding to approve a PRC Plan.^[lxxxv] In deciding whether to approve the PRC Plan Schedule, the DES must carry out an objective assessment and may only approve the Schedule if each PRC Plan objective can be achieved according to the Schedule. There are also criteria for assessing progressive rehabilitation of PMLUs or improvement of NUMAs. In summary, the detail of regulatory guidance for approval of a PRC Plan is remarkable, including in the way it links the regulation of rehabilitation under the EA to approved land use.

There is a further requirement under the Strong and Sustainable Resource Communities Act 2017 (Qld) (SSRC Act) for any resource project which requires an environmental impact assessment also to conduct, and make publicly available, a social impact assessment.^[lxxxvi] The operation of this legislation seems mostly relevant to State significant mining projects that come within the jurisdiction of the Coordinator-General under the State Development and Public Works Organisation Act 1971 (Qld). The Coordinator-General operates independently of, but alongside, the DES and the DoR to conduct a preliminary assessment of significant projects.^[lxxxvii] Any project that requires an environmental or social impact assessment must be approved by the Coordinator-General.^[lxxxviii]

The Social Impact Assessment Guideline sets out the relevant considerations when assessing the issues that affect the local people and communities in proximity to a proposed project, including impacts on:

• culture, history and ability to access cultural resources;
• communities’ physical safety, exposure to hazards or risks, and access to and control over resources;
• communities’ quality of life including liveability and aesthetics, as well as the condition of their environment (for example, air quality, noise levels, and access to water); and
• livelihoods, for example, whether peoples’ jobs, properties or businesses are affected, or whether they experience advantage/disadvantage.^[lxxxix]

The above impacts are those most likely to be relevant to closure planning and the ability of applicants to demonstrate management and mitigation measures for any social impacts identified can have a bearing on the Coordinator General’s decision to grant project approval. Each proposed mitigation measure must also identify any residual impacts and how these might be addressed.^[xc]

1. 3. Victoria

The Mineral Resources (Sustainable Development) Act 1990 (Vic) (MRSD Act) is the chief Act regulating mining and mine closure in Victoria. It is administered by Earth Resources Regulator (ERR), part of Resources Victoria, which sits within the Department of Energy, Environment and Climate Action (as of March 2023).

The minerals production tenement is called a mining licence. The MRSD Act prescribes the process for applying for the grant of a mining licence, including special provisions for the grant of mining licences relating to coal.^[xci] The licence application must describe the mineral resource and contain all the details required by the Regulations,^[xcii] and the licence may include conditions about rehabilitation of the land and about the elimination and minimisation of risks to the environment, to the public, or to land or infrastructure in the vicinity, and protection of groundwater.^[xciii] However, the true regulation of the proposed mining project operations comes through the work plan, application for and approval of which occur after the grant of a licence.

Most major mining proposals are likely to engage with two statutes administered by the Department of Transport and Planning (DTP) and the Minister for Planning. The Environment Effects Act 1978 (Vic) (EE Act) may require an integrated environmental impact assessment through the preparation of an Environmental Effects Statement (EES). The EES process is discussed further in part 3.3.2 below. The Planning and Environment Act 1987 (Vic) (PE Act) governs land use planning and provides that mining projects must gain planning permission under the local planning scheme, except where an EES has been undertaken, or a planning scheme amendment.^[xciv]

The Environment Protection Act 2017 (Vic) (EP Act Vic) provides the framework for the protection of human health and the environment from pollution and waste and is administered by an independent Environment Protection Authority (EPA). After a mining licence is granted, mining work plan applications must be referred to the EPA.

3.3.1  MRSD Act Process

The MRSD Act together with the Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (Vic) (MRSD (Mineral Industries) Regulations)^[xcv] establish the process for a mining licence application. An application must include, among other things:

• a description of the mineral resource that will be economically viable to produce;[xcvi]
• details of the proposed program of work for each year of the licence, which would necessarily indicate when closure is planned and a schedule for the commencement of mining (but not a detailed schedule for the cessation of mining);[xcvii] and
• details of the applicant’s experience in mining works and associated rehabilitation.[xcviii]

A mining licence will entitle the holder to explore for minerals, undertake mining on the licensed land and construct any necessary or incidental facilities required to do so.^[xcix] When considering whether or not to grant a licence, the Minister must determine whether the licence holder is “fit and proper”.^[c] In doing this, the Minister will have regard to whether ERR has previously had to take action to rehabilitate land due to the applicant’s failure to comply with its rehabilitation requirements under the MRSD Act, whether the applicant has previously had a licence cancelled, or whether the applicant has been convicted of an offence involving fraud or dishonesty.^[ci] The licence can be granted without a mine closure plan. In summary, the licence is an allocation of mineral rights and confers the right to apply for work plan approval.

A mining licence holder must not do any work except in compliance with the licence and approved work plan.^[cii] The work plan includes detail of all work to be undertaken,^[ciii] risk management measures,^[civ] the rehabilitation plan,^[cv] a community engagement plan^[cvi] and other matters required by the Regulations.[cvii] For example, the Regulations specify details for the information and management plans for the items identified above, including rehabilitation, risk management and community engagement.^[cviii] The requirements for the work plan are significantly more detailed than for the licence application, so a significant amount of detail about mining methods and impacts will only be available after the licence has been granted.^[cix]

The Department Head decides whether to approve a work plan, which must “be appropriate in relation to the nature and scale of the work proposed to be carried out”.^[cx] The Department Head can require changes to a work plan or rehabilitation plan, and may approve with or without conditions or refuse to approve.^[cxi] The Department Head must decide the work plan application within 28 days after notice that a range of consultative procedures have been completed.[cxii] Some important additional requirements apply to coal mines and “declared mine land rehabilitation”.[cxiii]

The rehabilitation plan is a distinct document to be approved during the work plan approval process and forms part of the work plan. Its content is defined by both statute and regulations, with a primary consideration being “the desirability or otherwise of returning agricultural land to [its pre-mining licence] state”.^[cxiv] The mining licensee must rehabilitate the land in accordance with the approved rehabilitation plan^[cxv] and the owner of the underlying land may request the licensee to make a written agreement as to the rehabilitation plan.^[cxvi] The rehabilitation plan requires a description of proposed post-mining land uses (with a consideration of community views), proposals for the “progressive rehabilitation, stabilisation and revegetation of extraction areas, waste disposal areas and other land affected by the mining work”, and how any landforms will achieve “complete rehabilitation”, being “safe, stable and sustainable” and capable of supporting the proposed post-mining land use.^[cxvii] The rehabilitation plan must also define the criteria for measuring whether those objectives have been met, a schedule for rehabilitation milestones and an assessment of residual risks that rehabilitated land may pose to the environment, any member of the public or surrounding land, property or infrastructure.[cxviii]

The question arises whether the language used in the Regulations for achieving “rehabilitation”, including “proposed land uses for the affected land after it has been rehabilitated”, encompasses repurposing of mine assets. The answer may lie in various legislative provisions. First, the post-mining landform must be “safe, stable and sustainable”.[cxix] This means that the post-mining landform:[cxx]

1. is not likely to cause injury or illness; and
2. is structurally, geotechnically and hydrogeologically sound; and
3. is non-polluting; and
4. aligns with the principles of sustainable development.

In applying that definition, ERR has regard to the principles of sustainable development outlined in s 2A of the MRSD Act.[cxxi] Those principles include (a) “community wellbeing and welfare should be enhanced by following a path of economic development that safeguards the welfare of future generations”, and (h) “development should make a positive contribution to regional development and respect the aspirations of the community and of Indigenous peoples”.

It is feasible to say that mine legacy landforms may be repurposed for rehabilitation purposes but the language of these principles and of the Regulations does not clearly address the question of repurposing of assets and the residual risks that may arise.

3.3.2  EES and Land Use Planning Processes

A mining proposal, in the form of a work plan or proposed variation of a work plan, that is likely to have a significant impact on the environment at a regional or State level, will be required to go through an Environment Effects Statements (EES) process, which is administered by the Minister responsible for the EE Act (Planning Minister).^[cxxii] There is a variety of ways in which an EES for a mining project can be required, including:

• a proponent of works can seek the advice of the Planning Minister as to whether it needs to prepare an EES;^[cxxiii]
• a decision-maker considering a mining work under the MRSD Act (or another Victorian Act such as the EPA under the EP Act Vic) may refer the matter to the Planning Minister for advice as to whether an EES is required;^[cxxiv] and
• the Planning Minister may also independently call for an EES or supplementary EES.^[cxxv]

Importantly, once the Planning Minister has determined that an EES is required, other decision-making processes will be suspended until the EES process is completed.^[cxxvi]

The Ministerial Guidelines for the Assessment of Environmental Effects under the Environment Effects Act 1978 (Guidelines) establish what an EES should contain and how an EES is assessed. An EES must take an holistic, integrated approach and consider the impacts of the proposed activities on physical and ecological systems, human communities and land use, and economic interests.^[cxxvii] Within that context, cumulative and indirect effects must also be considered to the extent that existing knowledge will allow.^[cxxviii] The EES must include a management framework addressing the effects and risks identified and establish the standards against which the success of that framework will be measured.^[cxxix] Adaptive management approaches are encouraged, but the Guidelines note that such an approach must be accompanied by effective, regular monitoring.^[cxxx]

Significantly, the EES process requires public notification and consultation, and part of the assessment process requires the Planning Minister to determine the form and extent of public review required^[cxxxi] – this is discussed in further detail below. Following the public review, the Planning Minister will provide a final assessment of the EES. This assessment is not an approval decision; rather, it is an assessment that other decision-makers must consider when granting or refusing to grant relevant approvals of works, such as for the mining licence work plan and rehabilitation plan.^[cxxxii]

The PE Act provides land use decision-making guidance through the State Planning Policy Framework and relevant Local Planning Policy Frameworks. Where the project requires a planning scheme amendment, the amendment will generally be publicly exhibited in conjunction with the relevant EES.^[cxxxiii] An application for an EP Act Vic development licence will usually also be exhibited simultaneously with the EES. A work plan cannot be approved until all required planning approvals have been granted or the Planning Minister has submitted the EES assessment.^[cxxxiv] Where an EES is not required but a planning permit is required, the MRSD Act provides a statutory endorsement process to integrate a work plan (or work plan variation) approval process with the PE Act planning permit process in order to avoid duplication.[cxxxv]

Overall, the Victorian mine work and rehabilitation planning approvals process integrates the MRSD Act processes with the EES and land use planning procedures.

3.4     Comparison of Key Elements of the Mine Closure Planning Process

All three jurisdictions have regulatory frameworks for mine closure planning that utilise statute, regulations and guidelines. The Queensland legislation is the most comprehensive and detailed in all three forms of these instruments and, potentially, the most complex to administer but likely the most certain in its regulatory requirements. The Victorian legislation has key powers and propositions in the MRSD Act and relies on regulations to provide the substantive detail for the mine closure planning content and process. The Western Australian legislation is the least comprehensive and the least certain in the standard regulatory requirements. Uniquely, it relies very much on guidelines that have a simple form of statutory recognition and doubtful legal force, though this will change when the 2022 legislative amendments are implemented. State Agreement mines are exempt from the standard requirements.

The mine closure planning process across the three jurisdictions features some significant common elements and some key differences.

1. All three require mine closure planning to be undertaken before mining operations can commence, but there are important differences.

1. Queensland requires the environmental authority and PRC Plan to be approved at the same time as the grant of the resource tenement and has separate government agencies administer separate resources and environmental legislation for the resource tenure and environmental authority approvals.
2. Victoria provides for the grant of the mining tenement with minimal proposal information and a subsequent work and rehabilitation plan approval process defined in detail by statute and regulations that are administered by the resource agency administering the resource tenure, but including some integration with the environmental protection and land use planning regimes.
3. Western Australia provides alternative pathways under the Mining Act for approval of a mining proposal and mine closure plan: (i) the traditional pathway through grant of the mining lease by which the mining proposal and closure plan can be tested by objections in the Warden’s Court; and (ii) a deferred proposal pathway that defers presentation and approval of the mining proposal and mine closure plan to a bureaucratic process conducted after grant of the mining lease, defined only by guidelines of uncertain legal effect, and administered by the same resource agency that administers resource tenure. Large mining projects are often regulated under State Agreements that avoid the Mining Act process but may, through the EIA process, apply the closure planning guideline.

2. All three provide for an EIA process to be conducted for projects with significant environmental effects, though the institutional and procedural design of the EIA varies greatly.

1. Queensland administers the statutory EIA process under the same EP Act Qld and through the same environment agency as administers the environmental authority.
2. Victoria links the mining work and rehabilitation plan process to the EES process conducted under separate legislation by a separate planning department producing a ministerial recommendation to inform approval of the plan under the MRSD Act.
3. Western Australia conducts EIA of significant proposals by a separate independent EPA on referral from DMIRS, the resources agency, with final approval given by joint decision of the Environment Minister and the Resources Minister. EIA is the only basis for requiring mine closure planning for State Agreement mines.

3. All three provide soft law guidance for the preparation and approval of the mining proposals and rehabilitation plans, but Queensland and Victoria provide detailed regulations to set a legal framework for the process and outcomes, whereas Western Australia presently provides only soft law guidance on the process of mine closure planning and execution with no substantive statement of the expected outcomes. The Western Australian 2022 amendments will, when implemented, strengthen the legal basis for closure planning, but they lack a statement about the goals of mine closure planning, may reduce transparency, and do not address community consultation.

4. Community Engagement – Rights to Information and Comment

This part will consider to what extent each of the above approvals processes facilitates effective community engagement with mine closure planning, with a focus on the initial approval procedures.

4.1     Western Australia

Under the Mining Act, there are three main forms of notice of a mining lease application:

1. notice by the applicant to landholders and local government affected by the lease application;^[cxxxvi]
2. notice by the Registrar on the notice board of the Registrar’s office;^[cxxxvii] and
3. notice by the Director-General on the Department’s website.^[cxxxviii]

Access to the application documents requires further steps. The Mining Act requires that all documents that comprise a mining lease application and any document accompanying a mining lease application must be made available for public inspection by the Director General of Mines at “reasonable times”.^[cxxxix] The Director General of Mines is the chief executive officer of the DMIRS.^[cxl] “Reasonable times” is not defined but would be subject to existing legal standards of reasonableness. Mining regulations can require a fee be paid for inspecting or obtaining a copy of a document from a mining application; the prescribed fees are minimal.^[cxli]

It is important to distinguish between the community consultation rights under the traditional statutory procedures for the grant of a mining lease and the lack of clear rights under the deferred proposal pathway.

The Mining Act provides that “any person” may object to the grant of a mining lease.^[cxlii] Objections are lodged either at any Mining Registrar’s office or online using the Mineral Titles Online forum.^[cxliii] If an objection is lodged within the procedural requirements of the Mining Act, then the Warden may hear the application for the mining lease and give any person who filed an objection an opportunity to be heard about the granting of that lease.^[cxliv] An objection can be based on public interest grounds, including on environmental impacts.^[cxlv]

Where an application is made using the deferred proposal pathway, which is almost always,[cxlvi] there are limits on the objections that can be made. An objection cannot be filed on the basis that there is no significant mineralisation in the land referenced in the application.^[cxlvii] Objections lodged on environmental or socio-economic grounds are limited to the existing information about such impacts as provided in the application and, if the application uses the deferred proposal pathway, much information would be absent due to the lack of mining proposal. The limitation this imposes on competing land users in the Warden’s Court process is highlighted in a recent case where a pastoral company made objections seeking more detailed mining lease conditions than those proposed by DMIRS.[cxlviii] The “key thread” running through the pastoralist’s objections “was a complaint as to the absence of information as to what the Applicant’s detailed mining proposal might entail”, to which the Applicant replied it was entitled to do so by the Mining Act.[cxlix]

With the deferred proposal pathway, the mining proposal is not submitted to DMIRS for assessment until after a lease application has already been granted – the proposal is, therefore, not part of the lease application and so the proposal and its mine closure plan do not have to be made available under the Mining Act for public inspection prior to being approved. DMIRS maintains a publicly accessible register of mine applications but does not provide opportunity to comment through that register.[cl] Current policy documents for the deferred proposal pathway do not require public notification of, or consultation on, an MCP.[cli] The MCPs are made publicly available on the DMIRS website following approval. The relevant Statutory Guidelines require that a mining proposal contain information on consultation with stakeholders and a strategy for ongoing engagement.[clii] Thus, while an applicant using the deferred proposal pathway should expect to demonstrate to DMIRS some degree of community consultation, there is no legally enforceable process for public disclosure of the mining proposal and closure plan, and there is no statutory process before a Warden’s Court or otherwise by which community comments and objections may be made independently of the mining lessee and considered by the decision-maker.[cliii] Research is needed to ascertain if third parties believe that they have adequate opportunity to make effective submissions on mining proposals and closure plans via the deferred proposal pathway process.

The land use planning system offers no alternative for community consultation. When granting or renewing a lease, the Minister, Warden or Mining Registrar should take into account any planning schemes and any local government objections on that basis.^[cliv] However, a contradiction of a planning scheme and mining lease is not fatal to the granting of the lease if the Minister considers it appropriate and has taken into account the effects of the prospective lease on the scheme.^[clv]

Should a mining proposal and closure plan be referred to the EPA for EIA, the EPA facilitates public comment in administering its procedures under the EP Act WA; that is, there is public consultation on whether or not a mining proposal should be assessed and, if so, there will be further consultation on the environmental review document published by the proponent.^[clvi] The EPA does this through its online consultation hub.^[clvii] Further, any person may appeal to the Minister for Environment against an EPA report assessing the mining proposal.^[clviii] Another research question is what proportion of mining proposals and closure plans are referred to the EPA and, of those referred, how many are assessed with a public consultation process?

There are additional rights for landholders with intensive land use interests in Crown land to be notified or consulted before a mining lease holder conducts mining exploration or production activity on such land. The mining lessee requires the written consent of the landholder before undertaking mining activities on Crown land that is under a form of intensive land use (e.g., crop, orchard, stockyard, water works, plantation, airstrip, house, or other substantial building) or must give the landholder notice before passing over Crown land within a buffer area of such land use areas in order to access the tenured land.[clix] In such situations, the mining lessee must take special care and make good any damage, including by compensation. There may be situations where a landholder on the Crown land may still wish to make objections as to the conditions appropriate to protect their broader land use, and the effectiveness of the legal process will be important.

In contrast, a mining lease over private land with such intensive uses may only be granted with the consent of the landholder, who is entitled to orders of restoration or a determination of compensation for damage to or loss of use of the land.[clx] Further, there are ministerial and parliamentary consent requirements for the grant of a mining lease or conduct of mining activities on special classes of public reserve land (e.g., national parks and nature reserves, marine foreshore, navigable areas and town sites),[clxi] and such consents may be subject to conditions for management and compensation.[clxii] While private landholders clearly have stronger rights to agree with a mining lessee the terms of rehabilitation, they could still benefit from a capacity to make informed objections to a mining lease application. Those concerned with public interest objections could find submissions through the Warden’s Court process an effective way to test the terms of an application and inform or influence the ministerial and parliamentary consent process.

4.2     Queensland

The Queensland legislation for community engagement in mine closure planning contrasts greatly with that of Western Australia.

After filing an environmental approval (EA) application with an accompanying PRC Plan, the administering authority is provided with an initial opportunity to request further information.^[clxiii] This stage can last years, as the applicant must be given at least six months to respond to a request, and at least two years if that request includes the requirement for an EIS.^[clxiv] It is largely at the discretion of the applicant to provide the information, provide partial information, or provide no information, though this will be taken into account in determining whether an approval is granted.^[clxv] As set out above in Part 3.2, there are extensive notification requirements during both the EA and EIS processes, which include that public notification must be given of the proposed terms of reference and the final EIS. Those notices must include comprehensively prescribed content, including information about how to submit comments on the EIS, which informs the exercise of the public right to make submissions on a submitted EIS.^[clxvi] During the EA process, the applicant must provide public notification of their PRC Plan – that is, making the PRC Plan available for the public to review and, if they choose, to send a written comment to the administering authority during a designated submission period.^[clxvii] The MR Act requires the applicant to publish the notice in a newspaper and give notice to “every affected person”.^[clxviii] The EP Act WA also requires the applicant to have the application documents publicly available on its website and physically available for inspection during its normal office hours.^[clxix] Public notification is not required where there has been an EIS provided that included community consultation, and no changes have been made to the PRC Plan since.^[clxx]

Under the EP Act WA, if the administering authority decides to approve an application for an EA (and the accompanying PRC plan) relating to a mining lease, a legal person making a submission in respect of that application may provide written notice that their submission is to be considered an objection to the application.^[clxxi] If such an objection notice is provided within 20 business days of the decision being made available to the public, the objection must be referred to the Land Court.^[clxxii] Objections to the grant of a mining lease or EA may be made to the Land Court on the grounds of impact on human rights protected by the Human Rights Act 2019 (Qld).^[clxxiii]

There is some industry concern that the community right to make submissions persists irrespective of the significance of any amendment to the proposed licence or its conditions being requested by an objector.[clxxiv] If the submitting party requests that their submission be taken to be an objection to the application after the administering authority’s approval of an application, that objection must be referred to the Land Court, no matter how minor. There are examples of objections that were not well articulated or supported by evidence, including fears about the miner’s unsatisfactory past performance and uncertainty for future rehabilitation, proceeding to the Land Court.^[clxxv] However, this industry concern must be balanced against the benefits of maintaining community consultation procedures in the context of mine closure. The outcomes of the lengthy court proceedings leading to the recommendations and reasons of Member Stilgoe in New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc (No 2) [2021] QLC 44 (17 December 2021) affirm the value of strong community engagement procedures that include objections before the Land Court. While Member Stilgoe rejected many of the objections on conditions and recommended approval of the coal mine extension, she expressed respect for the objectors’ views, understanding of their frustration and mistrust of the applicant, and cited resulting changes in the applicant’s conduct at [84]-[85], [97]-[98], [182]-[183].

After an EA or PRC Plan Schedule has been approved and issued, the administering authority must include a copy of it in the relevant register.[clxxvi] Amendments, including to the PRC Plan Schedule, must be made publicly available.

4.3     Victoria

Victoria has extensive requirements for notification and public comment in relation to mining licence applications, and associated EES and planning approval processes. There are various procedures for granting coal mining licences (by the Minister, the Governor-in-Council and by tender); our explanation focuses on the primary mining licence process and the procedures for determining the subsequent works and rehabilitation plan.^[clxxvii]

4.3.1  Consultation under the MRSD Act

The mining licence applicant must publicly advertise the application and give specific notice of it to the owner and occupier of affected land.^[clxxviii] The advertisement and notice must include how to make an objection, a description of the rights under a mining licence, further statutory requirements before mining may be carried out, details of a proposed program of work and how the applicant will manage impacts of the proposed work on the community (including landholders) and the environment.^[clxxix] The Department Head must also give specific notice of the application to persons nominated under the Aboriginal Heritage Act 2006 (Vic) and the Executive Director under the Heritage Act 2017 (Vic).^[clxxx]

Any person may object to, or make a comment on, a mining licence application within 21 days after the last date on which the application was advertised.^[clxxxi] Within 120 days of an application for a mining licence being accepted, the Minister may grant or refuse the licence after considering the objections and comments.^[clxxxii] The process seems to be entirely within the management of the relevant agency and Minister. However, the Minister may appoint a panel to consider and advise on any matter related to mining and the administration of the MRSD Act that is referred by the Minister to the panel.^[clxxxiii] The panel may regulate its own proceedings and may seek written submissions and/or conduct public hearings. The panel reports to the Minister with recommendations within 60 days. The MRSD Act does not specifically state whether a panel could advise on the grant of a mining licence. However, the breadth of its general remit suggests that the Minister could seek a panel’s advice on almost any aspect of MRSD Act administration and the 60 days’ time limit on its functions could fit within the time limit for the grant of a mining licence. If so, this would provide an independent and expeditious process under the MRSD Act for a public hearing and determination of objections and comments on the grant of the mining licence. There is the opportunity to consider, in broad terms, the impacts of the proposed mining operations on the surrounding community and environment, and the conditions to be imposed on a mining licence may relate to the rehabilitation of land, the management of risks to the local environment and community, and protection of groundwater.^[clxxxiv]

In addition, it is technically possible that a member of the community who is directly affected, or likely to be directly affected, by work under a licence could refer a dispute between the community member and the department to the Victorian Mining Warden about, for example, the grant or administration of a mining licence.[clxxxv] However, there is some research to suggest that this process does not, at least in practice, cover general third-party objections to the grant of a mining licence.[clxxxvi]

The MRSD Act provides for further general and specific consultation before the mining licensee may commence work under the licence.^[clxxxvii] Three key points should be mentioned here. First, the detailed consideration of the plan of operations and rehabilitation comes with the process for approving the work and rehabilitation plans. There is no right under the MRSD Act for the public to make a submission on a work plan or variation to a work plan. However, a mining licence holder has a statutory duty to consult with the community throughout the period of the licence by:

1. sharing information about any activities authorised by the licence that may affect the community; and
2. giving members of the community a reasonable opportunity to express their views about those activities.^[clxxxviii]

Further, the Regulations give detailed guidance on the information that the work plans must contain to comply with the duty to consult the community, including how the licensee will receive feedback from the community.^[clxxxix] Secondly, if the land affected by the mining works is private land, the licensee must obtain written consent to the mining from the landholders (owners and occupiers) and have registered compensation agreements with them.^[cxc] Thirdly, the Minister must consult with the municipal council (local government authority) and land owner before determining the amount of a rehabilitation bond.^[cxci]

4.3.2  Consultation under Other Acts

Arguably, what is missing from the procedures under the MRSD Act is the careful consideration of the public interest factors relating to environmental protection and land use planning. The most significant public notification requirements are part of the EES and planning approval processes as opposed to the mining licence application process discussed above. A general objective of the EES process is to provide public access to information on potential environmental effects of a project and the ability to make a submission on the proposal.^[cxcii] All projects referred to the Planning Minister for a decision about whether or not an EES is required, and relevant Ministerial decisions and reasons, will be listed on DTP’s website, together with relevant project documentation.^[cxciii]

When the Planning Minister determines the requirement for an EES, they will also determine the process for the EES, which usually includes public exhibition of the EES and a public hearing. The EES will usually be notified in at least one daily newspaper, the relevant local regional newspapers, and the Engage Victoria website. The exhibition period is usually 20 to 30 business days^[cxciv] with public access to a copy of the EES provided as the Minister specifies.^[cxcv] Where a planning permit, planning scheme amendment or development licence is needed, these will also be exhibited concurrently with the EES documents.^[cxcvi]

Where a planning permit or a planning scheme amendment is required for a proposed mining project, the public may make submissions under the PE Act to the relevant authority who must consider all submissions. A submission may be rejected if the relevant authority considers it to have been made to obtain a commercial advantage.^[cxcvii] Where a written objection is received, the affected person may then apply to the Victorian Civil and Administrative Tribunal to have a decision reviewed.^[cxcviii] If the mine also requires a development licence under the EP Act WA, it will be advertised and the public are able to make submissions.^[cxcix]

Some of the Victorian administrative institutions also assist in facilitating public consultation through soft law mechanisms. It is the role of the Mine Land Rehabilitation Authority to prepare a monitoring framework and evaluation method that can be used to assess the effectiveness of rehabilitation strategies, in consultation with community and public sector bodies as well as other stakeholders.^[cc] Victoria maintains a mining register, which records mining licences, approved work plans and rehabilitation bonds, but not rehabilitation plans.^[cci] However, only the basic details of these documents are provided on the register and, for example, the full work plan and the rehabilitation plan are not included on the register. Victoria’s publication of EES and mining licence documents currently do not allow for especially easy access as there is no centralised database.

4.4     Comparison of Community Engagement Rights

Key community engagement rights are rights to receive information and to comment on the proposed instruments before they are granted or approved. Again, we see that there are some quite significant differences between the three jurisdictions.

Perhaps the most significant difference is the statutory transparency and certainty of the Queensland procedures for community rights in relation to the grant of resource tenure and the environmental authority. Neither instrument may be granted until there has been a full community consultation process that involves effective public notice, opportunities to make submissions, rights to object and have the objections to both instruments determined simultaneously and independently in Land Court proceedings that lead to public reasoned recommendations to the respective decision-makers, who must consider them. Both instruments have direct legal effect.

By contrast, Victoria and Western Australia have developed resource tenure systems that by clear statutory design (Victoria) and by prevalent practice (Western Australia) lead to the grant of the resource tenure before an application is made for approval of a detailed mining proposal and closure plan (work and rehabilitation plan in Victoria). In both States, the resource tenement application must provide some information about the mineral resource and the proposed program of work, and there is the statutory capacity for both States to issue the resource tenement with general conditions relating to rehabilitation. The key difference between these two States is that Victoria’s regime for work and rehabilitation plan approval is provided in detailed legislation, including a licensee’s statutory duty of consultation and potential for an independent panel investigation. Western Australia’s prevalent regime is described by statutory guidelines of dubious legal effect that give control of community consultation to the mining lease holder subject only to the bureaucratic oversight of DMIRS (the mining agency). Further research is needed to ascertain industry practice in implementing these guidelines and to understand perceptions of the practice by industry, government and community.

The legal effect of the rehabilitation or closure plan is also different. In Victoria, the mining licensee must rehabilitate the land in accordance with the approved plan. In Western Australia, there is the current potential to make compliance with an approved MCP a condition of the mining lease, but the practice is uncertain. The Mining Act amendments in 2022 (not yet in operation) will better secure the legal effect of an approved mine development and closure proposal, though with less transparency as only the approvals statement will be open for public inspection, not the actual closure plans. It is also notable that the 2022 amendments say nothing about community consultation on the mine closure planning process.

Both States may trigger EIA of the mining (work) proposal and closure (rehabilitation) plan. Both States’ EIA legislation provides for extensive community consultation, though there are significant questions about how often the EIA process will be required for mine closure planning – this is a question for further research. Western Australia’s legislation provides greater guidance for an independent assessment by the EPA informing a Ministerial regulatory decision that prevails over the mining lease, while Victoria’s EES process appoints an inquiry and advisory committee that reports to the Minister for Planning who gives an advisory recommendation to the Department Head who approves the work and rehabilitation plan.

5. Conclusion

The regulation of mine closure planning grapples with a multitude of competing interests of government, industry and various community stakeholders seeking to address the broadly defined goals of closure, rehabilitation and repurposing. These competitive tensions influence the development and practice of regulation. As with most fields of law, there is a constant need to “catch-up” to industry, scientific standards and community expectations.

This article has considered the existing regulatory frameworks in three very different Australian States, all of which rely on their mining industries. Some comparative themes emerge from our analysis of mine closure planning, with a focus on the initial approval stage. We have identified key differences in the essential requirements for closure plan approval, especially in relation to community engagement rights of notification and participation. It has not been possible to explore here the process of ongoing mine closure planning, including for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment. Similar questions will arise.

First, while there is a clear need for regulatory requirements to be legally enforceable and incentivise responsible and comprehensive planning, there is a competing need for flexibility and evolution as the mine life cycle progresses and the environmental, cultural and social motivations for closure outcomes evolve. Addressing these goals will benefit from more certain definitions of core concepts and their roles in discerning key goals in mine closure planning. A notable definitional difference between the three jurisdictions is that Queensland and Victoria spell out the central goal of progressive rehabilitation in similar legislated terms to require a rehabilitated site to be safe and structurally stable, not causing pollution or environmental harm, and supporting a sustainable post-mine land use. Western Australia lacks a legislated definition of these core outcomes, even in the 2022 amendments, and says nothing about progressive rehabilitation.

Second, there is a clear contrast in the regulatory rigour of the three States’ mine closure regimes. All three States require a rehabilitation and closure plan to be presented and approved before mining operations can begin, but there are significant differences in the law and policy means for regulating those requirements. Queensland spells out the procedures and community consultation rights in detailed legislation (statute and regulations), as well as guidelines, that require approval of the Progressive Rehabilitation and Closure Plan and Schedule as part of the EA administered by the DES under the EP Act Qld before the resource tenure may be issued. There is also an additional source of legal credibility in the Queensland system in that the rehabilitation and closure plan is incorporated into the EA administered by the DES, rather than the agency responsible for the issue of resource tenure.

Western Australia and Victoria require the rehabilitation and closure plan to be approved, often with environmental impact assessment, after the resource tenure is issued and before work begins. But they differ greatly in the level of legislative definition in the requisite procedures and the ultimate legal effect given to the resultant rehabilitation and closure plan. The Victorian process is spelled out in legislation (the MRSD Act and detailed regulations) with supplementary non-statutory guidance. The Western Australian regime, being defined by “statutory guidelines” of uncertain effect, lacks enforceability and, perhaps, legal credibility. In Victoria, the mining licensee must rehabilitate the land in accordance with the approved plan, whereas in Western Australia the 2022 amendments still make compliance with an approved mine development and closure proposal (and subsequent mine closure plan) a condition of the mining lease, breach of which raises the spectre of lease forfeiture or a modest $50,000 penalty. The risk of forfeiture may incentivise competition between miners for resource tenure, but the legal logic of forfeiture does not suggest an effective incentive to fulfil mine closure commitments owed primarily to the local communities. A full discussion of enforceability was beyond the scope of this article.

Third, there is a stark difference in how the three jurisdictions address rights of community engagement, which extends beyond impacts on landholders directly affected by mining activities proposed on their land to include broader public interest environmental concerns and community socio-economic concerns for post-mining land use. All three States define rights and procedures for community consultation on rehabilitation and mine closure planning. Again, Queensland has the most comprehensive regulation whereby the detailed legislative provisions of the EP Act Qld integrate with the procedures of the MR Act to secure robust opportunities for community engagement. Neither the resource tenure nor the EA (incorporating the progressive rehabilitation and closure plan) may be granted until there has been a full community consultation process that involves effective notice, opportunities to make submissions, rights to object to draft decisions and have the objections to both instruments determined simultaneously and independently in Land Court proceedings that lead to public reasoned recommendations to the respective decision-makers, who must consider them.

Victoria and Western Australia provide less secure rights of community engagement that are administered primarily through the mining legislation (unless environmental impact assessment is required). The Western Australian Mining Act regime creates a deferred proposal pathway to the grant of a mining lease that is considerably weaker in community engagement rights because almost the entire process is defined by statutory guidelines of dubious legal effect that relegate community engagement to lease holder responsibility with merely bureaucratic oversight. Further research is needed into the industry practice of consultation under the guidelines and the influence of EIA on general mine closure planning. Could objector communities in WA look elsewhere for a better definition of consultation process, such as in the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct?[ccii]

How would members of industry respond to a move towards legally stronger rights of community engagement and objection? Similarly, how does industry respond to multiple authorities being required from separate regulatory bodies, such as the separate administration of resource tenure and rehabilitation regulation in Queensland? Greater regulatory rigour can improve industry certainty and create predictable outcomes, ultimately reducing the burden on enforcement bodies. Whether it is better to prioritise clear legislated parameters for mine closure planning may be akin to “measure twice, cut once”. Further, a significant gap in the legislative frameworks, especially in Western Australia, is the need to address the social transition of mining communities in regions where there are pressures for long-term changes in the mining economy. Comprehensive, consultative planning now is the key to well-balanced closure, rehabilitation and repurposing in the future.

In closing, we reiterate our opening question: why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Industry and government agencies could reflect on the legislative changes they have pursued since the Supreme Court strongly affirmed environmental objections in the Warden’s Court in the late 1990s. Do the circumstances of the Western Australian mining industry warrant much less legal definition of the rights and responsibilities for community consultation, including on mine closure planning?