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  QUEENSLAND’S MINE REHABILITATION REQUIREMENTS FOR VOIDS: ENSHAM CASE STUDY

  The State of Queensland reformed its mine rehabilitation legislation, namely the Environmental Protection Act 1994 (Qld) (EP Act), in 2018 through the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld) (MERFP Act). A case study of the Ensham open-cut coal mine[i] in central Queensland highlights three issues for the efficacy of this regulatory framework.

  The first issue concerns an available exclusion of rehabilitation requirements for existing mining voids (the area of excavation created by open cut mining) in flood plains. Under the EP Act, as amended by the MERFP Act, a holder of an environmental authority (EA) may, in its Progressive Rehabilitation and Closure Plan (PRCP) and PRCP Schedule, identify land as a Non-use Management Area (NUMA).[ii] This is land that would not be rehabilitated “to a stable condition” and not have a post-mining land use. This rehabilitation exception as a NUMA is not applicable to mining voids wholly or partly in flood plains – these must be rehabilitated to a “stable condition”,[iii] as defined in the EP Act. This is the “section 126D(3) rehabilitation obligation”.[iv] However, the transitional provisions of the mining rehabilitation reforms differentiate the rehabilitation obligations of pre-existing mines (those existing at the time of the reforms, such as the Ensham Mine) and new site-specific mines.[v] Pre-existing mines with a “land outcome document” that presents an outcome similar to a NUMA can establish criteria for rehabilitation or management of a void in a flood plain that supersede this section 126D(3) rehabilitation obligation.[vi]

  The MERFP Bill Explanatory Notes for the transitional provisions reveal that this exemption from section 126D(3) “does not retrospectively breach existing rights and provides certainty to industry on the transitional process”.[vii] However, this grandfathering is arguably disconnected from environmental risks of such residual voids, creating two classes of mines based on the timing of a mine’s existence (pre-existing versus new). This Ensham case study provides an example of a pre-existing mine’s use of a “land outcome document” to exempt rehabilitation of residual voids in a flood plain but without clarity around the non-use management status of the area of the residual voids.

  The second issue discussed in this case study is progressive rehabilitation. The design of a financial assurance system to increase progressive rehabilitation was “a clear objective of the EPA’s work in 2004”, yet the EP Act fell short by failing to clearly outline criteria for certification of final rehabilitation for industry, and a scheme of refunding financial assurances at the termination of mining activity.[viii] These issues remained unaddressed until the 2015 State election when the then Labor Opposition ran on the campaign “[to] investigate the expansion of upfront rehabilitation bonds for resource companies to fully fund long-term rehabilitation activities”.[ix] Thereafter, the Queensland Treasury Corporation published a number of discussion papers advising of the shortcomings of the current financial assurance framework and that, in 2017, there were “220,000 hectares of disturbance, with an estimated rehabilitation cost of $8.7 billion”.[x] Queensland’s 2018 mining regulation amendments concerning progressive rehabilitation were intended to ensure “rigorous” review of NUMA approvals in PRCPs, “through an objective public interest evaluation” for future or newly established mines.[xi]

  However, the reforms may not effectively address instances in which progressive rehabilitation has been lacking in large, open-cut, mature mines in operation at the time of these legislative changes. As of 2021, approximately 33% of the Ensham Mine’s 4,944.7 ha of scheduled rehabilitation areas had been progressively rehabilitated.[xii] According to Ensham’s PRCP, this level of progressive rehabilitation exceeds that of other open-cut mines in Queensland.[xiii] For established mines, such as Ensham, that are approaching closure and have large voids that have not been substantially progressively rehabilitated across their mine life, the most economical rehabilitation option may be to rehabilitate residual voids to accord with legislated requirements. Under Queensland’s legislation, “rehabilitation” does not necessarily mean these voids will be re-filled. This may be contrary to community understanding of what rehabilitation is.

  Thirdly, this case study highlights areas in the regulatory framework in which information transparency could be improved – particularly public access to information – which raises issues of accountability, quality of community engagement and, ultimately, social licence on the part of mining companies and government. Information transparency is also relevant to community engagement and expectations for rehabilitation, such as the meaning of “rehabilitation” of residual voids (i.e., refilling to establish a pre-mining state versus the legislated “stable condition” standard).

  This article is structured as follows. Part 2 presents the legal and operational context of the Ensham Mine. It also describes the operational history of flooding and its relevance to rehabilitation and management of post-mining residual risks, which leads to a discussion of the rehabilitation legal reforms. Part 3 discusses the reform of Queensland’s rehabilitation legislation framework as it concerns residual voids, including the transitional provisions of the EP Act. Part 3 also explores Ensham’s Residual Void Project (RVP) for the development of the rehabilitation criteria for residual voids and considers the community engagement process. Part 4 comments on the transitional regulatory design issues in Queensland’s framework, issues concerning progressive rehabilitation of pre-existing open-cut mines such as Ensham, as well as transparency of information and community consultation. Part 5 concludes and suggests future research.