21 August Hot topics affecting the clean energy transition August 21, 2023 By AMPLA Admin Board, Conference, Environment, Resources and Energy 0 Lauren Shave, Special Counsel, Gilbert + Tobin and President, ER Law Western Australia Branch In the past year, there have been a couple of issues that I think will continue to have an impact on the clean energy transition in coming years. It’s hard to separate the clean energy transition from the technological change that’s happening at the moment - the two have a lot to do with each other. The other is native title and cultural heritage where the change I’ve seen has been really positive in terms of engagement with Traditional Owners. The advent of artificial intelligence (AI) has come on pretty quickly and become an issue that people need to be aware of. One aspect of AI is technology like ChatGPT which I think shocked a lot of people by how incredibly fast it is at producing highly detailed answers. AI is also linked to things like autonomous technology on mine sites. If you think of an autonomous vehicle or drones going into dangerous places instead of human beings or being able to monitor people’s vital statistics remotely, these all have a huge impact on work health and safety for mining operators. When technology becomes available employers need to determine when their obligation to use it kicks in and there is also an ethical component, for example, when that obligation intersects with the privacy rights of employees. Over the past 12 months we’ve also started to see a shift in how energy corporations work with Traditional Owners. I think there’s a feeling amongst Traditional Owners that I’ve spoken to that mining hasn’t historically engaged with Traditional Owners in a way that allows full participation in a project, but there’s a hope that the clean energy wave can address this more inclusively. In many cases, Aboriginal Corporations are now well-equipped to take the best advantage of the opportunities that clean energy projects present, and I think best practice now sees Traditional Owners embedded in the project structure from inception. I think this is partly due to the growing importance of ESG, and the willingness of shareholders to hold companies to account and scrutinise directors and management for the decisions they take regarding the environment and traditional owners. As a result, there is a much greater emphasis on social responsibility and maintaining a social licence to operate. Community expectations around these issues have similarly evolved and become an important consideration for project proponents. Clean energy projects are also being initiated at a time when native title is relatively settled, so it is largely clear who has native title rights and how any native title consents need to be obtained. I think a major challenge for project proponents (and their lawyers) now is certainty. Governments desire control when it comes to climate, cultural heritage and resource allocation which means increasing complexity and regulatory frameworks. It can be tricky to operate amidst this uncertainty, but energy and resources companies are already good at this. Managing internal and external expectations by incorporating the major uncertainties within your plans is key. As lawyers, we can help by providing clear guidance on likely timeframes and sticking points so that proponents can plan appropriately and communicate well with their stakeholders and the community. The ER Law Conference is a good way to get up to speed with what’s happening as well and speak to others who are facing similar challenges. I’m really looking forward to the sessions on emerging technologies, as this has massive implications for the work health and safety space. I’m also looking forward to the cultural heritage reform session which is very topical in Western Australia at the moment, given the state government intends to repeal of the new cultural heritage legislation (as announced just 5 weeks after the new law came into effect). It will be interesting to compare and contrast approaches to cultural heritage across jurisdictions. If you’d like to attend the ER Law Annual Conference you can register here. Related Articles POWERING CONSUMER PROTECTIONS: WHY DECENTRALISED AND DISTRIBUTED ENERGY RESOURCES WARRANT A NEW LENS ON CONSUMER PROTECTION REGULATIONS Recent years have seen distributed energy resources usher in a new era of self-generation and reduced reliance on traditional centralised energy networks. Australian customers are increasingly enabled to access unconventional “behind the meter” energy sources and contribute to a two-way flow of energy back to the grid. 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. The states boost the energy and resources sector This year will be remembered for the many challenges that it brought to both individuals and industry. As Australia starts to return to some normality, many states are looking to boost industry, increase jobs and innovate for the future. In this article, we look at various state initiatives designed to boost the energy and resources sector. Why hydrogen is becoming an important energy source Hydrogen as an energy source continues to grow in popularity. Once confined to industrial processes such as refining crude oil, it is now being recognised as a potential solution to the problems of electricity generation, transportation and storage. Over the next thirty years, global energy demand is predicted to grow by at least 30-40%. At the same time, the share of energy generated from fossil fuels has stayed almost static at 81%. While renewable energy technologies such as solar and wind are getting cheaper, they can only be generated on an intermittent basis. To make them commercially practical to use, they must be combined with high-energy batteries and backed with other energy sources. Overview of the Government’s Resources and Energy Report The Department of Industry, Science and Resources recently published its quarterly report on Resources and Energy. The report includes forecasts from the Office of the Chief Economist on the value, volume and price of major Australian resources and energy commodity exports. What the FIRB? An update on Australia’s foreign investment rules for energy and resources Showing 0 Comment Comments are closed.