4 April Legislative updates in Queensland and Western Australia April 4, 2024 By AMPLA Admin General, Resources and Energy 0 The Governments in Queensland and Western Australia have recently released several consultation papers, reports and proposed legislation that impact the resources sector. Legislative updates in Queensland and Western Australia The Governments in Queensland and Western Australia have recently released several consultation papers, reports and proposed legislation that impact the resources sector. Queensland Accelerating the development of the hydrogen industry is a priority for the Queensland Government. To ensure its regulatory framework is fit for purpose the Department of Energy and Climate recently released a consultation paper to obtain feedback on its proposed legislative reforms to remove barriers and support the hydrogen industry. The State currently has over 50 hydrogen projects in progress and requires 3GW of gas generation capacity to meet electricity demand under the Queensland Energy and Jobs Plan. The consultation paper looked at several issues hindering the development of the hydrogen industry including the complexities involved in obtaining development approvals and putting in place a State code for hydrogen developments to ensure assessments are consistent. Feedback was also sought on the current framework for obtaining environmental approvals for hydrogen development. Proposed reforms also considered the energy required to scale hydrogen development and provided solutions to ensure households and other energy users were not impacted. The impact of developments on the community were also considered in the consultation paper. The consultation period is now over and we now wait for the outcomes from the process. The Government also introduced the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 (Qld) in February. This Bill responds to recommendations under the Independent Review of the Environmental Protection Act 1994 (Qld) that was completed in 2022. The Bill proposes to: Amend the definition of “environment” to include land, waters, atmosphere, climate, sound, odours and tastes. This is likely to expand the reach of the legislation; Establish that failing to comply with the general environmental duty is an offence where it is likely to cause serious or material environmental harm. In the current legislation, the general environmental duty is only a defence to unlawful environment harm; Create a duty to restore the environment where contamination that results in environmental harm is caused or permitted unlawfully; Introduce and expand the grounds for making an environmental enforcement order. It’s proposed that the environmental enforcement order will replace environmental protection orders, direction notices and clean-up notices; Give the authority greater powers to revise proposed amendments to environmental authorities and progressive rehabilitation and closer plan schedules, and to amend transitional environmental programs. The Bill has been referred to the Health, Environment and Agriculture Committee who will provide its report on April 12. Western Australia The Petroleum Legislation Amendment Bill 2023 (WA) is currently before the Parliament and details the proposed carbon capture and storage framework. The Bill provides for four types of permits related to greenhouse gas exploration, drilling reservations, retention leases and injection licences. Some limitations do exist though, for example a greenhouse gas exploration permit can only be renewed once and the holder of a petroleum or geothermal exploration permit or drilling reservation holder cannot apply for an identified greenhouse gas storage formation. The Bill also establishes criteria to identify storage formations. Eligible greenhouse gas storage formations must be suitable for storing 100,000 tonnes or more and meet fundamental suitability requirements. When the Bill passes, greenhouse gas licensees will be required to inform the Minister if a serious situation arises. A serious situation includes the leakage of a greenhouse gas substance injected into a storage formation. The Minister can then direct the licensee on what reasonable steps they must take. The Bill also provides for greenhouse gas storage formations to be closed and sets out the requirements to obtain a closing certificate. Before the Minister issues the closing certificate, the Minister will outline the monitoring program and its estimated cost that will be undertaken by the State and the amount of security that the proponent must give the State to undertake the monitoring. After at least 15 years have passed, the State may assume liability for the damages for the site. The Minister for Climate Change and Energy is also seeking public feedback regarding a proposed offshore wind and renewable project in the Indian Ocean off the coast of the Bunbury region. The region is expected to deliver up to 20 GW of energy to the South West region. The Traditional Owners of the region are the Nyoongar people and they have significant interests in the marine area including Sea Country and engagement is currently underway with the community. Submissions for this proposed project are open until 3 May. The Economics and Industry Standing Committee recently released its interim report on its inquiry into Western Australia’s Domestic Gas Policy. The report has found that the State’s domestic gas policy is not fit for purpose and has outlined key findings that include: Western Australia is at risk of experiencing a long-term shortfall in gas supply over the next decade. If this forecasted shortfall occurs, it may result in higher electricity prices, loss of industry and jobs and threaten the State’ decarbonisation efforts; The current policy doesn’t provide enough flexibility to respond to these changes in the market. The policy is based on contracts that result in a lack of consistency, transparency and enforceability; Some liquified natural gas (LNG) producers do not appear to be operating within the spirit of the policy where they are required to provide 15% of gas supplies to the domestic market, yet the average is about 8%. LNG exports are favoured by producers above domestic markets because they attract higher prices and exposure to larger markets internationally; and While government intervention may be required due to the expected shortfall in gas supply, the preference is for an industry-led response to address the problem. The level of government intervention required may be limited only to those producers who don’t operate within the spirit of the existing framework. We now await the final report which is expected to recommend some government interventions to address this issue Related Articles COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES Professor Alex Gardner, University of Western Australia Law School, and Laura Hamblin, formerly research associate at the UWA Law School, 2021 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. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy. See L Hamblin, A Gardner, Y Haigh, Mapping the Regulatory Framework of Mine Closure, May 2022, CRC TiME, for a broader exploration of the full life cycle of mine closure regulation. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 214 FCR 301, [144], [227]-[230], referring to the range of approval conditions, which included mine closure. In setting conditions under the EPBC Act, the Commonwealth Minister must consider any relevant conditions under State or Territory law: at [80] citing Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. 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. Victorian and Western Australian State Budgets In recent weeks we’ve seen both the Victorian and Western Australian Governments deliver budgets for their State. Both have included significant investments in the energy and resources sector. In Victoria, the budget has signalled the importance of the mineral industry to regional development. Victorian mines directly contribute $510 million into the state economy in 2020-21. Recent regulatory updates across Australia This article provides an overview of developments in the industry over the past couple of months that have occurred in several states across Australia. ARELJ Article- Managing water resources in times of fracking: Regulation and reform in Western Australia Recent State legislative updates Both Victoria and South Australia have recently progressed significant legislation focused on renewable energy. The Victorian Government’s Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Bill 2023 has had its second reading in the Legislative Assembly. The Bill is intended to reduce the cost of power bills, create tens of thousands of jobs and encourage investment in the State’s renewable energy industry. Showing 0 Comment Comments are closed.