30 September The reality of resourcing the future September 30, 2022 By AMPLA Admin Conference, General, Industry, Resources and Energy Energy Transition, Powering the future, ER Law Annual Conference 0 Laurence Dyer, Associate Professor, Curtin University The energy transition is revolutionary in the mining and metals production space but it is not a straightforward enterprise. It has completely changed the outlook of our industry to the point that everything is shifting from research to commodity production and the way we source metals. But there is often a disconnect between the energy transition and what it will take to produce the metals required for the energy transition. At the ER Law Annual Conference in October, I will be talking about what it really means to produce the metals required to fuel the transition, what kind of volumes will be required and what that means from a supply perspective. There are many varied elements that are required to fuel the energy transition and each has a very different set of requirements and systems around them. For example, nickel is relatively open in terms of primary production whereas rare earth minerals have been China dominated. The way the Chinese have set up the market means that they have a monopoly on supply and demand as well as the technology. This makes it very challenging for anyone else to develop a supply chain because you have to compete with a far more mature technological market. When we look at some of the smaller production elements, like germanium and selenium, there are other challenges. These elements are critical to supporting the energy transition but the volumes we need are thousands of times more than are currently produced. Nobody currently produces these elements as a primary product because there hasn't been a market value for them. As demand pushes the price of these minerals up it may actually make them viable to produce at much higher volumes. The question of volume is relative though. Take copper for example, it’s also essential to support the transition but it’s already an enormous industry so we only need to increase its production by two or three times over the next 30 years. Doubling the size of that industry is a completely different prospect than increasing the production of one of these very small specialty elements by one thousand times. Even if we can scale up production of these elements there are other factors that need to be considered. What is the environmental impact of increased production? Where is the resource going to be produced? Where are the reagents going to come from? Take cobalt for example. About 70% of it comes from the Democratic Republic of the Congo which raises concerns about ethical supply. A mining company has to not only think about reducing carbon emissions and making sure their processes are environmentally sound, but they also have to worry about who their producers are and where they sell their product. If they can show their green credentials and ethical processing systems from the very start through to where their product is sold they can command a premium. This is different to what we’ve experienced in the past. We're also really starting to see a push into a circular economy, which requires that these metals are recycled as much as physically possible. Therefore, every product and waste stream needs to be considered for recycling or repurposing to this end and to continue to shrink the environmental footprint. Recycling of products then also has implications for manufacturing processes. Take lithium ion battery recycling. Normally, to recycle a solid we shred materials then try to pull apart all of the different components and separate them out. If you do that with a battery it is relatively dangerous and as soon as you shred all of the components they get mixed together and it makes them much harder to separate. So current technology makes it infeasible to properly recycle these batteries, which turns something that contributes to renewable power into a significant legacy issue in terms of hazardous waste. To create a circular economy we now need to look at the manufacturing process to see if we can make a battery that's easy to take apart and recycle as well. The mining industry is in a renaissance. We have an opportunity not just for massive economic gains but to rebrand the industry as well. Many see the industry as old and dirty, but it’s also necessary to feed economic growth and the energy transition. Anywhere that technology can take us, mining has to be a part of it - it’s core to everything we do going forward. So making sure the industry can support the energy transition and everything that comes with it is critical. To hear more about how we resource the future, you can register to attend the ER Law Annual Conference HERE Related Articles 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. 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. Submission - DISER Consultation Paper December 2020 ‘Enhancing Australia’s decommissioning framework for offshore oil and gas activities’ 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. AMPLA Needs You From the Chair and Executive Director AMPLA needs your support. Despite numerous efforts to arrest the decline in growth over the past few years, AMPLA continues to experience difficulty in its ability to generate revenue. Our membership revenue and conference attendance have not met our business plan for the last two years. COVID has certainly impacted our ability to host face to face events and resulted in the cancellation of the flagship annual conference. However, the underlying struggle AMPLA faces is not solely linked to COVID – in other words, unless major changes are made our revenue base will continue to decline. After 40+ years of existence AMPLA must now face the fact that it has to change its approach and the services and value it offers to build its membership numbers and increase its capacity to generate revenue. Amendments to Native Title Act give industry stability Recent amendments to both the Native Title Act 1993 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) are intended to better resolve Native Title claims and provide stability for industry. The Native Title Legislation Amendment Act 2020 addresses the problems caused by the McGlade decision as they relate to ‘right to negotiate’ agreements or section 31 agreements. 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