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.

   

  ---

  1. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”.

  2. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022.

  3. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy.

  4. 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.

  5. 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.
• 
  FORREST AND FORREST PTY LTD AND MINISTER FOR ABORIGINAL AFFAIRS [2023] WASAT 28

  Western Australia’s State Administrative Tribunal (SAT) has rejected a review, by Forrest & Forrest Pty Ltd, against the refusal of consent to impact an Aboriginal site in constructing weirs across the Ashburton River. A unanimous three-member panel published its decision in April 2023. SAT’s decision and reasoning has direct significance and use for anyone involved in processes for a s 18 consent under the Aboriginal Heritage Act 1972 and broader relevance for the law around protection of Aboriginal heritage in Western Australia. With the WA Government announcing the reversal of recent statutory changes and a return to the 1972 legislation, SAT’s decision has increased relevance.

• 
  ARELJ Article- Golden Pig: The continuing effects of Forrest on the Western Australian Mining Industry
• 
  Recent developments in Queensland, Western Australia and Victoria

  Legislative amendments and new codes and guidelines have been introduced in states across the country. The focus is on developing renewable energy production and supporting existing energy infrastructure. In this article, we outline some recent developments in Queensland, Western Australia and Victoria.

• 
  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.

• 
  PILBARA IRON ORE STATE AGREEMENTS AND MINE CLOSURE REGULATION

  Dr Natalie Brown

  Lecturer, University of Western Australia Law School

  The research presented in this article was supported by CRC TiME. The content of the article is a revised version of a report for the CRC. The support of the Australian Government through the Cooperative Research Centre Program is acknowledged. The article is current to August 2023.

  This article discusses mine closure regulation under the Western Australian State agreement regime; specifically, Pilbara iron ore mines authorised by State agreements. Not all Pilbara agreement mines are subject to Western Australia’s legislative mine closure requirements. Pilbara agreement mines are only subject to mine closure planning requirements in three situations: if the Environment Minister has imposed an implementation condition following an environmental impact assessment under Part IV of the Environmental Protection Act 1986 (WA); the Mining Act 1978 (WA) applies to the mine; or an agreement term imposes an obligation to do so. Some Pilbara mines slip through these regulatory gaps because of the unique interaction of State agreements with other legislation. While the focus of this article is on the Pilbara agreement mines, the same propositions apply to all mines authorised by State agreements in Western Australia.