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Client Update: Stage 2 of NSW Integrated Mining Policy released

27 August 2015

In brief: The New South Wales Government has released a number of further guidelines for state-significant mining projects, focusing on post-approval requirements, as part of the second stage of public consultation on the new Integrated Mining Policy. Partner Bill McCredie (view CV), Senior Associate Naomi Bergman and Lawyer Alexandra Lanyon report.

How does it affect you?

  • The guidelines released as part of Stage 2 of the Integrated Mining Policy clarify post-approval reporting requirements and establish high-level principles for the negotiation of voluntary planning agreements for mining projects.
  • The exhibition of these guidelines is an important opportunity for the industry to be involved in the formulation of consistent and transparent post-approval requirements for state-significant mining developments in NSW.

Background

On 3 June 2015, we reported on the release of Stage 1 of the New South Wales Government's new Integrated Mining Policy (IMP). The IMP is a new set of policies intended to guide the assessment and determination of state-significant mining developments (except petroleum, coal seam gas and exploration activities), as well as post-approval requirements.

The IMP is being exhibited in a number of stages. The documents released for consultation in the first stage included mining application guidelines, standard environmental assessment requirements and a swamp offset policy.

Stage 2

The second stage of the IMP provides clarity around post-approval requirements and water management for major mining projects, as well as guidance on the negotiation of voluntary planning agreements.

Stage 2 of the IMP includes the public exhibition of:

  • Annual Review Guideline – provides for the submission of a single Annual Review to the Department of Planning and Environment (DPE) and the Resources and Energy Division of the Department of Industry (DRE), which will satisfy the reporting requirements under the conditions of a development consent/project approval and mining lease, and sets out content requirements for Annual Reviews.
  • Independent Audit Guideline – sets minimum standards for the conduct of independent audits and provides guidance in relation to the commissioning and completion of independent audits. The guideline specifically addresses:
    • audit objectives, scope and criteria;
    • selection and approval of an audit team;
    • audit methodology (comprising of compliance assessment criteria, consultation and site interviews and inspections); and
    • the content of audit reports and formulation of an action plan to respond to the audit's recommendations (required within four weeks of receiving the final report).
  • Web-based Reporting Framework – outlines the information that should be provided on a mine operator's website, where the publication of information is required under the conditions of a planning or environmental approval. This information is to include any environmental monitoring data required under an approval, unless otherwise agreed with DPE in writing, as well as compliance reports and an incident register.
  • Planning Agreement Guidelines – provides high-level principles for negotiating planning agreements relating to mining projects and is intended to operate in conjunction with DPE's Practice Note for Planning Agreements 2005. Key principles include calculating and valuing the impacts of mining proposals and reflecting community priorities in contributions.
  • Water Regulation and Policy – provides an overview of the legislative framework, assessment considerations and approval requirements for the use and management of water resources in mining projects.

Implications

For the most part, the Stage 2 guidelines represent business as usual, merely summarising existing policies and principles for reporting on mine performance, negotiating planning agreements and managing water resources.

The Stage 2 guidelines, once finalised, will assist mine operators to comply with their reporting obligations, creating greater transparency in relation to those requirements, and consistency between the requirements for preparation of an Annual Review under the conditions of a development consent/project approval and preparation of an Environmental Management Report under the conditions of a mining lease.

However, the Annual Review Guidelines do not, at this stage, incorporate requirements for the preparation of Annual Returns to the EPA, which are required under the conditions of most environment protection licences.

Despite its intention to promote consistency and avoid duplication, the IMP will not remove the requirement to report separately to the DPE, DRE and EPA, and does not bring into alignment the content requirements for Annual Returns with the content requirements for Annual Reviews and Environmental Management Reports. However, the Annual Review Guidelines indicate that the Government is working to improve alignment between Annual Reviews and Annual Returns.

Stage 3 of IMP?

When Stage 1 of the IMP was placed on exhibition in May this year, the Government indicated that the IMP would be exhibited in two stages, and foreshadowed that Stage 2 would include the exhibition of:

  • Guidelines for the Economic Assessment of Mining and Coal Seam Gas Projects; and
  • standardised development consent conditions.

These two key documents are notably absent from the suite of documents released as part of Stage 2 of the IMP consultation process.

There has been no indication by the Government as to when these documents may be provided, although the Government appears to have revised its intention to exhibit the IMP in two stages, now stating that exhibition will occur in 'several' stages. This suggests that these key documents, which are likely to represent the most significant change for the assessment of major mining projects, may be separately exhibited as part of a third stage of consultation on the IMP.

Next steps

Submissions on the second stage of the IMP are due by 7 September 2015.

Once the IMP has been finalised, DPE has indicated that it will consult with affected parties on a transition process.

 

For further information, please contact:

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