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Focus: Queensland reviews mining lease objection process and land access regime

26 March 2014

In brief: As part of its ongoing initiative to reduce red tape and streamline application and approval processes for the resources industry, the Queensland Government has released two discussion papers simultaneously proposing amendments to the objection regime for mining leases and also to the regulation of 'restricted land' as it affects all resource authorities (including petroleum tenements). If all of the changes proposed in the discussion paper are implemented, it will affect who can object to mining leases in the future. The changes would also standardise the restricted land provisions across all resources authorities, but, at the same time, introduce advantages for some tenement holders in relation to land access. Partners Ben Zillmann (view CV) and Bill McCredie (view CV) consider the issues and the changes that might be made.

How does it affect you?

The main changes proposed by the discussion papers are:

  • Only directly affected land owners and local governments will be able to object to mining leases in the future.
  • However, for medium and larger mining operations that will require a 'site specific environmental authority', the public at large will still be able to object to the grant of the environmental authority (noting that a mining lease cannot be obtained without a corresponding environmental authority).
  • It is proposed that the grounds of objection to a mining lease (which a landowner or local council may make) will be reduced from the current broad scope of objections to a more refined list of grounds, excluding very 'technical' or commercially confidential issues. It is also proposed to eliminate the ability for objections to a mining lease to be made on environmental grounds (as such objections can be made against the environmental authority).
  • It is proposed to give the Land Court the power to make the final decision on the grant of an environmental authority, rather than the court only making a recommendation to the Minister who then makes the final decision. As no mining project can operate without an environmental authority, this is a significant change, as it will give a court, rather than the executive government, the final say on whether a project proceeds.
  • A common concept of 'restricted land' will apply to all resource authorities (including mining and petroleum authorities), with some areas of restricted land becoming larger than exists in some current legislation, while certain categories of restricted land will be removed entirely.
  • While, in general, the consent of the landowner will be required to conduct resource activities on restricted land, a proposed exception to this is where a mining lease applicant can justify exclusive area rights over all of the mining lease, including restricted land.

Purpose behind discussion papers

The Queensland Government has stated that the initiatives proposed by the discussion papers are in line with its objective of reducing red tape and providing greater certainty to resource companies and the community.

In relation to mining leases specifically, the discussion papers seek to present a more streamlined and efficient mining lease notification and objection process. The discussion paper recognises the existing duplication of notification and objection processes for mining leases and environmental authorities and that there is no differentiation in the process between a small-scale mining operation and a very large, complicated mine. At least part of the rationale stated in the discussion paper is to eliminate objections based on 'philosophical opposition' to mining generally, and objections that may be aimed to delay and disrupt projects.

Mining lease notifications and objections

The first discussion paper is specific to mining leases and proposes several major changes to the mining lease objection and notification process. A summary of the main changes is as follows:

  • No public notification – Presently, every mining lease is publicly notified. The proposal is that there will no longer be a requirement to publicly notify any mining lease application. Rather, notification of the mining lease would only be directly to affected landholders and to local government bodies. Practically, the public will still have notification of any major mining project before it is approved, as it will be required to go through an environmental impact assessment process that will involve public notification.
  • Only certain environmental authority applications to be publicly notified – Presently, all new mining lease related environmental authority (EA) applications are publicly notified. The proposal is that in the future this will only apply to 'site specific' EA applications, and a public notice for submissions on any mine that requires an environmental impact statement (EIS) will also be retained. Where a mining lease does not require a site specific EA, notification would only be to affected land owners and local councils. The practical effect of these changes is that any medium- or large-sized mine will still need to have its EA application publicly notified. It is likely it would only be very small-scale mines that would not require a site specific EA.
  • Limited objectors to mining lease – It is proposed that the only parties that would be able to object to a mining lease are landholders and local governments directly affected by the mining lease application. No other party will be entitled to object (for example, NGOs opposing the mining lease on environmental grounds). It seems that only those landholders within the mining lease area will be regarded as directly affected landowners that may object.
  • EA objections – Presently any person can object to an environmental authority application. This is not proposed to be changed in respect of any medium- to large-size mine that will require a site-specific EA. In those cases, any party that has first made a submission for the site-specific EA, either through the notification stage for that EA or about an associated EIS process, will be entitled to appeal to the Land Court the grant of any environmental authority issued by the Department of Environment & Heritage Protection. As the public-at-large is entitled to make a submission in respect of a site-specific EA, provided they have done that, the public-at-large effectively retains the right to appeal the grant of an EA to the Land Court. As a mining lease can only be obtained if the holder has an associated EA granted, this effectively means that the public will still be able to object to new medium- to large-size mines by objecting to the grant of the EA.
  • Land Court considerations for mining leases – Presently, there are very broad grounds upon which an objector can oppose the grant of a mining lease. The Land Court, having considered those objections, then makes a recommendation to the Minister as to whether the lease should be granted and on what conditions. The Minister must consider the court decision but is not bound by it. In general, it is proposed to retain this process, although it is proposed that the grounds of objection against a mining lease will be reduced and refined by excluding any objections on 'highly technical, financial and commercial in confidence matters' (although the discussion paper does not specifically spell out precisely what type of technical or commercial objections will be excluded). It is also proposed that a mining lease itself will not be able to be objected to based on environmental grounds (although, given the ability of parties to still object to the grant of the EA on environmental grounds generally, practically this will not limit the scope of objections to a mine).
  • Land Court role for EA objections – Presently, the Land Court only makes a recommendation regarding the grant and/or conditions of an EA to the Department of Environment & Heritage Protection, which makes the final decision, taking into account the court's recommendation. The discussion paper proposes to change this by giving the Land Court the power to make a final decision on the EA, including whether the granted EA should be revoked. This is perhaps the most significant change proposed by the discussion paper, as no mining project can operate without an EA, and this change would effectively place the final decision for any new significant mining project in the hands of the judiciary, rather than in the hands of the executive government.
  • Compensation – Presently, a mining lease cannot be granted unless compensation has been agreed or determined by the Land Court with all land owners over which the surface area of the mining lease is to be granted. If compensation first needs to be determined by the court (including the potential appeals), this can result in mining lease grants being delayed for potentially a year or more. The proposed change is that a mining lease may be granted before the final determination of compensation, but only very low impact preliminary activities would be allowed on the mining lease until compensation is finalised.

Restricted land

Currently, 'restricted land' is not a consistent concept across all types of resources tenure (eg mining, petroleum, geothermal and greenhouse gas storage tenements). The Government's discussion paper proposes to make restricted land a uniform concept across all types of resource tenures.

The significance of restricted land is that, in general, the landowner will have complete discretion as to whether or not they consent to resource activities occurring within restricted land. For example, while a company may be granted a mining lease generally over a person's land, it will not be able to operate on restricted land within that property (such as within a certain distance of a house) without the landowner's consent. Presently, this may result in pockets of land being excluded from a mining lease – such as land around houses, dams, principal stockyards and bores.

There is presently no recognition of 'restricted land' in petroleum legislation as such, although, under land access and compensation arrangements, some similar concepts are involved.

The key proposed changes in respect of restricted land are as follows:

  • A uniform definition of restricted land – Currently, a range of different requirements apply under different pieces of resources legislation in relation to restricted land (or similar concepts). The discussion paper proposes that restricted land for all resource authorities would be amended to be consistently defined as follows for all resource authorities:
Proposed infrastructure types to which restricted land will apply. Proposed Restricted Land distance (laterally)
Any Exploration authorities, Production authorities or Petroleum Facilities Licences Other authorities
Residence 200 m 50 m
Place of Worship or School 200 m 50 m
Building for business purpose (including a school) 200 m 50 m
Intensive animal husbandry (eg feedlot) 200 m 50 m
Cemetery or burial place 50 m 50 m

Within the distances specified in the table, land holder consent would generally be required before any surface activities, or sub-surface activities that could cause a surface impact (such as subsidence), could be carried out by a resource authority holder.

  • Protection of persons outside permit boundaries – The proposed arrangements will provide that, even if the landowner of the restricted land is located outside the resource authority boundary, it will still be equally protected by excluding resource activities within the prescribed distance of the restricted land feature. For example, if a land owner has a house that sits 50 metres away from a mining lease boundary, the miner will not be able to mine within 200 metres of that house (and therefore within 150 metres proximity to the boundary of the mining lease) without the landowner's consent.
  • Certain features proposed to no longer be restricted land – Some existing categories of restricted land are being proposed to be removed altogether (notably land around dams, bores and water storages).
  • Inclusion of restricted land in mining leases – Presently, in respect of mining leases, if the restricted landowner's consent has not been obtained by the end of the objection period for the mining lease, then the mining lease must exclude those areas of restricted land from the lease area when granted. The practical effect of this is there are 'holes' in the mining lease, and the only way this can be currently rectified, if the landowner later consents to the miner accessing the restricted land, is by applying for a new surface area rights in the future over those areas, which is not necessarily a straightforward or quick process. The discussion paper proposes that what would occur is that the mining lease would be granted over all land, including restricted land, but the miner will simply not be able to enter the restricted land unless the landowner consents. Practically, this means that, if a landowner provides consent after the date of mining lease grant, then it will be a simple matter for the mining lease holder to access that restricted land in the future.
  • Special cases where consent not required – Finally, in the case of mining leases only, the discussion paper raises the possibility that, in certain cases, a mining lease may be granted with full surface area rights, even over restricted land. That is, even if the landowner has not consented. In those circumstances, a landowner would still have compensation rights (and of course, would also have the right to object), but the landowner would not have an effective 'veto' right over the grant over restricted land. The discussion paper states that 'greater justification' would be required by the mining lease applicant in order to obtain full surface area rights in such circumstances, but does not provide detail as to what that greater justification would entail.

Summary

In summary, there are a number of proposed amendments which, in general, will work in favour of the resources industry, and particularly those in the mining sector. For resource authority holders other than miners, the only amendments of note are really those related to restricted land, which may be more of a 'mixed bag' of changes from their perspective.

While the range of objectors to mining leases will clearly be restricted under the amendments, the question will be whether, in practice, this will make any significant difference, given that most objectors who are not directly affected landowners normally oppose projects on a range of environmental grounds, and they will still effectively be able to object to the project by opposing the environmental authority.

Next step

The Government has invited submissions on the two discussion papers, which are due by 28 March 2014. The Government will then consider the submissions before settling on any amendments to the legislation, which are unlikely to be in force before the end of 2014.

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