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Proposed amendments to the Western Australian Mining Act
5 November 2015
The Mining Legislation Amendment Bill 2015 (Bill), originally introduced into the Western Australian Parliament in April 2015, has now been passed by the Legislative Assembly and is currently being considered by the Legislative Council.
The Bill introduces various amendments to the Mining Act 1978 (WA) (Mining Act) including:
- consolidating all environmental management provisions in the Mining Act, including key environment reforms such as removing the requirement for native vegetation clearing permits, consolidating multiple site approvals, and creating a new notification system for low-impact activities; and
- changes in response to the practice of tenement warehousing.
The Bill followed on from the consultation paper released by the Department of Mines & Petroleum (DMP) in April 2015 which proposed changes to the Mining Act to implement the low-impact exploration and prospecting activities framework (Consultation Paper).
LOW-IMPACT ACTIVITIES
The Bill provides a major overhaul to the environmental provisions of the Mining Act by inserting a new Part IVAA into the Mining Act which will deal with environmental management of mining tenements including:
- requiring certain activities to be approved by submitting a programme of works or mining proposal (including mine closure plans);
- allowing certain low-impact activities to be carried out without approval (provided notice has been given of the proposed activity); and
- providing for environmental conditions to be placed on mining tenements.
Presently, all exploration and prospecting activities require an approval through a programme of work (regardless of the scale of the activity). Under the amendments in the Bill, certain ‘low risk’ exploration and prospecting activities do not require submission for regulatory assessment.
Low-impact activity notification and tenement conditions
Under the amended Mining Act, proponents would be required to notify the Director General of Mines (via an online process) when a low-impact activity is proposed to be undertaken, and when the activity has been completed. Once notification occurs, the tenement holder will be able to commence the low impact activity. Tenement holders will be required to demonstrate that the intended activity meets the low impact activity criteria which will be prescribed in the Mining Regulations 1981 (Regulations). No fees will be charged for notifications.
It will be a condition of every mining tenement that the tenement holder must only carry out a low-impact activity in accordance with prescribed requirements in respect of that activity unless the activity has already been approved through a programme of work or a mining proposal. In addition, current obligations on tenement holders to meet their tenement conditions will remain in place, tenement holders will have an obligation to adhere with a general environmental duty of care, and deemed conditions (which will be prescribed in the Regulations) are proposed for both low-impact prospecting and exploration activities. There will be prescribed penalties for breach of the conditions which may make a particular tenement liable for forfeiture, or a penalty of up to $150,000, depending on the severity.
Defining low-impact activities
The amendments to the Mining Act provide that the definition of low-impact activities will be prescribed in the Regulations. The Consultation Paper proposed a definition of low impact activities which is a combination of the locality in which the activity occurs, the type of activity, and the way in which the activity is carried out. Each of these criteria will need to be satisfied for an activity to be considered low impact.
TENEMENT WAREHOUSING AMENDMENTS
The Bill is also, in part, a response to concerns regarding the practice of tenement warehousing.
The Mining Act currently does not prevent an applicant for a mining tenement from withdrawing an application and immediately lodging a new application over the same area of land. Some applicants have taken advantage of this legislative loophole to effectively reserve land without being subject to the expenditure requirements for granted tenements under the Mining Act. Some applicants may also deliberately slow down the approvals process to keep applications over large areas of land pending, even when additional requirements such as Native Title and Aboriginal Heritage and environmental agreements have been finalised. These practices are known within the mining industry as mining tenement “warehousing”, “squatting” or “parking”, and are contrary to the “use it or lose it” principle that underpins the Mining Act.
The Bill includes new subsections to section 58 of the Mining Act (application for exploration licence) to address the practice of tenement warehousing. The new subsections clarify that where an application for an exploration licence has been lodged and the original application has not been granted or refused (including where the original application has been withdrawn), if a successive application is lodged by the original applicant (or a related party) over the same or substantially the same area of land, then the successive application cannot be granted unless the Minister advises the mining registrar that there are special circumstances for doing so.
The Bill does not clarify what “special circumstances” would justify the grant of successive applications. However, it may include, for example, where an applicant has redefined the area in an original application because it has been unable to reach an agreement with a stakeholder.
CONCLUSION
The amendments appear to be a positive step in removing unnecessary mining and exploration “green” tape. Under the proposed amendments to the Mining Act, low impact activities will be administered under a notification process where the tenement holder is required to notify DMP of the nature of the exploration or prospecting activity. Low-impact exploration and prospecting activity will be subject to prescribed environmental standards and conditions that will need to be reported against annually.
The reforms have the potential to save mining companies and individuals significant amounts of time and money and are intended to make low-impact prospecting and exploration activities easier to achieve for mining companies and individuals operating in Western Australia.
Contacts: Stuart Mengler, Principal and Hayley Lawrance, Special Counsel.
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