Mining and the law: what you need to know

Transcription

1 Mining and the law: what you need to know Gundaroo 18 September 2013 Belinda Rayment Solicitor Emily Ryan Outreach Solicitor

2 Information, not advice The information contained in this workshop is a guide only and is no substitute for legal advice relating to your particular issue. If you need legal advice about your particular issue, please call our Environmental Law Advice Line.

3 Free legal advice, fact sheets and updates EDO NSW runs a free Environmental Law Advice Line Monday Friday 2pm-5pm or Fact sheets are available on our website: For updates on environmental law and policy, sign up to our weekly ebulletin today

4 Find Legal Answers Practical, plain language resources Regularly updated In all NSW public libraries and online For in-depth research contact the Legal Information Access Centre (LIAC), State Library of NSW on or

5 EDO NSW publication on mining and CSG law Now available Order your free copy today Postage is free You can order bulk copies

6 Workshop overview Introduction to mining law in NSW Exploration Mining Commonwealth Approvals Access arrangements Landholder rights and responsibilities Policy developments Legal options Image: Gold mine, Cobar NSW. Amanda Slater

7 INTRODUCTION TO MINING LAW IN NSW

8 Current mining titles in NSW All activities require approval Exploration licences Assessment leases Mining leases Planning consent (if required)

9 Current mining titles in NSW

10 Current mining titles in NSW

11 Current mining and CSG titles and applications in NSW

12 Current mining titles and applications in your region

13 EL8051 CGNM RESOURCES PTY LTD Mineral exploration licence Granted 9 Jan 2013 Expires 9 Jan 2015 Information taken from

14 EL8133 LACHLAN METALS PTY LTD (wholly owned subsidiary of Centrex Pty Ltd) Mineral exploration licence Granted 8 July 2013 Expires 8 July 2015 Information taken from

15 EXPLORATION

16 Process Invitation to apply for Exploration Licence (tender) Application must be published in State and local newspaper Public comment only for coal and CSG Determination (granted or rejected) Environmental Assessment (REF) & Access Arrangement with landholder required before work can start

17 Commenting on exploration licence applications Coal and CSG only

18 Restrictions on exploration houses, gardens, and improvements Exploration cannot be carried out on the surface of land within: 200m of your house; 50m of your garden; or On any significant improvement. Don t give written consent if you don t want exploration on these areas.

19 Restrictions on exploration exempted areas Image: Hot Gossip Productions Image: PG Palmer

20 Restrictions on exploration National Parks and other Special Areas Image: Percita

21 Renewals Exploration licences for minerals can be renewed up to 2 months before the licence expires The licence will continue to have effect until a decision on the renewal application is made The licence can be renewed subject to new conditions There is no requirement to notify the public of a renewal There is no official opportunity for the public to comment but if you are aware of an application you can write to the decisionmaker.

22 MINING

23 Two-stage approval process Mining Lease Development Consent Trade and Investment NSW Department of Planning and Infrastructure Lease approval process SSD approval process

24 Process for granting a mining lease Application Public notification Environmental assessment (Development Consent ) Decision

25 Renewals Mining leases can be renewed not earlier than 5 years and not later than 1 year before the lease ceases to have effect The lease will continue to have effect until a decision is made The renewed period cannot exceed 21 years The lease can be renewed subject to new conditions No requirement to notify the public No opportunity for the public to comment but if you are aware of an application for renewal there is no reason why you can t write to the Minister.

26 Development consent process The process depends on the type of development Mines typically fall within one of two types: o State Significant Development o Designated Development

27 Development consent process State significant development Director-General issues Environmental Assessment Requirements Proponent consults with local council, government agencies and the community in preparing an EIS Proponent lodges the Application and EIS Department exhibits the Application and EIS for minimum of 30 days

28 Development consent process State significant development (continued) Submissions Proponent receives submissions (may lodge a response) Department finalises assessment and consults local council and agencies on draft conditions of consent (if any) Minister (or PAC) makes the decision

29 Finding out about State significant development

30 Planning Assessment Commission (PAC) Planning body. Consists of a Chair and between 3 and 8 members appointed by the Minister for Planning. The PAC can help the Minister review a project or can be delegated approval functions.

31 Development consent process Designated development Application with EIS Exhibition for 30 days Public submissions Council or JRPP makes decision

32 Finding out about designated development Council website Council chambers Newspaper circulating the local area

33 Matters to be considered by decision-maker Any environmental planning instrument (such as a LEP). The likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. The suitability of the site for the development. Public submissions. The public interest.

34 Other environmental approvals Generally, other environmental approvals are either not needed or MUST be granted consistently with the development consent where development is SSD EPLs Exception: Water access licences Aquifer interference approval

35 Aquifer Interference Policy Applies to the whole State. Clarifies that all water take needs to be accounted for and licenced. Sets out how potential impacts to aquifers should be assessed (minimal impacts). Ensures that these impacts are considered upfront as part of the assessment process for mining and CSG proposals either: Through the Gateway Process (in regions where SRLUPs apply); or At the development assessment stage.

36 Aquifer Interference Policy - Assessing aquifer impacts Office of Water scientific assessment of the project against minimal impact considerations Minister for Primary Industries provides advice on aquifer impacts during the development This advice is made public and must be taken into account by the consent authority

37 Application of local zones SSD cannot be approved where such development is wholly prohibited in the zone. Consent can be granted where the development is only partially prohibited. Spot re-zonings to facilitate development where prohibited in the zone.

38 Restrictions on mining agricultural land You can object to the granting of a mining lease on the grounds that the land is agricultural land. You have 28 days to object from the day you are notified that a mining lease application has been lodged. Image: Tim J Keegan

39 Restrictions on mining houses, gardens and improvements Mining cannot be carried out on the surface of land within: 200m of your house; 50m of your garden; or On any significant improvement. Don t give written consent if you don t want exploration on these areas. Image: Milkwooders Nick & Kirsten

40 Restrictions on mining and petroleum production National Parks Image: Percita

41 COMMONWEALTH APPROVALS

42 Matters of national environmental significance World heritage values of declared World Heritage Area Ramsar wetlands of international importance Listed threatened species Listed migratory species Nuclear actions Commonwealth marine areas Great Barrier Reef Marine Park National heritage places Coal seam gas and large-scale coal projects likely to have a significant impact on water resources

43 ACCESS ARRANGEMENTS AND LANDHOLDERS RIGHTS AND RESPONSIBILITIES

44 ACCESS ARRANGEMENTS

45 Access arrangements Required for exploration only not required at mining stage. Access arrangement must be in place before exploration can commence. Landholder can negotiate access arrangement with company, but this is not compulsory. Company can take landholder to arbitration if no agreement can be reached within 28 days.

46 Access arrangements - Process Company serves notice of intention to negotiate an access arrangement on landholder Company provides landholder with standard access arrangement Landholder and company may negotiate an access arrangement If no arrangement within 28 days the company can seek arbitration

47 New template for mining access arrangements ov.au/landholderinformation/template-forland-access Not compulsory

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49 Arbitration Arbitrator will attempt to get the parties to agree (conciliated agreement). If no agreement, Arbitrator can make a determination (interim), including draft access arrangement. Either party can ask the arbitrator to make changes to the interim determination (within 14 days). Arbitrator then makes a final determination and this is served on the parties. Either party can appeal to the LEC within 14 days.

50 Access arrangements matters to be covered Access routes and mining sites Permitted activities Notice of access Times of access Logbooks for entering and leaving the property OH&S provisions Indemnity Insurances

51 Access arrangements matters to be covered Environmental protection Rehabilitation Legal costs Dispute resolution The duration of the arrangement The manner of varying the arrangement (including termination) Compensation to be paid

52 Access arrangements tips for negotiating Don t sign without seeking legal advice first. Make the arrangement as detailed as possible. Consider whether you want the arrangement to apply to any future mining activities. Come up with your own comprehensive access arrangements. Speak to your neighbours agree on standard terms. Check for confidentiality provisions do you want to be able to speak to your neighbours and others about your agreement?

53 LANDHOLDER RIGHTS AND RESPONSIBILITIES

54 Landholder rights enforce the company s legal obligations If the company breaches the access arrangement, you can deny access until the breach is fixed. If the company breaches conditions of consent, you can report to the Division of Resources and/or take legal action yourself. If the company exceeds their authority, they may be guilty of trespass and you can seek an injunction to prevent this. If the company causes unauthorised environmental damage you can report the incident to the Office of Environment and Heritage or EPA or commence enforcement action yourself.

55 Compensation Landholders are entitled to compensation for compensable loss caused by mineral exploration or mining activities Compensation only available where the operations affect the surface of land. This includes crops, trees, grasses or other vegetation. You can come to an agreement as to compensation or have the compensation assessed by the Land and Environment Court. Image: Martin Howard

56 Selling your land No legal obligation for mining company to purchase your property May be a condition of consent for the mining company to offer to purchase your property if certain thresholds are reached (noise, dust etc.) The company has to pay you the current market value of the land.

57 Monitoring and enforcing mining or development consent conditions Conditions of consent are legally binding. Management plans such as vegetation management plans often form part of the consent and are legally binding. Breaches should be reported to the Department of Planning and Infrastructure. If Minister fails to act, you can bring third party enforcement action. Pollution licences and water licences are also enforceable.

58 Landholder obligations Must grant access in accordance with access arrangement Be aware of legal and financial consequences of denying lawful access If conditions of access arrangement breached access may be able to be lawfully obstructed

59 MINING AND CSG LITIGATION AND POLICY DEVELOPMENTS

60 POLICY DEVELOPMENTS

61 Proposed amendments to Mining SEPP New aim added to the SEPP to promote the development of significant mineral resources Prioritising the significance of a mineral resource as principal consideration Non-discretionary development standards for environmental & social impacts Amendment to move consideration of existing mining projects out of Part 3 existing land uses e.g. conservation, agriculture are downgraded to existing mines are not Requirement to consider OEH certification (adequacy of mitigation/offsetting) Read our submission amendments.pdf

62 LEGAL OPTIONS

63 Case study: effective engagement Maules Creek Community Council obtained $10,000 from Boggabri Coal to respond to the EIA for a proposed expansion of mining operations Image: Kate Ausburn Image: Maules Creek Community Council

64 Case study: effective engagement Image: Glen McCurtayne

65 Hunter Environment Lobby v Ashton Coal Minister for Planning & Infrastructure and Ashton Coal Operations Pty Ltd Image: Glen McCurtayne LEC - Class 1 - Economics - Aboriginal Cultural Heritage - Economics - Engineering - Health - Air Quality - Noise - Social Impacts

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67 Case study: Merits appeal Successful Challenge approval of expanded coal mining activities near Bulga in the Hunter Valley Community concerned about mine s: Biodiversity impacts Social impacts Noise Dust Solistalgia (loss of place) The Court upheld the appeal and disapproved mine extension Warkworth & the NSW Government have appealed this decision to the NSW Court of Appeal Image: Kate Ausburn

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69 Case study: Judicial review Unsuccessful challenge to the approval of Gloucester Gas Project on grounds that: The PAC failed to consider the precautionary principle; The conditions of consent could result in a significantly different development. Image: Kate Ausburn

70 Case study: Third party enforcement NSW pollution laws Delta admitted to polluting Coxs river in breach of its pollution licence. Case brought by a community group because DECCW failed to act. Image: picsbyclive

71 Costs Land and Environment Court: Merits appeals Each party bears their own costs. Judicial review Loser pays the winner s costs. Court can exercise discretion not to award costs in public interest matters. Other orders include security for costs and protective costs orders.

72 MORE INFORMATION

73 More information EDO ebulletin A free bulletin with weekly alerts on new major project listings and links to the Department s website. The Department of Planning and Infrastructure website lists all SSD project proposals. The Division of Resources and Energy website has info on licences/leases (under Mining and Petroleum Titles). EDO Fact Sheets: Planning and development Fact Sheets. Mining/CSG Fact Sheet..

74 More information Sign up to receive the EDO NSW s latest book Mining Law in SNW: A guide for the community Covers everything we have covered today and more

75 Free legal advice, fact sheets and updates EDO NSW runs a free Environmental Law Advice Line Monday - Friday 2pm-5pm or Fact Sheets are available on our website: For updates on environmental law and policy, sign up to our weekly ebulletin

76 Support our work Your support for EDO NSW will help us to: Provide legal advice and representation; Promote changes to environmental laws; and Provide community legal education. Donations are tax deductible