Mining and the environment

By Michael Sheng and Jeff Lynn, Blake Dawson
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A key issue for the mining industry in Australia is to assess potentially negative environmental effects associated with a mining operation and to put in place measures to reduce and manage those effects. This is likely to involve an environmental impact assessment before commencing the development of the mine, and adherence to environmental licence conditions and regulations during production and after closure of the mine.

Environmental assessment

The environmental assessment of mining projects in Australia is largely governed by state and territory environmental protection legislation. This legislation is typically administered by an environment protection agency or authority, or an environment department, in each jurisdiction.

The key matters addressed by state and territory environmental legislation include:

  • managing air, water, land and noise pollution;
  • protection of threatened flora, fauna and habitat; and
  • recognizing and preventing impact on indigenous sites.
Michael Sheng, Partner, Blake Dawson
Michael Sheng
Partner
Blake Dawson

Proponents of a mining project may be required to prepare an assessment of the environmental impact of their project in accordance with state or territory legislation. The conclusions of the assessment will be an important consideration in a decision about whether to approve the mine project.

The assessment may be open to public consultation, and the ultimate decision to approve a mine project may be subject to appeal by third parties (such as community or environment groups) in some jurisdictions.

The assessment process for a project is usually managed by an environmental authority or department, with a final decision on the approval of the project usually made by the relevant state or territory minister. The grant of an environmental approval will usually be subject to conditions to minimize and manage environmental impact.

National matters

While most environmental controls are imposed by state or territory legislation, since 2000 the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) has been in force.

The EPBC Act is concerned with matters of national environmental significance, which include nationally listed threatened species of flora and fauna, wetlands of international significance and migratory species, among others. It sets out a process for the federal environment minister to decide whether an environmental impact assessment may be required for a project, which may be in addition to any state or territory environmental assessment process. If the federal minister requires a project to be assessed under the EPBC Act, that project may not commence without the minister’s approval.

The minister can delegate supervision of the environmental assessment process to the relevant state or territory, provided agreements are in place between the state or territory and the commonwealth that accredit that state’s or territory’s environmental assessment processes and systems. However, the minister cannot delegate the power to approve a project under the EPBC Act to a state or territory.

Planning approvals

Like all development activities, mining projects involve the construction of buildings, roads and other infrastructure which may require local or state government planning approval. In some jurisdictions, planning approval is integrated into the project approvals process or is covered by the mining licence.

Planning approvals are driven by state and territory planning legislation and local government planning schemes. State planning departments and local governments have a key role under this legislation in formulating and administering planning schemes. Assessments for issuing permits under planning schemes need to take account of the potential for a mine or mineral processing project to affect future uses of land in the area, as well as the impact of the mining activity on the surrounding land uses and community.

Pollution and waste management

Jeff Lynn, Partner, Blake Dawson
Jeff Lynn
Senior associate
Blake Dawson

Most jurisdictions have comprehensive pollution and waste management and disposal laws which will be applicable to mines (for example relating to the management of mine tailings and the control of contaminated stormwater on the mine site). Typically a discharge licence is required to authorize the discharge of waste onto land, into water or into the atmosphere. These licences impose discharge limits and regulate the polluting activity in some detail.

Waste discharge licences are generally granted by a state or territory environment protection agency (EPA). Each EPA periodically reviews the performance of licence holders. Managers or directors of licence holders may be required to certify compliance with licence conditions on an annual basis and to advise the relevant EPA of any breaches or environmental incidents.

A breach of a licence condition or of a control imposed by legislation is an offence. Enforcement options include prosecution or the issue of penalty notices for less serious contraventions. Serious penalties, including fines in the tens or hundreds of thousands of dollars, and, in a worst case scenario, imprisonment, can be imposed for significant pollution offences. Generally, liability is strict, meaning that the fact of pollution is all that an EPA will be required to prove in any court proceedings.

Waste disposal is similarly regulated. The owner of waste may in some cases be deemed liable for leakage or spillage and incidents on a “no fault” basis.

Project facilitation

In some states proposed mining projects can receive special status which leads to the involvement of a centralized government coordinating authority. These bodies can facilitate large-scale mining projects by planning and coordinating land and infrastructure requirements including land tenure and infrastructure development approvals.

Beyond facilitation, specific legislation known as state agreements can also be passed in relation to specific mining projects. State agreements are essentially standalone contracts between the state government and the proponents of major mining projects (including processing facilities) which are ratified by an act of parliament. Each agreement specifies the rights, obligations, terms and conditions for development of the project and establishes processes for continuing relations between the government and the proponent.

Michael Sheng is a partner in the Shanghai office, and Jeff Lynn is a senior associate in the Melbourne office, of Blake Dawson

Blake Dawson Shanghai office Suites 3408-10

CITIC Square 1168 Nanjing Road West

Shanghai, 200041

Tel: 86 21 5100 1796

Fax: 86 21 5292 5161

E-mail:

michael.sheng@blakedawson.com

jeff.lynn@blakedawson.com

www.blakedawson.com

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