In brief
Major new mining projects are to face an additional approval hurdle in Queensland following the introduction this week of a Bill to amend the State Development and Public Works Organisation Act 2015 (Qld). Partner Ben Zillmann and Senior Associate Giselle Kilvert consider the Bill and what it means for resource developers in this state.
Key change – Environmental Authority objections reintroduced for significant projects
The most relevant amendment proposed by the State Development and Public Works Organisation and Other Legislation Amendment Bill 2015 (the Bill) is the repeal of Section 47D of the State Development and Public Works Organisation Act 2015 (Qld) (SDPWOA).
Section 47D was introduced by the former Newman Government in 2014 to streamline the major project approval process for mines. It provides that where the proposed conditions of an environmental authority (EA) for a mining activity are the subject of 'coordinated project' assessment by the Coordinator-General under the SDPWOA, and the Coordinator-General concludes that the EA conditions adequately address the environmental impacts of mining, public objections may not be lodged in respect of the EA. This thereby avoids Land Court objection proceedings in respect of the authority. Such a decision by the Coordinator-General could only be made following a public notification and submission process on the mining proposal, based on the mine's environmental impact statement.
The repeal of this provision means a return to the pre-Newman Government position. All applications for site-specific EAs will now be subject to public notification requirements and potential objection proceedings, regardless of whether the proposed EA conditions have already been considered and approved by the Coordinator-General during the coordinated project assessment process. This significantly increases the risk associated with the development of large-scale mines in Queensland, given that an objection proceeding may readily add 12 months to an approval timeline, and represents an additional project approval hurdle.
The repeal of s47D was an election campaign pledge of the new Palaszczuk Government, so the change is not unexpected.
The Bill follows bad news last week for NSW mining players, with the amendment of that state's legislative regime to remove 'economic benefits' as the primary consideration in assessing mining proposals. (See our earlier Client Update: Resource significance no longer to be key consideration in NSW mining project approvals.)
Other changes – Land Court Act
The Bill also proposes amendments to the Land Court Act 2000 (Qld) to ensure that Land Court Members are covered by their usual 'judicial' immunity when performing administrative functions – for example, when hearing and determining mining lease or EA objections.
Land Court Members raised concerns about this issue recently after a Court of Appeal decision held that the Uniform Civil Procedure Rules' disclosure provisions did not apply to objection proceedings, as they were not 'proceedings' in a judicial sense. As the Land Court's statutory immunity only covers such 'proceedings', we understand that Members were concerned they may be left personally liable by the Appeal Court's decision, and have been reluctant to hear and determine administrative proceedings until the concern is resolved. With the passing of this Bill, this concern should be resolved.
The Bill also provides for the Land Court Rules to include its own rules in respect of costs and disclosure in administrative proceedings (given the UCPR does not apply).
Fate of other Newman Government reforms still unclear
It is still unclear what the Palaszczuk Government proposes to do in respect of other resource legislation amendments that were passed by the Newman Government (contained in the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld)) but that have not yet commenced. In particular, the Bill does not address how restricted land and mining lease objections will be dealt with, or whether and when the new overlapping tenement regime will be brought into effect. A media release by the Mining Minister and Attorney-General earlier this week stated that 'further amendments later this year would deal with these provisions'.
Allens will provide further updates in respect of these matters when they are available.