New stringent conditions proposed 6 min read
Under significant reforms proposed by the NSW Resources Regulator (Regulator), all new and existing mines in NSW will be regulated by new standard rehabilitation conditions.
The conditions will apply to all new and existing mining leases (ML) and focus on transparently requiring progressive mine site rehabilitation throughout the life of the mine. The draft Mining Amendment (Standard Conditions of Mining Leases - Rehabilitation) Regulation 2020 (Regulation) has been released for consultation.
We take a closer look at what the proposed changes will mean for NSW mining projects.
Key takeaways
- The Regulation would introduce new stringent conditions into every ML in NSW, requiring progressive rehabilitation throughout the life of the mine. This outcome is achieved and supported by a rehabilitation risk assessment, annual reporting and forward programs of rehabilitation, and detailed rehabilitation management planning.
- The new conditions would apply to all new MLs, and would be introduced into existing MLs over a 12-24 month transition period. Leaseholders should expect increased compliance oversight by the Regulator while existing MLs are reviewed, and following imposition of the new conditions.
- The conditions require (amongst other things) that the leaseholder must rehabilitate land and water in the mining area that is disturbed by activities under the ML as soon as reasonably practicable after the disturbance occurs.
- Non-compliances must be reported by leaseholders within seven days after becoming aware of the non‑compliance.
- The proposed rehabilitation management plan for the mining area which must be prepared for large mines is intended to replace the current approach of preparing a mining operation plan (MOP).
- Guidance documents identify that the rehabilitation management plan required under the mining lease conditions must be consistent with the relevant development consent and incorporate all rehabilitation requirements set out in the development consent, and any rehabilitation objectives and completion criteria, landform design and land capability requirements.
- We recommend leaseholders take the opportunity to engage early with these significant reforms, by attending one of the public consultation forums with the Regulator on 15 or 20 October 2020, and consider making a written submission on the proposed reforms.
- Further guidance documentation is proposed to be released, and we recommend leaseholders closely follow the development of these documents.
Background
Progressive rehabilitation obligations already exist under many MLs and development consents. However, until now there has been no uniform approach to rehabilitation requirements, nor has there been a great deal of regulatory oversight into how rehabilitation progresses over time. Indeed, some older MLs do not contain any explicit conditions requiring progressive rehabilitation.
Consistent with the approach in other states such as Queensland, the Regulator is proposing more defined, stringent and transparent mine rehabilitation requirements. In relation to the national trends regarding mine rehabilitation reform, see our Report.
What's changing?
The Regulator is proposing to introduce mandatory conditions into all new and existing MLs, and has released the draft Regulation for public consultation. The new conditions will require all leaseholders to carry out progressive rehabilitation, rehabilitation risk assessment, annual reporting and rehabilitation management planning, as well as introduce new positive obligations around compliance with rehabilitation obligations.
The Regulator intends to use an online mine rehabilitation portal to collect data about rehabilitation for large mining projects, and track areas of disturbance and rehabilitation progress across individual sites.
The annual rehabilitation reporting and forward programs required by the new conditions, together with the data collected on the rehabilitation portal, will mean increased monitoring and compliance oversight by the Resource Regulator.
How will the Regulation affect existing MLs?
The proposed Regulation prescribes new standard conditions of MLs, which would prevail over any inconsistent conditions in an existing ML. The standard conditions would regulate how leaseholders manage rehabilitation, depending on whether the site is characterised as a large mine (a mine subject to one or more MLs requiring an environment protection licence under the Protection of the Environment Operations Act 1997) or a small mine (any mine that is not a large mine).
For new MLs granted after the Regulation commences, the standard conditions will apply from lease commencement.
For existing MLs, transitional arrangements will allow a period of 12 months for large mines or 24 months for small mines to comply with the new requirements. After the commencement of the Regulation, the Department of Planning, Industry and Environment will review the conditions of every ML and reissue ML instruments incorporating the new conditions for comment by each leaseholder through the process outlined in Schedule 1B, clause 12 of the Mining Act 1992.
The breach of a ML condition is an offence under s378D of the Mining Act 1992 by each leaseholder and attracts executive liability if committed by a corporation. The breach of a ML condition is also a ground for cancellation of the ML under s125 of the Act.
What are the new standard conditions?
The standard conditions proposed by the Regulation fall into two broad categories. First, the conditions introduce new assessment, planning and reporting requirements. Second, the conditions impose new obligations relating to rehabilitation and minimisation of environmental harm. Leaseholders should expect compliance with these new obligations to be monitored by the Regulator, informed by the assessment, planning and reporting requirements.
New assessment, planning and reporting requirements
The new conditions require leaseholders to undertake a range of assessment, planning and reporting activities in the form prescribed by the Secretary, a number of which must be submitted to the Secretary for approval prior to implementation.
- Rehabilitation objectives and completion criteria must be prepared by all leaseholders according to a guideline document that will be prepared by the Department. For large mines, a final landform and rehabilitation plan is also required. Both must be submitted for approval by the Secretary by the timeframe specified in the Regulation. This then informs the preparation of the rehabilitation risk assessment (see our comments below). Critically, the Regulator intends to use this information to assess whether leaseholders are progressively rehabilitating the mine site in accordance with their commitments.
- A rehabilitation risk assessment must be conducted by all leaseholders. This informs the preparation of annual forward programs (see our comments below). Large mines must undertake this assessment before preparing a rehabilitation management plan. For small mines, this assessment must occur before new rehabilitation objectives are submitted for approval. In addition, all mines must conduct this assessment whenever a hazard is identified and whenever directed by the Secretary. This assessment must identify, assess and evaluate the risks to be addressed to achieve the proposed or approved rehabilitation objectives and rehabilitation completion criteria (for small mines) and the final land use depicted in the proposed or approved final landform and rehabilitation plan (for large mines). For all mines, this assessment must also identify the measures that need to be implemented to eliminate, minimise or mitigate the identified risks.
- A rehabilitation management plan for the mining area must be prepared for large mines by the timeframe specified in the Regulation. It must incorporate the risk control measures identified in the rehabilitation risk assessment and be consistent with the site's development consent. Importantly, this plan is intended to replace the current approach of preparing a MOP. Once approved by the Secretary, this plan is to be amended over time to reflect any changes to the risk control measures identified in a rehabilitation risk assessment, as well as the approved rehabilitation objectives and completion criteria, and final landform and rehabilitation plan. The Secretary may also direct that the plan be updated. Once approved, leaseholders must implement the plan in accordance with the timeframes specified in the forward program. The plan will be a publicly available document and must be published (eg on the leaseholder's website) 14 days after it is prepared and after any amendment.
- A forward program must be prepared within 60 days of each annual reporting period. The program is a three-year projection plan for mining activities to be undertaken each year (including rehabilitation), and must incorporate the risk control measures identified in the rehabilitation risk assessment, for approval by the Secretary. It must provide for rehabilitation of land and water disturbed by mining activities under the ML as soon as reasonably practicable after the disturbance occurs. It is contemplated that the plan will allow leaseholders to adjust rehabilitation activities in response to technological advances in rehabilitation techniques, outcomes in monitoring and trials and unforeseen circumstances such as droughts. The program must be made publicly available by leaseholders, eg by publication on the leaseholder's website.
- An annual rehabilitation report must also be prepared within 60 days of each annual reporting period. It must report on rehabilitation carried out in the preceding 12 months, and is intended to replace the current approach of preparing an annual environmental management report. Mining projects operating under a state significant development consent can submit this report as part of their annual review. Critically, the report must include spatial data for inclusion in the Regulator's mine rehabilitation portal, and validate the rehabilitation cost estimate which informs the security deposit amount. Where costs change, a new cost estimate must be submitted. The report must be made publicly available by leaseholders, eg by publication on the leaseholder's website.
New rehabilitation obligations
The new conditions also require leaseholders to comply with new obligations including:
- taking all reasonable measures to prevent or minimise harm to the environment;
- rehabilitating land and water disturbed by activities under the ML as soon as reasonably practicable after disturbance occurs;
- achieving the final land use for the mining area as stated in the approved rehabilitation objectives and completion criteria, and for large mines, as spatially depicted in the approved final landform and rehabilitation plan;
- keeping records of compliance with the new conditions and reporting non-compliances to the Minister within seven days of becoming aware; and
- notifying the Secretary of development applications and modification applications.
Actions you can take now
- Take the opportunity to engage early with these significant reforms, by attending one of the public consultation forums with the Regulator on 15 or 20 October 2020.
- Contact us if you would like assistance with preparing a written submission on the proposed reforms, due by 6 November 2020.
- In relation to the national trends regarding mine rehabilitation reform, see our Report.