Castledine Gregory Law and Mediation

Momentum for environmental approvals reform

Content

There have been two legislative reform proposals in 2015 that aim to streamline environmental regulation of the mining industry. While these proposals assist the mining industry with a clearer and less duplicative structure for environmental approvals processes, companies should always ensure that they apply some fundamental strategies to optimise their critical approvals path.

 

Bilateral agreements

 

The first of the two legislative reform proposals is the commencement of an environmental assessment agreement between the Commonwealth of Australia (Commonwealth) and state governments and the release of a draft ‘approvals’ agreement.

 

The Assessment Bilateral Agreement commenced on 1 January 2015. This agreement provides that environmental matters of national significance requiring Commonwealth approvals (such as threatened flora and fauna) will only be subject to an accredited state environmental assessment process. While it is intended that the Commonwealth and state governments will consult with each other to streamline approval conditions placed on projects, there will be certain circumstances whereby both authorities will administer environmental approvals for projects assessed under the bilateral agreement.

 

The draft ‘approval’ bilateral agreement, which closed for public consultation in February 2015, will enable the state to provide a single environment approval to a project for both state and Commonwealth requirements. Once it is approved, industry will start to see a shift to the streamlining of the environmental approval process as a proponent will no longer need to deal with both the Commonwealth and state governments.

 

Mining bill

 

The second of the two legislative reform proposals is the introduction of the Mining Legislation Amendment Bill 2015 into Western Australia’s parliament in April.

 

The Mining Legislation Amendment Bill 2015 (Bill) was introduced into WA parliament in April this year, and was considered in detail in late September. The main purpose of the Bill is to streamline environmental regulation of the mining industry.

 

The regulatory burden is intended to be reduced by:

 

  • removing the need for tenement holders to report annually on numerous environmental conditions imposed upon them, by moving these conditions into regulation
  • removing the need to apply for a separate native vegetation clearing permit
  • removing the need to apply for approval before carrying out ‘low-impact activities’
  • introducing smart forms and online lodgement services that will streamline the application and assessment process.

 

The Bill will actually bring all the environmental provisions within the Mining Act 1978 into one part. The aspirational goal of the Bill is to change the focus of approvals to demonstrating that the specific activities proposed to be undertaken do not have unacceptable environmental impacts – rather than being an approval of specific documents that have prescriptive conditions (such as mining proposals). A prescriptive process discourages the implementation of new ‘best practice’ procedures.

 

The removal of the need to apply for a separate native vegetation clearing permit under the Environmental Protection Act 1986 (WA) will make a mining proposal application simpler and should reduce the approval timeframes. A new low impact notification process for small scale prospecting and exploration activities – so that approvals are not required – has also been introduced.

 

Interestingly, the Bill will also amend the Mining Act 1978 to prevent consecutive applications for exploration licences. If an application for an exploration licence is withdrawn, an application for another exploration licence over the same area by that person, or a related person, cannot be granted unless the Minister considers there are special circumstances.

 

The Bill’s proposed shift to a risk-based approach is an important step for the industry. However, it is the transition to this new regime that must be managed appropriately by the state to ensure that the ultimate goal of reducing the regulatory burden for proponents is not compromised at any stage of the process.

 

Tips to improve approvals outcomes

 

While the bilateral agreements and the Bill will assist the mining industry with a clearer and less duplicative structure for environmental approvals processes, companies should always ensure that they apply some fundamental strategies to optimise their critical approvals path.

 

1) Early and regular government engagement

 

The potential benefits for a proponent from engaging with the regulator at the early stages of an assessment of a project’s feasibility cannot be overstated. Proponents really need to drive and manage this engagement, and develop an understanding of the relevant government departments’ (and officers’) demands and expected timeframes. The benefit of regular consultation is that it often operates as an early warning system for any potential roadblocks on the critical approvals path.

 

2) Comprehensive stakeholder strategy

 

A new project or proposed expansion to an existing project is a significant undertaking and the potential opportunities for, and impacts on, the local community and other stakeholders (for example; Traditional Owners, local shire) need to be well understood by a proponent.

 

3) Upfront excellence

 

The differences between providing detailed information at the referral stage for a new project or an expansion, as opposed to providing a staged approach, continues to be a topic of discussion in the environmental approvals space. Proponents need to recognise that all parties in this process are under time pressures. So to increase efficiency, effort should be made to ‘front load’ as much as possible, and to provide high quality technical reports (and especially conclusions/recommendations) tailored to the particular circumstances of the project and delivered in a structure that is easy for a regulator to understand.

 

While there is no silver bullet for environmental approvals, the Commonwealth and state governments have made improvements and this should be acknowledged. The Bill’s amendments to the Mining Act 1978 are a significant move toward risk-based environmental regulation.

 

For further information contact Andre Maynard at Castledine Gregory on (08) 9486 7665 or a.maynard@cglawmediation.com.au.