CONCERNS AND CRITICISMS (LEADING PRACTICE IN MINING) BILL 2017

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THE STATUTES AMENDMENT (LEADING PRACTICE IN MINING) BILL 2017  

CONCERNS AND CRITICISMS

 YORKE PENINSULA LAND OWNERS’ GROUP (YPLOG)

October 30th 2017

 Background

 From the beginning of the Government’s Mining Legislative Review in late 2016, the most contentious issue for YPLOG and other community-based groups has been the failure of the current system to protect the remaining 4.3% of highly productive agricultural land from the incursion of exploration and mining.

Until recently, most mining activities took place in remote areas of the state.  However, companies have now started to move into more settled areas of the state, bringing them into increasing contact and conflict with farmers and local community residents.  A key example is the proposed open cut copper/gold Hillside Mine on Yorke Peninsula  which covers over 3,000 hectares of prime agricultural land, close to key tourist centres and on the edge of Gulf St Vincent.  The Yorke Peninsula Land Owners Group, with over 300 members, was established to fight this proposal. It is only one of a number of oppositional groups now operating across the state (and across Australia) aimed at protecting what remains of our rich farmland from invasive mining.

The Review has failed to keep its promise of delivering a Bill which achieves a fair and equitable balance between the needs of agriculture, the community and mining.

 While the Bill achieves one of the Government’s key aims – ie to make it “cheaper, safer and easier” for exploration/mining companies to do business in SA –  it weakens the protections for landowners and local community residents.

  • It has squandered an opportunity to take a fresh and unbiased reassessment of the role of exploration/mining within the changing economic and social landscape of SA.
  • It has failed to respond to the complex range of issues stemming from the incursion of exploration and mining into settled rural areas, with its attendant increase in risks to pre-existing industries, nearby communities and sensitive environments.
  • It has ignored many of these issues/concerns raised by YPLOG and other community and agricultural organisations during the so-called consultation phase of the Review.

KEY OBJECTIONS

  1. Failure to increase protection for agricultural land

Under the current legislation, cropping land is “exempt” from exploration/mining.  However, under S9AA of the Mining Act 1971, an exploration/mining company can take a landowner to court if he/she refuses to sign a waiver.  Many submissions to the Review (including that of Grain Producers SA, which represents over 3,000 grain growers in this State) called for S9AA of the Mining Act to be rescinded, thereby giving farmers an absolute right of veto.  This would remove the possibility that their decision would be overturned by a court and ensure long-term protection for agricultural land in this state.

Note; It would not take away the rights of those landowners to sign a waiver of exemption if they so choose.

These calls have been ignored – S9AA will be retained. In fact, the new Bill actually reduces existing protections for agricultural land by, for example:

  • Replacing the term “exempt” with that of “restricted” (see discussion below);
  • Giving the Warden’s Court the power to determine ‘waiver of exemption’ matters rather than all such cases being dealt with by the Environment Resources and Development (ERD) Court (see discussion below).
  1. Failure to respond to calls to separate the mining assessment/regulatory functions of DPC from its role of mining development and support.

The fact that the one government agency is responsible for both facilitating mining in SA as well as assessing new applications and regulating exploration/mining operations has been widely criticised and has led to “a regulatory and administrative regime that is incapable of balancing broader social, environmental and economic objectives with the promotion of mining” (Hon Mark Parnell:  submission to the Mining Review).

Calls to separate these two DPC functions have been ignored.

  1. Failure to establish independent processes/agent to act as community watch-dog

At present the community is virtually powerless to hold exploration/mining companies accountable or to challenge decisions/actions by either the government regulator (DPC) or the Minister.  To redress the resultant power imbalance between the community and the government/mining industry, YPLOG called for:

  • Appointment of a Mining Ombudsman
  • Introduction of a merit review process whereby a court could review a particular mining proposal and reach an independent determination of that project’s merits from the perspective of all affected parties, with the power to hand down a decision contrary to that of the Minister.

These calls were ignored.

  1. Failure to address landowner calls for cultural/behavioural change within the regulatory branch of DPC

While the Bill contains some positives in terms of strengthening government environmental compliance tools and investigatory powers, it fails to acknowledge the fact that these new powers will be of little use if the regulatory body within DPC fails to use them.  Submissions from a range of agricultural organisations and individual landowners contained many verified examples of company breaches/ non-compliance which were either ignored by the Department or resulted in a “slap over the wrist’ for the company involved.

The Bill contains no measures to ensure DPC use its existing regulatory powers more effectively.

  1. Objections to specific components of the Bill (not a full list)

 

Restricted Land  ‘Amending the term ‘exempt land’ to ‘restricted land’, to avoid confusion.’

 

This change in terminology will seriously reduce what few rights farmers have under the current Act to protect their land against mining companies.

 

DPC argues this change in terminology was designed simply to “avoid confusion”.   But in our extensive interactions with landowners, we have found NO confusion over the meaning of the term ‘exempt’ or of the interpretation of S 9 of the Mining Act 1971.

 

Exempt’ land means land that is “not affected by, freed from” exploration/mining.  In contrast ‘restricted’ is a weaker and more ambiguous term, generally meaning “confined or limited”.   ‘Exempt’ prohibits whereas ‘restricted’ permits with certain caveats.  The two terms are therefore quite different.    Our concern is that the relative meaning of these terms would be interpreted differently in a test case before the Supreme Court.

 

Interestingly, DPC does not define what it means by the term ‘restricted’ or specify what it will mean for farmers in the context of the new legislation.   Is this because the Department doesn’t want to draw attention to the real impact this change will have?

 

The principle that agricultural land is exempt from exploration and mining has been included in every SA Mining Act since the first one was passed in 1893.  While its application has been watered down in recent years, with mining companies now having the right to take a farmer to court if he/she refuses to waive his/her land’s exempt status, NO GOVERNMENT UNTIL NOW has sought to change the terminology.

 

In our view, this move ties in with the government’s oft-stated objective of making land access easier and simpler for miners.

 

Exploration within 200 metres of house.  ‘Ensuring exclusion zones around restricted land for early exploration operations correspond with potential impacts, so there are less restrictions (400m – 200m) on low impact scoping and baseline exploration activities.’

 

This significantly reduces the level of protection currently available for excluded zones such as places of residence.   As such, it gives landowners even fewer protections and rights than they have under the current Act.

 

It fails to acknowledge that if an exploration company were to find promising mineral resources within 200-400 metres of a house, the chances that this would lead to full scale mining approval in this zone is extremely high.

 

It therefore has the potential to counteract another DPC proposal – ie  to increase the exclusion zone for  “high impact mineral operations”  from 400 to 600m.

 

For consistency and to ensure full protection for farmers’ security of tenure re their place of residence, the exclusion zone should be increased to 600m .

 

 

Expansion of Warden’s Court to hear waiver of exemption matters Ensuring all ‘appropriate’ courts (a term under the Act for Warden’s, ERD and Supreme Court) can hear ‘restricted land’ matters so that landowners and companies can choose the right level of court for their particular matter.’

 

Any clause recognising the right of the Warden’s Court to determine waiver of exemption applications must be rejected

 

If implemented, this would reverse an important 2011 Upper House amendment which transferred all such cases to the Environment, Resources and Development (ERD) Court.   During the 2011 debate in the Upper House, the Labor Government made several attempts to defeat this amendment, without success.  Now it is trying again.

 

In its earlier submission, YPLOG argued against any return to the Warden’s Court because of the prior track record of that court.  All pre-2011 cases relating to exempt land status resulted in judgements that favoured the mining companies, not the farmers.

 

This recommendation is not about making it cheaper for the landowners or increasing their rights, it is all about making it easier and cheaper for the mining industry to gain access to land for exploration and mining.

 

 

Owners of the land  ‘Limiting the obligation to notify or obtain consents or waivers from persons who are an ‘owner of land’ because they have “care, control or management” of land or “who is lawfully in occupation” of land to circumstances where the explorer or miner is aware of such a person or it is reasonable to expect the explorer or miner to be aware of such a person.’

 

Under the law ignorance is no excuse.  Given the resources at their disposal, exploration/mining companies must fulfil their due diligence and locate all relevant owners.  This seems to be about making it quicker and easier for the exploration/mining companies to gain access to land, particularly ‘freehold, exempt land’.

 

Subdivide exploration area  ‘Introducing an innovative new process to allow the holder of an exploration licence to subdivide an area of their exploration licence so the Minister can grant to a third party in order to promote and encourage further exploration investment in South Australia.’

 

Allowing the holder of an exploration licence to subdivide an area of their exploration licence means that a landowner would be required to deal with more than one exploration company.  This is untenable, not least because of the increased stress, anxiety and confusion it would produce.

 

Extending mining lease terms  ‘Extending terms of mining leases and miscellaneous purpose licences to ensure security of tenure for the appropriate project mine life.’

 

This recommendation is rejected, particularly given that the period of extension mooted in the Mining Act Review Discussion paper extensions of  “up to a maximum of 99 years (page 90)”.

Under the current 21 year term, there is ample opportunity for a company to apply for an extension of its lease if operations are to continue beyond that 21 years.   To grant a company an initial licence of 99 years ignores the huge changes likely to occur in that time.

 

It would likely lead to an increase of care and maintenance situations, with mining operations mothballed (without appropriate rehabilitation) for potentially decades at the whim of the company.

 

It shows a complete lack of understanding or concern for the economic and emotional well-being of farmers whose land sits within a mining tenement or of the well-being and financial security of nearby residents.   Even with a 21 year lease (as per Hillside) if the company holds a waiver over a farmer’s property, his/her ability to maintain his agricultural business, invest in business improvements and even do something as simple as undertaking succession planning is significantly harmed.  The chances of selling the property other than to the company would be virtually non-existent, and the long-term impacts of living near a massive, open cut mine, with all the noise, dust, light pollution, blasting e makes life virtually untenable.

It would also reduce the Company’s level of accountability.  Under Section 55(2) of the Act “the holder of a miscellaneous purposes licence shall, if he has complied with the provisions of this Act and the terms and conditions of the licence during the term for which the licence was granted or last renewed, be entitled, at the expiration of that term, to the renewal of the licence for a further term.”  Tenement holders need to demonstrate that they have complied with all of their lease conditions before they can renew their lease, so by extending the terms it could possibly mean more time to cause environmental damage if they are not complying.

 

Amalgamating tenements  ‘Introducing a new process to amalgamate tenements to provide commercial flexibility and to promote joint ventures.

 

It is unclear if this recommendation is referring to ‘exploration’ or ‘mining’ tenements.

Assuming it is referring to exploration tenements, once again, it suggests landowners would have to deal with multiple companies, thereby increasing their already difficult and relatively powerless position.

 

Change of operation processes  ‘New ‘outcomes based’ change of operations processes which will allow for mid-project changes to lease or licence conditions (as distinct from minor changes or changes to the requirements of a Program for Environment Protection and Rehabilitation (PEPR) via a robust environmental and social impact assessment process to provide operators with more flexibility to react to market changes.’

 

While clearly defined procedures for assessing “mid-project change of operations” are required this recommendation is rejected on the grounds that its objective – “to provide operators with more flexibility to react to market changes” – is totally unacceptable.  It fails to advocate a balanced approach, focusing only on what is in the best interests of the company while ignoring the rights and interests of the community impacted by the operation.

In our original submission we described (in detail) the ludicrous example of Hillside, with Rex Minerals announcing it would not pursue the full scale mining operation for which approval had been granted just two weeks before.   There followed over three years of

  • Uncertainty for local residents and landowners who, for the first 2 years, had no idea of what the new plans were, and how they may affect them or the environment. (This applied particularly to those landowners whose land fell within the full scale tenement and who were left with no idea of how the changes could impact them)
  • Frustration about the length of time it took Rex to come up with a new plan
  • Anger at the failure of DPC to provide for a further period of public consultation re. the changed plans
  • Confusion re the lack of clarity about the DPC assessment process and, finally,
  • Anger that, right at the last minute, having finally determined that the new mine plans were NOT CONSISTENT with the original MLP, Rex were given a NEW option to overcome this.   Rather than being required to either prepare a new MLP or resubmit their operational change document (as originally required by DPC) the company was now given a third option – ie to try to demonstrate consistency via their PEPR.

 

What is required:  Clear change of operation processes that

  • Are fully transparent and publicly accountable
  • Ensure new plans are subject to the same level of scrutiny as the full MLP
  • If judged inconsistent, require the entire process to commence again, with the submission of a new MLP, a clearly stipulated period of public consultation and, if approved, the imposition of a reassessed range of conditions
  • Provide adequate protection for the environment and the community, not just ensuring greater flexibility for the company.

 

Advisory Committee Creating new independent landowner advisory service  to assist famers to understand the Mining Act Processes.

This doesn’t go far enough.  YPLOG (amongst others) recommended the establishment of an Advocacy Committee, controlled by the agricultural industry, independent of Government, and with access to lawyers who have the necessary knowledge and skills to not just provide advice and information but to advocate for their rights.

 

Restricted land proceedings  ‘Giving landowners new rights to commence ‘restricted land’ proceedings once the nature of the proposed operations are clear.’

 

This recommendation is not necessary and does nothing to increase landowners’ rights.  As pointed out in YPLOG’s original submission, why would landowners want to instigate court proceedings when all they have to do is refuse to sign a waiver in the first instance?   If Section 9AA was removed from the Act, as suggested by YPLOG and other landowners in their initial submissions (a recommendation which has been conveniently ignored by DPC), there would be no need for waivers or court proceedings.

 

Public access to information Expanding public access to documents and information

 

This doesn’t go far enough.  It should be expanded to ensure draft documents – eg draft exploration/mining PEPRS, draft compliance reports etc.  – are automatically available to landowners and local communities.    These draft documents must be made publicly available before they are submitted to/signed off by govt.  For example,

·         at present farmers generally do not have access to compliance reports re exploration activities on their land.  They therefore lack the ability to identify unacceptable impacts, inaccuracies, misleading statements etc.

·         the public does not have access to draft PEPRs, including those relating to major impact operations such as the proposed Hillside mine.  These only become available once approved by govt.

 

 

Increase offences to ensure compliance Introducing civil offences and penalty regimes to ensure compliance actions….

 

While this seems superficially positive, there is now considerable evidence that, while officers already have a range of investigatory powers etc, these are rarely used.  Landowner confidence will only be restored if there is clear evidence their complaints are being taken seriously and acted upon.

 

Streamlining

the tenement process

‘Streamlining the tenement process so the holder of an exploration licence can elect to directly apply for a mining lease or retention lease.’

This recommendation is rejected.  It appears to mean that the holder of an exploration licence would no longer have to apply for a Mineral Claim prior to an application for a Mining Lease or Retention Lease.  If so, this is not acceptable.  The process should not be streamlined by skipping a step in the assessment process.

Approval of PEPR 

 

PEPR to be approved before access to all land obtained

Section 70B(11) of the Bill allows PEPRs to be approved without all waivers or access to restricted land being in place.   Currently, a PEPR cannot be approved by the Minister until all access to land described in the PEPR has been obtained.  PEPR approval is the final stage in the approval process and to sign off on this without the certainty that the company will, at some time in the future, be able to either purchase or obtain a waiver of exemption over the land required is highly questionable.  It also reduces the bargaining power of a landowner in any  subsequent court waiver dispute if the company has already had its PEPR approved.

 

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