SA Select Committee Inquiry into Land Access for Resource Companies
Submission: Yorke Peninsula Land Owners Group/ Concerned Farmers Group
The importance of agriculture to the South Australian economy is well documented. Suffice to reiterate that it has always been one of, if not the, State’s highest export earner and employer. Dry-land cropping is a key component of this.
However, as pointed out on numerous occasions, SA has only about 4.3% of land suitable for cropping. This land is now coming under increasing threats from climate change and from increasing competition from resource companies seeking ready and cheap access to infrastructure and other supports needed to facilitate their activities, such as existing power sources, road networks, proximity to ports and a large, accessible work force.
Yorke Peninsula – located within the potentially copper-rich Gawler Craton – is a clear example of this growing incursion of resource companies into one of the state’s most productive, sustainable cropping land.
- Over 90% of Yorke Peninsula is now covered by exploration tenements; (Figure 1)
- One company (Rex Minerals) has now received all Government approvals needed for its massive open cut copper mine at Hillside and
- Other promising copper deposits have also been identified in close proximity to Hillside and in the northern Paskeville and Melton areas.
The possibility of further large-scale, open cut copper mining in the region is therefore a major concern for YP farmers. This concern has been clearly demonstrated by their passionate and highly publicised objections raised during the recent review of the Mining Act. The main focus of these criticisms was the failure of the existing land access regime to provide adequate protection for SA’s cultivated land.
However, their concerns were completely ignored. The subsequent amendments to the Mining Act have actually made it easier for resource companies to access their land.
2. ToR (a) Land access regimes as they relate to the Mining Act 1971
Why the Mining Act land access provisions have failed to protect SA’s cropping land
- The fundamentals of SA’s land access provisions unchanged for 130 years
Legislative responsibility for determining whether and which land in South Australia should be quarantined from mining has always sat with mining acts.
The concept that cultivated land – defined as a yard, garden, cultivated field or orchard – is exempt from mining has been part of every mining act in SA since the first one was passed in 1893. Unfortunately, so too has the provision allowing a resource company to apply to a nominated authority to have that exemption waived. Only the designated authority for overturning a farmer’s refusal to grant assess had changed – from an arbitration process in 1893 to the current court process.
As a result, it is now woefully out-of-date – a situation which the recent review of the Mining Act completely failed to redress. A key reason for its failure was the premise on which the land access component of the review was based. In its first Discussion Paper which set out the agenda for that review, the Dept of State Development (Dec 2016; p 29) stated:
“A robust land access regime is currently in place that…. ensures the correct balance between the rights to extract minerals and landowner and conservation interests …. “The exempt land framework under the Mining Act has been working well at striking the right balance around land access for over a century and ….is fairer than the frameworks used in other jurisdictions.
These views were totally contrary to the arguments put forward by the South Australian farming community which argued that the current land access framework was heavily skewed in favour of the mining industry and needed to be completely changed and modernized.
As noted, the criticisms and concerns of YPLOG and other farmers’ groups were completely ignored during the review and as a result, the Mining Bill passed in late 2019 actually perpetuated and deepened the power imbalance between the mining and landowners in relation to land access.
- Key problems with the current system
In brief, arguably the most fundamental problem centres on the procedure by which a resource company can obtain a waiver of exemption over cultivated land.
Since 1971, responsibility for this decision has rested with either the Wardens’ Court or the Environment, Resources and Development Court. Over the past 40 years, YPLOG has identified only one case – relating to an expansion to an existing, small scale quarry – where an exemption application by a resource company was refused.
A number of factors contribute to this unbalanced record.
- Mining Act fails to set any criteria to guide the Court’s decision-making
The Act prescribes the outcome options available to the court:
(9) On an application under this section, the court may make 1 or both of the following orders:
- an order confirming that the owner of land is entitled to the benefit of an exemption under section 9;
(b) if the tenement holder or owner of land satisfies the court that any adverse effects of the proposed authorised operations on the owner of land can be appropriately addressed ….. —an order waiving the benefit of the exemption and imposing such conditions on a party to the proceedings as the court thinks fit (including a condition requiring the payment of compensation to the owner of land).
However, it fails to set any criteria to guide the Court in its deliberations. In addition, no agricultural impact statements are required. Our observations of court hearings indicate that the presiding officer, despite his/her best intentions, has little if any understanding of the complexities of modern agricultural processes to enable them to assess the likely short or long term impact of the proposed activities on either the land or the farmer’s ability to conduct his/her business.
- Presumption in favour of the resource company
There is some evidence to suggest that, in exercising its powers under the Mining Act, the Court considers that it should not obstruct what it considers to be the primary intention of that Act – ie to support resource development. For example;
” I have interpreted the Act in the context that it was intended to encourage mining….The purpose of the Mining Act (1971) is to encourage mining and the Warden’s Court should allow mining to occur where it can be done so having proper regard to the rights of owners of the land”. (Judgement, Senior Warden, Wardens Court: July 2008);
“ Where it is not possible [for miners and farmers] to reconcile their differences the Court will impose conditions and where appropriate, compensation” (Judgement, Senior Warden, Warden’s Court Sept 2015) . No reference was made to the other option – ie to refuse an application to waive the exemption.
- Adversarial nature of the Court setting
Because of the adversarial nature of a court trial, the process essentially pits miner against farmer in a one-on-one contest. In this setting, the resource company holds most of the cards, including its familiarity with court procedures and requirements, access to a range of technical documentation and advice from its own consultants, access to legal advice, adequate finances to defend their case ..etc….
Given these factors, many farmers find the prospect of being forced into court daunting, not least because of the potential financial costs they may incur. As a result, many have told us that when the company threatens to take them to court, they agree to sign, simply to avoid this.
- Mining legislation NOT an effective mechanism for protecting SA’s remaining cultivate land
Fundamentally, the intention of any mining act is to facilitate and encourage resource development. Providing meaningful protections for another industry, such as agriculture, is not high on its agenda, particularly if it will result in additional obstacles being placed in the way of exploration or mining companies, as would potentially be the case if land access regimes were strengthened.
The futility of trying to effect meaningful land access changes via a mining act was evident during SA’s recent review. None of the calls for change put forward by the farming sector were accepted.
Clearly, what is needed to achieve these changes is an entirely new approach that sits outside, and is independent of, the Mining Act.
YPLOG therefore hopes that the Select Committee Inquiry into Land Access will recommend such an approach; one that finally puts aside the Mining Act’s outmoded and inequitable land access requirements in favour of a separate, stand-alone regime that can effectively respond to the growing threats to our limited cultivated land from the resource sector.
The following submission outlines some of the options we encourage the Select Committee to consider.
3. ToR (b): Operations of DEM re land access regimes
YPLOGs submission to the Mining Act Review (31 March, 2017) identified a number of criticisms of what is now the Department of Energy and Mining. These are based on the direct experiences of individual farmers.
The following points highlight just a few of our concerns. Note: these criticisms are not intended as a reflection on individual staff members of the Department. Instead, they reflect serious underlying problems with the Department’s cultural norms, values and political expectations.
- Conflict of interest; DEM’s role as promoter and
facilitator of mining in SA poses a direct conflict of interest with its other
- to assess and approve proposals; and
- subsequently, to regulate the exploration/mining activities it has approved.
DEM’s role as promoter of mining seems to be its primary objective. As evidence of this, DEM has publicly stated it has rejected only one mining application over recent decades, which we understand was a sand mine. Its acknowledged strategy is to work with a company on its MLP and PEPR for however long it takes to ensure that, at the end of the day, it meets all the requirements needed to gain approval. This is not the approach of a department committed to independent, unbiased assessment based on merit and competence. YPLOG is concerned that if a company requires such extensive guidance to get their submissions “right”, how can we, as a community, have any confidence in the ability or competence of that company to successfully operate a complex, large-scale mine which has the potential, if things go wrong, to seriously contaminate the surrounding environment.
This “collaborative”, negotiated approach also has the potential to allow companies to exert undue pressure on the Department during these interactions. For example, we are aware of Mining Lease conditions being changed in favour of the company in the period between the initial tenement offer and the company’s final acceptance of that offer.
This is in stark contrast to the relationship (or rather, non-relationship) between the Department and landowners/broader community. There are no avenues for meaningful, ongoing discussions, let alone negotiations with government decision-makers. In the main, we are relegated to a position of passive bystander in the assessment and approval process.
- Regulation –
there is a widespread view amongst SA farmers
that the Department’s regulatory oversight at all stages of the resource
operation is woefully inadequate.
- Especially at the exploration stage, the Department relies heavily on self-reports by the company. For example: each company is required to submit a compliance report within 12 months of completion of the activity demonstrating that it has complied with all its lease conditions, such as rehabilitation of disturbed land etc. But these reports, based entirely on self assessment, are generally signed off by the Department without any on-site assessment or any attempt to seek independent verification from the directly-impacted landowners.
- Lack of on-site inspections also means breaches go undetected. By default, responsibility for reporting such breaches rests with the landowner, who is often not aware of the conditions the company is required to adhere to. In one instance on YP, a breach involving drilling within 400 metres of a residence only came to light several years after it had occurred, as a result of a court hearing relating to a different matter and well after the Department had signed off on the company’s compliance report. When informed of this breach, the Dept admitted it was unaware of this incident and had not been informed by the company.
- Failure to respond adequately to breaches. Again, the general perception, based on the experience of individual farmers, is that if a breach is “proved” the usual response is a “slap on the wrist”. In the example mentioned above, the company was required to apologise to the farmer and assure the Department it would not happen again. For more serious breaches, in at least some instances we are aware of, the Dept had to rely on data provided by the company to determine whether a condition had been breached. Again, this points to a lack of independence in the investigation process.
As a result of YP farmers’ experience with the Department’s regulation of exploration companies, there is considerable concern that the same inadequate level of supervision will be provided for the proposed Hillside Mine.
Other concerns which will not be canvassed here include
- lack of transparency;
- lack of public accountability
- Changing the goal posts in favour of mining companies
- A propensity to rely on ambiguous statements in response to community questions that can be interpreted in a number of ways. Even when the Department is aware that the community has interpreted department advice incorrectly, no attempt is made to correct that misinterpretation if it suits their purpose.
As a result, many farmers now believe they cannot trust the Department. Yet it is this Department that they are forced to rely on to ensure inappropriate developments are not approved, and those which are approved are rigorously regulated in accordance with the conditions imposed.
This situation has to change.
- ToR (c), (d) (e): Interstate jurisdictions and ”best practice” options
To identify potential alternative approaches for revamping South Australia’s land access regimes for resource companies, we focused on
- Queensland’s Regional Planning Interests Act (2014) andir’s predecessor, the repealed Strategic Cropping Land Act (2011) and:
- NSW Strategic Regional Land Use Policy introduced in 2012.
We also considered
- WA’s Mining Act (1978) which, under S29, precludes the granting of an exploration or mining tenement over the top 30 metres of cultivated land without the consent of the owner, while allowing mining below that 30 metre limit. Approvals for underground mining appear to be automatic, as long as the surface layers are not disturbed.
As a stand-alone option for reform in SA, YPLOG rejected it on the grounds that it still relies exclusively on mining legislation to protect cultivated land. It also lacks the systematic, comprehensive detail of the Qld and NSW regimes. However, the option to prevent surface mining could, in certain situations, be included as an outcome option within a modified version of the Qld and NSW regimes.
Qld and NSW – a promising alternative
In 2012 both states introduced innovative regimes to protect their strategic agricultural land from resource activities. These changes were triggered by a growing recognition by Government that:
- the continuing expansion in resource activities was placing growing pressure on the state’s agricultural land; and
- to conserve and manage this finite resource “planning and approval powers should be used to protect such land from those developments that lead to its permanent alienation or diminished productivity” (Queensland Government August 2010).
In what seems to be a tacit acknowledgement that the required level of protection for agricultural land could not be achieved through existing mining acts, both states opted for new, stand-alone processes that:
- are completely independent of those mining acts;
- stand alongside of, and potentially override existing land access provisions of those Acts;
- bring an agricultural rather than a mining perspective to bear in dealing with resource proposals by committing to a set of objectives which (to varying degrees) prioritise the need to protect agricultural land; and
- Put in place what is intended to be a comprehensive, objective, rigorous and transparent assessment and approval process to achieve these objectives, with a strong focus on evaluating the potential impacts of resource development of identified strategic agricultural land.
The following section takes a closer look at both the Qld and NSW models, based on documents currently available to YPLOG.
- Stand-alone regimes – legislation or policy?
Queensland and NSW have opted for quite different approaches.
- Queensland chose to go down the legislative path. In 2011, it introduced its Strategic Cropping Land (SCL) Act (2011) which was subsequently replaced by the Regional Planning Interests Act (RPIA) (2014). Both come under the purview of the Department of State Development, Infrastructure, Local Government and Planning.
- NSW opted for a policy response and in 2012, after 16 months of public consultation, introduced its Strategic Regional Land Use Policy (SRLUP) Package (2012). We understand certain components of the Policy may be included in related Acts, but we still need to clarify this.
|YPLOG perspective: A legislative approach offers a stronger alternative for land access reform in South Australia compared with a policy framework. For example: it applies across the entire state: its endorsement, subsequent amendment or termination is subject to Parliamentary rather than purely Government scrutiny; andis less vulnerable to internal and unpredictable shifts in Government policies. In relation to Queensland, we consider it important to evaluate both the SCL Act and the more recent RPI Act because, although the Government claims the provisions of the SCL Act have been migrated to the RPI Act (2014) this doesn’t appear to be entirely the case. Some of the positive elements of the SCL Act seem to be missing from its replacement. Note: We understand that resource companies in both Qld and NSW who reach agreement with the landowner are excluded from any obligations under these Acts or Policy. This has been criticised by some farmers’ groups (see later section) and therefore needs more scrutiny.|
- Relationship to existing mining laws
In this jurisdiction, both the SCL Act and RPI Act sits alongside of, and potentially override the land access provisions of the mining act.
- The SCL Act: Apart from activities specifically excluded from the SCL Act (see s6), s7 states: “This Act applies despite any resource Act or the Environmental Protection Act.
- The RPI Act seems to strengthen this:
S5 (1) this Act applies despite any resource Act, the Environmental Protection Act the Planning Act or the Water Act 2000;
(2) a restriction or requirement under this Act applies as well as any restriction or requirement under the other act.
YPLOG has yet to identify the situation in NSW re the relationship between the SRLUP and
|YPLOG perspective: Any new legislation developed in SA designed to provide greater protections for the State’s cultivated land should be accompanied by relevant amendments to S9 of the Mining Act, as per Qlds SCL Act.|
relevant mining or other legislation.
- Objectives and Principles; an agricultural focus
Queensland’s SCL Act 2011;
As its title specifies, this Act focused exclusively on Strategic Cropping Land. In the lead-up to the drafting of this Act, the Qld Government stated its intention to: :
.… to protect the best cropping land resources in the state so that they are able to be used for cropping and support a robust agricultural sector into the future.
In line with these, the Act stipulates:
The purposes of this Act are to:
- Protect land that is highly suitable for cropping;
- manage the impacts of development on that land; and
- preserve the productive capacity of that land for future generations (Part 2,s3)
It also lists five key principles: (Part 2, s11):
- Protection – which, “except in exceptional circumstances, …takes precedence over all development interests”
- Avoidance: – “if it is reasonably practicable to do so, development must avoid SCL”
- Minimisation – “wherever possible, minimise [development] impacts on SCL” and “if impacts are temporary, fully restore the SCL to its pre-development condition”.
- Mitigation: “only relied on if the impacts of development can not otherwise be reasonably avoided or minimised…..”
- Productivity: “SCL must be conserved for the future productivity of cropping in the State”.
Queensland’s RPI Act
By comparison with the SCL Act, the stated objectives of the RPI Act are notably weaker. Rather than stressing the need to protect and preserve SCL, the emphasis changed to management and co-existence:
“The purposes of this Act are to:
(3)(1 )(c) manage, including in ways identified in regional plans ….
- The impact of resource activities and other regulated activities on areas of regional interest; and
- The co-existence, in areas of regional interest, of resource activities and other regulated activities with other activities….
The SCL Act’s five Principles were not migrated across to the RPI Act, but some version was included in the Regulations as Required Outcomes, with what appears to be a much stronger focus on managing impacts, not preventing them.
The Act did, however, increase the number of areas of Regional Interest. It now applies to;
- Priority Agricultural areas (PAAs) – defined as one or more highly productive agricultural areas that contain a water source and where a resource activity could have a negative impact on that water source:
- Priority Living Areas (PLAs )
- Strategic Environmental Areas (SEAs) and
- The original Strategic Cropping Land Areas (SCA)
NSW Strategic Regional Land Use Policy (SRLUP)
The stated purpose of this Policy, which applies to large-scale mining activities on mapped strategic agricultural land, is to:
“provide greater protection for valuable agricultural land and water resources from the impacts of mining and coal seam gas proposals” while trying to “belter balance competing land uses.” (CORRS; 2012)
Based on this definition, NSW identifies two categories of strategic land requiring special protection:
- Biophysical Strategic Agricultural Land, based on soil fertility, land capability and a reliable water source.
- Critical Industry Clusters:
- concentration of enterprises that provides clear development and marketing advantages based on agricultural products
- Productive industries that are interrelated
- Unique combination of factors such as location, infrastructure, heritage and natural resources
|YPLOG Perspective; The Objectives and Principles of the SCL Act are preferable because they ostensibly reflect a stronger commitment to the protection of strategic land than either the RPI Act or NSW’s SRLUP.|
- Delivering the legislative/policy objectives
To deliver their objective of providing greater protection for agricultural land, both the Queensland legislation and the NSW policy package sets out to provide a comprehensive, objective, rigorous and transparent assessment and approval process to assess resource proposals on potentially strategic agricultural land.
In very broad terms, the processes implemented in both states include:
- Step 1: methods for defining, identifying and mapping strategic agricultural areas within the State:
- Step 2: A stipulated methodology to enable resource companies to determine whether the specific section of land they require for their operations does/does not qualify as strategic land and if it does, document potential impacts on that land and
- Step 3: clear Government assessment and approval processes.
- The description of processes provided below for Queensland applies to SCAs as outlined in the RPI Act. However, these appear to closely mirror the original processes in the SCL Act itself.
- Priority Agricultural Areas are not discussed here because of time constraints, but could potentially have some applicability to Yorke Peninsula.
Step 1: Identifying Strategic Cropping Areas in Queensland – the Trigger Maps
As a starting point, the entire state of Queensland has been mapped to identify very broad regions which, based on climate and soil qualities, were considered capable of supporting dryland or rain grown crop production, both now or in the future,
Five zones have been identified (see Figure 1). These provide the “Trigger” for instigating the RPI Act’s assessment and approval process. If the proposed operations of a resource company fall within any of these broad regions – ie within potentially strategic cropping land – these operations must comply with the provisions of the RPI Act.
A process also exists to amend the maps to exclude any sections of land within an SCA which, through various methods, have been reclassified as non-SCA land (see Figure 2). One reason for reclassification is where, as a result of a validation application by a resource company, it is determined that the land in question does not meet the SCL criteria (RPI Act Guidelines 10/14).
A comparison between Figures 1 and 2 indicates that large areas within each zone have now been reclassified.
|YPLOG concern: The ability to reclassify agricultural land within a SCL area because a resource company has obtained a validation assessment stating that the section of land it is seeking to access doesn’t meet one or more of the eight criteria for SCL raises serious questions. Does it (or could it) result in a patch-work situation within a region, where one small area is classified as non-SCL (allowing mining to proceed) while a neighbouring area is judged SCL? If so, what are the implications for agricultural productivity on a regional scale if there is still the potential for mines to locate adjacent to or in proximity to farmland classified as SCA?|
Step 2: On-site investigation
Having identified that its target area falls within a broad SCA zone, a resource company then has to undertake a potentially rigorous, scientific, on-site assessment to investigate either (a) the land does not meet the physical criteria used to define SCL  or (b) if it does, identify the potential impacts on that land. There are eight criteria to guide this, relating to slope, rockiness and soil characteristics. The target area only has to fail one of those eight criteria to be reclassified as non-SCL. If it wants to proceed, the company must then lodge an application seeking Regional Interests Development approval. .
Step 3: Approval phase
Decisions re each Regional Interests Development Approval application must be determined by the Chief Executive. Official verification that the land is not SCL means the company is exempt from any further processes under the RPI Act. If the land is judged to be SCL, approval with or without conditions may be given if the impacts are considered minimal or manageable. If the impacts will be permanent, one of the conditions may require to company to contribute to a Mitigation Fund (see Part 4 of the RPI Act).
NSW Strategic Regional Land Use Policy
NSW assessment and approval processes follow a relatively similar, step-by-step approach to that of the Queensland model; ie
- Step 1: at a broad regional level, identifies and maps strategic agricultural land
- Step 2; specifies on-site investigation processes the resource company must follow if the land they seek to access is potentially Strategic Agricultural land and
3 ; an assessment and approval process
to determine whether the development can take place.
Inevitably, though there are differences between the NSW and Queensland approaches (see below).
Step 1: Identifying and mapping Land
This represents one of the main differences between the two states. In contrast to Queensland, NSW has not undertaken a state-wide exercise to map its Strategic Agricultural Land but has adopted a regional-level approach. It focuses on developing Strategic Regional Land Use Plans within which strategic agricultural land is identified and mapped according to specific criteria for each of the two categories of land – ie Biophysical Strategic Agricultural Land and Critical Industry Clusters.
As in Queensland, this mapping is crucial because it acts as the “Trigger” for the Gateway process (see below).
Step 2: Determining whether a specific piece of land meets SAL criteria: site verification
This step appears to be relatively similar to that of Queensland, albeit with different criteria etc. A company wishing to undertake activities within land mapped as Strategic Agricultural Land is required to conduct on-site investigations according to set criteria. If it wishes to, it must then lodge an application with the Gateway Assessment Panel (see below) , either seeking verification that the land is not Strategic Agricultural Land, or seeking approval to proceed.
Step 3: Approval process – The Gateway process
The NSW approval processes differ markedly in several crucial respects from Queensland. Rather than a Departmental Chief Executive having sole responsibility for that decision, in NSW the company must apply for a Gateway Certificate. Responsibility for issuing that Certificate rests with a Gateway Assessment Panel, comprising independent scientific and other experts from agricultural science, water, mining. etc.
Interestingly, we understand the Gateway Panel process applies to both
- Strategic Agricultural Land within an existing Regional Plan, and
- to land outside these regions where landholders or mining operators apply for a site verification certificate to determine whether a piece of land is classified as biophysical Strategic Agricultural land.
The role of the Gateway Panel is to assess the potential impacts of the project’s activities on agricultural land and water: in particular, whether it would result in any significant reduction in agricultural productivity. Again, specific criteria are set.
- For Biophysical Land, the criteria includes impacts due to surface area disturbance, soil fertility, soil salinity and highly productive groundwater; and advice from the Minister for Primary Industries.
- For Critical Industry Clusters, it includes; surface water disturbances; reduced access to agricultural resources, support services and infrastructure, transport routes and loss of scenic and landscape values.
Following the assessment, the Panel has two options:
- to issue an unconditional Gateway Certificate approving the development without conditions: OR
- issue a Certificate subject to conditions, where the proposal has failed to mee some or all of the Gateway criteria. This may require the company to undertake further environmental studies or make physical changes to the project to avoid or minimise particular impacts.
In contrast to Queensland, where approval via the RPI Act process can be sought AFTER the company has applied for major approval under resource and other legislation, the Gateway process “kicks in” at a very early stage BEFORE a full Development Application can be lodged with the appropriate department.
|YPLOG preferences: New legislation to protect SA’s agricultural land should include an overarching strategy to ensuring objective, clearly defined and transparent, state-wide assessment and approval processes for resource companies; namely, Clear definitions for, and objective mapping of, the state’s cropping land; Clear processes and criteria to (a) determine whether the specific land required for the proposed resource activity meets those definitions and if so (b) determine the likely short and long term impact on that land; Objective, transparent and scientifically-based Assessment and Approval process that is independent of the mining department or its chief executive. However, wholesale adoption of one or other of the two interstate approaches is not appropriate. Instead, we should “cherry pick” only those aspects from each model that best suits South Australia’s specific environmental conditions and agricultural requirements and modify or change these as considered appropriate. For example: The NSW Gateway Certificate Panel seems preferable to Qld’s reliance on CE approval, as is the requirement that this Certificate must be approved before the Company can proceed to the lodgement of a full proposal under the Mining Act. However, the inability of the Panel to reject an application is not acceptable. On the surface, Queensland’s state-wide approach to mapping its SCL seems to offer some advantages. However, the NSW focus on regions also has some positive elements and should not be dismissed without further deliberation. SA actually started down this regionally-focused path in developing two Character Preservation Acts in 2012 , for the Barossa Valley and McLaren Vale. Although these two Acts were not designed to protect strategic cropping land, the regional approach may still offer some advantages.The determination of what is and is not suitable for adoption in SA will require further investigation based on a more thorough understanding of the two interstate systems.|
Significantly, the Gateway Panel DOES NOT HAVE THE POWER to refuse to issue a certificate. This inability to refuse seems to differ from Queensland, where the Chief Executive does appear to have the authority to reject an application on SCL. However, in preparing a full Development Application under the State’s Mining Act and other relevant agencies, the company must address any conditions imposed by the Panel.
- Other state-wide NSW initiatives to strengthen its land access regime system.
Some of the following initiatives sit outside the NSW Strategic Agricultural Land Use Policy Package.
- Land and Water Commissioner.
This position is established under the Mining Act 1992. Its aim is to restore confidence in the exploration process across the entire state. The Commissioner’s role is to:
- Review any exploration approval and advise government and the community on whether the assessment process has occurred in accordance with the regulations policy and Acts;
- Oversee the finalisation/implementation of standard land access agreements reached between the resource company and landowners for exploration activities
- Provide independent advice to the community re exploration activities on SAL throughout the State and to advocate for landowners. This includes guidance to landholders on applications for mining licences, access arrangements and compensation, and the rights and responsibility for mining companies.
- Agricultural Impact Statements
These are required for all new State Strategic Development applications for mining proposals that may impact agricultural resources, whether or not they are located on Strategic Land. It includes mining proposals that have received a Gateway Certificate.
The AIS must detail:
- The significance of the agricultural resources, including land and water, and associated businesses in the area and locality surrounding the proposal; and
- Potential impact of the project on agricultural land, water and businesses at a local and regional level.
The purpose of the AIS is to demonstrate that impacts on agricultural land are identified and minimised.
- Other initiatives
- Code of Conduct for Mining Companies
- Introduction of community comment process on exploration licence applications;
- Inclusion of community consultation re. exploration licence conditions and release of community consultation guidelines;
- Updated environmental assessment guidelines for exploration activities;
- Introduction of an Aquifer Interference Policy requiring exploration activities taking more than 3 megalitres per year from groundwater sources to hold a water licence.
|YPLOG preference; That these initiatives be considered for implementation in South Australia. YPLOG has been calling for an independent commission and Agricultural Impact Statements for many years, but to date these calls have been ignored.|
- Identifying on-the-ground criticisms/shortcomings of the Queensland and NSW systems to ensure SA avoids those problems
As with any legislation or policy, particularly ones that attempt to deliver a new approach to an issue, what looks good on paper may not translate into positive, on-the-ground results. Hence, in “cherry picking” from the NSW and Qld regimes, it is crucial that South Australia develops a clear understanding of the limitations of the two regimes to ensure we do not repeat the same mistakes. This can best be achieved via feedback from the key agricultural agencies and individual farmers.
Some preliminary indications of farmer criticisms of the Qld and NSW systems are outlined below.
Criticisms of Queensland’s RPI Act (2014)
The following list of criticisms is drawn partly from submissions by farmers’ groups to a current review of the RPI Act being undertaken by the Queensland Gasfields Commission. Despite the focus on gas developments, the concerns identified in these submissions appear to apply with equal validity to agriculture.
- Approval outcomes:
NONE of the 42 applications under the Act seeking approval for mining or CSG projects on Qld’s mapped Regional Priority Interests Areas have been refused since the Act commenced. The RPI Act is therefore not preventing resource development in strategic agricultural areas.
- Purpose of RPI Act:
There is not clearly stated legislative objective to fully protect or avoid impacts on SCAs. Instead, the focus in on managing the impacts of resource development on strategic cropping land and achieving the co-existence of mining and agriculture. This differs from the repealed SCL Act which clearly stated that its purpose was to protect land highly suitable for agriculture and preserve its productive capacity for generations to come.
- Criticism re the Trigger map and
- Inconsistent mapping across Qld
- Uncoordinated and inconsistent definition and classification of agricultural land across Qld;
- Definitions of SCAs don’t appropriately reflect the agricultural land the Act seek to protect.
- Statutory guidelines exist for removing SCA designation over land on the Trigger maps but none to allow the addition of new land.
- Exemption from RPI Act processes
Too easy for a resource company to gain an exemption. Reasons for an exemption include:
of landowner. As a result, there is no requirement
for independent verification that the activity will not impact on SCA or land
owned by someone other than landowner.
- Duration of activity less than 1 year – this exempts most exploration activities.
- Pre-existing resource activity
- Regional Interests Development
Application: Assessment and approval:
- Assessment criteria inadequate
states resource activity must not result in material or permanent impact:
- But material impact not defined.
- Permanent impact – defined as impacts that will endure for 50 years of more and prevents cropping during that time or in the future.
Note; the latter point is of significant concern to SA farmers.
- Mitigation fund: Concerns re the provision that allows permanent impacts on SCL that cannot be remediated to be approved if the proponent makes a contribution to mitigation fund.
- Inconsistencies and concerns re approval processes resulting in lack of
certainly for farmers
- Inadequate accountability, transparency and independent oversight
- Agricultural Department not required to be involved in approval process
- Significant discretion in decision-making process, including the degree of discretion available to Chief Executive
- Inadequate opportunities for meaningful community involvement – eg limited requirements to notify communities re Regional Interests Development Approval application for activities in SCL
- No third party appeal process.
- Timing of Regional Interests Development Approval application:
A resource company can apply for and be granted all other approvals before applying for Regional Interests Development approval which makes the rejection of that application more difficult.
Criticisms of NSW Strategic Regional Land Use policy
In the absence of any recent public review of this policy, critiques of the system from an agricultural perspective are scarce.
The following comment are taken from one source only – FarmOnline – in response to the release of the SRLUP in 2012. YPLOG is currently seeking further information from interstate agencies.
- NSW Farmers President, Fiona Simson : Policy provided “watered down” protections that provided a virtual green light for exploration and mining across most of the State.
|YPLOG preferences: In drafting new legislation relevant to SA a comprehensive assessment of criticisms and shortcomings of the Queensland and NSW regimes expressed by key Agricultural groups and individual farmers should be undertaken and;. All identified shortcomings should be either avoided or rectified.The aim should be to produce legislation that is better than either Qld or NSW, ensuring that we have what could justifiably be regarded as a “best practice” regime that delivers meaningful protection for our diminishing agricultural land from the impacts of resource development.|
- ToR (f) Any other matters
Most of the preceding discussion has focused on examining the ways in which resource companies can gain access to strategic agricultural land. This is undoubtedly the Number One concern of YP farmers. However, it is clear that even in the Qld and NSW jurisdictions, exploration and mining on that land can occur.
In its original submission to the Mining Act Review, YPLOG identified a number of shortcomings in the mining legislation (and with DEM) pertaining to responsibilities, processes and practices of exploration and mining companies once activities commence.
We will not revisit those concerns at this point, except one (below).
Lack of “best practice” rehabilitation for mine sites
One issue which we urge the Select Committee to consider is the need for “best practice” rehabilitation standards and a Rehabilitation Code of Practice for exploration and mining companies in this State.
A report by the Australian Institute (Campbell et al, April 2017) indicated that more than 60,000 abandoned and rehabilitated mine sites exist across Australia. A number of these are recent, not legacy mines. The problems identified included non-backfilling of large, open pits, leaving waste rock dumps in situ and tailings dams being inadequately contained.
The report indicated that in New South Wales alone, approval has been granted for 45 massive coal pits, or voids, to be left after mining finishes, including 12 in the Upper Hunter region.
South Australia is going down the same path as evidenced by its approval in 2014 of the rehabilitation plans put forward by Rex Minerals for its proposed massive, open-cut copper mine on Yorke Peninsula. The pit itself – covering over two square kms and a half a kilometre deep – will not be backfilled; large waste rock dumps will be left in situ and the tailings dam, with its potentially harmful materials, will simply be covered over. This is completely unacceptable for a mine located in the midst of highly productive cropping land.
In June 2020, the Queensland Government introduced legislation to provide for a new independent Rehabilitation Commissioner to oversee improvements and integrity in land rehabilitation from mining and other impactful activities in Queensland.
|YPLOG perspective; The Queensland initiative (above) along with any other interstate initiatives designed to redress the mounting problem of unrehabilitated mine sites should be investigated as a matter of urgency, with a view to developing a “Best practice” rehabilitation model in South Australia. In doing so, particular focus should be placed on identifying appropriate standards and practices for mines located in the State’s productive agricultural land, in order to protect that land from long term contamination risks.|
Recommendations to the Land Access Select Committee Inquiry
In addition to noting the YPLOG perspectives outlined in preceding pages of this submission, we urge the Select Committee to adopt the following:
That the South Australia Government acknowledges that our limited agricultural land requires strong and effective protection against inappropriate resource development.
To achieve this, commit to the development of separate legislation that sits outside of, and overrides, the Mining Act as it pertains to land access requirements by resource companies in areas of strategic agricultural land.
Establish a process for developing that legislation in consultation with relevant stakeholders, landowners and the community.
In drafting that legislation, “cherry pick” the best aspects of the Queensland and NSW models (or any other relevant models not yet identified) that are applicable to South Australia’s specific environmental and agricultural characteristics. These should include:
- a comprehensive strategy for identifying and mapping SA’s strategic cultivated land;
- clearly defined, objective criteria to assess each resource application targeting cultivated land;
- an independent body to assess each application.
In doing so, a detailed understanding of Qld’s state-wide versus NSW regional approach should be fully investigated to identify their relative applicability to SA.
|YPLOG/CFG Submission written by Joy Wundersitz (chair), with input and assistance from YPLOG/CFG Committee members: Stephen Lodge, Bill Maloney, Peter Klopp, Alex Brown, Stewart Lodge, Tania Stock, Sue Davey, Ben Wundersitz, Brenton Davey, Lauren Kakoschke, Elden Oster, Graham Mattschoss, Anthea and John Kennett. On behalf of YPLOG’s 300+ registered members and those 250 individuals (both members and non-members) who specifically requested that their names be added to the YPLOG submission as evidence of their support for its recommendations. Note: The submission forwarded to the Select Committee listed all names and email addresses for these 250 individuals. However, these details have been omitted from this public version of the submission to protect their privacy.|
Before adopting any of the NSW or Qld approaches, identify all limitations of those regimes (both at a legislative and implementation level) and determine whether and in what ways these could be redressed to suit the South Australian context.
Appendix 1 References
Note; the following cites only the most relevant documents used in preparing this submission.
- Strategic Cropping Land Act 2011. Current as at 1 Feb 2013
- Regional Planning Interests Act 2014. Current as at 3 July 2017
- Current as at 28 August 2020
- Protecting Queensland’s Strategic Cropping Land ; A policy Framework. Dept of Environment and Resource Management, August 2010
- Strategic Cropping Land; Policy and planning Framework. Discussion Paper. Qld Govt, Feb 2010
- Regional Planning Interests Act Statutory Guidelines 8/14 , Dept of Infrastructure, Local Government and Planning, 2017
- Regional Planning Interests Act and the Agricultural Sector. Dept of State Development, Infrastructure and Planning, Qld Govt (no date).
- Regional Planning Interests Act Statutory Guidelines 11/16 Companion Guide, Qld Govt. August 2019
- Review of the Region Planning Interests Act 2014 2021; EDO, 2019
- Groups call for regional planning overhaul amid resource interest, Brisbane Times, Feb 2020
- Submission to Gasfields Commission Queensland’s review of the Regional Planning Interests Act 2014. Queensland Farmers Federation March 2021
- Submission to Gasfields Commission Queensland’s review of the Regional Planning Interests Act 2014. AgForce Queensland Farmers Ltd, March 20201
- Review of the Regional Planning Interests Act 2014. Cotton Australia, March 2021
- Release of the Strategic Regional Land Use Policy – what it means for coal and gas projects on Strategic Agricultural land. CORRS, Sept 2012
- Strategic Regional Land Use Plan Upper Hunter. Sept 2012
 This submission deals only with mining as defined in the Mining Act.
 YPLOG is in the process of obtaining further information from relevant agencies in both Qld and NSW. Descriptions and interpretations outline in this submission may change as a result.
 The same criteria apply across all five zones but thresholds vary in response to regional differences in climate, land forms and cropping systems.
 Queensland Farmers Federation (27 March 2021): Cotton Australia (17 March 2021): AgFoce – Queensland Farmers Ltd ( 22 March 2021); Environmental Defenders Office Queensland (March 2021)
 These recommendations are preliminary only