Environment Protection and Biodiversity Conservation Amendment Bill 2013

The Environment Protection and Biodiversity Conservation Amendment Bill 2013 (the Bill) was introduced into Parliament on 13 March 2013 and proposes to amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC). The purpose of the Bill is to establish a new matter of national environmental significance (NES) in relation to the impacts coal seam gas and large coal mining development (together, the Developments) have on water resources.

According to the explanatory memorandum, the Bill proposed two major changes by:

  • Implementing civil penalties and offence provisions (similar to those that already existing the EPBC for existing NES) for taking an action involving the Developments that has, will have or is likely to have a significant impact on a water resource, without obtaining an approval or an exemption from approval under the EPBC; and
  • ensuring the impacts that the Developments have on water resources are assessed at a national level, in accordance with the assessment process under Part 8 of the EPBC.

The type of Developments that will be affected by the Bill are those that include “activities involving extraction”. Consequently, any part of the Developments that do not form part of the extraction process will not fall within the ambit of the Bill. For example, the definition of Coal Seam Gas Development would not generally include infrastructure used to transport coal seam gas, as this does not form part of the extraction process.

A ‘Water Resource’ includes surface water, ground water, a watercourse, lake, wetland or aquifer (whether or not it currently has water in it). A Water Resources includes all aspects of the water resource, including water and organisms.

Should the Bill be passed by Parliament and receive Royal Assent, the new provisions may apply to projects where development assessment or EPBC approval has already commenced. However as much as possible, the transition provisions are designed to minimise disruption to the assessment of existing projects.

The Department of Sustainability, Environment, Water, Population and Communities also intends to develop guidelines which set out the criteria to assist decision makers assessing whether a proposed action will have a significant impact on a matter of national environmental significant and subsequently require assessment and approval under the EPBC. The proposed guidelines will not be legally binding.

Committee to oversee QLD’s land access reform ‘Action Plan’ announced

As promised after the state election in 2012, the Queensland Government has confirmed the details of the committee that will advise them on the issues identified in the Six Point Action Plan to reform the state’s land access laws.
The seven member committee will be chaired by Dr David Watson, and will provide a forum for resource and rural industry bodies to resolve issues relating to resource sector development.
Other members of the committee include Wayne Newton, President, AgForce Grain Ltd; John Cotter, chair, Queensland Gasfields Commission; Dan Galligan, CEO, Queensland Farmers’ Federation; Matt Paul, Queensland Director, Australian Petroleum Producers’ and Explorers’ Association; Bernie Hogan, Regional Manager, Queensland, Association of Mining and Exploration Companies; and Andrew Barger, Policy Director, Queensland Resources Council.
The announcement also confirmed that the committee will specifically advise on:
  1. a review of heads of compensation to ensure no erosion of property rights and the expansion of Land Court jurisdiction to include matters of conduct;
  2. the introduction of an alternative dispute resolution process;
  3. the introduction of a requirement that any Conduct and Compensation Agreement (CCA) to be noted on land title;
  4. an option for parties to “opt out” of a formal land access agreement at the election of the property owner;
  5. the development of standard CCAs for mineral, coal and coal seam gas industries; and the creation of a single resource for property owners and resource companies.

Mining blog recap for 2012

2012 saw the merger between Herbert Smith and Freehills, creating one of the world’s most experienced energy and resources firms. As it draws to a close, we pause to reflect on some of the key developments in the mining industry.

This year we saw several regulatory and legislative changes take place in the mining sector:

  • New South Wales, Queensland, Northern Territory, Australian Capital Territory, South Australia, Tasmania and the Commonwealth all took steps to ensure the harmonisation of safety laws via the Model Work Health and Safety Act was introduced by January 1.
  • In August, Victoria declared a ban on approvals to undertake hydraulic fracturing (fraccing) as part of onshore gas exploration, and the issue of new exploration licences for coal seam gas (CSG). While Queensland took a significant step in reducing red tape by passing the Mines Legislation (Streamlining) Amendment Act 2012.
  • The new Indonesian Mining Law enabled foreign investors to hold business permits for the first time, although foreign investors are now required to divest ownership in companies on an incremental scale after 5 years of production (up to 51%).
  • The Commonwealth Government released, for comment, the exposure draft of the Native Title Amendment Bill 2012, which proposes substantive amendments to the Native Title Act 1993 (Cth).

In March, we reported that M&A transactions in the mining and energy sectors were buoyant, accounting for almost half of all deals in the preceding 6 months. Despite significant nervousness and negative opinions surrounding the market in recent months, Chris Richardson of Deloitte Access Economics suggested that the glass is still ‘half full’ for the resources sector at the Annual National AMPLA Conference.
In September, Queensland called for EOI in its lucrative bauxite leases, while also announcing an increase in coal royalties of up to 50 per cent per tonne. In October, Western Australia granted approval for Toro Energy to proceed with the State’s first uranium mine to be developed.
The year also saw a raft of inquiries and debates:

  • Coal seam gas (CSG) was on the agenda on the east coast. Victoria released a report entitled ‘Inquiry into Greenfields mineral exploration and project development in Victoria’, in a move to understand how better to develop and regulate Victoria’s CSG potential, while New South Wales tabled an inquiry into the environmental, economic and social impacts of mining CSG.
  • In October, the Productivity Commission announced a 12 month inquiry into the non-financial barriers to mineral and energy resource exploration to determine if there is unnecessary regulatory burden.

With still a month or two to go in 2012, be sure to keep an eye on our blog for further updates.

Unconventional moves: changes to WA onshore gas regulation

WA has proven it is alive to the fact that there is an increasing importance of unconventional gas resources, with the WA Department of Mines and Petroleum (DMP) releasing on Monday its response to Dr Tina Hunter’s report on the regulation of shale, coal seam and tight gas activities in onshore WA.

Stakeholders should take a keen interest this response as it proposes amendments to provide for public disclosure of the chemicals used in fraccing operations, and of approved environmental management plans – information which is usually commercially sensitive. 

Dr Hunter’s report was commissioned by the DMP to provide an independent assessment of the existing regulatory framework for unconventional gas resources. Their response indicates that changes are afoot for the regulatory regime for onshore gas activities in WA, particularly on key issues associated with development of unconventional gas resources – with the reform package seeking to propose:

  1. legislative amendments to mandate full disclosure of chemicals used in fraccing operations and publication of approved environmental management plans on the DMP website
  2. new Resource Management Regulations to regulate onshore petroleum activities and which will:
    • specifically address field sterilisation
    • incorporate requirements for field abandonment; and
    • address onshore decommissioning
  3. new Environment Management Regulations to regulate onshore petroleum activities including gas from unconventional sources and which will:
    • clarify guidelines for management of produced water from fraccing processes; and
    • include management guidelines for produced water from abandoned wells.

The Resource Management Regulations and the Environment Management Regulations are expected to be released for stakeholder input by mid 2012 and end 2011 respectively.