Posted on November 25, 2011 by Frances Tse

Commonwealth approval to be required for certain mining operations

The Environment Protection and Biodiversity Conservation Amendment (Protecting Australia’s Water Resource) Bill 2011 was introduced into the Senate on 1 November 2011.

The purpose of the Bill is to amend the Environmental Protection and Biodiversity Conservation Amendment Act 1999 (EPBC Act) to require approvals (under Part 9 of the EPBC Act) to be obtained for actions taken in the course of mining operations that have or will have or are likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource (Actions).

The Bill, if and when it is enacted, will retrospectively apply to all Actions taken after its introduction into the Senate, meaning that all Actions taken on or after 1 November 2011 will require approval.

It will be a criminal offence and a breach of the EPBC Act to take an Action without the required approval. The criminal liability will extend to executive officers of bodies corporate and landholders in certain circumstances.

The amendment proposes to introduce an expanded definition of ‘mineral’ and ‘mining operations’ to the effect that ‘mining operations’ will cover the mining and recovery of coal seam gas.

The broad definition of ‘water resource’ that will be introduced also ensures a wide protection of water resources.

Not all Actions will fall under the jurisdiction of the EPBC Act. The Actions will be limited to ones taken by:

  • a constitutional corporation,
  • the Commonwealth or a Commonwealth agency,
  • a person, for the purposes of trade or commerce between Australia and another country or between 2 States, or between a State and a Territory, or between 2 Territories,
  • a person in a Commonwealth area or a Territory.

Additionally, approval under Part 9 of the EPBC Act will not be required for an Action if:

  • there is a bilateral agreement or Ministerial declaration to that effect, or the Action is covered by a conservation agreement or has prior authorisation, or
  • the Minister has decided under Division 2 of Part 7 of the EPBC Act that the provision that requires an approval to be obtained for the Action does not apply to the Action, or
  • the Action is one whose authorisation is subject to a special environmental assessment process.

Of interest and certainly what will become a source of dispute will be what ‘significant impact’ means in this context.

Persons who are undertaking mining operations whose actions may be considered Actions which fall under the jurisdiction of the EPBC Act and owners of land on which such mining operations occur should closely follow the passage of this Bill and ensure that they are prepared to ensure the necessary approvals are obtained when the EPBC Act is amended.