The HopgoodGanim Lawyers Resources and Energy team has prepared this update on recent developments in the Queensland Resources and Energy Sector:
100% fly-in fly-out (FIFO) ban commences this week
From 30 March 2018, the Strong and Sustainable Resource Communities Act 2017 will prohibit the use of a 100% FIFO workforce for the operational phase of a large resource project that has a nearby regional community.
- When this may be important to you: if you have an interest in a large resource project.
- Recommended action: ascertain whether or not your project is a “large resource project” and, if necessary, seek advice on whether the new laws affect your employment strategy.
Vegetation management laws changing from 8 March 2018
The Vegetation Management and Other Legislation Amendment Bill 2018 has been reintroduced to establish controls on regrowth vegetation and target broad-scale clearing associated with agricultural activities.
- When this may be important to you: if you have plans for clearing vegetation as part of resource activities.
- Recommended action: it is important to review the proposed new vegetation and essential habitat maps to determine whether they show any changes to land affected by your project.
Financial assurance reform
The Mineral and Energy (Financial Provisioning) Bill 2018 amends the current financial assurance requirements for resources activities, by introducing a financial provisioning scheme where most Environmental Authority (EA) holders will make contributions to the Financial Provisioning Fund.
- When this may be important to you: if you hold an environmental authority for a resource authority.
- Recommended action: be aware that the financial assurance regime is changing. If the Bill is passed, EA holders will be issued with a “transition notice” before being assessed and allocated into a risk category.
Indicative approval of the transfer of a resources authority is judicially reviewable
In Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21 the Queensland Supreme Court found that an indicative approval for the transfer of a resource authority is a decision which can be subject to judicial review.
- When this may be of importance to you: if you receive an indicative approval for a transfer of a resource authority.
- Recommended action: be aware that your indicative approval may be subject to judicial review by an aggrieved person potentially causing delay.
Lock the Gate found not to have a ‘special interest’ in relation to the imposition of financial assurance
As in the other Lock the Gate case above, in Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22, the Queensland Supreme Court found that Lock the Gate did not have standing under the Judicial Review Act, in this case to obtain a statement of reasons for a decision on the amount and form of financial assurance required to be provided for a mining lease.
- When this may be of importance to you: if an administrative decision is made in relation to your project.
- Recommended action: ensure you are aware of any stakeholders with a ‘special interest’ in environmental matters concerning your projects. These parties will only be able to obtain statements of reasons and seek judicial review of administrative decisions for the project if they are an “aggrieved person”, who can show that the decision will have an effect on their interests which is different from, and beyond, the effect on the public at large.
Amendments to mine safety legislation
The Mine Legislation (Resources Safety) Amendment Bill 2018 introduces amendments to the Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act, including new requirements for executive officer liability.
- When this may be important to you: if you have an interest in a mine and/or if you are an ‘officer’ of a corporation with an interest in a mine.
- Recommended action: ensure that all health and safety obligations are complied with and that all officers take positive steps in exercising due diligence to ensure the corporation complies. Coal miners should confirm that any ventilation officers have the required certifications and small opal and gem miners with four or more employees must now introduce a single safety and health management system.
100% fly-in fly-out (FIFO) ban commences this week
On 30 March 2018 the following aspects of the Strong and Sustainable Resource Communities Act 2017 will commence:
- the prohibition of a 100% fly-in fly-out (FIFO) workforce for the operational phase of a large resource project that has a nearby regional community; and
- the requirement for owners or proponents of a large resource project to prepare a social impact assessment informed by stakeholder consultation as part of the EIS for the project.
The new laws also prohibit proponents of large resource projects from discriminating against persons in nearby regional communities when recruiting workers.
A list of affected projects and their nearby regional communities will be published by the Coordinator-General on the Department of State Development, Manufacturing, Infrastructure and Planning website.
When this may be important to you: if you have an interest in a large resource project
Recommended action: ascertain whether or not your project is a ‘large resource project’ and, if necessary, seek advice on whether the new laws affect your employment strategy.
You can read more about the impacts of the legislation here.
Vegetation management laws changing from 8 March 2018
The Vegetation Management and Other Legislation Amendment Bill 2018 was introduced into Queensland Parliament on 8 March 2018.
Proponents should be aware that the conservation class of vegetation on your land may have changed, as well as the extent of essential habitat for near-threatened wildlife.
It is important to consider whether the new changes affect you as soon as possible and prior to doing any clearing on your land, as parts of the new legislation will commence from 8 March 2018.
The legislation reclassifies some vegetation areas that are currently unregulated (Category X on regulated vegetation maps) into to regulated vegetation (Category C or R).
The legislation also introduces new protections for high-value remnant and regrowth vegetation, regrowth along waterways, and new requirements for vegetation clearing codes.
If you have an existing certified property map of assessable vegetation (PMAV), it will not be affected by the new laws. New applications for PMAVs will be subject to the new laws.
Update - On 21 March 2018, Mr R Katter introduced the Vegetation Management (Clearing for Relevant Purposes) Amendment Bill 2018, a private member’s bill introducing an exception for grazing activities.
When this may be important to you: if you have plans for clearing vegetation.
Recommended action: It is important to review the proposed new vegetation and essential habitat maps to determine whether they show any changes to land affected by your project.
You can read more about the impacts of the legislation here in this in-depth analysis written by our Planning and Environment team.
Financial assurance reform
The Mineral and Energy (Financial Provisioning) Bill 2018 was introduced into Queensland Parliament on 15 February 2018, with only minimal changes to the 2017 Bill that lapsed with last year’s election.
The Bill replaces the current financial assurance requirements for resource activities under the Environmental Protection Act (EP Act) with a financial provisioning scheme, where most environmental authority (EA) holders will make contributions to the Financial Provisioning Fund. This will provide a source of funds that can be used by the State for environmental rehabilitation costs and expenses.
The Bill has been referred to the Economics and Governance Committee. The Committee is due to report back to Parliament by 20 April and it is anticipated that the Bill will be enacted in time for a 1 July 2018 commencement date.
When this may be important to you: If you hold an environmental authority for a resource authority.
Recommended action: be aware that the financial assurance regime is changing. If the Bill is passed, EA holders will be issued with a “transition notice” before being assessed and allocated into a risk category.
Content of proposed regime:
1. There will be a new financial assurance regime for all resource activities in Queensland
While the reforms came out of the Financial Assurance Frame Work Reform and Better Mine Rehabilitation for Queensland discussion papers, the amendments to the financial assurance regime will affect all tenure holders, not just the holders of mining leases.
2. Resources EA holders will be assessed for risk
Under the new scheme, resources EA holders will be allocated into the following risk categories:
- very low;
- low;
- moderate;
- high.
EA holders in the “very low”, “low” and “moderate” risk categories will be eligible to pay an annual contribution to the Financial Provisioning Fund, instead of needing to provide a bank guarantee or other security for their total rehabilitation costs.
The contribution payable will be calculated based on a prescribed percentage (currently unknown) of the lower of:
- the estimated rehabilitation cost (ERC) for the EA, being the Department of Science (DES) estimate of the cost of in rehabilitating the land on which the resource activity is carried out and preventing or minimising environmental harm, or rehabilitating or restoring the environment, in relation to the resource activity; or
- $450,000,000 (or another amount later prescribed by regulation).
EA holders in the “high” risk category will be required to provide a surety, in the form of a bank guarantee, insurance bond issued by a prescribed insurer or by payment of a cash amount.
3. Resources EA holders will need to prepare for assessment and transition to the new regime
Where EA holders have existing financial assurance held with the DES, this will initially be treated as a surety under the amendments to the EP Act.
Within three years of the commencement of these amendments, the scheme manager must give a transition notice to the EA holder, advising that they will make an “initial allocation decision”, to decide the initial risk category allocation of the holder. The EA holder will be notified of their indicative risk category allocation and will have the opportunity to make submissions.
There is no appeal process for decisions made by the scheme manager. A dis-satisfied person can seek judicial review of an initial allocation decision, but the decision can only be challenged or appealed against, to the extent it is affected by jurisdictional error.
EA holders will be able to seek internal review and the external review to the Land Court of an ERC decision.
4. There is still a lot unknown about the new regime
The fund rates for the scheme are not yet available.
The scheme manager has power to make statutory guidelines about the operation of the scheme, including the matters to be considered when making an initial risk category allocation. The draft Guideline is not yet available.
5. Mining EAs: Progressive rehabilitation and closure plans
The Bill also introduces new requirements for progressive rehabilitation and closure plans (PRC plans). This includes PRC plan schedules, with time based milestones for progressive rehabilitation of mined areas.
A site-specific application for an EA relating to a mining lease is now required to be accompanied by a PRC plan. Interested parties can make submissions on a PRC plan, and a submitter can then ask that its submission be taken to be an objection, leading to a new ground of objection in the Land Court.
Under the transitional provisions, DES has three years from the PRC plan start date to give notice to existing holders of a site specific EA for a mining lease, requiring them to submit a proposed PRC plan to comply with the new requirements.
Indicative approval of the transfer of a resource authority is judicially reviewable
On 22 February 2018, Justice Bowskill of the Supreme Court handed down her decision in Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21. The decision is the first to consider whether or not indicative approval under section 318AAV of the Mineral Resources Act 1989 (now contained in section 23 of the Mineral and Energy Resources (Common Provisions) Act) is reviewable under the Judicial Review Act 1991 (JR Act).
The issue to be determined was whether or not the decision to give indicative approval is a decision to which the JR Act applied. In doing so, the Court considered whether the indicative approval was in fact a ‘decision’, and further, whether Lock the Gate was an ‘aggrieved person’.
Justice Bowskill held that an indicative approval essentially provides certainty that the actual approval will occur where all conditions are complied with. Thus the decision, in effect, had the “capacity to affecting existing and new rights and obligations” and is therefore reviewable under the JR Act.
While these indicative approvals are likely to be reviewable in the future, in this instance, Lock the Gate Alliance Ltd was not found to be an ‘aggrieved person’ so they did not have standing.
When this may be of importance to you: if you receive an indicative approval for a transfer of a resource authority
Recommended action: be aware that your indicative may be subject to judicial review by an aggrieved person.
Lock the Gate found not to have a ‘special interest’ in relation to the imposition of financial assurance
Justice Bowskill handed down another decision on 22 February 2018, being Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22. This relates to an application by Lock the Gate to obtain a statement of reasons for the decision made under section 295 of the Environmental Protection Act 1994 determining the amount and form of financial assurance required to be provided by the holder of a mining lease in respect of the Blair Athol Coal mine.
The key issue was whether or not Lock the Gate was an aggrieved person. Justice Bowskill again found that while Lock the Gate are regarded as a stakeholder in the review of the financial assurance framework (see above for changes to financial assurance), this did not translate into a special interest in a decision determining the amount of financial assurance to be provided by a mining lease holder for a particular mine. Therefore Lock the Gate was not entitled to obtain the reasons.
When this may be of importance to you: where administrative decisions are made in relation to your projects.
Recommended action: ensure you are aware of any stakeholders with a ‘special interest’ in environmental matters concerning your projects. These parties will only be able to seek judicial review of administrative decisions for the project if they are an “aggrieved person”, who can show that the decision will have an effect on their interests which is different from (beyond) the effect on the public at large.
Amendments to mine safety legislation
The Mine Legislation (Resources Safety) Amendment Bill 2018 was introduced on 20 March 2018.
This Bill amends Queensland’s mining and coal safety legislation, including the Coal Mining Safety and Health Act 1999 (CMSH Act), the Mining and Quarrying Safety and Health Act 1999 (MQSH Act) and associated regulations.
The major amendments surround:
- Increasing the penalties for breaches of safety and health obligations, plus the introduction of new civil penalties for corporations where there are serious health and safety breaches of the CMSH Act and the MQSH Act.
- Changes to the membership requirements of the committees in both the CMSH Act and the MQSH Act.
- A new requirement in the CMSH Act for ventilation officers to obtain a certificate of competency.
- A requirement for the safety and health management system for the mine to be integrated with safety and health management systems of any mine contractors.
- For small opal and gem mines, the requirement to have a single safety and health management system for the mine now applies if the mine has four or more employees. Previously, this was only required where a mine had 10 or more employees.
- Changes to the executive liability provisions, for consistency with the duties of officers under the Work Health and Safety Act 2011. Officers of corporations are required to exercise due diligence to ensure that the corporation complies with its obligations under the CMSH Act or the MQSH Act. This amendment requires an officer to be proactive in taking steps to ensure compliance, rather than accountability only applying after contravention by the corporation. Exercising “due diligence” includes taking reasonable steps:
- to acquire and keep up-to-date knowledge of mine safety and health matters;
- to gain an understanding of the nature of operations at a mine and generally of the hazards and risks associated with those operations;
- to ensure the corporation has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to safety and health from work carried out as part of operations;
- to ensure the corporation has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
- to ensure the corporation has, and implements, processes for complying with any obligation of the corporation under the CMSH Act or the MQSH Act.
When this may be important to you: if you have an interest in a mine and if you are an ‘officer’ of a corporation with an interest in a mine.
Recommended action: ensure that all health and safety obligations are complied with, and that all officers take positive steps in exercising due diligence to ensure the corporation complies. Coal miners should confirm that any ventilation officers have the required certifications and small opal and gem miners with four or more employees must now introduce a single safety and health management system.
For more information regarding any of the above topics, please contact HopgoodGanim Lawyers’ Resources and Energy team.