3.1 Legislative framework

In Australia, state-based approvals of mining, oil and gas projects deemed to be environmentally significant involve a two-step process in which the project proponent first gains a tenure, mining title or licence, generally from a resource-related government department, that gives access to the land. Then, before operations begin, the project undergoes a rigorous assessment by an environmental authority, usually from an environment-related government department.

The states have various criteria for identifying ‘environmentally significant’ projects. Typically, they include those that:

  • have a number of environmental issues
  • have a greater magnitude, duration, frequency and extent of impacts
  • are affected by international, national or state/territory legislation or treaties for the protection of natural habitats, flora and fauna
  • pose significant risk or hazard to public safety
  • have potential for significant pollution to occur.

(Source: DME 2011)

In the past, the states’ environmental regulations were highly prescriptive, but, as with WHS regulations, the onus is now on the proponent to demonstrate that their project’s environmental impacts can be managed in a manner that complies with statutory obligations and meets community expectations. As in all risk management processes, risks and their causes and potential consequences must be identified, and measures proposed to avoid or minimise any associated adverse impacts.

In all states, the environmental approval process (for environmentally significant projects) requires the project proponent to:

  • develop an environmental impact statement (EIS) on the effect of their mining operations on the immediate mine area as well as adjacent areas
  • develop an environmental management plan (EMP) that outlines how they will monitor and audit their operations throughout the life of the project, including how they will rehabilitate the environment after mining (EMPs are subject to regular reporting to and inspection by regulatory agencies).

Together, the EIS and EMP processes typically require the proponent to:

  • engage with communities, local government and state government agencies
  • identify the environmental (including biophysical, social and economic) costs and benefits of the proposal
  • collect qualitative and quantitative data that enables the existing (or baseline) conditions to be measured and provides a basis for measuring future impacts
  • develop impact management strategies, often in consultation with affected communities and government agencies
  • implement, monitor, review and report on their impact management strategies.

Another feature of this process is that the public are given the opportunity to object to proposals.

In developing an EIS, proponents must address mining-related effects according to particular categories of the environment both within and outside the mining lease. The environment is commonly defined in states’ legislation as including:

  • land, air, water (including surface and underground water and seawater), organisms, ecosystems, native fauna and other features or elements of the natural environment
  • buildings, structures and other forms of infrastructure and cultural artefacts
  • existing or permissible land use
  • public health, safety and amenity
  • the geological heritage values of an area
  • the aesthetic or cultural values of the area.

(Source: PIR 2011)

The specific environmental issues that are nominated in NSW EIS guidelines as potentially important in the assessment of impacts in relation to coal mines, for example, are:

  • transportation issues (including road safety issues)
  • soils and geological issues
  • water issues
  • air quality issues
  • noise, vibration and blasting issues
  • flora and fauna issues
  • Aboriginal heritage issues (this includes impacts caused by subsidence, vibration and changes to hydrological patterns)
  • other heritage issues
  • visual impacts
  • coastal issues
  • hazards issues
  • social and health issues
  • economic issues
  • cumulative issues.

(Source: DUAP 2000)

The NSW social impact assessment further outlines the risks that should be considered in relation to the health of the community and those that could result from any potential changes in air quality, noise and vibration, safety on the roads, and the flooding regime.

All states’ legislation requires that mining companies risk-assess their social impacts on local communities and people. As can be seen in Table 3.1, mining company activities have the potential to affect local councils; neighbouring residents, landowners and lease holders; the wider community; special interest groups; government agencies; and the wider mining industry.

In Queensland, the EIS process includes a separate social impact assessment that requires proponents to address community and stakeholder engagement; workforce management; housing and accommodation; local business and industry content; and health and community wellbeing. The process by which mining companies are required to do this is by engaging with local stakeholders and government agencies to measure existing or baseline social conditions, and then by developing, implementing, monitoring, reviewing and reporting impact management strategies (DSDIP 2013). Table 3.1 summarises the issues that need consideration due to different legislative requirements.

Table 3.1: Issues needing consideration due to different legislative requirements

Environmental component that may be affected Local council Residents/landowners/lease holders Wider community Special interest groups and government agencies Resources management
Local community
Land use
Housing and infrastructure
Amenity and landscape
Noise, dust and air quality
Hydrology
Groundwater
Vegetation, weeds and plant pathogens
Fauna
Topsoil and subsoil
Heritage

Source: PIR (2011).

CASE STUDY: Hazelwood mine fire

The complexity of the legislation covering mines, particularly when it relates to off-lease effects, was demonstrated by the inquiry into the Hazelwood mine fire in Victoria in 2014.

REGULATION OF VICTORIAN COAL MINES

Regulation of Victorian coal mines is complex and has evolved considerably over time.

The principal regulatory mechanisms that govern the risk and prevention of fire at the Hazelwood mine are mine licensing laws, which are administered and enforced by the Earth Resources Regulation Branch of the Department of State Development, Business and Innovation (the Mining Regulator) and occupational health and safety (OHS) laws, which are administered and enforced by the Earth Resources Unit of the Victorian WorkCover Authority (VWA).

From 1 January 2008, responsibility for oversight of OHS matters in Victorian mines transferred from the Mining Regulator to VWA. From this date, the Mining Regulator no longer considered itself to have any role in regulating fire risk at the Hazelwood mine.

The Mining Regulator and VWA each adopted a narrow reading of the statutory regime underlying their respective areas of responsibility. Contrary to arrangements between the Mining Regulator and VWA, which contemplated collaboration and consultation on areas of overlapping responsibility, such as public safety risks, the agencies operated in silos. The Board was concerned that the manner in which the transition for OHS responsibility to VWA was effected meant that expertise and knowledge relevant to assessing fire risk at the Hazelwood mine was potentially lost.

The combination of these factors resulted in a gap in regulation of the Hazelwood mine in respect of fire risks with the potential to impact on Morwell and surrounding communities, such as that which manifested in 2014. The Hazelwood mine fire was a foreseeable risk that slipped through the cracks between regulatory agencies. This reality must be confronted if similar incidents are to be avoided in the future.

The Mining Regulator doubted whether it had the necessary legislative power to regulate fire risk in Victorian mines, notwithstanding that the Regulator’s statutory objectives include ensuring that the health and safety of the public is protected in relation to work being done under a mining licence. The position adopted by the Mining Regulator is not, in the view of the Board, the only interpretation open of the Mining Regulator’s regulatory power. This uncertainty is likely to be resolved when legislative amendments enacted in February 2014 come into effect.

Source: Hazelwood Mine Inquiry (2014).

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