Project proponents must carefully consider areas within their project that they may be unable to access or utilise as first envisaged because of the regulation of restricted land.
There have been a number of moves in Queensland to impose controls on mining projects when it comes to their interaction with urban areas and improved rural land, however the resulting regulatory framework is a patchwork of legislation, policy, declaration and proposed legislation.
Urban restricted areas
Responding to community concerns about competing land uses (ie mining exploration vs developing urban centres), the Queensland Government introduced the Resources Legislation (Balance, Certainty and Efficiency) Amendment Bill 2011 on 16 August 2011 to create the concept of "urban restricted areas" that would have the effect of preventing applications for mining and gas tenures within 2 km of urban areas and communities with over 1,000 people, unless the relevant local government provided its written consent.
The Resources Amendment Bill 2011 proposed to:
- provide power for the Mining Minster to declare, amend and remove urban restricted areas under all resources legislation except geothermal and industrial minerals;
- involve local government in approving resource activity within urban restricted areas; and
- introduce a "restricted land" concept in the petroleum and greenhouse gas legislation because the Petroleum and Gas (Production and Safety) Act 2004 Qld (PAG Act), Petroleum Act 1923(Qld) and the Greenhouse Gas Storage Act 2009 Qld currently do not contain this type of restriction.
However, on 19 February 2012, the Resources Amendment Bill 2011 lapsed following a change in Government.
In contemplation of the above restricted land provisions commencing, the former Queensland Premier declared various urban areas in Queensland as Restricted Area 384 (RA 384) under the Mineral Resources Act 1989 (Qld) (MRA) on 16 August 2011.
RA 384 was seen as an interim restriction prohibiting further new applications for mining exploration of coal, mineral, or coal seam gas exploration tenements in and around urban areas. While this restriction is in place, the Government will not grant any new exploration tenements in these areas. It does not affect the then current applications or grants of mining development licences or mining leases.
RA 384 restricted area predominantly consists of a large area surrounding Brisbane as well as areas around various regional cities and towns, such as Ipswich, Beaudesert, Rockhampton, Mackay and St George, in Queensland. The restricted areas in RA 384 can be summarised as covering:
- all towns in South East Queensland (as identified in the SEQ Regional Plan 2009-2031) plus a 2 km buffer zone;
- regional cities that have a population or planned population of 1,000 or more, plus a 2 km buffer zone; and
- specific sub-blocks contained within the RA 384 declaration.
(A map of RA 384 can be obtained using the interactive resource and tenure map on the Department of Natural Resources and Mines website.)
Approximately 285 existing exploration permits are affected according to the chief executive of the Association of Mining and Exploration Companies.
Separate from RA 384, there is another restriction, Restricted Area 394, which prevents any new applications for coal tenure being accepted over any land in Queensland while the State moves to the recently enacted controlled land release system for coal utilising a competitive bidding tender process.
Omission of restricted land provisions
Following the lapse of the Resources Amendment Bill 2011, the Queensland Government introduced the Mines Legislation (Streamlining) Amendment Bill 2012 (Streamlining Bill 2012), on 2 August 2012, in largely the same form as the Resources Amendment Bill 2011, but did not include the provisions dealing with restricted land and urban areas.
A number of submissions in relation to the omission of restricted land provisions were raised with the Agriculture, Resources and Environment Committee (ie. the parliamentary committee that conducted a review of the Streamlining Bill 2012). A key message of the submissions to the Committee was that a restriction on mining near urban areas was necessary to protect residential areas and community amenity.
The Department of Natural Resources and Mines responded to this issue by stating that an "alternative approach is being adopted on this issue and the interface between resource exploration around population centres was now being managed through a comprehensive and consultative statutory regional planning framework."
Hearing this response, the Committee accepted the omission of the restricted land provisions from the Streamlining Bill 2012, being satisfied that the proposed regional planning processes would provide more protections to the State's communities in areas covered by mining and exploration permits.
Current framework of "restricted land"
In summary, the statutory framework for restricted land is as follows:
RA 384 currently remains in force. Accordingly, until RA 384 is removed or replaced by an alternative regulation, the following tenements will not be able to be obtained over land the subject of RA 384:
- new exploration tenements for coal or mineral (except industrial minerals such as clay, quartz and sandstone) under the MRA;
- new coal seam gas exploration tenements under the Petroleum and Gas (Production and Safety) Act; and
- new authorities to prospect under the Petroleum and Gas (Production and Safety) Act and Greenhouse Gas Storage Act.
RA 384 was anticipated to cease once the restricted land provisions of the Resources Amendment Bill 2011 were implemented as a permanent State-wide solution. However, with the lapse of the Resources Amendment Bill 2011 and no specific indication of a revised scheme being implemented (other than that referred to below), the exact life of RA 384 remains unknown.
Statutory Regional Planning
As part of the developing statutory regional planning framework, the Government has separated Queensland into 12 different statutory regional areas (see the Department of State Development, Infrastructure and Planning website for more detail).
In collaboration with local governments, key industry groups and the wider community of the regions, the Government is developing statutory regional plans for each area that aim to:
- foster diverse and strong economic growth;
- plan and prioritise infrastructure;
- manage impacts on the environment; and
- plan for urban growth and resolve land use conflicts such as those arising between agricultural and mining activities.
The regional planning process is currently in its preliminary stages. The draft regional plans will be published and reviewed via formal consultations in mid-2013. The plans will then be reviewed and finalised by regional planning committees by late 2013.
As mentioned above, the position of the current Government is to implement these statutory regional plans in order to deal with the interaction between resource activities and urban areas. It is therefore important for stakeholders to monitor the progress of this statutory regional process and if necessary, seek information from the local councils and become involved in the consultation process.
Other mining area restrictions
Restricted land under the MRA
Currently under the MRA, "restricted land" consists of:
Category A which is restricted land within 100 metres laterally of a permanent building used mainly as accommodation or for business purposes, or for community, sporting or recreational; purposes or as a place of worship; and
Category B which is restricted land within 50 metres laterally of any of the following features:
- a principal stockyard;
- a bore or artesian well;
- a dam;
- another artificial water storage connected to a water supply; or
- a cemetery or burial place.
In order for a mining lease or mining claim to be granted over the surface of restricted land (Category A and B), the applicant for the lease or claim must obtain the written consent of the owner of the land where the restricted land is situated (see sections 238 and 52(2) of the MRA).
A holder of a prospecting permit, exploration permit or mineral development licence does not require such consent to have its permit or licence to be granted over the surface of restricted land (Category A and B) however, the holder may only enter restricted land with the written consent of the owner of that land (see sections 19(4), 129(3) and 181(8) of the MRA).
Strategic cropping land
The issue of land-use competition between the rural and resource sectors is also dealt within the Strategic Cropping Land Act 2011 (Qld) which commenced on 30 January 2012. The Act focuses on balancing resource development and urban expansion with emphasis on protecting cropping land.
Under this legislation, a company that wishes to carry out resources activities on land designated as strategic cropping land is required to obtain a protection decision or a compliance certificate. If a resource project is located on strategic cropping land, the Government will not grant an environmental authority until the impacts of the project on that land are properly assessed and adequate conditions are imposed and in some circumstances activities that have significant impact may be prevented from occurring (eg. open cut mining) on highly strategic cropping areas.
These provisions do not apply to an environmental authority, resource authority or development approval in force before 30 January 2012.
As a result of the mix of regulation and proposed regulatory approach to implementing and controlling areas restricted from mining, it is important for project proponents to carefully consider the areas that may be unavailable to them when planning and implementing their projects as there may be significant impact on their mine plan if restricted areas are not considered and addressed at any early stage.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.