Australia: Approval of uranium project paves the way for a new industry in WA

Key Points:

While the Federal Government has specific responsibilities and powers, day-to-day regulation of uranium exploration and mining is a State Government responsibility.

On 2 April 2013, the Federal Government gave final environmental approval to Toro Energy's uranium project at Wiluna in Western Australia. The Commonwealth approval comes six months after environmental approval was granted by the Western Australian Minister for Environment, and substantially paves the way for a new industry in the State (since the ban on uranium mining was lifted in 2008).

Although approval under the State (Environmental Protection Act 1986 (WA) (EP Act)) and Commonwealth (Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)) environmental legislation represents key milestones in project developments, future proponents in the emerging WA uranium industry should note that State and Federal environmental approval are just two of many State and Federal requirements relevant to uranium exploration and mining in Australia.

This article provides an overview of the framework for the regulation of uranium exploration and mining activities in WA, and the types of approvals proponents may need to obtain in order to undertake those activities.

Uranium exploration in Western Australia

Activities associated with the mining of uranium in WA are governed by a complex and integrated framework of legislation, policy, and guidelines across a multitude of agencies and organisations at both the Federal and State Government levels.

The starting point to explore for uranium in WA is the requirement to hold an exploration licence under the Mining Act 1978 (WA). This licence will permit only low level exploration activities to be conducted.

If further "ground disturbing" activities will be undertaken, a Program of Work must be approved by the Department of Mines and Petroleum (DMP). This would detail proposed exploration activities, including environmental management and rehabilitation practices.

The DMP also requires a Radiation Management Plan under the Mines Safety and Inspection Regulations 1995 (WA). In some cases, this must be separately approved by the Radiological Council.

Commonwealth requirements

The power to deal with most environmental issues is effectively conferred concurrently on both the Commonwealth and the States. However, the Commonwealth Government retains the overarching responsibility of approving projects with impacts on nationally-significant environmental matters.

Firstly, approval must be given under the EPBC Act for nuclear actions that may have a significant impact on the environment. A proponent must refer a proposal to undertake activities associated with the mining of uranium to the Minister of Sustainability, Environment, Water, Population and Communities if it considers the proposal to be a controlled action, that is, the proposal has, will have or is likely to have an impact on a matter of national environmental significance.

Then, if the Minister considers a uranium mine (including a new mine and the expansion of an existing mine) is likely to have a significant impact on matters of national environmental significance, an environmental assessment and approval is required under the EPBC Act. In considering a proposal for a uranium mine, the Commonwealth may have regard to any relevant conditions imposed by a State Government, but this is not required.

A proposal for a uranium mine is also subject to the following Commonwealth approvals and requirements:

  • Any uranium discovered in Australia is to be reported to the Commonwealth Minister within one month of the discovery (Atomic Energy Act 1953 (Cth)).
  • A party seeking to mine uranium must obtain a permit from the Australian Safeguards and Non-Proliferation Office to establish a mine. Permits are also required to transport nuclear material (Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth)).
  • A uranium mine cannot be constructed or operated without a facility licence, which is designed to protect the health and safety of people as well as the environment from the effects of radioactive material (Australian Radiation Protection and Nuclear Safety Act 1998 (Cth)).
  • The transport of radioactive material must also be in accordance with the Code of Practice for the Safe Transport of Radioactive Material (2008) (Australian Radiation Protection and Nuclear Safety Act 1998 (Cth)).
  • A specific export licence must be obtained from the Minister for Energy, Resources and Tourism for the export of uranium (Customs Act 1901 (Cth), and Customs (Prohibited Exports) Regulations 1958 (Cth)).
  • The production of significant amounts of uranium ore concentrates at a processing facility may give rise to a charge under the Nuclear Safeguards (Producers of Uranium Ore Concentrates) Charge Act 1993 (Cth).
  • A declaration must be obtained from the Minister for Energy, Resources and Tourism in order to operate a radioactive waste management facility (National Radioactive Waste Management Act 2012 (Cth)).
  • Land access for uranium mining operations and associated infrastructure (such as railways, pipelines, water and power supplies) where the land involved is subject to a native title determination or claim is regulated by the Native Title Act 1993 (Cth).
  • Finally, facility operators will be required to pay a charge under the Clean Energy Act 2011 (Cth) if their greenhouse gas emissions are above the stipulated threshold and they have not surrendered emissions units for the carbon dioxide equivalence of the gas.

Western Australian requirements

The day-to-day regulation of uranium exploration and mining is governed by the State Government. The State uranium mining industry has in place a stringent regulatory system involving a complex system of licences and approvals, reporting requirements and verification by inspection.

The WA Government (through the Environmental Protection Authority (EPA) also undertake environmental impact assessments of proposals likely to have a significant impact on the environment. Under the bilateral agreement between the State and Commonwealth, to avoid duplication, the State's environmental impact assessment may inform environmental assessments undertaken for the purposes of the EPBC Act. However, the approval of the Commonwealth Minister is still required before any proposal can go ahead.

An independent review of the uranium mining regulation in WA was undertaken in April 2012, concluding that while the regulatory framework was sufficient, the DMP should implement initiatives to improve transparency and communication and look at adopting a risk and outcomes-based approach to environmental regulation.

The starting point is the Mining Act 1978 (WA), which requires a mining lease to be secured (along with any other relevant tenure). A Mining Proposal must also be approved by the DMP. This includes an Environment Management Plan, a Radiation Management Plan and a Radiation Waste Management Plan.

A project may also be referred to the EPA under the EP Act for an environmental impact assessment. While a project does not have to be referred unless it's called in by the EPA, a referral may lead to the issuance of a Ministerial Statement which can act as a defence to an offence of causing environmental harm.

A works approval could be required under the EP Act for prescribed premises. This could include the mine's processing plant.

In addition, the EP Act, along with the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) require a permit to clear native vegetation before the mine is constructed. However, this is not required if the project has Ministerial approval following an EPA review of the proposal (if clearing was part of that proposal).

The following approvals and requirements are also relevant to the construction or operation of a uranium mine in WA:

  • A permit is required to take protected fauna, and a ministerial consent is required to take rare fauna, before a mine and ore processing plant is constructed (Wildlife Conservation Act 1950 (WA)).
  • If the mine is situated on an Aboriginal site, consent must be sought from the Aboriginal Cultural Material Committee to use the land (Aboriginal Heritage Act 1972 (WA)).
  • Bore and well licences, and a permit to interfere with the beds and banks of a watercourse, are required (Rights in Water and Irrigation Act 1914 (WA)).
  • Owners of uranium mines must be registered with the Radiological Council. In addition, persons who are authorised to manufacture, use, possess and store radioactive materials, and those who manage radioactive waste (including disposal), must be licensed (The Radiation Safety Act 1975 (WA)).
  • A licence for transporting radioactive substances is also required (The Radiation Safety Act 1975 (WA)).
  • The mining and milling of radioactive ore is also required to be done in accordance with the requirements of the "Code of Practice and Safety Guide for Radiation Protection and Radioactive Waste Management in Mining Mineral Processing (2005)", as required by the Radiation Safety (General) Regulations 1983 (WA). This guide is published by the Australian Radiation Protection and Nuclear Safety Agency.
  • Approvals for a Project Management Plan and a Radiation Management Plan are required from the State Mining Engineer prior to the commencement of mining operations (Mines Safety and Inspection Act 1994 (WA)).
  • Further, while approval is not required for mining operations under the Planning and Development Act 2005 (WA), planning and development approval is required for office buildings, accommodation buildings and local roads associated with those operations.

The approval of Toro Energy's uranium project at Wiluna paves the way for a new industry in WA (since the ban on uranium mining was lifted in 2008). The extensive framework of legislation, policy and guidelines which guide activities associated with the mining of uranium in WA assist in establishing a safe and reliable practice, and maintain industry standards.

This complex regulatory framework also means the development of uranium projects in WA is a long road. In order to navigate this path, proponents need to be aware of the broad range of required approvals.

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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.

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