The time for making submissions on proposed amendments to the Mining Act 1978, Mining Rehabilitation Fund Act 2012 and associated regulations is closing fast, so industry participants need to finalise their comments quickly.
The Western Australian Department of Mines and Petroleum (DMP)'s Consultation Paper – Proposed Amendments to the Mining Legislation outlines the first stage of proposed ongoing legislative reform. This stage includes proposed amendments which are mainly administrative in nature but which nonetheless may be significant in terms of cost recovery and public access to information.
The DMP expects public consultation for stages two and three will commence in 2014. These stages are reported to involve a further streamlining of the approvals process and supporting the implementation of a risk-based framework for environmental regulation.
The DMP Consultation Paper foreshadows the following key amendments.
Recovery of expenditure from the Mining Rehabilitation Fund
Under the Mining Act, tenement holders must rehabilitate land affected by their mining operations.
Rehabilitation will generally only be funded by the recently established Mining Rehabilitation Fund (MRF) where the original operator cannot be found or is unable to comply with rehabilitation obligations.
Currently, the Mining Rehabilitation Fund Act does not empower the State Government to recover the costs incurred by the Fund in undertaking rehabilitation work where a responsible person is identified after the expenditure is made. Although the DMP may be able to pursue penalties under the Mining Act for a person's failure to comply with rehabilitation obligations, the DMP has stated that it is likely that the maximum financial penalties would be significantly less than the rehabilitation costs ultimately borne by the Fund.
The DMP has proposed that the MRF Act be amended to allow the recovery of all or part of any money that has been paid from the Fund to rehabilitate an abandoned mine site or affected land from the person responsible for carrying out the work. There would be no limitation period for the exercise of this right. Further, where there are multiple persons responsible for rehabilitation, each person will be jointly and severally liable.
Mining Rehabilitation Fund infringement notices
The DMP says that penalties under the MRF Act may sometimes be excessively onerous to tenement holders who fail to comply with their obligations (ie. where an offence is at the lower end of the scale). It gives the example of a maximum penalty of $20,000 for a failure to submit annual disturbance data for the purpose of MRF levy calculation assessment.
It proposes that the MRF regulations be amended to provide for the capacity to issue infringement notices for failing to submit this information by the due date. This, it says, would ensure that penalties are proportionate to the offence and would result in a greater level of compliance. The DMP suggests a modified penalty of $4,000.
Mining Rehabilitation Fund assessment notice procedure
The DMP has proposed that where there are joint holders of one tenement, a single MRF levy assessment or reassessment notice be issued for that tenement, instead of a notice to each individual tenement holder as it currently must. The DMP considers this requirement to issue individual notices to be onerous and costly.
Streamline DMP environmental authorisation processes
The authority to approve Programmes of Work or a Mining Proposal (including an approved Mine Closure Plan) is vested in persons who hold senior positions within the DMP as specified in the Mining Regulations. A change in the DMP's organisational structure (even minor changes to position titles or duties) requires amendments to the Mining Regulations.
The DMP proposes that the Mining Act be amended to directly vest the approval functions for Mining Proposals, Mine Closure Plans and Programmes of Work in the Director General and for the Director General to be able to delegate these powers appropriately within the DMP.
It considers that this approach would minimise the cumbersome requirement to regularly update the mining regulations in relation to current position titles.
Improved public transparency
In the interests of improved transparency (which was addressed in the Minister for Mines and Petroleum's Ministerial Advisory Panel report "Reforming Environmental Regulation in the WA Resources Industry" issued in December 2012), the DMP has also proposed that the Mining Act be amended to allow the Director General – at his discretion – to make publicly available approved Programmes of Work, Mining Proposals, Mine Closure Plans (or any updated versions of those plans) and other information submitted to comply with environmental reporting requirements (including under the MRF Act).
The Panel recommendation was to limit public disclosure to DMP's regulatory assessment reports of mining proposals and mine closure plans, approvals, and annual environmental reports (excluding commercially sensitive information).
What should I do now?
Public comment on the DMP Consultation Paper is open until Friday 27 September 2013.
The DMP has stated that it expects to present a final proposal of amendments to the State Government before the end of 2013.
Further details regarding the form and procedure for submissions are available on the DMP website.
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.