Australia: Reform of WA mining law - overhaul of environmental approval processes

Last Updated: 21 December 2013
Article by Charmian Barton


On 30 October 2013, the Mining Legislation Amendment Bill 2013 (Bill) was introduced into the WA State Parliament, representing the beginning of a major overhaul of environmental approval processes for WA mining projects. The Bill is the first tranche of reform to be undertaken as part of the Reforming Environmental Regulation (RER) program and will make key amendments to the Mining Act 1978 (Mining Act) and the Mining Rehabilitation Fund Act 2012 (WA) (MRF Act). The amendments are intended to facilitate the release of environmental data and streamline environmental approval processes, with the aim of reducing red tape and generating foreign investment in large scale mining projects.

Norton Rose Fulbright has a market leading environmental practice and we would be happy to discuss the implications of the proposed reform for your business with you.

Background to reform

Throughout the past year, the WA government has focused on creating a transparent and improved environmental approval process in the mining industry. The Ministerial Advisory Panel (MAP) recommended that the Department of Mines and Petroleum (DMP) implement a number of reforms to clarify its role and responsibility for environmental regulation, resulting in the DMP's introduction of its RER program in June 2012. The RER program was developed to complement the wide scale legislative reform taking place in the mining industry, including the establishment of the Mining Rehabilitation Fund (MRF) and new legislative requirements for emerging industries such as unconventional gas and uranium mining.

By targeting large scale improvements to the mining and petroleum approval and compliance processes, the Government aims to create a strong risk based framework and, in doing so, improve public and industry confidence in DMP approval processes. The Bill is the first stage of the RER program and will deliver largely administrative reforms which are geared to improving effectiveness and efficiency in environmental regulation.

Proposed changes

The Bill will make several amendments to the Mining Act and the MRF Act, including changes to the provisions regarding public release of environmental data, environmental assessment information and tenement rehabilitation liability data. The proposed amendments relate to four distinct areas:

  1. Facilitating environmental data release
  2. Simplifying environmental approval processes
  3. Streamlining issue of notices under the MRF Act, and
  4. Enabling recovery of Mining Rehabilitation Fund (MRF) money in some circumstances.

Environmental data release

From 1 July 2014, the MRF Act will require approximately 20,000 tenements to submit clearance and rehabilitation data to DMP annually. There is currently no specific reference in the Act to the public release of data. This lack of transparency has been at the forefront of reform discussions given that DMP receives around 3,000 mining related proposals each year but only around 1,000 of these are made publicly available in some form.

In December 2012, the DMP sought to address this issue with the release of the MAP report "Reforming Environmental Regulation in the WA Resources Industry". The MAP recommended that the Mining Act be amended to allow the Director General to make publicly available DMP's regulatory assessment reports of Mining Proposals and Mine Closure Plans, approvals, and annual environmental reports, as well as disclosure of information submitted to comply with environmental reporting requirements. The Bill formalises this recommendation and will amend the Mining Act to provide for the release of environmental data. However, DMP will still be able to limit public disclosure of information that is commercially sensitive or confidential in nature.

DMP environmental approval processes

Following the Bill's introduction, the approval powers of position holders within the DMP will also undergo reform, which will simplify the authorisation process for environmental approvals. The authority to approve Programmes of Work or a Mining Proposal is currently limited to persons who hold senior positions within the DMP as specified in the Mining Regulations 1981 (WA). Consequently, any changes to the position holders require amendments to the regulations. Failure to simplify the authorisation process, has resulted in an inefficient and onerous process for obtaining environmental approvals.

To address this issue, the Bill will amend the Mining Act to directly vest the approval functions for Mining Proposals, Mine Closure Plans and Programmes of Work in the Director General, who may then authorise appropriate department officials to perform those functions from time to time. This approach removes the need to regularly update the regulations.

Issuing of notices under the MRF Act

The current legislation requires DMP to issue individual notices to each tenement holder for a MRF levy assessment or reassessment notice. The Bill will address the cost of this process by streamlining the requirements under the MRF Act. Issuance of a notice or assessment to each liable person for mining tenements with more than one tenement holder will be replaced by delivery to a single point of contact for each tenement.

Mining Rehabilitation Fund

The MRF is administered by DMP and is used to rehabilitate abandoned mines in WA. Following the introduction of the MRF Act late last year, tenement holders make annual contributions, determined as a percentage of total closure liabilities, to the MRF. This system replaces the previous project-specific environmental bonds process, in which tenement holders posted unconditional performance bonds as security to ensure they complied with environmental obligations. Under the new scheme, rehabilitation is funded by the MRF in circumstances where the party liable to rehabilitate cannot be found or is unable to comply with rehabilitation obligations.

The Bill will amend the MRF Act so that any money spent from the MRF to carry out rehabilitation of an abandoned mine may be recovered from a person who was legally responsible for carrying out the work. Each person found liable for failure to comply with an obligation requiring rehabilitation of the land will be jointly and severally liable to pay to the MRF the amount applied.

Response to the Bill

The RER program has promised to deliver greater certainty, confidence and clarity around the environmental regulatory system. As the first tranche of the program, the Bill aims to strengthen the enforcement capacity of DMP, reduce red tape and improve transparency. Mines and Petroleum Minister Bill Marmion has stated that the introduction of the reforms is to "make it clearer, easier, and cheaper to do business in WA, whilst maintaining strict environmental standards." The Minister went on to state that "risk based regulation enables government to set strict environmental standards and clear expectations of industry and allows companies to manage and mitigate any risks to achieving these standards. This frees up our regulators from designing prescriptive conditions for each project they assess, and they can instead direct their time to monitoring and enforcing compliance." Chamber of Minerals and Energy WA Chief Executive Mr Reg Howard-Smith echoed this sentiment, stating that the amendments would allow for greater transparency and more effective approvals and compliance arrangements.

The primary concern regarding the reform of the approval process is that the regulatory activity will not be sufficiently targeted and proportional, which may result in a failure to achieve environmental outcomes. In order to address concerns that a surge in development will result in environmental harm, Minister Marmion stated the Bill's reforms do "not mean development at any cost."

Whilst the reforms have been surrounded by positive publicity, the DMP will also need to ensure that implementation of these reforms complements the current regulation of State Agreement Acts and operates consistently with the various mining and petroleum legislation for which DMP is responsible. MAP has suggested that the successful transition to the risk based framework will require the adoption and implementation of processes at an administrative and operational level by DMP and the industry it regulates.


The changes introduced by the Bill are largely administrative and may not have an immediate impact on the daily operations of tenement holders. However, if correctly implemented, the reforms may bring greater clarity and consistency to the regulatory approvals processes in WA. The long term success of the reforms will depend on the DMP's ability to strike a balance between reducing red tape, encouraging Australia's long term viability as an investment destination and ensuring the WA environment is protected. Additional reforms to strengthen the compliance framework and underpin a risk based assessment system as part of the RER program are planned for 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Charmian Barton
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions