This Tenements Update considers the implications of the new Mining Petroleum Legislation Amendment (Public Interest) Bill 2013 (the Bill). All applications that are pending are subject to the Bill's amendments. It is important for applicants for renewals or grants, or other relevant applications, to revisit their applications to see whether there is any need to make provision for material that establishes the existence of a public interest in granting the application.
Last week the NSW Government passed the Bill, amending the Mining Act 1992 (NSW) (Mining Act) and the Petroleum (Onshore) Act 1991 (NSW) (Petroleum Onshore Act), which has a number of effects including:
- to enable a decision to cancel a mining authority (mining lease, exploration licence or assessment lease) based upon that decision being "in the public interest"
- to enable decisions to suspend operations under an authority to be justified by them being "in the public interest", and
- to require that decisions about grants, renewals, transfers of authorities applications or acceptances of tenders consider "the public interest".
While the Premier indicated in Parliament that the purpose of the amendments was narrow, their effect is broad.
What this means for miners
What does "the public interest" mean?
There is much authority on what this phrase means. However, it is an amorphous concept that changes depending upon its context.
The High Court (in Sinclair v The Mining Warden at Maryborough and Another (1975) 132 CLR 473 (Sinclair)) said "The words 'public interest' are so wide that they comprehend the whole field of objection other than objection founded on deficiencies in the application... For instance, the public interest may tell against the grant of a mining lease even though the particular interests are the only interests primarily affected. It may thus be in the public interest that the interests of that individual not be overborne."
The Sinclair case concerned the obligation of the Mining Warden to make a recommendation for a mining lease application as to whether its grant would be against the public interest. The High Court found that, notwithstanding the fact that the environmental concerns raised by the objectors to the grant only represented the "interest" of a small section of the public, they were still matters that constituted part of the public interest.
The evidence in support of the objection was based upon damage to the environment that would occur as a result of the mining, which would be authorised by the mining lease. These were found to be matters within what is the public interest in the context of the decision to grant the mining lease.
Other cases that provide guidance on the meaning of the term the public interest show that it is more of an objective or a purpose than it is an objectively ascertainable criterion. It is clear that the public interest must balance private rights against the public good.
However, what stands out is the sheer breadth of the matters that it can require to be considered. What is disturbing for holders and applicants (for grants, renewals, transfers etc.) is that public interest will be required to be considered in almost all decisions about authorities. It provides enormous scope for opponents of a project or of mining generally to inject uncertainty, delay and obstruction to mining in NSW.
The Greens have announced enthusiastic support for these amendments.
Duplication of planning matters
The public interest is a matter for consideration under section 79C of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). It is presently a consideration for applications determined under Part 4 and it will be a matter for consideration by the consent authority under the new planning legislation when the Planning Bill passes into law. The environmental matters that the High Court has acknowledged forms part of the public interest are also matters that are required to be considered under relevant planning legislation.
When decisions are being made on mining lease applications, there will (presumably) be an obligation on the decision-maker to consider environmental matters once again.
The question will be how it will work and what will be necessary to ensure that a decision to grant or renew an authority (or other affected decisions) is valid. This is important given the context that the High Court in Sinclair made clear: that in the event that the required considerations were not given, then the decision was not valid.
Similarly, it remains to be seen how these provisions will sit alongside the obligation on the Minister administering the Mining Act and the Petroleum (Onshore) Act to grant a mining or production lease that is consistent with a planning approval granted under the State significant development provisions of the EPA Act (and the equivalent under the Planning Bill). Will the Minister administering the mining or petroleum legislation be required to consider the public interest in the decision and potentially arrive a decision that conflicts with the determination of the planning approval (in whole or in part)?
What the mining industry craves most is certainty in its regulatory framework. These amendments provide uncertainty on so many levels for so many matters.
While the amendments have been described as being for narrow purposes, they clearly have extremely broad application and they will be materially problematic for the industry.
All applications that are pending are subject to the amendments. It is important for applicants for renewals or grants or other relevant applications to revisit their applications to see whether they need to make provision for material, which establishes the existence of a public interest in granting the application.
We advise on strategy for tenement and development consent applications using an integrated approach and assist with tenement management, dealings and engagement with Government and other stakeholders.
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.