Australia: Stage 1 of the NSW Integrated Mining Policy released for public comment

Key Points:

The first stage of the NSW Government's Integrated Mining Policy aims to improve the assessment and regulation of major mining projects, and stakeholders should consider making comments on the draft policy documents.

The NSW Government has released the first stage of an extensive policy package to improve the assessment, determination and regulation of significant mining projects.

Stage 1 of the Integrated Mining Policy (IMP) was released on 28 May 2015, for public consultation until 9 July 2015.

The IMP aims to reduce duplication and improve the efficiency of assessment and regulation of State significant mining projects, by:

  • documenting and clarifying government requirements for the assessment of mining proposals; and
  • improving co-ordination and co-operation between key NSW Government agencies involved in mining regulation.

This should mean:

  • more consistency in Government approaches to the assessment and regulation of mining projects;
  • shorter time-frames for the assessment of mining projects, because there should be fewer requests for additional information from applicants, and applications for a development consent, an EPA licence and a mining lease can be assessed at the same time; and
  • simpler controls on approved projects, because there should be better co-ordination and less duplication across those three key approvals.

The IMP does not cover coal seam gas projects or mining exploration. Coal seam gas reforms are being progressed as part of the Government's NSW Gas Plan.

What's currently available

The first stage of the Policy package includes exhibition of:

  • Mine Application Guideline;
  • standardised Secretary's Environmental Assessment Requirements (SEARs); and
  • Swamp Offsets Policy.

Mine Application Guideline

Major mining projects are typically State significant development, which means they need development consent from the State Government, and an Environmental Impact Statement (EIS) will be required.

A project proponent will need a schedule of Environmental Assessment Requirements from the Secretary of the Department of Planning and Environment (DP&E). These are known as SEARs. Typically, a proponent will provide a Preliminary Environmental Assessment (PEA) to the Secretary, to guide the preparation of the SEARs.

The Mine Application Guideline describes briefly what the Government expects to see in a PEA and an EIS, and provides a more strategic approach to these documents than previous guides.

Key areas of focus include:

Standardised SEARs

The standardised SEARs have been prepared with input from the NSW Environment Protection Authority (EPA) and the Division of Resources and Energy at the Department of Trade and Investment (DRE), so they cover assessment requirements for a development application, an application for an EPA licence and an application for a mining lease.

This should simplify the assessment process, save time in the process and reduce duplication of conditions across these three key authorisations.

The standardised SEARs will need to be adapted for each mining project, as they respond to the PEA for that project. However, the standard document should assist proponents in their approach to project assessment.

Key areas of focus include the mine design, especially in terms of its rehabilitation potential and options for post-mining use. This is consistent with the increasing emphasis on life cycle assessment and compatibility with surrounding land uses.

Swamp Offsets Policy

The Policy addresses the calculation and provision of biodiversity offsets for subsidence impacts of longwall coal mining on upland swamps and associated threatened species.

It applies the NSW Biodiversity Offsets Policy for Major Projects, which was released in October 2014 as the preferred biodiversity policy for mining projects.

In a possible sign of future approaches to offsetting, the draft Policy provides for initial offset requirements and a process for revisiting those offsets during or after the project. For example:

  • it requires calculation of the "maximum predicted offset liability" for a project, based on a "worst case scenario" for the project, and then allows for adjustment of the offset liability (or provision of an offset credit) if the worst case scenario does not occur; and
  • it requires a proponent who predicts "nil" or "negligible" environmental consequence for upland swamps and threatened species to monitor impacts and, if monitoring shows significant impacts on a shallow groundwater aquifer in a swamp during this time, an offset must be identified and secured.

What's next

The Government has indicated that a range of other policies will be released, to provide further guidance and consistency of approach for mining assessment and regulation. These include:

  • the much-anticipated Guidelines for the Economic Assessment of Mining and Coal Seam Gas Project (due next month);
  • standardised development consent conditions;
  • a Planning Agreement guideline, mainly for planning agreements between mining proponents and local councils;
  • a Water Regulation and Policy Framework, which is intended to summarise water regulatory requirements for mining projects (it will not replace the Aquifer Interference Policy); and
  • various post-approval guidelines, to assist with monitoring, auditing and enforcement.

The current draft documents contain important policy positions on key issues in the assessment of mining proposals. Mining proponents and other stakeholders should review the documents and consider making submissions.

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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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