Australia: Parliamentary Committee recommends that the Mineral and Energy Resources (Financial Provisioning) (MERFP) Bill be passed

WHO SHOULD READ THIS

  • All stakeholders in the Queensland resources sector, including Environmental Authority (EA) holders, providers of third party sureties, providers of resource sector site rehabilitation services.

THINGS YOU NEED TO KNOW

  • Queensland's financial assurance and rehabilitation regimes are set to be overhauled from 1 July 2018.

WHAT YOU NEED TO DO

  • Get ready for major changes to your EA, FA and rehabilitation strategies.
  • Consider the timing and implications of any amendments to existing EAs, and whether additional work is required to transition your current EA rehabilitation conditions to a Progressive Rehabilitation and Closure Plan (PRCP).

Another step towards the introduction of the overhaul of the Financial Assurance (FA) and progressive rehabilitation regime on 1 July 2018 was taken today as the Economics and Governance Committee (Committee) tabled its report in Parliament.

The Committee's report unanimously recommends that the Mineral and Energy Resources (Financial Provisioning) Bill 2018 (Qld) (MERFP) is passed, subject to one inconsequential drafting recommendation.

The Parliament's next sitting day is 1 May 2018, and with MERFP already listed in the daily agenda we expect to see it debated in Parliament during the next session. With two sitting weeks in May, there is ample opportunity for MERFP to be passed in time for the 1 July 2018 commencement date.

We provided a comprehensive overview of MERFP when it was first introduced to Parliament in October 2017. While this version lapsed with the intervening State election, little changed and it was re-introduced in the first week of the new Parliament in February 2018.

A total of 51 submissions were made to the Committee from mining and gas companies, industry bodies and other interested parties. Despite opposition to components of MERFP and concerns around lacking detail – which has been relegated to as yet unpublished Guidelines – the Committee report provides no impediment to the Government moving ahead with a 1 July commencement, having not recommended any substantive changes.

Fast-tracked public consultation on the detail is expected to continue to unfold, with many holding their breath in anticipation.

Committee comments

In addition to the two recommendations noted above, and a summary of key comments made by stakeholders to the Committee, the Committee passes comment in its report on some possible breaches in the drafting of MERFP of the 'fundamental legislative principles' (FLPs) under the Legislative Standards Act 1992 (Qld). In each case, the Committee notes the relevant components of the explanatory notes that deal with the possible breach.

For example:

  • review or appeal rights: the Committee noted that the lack of merits review of Scheme Manager decisions may breach the FLP regarding legislative power needing to be the subject of appropriate review
  • offence penalties: the Committee raises whether the penalties for new offences introduced by MERFP are proportionate to the breach
  • power of entry: the lack of a requirement to obtain a warrant before entering premises is noted as a potential breach of the FLP
  • Scheme Manager immunity: the immunity conferred on the Scheme Manager (or delegate) from civil liability arising for his or her acts or omissions may breach the FLPs

Finally, the Committee calls into question the extent of the 'devil in the detail' left to be finalised by regulation, noting that that:

"Allowing a regulation to 'make provision about a matter for which this Act does not make provision or enough provision' has been found to be an inappropriate delegation; matters about which transitional regulations may be made should be stated in the Bill. This breach is arguably exacerbated by the provision that the transitional regulations may have retrospective effect."

Key things you need to know

For existing EA holders:

  • your current or next plan of operations may be your last and the transition to the new regime is expected to commence shortly
  • the risk allocation of scheme participants will be subject to regular review – at least annually and when there is a change in holder
  • unless you are considered 'high risk' (or carry more than $450 million in estimated rehabilitation costs), your existing financial assurance requirements will fall away in favour of an annual fee based on your rehabilitation liability (contribution rates are as yet unknown)
  • key decision-making powers will fall to the Scheme Manager, who is set to be appointed in May 2018
  • from 1 July 2019 existing environmental authority rehabilitation conditions will need to be 'translated' into 'milestones' which will form part of new compliance documents – a 'progressive rehabilitation and closure plan' (PRCP) and a PRCP Schedule
  • all existing resource environmental authorities will need to be amended
  • some PRCPs will be subject to public notification, with Land Court review available
  • progressive rehabilitate requirements will acquire new teeth, and
  • PRCP enforcement will be backed by a requirement to complete a third party audit of the PRCP every three years.

For projects at the development stage:

  • your PRCP will need to be included in the environmental assessment material, and
  • mines within a floodplain will need to carefully review their final landform plans – with final voids and certain other structures prohibited.

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 Mondaq.com.

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

Authors
 
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”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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