Australia: Wild Rivers Act

On 3 April 2009, the Queensland Government declared three new wild river areas over the Archer, Stewart and Lockhart rivers. This brings the total number of wild river declaration in Queensland to nine. Such declarations can have potentially significant impacts on mining and exploration in the area. This paper provides a brief examination of those implications.

What is a wild river?

A wild river is a stream that has all, or almost all, of its natural values intact. This does not necessarily mean that the river is in pristine condition, but rather that it remains largely unaffected by development in its catchment area. The Department of Environment and Resource Management has identified the following elements that are necessary to constitute a wild river:

  1. Hydrology - the rivers are free flowing and well connected to their floodplains and shallow aquifers.
  2. Geomorphology - the bed and bank are stable with a natural movement of sediment along the river to estuaries and floodplains.
  3. Water quality - sufficient to meet human and ecological needs.
  4. Riparian vegetation - sufficient trees, shrubs and sedges to protect banks and provide food for fauna.
  5. Wildlife corridors - natural habitat along rivers to allow native animals to migrate within their natural ranges.

Wild rivers are mainly located in northern Queensland and are particularly prevalent in the Cape York region.

How the wild river process works

Wild river areas are regulated by a number of statutory instruments. These are the Wild Rivers Act 2005, the Wild Rivers Code, various wild rivers declarations and other regulating Acts, including the Coastal Protection and Management Act 1995, the Environmental Protection Act 1994 and the Mineral Resources Act 1989. The wild rivers provisions of these Acts will apply once a declaration is made over a particular area.

Wild Rivers Act 2005

The Wild Rivers Act provides a regulatory framework designed to preserve and manage the natural values of wild rivers. It provides for the declaration of a wild river area (and the amendment or revocation of declarations), amendments to the Wild Rivers Code, the identification of different management areas and the approval of property development plans. In addition, the Wild Rivers Act requires other laws to consider wild rivers objectives when approving certain developments in a wild river area. Wild river requirements are therefore additional to the requirements of existing legislation.

Wild rivers declarations

The Wild Rivers Act contains processes for declaring a wild river area.

The statutory declaration is a statutory instrument that determines the boundaries of the various management areas and the activities that may be conducted within them. Each declaration also lists the requirements that must be complied with for certain development activities, resource allocations and the approval of mining authorities.

The declaration process begins with the introduction of a moratorium on certain water works, vegetation clearing and mining over the proposed area. The declaration proposal is released for public consultation. Following the consultation period, the Minister will decide whether to make a declaration, based on community consultation, any submissions made and, where applicable, a water resource plan or resource operations plan. If a declaration is made, it is sent to the Governor in Council for approval. The final step after the declaration has been made is the release of a report by the Minister on the consultation undertaken for the declaration – the Wild River Consultation Report.

Wild rivers management areas

The Wild Rivers Act identifies a number of different management areas within the wild river catchment to be included in the declaration. This recognises that certain activities have different impacts on the river, depending on where those activities are conducted in relation to the river. The management areas are as follows:

  • High preservation area - the area within and up to one kilometre each side of the river, its major tributaries and special off-stream (for example, floodplain wetlands).
  • Preservation area - the area outside the high preservation area.
  • Floodplain management area - parts of floodplains that are strongly connected to the river's natural hydrology (can overlap the high preservation area or the preservation area).
  • Subartesian management area - the area of a sub-artesian aquifer that is strongly connected to the river's natural hydrology (can overlap the high preservation area or the preservation area).
  • Designated urban area - a mapped urban area, including space for future expansion.
  • Nominated waterways - secondary tributaries or streams in preservation areas that have been designated for wild river purposes.

These management areas dictate the type of mining or exploration activities that may be conducted. The various allowances and restrictions are particularised in the Wild Rivers Act and the relevant wild rivers declaration.

Wild Rivers Code

The Wild Rivers Code is to be read in conjunction with the declaration and applies only to developments that are assessable under the Integrated Planning Act 1997. It has no application to mining activities and therefore will not be considered in any further detail here.

The impact of a declaration on mining and exploration

Wild river requirements will apply when a mining tenement is either granted or renewed under the Mineral Resources Act or an environmental authority is granted under the Environmental Protection Act for either mining or petroleum activities.

Existing mining activities carried out over an area which becomes subject to a declaration are not affected by the terms of the declaration until that authorisation is renewed. Similarly, any associated infrastructure (such as dams and roads) will not be affected by the declaration until that infrastructure is expanded or modified.

Mining leases

1. High preservation area

Under the Mineral Resources Act, if a mining lease is granted over land that includes a declared wild river area, mining lease activities must not be carried out on the surface of the land in the high preservation area.

Wild rivers legislation therefore prohibits surface mining in the high preservation area. Underground mining may be carried out beneath a high preservation area provided that there is no surface disturbance. For example, the entry pits for the underground mining must be located outside of the area. Such activities would also be subject to an environmental impact statement which assesses:

  • the risk of mine collapse and subsidence;
  • impact on the hydraulic connection between sub-artesian aquifers and the wild river; and
  • impact on the quality of water in sub-artesian aquifers connected to the wild river area.

2. Preservation Area

Mining activities will generally be permitted within the preservation area and will be subject to any requirements imposed under the relevant declaration. Such activities will be deemed level 1 mining projects within the preservation area.

3. Nominated Waterways

Generally, surface mining activities are not permitted in nominated waterways. This prohibition however does not apply where the mining lease is, or is included in, a project declared a 'significant project' under section 26 of the State Development and Public Works Organisation Act 1971 and the report evaluating the environmental impact statement for the project shows:

  • the natural values of the wild rivers, included in the wild river preservation area, will be preserved
  • it is not reasonably feasible to take the natural resource under the lease by underground mining, and
  • the value of the natural resource is sufficient to warrant the grant of the lease over the nominated waterway.

Underground mining activities may be permitted within a nominated waterway if there is no surface high preservation area.

Exploration permits

1. High preservation area

To the extent that an exploration permit applies to the high preservation area, other than watercourses and lakes, the holder may carry out low impact activities. This includes aerial, seismic and drilling activity, but not pit excavation or bulk sampling. Further, the activities must be undertaken as a level 1 mining activity, must be consistent with an approved environmental management plan and must be located a minimum distance from the high banks of a watercourse or lake (set out in the declaration).

To the extent that an exploration permit applies to watercourses and lakes within a high preservation area, the holder may only carry out limited hand sampling activities. This generally means collecting samples up to 20kg using only nonmechanical means, and digging less than 1m deep, removing less than 1m3 and spacing sites at least 250m apart.

2. Preservation area

Exploration activities are permitted within the preservation area and will be dictated by the terms of the relevant declaration. Such activities will be either a level 1 or level 2 mining project, depending on the level of impact.

3. Nominated waterways

Exploration activities are not permitted within the area of a nominated waterway.

Mineral development licences, mining claims and prospecting permits

Activities conducted under the mineral development licence, mining claim or prospecting permit are not permitted within the high preservation area or any nominated waterways. Those parts of the wild river area are specifically excluded from the land to which the mining tenement applies.

Mine transport infrastructure New infrastructure (such as road, railway, electricity and pipelines) are classified as specified works and may be developed in both preservation areas and high preservation areas. Such infrastructure will be subject to the specific requirements outlined in the relevant declaration.

"Specified works" under the Wild Rivers Act means:

  • infrastructure and works prescribed under a regulation to be necessary for disaster management or
  • de-snagging that is the minimum necessary to allow safe navigation of a marked navigable channel or
  • the following infrastructure and works:
    • roads
    • railways
    • jetties and boat ramps for use by the public
    • works for the rehabilitation of land, such as rehabilitation of abandoned mines
    • infrastructure for the transmission or distribution of electricity
    • pipelines
    • conveyor belts
    • cables
    • other infrastructure, prescribed under a regulation, that relates to the transportation, movement, transmission or flow of anything through a wild river area including, for example, goods, materials, substances, matter, particles with or without charge, light, energy, information and anything generated or produced.

Petroleum activities

Petroleum activities are not as highly regulated as activities conducted under mining authorities. Unlike the Mineral Resources Act, the Petroleum and Gas (Production and Safety) Act 2004 does not contain wild river provisions. Petroleum activities are therefore mainly regulated by the Environmental Protection Act, through environmental authority conditions, and the relevant wild river declaration.

The holder of a petroleum authority in a wild river area who seeks to apply for an environmental authority under the Environmental Protection Act must observe and comply with wild river requirements. Prior to making an application, each petroleum activity must first be prescribed under a regulation as a level 1 activity or a level 2 activity, depending on the risk of environmental harm. Under schedule 5 of the Environmental Protection Regulation 2008, level 1 petroleum activities are:

  • geological storage of carbon dioxide;
  • a petroleum activity authorised under the Petroleum (Submerged Lands) Act 1982;
  • a petroleum activity that is likely to have significant impact on a category A or B environmentally sensitive area (defined under regulations 25 and 26);
  • extending an existing pipeline by more than 150km under a petroleum authority;
  • constructing a new pipeline of more than 150km under a petroleum authority;
  • a petroleum activity carried out on a site containing a high hazard dam or a significant hazard dam;
  • a petroleum activity involving injection of a waste fluid into a natural underground reservoir or aquifer; or
  • a petroleum activity, other than a petroleum activity mentioned above, that includes a "chapter 4" activity for which an aggregate environmental score is stated.

All other activities are a level 2 petroleum activity.

1. Level 2 petroleum activities

Under the Environmental Protection Act, Level 2 petroleum activities can either be code compliant or non-code compliant, depending on whether a relevant code of environmental compliance exists for the relevant activities. A code compliant authority is taken to include a condition that the applicable codes of environmental compliance for relevant activities under the authority must be complied with. For code compliant petroleum authorities carried out in a wild river area, the authority is subject to those conditions contained in the relevant codes of environmental compliance and the conditions stated under the relevant wild river declaration.

Non-code compliant level 2 authorities are those were there are no relevant codes of environmental compliance for relevant activities under the authority. For such authorities, the Environmental Protection Authority may impose the conditions on the environmental authority it considers are necessary or desirable. For activities carried out in wild river areas, the conditions must include any condition the administering authority is required to impose under a regulatory requirement, and the conditions stated in the relevant wild river declaration for the area.

The Environmental Protection Authority is currently in the process of drafting a code of environmental compliance for level 2 petroleum activities. This code has not yet been finalised and, as a result, all level 2 petroleum activities are currently non-code compliant.

2. Level 1 petroleum activities

An application for a level 1 petroleum activities environmental authority must be accompanied by an environmental management plan that proposes environmental protection commitments to help the Environmental Protection Authority decide the conditions of the environmental authority. The Environmental Protection Authority may also require an environmental impact statement to be submitted with the application. The environmental management plan and environmental impact statement (if applicable) must be considered by the Environmental Protection Authority in deciding whether to grant or refuse the application.

The Environmental Protection Authority must impose the conditions on the environmental authority it considers are necessary and desirable. For activities carried out in wild river areas, the conditions must include any condition the administering authority is required to impose under a regulatory requirement, and the conditions stated in the relevant wild river declaration for the area.

Therefore, for both level 2 and level 1 petroleum activities, the terms of the relevant wild river declaration are crucial considerations when granting and imposing conditions on an environmental authority.

Recent wild river declarations

The Queensland government has recently declared three new wild river areas: Archer Wild River Declaration, Stewart Wild River Declaration and Lockhart Wild River Declaration. These accompany the first round of six wild river declarations, which took effect on 28 February 2007: Fraser Wild River Declaration, Gregory Wild River Declaration, Hinchinbrook Wild River Declaration, Morning Inlet Wild River Declaration, Settlement Wild River Declaration and Staaten Wild River Declaration. You can read more about these wild river declarations at the Department of Environment and Resource Management website:

It is not within the scope of this paper to examine each declaration in detail. It is sufficient to note that the component of the declarations dealing with mining activities largely mirror the statutory provisions and may contain additional details or restrictions relevant to that particular wild river area.

HopgoodGanim recommendation

Tenements located in northern Queensland may be particularly affected by Wild River declarations. Such declarations will affect the type and degree of mining activities that may be carried out within the areas of a declaration. This will impact on both applicant tenements awaiting grant and existing tenements subject to future renewal.

It is important to be aware of the restrictions that may be imposed on mining activities within a wild river area. The Queensland Government has declared a total of nine wild river areas with a good chance of more declarations being made in the future.

If you believe that your tenement may be subject to a wild river declaration and a moratorium is in place, or a declaration has recently been made that affects your tenement, HopgoodGanim is able to assist with any queries or concerns related to wild rivers and will be able to guide tenement holders through any restrictions, obstacles or problems that a wild river declaration may present.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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.

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