MRSDA Reform

DR ELIZABETH GIBSON, General Manager of the CMPA.

The following article provides CMPA comments on the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) Reform Proposal. Earth Resources Policy and Programs, DJPR held a MRSDA Reform Proposal Workshop on 27 October 2020 which a number of CMPA Members attended.

Scope of MRSDA Reform:

Separation, not consolidation: It is noted, with some dismay, that there is further attempt proposed to align extractive resources with mineral resources which the CMPA does not support. Each of the following points could much more clearly be addressed for all concerned were the Act separated. As this is outside of the scope of the current review, efforts should be made to prepare for such a change by more clearly separating these two activities with distinct markets.

Reconfiguring the Responsible Authority

Local Government Authorities should not hold the role as the Responsible Authority as their views are always driven by localised self-interest and opportunities. A Work Authority is always a shared benefit to others within the Victorian economy. As such, the Responsible Authority should be a tripartite settlement between the LGA, DJPR and Treasury.

1. Works approval process: Reviewing works approvals Parts 3 and 6A of MRSD Act

Separation

Joining of the MRSDA did not fully appreciate that the two activities generated two separate monitoring and regulatory needs. This resulted in an unclear application of the various Parts within the Act. Its application to the different activities needs to be more clearly defined (ideally by separation). To this end, Part 3 is only applicable to mining licences.

Terminology

Certainty for the extractives industry is a high priority to allow continued investment in Victoria.
Changing terminology has little value in the industry’s view, particularly when the current preferred term “Works approvals” has a different meaning under the Environment Protection Act 1970. Please retain existing terminology and focus on matters with a clear benefit.

Statutory Endorsment

Whilst acknowledging the CMPA initially did not support the introduction of statutory endorsement as it considered it might trigger VCAT earlier were referral agencies to reject a proposed work plan; statutory endorsement has been in place for a number of years, and prior to its removal:

• A careful evaluation of the issues with the work plan approvals process over the past 10 years is required. Its full benefits and liabilities have not been fully proven.
• This formal process, which itself requires extensive consultation, creates an evidence trail for the agent of change principle.
• It clearly provides the Regulator with a considered andwell-thought out work plan with geological evidence to which the Department can begin considering how it identifies and protects from accelerated planning activity by others with the intent of sterilisation of the extractive resources

A Local Government Authority cannot assess a site without the technical detail currently assessed by a competent regulator (i.e., ERR).

This is not the cause of lack of investment in the extractive industries.

Should the statutory endorsement remain, ERR should be the lead agency with the referral authorities recommending and not determining.

The Work Plan needs to be in a narrative form so that it can be used during the application/approval process and in daily operations once approved by employees and the site management. It must be recognised that this is a tool for the applicant, not the regulator to ensure well managed sites.
The site must have ownership of the narrative, otherwise it will have limited uptake.

A government education program for the community as to the importance and benefit of the extractive industry to Victoria is required (as opposed to DJPR funding community objectors) to assist with the decision making.

2. Purpose and objectives: Reviewing purpose and objectives Part 1 and consequential amendments

The current name of the MRSDA downplays the significance of the construction materials/extractive industry sector to the State’s economy. This issue needs to be addressed.

The local communities must be able to understand the separation and difference between the two sectors.

This could include “Extractive and Minerals Industries (Sustainable Development) Act” or “Construction Materials and Minerals Act”.

The purpose and objectives of the Act should be separated for the two sectors regulated under it. For instance,

The purpose of this Act is to –

1. Identify, protect and preserve extractive resources for the benefit of future generations industries which underpin Victoria’s economic development and ensure the best use of the resources in a way which is compatible with the economic, social and environmental objectives of the State.
2. Encourage mineral exploration …

Objectives for the extractive section should include performance objectives such as quantitative and qualitative analysis of raw construction materials data to ensure replenishment of these finite resources.

Note that “economic viability” of the extractive industry has not been addressed.

3. Clarifying and strengthening compliance: support regulator and operators to assess and comply with risk-based duties; review offences and regulatory tools; review appeals and reviews; general regulatory power for rehabilitation

Earth Resources Regulation has all the tools it currently needs including for rehabilitation.

This comment should not however be read as an overall support of the current application of the rehabilitation powers, and indeed we would propose there is excessive regulatory burden given the risk posed to the State by the extractive industry.

There is a need to allow for the use of industry standard management tools/plans rather than attaching detailed documents to the planning application process. The latter leaves an overly complex path to modify.

4. Improving transparency: Community consultation, geoscientific data and information

Again, this concern highlights the need to separate the extractives from minerals given the vastly different application of the PEA upon these sectors. The MR(SD)A under s77G(3) (e) currently requires a community engagement plan only applicable once a site holds a work authority (i.e., after the PEA community consultation).

The timing of community engagement under the MR(SD)A needs to be clearly separated from the community engagement undertaken under the PEA. This needs to be better communicated by ERR.

5. Transitional arrangements: Developing guidance materials, communication strategies, processes, compliance, training and supporting industry to transition

Earth Resources Regulation, and Earth Resources Policy and Projects have a long-established history of increasing
costs/time and adding complexity to the extractive industry approvals and operations even though there is no evidence of failure. This has led to and will lead to further exit from the market of small to medium quarries.

It is unclear where the extractive industry is going to be transitioned to.

It needs to be appreciated that these transitional arrangements will need to be maintained for many years and will undoubtedly see a further contraction in the number of Work Authorities throughout Victoria.

6. COVID-19 response: Examine short term measures to assist industry e.g., emergency relief provisions, improving regulation-making and condition setting powers – No comment.

The following details CMPA comments on email received 27 October 2020 subsequent to the Workshop.

The following feedback was received from DJPR, note blue highlights indicates CMPA changes.

1 .What would the extractives industry like to see as a result of this reform? What does success look like for you, and how can we measure success?

• Operators are able to meet their responsible and balanced regulatory obligations at least reasonable cost to ensure a vibrant and sustainable small to medium quarry industry.
• The new practicable regime makes it clear what operators need to do to comply.
• The transition to the new regime does not leave any site worse off in terms of its existing approvals, or cause sites with existing approvals to lose those approvals.
• The regulatory framework recognises the diversity of the industries under the Act (i.e., quarries are very different to large coal mines).
• The new approvals process provides a risk-based, proportionate approach that is suitable for all operators from the smallest operation to the largest, most complex sites.
• The new approvals process leads to rapid approvals, a clear decision framework, and replenishment of the State’s resources for variations to work plans and new greenfield sites measured by monthly publication of increased tonnages of raw construction materials (hard rock or sand) approved per annum.

2. Our first priority is the works approvals process and its interface with other legislation. Based on feedback to date we have identified the below six broad themes, which we presented in the meeting – does CMPA agree with the below or have any other suggestions?

I. Inefficiencies in the work plan approvals process burden both regulator and applicants and customers including Victorian Government through increased prices for construction materials. II. Work plans, once approved by ERR, represent a ‘point in time’ and are not an adequate or effective way to regulate risks arising from operations. III. Statutory endorsement requires a detailed work plan to be prepared before the planning merit of a proposal is resolved, impacting transparency and creating regulatory burden however in a recent case with the Victorian Planning Panel the statutory endorsed work plan was the main reason for an outcome supporting extractive resources over housing aspirations. The challenge remains how does a LGA assess an application without ERR having assessed the technical ability of the site to do what it promises? Could the desired outcome be achieved with minor corrections, rather than a whole re-write? IV. There is no statutory policy to guide decision-making under the Act, impacting transparency, creating uncertainty for industry (the approvals process has become a lottery) and burdening the regulator (the regulator should talk to Earth Resources Policy and Programs). V. There is lack of understanding between regulatory regimes and the interaction between those regimes (e.g., planning, environment), creating regulatory burden (the regulatory burden is inconsistent with no two quarries conditions following the same path) and impacting the regulator. VI. Approvals processes for variations to existing operations create regulatory burden.

3. We (DJPR) are very interested in the suggestion to look at previous cases where the system worked well or did not work. Is there particular case studies or data/ feedback CMPA can point us to that are relevant to the above themes?

See the following links:

CMPA Review of VCAT Decisions for the Extractive Industry 2017
https://cmpavic.asn.au/wp-content/ uploads/2017/11/CMPA-VCAT-Project-Report.pdf

CMPA Unsustainable Future 2009
https://cmpavic.asn.au/files/Unsustainable_ Future.pdf

Use RRAMs to find sites with variations over the last 10 years or Work Authorities granted within 30 years.

4. We (DJPR) are looking to put out a survey to members to help us collect data and build an evidence base to support our assessment of options and solutions. We welcome CMPA’s advice or suggestions on how we could best approach such a survey and the timing of it.

Please ensure that any survey (preferably in early 2021) is clear on what ERR’s position is, and how this information would be used. It is important that our members understand why they should complete such a survey. It may be appropriate to carry this out inhouse to enable targeted follow up questioning to occur.

Also of interest to readers is where the planning permit conditions are duplicating the work plan / work authority conditions. Furthermore in planning permit conditions the “Responsible Authority” is designated to be the Local Government Authority. An example of this is Austral Bricks (Vic) Pty Ltd v Mitchell SC

A separate Extractives Act
The CMPA has for many years been pursuing separate Acts for the Minerals Industry and the Extractive Industry for which there is strong industry (CMPA) support.

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