Draft Earth Resources Regulation Rehabilitation Plan Guidelines
DR ELIZABETH GIBSON, General Manager of the CMPA.
Purpose
According to Earth Resources Regulation (ERR) the purpose of the guideline (https://engage.vic.gov.au/preparation-rehabilitation-plans-guideline-extractive-industry) is to provide information to assist extractive industry work authority holders to develop rehabilitation plans that meet regulatory requirements in Victoria and achieve sustainable rehabilitation outcomes. It sets out what the regulator, ERR, expects to be included in a rehabilitation plan, and how the safe, stable and sustainable requirement in the Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2019 (Regulations) is interpreted. This guideline aims to enhance regulatory certainty and minimise regulatory burden through its adoption of an outcomes-based and proportionate approach. On 1 July 2021, new requirements for rehabilitation plans will commence (detailed in Regulation 11 of the Regulations).
CMPA Submission extract
Introduction
Thank you for the opportunity to comment on the Preparation of Rehabilitation Plans Guideline for Extractive Industry Projects Consultation draft November 2020 (Draft Guideline). The CMPA has long recognised the importance of rehabilitation having held a Progressive Rehabilitation (extractive industry) Workshop in February 2017 (https://sandandstone.cmpavic.asn.au/progressive-rehabilitation-workshop/) with a view to developing a Progressive Rehabilitation Management Plan Template.
The CMPA response is as follows:
General comments
The Draft Guideline is somewhat disappointing in that:
Large swathes (including the front cover) are copied from the Preparation of Rehabilitation Plans Guideline for Mining and Prospecting Projects February 2020.
Using the same criteria as mines is inequitable because, among other things:
• Sand, stone and gravel do not catch fire;
• Toxic processing chemicals (cyanide and mercury) are not used by the extractive industry;
• Quarries have a smaller footprint, less overburden and generally shorter operating hours;
• Quarries are not underground.
Whilst a “proportionate approach” is advocated in the Draft Guideline, which is 67 pages long, it would be beyond the majority of current Work Authority holders (which are mostly small quarries) to prepare a rehabilitation plan according to the Draft Guideline. It would also inhibit new, small quarry entry into the market.
Old quarries are valuable assets which go on to have innovative and often unexpected uses, shaping and shaped by the communities in which they are located. Combined with a long and complex regulatory landscape the extractive industry sector has had no failures over many years. The Draft Guideline as it currently stands has not kept these facts in focus. This should be formally recognised at the start of the Draft Guideline to frame the subsequent instructions.
Summary
The Draft Guideline is lengthy and obscure in places. Much of what is required is also duplicated in the work plan. Similarity also exists between the proposed Rehabilitation Plan and both the Community Engagement Plan under the MR(SD)A and consultation obligations under the Planning and Environment Act 1987.
Despite stating to the contrary, proportionality is very much absent and the statement that a small quarry owner would be able to complete the rehabilitation plan themselves (which is supported) would not be the case if using this Draft Guideline and all the other associated documents referred to.
Quarry operators, and particularly CMPA Members, are closely connected to the resource they are extracting and the community in which they operate. These resources are owned by a landowner, not necessarily the State, and it is only with the landowner’s express and ongoing permission in the form of a commercial undertaking that an operator can undertake extraction. It remains to be proven if the State could access a site to carry out rehabilitation works if the landowner refused. Rehabilitating these sites commences from the day the site opens.
The Draft Guideline has not captured the significance of the landowner’s opinions and needs; and commercial arrangements. It is their right as landowner to choose what is retained onsite, who has access to the site (page 60) and approve the final rehabilitation form irrespective of what other third parties feel. The Guideline does not acknowledge that in many cases the original Work Authority holder will rehabilitate a site to ‘safe and stable’ and will then hand it onto another party to carry out the transformation of the site or conduct an alternative business in the space available. This practice has enabled sites such as Highpoint Shopping Centre, various football fields and swimming pools, recycling facilities and most recently New Epping. It is doubtful that these were envisioned when those sites first commenced (see section 4.5 of the Guideline). Rather the broad landform and concepts could be identified and should be refined as the site approaches its eventual closure – say 12 months prior.
The Draft Guideline needs to be refined as it has been written for an environment where rehabilitation is a separate activity from quarrying and is carried out without consideration of previous works. This is certainly not the case in the quarrying sector with progressive rehabilitation being fundamental to a site’s successful operation.
There is a lack of understanding by ERR that the extractive industry (lower and different risk profile) is required to consult under the MRSD Act and the Planning and Environment Act 1987; whereas the mining industry is only required to consult under the MRSD Act.
There needs to be a regulatory impact statement conducted due to the regulatory creep in the Draft Guideline: The Draft Guideline states up front (page 2.) that it “…aims to enhance regulatory certainty and minimise regulatory burden…”. No proof has been provided in the Draft Guideline that there is regulatory certainty, nor that regulatory burden will be minimised.
There is regulatory creep occurring with each subsequent document produced by ERR without thought given to their purpose. For example, the Draft Guideline introduces the addition of more new terms such as “Environmental Impact Assessment”, “Conservation Management Plan”, “IAP2 spectrum” and “Society for Ecological Restoration Australia (SERA) guidelines”. Such terms will almost certainly create regulatory creep as operators and expensive consultants attempt to define, create and defend these over time.
At present the purpose appears (understandably) to be removal of all risk and liability to the Victorian Government. However, by having numerous plans with duplicated, overly complicated, and unnecessary requirements the purpose is being defeated because it does not lend itself to providing a concise and coherent work plan for the day-to-day management of a quarry as originally intended.
To sum up, a quote from an extractive industry operator:
“The level of complexity sets us up for failure.”
Hence, the Draft Guideline is not supported in its current form.
Note: The full CMPA submission is available at;
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