Mineral Resources (Sustainable Development) Amendment Bill 2023

DR ELIZABETH GIBSON, General Manager of the CMPA provides a summary of the new MR(SD)A Bill.

The Mineral Resources (Sustainable Development) Amendment Bill 2023 (Bill) has been introduced into Parliament which will make amendments to the Mineral Resources (Sustainable Development) Act 1990 (MRSDA), see timeline above.

Change of name
The MRSDA will be known as the “Mineral Resources and Extractive Industries Act 1990”. Recognition of the extractive industries in the Act is a positive step – one of very few positives proposed by the Bill.

Purpose
The purpose of the Bill is to:

1. Remove the requirement to lodge a work plan;

CMPA never advocated for the removal of the work plan. A statutorily endorsed work plan has demonstrated its strength recently in a Planning Panel Hearing closing submission;

“Only the Minister for Resources can approve a Work Plan. The statutory endorsement is formal and requires extensive consultation. Properly categorised, planning for the protection of the rock resource is well advanced as a formal approval required under the Mineral Resources Act has been granted. This should be given weight in considering the agent of change principle and growth area planning policy objectives”

and at a recent VCAT Senior Member decision:

“In this instance a draft work plan has been statutorily endorsed. This signifies that many matters such as potential impacts to biodiversity values of the subject land and its surrounds, potential amenity impacts from noise, dust and vibration, and quarry operations have been assessed and found to be acceptable by the relevant authorities under the MRSD Act regime.”

Further concern has been raised by the legal firm Minter Ellison (7 July 2023) on the Bill “We expect that the burden the new framework places on responsible authorities, coupled with a lack of administrative resources and experience in mining and extractive industries from local councils, may create some challenges in realising the objective of this reform to remove a significant source of unnecessary cost and delay.” https://www.lexology.com.

2. Create a duty – eliminate or minimise risk of harm;

“A duty holder must, as far as reasonably practicable (AFARP), eliminate or minimise any risk posed to the environment, to any member of the public or to land, property or infrastructure by exploration, extractive industry, mining or rehabilitation of land or any related activity carried out by or on behalf of the duty holder.”

Duty holder means—
• a holder of an authority carrying out exploration, extractive industry or mining under the authority; or

• a holder or former holder of an authority rehabilitating land in accordance with the authority, whether or not the authority has ceased to apply to the land; or
• a person carrying out exploration, extractive industry or mining other than in accordance with an authority; or
• a person rehabilitating land other than in accordance with an authority.

CMPA did not advocate for a general duty due to the length of time for their implementation and understanding by WorkSafe officers (~10 years) of terms in the Occupational Health and Safety Act 2004, for example, AFARP leading to lengthy and convoluted interpretations https://www.worksafe.vic.gov.au/resources/how-worksafe-applies-law-relation-reasonably-practicable.
Additionally, the Environment Protection Act 2017 introduced the general environmental duty (commenced 1 July 2021). This led to a nonsensical classification of waste potentially requiring Financial Assurances for $millions as bank guarantees for Construction and Demolition Waste Recycling. Fortunately, after the intervention of CMPA common sense prevailed but it took over 12 months and much intervening angst to resolve.

3. Provide for a system of risk tiers;
This is a new legislative approval process with 3 levels of tiers specified:

A risk category is determined as outlined below.

4. Retain the requirements for a rehabilitation plan; and

5. Require regular review of rehabilitation plan.
Note that “work plan” will be replaced by “rehabilitation plan” in the MRSDA where appropriate and, hence and approval process for variations to the rehabilitation plan. Higher risk and moderate risk quarries will be required to lodge a Rehabilitation Plan with the Department for approval prior to commencing work.

Objectives
A number of objectives have been stipulated to be incorporated into the MRSDA including:

1. “Facilitating the search for stone and fostering the establishment and continuation of mining and extractive operations”. It is good to see that extractive industries have now been included in the objective.

2. “Just compensation is paid for the use of and access to private land or mining or the search for stone”. A lack of understanding of the relationship between the proponent (extractive industries) and land holder is apparent as opposed to the right of access for mining.

3. “Obligations to eliminate or minimize risks are established”.

4. “Community interests are considered in the administration of the MRSDA”. This appears to expand the remit for community consultation beyond what is already currently difficult to achieve.

Offences
Failure to comply with duty – indictable offence
• 10,000 penalty units corporation or
• 2,000 penalty units

Aggravated breach of duty resulting in material harm –
indictable offence
• 20,000 penalty units ($3.9 million) corporation or
• 4,000 penalty units ($0.8 million) and/or 5 years imprisonment

Failure to make notification of material change or proposed material change; any foreseeable change increase in risk – indictable offence
• 10,000 penalty units corporation or
• 2,000 penalty units

Privilege against self-incrimination does not apply.

Minor variations
Non-statutory administrative updates are proposed to be incorporated into the MRSDA as minor variations. This is proposed to be in place until the commencement of the Bill (1 July 2027) as per the Purpose.

Transitional provisions
Current work authority holders will have their risk tier determined ahead of the amended MRSDA commencing. This also includes former work authority holders that have not yet fulfilled their rehabilitation requirements.

Summary
The CMPA does not support the majority of aspects of the MRSD Amendment Bill such as removing one legislative approval process (work plan statutory endorsement) and replacing with two statutory approval processes (risk tier determination and rehabilitation plan approval). Additionally, seeking planning permission as a first step to the approvals process will not result in shorter approval timeframes as discussed earlier. This does not appear to be in the spirit of the second reading speech by the Minister for Energy and Resources “simpler and more flexible” and “streamlining processes”.

The CMPA will continue to work proactively with the Government of the day.

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