MRSDA reform consultation

DR Elizabeth Gibson, General Manager of the CMPA

The CMPA is concerned that the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) reform is progressing at a rapid rate (with the duty holder model and removing statutory endorsement of the work plan) without any apparent thought to the potential devastating impacts on small and medium quarries (account for ~50% production) operating throughout Victoria.  These issues have been raised by CMPA in a great deal of correspondence (dating back 12 months) and at briefings with DJPR; and meetings with the former and current Ministers for Resources. To date the CMPA concerns have not yet been addressed or apparently ignored. 

The path of the MRSDA reform appears to be based on the wants of:

• Multinational companies who would see great competitive advantage in the potential demise of small to medium quarries.
• A regulator that is:
  • Unwilling or unable to articulate the difference between mines and quarries including in the legislation.
  • Having difficulty in facilitating an efficient and effective work plan endorsement process due to issues such as risk adverse decision making, high staff turnover and inexperience.
• A slot for the MRSDA reform becoming available in early 2022 putting undue pressure on the reform process due to time constraints.
• An apparent lack of understanding of the extractive industry and its legislative framework in Earth Resources Policy and Programs.

No justification has been given by Earth Resources for travelling down this path of legislative reform (a copy of the legislative impact assessment was requested by CMPA but access denied by DJPR).

Work plan statutory endorsement: proposed removal

On the understanding that statutory endorsement is most commonly used for extractive industry applications, given it is applicable to those applications which require a Planning Permit, the following comments are made:

• Statutory endorsement was introduced in 2012 to bolster the strength of the endorsement process previously carried out as an administrative function. The CMPA was concerned at that time about its introduction and the chance of referral agencies refusing to agree and therefore an application ‘bouncing about VCAT’. The second reading speeches for the introduction of statutory endorsement all talk to this being a streamlining of the referral process and a necessary change to reduce the workload on the LGAs without watering down their powers. That is to say, the use of the government’s experts in a manner similar to the expert conclaves of today to inform the proponent before the application reaches LGA and community. In turn, this should provide the LGA and community with confidence of the technical abilities of an application or variation.  
• Being a statutory process under the MRSDA means it is not merely a “placeholder’ but a necessary stage of approval, without which an applicant would have a right of review to the VCAT. Conditions may be imposed upon endorsement and approval, and they may be subject to review, EXCEPT where they are substantially the same as any planning permit condition.
• As noted by the representative of a quarry planning permit application closing submission to a Planning Panel;

“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”

• A review needs to be undertaken into work plan (extractive industries) statutory endorsement: into where it has worked and where it has not worked together with the reasons.   Data on how many times statutory endorsement has been used since 2012, is needed and where these applications are at (i.e. approved, endorsed and within planning, refused and over-ruled by VCAT, refused and supported by VCAT, withdrawn).  This must be conducted prior to any proposal to remove statutory endorsement of work plans.

Victorian Planning Provisions (VPP) Clause 52.09

It is essential that prior to progressing further, there is a clear pathway in retaining the protections provided by Clause 52.09 (52.09 EXTRACTIVE INDUSTRY AND EXTRACTIVE INDUSTRY INTEREST AREAS (delwp.vic.gov.au)) of the VPP, which as outlined in the Planning Practice Note 89: Extractive industry and resources:

Clause 52.09-7 of planning schemes requires that notice of a planning permit application to use or subdivide land or construct a building for accommodation, child care centre, education centre or hospital within 500 metres of an existing or proposed work authority be given to the Secretary to the Department administering the MRSD Act (currently DJPR).

Our industry requires a champion in State government who is credible and can support us, who is able to give the industry credibility and articulate the many legislative interfaces we work under.

Other Issues:

1. LGAs would face significant burden for assessing performance objectives-based regulation.  It was proposed that LGAs would not be the best vehicle for approving quarries and that the extractive resources should be deemed State resources. 
2. The proposal for changing the purpose and objectives of the MRSDA did not distinguish between mining and extractive industries.  Once this issue was raised (and differences explained) it was agreed verbally by DJPR to separate them and consideration given to renaming the MRSDA.  Evidence of this verbal agreement has yet to materialise.  However, CMPA still supports separate Acts
3. The duty holder model proposal is somewhat alarming and is highly unlikely to give rise to an efficient and cost-effective Work Authority approvals process. 
4. The extractive industry requires a champion in State government who is credible and can giver support, who is able to give the industry standing and articulate the many legislative interfaces the industry works under.

CMPA would be more than happy to have further discussions to enable a mutually acceptable outcome that supports a vibrant and sustainable quarry industry (with the availability of variety of type, quality and price of construction materials to the community) throughout Victoria thereby enabling the economic development of the State.

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