11 September, 2016
What you need to know
- The Mineral and Other Legislation Amendment Act 2016 (Qld) (MOLA Act) was passed by the Queensland Parliament on 24 May 2016.
- There will be very little change to the current framework for mining lease and environmental authority notification and objection rights, or to restricted land.
- The MOLA Act winds back amendments contained in the former LNP Government's Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act), much of which never commenced because of the change in Government.
- Mining lease applications will remain subject to public objection rights, and landholders will retain veto rights in relation to "restricted land" within the area of a mining lease application.
What you need to do
- All interested stakeholders should watch this space as we track the commencement of the MOLA Act and the remainder of the MERCP Act provisions.
Background
The primary objective of the MOLA Act is to wind back certain yet-to-commence amendments to Queensland's mining and petroleum legislative regime contained in the MERCP Act.
The MERCP Act was passed in September 2014 as part of the former LNP Government's "Modernising
Queensland's Resources Act Program", the goal of which was to replace the existing resources legislation with a single, common Act governing all resource tenure. Because of the change in Government, the majority of MERCP Act provisions have not commenced.
Mining lease notification and objection rights
The most significant amendment introduced by the MOLA Act is to repeal the yet-to-commence provisions of the MERCP Act which limited notification and objection rights for mining projects.
The LNP Government's MERCP Act:
- imited the class of people that could make objections to mining lease applications to "affected persons" only, being the owner of the underlying land or adjoining land, or land necessary for access to the underlying land, and the relevant local Government; and
- limited the grounds upon which people could object to mining leases.
However, the MOLA Act repeals those provisions of the MERCP Act and returns the current notification and objection framework, meaning that:
- anyone can lodge an objection to a mining lease application; and
- the Land Court will be able to consider objections on the broad grounds set out in the Mineral Resources Act 1989 (Qld) (MRA), including whether there will be any adverse environmental impacts caused by operations under the mining lease.
The MOLA Act introduces a requirement for mining lease notices (replacing certificates of application and certificates of public notice) to be provided to not only the owner of the underlying land/land required for access, and the relevant local Government, but also to adjoining landholders and entities that provide "infrastructure" wholly or partially on the land the subject of the mining lease.
Environmental authority notification and objection rights
The MOLA Act also repeals a number of proposed MERCP Act changes to the Environmental Protection Act 1994 (Qld) (EP Act), including amendments relating to notification and Land Court objections.
The MERCP Act sought to limit public notification requirements, and objection rights, to "site-specific" applications for resource activities. However, the MOLA Act has now repealed those proposed amendments, largely reverting to the existing framework.
Land Court powers
For both mining lease applications and environmental authority applications, the MOLA Act retains the new provisions in the MERCP Act allowing the Land Court to strike out objections to the extent that they are:
- outside the jurisdiction of the Land Court;
- frivolous or vexatious; or
- otherwise an abuse of the process of the Land Court.
Restricted land framework
Significantly, the MOLA Act repeals the yet-to- commence amendments to the MRA in the MERCP Act which would have allowed the grant of a mining lease over restricted land where landholder consent had not been given and compensation not agreed. The Ministerial power to extinguish restricted land is also repealed by the MOLA Act.
The MOLA Act reinstates the current requirement that mining leases can only be granted over restricted land where the relevant owners have provided written consent, and the written consent has been lodged with the chief executive before the last objection day (after which time it cannot be withdrawn).
The MOLA Act also amends the definitions of restricted land for all resource authorities. The MRA currently defines restricted land (in relation to mining lease applications) as land within 100m or 50m laterally of prescribed categories of land or features. The MOLA Act amends the definition of restricted land for all resource authorities to include key agriculture infrastructure, and increases the prescribed distances such that:
- where the resource authority is an exploration resource authority or a production resource authority, restricted land is land within 200m laterally of a permanent building, or an area used for the prescribed purposes; or land within 50m laterally of an area used for the prescribed purposes; and
- for all other resource authorities, restricted land is the area within 50m laterally of any area building or structure used for the prescribed purposes.
Overlapping tenements
The MOLA Act clarifies the operation of the overlapping tenements framework for coal and coal seam gas (CSG) under the MERCP Act, and further brings this framework into alignment with the White Paper.
The MOLA Act amends the overlapping tenements framework to ensure that:
- only situations involving overlapping production tenements (ie, a mining lease and a petroleum lease) will require a joint development plan;
- proposed and agreed mining commencement dates are replaced with a single "mining commencement date" identified by the coal resource authority holder;
- existing industry commercial arrangements are preserved;
- requirements for information exchange between overlapping tenement holders are strengthened; and
- operation of the dispute resolution process, transitional provisions and other miscellaneous provisions are clarified.
Other points to note
- Department brochure: During Parliament when the MOLA Act was passed, the Hon Dr Anthony Lynham, Minister for State Development and Minister for Natural Resources and Mines, stated that the Department of Natural Resources and Mines (DNRM) will develop a plain-English brochure that explains the environmental impact statement, environmental authority and mining lease assessment processes and the points at which the public can participate in or object to a mining project. The Minister also said that he will work with the Departments of State Development and Environment and Heritage Protection to make this brochure easily accessible on the Departments' websites and also provide it to affected landholders and neighbouring landholders as part of the notification process implement this recommendation; and
- Opt-out agreements: During Parliament, the Minister also stated that the DNRM will develop materials that clearly spell out the consequences and risks of entering into an opt-out agreement. These materials will have to be provided to a landholder before entering into such an agreement.
For further information, please contact:
John Briggs, Partner, Ashurst
john.briggs@ashurst.com
