Resources and Energy Alert: Strategic Cropping Land Implementation - 1 June 2011

Yesterday the Queensland Government announced how the strategic cropping land (SCL) policy will be implemented. This policy aims to find a balance between our agricultural, resource and development industries by assessing potential impacts on strategic cropping land.

The effect of the SCL policy on existing projects depends on the application of the SCL criteria as well as the eligibility milestones in the transitional arrangements.

Here, Partner Martin Klapper and Solicitors Damian Roe and Emily McCartney expand on these concepts.

How is SCL identified?

Trigger maps on the DERM website (click here to view) provide an indication of where SCL is expected to exist. These maps, however, are not definitive and it is the on-the-ground assessment of land that will determine the extent of SCL.

There are eight criteria used to assess SCL including slope, rockiness, soil depth, soil wetness and salinity.

These criteria are identified by:

  • The landowner, who can choose to apply to have their land assessed; or
  • The proponent (for example, the mining tenement holder) who conducts an assessment of the land on which the project is situated, as part of the development assessment process.

An objective assessment is required to assess whether or not particular land falls into these categories - for example, a land owner and a mine developer cannot simply agree that particular land is not SCL.

This SCL policy now differentiates between two types of SCL:

Where are the Strategic Cropping Protection Areas?

Strategic Cropping Protection Areas will be given the highest level of protection under the SCL policy. Land within this area must not be permanently alienated by development, unless limited exceptional circumstances exist such as where the resource cannot be found anywhere else in the State. This means that development within these areas will be severely restricted.

Two Strategic Cropping Protection Areas are proposed in Queensland - one in the Emerald-Springsure region and one in Southern Queensland which includes the Darling Downs and Granite Belt. Together these areas total 4.78 million hectares.

Where are the Strategic Cropping Management Areas?

Strategic Cropping Management Areas are those areas which not only meet the SCL criteria, but also have a history of cropping. It is proposed that these areas will be consistently managed to ensure that any impacts on SCL are either avoided or minimised. Those developments that cannot avoid this and permanently impact the SCL will be required to mitigate their impacts.

A map of these areas can be found on the DERM website.

Transitional Arrangements

One of the major issues arising from the implementation of the SCL policy is the introduction of transitional arrangements in the proposed SCL legislation.

Coal, mineral, gas and petroleum resource tenure applications that have met certain milestones by 31 May 2011 will be subject to the transitional arrangements shown below.

This means even projects that are already well advanced may not be exempt from the SCL legislation to be introduced later this year.

The eligibility milestones for the transitional arrangements are:

  • For resource production projects that require an Environmental Impact Statement (EIS), the project has finalised EIS terms of reference before 31 May 2011. If this is a mining lease application, there also is a certificate of application;
  • For resource projects that do not require an EIS, a draft Environmental Authority was issued prior to 31 May 2011;
  • For projects that relate to the expansion of an existing mine, where the holder of a mining lease also holds an adjacent Exploration Permit or Mineral Development Licence as at 23 August 2010 and the certificate of application for the mining lease is obtained by August 2012.

Projects that meet the eligibility milestones but have not yet obtained the final environmental approvals will be able to proceed on SCL provided that they avoid, minimise and mitigate their impact on SCL.

Projects that meet the eligibility milestones that have obtained their final environmental approvals by 31 May 2011 will not be required to meet any additional SCL conditions.

If a project does not meet the eligibility milestones then the project will be assessed under the SCL protection and management arrangements to be introduced later this year.

Public comment on the SCL Policy fee and cost options

A Regulatory Assessment Statement has been released for public comment and gives an overview of DERM's options to manage the fees and costs associated with the SCL policy, which include costs recovery from the Queensland budgetary process or via a fee schedule in accordance with either a full cost or partial cost recovery method.

Submissions and comments must be lodged by 5pm, Wednesday 29 June 2011.

For more information on this issue, please contact HopgoodGanim's Resources and Energy team.