Environmental considerations for miners and explorers: How to stay compliant

Environmental considerations will arise at various stages of a mining or exploration project. Addressing such considerations is a necessary step to avoiding potential compliance consequences under local, state and national laws.

Ensuring compliance with the various regulatory instruments touching upon the environment generally requires a project to undertake environmental assessments, obtain necessary approvals and comply with ongoing obligations.

In Part 3 of HopgoodGanim’s Mining Project Lifecycle Series, we explore key environmental considerations that may apply to mining projects and outline what compliance with these requirements typically involves.

Environmental Authorities

Resource activities have the potential to release contaminants into the environment, cause environmental harm or adversely affect environmental values. As such, many resource activities will require an environmental authority in addition to any tenure or resource authority requirements under the relevant resources legislation. There may be some small scale mining activities that do not require an environmental authority, however there may still be a need to comply with requirements regarding financial assurance and rehabilitation.

Protected flora and fauna

In Australia, flora and fauna species can be protected at a national level under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)¹, at a state level including under the Nature Conservation Act 1992 (Qld), or at a local level by way of planning instruments or local laws.

Where a project is likely to have an adverse impact on a protected species, the project generally cannot be undertaken without an assessment of the impact and approval.

The process to determine whether approval is required under the EPBC Act involves multiple steps:

• initial assessment must be completed by the proponent to determine whether protected species are identified as being present in or near the project area – including ecological communities, flora, fauna and migratory species;
• if protected species are identified, surveys and field assessments are completed to determine whether a proposed action could have a significant impact on those species;
• before taking an action that could have a significant impact on a matter protected by the EPBC Act, the proponent must submit a referral to the Minister. The Minister will then decide whether a proposed action requires assessment and approval under the EPBC Act;
• if a proposed action requires assessment and approval under the EPBC Act there are a number of assessment methods including accredited assessment, assessment on referral information, assessment on preliminary documentation, assessment by environmental impact statement or public environment report or assessment by public inquiry. The EPBC Act sets out the process and timing requirements for each type of assessment;
• if the Minister decides to approve a proposed action, the approval may be subject to conditions to protect, repair or mitigate damage to a matter protected by the EPBC Act. Conditions of an approval must be complied with in undertaking the approved proposed action. It is possible that environmental offsets may be required.

Obtaining an approval under the EPBC Act (or deciding that a referral is not required under the EPBC Act) does not remove the need to seek relevant state and local government authorisations.

Examples of approvals that may be required at a state and local government level include:

• where protected plants are encountered, a clearing permit, damage mitigation permit or species management program may be required;
• where protected fauna or fauna breeding place is encountered, a permit may be required to move or interfere with them;
• where the project requires clearing of native vegetation, permits may be required;
• where a project area is intersected by waterways, watercourses or involve the taking of water, approvals for fish habitat areas, barrier works, tidal plants, resource allocation or interfering with water may be required;
• where a project is located in a biosecurity zone or restricted invasive plants and animals are encountered within a project area, permits may be required for movement or for dealing with restricted or prohibited matters;
• where vegetation is protected by a local government, a permit under a local law may be required.

Statutory duties and obligations

There are a number of environmental duties and obligations that exist in legislation which apply to all persons separate and in addition to any approval requirements. For example, legislation in all states and territories contain a general environmental duty to prevent or minimise harm to the natural environment. In some jurisdictions, the duty can be accompanied by an offence provision (for the failure to comply with the general environmental duty) as well as duties to notify of environmental harm (including the potential for environmental harm).

Environmental legislation also makes contravening conditions in effect for an activity, causing environmental harm or environmental nuisance unlawful with associated penalty provisions.

Contaminated land and waste

Consideration should be given to determining whether a project area is identified (in whole or part) on any contaminated land registers maintained by the relevant state or territory authority. Should land be identified as contaminated (either through a search of relevant registers or by way of identification by a suitably qualified person), detailed assessments should be carried out to establish the baseline state of the land prior to any resource activities commencing. This is particularly important in order to be able to properly consider whether proposed approval requirements are appropriate and for decommissioning/rehabilitation.

It is possible that undertaking a mining or exploration project may pose a contamination risk to land and waterways within the project area. In those circumstances, proponents may need to remediate such land or waters.

Where a project involves the generation, transportation, handling, storage or disposal of waste, approvals may be required. Consideration should be given to the likely waste streams to be generated through both the construction and operational phases of a project including general waste, construction and demolition wastes, green waste, contaminated waste, regulated wastes or hazardous waste. There may be waste reporting obligations under legislation or pursuant to activity approvals. Further, there may be requirements and fees for any waste that is disposed off-site.

Rehabilitation and decommissioning

As part of securing an environmental or resources approval, in some jurisdictions, a progressive rehabilitation and closure plan may be required detailing the rehabilitation activities, milestones, monitoring and maintenance requirements to restore the land to a stable condition. There are often financial provisions associated with these plans to guarantee that the relevant state or territory holds adequate funding for rehabilitation of sites in the event that a proponent fails to carry out its obligations. The quantum of the financial provision is calculated having regard to the particular site attributes and risk.

Implications

Complying with the environmental regulatory framework can be a significant challenge for resource activities. Non-compliance can result in serious penalties and enforcement action. As such, it is essential that proponents carefully consider environmental matters such as the anticipated or potential environmental impacts of a proposed action early in the planning of the proposal, and remain abreast of legislative and policy change with respect to the regulation of the environment.

¹. There are additional matters of national environmental significance in the EPBC Act including world heritage properties, national heritage places, wetlands of international importance, Commonwealth marine areas, migratory species, the Great Barrier Reef Marine Park, nuclear actions and a water courses in relation to coal seam gas development and large cola mining development.