Too close to home? Restrictions on resources development near urban centresDec 2011 |
Draft legislation introduced to give effect to Urban Restricted Areas policy.
Resource exploration and production activities occurring within urban areas may have to be approved by local government before work can begin.
Existing project proponents will not require additional consent so long as their activities are covered by an existing Environmental Authority and Development Plan.
Urban living versus mining
The Resources Legislation (Balance, Certainty and Efficiency) Amendment Bill 2011 (Bill) was introduced to the Queensland Parliament on 29 November 2011. The Bill gives effect to the Urban Restricted Areas (URA) policy, which is designed to protect urban areas from mining and petroleum exploration. The URA policy was developed by the Queensland State Government and the Department of Employment, Economic Development and Innovation following the announcement of a temporary moratorium on exploration within two kilometres of urban centres (for more information on the impact of the moratorium, see our October 2011 update).
The Bill provides a legislative framework to resolve land-use conflict between residential living and resource development in or near urban areas.1 The Bill achieves this by establishing a new category of restricted area which may be declared to limit resources' activities. Currently, the Minister has the power to declare Restricted Areas, which prohibit mining tenements being granted over the gazetted areas. The new URA category will enable resources activities to be carried out in these restricted areas, but only with the consent of local government.
Initially, all towns with a population over 1,000 people will fall within the application of the URA policy, along with a two kilometre buffer from the boundary of each qualifying town.2 However, the Government is seeking to develop a new state planning policy under the Sustainable Planning Act 2009 which will map urban restricted areas, as well as known prospective resource areas so that mining activities are also protected from future urban development.3 The government has not indicated when these maps will be released.
Implications for current explorers and producers
The URA policy will not apply to existing production tenements granted under the Mineral Resources Act 1989 (MRA), subject to certain conditions. Holders of Mining Leases may still carry out production activities within a URA without obtaining further consent if an Environmental Authority and Development Plan are in place and which are not amended or substituted for a Later Development Plan after the commencement of the URA provisions. For holders of exploration permits or development licences carrying out authorised activities in a URA, activities must cease on the commencement of the amendments until local government consent is granted.4
The same rules will apply to Petroleum Leases granted under the Petroleum Act 1923 (Petroleum Act) or the Petroleum and Gas (Production and Safety) Act 2004 (P&G Act). Petroleum Lease holders may continue to carry out authorised activities subject to their current Development Plan and Environmental Authority. Any changes to either will require local government consent. The URA exemption for petroleum proponents extends to Petroleum Pipeline Licences, Petroleum Facility Licences, Petroleum Survey Licences and Water Monitoring Authorities granted prior to the Bill's assent.
However, holders of an Authority to Prospect will be required to observe the URA provisions in respect of obtaining local government consent. This means that all petroleum exploration activities will be subject to the new regime, regardless of when the relevant licence was granted.
Implications for future explorers and producers
Going forward, mining and petroleum proponents who wish to conduct exploration or production activities within a URA will have to comply with the URA provisions. If a resource tenement is granted over land which falls within a URA, proponents will be prohibited from carrying out mining activities in the URA unless they have submitted a notice to council including extensive
details about the proposed activities, the location and timeframe of the activities, and stating reasons why the activities must be carried out in a URA. The council has up to 40 business days to decide whether to consent to the activities within the URA.
If a decision is not returned within that timeframe or consent is refused, proponents can apply to the Land Court for a hearing, following which the Land Court will refer the decision to the Minister with the Court's recommendation on whether consent should be given. In deciding whether to allow resource activities within URAs, the Minister must consider the Land Court's recommendations and the overall state interest. The Minister can only approve authorised activities in URAs if the Minister considers the activity will benefit the state overall taking into account the economic, environmental and social effects of the project. The Minister's power to decide URA applications only applies if the matter has first been considered by local government and the Land Court.5
If consent is granted, the Minister may impose conditions on the consent which will treated as conditions of the licence grant.6 Accordingly, the penalty provisions for breaches of licence conditions under the MRA, the Petroleum Act and the P&G Act will also apply to consent conditions.
If the Minister refuses to grant consent to mining activities being conducted in a URA, resource proponents may apply for judicial review of the decision.7
Landholders' veto power
In addition to URAs, the Bill creates a third category of restricted area for petroleum proponents, which effectively gives landholders a right of veto over petroleum activities in certain circumstances. "Restricted Land" includes:
(a) land within a 100 metre radius of permanent buildings used for residential housing, business, community, sporting or recreational purposes, or places of worship; and
(b) land within a 50 metre radius of other structures, such as principal stockyards, bores or artesian wells, and dams.
In effect, petroleum proponents may only enter these areas if written notice has been given to the landholder of the land and their written consent is obtained. Similar restrictions already apply to mining proponents by operation of the MRA.
The notice must contain a copy of the relevant licence and an environmental authority. The landholder may impose conditions on granting consent, but they cannot withdraw consent once it has been given.
Importantly, the Bill does not contain any appeal provisions. Therefore, if a landholder refuses access to Restricted Land resource proponents can only advance their interests in areas that do not fall within the Restricted Land zone.
Ban on open cut coal mining
If passed, the Bill will prohibit new open cut coal mines from being established within a URA. Current holders of exploration permits will not be allowed to progress to open cut coal mining once the policy is in place. The ban does not apply to industrial minerals.
The Bill has been referred to the Queensland Legislative Assembly's Industry, Education Training and Industrial Relations Committee for detailed review.8 The Committee may be accepting submissions on the Bill, though details of the review are yet to be released (for up-to-date information click here).
The Bill is expected to be debated when Parliament resumes in 2012. It should be noted that if an election (due before June 2012) is called before the Bill is passed, it will be necessary for the Bill to be reintroduced. Accordingly, the estimated commencement date is uncertain.
Having regard to the possible implications of the Bill, tenement holders would be well placed to review their current environmental authority and development plans to ascertain whether any amendments will be necessary in the near future. Where possible, these amendments should be sought as soon as possible in order to attract the benefit of URA exemptions.
Resources proponents are strongly encouraged to seek early engagement with landholders to ensure consent is obtained before investment in resource projects that traverse Restricted Areas.
1 Queensland, Parliamentary Debates, 29 November 2011, p.3897 (Stirling Hinchliffe).
2 Minister for Employment, Skills and Mining, 'Protecting urban areas from exploration' (Press release, 29 November 2011).
4 Explanatory Memorandum, Resources Legislation (Balance, Certainty and Efficiency) Amendment Bill 2011 (Qld), p. 5.
5 Ibid, p. 28.
7 Ibid, p. 11.
8 Queensland, Parliamentary Debates, 29 November 2011, p.3896 (Stirling Hinchliffe).