Mining and Advocacy: What you need to know

I recently attended a seminar at Mudgee on Mining Advocacy presented by the Environmental Defenders Office. The key issues are to seek legal advice before negotiating with mining companies, consult with your neighbours and band together as a community. Many aspects will remain unclear until the new NSW Government has reviewed coal seam gas mining in this state. The following are my notes.

Mining and Advocacy: What you need to know

Presented by the Environmental Defenders Office, a community legal centre specialising in public interest environmental law, on 25 May 2011 at Mudgee.

CSG activities require approval from the Minister for Primary Industries

• Petroleum Exploration Licences – PEL – 6 years, renewable, can be granted over any land, including privately owned land. Development consent not required under planning law.
  Note: Dart Energy has PEL 460, south of
  Putty Valley Road
  at the
  Putty Road
  turn off and AGL has PEL 4 to the north.
• Petroleum Assessment Leases – up to 6 years, CSM is specified in lease, all government agencies and local councils must be notified and can object, development consent not required.
• Production Leases

PETROLEUM EXPLORATION LICENCES

The government is to undertake a State-wide audit of exploration licences to:

  - review their current status: and

  - ensure that the exploration licence holders are adhering to the conditions of their licence

The status of all exploration licences will be publically available to communities.

Transitional Provisions

A precautionary approach will be implemented to consider the appropriateness of an area for future mining when releasing new exploration licence tenders for coal and coal seam gas.

Major fees will now only be paid if the project passes through the assessment process and obtains a mining lease. Companies were paying $100,000 - $300,000 for licences.

The community will be consulted prior to tenders being released for exploration licences.

Restrictions

Exploration/assessment activities cannot be carried out on the surface of land within:

• 200 metres of a dwelling
• 50 metres of a garden
• on any significant improvements, including sheds, windbreaks and orchards

      without landholder consent.

Exploration must not be carried out in an “exempted area” unless the Minister for Primary Industries has granted an exempted area consent.

Exempted areas are lands held for public purposes and includes areas such as State Forests, National Parks and recreation reserves.

Notification

Affected landholders have no right to be personally notified of an exploration licence. Applicants for exploration licences are required to advertise that they have lodged an application by publishing a notice in State-wide and district newspapers.

Environmental Assessment

• Review of Environmental Factors – preliminary review of environmental impact and (if necessary)
• Environmental Impact Statement – more detailed assessment only required where the REF indicates there will be a significant impact; and (if necessary)
• Species Impact Statement – assess the impact of the development on threatened species, populations and ecological communities and their habitats. Only required if significant impact is likely.

It is illegal to harm native fauna and flora without a licence

Note: Dart Energy has a Review of Environmental Factors being assessed by the NSW government for exploration at Putty. If this is approved they will be able to drill a test hole at Putty. The location is unknown until the approval is given.

PETROLEUM ASSESSMENT LEASES

Notification

Applicants for petroleum assessment leases must personally notify all landholders whose lands lie within the lease area.

PETROLEUM EXPLORATION LICENCES & ASSESSMENT LEASES

Other Approvals

In addition to an exploration licence/assessment lease, exploration activities may also require approvals under other legislation

• Water access licence
• Permit to clear native vegetation
• Permit to harm endangered species
• Environment Protection Licence (pollution licence)
• Approval under Federal law may also be needed

Conditions

Exploration Licences and Assessment Leases can be granted subject to conditions such as: rehabilitating land or a requirement to give security to ensure the fulfilment of obligations

Landholder Rights

• You do not have the right to comment on whether an exploration licence or assessment lease should be granted

However

• You do have the power to ensure the licence holder only engages in activities authorised by the licence
• You have the right to sue for any unauthorised environmental damage
• You have the right to negotiate the terms upon which the licence holder accesses your land

Access Arrangements

An access agreement defines the terms upon which the exploration licence or assessment lease holder can have access to the land.

The landholder and the mining company have 28 days to reach an agreement which must be in place before exploration/assessment activities can occur.

• Don’t sign without getting legal advice first – ask the mining company to pay for it or go to the EDO
• You don’t have to agree to the access arrangement but if you can’t agree the matter will go to Arbitration (free)
• Either party can appeal to the Land and
  Environment Court
  from the Arbiters decision. (Pay your own costs)
• Golden Rule – the agreement should be as detailed as possible and cover all possible contingencies
• Make sure the agreement has a time limit and only applies to exploration activities
• Ensure the following are covered – access routes and mining sites, permitted mining activities, notice of access, the times of access ( what times will they be able to access your land, will they have access on Sundays, public holidays, crop harvesting), the parts of land to be accessed, mining company responsibilities, OH&S provisions, environmental protection (include bringing weeds into the area), indemnity provisions, limitation of liability, insurance, legal costs, dispute resolution, duration of agreement (in case of sale or death), the manner of varying the arrangement, compensation to be paid, exclusivity – can you be on the land at the same time, notice – how much notice will you receive.
• Negotiate to not sign a confidentiality clause
• If the mining company breaches any terms of the agreement then you can lock the gate.
• Come up with your own access arrangements and speak to your neighbours and agree on standard terms.
• Avoid the mining companies divide and conquer strategies.

Compensation

• Landholders are entitled to compensation for any loss caused by exploration activities
• Compensation provisions are usually included in Access Agreement.

Landholder Obligations

A landholder must not unlawfully obstruct or hinder the holder of an exploration licence from undertaking authorised activities (maximum penalty $11,000).

Note: Dart Energy and AGL will probably want to drill more test holes in Putty Valley. A Putty landholder has refused Dart access and was not taken to arbitration. During exploration the mining companies need permission to enter your land. However, once in production you have no rights. SAY NO TO EXPLORATION.

CSG PRODUCTION

CSG production activities include roads, wells, storage and/or removal of produced water, pipelines.

Strategic Land Use Plans

• The new governments proposed strategic land use plans will be an important part of the new planning assessment process
• Future developments will be assessed within the context of any relevant strategic land use plan
• All developments will need to demonstrate that they are consistent with the outcomes and objectives of the strategic land use plan
• There will be winners and losers but you will be compensated

STAGE 1 - DEVELOPMENT CONSENT

The Applicant must obtain development consent before a production lease is granted. Mining companies choose their assessment process and up until now have chosen Part 3A – NSW government approval over Part 4 – local council approval. The notification obligations and the environmental assessment required are more extensive for Part 4 and the council’s decision can be challenged legally.

The Planning Assessment Commission (PAC) http://www.pac.nsw.gov.au/ has recently replaced the Minister for Planning as the decision making authority for all mining Part 3A projects.

Both Part 3A and Part 4 require the following

Development Consent process for Part 3A

1.      The mining company prepares an environmental assessment – requirements are tailored to the project. If assess is adequate

2.      Environmental assessment advertised and exhibited for 30 days (you can ask for an extension) and relevant parties are notified,

3.      Public and government department submissions are received within 30 days unless an extension has been granted. If more than 25 submissions are received it is considered to be controversial. The EDO has challenged assessments and the companies had to rewrite them.

4.      Company responds to submissions and if required prepares a Preferred Project Report if changes are proposed.

5.      Director General of the Department of Planning prepares an environmental assessment report for the minister and the minister decides whether to approve the project

Transitional Provisions

·        All new applications are required to undertake agricultural productivity impact assessments.

·        During the transitional period strategic agricultural lands (highly productive lands) approval will not be granted where there will be a detriment effect on the agricultural productivity of the land and associated water resources.

·        All new development applications will be required to adhere to the Aquifer Interference Regulation.

·        The Aquifer Interference Regulation will provide guidance on the acceptability of impacts on aquifers.

·        Statutory timeframes will ensure the NSW Office of Water undertakes assessments and approvals rapidly and concurrently with other requirements.

Community Action

• Get a copy of Environmental Assessment (EA) as soon as possible
• Request an extension to submission period
• Find scientist to provide advice on technical aspects of EA
• Focus on weaknesses in the EA and what conditions would be appropriate

Zoning

If mines are prohibited in a zone they can be approved by the Minister except if the land is located within an environmentally sensitive area of State significance or a sensitive coastal location. This includes wetlands, National Parks and World Heritage areas. (Zoning will change with strategic plans etc.)

Other Approvals

Usually a development will need approvals from other Government Departments but this is unclear until reviewed.

• Environment Protection Licence from EPA
• Clearing permit under the Native Vegetation Act
• Bush fire Safety Authority und Rural Fires Act

STAGE 2 - PRODUCTION LEASES

The minister for Primary Industries grants production leases for up to 21 years (can be renewed) usually in consultation with

• Any government agencies that may be ‘materially affected’ by the lease
• Director General of Planning
• Dams Safety Committee
• Local councils
• General public

Production leases may be lodged at the same time as the Environmental Assessment but cannot be approved until Development Consent has been given.

Production leases are granted with no transparency, no consistency and no process. In other words once you are at this stage there is little you can do to stop it.

Notification

• Affected landholders have a right to be notified of an application for a mining/petroleum lease that extends to the surface of the land
• The notice should inform you of your rights to object
• Notice of application will appear in a state-wide and regional newspaper

Landholder Rights

• Your land can be developed without your consent
• You will usually have the right to be notified in advance
• You may have a right to object especially if the land is agricultural land or under cultivation – restrictions apply
• You have 28 days to object from the day you are notified that a mining lease application has been lodged
• The right to object is not available if you have already had a chance to comment on the proposal under the planning system

Access Arrangements

• You may need to negotiate another access arrangement at this stage – dealing with production activities
• Access arrangements can be verbal so be careful what you say to any company workers who show up on your propert

Compensation

You are entitled to compensation for ‘compensable loss:

• Damage to the surface of land (including vegetation, crops and buildings)
• Deprivation of the possession or use of the surface of land due to fence, roads and pipelines
• Severance of land from other land
• Surface rights of way and easements
• Harm to or interference with stock
• Damage consequential to any matter above
• The maximum compensation payable is the market value of the land, including the value of any buildings structures or other works
• Work cannot begin under a mining lease until the issue of compensation has been resolved
• Where a petroleum production lease is involved compensation is payable to any person whose land is affected by the operation.
• Compensation for mine subsidence damage does not apply to CSG

Notes: Usually when the mining companies come to an area all land values drop. The Valuer General’s assessment is used.

COMMONWEALTH APPROVALS

A development may require approval under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. Commonwealth approvals are issued by the Federal Minister for the Environment.

Controlled Actions

Commonwealth assessments and approval process applies to:

• Actions on or affecting Commonwealth land that are likely to have a significant impact on the environment
• Actions by the commonwealth that are likely to have a significant impact on the environment
• Actions that are likely to have a significant impact on ‘matters of national environmental significance such as world heritage values of declared World Heritage area, ecological character of a Rasar wetland, listed threatened species, listed migratory species, nuclear actions, Commonwealth marine areas, listed heritage items and places.

Referrals

• Referral by person taking the action
• Referral by state Government or local council
• Environment Minister can call in a controlled action
• Referral by a Commonwealth agency
• Members of the public cannot refer controlled action but they can alert referring bodies to the proposal and ask them to refer it.

PUBLIC PARTICIPATION

Advocacy tools

• Submissions
• Letters & petitions – use the language of your audience
• Meeting with decision makers
• Posters and information sheets
• Internet, newspaper, radio and television
• Public meetings and information sessions
• Protest and non-violent direct action
• Court actio

Submission writing

• Address the matters to be taken into account by the decision makers
• Under Part 3A the decision maker must consider the DG’s Environmental Assessment Report and any recommendations of the PAC
• Under Part 4, the decision maker must consider the matters set out in s79C
• Provide evidence to support your view
• Attach any relevant supporting documents
• Use clear, calm language – don’t be abusive
• Use tools such as subheadings, numbering and bullet points
• Include your name and address and date your submission
• Ask for a letter of acknowledgement/receipt so you know your submission was received
• Condense your information first
• Focus on weaknesses

Other hints

• Get involved early – raise awareness and campaign
• Encourage decision maker to prioritise other industry in the area over mining
• Think about what conditions would make mining acceptable
• Mining companies do not like adverse publicity
• Get well known people into campaig

TAKING LEGAL ACTION

Merits Appeals

• Challenge to a decision based on arguments that the decision was a bad decision
• Court stands in shoes of original decision maker
• Court can uphold or overturn the original decision
• Court can attach new conditions
• Each party pays their own cost

Judicial Review

• Court considers the legality of the decision
• Grounds of judicial review include failure to follow proper legal procedure, failure to take into account relevant considerations, decision was affected by fraud
• Remedy: Court can void the decision but may not grant remedy if the breach is not serious or the impact on the community is not serious
• Loser pays winners costs
• Court can exercise discretion not to award costs in public interest matters
• Other orders include security for costs and protective costs orders – costs capped

The EDO runs a free Environmental Law Advice line Monday to Thursdays from 230 to 5.30pm – 02 9262 6989 or 1800 626 239. Fact sheets are available on the website www.edo.org.au/edonsw

Find Legal Answers http://www.legalanswers.sl.nsw.gov.au/

Petroleum (Onshore) Act 1991 No 84 http://www.legislation.nsw.gov.au/maintop/view/inforce/act+84+1991+cd+0+N