The Northern Territory Government is reforming its outdated mining laws. ALEC welcomes these vital reforms, potentially the largest changes to mining laws that the NT has seen in decades, which will have substantial impacts for the environment, industry and communities across the Territory.
A history of regulatory failure
The Northern Territory has a chequered history in relation to its ability to regulate mining. Examples of the regulatory regime failing to protect the environment in recent times include the McArthur River Mine and Frances Creek Mine, while historical issues with mining are prevalent with legacy mines such as Rum Jungle, Redbank and many others. Decades of poor mining practices that have been legitimised by the regulatory process has substantially impacted the public’s confidence in the industry.
Mining law reform is needed to protect the environment
Changes to the mining regulations are significant, as poorly managed mines can have ongoing environmental, social and cultural impacts for decades, if not centuries. The NT Government, through their adoption of the Territory Economic Reconstruction Commission’s final report, aspire to turbo-charge new mining developments in the Territory over the next decade. Changes to our mining laws will have a significant impact on mining practices in the Territory for years to come.
This reform process is an opportunity to protect the environment and cultural sites, ensure real long-term economic benefit to the Territory, and emphasise workplace health and safety. This can be done through the establishment of a robust and transparent regulatory regime that is supported by comprehensive monitoring, compliance and enforcement.
The NT Government released a consultation paper outlining proposed reforms to environmental regulation of mining activities. While we welcome the paper, it is a first step and far from guarantees long-term economic, social, cultural and environmental benefits for the Territory.
Key areas of reform:
- Environmental responsibilities around mining regulations are largely being shifted from the Department of Industry, Trade and Tourism (DITT) to the Department of Environment, Parks and Water Security (DEPWS).
- The reform seeks to establish general (mining) environmental obligations or duties, which will act as a baseline for accepted practices and responsibilities that must be complied with when completing mining activities.
- Moving away from Mining Management Plans which exist under the Mining Management Act 2001, and towards Environmental registrations and licences that will operate under the newly created Environment Protection Act 2019.
- The reforms intend to implement residual risk payments and/ or chain of responsibility payments in the future (we were told by the bureaucrats that would be by the years end). These are two different forms of securities that can be used by the Government to ensure that polluters pay for the damage they contribute to the environment.
- The DEPWS CEO will be granted an array of powers under the new reform. This includes the granting of licence and registration approvals and the power to undertake a ‘performance improvement agreement’ process to improve compliance and environmental outcomes for a registered or licensed operator.
- Mines that are in “care and maintenance” pose a risk to the NT’s environment and have been the cause of significant environmental contamination. The reform is seeking to provide clarify around ‘care and maintenance’ arrangements.
ALEC welcomes many of the changes signalled in this reform but holds concerns around a lack of clarity and the overall robustness of the reform. There are still too many gaps to know the overall outcome.
What we support:
- The establishment of general (mining) environmental obligations or duties as a legally binding baseline of responsibilities that must be complied with.
- The shifting of responsibilities towards DEPWS and away from DITT. Environmental matters should be assessed by the Department which is responsible for these matters.
- Merits reviews being the responsibility of the Northern Territory Civil and Administrative Tribunal, taking this authority away from the mining board.
- Residual risk payments, as long as it does not impact the size of security payments.
- Chain of responsibility legislation is strongly supported. In fact, ALEC considers it important that chains of responsibility should have broader powers and be applicable to all activities and industries under the Environment Protection Act.
- The resourcing capacity of DEPWS. While ALEC welcomes DEPWS gaining authority of environmental matters related to mining away from DITT, we nonetheless acknowledge the substantial workload of the Department. This includes the EPBC bi-lateral agreement responsibilities, implementing the 135 recommendations of the fracking inquiry, including the Strategic Regional Environment and Baseline Assessments, in addition to the other functions of the Department. The efficacy of these reforms are dependent on resourcing capacities of the departments to ensure effective compliance and enforcement of the regulations.
- Issues around transparency and public participation. The proposed changes don’t appear to go far enough to overcome major historical issues around transparency and public participation in relation to mining activities. ALEC considers it important that affected communities are prioritised and included, so they can actively participate in the regulatory process.
- Aboriginal engagement and participation. The Reform does not consider the perspectives of or the impacts of mining to Aboriginal people on Aboriginal land. With Aboriginal people gaining inalienable freehold title to the majority of the Territory’s land, and a substantial proportion of mining activities occurring on Aboriginal land, it is a noticeable exclusion. ALEC suggests that the Reform adopt recommendations from the Samuel’s review of the EPBC Act which outline the co-design of policy and implementation to improve outcomes for Aboriginal Australians. The review also suggests the establishment of National Environmental Standards for Aboriginal engagement and participation, developed by an Aboriginal-led process.
- The powers granted to the DEPWS CEO. We are concerned by the discretionary power given to the CEO of the DEPWS with little clarity on what public engagement or consultation will be required in advance of changed and decisions made by the CEO. The approvals of licences, registrations and amendments is an inherently political task and should be the responsibility of the Minister.
- There is a lack of detail in the consultation paper. It leaves ALEC asking many questions (see page 9-10 of the submission).
- Regulatory inconsistencies between different mining operators. The 2018 Fracking Inquiry was a comprehensive report which outlined an array of recommendations for the shale gas industry however many of the recommendations are extremely relevant to the mining industry at large. We are concerned that the NT Government is presiding over two levels of regulations for mining: those that apply to shale gas, and those that apply to all other activities.
What are we doing about it?
ALEC is working hard to ensure that the mining regulatory changes in the Northern Territory are robust, transparent and are backed up by monitoring, compliance and enforcement.