Commencement of NSW Mining Rehabilitation Reforms

Hetherington Environmental has prepared this overview to provide an introduction to the key changes being implemented as a result of the Rehabilitation Reforms, key sources of information currently available and key actions that holders of Mining Leases in NSW will need to take to ensure the ongoing compliance of their operations.

The legislation, policy and guidelines referenced in this commentary may change from time to time, and regulatory requirements may vary depending on the characteristics of a particular project. Please contact Hetherington Environmental for detailed, project-specific information in relation to any of the matters referred to in this commentary or any other component of the Rehabilitation Reforms.

STRUCTURE OF THE REHABILITATION REFORMS

The Rehabilitation Reforms comprise the following components.

• New standard Mining Lease Conditions introduced by the Rehabilitation Regulation.
• Form and Way documents setting out in detail the mandatory requirements relating to the format and content of various obligations under the new Mining Lease Conditions.
• A series of Guidelines intended to assist authority holders in fulfilling the obligations set out under the new Mining Lease Conditions in accordance with the Form and Way documents, without setting any additional mandatory requirements.

Whilst understanding of the entire framework set by the Rehabilitation Reforms is critical to the success of any operation, at a minimum a comprehensive understanding of the mandatory requirements set out under the new Mining Lease Conditions and Form and Way documents will be necessary to ensure regulatory compliance and maintain security of tenure.

OVERVIEW OF THE NEW MINING LEASE CONDITIONS

General Comments

The new Mining Lease Conditions are prescribed as conditions of Mining Leases in accordance with Schedule 1B of the Mining Act and, as such, must be complied with. The following should be noted in relation to the new Mining Lease Conditions and, by extension, the wider Rehabilitation Framework.

As prescribed conditions, contravention of the new Mining Lease Conditions constitutes an offence under Section 378D of the Mining Act and, if committed by a corporation, the contravention constitutes an executive liability offence.

For Mining Leases already in force on the commencement date, being 2 July 2021, the conditions will apply:

• For a large mine, the day that is 12 months after the commencement day; or
• For a small mine, the day that is 24 months after the commencement day.

A large mine is defined as any mine the subject of one or more Mining Leases wherein activities being carried out require an environmental protection licence under the Protection of the Environment Operations Act 1997 (NSW) (“PEO Act”). A small mine is any mine that is not a large mine.

In light of the above, compliance with the new Mining Lease Conditions will become mandatory after 2 July 2022 for large mines and 2 July 2023 for small mines. We recommend steps be taken to ensure compliance with the new Mining Lease Conditions well in advance of those dates.

Although the new Mining Lease Conditions are cited to prevail over conditions imposed under the Mining Act by the relevant decision-maker to the extent of any inconsistency between them, it is unclear what would determine an ‘inconsistency’. To ensure ongoing compliance it is recommended that holders continue to comply with all existing Mining Lease Conditions until such a time as the holder is explicitly advised otherwise by the Department. An overview of each of the new Mining Lease Conditions is provided below.

1. Definitions

The definitions included in the new Mining Lease Conditions generally relate to terms under the conditions, however in certain circumstances extend existing definitions under the Mining Act. Existing definitions under the Mining Act should therefore also be referred to when interpreting the requirements set by the new Mining Lease Conditions. The definitions also defer to external documents required under subsequent conditions, meaning that the scope of certain definitions and compliance requirements under the new Mining Lease Conditions will be set by ancillary documentation prepared under the mandatory requirements, including the rehabilitation completion criteria statement, rehabilitation management plan and rehabilitation objectives statement.

2. Functions of Secretary—approval of rehabilitation outcome documents

The Secretary is provided with broad powers for approval (or refusal) of rehabilitation outcome documents (see Condition 12 for a definition of this term) required under the Rehabilitation Framework. Given the nature of the rehabilitation outcome documents, these powers have the potential to overlap with existing powers and approvals under the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”). Current and future approvals (including modifications to same) under the EP&A Act are contemplated under Condition 6, Condition 12, Condition 15 and Condition 20. Beyond the obligations imposed by those conditions, operators should ensure that any rehabilitation outcome documents required under the Rehabilitation Framework conform to relevant approvals including under the EP&A Act, and vice versa.

3. Assessments and documents may relate to more than 1 Mining Lease

Condition 3 enables the Secretary to approve multiple Mining Leases to be treated as a single authority for the purposes of the new Mining Lease Conditions. This power will enable existing groups of Mining Leases under the current framework to remain in place when preparing rehabilitation outcome documents, as long as the Secretary’s approval is obtained in accordance with the condition.

4. Must prevent or minimise harm to environment

This condition provides a broad obligation to prevent or minimise harm to the environment. The reference to the definition of ‘harm’ under the PEO Act should be noted for compliance purposes.

5. Rehabilitation to occur as soon as reasonably practicable after disturbance

An overarching obligation to complete rehabilitation as soon as reasonably practicable. This condition should be referred to when preparing the rehabilitation management plan and rehabilitation outcome documents and generally when making rehabilitation commitments.

6. Rehabilitation must achieve final land use

Condition 6 sets a general obligation for the holders of Mining Leases to achieve the final land use for the mining area. For the purposes of the condition, the final land use is determined by the rehabilitation completion criteria statement, the final landform and rehabilitation plan (large mines only) and any relevant condition of a development consent (where applicable). The condition also requires the holder of obtain development consent where required and to identify and record any foreseeable hazard that presents a risk to the holder’s ability to achieve the final land use for the mining area.

7. Rehabilitation risk assessment

This condition sets a general obligation to conduct a rehabilitation risk assessment in relation to achieving the rehabilitation objectives, rehabilitation criteria and final land use (large mines only). Condition 7 also imposes a requirement to implement any measures to eliminate, minimise or mitigate the risks identified in the risk assessment and sets the timing for conducting a rehabilitation risk assessment as follows:

• before preparing a rehabilitation management plan (large mines);
• before preparing the rehabilitation outcome documents for the mine (small mines);
• whenever a hazard is identified under clause 6(3) as soon as reasonably practicable after it is identified (all mines); and
• whenever given a written direction to do so by the Secretary (all mines).

8. Application of Division

Condition 8 sets the conditions under which Division 3 – Rehabilitation Documents applies to Mining Leases. In summary, Division 3 applies where the required security deposit for the Mining Lease is greater than $10,000 or where the Secretary gives a written direction confirming the division (or a provision or the division) applies to the Mining Lease in question.

9. General requirements for documents

This condition essentially extends legislative power to the relevant forms published on the Department’s website. To that end, it is important that the forms are regularly reviewed to ensure compliance with the condition. Details of the forms are provided below.

10. Rehabilitation management plans for large mines

Condition 10 prescribes the required content for rehabilitation management plans for large mines. It is noted that a rehabilitation management plan is not required to be given to the Secretary for approval, however preparation and implementation of the document are mandatory requirements that would likely fall within the scope of future audits by the Resources Regulator.

11. Amendment of rehabilitation management plans

Under Condition 11, rehabilitation management plans must be amended at the following times.

• Within 30 days after a new version of a rehabilitation outcome document is approved.
• Within 30 days of an amendment being made to a rehabilitation outcome document which results in the amendment of the rehabilitation management plan.
• As soon as practicable after a rehabilitation risk assessment is conducted which results in changes to the risk control measures in the rehabilitation management plan.
• In accordance with any written direction from the Secretary to amend the rehabilitation management plan.

12. Rehabilitation outcome documents

The term ‘rehabilitation outcome documents’ includes rehabilitation objectives statements, rehabilitation completion criteria statements and final landform and rehabilitation plans (large mines only). Each of these documents must be prepared by the holder of the Mining Lease and submitted to the Secretary for approval. Where a specific final land use for the mining area is required by a condition of development consent it is the responsibility of the holder of the Mining Lease to ensure the rehabilitation outcome documents are consistent with the Development Consent.

13. Forward program and annual rehabilitation report

Condition 13 creates an obligation on the holder of a Mining Lease to create a forward program, which details mining activities, including rehabilitation of disturbed land, over a 3-year period. The condition also requires preparation and submission of an annual rehabilitation report detailing rehabilitation undertaken during the reporting period and progress against the commitments set out in the rehabilitation outcome documents. The reporting period for the annual rehabilitation report is prescribed as the 12-month period commencing on the grant anniversary date of the Mining Lease, or some other date approved by the Secretary.

In many ways, the forward program, annual rehabilitation report and rehabilitation management plan appear to effectively replace the mining operations plan and annual rehabilitation report under the current standard Mining Lease conditions. To that end, for those operations currently subject to a group annual rehabilitation report, it would be prudent to secure new approval from the Secretary for the preferred reporting period to ensure ongoing compliance.

14. Amendment of rehabilitation outcome documents and forward program

Amendments to approved rehabilitation outcome documents and submitted forward programs are only permitted in circumstances where the Secretary has either requested or approved the amendment. The holder of the Mining Lease may request the amendment at any time.

15. Times at which documents must be prepared and given

Condition 15 prescribes the timing for preparation and submission of rehabilitation management plans, rehabilitation outcome documents, forward programs, annual rehabilitation reports.

It should be noted that for the purposes of calculating timing of submission of documents, Condition 15 refers to an ‘initial period’, which is defined as starting on the date of grant of the Mining Lease and ending 30 days after the date that Division 3 – Rehabilitation Documents first applied to the Mining Lease. When taking into account the timing of application of the new Mining Lease Conditions (12 months or 24 months from 2 July 2021) and the requirements of Condition 8, it is our interpretation that, for various existing Mining Leases, the initial period will end at the following times.

• For Mining Leases subject to a security of greater than $10,000, 30 days from 2 July 2022 (large mines); or 30 days from 2 July 2023 (small mines).
• For Mining Leases subject to a security not greater than $10,000, 30 days from the date that the security is increased beyond $10,000; or 30 days from the date otherwise prescribed by the Secretary in accordance with Condition 8.

16. Certain documents to be publicly available

The holder of a Mining Lease is required to make rehabilitation management plans, forward programs and annual rehabilitation reports publicly available by either publishing same on their website or, by sending the documents to anyone who requests them within 14 days of the request if the holder does not have a website.

17. Records demonstrating compliance

The holder of a Mining Lease must create and maintain records in accordance with Condition 17 and Sections 163D and 163E of the Mining Act. Pursuant to Section 163E of the Mining Act, such records must be kept for not less than 4 years after the expiry or cancellation of the Mining Lease.

18. Report on non-compliance

Condition 18 requires the holder of the Mining Lease to provide a written report detailing any non-compliance with the Mining Lease conditions or a requirement of the Mining Act or Mining Regulation within 7 days of becoming aware of the non-compliance.

19. Nominated contact person

Under Condition 19 a natural person must be nominated as the contact person with whom the Secretary can communicate in relation to the Mining Lease for the purposes of the Mining Act. Notice of the nominated contact person must be provided within 28 days of the new Mining Lease Conditions applying to the Mining Lease and thereafter within 28 days of there being any change to the nominated contact person or their contact details. It is unclear how this nomination will interact with other nominations, such as technical managers or nominated contacts for applications under the Mining Act.

20. Additional requirements – application for or to modify development consent

Condition 20 prescribes that the holder of the Mining Lease must give written notice to the Secretary within 10 days after making an application for development consent over the mining area or an application for modification of a development consent that would change rehabilitation obligations under the Mining Lease. This requirement does not apply to State Significant development.

OVERVIEW OF THE FORM AND WAY AND GUIDELINES

The Department has published a series of documents outlining further information and requirements relating to the various obligations imposed by the new Mining Lease Conditions. The Form and Way documents prescribe the mandatory format and content for the obligations in question, whereas the Guideline documents are intended to provide guidance on complying with the obligations, without setting further mandatory requirements. A summary of the documents is provided below, along with links (active at the time of writing) to each document on the Department’s website for convenience.

Form and Way

Collectively, the Form and Way documents set out the required format, structure and content of the rehabilitation management plan; the annual rehabilitation report and forward program; and the rehabilitation objectives, rehabilitation completion criteria and final landform and rehabilitation plan (large mines only). Apart from the rehabilitation management plan, each of these documents are required to be prepared and submitted using the Resources Regulator’s online Portal. To that end, the Portal’s online forms control the format and content of each document, which we expect will effectively make the Form and Way documents redundant.

Although the rehabilitation management plan does not need to be lodged with the Secretary under the new Mining Lease conditions, it must include copies of the rehabilitation objectives, rehabilitation completion criteria and the final land use and rehabilitation plan, which are required to be submitted to and approved by the Secretary. Given these documents will be prepared and submitted via the Resources Regulator’s online Portal, it is expected that they will then need to be exported from the Portal to be included in the rehabilitation management plan.

• Form and Way: Rehabilitation management plan (large mines)
• Form and Way: Annual rehabilitation report and forward program (small mines)
• Form and Way: Annual rehabilitation report and forward program (large mines)
• Form and Way: Rehabilitation objectives and rehabilitation completion criteria for small mines
• Form and Way: Rehabilitation objectives, rehabilitation completion criteria and final landform and rehabilitation plan for large mines

Guidelines

Although the intention of the Guidelines is not to create further mandatory requirements, each of the Guidelines provides information in relation to the obligations set by the Rehabilitation Reforms, including rehabilitation risk assessments, maintenance of rehabilitation records, evaluation of rehabilitation controls, use of the Resources Regulator’s online Portal, development of rehabilitation objectives and completion criteria and achievement of rehabilitation sign-off.

Despite being intended as guidance material only, it is expected that the information included in these documents will be relied upon by the Department when assessing the various obligations prescribed under the Rehabilitation Reforms. Therefore, whilst not mandatory, we expect that compliance with the Guidelines will be critical in securing timely approvals and maintaining compliance with the new Mining Lease conditions.

• Guideline: Rehabilitation risk assessment
• Guideline: Rehabilitation records
• Guideline: Rehabilitation controls
• Guideline: Mine rehabilitation portal
• Guideline: Rehabilitation objectives and rehabilitation completion criteria
• Guideline: Achieving rehabilitation completion (sign-off)

SUMMARY OF KEY CHANGES

To summarise, the key changes being implemented under the Rehabilitation Reforms are as follows:

• New standard Mining Lease conditions, which will become effective for existing Mining Leases from 2 July 2022 for large mines and 2 July 2023 for small mines.
• New categories of mines (small and large) based on whether the mine requires an environmental protection licence under the PEO Act.
• New obligations to prepare a rehabilitation management plan (large mines only), rehabilitation objectives statement, rehabilitation completion criteria statement and final landform and rehabilitation plan (large mines only).
• Introduction of Form and Way documents and Guidelines relating to the new obligations.
• Apart from the rehabilitation management plan, all new obligations will be prepared and submitted via the Resources Regulator’s online Portal.
• Mining Lease holders will be required to notify the Secretary in writing upon application or modification of a development consent (excluding State significant development).

For any queries in relation to the Rehabilitation Reforms generally or in relation to any of the specific obligations for Mining Lease holders under the various sources of authority, be sure to contact the experienced team at Hetherington Environmental.

Author – BEN MUSCAT
Principal Consultant