Statutes Amendment (Mineral Resources) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 July 2019.)

The Hon. F. PANGALLO (17:41): I rise to speak in opposition to the Statutes Amendment (Mineral Resources) Bill 2018. Let me say from the outset that, in stating my opposition to this bill, I am not going to use my second reading speech to advance any arguments I may have for or against the mining and farming industries to attempt a comparative analysis of the economic value of the agriculture and mining sectors, or even to provide an assessment of the relative impacts of each on future job prospects in South Australia.

My opposition to this bill is not based on trying to stop mining per se or to support an exemption of all farmlands, pastoral leases or national parks, as compelling and meritorious as those arguments might be. I am not proposing that ownership of minerals should be vested anywhere other than the Crown or that a percentage of mining royalties should be paid to farmers.

Indeed, as the member for Narungga, Fraser Ellis, has pointed out, farmers have no desire to wrest the ownership of minerals away from the Crown, and I am certainly not arguing for more courts to have jurisdiction to hear mining disputes. We already know that miners have a close to 100 per cent success rate in the courts. To become engrossed in a polarised and politicised mining versus farming debate is to avoid the inescapable threshold issue before us, that this bill does not remedy the fact that our mining legislation is the worst in Australia and needs a major overhaul.

What we do need is a full and frank analysis, including economic modelling and projections, expert assessments of the merits of increased, or decreased, mining activity on the agricultural and arable land in this state, a planning regime that makes land use and access crystal clear, and the facts about the potential revenue flowing to the government from each.

We also need an in-depth analysis of environmental considerations, including impacts on climate change, biodiversity and biosecurity. What we have heard from this government and the opposition is that greed is good, mining is good, and farmers just need to get out of the way. I am surprised that a majority of government members have so readily abdicated their purported Liberal Party values of supporting farmers, free enterprise and individual freedoms. Those members of the government should not be surprised when voters abandon them at the next election.

It has been just as sickening to hear Labor's delight that energy and mining minister Dan van Holst Pellekaan is working so hard to push Labor's pro-mining agenda. As the Hon. Tom Koutsantonis said in the other place, 'Make no mistake: this is Labor's legislation.' In my view, neither of these positions is particularly edifying nor cause for South Australians to have any confidence in this government's or the opposition's ability to enact good mining law.

This bill is a sellout by the major parties. The dichotomous polemics that the government and the opposition have engaged in contribute very little to the task before us, that is, to recognise the failings of our 48-year-old Mining Act and meet our responsibility to enact legislation that will strike an equitable balance between the interests of mining companies and farmers where they can both thrive to contribute to our long-term economic, social and environmental future.

Farming and mining are undeniably vitally important to the state. The mining industry employs about 26,000 people. Annual production is valued at $5.2 billion, exports are valued at $3.8 billion and mining royalties worth about $214 million flow to the government. We have about 9,500 farms, with annual production valued at $7.2 billion, and agricultural exports generating $6.2 billion from our relatively small 4 per cent of arable land. Like most South Australians, I want both the farming and mining industries to have certainty, to be able to coexist, to succeed and improve our collective wealth.

No-one wants to jeopardise our very limited food production areas or allow mining companies open slather. If we are to open the gate on our best arable lands, what assurances do we have that we have not sold off our long-term food security and pristine farmland for short-term financial gain? We need a legislative regime that strikes a sustainable, long-term balance between land that is mined and land that is farmed, that provides for where mining is to be permitted and, if it is permitted, how it is managed and regulated.

We need a Mining Act that will stand us in good stead into the future, but what we have before us, as the minister has described himself, is a half step instead of a whole step. He tells us that he is going to use the learnings of the past 15 months to make the Mining Act better and that he expects to make a second tranche of reforms at some stage. Both the government and the opposition have frankly admitted, in their second reading contributions to date, that this bill is an inadequate attempt at a short-term fix.

South Australians, as tolerant as they are, expect and deserve better from a government that, after 16 years in opposition and 17 months into the job, still clearly has its L-plates on. Clearly, it learned nothing in its near two decades in purgatory. I am also absolutely certain that neither farmers nor miners want to be the crash test dummies for the bill before us. What we have before us is a bill crying out for independent review. But do not just take it from me: this is the resounding message that some government members in the other place, the mining and farming sectors and conservationists have been trying in vain to make heard.

In an act of good faith, the South Australian Chamber of Mines and Energy, Grain Producers South Australia—including the Yorke Peninsula Landowners' Group—the National Farmers' Federation, Primary Producers South Australia and Livestock SA came together at a round table chaired by Rear Admiral Kevin Scarce. They told the government very succinctly that they wanted an independent review. Notwithstanding their different interests, they all agreed that the best way to proceed was by way of an independent review.

I just do not accept the minister's view that these groups will never agree on anything in five, 10 or 20 years. Farmers and miners were united in their wish to have legislation underpinned by clear planning, agricultural and mining policy and world's best practice. Why would we ignore the learnings from Queensland, New South Wales and Western Australia and choose risk and ignorance?

Again, as pointed out by the member for Narungga, Fraser Ellis, and indeed Business SA, Queensland has a Regional Planning Interests Act that deals with the land use and land access issue to better protect prime agricultural land and enable the proper exploitation of our mineral wealth. If Queensland can do it, why can't we?

Even energy and mining minister Dan van Holst Pellekaan agrees that an independent review is the right way to develop legislation that has the best chance of delivering for both agricultural and mining sectors into the future. The minister said on 3 July in the House of Assembly:

…the proposal for an independent review into the mining sector and, broadly, land access in exploration and mining. It is an incredibly compelling proposal. We should have an independent review…I am 100 per cent on board with that.

Nick McBride, the Liberal member for MacKillop, said in the House of Assembly on the same day that an independent review of the mining legislation would, and I quote:

…enable a fine toothcomb to be put across the issues that the mining sector and landholders are experiencing. An independent review would support the assessment of the provisions and workability of legislation from other jurisdictions.

An independent review would be a platform from which a progressive and balanced legislative framework could have been generated.

The government and the opposition have admitted that what is before us will be bad law, but in a stunning act of self-denial or self-delusion neither are willing to take the patently obvious, entirely sensible step of referring this bill to a select committee. It is difficult to comprehend why the government and the opposition are hell-bent on ignoring their dissenting colleagues, the opposition, and Independents, Troy Bell, Frances Bedford and Geoff Brock, the best advice of economic and scientific experts, and our world-leading farming and mining sectors' best practices in order to push poor legislation through.

What I am arguing for, to ensure that we do make good legislation, is for the Legislative Council to properly perform its function and send this bill to a select committee to allow it to be properly scrutinised and substantially overhauled. We need more scrutiny of legislation that comes before us, not less. It occurs in other jurisdictions and we should look to those jurisdictions to show how we can better improve the parliamentary process to allow for increased engagement by South Australians with the parliament.

One means of achieving that is to send this bill off to an appropriate parliamentary inquiry to allow South Australians to have their say on it. This could inform the relevant planning and mining departments to develop a coherent policy on which to base legislation. We have a government that campaigned in the lead-up to last year's election on accountability and transparency, yet refuses to send the bill off for an inquiry. It is dispiriting that the opposition has fallen in step with the government on this bill, given that it was theirs in government, and they have given undertakings to the minister to pass the bill unamended. They are also refusing to send the bill off for inquiry.

There are so many deficiencies in this legislation that it is difficult to know where to start. One of the major failings of the bill before us is that it does not remedy the situation we have in South Australia where the department, as the promoter of mining, is also the regulator. We also have a complete disconnect between land use planning and mining legislation.

It is also of great concern to SA-Best that this bill devolves much of the machinery of the old act to regulations or ministerial determinations, especially the provisions pertaining to land access. This means that the minister will have greater discretion than he does now, which flies in the face of the government's election promises of increased transparency and accountability.

The failures in compliance and enforcement under the Mining Act 1971 are, sadly, legendary, as farmers across the state will tell you they are not isolated incidents. Recalcitrant miners like Rex Minerals are not alone in their practices and have learnt that the compliance and enforcement arms of the department are easily avoided. Dealing with the Mining Act through the department or the courts has been described by some farmers as worse than dealing with cancer.

Miners' access to land is proposed to be massively expanded, with a new rider for landowners to apply to the courts for an exempt land determination, which is cold comfort to farmers who do not want to be tied up in the courts, often for years and at great personal and financial expense.

A farmer can also be put under duress to waive an exemption over their land on application of a mining tenement holder. If the farmer does not sign a waiver, they can be taken to court. The implications of this can spread much further than the property in question, which impacts on neighbouring land use and values. This can cause irreparable rifts in communities, such as we have seen with wind farms. This bill is highly likely to drag more farmers into courts, where the greater resources, track record and—dare I say—deeper pockets of mining companies are stacked greatly against them.

The $2,500 initial legal advice fee that farmers are entitled to might just cover—and I say just—the costs of a lawyer pointing out to them the David and Goliath struggle that they would be ill-advised to embark upon, but nothing else. Similarly, a new alternative dispute mechanism inspires little confidence, with multinational companies knowing full well that they can take a very hard line and litigate any opposition away. The member for West Torrens, Tom Koutsantonis, can claim that the Wardens Court is a no-cost jurisdiction, but I can tell the member for West Torrens that it is mightily expensive to be in that court.

One farming family on Eyre Peninsula told me of how their family's livelihood, health and wellbeing had been destroyed by years of litigation, following a cowboy mining company's exploration activity on their previously model farming property. The miner neglected its obligation to pay compensation, and the department neglected its compliance role for years. When the department did finally do a site inspection, it saw firsthand the unrehabilitated 160 drill holes, the internal tracks that remained impassable and the damaged fences, gates and watering points. However, when the department admitted these failures it still did nothing because the matter was in court.

The mining company even had the audacity to put in a request for repayment of the meagre bond lodged with the department, falsely stating that the land was rehabilitated to the satisfaction of the landholder. The last I heard, this poor family was still battling in court. The member for Flinders, Peter Treloar, who I note did not have the courage of his conviction to cross the floor in the other place, and the member for Mount Gambier, Troy Bell, had their own similar horror stories to tell. As the member for Davenport, Steve Murray, stated when acknowledging his failure to convince the majority of his parliamentary colleagues of the merits of treating farmers fairly:

There is little doubt that the existing Mining Act leaves farmers at a substantial disadvantage, and this bill…will exacerbate that situation.

The increased penalties and offences and modernised compliance and enforcement provisions in the bill that amend section 70 are all very well in theory; however, if the department continues to have responsibility as the promoter and regulator of mining with the same inadequate resourcing and staff to administer the act, these provisions will be meaningless in practice.

The department and mining companies are keen to tell us that they can return mined land to being pristine, prime, arable agricultural land. I challenge the minister to show us where this has occurred in South Australia. Farmers and miners both know that this bill is unworkable as it is. The minor amendments that were made in the House of Assembly fall well short of the root-and-branch overhaul that is required here. The balance between farmer and miner is significantly out of kilter and needs to be rectified. As the member for Kavel, Dan Cregan, one of the four more courageous members of the government to cross the floor, commented:

Mining executives do not need to strike that balance. Farmers do not need to strike that balance. We [the parliament] need to strike that balance.

The obvious best course of action is what all sides of this place have overwhelmingly endorsed, albeit in words rather than action; that is, this bill needs to be sent to a select committee. We on the crossbench, and I include my Greens colleagues in this grouping, may be the lone voices in calling for this bill to be referred to a select committee, but that has never deterred us.

SA-Best will continue to strongly advocate for a centred, balanced approach to improve the prosperity and wellbeing of all South Australians. In closing, I urge the government and the opposition to rethink their positions about referring the bill to a select committee over the winter recess and see fit to support my contingent notice of motion for referral to a select committee.

Debate adjourned on motion of Hon. I.K. Hunter.