Statutes Amendment (Mineral Resources) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 August 2019.)

The Hon. C.M. SCRIVEN (15:43): I indicate that I will be the lead speaker on behalf of the opposition on this bill. This bill is largely identical to a bill that was passed before the last election in the other place and then lapsed before debate came to this chamber. In that debate, every regional MP voted in favour of the bill. We need a diverse economy in South Australia: agriculture, mineral resources, manufacturing, tourism and more. These all create or maintain many thousands of jobs. We need all these industries. We need to maximise our resources in this state. The challenge is to find a way for all of these to coexist for the good of the state and the good of all South Australians.

We in the Labor Party believe that decisions about mining should be through independent regulations. If a minister does not trust the independent experts, the advice of the agency, the risk assessments that are presented, why do we have these at all? All decisions potentially would rest on political expediency and local pressure, instead of robust evidence, if we throw out each of those things. If this occurred, in effect the rules could change any time for industry. Investment in South Australia would evaporate and it would be a disaster for our state. Industry needs certainty. In the other place the Labor opposition committed to supporting this bill and government amendments only. We will therefore not be supporting any crossbench amendments.

The Hon. M.C. PARNELL (15:45): At 44 years of age, the Mining Act 1975 is of middle age and certainly in need of reform, but a more important question for this chamber is whether this particular bill delivers the reform that South Australia needs. I was a child in secondary school when this act came into operation. There are some members of parliament who were not even born when the Mining Act commenced, including the state's current environment minister. The mining minister certainly was around, but in short pants at kindy or primary school, perhaps.

The 44 years since the Mining Act became law has seen incredible developments in our understanding of the natural environment, our appreciation of the interconnectedness of plants, animals and ecosystems, and the fragility of species. With that increased knowledge came a slow increase in environmental regulation, standards and policies. In relation to mining, improvements were incredibly slow and not at the initiative of mining companies, but it was at the insistence of communities through environmental activism over many years that saw reforms. This included campaigns to stop sand mining on Fraser Island or gold mining in Kakadu National Park.

In South Australia progress has been even slower. Our mining and environmental laws have improved only marginally, whilst human impact on the environment is growing exponentially. Laws covering the exploitation of natural resources have not been enough to address the extinction crisis or the climate emergency. That is not to say that mining is the only impact, but it is a significant one, especially the mining of fossil fuels, which are driving global warming, regardless of whether the fuels are burnt here in South Australia or elsewhere in the world. We are trashing the planet like there is no tomorrow, which is why we see millions of schoolchildren around the world striking for action on climate change, and it is why we see groups such as Extinction Rebellion protesting in the streets, demanding real action to protect the environment.

Although the extinction of species is a natural phenomena, it occurs at a natural background rate of about one to five species per year. Scientists estimate that we are now losing species at up to 1,000 times the background rate, with literally dozens of species going extinct every day. It could be a scary future indeed, with as many as 30 to 50 per cent of all species possibly heading towards extinction by mid-century.

It is similar with climate change. Yes, measured over thousands of years, the climate has always changed, but nothing like the changes brought about by human activity in recent decades. We are in a climate emergency and nearly at the tipping point, beyond which slowing climate change will be impossible, and that is why citizens are taking to the streets on these issues now.

So it is against this backdrop of a deteriorating environment that we need to assess the new mining bill that is before us. There are many yardsticks against which we could measure this bill, but three of the main ones for the Greens are the following: firstly, is it fit for purpose in an age of climate emergency and accelerating species extinction? Secondly, does the bill include best practice public participation and democratic rights? Thirdly, does the bill fairly balance the competing social and economic priorities of growing food, fibre and materials against mineral exploitation? In short, the bill fails all three tests.

Of course, if you are a mining company, your questions are very different. Your first question is: does the bill ensure that mining can proceed unimpeded with minimal effective regulation through a single, compliant government department? Tick. Secondly, does the bill enable us to mine virtually anywhere we want, including most national parks and other conservation areas? Tick. Thirdly, are our activities protected from pesky third party appeals and civil enforcement? Tick. Through that lens, the bill is a great success, because it perpetuates the regime that has served the mining industry so well for the last half century but has not served the rest of society well and has certainly not served the environment well.

I have tabled a number of amendments to this bill, and my colleague the Hon. Frank Pangallo has tabled a number of amendments as well, which is why it is incredibly disappointing to hear the very brief contribution of the Labor Party, saying that they will not support any amendments. In my discussions with the Labor Party, when I put that to them, that they were not going to support any amendments, they said, 'That's not right. We will look at any sensible amendments carefully and support them.'

The Labor Party is not going to be considering any of the crossbench amendments. I cannot speak for my colleague, but I will certainly be moving mine and I will be dividing on many of them. The farming community in particular can see Liberal and Labor siding together, standing up for mining companies against the interests of those who grow our food. I am sure they are going to delight in that spectacle.

I am not going to go through every amendment now, because the committee stage will take some time.

The Hon. R.I. Lucas: Hear! hear!

The Hon. M.C. PARNELL: I am loath to disappoint the Treasurer. If you would like me to go though all the amendments now, I can. I want to highlight a few points. The first point that I would highlight is one that is very difficult to legislate for but is at the heart of many of the issues we are going to be discussing in this bill, and that is the concept of regulator capture. Regulator capture is the situation you find when a government body—a regulatory body—is so close to the industry that they are supposed to be regulating that they are incapable of critical evaluation and independent regulation.

This has been a theme of mine for the last 30 or so years that I have worked in this space, and over many years in parliament I have told many stories that go to this question of industry or regulator capture. One of my favourite stories was a very early contribution that I made to a government inquiry back in the 1990s, in relation to a mining company that was clearly breaking the law. They were clearly, unambiguously breaking environment laws and when we put that to the inquiry, the response from the department was, 'Clearly the laws are wrong,' and they promptly set about changing them. That was the extent of capture that we had.

Similarly, in court cases that I ran as an environmental lawyer, again mainly in the primary industries area—the aquaculture section—they had the person whose job it was to regulate the industry sitting next to the person whose job it was to give money to the industry. They never really understood that they were different roles, and so the regulators were incapable of independently regulating that industry.

We have seen with the mining department that that has been the case. There is probably no better example than when it comes to what should be very difficult decisions, such as allowing mining in a national park or a conservation area. You would think that that would challenge regulators and that they would be scratching their heads and thinking of the competing interests at stake, but no.

In fact, I am only aware of two examples where conservation has prevailed over mining in the last 30 years in South Australia. I will go through those two examples later, but I will start with a look at the National Parks and Wildlife Act and its relationship to mining. Of course, when they wrote the National Parks and Wildlife Act, and its predecessors, they did not ever comprehend that these areas being set aside for their natural beauty and their biodiversity would ever be opened up for mining, and so the law was pretty clear: it is a national park or conservation park—no mining; really clear.

But those parks only comprised about 4 per cent of the South Australian land mass, and it got to the point where the government was getting a bit embarrassed because other states were getting more parks and poor old South Australia was languishing on 4 per cent. The story, as told to me by a former director of national parks, is that the minister went to the parks director and said, 'Look, we have to boost these numbers. I want you to acquire a whole lot more of South Australia for the conservation estate.' The director of national parks rubbed his hands together and asked, 'How much money are you giving me for this task?' The response was, 'Oh, nothing. You have to do it for free.'

As a result, the poor old director of parks goes out, mainly to the outback and desert areas, and consults with industry, mainly the pastoral industry and the mining industry, and says, 'Have I got a deal for you! We're going to put this land under the National Parks and Wildlife Act, and we have no compensation for anyone.' As a result, both those sectors, the pastoral industry and the mining industry, negotiated even better terms for themselves for these new National Parks and Wildlife Act reserves than they would have had under regular Crown land or Crown leases.

Those are the origins of the so-called regional reserves. A regional reserve is a Clayton's park: it is the park you have when you are not having a park. It is a park that does not disrupt any commercial activity, especially mining and grazing. We saw it at places like Innamincka. When it became a regional reserve, the pastoralists got even longer leases over this new conservation estate and the mining companies got greater access as well.

That is how South Australia managed to increase the area under so-called conservation. It got up to over 20 per cent of the state, but we still had the situation where most of the protected national parks were that original 4 per cent that go back to the 1970s and beyond, before they had this brilliant idea of allowing multiple use parks with mining. The other trick was that they incorporated into the National Parks and Wildlife Act a provision called joint proclamation. That is a brilliant little provision. It says that the Governor, when proclaiming a national park, can jointly, or simultaneously, proclaim it to be open for mining at the same time.

As a result of those two measures, simultaneous proclamations and regional reserves, we find that, on paper, a map of South Australia has lots of nice colours showing all the conservation estates, with nearly all of them open to mining. There are only two examples I can think of where mining has not prevailed over conservation. One is the Arkaroola Wilderness Sanctuary. Some members here are very familiar with that debate; it went for some years. It was only when the mining company behaved so badly, broke so many laws, that eventually the government showed them the door and said, 'No, we are not going to let you mine in this wilderness area because of your behaviour.'

As it transpired, the mining company then kicked up such a fuss that the state government paid them a $5 million ex gratia payment for kicking them out of a conservation area, even though they had broken the law, illegally dumped waste and behaved appallingly. To rub salt into the wound, the company that was responsible for that appalling behaviour in the Arkaroola Wilderness Sanctuary was none other than Marathon Resources, which languished on the stock exchange doing nothing for a while then, like the undead in a zombie movie, came back to haunt us.

It is now called Leigh Creek Energy, and it is now proposing underground coal gasification at Leigh Creek. It is the same company. It has different owners, sure; it is under different management, but it shows that there is perpetual succession when it comes to environmental vandalism. Leigh Creek Energy, formerly known as Marathon Resources, is one of only two examples I can think of where conservation has prevailed over mining and, even then, they had a golden handshake of $5 million.

The only other case I can think of goes back to the year 2000 or 2001, and that was a company that was proposing to mine the Gammon Ranges national park. It was a proposal for a magnesite mine. In the end, it was defeated, so the official story says, by the presence of a very rare fish, the Flinders Ranges purple-spotted gudgeon. That always creates a lot of mirth: how could a fish stand in the way of a mine?

I can tell you anecdotally that the story, as it was told to me, was that the only reason the Weetootla Gorge in the Gammon Ranges national park was protected from mining was that the officer whose job it was to process these things went on holiday and this person's replacement did not get the memo that mining is always supposed to win. They ended up ultimately protecting the Weetootla Spring in the Weetootla Gorge as a special wildlife zone. They are the only two examples I can think of, and I have been doing this work in South Australia since 1989.

When it comes to mining, it is pretty much open access. For many years, the various minerals lobbies at the state and federal level used to run campaigns bemoaning what they saw was problems with access to land. But from the mining industry's point of view, land is off limits to mining if you have to ask anyone's permission or if you have to pay anyone compensation—that makes it off limits. They are so used to having open slather that even having to deal with stakeholders is regarded as an unreasonable impediment to their unfettered access to South Australia.

To give one quick example of one of the amendments I will be putting forward, there is a provision at present that says that when it comes to mining in national parks the environment minister and the mining minister should sit down and talk about it and if they cannot reach agreement it goes to cabinet. My amendments says, 'No, the environment minister should prevail.' If it is a national park or it is a reserve under the National Parks and Wildlife Act, this should be a matter where conservation has the ability to triumph, and it will best have that chance if the environment minister makes a decision.

Under the present regime, I am not entirely convinced that will be the outcome, but this legislation will transcend the current government and it will be potentially with us for another 44 years, so I want to at least make sure that we level that playing field a little bit so that when it comes to mining companies wanting access to our special protected areas that the environment minister responsible for a piece of environmental legislation will have some chance of prevailing.

The issue that most dominated the debate on this bill in the other place was in relation to the respective rights of mining companies and farmers. That debate saw four members of the government cross the floor and other members in this chamber threaten—I do not know if I can use the word 'promise', but at least threaten—to cross the floor. The issue was that the bill as drafted—and it is also in the act as currently written—does not give landholders any real right to stop a mining company entering the land and undertaking exploration or mining activities.

I need to just very quickly explain the mechanism because when students of topics like this read the legislation they cannot believe that it is not better than it is and that is because, fairly early on in the Mining Act, they get to a section called 'Exempt land', which says that land is exempt from mining, for a number of reasons, including if it is very close to someone's house, or if it is land that is used for cropping, for farming, then that is exempt. So, at face value, the mining company cannot go there: it is exempt land—they are the words that are used.

But when you read a bit further into the act and when you go to the regulations as well, you will find a regime that is in fact very different. The way the regime works is that if a farmer exercises her or his right to say no to a mining company, the mining company can come knocking on the door and say, 'This is exempt land, it's farmland, or it's very close to your house, but we want to mine anyway. Here is a form we want you to sign, it's called a waiver of exemption, and if you don't sign that form we are going to take you to court, we are going to win and we might even get costs awarded against you. So, if you know what's good for you, you will forget that this is exempt land, you will sign our piece of paper and you will let us access your property,' and that property may have been in the family for generations. That is how the regime works.

I will be honest: I did not quite believe that it was that bad. When I first came across it, I remember a client came to me down in Mount Gambier. There was a quarry that was quite some distance from her house and they wanted to expand it to within about 200 metres of her house—very, very close. So, as a young lawyer, I went through the legislation and said, 'No, this is exempt land. They are too close to your house. They can't mine there unless you agree.' She said, 'Well, I am not signing the form they gave me. I am not going to sign this waiver of exemption.' In the end, the mining company took her to the mining Warden's Court. The mining warden wagged his finger at her and said, 'How dare you stand in the way of mining,' found against her and ordered her to pay the quarry and company's legal costs. What an outrageous outcome when the parliament has said this is exempt land. It is no such thing: it is not exempt land.

The debate in the lower house focused a great deal on whether farmers should be able to have a right of veto. A right of veto is actually a very strong measure but it does have some legal problems associated with it, and one of them is that under our system the minerals under the ground are owned by the community through the Crown and so the theory has always been that the decision about whether they can be extracted and used and sold is a question for the government as custodian, I guess, of the Crown minerals on behalf of the community, and so farmers have never had a right of veto. But I think that even if we do not go to that point of saying that farmers have an absolute right to say no, even if we do not go to quite that point, we can certainly level the playing field a great deal more than is currently the case.

One of the difficulties is that when these cases have wound up before the mining warden—and I have discussed this personally with a number of mining wardens—their attitude has been, 'But it's the Mining Act; it's supposed to be about mining so, of course, we find in favour of mining companies.' I am only aware of one case in the last 30 years where a landholder has succeeded in keeping the mining company off their land, only one case out of all of them. All of the losing cases were as a result of precedent decisions that had been established over many years in the mining Warden's Court, which is why, a number of years ago, I successfully moved for this jurisdiction to be taken away from the mining wardens and given to the Environment, Resources and Development Court.

The idea was that that court was a little bit more impartial, we hoped, than the mining wardens would be; it had a less formal structure. They had roundtable conferences as a prerequisite to any trial so, in other words, people would be forced around the table to work out if they could sort it out without going to a trial. It seemed to me and to a majority of the parliament that that was probably a better way to go, so we had the environment court put in as the dispute resolution mechanism.

There are still some problems with the regime and one of the problems is that the decision-maker, if there is a dispute between a farmer and a mining company about access or anything else, there is no real guidance to the decision-maker as to what they should be taking into account. I have some amendments before us, and we will get to them in detail later, which actually go through a list of some of the things that the environment court should take into account. For example: will the mine be rehabilitated or will it just be a hole in the ground that will never be able to grow crops ever again? Another question would be: what is the life expectancy of the mine? If the life expectancy of the mine is only a few years and if it is not going to be rehabilitated back to a cropping standard then we have to weigh up: how long can we mine for, a few years; how long can we grow food and fibre, maybe 1,000 years, maybe 2,000 years.

The Middle East is on the television every other night where there are paddocks and fields there that have continuously grown food for thousands of years and yet when it comes to a decision to allow a very short-term mine that would take out of production valuable farmland forever, the mine always wins. Probably a good example of that is the Hillside mine on Yorke Peninsula. I am very grateful to the Yorke Peninsula Landowners Group, who have been solid in their opposition to this bill because they realise that it does not provide a level playing field between farmers and miners.

I want to reinstate the environment court. I want to make sure that the court is given some guidance as to factors they have to take into account, which would also include not just physical factors but if the mining company has a track record of appalling behaviour, breaches of environmental standards and leaving a trail of destruction behind them. Why should they not take that into account as well before deciding whether or not to give the mining company access to that private land?

People might say, 'Jeez, you're making it tough, Mark, to allow mining companies onto farmland.' Yes, and the point is that most of the minerals they are looking for are relatively common and are available outside farming land. They are available in areas where there is not that conflict. Of course, they are going to have to deal with Aboriginal traditional owners, as of course they should. If there are environmental issues they are going to have to manage those but you can actually take one level of conflict off the table by keeping these mining companies out of farming land.

Another example that has been in the media the last little while relates—it is very close to where we are here—to the situation in the Adelaide Hills with the Bird in Hand mine. Now, there is a bit of irony here, and I will set it out there in case someone tries to ambush me with it later on. The Bird in Hand Winery is actually named after the Bird in Hand mine. The mine was an historic mine that operated 100 or so years ago and in the end became unviable because of the groundwater which ends up filling the holes, filling the tunnels, and they did not have sufficient capacity to pump it out. It was a fairly short-lived mine which was abandoned as a result of its interaction with the groundwater.

That became an historical location, and so a winery comes along and names themselves—'Oh, we'll call ourselves the Bird in Hand Winery.' It was in fact originally a mine. But the Adelaide Hills have changed a fair bit since then. We now have an extensive horticulture and viticulture industry, employing thousands of people, including hundreds of people employed at cellar doors and in wineries all through the Adelaide Hills, and when a mining company comes back and says, 'Oh, we've got better pumps now, can we go back and reopen the mine?' all of a sudden you are imposing this heavy industrial activity, with its noise, its explosions and its truck movements, in a bucolic landscape where cellar doors predominate and which is full of people on the weekends, enjoying the best of what the Adelaide Hills have to offer.

The reason I am using this example is that people might have seen in the newspaper the other day—in fact, I think it was only on Friday—the winery is proposing to expand their operations. They want a new restaurant, they are going to provide new facilities for visitors and they have lodged their applications. Their applications were supported by the local council, supported by the state government, through the State Planning Commission, and what has happened? Terramin, the company, has gone and lodged an appeal in the environment court to stop the winery expanding their business.

I do not think there is any explanation other than tit for tat, because clearly the winery and fellow wineries in that area have been trying very hard to keep this mine from being reopened, because of the impact they know it will have on the amenity of the area and also on groundwater. The point I am making is that these wine companies have no right under the Mining Act to appeal against anything that Terramin might want to do. There is no right of appeal against mining decisions. There is no ability even to enforce mining laws through civil enforcement. Yet both those rights exist in reverse.

If you want to challenge a decision made under the Development Act, a planning decision, as Terramin is doing, you have that right to do that. If they think the law is not being complied with, they can go to court on a civil enforcement action. This just shows you how skewed the thing is. The winery is not allowed to challenge the mine, but the mine is allowed to challenge the expansion of the winery. That just sums up the complete absence of any real civil or legal rights associated with this industry, and that is the way the industry likes it.

I was going to read out some chunks from the newspaper, but I will not. People can look at it in The Advertiser last Friday. But I cannot see that it is anything other than tit for tat. I will read a couple of sentences:

Terramin refused to comment on its court action.

'Terramin does not wish to comment in detail on a court matter,' chief executive Richard Taylor said.

'Like any council ratepayer we have rights, especially being the winery’s nearest neighbour.'

So they are standing up for their rights to go to court and challenge something their neighbour wants to do. Reverse the situation: there are no rights at all for anyone to challenge any decision under the Mining Act. It is just not right.

The Greens have a number of amendments, as I said, that are filed. We are keen to redress the balance in spite of the Labor Party's blanket refusal to even consider the amendments, to even look at them on their merits; they are just saying, 'Well, we're just with the government.' I expect that we will see a number of divisions when we get into the committee stage. I look forward to cosying up to my crossbench colleagues, many of whom I think will support amendments we have, as we will support some of theirs. We will do justice to South Australia's farming community, South Australian conservation groups and others who are demanding that after 44 years we can do better than the bill that is before us.

I would like to put on the record my thanks to the Environment Defenders Office, the Conservation Council SA, the Yorke Peninsula Landowners Group, and also many of the other residents' groups, local farmer groups, conservation groups and the many individuals who have offered advice, feedback and support in relation to trying to make this bill better. With those brief words, I look forward to the committee stage of this debate.

The Hon. J.A. DARLEY (16:15): I rise to contribute to the second reading of this bill. At the outset, I want to convey my disappointment at the government with this bill. In opposition, the Liberal Party were very vocal in criticising the then Labor government for failing to consult properly on the bill and undertook to have better consultation.

However, I have been contacted by constituents and stakeholders who have expressed their frustration at the lack of consultation that this government has undertaken on the bill. Their frustration is exacerbated by the promise from this government that they would do better than their predecessors, only to be let down when it came to the crunch.

As I understand it, both the mining and agricultural industries are calling for an independent review of the act to look at best practice interstate. The government has ruled out this option and I would like the government to put on the record why they do not want to do this. We all understand that there needs to be a balance between mining and agriculture. Both industries are very important to the state and our economy; however, many have long held that there has not been balance, and that the act favours the mining industry.

This bill was meant to restore this balance; however, it fails to do so. Mr Bill Moloney, a farmer from Yorke Peninsula, has spoken publicly about the anger that farmers feel about the lack of consultation and frustration that they have not been heard. He said:

Dan van Holst Pellekaan just hasn't listened and what people are cranky about is that the Liberals promised full consultation and open dialogue, but consultation has been extremely minimal.

I understand a number of amendments have been filed to the bill. They seem like sensible amendments which will try to rebalance the bill, and I have sympathy for many of them. I want to put on the record that I did investigate moving amendments of my own. These would have outlined that if part of a property was taken for mining, or if its viability was affected by mining, then the mining company would have to acquire the entire property, if this is what the owner wanted. However, I was told by parliamentary counsel that this did not quite fit with the bill or the act. I thank parliamentary counsel for their advice.

I am going to reserve my position on this bill, but flag that I have grave concerns about it. There has been widespread criticism of the bill. It is not unusual for there to be criticism of a bill; however, criticism is usually matched with vocal support, and I have not seen this support for this bill.

The Hon. T.J. STEPHENS (16:18): I rise today to note my opposition to the Statutes Amendment (Mineral Resources) Bill. I do not believe that this bill goes far enough to protect our farmers and South Australia's farmland. As stated by a number of my colleagues in the other place, this bill leaves too many issues unresolved for our state's primary producers. As such, I cannot support it in its current form, and have reserved my right on the legislation.

I have consulted with a number of individuals and groups from the agricultural and mining sectors about the particulars within this bill. This deliberation stems back to 2017 when this legislation was introduced by the previous government. Farming groups understand the importance that mining plays in our state's fortunes; however, they believe mining practices can be done in a way which safeguards the land so vital to their industry.

On the other side of the table, the idea of amending sections of this bill has been further compounded with an independent review of the Mining Act being called for by the South Australian Chamber of Mines and Energy. When both sides see ample space for compromise, I do not see how I can support a bill which ignores it.

Various interstate models have been suggested in order to reach an agreement which gives miners accessibility to land without infringing on the agricultural land rights. These include possibilities such as the Queensland model where their agricultural land is protected through planning laws. Including these provisions would require comprehensive policies in regard to land access, protection of critical farm assets and remediation works for land post-mining. Included in this suite of policies is a land access ombudsman. Their role would be to act as a mediator between landholders and resource companies in order to deliver a balanced outcome for both parties. However, these calls for additions to the bill have once again been ignored.

Our state's farming land is of vital importance to both our economy and our own wellbeing. Whilst I understand the economic importance that mining also contributes to our economic fortunes, it does not have to come at the cost of another industry. There is space for the protections of landholders' rights while simultaneously expanding our state's mining opportunities.

I am proud to be a member of the Liberal Party. It is a party that allows the individual to have a voice, if they feel truly compelled to speak out on a matter. For me, this issue creates such a circumstance. As a member of the Liberal Party, I also recognise the importance of our regions and our farming communities. During the election campaign, I spoke to countless people within regional areas about the issues that impacted them the most. One issue was clear: many did not believe that there had been sufficient consultation for the first incarnation of this bill in regard to striking the right balance between the mining sector and their own livelihoods.

My response to them during the campaign never changed. I told them that a state Liberal government would not bring back this bill until we held meaningful consultations with primary industries. Unfortunately, the bill was reintroduced last year without such consultation. In the time since, nothing has changed for our primary industries. The bill in its current form retains the same lack of provisions for farmers and their ability to protect their own land and, in turn, their livelihood.

South Australia's agricultural industry not only provides food for the state but also aids in feeding the world, making it a vitally important component of our export industry. While being a lucrative and significant contributor to our economy, mining is finite. We cannot allow agriculture to suffer in the long term for short-term gain. In order to safeguard South Australia's farmland, while also exploiting the wealth of resources we have beneath our feet, a balance must be maintained. I do not believe that the correct balance has been struck with the reforms proposed in this legislation.

There have been many amendments filed for which I have much sympathy. I will not be crossing the floor on all those amendments, but it would be fair to say that I am certainly not going to let this issue die during my time in parliament. As such, I am going to reserve my right to oppose the bill at the third reading. Just so members are clear, and for those who have an interest in this debate, I do not support the right of veto for farmers. However, there are many compromises to give farmers rights so that rogue explorers cannot hold them to ransom.

I respect the many fine mining companies that we have in South Australia; they do South Australia proud. I note that they are not the people who are pushing this particular legislation. So it is with a reasonably heavy heart that, after 17½ years, I give my intention to vote against the Liberal Party and the government bill.

The Hon. R.I. LUCAS (Treasurer) (16:23): I thank the honourable members for their contribution to the second reading of the bill. I look forward to the committee stage of the debate.

Bill read a second time.

Referred to Select Committee

The Hon. F. PANGALLO (16:24): I move:

1. That the bill be referred to a select committee of the Legislative Council for inquiry and report;

2. That standing order 389 be so far suspended as to enable the chairperson of the committee to have a deliberative vote only;

3. That this council permits the select committee to authorise the disclosure or publication as it sees fit of any evidence or documents presented to the committee prior to such evidence being presented to the council; and

4. That standing order 396 be suspended to enable strangers to be admitted when the select committee is examining witnesses, unless the committee otherwise resolves, but they shall be excluded when the committee is deliberating.

I will keep it short because I have already made a substantive speech on this previously. I must say I am extremely disappointed in the Labor Party's attitude to this bill and also to the amendments that have been proposed. I must also express my disappointment at the Liberal Party, particularly when I was at the Paskeville field days recently. I spoke to a number of farmers who were quite anxious about the progress of this bill and what it is going to do to them and their futures, as well as the fact that it poses a threat to so much valuable arable land.

What really stuck in the craw of many of those farmers was that before the last state election many Liberal candidates and members had actually gone and addressed farmers about this bill, and a couple of them swore that they would oppose it and do whatever they could to stop its progress. We now find that we are in the situation where it looks like they intend to bulldoze the bill through and are showing scant regard for the feelings of a group of people in the regions who have long supported the Liberal Party, and they are now finding that they are being abandoned.

We have heard words from the Hon. Terry Stephens, but I am afraid I see some hollow rhetoric there. While he may show some compassion for them, I would have thought that he would have done like some of his colleagues in the other place and indicated that he would cross the floor.

Members interjecting:

The Hon. F. PANGALLO: That he will cross the floor?

Members interjecting:

The Hon. F. PANGALLO: Okay, well, I will take that back if he does cross the floor. Anyway, regardless of that—

The Hon. T.A. Franks interjecting:

The Hon. F. PANGALLO: I hope he does, and I hope he shows some support for this contingent motion of mine. I think it does need to be referred to a select committee. I think there is more work that needs to be done and we need to hear more submissions and more from the sector that is going to be most impacted, as well as from the mining companies themselves. With that, I ask that the chamber supports my contingent motion.

The Hon. R.I. LUCAS (Treasurer) (16:28): For reasons that have already been well articulated in the public but also in another place, the government will not be supporting this motion. I must say, in defence of my colleague the Hon. Mr Stephens, I am surprised at the attack from the Hon. Mr Pangallo on the Hon. Mr Stephens. In relation to his strongly held views on this issue, which he has expressed privately and now has done so publicly, which he is entitled to do within the structures of the Liberal Party, I am surprised that the Hon. Mr Pangallo would turn such vitriol upon my colleague the Hon. Mr Stephens for his contribution to the second reading. However, that is an issue for the Hon. Mr Pangallo to sort his way through.

In relation this particular motion, as I said, I am not going to prolong the debate. The government has articulated its position publicly and in another place, and for those reasons we will not be supporting this motion.

The Hon. M.C. PARNELL (16:29): The Greens will be supporting the motion, and I congratulate the honourable member for moving it and I express my willingness to serve on such a committee if it was to be established. One thing I am looking forward to next week is that some members of this chamber will be having a discussion with the Clerk and with others about how we do committees in this chamber, and something I have said to anyone who will listen over many, many years is that we do need more scrutiny of bills committees. Where you have complex pieces of legislation and a lot of stakeholder interest, then a committee of inquiry is the obvious and the logical mechanism for exploring all those issues.

This committee would be an opportunity to get in representatives of the farming community, and they will talk to us about the uncertainty in which they are placed when, for example, a mining company has rights, whether to explore or to mine their land, yet they have no expressed plan for when they might ever get around to it. In other words, the farmer is in limbo, the mining company may get around to digging some holes in a few years' time, but in the meantime the farmer has absolutely no certainty as to whether it is worth repairing the fence, building the shed, improving their property and improving their productivity.

So it is stories like that that I think have motivated the Hon. Frank Pangallo, as they have me. A lot of collateral damage will be caused to the South Australian farming community by simply replicating the existing flawed Mining Act in this new bill. Change is desperately needed, but this is not the change, it does not go anywhere near far enough, so the Greens will be pleased to support the creation of this committee of inquiry.

The Hon. J.A. DARLEY (16:31): I indicate that I will be supporting the Hon. Frank Pangallo's motion.

The council divided on the motion:

Ayes 5

Noes 14

Majority 9

The PRESIDENT: Honourable members are reminded that divisions are important and certain behaviours are expected by your President.

Committee Stage

In committee.

Clause 1.

The Hon. M.C. PARNELL: I have a question of the minister. What submissions were received from farmers, farming organisations and farming groups? Did any of those submissions result in any changes to the legislation and, if so, what of those many submissions fell on fertile ground? What changes have been made to this bill as a result of representations from the farming community?

The Hon. R.I. LUCAS: I might take those sequentially. The government received submissions from a range of organised groups—the ones you would expect: Primary Producers, Grain Producers, the livestock association, etc.—and from individual farmers and groups of farmers that did not necessarily represent a particular organisation, group or regional community.

In relation to consultation, prior to the introduction of the bill there was considerable consultation with all stakeholders, both those representing farming communities and those representing mining interests, therefore some of the issues raised by farming communities were raised on the original bill. Subsequently, the government, through the minister, moved some amendments in the House of Assembly, principally as a result of consultation and further submissions from farming communities.

One in particular was a matter raised by the industry group that prohibition on entry or undertaking activities on land was not long enough, i.e., the amended bill proposed 28 days for landholders to consider and seek advice. The amendment to the bill increased prohibition on entry or commencing exploration from four to six weeks. A number of amendments were moved in the House of Assembly debate by the government, having listened to further submissions from representatives of farming interests.

The Hon. M.C. PARNELL: I thank the minister for his answer. I have the schedule of five amendments moved by the minister in the other place, and that accounts for two of them. Rather than go through all of those—this is a bill of some 190 clauses—would it be fair to say that the government has received no endorsement of this bill from any farming group?

The Hon. R.I. LUCAS: My advice is that there has been no explicit endorsement of the amended mining bill from any of the major representative organisations, which I presume the member is talking about. I think the member knew the answer to the question before he asked it, anyway, or he would not have asked the question. We can play this game if we wish. I am happy to play along with him.

We are not aware of any others. There are clearly strong concerns from individual farmers about aspects of the bill, as has been made apparent to the honourable member and to others, but I am sure that, as with all issues of controversy, there are probably some individuals who are more amenable to the government's position than others. In response to the honourable member's question, I think he knows the answer, and I can confirm it for him.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. M.C. PARNELL: Could the minister explain the practical impact of subclause (3)? It is the insertion of a new subsection (7), which relates to proclamations. Could the minister explain exactly what that additional subsection is designed to achieve and, in particular, whether it opens up more land or restricts more land from being subject to mining?

The Hon. R.I. LUCAS: I am advised this amendment will ensure the proclamations made before 29 June 1972 under the predecessors to the Mining Act 1971 no longer apply to the extent that they are inconsistent with any proclamation made after that date. This provision will not affect processes under other acts.

The Hon. M.C. PARNELL: I thank the minister for his answer, which I do not understand. What does it mean on the ground? Does it mean that more or fewer areas are subject to mining?

The Hon. R.I. LUCAS: I would have thought it was quite obvious what the answer meant. It was clear to me, but if the member wants to dumb it down even further, my advice is it is neither more nor fewer: nothing changes.

Clause passed.

Clause 7 passed.

Clause 8.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 14, line 9 [clause 8(2)]—Delete 'the prescribed distance' and substitute '600 metres'

There is a range of changes to the exempt land provisions in section 9 of the act. Probably one of the main changes is to both reduce and extend the prescribed distance from proposed mining operations of certain sensitive uses before land is regarded as exempt land. At present, it is a 400 metre flat rate, if you like. Under the government's bill, they are proposing it to be 200 metres for what they perceive as low impact operations, and increased to 600 metres for higher impact operations.

The intent of this amendment is to basically extend across the board this distance from 400 metres to 600 metres, regardless of the perceived impact of the mining operation. I made the point before that it does not necessarily mean that a person who is within the prescribed distance, whose home, for example, is very close to a proposed mining operation, will not still go down in a screaming heap, but it would seem to me that the larger we make the distance the more egregious would be the forced waiver of exemption if someone was very, very close. In other words, if someone's home was 250 metres from a proposed mining operation and the prescribed distance was 600 metres, then they have more chance of being successful in their opposition to that activity than if their house was a similar distance; in fact, they would not even qualify if it was regarded as low impact.

I think the 400 metres is too small and so my amendment No. 1 proposes to extend that to 600 metres. I note the Hon. Frank Pangallo has amendments in a similar vein—slightly different numbers, but the object being the same. He will explain his own amendments, but as I understand it he is proposing to increase the government's lower distance of 200 metres up to 400 metres and increase the 400 metres to 600 metres. They are both very close. I will get him to explain his own amendment No. 3, which increases the 600 metres and substitutes 1,500 metres.

At the end of the day, the object of the Greens' amendments is to include more sensitive land uses within the definition of exempt land so that the owners of that land—the farmers, in most cases—at least have a chance to be able to convince a decision-maker that mining is inappropriate so close to their sensitive use, such as their home.

The Hon. F. PANGALLO: I rise to say that I will be supporting this amendment even though there is one I have where I would like it extended to 1,500 metres, which I think provides greater reassurance for farmers on their property with this land. I will be supporting this amendment.

The Hon. J.A. DARLEY: I will be supporting the Hon. Mark Parnell's amendment.

The Hon. R.I. LUCAS: The government will not be supporting any of the amendments in relation to this particular clause. The amendments as put forward by both the honourable members increase the existing buffer around a residence from which exploration or mining operations cannot occur unless a waiver of exemption is obtained. The Hon. Mr Parnell proposes to increase this distance to 600 metres for all operations irrespective of the impact; the Hon. Mr Pangallo proposes to increase the distance from a residence to be 400 metres for low-impact exploration operations, 600 metres for advanced exploration and extractive mining operations, and 1.5 kilometres for metallic mining operations.

This bill seeks to improve exempt land provisions through evidence-based reforms, unlike the amendments put forward by the honourable members that are arbitrary and would be unnecessarily detrimental to exploration and mining operations that are not only important to our state's economy but to our overall standard of living. They would clearly create an unnecessary barrier to investigatory activities that are low-impact operations. They would impede exploration expenditure and have the potential to materially restrict access to the strategic construction resources that deliver the low-cost materials that support our communities.

In response to feedback from landowners, this government proposes to set out in the bill to determine the buffer distance from a residence based on the practical impacts that can arise from different types of operations: 200 metres applies to low-impact exploration operations that do not involve any motorised equipment and include minimal ground disturbance and minimal nuisance; 400 metres is determined appropriate for all other exploration operations and quarrying operations.

Quarries are geographically located close to townships and therefore residences, to minimise the cost of transportation and meet the local demand for construction materials at affordable prices. To illustrate, Boral submitted an application this year to expand the strategic Linwood Quarry that has been in operation since 1882. An increase of 200 metres would increase the number of waivers needed by Boral from more than 140 individual property owners, resulting in time and cost impacts that go directly to the cost of critical construction products.

Six hundred metres is determined appropriate for mining operations. Careful consideration of dust and blast monitoring demonstrated that the majority of complaints in the past decade occurred at operations that are located within 600 metres of the nearest receptor, not 400 metres. The amendments put forward by the honourable members do not seek to improve the definition of exempt land or provide greater protection for landowners; rather, they will have the effect of preventing exploration operations from determining where our resources are long before a resource is discovered, before there is any consideration of whether or not the public should realise the value of anything that is discovered and well before there is even any consideration of whether mining might ever occur.

The proposed amendment is not evidence based, in the government's view. It is an attempt to constrain reasonable and sustainable access to the state's resources and will simply increase the cost of quarrying those materials which support the development of our communities. The proposed amendment will increase investor uncertainty and actively discourage investment in exploration in the state at a time when South Australia is ranked sixth of the seven Australian jurisdictions for exploration expenditure.

The Hon. M.C. PARNELL: I will just make a quick observation in response to the minister, that the future of the South Australian economy does not depend on digging holes and blasting in close proximity to people's homes. Certainly, when it comes to extractive industries, transport is a big cost. We are talking here about a few hundred metres' difference, but the impact can be significant on the occupiers.

The other point—and it is one that was going to crop up eventually, but we will raise it now—is that the minister draws the distinction between exploration and mining. The argument goes like this: 'We're only looking. That doesn't really affect anyone.' Of course, if they find something and they start mining, well, that will affect people, and it rather begs the question: if you have an area that for whatever reason is so sensitive that it should not be mined, then why are you allowing exploration there?

The industry will always say, 'Well, that's because we need a complete picture, and we need to know the whole of the lay of the underground landscape, not just the places,' but it strikes me that when it comes to exploration in national parks, for example, if your threshold point is, 'Well, we're not going to let you mine here,' why on earth do you let people explore there? So I would just make that point.

It is complicated a little bit by aeroplane-based surveys that do not impact on the surface of the land. Certainly, there has been a lot of taxpayers' money sunk into flying aeroplanes around over South Australia, pinging signals down to the surface and beneath to see what mineral resources might be there, but I just make the point that if your starting position is that an area is too sensitive to mine, then it makes logical sense to keep explorers out of that same area.

Personally, I will treat this amendment as a bit of a test for the whole range of amendments that go to changing the distances in relation to exempt land. The minister made the point that we have not sought to alter the definition of exempt land. The reason for that is that it would not matter how many other sensitive uses we slotted into the definition of exempt land; under the current regime they are all overridden anyway. It would not matter what else you put in there.

History tells us that in places like Ballarat, in Victoria—and I think the history might have been similar here—the definition of exempt land has things like 'cultivated orchards' in it, and apparently in Ballarat in order to keep mining companies out of urban areas and out of people's yards people would plant fruit trees. I have heard that the abundance of fruit trees in the Ballarat neighbourhood is a direct consequence of their version of exempt land laws. Maybe the laws are more effective in Victoria than they are here.

No, we have not sought to change the definition. It does cover most of the sensitive uses. My main objection is that it means virtually nothing because it is routinely overridden by mining companies, and the decision-making tribunal, when it was the mining Warden's Court, routinely overrode exempt land. So it did not really matter what the definition was; it did not really stand up. I am going to treat this particular amendment as a test for all of those that relate to the prescribed distances under the exempt land provisions.

The committee divided on the amendment:

Ayes 5

Noes 14

Majority 9

Amendment thus negatived.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 15, lines 14 to 23 [clause 8(12), inserted definition of prescribed distance]—Delete the definition

As I have said, from my perspective, I will just treat that as a test for my second amendment, which is the same issue. In terms of the Hon. Frank Pangallo's amendments, I will be supporting all of those. It is his call if he chooses to divide. I will not be dividing on my second amendment, but this issue was put to me by a number of farming groups. They were very keen to see these distances changed, so I am going to move them, but I will not be dividing.

The Hon. F. PANGALLO: I will not be moving amendments Nos 1 and 2 as I support the Hon. Mark Parnell's amendment. His distances are greater, but as there is a lot of similarity, I will not be moving my amendments Nos 1 and 2. As such, I move:

Amendment No 3 [Pangallo–1]—

Page 15, line 23 [clause 8(12), inserted definition of prescribed distance, (c)(ii)]—Delete '600 metres' and substitute '1,500 metres'

The Hon. J.A. DARLEY: I indicate I will be supporting the Hon. Mark Parnell's amendment.

The CHAIR: I am not putting the questions, I am just indicating the questions I am putting. The first question I am putting is that all words down to but excluding '600 metres' on page 15 stand as printed. If you support the Hon. Mr Pangallo or no change, you vote yes in the affirmative. If you support the Hon. Mr Parnell, you vote no.

The Hon. R.I. Lucas: What happens if you are opposing both?

The CHAIR: You are voting for no change to the bill, so you vote in the affirmative yes, if I understand the government's and the opposition's positions correctly.

The Hon. M.C. Parnell's amendment negatived; the Hon. F. Pangallo's amendment negatived; clause passed.

Clause 9.

The Hon. M.C. PARNELL: I move:

Amendment No 3 [Parnell–1]—

Page 16, line 16 [clause 9(7), inserted subsection (7)]—Delete 'appropriate court' and substitute 'ERD Court'

Amendment No 4 [Parnell–1]—

Page 16, line 20 [clause 9(8), inserted text]—Delete 'court' and substitute 'ERD Court'

Amendment No 5 [Parnell–1]—

Page 16, line 21 [clause 9(8), inserted text]—Delete 'court' and substitute 'Court'

Amendment No 6 [Parnell–1]—

Page 17, line 9 [clause 9(12), inserted subsection (8a)]—Delete 'appropriate court' and substitute 'ERD Court'

Amendment No 7 [Parnell–1]—

Page 17, line 11 [clause 9(13), inserted subsection (9)]—Delete 'court' and substitute 'ERD Court'

Amendment No 8 [Parnell–1]—

Page 17, line 15 [clause 9(13), inserted subsection (9)(b)]—Delete 'court' and substitute 'Court'

Amendment No 9 [Parnell–1]—

Page 17, line 22 [clause 9(13), inserted subsection (9)(b)]—Delete 'court' and substitute 'Court'

I indicate that on this topic there are two other consequential amendments in [Parnell-1], being amendments Nos 12 and 13. I also discovered a few other consequential amendments later in the piece, which I filed as [Parnell-2], so there are three amendments there. All those amendments relate to this single simple issue, and that is: who is the arbiter of disputes between mining companies and farmers when the farmer exercises her or his right to refuse to sign a waiver of exempt land agreement?

As I said before, for many years the mining Warden's Court handled these cases and they always found in favour, except for one time, of the mining company. For reasons I mentioned before, I think that a fairer tribunal with better processes is the Environment, Resources and Development Court. What I am effectively doing through these amendments is to reinstate what this parliament has previously decided, and that is that the ERD Court is the appropriate forum rather than the mining Warden's Court. The bill seeks to give it back to the mining warden; I want to give it back to the ERD Court. It really is that simple.

This was a request of a number of conservation groups and farming groups. It is an important issue because there was, over a long period of time, very little confidence that the mining warden would take into account seriously the concerns of farmers. I will flag now, but I will not speak to it just yet, that I have further amendments to clause 9 which go to the criteria or the set of factors that the court should take into account when deciding a dispute between farmers and miners. I will move that amendment separately and talk to it separately, but for now these amendments Nos 3 to 9 basically reinstate the ERD Court as the tribunal with jurisdiction in these matters.

The Hon. F. PANGALLO: I will not be moving the amendments in my name because I will be supporting the Hon. Mark Parnell's amendments. I concur wholeheartedly with his views on the matters being heard by the ERD Court, and the same views have been expressed to me by farmers and others who have had dealings with the Warden's Court. It almost becomes a lay down misère that the miners tend to win out there. With that, I will not be moving my amendments but am supporting the Hon. Mark Parnell's amendments.

The Hon. J.A. DARLEY: I am supporting the Hon. Mark Parnell's amendments.

The Hon. R.I. LUCAS: The government will not be supporting the amendments. The amendments put forward by the honourable members are identical and propose to retain the Environment, Resources and Development Court as the only court with the jurisdiction to hear exempt land matters.

In 2011, the Hon. Mr Parnell successfully proposed amendments to the Mining Act that limited the jurisdiction for hearing exempt land matters to the ERD Court. Before 2011, the Warden's Court, the ERD Court or the Supreme Court could hear exempt land matters. This government, as set out in the bill, proposes to reinstate access to justice by restoring the choice of courts that was restricted by the honourable member's 2011 amendments.

The bill's intention in this regard is informed by evidence and experience. Since the 2011 amendments to limit jurisdiction to the ERD Court, only two matters have been heard: Marmota Energy Ltd v N.G. and J.K. Harrop, Marmota Energy Ltd v Clinpara Pty Ltd (2016) and Dean Terrence Siviour v Ausmin Development Pty Ltd and Renascor Resources, which was ultimately withdrawn.

Before 2011, there were, on average, five exempt land matters heard per year. The government's bill gives flexibility for landholders and provides more choice and cheaper, faster and less formal processes. I point out that it does not derogate from the opportunity for landholders to have their matters heard in higher courts, including the court of preference for the honourable members.

I note, too, that in addition to good faith agreement making and the opportunity for resolution in the courts, this government has delivered on its election commitment to support the Small Business Commissioner to provide advice on alternative dispute resolution services between farmers and resource companies, and is introducing early stage industry-funded legal advisory assistance. This government is committed to supporting responsible and productive ways for mining and farming to coexist, for the benefit of every South Australian, beyond the words of this bill. Having a choice is an important measure in support of all landowners in the state.

In opposing those, I note, as the honourable member has, that there are a considerable number of other amendments. It is entirely his prerogative but it might assist the process of this committee if, as he has indicated, this is treated as a test case and, rather than formally moving every other amendment, I think the record will show that it has been treated as a test case. It might expedite the proceedings of the committee. It is entirely a matter for the honourable member, but it is certainly the way we have handled complex bills in the past, treating it as a test case whilst indicating that the other amendments are of a similar nature, but I leave that to the honourable member's discretion.

The Hon. M.C. PARNELL: I accept what the minister is saying: where there has been maybe one amendment and one consequential, then we do not trouble the scorers too much moving it separately, but I appreciate that in this case there are a number of consequential amendments that effectively all relate to the same issue.

The record will show that I sought, both where it first appears and at every subsequent iteration, to replace the word 'court' with 'ERD Court', to make sure that that is the court that will manage these things. I will also acknowledge—the minister just referred to it briefly—that one of my amendments from 2011 that has survived and been improved slightly is the payment to farmers so that they can get legal advice when the mining company knocks on their door with a form and says, 'You'd better sign this or you're in big trouble.' At least they then get a chance to go and see a lawyer, and it will not necessarily cost them too much if they go to a reasonably priced lawyer.

So that amendment has remained, and I appreciate that—I have not sought to upset that. Certainly, this is a key request of environment and farming groups, so from my perspective there will be one vote and one division only and I will not move the remainder of these consequential provisions.

Ayes 5

Noes 14

Majority 9

The Hon. M.C. PARNELL: I move:

Amendment No 10 [Parnell–1]—

Page 17, after line 23 [clause 9(13)]—After inserted subsection (9) insert:

(9a) Before making an order under subsection (9), the ERD Court must have regard to the following:

(a) the expected duration of the proposed authorised operations;

(b) the likely effect of the proposed authorised operations on uses of land (including future uses) adjacent to, and in the vicinity of, the land on which the authorised operations are to occur;

(c) the possible social, environmental and economic impact of the proposed authorised operations;

(d) the extent to which rehabilitation of the land is likely to be required on account of the impact of the proposed authorised operations;

(e) the type of minerals sought to be recovered and the relative abundance or rarity of those minerals in other parts of the State;

(f) the following matters in relation to the previous actions of the tenement holder:

(i) whether the tenement holder has contravened or failed to comply with a provision of this Act or a term or condition of a tenement held under this Act;

(ii) the corporate structure of the tenement holder;

(iii) the financial background and resources of the tenement holder;

(iv) the tenement holder's reputation;

(v) any other matter the Court considers relevant.

If this amendment were to find favour with the committee, then it would be administratively amended to remove the reference to the ERD Court, because we have just resolved that reference, but I will leave that to the drafters afterwards.

This is an important amendment, because one of the things that we do when we are considering the tiers of government and the responsibility that we each have is that it will be up to a court to determine a dispute between a farmer and a miner in relation to exempt land, but what we have not done as a parliament—I think we have neglected it—is to actually give the court guidance as to the sorts of things that they should take into account.

This parliament is very good at giving guidance to courts, especially in the criminal jurisdiction, forever telling them to impose minimum mandatory sentences, telling them exactly what they have to do. Every so often, a bikie might get it knocked over in the High Court, but the principle is still solid, that it is the role of parliament to give advice to the judiciary as to factors to take into account.

Historically, the only two things that have really been taken into account by the mining Warden's Court, and I think possibly also by the environment court, have been compo and conditions—the two c's. In other words, when a landholder says, 'I don't want mining activity on my land. I am not going to sign the waiver of exemption,' the court has only considered two things: how much compo should we pay the farmer and are there any conditions that we should attach to make their life less miserable as a consequence of having mining close to their home, for example?

They are the only two things, but clearly, if we as a parliament take our role seriously—and we are talking about long-term decisions over the use of land, some of which are irreversible and permanent, such as the digging of big holes that are not rehabilitated and can never be farmed again—then surely we owe it to the community to provide some guidance as to what the relevant factors should be.

This amendment sets out a list of things that the court should take into account. I will go through them briefly. The first is the expected duration of the operations. In other words, if a mining operation only has a short life of, say, five years, why should that automatically trump another use of that land that might carry on in perpetuity? It is a factor. It is not determinative, but it is a factor that the court should take into account.

The second is the likely effect of proposed operations on uses, including future uses, of either the land itself or the land around it. It goes to a similar question. If mining operations are going to rule out future farming activities or adversely impact them, that should be taken into account. The third is that possible social, environmental and economic impacts should be taken into account. That goes without saying. That is why we do environmental impact statements (EISs) in other areas. It is to assess the social, environmental and economic impacts.

Paragraph (d) is about the extent to which rehabilitation is likely to be required. If it is not going to be required, that effectively can rule out other uses, though not all other uses. There are some very useful holes in the ground. Up in Queensland, they are using a mine with a hole at the top of a hill and a hole at the bottom, filling them with water and using it for pumped hydro. There are some possible uses of holes in the ground but, when it comes to disputes that tend to be about valuable farming and agricultural land, growing crops is probably more valuable than leaving a hole.

Paragraph (e) is about the type of minerals sought to be recovered. This is an issue I raised back in 2011, and I am raising it again now. If the sorts of minerals they are looking for are relatively abundant and common in other areas, why would we sacrifice valuable farming land? For example, on Yorke Peninsula, why would we sacrifice a few thousand hectares of some of the best barley-growing land in South Australia for a short-term mine looking for a fairly common mineral that is abundantly available in the outback and other areas that do not involve farming land?

On the other hand, if there is some very rare mineral and the only location where it is found happens to be in valuable farming land—if that is the only place you can get this mineral anywhere in South Australia—maybe, in those circumstances, mining might trump farming. It would be the exception rather than the rule, which is that it is mostly common minerals being looked for.

In paragraph (f) I have added a number of criteria that I think are very similar to the ones the Hon. Frank Pangallo has moved in his amendments because they go to matters personal to the applicant; in other words, the mining company. They look at whether the mining company is financially viable. Does it have the resources that it might need for rehabilitation? The government will say, 'We deal with rehabilitation through other ways.' We know from experience, here and interstate, that companies have a shocking habit of going broke, going elsewhere, transferring their liability and not paying the full cost of rehabilitation.

I do not trust the government. In Queensland, they are looking at the taxpayers footing the bill for the failed underground coal gasification experiment. The taxpayers will pay millions of dollars to clean up the mess that a mining company left behind. The textbook case from South Australia, which I have talked about before, is the Brukunga Mine, a mine that has cost the taxpayers 10 times as much to rehabilitate as was ever extracted from that mine in minerals—10 times as much. It is an absolutely appalling situation.

People say, 'Oh, well. That was in the olden days. We do things much better now.' I do not trust the government to get rehabilitation right. I think that the court, when it is deciding whether or not to allow a mining company onto exempt land, should have a look at the financial background and resources of the tenement holder. I think that they should also take into account rehabilitation bonds or other securities that are offered.

I think that this is a comprehensive set of criteria for a court to take into account, none of which predetermines the outcome. Nothing in this list of things to take into account says that mining or farming will prevail in a dispute or whether the two can coexist, but it at least makes sure that the decision-maker takes into account things that I think society expects them to take into account. It goes to that threshold question of whether mining is in fact the best use of land in that circumstance.

Part of the problem, as I said, with just compo and conditions is that, when they are weighing up the value of the mine, it is a short-term proposition. The way economics is structured values the short term over the long term. If you try to say, 'But we could grow wheat here in 50 years' time,' economists value that at zero; that is not worth anything. But if you went down Rundle Mall and said, 'Do you think it is good for society to be growing wheat in 50 years' time on our farms?' they would say, 'Yes, of course it is. We are going to need wheat in 50 years' time.'

The economic system with discount rates does not value the future, it values the present, and I think that is a skewed way of looking at it. This is an important amendment. Again, it is something that farming groups and others have asked for, that we simply give some guidance to the court as to the questions they should be asking before determining whether mining will trump farming.

The Hon. R.I. LUCAS: The government opposes the amendment. The amendments put forward by the honourable member, whilst different, both include lists of considerations of the court that either undermine the state's regulatory assessment processes and the state's right to develop public resources, or unnecessarily constrain the court's consideration of matters it considers relevant to determining appropriate conditions or compensation.

From as early as 1885, our state's mining acts have established frameworks for negotiating land access and compensation to facilitate successful coexistence between landholders and miners. Rights held by landowners should be respected, just as the rights held by explorers and miners should be respected. Accordingly, the aim of the bill, in significant part, is about recognising and appropriately balancing both sets of property rights. Every dispute over access to land is unique and accordingly every court process must consider a complex mix of interests and values pertinent to that unique circumstance in reconciling competing interests.

It ill serves the landholder and the explorers and miners to constrain matters that the court must consider. In seeking to consider the genuine and simultaneous rights and interests of landowners, explorers and miners, it is important that the court possesses the latitude to consider the unique facts of any particular scenario without restriction from this parliament, and are an important part of that objective. This reflects the fundamental underlying principle that the public owns our mineral assets and the regulatory scheme grants rights to explorers and miners once landowner values and interests are acknowledged.

The potential for adverse environmental impacts are managed and fair compensation is paid. There are aspects of the amendments put forward by the honourable members that seek to empower the court to consider matters that directly challenge this fundamental underlying principle. The state assesses and grants leases and licences using a rigorous and evidence-based assessment process that seeks to unlock the potential of the state's resources in a sustainable and beneficial manner. It is not appropriate that the process resolution of land access draws into question the right of the state to assign rights to its mineral resources for the benefit of our citizens.

In concluding, whilst in this chamber I acknowledge the member's expertise and experience in environmental law—I certainly do not question that—I do question his experience and expertise in relation to economics. His general assertion that economics and economists cannot value the future in any way, in that analogy that he gave, is certainly contrary to, I think, any reasonable understanding of economics. The notions of net present value, valuing future resources and income flows and assessments are common practice amongst economists for generations. As I said, I dips me lid to the honourable member's capacity in relation to the law, but I think he has a little bit to learn in relation to economics and the capacity of economists to make judgements about the value of current uses and future uses in coming to some sort of assessment in relation to both.

The Hon. J.A. DARLEY: I indicate that I will be supporting this amendment.

The Hon. F. PANGALLO: I will be supporting this amendment, although there are elements in this amendment that are quite similar to mine, which I will explain and perhaps we might have to have a discussion should the amendments get up.

The CHAIR: Both amendments cannot get up, the Hon. Mr Pangallo, so if this one is successful—and, if I am reading the numbers correctly, it is unlikely to be successful—

The Hon. F. PANGALLO: I will speak to mine.

The CHAIR: In theory, let's just say it was successful, then you would not be able to move yours; but if it was unsuccessful, you would still be able to move yours. Before you bind yourself, if I am reading the mood of the committee correctly, the Hon. Mr Parnell's amendment will not be successful. If it is not successful then you will have an opportunity to move yours and try to convince the committee. With an outside chance that the Hon. Mr Parnell's amendment is successful then you might want to speak to yours now. What would you like to do?

The Hon. F. PANGALLO: I will support the Hon. Mark Parnell's amendment.

The committee divided on the amendment:

Ayes 5

Noes 14

Majority 9

Amendment thus negatived.

The CHAIR: The Hon. Mr Parnell has been unsuccessful. The Hon. Mr Pangallo, do you wish to move your amendment?

The Hon. F. PANGALLO: Yes, I do. I move:

Amendment No 11 [Pangallo–1]—

Page 17, after line 23 [clause 9(13)]—After inserted subsection (9) insert:

(9a) The ERD Court must, when considering for the purposes of subsection (9) whether adverse effects of proposed authorised operations on an owner of land can be appropriately addressed by the imposition of conditions, have regard to the following:

(a) any negative impact the proposed authorised operations may have on—

(i) business operations of the owner; or

(ii) the reputation of the owner; or

(iii) the owner's residence or household amenities or a residence or amenities on land adjacent to, or in the vicinity of, the land on which the proposed authorised operations are to occur;

(b) the extent to which the proposed authorised operations may result in a reduction in the value of the owner's land;

(c) the extent to which the proposed authorised operations are likely to cause the owner to suffer distress or anxiety;

(d) the tenement holder's reputation;

(e) the financial background and resources of the tenement holder;

(f) the tenement holder's capacity to—

(i) undertake the proposed authorised operations; and

(ii) ensure that the owner's land is rehabilitated as required under this Act;

(g) whether the tenement holder has contravened or failed to comply with a provision of this Act or an instrument under this Act;

(h) any other matter the Court considers relevant.

There are similarities to the amendment that was just defeated, but I think it is important that I get to speak in relation to what I am trying to do in this amendment, and that is to actually build in some more protections for the farming community, for the farms, for the farmers and for their families.

As the Hon. Mark Parnell has pointed out, there have been instances where mining companies have gone in and destroyed valuable land and have not met their obligations in rectifying it. In fact, I believe there probably is a matter still before the courts in relation to that. I will give you some examples of some that I have seen myself and some examples of where this new act could actually impact on quite a viable, important business.

A few years ago, I happened to make a trip, while working for Channel 7, to the opal fields of Lambina. I do not know if many of you have heard of Lambina, but it is in the far north-west of our state and it is on prime pastoral country. This opal mine is essentially open-cut mining, which means that miners can just go in and bulldoze their way through, try to find the valuable opal and, if they do not, well, they will just move on to the next location. Suddenly, you have these massive excavations on the property. As a consequence, they do not rectify it, and it means that pastoral country is unusable, unless the owner of the property decides to spend a fortune to try to rectify it himself or themselves, whatever the company is.

I refer to another example. It is interesting to note that Yorke Peninsula is probably one of the most valuable tracts of farming that we have in South Australia. We have only 4 per cent of arable land, but Yorke Peninsula is rich in what it has agriculturally. This is why I am quite passionate about these amendments that we are moving. It is easy today for members on the government side and the Labor Party side to think that mining deserves to take precedence over farming communities.

The world's population continues to grow at an enormous rate. In fact, I only heard yesterday that Australia's population reached 25 million 10 or 12 years before it was due to reach that. I think it was due to hit 25 million in 2030, but here we are now, on the verge of 2020—10 years out—and we have already hit 25 million. We are continuing to grow our immigration numbers and the population will increase. The world's population continues to increase.

The two most important things, which are important for life on this planet, if we do not save the planet from climate change, are going to be food and water. I honestly believe that wars are going to be fought over food and water, and here we are wanting to trample all over some of the best farming land that we have in South Australia, just for the sake of fossicking for minerals and without building in protections for some of these farmers.

I will give you another example. A few years ago, I went to a property near Warooka on Yorke Peninsula. This property is unique, in that they no longer use it for grain or harvesting or farming as such. It is actually the home of the mineral water that we sell here in parliament—PH8. I do not know whether you have been fortunate enough to try it, but PH8 means it has an alkaline level of 8-plus. It is a rare commodity, considering it is a natural product that is taken from the pristine limestone area around Warooka.

The owners of this business were originally farmers, but they were not too successful on the farming side of things. They discovered this water, which became a valuable asset, and they created what has become a valuable company. They sell the water in Australia and export it overseas. For instance, in China a few years ago, it won the award for the world's best tasting water. It came from Warooka on Yorke Peninsula, which is the heart of our farming community.

What I am trying to build into this amendment is some sort of protection for businesses that operate on farmland. Let's face it, a farm is a valuable business. Generations of families have built those businesses to make their living and to support themselves, such as PH8 on Yorke Peninsula.

This business relies on the area and on being able to extract water from deep within those limestone aquifers. Imagine if a mining company suddenly acquires a tenement right and says, 'Oh well, we're coming in to have a look for copper or whatever. Bad luck about your aquifer but we have the rights to come in.' Suddenly, the livelihood of these business owners is threatened. What compensation is there for them? What is built in to protect them and their valuable business?

The amendment goes a long way in trying to do that by protecting the business operations and reputation of the owners. PH8, for instance, has this particular water quality that they market. The branding is important to them. Imagine if that water faces the prospect of being contaminated in some way, or if the company is unable to achieve what they are selling. How do they protect themselves?

It also builds in the owner's residence and the amenities, or the residence on land adjacent to the exploration. Unfortunately, we lost the amendments about the distance from houses on farmland, but take a moment to think about the impact heavy machinery and drilling could have on the people living in a house around 400 metres away. Think of the noise, the impact and the possibility of any contamination could have on them. They would have to put up with that. Imagine you are staring out of your window and see heavy drilling equipment and machinery that are creating all sorts of noise and vibrations.

In fact, I was sitting in one of the rooms in Old Parliament House the other day for a briefing. I thought that Adelaide had been hit by an earthquake, such was the vibration coming from the works next door. That would have been 300 to 400 metres away from us, and it was vibrating right through the foundations of Old Parliament House. This gives you an indication of the impact that mining could have.

The other thing I think is important is that we need to know who these mining companies really are. Who are they? Are they some tinpot company that has been set up for the sake of going out and trying to find something? Are they reputable? Do they have resources behind them to be able to conduct further exploration, or undertake repairs to the land should they decide they have lost interest? It is important that we know what these companies are doing, who they are, who they represent, and what they are going to do once they have finished looking for minerals.

These are things that the ERD Court or some other court would need to take into consideration and consider the impact that it has on all the people who are affected by these operations. I guess you also have to look at the tenement holders' reputation, their financial background, as I said, and whether they have the capacity to undertake the authorised operations and also whether they comply with the acts and whether they will comply once they have finished.

I have already indicated that there is a still a matter before the courts where a company has dragged a family through the courts, and it is still going through the courts. It is appalling what has happened to this family. I will not name them here but I spoke to them when I was on Yorke Peninsula recently. The anxiety and stress it has caused this family, which continues to be caused by this mining company, is appalling, and their nightmare continues to this day. The threats of litigation that hang over them are appalling. They do not have the resources to be able to fight these big mining companies nor do they have the big legal muscle that these mining companies tend to wield.

I think it is important that we try to give protection to the farmers. Both sides of the house are supportive of this bill. I want you to sit back and think, 'What if it was my family's property that had been in the hands of our family for generations, generations of hardworking South Australian families who have built up a reputation, who have worked hard in their community and suddenly all that faces a gloomy future?' They could lose it all.

Why should we not have protections for them? Why should we not look out for their interests? If you still want mining to take place, let's ensure that they have something to fall back on, not to see their rights and their property trampled over. With that, I firmly believe and I certainly hope that members in this house will look favourably on this amendment.

The Hon. R.I. LUCAS: For the reasons we gave earlier, the government will not be supporting the amendment. I will not repeat those reasons. I am also advised that this does not apply to opal mining. There is a separate act to regulate opal mining and, either way, the opal mine at Lambina was required to rehabilitate and they have successfully completed that rehabilitation. The regulator required financial bonds from the opal miners to guarantee that rehabilitation.

The Hon. M.C. PARNELL: As I said before, it is similar to the amendment that I moved and I will be supporting this amendment. I acknowledge what the minister says: we have three main pieces of legislation dealing with mining. In my view, they all suffer from very much the same defects. For example, the underground coal gasification is being dealt with under the Petroleum and Geothermal Energy Act, whereas if they were physically digging the coal out of the ground, as they used to when they burnt it at the power station at Port Augusta, then that is covered under the Mining Act. It is similar with opal mining.

But I think, despite what the minister says, a casual observation of the landscape around Coober Pedy will tell you that not a whole lot of rehabilitation has been undertaken over the last century or so. I think the Hon. Frank Pangallo makes some excellent points and I will be supporting his amendment.

The Hon. J.A. DARLEY: I will be supporting the Hon. Frank Pangallo's amendment.

The committee divided on the amendment:

Ayes 5

Noes 14

Majority 9

Amendment thus negatived.

The CHAIR: We are still on clause 9 and we come to the Hon. Mr Pangallo's amendment No. 12 [Pangallo-1]. There are also amendments Nos 13 and 14 [Pangallo-1]. These were filed ahead of the Hon. Mr Parnell's amendments, which are identical.

The Hon. F. PANGALLO: These amendments are consequential, so I will not be moving them.

The CHAIR: I assume, the Hon. Mr Parnell, you are taking the same view.

The Hon. M.C. PARNELL: Yes, there were a number of consequential amendments. We have dealt with the issue, so I will not be moving those. These are the amendments in [Parnell-2] that I will not be moving.

The CHAIR: For the benefit of Hansard, I point out that the Hon. Mr Parnell is referring to amendments Nos 1, 2 and 3 [Parnell-2].

The Hon. M.C. PARNELL: I move:

Amendment No 11 [Parnell–1]—

Page 17, after line 33—After subclause (18) insert:

(18a) Section 9AA—after subsection (10) insert:

(10a) If exempt land the subject of an application under this section is used wholly or mainly for agricultural industry, the ERD Court must, before making an order under subsection (9)(b), cause an assessment of the impact of any order waiving the benefit of an exemption to be undertaken (an agricultural impact assessment).

(10b) An agricultural impact assessment must address the following:

(a) the value of agricultural industry and associated businesses that may be impacted if the waiver were granted;

(b) the impact of the proposed authorised operations on agricultural industry and businesses;

(c) any proposal for the avoidance or mitigation of adverse impacts on agricultural industry.

(10c) The Court may make any order for costs against a tenement holder it thinks necessary to meet costs incurred in relation to undertaking an agricultural impact assessment.

I will be very brief with this one. This was an amendment that was specifically requested by the Yorke Peninsula Landowners Group. They, in their thorough investigation of different regimes around Australia, discovered that in New South Wales, under that state's strategic regional land use policy, they have a requirement for agricultural impact assessments to be undertaken. The amendment that I have put forward here basically says that, where there is an exempt land dispute that involves farming land or agricultural land, the court will require that an agricultural impact assessment report is undertaken. That report will be undertaken at the cost of the mining company, and that report must be made available to the court before it makes a decision on whether or not to allow mining to proceed on exempt land.

In other words, it is designed to improve the information base on which the decision-maker makes its decision, and it is consistent with other amendments I have moved to say that the court should be paying more attention to alternative and competing land uses, such as farming, and no better way to make sure all the information is there than if a proper agricultural impact assessment is undertaken. People might say, 'Well, that will add to the cost,' to which my response is, 'Yes, if you really want to mine on farming land, you've got to really want to mine on farming land, and it's going to cost you.'

We are trying to make more accessible land outside of farming areas more attractive by making farming land proportionately less attractive. But, if the company really wants to get stuck into farmland, then part of the cost of their doing business is that they will have to seek one of these agricultural impact assessments and pay for it.

The Hon. F. PANGALLO: I will be supporting the Hon. Mark Parnell's amendment. I will not go into much detail as I have already gone through previously the impacts and importance of our agricultural sector and protecting valuable farmland. I think this amendment goes a long way towards helping do that. Looking at and taking into account its value I think is quite important in determining the future of that valuable tract of land. I will be supporting that, and in doing so I will not be moving my amendment No. 15.

The Hon. J.A. DARLEY: I indicate that I will be supporting the amendment.

The Hon. R.I. LUCAS: The government opposes the amendment. This amendment obliges the court, before making a determination in relation to exempt land, to require an agricultural impact assessment. In practice, this means that explorers and miners will have to fund an agricultural impact assessment, whether or not the court considers it is necessary. Under the current legislative framework and under the bill the court has the latitude to consider relevant matters that impact on agriculture.

This amendment mandates in a particular way for every case what must be considered, whether or not they are relevant to that case. In practice, this will be at the expense of the explorer or miner, both in terms of time and cost, creating red tape and reducing the flexibility of the court to direct its investigations according to the case at hand. Notwithstanding that prioritising one industry over all others is anathema to the concept of multiple land use, this amendment is an unabashed attempt to impose a right of veto through the introduction of unachievable process constraints and unaffordable costs. For those reasons, the government opposes the amendment.

Amendment negatived.

The CHAIR: We now come to amendment No. 16 [Pangallo-1].

The Hon. F. PANGALLO: This amendment essentially means that you cannot waiver exemptions that prevent operations within the prescribed distances, even though we have already decided that that has been defeated. That was the extent of this amendment, and I imagine it will not be getting up.

The CHAIR: The Hon. Mr Pangallo, are you moving it?

The Hon. F. PANGALLO: No.

The CHAIR: We are now up to amendment No. 17 [Pangallo-1], which is identical to amendment No. 12 [Parnell-1]. I just need some guidance from the movers, whether that is consequential in their view.

The Hon. M.C. PARNELL: My amendments Nos 12 and 13 are consequential. They relate to the issue we have already dealt with. I will not be moving them.

The CHAIR: I think that applies to your amendment, the Hon. Mr Pangallo, amendment No. 17?

The Hon. F. PANGALLO: Yes, Chair.

The CHAIR: I just want to make sure we get this for Hansard. They are not going to be moved, so now we come to amendment No. 18 [Pangallo-1].

The Hon. F. PANGALLO: It is consequential, I think, Mr Chair.

The CHAIR: Yes, it is, thank you. We have amendment No. 14 [Parnell-1] and amendment No. 19 [Pangallo-1]. The Hon. Mr Parnell has filed his amendments.

The Hon. M.C. PARNELL: Amendment No. 14 is consequential on the vote we have just had. It relates to agricultural impact assessments, so I will not be moving amendment No. 14.

The CHAIR: Thank you. That will also apply, if you agree, the Hon. Mr Pangallo, to your amendment No. 19 [Pangallo-1]?

The Hon. F. PANGALLO: Yes, I will not be moving the amendment.

The CHAIR: The last proposed amendment on clause 9 is amendment No. 20 [Pangallo-1].

The Hon. F. PANGALLO: Again, I think it is consequential, so I will not be moving that.

The CHAIR: Thank you for that. There are no further amendments filed in respect of clause 9.

Clause passed.

Clauses 10 to 21 passed.

Progress reported; committee to sit again.