Bills

Statutes Amendment (Mineral Resources) Bill

Committee Stage

In committee.

(Continued from 15 October 2019.)

Clause 22.

The Hon. M.C. PARNELL: Before I move my amendment, I will ask the minister a question on clause 22. This clause creates a mining register. It is proposed new section 15AA—The register. Subclause (4) provides:

The register will be kept in such forms as the Mining Registrar thinks fit (including in an electronic form).

My question of the minister is: is there anything in this section that requires the register to be publicly available?

The Hon. R.I. LUCAS: The answer is that it is not explicitly provided in the legislation, but the minister in another place has given a public commitment that it will be publicly available and I am reliably advised that my second reading explanation, which I paid great attention to, also gave a similar commitment on behalf of the minister and the government. So there is a commitment from the government to do so.

The Hon. M.C. PARNELL: I thank the minister for his answer. I now move:

Amendment No 15 [Parnell–1]—

Page 24, after line 18 [clause 22, inserted section 15AA]—After inserted subsection (4) insert:

(4a) The Mining Registrar must make all information on the mining register publicly accessible on a website determined by the Minister.

(4b) The Mining Registrar may determine that access to information, or a class of information, on the register is subject to such conditions as the Mining Registrar thinks fit.

(4c) Subsection (4a) does not authorise the release of information on the mining register if—

(a) the release would be contrary to any other Act or law; or

(b) the release would be in breach of an order of a court or tribunal constituted by law; or

(c) the release would involve the disclosure of a trade secret; or

(d) the release would be contrary to any requirement or restriction prescribed by the regulations.

This formally requires, as opposed to an undertaking given by the minister, that the mining registrar must make all information on the mining register publicly accessible on a website determined by the minister. Whilst I move that amendment, and I seek the council's support for it, on the back of the undertaking provided by the minister I will not be dividing if, in the unlikely event that I am unsuccessful, this amendment does not get up. I still think it is worth putting in the bill, so I move the amendment, but I will not divide if it does not get up.

The Hon. R.I. LUCAS: I thank the honourable member for his almost reasonable presentation of his argument. The government, as indicated in another place, opposes the provision for the reasons that the minister outlined in another place, but the intent of what the member is seeking is going to be provided, as I understand it from his comments. I welcome the fact that he is not going to divide on this particular provision, so thank you very much.

The Hon. F. PANGALLO: For the record, SA-Best will be supporting the Parnell amendment.

Amendment negatived; clause passed.

Clauses 23 to 45 passed.

Clause 46.

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

Amendment No 16 [Parnell–1]—

Page 60, lines 10 and 11 [clause 46, inserted section 36(1)(c)(iv)]—Delete 'in accordance with the regulations'

This is a fairly simple amendment. It seeks to delete the words 'in accordance with the regulations'. The background to this amendment is that applicants for mining leases are required to undertake community consultation. The requirement is contained in regulations rather than in the act; therefore, the provision in the bill before us requires reporting on the consultation that was undertaken in accordance with the regulations.

The simple amendment I have moved provides that, regardless of what the regulations may prescribe, the mining companies should report on all the consultation that they have undertaken. There is, of course, a broader issue about whether mandated consultation should be included in delegated legislation or whether it should be a requirement of the act, but I have not gone down that path. It is a minor amendment that requires the mining company to set out the results of all consultation undertaken, even if it turns out in the future that the regulations do not prescribe any.

The Hon. R.I. LUCAS: The minister has advised me that the explanation provided to him by the honourable member, I assume in some discussion at some stage, stated that this amendment, in short, 'ensures that the mining company must report on its public consultation even if no regulations mandating consultation have been created'. I think the honourable member has just repeated words to a similar effect in the chamber.

The minister advises me that if that is the case, then the honourable member appears to have misunderstood the intent of this section. The applicant is required to set out the results of the consultation undertaken in connection with the operations proposed by the application. This disclosure is required to be done in accordance with the regulations, describing who was consulted, their issues and concerns, and any steps taken to address those concerns. A draft regulation for exactly this purpose has already been prepared in discussion with the state's grain producer and primary producer associations. For those reasons, the government is opposing this particular amendment.

The Hon. M.C. PARNELL: I think I understand what the minister is saying. It may be a matter of statutory interpretation as to whether the reference to regulations is a reference to the minimum consultation that must be undertaken or a reference to the details of the report in relation to those consultations. Nevertheless, the minister says that there are draft regulations in the wings. I am hoping that they will satisfy the concerns that have been raised with me by conservation and farming groups. So whilst I move the amendment, I will not divide on this one.

The Hon. F. PANGALLO: For the record, we will be supporting the amendment.

Amendment negatived.

The Hon. F. PANGALLO: I move:

Amendment No 21 [Pangallo–1]—Page 60, after line 27 [clause 46, inserted section 37(1)(a)]—After subparagraph (ii) insert:

(iii) that the applicant has sufficient financial resources to undertake the operations in respect of which the lease is sought; and

This is an important amendment. I am gobsmacked that neither the government nor the opposition saw fit to include it or even provide support for the amendment. This amendment ensures that the applicant has sufficient financial resources to undertake the operations in respect of which lease is sought. Essentially, it will ascertain whether the company involved can demonstrate that they have the financial resources to be able to complete the project.

It prevents companies from undertaking exploration or production and then not having the funds to compensate or rehabilitate. I spoke about this previously when we were going through this bill. I mentioned a couple of places. I mentioned Lambina, and the Treasurer got up and said, 'They are required to remediate the area that they have excavated for opal mining.' Well, it did not happen, simply because of the costs involved in fuel and whatever. They did not remediate: they just left these vast tracts of land.

I want to bring the chamber's attention to an incident reported only this week where an oil and gas explorer was suspended by the Stock Exchange over its rehabilitation liabilities. That gives an indication that there are companies out there that will go out and conduct their exploration and then, when it comes time to rehabilitate, they find themselves without the financial resources to be able to remedy the situation.

In this case NSE ran out of money before it could frack oil and gas wells drilled in the Great Sandy Desert, so it was suspended by the Stock Exchange for not including environmental rehabilitation costs in its financial reporting. I quote from the ABC article by Ben Collins on this, which was posted on 16 October:

The failure to find commercial quantities of oil and gas contributed to a severe economic downfall, and now the environmental liabilities from those wells has led to a suspension from trading.

It goes on:

Company documents show NSE responded to the ASX that the cost was not possible to estimate without visiting the long-abandoned desert exploration wells.

The article further states:

Financial analyst Tim Treadgold has followed the rise and fall of NSE and said an ASX suspension for not disclosing environmental liabilities was unusual. 'The company claims it can't work out what it owes, but quite frankly I've never come across that before,' Mr Treadgold said. 'None of this is rocket science, this is something that is done every day of the week, and I've never seen a company queried for not making provision for that work.'

That is why I think it is important we ensure that if there are mining companies that want to go onto valuable, arable land, they want to dig it up, they want to cause the damage, that they are able to remediate and can show they do have the financial resources to be able to carry out those remediation works. I ask the chamber to seriously consider this amendment.

The Hon. R.I. LUCAS: The government opposes the amendment. The amendment prevents the minister from granting a mining lease unless the applicant has sufficient financing to fund the proposed project. This reflects a fundamental lack of understanding of the development sector and the relationship between project funding and investor certainty.

The regulatory process within the current Mining Act and reinforced in the bill delivers a comprehensive environmental impact assessment proposal and determines whether the state's resources can be commercially extracted in a manner that is environmentally acceptable before any rights to our minerals are granted. If a project is approved it is approved with conditions that protect the environmental, social and economic interests of the project stakeholders and the state. Before a project can commence, financial bonds and insurance must be in place to cover any risk of failure of the project.

The proposed amendment does not provide any greater guarantee that the project will commence at a particular time, nor does it provide any additional mitigation of risk. What it does do is materially constrain the opportunity for companies of all sizes to meet the stringent regulatory requirements required in granting a mining approval. It will prevent all but the largest companies from advancing mineral projects along the development curve and diminish the likelihood of extracting our mineral resources to the advantage of our citizens. In doing so it creates a significant disadvantage for South Australia in its ability to attract investment.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment for the reasons that the Hon. Frank Pangallo set out. Of course, following on from what the minister just said, one of the dilemmas of companies that do not have the financial resources to actually follow through with a mining lease they may have been granted is this issue of uncertainty that I raised before, and farmers have raised it with me.

They say, 'Well, there's a mining company that has rights over my property. We don't know when they're going to get around to exercising those rights. It might be next year; it might be in several years' time. In the meantime I'm in limbo, and I don't know what I should be doing—repairing fences, building sheds, adding value to my property, which might all be undone when the mining company eventually gets to work.' So I think it does make sense, and of course there is the rehabilitation issue that the Hon. Frank Pangallo put.

To put this amendment into context, in the proposed new section 37 there is actually a list of things the minister must take into account before granting a mining lease. As the minister paraphrased, the first requirement is that the land can be effectively and efficiently mined; that is the first criteria. The second criteria is that appropriate environmental outcomes will be able to be achieved. Now, of course, appropriate environmental outcomes are in the eye of the beholder.

So a question I ask on behalf of the School Strike 4 Climate and the thousands of people who have been marching in the streets of Adelaide and elsewhere is: if an applicant for a new coalmine in South Australia was to seek a mining licence, would the minister take into account the fact that the burning of that coal, whether here or elsewhere, would exacerbate climate change? Would the minister take that into account as an appropriate environmental outcome, and under what section of the Mining Act is the minister required to take climate change impacts into account?

The Hon. R.I. LUCAS: I am advised that under the definition section the reference to the definition of 'environment' is all-encompassing, including 'land, air, water (including both surface and underground water and sea water), organisms, ecosystems, native fauna and other features or elements of the natural environment', etc. There is a very long definition of what the environment covers, so an investigation or consideration of environmental considerations would cover all of those issues as per the definition of 'environment' in the act.

The Hon. M.C. PARNELL: I thank the minister for the answer. I think it does go to the heart of it, that the definition of 'environment' has never explicitly included impacts on the world's climate. If I am wrong, and if the minister can point to some part of that definition that explicitly refers to climate—because let's be real here: digging up coal and burning it here or exporting it to another country so that they can burn it is this generation's major environmental issue. As this council has previously resolved, we are in a climate emergency.

I am not aware that ever in the history of South Australian mining and mining regulation in South Australia has a mining department—ever, ever—taken into account the impact of the activities of the mining industry on the climate. If I am wrong, I would be happy to accept the minister's example. For example, where an applicant for a coalmine has come along and the mining minister in South Australia or the department has said, 'You can't do that. That's terrible for the climate.' If you can show me an example, I would be most pleased. I do not believe there is one.

The Hon. R.I. LUCAS: There is no explicit reference to climate change, but clearly in the broad definition of the environment if the minister of the day received evidence or advice in relation to the environmental impact which appertained either directly or indirectly to the issue the member has just raised that would be one of the issues that he would have to consider. But the member is right, there is no explicit reference to the two words 'climate change' in the act or indeed in the definition of 'environment'.

'Environment' does cover all of the issues I assume the honourable member would argue climate change is likely to impact, which is air, water and a variety of other things I would assume directly and indirectly would be the honourable member's argument in relation to climate change impacts or potential climate change impacts. I can only acknowledge that there is no explicit reference to the two words 'climate change' in the definition.

The Hon. M.C. PARNELL: I thank the minister for his answer. As a final observation on this point, if we had in our legal toolkit some of the tools that they have had, for example, in the New South Wales Land and Environment Court, where you did find one of the judges of that court directly took into account the fact that a coalmine would result in coal being dug up, and that coal, whether here or overseas, would be burnt and that the burning of that coal would exacerbate climate change. That was regarded as a legitimate environmental consideration that resulted in a mining project being stopped.

I do not believe we have the tools in the South Australian legal toolkit. We certainly do not have the legal tools in terms of access to justice. There are lots of barriers, including standing. Our own Environment, Resources and Development Court does not have direct jurisdiction over questions like this. Even if they did, no member of society, no conservation group, none of the school kids who have been marching, has a legal right to put their foot within the door of the court. So I think we are a long way behind other states, but those reforms I think are for another day.

The Hon. F. PANGALLO: I would like to ask the Treasurer about 37(1)(a)(ii) 'that appropriate environmental outcomes will be able to be achieved'. In other words, the minister will not grant a mining lease unless the minister is satisfied that the appropriate environmental outcomes will be able to be achieved. We have seen situations in Kimba, for instance, where the possibility of being able to store low-level radioactive waste has been subjected to a ballot in the community. The commonwealth, the federal government, the minister, outlined that there needed to be broad community support. I remember at the time we tried to get a definition of what 'broad community support' meant. I would like to ask the Treasurer: what does 'appropriate environmental outcomes' mean? Is there a definition for 'appropriate environmental outcomes'?

The Hon. R.I. LUCAS: The environment is defined, as I indicated earlier. The minister has to make a judgement in relation to an appropriate environmental outcome according to that particular definition of the environment. It is correct to say that the three words 'appropriate environmental outcomes' is not defined in the act but 'environment' is, and the minister has to respond.

In relation to the earlier request, maybe even a challenge, from the Hon. Mr Parnell, I am advised that OZ Minerals reported on greenhouse gas in their recent Carrapateena application to the government as part of its assessment, so I assume it is done on a case-by-case basis.

Ayes 4

Noes 15

Majority 11

Clause 47.

The Hon. F. PANGALLO: My amendments on file on this clause are consequential, so I will not be moving them.

Clause passed.

Clauses 48 to 52 passed.

Clause 53.

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

Amendment No 17 [Parnell–1]—

Page 71, line 37 to page 72, line 4 [clause 53, inserted section 56G(3)]—Delete inserted subsection (3) and substitute:

(3) If an application is referred to a relevant Minister and the Minister to whom the administration of this Act is committed and the relevant Minister cannot agree on the decision to be made on the application, the application must be refused unless the relevant Minister consents to the grant of the application.

(3a) The grant of a mineral tenement with the consent of a relevant Minister under subsection (3) may be made subject to terms and conditions determined by the relevant Minister.

This issue relates to a matter that I referred to earlier, but I will go into a little bit more detail now. The proposed new section is entitled 'Specially protected areas'. We are looking at a range of areas here, but in particular reserves under the National Parks and Wildlife Act. There are some other areas, I think in the Flinders and Gammon Ranges specifically, that are listed, but anyway, regarding specially protected areas, in a nutshell the regime provides that if the mining minister and the environment minister cannot agree, it goes to the Governor, which, of course, is a euphemism for it goes to cabinet.

My amendment simply provides that if you have an area that is, or should be, specially protected for its environmental values and the environment minister decides that mining is not appropriate, that should prevail. In other words, in a stand-off between the environment minister and the mining minister, the environment minister should win.

People might think that it is more democratic for it to go to the Governor and for the whole of the cabinet to decide. My point is that the environment minister is a person to whom protected areas are a special responsibility. They have a department full of experts who understand the important values of environmental areas. The mining department, on the other hand, whilst it pays lip service, does not have that expertise.

I have one other very quick anecdote. Many years ago, there was an advertisement in the newspaper for an inspector under the Mines and Works Inspection Act—a mining inspector. Out of interest, I applied. I did not apply for the job, but I got the job specs to have a look at it. Interestingly, for a mining department inspector, whose job it was to assess environmental conditions, you had to have a blasting licence, but you did not need to know the difference between an emu and a numbat.

You did not need to have any environmental qualifications whatsoever, but you needed a blasting licence. I thought, 'Well, that sums it up when it comes to the mining department's attitude to the environment.' In those rare cases where we have a specially protected area and the environment minister has a say, the environment minister's view should prevail.

The Hon. R.I. LUCAS: This issue has been ventilated, but the government's position is to oppose the amendment by providing a veto right for the Minister for Environment and Water. This amendment undermines long-established principles that are in place right across the commonwealth to manage disagreements between ministers through the democratic decision-making of the cabinet and the Governor, ultimately, on behalf of the state. The government's position is firmly of the view that people elect governments and cabinets, and cabinet decision-making in this particular area has long been established as the process that is followed. The government supports the continuation of that process.

The Hon. F. PANGALLO: We will be supporting the Hon. Mark Parnell's amendment.

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

Ayes 4

Noes 15

Majority 11

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

Amendment No 18 [Parnell–1]—

Page 73, line 15 [clause 53, inserted section 56H(8)]—After 'determination' insert:

, and reasons for the determination,

The amendment that I move seeks to require the minister to provide reasons for her or his decision. At present, subsection (8) of proposed new section 56H provides:

As soon as practicable after determining whether or not to grant or refuse an application to which this section applies, the Minister must cause notice of the determination to be published in accordance with the regulations.

That is fine, publishing a decision. There are a lot of administrative decisions that are required to be published, but best practice also provides that ministers should provide reasons for their decision as well. My amendment simply seeks to add the words 'and reasons for the determination'.

The Hon. R.I. LUCAS: The government opposes the amendment. The government supports transparency by providing the public with clear and accessible explanations for all significant decisions taken under the Mining Act. This is reflected throughout the bill. The amendment proposed by the honourable member unnecessarily duplicates the requirements within the bill for the minister to prepare an assessment report for an exhaustive list of decisions, which includes:

an application for a mineral tenement;

the ranking of applications for exploration licences about an exploration release area;

an application for retention status;

an application to amalgamate the area of two or more tenements;

an application for a change of operations;

a decision to cancel, suspend or surrender a tenement; and

a decision to exempt a tenement holder from an obligation to comply with the term or condition of a tenement, or from a requirement of the act.

For those reasons, the government will be opposing the amendment.

The Hon. M.C. PARNELL: I will just add that the ability to exempt a tenement holder from a requirement to comply with conditions can include an exemption from environmental conditions. That is all the more reason why the reasons for that decision should be granted. I do not accept that there is a duplication in every case. Certainly, in relation to some of the decisions that the minister referred to, the reasons for a decision can be deduced from other documents, but not in every case and certainly not in cases, as is my understanding, of waiving a person's obligation to have to comply with a condition of their mining tenement.

The Hon. F. PANGALLO: SA-Best will be supporting the amendment.

The Hon. J.A. DARLEY: Likewise, Mr Chairman.

Amendment negatived; clause passed.

Clauses 54 and 55 passed.

Clause 56.

The Hon. F. PANGALLO: I move:

Amendment No 24 [Pangallo–1]—

Page 87, line 40 [clause 56, inserted section 58A(9)(b)]—Delete '3' and substitute '6'

Essentially, this amendment extends the period of time that a landowner can have to serve a notice of objection from three months to six months. I think it is important that a landowner is given reasonable time. I do not think three months would be considered reasonable when you have to take into account so many factors with what could happen to the property. I think property owners deserve enough time to receive the appropriate advice, seek any legal advice that they may wish to have, and prepare reports. I think three months may not be enough time.

The Hon. R.I. LUCAS: The government opposes the amendment for the simple reason that it believes it creates material uncertainty for industry for no material gain for the landowners in that process.

The Hon. M.C. PARNELL: The Greens will be supporting the amendment. We think that increasing the time from three to six months gives more time for negotiation, as much as anything else, and may in fact result in less disputation, so we will be supporting the extension.

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

Amendment negatived.

The Hon. F. PANGALLO: I move:

Amendment No 25 [Pangallo–1]—

Page 88, line 11 [clause 56, inserted section 58A(12)]—After 'land,' insert:

or to a business operating on the land,

This essentially extends the provision from the land to include a business operating on the land. This can be considered a substantial extension. I think it is important that the business and its operations are taken into account.

The Hon. R.I. LUCAS: In putting the government's position, the advice I have relates to what we think are four amendments which would appear to be, to the government anyway, consequential upon each other, so I will speak to the package. The government opposes the series of amendments to clause 56. These amendments reflect a lack of understanding by the honourable member of the current legislative framework and in this case the past 50 years of case law arising from court-led dispute resolution under the Mining Act.

As proposed, the amendment seeks to clarify that a court, in hearing an objection to operations, can determine compensation and should have regard to businesses and structures, not just land. This is how the law already works and has done so since before the 1971 act. If the court is satisfied that the operations on a person's land would likely result in substantial hardship or substantial damage to the land, the court may determine that the land or a particular part of the land should not be used for the purposes of the proposed authorised operations, determine conditions on which operations may be carried out on the land with least detriment to the interests of the owner and least damage to the land, and determine an amount of compensation payable.

The court does not apply substantial hardship or damage to the land in its literal or tangible sense; rather, the court has latitude to consider a much broader view of hardship or damage suffered to that owner's enjoyment or use of their land and activities related to that land. This is not limited to businesses or structures. The honourable member's intent is acknowledged; however, his amendment, in the government's view, is unnecessary.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment. Whilst the minister says that it is unnecessary and that they already take into account the impact on businesses, it seems to me to improve the legislation by adding it. You also have situations, of course, where you have people who are seriously affected by mining activities who might not be freehold owners or even leasehold owners. Ecotourism companies, for example, are using the natural environment, showing people around, creating jobs and wealth for South Australia. They are not landholders. They are not usually regarded as stakeholders when it comes to decisions about mining, and yet their businesses can be affected.

Even if, as the minister says, the issue can be taken to into account, I think the Hon. Frank Pangallo's amendment makes it crystal clear that it is not just damage to the land and that the words 'substantial hardship' would be further clarified, if you like, by including a reference to business operations.

The Hon. J.A. DARLEY: I will be supporting all four of the Hon. Frank Pangallo's amendments.

Amendment negatived.

The CHAIR: We now come to amendment No. 26 [Pangallo-1]. The Hon. Mr Pangallo, is this consequential?

The Hon. F. PANGALLO: Yes, they are, so I will not be moving amendments Nos 26 to 28.

Clause passed.

Clause 57 passed.

Clause 58.

The Hon. F. PANGALLO: I move:

Amendment No 29 [Pangallo–1]—

Page 89, lines 5 to 8 [clause 58(1), inserted subsection (1)]—Delete inserted subsection (1) and substitute:

(1) An owner of land—

(a) on which authorised operations are carried out under this Act; or

(b) in the vicinity of land on which authorised operations are carried out under this Act,

is entitled to receive compensation for any economic loss, hardship or inconvenience suffered by the owner in consequence of authorised operations.

This amendment provides for compensation for the impacts on the land and the impacts on the land in the vicinity of the operations. I think this is an important amendment. It strengthens the protections for the owner of the land to ensure that they do not lose out financially in the event that operations are carried out.

The Hon. R.I. LUCAS: The government opposes the amendment. This proposed amendment seeks to extend the requirement for compensation to some nebulous distance 'in the vicinity of' an exploration or mining operation. The existing regulatory regime, which is retained in the bill, includes multiple protections for all landowners who have the potential to be impacted by exploration or mining operations, irrespective of their proximity to those operations.

First and foremost, any operation must demonstrate that it can be conducted without unreasonable environmental, social or economic impacts before it is approved. The onus is on the proponent to evidence that their proposal is sound. If the proponent cannot demonstrate that it will not result in unreasonable impact, it simply will not be approved. The exempt land requirements under the act also protect the interests of adjacent property owners. Exempt land requirements transgress the boundary of a lease.

I find it easiest to visualise exempt land as a series of circles on a map radiating out from each object that gives rise to an exemption. Wherever the proposed operations intersect those circles, whether or not the property is within the boundary of the tenement, a miner must resolve access to that exempt land before the operations can be undertaken. The bill also retains the requirement for miners to hold significant public liability insurance policies throughout the duration of their operations.

The Hon. M.C. PARNELL: I think this is an important amendment. Whilst the minister is correct in saying that the concept of exempt land does not parallel property boundaries—you could in fact be the next-door neighbour whose house is very close to a proposed mine and therefore still exempt land—it gets to the point where the impact perhaps farther away might still be considerable.

The best example is that you might have someone who is two kilometres from the proposed mine. They have a house very close to a small country lane, a small dirt road, which is going from two motor vehicles per day to two B-doubles per hour. They are not going to get any compensation. They are not exempt land because we are talking about the carriage of minerals down what used to be a quiet little country lane.

The minister's objection seems to be that the Hon. Frank Pangallo has added people who are in the vicinity of land on which authorised operations are undertaken to the list of people entitled to apply for compensation. The minister says that is an uncertain category of people. My view is that any person who is affected by mining—and they are going to have to prove their case; they are going to have to convince the court—should be entitled to apply for and receive compensation for economic loss, hardship or inconvenience.

I note that in other areas governments sometimes step in with ex gratia payments. A classic example would be that as airport noises increase governments have stepped in and double-glazed all the houses and done things like that. In other cases if you live on Portrush Road or South Road you do not necessarily get compensated if the amount of motor traffic increases, but it is nearly always a gradual progression in those situations as societies and cities expand.

However, when you are going from a quiet country lane with two motor vehicles per day to one with B-doubles tearing up and down all hours of the day and night, and you do not live close enough to the mine to be exempt land, then you are out on your own. So I do think this is an important amendment, and the Greens will be supporting it.

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

The Hon. F. PANGALLO: I would like to reiterate what I was saying earlier and what the Hon. Mark Parnell was saying. There are impacts not just on the property owner but also possibly on those nearby. We will probably see a case in point now with the Bird in Hand development, where the goldmine has been proposed there. There are dozens of property owners in the vicinity of that who have concerns that the goldmine, should it proceed, could have enormous impacts on their businesses and their ability to operate effectively and viably as well.

There are many factors that need to be taken into account. It is not just the land that may be used to grow a crop, there could be all sorts of infrastructure on there. There may be dams and sheds and things like that that may well have to be either demolished or moved. It is only fair that there is adequate compensation for that.

Ayes 4

Noes 15

Majority 11

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

Amendment No 19 [Parnell–1]—

Page 89, after line 8 [clause 58(1)]—Insert:

(1a) An owner of land over which a mineral tenement is granted under this Act is entitled to receive compensation for any economic loss, hardship or inconvenience suffered by the owner in consequence of the grant of the mineral tenement (whether or not authorised operations have or have not been carried out on the land).

This amendment and the following Parnell amendment, amendment No. 20, go together, so I will treat the second one as consequential. The main effect of this amendment is to enable an entitlement to compensation for economic loss, hardship or inconvenience whether or not the authorised operations have or have not been carried out on the tenement land.

I canvassed this issue earlier. The Yorke Peninsula farmers in particular have said to me that the uncertainty of not knowing whether mining either is about to commence or will ever commence results in economic hardship to them, and it is a hardship they believe should be compensated. I agree with them, which is why I have moved this amendment. Certainly, where mining activities have already commenced, it is a much easier assessment, but what I think we need to look at is the fact that farmers in limbo are also affected, and they ought be subject to the compensation regime.

People might say, 'Well, this just adds a disincentive to mining companies to be operating in farming areas,' to which my response is, 'I don't mind.' As I have said before, I think the mining industry should focus their attention on land that is not subject to agriculture. Sure, there will be some cases where I think mining will probably be the correct answer in a farming location, but overwhelmingly it will not be. Overwhelmingly, my view is that farming should be allowed to continue and not be subject to running the gauntlet of mining companies wanting to access the land, often for short-term gain which is at the expense of the long-term production of food. As loath as I am to get into a discussion of long and short-term economic benefits with the Treasurer, I will just make that point.

Yorke Peninsula farmers in particular have asked for this amendment, and I am pleased on behalf of the Greens to be moving it for their benefit.

The Hon. R.I. LUCAS: The government opposes the amendment. Under the existing act landowners are entitled to receive compensation for any economic loss, hardship and inconvenience suffered in consequence of exploration or mining operations. The effect of the proposed amendment is to create significant uncertainty for industry and unreasonable expectations on industry in relation to the risk of compensation claims arising during a period even before conducting any work on a tenement. The current act and indeed this bill sets out in great detail the requirements for land access and consultation between tenement holders and landholders, including significant provisions for agreement making between the parties, detailing the terms of access and treatment of any potential losses.

This amendment proposes to treat a very narrow set of circumstances and in doing so introduces an unreasonable expectation. The grant of a tenement creates certainty about the scope of work that can be conducted on that tenement. A lease grant supports rather than constrains a landholder's decisions about investment in their own property. Therefore, it is unreasonable to suggest that not only should a miner be held liable for any impact on investments made by the landholder, as is entirely reasonable in the case under the current scheme, but also for any impact arising from a landholder's decision not to invest in their property.

I note that landholders receive annual rent for their land from a mining leaseholder starting from the day a tenement has been granted irrespective of when operations might commence. Whilst it is not compensation per se, this rent is additional to any other payments that may have been negotiated under a land access agreement.

The Hon. F. PANGALLO: We will be supporting the amendment.

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

Amendment negatived.

The CHAIR: We come to amendment No. 20 [Parnell-1].

The Hon. M.C. PARNELL: That is consequential, so I will not be moving that.

The CHAIR: We remain on clause 58 and we come to amendment No. 30 [Pangallo-1].

The Hon. F. PANGALLO: I see that this would probably be consequential as well to what we have done previously, so I will not be moving that amendment.

The CHAIR: The next amendment I have here is amendment No. 31 [Pangallo-1].

The Hon. F. PANGALLO: Essentially, this just clarifies what 'agricultural industry' includes. Again, it is probably consequential. It just clarifies that 'agricultural industry' means it carries on the business of agriculture, pasturage, horticulture, but it is consequential so I will not be moving it.

Clause passed.

Clause 59.

The Hon. F. PANGALLO: I move:

Amendment No 32 [Pangallo–1]—

Page 89, lines 34 to 38 [clause 59(1) and (2) (inclusive)]—Delete subclauses (1) and (2) and substitute:

(1) Section 62(1)—delete subsection (1) and substitute:

(1) An applicant for a mining tenement must, before the application is granted under this Act, enter into a bond of such sum and subject to such terms and conditions imposed by the Minister as ensure, in the opinion of the Minister, that—

(a) any civil or statutory liability likely to be incurred by the applicant in the course of carrying out authorised operations; and

(b) the present and future obligations of the applicant in relation to the rehabilitation of land disturbed by authorised operations, will be satisfied.

(1a) A tenement holder must, on or before the day falling 3 months after the commencement day, if the tenement holder has not already done so before the commencement day, enter into a bond in such sum and subject to such terms and conditions imposed by the Minister as ensure, in the opinion of the Minister, that—

(a) any civil or statutory liability likely to be incurred by the applicant in the course of carrying out authorised operations; and

(b) the present and future obligations of the applicant in relation to the rehabilitation of land disturbed by authorised operations, will be satisfied.

This is the requirement for compulsory bonds and agreements. The two parts of this amendment are to distinguish the bonds payable by the applicant and the bonds payable by the tenement holder. I think that the lodgement of these bonds and the ability of a company to be able to actually lodge these bonds is important. More stringent requirements regarding the bonds are placed on the applicant as well as the mining tenement holder. It is incumbent upon them to be able to place those bonds, and they will also be able to be accessed in the event that something does go wrong.

The Hon. R.I. LUCAS: The government opposes these amendments, which introduce clauses that seek to make bonds payable prior to the grant of a tenement or within three months of the commencement of the amendments. Given the payment of a rehabilitation liability bond is a prerequisite before any work can begin on a mine or quarry, the proposed amendment provides no additional protections to landowners and the community for new operations that are not already provided through the framework in the existing act and the bill currently before the committee.

The process for assessing the quantum of a bond involves a comprehensive technical assessment of the operating plans for mining and quarrying operations as the value of the bond relates specifically to the works that need to be carried out to rehabilitate the approved operations. These operating plans are generated in accordance with the terms and conditions of a granted lease.

It would be highly unusual, then, that it would be even remotely possible to assess accurately the appropriate value of a bond before a tenement is granted. In short, the proposed amendment is not only unnecessary but also, in the government's view, impractical.

The Hon. M.C. PARNELL: The Greens support this amendment. I referred in earlier parts of the debate to what I think is a failure of the rehabilitation system. Certainly, other states are looking at whether they are in fact securing sufficient guarantees or bonds up-front before allowing mining operations to take place, because history shows us that the amount that is collected, especially in the event of the insolvency of the operator, is usually insufficient.

I cited the examples of Linc Energy's underground coal gasification project in Queensland. The taxpayers will pick up that bill. Brukunga, which was the textbook one here in South Australia, incurred 10 times more in rehabilitation costs than was ever extracted from that pyrite mine. Taxpayers footed the bill. BHP, in a stroke of genius, sold the liability back to the South Australian government, and we are still paying for it as taxpayers.

I think this amendment adds some value. I want to see mining companies absolutely nailed down at the first possible opportunity to provide sufficient bonds and guarantees for things that history tells us often go wrong, especially when we get to the rehabilitation stage.

The Hon. J.A. DARLEY: I support this amendment.

Ayes 4

Noes 15

Majority 11

The CHAIR: We remain on clause 59 and we come to amendment No. 33 [Pangallo-1]. The Hon. Mr Pangallo.

The Hon. F. PANGALLO: This is probably going to be consequential as well. It is just a clarification regarding the bond money and enables the bond to be paid from any bond paid by the tenement holder, but I think it is consequential so I will not be moving that one and I will not be moving amendments Nos 34 or 35, right through to No. 38.

Clause passed.

Clause 60.

The CHAIR: The Hon. Mr Pangallo, you have indicated that you will not be moving amendment No. 35 [Pangallo-1].

The Hon. F. PANGALLO: That is correct.

The CHAIR: Are amendments Nos 36, 37 and 38 consequential?

The Hon. F. PANGALLO: Yes, they are. I will not be moving those.

Clause passed.

Clause 61.

The CHAIR: I now come to amendment No. 39 [Pangallo-1].

The Hon. F. PANGALLO: That is consequential; I will not be moving that.

Clause passed.

Clauses 62 to 82 passed.

Clause 83.

The Hon. F. PANGALLO: I move:

Amendment No 40 [Pangallo–1]—

Page 98, lines 33 to 41 [clause 83(17)]—Delete subclause (17) and substitute:

(17) Section 70B(10)—delete subsection (10) and substitute:

(10) A program may be developed under this section even though it may relate (wholly or in part) to exempt land on the basis that the tenement holder will seek to gain access to the land under a waiver of the benefit of the exemption (however, a program must not be approved until any proceedings in relation to whether or not a tenement holder has access to the land have been finally determined in accordance with section 9AA).

This ensures that an approval to mine cannot be approved and access is not granted under a waiver of exemption until access to the land has finally been determined and confirmed. I think it is important that everyone needs to be fully aware of what is going to take place on that land before any formal approvals are given. My amendment is actually quite similar to the Hon. Mark Parnell's.

The Hon. M.C. PARNELL: I think the Hon. Frank Pangallo is right in that they cover the same territory. The issue that was put to me by farming groups was that the mining department has such confidence that mining access to exempt land will always be granted that they were proceeding to give all the approvals even though the mining company had not yet formally resolved the dispute over exempt land.

The particular part of the process that was put to me was in relation to PEPRs (programs for environment protection and rehabilitation). The minister was signing off on these even though the exact parcels of land to which it would apply had not yet been secured. It was regarded by the farming community as inappropriate and premature. My amendment addresses that particular issue.

The Hon. Frank Pangallo's amendment, whilst not exactly the same, is basically similar. It says that, whilst you can start to develop your program, you cannot actually get a program signed off until all of the disputes with all of the farmers have been resolved. It effectively covers the same territory. In the interests of making the committee's job easier, I will not move my amendments and instead I will support the Hon. Frank Pangallo's amendment.

In regard to my amendment No. 21 and then another two amendments to a subsequent clause, which are consequential, I will leave those and put the Greens' weight behind the Hon. Frank Pangallo's amendment.

The Hon. R.I. LUCAS: The government opposes the proposed amendment. The proposed amendment seeks to remove an express provision to allow the minister to approve a program for environmental protection and rehabilitation over exempt land before the tenement holder obtains a waiver. In the case of the Hon. Mr Pangallo's amendment, he seeks to outright prohibit such an approval. The express provision in the bill was introduced to ensure the state cannot be leveraged by either party during exempt land negotiations between a landowner and explorer or miner.

I reiterate that under the law as it currently stands under the bill, an operating approval granted prior to access to any relevant exempt land being resolved cannot undermine the requirement for a waiver to be in place prior to undertaking any operations that impact on that exempt land.

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

The committee divided on the amendment:

Ayes 4

Noes 15

Majority 11

Amendment thus negatived; clause passed.

Clause 84 passed.

Clause 85.

The Hon. M.C. PARNELL: I will not be moving amendments Nos 22 and 23; they are consequential to an issue that we have already canvassed.

Clause passed.

Clauses 86 to 92 passed.

Clause 93.

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

Amendment No 24 [Parnell–1]—

Page 107, line 13 [clause 93, inserted section 70HD, penalty provision]—Delete '$150,000' and substitute:

$5,000

My amendment, I think, is identical to the Hon. Frank Pangallo's amendment No. 41. I think mine was filed first but I think we are on the same page. The intent of this amendment is to retain the criminal penalty for a person who, without lawful excuse, obstructs or hinders a tenement holder in the reasonable exercise of rights conferred under this act. At present, that penalty is $5,000. This bill proposes to increase it to $150,000.

This is aimed fairly and squarely at farmers and environmental protesters who, for example, in relation to climate change, might want to exercise their democratic right to stand up and put themselves on the line against climate-wrecking projects. That is what this is aimed at, let's be clear. An increase in a fine from $5,000 to $150,000 is, in my time in this parliament, unprecedented. We often see fines go up; in fact, putting up a fine is usually a government's standard response when it knows it should do something but does not really want to do anything so, 'We will just bump the fines up'—that is what governments do. But to go from $5,000 to $150,000 is clearly taking aim at environmental protesters.

There is no evidence that the existing penalties are not an adequate deterrent and that legal consequences that are already in place do not actually deter most people. If we wanted to go back through the history of environmental protests, what we would find is that we had situations, as occurred up near Olympic Dam some years ago, where protesters were blocking the road. They were treated so appallingly by police. A little girl—I think she was 10 or 11, I cannot remember the exact age—was pepper sprayed. They were locked in a shipping container, and at the end of the day the Supreme Court awarded them hundreds of thousands of dollars in compensation for the mistreatment that they received at the hands of the STAR Force. That is the history of environmental protest at mining sites in South Australia.

Most people who engage in this protest know that there are laws to stop them doing it. They know that by putting themselves on the line they are going to be subject to fines and they do it anyway because they see the greater good as being them standing up for the planet, standing up for the environment. A $5,000 fine will dissuade most people other than those who are absolutely committed. Putting the fine up to $150,000 is simply the government's attempt to say, 'Don't you dare try to interfere with a mining project, in any way whatsoever.' I think it is an appalling abuse.

It has not been substantiated by any evidence presented in this parliament. It is not as if the government or the minister in another place trotted out this great long list of major farmer protests against mines or environmental protests and said, 'Clearly, the existing penalties aren't sufficient; we better put them up to $150,000.' No evidence whatsoever has been provided that the existing penalties do not deter most people. To be honest, even the $150,000 will not deter some people. I bet you it will not deter young people. You cannot get blood out of a stone. In my experience, some of the most courageous activists have been those with the fewest assets because they cannot afford to pay the fines anyway, so they have nothing to lose.

Really, this is just the government saying to the community, 'Don't you dare interfere with a mining operation, regardless of what it is, whether it is a uranium mine or a coalmine. Don't you dare interfere because we are going to throw all of the resources of the state at you.' This is an appalling provision, the Greens are opposing it, and we will be dividing on it.

The Hon. F. PANGALLO: As the Hon. Mark Parnell pointed out, this amendment is quite similar to my amendment No. 41, which I will not be moving. I strongly support and endorse the comments of the Hon. Mark Parnell. This is draconian. It takes a sledgehammer approach to people's rights to be able to express their views, whether they are environmentalists or whether they are farmers who may have an issue to take up.

As the Hon. Mark Parnell has pointed out, it is clearly aimed at the environmental protests. We have seen them recently in other states. They have not been as obvious in South Australia; nonetheless, there are far more serious criminal offences that carry much lighter penalties than this does. It is $150,000. It echoes and magnifies the real intent of this bill; that is, it really is open slather for the miners.

It opens the door for them and makes it much easier for them. It tries to silence any opposition and intimidate people into not trying to oppose whatever activity is going on there. I think it is totally draconian and out of step. If it is to act as a deterrent, we already have laws in place and appropriate penalties. I agree with the Hon. Mark Parnell that it may well not act as a deterrent; nonetheless, that figure of $150,000 is just ridiculous. I will be supporting the amendment.

The Hon. R.I. LUCAS: The government opposes the amendment. The penalty for the offence was increased to reflect all other offences under the act. It is a criminal offence that must be prosecuted in court for the penalty to be applied. A maximum penalty of $5,000 is so low that it is unlikely to be in the public interest to incur substantial legal costs in a criminal prosecution to recover such a penalty.

The Hon. J.A. DARLEY: I certainly agree with the comments made by the Hon. Mark Parnell and will be supporting the amendment.

The committee divided on the amendment:

Ayes 4

Noes 15

Majority 11

Amendment thus negatived; clause passed.

Clauses 94 to 106 passed.

Clause 107.

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

Amendment No 25 [Parnell–1]—

Page 117, lines 34 and 35 [clause 107, inserted section 74(2)]—Delete 'the Minister or the Director' and substitute:

—

(a) the Minister; or

(b) the Director of Mines; or

(c) any other person with the permission of the ERD Court.

This and my following two amendments relate to a similar issue; they are not consequential but are three separate issues, and I will be moving them all. This first one I will treat as a test, in terms of divisions. I will still move the other amendments but I will not divide on the other amendments to this clause.

An honourable member interjecting:

The Hon. M.C. PARNELL: I am getting some dissatisfaction expressed; I can divide on them all if members wish. This amendment simply seeks to bring this piece of resource legislation into line with every other piece of resource legislation in South Australia. Other acts that deal with how we use land and how we look after the environment or treat the environment or impact on the environment all contain the ability for citizens to civilly enforce the law.

We have talked about civil enforcement in other legislation but, put quite simply, as an environmental lawyer many years ago my advice to people, when they were complaining that something bad was happening to the environment, was to say to them, 'The first thing you want to do is get the proper authorities to do their job properly.' In other words, lean on the Environment Protection Authority, lean on the mining department, lean on the Department of Primary Industries, lean on government officials who are charged with enforcing our public laws, and get them to do their job properly.

If they do not, if for some reason they refuse or are reluctant to do their job properly, then the law of South Australia overwhelmingly provides that citizens can step in, they can go to court, and they can say to the court, 'This person is breaching the law and I want some orders to effectively make them stop. I want the law of South Australia upheld.'

We have the right to bring cases like that in anything to do with the planning system; civil enforcement under the Development Act. If you believe someone has not complied with the law, any citizen—that is the test, anyone; 'any person' are the words in the act—can go to court and argue that this person is not complying with the law and the court should make them.

That provision in the Development Act has been replicated in the Planning, Development and Infrastructure Act. It is regarded as such a fundamental democratic right that even this new planning system has it in. I have plenty of complaints about the new planning system, but it is included in there. Similarly, the Natural Resources Management Act, which deals with feral animals, weeds and water licences, has a provision in it that says citizens have the right to enforce the act. Civil enforcement is written in.

We are just rewriting all those laws at the moment; in fact, the Landscape South Australia Bill is still before the parliament and those provisions are still in there. Civil enforcement is still there. Under the Environment Protection Act, dealing with pollution and waste, the right of citizens to enforce the law has been there since 1993. You can go through a whole range of other laws—public laws reflecting public policy—that relate to the protection of the environment or the use of natural resources and they all have the right for citizens to go to court when the proper authorities are not doing their job and someone is breaking the law, and you can get an order to remedy the situation.

These provisions are powerful, but they are rarely used. But what they do, in my view, is act as a silent sentinel. The fact that these powers exist means that our public authorities most of the time do comply with the law, they do insist on legislation being followed and they do follow due process, because they know that if they do not citizens who are watching can step in, go to court and remedy the situation, and that is embarrassing to them. So civil enforcement of public environmental and resource laws is a fundamental right.

But there is one set of laws that does not have it and has never had it, and that is the mining laws. The reason it does not have it is quite simple: it is the pecking order of industry in this state. Mining is at the top. Mining is untouchable. Citizens have no rights in relation to mining, and that has been replicated in this bill. Civil enforcement is a basic democratic right, if we believe in the rule of law, yet here we have effectively the Mining Act being rewritten and citizens have to rely entirely on the minister and the department to do their job properly, and if they do not do their job properly there is nothing anyone can do about it.

People might say, 'Well, you've always got the right of judicial review. You could always go to the Supreme Court with a writ of mandamus or certiorari' or something—one of those old Latin things we learnt in law school—it does not happen. There are so many barriers to doing that that it is as rare as hen's teeth. Civil enforcement is also incredibly rare, but at least it gets your foot in the door, whereas with all of these other Supreme Court administrative remedies you first have to argue standing.

We have seen in the past court cases in South Australia where conservation groups, for example, have had to go to ridiculous lengths to get standing. A classic example was when the Conservation Council tried to oppose a luxury resort and golf course in the Flinders Ranges, and they had to go to court and argue an economic interest. They said, 'Court, we have a gift shop, and we sell tea towels with pictures of the Flinders Ranges on them; therefore, we have an economic interest and therefore you should let us have this court case.' It is a ridiculous situation. It is far better in resource legislation to include a guaranteed right of civil enforcement.

These three amendments relate to that topic. Like I say, I am going to treat the first as a test, but I will also move the others and explain them. This is such a fundamental right that the Greens are going to strongly urge all members of this chamber to support this amendment.

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

The Hon. F. PANGALLO: I thank the Hon. Mark Parnell for his comments there. It is quite a contentious matter that he has raised. We will support the amendment.

The Hon. R.I. LUCAS: The government opposes the amendments. The amendments proposed by the honourable member seek to empower any person to seek a civil remedy to allow for public enforcement in cases where the regulator cannot or will not act. This would include, for example, a mining company seeking civil remedies against an owner of land for hindering mining operations.

There is no evidence to support that this proposed amendment is necessary. Such rights will undermine confidence in the regulator and deter investment from the sector due to risk of activism, legal costs and significant delays. The nature of the evidence required to prove a breach, the cost of taking action (financial and emotional) and the possibility of vexatious litigation for commercial or personal gain are all reasons why the clause, in the government's view, is not only unnecessary but also ill-advised.

The Hon. M.C. PARNELL: It is in the hands of the committee as to how we go. As I said, I will treat that as a test, but it might make more sense if I actually speak to the other amendments to this same clause now. Would that assist?

The Hon. R.I. Lucas: Just give us time to divide if you are going to divide. Are you dividing?

The Hon. M.C. PARNELL: Yes. I will be quick. I am happy to deal with this one and then I will come back. I do want to respond to what the minister said.

The Hon. R.I. Lucas: I do not want to delay lunch.

The Hon. M.C. PARNELL: I will speak to the other amendments when we get to them.

Ayes 4

Noes 15

Majority 11

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:15.