Bills

Statutes Amendment (Mineral Resources) Bill

Committee Stage

In committee (resumed on motion).

Clause 107.

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

Amendment No 26 [Parnell–1]—

Page 117, after line 35 [clause 107, inserted section 74]—After inserted subsection (2) insert:

(2a) Before the Court may grant permission under subsection (2)(c), the Court must be satisfied that—

(a) the proceedings on the application would not be an abuse of the Court; and

(b) it is not unlikely that the requirements for the making of an order under subsection (1) would be satisfied; and

(c) it is in the public interest that proceedings should be brought.

(2b) If an application under this section is made to the Court by a person other than the Director of Mines—

(a) the applicant must serve a copy of the application on the Director within 3 days after filing the application with the Court; and

(b) the Court, must, on application by the Director of Mines, join the Director as a party to the proceedings.

(2c) An application made under this section by a person other than the Director of Mines may be made in a representative capacity (but if so, the consent of all persons on whose behalf the application is made must be obtained).

Amendment No 27 [Parnell–1]—

Page 119, after line 38 [clause 107, inserted section 74]—After inserted subsection (16) insert:

(17) Without limiting the generality of subsections (11) and (16), in determining whether to make any order in relation to the provision of security, or the giving of an undertaking, or in relation to costs under those subsections, the Court may have regard to the following matters (so far as they are relevant):

(a) whether the applicant is pursuing a personal interest only in bringing the proceedings or is furthering a wider group interest or the public interest;

(b) whether or not the proceedings raise significant issues relating to the administration of this Act.

The last division was on the question of whether or not people—citizens, community groups—ought to be able to civilly enforce the legislation. The committee in its wisdom decided that they did not want that reform, but I still move amendments Nos 26 and 27 but I will not divide on them; we have tested that issue. Amendment No. 26 goes to something that the Treasurer said earlier on in his explanation as to why the government was refusing to give citizens the same democratic right they have in every other piece of land use legislation, when he suggested that the proceedings might be abused, or I think he used the word 'vexatious'.

The importance of amendment No. 26 is that it makes the court the gatekeeper of who is entitled to bring civil enforcement proceedings. I need to put this on the record because it is not a question of frivolous and vexatious proceedings getting up. The court is obliged; they must be satisfied that the proceedings would not be an abuse of process. They also must be satisfied that it is not unlikely that the requirements for the making of an order would be satisfied.

There is bit of a double negative in there, but it is not unlikely, which means that there are some prospects of success. They have to show that it is not an abuse of process, they have some chance of success and, thirdly, it is in the public interest that the proceedings be brought. That is a pretty tough bar for anyone to cross and yet the government and the opposition both believe that this area of South Australia's resource law does not or should not have the same democratic rights that other resource laws have.

I just wanted to put that on the record because, as I said in relation to the previous clause, these are not powers that are exercised lightly or flippantly or frivolously. They are exercised only very rarely, but what they do is provide an incentive to decision-makers to make their decisions properly and according to law because there is at least that chance or a possibility that if they do not do their job properly they will be called to account by the community and that someone, an individual or a group in the community, will go to the court under a civil enforcement procedure and the court will find that, yes, the law has been broken. They will probably incidentally find that, yes, the minister and the department should have done something about it and did not. I think it is a real shame that this committee today is not going to be supporting civil enforcement.

With that, I will not divide on this, but I certainly move amendment No. 26 standing in my name and I will simultaneously move amendment No. 27, which is a provision that I have moved in relation to other legislation. Basically, what it says is that if the reason someone has gone to court, a conservation group for example, is because they are bringing proceedings in the public interest or they are bringing it not for purely selfish reasons but on behalf of a wider group in society and if the proceedings raise significant issues in relation to the administration of the act, then the court should take that into account in deciding whether to award costs against them or whether to order them to provide security for costs or undertakings as to damages, because they are the financial hits that often come to people who do not win court cases.

It gives the court some discretion to say, 'Well, they had a good chance, it was in the public interest, but for whatever reason they didn't quite get over the line. So they might lose the court case but we are not going to order costs against them or any of these other adverse monetary orders.' I think the combination of amendments Nos 26 and 27 would have made civil enforcement, if the committee had been willing to accept it, a very sensible and responsible addition to the community's armoury of tools to ensure that our environment is protected and our resources are properly managed. I am happy for the amendments to be voted on together, but I am in the hands of the council.

The Hon. F. PANGALLO: I rise to say that SA-Best supports the Hon. Mark Parnell.

The Hon. J.A. DARLEY: I will be supporting those amendments.

The Hon. R.I. LUCAS: The government opposes them.

Amendments negatived; clause passed.

Clauses 108 to 122 passed.

New clause 122A.

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

Amendment No 28 [Parnell–1]—

Page 127, after line 22—After clause 122 insert:

122A—Insertion of section 91AA

After section 91 insert:

91AA—Appeal by interested person on certain matters

(1) This section applies in relation to the following matters:

(a) the grant of a mineral tenement under this Act;

(b) approval of retention status under section 33B;

(c) approval of a change in operations under Part 8B Division 7;

(d) a decision to cancel, suspend or surrender a mineral tenement;

(e) a decision to exempt a tenement holder from an obligation to comply with a term or condition of a mineral tenement, or from a requirement of this Act.

(2) A person (other than a tenement holder) may, with the permission of the ERD Court, exercise a right of appeal against a matter to which this section applies if the person can demonstrate an interest in the matter.

(3) Before the ERD Court may grant permission under subsection (2), the Court must be satisfied that the proceedings on the appeal—

(a) would not be an abuse of the process of the Court; and

(b) raise an issue or issues of significant importance; and

(c) are in the public interest.

(4) A decision of the ERD Court to grant permission under subsection (2) may be made subject to such conditions as the Court thinks fit (including that the person provide security for the payment of costs).

We are getting to the business end of this debate; this is the last of my amendments. When I first drafted this I thought it was a long shot, but we would give it a go. The current Mining Act does not have a right of third-party appeal, and I think it is an important democratic measure. I knew a number of farming groups and conservation groups would like to have the ability to appeal against mining tenement decisions, but I did appreciate that it was a novel provision.

Then we saw the newspaper this week—and I alluded to this before—where we have the dispute in the Adelaide Hills with the winery and the prospective mining company next door to each other and the mining company has appeal rights to challenge the ability of the winery to expand. The winery wants to build a new restaurant, a new cellar door, put a car park in for visitors and do various things. The mining company has a right to go to the ERD Court and bring a third-party appeal on the merits against the planning approval that has been granted to the winery.

When you look at that you think, 'Oh well, I guess it should be fair both ways; surely the winery should have the opportunity to go to a court and appeal on the merits against the mining licence that may be granted to the mining company.' However, no such right exists. That just brings into stark contrast the difference the government sees in different types of development: there is a right to appeal in the planning system, there is no right to appeal against mining.

I think that is patently unfair. As I said before, I cannot see the mining company's appeal against the winery's expansion as anything other than payback for the legitimate environmental questions the winery and its neighbouring wineries have been asking, particularly in relation to groundwater.

The solution to that is in the hands of this council: we can give third parties, such as the neighbours of a proposed mining project, the right to go to the umpire and test whether or not the mining approval should have been given. That is what this amendment does, this inserted new clause 122A.

Of course, it is not an absolute right. I think I have quite responsibly built into this provision a requirement that the court must be satisfied that any appeal would not be an abuse of the process of the court, that it raises issues of significance and importance, and is in the public interest. Those three elements all have to be met. It is not as if a trade competitor, vexatious litigant or mere troublemaker is going to get a foot in the door of the court. It has to be a legitimate case, but it seems to me, as we saw in the newspaper the other day, what is good for the goose should be good for the gander.

If Terramin is able to challenge the winery's business in a court of law, why ought not the winery be able to challenge the mining company proposing a far more disruptive development next door? I would urge the committee to support the inclusion of new clause 122A, which gives third parties the right to appeal against certain mining decisions.

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

The Hon. J.A. DARLEY: Likewise, I will be supporting that amendment too.

The Hon. R.I. LUCAS: The government opposes the amendment. These proposed amendments seek to create new rights relating to merits review and third-party appeals in the Mining Act in respect to a range of decisions under the act. The government acknowledges that the honourable member has been consistent and unsuccessful in previous attempts to insert full merits review rights into the legislation.

The government does not support opening up decisions between the regulator and the applicant in respect of Crown minerals to third parties, because there is no evidence to support that it is in the public interest. Such a move creates significant risk of increased costs and delay and vexatious proceedings by third parties with ulterior purposes, such as commercial gain, giving rights to those not directly affected by a decision to frustrate the exploitation of the state's resources.

South Australia already faces significant natural barriers to attracting investment in the minerals that consistently make up more than a third of our export economy without introducing artificial hurdles. These proposed amendments, like many of the amendments moved by the honourable member, increase time and cost uncertainty for proponents looking at South Australia without delivering, in the government's view, public value.

The committee divided on the new clause:

Ayes 5

Noes 15

Majority 10

New clause thus negatived.

Remaining clauses (123 to 190), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (15:43): I move:

That this bill be now read a third time.

The Hon. D.G.E. HOOD (15:43): My considering the bill and coming to the conclusion that I will be unable to support it in its current form has been a difficult process. Frankly, I find myself in a position I would rather not be in. I have left it until the third reading to make any comments as I was hopeful the bill may have been substantially amended over the course of our deliberations here in the chamber so that I may be able to support it, but that has not eventuated.

The principal reason for my inability to support the bill is the fact that, in my estimation, it is weighted simply too heavily in favour of the mining industry and against the rights of agriculture and farming. Given that both mining and farming stakeholders and industries agree that an independent review would be useful to help navigate a way through what is obviously a complex situation, I see no reason why an independent review should not proceed.

That said, one of the many appealing aspects of being a member of the Liberal Party is that it in effect endorses a member's right to disagree with the party position at times and to vote accordingly. I strongly believe that other political parties are the poorer because they do not afford their own members the same opportunity as my party does. I wish to emphasise to my Liberal colleagues that this will be one of the very rare occasions on which I choose to exercise that right.

I take this opportunity to place on the public record that neither the Premier nor relevant ministers have in any way sought to influence me to vote in favour of the proposed legislation. I thank and commend them for honouring party principles, not only in the technical sense but in the general spirit in which those principles are intended. Liberal members enjoy freedoms that other political party members do not.

I would also like to address speculation in the media and elsewhere that there is some sort of implacable division in our party that has arisen due to this issue. This is certainly not the case in my experience; in fact, I see no evidence to support it. Debate has always been respectful, cordial and even beneficial for members involved. We are, of course, a party comprising individuals with varying opinions on some matters and we occasionally respectfully agree to disagree. Again, this is exactly as it should be, in my strong view; it makes for healthy debate and genuinely true democracy. To be clear, I am unable to support the bill in its current form and will oppose the third reading.

The Hon. M.C. PARNELL (15:45): When I started my remarks on this bill, I acknowledged that a 44-year-old, middle-aged piece of legislation would benefit from reform, so I supported the process of reforming the Mining Act. I think it could have been done a lot better; they could have presented us with a brand-new Mining Act rather than with hundreds of amendments.

But, still, I supported the second reading of the bill because I thought that, with appropriate amendment, we could get this bill into a shape that better balanced the competing rights that are out there in the community. Those rights are: the rights of farmers to be able to grow food and fibre for us; the rights of nature to exist, especially in protected areas but elsewhere as well; and the rights of the community to have a say over how its resources are allocated. This is the balance that should be struck by modern mining legislation, and I think this bill fails that test and fails it abysmally.

The balance has not been correctly struck. In fact, what has happened is that this bill simply perpetuates the status quo as has existed for the last century or so, and that is that, in the pecking order of economic activity, mining is on the top and everything else comes underneath it. That is the pecking order, that is the natural order, and that is what this bill perpetuates. I do not accept that that is the way society should make decisions about how we use our resources. There are competing uses, they need to be balanced and this bill does no such thing.

The Hon. Dennis Hood mentioned review—I agree. I think a review, a proper process, hearing from all the stakeholders, would have been an excellent idea. When this parliament was first created after the last election, and I was reappointed to the Environment, Resources and Development Committee, one of the first things we do on that committee is look at suitable topics for review. The first one my list was this topic: access to land for mining and farming. It struck me that this was an issue that was emerging and if that committee could inquire into it we could add great value to the legislative process. That did not find favour; the committee decided not to go down that path. I wish we had.

So the Greens' position will be, having supported the second reading in the hope that sensible amendments would pass, that we now find ourselves unable to support the third reading—I will be voting against it. I would also like to add my profound disappointment that nearly half the members of this chamber, in particular opposition members, chose not to engage in the committee stage of the debate. A simple statement at the start saying, 'Well, we're not going to support any amendments at all,' and then not further engage I do not think gives any credit to them.

I know that people are watching this debate—many over on Yorke Peninsula are (I have had text messages). They are sitting around the computer, watching this debate. One of them said, 'Labor hasn't said much.' Well, that is an understatement—virtually nothing. I think it is an appalling way for Her Majesty's Loyal Opposition to approach the legislative process, to not engage in debate on any of these 60 or so—I think it was in the end—amendments that we put forward. That does no credit to the Labor Party.

Whilst the debate has been respectful, has not been marred by unruly interjections and we have worked our way through the issues, I am disappointed that not a single amendment got up. I think the farming community will be disappointed. At least one Yorke Peninsula farmer rushed in the car to get down here for the vote—and I thank Brenton for his attendance—but I know that farming communities across South Australia are very disappointed in the outcome today and I share in their disappointment. The Greens will be voting against the third reading and, if the numbers are against us, we will be calling 'divide'.

The Hon. F. PANGALLO (15:49): Today, the mining sector will be rejoicing at the passage of this bill. They got what they wanted, and perhaps more, but it is a sorry day for our farming community. They will get virtually nothing out of this overhaul of an archaic mining act but prospectors casting a shadow over their future.

I would like to say that I have no objection to mining. We know that it is one of the two main economic drivers of our economy. The other, of course, is agriculture, which delivers a considerable 20 per cent of our state's bottom line. Our state was founded on, and has benefited enormously from, agriculture, but this is an extremely dry state in extremely unpredictable climatic times. Just 4 per cent of this vast expanse of country is considered arable land.

In an age when we are contemplating the very future of our planet's ability to sustain life, we need to do everything to ensure humans can actually sustain themselves. Food and water are going to be the biggest commodities in years to come, and we need to start building protections for them, not make it more difficult for the short-term gain promised by mining company royalties.

Yes, we do need mining revenue. Our entire country's economy is reliant upon what we dig out of the earth. It pays for a lot of things we need to maintain our growth as a strong First World powerhouse in the Asian region, but let's not forget what is on top of our earth or the people who have toiled it for generations to keep our state, and also our nation, moving ahead: the farming community. If they cannot produce, life will inevitably come to a standstill.

It is vital that we can strike, and try to strike, a balance between these two sectors. Farmers in this state already have it stacked against them because the government has first rights over what lies metres below the surface. No matter what they do, or how successful they are, if there is a valuable resource beneath they are always going to be at risk of having to make way for the intrusion of miners.

I would have hoped that this bill would strike a balance of fairness, but it does not. Farmers will feel badly let down, not just by the initial authors of this legislation—the previous Labor government—but by the current Liberal government, which has truly trampled over their traditional heartland.

I will not lump all members of the Liberal Party in the same basket. I will acknowledge the decisions of the members in the other place who put their convictions ahead of party policy: Fraser Ellis, Steve Murray, Dan Cregan and Nick McBride, who chose to cross the floor in opposition to the bill. In this place, the Hon. Terry Stephens and the Hon. Dennis Hood will do the same. I was a little harsh on the Hon. Terry Stephens earlier this week—

Members interjecting:

The Hon. F. PANGALLO: Hardly vitriol, as the Treasurer put it, but I do respect the stand he has taken in an impassioned defence of the rural sector and his difficult call to now do something foreign to him—and the same for the Hon. Dennis Hood—to vote against the party they are serving and the one that the Hon. Terry Stephens has served diligently for nearly 18 years.

Apart from Dennis Hood, he was the only speaker in the upper house, other than, of course, the introduction by the Leader of the Government. Therefore, I am somewhat disappointed in some other Liberal members, who had raised the hopes of the farming community before the 2018 election that they would look after their interests.

When he was shadow minister for primary industries and regional development, the Hon. David Ridgway sent out a press release, dated 2 November 2017, in which he said that the Liberals were in no hurry to rush the bill through, and he then had the audacity to call on the crossbench of the upper house to support the Liberals' position. Let me quote him:

The Liberal Party will absolutely not be rushing this through the Parliament before consultation is finished and until we’ve had adequate time to carefully review the entire Bill and its implications.

Grains Producers SA are supportive of our position and we hope that the crossbench in the Legislative Council support our position too.

We can’t progress this Bill until the local community has had a chance to have their say.

There are a number of unresolved issues with this Bill, especially around compensation for landowners and land access issues.

We want to ensure that farmers and regional communities are protected…

The Liberals and Mr Ridgway did not really listen to them. Nor can you say the Hon. David Ridgway really meant what he said. Farmers can rightly argue that there are not the protections they were promised, although even they did not expect they would get the right of veto on their land, nor would we have perhaps supported that measure. Yet, the very issues the Hon. David Ridgway raised in that press release and what he wanted to achieve were contained in the raft of amendments filed by myself and the Hon. Mark Parnell, and neither he nor the Liberals supported my motion not to rush the bill and to refer it to a committee.

Not one on the government side of the chamber indicated any support for them, and neither did Labor. Only the Hon. Terry Stephens and the Hon. Dennis Hood have spoken, and the Treasurer as the Leader of the Government. He was left to defend his party's capitulation in the committee stage. Mr Ridgway, who was so outspoken about this bill in opposition, has been nowhere to be seen in this debate. I hope my divisions and those of the Hon. Mark Parnell did not greatly inconvenience him in his ministerial duties.

When I was in Paskeville last month, many anxious farmers told me how they felt let down by the Liberals. I will exempt Mr Ellis here and the others who have shown considerable support for them since this bill was introduced. They also told me how Mr Ridgway and others from the party reassured them before the 2018 poll not to worry about the bill because they would fix it up, just vote for them.

The Liberals know there are no votes for Labor on Yorke Peninsula, where 95 per cent of some of the best grain country in the world is under an exploration licence. It is a safe seat for them. Our candidate, Sam Davies, put up a solid fight against Fraser Ellis, and who knows what would have happened in Narungga if they knew they would be sold out.

They also take advantage of the fact that farmers are placid people who diligently go about their hard work and rarely do they raise a heckle in protest. I told them at Paskeville they are too nice, that they needed to show more of the anger that they were feeling. But they are truly nice, 'salt of the earth' people who seem used to climbing mountains put in their way. They are the same resilient types on the West Coast. I trust they now have the memory of an elephant.

As for Labor, their silence has been deafening. Nobody really raised their ire in objection, not even the members who come from our regions. Only the Hon. Clare Scriven spoke at the second reading in this place.

I now hold concerns that the Liberals will probably back away from their support on the moratorium on fracking for gas in the South-East. Meanwhile, we still have some farmers who are being dragged through the courts by recalcitrant mining companies. Farmers like Neil and Jackie Harrop, who are facing a civil claim. It is distressing to see what has happened to them. I hope we do not see repeats of this ruthless behaviour and conduct once this bill passes and is assented to. I would like to thank the Hon. Mark Parnell and the Hon. John Darley for their support of my amendments. I will close by saying that I oppose the third reading of this bill.

The Hon. R.I. LUCAS (Treasurer) (15:59): I was not going to make a contribution, but I do want to place on the record some brief closing remarks in response to some of the other comments at the third reading. I want to generally thank members for the respectful way in which I think the majority of the debate has been conducted in the chamber. We have completed the debate within good time, and everyone has had the opportunity to express their views one way or another in relation to the various amendments during the second and third reading debates on the bill.

So I thank all members for their contributions during the debate. However, I do want to respond to a couple of things that have been raised at the third reading. I acknowledge the great difficulty that my colleagues the Hon. Mr Stephens and the Hon. Mr Hood have had in reconciling their loyalty to the party; nevertheless, they have balanced the interests on behalf of the farming community and mining resources representatives in South Australia.

Reasonable people can make reasonable judgements and come to differing decisions about these sorts of issues. The fact that they and some members in the House of Assembly came down on a different side to the overwhelming majority of the Liberal Party is, as the Hon. Mr Hood and the Hon. Mr Stephens have indicated, one of the strengths of our party; that is, we allow people to make those mature judgements and ultimately to express their views, if they so choose, in a vote in this house.

It is a strength. It is one of the reasons I was attracted to joining the Liberal Party 140 years ago (it seems) and representing the party in this particular chamber. It is not a right to be abused because, if it is, it can tear a party and a government apart. It is nevertheless an acknowledged strength and capacity within our party. I have been in here long enough to see members of the Labor Party who strongly expressed views about other issues. The end result was that they were excommunicated from the Labor Party, jettisoned to the dustbins of history and described as rats and scabs for the rest of their earthly lives.

That is not the way we conduct ourselves in the party. I am obviously disappointed that they have come to a different judgement to the judgement that I and others in the party have made, but I respect their right to do so and the respectful manner in the way in which they have conducted themselves in terms of the debate in this particular chamber.

There are another two things that I would like to respond to quickly. The Hon. Mr Pangallo must know different farmers to the farmers I know. I can assure the Hon. Mr Pangallo that he needs to get out a bit more often because the farmers I know are not backwards in coming forwards. If they have a very strong view that disagrees with the view you have, they have no reservation at all in expressing that view strongly and without holding back.

I can only encourage the Hon. Mr Pangallo to get to more Paskeville shows in the future because I can assure him that, on a whole range of issues, farmers will represent their views very strongly. There might be the odd occasion, the odd issue, where they express very strongly differing views to the Hon. Mr Pangallo and his party. I can think immediately of some issues that may well be addressed in the parliament in the not too distant future. I am not going to be diverted other than to say that I do not believe our farmers and regional communities are backwards in coming forwards. I believe they express their views strongly.

I know that some of them will be disappointed with the position that the Liberal Party has adopted on this issue, but I respect the fact that ultimately the vast majority of them will make a judgement as and when it is important—that is, at the time of elections—as to what is in the overall best interests of farmers and regional communities. I have every confidence in the views that my party and the government put on behalf of regional communities in particular.

The final point I would make is that the Hon. Mr Pangallo was making some comments in relation to the government's rush to get this legislation through. I am not sure what sort of time continuum the Hon. Mr Pangallo works on, but in my estimation there has been an 18-month or 20-month period since the March election. We are now in October the year after the election, and we are finally voting on it. If that is rushing, I would hate to see what taking a long time would be in relation to consideration of any particular matter.

With that, on behalf of government members in general, I do want to thank my colleague the minister in another place, who has had a difficult task in terms of trying to reconcile competing views within our party room and within the community generally. He is a hardworking and assiduous minister, a person for whom I have great respect, and I want to place on the record my acknowledgement to him but also to his hardworking officers and in particular the advisers who kept me out of trouble mostly in terms of the committee stage of the debate.

Ayes 14

Noes 7

Majority 7