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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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MINING (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 22 July 2010.)

Clause 71 passed.

New clauses 72 and 73.

The Hon. M. PARNELL: These new clauses are part of a package of measures to include the Burra Monster Mine site within the definition of exempt land under section 9. Mostly we have been dealing with section 9 in clause 6, which is the clause that was to be recommitted. However, if the committee wants to deal now with the question of Burra I can do so, or it can be deferred until after we come back to clause 6.

The Hon. P. HOLLOWAY: I move:

That consideration of new clauses 72 and 73 be deferred until after consideration of clause 6.

Motion carried.

Clause 6.

The Hon. M. PARNELL: I move:

Page 6, after line 4—Insert:

(1) Section 9(1)—after paragraph (bb) insert:

(bc) the land marked as the Burra Mines Historic Site in the map in Schedule 1; or

This is back where we were, on Burra. This amendment seeks to add to the list of exempt places in section 9. Under the Mining Act, 'exempt land' is land that cannot be subject to a mineral exploration licence or a mining lease unless certain conditions are met. At this stage I will say that there is another related amendment, and I will regard this as a test, I guess, for three amendments.

The first amendment is this change to section 9; the second is a test for the inclusion of the schedule, which is a map of the Burra Monster Mine area; and the third amendment is in Parnell-4, a set which has been fairly recently tabled. Again, it is an amendment to section 9, and basically provides that the exemption of the Burra Monster Mine from mining cannot be waived. The reason I put that in (and I put in a similar one relating to Arkaroola) is that under the waiver provisions the owner of land can actually agree with the mining company that the exemption does not apply. I have sought to make the protection for the Burra Monster Mine site a protection that cannot be waived, which means that the parliament needs to decide whether or not the Burra Monster Mine site will be open for exploration and mining.

That is a bit convoluted, by way of background. To get back to the merits of the issue, the fact that a company called Phoenix Copper is keen to reopen the old Burra Monster Mine historic reserve for the purpose of exploring for copper—and, if successful, mining that copper—has been discussed in this chamber previously. The reason we are dealing with it in this bill is that under the Mining Act a previous minister reserved this area from the operation of the act. In other words, it has already been exempted, if you like, from the operation of the act, and there is now an application before the mining minister to lift that reserve status. If the reserve status is not lifted then exploration and mining cannot go ahead.

I am still hopeful that the mining minister will make a decision in favour of protecting the heritage of the Burra Monster Mine site without the need for this particular amendment, and the minister may tell us shortly whether or not he has yet made a decision. If he has not made a decision then my amendment seeks to treat the already protected monster mine reserve as further protected, if you like, by being incorporated into the exempt land category.

I do not propose to go through all of the details as to why this historic area is worth protecting. Members would know that it is heritage listed; they would know that the reason it is currently reserved from mining is to protect those heritage values. I would hope that members would agree with me that the long-term protection of this site is in the best interests of not just the state's heritage but also the people of Burra and their ability to promote their town as an historic mining town with heritage that is properly protected.

The final thing I will say about the merits is that members may be aware that the World Heritage Convention may eventually apply to this site because there is currently an application before UNESCO to list a range of sites that relate to the heritage that Cornish miners took with them around the world, and that would include, in South Australia, areas such as the Copper Triangle and also the area around Burra.

The purpose of my amendment, as I have said, is to add to the category of exempt land the already protected Burra Monster Mine site. Support of this amendment will give it that extra level of protection that would ensure that if mining is to go ahead in the future it will be a decision of the parliament rather than a decision of the mining minister of the day.

The Hon. P. HOLLOWAY: The Hon. Mr Parnell's amendment proposes to amend the sections in the act relating to exempt land for the purposes of exempting the land known as the Burra Mines Historic Site from mining operations. The government does not support the amendment. The government considers that there are already stringent controls in place to protect the heritage values of the site, and the government is committed to retaining these values.

The government recognises that the Cornish mining heritage at Burra is one of the best examples in Australia. The site is currently covered by a number of historic and heritage covenants. The Burra Mines Historic Site, also known as the Monster Mine Reserve, was reserved from the Mining Act back in 1988. In the first half of 2010, Phoenix Copper, holder of the exploration licence surrounding the township of Burra, lodged a proposal to lift the reserve to allow drilling exploration beneath the existing historic open pit mine.

The company's proposal outlines the geological reasoning for a potential undiscovered copper mineral system deep beneath the mine reserve. PIRSA established a public consultation process on the company's proposal, and almost 50 well-considered public submissions were received. PIRSA has been comprehensively reviewing the submissions and documenting all of the issues raised during the consultation, and I will be briefed by PIRSA when that review and analysis are completed.

I will also be consulting with the Hon. Paul Caica, Minister for Environment and Conservation, and other cabinet colleagues on the breadth of issues raised during the public consultation. I would add that the exemption of land from mining operations in relation to historic mining sites is quite common practice. There have been a number of these through the Adelaide Hills, for example, where former gold mines operated. Clearly, the historic value of those sites is recognised and, indeed, historically PIRSA and volunteers from the department have put a lot of effort into preserving that part of mining history.

In relation to Burra, it is important that all of these issues be considered appropriately so that the best decision can be made. In relation to those structures on site, they are clearly covered by heritage agreements, as they should be, and there would never be any suggestion that any of those historic buildings and the like would be impacted by any mining activity. Indeed, the only question that is before the government is: if there is the potential for a major economic resource of state significance, should we know that fact in relation to considering whether that resource could be exploited for the benefit of the state in such a way that it may not disturb the historic values of the site? To enable us to come to that is something that we need to consider.

As I just mentioned, there have been some very well considered public submissions in relation to the importance of it. From my point of view, as mining minister, I would not want to be party to any proposal just to reopen a mine to eke out the last percentage of resources. I do not believe that that would be in the public interest.

The issue that we do have to consider—and, ultimately, the government will be considering it—is whether we should at least enable sufficient exploration on the site to determine whether there is some resource of state significance there. All of these issues can be, and will be, considered within the context of the Mining Act. We have dealt with such issues before, and I think governments have always come down to decisions that recognise the mining history of this site while still enabling the potential for mining wealth of the state to be examined. So, that is where the government is at at the moment. We certainly do not support this amendment. There are controls in place, and the government will be giving very close consideration to the matters that I have just outlined before we would contemplate lifting any reserve over the Burra area.

The Hon. D.W. RIDGWAY: For similar reasons that the government has outlined, I indicate that the opposition will not be supporting the Hon. Mark Parnell's amendment. We certainly see the historic and heritage value of the Burra mine today, and that should absolutely be preserved. That area made a significant contribution to the early development of South Australia and the growth of our fledgling economy. I think we share the view that we should know, if commodity prices have risen and if there are significant ore reserves, and maybe we should look at ways to mine those reserves that do not impact on the historical and heritage value of the monster mine area.

I expect that it is a decision that a government or a minister would make and recommend to cabinet. I think all of us respect the very important heritage value of the site itself and the equipment and facilities that are still there as part of the old mine. They are very important historic items that need to be preserved. I do not think it would matter which flavour government we have, whether it is as we now see federally a Green-Labor coalition or a Liberal government in the future, I suspect that those values will be upheld and those areas will not be adversely affected. However, we do not see this as the appropriate way.

We have always held the view that we should not use the Mining Act to stop mining; there are other ways. If a decision is made that an area should be exempt from mining, perhaps there are other mechanisms to do so; the Mining Act is not the way to do it. So, we are not supporting this amendment.

The Hon. M. PARNELL: In the minister's response, he referred to the process that his department was going through in relation to assessing the application by Phoenix Copper for the reserve status to be lifted. Can the minister give us any further guidance as to the time frame for the department to finish its deliberations and for the minister to make a decision?

The Hon. P. HOLLOWAY: Without trying to sound facetious, I think it will take however long is necessary for us to be happy with the result.

Phoenix Copper put a proposal, and if the government were to lift any exemption then, clearly, it would have to have very stringent conditions upon such lifting. If one was to go down that path, clearly, conditions would be placed on it as to what activity could be undertaken and so on. All of that would have to be considered if one was to go down that path.

The two alternatives are that either the government says no or it might say, 'Under certain conditions there might be some exploration which would indicate a potential reserve,' and then you would go back to the drawing board in relation to what might then happen. Effectively, I suppose, they are the two alternatives, without trying to double-guess what the department will recommend. Remember this will all be done in consultation with the Minister for Environment, as required under the act, if I recall correctly. It is a cabinet process, and we are well ahead of that. We are not interested in anything that might just try to eke out some remnant resource.

The only grounds on which I would need to be satisfied before I would put it forward would be if there was some prospect of a larger state significant resource which may be under the reserve or adjacent to it where the company has licences. If perhaps through some underground mining, for example, it could be accessed under there and they needed to make it viable, then that would be the sort of conditions where one might contemplate some exploration that would not have any impact on the current reserve. We are really getting into hypotheticals here.

The department would need to be very clear about what the company is proposing before it could give any consideration at all to an exploration program. We are certainly not interested in anything that would just extend current activities to eke out the remainder of the reserve because, clearly, that would not be in the public interest. However, we have not yet ruled out the potential that there may be a state significant resource lying in that vicinity and whether or not some exploration should be allowed to determine it.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 6, after line 4—insert:

(1) Section 9(1)—after paragraph (d) insert:

or

(e) the land declared to be a sanctuary under the name Arkaroola—Mt. Painter Sanctuary on 15 February 1996 (Gazette 15.2.1996p1144):

This is the amendment that has focused a great deal of interest in the community. This is the amendment that seeks to protect the iconic Arkaroola Wilderness Sanctuary from mining. The method used in this bill to achieve that result is the same method that we have just been discussing in relation to the Burra Monster Mine, and that is to add the Arkaroola Wilderness Sanctuary to the list of exempt land that is not subject to mineral exploration or mining.

Before I go to some comments about why I believe this is the appropriate treatment for this particular area of South Australia, I want to make a few more comments about the mechanism that I have used. This will be a test amendment for two other amendments that I have on file. One of the amendments on file basically provides that this exemption cannot be waived. Now what that means is that it cannot be waived by the owner of the land. That is important, and in fact it was a loophole, if you like, in the original amendment I put forward, because the owner of the land is technically the Crown, because the Arkaroola Wilderness Sanctuary is still technically a pastoral lease.

It is Crown land, and it has been operated as a wilderness sanctuary, but the ownership rests with the Crown. So if the waiver provisions were to remain that would mean that the Crown as the owner could agree to waive the protection that I am hoping this parliament will impose on Arkaroola. So this amendment is also a test for that.

Another point I want to make in relation to the mechanics of this is that this amendment is a test for an amendment to the schedule as well. That amendment proposes that, whilst the Arkaroola Wilderness Sanctuary is to be protected from exploration and mining, that protection does not extend to the very thin sliver of land on the eastern boundary of the wilderness sanctuary that overlaps the Beverley Four Mile uranium deposit. I have specifically excluded that area from the operation of the exemption.

I think that is important because it says that this amendment is about protecting the biodiversity, the heritage, the geological and the scenic values of Arkaroola; it has nothing to do with uranium mining. In fact, I have said on many occasions that the Greens' opposition to mining in Arkaroola has nothing to do with the fact that the people currently there—Marathon Resources—are looking for uranium. They could be looking for marshmallow or clotted cream for all we care. The important thing is that the damaging activities that are part and parcel of exploration and mining have no place in this area.

I want to also just reflect briefly on the comments that the Hon. David Ridgway made in relation to the appropriateness of using the Mining Act to effectively classify an area as off limits to mining. He questioned whether or not that was the appropriate way to go. I would say that it is because, if you look at the Mining Act, one of the first things that it does is dedicate certain areas of the state as mineral land. In other words, it establishes where you can mine and, as members would know, that is about 95 per cent of the state.

In fact, there are very few areas of South Australia that are not open to mining in some way or another. So the act classifies where you can mine; the act also classifies through the exempt land provisions areas where mining should not occur. So I see it as entirely consistent to list in the act itself some areas which are going to be off limits to mining. That is why I have taken this approach.

Members might also recall that I have in the past moved for the protection of Arkaroola using different mechanisms, in particular, using the National Parks and Wildlife Act. That is another way of proceeding, because the Arkaroola Wilderness Sanctuary is in fact listed as a sanctuary under the National Parks and Wildlife Act, but the simple fact of the matter is that that act is not before us; the mining act is before us, and this is now a good opportunity for this parliament to finally make a decision about the protection of Arkaroola.

In terms of why this area is so important, I have had a fair bit to say about this over the years, and I am not going to give a full ecological, biological, geological lecture on the importance of this area. It came to the attention of many of us only through the deplorable waste in the wilderness scandal, where Marathon Resources was caught having dumped illegally thousands of bags of waste in the wilderness sanctuary, and as a result this area has been put onto the radar of South Australians.

People are starting to talk about Arkaroola and its values. What excites me is that the conversations that I am having with South Australians are from such a variety that it would be hard to imagine. I have done joint press conferences with Senator Nick Minchin. The honourable senator and I probably agree on very little, but we do both agree on the protection of Arkaroola. The Hon. Iain Evans, the member for Davenport in another place, again has for many years been advocating the protection of Arkaroola.

This is not something that the Greens have just dreamt up. This is something that a great many prominent Australians and South Australia have been calling for. I could also add to that list—whilst I do not put him in the necessarily the category of our most prominent scientists—even Ian Plimer, with whom I agree on almost nothing, who agrees that Arkaroola is worth protecting for its geological values. There are people in the mining industry, who are normally champions of opening land up for exploration and for mining, who agree—some privately, many publicly—that Arkaroola is too important to mine.

Most recently, members would recall the first new species of frog discovered in 35 or 40 years, I think it was, was discovered in Arkaroola. Conversations that I have had with people like Professor Mike Tyler indicate that we know very little about the ecology of the Arkaroola Wilderness Sanctuary. There is no doubt that there are species that have yet to be discovered hidden away in the ravines, the crevices and the rock pools of Arkaroola. This is an important area and it does need to be protected from mining.

I will also point out that, in the event that this amendment is unsuccessful, it is my hope that there will nevertheless be some consensus in this chamber about an appropriate level of protection that might be one step below absolute prohibition. I have another amendment on file, which is the amendment set Parnell 5, which looks to legislate existing levels of protection contained in the development plan that covers this area of the Flinders Ranges; in other words, taking existing provisions for the protection of this landscape out of a non-legislated document—the development plan—and incorporating it into the act itself. I think that would be a compromise that may well result in the same thing that the Greens want to achieve and that is to set the bar very high in relation to Arkaroola.

Mining companies should be under no illusion that this is an area that they are going to be able to mine very easily, not until a whole range of other options has been explored. The existing levels of protection, which, I think, people believe are stronger than they really are, talk about the protection of areas like this in a way that says they should only be exploited when you have fully exploited other equivalent resources, outside of this zone. Is this the last possible uranium deposit left in South Australia? No. It is probably 1 or 2 per cent, maximum, even if you accept the exaggerated, inferred resource figures that Marathon Resources likes to put out. This is, in fact, in many ways what should be the least prospective area for uranium mining, not the most prospective.

I may have a bit more to say in terms of questions once we get into the debate. I wanted to put on the record that the effect of this amendment is the prohibition on exploration and mining. It does not affect the uranium deposit at Four Mile. It is a provision which says, if Arkaroola is ever to be mined, that is to be a decision of the South Australian parliament and not a decision simply of a minister acting alone.

The Hon. P. HOLLOWAY: In relation to the latter, I can assure the honourable member that the current thinking that any decision to mine, and by that I mean going beyond exploration, at Arkaroola would not be a decision for a minister alone. It would be a decision for the government as a whole. The Hon. Mr Parnell's amendment proposes to amend the sections of the act relating to exempt land for the purpose of exempting the land known as the Arkaroola—Mount Painter Sanctuary from 'mining operations'. The government does not support the amendment.

The principles underpinning the Mining Act seek to provide certainty and transparency for all stakeholders. The amendment bill introduced by the government further strengthens the level of regulation and enforcement for all exploration and mining operations across the state. The government recognises that the Flinders Ranges has some of the most recognisable and loved landscapes in South Australia, with outstanding landscape, environmental, cultural and tourism values. The Northern Flinders Ranges is also one of the most geologically diverse and prospective areas in Australia, with a long history of exploration and mining and potential mineral and energy resources of national and international significance.

Indeed, it is interesting that we should be debating this measure on the centenary of the first discovery of uranium in this region. Exploration has been conducted more or less ever since over the past century and, indeed, some exploration—I believe the first one—was taken out by camel for Madame Curie nearly 100 years ago. However, it is, as I think everyone would agree, a unique area of the state, particularly since you have the concentration of all these values—the outstanding landscape, as well as this diverse and prospective area.

I recently visited the Northern Flinders Ranges and Arkaroola with the Premier and the Minister for Environment and Conservation. I was very lucky this time. The previous time I had been there it was in the middle of the drought and a very dusty day, but when we were up there it was an extraordinary clear day and the unique character of Arkaroola and the Northern Flinders Ranges was on show, particularly the untouched landscapes of Freeling Heights and Mawson Plateau. Incidentally, that is where that new species of frog was found. That area is virtually a wilderness and I do not think anyone would suggest that that part in particular should ever be mined. Certainly, that is not my view.

Clearly visible when we were up there was the well-run Beverley uranium mine and the new northern discoveries that have been made north of Beverley. You can clearly see it from the edge of the Flinders Ranges. Beverley is a strictly regulated mine at both state and commonwealth levels and is demonstrating that best practice mining operations can be achieved in this environment. Incidentally, that mine, of course, is not a surface disturbing one.

In 2009, the government initiated a broad ranging scientific study on the landscape biodiversity and resources value in the Northern Flinders Ranges to see whether we could reconcile these competing issues. The scope and direction of the study acknowledged the existing broad scale objectives and principles already in place in the Northern Flinders Ranges Development Plan. The study outlined iconic landscapes and areas of unique character which would be deserving of further protection and controls on access, and I have already mentioned the Mawson Plateau and Freeling Heights in relation to that. The study also identified areas across the entire Northern Flinders Ranges of high mineral endowment and high resource potential for a range of mineral commodities. That went well beyond Arkaroola.

The government consulted on the study findings through 'Seeking a Balance' which was released in late 2009. It is clear from that consultation process that there have been projections put forward by both those from what one might describe as mining interests and conservation interests of the proposed management or access zones which sought to provide more specific detail beyond the guidelines under the Flinders Ranges Development Plan. The government acknowledges the views strongly expressed and, as a consequence, we are continuing to assess the environmental, cultural and conservation values in the Northern Flinders Ranges (and that was indeed recommendations of some of the better researched submissions in relation to that proposal), as well as the potential for significant mineral and energy resources in the region.

Importantly, the government is closely reviewing opportunities for further protecting the highest values of the Northern Flinders. The state has well established conservation and heritage legislation. It is through these acts that the government will consider future conservation initiatives in the northern Flinders Ranges. The Mining Act—and this is relevant to the debate we just had on Burra—does not mention specific regions of the state where mining can or cannot take place, but rather sets out the framework for assessment to protect broader state interests.

The honourable member said earlier that 95 per cent of the land in this state is available for mining, but I think that mining companies would strongly beg to differ with that. Of course, some land is not available because it is in singly proclaimed parks. Other land is Aboriginal land that may have other restraints on it. You cannot mine within a certain distance of dwellings, so in much of the built-up areas clearly mining would not take place, and I am sure the Hon. Mr Parnell would be the first to object. We had a debate in question time about maps of areas, and the Leader of the Opposition was talking about 800 metres. If you had a map of the state where 95 per cent of mining could take place, I am sure there would be many areas where, for all sorts of reasons, you would not want mining to take place. It was a throwaway line from the honourable member, I understand, but in reality there is much less of the state that is effectively available. The other area of restraint I could mention is the Woomera protected area, which has other restraints. There are many controls on mining, and appropriately so, right across the land.

In his comments the Hon. Mr Parnell mentioned Marathon and its history. There are measures in this bill that seek to increase penalties and implement other measures to improve the government's capacity to control development. In relation to Marathon I should put on the record that one of the things I saw when I visited Arkaroola earlier this year was that Marathon has restored a number of tracks in the area in which it has explored which had been made by previous exploration companies. For anyone who visits Arkaroola and goes on that wonderful ridge-top tour, those tracks were made by mining companies, and there are a number of other tracks sprawling across the countryside, some of which are eroding badly. There are also tracks which, during its recent exploration, Marathon had restored, and it was pleasing to see that following recent rain those tracks were far less visible, even after 12 months of that work being done, than some of these earlier tracks that had been made 20, 30 or 40 years ago. I put that on record to give some balance to the argument.

There has been some disturbance of this area in the past with 100 years of exploration, but there are still parts that have been untouched, such as the Mawson Plateau, which most people would agree ought to remain that way. We have to again balance up these competing interests. The government is still in the process of doing that, and we will be making a decision on further access controls or conservations within Arkaroola, and they will be based on sound scientific evidence and prudent multiple land use management principles. We should not be prescribing particular regions any more than we would be doing in the Mining Act in other areas, such as Flinders Chase or Wilpena Pound, which are exempt from mining under other pieces of legislation. The national parks legislation does not specifically mention particular parks.

The Hon. M. Parnell interjecting:

The Hon. P. HOLLOWAY: The principles and management are established under the act. If one wishes to add to them, one can do so, presumably, through legislation. However, in relation to the issues of Arkaroola the government does not believe—for the same reasons that applied in relation to the Burra mines—that these have to be assessed during proper scientific analysis. I should point out that if one looks at the history of Arkaroola in relation to exploration there has been more or less a 100-year history; it has been somewhat one and off but virtually continuous. Part of the reason for this is that when it was first established by the Spriggs one of the conditions supported at the time was that exploration would continue. That fact does not make decision-making in 2010 any easier.

However, the government will reach its final position on this. As I said, just like with Burra there were a number of well-researched submissions in relation to the area. It is a quite significant area and, because of its size, one can classify different parts of it, as we attempt to do in the 'Seeking a Balance' document. While that has not been successful, I think we would be prepared to say that the process does indicate a need for more work in relation to those environmental, cultural and conservation values. Indeed, the discovery of that new species of frog was probably a case in point.

Generally speaking, these issues such as the future of mining in Arkaroola are issues on which there are significantly divided views within the community, but the way to deal with it is not through amending the Mining Act in this way.

The Hon. D.W. RIDGWAY: I guess the opposition knew that the government would not support the Hon. Mark Parnell's amendment, and there has been significant commentary in the media about the opposition's position and whether it would support the Hon. Mark Parnell's amendment or whether it would support the current position of the government. It would be fair to say that the party has taken some considerable time on this. The debate was adjourned when parliament last sat, and I know that the leader, Isobel Redmond, along with a number of the team, visited Arkaroola over the break. We have also had a couple of lengthy meetings to arrive at our position.

It is interesting to note that when you look at the 'Seeking a Balance' document (to which I will refer shortly), although it is discounted by some stakeholders in this debate as being perhaps not as robust as it should be, the document nonetheless does refer to the development plan. This is where the opposition has arrived at its position, and I can indicate that it will not support the Hon. Mark Parnell's amendment.

It is the opposition's view that, under the current development plan that the minister referred to, the Land Not Within a Council Area (Flinders), in particular, is in the environmental class A zone. I will read what is contained within this zone, because I think it will help explain what the opposition is trying to achieve. The document provides:

The objectives and principles of development control that follow apply to that part of the land which is not within the area of a council and which lies within the Environment Class A Zone, shown on maps LNWCA(F)/1 to 31—

which, of course, are the maps in the development plan. It is interesting to note that the Marathon Resources exploration lease lies entirely within the environmental class A zone. The document continues:

The objectives expressed in this section are additional to those expressed for Flinders.

So it is additional for this zone A. It further provides:

Objective 1: The conservation of the natural character and environment of the area.

Land in the area is of extremely high landscape, wilderness, environmental and scientific value. These qualities make an attractive natural environment containing little evidence of human impact. New structures need to be restricted to shelters and rainwater storage for walkers and persons on horseback and to structures ancillary and adjacent to existing buildings.

It is recognised that a number of substantial buildings, including some nine pastoral homesteads as well as the Angorichina Tourist Hostel, have been developed in the Environmental Class A Zone and it may be necessary that further small-scale development or the expansion of existing groups of buildings occurs.

Any such development needs to be in keeping with the existing use of land and in close proximity to the principal group or buildings on the land. It should be of an appropriate scale and sited, designed and constructed in a manner sympathetic to the environment.

Grazing activities should be conducted so as to maintain the natural attributes of the area. Clearance of native vegetation needs to be restricted.

The conservation of the environment and landscape is the paramount aim and consideration in the Environmental Class A Zone.

Objective 2: The protection of the landscape from damage by mining operations and exploring for new resources.

Mining operations should not take place in the Environmental Class A Zone unless the deposits are of such paramount importance and their exploitation is in the highest national or state interest that all other environment, heritage or conservation considerations may be overridden. Deposits which may potentially have the required degree of significance have been identified in the following localities only: the western face of the Heysen Ranges; portion of the Moralana Valley; portion of the Mount Hack and Mount Uro areas; portion of the Stirrup Iron Range; portion of the East Gammons and the Mount Painter-Freering Heights area.

Objective 3: Roads which do not unduly disturb the natural character and beauty of the area.

Improvement to existing roads...in the Environmental Class A Zone is envisaged but care is required to ensure that work does not unduly disturb land forms, vegetation, wildlife and aesthetic and other qualities which contribute to the conservation value of the area. At creek crossings, care needs to be taken to minimise damage to vegetation by road works. Fords should generally be used and when erosion controls are needed the use of natural stone spillways on the downstream side of creek crossings should be considered. No new roads should be constructed.

To safeguard the quality of the environment, access to areas not served by a road...needs to remain difficult. No new tracks (as distinct from roads) should be constructed and the use of existing tracks by vehicles also needs to be restricted.

It then goes on to state:

Principles of Development Control.

The principles of development control expressed in this section are additional to those which apply in the whole of the land not within the area of a council.

These, I think, are the important points:

1. Development should not impair the natural and scenic features of the area.

2. Native vegetation should not be cleared in the Environmental Class A Zone.

3. No new roads or tracks should be formed...in the Environmental Class A Zone.

4. No mining operations should take place in the Environmental Class A Zone except where:

(a) the deposits are of such paramount significance that all other environment, heritage or conservation considerations may be overridden;

(b) the exploitation of the deposits is in the national or state interest;

(c) investigations have shown that alternative deposits are not available on other land in the locality outside the zone; and

(d) that operations are subject to stringent safeguards to protect the landscape and natural environment.

5. No buildings or structures, including transmission line, towers, antennae, should be erected in the Environmental Zone Class A other than:

(a) simple shelters and rainwater storages for walkers and persons on horseback; or

(b) buildings which form extensions of existing pastoral homesteads or tourist hostel developments, provided that they are:

(i) located within or form compact and continuous extension of existing groups of homestead or hostel buildings;

(ii) in keeping with the existing use of the land;

(iii) of the same or lesser scale as existing buildings;

(iv) constructed of materials which blend with the landscape;

(v) sited and designed to be unobtrusive; and

(vi) sited so that excavation to access tracks and utilities are minimised.

When the opposition looked at that particular zoning it became clear that in the development plan for land not within a council area (Flinders region) there was significant protection afforded to areas such as we are discussing today, being Arkaroola and, in particular, the area that Marathon Resources now has an exploration lease over.

It is also interesting to look at the Seeking a Balance document and, in particular, the government's discussion in relation to some new zones. The opposition is a little concerned that the government is possibly looking to tweak the zones slightly: zone 1, 'No access', and, 'No access for exploration and resource development', but then zone 2a, which is distinct from class A zone in the development plan, goes on to talk about:

No high impact activities accepted...Declaration of environmental factors (i.e. proposed exploration work programs)—

this is for mineral exploration—

approved by Director of Mines with the endorsement of the Director of National Parks and Wildlife. The following activities will be permitted:

Aerial surveys

Walk-in access...

Rock and soil sampling...

Other low impact [mining] activities

Minimal disturbance to flora and fauna.

Then it goes on to talk about proposed mining and resources developments as follows:

Permissible if access from outside zone to resources underneath.

Mining proposal assessed in light of planning guidelines...

We have talked about planning guidelines for zone 2A. They then go on and talk about a range of other issues with zone 2A, but when we come to zone 2B, it talks about mining proposals to be 'assessed in light of the development plan guidelines and identified values'. I think the government is suggesting that they want to adhere to the development plan that exists in the Flinders Ranges or in the land not within a council area, and in particular zone 2A.

I indicate that the opposition, while not supporting the Hon. Mark Parnell, will be moving a private member's bill—of which we will probably give notice next week—effectively putting Environmental Class A Zone into the Development Act from the development plan, and that development plan can be changed only with the support of the state parliament. Everybody is very clear. This development plan has been in place since 2003. Marathon Resources was aware of it when it applied for an exploration licence. My understanding is that the Sprigg family at Arkaroola were comfortable with that development plan, and I am sure that they were involved in the consultation process when that particular development plan was settled on and gazetted.

It seems that Marathon was happy with that. Clearly, the government is seeking a balanced report, looking to make sure that the objectives and principles outlined in the development plan, particularly for that area, are taken into account when it comes to any activities in that area.

We talked about mining operations not taking place unless deposits are of such paramount importance that their exportation is in the highest state or national interest that all other concerns can be pushed aside. It is the opposition's view that Arkaroola needs to be preserved and that it is a site of significance. It is certainly many years since I visited in my early 20s, so it is, sadly, 25-plus years ago since I was there. It was particularly breathtaking for me back then, and I am sure that it has not been diminished over the years, and perhaps its importance has been enhanced.

If the government is fair dinkum about adhering to the objectives and principles laid out in the development plan, the opposition would seek the government's support for our private member's bill to have any changes to the development plan to be something that this parliament has a say in. While the Hon. Mark Parnell may be disappointed that we are not supporting his amendment, I am sure he would be willing to support this level of protection.

It is interesting to note that the Hon. Mark Parnell has foreshadowed another amendment that has been put on file that tries to encapsulate some of the principles of the development plan.

It is interesting to note that the Hon. Mark Parnell was advised of the opposition's position in that wonderful place called the parliamentary bar at breakfast time this morning. It is a little typical of the Hon. Mark Parnell in that he saw an opportune time. With the National Parks and Wildlife Act, he had a look at trying to do something in Arkaroola. At the time we sympathised with his concerns, but we did not believe that the National Parks and Wildlife Act was the appropriate one to do it.

At the same time he saw an opportunity with the opening up of the Mining Act and, when it was opened up, he had that opportunity. We agree that, as the minister said, it provides some sort of guidance, clarity and principles for mining to take place, so this probably is not the act. He perhaps realised this morning in the bar discussion with the shadow minister that perhaps his amendment was not going to be successful so he would quickly take an opportunity to—

An honourable member interjecting:

The Hon. D.W. RIDGWAY: No, the shadow minister. I am not accusing you of chatting in the bar (not at that hour of the day), and it was only over breakfast and there was no alcohol being consumed.

The ACTING PRESIDENT (The Hon. J.S.L. Dawkins): The correct title is the refreshment room.

The Hon. D.W. RIDGWAY: Thank you; I did not realise it was called a refreshment room. Nonetheless, that was where the discussion took place. Of course, the Hon. Mark Parnell has had an opportunity to quickly have something drafted by parliamentary counsel. Again, I think it is a little opportunistic to try to jump in on a position that clearly the opposition has arrived at, where we believe that, if the government is fair dinkum in seeking a balanced document, it will support our amendments to the Development Act to make sure that this development plan cannot be amended just in the normal process and that it actually has to come to the parliament.

It is also interesting to note that the government did renew Marathon Resources' exploration licence late last year after the issue of the bags and the rubbish being buried and the damage that was done to the area, which have been well documented and well spoken about. The government did, in fact, reinstate that licence; in fact, I think it issued a new licence late last year because, of course, the existing one was about to expire. The minister may or may not wish to comment, but it is the opposition's advice that if we change the goalposts mid-stream for Marathon Resources then there could be some expectation of compensation.

That is the reason we wanted to try to beef up or strengthen, if you like, the environmental class A zone. That is exactly what Marathon Resources knew it was dealing with when it applied for its initial exploration licence, and we believe that that should stay in place. It certainly spells out in some detail the types of activities that really are not going to be permitted in that particular area. So, we think that this is the best position to take.

I know that the Hon. Mark Parnell talked about the whim of a minister making the decision and the minister said that it would be a government decision, and I am sure that it would be a government decision. I remind the chamber that in a former parliament it was the Liberal Party that chose not to allow mining to be undertaken in the Gammon Ranges. I think the community and the Hon. Mark Parnell and his supporters could take some comfort from the fact that the Liberal Party has had a good track record on environmental protection in certain parts of our state, certainly when it comes to mining.

I can understand why the Hon. Mark Parnell and his supporters—and, in fact, some of us—are a little nervous when you look at this government's track record and, in particular, the Premier's track record when you look at the journey that he has been on over his lifetime as one of the major advocates against uranium mining and particularly the development of Roxby Downs. Of course, he has been the champion of that development as he has come into government and realised that that is actually a pretty important resource for our state. And then, of course, he was the champion, so he claims, of getting rid of the Labor Party's three mines policy.

So, with the journey that the Premier has been on, I think the community could have little faith in what decision this government might make. That is why we want to indicate that in opposition we will beef up the existing arrangements and put the environmental Class A zone into the Development Act by way of a private member's bill so that the parliament then has to be involved in any changes to that zone. We hope that the government is fair dinkum with its Seeking a Balance document and that the Development Act and the zones within that act will reflect the current Development Plan.

With those words I indicate that the opposition will not be supporting the Hon. Mark Parnell, but we will certainly be seeking to have a private member's bill drafted. I have had discussions with parliamentary counsel this morning and they are comfortable that we can come up with a set of words that will enhance the Development Plan. It is the opposition's view that they are the guidelines, principles and objectives under which the current exploration lease was given. We think they need to be strengthened to make sure that those guidelines, principles and objectives are not changed. The opposition does want to see the high environmental value of Arkaroola preserved.

The Hon. M. PARNELL: I want to comment on a couple of things that the minister said and then I want to address the opposition's approach.

The minister reminded us that we are around the time of the centenary of the discovery of uranium. The other milestone that I am sure the minister is well aware of is last month was the 40th anniversary of when the honourable Don Dunstan, with his own hands, carried the rocks up to the top of Sillers Lookout and started to build the cairn that marks that prominent landmark. Sillers Lookout of course is identified in the Seeking a Balance report, which the Hon. David Ridgway referred to, as an area that is going to be opened up for mining. So, that is another anniversary for us to reflect on: 40 years ago Don Dunstan building the cairn, no doubt hoping that Arkaroola would be protected as a tourism and a wilderness sanctuary in perpetuity.

The second thing I want to say relates to the minister's referring to my comment as a bit of a throwaway line when I said 95 per cent of the state is open for mining. Yes, it is a throwaway line, but am happy to sit down with the minister and do the sums. I know it is more than 90 per cent, but I am not sure whether it is quite 95. My recollection is that 4.7 per cent of the state is in National Parks and Wildlife Act reserves that are not subject to joint proclamation. As members would know, three-quarters or more of our National Parks and Wildlife Act reserves are open for mining; it is only a very small proportion that are not.

The proportion of land that is in Aboriginal reserves is available for mining. It just means the mining companies have to negotiate, but they are not off limits, and the map exercise that the minister and I should perhaps sit down and go through is in relation to exempt land, which may bring the percentage up a little bit but it is the wrong figure to use because exempt land is available for mining. We have been debating exempt land in this bill. Every time someone tries to stop mining on exempt lands and they go to the Warden's Court they lose. Exempt land is open for mining unless you get rid of those waiver provisions or you amend them, which is why I have sought to get rid of the waiver provision in relation to Arkaroola. I might just mention that because, as I have said, the owner is the government.

It might also be said that the lessee of the Arkaroola Wilderness Sanctuary is technically an owner and would be part of any waiver discussions. I do not think it is fair to leave the decision up to the current custodians about the long-term future in terms of mining. Getting rid of the waiver provision altogether, I think, is the way to go.

The minister referred to the fact that he would not be making unilateral decisions: that it would be the government as a whole. We need to reflect on that because, under the Mining Act, the minister does have considerable powers, and under the Development Act—which the Hon. David Ridgway has referred to and which I will come back to—the mining minister also has considerable powers.

The first thing to note is that mining is not development under the definition of development. It is only certain types of mining and, in fact, mining does not go through a normal development assessment process. Under section 75 of the act there is a process where two ministers need to talk to each other: the mining minister and the planning minister. In this current situation, they are the same person. The minister needs to talk to himself and decide—

The Hon. P. Holloway interjecting:

The Hon. M. PARNELL: He says 'Or delegate', but the point is that the decision is concentrated at present in the hands of one minister; in the future, it might be two. The mining minister and planning minister talk to each other. What do they have to decide? They do not decide on a development approval: they decide on whether it is going to be a major project, whether it needs an EIS, and at the end of the day the question for us to ask pertains to the measures that the Hon. David Ridgway read out in their entirety.

In relation to these measures that say that areas like Arkaroola are inappropriate for mining unless a series of conditions are met, what status does that document have? What level of protection does that class A status have in relation to Arkaroola? The answer is: it has virtually no status at all. If we go through the section 75A provisions, through the major project stream, and we do an EIS, the final decision that is made does not have to be consistent with the planning scheme. It does not have to be consistent with the zone A environmental requirements. Inconsistent decisions can be made. There is no appeal, there is no challenge; there is nothing that can be done about it.

These provisions, as good as they are, have no teeth at all. It would only be a factor to be taken into account. If these provisions had some legal force, then would I be happy? Would the Greens be happy? We would be happiest of all if we could get this amendment through but as a fallback position, if we could get some genuine teeth into legislation that meant that these requirements must be fulfilled before any mining activity could go ahead, then at least we would be better off than we are at present.

The question then is whether the approach that the Hon. David Ridgway has foreshadowed is likely to actually achieve that level of legal certainty. Will writing into the Development Act a provision that maybe vegetation should not be cleared—or a provision that no new roads or tracks should be formed, or that no mining operations should take place except where the deposits are of such paramount significance that all other environment, heritage or conservation considerations may be overridden—have force of law by virtue of a private member's bill amending the Development Act?

The answer, of course, depends largely on how it is drafted and it also depends on the government's attitude. We are no strangers in this place to a majority of members passing a private member's bill only to find it languishing in the lower house. What I would not like to see is members of the opposition being able to rub their hands together and say, 'Well, we tried. We passed a private member's bill and it is not our fault that it languished in the lower house and never became law.'

I think that would be disingenuous. As the Hon. David Ridgway talks about the government being fair dinkum about protecting the values of Arkaroola, all of us here need to be fair dinkum. I am not, at this fairly early stage of proceedings, convinced that simply writing 'the land not within a council area (Flinders development plan)' into the Development Act is going to do the trick unless we have substantial other amendments to make sure that these provisions are the determinating provisions and not just advisory provisions.

The Hon. David Ridgway referred to the fact that Marathon as the main stakeholder, and I guess the Spriggs as well as the owners of the wilderness sanctuary, have known about these class A environmental conditions and therefore, if we give these conditions more strength, no-one can argue that the goalposts have been changed. That has some merit, as long as we can legislate for these provisions and that drives the decision-making of the minister. The Hon. David Ridgway referred to whether my putting an amendment forward now was opportunistic. Perhaps because we had a discussion and I wanted to know what the opposition was thinking—I do not yet know what the minister is thinking about the opposition's approach—I was prepared to make the major concession of having a fallback position which said, 'Let's beef up the protection as much as we can.'

The way to do it is in a further amendment to this Mining Act incorporating these class A provisions into the Mining Act, not putting them into the Development Act where they will not work, but putting them into the Mining Act. That is a conversation that I will want to have with the opposition. I do not blame the members of the opposition for taking their time in making a decision. This is a very important issue of state significance. I would rather them take their time and make the right decision rather than rushing into something and making the wrong decision.

It may well be that, once we have dealt with this amendment, when we do get to my amendment (which is to incorporate these provisions pretty well word for word out of the Development Plan and write them into the Mining Act) that that might be a time for us to report progress so that we can test the bona fides of the Liberal opposition and how serious they are about having these provisions have the force of law in relation to mining at Arkaroola. When we get to that amendment, I will speak to that then, but for now I would urge members to support this amendment which I will be dividing on. This is the amendment which says: Arkaroola is too precious to mine and we are going to say so in the Mining Act itself. I commend the amendment to members.

The committee divided on the amendment:

AYES (5)
Bressington, A. Brokenshire, R.L. Franks, T.A.
Hood, D.G.E. Parnell, M. (teller)
NOES (14)
Darley, J.A. Dawkins, J.S.L. Finnigan, B.V.
Gago, G.E. Gazzola, J.M. Holloway, P. (teller)
Hunter, I.K. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Stephens, T.J.
Wade, S.G. Zollo, C.

Majority of 9 for the noes.

Amendment thus negatived.

The Hon. M. PARNELL: I move:

Page 6, after line 4—Insert:

(2) Section 9(1)—delete 'the land ceases to be so exempt' and substitute:

the benefit of the exemption is waived under section 9AA.

This is the second part of amendment 1 in Parnell 1 and is consequential to amendment No. 3 of Parnell 1, which was the insertion of new section 9AA, which has passed. Therefore, this is consequential and I would expect that it would also pass.

To assist the committee, I point out that the change that was made before the winter break in relation to clause 7 was a rewriting of the rules for waiving exemptions, in particular landholders in their dealings with mining companies, and, whilst this amendment is earlier in time in the bill, it is in fact consequential on the provision we already passed. As the committee supported the new section 9AA, it should also consequentially support this amendment.

The Hon. P. HOLLOWAY: I will take the advice of parliamentary counsel, and will not object to this amendment.

The Hon. D.W. RIDGWAY: The opposition does not object.

Amendment carried.

The Hon. M. PARNELL: I move:

Page 6, after line 5—insert:

(4) Section 9(3) and (3a)—delete subsections (3) and (3a)

(5) Section 9(3b)—delete 'this section' (first occurring) and substitute:

this act

This amendment is also consequential on the passage of new section 9AA. My understanding is that parts (4) and (5) of this amendment are consequential.

The Hon. P. HOLLOWAY: My advice is that this is consequential on an amendment we had, so the government does not oppose it.

The Hon. D.W. RIDGWAY: The opposition does not oppose the amendment.

Amendment carried.

The Hon. M. PARNELL: I move:

Page 6, after line 5—Insert:

(5a) Section 9(3b)—after 'this section' (second occurring) insert:

(and, subject to an order of the ERD Court under section 9AA, each person who has the benefit of an exemption must be a party to an agreement to waive the benefit before the land can cease to be exempt land)

This amendment seeks to clarify that where there is a proposal to waive an exemption, all those with the benefit of that exemption need to be party to that agreement, otherwise the exemption is not waived. In a nutshell, this again relates to the concept of exempt land, land that is close to houses or in ploughed fields. I think it covers the situation where you might have an owner—perhaps a sharefarmer or lessee—and if the benefit of the exemption is to be waived, all those who hold the benefit need to be a party to the agreement.

Effectively, this is really consequential on the new arrangement we have for the waiver of exemptions in new section 9AA. It clarifies that all those with a benefit need to agree before the exemption can be waived and mining or exploration go ahead.

The Hon. P. HOLLOWAY: The government has no problem with this amendment.

The Hon. D.W. RIDGWAY: The opposition supports the amendment.

Amendment carried.

The Hon. M. PARNELL: I move:

Page 6, after line 5—Insert:

(6) Section 9(3c)—delete subsection (3c)

I think this is now consequential, because it is replacing subsection (3c), effectively, I think, with the new 5(a) that we have just agreed to. So, I think it is consequential and I would urge members to support it.

The Hon. P. HOLLOWAY: We do not oppose the amendment.

Amendment carried; clause as amended passed.

Schedules 1 and 2 and title passed.

Bill reported with amendment.

Bill recommitted.

Clause 4.

The Hon. P. HOLLOWAY: I move:

Page 5, line 23—Delete the definition of 'mining operator' and substitute:

'mining operator' means the holder of the relevant mining tenement;

In effect, this amendment goes back to the original clause in the bill. Members will recall that when we last debated this back on 20 July the opposition moved an amendment. I did not oppose it at that time, subject to a further review and recommitment in the spring session. Since that time, there has been some significant discussion, to which I will refer in a minute.

The Hon. Mr Ridgway's amendment No. 1 proposing to amend the definition of mining operator was debated back in July. The government did not support the amendment; however, to keep the issue live, the amendment was not opposed subject to further discussion and re-committal. I can now advise honourable members that my department has undertaken further discussion with the Chamber of Mines and Energy and its legal representatives, and I think the opposition has been involved in that as well.

I advise honourable members that the government's position as previously outlined to this parliament remains unchanged. I reaffirm that the definition proposed by my department in the bill will not change the law as it currently applies; that is, the operator is the person to which the lease or licence has been granted and who has been authorised by that lease or licence to conduct mining operations. It is fundamentally critical that the intent of this definition remains unchanged to ensure the effective and efficient management of the state's mineral assets through best practice regulation and the general good governance of the mineral resources sector.

In answer to a question asked back in July by the Hon. Mr Parnell, it also makes it clear that the ultimate liability must remain with the holder of the lease or licence. As a result of further discussions with industry, the government recognises and has made an undertaking to industry that policy and better guidelines will be developed to ensure that parties entering into joint ventures, farming agreements or subsequent part 9B agreements are fully aware at the outset of the legal entitlements, rights, obligations and limitations of the respective parties.

For example, the purpose of negotiating a native title mining agreement under section 63F of part 9B, an exploration licence holder must be both a principal of and be bound by any agreement that is reached for that agreement to allow activities under the exploration licence to affect native title.

Where a joint venturer or other authorised party has been given effective and binding legal authority to enter into such an agreement on behalf of an exploration licence holder, then the normal rules of agency will apply. This emphasises that where a company, other than a tenement holder, has an involvement in a mining operation, both the tenement holder and that company should ensure that the extent and limits of their authority in respect of that operation is clear.

There has been a lot of lengthy discussion. I fully understand why the opposition originally moved the amendment because there have been various views about how this section would apply and I think they have been generally clarified. However, it is important and the government recognises that, while we should revert to the clear-cut definition that 'mining operator' means the holder of the relevant mining tenement and do not water that down in any way, we do need to communicate better with the mining industry as to what that means in relation to various joint ventures and so on. I trust those lengthy discussions (and I thank the opposition for its part in that) will clarify this situation going forward.

The Hon. D.W. RIDGWAY: The opposition supports the amendment proposed by the minister. We have had some lengthy discussions as recently as this morning with industry stakeholders and I think the minister has summed it up well. He understood what we were trying to achieve in that initial amendment but, subsequently, we are now happy to support what the minister is proposing.

Amendment carried; clause as amended passed.

Clause 7.

The Hon. P. HOLLOWAY: I move:

Page 6, after line 7—[Holloway Amendment 1]

New section 9AA(2)—Delete subsection (2) and substitute:

(2) A notice under subsection (1) must be in a form determined or approved by the Minister.

Page 6, after line 7—[Holloway Amendment 2]

New section 9AA(7)—Delete 'ERD Court' and substitute:

Warden's Court

Page 6, after line 7—[Holloway Amendment 3]

New section 9AA(8)—Delete 'ERD Court' and substitute:

Warden's Court

Page 6, after line 7—[Holloway Amendment 4]

New section 9AA(8)(b)—Delete paragraph (b) and substitute:

(b) the operator provided the respondent with information prescribed by the regulations for the purposes of this section; and

Page 6, after line 7—[Holloway Amendment 5]

New section 9AA(9)—Delete 'ERD Court' and substitute:

Warden's Court

Page 6, after line 7—[Holloway Amendment 6]

New section 9AA(9)(a)(i)—Delete 'exceptional'

Page 6, after line 7—[Holloway Amendment 7]

New section 9AA(10)—Delete subsection (10) and substitute:

(10) The Warden's Court may not make an order for costs against the respondent unless the Court considers that it is appropriate to do so on the ground that the respondent—

(a) has obstructed or unnecessarily delayed the proceedings; or

(b) has failed to attend any proceedings or failed to comply with a rule, order or direction of the Court.

The amendments that I have moved in relation to clause 7 seek to address a number of matters with respect to the Hon. Mr Parnell's waiver of exemption, right to cool off amendments which were debated and carried. I will address these accordingly.

Amendments 2, 3 and 5 replace any reference to the ERD Court with the Warden's Court. We have previously debated the merits of the ERD Court versus the Warden's Court. In that debate it was recognised that the Warden's Court is a low-cost court which provides a forum where landowners may represent themselves and can often receive guidance from the court. Maintaining exempt land related appeals to the Warden's Court ensures consistency in the legislation and a less costly and more efficient option for the parties.

For example, a landowner would not want to be put in the position where they are appearing in the Warden's Court on a notice of entry matter and then have to appear in the ERD Court on a waiver of exemption matter. Currently under the act, both matters are heard in the Warden's Court and that is why we are correcting it to address that technical issue. They are amendments 2, 3 and 5.

Amendment 7 relates to costs. The government supports the concept that costs should not be awarded against the respondent. However, for the purposes of procedural fairness, if, in a particular case, it is evident to the court that the respondent has been unnecessarily vexatious to the extent where they are deliberatively obstructing or delaying the court proceedings then, in this case, the court should have the option to award costs against the respondent.

Amendments 1 and 4 relate to the information that the mining operator should provide to the person who has the benefit of the exemption. The objective of this amendment is to set out the minimum standards of information in the regulations. This approach will be consistent with the minimum standards to be set in the regulations for notices of entry. Again, this ensures that the legislation is consistent in its administration and consistent for the parties in its application.

Amendment No. 6 seeks to remove the word 'exceptional' where in the new amendments it states:

On an application the ERD Court may:

(a) if the mining operator satisfies the court that

(i) exceptional circumstances exist in justifying the carrying on of mining operations on the exempt land

The word 'exceptional' in its ordinary meaning relates to an unusual or extraordinary instance. I remind honourable members that the exempt land provisions in the act apply to all mineral land, including pastoral lands and crown lands as well as freehold. The exempt land provisions apply to all types of mining operations, including prospecting and exploration.

What is exceptional in one case may not be exceptional in another. For example, if the mining operator wants to undertake low impact exploration, such as a geochemical survey, the mining operator would have to satisfy the court that their surface sampling is an extraordinary instance. This has the potential to set an inequitable precedent. So, while the government originally opposed the major amendment to clause 7, we hope these changes will make this section workable, so I ask the committee for its support.

The Hon. M. PARNELL: I will speak to these before the opposition, if I may, given that it is my amendment that is being tinkered with, as it were. I will again speak to them all now. The minister's amendments 2, 3 and 5 seek to replace the Environment, Resources and Development Court with the Warden's Court, in other words, go back to the current situation where the Mining Warden determines these applications.

The minister's reasons for going back to the mining Warden's Court were that it was low cost and that you could represent yourself. Both of those apply to the Environment, Resources and Development Court, but the ERD Court has one extra advantage that I see, and that is it has the provisions in section 16 of its act, where the first port of call is a round-table conference. You do not have to go straight into an adversarial situation before a warden. It is around the table to see if you can sort it out.

In my experience with these waiver cases over the years—as I said when I moved the original amendment, I have read most of the Mining Warden's judgments—I think the mining wardens have locked themselves into a bit of a precedent situation, where they will struggle with this new regime, where the presumption is in favour of the protection of exempt land. At present the presumption is in favour of allowing the mining companies to have their way.

I am not saying that the mining wardens are the problem in themselves. I am just saying that a new regime, I think, could benefit from a fresh set of eyes in the ERD Court, bearing in mind that these matters are likely to be dealt with by a commissioner of the ERD Court who has expertise in mining matters. That is the way the ERD Court works. It appoints specialists from different fields, so I oppose going back to the mining wardens. I do not accept the difficulty that there might be a couple of applications in different courts. That happens all the time.

Most big businesses would be multiple courts at any one time, depending, for example, on the level of debt that they were trying to recover. It might be small claims; it might be the District Court; it might be the Supreme Court. I have no problem with mining companies having to go to more than one court to conduct their business. In relation to amendments—I am pretty sure they are amendments 1 and 4—I see these as procedural, where the government would set the form of information that needs to be provided. I have no objection to those, so I am happy to support amendments 1 and 4.

Amendment 6 deletes the word 'exceptional'. Now, the reason that I put the words in so that exceptional circumstances need to exist before the court would order the mining company to be allowed to go in, even though there is an exempt land in place, was to reverse the presumption of the decision-maker—currently the Mining Warden; I say it should be the environment court—that mining should win over the protection of exempt land. One of the main mechanisms that I have put in place in this new section 9AA is the word 'exceptional', so that the presumption is in favour of the landholder being able to keep the mining companies more than 400 metres away from their homes, out of their ploughed fields and more than 150 metres away from their dams and stock infrastructure.

I do not think that it is too much to ask that the mining companies only be allowed in those areas if there are exceptional circumstances. The actual amount of exempt land is relatively small and it is exempt for a reason. I do not support the removal of the word 'exceptional', so I will not be supporting amendment No. 6.

In relation to amendment No. 7, which basically says that costs can be awarded against a landholder in certain defined circumstances such as being obstructive, unnecessarily delaying proceedings or failing to comply with court orders—I am comfortable with that. I think the general rule should be that costs are not levied against the landholder, but if the landholder has behaved badly enough then yes, fair enough, costs might be awarded.

The only thing I would say is that, in amendment No. 7, the minister proposes to replace subsection (10) as passed by this chamber previously with a new subsection (10). Depending on the outcome of the earlier amendments, it may well be that if we do keep the environment court as the court of appropriate jurisdiction, we might need to remove the words 'the Wardens Court' from the proposed new subsection (10) and put the Environment, Resources and Development Court back in there. Aside from that technicality, I support the intent of amendment No. 7.

The Hon. D.W. RIDGWAY: I indicate that these certainly are amendments to an amendment that we supported of the Hon. Mark Parnell's. I think, just in talking to them all, that I support the comments of the Hon. Mark Parnell. Not having been personally to either the Warden's Court or the ERD Court, from the explanations that members have made and given to me over time, I do not think that deleting the ERD Court and going back to the Warden's Court is in the spirit of the amendments that we supported.

Certainly, I think that deleting the exceptional circumstances is not in the spirit of the amendments that we supported when we last sat. We certainly support amendment No. 7, which, of course, is where costs can be awarded. I think that is reasonable and fair. So, I indicate that we will be supporting amendment No. 1 but not the other amendments in relation to the ERD Court or deleting the word 'exceptional'.

The Hon. R.L. BROKENSHIRE: On behalf of Family First I indicate to the council that we will be supporting the retention of the ERD Court, as we did before. We find it unusual that the government is bringing back amendments to its own bill that were actually carried in this place before they go down to the other house and then come back if they are amended. I cannot recall this happening before, but we will certainly be sticking with our plan 1.

The Hon. P. Holloway's amendment No. 1 carried.

The committee divided on the Hon. P. Holloway's amendment No. 2:

AYES (7)
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Wortley, R.P.
Zollo, C.
NOES (13)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M. (teller)
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G.

Majority of 6 for the noes.

The Hon. P. Holloway's amendment No. 2 thus negatived.

The Hon. P. Holloway's amendment No. 3 withdrawn.

The Hon. P. HOLLOWAY: Amendment No. 4 is a technical amendment.

The Hon. D.W. RIDGWAY: The opposition supports amendment No. 4.

The Hon. P. Holloway's amendment No. 4 carried.

The Hon. P. Holloway's amendment No. 5 withdrawn.

The Hon. D.W. RIDGWAY: The opposition does not support amendment No. 6.

The Hon. P. Holloway's amendment No. 6 negatived.

The Hon. P. HOLLOWAY: I move to amend amendment No. 7:

Page 6, after line 7—New section 9AA(1)—Delete subsection (10) and substitute:

(1) The ERD Court may not make an order for costs against the respondent unless the court considers that it is appropriate to do so on the ground that the respondent—

(a) has obstructed or unnecessarily delayed the proceedings; or

(b) has failed to attend any proceedings or failed to comply with a rule, order or direction of the court.

'The ERD Court' has been substituted for 'The Warden's Court' in the original amendment. This change has been made to be consistent with the previous amendments.

The Hon. P. Holloway's amendment No. 7 as amended carried.

The Hon. M. PARNELL: I will not yet move my amendment, because I want to say a few words first. This amendment is in the set Parnell 5, and it brings us back to Arkaroola. As I foreshadowed before, there is some agreement, I think, between the Liberal opposition and the Greens about some of the words we want to see in legislation to give an appropriate level of protection to Arkaroola, albeit protection that is short of an absolute prohibition of exploration or mining.

I would like to have the opportunity to have further discussions with the shadow minister for mining and the Leader of the Opposition in this place to see whether they are able to support this amendment or whether the approach foreshadowed by the Hon. David Ridgway (that is, to put these words in a private member's bill amending the Development Act) is the best way to go.

For reasons I have mentioned previously, I am not convinced at first blush that the opposition's amendment will actually achieve what the opposition thinks it might. I would like to take this opportunity to report progress, and we can come back to this tomorrow or Thursday. I so move:

That progress be reported.

The Hon. P. HOLLOWAY: I think we have spent enough time on this bill and particularly enough debate in relation to Arkaroola. Essentially, the amendment moved by the Hon. Mr Parnell suffers from the same problem in that it sets out within the Mining Act specific conditions to one particular region. I believe that is bad in principle. What a mining act should do is set out the conditions under which mining operations can be properly assessed and regulated. It is a misuse of legislation to specify particular operations in relation to the Mining Act. So, we will be opposing this amendment for the same reason that we did previously.

I know the Hon. Mr Ridgway made some comments earlier in relation to the environmental class A zone. That is really a different matter, and I do not propose to take up the time by addressing that now. Obviously, if the opposition moves a bill in relation to that, we will consider it on its merits. However, in relation to the Mining Act, this amendment suffers from the same deficiency as Mr Parnell's previous amendments; that is, it is not really an appropriate way in which to deal with specific mining issues by setting them out in the act. I therefore oppose the deferral.

The CHAIRMAN: Hon. Mr Parnell, did you move the amendment?

The Hon. M. PARNELL: I moved to report progress.

The CHAIRMAN: Well there is no debate on that.

The Hon. M. PARNELL: I am pretty clear that that is what I said. I apologise if there is confusion. I did not want to move my amendment and then find that there was some obligation to deal with it tonight, when what I am looking for is an opportunity to have some further consultation with the opposition, which I will do as quickly as possible.

The CHAIRMAN: I will put the question, and it is up to the committee whether it wants it or not.

Motion negatived.

The Hon. M. PARNELL: I move:

Page 7, after line 30—Insert:

9AB—Mining in Arkaroola—Mt. Painter Sanctuary

(1) Despite any other provision of this Act (including sections 9, 9AA and 9A), the Minister must not grant a mining tenement in relation to any part of the Arkaroola—Mt. Painter Area unless—

(a) the Minister is satisfied—

(i) that the minerals to be recovered under the tenement are of such significance that all other environmental, heritage or conservation considerations may be over ridden; and

(ii) that the exploitation of the deposits of those minerals is in the National interest or the interests of the State; and

(iii) that investigations have shown that alternative deposits are not available on other land in the locality outside the Arkaroola—Mt. Painter Area (being a locality determined by the Minister as being reasonable in the circumstances); and

(iv) that the mining operations to be carried out in pursuance of the tenement—

(A) will not impair the natural and scenic features of the area; and

(B) will not require the clearance of native vegetation (being clearance of native vegetation within the meaning of the Native Vegetation Act 1991); and

(C) will not require any new road or track to be formed in the Arkaroola—Mt. Painter Area; and

(b) the Minister, in determining the terms and conditions subject to which a tenement is to be granted under this Act, takes steps to ensure that stringent safeguards will be in place to protect the landscape and natural environment in the Arkaroola—Mt. Painter Area.

(2) This section does not apply in relation to—

(a) a mining lease granted pursuant to an application for a lease made under this Act on or before 3 September 2008; or

(b) a miscellaneous purposes licence granted for purposes ancillary to the conduct of mining operations under such a lease.

(3) This section applies whether or not the land (or any part of it) remains a sanctuary after the commencement of this section.

(4) In this section—

Arkaroola—Mt. Painter Area means the land declared to be a sanctuary under the name Arkaroola—Mt. Painter Sanctuary on 15 February 1996 (Gazette 15.2.1996 p 1144).

My amendment seeks to incorporate into the Mining Act exactly the words of protection that the Liberals say they want to see applying to the Arkaroola Wilderness Sanctuary. I have to say that it surprises me somewhat that the opposition did not support having further discussions with the Greens on this matter because I believe that the private member's bill foreshadowed by the leader is destined to fail, and I think the Hon. David Ridgway's call for the government to be fair dinkum about this applies to the opposition as well.

I understand that the opposition has agreed with the minister that they do not accept that the Mining Act is the place to set out particular provisions in relation to mining in particular areas. I do not accept that, but I understand that that is a position they have taken and that is fine. If you want the Mining Act to be just a framework for mining, so be it. What would be a great disappointment to me, and to the people who have worked long and hard to try to get proper protection for Arkaroola, would be to find a Liberal private member's bill that will pass this place, I am sure, to the Development Act and then find that it languishes in the lower house or, worse still, that it turns ought to be completely ineffective.

As I said earlier, the Development Act defines development as not including most forms of mining. You do not need a Development Act approval for mining. Section 75A provides that there are certain areas, which would include Arkaroola, where there is some consultation between the mining and planning ministers, and then there may be (but it is not essential) an environmental impact statement, which would be a good thing, but that statement does not guarantee that the class A environment provisions would apply.

The opposition will have to be very careful with how it words its amendment to the Development Act because there is a great risk that it might be a lot of sound and fury that actually signifies nothing. I make the offer to work with the opposition to make sure that whatever amendments are put forward do genuinely protect Arkaroola from inappropriate activities and that the bar is set very high so that we do not just get run-of-the-mill, opportunistic mining. There must be exceptional circumstances, as set out in the class A provisions. The words are 'of such paramount significance'; in other words, it is a very high bar.

I am disappointed that the opposition has not supported reporting progress, and I assume that it is an indicator that it is not supporting the amendment. However, having achieved on the record the vote of this committee on my original motion, I will not divide on this amendment, provided the opposition makes its views very clear on why they do not think this is an appropriate measure to put in this bill.

The Hon. P. HOLLOWAY: I have already indicated in general terms why the government opposes this amendment: because it suffers from the deficiency—

The Hon. M. Parnell: I want to hear from David.

The Hon. P. HOLLOWAY: But just before that, there are a couple of other things to be said. In relation to the development plan for the region, this was introduced under this government and essentially it reflects government policy. My reading of the environmental class A zone, as it relates to Arkaroola, is that it rules out significant surface disturbance, such as an open-cut mine. I have made clear on a number of occasions that that was my interpretation.

The Hon. Mr Parnell is correct that mining operations are generally considered under the Mining Act, although one notable exception is Olympic Dam because it has a number of related facilities, and in fact the environmental impact statement for Olympic Dam and its various facets is being carried out under the Development Act.

It is the government's view that there should be some consistency, and the policies this government has adopted in relation to mining or exploration in the northern Flinders Ranges is fully consistent with the relevant zoning to the area. If there is one issue in relation to the zoning, the only thing I would point out is that perhaps the actual boundaries of the zone have not necessarily been ground-truthed in some detail. I know that the Hon. Mr Parnell himself, in one of his amendments, was reminding us that there are some parts of the Arkaroola sanctuary that are actually on the plains to the east of the area and they are right adjacent to the Four Mile uranium deposit.

The Hon. Mr Parnell himself has suggested that with his earlier regulation he did not believe that that should be included within the boundary. I think that is one of the issues in relation to the boundaries of the zone. I point out that it has been the government's view that its policy under the Mining Act should be consistent obviously with its policy as expressed in the Development Act for this area, and that is why we have made it clear that we would not allow that significant surface disturbance in those activities because that would be inconsistent with the Development Act.

The Hon. D.W. RIDGWAY: I indicate, as the Hon. Mark Parnell has rightly picked up, that the opposition will not be supporting his amendment. The Liberal Party came to a position that I outlined earlier of incorporating the objectives and principles of the development plan either in the Development Act or that any change to those principles and objectives be done by the parliament. I rang parliamentary counsel before parliamentary counsel got to work this morning; I had a mobile number and called them to explain what we were trying to achieve. Their view at the time was that we could do that through an amendment to the Development Act. They explained to me that we had the Mining Act in front of us today and that the Development Act was not before us; I assumed that we could do it by way of a private member's bill. They explained to me that, yes, that could be done.

I thank the Hon. Mark Parnell for the offer to work with the opposition to make sure that, on the advice that we have been given, we can achieve what we are attempting to do. Isobel Redmond today made some comments in a press conference in relation to the deposit and said that they are of such paramount significance that all other environment, heritage or conservation considerations may be overridden. I also highlight this third point that investigations have shown that alternative deposits are not available on other land in the locality outside the zone. That particular area is particularly rich in mineralisation, uranium and all the other particular bits and pieces and minerals that people explore for.

Isobel Redmond said in that press conference today in speaking on behalf of the party that she thought it would be highly unlikely that in her lifetime, our lifetime—in the foreseeable future or whatever—that Arkaroola would ever be mined. That was a position that we arrived at as a party prior to parliament resuming today. We believe in the advice we have received from parliamentary counsel that we can achieve what we would like to achieve through amendments to the Development Act.

The Hon. Mark Parnell said that we had reached agreement with the minister on the Mining Act and it was not the appropriate tool or mechanism to amend to bring this into effect. I hope he was not inferring that we had reached an agreement behind closed doors. We have formed a similar view; the shadow minister Mitch Williams, the member for MacKillop, has led the debate in our party room. It is certainly our view that the Mining Act is not the appropriate place; it is the framework and the principles by which mining operations should take place. The advice we have received is that we can achieve what we would like to achieve in the Development Act; so, as I said, we do not support the Hon. Mark Parnell but do look forward to his offer of support to help achieve what we have laid out earlier today.

The Hon. P. HOLLOWAY: For the record, the Leader of the Opposition referred to his leader in another place. I point out that under the Environmental Class A Zone 'Objective 2—The protection of the landscape from damage by mining operations and exploring for new resources' (and the honourable member himself read this out earlier), it says:

Deposits which may potentially have the required degree of significance have been identified in…portion of the east Gammons and the Mount Painter-Freeling Heights area.

So, in relation to that environmental class, and contrary to what his leader in another place said, it is pointed out that not with certainty, but it may potentially, have the required degree of significance. I just point that out.

Amendment negatived; clause as amended passed.

Clause 24B.

The Hon. P. HOLLOWAY: I move:

Page 18, after line 16—

New section 35B(a)—delete 'or oral'

This amendment seeks to remove reference to oral representation from section 35B(a) as moved and carried in the Hon. Mr Parnell's amendment No. 12 and the Hon. Mr Ridgway's further amendments.

Section 35B(a) relates to notification of a decision on an application for a mining lease. Under this new section the minister is required to give written notification to each person who made a written or oral representation. The government does not support the requirement to give written notification to persons who may have made an oral representation. Notwithstanding that, there is no legislative provision for oral representations; it is almost nonsensical to consider defining what is officially an oral representation. For that reason we seek that amendment.

The Hon. D.W. RIDGWAY: The opposition supports the amendment. If it were a well considered oral representation it may be a little easier, but it would be difficult if it were not a well considered and well put together oral representation; it may perhaps be just a bit of a spray of a representation. For the minister to have to respond to oral representations seems a bit excessive, so we support the minister's amendment.

The Hon. M. PARNELL: We are happy to support the amendment.

Amendment carried; clause as amended passed.

Clause 39A.

The Hon. M. PARNELL: Given the hour and the indications, I will not be moving this amendment.

Clause passed.

Clause 40A.

The Hon. P. HOLLOWAY: I move:

Page 25, after line 3—

New section 62A—After subsection (2) insert:

(3) This section does not apply in relation to an exploration licence.

This amendment deals with the right to require acquisition of land. This amendment seeks to clarify that this new section will not apply to exploration licences. However, I point out that this amendment would not preclude the holder of an exploration authority and the landowner entering into a private agreement for the acquisition of land at the exploration licence stage.

That can still take place, whereas I think the original clause was proposed by the Hon. Mr Brokenshire, and the government supported it subject to further discussions with industry and, as a result of those discussions, we have moved this further amendment just to exempt the exploration stage because that creates some complexities. With that amendment, the Hon. Mr Brokenshire's thinking in it that we had supported remains intact.

The Hon. R.L. BROKENSHIRE: I will be brief. Firstly, I do acknowledge and thank the minister for putting most of that amendment that Family First put forward, supporting that with his amendment, but I remind the minister that he did remove (2) which was to do with being economically unviable, and I gather from the numbers that we will not get that part up. However, the point with this clause—and I hope that the opposition and crossbenchers will support me on this—is that I am opposed to this further amendment.

I know that in fairness the minister did say that he was going to revisit the matter over the break, and I thought he was going to revisit it and give farmers a bit of a benefit with economic viability. Sadly, however, he revisited it and kicked the farmers in the backside. I highlight to the committee that exploration can be just as bad as mining.

These people can get this exploration licence; they can spend months or years running all over your farm, drilling holes every five or 10 metres and make an absolute mess of your farm, and you are now restricted during that exploration period from being able to go to an independent arbiter if you decide to sell your farm and move to another farm.

I think that it is grossly unfair, and I highlight to the committee that in the recess we had a constituent contact us who is now in a very detailed compensation claim for specifically this matter. He was a longstanding farmer. He was out there farming and growing sustainable food, and then along came the exploration licence and played merry hell on his farm and ruined it, and he had no opportunity. He has had to move away from that farm, and now he needs compensation.

This is specifically why we put this clause up. The miners have had a good go. Family First supports miners, but we also support farmers, and I call on the crossbenchers and the opposition to stop the government from carrying this unnecessary and unfair amendment against farmers in South Australia.

The Hon. D.W. RIDGWAY: My understanding of what the minister is trying to do is not to allow any compensation at the exploration stage.

The Hon. P. HOLLOWAY: It is not compensation. It is compulsory acquisition. This is requiring a company to compulsorily acquire the land.

The Hon. D.W. RIDGWAY: It is compulsory acquisition of the land at the exploration stage. I ask the Hon. Robert Brokenshire: if an exploration licence is granted and they come in and explore and then find nothing and they have had to compulsorily acquire the property, it seems to me from what you are saying that, if we oppose the minister's amendment, you can have an explorer come in and have to compulsorily acquire the property. If he then finds nothing, what does he do with the property? Does he sell it back to the landowner or flog it off to somebody else?

The Hon. R.L. BROKENSHIRE: Clause 1 of 62A—Right to acquire acquisition of land, provides:

If the activities of a mining operator—

and I highlight to the committee that whether you are exploring or actually mining, you are still a mining operator; exploration is fundamental to proceed to mining—

on land substantially impair the owner's use and enjoyment of the land, the owner may apply to the Land and Valuation Court for an order under this section.

So, it is not compulsory; it gives the farmer an option. You have been a farmer yourself, Leader of the Opposition. How would you like to go about trying to export flowers that you have contracts for when you have someone running around squashing your flowers day after day as you are trying to grow them up for the export market? You may just want this option, and that is all it is, an option. The key word being 'may'.

The Hon. D.W. RIDGWAY: I might indicate that we may—and I have not said that we would yet—oppose the minister's amendment on the basis that it is 6 o'clock—I think this is the last amendment that we are dealing with today; it will go to the House of Assembly—so that we do not hold it up here any longer. I am not sure where our shadow minister is and I would like to have a further discussion with Mitch on this particular issue. So, I will indicate that we will oppose it but also indicate that, if the government changes the bill in the House of Assembly and it comes back here, we may also reserve our right to change our mind.

The Hon. P. HOLLOWAY: In view of the time, we will not divide on it. We clearly do not have the numbers, but perhaps we can have some more discussion on it.

Amendment negatived; clause passed.

Bill reported with amendment.

Third Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (18:02): I move:

That this bill be now read a third time.

I thank the cooperation of the council for what is a very important bill for the state.

Bill read a third time and passed.

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