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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-06-24 Daily Xml
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MINING (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 May 2010.)

The Hon. M. PARNELL (12:02): The Greens support the second reading of this bill and note that it is a long, long overdue piece of legislation. The Mining Act has not been rewritten since 1971, yet this bill, despite that length of time, still falls short of the mark. It is not a comprehensive rewriting of the legislation—and that is what the Greens believe is necessary.

The government's objectives in this bill are threefold: red tape reduction, greater transparency and effective regulation. The second and third of those objectives are always quite reasonable, but I have to say that, whenever reduction of red tape is included as an objective, I tend to see red because often the government is seeking to give the impression that there is a gauntlet of paperwork to be run for its own sake, and the assumption is that all administrative processes are redundant and unnecessary and simply stand in the way of good things happening. However, one person's red tape is another person's protection against environmental destruction or uninformed decision-making. We do need to have a level of administration in mining, and therefore reduction of red tape for its own sake is not something that the Greens are usually well disposed to support.

Before the election, the government made a big song and dance about mining. It wanted to open up more areas, it wanted to make it easier to mine and it wanted to cut red tape. If you want to look at the effects of the fast-tracking of mining and of lax regulation in mining, you need look no further than the Gulf of Mexico, where we see that short cuts, inadequate scrutiny and administration have resulted in that country's worst environmental disaster and one of the worst on the planet.

At the federal level, the government is again opening up more areas of the sea for oil and gas exploration and production, including new areas off the coast of South Australia, off lower Eyre Peninsula and off Kangaroo Island. If you look at the maps with any understanding of prevailing winds and ocean current directions, you can see that an equivalent or even a lesser spill in that area would end up in Flinders Chase National Park, on Seal Bay, in Lincoln National Park and Coffin Bay National Park, and you could swap the images of pelicans covered in oil with sea lion pups covered in oil. That is the impact it would have on South Australia. However, this legislation is about terrestrial mining rather than offshore oil and gas exploration, but the principles of regulation are much the same.

I say that this bill is a missed opportunity and that the government should have started from scratch. I note that that was certainly the position taken by the South Australian Farmers Federation in 'Farming the Future', its document of state election priorities for the 2010 state election. One of the South Australian Farmers Federation recommendations was to 'rewrite the Mining Act 1971. What was acceptable in 1971 is certainly not in 2010 and into the future'. Really we could have done better than the piecemeal amendments that the government has put forward now.

I have a large number of amendments that I will table shortly, and I will do what I can to try to remedy some of the deficiencies in this bill, but that is no substitute for going back to the drawing board and rewriting the act from scratch. However, there are some aspects of the bill that the Greens do support. In fact, it would be surprising not to support some aspects of the bill because it is difficult to take a 40 year old piece of legislation and not make it better, even if you are not trying that hard.

First, the bill is incorporating a new definition of the environment. Currently, the references to the environment in the Mining Act are scant. For example, it states 'that the minister must give proper consideration to the protection of the natural beauty of an area' or 'flora or fauna that may be endangered or disturbed'. Those types of definitions really completely misunderstand the concept of ecology, the interrelatedness of land and species, and the insertion of an amendment of the environment is far preferable to what is there. There is some criticism out there, but this is an improvement.

One of the criticisms is that the proposed new definition is still only a list of natural things. Whilst there is a reference to the word 'ecosystems', I think the government could have done better, but this is certainly an improvement.

Another provision that the Greens support is the ability for the minister to amend the conditions attached to a mining tenement at any time. That is an important provision, because circumstances change over time and new information comes to light. In fact, it is particularly important for those existing mining tenements that were issued well before proper environmental regulation had come into being. Those leases and licences have perpetually been reissued, and they are effectively operating in a time warp. Where there is a risk of environmental harm not adequately or specifically addressed by existing lease conditions, it makes sense for the minister to be able to intervene and revise those conditions.

The Greens also support some of the new compliance measures included in the legislation. I note that the proposed enforcement structure will assist in providing a greater degree of flexibility in dealing with compliance issues. The proposed structure comprises four strategy levels, namely: prevention, persuasion, compliance and punitive measures. It is contemplated that most action will take place within the prevention and persuasion strategies.

Whilst I support the general principle, the so-called pyramid of enforcement, it is most important that we maintain, at the end of the day, a big enough stick to make sure that proper behaviour is the result. I have often likened large mining companies to small children: they require limits to be set and they will operate within those limits provided it is absolutely clear what is expected of them. But, to expect a mining company, or any other big business, to go the extra mile voluntarily and spend millions of dollars more than they absolutely have to for the protection of the environment or anything else, is not realistic. We need to make sure that, at the end of the day, the requirements are clear and that the enforcement methods are robust and strong enough to get the outcomes we want.

In terms of the amendments that I am going to bring forward, they tackle 10 issues where I think this bill falls short. It will come as no surprise to members that the first category of amendments I have is one to protect the Arkaroola Wilderness Sanctuary from mineral exploration and mining. I urge all members—and I especially refer to members of the Liberal Party—to pay attention not just to what I am saying but to Senator Nick Minchin, who has come out very strongly in support of the protection of Arkaroola. I urge members to pay attention to the Liberals' former leader here, Iain Evans, who has also come out strongly in support of Arkaroola. You can also go down to the universities—and I never imagined I would be saying this in parliament—and pay attention to Ian Plimer. Don't pay attention to him on climate change; he is wrong on that, but pay attention to him on the importance of protecting the Arkaroola Wilderness Sanctuary.

Most recently, there was the discovery of a new frog species, the first species apparently in about 35 or 40 years—in fact, about as long as this Mining Act has been around. It just shows us that we know so little about this wilderness area, and we need to explore more for its biodiversity and not for minerals, where the end result will be the destruction of those ecosystems. So, I would urge members to pay attention to people like Mike Tyler, commonly referred to as the frog man. Ask him about the importance of areas like this that are under-explored in relation to biodiversity.

I am bringing back the legislation that I have brought to this parliament before in relation to Arkaroola and incorporating it into this legislation. As with the previous bills, my amendment to protect does not include the recently granted mining permits on the flat country, some of which is within the Arkaroola Wilderness Sanctuary, but the vast bulk of which is not. My bill seeks to protect the high environmental values of the mountain and hill country of Arkaroola, including places like Mount Gee.

The next amendments I have seek to ensure that the legislation applies to all companies, to all South Australians, equally, and that we do not have exemptions that create special rules for special people. One aspect of the government's amendment is to enable a declaration that could exclude any part of the state from the operation of either the entire act or parts of the act. There is no qualification in the act as to how that power is to be exercised. So, effectively, the minister could declare entire areas of South Australia to be exempt from, say, all the environmental protection provisions of the Mining Act. Indeed, the minister could declare that the act does not apply to the entire state.

I do not for one minute want to suggest that that is in the contemplation of the government, but I have never found that to be a good reason not to support bad provisions, just because it is not the government's intention to abuse it. This is a provision that I think is open to abuse. My amendment ensures that the exemption only applies in relation to areas that are available to mining, not to the operation of the act itself or parts of the act.

The third set of amendments seeks to make it easier for the minister to protect environmentally sensitive areas from mining. Interestingly, the government has incorporated a provision which effectively declares areas off limits to mining, but the government's intention is that that be a short-term measure while it sorts out competing claims, rather than a long-term protection measure. At present, the only long-term protection measure involves a governor's decision: a proclamation—effectively, a decision of the entire cabinet. We need to make it easier for areas to be protected, because it is one of the principles of environmental protection that it is easy to overturn a protection measure later on, if needed, but it is often impossible to reverse a poor decision to allow exploitation or destruction.

The fourth amendment seeks to level the playing field in conflicts between miners and farmers. This is an issue that has been around for some time; in fact, I had drafted a stand-alone bill to give effect to this levelling of the playing field, but it is timely to incorporate that, given that the Mining Act is up for debate through the government's amendment.

To understand why the playing field needs to be levelled, and how I propose to level it, we need to understand how the act currently works. Under section 9 there is a category of 'exempt land'—in other words, land that is exempt from mining under the Mining Act. That land includes yards, gardens, cultivated fields, plantations, orchards and vineyards, but it also includes land within 400 metres of homes and land within 150 metres of other farm buildings, dams or wells. If land falls within one of these categories, under the Mining Act, mining companies are not permitted to go onto that land to explore or mine, unless—and this is the problem with the current law—the landholder signs a waiver, or the court—in this case, the Warden's Court—allows the mining company to enter the land, hopefully after payment of some compensation, but not always.

So how does that system work in practice? The way it works is that, if a mining company wants to access private farmland that would fall within the exempt category, they effectively threaten or harass farmers to sign waivers. If the landholder holds their ground, if the landholder resists signing a waiver and resists giving up their legal right to protect their crops or land near their buildings or homes, the mining company will threaten them with a visit to the Mining Warden's Court, and the mining company will advise the landholder that the company will win and the farmer will lose, because that is how it works. In some cases legal costs are also awarded against the landholder for daring to insist on their right to keep mining companies a reasonable distance from their property. That is an unfair system.

I recently received an email from a South Australian farmer who was, if you like, a victim of the current unbalanced system. I will not name the person, but I will read a sentence or two from their email:

We faced issues such as [the mining company] not wanting to acknowledge or compensate us for loss of income—their suggestion was for us to simply move our sheep off our land. Also, the company was against establishing reasonable fencing to protect our stock from falling into or drowning in sumps. It is this kind of attitude that causes enormous stress to farmers, who are simply trying to conduct best land and livestock management. The proposed drilling will take place within metres of a permanent and precious water source—the only water available to us. How can this be allowed to happen on this land which is clearly exempt under the Mining Act?

My knowledge of this area comes from my previous experience as an environmental lawyer working with the Environmental Defender's Office, when I had a number of clients come to me seeking advice on this area of law. It took a couple of occasions with very unhappy outcomes for me to realise that the odds were always stacked in favour of mining companies and against the farmers. If members are interested in pursuing this, they may want to read an article in the Law Society of South Australia's Bulletin a few years back. It is an article about the Mining Warden's Court, entitled 'The right to quality of life versus the right to mine'.

In that article, lawyer David Cole writes up his experiences as, I think, the only lawyer in this state ever to have won a case in the Mining Warden's Court on behalf of a farmer. In almost every other case I am aware of—and I have read most of them—the court has formed the view that the Mining Act is about promoting mining, and anyone who dares to stand in the way of mining will be given short shrift in the Mining Warden's Court.

In its pre-election document, the Farmers Federation called for reform in this area. The Farmers Federation pre-election wish list states:

At present, many SA farmers are in a fragile position because of the threat presented by mining exploration. Currently the Mining Act 1971 provides a legal framework to enable private companies to explore for, discover and develop the State's mineral assets with minerals being the property of the Crown. This means that mining companies can enter private land, mine the resources and farmers have no option but to agree to this interference to their land.

The current system with regards to compensation for property owners is not adequate as individual farmers with limited financial resources are often up against a national or multinational company with extensive legal resources and representation.

The mechanism I am proposing to redress this situation is as follows. First of all, we need to reinvigorate the presumption in the Mining Act that exempt land is what it says: it is exempt from mining. I still want to include the ability for mining companies and landholders to negotiate because in most cases it should be possible. If a mining company sufficiently wants access to that land, they should be able to negotiate satisfactory arrangements. I do not want to stand in the way of that, but I want the playing field to be more level.

My amendment proposes that mining companies, at the time of presenting their waiver document for the farmer to sign, will need a small amount (say $500) to enable the landholder get some preliminary legal advice on their rights under the Mining Act. We are probably talking about two hours or less of legal time for the amount of $500. I want to provide for a cooling-off period for farmers who may have been bullied into signing a waiver and subsequently get legal advice. This cooling-off period is similar to that available for those confronted by door-to-door salespeople.

I want the law to provide that the status of exempt land should only be overridden in exceptional circumstances in the absence of the landholder's agreement. The court should be able to order compensation to be paid by the mining company if they so desperately want access to the farmer's land, and I want a provision that prevents adverse legal costs orders against the landholder.

One of the saddest cases I was involved in was when a woman in the South-East tried to protect her amenity by preventing a quarry within a very close distance of her house. Ultimately, she lost in the Mining Warden's Court and was ordered to pay the mining company's legal costs. This all involved a property owner with exempt land. If the mining company wants access to exempt land, it will have to pay more either to secure a waiver from the landholder or go through a court process that applies the law the way it was intended to apply, that is, recognising the interests of our farmers to be able to go about their business.

The next set of amendments I want the chamber to consider at the committee stage is a system of improved public notification and submission rights for members of the public before decisions are made by the minister in relation to the issuing of mining tenements.

At present, the system is that the minister notifies his intention to grant a mining lease or exploration licence, ads go in the newspaper and the public make submissions. The submissions do not have to be considered by the minister. There is no requirement for any submission even to be read. In practice, submissions are always ignored, and mineral tenements, mining leases and mineral exploration licences are granted, including over some of our most important national parks and conservation parks. In fact, I think if you were to go down Rundle Mall and do a quick vox pop you would find that virtually no South Australians understand that over three-quarters of the area of reserves under the National Parks and Wildlife Act is open to mining. The proportion of South Australia that is protected from mining is minuscule.

In fact, it is also something that I have put on the record in this place before (in 2008, and I don't think the position has changed): there is only one full-time equivalent position in the Department of Environment and Heritage to scrutinise applications for mining tenements or the activities of mining companies over National Parks and Wildlife Act reserves. Those reserves collectively cover some 21 per cent of South Australia.

A better system is one that involves genuine public input, similar to that which exists under the Development Act. The mechanism that I think should work is, first of all, in relation to these mining tenements, that public consultation needs to take place before the minister has formed an intention to issue a licence or a lease. In other words, do not wait till the decision has been made and then pretend to the community that you care about what they think. You actually advertise before you make a decision.

Advertisements should be in the newspaper, as they currently are. They also need to be on a website. The regime should involve direct notification to owners of land who are affected. At present if you do not see it in the newspaper then you just do not know about it—no obligation to notify landowners. The government often says, 'Well, these mineral exploration licences are so big we couldn't possibly notify all landholders.' I disagree. The rural areas that we are mostly talking about are not that big. It is not that hard to work out who the landholders are and to notify them individually.

We need a decent period of time to comment: 21 days is current, and that can stay. All landholder comments should be directed to whether or not the mining tenements should be granted and what, if any, conditions should be attached if they are granted.

Submissions—and this is important—need to be published on the website. There is no excuse now for secret public submissions. In a digital age it is the easiest thing to put them up on the web. We are finding other agencies are doing it. Development Assessment Commission and Development Policy Advisory Committee submissions are put up on the web; so too should be submissions in relation to the granting of mining tenements.

We should include a system of public hearings, if there are submissions received. If there are no submissions received, then there is no need for a hearing. I want a regime that mirrors that in the Development Act for development plan amendments or rezoning exercises.

Importantly, I think the act should include a provision—you might think this is radical—that says the minister has to have regard to submissions. What is the point of writing a submission if no decision-maker is obliged to have regard to it? It does not say they have to agree with it, but they should at least have regard to it, because not to have a provision like that is to perpetrate an absolute fraud on the people of South Australia who waste their time writing submissions, not knowing that they are of no effect or force whatsoever. Part of the engagement of our government agencies with the community needs to be that, if someone has bothered to write a submission, the government should be bothered to write back to them and tell them what decision they have made. At present no such regime exists. Again, once a decision has been made it needs to be readily accessible, including on the internet.

So that is the sort of public consultation system that we need. Bear in mind that we are not just talking about applications for exploration rights over private land: we are also talking about public land, and in particular, as I said, three-quarters of our National Parks and Wildlife Act reserve estate.

Another amendment that I think we should be looking at in this act is to give third-party representers the right to challenge decisions that are made by the minister. In other words, let us have an appeal provision similar to that which exists under the Development Act. The appeal criteria can be as narrow as we want, but should include at least, as a minimum, an appeal on the grounds that the exploration and mining operations are reasonably likely to result in undue damage to the environment. In other words, use the same language that the government is already proposing for the bill, which is 'undue damage to the environment'.

Appeals should be heard in the Environment Resources and Development Court. I should also say that disputes between farmers and mining companies need to go to the Environment Resources and Development Court as well, not the Mining Warden's Court.

The next amendment that we need to look at is to incorporate the right of citizens to enforce the law in circumstances where our public authorities are unable or unwilling to do so. People might think that is unusual—to give citizens the right to enforce the law—but this is now a standard provision. It is a provision in our pollution laws (section 104 of the Environment Protection Act); in our planning and development laws (section 85 of the Development Act); and in the Natural Resources Management Act. The ability for people to enforce the act is now a standard provision in environmental and resource legislation.

We also need to make sure that we do not limit that right to a narrow class of people who might have some financial stake in it. Often the people wanting to enforce the law are people who are doing so in the public interest not because they have some opportunity for personal gain. Civil enforcement rights have to be included in this legislation.

One provision which was in the bill, and was then taken out of the bill—and I want to put it back into the bill—is the ability for the minister to give an early no. In other words, before mining companies have expended too many resources on what will turn out to be a fruitless exercise, the minister should be able to say no.

I said it was in, and then it was out, and it is now only partially back in, in relation to mineral exploration licences, and I want it to be included for mining leases. The reason I think that is important is because when you think of mineral exploration licences they are often vast areas (many hundreds of square kilometres) and, yet, the final results of that exploration might be a small area that the company wants to mine.

It may well turn out that, in the vast bulk of the full area of the exploration licence, mining could happily coexist with other landholders and with the environment, it could be done safely and there is no issue. However, if they happen to want to mine in the one biodiversity hotspot or the one area—maybe it is mound springs in the outback or some water resource—the minister should be able to say, 'Look, anywhere else in that exploration area would be okay but not the area that you've chosen.' So, they should be able to give an early no.

Of course, when the minister is evaluating the suitability of land for exploration, that level of inquiry does not come until later in the piece and it probably does not make sense for the minister to evaluate every form of mining that might take place on every square inch of land within that exploration licence. The minister, having worked out exactly what the company is proposing, does need to be able to say no early on.

The penalties in this legislation have been increased. I think the minister, in the second reading explanation, said they had not changed for some 30 years; I think there are $5,000 maximum penalties which probably represent only a fraction of the drinks bill at the average mining company's Christmas party. We are talking minuscule amounts of money for mining companies. So, the government has increased maximum penalties.

I do not think they are anywhere near high enough and I am proposing that they be increased further. The government's current penalty of $120,000 should be half a million dollars and the quarter million dollar penalty should be at least $1 million. Bear in mind that those penalties are commensurate with penalties in other similar legislation—for example, under the Environment Protection Act there are penalties of $1 million and more for deliberate damage to the environment. Why shouldn't environmental offences under mining legislation attract similar maximum penalties? You often have to look as an accountant would at a mining company's operations. If it is going to cost you $5 million to comply with some provision, and the maximum fine for not complying is only a quarter of a million dollars, the economic rationalist would say, 'Let's not comply. Let's hope we are not caught. If we are, the maximum penalty will still make it worth it in the long run.'

There is one final amendment that I will be proposing which relates to the deletion of an obsolete reference in relation to retention leases in relation to uranium mining, and those provisions have no application now that that form of mining can be regulated through other parts of the act.

In conclusion, while the Greens are supporting the second reading of this bill and we acknowledge that the government has taken some steps to bring a 40 year old piece of legislation up to date, we believe that there is still much more that needs to be done. I will shortly be circulating these amendments and I look forward to members' support for them in the committee stage.

Debate adjourned on motion of Hon. J.M. Gazzola.

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