HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-07-20 Daily Xml
Contents
Pdf Xml

MINING (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. P. HOLLOWAY: A number of amendments have been tabled on this bill, including a few at short notice. I understand that, because we want to get this bill underway, some issues may need to be revisited later in the debate. It would be my preference that we can make as much progress as we can on this bill and perhaps, if necessary, recommit or revisit some clauses on which there are still discussions or people making up their mind. Given the volume of the bill, it would be useful if we can make as much headway as we can and perhaps revisit some clauses later, but I guess they will be indicated by members as we go through the debate.

The Hon. M. PARNELL: I have questions on clause 1. I want to ask the minister about the relationship between this bill and the issue of mineral exploration and mining in the Arkaroola Wilderness Sanctuary. I appreciate that I do have a specific amendment on the topic of Arkaroola, but I think this is an appropriate question for clause 1. In response to a question from me on 5 February 2009 relating to Arkaroola, in his answer the minister said, 'I will be bringing some amendments into this parliament.' That is the bill we have before us. He goes on:

Certainly I would not be contemplating any further activity by Marathon at least and until that legislation was in place, and that might well be some time away.

The minister then went on to say:

In any case, I think that at the very least the deficiencies of the Mining Act that were brought to light by Marathon's activities need to be corrected. Then I think the government would have to give consideration to the impact of any further exploration and in particular any public benefit that would come out of that, given the history of this matter. I am not going to consider that until at least those two preconditions are met, and I expect it would be some time at least before the legislation would be considered by this parliament.

This was over a year ago, back in February 2009—

The ACTING CHAIRMAN (Hon. B.V. Finnigan): That is some time.

The Hon. M. PARNELL: —so I am not debating with the minister that it has not been some time. It has: it was over a year ago. What I want the minister to explain to the house is this: exactly which parts of this bill does he see as relevant to resolving the question over Arkaroola?

The ACTING CHAIRMAN: I remind the honourable member this is not question time.

The Hon. P. HOLLOWAY: It is some 15 months since I made that statement. It is clear that the penalties that are provided for in the Mining Act 1971 are fairly inadequate. That is why one of the series of amendments in this bill is to increase penalties to enable the government to deal with situations, so that if there is some breach of the Mining Act there is the capacity to take appropriate action. We find in a number of bills—it is not just the Mining Act: it often comes up under the Development Act and other bills under my jurisdiction—that the options open to government are either at one extreme virtually doing nothing or else basically running the company out of business.

In fact, given that there is a range of severity of breaches that might apply, it is useful to have a range of penalties that go from doing nothing to basically revoking a licence or, perhaps if it is under the Development Act or some other act, of taking some other severe action. That is why it is important that within modern legislation we do have a range of penalties, so that there can be an appropriate penalty.

From memory—and it was 15 months ago—there were a number of issues in relation to, I think, reporting, and so one could refer to the new part 10A of this act—Programs for Environment Protection and Rehabilitation, and probably new part 10B as well—General Provisions Environmental Protection. Although the provisions in question may not have been specifically introduced with Arkaroola in mind, nonetheless some of the issues that arose in that particular incident up there and in other incidents do require strengthened legislation within those areas.

New clause 74AA—Compliance Directions, is also a provision that we believe should be in the act, and that is based, in fairness, not just on our experience with Marathon and the problems encountered up there but also on some other experiences we have had. Just off the top of my head, they are the main provisions that we had in mind as a result of what happened at Arkaroola several years ago.

The Hon. M. PARNELL: I thank the minister for his answer. Can the minister confirm that none of the increased penalties that he referred to, or the increased enforcement provisions or the increased environmental scrutiny, will be retrospective?

The Hon. P. HOLLOWAY: We do not believe so. It is not normal for legislation to be retrospective unless, of course, there are very special circumstances. Normally, the parliament does not support retrospective legislation, but since the honourable member has referred to the Arkaroola situation and Marathon, as I pointed out in answer to that question, 15 months ago, or at least on some other occasion around then, the penalty to the company financially has been very severe. The penalty has continued, given the lengthy delay that it has had in terms of taking any further decision in relation to its activities. The company, as I indicated then, has suffered a pretty severe penalty. I think it would be inappropriate to introduce legislation retrospectively, unless there were very special reasons for doing so.

The Hon. M. PARNELL: The reason for my asking the question about retrospectivity is that I was trying to determine whether there was anything in this bill that could be used in relation to the past behaviour of Marathon Resources or its existing mineral tenement. The minister has answered that question. I have one further point on this aspect of it.

My understanding from the minister's answer is that what he is effectively saying is that we will have a better and stronger act if this bill is passed and then, if anyone misbehaves–whether it is Marathon Resources or anyone else–we will be in a better position to deal with them. In other words, your answer to me suggests that you are looking to future remedies for future breaches, rather than anything in this bill which directly deals with the past breaches by Marathon, because that is the example of their mineral exploration licence and other conditions of operation.

The Hon. P. HOLLOWAY: In relation to that particular issue, under the current act there were certainly remediations. That action was taken under the current act or environmental legislation, which of course can also apply in relation to these matters. In fact, that issue—the issue of burying waste—was remediated, and the company had undertaken that action. That took place under current law.

In relation to past behaviour, if that is relevant to future issuing of licences and so on, then I guess that could be part of the act. I do not want to suggest that the measures we are introducing are retrospective in the sense that any mining company would be subject retrospectively to one of these new provisions. One could apply a penalty for something that happened prior to the act. That would not be appropriate, and we are certainly not proposing that.

The Hon. M. PARNELL: There was one other matter the minister alluded to and, again, the Arkaroola situation provides a useful case study, but it is of general application; that is, the question of sovereign risk or the risk the state sees that it runs when a minister exercises powers under the act. For example, the minister has said in this place words to the effect that, if we do not renew a mineral tenement, or if we do not grant a brand-new mineral tenement, we as a state might somehow be at risk. So, my question of the minister is: does this bill clarify the ability of the minister to not renew or, in fact, not issue a new tenement, as a consequence of noncompliance with conditions, or a breach of some other, either legislative or policy requirement?

The Hon. P. HOLLOWAY: There are conditions under the current act that enable a minister to not renew a licence. That is judged on its merits, if there has been a clear breach of the act. So, in that situation, the exploration licence, under part 2 of the bill, clause 16, which amends section 28—Grant of an exploration licence, is pretty much unchanged. There is an amendment to section 29—Application for exploration licence, which does have some amendments. Essentially there are powers now.

The honourable member talked about sovereign risk. Obviously, that really relates to how the industry, if I can use that term, internationally would judge decisions made under the act, if you refused to grant a licence. Sovereign risk would occur if action is taken by any government under an act that is seen to be unfair or precipitate in some way.

I think the important thing here is that, if one were ever to remove a licence, there has to be a good reason for doing so—that is the bottom line here. There would have to be a clear breach, which is really where the question of sovereign risk would lie. Normally, a company that was abiding by the Mining Act, unless it had breached it in a fairly severe way—and of course, what a severe breach is can be a fairly subjective judgment—would expect its licence to be renewed. Apart from that comment, I don't think I can enlighten the chamber any further.

The Hon. D.W. RIDGWAY: I have just one question on clause 1. I asked this question of the minister in the second reading speech, in relation to the impact on a farming property, where an exploration licence has been granted and something is discovered. The case I am most familiar with is where coal, I think, has been discovered underneath a Yorke Peninsula property.

I just question the impact that it has on that particular landowner's future. It is not an actual, active mine, and I think there is an amendment—I think the Hon. Rob Brokenshire and even the minister now have an amendment—that may deal with it once a mining venture has been established. I went through the minister's summing up and have read it a couple of times, and he answered most of the questions we had, but I do not recall his answering that one.

It appears from the reading of the amendment that it really only impacts when a mine has been established. He may well have had some legal advice as to whether, if exploration has taken place and a resource has been discovered, this amendment (which I think he will discuss with his adviser), in relation to a mine having been established, will satisfy financial institutions that the farmer will be well and truly justly compensated so that they have some certainty about the value of the asset if they wish to sell it or use it and borrow against it to expand their farming operation.

The Hon. P. HOLLOWAY: There is a big area here, as the honourable member has suggested. There was initially an amendment moved by the Hon. Mr Brokenshire. The government has moved an alternative one, which I believe mirrors what I understand is now in the Petroleum Act is a better way to do it to make it complementary. I have had discussions with the Farmers Federation in relation to this matter. The case the honourable member referred to was one in point. If you have a proposal that is still at an uncertain stage as to whether or not it may ever lead to a mining development, does that place an unnecessary burden on a landowner in terms of how they may move forward?

Fortunately, there are not that many cases of where a mine is established on farmland (mainly it happens on pastoral properties as most mineral resources are in remote regions of the state, either pastoral or other crown land), but in those few cases that exist normally the compensation clauses are such that the farmers would be more than adequately compensated as a result of the mining activity. The grey area is where a mine may occur at some stage in future—and it may be some years off because of further exploration required—and it puts a level of uncertainty over landowners. I can see that as being a real problem, and dealing with it is not easy. The government has put forward this amendment. It mirrors what is in the Petroleum Act, and the Hon. Mr Brokenshire had raised this issue. The amendment states:

If the activities of a mining operator on land substantially impair the owner's use and enjoyment of the land—

which is a well understood legal concept—

the owner may apply to the Land and Valuation Court for an order under this section.

One would hope—and certainly it is my understanding—that within the Petroleum Act this clause has worked well, and that is why we would propose putting it in the act to deal with exactly the sort of situation to which the honourable member refers. In the cases that arise here it is a fairly difficult area of law to deal with because there is inevitably some uncertainty about what may happen. Ultimately, if a mine is established the property owner can expect that he would get something, and the norm would be significantly in excess of the market value of the land. I think that in most cases mining companies would rather purchase land on generous terms to resolve these issues. Where exploration is occurring and the discovery has not yet reached the point where a decision can be made on a future mine, that may create some uncertainty and, if an owner can establish that that is impairing their use and enjoyment of the land, then they would have a claim.

The Hon. D.W. RIDGWAY: Has the minister or the department sought any legal advice in relation to that amendment he is proposing so that, from the viewpoint of financial lending institutions, they would have some security in knowing that their interests were protected along with those of the land owner? Has any advice been sought on this matter? If that advice has been sought and it has some legal standing, it may alleviate the uncertainty where, as in this particular case with which we are all familiar, we have a resource discovered on a property that may be mined at some point in future.

The Hon. P. HOLLOWAY: Obviously banks will take their own counsel on the impact of any amendment. If it is up there, all the government can reasonably do is take its own advice from crown law as to the impact. Obviously financial institutions will make their own assessment about what the impact might be.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.L. BROKENSHIRE: I move:

Page 4, lines 11 to 13—Delete subclause (1) and substitute:

(1) Section 6(1), definition of appropriate court, paragraph (c)—delete paragraph (c).

I advise the committee that this can be a test amendment on the concept of shifting the jurisdiction for most mining matters from the Warden's Court to the Environment, Resources and Development Court. I set out for members in the second reading why we believe this is necessary, and in essence it is because of our amendments and the government's own amendments involving groundwater and the environment as major considerations. It is our opinion, and that of others much more learned than ourselves, that the ERD Court is specialised in this area and will be a better way of managing this than the Warden's Court in determining these specific issues and other relevant issues.

The Hon. P. HOLLOWAY: The government opposes this amendment. The Warden's Court provides a mining proponent and interested parties, such as landowners, a court whereby matters pertaining to mining can be dealt with by a magistrate who has knowledge of the Mining Act—in other words, a specialist in the area. The Warden's Court has the power to call on any relevant environmental expert for information pertinent to a particular case.

The proceedings in the Warden's Court are less formal than in most other courts. In the Warden's Court, applicants may represent themselves, and they often receive guidance from the court. The honourable member's proposal would be detrimental to some landowners, as the ERD Court is a more formal court, and it may be less appropriate to represent oneself.

Starting at the ERD Court reduces the ability to appeal to a higher court that is relatively low cost. So, if you went to the ERD Court and lost, the next court of appeal would be the Supreme Court, which becomes costly for all parties, whereas with the Magistrates Court, one can, if necessary, appeal to the ERD Court.

Plaint notes lodged with the Warden's Court are heard within one week. In the ERD Court, they are heard generally within one month. Plaint notes in the Warden's Court cost $46 versus $105 in the ERD Court. When one looks at it, the Warden's Court is a specialist court. Generally, the same magistrate hears matters there, or perhaps several magistrates with expertise in this area would hear such matters.

They are very familiar with the act and, as I said, we believe that it is preferable for those who need to deal with the court to deal in a specialist low-cost jurisdiction that enables people to represent themselves more easily rather than have to go before the more expensive court where the proceedings will be more formal.

The Hon. D.W. RIDGWAY: I indicate that the opposition has sought some advice, and the shadow minister, Mitch Williams, and I have had a number of meetings on this amendment bill and all the tabled amendments. It is our view, and advice that we have received, that it is likely that this will increase the cost for litigants without really conferring any additional rights on the landowners.

Notwithstanding the Hon. Mr Brokenshire saying that there are people more learned than all of us (and there are probably a lot of people in the world more learned than all of us), the advice we have received is that there will be increased costs (and I think that the minister indicated that) without conferring additional rights and will therefore bring no advantage to landowners, so the opposition will not be supporting the Hon. Mr Brokenshire's amendment.

The Hon. M. PARNELL: I was going to speak at some length to try to convince members of the opposition that they should support this amendment, but I will be very brief now. I will say a couple of things. First of all, I have another amendment which seeks to transfer a particular jurisdiction from the Mining Warden's Court to the Environment, Resources and Development Court, and that is that jurisdiction that relates to conflicts between landowners and miners. There is possibly some argument that, where there are disputes between different mining companies, they might be more than happy with the Mining Warden's Court, but I think they would be equally happy with the Environment, Resources and Development Court.

Just to take issue with some of the things the minister said, he referred to the Mining Warden's ability to seek expert assistance. The ERD Court is in exactly the same position and, in fact, they have some dozens of expert commissioners, experts in different fields, including the sorts of fields that are relevant to mining. Experts in the fields of groundwater, for example, are included in the numbers of the part-time commissioners of the ERD Court.

The minister said that the Mining Warden's Court is less formal. I think that some of the members of the ERD Court would take exception to that because, whilst there are formal proceedings involving lawyers, it is also a jurisdiction that prides itself on its ability to deal with unrepresented litigants.

I would remind the chamber as well that the ERD Court has in its legislation a very important provision, that is, the provision for a roundtable conference before a matter actually gets to court—the ability under section 16 of the ERD Court Act for the parties to sit around a table and see whether a resolution can be reached without the need for a court trial (it does not come any better than that), rather than having to go straight into an adversarial court case.

The minister made the point that if the ERD Court is made the relevant court, then appeals would need to go to the Supreme Court. I do not think that that is necessarily the case because, where an ERD Court comprises a commissioner or a single judge, an appeal would lie to the Full Court of the Environment, Resources and Development Court, which usually comprises a judge and two commissioners. I have been there many times over the last 15 years to know that that is the result of a challenge in many cases, and we could make sure that that was the case in this legislation.

The Hon. P. Holloway: Did you win any, though?

The Hon. M. PARNELL: The honourable minister asks whether I won many cases. In fact, he has me on a soapbox now because my record was 10-nil in the environment court at one stage, and in fact I did win this state's longest ever environment trial back in 1999 against 42 tuna feedlots in Louth Bay which unfortunately did not survive the rigours of the Supreme Court with its lack of understanding of environmental issues that the ERD Court had.

I appreciate that this amendment is not going to succeed, but I urge members to keep an open mind in relation to the more limited role that the ERD Court might play in those fairly rare but special cases of dispute between landholders and miners, rather than disputes between mining companies.

Amendment negatived.

The Hon. D.W. RIDGWAY: I move:

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

'mining operator' means the holder of the relevant mining tenement and includes, for the purposes of Part 9B, any person by whom, or on whose behalf, mining operations are carried out under this act;

As I indicated in my second reading contribution, in our view, there has been some confusion about exactly who the mining operator is, whether it is somebody who is just the tenement holder or, in fact, the person who is undertaking those particular actions on behalf of the tenement holder.

I note that there is some discussion within the South Australian Chamber of Mines and Energy. I will read into the record this letter that I think is on the way to the minister and indicate that it may be better to test the mood of the chamber on this particular amendment. It may even be the will of members here to perhaps recommit this particular clause if there is a change of view from the government over the coming weeks. I think the understanding is that we will progress this bill as far as we can, but we will probably not complete the committee stage before we break.

This letter is written by SACOME to Dr Ted Tyne, the Director of Mineral Resources. I will not go into all the preamble, but the letter states as follows:

...SACOME has a largely common position with PIRSA regarding the bill and the various proposed amendments to it. However, SACOME is not in agreement with the state regarding the proposed amendment in the bill to the definition of 'mining operator'.

SACOME, through the Hon. D. Ridgway MLC, has proposed a 'compromise' amended definition which recognises the state's valid reasons for amending the definition (as it pertains to statutory obligations), but maintains the current position relative to Part 9B.

In summary SACOME is of the view that the state's proposed amendment is a retrogressive step which does not take account of the provisions of Part 9B of the Mining Act and the legal interpretation, and practical implementation, of those provisions uniformly given by the resources industry in the state since the enactment of that part.

SACOME thus submits that the definition as proposed by the Hon. D. Ridgway MLC should be adopted or, alternatively, that the current definition should be retained pending more detailed consultations regarding the implications of the proposed change.

With members' indulgence, I will just read the extra bit, which is about a page. The letter continues:

A. Background

1. The state's proposal to amend the definition of 'mining operator' was introduced into the bill after the completion of the lengthy consultation process with industry.

2. This late change in the bill was not drawn to SACOME's attention at that time.

3. Upon SACOME becoming aware of the change, it immediately raised its concerns with PIRSA, requested further meetings with PIRSA regarding the change and suggested that direct discussions should take place between crown law and SACOME's representatives.

4. These requests were not acceded to.

5. SACOME consequently sought the assistance of the Liberal Party and, through the Hon. D. Ridgway MLC, proposed an amended definition which sought to both recognise the reasons behind the state's proposed changes to the definition (as understood by SACOME) and the need to preserve the existing definition for the purposes of Part 9B.

B. Reasons

1. Resources industry farm in and joint venture agreements typically allow for a party farming in, who is not the registered holder of joint venture tenements (farminor), to conduct mining operations as the operator.

2. Clearly the farminor obtains its rights to carry on mining operations for the purposes of the Mining Act from the joint venture party who is the registered holder of the joint venture tenements (farminee).

3. Crown law appears to draw from this position that all contracts entered into by the farminor, as operator under the joint venture, are necessarily entered into as agent for the farminee, including native title mining agreement under Part 9B of the Mining Act.

4. The state consequently holds that the proposed new definition of 'mining operator' only clarifies the intent of the current definition, but makes no substantive change to it.

5. SACOME, and legal practitioners working for the resources industry, with whom SACOME has consulted, do not share this view.

6. On the contrary, the view of SACOME and the industry is that:

a. at law and in practice a distinction is to be drawn between the capacity of a farminor in conducting mining operations and its capacity in entering into contracts. The fact that a farminor gains its rights to conduct mining operations from the farminee does not dictate the capacity in which the farminor enters into contracts relating to those operations;

b. the consistent practice under joint venture agreements is for a farminor to enter into relevant contracts, as operator, in its personal capacity;

c. this practice is consistent with the commercial context within which those contracts are entered into, i.e. the farminor is conducting on-ground operations and the farminee does not wish to bear any contractual risks for those operations (although the farminee clearly remains liable for the statutory obligations of a registered holder under the Mining Act);

d. this practice is recognised by Part 9B of the Mining Act and, in particular, the provisions of section 63L, which defines the proponent who is recognised as the person to enter into a native title mining agreement under the part.

7. Consequently, SACOME and the industry do not see the proposed revised definition of 'mining operator' as not effecting any substantive change. On the contrary, the revised definition will, in their view, give rise to a significant, retrogressive and prejudicial change to the basis upon which native title mining agreements under Part 9B of the Mining Act have been, and continue to be, entered into, and which also does not reflect the commercial realities of resources industry joint venture agreements.

8. SACOME thus submits that the amended definition of 'mining operator' proposed by the Hon. D. Ridgway MLC should be adopted. Alternatively, given the importance of this matter and the late juncture at which limited consultations have taken place regarding it, SACOME suggests that any amendment of that definition be deferred and not included in the bill. This will enable further consultations to take place between the state and industry with a view to reaching an outcome which takes account of both parties' positions and concerns.

I am not a legal person and, to me, it is reasonably complicated. I indicate that was a draft provided to the opposition by SACOME. I think it indicates to members that there are some significant grounds for determining why we should put this to the test and hopefully get support for this particular amendment, at least, with the understanding that over the winter break, if further agreement or discussions take place between the government and SACOME and there is a different position arrived at, we would be happy to sit down and facilitate that when we return later in the year.

The Hon. P. HOLLOWAY: I thank the honourable member for his comments. This is a quite technical legal issue as to what the impact of the honourable member's amendment might be vis-a-vis the amendment put by the government in the bill. Perhaps I should firstly put the government's position on the amendment and then I will indicate how we might go forward in dealing with it. Perhaps I should also indicate at this stage that I understand there have been some further discussions between SACOME and its legal people and PIRSA and its crown law advisers in relation to this matter, but it is probably something that would benefit from further discussion.

I will indicate the government's position first. The Hon. Mr Ridgway's amendment proposes to amend the definition of 'mining operator' to provide that for the purposes of part 9B of the Mining Act, which is the part that applies to native title, the operator, not being the holder of a tenement, may enter into a native title mining agreement and be afforded the same rights as the holder for the purposes of part 9B. The definition proposed by PIRSA in the bill does not propose to change the law as it currently applies; that is, the operator is the person who has been authorised by a lease or licence to conduct mining operations. The person authorised is the person to whom the lease or licence has been granted.

It has become apparent to PIRSA that, at times, the mining industry and its legal representatives have erroneously misconstrued 'mining operator' to mean employees, subcontractors or agents that may be authorised to undertake mining operations for or on behalf of the tenement holder. The amendment proposed by PIRSA seeks to clarify beyond doubt that the operator is the tenement holder.

It is critical that the definition in the bill remains unchanged to ensure that, without doubt, it is ultimately the tenement holder who is liable for any matters relating to the tenement. The definition proposed by PIRSA is fundamental to the effective administration and regulation of the act. The further amendment, the government would argue, increases the risk of litigation for the government due to the regulatory uncertainty.

The proposed Ridgway amendment will not change the perceived ambiguity, we believe, of how a mining operator is presently defined in the act and will not provide certainty to industry, as it does not change the status quo with respect to part 9B. Interpretation of the act will still conclude that, where defined in the act, 'mining operator' is the holder of the tenement, including for the purposes of negotiating a part 9B native title mining agreement.

For the purposes of negotiating a native title mining agreement under part 9B, the tenement holder could, under a relevant and lawful authorisation (that is, a power of attorney, instrument of authorisation, etc.), give a joint venturer or mine operator the authority to enter into such an agreement on their behalf. So that capacity exists under part 9B but certainly it is strongly the government's view that it should be quite clear that the ultimate responsibility here lies with the tenement holder.

As I say, the matter is quite complicated. How I propose that we proceed is that at this stage perhaps I could indicate that the government will not oppose the amendment so that it will stay live, but we would reserve the right to recommit at a later stage when there has been further discussion on this matter.

So I indicate that, although the government does not support the amendment at this stage, we are happy to keep it live, if you like, and after further discussions we can come back and revisit this matter by way of recommittal. Should we oppose it now, I think it would be much more difficult to recommit, so we will take that course of action.

The Hon. M. PARNELL: I understand that we are not going to have a debate, necessarily, on the merits of the amendment now, but I want to ask whether the government could take at least one question on notice in relation to this when reconsidering it over the winter break, that is, whether or not there would be any scope under this new definition of 'mining operator' for companies to shift liability to perhaps subcontractors or colleagues with shallower pockets than the original tenement holder. What I would be concerned about is, especially in a bill where we are increasing penalties and making compliance a little more rigorous, that we would not want to see the person with whom the buck finally stops having no bucks at all. So, could the minister consider that question and, if we do recommit this, bring back an answer later?

The Hon. P. HOLLOWAY: I am happy to consider that matter. The government believes that you are likely to have more accountability with the definition as we propose it that says it is the tenement holder. If the honourable member is suggesting that some larger company might use an impecunious party to be a holder, I think that would be an extremely unlikely and a risky business, given the potential value of a mining tenement. Nonetheless, the matter having been raised, I will look at it and cover that point when we revisit it.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Page 5, after line 23—Insert:

(8a) Section 6(1)—after the definition of surface stratum insert:

underground water means—

(a) water occurring naturally below ground level;

(b) water pumped, diverted or released into a well for storage underground;

I advise the house that this can be a test amendment on the question of legislating specifically to protect groundwater, or as it has been defined under advice from parliamentary counsel, 'underground water'. The concern expressed not only by the Farmers Federation but others is that, whilst legislating to protect the environment is welcome, to ensure that the policy direction of those enforcing the act is correctly focused on the number one environmental issue, we separately define the number one issue, in our opinion, namely, underground water. We do not believe this creates any ambiguity in the law, rather it makes it loud and clear to the department, miners, farmers and the court alike that underground water is a primary and major environmental concern.

I did ask the minister about this generally in the second reading debate. Again I have concerns and people have raised their concerns with me about inadequate protection of the underground water supply, particularly when you have the person issuing the licences having a pretty solid role in monitoring this. Mining is one of those areas where, potentially, you can put at risk significant aquifers. I think that this amendment is not a major impediment on mining but it is important in protecting our number one resource, that is, quality water.

The Hon. P. HOLLOWAY: The government opposes the amendment. It is one of a series of amendments the Hon. Mr Brokenshire has moved that proposes that underground water (as defined) shall be a relevant consideration in various aspects of the act. The Hon. Mr Brokenshire proposes to introduce a new definition of underground water. In the honourable member's speech the point was made that the Farmers Federation considered that surface and underground water should be considered separately to heighten the importance of underground water when considered pursuant to the act.

All aspects of the proposed definition of environment are equally as important and will individually be risk assessed to determine any possible impacts. The inclusive definition of 'environment' ensures all aspects of the environment are considered throughout the application of the act. It is important to understand that all aspects of the environment interact and must therefore be considered holistically, particularly when assessing against a mining proposal. So, of course, the impact on sub-surface water is a key part of many mining proposals and one needs to look at that holistically rather than, we believe, as the honourable member proposes, to sort of break up consideration with this new definition of underground water.

The Hon. D.W. RIDGWAY: I indicate the opposition will not be supporting the Hon. Robert Brokenshire's amendment, the reason being that the government's bill amends section 6, inserting after subsection (3), subsections (4), (5) and (6). New subsection (4) provides:

Subject to subsections (5) and (6), environment includes—

(a) land, air, water and (including both surface and underground water and sea water)—

It then goes on to include organisms, ecosystems, native fauna and other features or elements of the natural environment. The opposition is satisfied that the new definition as proposed to be inserted by the government does cover all water.

Notwithstanding that the Hon. Robert Brokenshire and, I think, the Farmers Federation are saying, 'Let's heighten the value or the importance placed on groundwater,' in this dry state, whether it is surface water, groundwater, rainwater, sea water, dirty water, clean water or whatever sort of water, it all has the same importance and the opposition is happy with the definition to be inserted by the government.

The Hon. M. PARNELL: There is a point of view which would say that this amendment is not necessary because water is already taken into account. I think that is probably correct. The second part of that is that water is taken into account. It is part of a more holistic definition of the environment. In fact, I know from personal experience, having made inquiries and representations in relation to a proposed mine in the Adelaide Hills, the reopening of the Bird In Hand Mine, where impact on water is a key issue. I have talked to people in the department and they make it very clear that a water licence would be required because it is a water-affecting activity.

Having said that, the honourable member's amendment seeks to put added emphasis on water. I do not believe that is necessarily to the detriment of other aspects of the more holistic definition of the environment. We could pull out biodiversity and we could give that extra attention as well—and I would like that. My approach to amendments like this is: does it do any particular harm? Will it result in any unintended consequences? I think the answer to both those questions is: no, it will not, but it will simply single out this aspect of underground water to make sure that it is harder to ignore because it is named separately as a consideration.

Whilst I am of the belief that this amendment might not strictly be necessary for the operation of the act, because I believe the act will take groundwater into account, in any event, if push comes to shove and we have to decide whether or not to support it, we will be supporting it because we do not believe it causes any great harm.

The Hon. R.L. BROKENSHIRE: I appreciate the comments of all honourable members. I ask the minister this because of the comments of the Hon. Mark Parnell. Often a mining venture is open cut, particularly in the Greater Adelaide area (but also in other areas), but I raise the Greater Adelaide area because that is where some of our most pristine and important aquifers are. With respect to biodiversity, with an open-cut mine, they get approval to mine and you can forget the biodiversity because a bulldozer comes in and it has gone—all the vegetation has gone, the birdlife has gone, etc. I witness that regularly pretty close to home, but I wear it in the interests of the economy, as do other farmers and other people in this state.

What I want from the minister is some assurance that there is going to be absolute focus, monitoring, control and policing over the underground aquifers when mining operations are occurring. It is one thing to have it as it is now but, without a specific focus, you can have a mine that can take hundreds of metres right through the subsoil and soil structures to the point where they finish mining. On behalf of constituents and others, I am not assured at this point that, in the way it is done, there is sufficient focus, checks, controls and balances on impact on recharge and possible quality aspects to that aquifer.

What assurance can the minister give us that his department is going to have enough focus on this vital area? With mining, you could end up with the situation that they look at the environment generally, they sign off on that, in comes a massive open-cut area and the next minute food sustainability is at risk because both the recharge and the quality of the aquifer have been damaged or destroyed.

The Hon. P. HOLLOWAY: Such considerations are obviously very important. I think the Hon. Mark Parnell referred to the proposal at Bird in Hand, and I think he made the comment that it would be necessary to get a water licence. Clearly, issues such as water are absolutely crucial to any decision made on a proposal such as that. The department would rely very heavily on the advice of the Department of Water. Obviously, decisions that have any impact on groundwater are considered very closely, and the department would rely on the advice of the relevant agencies in relation to that.

The honourable member referred to the sandmining near his property; is that Glenshera? If I recall correctly, some years ago, in fact, part of that area that was mining was actually put in a reserve during my term as minister. So, there are some constraints on that which reflect the sort of compromise that one makes in such decisions.

Amendment negatived.

The Hon. R.L. BROKENSHIRE: I withdraw my amendments Nos 3 and 4 as they are consequential. I move:

Page 5, after line 39—Insert:

(7) For the purposes of this Act, South Australia's food security means a situation where—

(a) all South Australians have physical and economic access to safe and nutritious food that will meet their dietary needs and food preferences so as to be able to lead an active and healthy lifestyle; and

(b) insofar as is reasonably practicable, the food that falls within paragraph (a) may be met from food grown or produced within South Australia; and

(c) export opportunities for South Australian food producers are protected.

Family First is certainly, generally speaking, supportive of mining, and we hear of all the great opportunities occurring as a result of mining. However, equally important is national food security, and, in our case obviously, state food security. These amendments will again be a test clause on the introduction of additional consideration of food security in mining applications.

In addition to adding the environment—and that is what we have just been talking about—it also makes sense in our view to add food security considerations. We are rapidly running out of our intensive agricultural and horticultural land, as it is. Also, we are rapidly importing more food at a substandard quality from overseas. We believe that with these miscellaneous amendments we should be focusing on food security.

I am fairly active on the issue of food security generally, but so are a lot of my colleagues in this council and the lower house and, I might say, also in Canberra, both in the Senate and the House of Representatives. I am confident, as a result of what I hear from senators like Senator Bill Heffernan, that the Leader of the Opposition would realise that many elements of the Liberal Party are still very focused on food security.

We are taking a stand here on mining but, as I explained to SACOME, this is not about setting up another hurdle for mining for hurdle's sake. Those miners need to be fed like the rest of the state. As I have said before, mining brings considerable value to our economy. The National Farmers Federation recently launched a federal election manifesto which attests to the fact that the only true sustainable industry on the land is farming. We want to ensure it is protected and we believe that it is only fair and reasonable that, just like adding in the environment focus (which we welcome), food security should be a consideration.

The Hon. P. HOLLOWAY: The government opposes the amendment. The Hon. Mr Brokenshire has a series of amendments that proposes that South Australia's food security (as he defines it in his amendments) shall be a relevant consideration in various aspects of the act. The Hon. Mr Brokenshire proposes to introduce a new definition of SA's food security.

In the honourable member's speech, the point was made that the minister would be forced by the act to consider the impact that mining activity would have on our ability as a state to produce our own best quality, healthy food for not only South Australia and the nation but also export in the regions if the mining activity were allowed to proceed.

I would just make the point, and I think I did this in response at the second reading stage, that the threat that mining may pose to South Australia's food security is not really a credible risk, considering the very small footprint of mining. It was once told to me, and I am not sure how true it was, but I remember at one conference somebody said that the footprint of mining was less than hotel car parks. That might well be so, if one measured the area. Certainly, it is a very small proportion of the country's land mass and many mines are in areas that are not productive land.

South Australia's food security as a relevant consideration when assessing a lease or licence would be difficult to assess given the uncertainties about whether a food was healthy or not and the volume of food required to be considered. The current definition of environment and exempt land provisions address the economic value of the land use. I would like to suggest, and I think I made this point in the response, that urban growth is arguably a more relevant risk to South Australia's food security. Mining within the Greater Adelaide area is a temporary land use and, in many cases, full return to agricultural land is achieved. If one looks at sand mining and other forms of mining, there can be a full return to agricultural land.

Mineral resources within the Greater Adelaide area is part of one of the amendments in this series by the Hon. Mr Brokenshire—he wanted to restrict that unless it had parliamentary approval. Mineral resources in the Greater Adelaide area are predominantly extractive mineral leases. There are only two exceptions I can think of: probably the Angas mine at Strathalbyn—if that is in greater Adelaide, it might just sneak in—and, arguably the Kanmantoo mine, which was an old mine in any case and is about to reopen. Those are the only metalliferous mines I can think of. The rest of the mineral resources within the Greater Adelaide area would be predominantly extractive mineral leases. I am advised that 25 per cent of these leases are owned by the landowner. Landowners under the act already have a right of veto over extractive minerals so, clearly, in a number of these cases, the landowners have chosen to provide their land for extractive purposes.

Extractive mineral leases often supplement a landowner's income, particularly farmers. I would also make the point that hard rock quarries within the greater Adelaide area are located on land which is generally not highly productive. That is area that is, arguably, reserved for other purposes so, if they are hard rock, almost by definition they tend not to be highly productive. To restrict mining for extractive minerals to outside the Greater Adelaide area would significantly increase costs for urban development, particularly housing, council works, road maintenance, etc., which would lead to increased rates and so on.

In other speeches, I have mentioned the fact that in Sydney, I am informed, most extractive materials there have to be railed in from some hundreds of kilometres away from Sydney because there are very few sources of extractives, and that is one of the reasons why the cost of housing and other facilities in that area are so high.

So, I think when one puts it all together, the great threat to food security is not, I would suggest, mining but that there are other, perhaps inappropriate, subdivisions. Speaking with my other hat on as Minister for Urban Development and Planning, I would say that it is actually the type of subdivisions for country living, where you have holdings that can vary from one to five or 10 hectares. I would suggest that these have far more impact on food security than a couple of metalliferous mines in the Greater Adelaide area and hard rock quarries that are used for road maintenance or other construction purposes.

They have far less impact than, as I said, inappropriate development. I think one of the things that I, as Minister for Urban Development and Planning, have made a point about on a number of occasions is that, if we are really serious about preserving high value agricultural land, we must encourage councils—or perhaps take action outside them—to ensure that we confine our urban growth to within particular boundaries and restrict subdivision, particularly those smaller sized lots, which can take a lot of land out of agricultural production. For those reasons, the government opposes this amendment.

The Hon. D.W. RIDGWAY: I indicate that the opposition will also be opposing the Hon. Robert Brokenshire's amendment. While we do have some sympathy with the farming community, I think I agree with the minister that the biggest threat to our farming areas is the encroachment of urban development. That is why the opposition was happy to support the Hon. Mr Brokenshire's Willunga Basin bill in the last parliament: we saw the importance of those particular areas.

The minister mentioned the footprint of mining and how small it is. I will relate my own personal experience when I was farming with my brother. We had an extractive minerals lease for a small sand mine on the property. The area of the extractive industries lease or extractive minerals lease was about 10 acres of some 1,400 acres of land that we owned on that site. That sand mine provided a living—and, I might add, it was probably some of the poorer quality land on the farm (quite poor in pasture and not much good for cropping)—for one of the two families who lived on the farm.

It turned a relatively unproductive piece of our farm into something that could sustain one of the families, especially if we had had a bad season—particularly drought or some particularly bad commodity prices. So, I have a real life experience of where we were able to utilise the resource and take the pressure off the rest of the farm. Certainly, I agree with the minister in terms of where you might have a landowner (such as we were) who has an extractive industries lease and is able to augment their farming income. It certainly provided a much more profitable farming business and much more diverse business, and it took the pressure off the rest of the farm.

As I said, it is the opposition's view that urban development is the biggest encroachment. The clash between mining and farming is probably relatively small, and therefore we will not be supporting the amendment. Notwithstanding the opposition's passion for protecting our farming interests, we do not believe the threat is from mining industries.

The Hon. M. PARNELL: This amendment seeks to make the issue of food security a relevant consideration to be taken into account in the issue of mining tenements or conditions attached to those. It is an important issue that has been neglected. What often happens is that, when the decision is made as to the best and highest use of land, a pecking order is created, and at the very top of the food chain is the mining industry, and effectively it will get whatever land it wants regardless of what other use it has.

The honourable member's amendment does not say that, just because someone is growing food, they will always prevail over a competing claim from a mining company, but it will be a consideration that needs to be taken into account. What we must remember is that the mining industry looks at the world very differently from the rest of us. Often their maps bear no resemblance at all to the surface features of the land—in fact, it is geological anomalies beneath the land. Like an X-ray they go through the woodlands and the biodiversity; they go through the ploughed fields and the crops and simply look at what is underneath.

The minister referred to what he described as the small footprint of mining. That may well be the case when you look at it one way, but I have recently spent time talking to some colleagues from Queensland, who were talking about the impact of the coal seam gas mining, I think on the Darling Downs, where they are proposing to drill some 40,000 bores through some of the most productive farming land in that state. There are, in fact, hundreds of square kilometres of farming land that are going to be affected.

I know that in this bill we are talking about minerals and extractive industries, such as quarrying, rather than oil and gas. The point is that the Mining Act is for all forms of mining. Whilst we do not have strip coalmining with its huge footprint that they have elsewhere, there is certainly capacity in this act to approve that sort of mining. You would then find that the footprint is, in fact, much larger.

So, the position that the Greens bring to this amendment is that we appreciate what the mover is seeking to do. We also share his concerns about the lack of attention paid to food security. Whilst I agree with the minister that, in pure hectare-affected terms, there is a far greater threat from urban expansion, I still think that this bill would benefit from at least including in the list of relevant considerations the fact that there are other uses of land, including food production, that should be taken into account. We will be supporting the amendment.

The Hon. R.L. BROKENSHIRE: I thank honourable members for their comments. To summarise the minister's own explanation to this, he is saying, 'Look, it is a small footprint. Most of the mining is outside the Greater Adelaide area.' Of course, this does not refer specifically to the Greater Adelaide area, but I take the fact that the minister is including some other amendments. I ask the minister, given that he is saying there are so few times when it would have significant impact, what is the impost of considering food security when issuing a licence? It is obviously not going to be a major impost.

The second question I ask the minister is this. The other arm of the government's department is primary industries. Did his department go and seek a comment from primary industries before responding no to this amendment, or was it simply the mining sector, SACOME, and the mining part of PIRSA that the minister's department got a comment from, with respect to his response?

The Hon. P. HOLLOWAY: In relation to the latter, I take responsibility for the point of view that we have adopted, but I, and the minerals and energy division, have lots of discussions with other colleagues in PIRSA in relation to agricultural matters.

I think the point is that, if you start to introduce the concept of food security as yet another consideration, what really does it mean? How is it going to be assessed? In a sense, it just adds another factor that would have to be looked at. As I think most members conceded, mining, particularly the sort of mining we have in this state, generally has very limited impact on food production, but this would give rise to a number of other considerations.

I think that, in any case, as I pointed out earlier, the current definition of environment and also the exempt land provisions address the economic value of the land use. Generally speaking, the fact that there are so few mining operations within the settled and agricultural areas reflects the fact that the mining industry would rather go looking elsewhere if it can. It is only if you have a fairly attractive target, and it would have to be a very, very high value resource before you would ever contemplate developing a mine in a concentrated agricultural district. Just the difficulties around it I think would act as a sufficient deterrent, but in any case they are taken into account, I would suggest, under the act under those provisions that relate to both the definition of environment and those exempt land provisions that address the economic value of land use.

I would argue that we do take them into account in any case, not just under the letter of the law but also practically because, as I said, any mining company that was seeking to develop would, if it has the choice, concentrate on areas that are well away from primary production if they have the opportunity to do so. As I said, it is only if you have a really high value resource.

In summary, I think there is consideration given to the impact that mining has on alternative land uses. Generally speaking, the value of minerals would be vastly in excess of the value that the land will generate, although there are other cases. The Hon. Mr Ridgway said that you might have some resources located on low value land anyway, but I would argue that there is already sufficient consideration given through the other parts of the act to the alternative uses of land for agriculture and already a number of constraints against mining in agricultural areas both explicit and taking into account the political reality of trying to develop mines in those areas.

Amendment negatived; clause as amended passed.

Clause 5 passed.

Clause 6.

The Hon. M. PARNELL: I have a number of amendments to clause 6 but, given the comments that the minister made earlier and the support for the Leader of the Opposition, there are some matters that it might be best not to resolve now. This amendment is one that falls into that category: it is the Arkaroola amendment and it relates to a location that is very remote. I know a number of honourable members are keen to go there and have a look. While I do not want to delay unnecessarily the passage of this bill, I would at least like in the first instance if we could delay consideration of amendment No. 1 until later and its companion amendment in my amendment No. 34. So if it is an appropriate procedural motion, I would like to move that consideration of amendment No. 1 [Parnell 1] be taken into consideration immediately prior to amendment No. 34 [Parnell 1].

The PRESIDENT: No, you cannot do that. I will not let you do that. You might get away with a fair bit, but you are not getting away with that.

The Hon. P. HOLLOWAY: Can I suggest an alternative to facilitate debate in the chamber? Perhaps a better way to proceed would be to postpone clause 6 and take that into consideration after the remaining clauses of the bill have been considered. I move that to facilitate the debate.

Consideration of clause 6 deferred.

Clause 7.

The Hon. M. PARNELL: I move:

Page 6, after line 7—Insert:

9AA—Waiver of exemption (including cooling-off)

(1) A mining operator may, by written notice given personally or by post to a person who has the benefit of an exemption under section 9, request the person to enter into an agreement with the operator to waive the benefit of the exemption.

(2) The notice must set out—

(a) details of the mining operations proposed for the exempt land; and

(b) details of the circumstances that the mining operator considers justify the carrying on of mining operations on the exempt land; and

(c) the terms of the proposed agreement, including any conditions designed to minimise the effect of the mining operations on the person; and

(d) the person's right to cool-off under this section; and

(e) the mining operator's right to apply under this section to the ERD Court for an order waiving the benefit of the exemption.

(3) An agreement to waive the benefit of an exemption—

(a) must be in writing; and

(b) takes effect on the expiry of the cooling-off period (unless earlier rescinded).

(4) A person who has entered into an agreement with a mining operator to waive the benefit of an exemption may, by giving the operator written notice before the expiration of the cooling-off period of the person's intention not to be bound by the agreement, rescind the agreement.

(5) A notice rescinding an agreement may be given—

(a) by giving it to the mining operator personally; or

(b) by posting it by registered post to the operator's ordinary place of business (in which case the notice is taken to have been given when the notice is posted); or

(c) by leaving it for the operator at the operator's ordinary place of business with someone apparently over the age of 16 years; or

(d) by transmitting it by fax or email to a fax number or email address provided by the operator (in which case the notice is taken to have been given at the time of transmission).

(6) If in legal proceedings the question arises whether a notice rescinding an agreement has been given in accordance with this section, the onus of proving the giving of the notice lies on the person rescinding the agreement.

(7) If a mining operator has been unable to reach an agreement to waive the benefit of an exemption with a person to whom the operator has given a notice under this section, the mining operator may apply to the ERD Court for an order waiving the benefit of the exemption for the person (the respondent).

(8) The ERD Court may refuse to determine an application unless the mining operator satisfies the Court that—

(a) the notice requesting the respondent to enter into an agreement complied with subsection (2); and

(b) the operator provided the respondent with information sufficient to enable the respondent to properly consider the request; and

(c) the operator made a reasonable attempt to reach agreement with the respondent.

(9) On an application, the ERD Court may—

(a) if the mining operator satisfies the Court that—

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

(ii) the adverse effects of the proposed mining operations on the respondent can be appropriately addressed by the imposition of conditions on the mining operator (including the payment of compensation to the respondent), make an order waiving the benefit of the exemption for the respondent and imposing conditions on the mining operator; or

(b) if the Court is not so satisfied—refuse the application.

(10) The ERD Court may not make an order for costs against the respondent.

(11) If an agreement or order to waive the benefit of an exemption takes effect under this section in respect of exempt land, the land ceases to be exempt land, but the exemption revives on completion of the mining operations in respect of which the agreement or order was made or at such earlier time as may be stipulated in that agreement or order.

(12) An agreement or order to waive the benefit of an exemption under this section is binding on—

(a) successors in title to those owners of land who had the benefit of the former exemption; and

(b) the holders from time to time of any mining tenement under which mining operations (being mining operations in respect of which the agreement or order was made) are carried out.

(13) Subsections (11) and (12) apply to an agreement to waive an exemption under section 9 entered into before the commencement of this section as if it were an agreement to waive the benefit of an exemption under this section.

(14) A mining operator is liable to indemnify a person to whom the operator gives a notice under this section for the reasonable costs of obtaining legal assistance relating to the operation of this section up to $500 or, if some other amount is prescribed by regulation, that amount.

(15) In this section—

business day means a day other than a Saturday or a Sunday or other public holiday;

cooling-off period, in relation to an agreement with a mining operator to waive the benefit of an exemption, means the period commencing when the agreement is made and concluding at the end of the fifth clear business day after the day on which the agreement is made;

mining operations has the same meaning as in section 9.

The two amendments I had paired together as being consequential: one was amendment 2, relating to clause 6, but we will come back to that.

The CHAIRMAN: It will be the test case involving the second part of clause 6.

The Hon. M. PARNELL: It will be a test case for part of clause 6.

The CHAIRMAN: Yes.

The Hon. M. PARNELL: This lengthy amendment is a rewriting of that part of the act that relates to what are known as exempt lands and how the owners of exempt lands deal with mining companies that seek access to their lands. In my second reading contribution I think I went into some length as to the problems, as I saw them, with the current system. In a nutshell, those difficulties are that, even though for example, land that is within 400 metres of a dwelling house is technically exempt, it is a relatively easy thing for that exemption to be lifted, in particular by the mining company applying to the Mining Warden's Court.

The list of exempt land includes land within 400 metres of dwellings and also includes land within close proximity—150 metres—of other farm improvements. It includes orchards, cultivated fields and a range of other agricultural land uses which, on a simple reading of the act, would be seen as protected from mining by virtue of being exempt land. The current situation is that, unless the landholder voluntarily agrees to waive the exemption, the mining companies go to the Mining Warden's Court and, almost invariably, succeed in having the exempt status lifted, with or without compensation being paid to the landholder.

So, the fairly comprehensive set of amendments I have introduced here do a number of things: first, they make clearer what is expected of mining companies when seeking landholders' permission to waive the benefits of an exemption. I have incorporated a cooling-off period, not dissimilar to that which applies to door-to-door sales, for example, where the law recognises that hasty decisions can be made and a cooling-off period is needed. Through these amendments, I have ensured that any disputes between the landholder and the mining company will go to the Environment, Resources and Development Court rather than the Mining Warden's Court. We have had some small discussion already about that, but I will revisit why it is very important in these cases that the ERD Court be the appropriate court.

Perhaps most importantly in these amendments, I seek to have a test applied for the very first time as to the circumstances in which the exempt status should be lifted. That test is one of exceptional circumstances. What that means is that the presumption is in favour of this land, mostly farm land, being protected, being exempt, and the mining companies having to show that there are exceptional circumstances for the removal of that exemption.

My amendment proposes increased levels of compensation to landholders. It also proposes that landholders be protected from legal costs. I know from bitter experience that unsuccessful landholders in the Mining Warden's Court can have costs ordered against them. That in a nutshell is the amendment. I am not going to read the whole amendment out, but you can see that it is a fairly standard process that basically involves better access to information and better access to an umpire if a dispute cannot be resolved.

I will very briefly say why I think the Environment, Resources and Development Court is the appropriate court in these cases, notwithstanding that the council has not supported a previous amendment to make the ERD Court the appropriate court in all cases. The starting point is that the appropriate court is defined in the act as one of three. It is either the Supreme Court or the ERD Court or, if proceedings do not involve a monetary claim or they involve a claim for more than $150,000, it is the Mining Warden's Court.

What you find is that, when it comes to the choice of forum for resolving these disputes between landholders and mining companies, the choice is made by the mining company. It is the mining company that makes the application and it chooses where to go, and in my experience they mostly go to the Mining Warden's Court.

The question then is in what circumstances could the matter actually be dealt with by the ERD Court rather than the Mining Warden's Court? That is where you need to go to section 66A of the act, which sets a very high bar for these cases to be dealt with in the Environment, Resources and Development Court. That bar is 'a case of unusual difficulty or importance'. If that test is met then either the Mining Warden's Court itself or the ERD Court can order that the matter be transferred to the ERD Court.

The question then arises: if a matter is in the Mining Warden's Court, how on earth is the ERD Court to say, 'Hang on, we should look at it'? I think the answer is that, if the mining companies do as they normally do and go straight to the Mining Warden's Court, then the dissatisfied landholder has to bring a separate application to the Environment, Resources and Development Court, they have to convince that court that the case is of unusual difficulty or importance, and then they have to get the environment court to exercise its authority to take the case away from the Mining Warden's Court. When you put all that together the net result is: you have a dispute between a mining company and a landholder, the mining company gets to choose the forum, and it is very difficult for the landholder to do anything if they are not happy with that forum.

Another aspect of my amendment is protection from legal costs. That is important, because what we have to remember here is the landholder is exercising a right that has been given to them by legislation. That right is to have their land exempt from the operation of the Mining Act. If they voluntarily waive that exemption because they are satisfied with the compensation they receive or they are satisfied that the mining company is going to replace the fences or rebuild any improvements that have been destroyed, well and good.

No-one wants to stand in the way of the farmer, for example, and the mining company coming to a mutually beneficial arrangement. No-one wants to stop that, but that is not always the case. Often, the mining company will say to the landholder, 'You do it our way. If you don't we'll drag you to the Mining Warden's Court and you will lose,' and the mining company has enough precedent cases that they could show that that is, in fact, a real fear for the landholder.

I know I have spoken at some length. It is a lengthy amendment, but I think that it strikes the right balance between keeping the door open for mining companies who really do want access to that land to be able to reach an agreement with the landholder. However, if the landholder wants to keep the mine 400 metres from their house, which is the standard—I have not changed the standard; the legislation says 'exempt land'—then they should at least have the ability to be able to go to an umpire to reinforce the fact that that is the status.

Of course, if the mining company really wants it, they will make an offer that the landholder cannot refuse. They will buy their house, buy their farm, buy their land, if that is how badly they want to get into that area. This amendment, if it passes, I think will remove a great deal of injustice that is currently occurring in our state. I note, as other members have referred to before, that in the pre-election document that the Farmers Federation put out, this was an issue that they wanted addressed.

I understand that the opposition is sympathetic to what I am trying to do, but it did have some concerns about the forum—whether it was the ERD Court or the Mining Warden's Court—and I would simply point out those extra pieces of information, that the choice is currently exercised by the mining company.

I make the point as well, and I made it before, that section 16 of the Environment, Resources and Development Court Act sends these cases to a roundtable conference to start with, an informal discussion with a commissioner around the table to see if it can be resolved without going to a trial—a far better mechanism than going straight into an adversarial hearing in the Mining Warden's Court.

The Hon. P. HOLLOWAY: The government opposes the amendment. Exempt land is land on which you cannot conduct mining operations and these provisions have been in the act for some time and include land which is situated within 400 metres of a building or a structure used as a place of residence, within 150 metres of a spring, well, reservoir or dam, or a building or structure, etc. Land that is exempt is land that constitutes a forest reserve, any separate parcel of land of less than 2,000 square metres within any city, town or township, and land that constitutes any parklands or recreation grounds under the control of a council. All this land is outside the operation of the Mining Act so one cannot peg it, explore it or develop a mine on it.

The Hon. Mr Parnell really answered this issue himself when he said that normally if a mining company really wants to get onto land, for example, to explore it, if it is land that is otherwise exempt, the best way for them to do that would be to purchase the land, and I would have thought that the provisions as they are provide a very strong incentive in those cases for purchasing that land.

I would have thought the questions of access, which he appears to be most concerned about (and they are issues dealt with under the Warden's Court), are not so much issues of exemption. The act is quite clear that the land defined—and it is clearly defined—is exempt land unless of course the landowner agrees otherwise.

I would have thought that most of the problems that the honourable member was talking about would come where an exploration company, for example, wanted to get onto land to explore but that is not going to worry them if clearly they cannot go with land which is exempt which is within those specified distances and so on of buildings or structures used as houses or for other purposes as set out in the act.

I am really not quite sure what problem the Hon. Mr Parnell is seeking to solve. His amendments propose to remove several provisions from the exempt land provisions of the act and replace them with this new section 9AA—Waiver of exemption, which would include provision for making an agreement between the mining operator and the person who has the benefit of the exemption, provision for a cooling-off period for the landowner, provision for the appropriate court to determine the compensation to be paid by the mining operator to the person who has the benefit of the exemption, and provision for putting conditions on such an agreement.

I just make the point that I would have thought that the issues are likely to be over access to the property for land that was not exempt, not where the land is exempt. That should be quite clear-cut. As it is, the Mining Act sets out what land is exempt, and the converse of that is the land that is not exempt. It also provides that real issues of compensation be paid by the mining operator, and so on, and that the provision for putting conditions on such an agreement and the provision and agreement under this section be binding on the successors in title to the owners of land. All these issues are really more to do with land where there is some dispute at the early stage over whether or not exploration should be allowed. Exempt land, I would not have thought, is really where the problems lie.

The Hon. M. PARNELL: I thought I would just respond to some of the things the minister said. I agree with him: what the situation should be is what the situation should be. It says that it is exempt land. You would think that means that mining companies just cannot go there. The minister read the section. There are two ways that exempt land can be accessed, whether it is for exploration or whether it is for mining. The first one is that the person who holds the benefit agrees. They say, 'Yes, I'm happy for you to come on,' and they might also agree on compensation. That is the first one, and I do not want to stand in the way of that.

The second one provides that if they cannot reach agreement that is when an appropriate court, on the application of the mining operator—in other words, the mining company takes it to the Mining Warden's Court—determines compensation to be paid, if any, because they do not always order compensation once the mining warden has made a decision.

I can tell you that, having read just about all of those cases, the mining wardens usually start their judgements with the words, 'This is an application under the Mining Act. The Mining Act is all about promoting mining. We are going to allow mining.' It is a unlevel playing field. The whole purpose of my amendment is to basically level up the playing field, attach some criteria that need to met before a court will override what this parliament has said is exempt land.

Whilst I accept what the minister is saying, that the access arrangements and the mineral exploration licence stage is probably the stage of most conflict, but where I disagree is that the mining companies do not want to buy the land at that stage. The last thing they want to do is buy land to explore and then find nothing there. When you are a mining company and not a farmer you do not want to end up with farming land that you do not want. If they are allowed to explore and they find something, chances are that they will want to buy the land, and there might be an argument over compensation

In any of those situations my amendment basically treats exempt land as it was intended by the act, that is, it is exempt unless there are very good reasons for taking it out of that status. That is really the entire purpose. I do agree with minister that a simple reading of the legislation would indicate that there is not a problem, but in practice there is, because of the waiver provisions, which I have rewritten in this amendment and, secondly, the fact that it is the mining wardens who over a period of years have developed a line of reasoning, which, in my view, favours the mining companies at the expense of landholders.

The Hon. R.L. BROKENSHIRE: I advise the committee that Family First will be supporting the Hon. Mark Parnell's amendments. I will briefly speak to them and remind members that further into this debate we have amendments. Except for one clause, which I need to talk to the minister about during the winter recess, I am pleased to see that the minister has now introduced the same amendment as Family First, and that is about looking after people in a situation where there is mining occurring. We support the Hon. Mark Parnell's clause. It ties in with our amendments to the ERD Court in any case for the reasons that we highlighted earlier in this committee stage.

I declare a conflict of interest here myself; I am privileged to have had a bit to do with legislation and negotiation. However, Visionstream is running around South Australia at the moment on behalf of the commonwealth government putting in broadband, and they have similar legal rights to those with respect to mining exploration at the moment.

It is pretty nerve racking and stressful for run-of-the-mill landowners to know where to go when it comes to the impact of machinery on their properties, fences being cut, and so on. It does not worry a contractor and it does not worry someone exploring for mining. Where do these people go to get a ruling or help after someone has gone on the land to explore or if it is damaged or impediments are put in their place?

As the Hon. Mark Parnell has said, one thing that worries us—and it is not an anti-mining thing—is that the focus in the Warden's Court is so much on the miner. It is almost like the miner gets all the attention and the rights and the poor old landowner has to try to battle away. All this will do is really give a bit more of a level playing field, as far as we are concerned. We do not think that it will be a real impediment on the miners at all; it is just about fairness.

The Hon. D.W. RIDGWAY: This amendment seeks to insert new section 9AA which establishes a new set of processes for establishing waivers of exemption, as members have already discussed. These amendments increase the onus on the mining operator in negotiations with the landowner and provides a cooling-off period where a waiver of exemption is agreed.

Alternatively, it makes directions to the ERD Court, as opposed to the Warden's Court, as the Hon. Mark Parnell has indicated, for those cases where agreement cannot be reached by waiver, increasing the landowner's powers. As the Hon. Mark Parnell said:

The Warden's Court, having established the principle, expressed as follows:

The purpose of the Mining Act is to encourage mining and the Warden's Court, in making its decision, should seek to enable mining to occur.

It is argued that, invariably, the Warden's Court finds in favour of the miner. We have listened to the debate about exempt lands, and I am sure that a number of us have been approached by a couple of landowners who were approached by mining companies. In one particular case of a farming property in the Barossa, the entire farm would have been exempt because the proposed mine was within 400 metres of the house or, I think, it was within 150 metres of other infrastructure—whether that be a bore, a fence, a trough or cultivated lands, etc.

I think I raised in my second reading speech that there was a concern at the time that this right of entry was served on the landowner and that he had little time to respond. It was the timeliness of it. He was seeding at the time, and that is a very time-sensitive operation. The same could be argued at the other end of the farming cycle—harvest time or vintage, if it was a vineyard.

The Warden's Court is a relatively low-cost jurisdiction. The opposition was only inclined to support this amendment if it remained in the Warden's Court because we felt that the cost to the landowner could just skyrocket out of control. We note that new subsection (10) of this amendment provides that, 'The ERD Court may not make an order for costs against the respondent.' I am not a legal expert, but my understanding is that, in that case, it means costs may not be awarded against the farmer, so they may well be awarded against the mining company.

I think that the opposition agrees with the Hon. Mark Parnell and the Hon. Robert Brokenshire that this perhaps levels up the playing field a little for those areas, especially as I hope for our economy's sake that we go back to a time of increased commodity prices when, as commodity prices increase, we see some of the older mining areas, such as the Barossa and the Adelaide Hills (where they probably have low-grade ore that was unviable when commodity prices were low) become attractive to mining companies because there is a resource of low value but it is close to infrastructure and close to a labour force. A whole range of other factors might make the establishment of mines in some of the older settled farming areas a little more attractive.

So, given the distress that has been caused to a number of farming operators who came to see me when I had the pleasure of being the shadow minister a couple of years ago, it is the view of the opposition that we are comfortable with this amendment, provided that costs are not necessarily burdened upon the farmer.

The Hon. M. PARNELL: The words are, 'The ERD Court may not make an order for costs against the respondent.' The respondent would be the landholder, and the applicant would be the mining company. Because the landholder has not been able to reach any agreement and has not signed the waiver, the mining company has to take the initiative to take the matter to court, so it then becomes the applicant and the landholder is the respondent. Win, lose or draw, the respondent will not be ordered to pay the mining company's costs.

The Hon. P. HOLLOWAY: Obviously, questions of access at the exploration stage were key issues relating to this bill. The government's approach to that comes later in the bill with the amendments to section 58A—Notice of entry. I am sure that issues that other honourable members have raised are ones that we want to address. Clearly, there should be a presumption, in a mining act, in favour of mining, for the simple reason, as we have discussed already, that the footprint of mining is very small but its value can be significantly large.

Historically, there has been this presumption in favour of mining, but it has to be a qualified presumption; there has to be reasonableness that occurs. So, apart from these exempt land provisions, later on in the bill when we come to part 9—Entry upon land, compensation and restoration, there will be not only amendments that we are moving but also a number of regulations that the government intends to introduce after this bill passes, which hopefully it will. We will then deal with these sorts of issues about reasonableness of access, so that one can regulate it to ensure that access at that exploration stage is reasonable.

That, if you like, is the approach that the government prefers, and I guess that is why we are opposing this amendment in preference to the approach that the bill sets out later when we deal with these other provisions involving entry and the related amendments. I put on the record that the government concedes that one of the reasons it has introduced these amendments in the bill is to ensure that there is some more reasonableness and fairness relating to access.

Any mining bill has to have a presumption, ultimately, that mining will deliver enormous wealth to the community on a relatively small footprint, so the capacity for mining to operate has to be a presumption in the act, but there needs to be some balance relating to reasonableness; that is our preferred approach for doing it. Although we will be opposing this particular amendment, we accept the fact that there should be some balancing of the ledger, if you like, and some greater controls over access. Indeed, the government has done a number of things in terms of negotiating with the Farmers Federation and other groups in ensuring that, even though, ultimately, mining may take place, the grounds on which mining companies access land are much less deleterious to farmers.

The committee divided on the amendment:

AYES (14)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Jennings, T.A.
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.
NOES (7)
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Wortley, R.P.
Zollo, C.

Majority of 7 for the ayes.

Amendment thus carried.

Progress reported; committee to sit again.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT