Mining (Protection of Exempt Land From Mining Operations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2014.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (18:00): I rise on behalf of the opposition to speak to the Mining (Protection of Exempt Land From Mining Operations) Amendment Bill. By way of brief explanation, the current legal arrangements with regard to proponents exploring on freehold property are as follows.

The Mining Act currently provides for landowners to enter into agreements with exploration and/or mining companies to allow for activities on their freehold property. If an agreement is unable to be reached and ongoing entry is refused, the exploration or mining company can initiate ERD Court proceedings. Landowners and neighbours in close proximity to the proposed land in question can respond and participate in those proceedings.

If the exploration or mining operator satisfies the ERD Court that any adverse effects of the proposed activities on the respondent landowner can be appropriately addressed by the imposition of conditions upon that exploration or mining operator, including the payment of compensation to the landowner, the ERD Court can allow the activities and impose conditions, even if the landowner remains unsatisfied. If the court is not satisfied that concerns can be appropriately addressed, then it can refuse the application.

The bill that we see today intends that any person or body can lodge objections in the ERD Court to a proposed agreement between an exploration or mining company and the landowner. This would enable landowners, neighbours or any third party at all to initiate proceedings or to respond in the ERD Court. The bill also requires that, before an exploration or mining operator can enter into an agreement with the landowner, the mining operator must, by written notice, provide owners or occupiers of adjacent land with notification of the proposed agreement, publish the notice in the local newspaper and notify the department of the proposed agreement, and the department must publish notice of the proposed agreement and also advice as to the right of any person to lodge an objection.

There is also a provision in the bill that provides a two-week objection period for landowners, neighbours and third parties to object to the proposal and initiate proceedings in the ERD Court. This bill also establishes five criteria which must be taken into account by the ERD Court in determining whether the proposed agreement can proceed. These are the expected length of the exploration program or the life of the mining operations; the likely effect of the proposed operations on future land uses; the possible social, environmental and economic impacts of the proposed operations; the extent to which rehabilitation of the land is likely to be required; and the relative abundance of minerals being sought on the land in question compared to other parts of the state.

This bill would provide opportunities for those opposed to mining of any sort and for any reason to significantly delay or prevent future exploration and mining operations. The ERD Court would be completely overwhelmed by objections from anyone who chooses to consider him or herself to be an affected third party. The ERD Court would have to explain itself with regard to each of the five proposed criteria to every single objector.

On a side note, I expect that the ERD Court would already have considered these five areas and others as and when they are relevant. This bill would allow objectors the opportunity to both initiate ERD Court proceedings and respond to them. Very clear rights for all directly affected interest groups already exist. I do believe there is room for improvement with regard to how the Mining Act deals with access to freehold land for exploration and mining, but I indicate that we will be opposing this specific bill.

However, I put on the record that that our shadow minister, Dan van Holst Pellekaan, in another chamber, has spoken to the Hon. Mark Parnell and indicated that we are somewhat attracted to some parts of this bill, but we could not support it in its entirety today. The Hon. Mark Parnell said that he wished to bring this to a vote today, so that is why we are not in a position to support it.

But we have particular sympathy for some close neighbours to land that has exploration or mining on it and we believe there is room for improvement with regard to how exploration and mining companies interact with neighbours and landowners. Recently, I had an opportunity to visit the West Coast and I visited a family who are likely to be significantly impacted by the big Iron Road mine near Warramboo.

I met the Murphy family and sat in their lounge room and kitchen and just talked to them. The biggest issue they have is with the uncertainty, and it is interesting. I spoke to 'Spud'—because all Murphys are called 'Spud'—his actual Christian name escapes me, but he is roughly my age. His father lives in the local town and he said to Peter Treloar, our local member, he has known there has been iron ore there all his life, and he doubted whether they would ever get to mine it in his lifetime. But every few years there has been some activity in and around this particular, quite large, resource.

I think that is where lies one of the real problems: the uncertainty of the Murphy family—with three young boys, all home on the farm and wanting to expand but not really knowing what the next move would be. So, I think there are some real opportunities for this parliament, and I note the Hon. Robert Brokenshire said earlier in a contribution in the previous bill that he is having his right to farm bill redrafted, and I would like to put on the record that we are very concerned about the interaction between agriculture and mining, but the two have co-existed in this state for pretty much the entire life of the state, and the Liberal Party wants to make sure that continues. We do not want to see one group disadvantaged at the expense of another.

We are sympathetic to looking at any changes that can improve that relationship, but we just do not see that this bill that the Hon. Mark Parnell is promoting today is the right way forward. We have nearly three years before the next general election, and we will be putting out some policies prior to that next election that we hope we will have an opportunity to work on with the Hon. Mark Parnell (who sometimes has reasonable and sensible suggestions) and certainly the Hon. Robert Brokenshire and other members in this chamber because it is important that we get the balance right.

They are important industries, and we need to make sure we can support both of them. With those few words I indicate that we cannot support the bill we have before us today, but we are prepared to continue to work with all members of this chamber and, in fact, all members of the state parliament, to come up with a regime that provides support and confidence and certainty for both industries.

The Hon. J.A. DARLEY (18:07): I rise very briefly to add my comments to the public record. Whilst I do not necessarily believe that this is the ideal solution to concerns which have been raised about this matter, I appreciate what the Hon. Mark Parnell is trying to achieve. Farmers have concerns with regard to the impact that mining will have on their properties. These concerns are understandable given that the worst-case scenario will see their livelihoods and, in some cases, generations of work compromised.

I understand that the purpose of the Hon. Mark Parnell's bill is to give them an avenue to express their concerns and have them heard by an independent arbiter. I support the second reading of this bill.

The Hon. K.L. VINCENT (18:08): Dignity for Disability supports the second reading of this bill.

The Hon. G.A. KANDELAARS (18:08): Unlocking the full potential of South Australia's resources, energy and renewable assets is proudly the number one economic priority of this government. This state has an abundance of resources that belong to the people, and we need to realise the benefit of those resources through sustainable exploration and mine development opportunities and practices.

These opportunities generate a wealth of community benefits through local and regional business prospects, jobs, increased services and improved infrastructure. In the global business market, exploration and mining activity can be leveraged to create new business investment, an upskilled workforce, new intellectual property and new technological advances.

To realise these benefits the value proposition that this state offers to the community and the business market is a leading practice and robust regulatory framework which supports the interests of multiple land users, and this should not be compromised. For this reason the government strongly opposes this bill.

South Australia is internationally acknowledged for world-class copper, gold, iron, iron ore, uranium, zircon and graphite deposits that continue to attract business investment from all over the globe. New mines within regions have a potential to create a diverse regional economy, where this state's key strengths in agriculture, food, wine, tourism, defence and mining can operate side by side for the benefit of the whole community.

The bill that the honourable member has tabled in this place seeks one purpose and one purpose only, that is, to stop exploration and mining within agricultural areas in this state. The bill does this through the introduction of regulatory burden and unnecessary duplication which consequently creates a disincentive for resources investment on any exempt land within this state.

In 2013 alone, $43 million in mineral exploration expenditure was invested in agricultural regions of the state on exempt land where exploration and farming had coexisted for many generations. The honourable member states that he wants to protect the rights of landowners and the broader community through the introduction of amendments, which include:

the requirement to notify adjoining landholders and the broader community before a waiver agreement can be signed;

the requirement to advertise a proposal to enter into a waiver agreement in a local newspaper and on the Department of State Development website;

the requirement for a two-week period of objection by any person concerned with the proposal; and

the requirement that any objector can become a party to proceedings in the Environment, Resources and Development Court.

Under the existing regulatory framework, landowners and farming businesses have a right to make their own private and business decisions that may impact on the use and enjoyment of their land. We must note that we are referring to exempt land. It mostly relates to privately owned land and not public land. I ask people this: how does this bill protect the rights of landowners when it effectively takes away their rights to make a private decision that can now be made by their neighbours or anybody else in the community who claims to have an interest in what happens on somebody else's private exempt land?

It is important to highlight that, in the majority of cases proposed, access to exempt land is for mineral explorers where the nature of their activity ranges from low impact surface sampling through to targeted drilling. These activities are currently undertaken with the agreement of the landholder, licence conditions and a program for environmental protection and rehabilitation approved by the regulator through the Department of State Development.

If exploration was to result in the discovery of economic resources, the current regulatory framework requires statutory land access requirements with the landholder, as well as statutory consultation by the regulator with all stakeholders, including landholders and the broader community. As part of the mining proposal application, the applicant must demonstrate what community consultation they have undertaken and how they propose to address any concerns raised during that consultation. This will be considered by the government when undertaking a social, environmental and economic assessment of the mining proposal.

The bill before us also seeks to introduce a list of provisions that the ERD Court must have regard to in any exempt land proceedings, including the duration of the proposed mining operation; current and future land use; social, environmental and economic impacts; rehabilitation of land; and the type of minerals being sought. It is plainly evident that this amendment proposes yet another significant disincentive for exploration or mining to proceed on exempt land. This amendment seeks to effectively duplicate the regulatory process currently required under the Mining Act 1971.

South Australia has in place a world-class regulatory system which meets leading practice regulatory principles, including the assessment of social, environmental and economic impacts; effective ongoing regulation; effective consultation with key stakeholders at all stages of the regulatory cycle; proportional government action; and performance-based regulatory instruments. The regulatory framework supports the investment of multiple land users through transparent and consultative processes which support evidence-based decision-making.

This government recognises the need to provide a shared commitment by the government, industry and the community for the coexistence of multiple industry land use interests. Multiple land use decision-making must be supported by land use policy, planning and development that seeks to support sustainable multiple land use interests with a view to maximising benefits to all South Australians. The government, as I said, strongly opposes this bill.

The Hon. M.C. PARNELL (18:16): In summing up I would like to thank the Hon. David Ridgway, the Hon. Kelly Vincent, the Hon. John Darley, the Hon. Gerry Kandelaars and also the Hon. Rob Brokenshire, who made some comments in relation to this bill in his earlier address on the fracking bill. Again, it looks as if, unusually, we do not have the numbers tonight for this bill to go through, but I do want to make some brief observations on some of the offerings tonight.

I will start with the Liberals. The first thing I will say is that I look forward to accompanying the Hon. David Ridgway over to Ardrossan on Yorke Peninsula, where he can explain to the farmers of Yorke Peninsula why he does not believe that anyone other than the actual landholder on whose property the mine is to be built should have legal rights, because that is effectively what the Liberal party is saying.

I do acknowledge that I have had a number of fruitful discussions with the shadow minister, Mr Dan van Holst Pellekaan, and, whilst it became clear from those discussions that most of the bill was unacceptable, there were some nuggets of things that we could perhaps work on together, and I look forward to doing that. We can explore some commonality. I am certainly not happy to wait until the next election to see whether reform is possible, because I think the farmers of Yorke Peninsula and Eyre Peninsula in particular are crying out for reform now.

I also put on the record that I appreciated the chance to meet with Steve Olsen, the director of Rex Minerals, and it is probably fair to say that we will agree to disagree, but I at least have a greater perspective on where he is coming from. I appreciate the Hon. Kelly Vincent and the Hon. John Darley supporting in principle what we are trying to do here.

In relation to the government's contribution, the Hon. Gerry Kandelaars seems to equate any increase in rights to stakeholders as somehow a backdoor attempt to stop industry. My response to that is to say that it is just not true. What this bill does is provide balance. It gives some rights to people who are affected by mining operations but who currently have no rights. These are the people who have packed out the town hall at Ardrossan, the people who have been writing letters to the editor and writing to members of parliament. They are stakeholders yet they are ignored in the formal process.

The Hon. Gerry Kandelaars refers to how onerous it would be if a mine would have to justify its existence by having to convince a decision-maker that, on balance, it was a worthwhile project to go ahead. At present it is dead easy: you go straight to the government and it says yes. When was the last time the government ever said no? Really, maybe 'yes' is often the right answer but the point is that there is no process, stakeholders do not have a say and, if they do have a say, they are ignored and there is nothing they can do about it.

What I need to remind the government of is that the process in this bill is almost identical to the process that we use for other types of noncomplying development under the Development Act. You might think mining is not a noncomplying development in farm areas. Wrong. It is not called 'exempt land' for nothing. It is called 'exempt land' because it is a prima facie, noncomplying use of that land. There are extra hurdles that have to be jumped if you want to mine in farming land.

What this bill does is put those farmers onto an equal footing as if some other form of development had come along. If you have got a category 3 noncomplying development, it is the same. The neighbours are notified, everyone gets to have their say and people can take it to the umpire. The provision in the bill for giving the court some things to take into account is not one-sided. They can take into account the economic impact of the mine and it may well be that that outweighs any negative economic impact on farmers, but that is the point of having an umpire.

The government's position seems to be that this bill was some sort of infringement on the rights of private property owners. For that to be true, the government must be of the view that private landholders are allowed to make decisions on their own land regardless of whether those decisions impact on anyone else and that those others who are impacted should have no rights. That is exactly the effect of what the government is saying.

Finally, the government response said that somehow this would be a disincentive to mining. The only way that can be true is if the mining industry is of the view that having to consult in a meaningful manner with local communities is a disincentive to development. Well, so be it. They need a social licence to operate. They have to work in these communities. I think that this bill did strike a reasonable balance.

It looks as if, with parliament being prorogued at the end of this year, we may have the opportunity to come back next year and look at whether we can make some minor modifications to this bill—not that I think it needs it, but anything to help give it a chance of success and to give the farmers of Yorke and Eyre peninsulas what they have been crying out for, and that is to be taken seriously and given rights in relation to these important decisions that will affect their livelihood if they go ahead. I am disappointed the bill will not pass today, but we will be back next year.

Second reading negatived.