Factsheets · Energy & Climate

Community rights to object to mines

01 February, 2014

This factsheet outlines community objection rights with respect to mining activities in Queensland. It gives an overview of the assessment and approval process with a particular focus on community participation rights.

This Factsheet is for general information purposes only, it is not legal advice. Important legal details have been omitted to provide a brief overview of this area of the law. If you require legal advice relating to your particular circumstances contact EDO or your solicitor. © EDO (Qld) “Community rights to object to mines” current as at February 2014.

Contents

  1. About mining and how it is regulated
  2. Your rights to lodge an objection
  3. What to put in your objection and how to lodge it
  4. Useful contacts and further information
  5. Example objection

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1.  About mining and how it is regulated

What is mining?

Mining is primarily regulated by the Mineral Resources Act 1989 (Qld) (MRA).

Under the MRA to ‘mine’ means to carry on an operation with a view to, or for the purpose of:

  • winning mineral from a place where it occurs; or
  • extracting mineral from its natural state; or
  • disposing of mineral in connection with, or waste substances resulting from, the winning or extraction.[1]

What is a mineral?

A ‘mineral’ is usually a substance occurring naturally as part of the Earth’s crust, or dissolved or suspended in water on or within the Earth’s crust.[2]; Common examples include: coal, gold, bauxite, and copper. Coal seam gas (CSG) is a mineral[3] but is also considered ‘petroleum’ and principally dealt with under the Petroleum and Gas (Production and Safety) Act 2004 (Qld).[4]

If you are interested in CSG, see our other factsheet ‘Coal Seam Gas: Community Submission and Appeal Rights’.

Who owns Queensland’s minerals?

With a few rare exceptions, most of Queensland’s minerals are owned by the Queensland government.[5] Those interested in mining minerals in Queensland must therefore apply to the Queensland government (and occasionally the federal government, as explained below) for the relevant approvals to access those minerals.

What are the main laws that apply to mining?

The main Queensland laws that apply to mining are:

IMPORTANT!

Changes in July 2013 to the EPBC Act have included ‘water resources’ for large coal mines (and coal seam gas activities) as a MNES.[7] This means that a large coal mine[8] which is likely to have a significant impact on water resources will also require approval from the Federal Environment Minister.[9]

What other laws might apply?

There are many other laws that may also apply to mining projects relating to, for instance, native title,[10] Indigenous cultural heritage[11] and occupational health and safety.[12] Generally speaking, the normal planning laws do not apply to mining activities, meaning local councils play very little role in mining activities, except for some forms of ‘off-lease’ infrastructure such as workers accommodation.

Who is responsible for regulating mining activities?

Mining is regulated by both the Department of Natural Resources and Mines (DNRM) and the Department of Environment and Heritage Protection (DEHP). 

DNRM (on behalf of the Minister for Natural Resources and Mines) is responsible for administering the ‘tenure’ (see below) for mining projects in Queensland. DEHP is responsible for the ongoing environmental regulation of mining activities.   

During the early stages of a proposed mine, Queensland’s Coordinator-General (C-G) may declare the mine to be part of a ‘coordinated project’ under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act).[13] These are usually large mines with associated infrastructure such as rail links or port terminals. If a coordinated project declaration is made, then at the same time, the C-G will decide whether an Environmental Impact Statement (EIS) under the SDPWO Act is required.[14]

What are the main permits required?

The requirement for ‘tenure’

Firstly, the miner must obtain a valid ‘tenure’ from DNRM. There are five main types of tenure available depending on the type of activities proposed:

  • A prospecting permit - entitles the holder to search for and/or hand-mine for minerals excluding coal. It also allows the holder to peg a proposed mining lease or mining claim (see below) on the available land specified.[15]
  • An exploration permit - allows a company or individual to explore land to determine such things as the existence of minerals (including coal); the quality of those minerals; and the quantity of those minerals.[16]
  • A mineral development licence (MDL) - allows the holder to evaluate the potential of a mineral for commercial development. Activities under an MDL might include mining feasibility studies; metallurgical testing; environmental studies; marketing studies or engineering and design studies.[17] MDLs are usually granted to the holder of an exploration permit where a deposit of a mineral has been located.[18]
  • A mining claim - allows the holder to carry out small-scale mining operations, such as hand-mining for specified minerals.[19] It is usually granted to holders of prospecting permits or exploration permits.[20] It can be granted for all minerals except for coal.[21]
  • A mining lease - entitles the holder to machine-mine specified minerals (including coal) and carry out (often large scale) activities associated with mining.[22] Generally, the holder of a mining lease must hold a prospecting permit, exploration permit or MDL over the area in order to apply for a mining lease.[23] A mining lease is not restricted to a maximum term.[24] The term of the lease is largely determined by the quantity of minerals identified. Many leases, particularly coal mines, have been granted for 10, 15 and even 30 years.
  • The requirement for an ‘environmental authority’ (EA).

In addition to the requirement for tenure, most mining activities will also require an ‘environmental authority’ (EA) from DEHP under the EP Act.

Whilst the tenure allows the miner to legally access the minerals and land, the EA is a separate approval that contains all the operating conditions the miner must abide by when carrying out their activities. EAs can vary widely in the types of conditions they include. Typical conditions often relate to:

  • Water management (surface and groundwater) at the site;
  • Noise and dust monitoring at and around the site;
  • Weeds and feral pest management at and around the site;
  • Contamination and other hazard issues which could potentially arise.

It is important to note that not all mining tenures will require an EA. For instance, there is no requirement for the holder of a prospecting permit to obtain an EA.[25] Similarly, some exploration permits are defined as ‘small scale mining activities’ and will not require an EA.[26]

2.  Your rights to lodge an objection

What are my rights to lodge an objection?

Prospecting Permits, Exploration Permits and MDLs

There are no opportunities to object to prospecting permits, exploration permits or MDLs. Directly affected landholders may have rights to be consulted about land access and compensation arrangements before any activities under these permits are allowed to take place. You should contact a lawyer to protect your private rights.

Mining Claims

Only local governments or landholders within the claim area can raise objections with respect to mining claims.[27] Any objections to the claim must be made within the set objection period. If you lodge an objection, you will be automatically referred to the Land Court for a hearing. The hearing will consider the decision made in relation to the mining claim application.[28]

Mining Leases

Anyone (affected landholders or members of the public) can lodge an objection to an application for a mining lease.[29] As with mining claims, any ‘properly made’ objection to the mining lease will be automatically referred to the Land Court for a hearing.[30]

A properly made submission under SDPWO act

(a) is in writing and is signed by the local government that made the submission; and

(b) is received within the stated period for making the submission; and

(c) states the grounds of the submission and the facts and circumstances relied on in support of the grounds.

Environmental Authority (EA)

As with mining leases, anyone can make a ‘submission’ with regard to an application for an EA. If the EA is subsequently approved, the submitter may request in writing that their submission be taken to be an objection to the application. The objection is then referred to the Land Court for hearing, as with objections to mining claims and mining leases. 

IMPORTANT!
If you are an affected landholder and are approached to sign a Conduct and Compensation Agreement (CCA), read the fine print carefully as you might be agreeing not to raise any objection against the mine when the formal lease/EA application comes around. Before you sign anything, consult a lawyer and make sure you understand your rights.

Which permit should I object to for mining activities?

The community are entitled to raise objections to either the mining lease application or the EA application or both. Generally you should object to the:

  • EA: for concerns about environmental issues, including for impacts such as anticipated dust, noise, groundwater, climate change or other environmental/health factors; and/or
  • Mining lease: for concerns about the size, shape, duration, intensity and location of a proposed mine.[31]

In practice, there is likely to be some cross over between the issues associated with the applications for the EA and the mining lease. If you are thinking of raising objections which you believe are covered by both the lease and the EA, then it is advisable to object to both applications. Both objections will be heard by the Land Court at the same time.

How do I find out about the applications?

Applications for mining leases and their related EAs must both be publically notified;[32] typically being advertised at the same time using the same method.[33];An advertisement will usually be placed in the public notice section of a newspaper circulating in the region near the proposed mine site.[34] Affected landholders will receive a copy of the lease application directly.[35] Notice of the application is also placed on a datum post at the proposed mine site.[36]

For the EA, the company must keep copies of the following documents on a website during the public submission period:

  • the application notice;
  • the application documents (see below); and
  • the response to any ‘information request’.[37]

In addition, DEHP must keep the application open for inspection by members of the public during office hours on business days at;

  • their  head office (400 George Street, Brisbane); or
  • a DEHP office located nearest to the land to which the application relates; or
  • another place DEHP considers appropriate.

DEHP must allow a person to take extracts from the application or, on payment of the appropriate fee, give the person a copy of the application, or a part of the application. They must also keep a copy of, or a link to, the application available on its website.[38] You can find current EA applications here.

IMPORTANT! 

It is a good idea to download or print copies of documents you find on the internet, as they may be taken down or moved at a later time and you want to make sure you have a copy.

DEHP also provides email subscription services which detail the latest public notifications. To subscribe, send an email to: public.register@ehp.qld.gov.au. You can also make enquiries with DEHP’s Permit and Licensing Management Unit (PALM) by emailing: palm@ehp.qld.gov.au or phone 1300 130 372.

You may also contact the ‘Mines Lodgement Office’ of the region you are concerned about to determine when the public notification period is open for any applications made in the region. Search for the nearest regional office here.

What happens after I lodge a submission/objection?

Objectors to a mining lease are notified once the application is decided. The objection will then be automatically referred to the Land Court for hearing along with any other objectors.[39];

Submitters for an EA application will be notified by DEHP as to the decision made over the application.[40] If the application is approved, EA submitters will be sent a copy of a ‘draft EA’ with the proposed operating conditions for the mine and a blank form called an ‘objection notice.’[41] When reviewing the conditions, read each condition carefully. Do you agree or disagree with DEHP’s proposed conditions? Do they satisfy any of the concerns you raised in your submissions?

If you want to elect to go to the Land Court and contest the conditions of the draft EA (or lack of conditions) or whether the EA should be issued at all, then you must set out your grounds of objection in the objection notice and send it back to DEHP within 20 business days.[42] Once DEHP receives your objection notice it will then refer your EA objection to the Land Court.[43] Any objections to the EA will usually be heard at the same time as objections to the mining lease.[44]

3.  What to put in your objection and how to lodge it

Submissions/objections on an EA application

What criteria should I address in my submission?

To be most effective, your submission should address the matters which DEHP will be looking at when it decides whether or not to approve the company’s application. These include:

  • the ‘application documents’ (above) including any EIS completed for the project;
  • the ‘standard criteria’ under the EP Act; and
  • any relevant ‘regulatory requirements’.[45]

What are the ‘standard criteria’?

The words ‘standard criteria’ have a specific meaning under the EP Act.[46] They include, amongst other things:

  • the ‘character and resilience’ of the receiving environment;
  • the public interest;
  • the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment (IGAE):
    • the precautionary principle;
    • the principle of intergenerational equity; and
    • the principle of conservation of biological diversity and ecological integrity.[47]

If you are thinking of making submissions on an EA application, consider referring to the standard criteria under the EP Act. In assessing the application, could DEHP be satisfied that the application will not adversely affect these criteria? What is the evidence to back up your concerns?

What are ‘relevant regulatory requirements’?

The term ‘regulatory requirement’ is defined in the EP Act dictionary. It generally includes a reference to one or more of the State Government’s ‘Environmental Protection Policies’ (“EPPs”) as well other (relevant) regulations made under the EP Act. At the time of writing, the current EPPs are:

Before you make any submissions, read through the relevant EPPs so you understand what they are trying to achieve. Is there anything that you think DEHP should specifically focus on when it considers the company’s EA application? Will the company’s application meet the benchmarks set in these policies?

IMPORTANT! In making its decision on the EA application, classified as an ‘environmental management decision’, DEHP must consider specific environmental objective and performance outcomes detailed in Schedule 5 of the Environmental Protection Regulation 2008 (Qld) (EP Regs). Take the time to read through the objective and performance outcomes. Do you think the EA application will satisfy these objectives? Why or why not? What is the scientific evidence for your concerns?

Is there a set form for making a submission on an EA application?

There is a set form for making submissions on an application for an EA. You can download Submission Form EM972 here. If you choose not to use the form, for your submission to be accepted by DEHP it must meet these criteria:[48]

  • it must be written or made electronically;
  • it must state the name and address of each submitter;
  • it must be addressed to the correct division in DEHP (found on the public notice[49]);
  • it must be received on or before the last day of the submission period; and
  • it must state the grounds of the submission and the facts and circumstances relied on in support of the grounds.
IMPORTANT!
It is important you get these formalities correct, otherwise your submission may not be accepted and you may lose any rights to take your later objections to the Land Court.[50];If you don’t know who to send it to at DEHP, call the department well in advance of the deadline.

I have received a copy of the draft EA, what types of concerns can I raise in an objection?

As with the application, the law does not state the scope of proper objections on an EA application. However, we strongly recommend that you frame any objections around the issues which you believe were not dealt with adequately by the draft conditions in the EA.

Is there a set form for making an objection to the draft EA?

Yes, there is an approved form for making an objection to the draft EA once you have lodged your submission. You will be sent this form from DEHP if it approves the companies EA application.

Objections to a mining lease application

What kinds of issues can be raised in an objection to a mining lease?

Similar to a submission for an EA application, you should frame any grounds of objections to the lease around the criteria which the Land Court must consider when hearing objections to the lease, focussing on the ones which you are most concerned about. Some of the key questions the Court must answer are:

  • Is the land and the surface area an appropriate size and shape for the activities proposed?
  • Is the past performance of the mining company satisfactory?
  • Does the mining company have the necessary financial and technical capabilities to carry out the activities proposed under the lease?
  • Will the proposed operations to be carried out under the lease conform with sound land use management?
  • Will there be any adverse environmental impacts, and if so, to what extent?
  • Will the public right and interest be prejudiced by the granting of the lease?
  • Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?
IMPORTANT!

The above list is a summary of the criteria only. You should look at section 269(4) of the Mineral Resources Act 1989 (Qld) for the full list and exact wording of each criteria. Try to stay as close to that wording when drafting any objections.

Is there a set form I have to use for a mining lease objection?

Yes, you must use the approved form for making objections to a mining lease.[51]This form is available on the DNRM website[52] (entitled MRA-20 ‘Objection Form for a Mining Lease Application). Before the objection period ends, you must:

  • lodge the form with the Mines Lodgement Office where the mining lease is proposed to be located, detailed on the public notice or on DNRM’s website; and
  • send a completed copy to the mining company.[53]

An example of a completed objection in an earlier format can be found on the Environmental Law Publishing website at: http://envlaw.com.au/wp-content/uploads/wandoan3.pdf


 

[1] Mineral Resources Act 1989 (MRA) s 6A(1). See the entirety of s 6A for more detail on what is included and excluded
from the definition.

[2] MRA s 6.

[3] MRA s 6(2)(c).

[4] For more detailed information, see EDO Qld’s comprehensive ‘Mining and Coal Seam Gas law; a guide for the community’ (EDO Qld, 2013) available from www.edoqld.org.au.

[5] MRA s 8.

[6] MNES under the EPBC Act include such things as World Heritage values of declared World Heritage properties, listed threatened species, migratory species, internationally renowned wetlands (called RAMSAR wetlands) and the Great Barrier Reef Marine Park.

[7] See EPBC Act s 24D.

[8] As defined in EPBC Act s 528

[9] Water resources’ under the EPBC Act are defined. See EPBC Act, s 528 and Water Act 2007 (Cth) s 4.

[10] See for instance the Native Title Act 1993 (Cth) and Native Title Act 1993 (Qld).

[11] See for instance the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) particularly s 23 of those Acts – the cultural heritage ‘duty of care.’ You can search the cultural heritage register here: http://www.datsima.qld.gov.au/atsis/aboriginal-torres-strait-islanderpeoples/indigenous-cultural-heritage/cultural-heritage-database-and-register-search-request.

[12] For coal mining, see for instance the Coal Mining Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001 (Qld).

[13] Prior to December 2012, Coordinated Projects were termed ‘Significant Projects’.

[14] If an EIS is required under the SDPWO Act, then the C-G will oversee the EIS process. The mine itself will still require final approval from DNRM and DEHP, however, the C-G has the power to impose conditions if the mine is eventually approved. In addition, any conditions imposed by DNRM or DEHP cannot be inconsistent with the C-G’s recommendations.

[15] MRA s 18. Note also the definition of ‘prospect’ under MRA s 6B.

[16] See MRA s 129. See also the definition of ‘explore’ in the MRA Schedule 2 (dictionary).

[17] MRA s 181.

[18] MRA s 179(a).

[19] MRA s 50. DNRM has produced a general information handbook on Mining Claims:
http://mines.industry.qld.gov.au/assets/land-tenement-forms/mining-claim-handbook-complete.pdf.

[20] MRA s 48.

[21] MRA s 52.

[22] See MRA s 234, and the meaning of ‘mine’ in MRA s 6A.

[23] MRA s 232(1).

[24] MRA s 284.

[25] Environmental Protection Act 1994 (Qld) (EP Act) s 426(2)(b) and see definition of ‘small scale mining activity’ in the EP Act Schedule 4 (dictionary).

[26] 26 See EP Act s 426(2)(b) and the definition of ‘small scale mining activity’ in the EP Act Schedule 4 (dictionary). Note that the small scale exemption only applies to ‘small scale mining’ of minerals other than coal.

[27] MRA s 64B(2)(c).

[28] MRA s 72

[29] MRA s 260(1)

[30] MRA s 265.

[31] The list of factors the Court will consider are found in section 269(4) of the Mineral Resources Act 1989 (Qld).

[32] MRA s 252B(4) and EP Act s 149. Note an EA application may not need to be publicly notified where an Environmental Impact Statement (EIS) was fully completed under the EP Act before the application was made and the environmental risks of the project have not changed. See EP Act s 150. In such a case, a submission on the EIS will be taken to be a submission on the EA application and objection rights to the Land Court will still remain. See EP Act s 150(3).

[33] EP Act s 152(2)(a).

[34] MRA s 252B(4).

[35] MRA s 252B(1)(c). For a list of Mining Lease application documents refer to MRA s 245. Note that landholders will not receive information of the applicant’s financial and technical resources. See MRA s252B(2)(a).

[36] MRA s 252B(1)(a)-(b).

[37] EP Act s 156.

[38] EP Act s 157.

[39] MRA s 265.

[40] EP Act s 181.

[41] EP Act s 181(2)(b)(i). Note this is different to the process which existed pre-April 2013. Before the greentape amendments, draft EAs were advertised for public submission. Public submission rights are now on the basis of the application documents. A draft EA will still be produced but only given to those who made submissions on an application.

[42] EP Act s 182(3)(a).

[43] EP Act s 185.

[44] EP Act s 188(2) and see also MRA s 268.

[45] EP Act s 176.

[46] See the definition of ‘standard criteria’ in Environmental Protection Act 1994 (Qld) Schedule 4 (dictionary).
Also see this case: Burtenshaw & Ors v Dunn [2010] QLC 70 (13 April 2010) at paragraphs [38] and [69]
available for download from the Land Court’s website.

[47] You can find a copy of the intergovernmental agreement here:
http://www.environment.gov.au/about/esd/publications/igae/ The principles of Environmental Policy are at
section 3.

[48] EP Act s 161.

[49] EP Act s 153.

[50] If you were not an earlier submitter, you will not meet the definition of a ‘dissatisfied person’ (EP Act s 520(2)(a)) if DEHP approves the company’s EA application. This means you cannot apply for internal review (EP Act s 521), nor can you appeal from that review decision to the Land Court (EP Act s 524).

[51] MRA s 260(1). The form must be approved by the Chief Executive of DNRM. See MRA s 416A.

[52] http://mines.industry.qld.gov.au/mining/minerals-tenures.htm (click on ‘MRA – 20’).

[53] MRA s 260(4).

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