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Finally: New mine rehab and financial assurance laws passed in Qld

15 November, 2018

Will these new laws lead to fewer voids and less risk to taxpayers from abandoned mines?

The Queensland Parliament has now passed the Mineral and Energy Resources (Financial Provisioning) Bill 2018.

There is room for improvement, but it is heartening that we have legislation passed in parliament which finally attempts to address the long term serious problem of poor rehabilitation and risks around abandoned mines that have plagued Queensland landscapes and communities for decades.

This Act introduces provisions that:

  • strengthen the requirements for mine rehabilitation, however many of the increased standards around rehabilitation will not apply to existing mines; and
  • improve the framework for financial assurance required of the resource industry to insure the government against financial failure and limit the increasing debt we face from needing to manage abandoned mines.

Exemptions for existing mines

EDO Qld's key concern is that existing mines will not be subject to a lot of the improvements around rehabilitation standards, even where they haven't yet commenced mining. There are significant numbers of mines in Queensland that will still be allowed to leave voids, including in flood plains, and will not have the public input around their end-of-mine site plans.

We have asked for the statistics of how many mines will be excluding but the government has not been able to provide them to date. Lock the Gate have estimated that this will leave 218 coal pits un-rehabilitated.

This includes the Adani Carmichael mine, which will still be allowed to leave many large voids without a review of the public interest in these voids being filled.

Right to Information Act exemptions

The provisions excluding the Right to Information Act 2009 (Qld) from applying to documents relevant to the scheme has been amended in the final version to instead 'exempt' these documents from the Act. This means that the government still has a discretion to release the documents but there is an assumption that it is in the public interest that they are not released. EDO Qld still considers, supporting the Office of the Information Commissioner, that the RTI Act already provides sufficient protection of confidential information, including due to commercial-in-confidence, and that this further step is not necessary, however the amendment is slightly better. 

We are also concerned that the new financial provisioning framework will not lead to sufficient money being held to guarantee against incurring more debt for failed resource operations for some time. Further, there is little financial motivation for mining companies to undertake progressive rehabilitation, which is one of the best mechanisms to ensure this work is undertaken throughout the mine life.

Overview of reforms

EDO Qld has been a key stakeholder, along with Lock the Gate, in discussions to review our mine rehabilitation and FA laws since the Queensland Government kicked off their review in 2016. 

We thank the Queensland Government and also the  Queensland Treasury Corporation, the Department of Environment and Science, the Treasury Department and the Department of Natural Resources, Mines and Energy for their extensive consultation on these reforms throughout these years.

While these laws are not as strong as we have advocated for to government and parliamentary processes over the past 2 years, they will hopefully lead to better enforcement of progressive rehabilitation and more community involvement in the state a resource site is allowed to be left once extraction has finished.

However, there are some strengths to this legislation that are likely to lead to increased focus on better quality rehabilitation by the resource sector in the future.

Here is a snapshot of  9 key features of the new laws, noting also some important shortcomings

  1. Initial applications for resource authorities must now transparently propose how they intend to leave a site once they have finished exploiting it, through a Progressive Rehabilitation and Closure Plan (PRC Plan), to be assessed under the same process as an environmental authority under the Environmental Protection Act 1994 (Qld).
  2. Public consultation must be undertaken on rehabilitation plans prior to a new mine being granted an environmental authority, and can be scrutinized in Land Court mining objection hearings.
  3. More justification and scrutiny of proposals to leave non-rehabilitated areas (non-use management areas) will be required. However existing resource operators, including for the Adani Carmichael mine, will not be required to meet these higher requirements to justify and avoid leaving voids or other non-use management areas, and also will be generally exempt from public notification of their PRC plans.
  4. More clear and enforceable progressive rehabilitation requirements, with rehabilitation milestones having to be stipulated clearly in PRC Plans and less flexibility being provided in amendments to these milestones. Even existing operators will need to provide a new PRC plan to more clearly stipulate their rehabilitation requirements.
  5. A prohibition for new mines against leaving voids on floodplains. Unfortunately this will not apply to mines that have any agreement with government with respect to their rehabilitation at the time of assent or which is provided under an existing EA condition within 3 years from assent.
  6. Requirement of a ‘public interest evaluation report’ by an independent entity qualified in mine rehabilitation, to assess the public interest in leaving non-rehabilitated areas of a resource activity. Where a recommendation in a ‘public interest evaluation report’ is contrary to a Coordinator General condition, the Report will override the Coordinator-General’s condition (we strongly support this dent in the exceptional powers of the Coordinator-General to stipulate conditions).
  7. Introduction of a new financial provisioning scheme to replace the current FA framework. This new framework includes a Financial Provisioning Fund (scheme fund), surety arrangements and the appointment of scheme manager to manage the scheme fund. Under the new scheme, financial assurance will be determined with reference to a risk assessment for each company undertaken by the scheme manager, and may be provided by payment of a contribution to the scheme fund or the giving of a surety to the scheme manager.
  8. Requirements to publish annual report by the scheme manager and periodic actuarial reviews, and for an actuarial  investigation of the scheme to be carried out five years after commencement and every subsequent three years. However, other documents concerning the financial provisioning scheme are exempt from the Right to Information Act 2009 (Qld), meaning their release to the public is assumed to be contrary to the public interest, however still allowing a discretion on the relevant agency to release the information.
  9. Enabling the scheme fund to be used for abandoned mines, abandoned operating sites and research into rehabilitation techniques.


Mining Rehabilitation Commissioner

We welcome a commitment by the Deputy Premier during her second reading speech that “This bill requires best practice management and minimisation of the risks to the environment. We will hold companies to their word and demand world's best practice. To that end we will explore options for the appointment of a mining rehabilitation commissioner within 12 months to set standards and keep them current and to ensure that the rehabilitation commitments made by mining companies are kept.” [at 3493] Further that the rehabilitation commissioner will “oversee the selection of the qualified entity he will conduct evaluations, work with government and industry to facilitate better public reporting about rehabilitation in Queensland, and inform how best practice rehabilitation management will be implemented as part of the framework for non-use management areas.” [at 3494]

We look forward to working with the government on the development of this new important role to provide independent oversight to improve rehabilitation in Queensland. 

We acknowledge and appreciate the work of Lock the Gate, particularly Rick Humphries, for their hard work to improve mine rehabilitation and financial assurance in Queensland; it has been a pleasure working with them on this important issue. 

Thank you to all those who have engaged with the reforms proposed around these laws for the past four years. As always, our work isn’t over, with a key policy on residual risk still yet to be released by government.

Stay tuned for further EDO Qld updates!

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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