SOUTH AUSTRALIA - ENVIRONMENTAL REGULATIONS
Australia, officially the Commonwealth of Australia, is the world’s sixth largest country by area. Spanning over 7.5 million km2, the country is comprised of six states: New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia, and ten territories, two of which (Australian Capital Territory and the Northern Territory) are located on the mainland. Australia is recognised as a mega-diverse country in spite of the fact that around 70% of the country is reportedly arid or semi-arid.
South Australia is located in the south-central part of the country and is bordered by Western Australia, the Northern Territory, Queensland, New South Wales, Victoria and the Indian Ocean. With a population of approximately 1.721 million, South Australia is the fifth largest state by population (Australian Bureau of Statistics); around 75% of the population reside in the capital city, Adelaide. South Australia has an area of 983,482 km², which constitutes 12.7% of the country and makes it the fourth largest state or territory by geographic area (Australian Government).
South Australia is predominately flat, arid to semi-arid land, though low mountain ranges can be found in the north-west and south-east of the state. The state’s southern coastline on the Indian Ocean is home to the Great Australian Bight, characterised by large cliffs which run along the coast up to the border with Western Australia. Several vast salt lakes, including Australia’s largest – Lake Eyre, are found across South Australia’s remote plains. The Murray River, Australia’s longest, runs from New South Wales into Victoria before reaching South Australia, where it eventually meets the Indian Ocean. The southern part of South Australia enjoys a Mediterranean climate, which gives way to a desert climate in the state’s interior regions.
South Australia is home to a wide variety of animal and plant species. Acacia species, cypress pines, beefwood, bluebush, saltbush and porcupine grass are common in the arid or semi-arid regions (Encyclopaedia Britannica). In terms of fauna some 482 bird and 190 mammal species have been recorded in the state since European settlement, as have numerous species of amphibians, fish, and reptiles (Department of Environment, Water and Natural Resources). Notable amongst them are the various marsupial species (such as kangaroos, the southern hairy-nosed wombat, brush-tailed possums, and wallabies), echidnas, and some of the world’s most venomous snakes, such as the inland taipan, eastern brown snake and the death adder.
South Australia faces several environmental challenges including concerns around the state’s water quantity and quality, the impacts of climate change and population growth (Environment Protection Authority).
PRINCIPAL LEGISLATION AND REGULATOR
In Australia, environmental protection is largely the responsibility of the state governments. In South Australia, the environmental assessment (EA) process for mining operations is primarily regulated by the Mining Act 1971 (MA); the Mining Regulations 2011 (MR); the Planning, Development and Infrastructure Act 2016 (PDIA); and the Development Regulations 2008 (DR). The Environment Protection Act 1993 (EPA) and the Environment Protection Regulations 2009 (EPR) may also be applicable to certain mining activities. Other relevant legislation includes: the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA); the Natural Resources Management Act 2004; the National Parks and Wildlife Act 1972; the Native Vegetation Act 1991 and the River Murray Act 2003. Also of relevance are the various government guidelines, which provide additional direction on several aspects of the EA process.
The Mineral Resources Division (MRD) administers the MA and manages the EA process in respect of mining operations. The Minister for Mineral Resources and Energy (Minister) is responsible for approving Programs for Environment Protection and Rehabilitation, known as PEPRs, which form a key aspect of EAs (s. 70B(5), MA). The Minister for Planning is responsible for the administration of the PDIA and offers advice to the MRD in relation to environmental assessment matters.
Federal legislation may also apply to projects which have a significant impact on areas of national environmental significance. Such operations must be assessed and approved by the Commonwealth Environment Minister and an EA may be required. Pursuant to section 45 of the EPBCA, South Australia and the Commonwealth of Australia have entered into a bilateral agreement, with the aim of providing an efficient system and avoiding duplication in the EA process.
An application for a Mining Lease (ML) must be accompanied by a mining proposal that sets out an assessment of the environmental impacts of the proposed mining operations; an outline of the measures that the applicant proposes to take to manage, limit or remedy such impacts; and a statement of the environmental outcomes that are expected to occur (s. 35(1), MA; see also: r. 30(1), MR and MG2a - Preparation of a Mining Proposal and Management Plan for Metallic and Industrial Minerals in South Australia). The application must also be accompanied by a draft statement detailing the criteria to be adopted to measure expected environmental outcomes (s. 35(1), MA). Consultations will be held with the public and other relevant parties as part of the application process; such consultations are not specific to environmental issues but to the granting of the ML more generally (see s. 35A, MA). In determining the terms and conditions to which a ML shall be subject, the Minister shall give consideration to the protection of any aspect of the environment that may affected by activities under the lease (s. 34(6)(a), MA).
Holders of mining tenements, including Exploration Licences and ML, may not carry out mining operations unless a compliant PEPR is in force (s. 70B(1), MA). In the case of MLs the PEPR must be provided within 12 months of the granting of the lease (r. 65(10), MR). PEPRs must be submitted to the Minister for approval and must contain the prescribed information, including specifics of the proposed mining operations, information on the expected environmental outcomes (accompanied by details of the steps to manage, limit or remedy adverse environmental impacts), and the criteria to measure such outcomes (see s. 70B(2) - (4), MA and r. 65, MR). Information on consultations carried out in connection with the proposed operations, concerns which arose as a result of such consultations and measures taken to address them must also be included (r. 65(1)(c), MR). More extensive content requirements apply when the PEPR relates to activities under a ML (see r. 65(2), MR). (For detailed guidance see MG2b - Preparation of a PEPR for Metallic and Industrial Minerals in South Australia and MG8 - Preparation of a PEPR for Low Impact Mineral Exploration in South Australia).
The Minister may approve the PEPR without alteration, or may require alterations following consultation with the tenement holder (s. 70B(5), MA). The tenement holder may apply to the Environment Resources and Development Court (within 28 days) to request a review of the Minister’s decision to require alterations (s. 70B(6)-(7), MA). The MA does not appear to grant the Minister a right to refuse a PEPR – only to require alterations. Approved PEPRs may be reviewed by the holder or at the direction of the Minister (s. 70C(1)-(2), MA). As a matter of policy, a review and update of a PEPR will generally be required at least every seven years; in certain circumstances an earlier review will be requested, including if there has been a change of operator or lease owner in the event of a mining tenement transfer (see MG1 - Guidelines for Miners Mining Approval Processes in South Australia). Reviews must be carried out within three months (r. 68, MR). At the request of the Minister, environmental outcomes may also be audited (r. 67, MR).
The Minister may refer an application for a mining tenement to the Minister for Planning for advice (s. 160(2), PDIA); activities in certain areas must be referred to the Minister for Planning for advice as mandatory under the terms of the DR (which remain in force in spite of the fact the Development Act 1993 has been replaced by the PDIA) (see r. 84(1), DR). If the Minister for Planning or the MRD are of the opinion that operations conducted in pursuance of a mining production tenement are of major social, economic or environmental importance, the need for an Environmental Impact Statement (EIS) and an Assessment Report may be determined (s. 160(4), PDIA). The MRD may also, with the support of the Minister for Planning, require that proposed developments associated with mining operations be considered under the same assessment process (s. 160(7), PDIA). The EIS process is detailed under section 113, PDIA. All EIS must include a statement of the expected environmental, social and economic effects of the development and must be prepared in accordance with a practice direction (s. 113 (1)-(4), PDIA). Consultations will be carried out as part of the EIS process and the project proponent must prepare written responses to matters raised by the Minister for Planning as a result of such consultations (s. 113(5), PDIA). After consultations have been completed, the State Planning Commission will prepare an Assessment Report (s. 113(9)-(10), PDIA).
Following the submission and consideration of the EIS and accompanying Assessment Report or, where an EIS has not been completed, a report from the MRD submitted in connection with a request for advice, the Minister for Planning shall advise the MRD on the necessary steps to be taken, including whether or not the mining production tenement should be granted and any environmental conditions which should apply (s. 160(5), PDIA). If the MRD does not agree with the advice of the Minister for Planning the matter must be referred to the Governor (s. 160(6), PDIA).
Certain activities specified under Schedule 1 of the EPA, which are not regulated under the terms of the MA, may require an Environmental Authorisation. Applications for Environmental Authorisations must be made to the EPA Authority (s. 38(1), EPA). The EPA Authority has indicated that it will accept the PEPR as the supporting document for such applications (see MG1 - Guidelines for Miners Mining Approval Processes in South Australia).
In relation to rehabilitation, the Minister may require the holder of a mining tenement to enter into a bond that satisfies the obligations to rehabilitate land disturbed by mining operations (s. 62, MA).