The Greens’ Responsible Mining (Protecting Land, Water and Communities) Bill 2014

Jeremy Buckingham, the NSW Greens spokesperson for Mining and Agriculture has developed legislation to introduce clear no-go zones for mineral and gas exploration, mining and gas production.

The Greens’ Responsible Mining (Protecting Land, Water and Communities) Bill is a response to the demands of the NSW public to bring to an end the failed adaptive management and co-existence strategies of successive Governments that have seen mining and coal seam gas encroach on our agricultural lands, communities, and environment.

Securing agricultural land and water supplies to produce enough high quality food for the Australian and global population requires a clear segregation policy and a precautionary approach to extractive industries that prioritises the protection of food producing land and water.

The Responsible Mining Bill offers a clear alternative to the Coalition Government’s failed Strategic Regional Land Use Policy which ignores the Liberal and National Party’s own election commitment by not implementing protections for those places where mining and other extractive industries simply should not occur.

What is responsible mining?

Mining and other extractive industries access finite, non-renewable resources. While we need many of these resources to support our communities and economy, the extraction and processing has a significant impact on other vital resources including food producing land, clean water, clean air, a safe and healthy environment in which to live, and a stable climate.

Responsible Mining is a model to manage these finite resources as demand for both mineral resources and other natural resources increases. A Responsible Mining approach looks to conserve mineral resources for the long-term benefit of the public while minimising the negative impacts and protecting those natural resources we rely on for survival, like water, air and food producing land.

In 2005 a range of non-government organisations developed a discussion paper titled A Framework for Responsible Mining. The lead chapter was titled: Deciding whether mining is an appropriate landuse. The arguments for the importance of no-go zones are clearly outlined in this paper and no-go zones are seen as a critical step to address the negative impacts of mining on communities.

This legislation would work in conjunction with a number of other Acts and government policies including developing a strategic approach to the location of mining, providing employment and training opportunities, encouraging sustainable mineral use and recycling and ensuring royalties are appropriately and equitably reinvested. The Greens also support the establishment of a cost recovery scheme to pay for environment rehabilitation as well as the regulatory costs of effectively policing the industry.

What will the Bill do?

The Bill establishes a clear and responsible framework for mining by:

Introducing No Go Zones for productive agricultural land, National Parks, state conservation areas, State Forests, biodiversity hot spots, urban areas and drinking water catchments

Legislating a right to say no for both local councils, through their Local Environment Plan, and landholders

Putting a gate in the Mining and Petroleum Gateway so that inappropriate mines can be rejected from the outset by independent experts who will assess significant impacts on:

  1. Climate change
  2. Agricultural land
  3. Critical industry clusters
  4. Water resources
  5. Ecological communities

Establishing an independent, well-resourced Mining and Petroleum Authority which will ensure that all approved mining and petroleum developments meet their ongoing legislative and regulatory requirements and the granting of mining license is free from corruption.

Restoring the Public Interest Test so that existing licenses to be cancelled by the minister if it is in the public interest, such as where there is significant public opposition, concern for the environment or corruption.

The Bill also makes a number of important amendments to the Mining Act 1992 and the Petroleum (Onshore) Act 1991, including fixing up access agreements, preventing conflicts of interest for decision makers, improving environmental protections, mandating audits of petroleum licence compliance and introducing strong penalties for late or incorrect payment of royalties.

You can see the full text of the Bill introduced to Parliament here

RESPONSIBLE MINING (PROTECTING LAND, WATER AND COMMUNITIES) BILL 2014

Bill introduced, and read a first time and ordered to be printed on motion by Mr Jeremy Buckingham.

Second Reading

Mr JEREMY BUCKINGHAM [11.13 a.m.]: I move:

      • That this bill be now read a second time.

Since becoming a member of the Legislative Council, my office and I have been working with people in the community to introduce the Responsible Mining (Protecting Land, Water and Communities) Bill 2014. I am very proud of this bill.

New South Wales is currently suffering a death by a thousand cuts when it comes to exploration, mining and gas production. Currently there is not a single place in New South Wales a person can move to and be guaranteed that they will not be subject to mineral exploration, mining or gas development.

There are no guarantees that our productive agricultural land, our water resources or our precious natural resources will be protected from the cumulative effect of project expansions, new greenfield developments, and the layering of coal seam gas development next to coalmines. Left unchecked, we have seen mining industries dominate landscapes, communities and the environment. The Government proudly projects a massive expansion in mining over the next decade and has proclaimed its intentions to develop a coal seam gas industry in this State. It is therefore not surprising that the New South Wales community feels under siege by mining and gas exploration and development. This bill is a response to the demands of the New South Wales public to bring to an end the failed adaptive management and co-existence strategies of successive governments, which have seen mining and coal seam gas encroach on our agricultural lands, communities and environment.

Securing agricultural land and water supplies to produce enough high-quality food for the Australian and global population requires a clear segregation policy and a precautionary approach to extractive industries that prioritises the protection of food producing land and water. This bill offers a clear alternative to the Coalition Government’s failed Strategic Regional Land Use Policy, which ignores the Liberal-Nationals election commitment by not implementing protections for those places where mining and other extractive industries simply should not occur. The Strategic Regional Land Use Policy was meant to be the Government’s answer to the clear conflicts between mining and agriculture, with our best land mapped and placed off limits from extractive industries. Within the Coalition’s 2011 election platform it stated:

    • The New South Wales Liberals and Nationals believe that agricultural land and other sensitive areas exist in New South Wales where mining and coal seam gas extraction should not occur.

It was in that context that the Coalition made this clear commitment:

    • The strategic land use planning process will be able to identify strategic agricultural land and associated water and ensure that it is protected from the impacts of development.

The Leader of the Government in this House, the Hon Duncan Gay, has called for ring fencing of certain areas from mining and gas development. But what has been delivered to the people of New South Wales is a weak and confused policy, which allows mining on our best agricultural land, fails to protect our water resources and favours the Government’s big coal and gas mates over regional communities. The Chinese Government’s Shenhua Watermark Coal Mine is on the verge of approval in the heart of the Liverpool Plains, some of the most significant and valuable agricultural land in the country—perhaps on earth. Despite massive flaws in the data on water impacts, it is set for approval.

The gateway process was meant to streamline the planning process by identifying and rejecting inappropriate proposals from the outset but what has been delivered is a hole in the fence rather than a gateway. The gateway process has a lot of value—if only it were working properly. The gateway assessments have provided a lot of useful information and made that information available to the public in an accessible form. The problem with the gateway process is it has no power. It has no teeth. It is unable to say, “This project has major issues that should be addressed before it can progress to the planning assessment stage.” There is no red light. There is no gate in the gateway. There is only a green light, or perhaps an amber light. The Mining and Petroleum Gateway Panel must issue either a gateway certificate or a conditional gateway certificate. The Greens want to fix the gateway panel, and give it some real powers. This bill will put a gate in the gateway, which will stop some extremely problematic mining projects in their tracks.

The three mines which have so far been assessed by this panel have progressed through the gateway despite failing the majority of assessment criteria. For example, the Bylong coal project was assessed as having “direct and significant impacts on the agricultural productivity of verified Biophysical Strategic Agricultural Land [BSAL]” and to be “noncompliant with respect to its assessment of the equine Critical Industry Cluster [CIC]”, lacking “proper assessment of potential impacts”, and to have “misconstrued the gateway process and failed to put forward a compliant or considered assessment”. Yet the project was given the tick of approval and allowed to move on through the planning process. This is clearly a broken system.

The NSW Aquifer Interference Policy, which was meant to be a regulation which protects our vital underground water resources, is even more toothless. It simply acts as a “guide” to decision makers and is ignored by miners. A clear example of this is the Caroona coal project near Quirindi. This is a proposed underground longwall coalmine which will result, according to the gateway panel, in subsidence of 8,500 hectares of prime agricultural land and surface cracking of up to 300 millimetres. The panel report says there will be:

    • … changes to soil water drainage, increased surface water ponding and potential inundation of subsoil layers with associated physical and chemical degradation issues.

The panel report says:

        • With respect to ‘highly productive’ aquifers it has also been predicted by the applicant that 27 private bores located in the Gunnedah—Oxley Basin MDB (Spring Ridge) groundwater source will have impacts greater than minimal harm …

The gateway panel is particularly concerned about “the potential cumulative impact on the ‘highly productive’ Upper Namoi alluvial aquifer”. Despite all of this, the full extent of the application of the Government’s Aquifer Interference Policy is a letter from the Minister for Natural Resources, Lands and Water, Kevin Humphries, which says:

    • I have considered the input of the Independent Expert Scientific Committee and note their advice in relation to incomplete information and uncertainty in regard to impact predictions. As a result, there is not sufficient information available to allow for a proper assessment of the impacts of the proposal on water resources.

And that is all there is. Another Government initiative to supposedly safeguard our agricultural resources is the creation of Critical Industry Clusters [CICs]. These were created to protect centres of agriculture from mining, but the Government has ignored rice, citrus, cotton, sugar and dairy farmers, who have all indicated they want this limited protection. There is no process for industries to apply for protection; it is clear that this policy is merely a political fix for the equine industry and viticulturists in the Hunter Valley and not a serious initiative. Fiona Simson, President of NSW Farmers Association, summed up the Government’s approach to date earlier this year when she said:

    • The New South Wales Government has comprehensively failed to put in place the right checks and balances to protect precious agricultural areas.

Given neither Labor nor the Coalition have chosen to protect the community, the water supplies and the agricultural land of New South Wales, I am proud to introduce this bill, the Responsible Mining (Protecting Land, Water and Communities) Bill, on behalf of The Greens. The New South Wales community is overwhelmingly calling for this kind of action and protection. At the heart of this bill is a simple proposition: Mining should be undertaken responsibly and strategically and our land, water and communities should be protected from its impacts, where possible. Mining and other extractive industries access finite, non-renewable resources and we need many of these resources to support our communities and economy. The Greens are not opposed to mining.

The Hon. Dr Peter Phelps: You are kidding me.

Mr JEREMY BUCKINGHAM: Farmers are not opposed to mining. I note the interjection from the Hon. Dr Peter Phelps. I have worked as a miner. I come from a mining family. We are not opposed to mining. My father was a tin miner. My grandfather worked in gas.

The Hon. Lynda Voltz: Point of order: It is impossible to hear the member’s second reading speech because of the constant interjections from the Hon. Dr Peter Phelps. I ask that he be brought to order.

The Hon. Dr Peter Phelps: To the point of order: The member is deliberately provoking members opposite.

The Hon. Lynda Voltz: To the point of order: The Hon. Dr Peter Phelps is flouting the rules of this House. He should be not only called to order, he should be named.

The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! I remind members that Mr Jeremy Buckingham has the call. Members will remain silent so everyone call hear the member with the call, including Hansard.

Mr JEREMY BUCKINGHAM: The Greens are not opposed to coking coal coalmines. We do not want to see any new ones, but we acknowledge the role of coking coal in the production of steel. The Greens are not out there campaigning against iron ore or the appropriate mining of rare earths, nickel, zinc and antimony—some of these are things we use on a daily basis—as long as they are mined responsibly. That is exactly what this bill is about. We do not want to see new coalmines, and certainly we oppose all thermal coalmining and want to see it phased out. But to say that we are opposed to mining is juvenile and utterly incorrect.

We know that extraction and processing has a significant impact on other vital resources, including food-producing land, clean water, clean air, a safe and healthy environment in which to live, and a stable climate. Responsible mining is a model by which to manage these finite resources as demand for both mineral resources and other natural resources increases. A responsible mining approach looks to conserve mineral resources for the long-term benefit of the public while minimising the negative impacts and protecting those natural resources we rely on for survival—such as water, air and food-producing land.

This bill establishes a framework based on clear no-go zones, an independent and transparent planning and enforcement regime, and the ability for communities and landholders to prohibit mining or prospecting for minerals or petroleum. This legislation does not specifically prohibit coal and gas mining but would restrict all types of mining in protected areas and ensure mining development in other areas goes through an independent, transparent and accountable planning framework to ensure land, water and communities are not impacted by irresponsible mining. The Greens remain opposed to new coal and coal seam gas development and support a phase-out plan for existing operations. I now turn to the detail of the bill.

The Green’s Responsible Mining (Protecting Land, Water and Communities) Bill 2014 will establish a clear and responsible framework for mining by introducing clear no-go zones where mining and petroleum exploration and production cannot occur; legislating a right to say no to exploration and mining for communities and landholders; putting a gate in the Mining and Petroleum Gateway Panel to ensure inappropriate projects are rejected from the outset; and establishing an independent, well-resourced mining and petroleum authority to ensure that all approved mining and petroleum developments meet their ongoing legislative and regulatory requirements and that the granting of mining licences is free from corruption.

The bill makes a number of important amendments to the Mining Act 1992 and the Petroleum (Onshore) Act 1991, including fixing up access agreements, restoring the public interest test, preventing conflicts of interest for decision makers, improving environmental protections, mandating audits of petroleum licence compliance and introducing strong penalties for late or incorrect payment of royalties. The Greens welcome the call by NSW Chief Scientist Mary O’Kane for an extensive review and overhaul of these Acts with significant public involvement. We will move to establish an upper House inquiry into each of these Acts as soon as Parliament resumes following the 2015 election. We hope that we will receive the support of all parties in undertaking this overdue review.

The bill sets out clear no-go zones for mining and prospecting for minerals or petroleum by declaring or empowering the Minister to declare certain areas as protected land. This includes land in, or within two kilometres of, the following: national parks and State conservation areas; State forests; the areas of operation of the Sydney Catchment Authority and the Sydney Water Corporation; protected catchment areas; productive agricultural land; and tier 1 biodiversity land. It also includes land in, or within five kilometres of, residential, business or industrial zones under a local environmental plan.

Mining and extractive industries are already prohibited in national parks in New South Wales but not in State conservation areas and other reserve types. In fact, the key difference between a national park and these other areas is that mining is allowed. Although around 800 parks and nature reserves are managed by the Office of Environment and Heritage as part of its reserve system, only 199 are national parks with the highest level of protection. These other areas are identified in the reserve system for their natural assets and often the presence of endangered ecological communities and threatened species. If an area is gazetted as a reserve for environmental and recreational purposes either as a national park or a nature reserve it should be protected from mining because that is clearly an incompatible use when considered against the environmental and social objectives of these reserves.

State forests are natural resources that have been put aside to ensure a viable native forest industry for wood products. Often these areas are also important reserves for endangered ecological communities. To continue to diminish these natural assets by allowing exploration, mining and coal seam gas development will result in long-term or possibly permanent loss of this land for those purposes. We need only look at the Pilliga and Leard forests to see that is true. The responsible mining bill would ensure that land that is identified as a State forest will be maintained for that purpose for the long-term benefit of future generations and will not be opened up for mining or gas development.

Coal seam gas exploration and longwall mining are occurring within Sydney’s drinking water catchment and exploration licences continue to operate across many critical catchment areas. That is inappropriate. The protection of water quality for domestic use, stock and irrigation and the health of our river systems is not something that can be risk managed or traded away for a short-term benefit. An aquifer cannot be fixed. A river once polluted is almost impossible to clean.

In 2011, in response to a question in Parliament, the New South Wales Government acknowledged that historic antimony mining on the Dorrigo Plateau had deposited a plume of material containing heavy metals in the Macleay River system over approximately 200 kilometres and that the plume would continue to release elevated levels of heavy metals for millennia. Clearly, a precautionary approach is the only management technique available to protect our water systems.

The responsible mining bill allows the Minister with responsibility for water to declare certain areas as protected catchment areas so that mining or gas production will not be allowed within two kilometres of river systems, productive aquifers and drinking water catchments. The bill specifically prohibits mining or gas production within the areas of operation of the Sydney Catchment Authority and the Sydney Water Corporation, which have already been established by legislation. I know the member for Heathcote rarely supports that. The bill also creates an offence for interfering with highly productive aquifers as declared by the water Minister.

I am passionate about productive agricultural land. The Government’s Strategic Regional Land Use Policy deals exclusively with what is termed “strategic” agricultural land or the “best of the best”. The plans for the New England north-west and Hunter show that massive areas of productive agricultural land are left out of the plans and continue to be subject to mining and coal seam gas proposals. Clearly, the “best of the best” definition means that many farmers in New South Wales who are growing important food for the Australian community continue to be exposed to the risk of mining and gas development on their land.

Australia produces high-quality food for local and international consumers but is increasingly constrained by water availability and the loss of productive land because of urban and industrial encroachment. We simply cannot afford to lose more productive agricultural land to irresponsible and in some cases unnecessary development. While it is generally accepted that national parks and conservation areas should be protected from mining and extractive industries, there has been a slower realisation that there is a need to preserve our food growing areas. This country needs to protect productive agricultural land in food reserves. Protected productive agricultural land under the responsible mining bill is land identified as such under a scientifically based land classification system and declared by the Minister for Primary Industries.

Tier 1 biodiversity land is land declared by the Minister for the Environment after taking into account the need for the protection of vegetation in threatened and over-cleared landscapes, poorly reserved and severely depleted landscapes, source habitats for native fauna and critical landscape corridors and landscape connectivity. We have seen from leaked Santos internal documents on the Strategic Regional Land Use Policy obtained by The Land newspaper that the Coalition Government originally intended to protect land declared as tier 1 biodiversity but it was rolled by industry lobbyists and failed to protect our important natural assets. That is a cause for deep shame.

Mining and coal seam gas exploration and development are currently occurring close to and under residential communities. In Gloucester AGL is fracking wells within 350 metres of people’s homes. Today in Gloucester people in the Forbesdale residential estate are looking out their windows at frack rigs only 350 metres away. It is an utter disgrace. In Sydney the AGL Camden gas project is slated for expansion into the Camden and Campbelltown local government areas, which are parts of the Sydney south-west growth corridor, and into the heart of Liverpool. International, Queensland and local experience has demonstrated that subsidence, air quality and health impacts, well explosions and polluted waterways are likely impacts from mining and gas development. These risks are completely unacceptable in and around urban areas whether they are residential areas or non-mining industrial and business areas.

Another important aspect of the responsible mining bill is the provision to allow the community to make the ultimate decision about whether or not its village, town or region becomes a mining or gas precinct. Giving power back to the grassroots is a fundamental principle of The Greens and one I am proud to incorporate in this bill. The failure of the mining and gas industries to demonstrate that they can coexist with other industries means that, without the assurance of a veto, local communities and the long-term sustainable industries that support them, particularly agriculture and tourism, will continue to be sacrificed. In its 2009 Mineral Futures Discussion Paper the Institute for Sustainable Futures noted:

    • A major discrepancy exists in the power of local communities to influence regional futures planning and decision-making relative to global corporations and governments.

This discrepancy has been illustrated numerous times as communities are encroached upon by mines approved originally as boutique operations that over time have expanded to the point of forcing out other industries and turning some towns into a little more than mine service centres.

Mr Scot MacDonald: Just like Blakefield South.

Mr JEREMY BUCKINGHAM: Exactly. Bulga Coal is doing that there and in Muswellbrook. In fact, 51 councils have made statements on coal seam gas development unequivocally indicating their opposition to coal seam gas in their local government areas. A further 27 council have expressed significant concerns about coal seam gas. Despite this overwhelming opposition, local councils have no power to prevent mining in their communities.

In response to this communities are taking charge of their destinies via a grassroots process to declare their communities Gasfield Free. There is no better example of community opposition than in the northern rivers region where at last count 128 communities had declared themselves Gasfield Free with an average “yes” response of 95 per cent. The responsible mining bill would enable local councils to veto mining and gas activities through local environmental plans [LEPs]. The community can decide what mix of industries they want and where these industries go. It removes the right of State and Federal governments to overrule a council’s decision about where extractive industries can and cannot occur, but retains the responsibility with the State Government to ensure development occurs under suitable environmental and planning conditions.

This bill establishes a Mining and Petroleum Gateway panel, which will consider applications from all mining and prospecting for minerals or petroleum. The panel is similar to the current panel established by the Government but differs in two important aspects: first, it has the ability to reject inappropriate project applications if they do not meet the relevant criteria; and secondly, it expands the relevant criteria beyond simply looking at the impacts on biophysical strategic agricultural land and critical industry clusters so that the panel also must consider impacts on water resources, ecological communities, climate change and Aboriginal cultural heritage. In making its determination the panel must consider: whether or not there is a real or not remote chance or possibility that there will be a significant impact; the duration, extent and intensity of any impact; any proposed avoidance, mitigation, offset or rehabilitation measures in respect of any such impact; and the cumulative impact of the proposed development in addition to existing development.

The public has completely lost faith in the ability of this Government to regulate the industry, enforce licence conditions and hand out licences free from corruption. The establishment of an independent mining and petroleum authority is imperative to the efficient, effective, transparent and accountable management of mining developments in this State. This bill establishes such an authority to act as an independent and accountable body to ensure that all authorised mining or petroleum activities comply with any legislative and regulatory requirements. The authority also will be responsible for making assessments of applications for the grant or renewal of mining or petroleum exploration licences as recommended by ICAC.

There has been a big debate in New South Wales and across the country about the need for landholders to have the right to say no to mining and petroleum developments on their land. In response to that, one of the most significant and powerful grassroots movements in our nation’s history has emerged—the Lock the Gate Alliance. This movement encourages landholders to lock the gate to coal seam gas companies as a form of non-cooperation because the law, through arbitration, effectively allows gas companies to force their way onto people’s properties, regardless of whether or not landholders approve of it. The clear unfairness of this situation has meant that many senior Coalition members including Prime Minister Tony Abbott, agriculture Minister Barnaby Joyce, and industry Minister Ian MacFarlane, all have supported the right to say no.

There is a clear community expectation that mining companies should not be able to force their way onto private land and that the serious power imbalance that exists when negotiating access arrangements should be addressed. This was clearly demonstrated in polling conducted by Essential Research in May 2013, which found that 86 per cent of people in New South Wales support allowing landholders to refuse access by mining companies to their land. I note that the Government is yet to respond to the Walker inquiry into access arrangements. The Government is sitting on its hands, has not responded to the Chief Scientist and has not responded to the very reasonable review conducted by Brett Walker, SC. The Greens call on the Government to immediately respond.

This bill establishes a simple and clear method of giving landholders the right to say no. The bill removes all sections in the Petroleum (Onshore) Act and the Mining Act relating to arbitration, meaning that there will need to be voluntary access agreements between the title holder and landholder before mining companies are able to lawfully access private land. Any prospecting operations to which a landholder agrees will be required to be carried out in accordance with an access arrangement agreed on between the holder of the prospecting title and each landholder in that area of land, which is very reasonable. The current procedure for an arbitrator to determine an access arrangement when the landholder has not agreed to such an arrangement will be removed.

Another important aspect of this bill is reinstatement of the public interest test as grounds for cancellation of a mining or petroleum licence. Earlier this year the Government sneakily removed the public interest test that was introduced as recently as the end of last year—we barely knew it—and in doing so significantly reduced the power of the Minister with respect to cancellation of mining and petroleum licences. That was another flip-flop from this Government as it staggers around in the mining and petroleum space. It is clearly appropriate for the Minister to take into account public interest when assessing the ongoing appropriateness of a licence for an activity that causes significant disruption to our land, water and climate. In this bill we have moved to reinstate this provision.

In fact, currently there are numerous instances where it would be appropriate for the Minister to use this power. BHP’s Caroona and Shenhua Watermark coal projects are set to be developed in the Liverpool Plains where some our most fertile soil and best climate for agriculture exist. It is an absolute disgrace that those projects were allowed to proceed. It is clearly in the public interest that those mines be prevented from proceeding. The Government would not be in the legal mess it currently is in with Metgasco, which owns unconventional gas licences in the northern rivers region, were it to have that power.

It is clear that this bill is needed. It restores balance to the community. It provides a framework for responsible mining. It empowers the community. I acknowledge the work of my staff—Justin Field, Adam Guise, Jack Gough and Max Phillips—and commend this bill to the House.

Debate adjourned on motion by the Hon. Dr Peter Phelps and set down as an order of the day for a future day.

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