Victoria Releases Draft Extractive Industries Regulations for Public Consultation

Tuesday 1 October 2019 @ 11.32 a.m. | Legal Research

On 20 September 2019, the draft Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2019 (VIC) (“the Draft Regulations”) and its regulatory impact statement were released for public consultation. The Draft Regulations remake the Mineral Resources (Sustainable Development) (Extractive Industries) Interim Regulations 2010 (VIC), which are due to expire on 27 January 2020.

Victoria saw high demand for extractive resources during 2017-18. The Government predicts that at the current growth rate, annual production levels in 2050 will be double those in 2017. On 15 June 2018, the Victorian Government introduced the ‘Helping Victoria Grow: Extractive Resources Strategy’ (“the Strategy”) in order to ensure the quality and competitiveness of Victorian extractive resources, whilst supporting the State’s infrastructure. Additionally the Strategy aims to reduce regulatory burden and plans for the development for future projects in order to meet infrastructure needs.

The Strategy was considered in the development of the Draft Regulations, and is part of the Government’s commitment for a new regulatory regime to increase investment and community confidence, following the Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (VIC).

The Draft Regulations

The Draft Regulations aim to create a more efficient and effective framework to collect information for the management of both economic and environmental risks. They do so by prescribing information in order to support the operation of the Mineral Resources (Sustainable Development) Act 1990 (VIC) (“the Act”).

The Act is the primary piece of legislation that regulates Victoria’s mining and extractive industries. It provides for processes for licensing, approvals, co-ordinated applications, rights allocation, royalties, rentals, fees, and charges. The Act aims to ensure that public, environmental and infrastructure risks are eliminated and minimised, extracted land is rehabilitated, compensation for use of private land is appropriate, and conditions in licenses and approvals are enforced.

The Draft Regulations provide for:

  • Procedures in relation to work plans and extractive industry work authorities
  • Royalty matters
  • Fees and forms as authorised by the Act
  • Offences that are to be categorised as infringement offences

One of the main changes proposed by the Draft Regulations includes different requirements of risk management plans as part of work plans. The Act requires that an individual who applies for an extractive work authority lodge a work plan, which includes:

  • Identifying quarry hazards
  • Identifying and assessing risk
  • A risk management plan
  • A rehabilitation plan
  • A community engagement plan

Under the Draft Regulations, risk management plans will require less information, be more outcome-based, and include different measures and performance standards that can be more consistently reviewed.

The Draft Regulations also propose that objectives in rehabilitation plans be used as performance measures. The Act requires that holders of work authorities rehabilitate land in accordance with the approved plan, as submitted as a component of the work plan. Poor rehabilitation poses health, safety, and environmental risks. The safety of residents in nearby areas could be endangered where quarries were inadequately rehabilitated. Native flora and fauna can be disrupted, and aquifers and waterways could also be permanently damaged.

Requiring more information in rehabilitation plans will permit for better identification of future risks, allowing for a more accurate estimation of rehabilitation liability. This, in turn, aims to better protect the public and infrastructure and reduce Government financial risk in the future. Setting rehabilitation plan objectives as performance measures also aims to make these plans more enforceable. Under the Draft Regulations, a rehabilitation plan will, in future, be required to:

  • Identify a post-quarrying land use and achieve safe, stable and sustainable rehabilitated land capable of supporting that use
  • Set out objectives and completion criteria, which will be used to measure its rehabilitation success
  • Set out milestones
  • Identify risks arising from a rehabilitated land which will not be self-sustaining and set out a management plan for the identified risks

Under the Act, the holder of a work authority must provide prescribed information for work undertaken during the prescribed time. These reports are aimed to inform the public and to ensure that holders of work authorities meet their obligations, and accordingly report risks. The final main change proposed under the Draft Regulations is the inclusion of resource estimates in annual report, in addition to production data. This additional information is predicted to enable for future supply of resources to be more accurately estimated and therefore allow the Government to better strategize.

Consultation Process

Some of the questions posed for public consultation include:

“2. Are you supportive of the proposed change to risk based work plans that includes outcome-based requirements?

8. Should authority holders be required to report on progress with rehabilitation in their annual reports?

The Mineral Resources (Sustainable Development) Act 1990 requires rehabilitation to be carried out before an extractive industry work authority expires, as far as practicable.”

Consultation on the Draft Regulations is currently open. Further details on submissions and the progress of the consultation can be found on the State Government of Victoria website.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

[Draft] Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2019 (VIC) and regulatory impact statement available from TimeBase’s LawOne Service

Mineral Resources (Sustainable Development) Act 1990 (VIC) available from TimeBase’s LawOne Service

Media Release: Have your say on the proposed Extractive Industries regulations (Department of Jobs, Precincts and Regions, 20 September 2019)

Earth Resources: Extractive resources strategy (Department of Jobs, Precincts and Regions, 14 June 2019)

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