Last updated 5 October 2016 This chapter is currently under review.
Mining and petroleum (including coal seam gas) development in Queensland is regulated separately from other forms of land development and are not subject to the Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act).
Since 2000, there has been an attempt to separate the promotion and regulation of mining within the state government. Issues associated with:
- ownership, access to and use of land (tenure), and payments to the state government for extraction of minerals (royalties) are regulated under the Mineral Resources Act 1989 (Qld) (Mineral Resources Act) by the Department of Natural Resources and Mines
- environmental protection associated with mining are regulated under the Environmental Protection Act 1994 (Qld) (Environmental Protection Act) by the Department of Environment and Heritage Protection.
The Coordinator-General has a dual role of facilitating and assessing large mines as ‘coordinated projects’ under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act).
A regional interests development approval (RIDA) may be required under the Resource Planning Interests Act 2014 (Qld) when a resource or regulated activity is proposed to be located in an area of regional interest such as areas mapped as high-quality agricultural areas or strategic cropping lands.
Overarching the state system to some extent, the Commonwealth regulates mining and petroleum activities that have, will have or are likely to have a significant impact on a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (see the Environment Protection and Biodiversity Conservation Act above).
For more information see the Environmental Defenders Office’s Mining and Coal Seam Gas Law in Queensland: A guide for the community.
Mines and quarries
The legal system in Queensland distinguishes between activities done for the purpose of winning a mineral from the ground and activities that merely involve extracting things from the ground for their non-mineral properties.
‘Minerals’ are defined broadly under the Mineral Resources Act (s 6). Any activity done for the purpose of winning a mineral from the ground is regarded as mining and regulated under the mining regime. Seeking to extract minerals such as gold, silver and coal is regarded as ‘mining’ and regulated under the Mineral Resources Act.
In contrast, activities that involve extracting soil, sand, gravel or rock not for the purpose of obtaining minerals are regulated under the Sustainable Planning Act.
Such activities are commonly called quarries or extractive industries. Rock, gravel and sand quarries are regulated by local governments under the Sustainable Planning Act and by the Department of Environment and Heritage Protection under the Environmental Protection Act.
The distinction between mining regulated under the Mineral Resources Act and the Environmental Protection Act, and ‘extractive industries’ regulated under the Sustainable Planning Act is confusing. A lecture on mining law in Queensland is available online and can be viewed below.
Miners must hold an appropriate form of authority or tenement under the Mineral Resources Act for exploration and mining. These provide the miner with access rights (even if the owner of the land does not agree to grant access) and other rights to use land in accordance with the tenement.
There are five types of mining tenement provided in s 6D of the Mineral Resources Act:
- prospecting permit
- mining claim
- exploration permit
- mineral development licence
- mining lease.
Prospecting permits and mining claims generally (though not always) apply to relatively small-scale mining projects such as mining by hand or with limited machinery.
Large-scale mining typically involves long-term projects that proceed from exploration to extraction, and the regulatory regime reflects these stages.
An exploration permit allows a mining company to access a large area to explore for minerals. The environmental impacts at this stage are relatively minor. If minerals are located that cannot be economically recovered, the mining company may apply for a mineral development licence to protect its rights to develop the mineral in the future and to prevent others from applying for a mining lease for the same area. Once the miner believes it is economical to begin mining, an application for a mining lease can be made.
Operating in parallel to the mining tenure and royalty system, the Environmental Protection Act provides a system for assessing and regulating the environmental impacts of mining. Under this Act mining is regulated as an environmentally relevant activity (ERA) and an environmental authority is required for each of the five mining tenements identified above.
For a full-scale mining project to occur, a mining lease must be granted under the Mineral Resources Act and an environmental authority must be granted under the Environmental Protection Act.
Standard, variation and site-specific applications
Applications for an environmental authority for a mining or petroleum activity are divided into three different types:
- standard applications—when an applicant can meet the eligibility criteria and all the standard conditions associated with an ERA. This application type is generally restricted to low-risk activities and are not publicly notified except for applications involving a mining lease (s 149 Environmental Protection Act)
- variation applications—when an applicant can meet the eligibility criteria but needs to change one or more of the standard conditions for an ERA
- site-specific applications—when an applicant does not meet the eligibility criteria for the ERA, where there are no eligibility criteria in existence or the activity is part of a coordinated project being assessed by the Coordinator-General. These applications are subject to a whole-of-project assessment and include public notification. Standard conditions may be used in these approvals, however, it is likely that site-specific conditions will also be imposed.
The eligibility criteria and standard conditions are available online from the Department of Environment and Heritage Protection. They may be created in various ways by the minister under the Environmental Protection Act or prescribed under the Environmental Protection Regulation 2008 (Qld).
The four stages for applications after 30 March 2013 to an environmental authority for a mining or petroleum activity progress are provided in ch 5 of the Environmental Protection Act:
- application stage
- information stage
- notification stage
- decision stage.
The information stage only applies to variation applications and site-specific applications (s 138).
The notification stage does not apply to a standard application except if it involves a mining lease (s 149).
The notification stage applies to site-specific applications for a mining lease, geothermal activity, greenhouse gas storage or petroleum activity (s 149).
Environmental Impact Statement requirements for mining activities
Not all mining activities undergo a formal Environmental Impact Statement (EIS) process, but large mines generally will during the application process for a mining lease.
Mines that are declared by the Coordinator-General to be coordinated projects under the SDPWO Act undergo an EIS under that Act. The EIS is then used in assessing the application for a mining lease under the Mineral Resources Act and the application for an environmental authority under the Environmental Protection Act.
Mines that are not declared to be coordinated projects but involve variation applications and site-specific applications may also undergo an EIS under ch 3 of the Environmental Protection Act (s 143) but rarely do in practice.
Generally, the EIS process involves draft terms of reference for the project being publicly notified, the preparation of the draft EIS, public notification of the draft EIS and preparation of a supplementary EIS in light of the public comments received.
There are a variety of requirements for notifying landholders, whose land is subject to a mining application, and the general public about such applications and any objection rights.
Exploration for minerals and mining can occur on virtually any land in Queensland without the consent of the owner or leaseholder. However, landholders and others have certain rights to object to mining activities. Landholders affected by a mine generally also have a right to compensation for the loss of use of their land.
The process for public notification and objection to a mining lease and environmental authority involves several interrelated steps. When an application for a mining lease is lodged with the Mining Registrar under the Mineral Resources Act and found to comply with the Act, a certificate of application is issued and given to each owner of the land that is the subject of the proposed mining lease and any land necessary for access to it (s 252 Mineral Resources Act). It may not be publicly notified at this stage. If the mine is required to undergo an EIS, it will generally be publicly notified at the stage of preparing the draft terms of reference and when the EIS is on public display.
Notification of landholders and the public of a mining lease application, the stages of an EIS, a draft environmental authority for a mining lease, technical reports about the mine or prepared as part of the EIS, and objection rights can occur in one or more of the following ways:
- posting a notice on a post (known as the ‘datum post’) on the land that is the subject of the mining lease
- giving a notice directly to the owner of the land, other parties holding mining tenures over the land and the local government
- advertising in an approved newspaper circulating in the area of the land for a specified period such as at least 21 days before the last objection day
- advertising on the Coordinator-General’s website
- advertising on the Department of Environment and Heritage Protection website
- providing access to relevant documents on a public website created by the miner.
Any person may object to an application for a mining lease under the Mineral Resources Act and to an application for an environmental authority under the Environmental Protection Act.
To provide a right of appeal to the Land Court, an objection or submission must be properly made during the objection period or the submission period. If a mining lease application undergoes an EIS, the objection period will generally occur immediately following the completion of the EIS. At this point the relevant Mining Registrar issues a certificate of public notice under s 252A of the Mineral Resources Act, which fixes the last objection day for lodging objections to the application.
During the objection period, copies of the application documents are available for inspection at the relevant Mining Registry and the Department of Environment and Heritage Protection offices. To be properly made, an objection to the grant of a mining lease under the Mineral Resources Act must:
- be made on or before the last objection day to the chief executive administering the Act (this is normally done by lodging the objection at the relevant Mining Registry and departmental office)
- be in the approved form (this is available from the Mining Registrar or from the Department of Natural Resources and Mines)
- state the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds
- be served on the applicant for the mining lease by providing a copy of the objection on or before the last objection day (s 260 Mineral Resources Act).
The grounds of an objection to a mining lease should be framed around the considerations specified in s 269(4) of the Mineral Resources Act. These include whether the land is mineralised, whether the mining will conform with sound land use management, whether any adverse environmental impact will be caused by the mine, and whether the public right and interest will be prejudiced.
A submission on the grant of an environmental authority for a mining lease under the Environmental Protection Act is a prelude to obtaining a right of objection. A submission must:
- be in writing or made electronically
- state the name and address of each submitter
- be made to the Department of Environment and Heritage Protection
- be received on or before the last day of the submission period
- state the grounds of the submission and the facts and circumstances relied on in support of the grounds (s 161 Environmental Protection Act).
If the Department of Environment and Heritage Protection decides to approve the application to an environmental authority for a mine, it must notify the applicant and any submitter and provide a copy of the draft environmental authority (s 181 Environmental Protection Act).
A submitter may, by written notice (the objection notice) to the department, request that its submission be taken to be an objection to the application. The objection notice must:
- be given to the department within 20 business days after the notice under s 181(1) is given
- state the grounds for the objection (s 182 Environmental Protection Act).
The grounds of the objection may simply repeat the grounds stated in the earlier submission or they may include other grounds.
The grounds of a submission or an objection to an application for an environmental authority should be framed around the considerations specified in the Environmental Protection Act and its objects. For applications made after 30 March 2013, the considerations are contained in ss 175, 176 and 191 of the Environmental Protection Act. The considerations for the grant of an environmental authority include the ‘standard criteria’ listed in the dictionary under environmental protection such as the character, resilience and values of the receiving environment, and the public interest. While the environmental harm that the mine will cause is not listed in the criteria, this matter is inherent in the scheme of the Act and should be addressed in any submission.
Great care should be taken when writing the grounds of the objection, and the facts and circumstances relied upon. Once the objection period ends, no changes to the grounds of the objection are allowed, and if the objection proceeds to a hearing in the Land Court, a strict approach is taken to this so that changes cannot be made to an objection even if further information comes to light.
A person who has lodged a properly made objection may elect to be heard and to call expert evidence in an objections hearing in the Land Court. The court hears the application and considers any objections to it before making recommendations to:
- the Minister for Mines regarding the application for a mining lease (s 269 Mineral Resources Act)
- the Administering Authority (the Chief Executive of the Department of Environment and Heritage) for the Environmental Protection Act regarding the environmental authority (s 191 Environmental Protection Act).
The Minister for Mines and the Administering Authority are not bound by the recommendations of the Land Court, but its recommendations are normally accepted.
The final decisions to grant a mining lease or an environmental authority are subject to judicial review under the Judicial Review Act 1991 (Qld) only. There is no appeal of the merits of these decisions to a court (note that this is different to the process for non-mining development under the Sustainable Planning Act which allows appeal to the Planning and Environment Court).
A case study of an objection to a mining lease under the Mineral Resources Act and a submission and later objection under the new Environmental Protection Act process and an objection hearing in the Land Court is available online for the Carmichael Coal Mine.
Further guidance on objecting to a mine and appealing to the Land Court is provided in the Environmental Defenders Office handbook Mining and Coal Seam Gas Law in Queensland: A guide for the community.