University
stringclasses 19
values | Text
stringlengths 458
20.7k
|
|---|---|
Curtain
|
Another agency that represents the Australian mineral sector is the Minerals Council
of Australia (MCA), and it was established in 1995. The MCA represents the “minerals
industry with a common purpose in advocating responsible policies to promote
growth, prosperity and sustainability.” (MCA, n.d., para two). MCA could be cited as
an example of the trickle-down effect of the global mining sustainability initiatives
discussed earlier in this chapter.
Further to these private sector initiatives to promote mining sustainability across the
country, the Australian government also has initiated actions supporting
environmental protection legislatively. Among these is the enactment of Australia’s
peak national legislation, namely the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act). This Act “is the Australian Government’s central
piece of environmental legislation. It provides a legal framework to protect and
manage nationally and internationally important flora, fauna, ecological communities
and heritage places” (Australian Government: Department of Environment and
Energy (n.d). A closer examination of the functionality and implementation of this Act
is discussed in Chapter Five (section 5.7.4 ). Despite the enactments of the EPBC
Act, specific mining sustainability legislation has not yet appeared in Western
Australia (Mining Act 1978; Mining Rehabilitation Fund Act 2012) though the latter
has introduced regulation to rehabilitate abandoned mines sites. A detailed
discussion covering issues on the WA mining regulatory framework, evolution of the
mining legislation and other background information is included in Chapters Five and
Eight respectively.
2.5 Summary of the chapter
This chapter outlined how the global extractive industry has actively responded to
exploitation and conservation of natural resources (world resources institute, n.d).
The industry bodies have tried not only to reform their approaches but displayed
initiatives by introducing new reporting methods on sustainability practices
(globalreporting.org, n.d). What has emerged from these policy drivers is that
establishing mining can no longer remain as an extractive industry without integrating
social and environmental considerations into its economic performance. The next
chapter provides an overview of emerging theoretical concepts which allow the mining
industry to link their work with social responsibility and licence to operate.
45
|
Curtain
|
CHAPTER THREE LITERATURE REVIEW - THEORETICAL APPROACHES
3.1 Introduction
This chapter reviews key literature covering concepts such as corporate social
responsibility, social licence to operate, the theory of bureaucracy, legal doctrine, the
rule of law and discourse analysis.
As a result of the global trends towards sustainability initiatives, a need emerged to
accept concepts such as Corporate Social Responsibility (CSR), and Social Licence
to Operate (LSO), as practical philosophies guiding the performance of corporate
responsibilities concerning its role within society. Global corporations now embrace
concepts such as CSR and LSO by incorporating elements of sustainable
development and global reporting initiatives (MMSD. n.d. para five);
globalreporting.org, n.d.).
Discussing the future directions of business ethics, Friedman (1970) developed the
conceptual ideas of CSR. Furthermore, the need for environmental protection has
been conceptualised through regulation theories and implemented through legislation
as mining can cause damage to the Earth’s ecosystems beyond repair (MMSD. n.d.
para five, Martonas, 2017 & Azapagic, 2004). These issues and increased
community concerns have influenced the mining companies to initiate actions as a
part of their social responsibility and adopting responsible practices (Bice, 2014,
Azapagic, 2004).
3.2 Corporate social responsibility and social licence for mining
Concepts such as CSR and SLO now appear as integral parts of frameworks
describing mining sustainability (Bice, 2014; Bice & Moffat. 2014; Frazer Institute,
n.d.; & Azapagic, 2004). The Frazer institute which compiles an annual global index
for best places for investments in mining and resource development projects defines
CSR and SLO as follows:
“The social license to operate (SLO) refers to the level of acceptance or
approval by local communities and stakeholders of mining companies and their
operations. The concept has evolved fairly recently from the broader and more
established notion of “Corporate Social Responsibility” and is based on the idea
that mining companies need not only government permission [or permits] but
also “social permission” to conduct their business. Increasingly, having an SLO
46
|
Curtain
|
is an essential part of operating within democratic jurisdictions, as without
sufficient popular support it is unlikely that agencies from elected governments
will willingly grant operational permits or license” (Fraser Institute -
MiningFacts.org. n.d., para one).
Despite having a long history of the usage of the term, there is no consensus among
the industry, academics and interested parties about a universal definition of CSR
(Sheehy, 2015). The CSR concept emerged emphasising a vital element of business
profits and ethics as far back as in 1970 (Friedman, 1970). The mining companies
embraced it when large global corporations initiated actions to incorporate elements
of sustainable development and global reporting initiatives (MMSD. n.d. para 5);
globalreporting.org, n.d.). According to Donaldson and Dunfee (1999), the reason
why many companies embrace the concept of CSR is due to the need to have a social
licence to operate because it protects their interests. However, CSR and SLO are
voluntary commitments. Unless there are proper definitions and incorporated them
into legislation, these concepts would end up as rhetoric:
“Without definition and boundaries, social licence is no more than abstract
rhetoric that has little,meaning or, worse still, may frustrate genuine efforts
to align interests because of the differing expectations it creates” (Business
Council of British Columbia, 2015, p.1).
Thus, the implementation of these concepts involves negotiating and receiving the
consent of the community and stakeholders where mining operates. These two
concepts have not been incorporated into any mining legislation in Australia. At
present, there are no universal definitions or mandatory guidelines enforcing a
company to incorporate either CSR or SLO as an essential operational ethos. On the
other hand, CSR has become an integral part of sustainability reporting. Asmus
(2009) identifies three issues that need to be addressed and resolved due to the
voluntary nature of these concepts. They are: (a) how is a “community" defined? Is
there a specific geographical limitation? Should the elected officials represent a
"community" and be given equal or higher status compared to local citizens who may
actually represent a community; (b) If there are differences of opinions among the
members of the community, then what processes should validate any decision-
making; whether it is to be achieved through a majority vote or by other means, e.g.
referendum or participatory democracy; (c) in the absence of a political processes,
how to define and determine an adequate level of consent (ibid). According to
47
|
Curtain
|
Donaldson and Dunfee (1999) engaging with stakeholders to obtain SLO can start by
identifying “micro-social contracts” through discussions at the commencement of a
project.
Australian legislation and regulations have no provisions for either CSR or SLO
conditions. On the other hand, environmental protection is covered by legislation
which could be explained by regulation theory.
3.3 Theory of bureaucracy
This section reviews the literature regarding the theory of bureaucracy and focuses
primarily on German sociologist Max Weber’s work (1952, 2015) to gain insights into
the formation and the functions of the agencies that are entrusted to implement the
legislation and regulations come under the MinReF. The theory of bureaucracy
explains specific features of public administration (Udy, 1959) emphasising the critical
need for communication that runs as a thread of bureaucracy (Weber, 2015). Weber
(2015) introduces bureaucracy as prerequisite conditions for establishing a
bureaucratic administration which functions according to several of its characteristics.
Weber defines characteristics of a bureaucratic administration by identifying a
series of features. The first feature of bureaucracy is the presence of a
hierarchical nature of authority and structures. Another feature of bureaucracy
according to Weber (2015) is that staff members of the organisation or
bureaucrats perform their duties in an impersonal manner. This feature can
be applied to all public service organisation where employees have to follow
specific codes and ethics. Furthermore, these features could be observed in the
Western Australian public sector. (Government of Western Australia: Public Sector
Commission, n.d., para one). Another feature of bureaucracy is the presence of
specialised administrative staff to carry out specific functions within an organisation.
Weber notes:
“Bureaucratic administration means fundamentally the exercise of control is on
the basis of knowledge. This is one feature which makes it specifically rational”
(Weber, 1952, p.26).
Furthermore, according to Weber, Gerth & Mills. (1977), employees in “rational
organizations” should be rewarded to compensate for their time (salaries)”. When
perusing the functions of agencies that implement MinReF such as DMIRS and EPA,
48
|
Curtain
|
the relevance of Weber’s features of bureaucracy such as specialised administrative
staff could be observed. This feature also applies to all public service employees of
all levels in WA as they work on public service awards (Government of Western
Australia: Public Sector Commission, n.d).
Weber also introduced the term, “Rational-Legal authority” which is still considered a
feature of modern liberal states (Anter, 2014; Meyer and Brown, 1977). The notion of
“Rational-Legal authority” maintains that an individual within the bureaucracy or an
institution has powers (authority) that stem from the legal offices that they hold.
Weber’s ideas are useful to understand the authority granted under vital legislation
within the MinReF. For example, the Mining Act, defined two critical positions of the
agency entrusted to implement the Act as follows:
“Director General of Mines means the person for the time being holding or
acting in the office of a chief executive officer of the Department.; Director,
Geological Survey means the person for the time being holding or acting in the
office of Director, Geological Survey in the Department”. (Mining Act 1978, p.7)
Similarly, Section 11 of the Act legitimises establishing departments and officers
(bureaucrats) to perform specialised functions such as mining registrars, geologists,
surveyors, inspectors and such other officers:
“There shall be a department of the Public Service of the State to assist the
Minister in the administration of this Act, to which department there shall be
appointed, under Part 3 of the Public Sector Management Act 1994, a chief
executive officer and such number of persons to be mining registrars,
geologists, surveyors, inspectors and such other officers as may be necessary
for the due administration of this Act” (Mining Act 1978, p. 17).
Similar role delineation and the bureaucratic functions are defined in other key Acts
that come under the MinReF. For example, Section 22 of the Environmental
Protection Act 1986 stipulates the appointment and engagement of staff to perform
the functions of the EPA:
s. 22 (1) There shall be appointed under and subject to Part 3 of the Public
Sector Management Act 1994 a chief executive officer and such other officers
as are necessary to assist the Minister, the Authority and the CEO in the
49
|
Curtain
|
performance of their respective functions (Environmental Protection Act, p.
34).
The staffing requirements and the role clarifications under the Mining Act and the EP
Act reflect Weber’s theories on bureaucracy describing the characteristic of
bureaucratic administration. When reviewing Weber’s work in the context of the
MinReF and the bureaucracy that exists to support and implement legislation two
unique features emerge. First, what Weber highlights as the need for communication,
stating that it needs to run as a thread of the bureaucracy within an organisation.
However, this feature is not entirely transparent in the MinReF bureaucracy due to
lack of coordination of agency activities (WAAG, 2011). Secondly, the justification of
Weber’s features of bureaucracy such as the hierarchical nature of authority is
noticeable among the MinReF agency structures as appearing in the Mining Act (s
11) and cited above.
While Weber’s work provides the characteristics and “Rational-Legal authority” of the
Bureaucracy, his work does not explain political decisions that impact the mining
approval process and environmental compliance. Hoecke’s work (2013) on legal
doctrines are useful to gain some insights into political decisions that influence the
mining approval process and environmental compliance.
3.4 Legal doctrines
The concept of ‘legal doctrines’ provide a framework to examine various issues and
political decisions that impact the mining approval process and environmental
compliance. According to Hoecke (2013), there are seven features of legal doctrines.
They are: (i) hermeneutic; (ii) argumentative; (iii) empirical; (iv) explanatory; (v)
axiomatic; (vi) logical; and (vii) normative.
The hermeneutic doctrine involves “interpreting texts and arguing about a choice
among diverging interpretations” (Hoecke, 2013, p. 4). By contrast, the
argumentative doctrine “is the argumentation to support some legal interpretation or
solution that is emphasised, rather than interpretation as such” (ibid), while the
empirical discipline involves “verification by checking statements in legal doctrines
against the judicial practice, and action of the courts” (Hoecke, 2013, p.5). The
explanatory doctrine “explains why the rule is a valid legal rule in a given society. This
explanation may be historical, sociological, psychological, economical” (Hoecke,
2103, p.8). According to Weber et al. (1952), however, the bureaucratic or political
50
|
Curtain
|
decisions should be based on rational and neutral grounds which is one manifestation
of the explanatory doctrine. The axiomatic doctrine considers “law as an algebra of
legal concepts” (Hoecke, 2013. p.9). In a theoretical context, the term axiomatic could
be explained as “a theory, i.e. systematically organized knowledge applicable in a
relatively wide variety of circumstances, especially a system of assumptions,
accepted principles, and rules of procedure devised to analyze, predict, or otherwise
explain the nature or behaviour of a specified set of phenomena” (American Heritage
Dictionary, 1992). A more modern version of the axiomatic is the logical doctrine
which supports having a rational (logical) and neutral approaches in administrative
systems. By comparison, the normative doctrine “is not only describing and
systematising norms, but also to a larger extent, [could be considered as] a discipline
which takes normative positions and makes choices among values and interests”
(p.10). In summary, Hoecke’s work (2013) helps explain the role of the legal
framework as a guide to understanding acceptable behaviour and expectations of the
“Bureaucracy’ managing the mining industry.
3.5 Rule of Law
The rule of Law is a “principle that all people and institutions are subject to and
accountable to law that is fairly applied and enforced; the principle of government by
law” (dictionary.com). Most of the content of the rule of law may be summarised in
two ways (a) that the law should rule the people with authority including the
government officials and obey it and (b) the bureaucracy will be able to be guided by
it (ibid). Legislation that operates within regulatory systems is not stable, as the
mining laws need to change in response to changing needs of society (Hunt, 2009,
p.9). No legal expert can predict that any law would change in response to the needs
and demands of society. For example, until a few decades ago, no one could predict
that sustainability would be considered international law (Singh, 1988, p.5). A
fundamental principle of the ‘rule of law’ is the commitment to transparency and
accountability inherent in good governance:
“The commitment to transparency and accountability inherent in good
governance promotes the rule of law over corruption, allowing the many
benefits of other sustainable development initiatives and economic inputs to
reach those in society who most need to benefit from them” (United State
Council for International Business, 2015, para one).
51
|
Curtain
|
One of the issues, I explore in this study is the WA Government’s commitment to
transparency and accountability principles concerning the environmental regulations
of the mining industry. This is of paramount importance, as there is evidence about
various narratives and discourses that emerge outside regulatory framework and
projected by agencies responsible for implementing the MinReF. Discourse analysis
provides useful insights and helps understand various narratives and discourses
emerge outside the mining regulatory framework in Western Australia.
3.6 Discourse analysis
In order to understand various discourses and narratives that emerge outside the
regulatory framework on environmental regulations, it is essential to analyse the
language used in key documents published by regulatory agencies. This section
provides key references from the literature on discourse analysis (DA) which is a
generic term that assists in the “study of conversation or language in use” and,
consists of an “array of analytic approaches” (Stubbe et al., 2003, p.351). Fairclough
(1995) considers DA “as a constructive part of its local and global, social and cultural
contexts” (p.29). As a methodology, DA is now considered a useful research method
for investigating socially constructive phenomena as it is grounded in an explicitly
constructive epistemology (Stubbe et al., 2003; Fairclough, 1995). In all approaches
of DA, as a methodology, it uses language as a constructive phenomenon instead of
examining empirically representative occurrences. Discourse analysis is also
considered as a methodology for studying social constructions which have attracted
both academics and researchers (Fairclough, 1995; Alvesson & Karreman, 2000).
Holmes (2007) discusses the importance of monitoring organisational boundaries to
understand various discourses used within organisations that act as gatekeepers (p.
1993). The literature on DA views discourses as constitutive of the social world—not
a route to it and assumes the world cannot be known separately from various
discourses either representing individuals or corporate entities. Such interpretations
help to identify rhetorical CSR statements of government agencies responsible for
mining legislation in WA (Govinnage, 2018).
The challenges and opportunities highlighted by Fisher (2010) about the Australian
environmental legal system need to be understood through the lenses of agencies
responsible for implementing the MinReF in WA. As some of these agencies have
evolved over a century (State Records Office, n.d) as in the case of the DMIRS (the
former DMP), these agencies over the years have developed various discourses, and
they can be understood and explained by carrying out discourse analysis. In the
52
|
Curtain
|
remaining part of this section, I examine a sample of discourses of one government
agency responsible for implementing legislation and regulations that come under the
MinReF. Using a sample of a selected content analysis of annual reports from 2014
to 2017, I analysed various discourses presented by the DMP/DMIRS to identify the
nature of discourses which are not related to the agency-owned legislation and
regulations on mining and/or environment. My review of DMP/DMIRS discourses is
based on a content analysis of various narratives and discourses extracted from a
sample (n=4) of annual reports published by the DMP since 2014 (Govinnage, 2018).
Similar to marketing tags of products that promote favourite frizzy drinks,
DMP/DMIRS, have been projecting various discourses in the agency annual reports.
One of the discourses identified from an annual report states:
“Contributing to making Western Australia the destination of choice for
responsible resource exploration and development” (DMIRS, Annual Report
2016- 2017, p.1)
In the same report, under the Director General’s (DGs) message, DMP projects
another discourse:
“The department’s strong regulatory framework, along with its innovative and
adaptive management approach, contributed to the State is recognised as one
of the world’s most attractive mining investment juridstictions” (sic) (ibid, p.7).
The DG’s message about Western Australia as one of the “world’s most attractive
mining jurisdictions” stems from the Frazer Institute’s Global index of best mining
investments (Frazer Institute. org, n.d.). However, the term, “innovative and adaptive
management approach” has neither been defined in the Annual Report (2016 - 2017)
nor appeared in legislation. A unique feature of these narratives and discourses is
that they change from one year to another as they are not consistent. For example,
the agency (then known as DMP) has projected different narratives in the 2014 –
2015 Annual Report stating that the agency supports a “Responsible Resource
Future” (DMP, 2016, p.1). The tag on the cover page of the 2015 - 2016 Annual
Report has been expanded to represent another discourse:
53
|
Curtain
|
“The Department of Mines and Petroleum is responsible for ensuring the State’s
resources sector is developed and managed responsibly for the benefit of all
Western Australians” (ibid, p. iv).
The statements that the DMP is “responsible for ensuring the State’s resources sector
is developed and managed responsibly for the benefit of all Western Australians”
(ibid) had not been defined either in the legislation or agency annual reports.
Legislatively, this particular discourse could be disputed for three reasons. First, the
term has not been defined (e.g. who are the “Western Australians”: electoral voters,
all people living in WA?, the Aborigines who have lost their lands to colonisers?
Secondly, the discourse suggests that it is a phenomenon happening at present. If it
is happening at present, then the agency needs to explain how the resources sector
is being developed and managed “responsibly for the benefit of all Western
Australians”. However, it raises further questions such as what is the meaning of
“responsible” etc. Does it mean the Royalties collected and redistributed through
other portfolios such as education and health? Does the agency support or facilitate
establishing outreach programs to support needy people in WA? If so, have such
programs been legitimised through legislation? What are these programs, and have
they been developed responsibly for the benefit of all Western Australians? The
fundamental question is how the DMIRS could justify the claim within a legal
framework, or is it a public relations campaign of the Department to indicate that the
agency has embraced corporate values following the concepts of CSR in alignment
with global sustainability trends? Thirdly, such discourses do not appear in legislation
under which the agency regulates the mining operations in WA (Govinnage, 2018).
The DMIRS-focused content analysis helped to identify a similar discourse appearing
as a web-based document titled “Our Plan for Success 2019”. The document has no
linkages to any legislation under which the agency operates (ibid). Thus, to gain
insights and provide explanations of agency-specific discourses, the literature on
discourse analysis is useful as a research tool to identify and explain how agencies
represent dynamic discourses as explicitly constructive epistemology.
These discourses have no specific references to key legislation and regulations that
come under the MinReF such as the Mining Act or the MRF Act. Further, DMP
discourses reveal how “constructed phenomena” operate outside legislation. One of
the insights gained from the discourse analysis projected by the DMP/DMIRS
indicates a need for further research. Moreover, the need for further investigations of
54
|
Curtain
|
the changing discourses of the DMP/DMIRS merits further analysis and has been
included in the future research agenda (Chapter Eleven, Table 11.2).
The theoretical insights of discourse analysis are useful to understand and analyse
various discourses and narratives put forward by agencies that are responsible for
implementing the MinReF. Each agency that operates under a set of legislative
jurisdictions and is operating in Westminster type parliamentary systems need to
operate within a regulatory framework following the rules of law (Australian
Politics.com, n.d.). In countries like Australia, the UK and New Zealand which are
governed by Westminster parliamentary system operated under a series of
procedures supported by legislation and applied equitably for all citizens similar to
legislation ratified in the parliament (Australianpolitics.com, n.d. para one). However,
the agency discourses I analysed are not supported by legislation similar to the
concepts such as CSR or SLOs as discussed in this chapter. For example, the
DMIRS has authority to collect Royalties from the mining company because there are
Regulations such as the ‘Administrative Schedules’ under the Mining Act and ratified
in the Parliament regularly empowering the agency to collect Royalties. The only
exception is the legislative agreements where different Royalty rates are agreed upon
and ratified under a State Agreement. Panegyres and Panckhurst, (2015) who have
examined the legislative framework of the DMP’s Royalty systems have written about
the variations of the Royalties collected under Mining Act and different rates offered
to certain companies operating under State Agreements (ibid). The relevant point is
that any government agency operating under the MinReF cannot just initiate or
implement programs or policies based on discourses as there is an acceptance that
the large resource projects operated under the State Agreements benefit the
economy (Barnett, 1996, 2016). The DMP discourses such as “the State’s resources
sector is developed and managed responsibly” need to be ratified in the Parliament
to achieve set objectives, so they could be and evaluated to ascertain whether stated
outcomes have been met or not and to legitimatise the agency narratives that operate
outside the legislative framework.
55
|
Curtain
|
3.7 Chapter Summary
This chapter provided several theoretical insights into concepts such as corporate
social responsibility, licence to operate, theory of bureaucracy, legal doctrines, rule of
law and discourse analysis as they are relevant to identify and analyse multiple issues
related to various discourses put forward by an agency that is responsible for
implementing the MinReF. This chapter commenced with a review of literature
covering the two concepts: ‘corporate social responsibility’ and ‘licence to operate’
that have emerged as theoretical perspectives as well as practical philosophies for
corporations including the mining industry to justify their work. Max Weber’s theory
of Bureaucracy was reviewed to understand and explain the multiple administrative
structures that have evolved to implement the legislation and regulations come under
the mining regulatory framework and various positions established under legislation
such as Mining Act 1978, and Environmental Protection Act 1986. The seven
features of legal doctrine by Hoecke (2013) were identified and summarised to
examine various features of the MinReF and provide interpretations of how some
regulatory clauses could be interpreted. The concept of the ‘rule of law’ was reviewed
as it helps to analyse the government commitment to transparency and accountability
aspects of the legislation and regulations of the MinReF as a basis for analysing its
strengths and weaknesses outlined in Chapter Eight. Finally, the literature and
relevance of discourse analysis were reviewed as it allows how language constructs
phenomena. Written words embodied in a sample of the DMIRS’ annual reports were
analysed to explain how the agency use language outside the regulatory framework
to project various discourses overtly.
.
56
|
Curtain
|
CHAPTER FOUR LITERATURE REVIEW: MINING AND ENVIRONMENTAL
LAWS, PUBLIC POLICY & REGULATORY DESIGN PRINCIPLES
4.1 Introduction
This chapter identifies and reviews the literature on several theoretical approaches
covering mining law, environmental law, public policy, politics of resource
development and regulatory theory and examines various facets related to this study
to gain insights into the mining regulatory framework in Western Australia (WA). In
this chapter, I examine public policy issues identifying politics and resource
development to understand and explain how party politics, State minister’s influence
and authority play a significant role when approving mining proposals in WA. This
chapter also reflects on the importance of the application of mining and environmental
laws and introduces the political environment influencing decisions related to the
mining industry including the approval of new mining proposals. The chapter
concludes the need for identifying key elements of regulatory design principles to
analyse some aspects of the MinReF in WA.
.
4.2 Mining Law
Fisher, (2010), outlines three traditional functionalities of the Australian legal system
that emerged at the beginning of the twentieth century. They are (i) the facilitation of
the use and development of the environment as a natural resource; (ii) the protection
of the environment from environmentally damaging activities; and (iii) the
conservation of the natural environment and ongoing management practices (p.10).
The Australian legal system that Fisher (2010) describes helps to contextualised
broader categories of mining laws.
According to Southalan (2012), “the law of mining at a level wider than just one
country brings complexities. Unlike, geology, economics, accounting and many other
disciplines that travel internationally with mining, the law does not have common
terminology or rules” (p.20). Cruse, (1993, p.35) states that in mining law, the
complexity gets intensifies where the same words used “may mean different things
and involve different legal rights” confirming Southalan’s view on mining law.
Southalan (2012) identifies three categories of mining laws that would impact mining
activities globally. These categories are: (a) international laws; (b) comparative law,
and, (c) constitutional laws (p.17). In this section, the focus would be limited to
international laws and constitution categories as this study does not deal with
comparative (mining) laws.
57
|
Curtain
|
The international laws are “treaties’ that are ratified by international agencies such as
the United Nations (UN). For example, the Kyoto Agreement is one of the treaties
that member countries of the UN have agreed to abide, by becoming the signatories
to the treaty. An international law could be an international environmental agreement
(IEA) or an environmental protocol, such as the Kyoto protocol bounded by
international laws by nature. Mitchell (2003) defines an IEA as “an intergovernmental
document intended as legally binding with a primary stated purpose of preventing or
managing human impacts on natural resources” (p.432). Summarising the overall
effects on international agreements Mitchell (2003) notes:
“Despite extensive public, legal, and social science interest in international
environmental agreements, the empirical basis for claims regarding the number
of such agreements and their characteristics remains weak” (p.431).
The literature concerning the mining law in WA did not reveal that any international
treaties play a role or come under the MinReF. The constitutional law as described
by Southalan (2012) “is the law within a country, about its government duties and
responsibilities bearing in mind that ‘government usually involved three‘: parliament,
the executive and the judiciary branches” (p.19). Constitutional law is intertwined with
the sovereign power of a nation enabling a (national) government to give lawmaking
powers:
“The Constitution confers the power to make laws on the Commonwealth
Parliament. However, the power of the Commonwealth Parliament to make
laws is limited to particular subjects. Most of these subjects are listed in sections
51 and 52. They include defence; external affairs; interstate and international
trade; taxation; foreign, trading and financial corporations; marriage and
divorce; immigration; bankruptcy; and interstate industrial conciliation and
arbitration” (Commonwealth of Australia, 2010. Parliamentary Education Office
and Australian Government Solicitor. P.vi).
The above list of law-making does not include the authority of enacting environmental
laws, and it raises the question of the sovereign power of Australia. The British
Monarchy is the head of the Australian Government. Hence, the Sovereign power of
Australia has been questioned by legal professionals (Manetta, 1999). Michael
Manetta (1999) in his submission on the need to change the Australian constitution
and to form a Republic proposed a way to change the current position:
58
|
Curtain
|
“The sovereignty of the Crown, on the other hand, over the whole
structure of the federation, Federal and State, remains distinct and separate
from the provisions of the Federal Constitution and beyond the scope of
s.128.
Accordingly, whilst s.128 can be used to amend the Constitution, that is to
say, to amplify, modify or restrict the exercise of the sovereign powers of the
Crown, it cannot be used to remove those powers from the Crown and place
them elsewhere, because the Commonwealth is just as firmly under the
Crown as it is under the Constitution. The Crown is not a creature of the
Constitution and does not owe its continued sovereignty to the Constitution”.
(Manetta, 1999, p. 2)
Therefore, when considering mining laws of Western Australia, and authority under
the Constitutional Law, it is important to recognise the power lineage of the British
Monarch about the ownership of minerals in Australia. The situation did not change
when Australia became a Federation in 1901. Though Australia is no longer a colony
of the British Monarch, the ownership of mineral in Australian States and territories
remain under the Crown (Banks, 2003). According to Banks (2003, p.1) the “history
of the mining industry is intimately connected with government regulation”. He further
highlights that “it has also made a strong advocate for reform — not only of the maze
of regulation that applies specifically to mining (such as land access, development
and environmental regulations), but recognising broader policy environment,
including protection reform (p.1-2).
The Australian Constitution “confers the power to make laws on the Commonwealth
Parliament. However, the power of the Commonwealth Parliament to make laws is
limited to particular subjects” (Commonwealth of Australia: Parliamentary Education
Office and Australian Government Solicitor. 2010, p.vi ). The role of Constitution is
relevant to mining law in Australia because the Constitution has no powers;
“to a number of important subjects including education, the environment,
criminal law, and roads – but this does not mean that those subjects are wholly
outside the Parliament’s powers. For example, even though the Commonwealth
Parliament has no specific power in relation to the environment” (ibid, p.vi).
59
|
Curtain
|
The reason why each State and Territories have developed separate legislation
on mining is due to lack of provision in the Australian Constitution. However,
the “Constitution expressly guarantees the continuing existence of the States
and preserves each of their constitutions” (ibid). Despite the delegations of
granting power to make laws at the State level, the section 106 and 107 states
that the State must do so “subject to the Australian Constitution (sections 106
and 107):
Under the constitutions of each of the States, a State Parliament can make laws
on any subject of relevance to that particular State” (ibid).
This particular clause in the Australian Constitution explains the authority under which
the WA Government has developed mining laws since the formation of the Federation
in 1901. The flaws and powers of the Australian Constitution provide useful insights
into the genesis and formation of mining laws in WA. However, both international
laws and constitutional laws are not sufficient to explain the mining laws in WA where
international treaties have not played any role in influencing the mining regulatory
framework. Next section provides an overview of the environmental law.
4.3 Environmental Law
In this thesis, the legislation and regulations that come under the MinReF are
analysed using disciplines such as regulation theory and legal doctrines in the context
of the environmental legal system (ELS) in Australia. Fisher (1993) notes that the
ELS is “much more complex than international environmental law”. According to him,
this complexity arises due to several reasons. First; is due to the “division of
responsibility between the Commonwealth and States (Fisher, 1993, p.38). Second,
the “consequence of a wide range of sources of legal rights and obligations” (ibid).
Fisher further notes the “wide range of instruments and mechanisms provided by the
legal system and obligations” exist to ensure the efficacy of these rights and
obligations (ibid). In this regard, Fisher (1993) makes a key observation of the
fundamental of the environmental management in Australia:
“Environmental management by virtue of the position of the Crown as the
holder of the radical title to land and land-related resources is the model that
has evolved as the basis for the present environmental legal system.” (Ibid,
p.39).”
60
|
Curtain
|
Fisher’s opinion supports the evolutionary nature of the MinReF, as since 1854,
Western Australia has developed legislation to regulate “land and land-related
resources” supporting the mining industry by enacting early legislation on lands such
as the Minerals Land Act 1892 and the Land Act 1933 (Hunt, 2009). Fisher (2010)
notes the opportunities and challenges of the environmental law within a matrix of
power, liabilities, rights and duties that I have considered in compiling the two case
studies presented in Chapter Seven of this thesis. In this regard, Fisher provides
insights into the challenges of enforcing sustainability in the context of Australian
environmental legal system:
“If the environmental law is founded upon a utilitarian approach and if
environmental management is driven by sustainability, then this poses
considerable challenges for the traditional matrix of power, liabilities, rights and
duties. If the management of the environment is to be sustainable, then legal terms
do not comprise a power, a liability, a right or duty. This not to suggest that
sustainability may not be incorporated within the legal system in the form of one or
other of these mechanisms. It can indeed sustainability in one or the other of a
series of different forms, an element of the Australian environmental legal system.
The law has been uncomfortable with the idea of sustainability as an outcome- or
any other outcome for that matter—that is enforceable. But this may be changing”
(Fisher, 2010, p.8).
The environmental laws need to be considered as a public policy discourse as the
legislation and regulations come under the MinReF are implemented through several
public service agencies. (Chapter Five, section 5.6).
4.4 Public Policy
This section outlines key issues relating to public policy in the context of this research
drawing from the literature on public policy from several sources. Policy-making is a
complex process, and it involves “both a technical and political process of articulating
and matching actors’ goals and means” (Howlett & Cashore, 2014, p.17). The
Australian Government defines policies as a government instrument that would;
“deliver services and programmes successfully, risks and implementation
issues must be considered during policy design. Effective implementation
requires a structured approach to thinking about how the policy will be
61
|
Curtain
|
delivered” (Australian Government: Australian Government- Department of the
Prime Minister and Cabinet. n.d. para one).
In my view, the best and the short definition of public policy has been offered by
Thomas Dye, who defines public policy as ‘anything a government chooses to do or
not to do’ (Dye, 1972, p.2).
Exploration and advancement of theories relating to the web of complex public policy
issues are critical to understand how various legislation and regulations that come
under the MinReF are implemented through a multi-agency system. In the context of
WA, the MinReF implementing agencies have their jurisdictions and focus on agency-
specific activities (DMP, 2016; WAAG, 2011). Thus, it is imperative to analyse
complex issues examining the scope, and the strengths and the weaknesses of the
of the MinReF (see Chapter Eight), how they address policy discourses, and whether
specific “cultures” exist among the responsible agencies to understand issues about
coordination or lack thereof.
First, I examine the works of John, (2003 & 2012); Rein (2009), Rein and Schön
(1996) to understand complex issues on public policy theories to gain insights into
resource development projects. Secondly, I examine the views of Phillimore (2014)
and Layman (1982) to understand the role of politics in resources development in
Western Australia.
About complex public policy issues, John (2003) states that “theory is a body or
system of propositions about the causal relations that link together elements of the
social, economic, and political worlds. These relations are regularized, having
applicability over a range of cases, both in space and time” (p.482). John further
states that “decision making varies vastly from sector to sector, a claim that is the
core contribution of public policy studies … which complicates the task at hand. The
problem is compounded by the absence of a clear chain of causation from public
opinion to parties and bureaucracies.” (p.483). These policy-centric issues are useful
to understand the links that bind “social, economic and political worlds” that operate
behind the MinReF. Johns argues that no single framework could offer a meaningful
and comprehensive explanation of public policy. He suggests the need for and
exploring a synthesis of frameworks based on different aspects of the approaches
adopted, and the need for utilising concepts and approaches of advocacy coalitions,
62
|
Curtain
|
interposed steadiness and evolution as more effective ways to understand public
policy (ibid).
Another area of public policy, I have utilised in this research project is the work
Anthony Ogus (2004; 2004a) who explains theoretical discourses that help to
understand a feature, dichotomy of the mining legislation in WA. The dichotomy of
the WA mining legislation is present due to having two systems of mining laws one
depended on the Mining Act 1978 and the other using State Agreements (SAs). The
latter is used to promote and support large resource projects including uranium mining
(Barnett, 1996; Cameco Australia.com, 2015). Ogus’s (2004, pp 31-41) provides
useful insights into the regulation and public interest theory. He examines the
fundamental changes in the relationship between the state and the industrial sector.
Utilising economic theories, Ogus critically observes how the public law has been
employed to regulate the industrial sector similar to the case in WA where the SAs
have been introduced as mining regulatory tool mainly to support the large resource
projects (Barnett, 1996 & 2014). Further, Ogus provides a systematic and
comparative overview of the underlying arrangements of theories that drive and
promote social and economic regulations. He provides a case for the parallel
existence of two sets of frameworks. Ogus’s work is useful to examine the
ambivalence and dichotomy of WA mining regulations (See Chapter Eight; section
8.7).
4.5 Politics and Resource Development
This section provides an overview of how the State and Federal political drivers
including government policies have influenced the directions of resource
development projects in WA. This overview outlines public policy discourses on
uranium mining by respective Australian governments since 1952. This overview also
identifies specific actions of the State ministers who are responsible for mining and
environment and how their decisions have impacted the implementation of
environmental regulations and new mining approval in WA.
The definition of ‘politics’ has been the subject of many philosophers, political
scientists, sociologist and academics who have provided a variety of definitions of the
term ‘politics’ (Locke, 1690; Marx, 1867 & 1911; Wolff 1970; Leftwich, 1983). My
primary focus here is to examine definitions by those who have provided
interpretations on how political decisions on power and authority have been defined
as this issue is relevant to the way mining legislation provides access to minerals and
63
|
Curtain
|
grant approval for mining under the regulatory framework. In this section, I also
examine how such interpretations and definitions could assist in understanding the
issues relating to the ownership of minerals within a jurisdiction and how approval has
been granted focusing on a uranium mine approval chosen as a case study in this
research project (Chapter Seven). Further, I also examine how various political
parties have either supported or opposed to uranium mining by defining and
redefining environmental regulations and changing policies in Australia and WA. To
provide a theoretical context on these issues, I first, review the literature on some key
political philosophies and theories to gain insights into concepts such as political
power and authority and how they impact mining legislation and regulations.
John Locke (1690) in his classic: The Two Treatises of Government, argues that
people have rights, such as the right for liberty and life, property ownership as the
foundation of laws of any particular society (Locke, 1690). Karl Marx, a German
philosopher and political theorist in his pathfinding work Das Capita (1867) explains
the nature of power structures of societies. Marx argues that a group could hold
power at a given time in history (Marx, 1867). Marx highlights that the ruling class
would hold all the power and use their authority to exploit the working class.
According to Marxism, the struggle to control the factors of production in a given
society is the dynamic power that governs human development (ibid). Marx argues
that an economic system determines other features of a given society including its
political system. For Karl Marx, the “economic structure of society [is] the real
foundation on which depend moral, legal and political superstructures and to which
definite forms of social consciousness” (Marx, 1911, p.11). Marx’s views on the
importance of the ‘economic structures’ and their importance in a given society could
be useful to explain the genesis of the State Agreements (SAs) in WA. Barnett,
(1996), a former Premier of WA explains how and why the SAs are important to
support resource projects as an important aspect of economic development:
“Development of regional centres, population expansion, legislative changes
and economic factors that have occurred in the interval since State Agreements
were first used to facilitate project development have impacted on some of the
considerations originally used for determining whether projects could be
facilitated by the completion of State Agreements” (Barnett, 1986, p.318).
Barnet’s definition explains how specific legislative tools such as State Agreements
(SAs) could be used to facilitate legislation to support projects for economic
64
|
Curtain
|
development and the role of government policies (ibid). According to Wolff (1970),
politics is the vehicle of the power of the state. Carter (2007) provides an account of
the human-nature interaction in the context of political process highlighting that
human societies are an inextricable part of the environment (ibid). As this study
examines the drivers that establish authority on natural resources and environmental
protection, a definition presented by Leftwich (1983) is useful. Leftwich focusses on
issues such as “obtaining, using, producing and distributing” resources and notes:
“Politics consists of all the activities of cooperation and conflict, within and
between societies, whereby the human species goes about obtaining, using,
producing and distributing resources in the course of the production and
reproduction of its social and biological life” (Leftwich, 1983, p.11).
Leftwich’s definition along with the views of Locke (1690) and Marx (1867) helps to
understand the genesis, evolution of mining legislation in WA, and various decisions
that have led to specific mining projects with the introduction of SAs in 1952, and
various resource development projects developed under the SAs up to now. When
gold was discovered in the Kalgoorlie-Norseman region in the 19th century (Spillman,
1993), the colonial administrators who represented the British Monarch introduced
the earliest mining laws in WA to facilitate the development of gold mining and to
collect Royalties (Hunt 2009). Further, after the discovery of gold, a proclamation
was issued declaring that precious mineral is owned by the Crown (ibid). The
ownership of minerals by the Crown also enforce the miners to pay back due
Royalties to the owners (crown) for mining various minerals defined in legislation
(Mining Act 1904. Mining Act 1978). The early mining legislation in WA supports
Marx’s view that an authority driven economic system determines the rules in a given
society. Even today, all minerals are owned by the Crown (Mining Act 1978; Hunt,
2009), and an agent of the Crown (a nominated government agency) stipulates the
amounts Royalties to be paid as per the regulations associated with the Mining Act
1978 (ibid). The agents of the crown can determine from time to time how much
Royalties should be paid by those who receive access rights to extract mineral (Hunt,
2009).
65
|
Curtain
|
4.5.1 The impact of party politics on uranium mining
The Federal Liberal Coalition governments and the Australian Labor Party (ALP) and
their resource extraction policies have had a direct impact on uranium extraction and
new mine approvals across Australia (Needham, 2016). When Bob Hawke (ALP)
was elected as the Prime Minister of Australia in 1983, in the following year, he
announced that Australia should have only ‘three-mine [uranium] policy’. This
announcement was approved as the national policy on uranium mining (ibid). “This
policy determined that uranium mining in Australia should be limited only to three
existing mines; Ranger, Nabarlek and Olympic Dam (ibid). However, subsequently,
both the Coalition (1996 – 2007) and the Labor Governments (2007- 2013) adopted
a flexible approach on uranium mine approval. (ibid). While the decisions of the
Federal Government had a significant impact on uranium mine approval process
across Australia, the Western Australian Liberal governments followed a pro-resource
development approach subject to the Federal policies (ibid). Layman (1982, p. 149)
notes that the “resource development has been an objective of all Western Australian
Governments”, and this observation is important to understand the genesis of the
State Agreements that support major resource projects in WA. Phillimore (2014)
highlights the “important influence in WA party and electoral policy” about the ‘Politics
of Resource Development’ in WA (p.33). He notes how the “Barnett [Liberal]
government lifted the ban on uranium mining and commenced approval processes
for the first [uranium] mines in WA with minimum disruption” (p.35). When the Labor
Government was elected in March 2017, they adopted a position changing the Barnett
government policy and restitched the approval of uranium mines in WA. The “Labor’s
position on uranium mining has been that it will allow projects with final State
approvals, but it would not approve any new proposals” (Mercer, 2017, para five). In
other words, the new ALP Government will not approve any more uranium mines
while in power as they have rescinded the previous Liberal Government policy on
uranium mining in WA confirming the power of political parties and its authority
directing what minerals owned by the crown could be extracted.
4.5.2 State minister’s authority on mining approval
In Western Australia, some ministers who had responsibilities for portfolios such as
the Environment, Mining and Resource Development have adopted a pro-uranium
mining approach (Barnett, 1996; Australian Broadcasting Corporation, 2017, para
one). For example, the former Environment Minister, Albert Jacob approved the
Yeelirrie uranium mine in January 2017 disregarding the advice received from the
66
|
Curtain
|
Environmental Protection Agency that recommended the mine should not be
approved on environmental grounds:
“The West Australian Government has granted environmental approval for a
uranium mine, which was knocked back by the state’s environmental watchdog
last year” (Australian Broadcasting Corporation, 2017, para one).
After the Minister’s decision on his own accord, he made a public announcement
about the rationale for overruling the advice from the Environmental Protection
Authority. The reason cited was that the Government “had considered broader
economic and social matters, as well as environmental factors” when approving the
Yeelirrie uranium mine (Australian Broadcasting Corporation, 14 January 2017). This
issue is discussed further in Chapter Seven of this thesis.
The former Minister for Mining and State Development, Bill Marmion is also known to
express pro-mining opinions disregarding issues associated with sensitive and
important biodiversity resources in WA (guardian.com, 1 July 2015, para two).
Minister Marmion made a public declaration that he would always support mining
even if the approval would damage the environment including precious biodiversity
resource in Western Australia:
“Environmental recognition of the Great Western Woodlands, the largest
remaining temperate woodlands in the world, will not be supported if it impinges
on mining, the Western Australia mining minister, Bill Marmion, has said” (ibid).
The former Minister’s statement about the “the largest remaining temperate
woodlands in the world” suggests that those with political power and the authority
under the legislation would not always respect or abide by regulations that exist to
support environmental assurance. These ministerial behaviours provide unique
insights into the politics of resource development in WA and reveal that the legislation
and environmental regulations come under MinReF are not the key drivers assuring
environmental compliance. This assertion is in aligned with observations on the
effectiveness of mining regulations in WA that highlight the importance of “political
will” and the compliance with legislation on environmental protection (Chandler,
2014). According to Chandler, (2014) “WA legislation provides a strong and
comprehensive basis for regulating the environmental impacts of mining” (p.174).
Chandler, who is a Perth-based environmental consultant, further states that an
67
|
Curtain
|
“effective system to regulate the resource sector…requires appropriate administrative
tools, a supportive political environment and a balanced understanding of
environmental management” (pp.174 - 175). The State Ministerial power and how
they have used their authority in approving uranium mining proposals in WA confirm
Chandler’s (2014) views, on the need for “supportive political environment” for
effective mining legislation ensuring environmental protection.
In summary, politics, especially party politics and minister’s authority have functioned
as key drivers on enforcing policies that confirm what type of mineral extraction would
be authorised and how on some occasions ministers have disregarded the conditions
of environmental compliance and taken decisions disregarding the scientific evidence
on adverse environmental effects of approving some mining proposals.
In the preceding section, I investigated key public policy theories and reviewed the
politics of resource development and their impact on mining approval in WA. The
legislation and associated policies that I have analysed in this thesis are inextricably
linked with regulation theory.
4.6 Regulation theory
In a legal context, the act or function of regulation is about “a rule or order prescribed
for management or government (Black’s Law Dictionary, n.d., para one). “Under the
Australia’s federal system of government, responsibility for environmental regulation
is carried by the Commonwealth Government and state/territory governments
concurrently” (Australian Parliament House, n.d., p.6).
This thesis draws from the regulatory design principles as proposed by Gunnigham
and Sinclair (1999) to analyse complexities involved in the MinReF and use of best
practice model in Western Australia (Chapter Nine).
68
|
Curtain
|
TABLE 4.1 KEY ELEMENTS OF REGULATORY DESIGN PRINCIPLES
Principles Key augments against the principles
Gunningham & Sinclair (1999)
Principle 1 • Economic instruments tend to be efficient but in
Policy mixes incorporate most cases not dependable
instruments and • Being non-coercive, but also have low reliability
institutional combination. when used in isolation.
Principle 2 This principle has two components: prescription and
Less interventionist coercion)
measures • Prescription refers to the extent to which external
parties determine the level, type and method of
environmental improvements
Coercion refers to the extent to which parties or
instruments place negative pressure
• Coercion is exercised through a price signal,
which firms, by and large, cannot avoid
Principle 3 • Given instruments may be effective in
Escalate up an influencing the behaviour on some, but not on
instrument pyramid to others
the extent necessary to
achieve policy goals • Highly prescriptive instruments lack flexibility
Principle 4 This principle supports the empowerment of the
Empower participant participants (Under the Mining Act (Participants
would be exploratory and tenement licence holders)
Principle 5 This principle encourages the regulators to look for
Maximise opportunities opportunities to seek win-win solutions instead of
for win-win outcomes penalties or prosecution. A situation applicable to
WA may be to give grace periods to contribute to
the MRF for win-win outcomes.
(Source: Extracted from Gunningham & Sinclair, 1999)
69
|
Curtain
|
While any theory whether it is regulation principles or public policy, they need to be
considered and implemented within a dynamic environment that is dominated by
political authorities as discussed in section 4.5.2 of this chapter.
4.7 Chapter Summary
In this chapter, I reviewed the literature on several theoretical approaches covering
mining law, environmental law, public policy, politics of resource development and
regulation theory to examine various facets concerning this study to gain insights into
the mining regulatory framework of Western Australia. In this chapter, I examined
public policy issues identifying politics and resource development to understand and
explain how party politics and the State minister’s authority have functioned as key
drivers on enforcing policies that confirm what type of mineral extraction would be
authorised. Further, this chapter examined how on some occasions ministers have
approved conditions affecting environmental compliance and taken decisions
disregarding scientific evidence about adverse environmental effects of some mining
proposals. The chapter concludes by identifying key elements of regulatory design
principles to be discussed further in Chapter Nine (section 9.3.1)
.
70
|
Curtain
|
CHAPTER FIVE - HISTORY OF MINING LEGISLATION IN WESTERN AUSTRALIA
AND KEY ISSUES
5.1 Introduction
This chapter provides background information covering the history and other critical
issues relating to the mining legislation in Western Australia (WA)—the geographical
focus of the study area. The issues covered in this chapter include the evolution of
mining legislation in WA, the composition and the elements of Mining Regulatory
Framework (MinReF), and two mining regulatory reform agendas that fall within the
timeline (1978 – 2018) of this research project. This background information helps to
give an understanding of the complexity surrounding environmental regulations of
mining operations in a State where the mining industry is a dominant economic
activity (Barnett, 1996 & 2014).
5.2 The history and evolution of mining legislation in Western Australia
The WA mining legislation has a history of over 160 years going back to Colonial
times associated with the discovery of gold in the State in the 19th century (Spillman,
1993; Hunt, 2009). In 1842, when gold deposits were first discovered, there were no
“special laws or regulations for “governing the disposal of mineral lands” (Hunt, 2009,
p.2). The first mining law —the Gold Regulation Ordinance1854 (GRO) gave authority
to the Colonial Governor “to make regulations concerning gold fields and [issuing]
licences for working for gold” (ibid, p.2), and empowered him to collect Royalties.
After the enactment of the GRO, there was a requirement to grant access to land
other than for gold exploration. This need was regulated by introducing the Minerals
Lands Act 1892 (Hunt, 2009, p. 2). Three years later, a comprehensive code for gold
mining was introduced under the Goldfields Act 1895 which confirmed the “miner’s
right” for a specific (short-term) period “to occupy Crown land to mine gold” (Hunt,
2009, p.3) and this continues to be the case at present.
The enactment of the first formal mine legislation in WA titled the Mining Act 1904
(ibid) allowed for specific arrangements about particular lands and operations.
Consequently, the Mining Act 1904 was utilised to approve mining tenements under
State Agreements (SAs) including the three key SAs analysed in the two case studies
of this thesis (Chapter Seven). According to Hunt (2009) both the Mining Act 1904
and the Minerals Land Act 1892 have been repealed; however, the SAs approved
under the Act 1904 continue to remain in place. For its time, the Mining Act 1904 was
71
|
Curtain
|
in Crown lands, marine reserves and private lands. Further, it includes a special
section defining the rights of the miners (Mining Act, pp 22-53). Since its introduction,
the Mining Act has undergone various revisions, including the associated
Administration Schedules (Hunt, 2009. p.9). Hunt notes that these amendments are
“not an indication of massive and continuing errors in the legislation but a reflection
of the willingness of the Department and successive governments to listen to the
mining industry and to make amendments to mining laws to make them more
workable” (ibid). The need for frequent changes to the Mining Act also indicates that
the mining legislation and associated regulations in WA are not static, but inherently
dynamic due to the needs of the changing environment and community sentiments
noted by Hunt (2009). Since the enactment of the Mining Act, various legislation,
regulations, and policies relating to the operations of mining have evolved (see Table
5.2). The WA mining legislative metamorphosis commenced by establishing
protocols for gold exploration as a single piece of legislation (Gold Regulation
Ordinance 1854) followed by various legislation under the jurisdiction of several
individual agencies regulating various aspects of mining operations in the State
(Western Australia’s Auditor General “WAAG”, 2011). A list of legislation come under
the mining regulatory framework is presented in Table 5.2.
Environmental regulatory reforms have played a role in proposing changes to existing
regulations and introducing new legislation (Government Printer 1971; DMP, 2014).
The timeline of this study covers two mining reform agendas in WA. The mining
reform agendas could be defined as enquiries and directed by a Minister (usually
under the mining portfolio) to propose changes to existing legislation. The first mining
reform agenda that falls under the timeline of this study (1978 - 2018) focused on the
WA mining approval process and conducted in 2009. The second reform agenda
program took place from 2012 to 2015. These reform agendas are explained in the
following section. The second mining reform agenda also includes the introduction
of legislation related to abandon mine sites in WA by introducing new legislation. All
these issues are presented in the remaining sections of this chapter.
73
|
Curtain
|
5.3 Environmental regulatory reform agendas in Western Australia
The 2009 review of the mining approvals in WA resulted in a report presented to the
then Minister for Mines and Petroleum with a series of recommendations highlighting
the need to make changes for an improved (mining) approval process. The report
titled Review of Approval Processes in Western Australia (which came to be known
as the Keating Review). The Keating Review highlighted the then situation of the WA
mining regulatory system as follows:
“We can no longer boast of our approval system being the best in Australia. It
has deteriorated to where it is criticised for taking too long, being too costly,
too bureaucratic, “process driven” rather than being focused on outcomes,
and not always representing the objectives of the elected government. This
present situation has developed over the past 25 years. Successive
Governments have enacted more legislation, created additional departments
and agencies, while additional requirements for licensing, regulatory approvals
and compliance, have been approved by Parliament without sufficient review
of their effect upon the existing regulatory and licensing arrangements.”
(Government of Western Australia. 2009, p. i).
The Keating Review Report proposed fifteen (15) recommendations to be
implemented under two categories:
“(a) policy and administrative arrangements that did not require legislative
changes – the recommendations under the first category included: (i) putting
in place a resource development policy for WA; (ii) establishment of a
standalone role for the Environmental Protection Authority (EPA).
(b) recommendations requiring legislative changes, namely: (iii) establishment
of an approvals reform office; (iv) reforming the native title – a process which
recognises Aboriginal ownership of land in Western Australia, and Aboriginal
Heritage processes, and (v) the need for reforming the environmental appeals
processes” (Government of Western Australia; Smith, 2009).
Smith (2009) provided a legal opinion about the recommendations of the Keating
Review:
74
|
Curtain
|
“Implementation of recommendation[s] would require a significant body of work by
government over a period of 18–24 months with substantial legislative reform
required. The single DMA model could also be applied to other major projects in
Western Australia outside of the mining sphere” (Smith, 2009, para ten).
The literature review of this study which included archival records did not find any of
significant changes to the overall mining regulatory framework such as proposing new
mining laws or the follow up on the 15 recommendations proposed by the Keating
Review (2009).
The second inquiry and a suite of reforms commenced in 2012 (Government of
Western Australia: Ministerial Advisory Panel, 2012) led to a legislative reform
initiative implemented by the Environmental Division of the then Department of Mines
and Petroleum (DMP). The reforms aimed to:
“• Implement a risk-based framework to ensure DMP’s regulatory activity is
targeted and proportional to risk to achieve its environmental outcomes.
• Establish legal obligations for environmental management under mining [one]
legislation to provide clear, enforceable obligations which align with
environmental outcomes” (Government of Western Australia: Ministerial
Advisory Panel. (2012). December 2012, p.3).
The Government reform program was developed in a broader context and included
the development and the enactment of the Mining Rehabilitation Fund Act 2012. The
reform program also considered issues on emerging industries such as
unconventional gas and uranium mining in WA (ibid. p. 7). A fundamental assumption
of the reform program was that it would “provide DMP with a clearer scope of
responsibility to enable it to establish an effective, efficient and accountable
environmental regulatory regime” (ibid. p.10).
In 2014, two years after the second reform agenda program commenced a
government document provided further details about its expectations how
“environmental risks” in the mining proposals could be identified. The document
stated the proposals would require the proponent (tenement holder) to present
“environmental risks” identification process in a flexible manner:
75
|
Curtain
|
“The proposed …reforms will require the tenement holder to identify the
environmental risks arising from the proposal and demonstrate how they will
manage to avoid, reduce or mitigate environmental harm. The proponent must
detail their risk assessment within this section. DMP intends to allow industry
flexibility in how their risk assessments are conducted. This is to enable
proponents to utilise an existing internal standard, develop their own
standards, or follow international standards” (Government of Western
Australia: Department of Mines and Petroleum, September 2014. p.8).
Further, the Government report stated that:
“[I]n its current form the Mining Act 1978 is functional. However, the
environmental regulatory framework established by the Act has resulted in a
prescriptive approval process. This requires an amendment to enable the
development of an outcome-based and risk-based regulatory system” (ibid,
p.6).
The above assertion highlights the philosophy of the agency (DMP) stating the
rationale for amending the functional Mining Act 1978. In other words, the Western
Australian Government intended to adopt a minimalist governance approach which
does not align well with its public responsibilities. In this regard, the public policy
literature on Governance suggests that regulatory processes such as the WA Mining
Reform Agenda of 2012 – 2015 are not in alignment both with the principle of
regulations (Gunningham & Sinclair 1999) 8 and also with the principles of
Governance. (Fukuyama, 2013). The proposed mining reform agenda by DMP
lacked justifications based on transparency and the regulatory principles outlined in
Chapter Four. It failed to show why the agency wanted the tenement holders to
identify environmental risks on their standards. (Government of Western Australia
Department of Mines and Petroleum, September 2014). Further, the Government
proposal did not indicate how the environmental risks and outcome-based
approaches could increase transparency and the certainty in the mining industry to
address the existing “prescriptive approval process” (ibid).
8 The ‘principles of regulatory designs’ as discussed by Gunningham & Sinclair (1999) and
the comparison of the DMP’s ‘best practice’ model is discussed in detail in Chapter Nine
(section 9.3.1 of this thesis).
76
|
Curtain
|
These environmental reform initiatives were later supported by a ministerial
committee recommending a series of new amendments which were yet to be ratified
(Government of Western Australia – Department of Mines and Petroleum, 2014). The
culmination of the reform process of 2012 – 2015 was the introduction of new
legislation titled Mining Amendment Bill 2015 to amend the Mining Act 1978.
According to DMP/ DMIRS the need for the Mining Amendment Bill 2015 (Bill) was
as follows:
“The Mining Legislation Amendment Bill 2015 consolidates all the
environmental management provisions of the Mining Act 1978 into one new
Part. It modernises and simplifies environmental regulation of the mining
industry by reducing the administrative burden on industry – allowing for better
service delivery and enhanced effectiveness of government. The amendments
aim to achieve better outcomes for industry, government and the environment”
(Department of Mines, Industry, Resources and Safety, para one & two).
When the Bill was tabled in the WA Parliament, its intention was criticised by the
opposition politicians (Parliament Western Australia. Hansard. Debate on the Mining
Amendment Bill 2015, 22 September 2015). It was also criticised by many
stakeholders, and in particular small prospectors who demanded a Royal
Commission to inquire into the difficulties, the new changes would introduce (Shine,
18 April 2016, para one).
The position of the latest 2017 State Government on the mining reform process as
articulated by the Minister for Mining is as follows:
“Changes to the State’s Mining Act will likely not be put to Parliament before
2018 at the earliest… ,
Fulfilling a pre-election commitment to visit prospecting groups in the region,
including Goldfields. First, [the Minister] said there was no chance the Bill would
be introduced in its present form, which died on the Legislative Council floor last
year and prompted a parliamentary inquiry” (Chiat, 2017, para one).
The proposed Mining Amendment Bill 2015 was not enacted. One of the legislative
outcomes of the mining reform process was the enactment of the Mining
Rehabilitation Fund Act 2012 (MRF Act) which became mandatory from 1 July 2014
77
|
Curtain
|
(Department of Mines and Petroleum, 2014). However, the MRF Act only applies to
mines operations under the Mining Act 1978. It has no jurisdiction over State
Agreements Acts, (Morrison-Saunders, Gorey, Doepel, Mtegha, & McHenry, 2014)
which cover larger resource projects and represent around 80% of the volume of
Royalties and mining activities in WA (Barnett, 2016).9
This study found that the Government reform program of 2012 – 2015 had been
developed based on two principles. First, it introduced the MRF Act establishing
mining rehabilitation legislation, but the new legislation did not have authority across
the entire spectrum of mining operations covering large-scale resource projects
operated under State Agreements (see Table 5.3). Second, the government
proposed a regulatory strategy “to align with the principles of ‘best practice’. The
DMIR’s ‘best practice’ model is discussed in Chapter Nine (section 9.3.1) of this
thesis.
2012 - 2015 mining reform agenda had broad objectives. Perhaps it would have been
influenced by emerging concepts such as ‘corporate social responsibility’ and ‘license
to operate’ (Bice, 2014; Bice & Moffat. 2014; Frazer Institute, n.d.; Azapagic, 2004)
with an aim of introducing new legislation to demonstrate the need to promote
responsible mining in WA. 2012 – 2016 mining reform agenda also indicates the
complexities of proposing new legislation on environmental compliance with the
objective of improving the overall mining regulatory framework in WA. The following
section provides an overview of the MinReF..
5.4 The Mining Regulatory Framework of Western Australia
In this research, the MinReF is defined as State and Federal laws consisting of
numerous Acts, regulations, policies, and administrative tools that exist to manage
mining operations in WA, through a multi-agency system. This term is a construct to
conceptualise the content, to explore interconnectedness and implementation
processes of various legislation, regulations, and policies that need to be considered
under the MinReF. These issues are discussed by addressing the first research
objective of this PhD study in Chapter Eight while examining the strengths the and
weaknesses of the MinReF. This chapter covers only the background information on
9 This figure of 80 percent has been cited as 70 percent by the Auditor General’s Report
(WAAG, 2011) and the Keating Report (2009).
78
|
Curtain
|
the formation and evolution of the WA mining legislation to map the context of this
study, hence, this section provides only an overview of the MinReF.
An investigation into the current framework of mining legislation and compliance was
first carried out through an audit conducted by the Western Australia’s Auditor
General (WAAG) in 2011 (see also section 5.10 of this chapter). The scope of the
audit, however, did not cover relevant Federal legislation and notably, the following
three key regulations: The Environmental Protection and Biodiversity Act 1999 (EPBC
Act); the Australian Radiation Protection and Nuclear Safety Act 1998, and Radiation
Safety (Transport of Radioactive Substances) Regulations 2002. These three
Federal Acts also need to be considered under the WA MinReF as they are essential
legislation in the approval, operation and transportation of uranium. One of the
principal Federal Acts (EPBC Act) is investigated to discuss its features, and
jurisdictional power and how it functions within other legislation and regulations come
under the MinReF in Chapter Eight (Section 8.5.7).
Figure 5.1 provides a schematic diagram of the mining regulatory framework
(MinReF) in Western Australia representing its elements, linkages, and critical
legislation.
79
|
Curtain
|
Further, the Native Title Act 1993 (NTA 1993) also supports a national framework for
the recognition and protection of land rights of Aboriginal peoples and functions within
the national land management system. The NTA 1993 has heritage and
environmental implications based on the Aboriginal interpretation of land. Although
very important, in this thesis, when defining the MinReF, I have excluded the NTA
1993 as its primary objectives do not deal with environmental assurance or protection
of mining operations which is the focus of this study.
The legislation, regulations and policies which come under the WA MinReF covering
State and Federal legislation are analysed in respect to their alignment with assuring
environmental protection during the life cycle of mine operations. The mining
regulatory framework has evolved over a period of over 160 years. Some of the
legislation within the MinReF such as the Mining Act 1978 has its beginning to the
Mining Act 1904. The first Land Act was enacted in 1933, and the access to lands
under the early State Agreements have been granted under the same legislation. The
Land Act 1933 was replaced by the Land Administration Act 1997. Some of the old
Acts such as the Abstraction of Groundwater: Water and Irrigation Act 1914 (WAI Act)
are relevant legislation to the scope of this study. The legislation within the MinReF
still evolves adding new legislation under individual agencies. The most recent
addition to the MinReF is the Biodiversity, Conservation Act 2016 (WA). It is also
important to recognise that the legislation come under the MinReF have been
established over time, and implemented through stand-alone agencies. The WAAG
(2011) notes:
“The regulatory framework around the mining industry has been established
over time. It is a large and complex industry, and there are numerous agencies
and pieces of legislation involved. Some of the legislation is specific to mining,
while other Acts cover mining activities as part of a broader scope. There are
also individual Acts of Parliament that enable and manage specific mining
projects (State Agreement Acts)” (WAAG, 2011, p. 14).
Further, the WAAG (2011) identifies the agencies that come under the WA MinReF
as follows:
“A number of agencies are responsible under numerous pieces of legislation,
regulation and policy for monitoring compliance with the conditions placed on
mines. The Department of Mines and Petroleum (DMP), the Department of
81
|
Curtain
|
Environment and Conservation (DEC), the Department of State Development
(DSD), the Department of Indigenous Affairs (DIA), and the Office of the
Environmental Protection Authority (OEPA) all have key roles in regulating
mining. The Department of Water (DoW), the Department of Planning, and local
government authorities are also often involved” (WAAG, 2011, p. 6).
Table 5.1 provides a list of the agencies and legislation included in the regulatory
framework of the mining operations according to the WAAG (2011). However, not all
the legislation and associated regulations listed in Table 5.1 and Table 5.2 are
relevant to the analysis as this research as focusses only on the environmental
protection components of the legislation that comes under the MinReF and the mining
laws analysed in the two case studies in Chapter Seven.
TABLE 5.1 MINING REGULATORY FRAMEWORK ACCORDING TO THE
WA AUDITOR GENERAL
Responsible Agency10 Legislation
Department of Water Rights in Water and Irrigation Act
1914
Department of Mines and Energy Mining Act 1978
Department of Land Conservation and Land Management
Act 1984
Environmental Protection Agency Environmental Protection Act 1986
Department of Mines and Energy Mines Safety and Inspection Act 1994
Department of Aboriginal Affairs Aboriginal Heritage Act 1972
Department of State Various Individual State Agreements
Source: (WA Auditor General, 2011)
Table 5.2 includes all mining legislation, regulations and policies that need be
included in the MinReF, but all of them do not have environmental components. It is
essential to consider the Federal legislation including the EPBC Act due to its
relevance to the approval of projects of major environmental significance across
Australia. Such projects come under the jurisdictions of the EPBC Act. Other Federal
82
|
Curtain
|
legislation relevant to uranium mining and transportation, namely, the Australian
Radiation Protection and Nuclear Safety Act 1998 (ARPNS Act 1998) and associated
regulations are represented in Table 5.2. It covers both the Federal and State
legislation, regulations and policies from 1904 to 2017 and applicable to mineral
extraction (including uranium), environmental protection, water regulation, land
administration, mine rehabilitation and biodiversity. Such laws are also relevant to oil
and gas, but they are excluded from the analysis of the MinReF Chapter Eight of this
thesis, as some of the legislation falls outside the scope of the study. I have
highlighted those relevant to this study in bold italics in Table 5.2.
TABLE 5.2 MINING REGULATORY FRAMEWORK OF WESTERN
AUSTRALIA – KEY LEGISLATION, REGULATIONS, AND POLICIES11
YEAR LEGISLATION SCOPE AGENCY &
OWNERSHIP
1904 Mining Act 190412 Exploration, mining DMIRS[DMP]
tenement and other mining
related licences
1914 Abstraction of Under section 5C of the DWER [DoW]
Groundwater: Water WIA Act, the licence
and Irrigation Act holders allowed to take
1914 (WIA). water from a water source,
well, and or, underground
source.
1950 Wildlife Conservation This Act has now been See
Act replaced by the new Biodiversity
Biodiversity Conservation Conservation
Act 2016 (WA) Act 2016
(WA)
11 This is a long Table representing all relevant mining laws of the MinReF enacted since
1904 up-to 2017. The Table runs up to page 88.
12 The Mining Act 1904 has been superseded by the Mining Act 1978 (Hunt, 2009).
However, it is important to recognise that the 1904 Act was the key piece of legislation that
granted mining leases for three State Agreements that I have examined in two case studies
in Chapter Seven.
83
|
Curtain
|
rehabilitation, radiation control and uranium transportation. Since 1952, State
Agreements (SAs)—a unique regulatory tool of the MinReF begun to appear in the
MinReF. The next section provides an overview of the SAs while a critique of three
of the SAs focusing on environmental compliance are examined in the two case
studies in Chapter Seven of this thesis.
5.5 State Agreements
State Agreements (SAs) have been a unique feature of the resource development
approach adopted by Western Australia across a range of commodities (Barnett,
1996; 2014; Layman, 1982). The SAs have a relatively long history compared to
important mining legislation such as the Mining Act, as the first SA was developed
and ratified in the early 1950s (Barnett, 1996). Barnett (1996) 15 defines SAs from a
different perspective emphasising how they provide certainty for operations and
management of larger resource projects:
“State Agreements allow the whole of State government requirements to be
managed under a single Act for each project [and] State Agreements provide
certainty for operation and management of projects, as their provisions can be
changed only by agreement between the State and the project proponents”
(Barnett, 1996; p.315)
According to Barnett (1996. p. 318), the SAs “[e]nsure the efficient and effective
development of the State’s natural resources – particularly mineral resources – by the
private sector for the ongoing benefit of the Western Australian community”. As of
2018, there are 64 SAs in operation in WA of which 26 are mining or mineral
processing projects (Department of Jobs, Tourism, Science and Innovation, 2018,).
The SAs “cover the largest mine sites in Western Australia and account for about 70
per cent 16 of mining royalties paid to the State” (ibid). The WA Auditor General define
SAs as;
15 Colin Barnett was the Premier of WA (2008-2017) and was also responsible for major
resource development projects operating under the State Agreements.
16 According to the Keating Review (2009) and Auditor General (WAAG, 2011), the ratio of
the mining Royalties earned from the mines managed under the Mining Act 1978, and large
resource projects managed through the SAs have been estimated to be 30 to 70
respectively. Colin Barnett (2014) has estimated the Royalty ratios as 80 to 20 percent
respectively. I have followed the original figures in each citation throughout the thesis in
accordance with each source.
91
|
Curtain
|
“contracts between the Government of Western Australia and proponents of
major resources projects which are ratified by an Act of the State Parliament.
There are 45 operating State Agreements, 26 of which are mining or mineral
processing projects. These are governed by the Government Agreements Act
1979. These cover the largest mine sites in Western Australia and account for
about 70 per cent of mining royalties paid to the State.” (WAAG, 2011, p.14).
The Department of Jobs, Tourism, Science and Innovation, (DMIRS) responsible for
managing the SAs provides the following definition:
“A State Agreement is a legal contract between the Western Australian
Government and a proponent of a major project within the boundaries of
Western Australia”. (Government of Western Australia: Department of Jobs,
Tourism, Science and Innovation. n.d.; para three).
According to Hillman, (2006) the SAs are;
“contracts between the State and a company seeking to develop a project, have
traditionally been the vehicle used to conduct major resource projects in
Western Australia. They are comprehensive documents, designed to establish
‘an integrated regime for approval, management and monitoring of all stages of
the project’ under ministerial supervision. Each State Agreement is negotiated
on an ad hoc basis and is then ratified under an Act of Parliament. The purpose
of ratification is to enable the project to proceed outside most State laws, under
the terms of the agreement.
In 2002 approximately 70 per cent of the total value of production in the Western
Australian resources sector occurred under State Agreement projects…”
(Hillman, p. 293).
Table 5.3 presents a list of all SAs in operation in WA as of August 2018. As per the
above definitions, several issues about the nature of State Agreements and their
functions emerge. First, SAs is applicable only to a single resource (mining) project
(WAAG, 2011, p.14), and operates externally to current mining legislation such as the
Mining Act 1978 (Hillman, 2006). Second, the SAs assure the Government’s
commitment to large resource projects (WAAG, 2011).
92
|
Curtain
|
As of August 2018, there were 64 SA’s (Table 5.3).
TABLE 5.3 LIST OF WESTERN AUSTRALIAN STATE AGREEMENTS
NO CATEGORY NAME OF THE AGREEMENT
1 Alumina Alumina Refinery Agreement Act 1961
2 Alumina Refinery (Pinjarra) Agreement Act 1969
3 Alumina Refinery (Worsley) Agreement Act 1973
4 Alumina Refinery (Wagerup) Agreement and Acts
Amendment 1978
5 Alumina Refinery (Worsley) Agreement Act 1973
6 Coal Collie Coal (Griffin) Agreement Act 1979
7 Collie Coal (Western Collieries) Agreement Act
1979
8 Copper Western Mining Corporation Limited (Throssell
Range) Agreement Act 1985
9 Diamonds Diamond (Argyle Diamond Mines Joint Venture)
Agreement Act 1981
10 Energy Goldfields Gas Pipeline Agreement Act 199
11 Ord River Hydro Energy Project Agreement Act 1994
12 Forest products Dardanup Pine Log Sawmill Agreement Act 1992
13 Albany Hardwood Plantation Agreement Act 1993
14 Bunbury Treefarm Project Agreement Act 1995
15 Collie Hardwood Plantation Agreement Act 1995
16 Dardanup Pine Log Sawmill Agreement Act 1992
17 Wood Processing (WESFI) Agreement Act 2000
18 Wood Processing (Wesbeam) Agreement Act 2002
19 Gas North West Gas Development (Woodside) Agreement
Act 1979
20 Barrow Island Act 2003 (which incorporates the
Gorgon Gas Processing and Infrastructure Project
Agreement)
21 Natural Gas (Canning Basin Joint Venture) Agreement
Act 2013
22 Iron ore and Iron Ore (Hamersley Range) Agreement Act 1963
steel
93
|
Curtain
|
23 Iron Ore (Hamersley Range) Agreement Act 1963
24 Iron Ore (Mount Goldsworthy) Agreement Act 1964
25 Iron Ore (Mount Newman) Agreement Act 1964
26 Iron Ore (Robe River) Agreement Act 1964
27 Iron Ore (Hamersley Range) Agreement Act
Amendment Act 1968
28 Iron Ore (Channar Joint Venture) Agreement Act
1987
29 Iron Ore (Goldsworthy-Nimingarra) Agreement Act
1972
30 Iron Ore (McCamey’s Monster) Agreement
Authorization Act 1972
31 Iron Ore (Rhodes Ridge) Agreement Authorisation Act
1972
32 Iron Ore (Wittenoom) Agreement Act 1972
33 Iron Ore (Mount Bruce) Agreement Act 1972
34 Iron Ore (Murchison) Agreement Authorization Act
1973
35 Iron Ore (Marillana Creek) Agreement Act 1991
36 Iron Ore (Hope Downs) Agreement Act 1992
37 Iron Ore (Yandicoogina) Agreement Act 1996
38 Iron Ore Processing (Mineralogy Pty Ltd) Agreement
Act 2002
39 BHP Billiton (Termination of Agreements) Agreement
Act 2006.
40 Iron Ore (FMG Chichester Pty Ltd) Agreement Act
2006
41 Iron Ore Agreements Legislation (Amendment,
Termination and Repeals) Act 2011
42 Mineral Sands Mineral Sands (Eneabba) Agreement Act 1975
43 Mineral Sands (Beenup) Agreement Act 1995
44 Mineral Sands (Cooljarloo) Mining and Processing
Agreement Act 1988
45 Miscellaneous Industrial Lands (Kwinana) Agreement Act 1964
46 Cement Works (Cockburn Cement Limited)
Agreement Act 1971
94
|
Curtain
|
47 Wundowie Charcoal Iron Industry Sale Agreement
Act 1974
48 Pigment Factory (Australind) Agreement Act 1986
49 Silicon (Kemerton) Agreement Act 1987
50 Industrial Lands (CSBP & Farmers Limited)
Agreement Act 1976
51 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement Act 2004
52 Railway (Roy Hill Infrastructure Pty Ltd) Agreement
Act 2010
53 Railway (BBI Rail Aus Pty Ltd) Agreement Act 2017
54 Nickel Poseidon Nickel Agreement Act 1971
55 Nickel (Agnew) Agreement Act 1974
56 Nickel Refinery (BHP Billiton Nickel West Pty Ltd)
(Termination of Agreements) Agreement Act 2008
57 Oil Oil Refinery (Kwinana) Agreement Act 1952
58 Nickel Refinery (BHP Billiton Nickel West Pty Ltd)
(Termination of Agreements) Agreement Act 2008
59 Salt Leslie Solar Salt Industry Agreement Act 1966
60 Evaporites (Lake MacLeod) Agreement Act 1967
61 Dampier Solar Salt Industry Agreement Act 1967
62 Onslow Solar Salt Agreement Act 1992
63 Shark Bay Solar Salt Industry Agreement Act 1983
64 Uranium Uranium (Yeelirrie) Agreement Act 1978
Source: Department of Jobs, Tourism, Science and Innovation, Annual
Report 2017 -2018
Of the 64 State Agreement in operation, this study focusses only on three namely,
the Collie Coal (Griffin) Agreement Act 1979, the Collie Coal (Western Collieries)
Agreement Act 1979 and the Uranium (Yeelirrie) Agreement Act 1978 are discussed
in detail in the two case studies (Chapter Seven) focusing on their legislative functions
focusing on environmental compliance.
95
|
Curtain
|
The SAs have been developed and still operating by various assumptions. Table 5.4
presents a detailed summary of the arguments and assumptions supporting the SAs
as represented in the literature.
TABLE 5.4 ARGUMENTS AND ASSUMPTIONS SUPPORTING STATE
AGREEMENTS
ARGUMENTS/ASSUMPTIONS Source
“They are comprehensive documents, designed to (Crommelin, 1996;
establish ‘an integrated regime for approval, AMPLA Yearbook
management and monitoring of all stages of the 328- 330)
project’ under ministerial supervision.” (Crommelin,
1996)
“State Agreement Acts are powerful contractual WA Auditor General
and regulatory arrangements.” (p.9) (2004)
“Identification of the State with a project by means Hunt, 2009)
of a ratified agreement gives stature to the project
and assists the miner in obtaining finance…” (p.17).
“Agreements have primarily been used as a policy WA Auditor General
tool of Australian governments to encourage and (2011)
facilitate major natural resource projects.” (p.22)
“State Agreements allow the whole of State Barnett, 1996, 315.
government requirements to be managed under a
single Act for each project. These include [the]
orderly development of towns, ports and other
infrastructure and enable all land tenure
requirements to be adequately addressed”.
“Ensure the efficient and effective development of Barnett, 1996, p.318.
the State’s natural resources – particularly mineral
resources – by the private sector for the ongoing
benefit of the Western Australian community”
(Sources: As cited above.)
96
|
Curtain
|
Table 5.5 outlines the literature that identifies deficiencies, weaknesses and
problems with the SAs.
TABLE 5.5 SHORTCOMINGS OF STATE AGREEMENTS – SUMMARY
OF KEY LITERATURE
Shortcoming Source
“Governments face significant difficulties Hillman (2006)
evaluating major developments where they
must consider a large number of intangible
factors.” (p.300)
“Ultimately the greatest obstacle to the Hillman (2006)
accurate evaluation of a State Agreement is
the insulation of agreement provisions from
demand and competitive pressures” (p.
300).
The Government agency “evaluating the Hillman (2006)
performance of the agreements it
manages…”is in a position of conflict”
(p.300).
State Agreements lack requirements for Govinnage (2018)
assessing its Return on Investment to the
State (p.8).
“The fundamental flaw with State Hillman (2006)
Agreements, in imposing obligations as part
of ad hoc negotiations, is that there is no
clear standard by which to identify the cost
of the obligations or their success” (p. 300).
“develop the reporting of Agreement status Auditor General WA (2004)
and performance to Parliament” (p.20)
“The Department has not methodically Auditor General WA (2004)
monitored how well companies discharge
Agreement obligations to maximise the use
of local labour, services and materials. In
consequence”.
97
|
Curtain
|
“The Department has not developed WA Auditor General
structured procedures and guidelines to (2004)
assist its staff manage Agreements, once
established”. (p. 8)
“The Department does not evaluate WA Auditor General (2004)
Agreements in a structured and
comprehensive way. It is, therefore, difficult
to objectively assess how well Agreements
are achieving their objectives, where
Agreements have succeeded and failed and
what the main lessons learned are” (p.22).
(Sources: As cited in the Table)
The legislative nature of the SAs provides several challenges to any researcher
embarking on an analysis of the legislation and regulations in the context of
sustainable development. According to Southalan (2016):
A parliamentary-approved agreement is a legislative endorsement of a
contract between the executive government and a company to
develop/operate a mine and associated facilities. These agreements have
been useful in mining regulation in providing a structure by which
governments can regulate large mining projects. However, the
establishment and use of parliamentary agreements should be improved
to better enable this form of regulation to contribute to sustainable
development. Where a miner and government have agreed on proposed
terms to regulate a long-term mining operation, parliamentary consideration of
that proposal presents an opportunity for transparency and broader
acceptance. However, if parliamentary approval is achieved simply through
the government’s weight of numbers or manipulation of procedures, that will
preclude the benefits that could otherwise be obtained. (Emphasis added.)
(Southalan, 2016, p.1)
The next section provides an overview of the functions of the five government
agencies which have responsibility for managing the mining regulatory framework of
WA.
98
|
Curtain
|
5.6 Government agencies responsible for implementing the WA MinReF
As stated previously, the mining industry in Western Australia (WA) is regulated by
State and Federal legislation consisting of various parliamentary Acts which are
supported by regulations, policies, and administrative tools. To understand the roles
and functions of the MinReF, and in particular the bureaucratic institutions responsible
for implementing it, three issues need to be considered. Firstly, the role of each
agency responsible for implementing the MinReF needs to be identified together with
an understanding of agency structures and functions. Secondly, the jurisdictional
powers of each legislation and regulation entrusted to each agency need to be
examined. Thirdly, the key roles of the legislation under each agency need to be
identified.
Five Western Australian agencies are responsible for implementing the MinReF are:
(a) Department of Mines, Industry Regulation and Safety; (b) Department of Water
and Environmental Regulation; (c) Department of Jobs, Tourism, Science and
Innovation, (d) Department of Planning, Lands and Heritage, and (e) the Department
of Biodiversity, Conservation and Attractions.
5.6.1 The Department of Mines, Industry Regulation and Safety
The Department of Mines, Industry Regulation and Safety (DMIRS) was established
on 1 July 2017, following the “merging of the bulk of the Department of Commerce
with the Department of Mining and Petroleum.” (DMIRS, 2017). The operational
framework of DMIRS is “to support a safe, fair and responsible future for the Western
Australian community, industry and resources sector.” (ibid). DMIRS has five
functional areas, and the roles of these five functions are listed in Box 5.1.
.
99
|
Curtain
|
BOX 5.1 ADMINISTRATIVE FUNCTIONS OF THE DEPARTMENT OF MINES,
INDUSTRY REGULATION AND SAFETY
• Resource and Environmental
Regulation
• Industry Regulation and Consumer
Protection
• Safety Regulation
• Service Delivery
• Strategic Business Innovation
• Corporate Services
Source: Department of Mines, Industry Regulation and Safety
Concerning the scope of this study, DMIRS17 is responsible for administering the
following legislation (a) Mining Act 1978; (b) Mine Rehabilitation Fund Act 2012; (c)
Rehabilitation Fund Regulations 2013; and (d) Guidelines for Preparing Mine Closure
Plans, 2015, which are reviewed below.
5.6.1.1 Mining Act 1978
DMIRS has the jurisdiction’s authority of the Mining Act 1978 which grants mining
tenements and exploration licences (Mining Act 1978, Hunt, 2009). Subsequent
amendments to the Act (Amendments to the Mining Act 2010) and other
administrative schedules passed under the Act give authority to DMIRS to collect
Royalties (Hunt, 2009). The jurisdiction of the Mining Act includes the State of
Western Australia, but it also covers an extended territorial sea area under an
arrangement with the Commonwealth:
The Mining Act 1978 (the Mining Act) outlines the law as it relates to mining,
and for incidental and other purposes.
Until recently the Mining Act 1978 has applied to the land area of Western
Australia and, by arrangement with the Commonwealth, the first three nautical
17 DMIRS is responsible for many other legislation covering Petroleum, Gas, Safety, and
Consumer Protection and they are not relating to the scope of this study.
100
|
Curtain
|
miles of the territorial sea from the baseline. (Department of Mines, Industry
Regulation and Safety, n.d., para one).
However, the Mining Act 1978 has limited legislative powers in relation to the
Environmental Protection Act 1986 as described under Section 6 (1) which stipulates:
“S. 6. Operation of this Act
(1) This Act shall be read and construed subject to the Environmental
Protection Act 1986, to the intent that if a provision of this Act is
inconsistent with a provision of that Act, the first-mentioned provision
shall, to the extent of the inconsistency, be deemed to be
inoperative” (Mining Act, 1978, p.3).
As per the 2010 amendment to the Mining Act 1978, now, the Act requires “a Mine
Closure Plan [MCP] … for assessment and approval as part of Mining Proposal
applications” (Department of Mines and Petroleum: Environmental Protection
Agency. (2015, p. 5). The first Guidelines for Preparing Mine Closure Plans were
published in May 2015 – five years after the amendment to the Act, in collaboration
between DMP and the Environmental Protection Agency.
5.6.1.2 Mining Rehabilitation Fund Act 2012
The Mining Rehabilitation Fund Act 2012 (MRF Act) was enacted in 2012. It has
three objectives: (a) establishment of a Mining Rehabilitation Fund; (b) declaration of
a payable non-refundable annual levy on abandoned mine sites to the state; (c)
granting the authority for collecting the levy (DMIRS, n.d., MRF Act, 2012). The MRF
Act became mandatory on 1 July 2014 (DMP, 2014; Morrison-Saunders et al. 2014).
5.6.1.3 Guidelines for Preparing Mine Closure Plans
In the Guidelines for Preparing Mine Closure Plans (Guidelines for Mine Closure, May
2015) one of the key issues is the importance of operating within the external
framework under the Federal legislation:
“Where a Mine Closure Plan is a condition of approval under the EPBC [1999]
Act, the same Mine Closure Plan required by the EPA may be submitted to
the Commonwealth Government for approval provided it meets the
requirements of the EPBC Act. The EPBC Act requirements should be
101
|
Curtain
|
discussed with the Commonwealth Department of Environment and the EPA”
(DMP, 2015, p.5).
Though it does not appear in any legislation or regulations that come under the
jurisdictions of DMIRS, it is has a narrative about the agency role:
“DMP (DMIRS) is the lead regulator and decision-making authority for mining
projects in Western Australia (WA) under the Mining Act 1978 (the Mining
Act). DMP has the role of regulating the industry to ensure the closure
conditions applied and commitments made are implemented during the life of
the mining project” (ibid, p.4).
Despite its regulatory functions, DMIRS also performs a role as a sponsor of a mining
exploration program titled ‘Exploration Incentive Scheme’ (ELC) funded by the
Royalties for Regions programs. Now the program is in its ‘Round 15’. According to
DMP/DMIRS, a total sum of “$5.26 million will be offered to 43 drilling projects to be
drilled in the 2017-18 financial year and applies to successful projects drilled since
the beginning of July 2017”. DMP’s website reports state that in the “10 years the
[ELS] scheme has been running, exploration teams have drilled more than 630,000
metres and made a number of major resource discoveries.” (DMP, August 2017, para
one & two; DMP, 2017 May 2018, para six).
5.6.1.4 Mining Rehabilitation Fund Regulations 2013
DMP developed the Mining Rehabilitation Fund Regulations Act 2013, for providing
administrative guidelines for the MRF Act 2012. The regulations explain how to
calculate the MRF levy and define key terminology of the MRF Act. Further, the
Guidelines provide details about appointing a MRF Advisory Panel by calling for
nominations through the agency’s website.
5.7 Department of Water and Environment Regulation
The Department of Water Environment Regulation (DWER) was established as a new
agency in 2017 with the mandate to be “responsible for environment and water
regulation, serving as a ‘one stop shop’ for industry and developers, with the aim of
streamlining and simplifying regulation” (Department of Water Environment
Regulation, n.d, para one, (ibid). By amalgamating the former Department of Water,
Department of Environment Regulation and the Office of the Environmental
102
|
Curtain
|
Protection Authority, now the DER functions under six guiding regulatory principles.
These are summarised in Table 5.6.
TABLE 5.6 BEST PRACTICE PRINCIPLES (INTERIM)18 OF
DEPARTMENT OF WATER ENVIRONMENT REGULATION
BEST PRACTICE APPLICATION
PRINCIPLES
Risk-based The “regulatory decisions proportionate
to the level of risk posed to public
health, the environment and water
resources.”
Evidence-based The approach will be “an evidence-
based … on the best available
information including sound science to
inform regulatory decision-making.”
Transparent The provision of “clear publicly available
reliable and relevant information on
regulatory processes and requirements
to ensure that regulatory decision-
making is clear, consistent and well
understood.”
Effective regulation across The principle of collaboration with
government “other regulators to share information
and avoid unnecessary regulatory
duplication.”
Consistent initiating “regulatory actions…
consistent with legislation and within
statutory powers.”
Responsive The principle to “respond in an effective
and timely manner.”
(Source: Department of Water, Environment Regulation. July 2017)
18 The reason for the tag ‘interim’ under DWER’s best practice model is due to the ongoing
nature of the Labor Government’s Reform Agenda where the Executives of key departments
such as DWER, DMIRS, and DJTSI are appointed under short-term acting arrangements.
103
|
Curtain
|
The DWER plays a vital role in environmental regulations across the State and is also
responsible for implementing the Federal legislation, namely the Environmental
Protection and Biodiversity Act 1999 (EBPC Act) along with a few other Federal Acts
(DWER, n.d.). The Rights in Water and Irrigation Act 1914, the EPA 1986 and the
EBPC Acts fall within the scope of this study. However, the other three Federal Acts
are relevant to uranium mining include the Australian Radiation Protection and
Nuclear Safety Act 1988, the EPBC Act 1999, the Australian Radiation Protection and
Nuclear Safety Regulations 1999. The relevant pieces of legislation that come under
the DWER are reviewed below.
5.7.1. Rights in Water and Irrigation Act 1914
This century-old “Act defines the rights in water resources, to make provision for the
regulation, management, use and protection of water resources, and for related
purposes” (Rights in Water and Irrigation Act 1914, p.1). Among other things, this Act
stipulates regulations concerning the control of water resources (Part 3) and licencing
and related provisions (Schedule 1). These regulations apply to the issuing the
licence for mining operations up-to-now. Under section 26GX (d), the Minister has
the authority: (i) to “provide water at sustainable levels of use; and (ii) the
environmental impact of developing those sources” (ibid, p.52). However, the Act
does not stipulate how to achieve the provisions of “sustainable use” of water, and
the environmental impact indicating weakness of this century-old legislation.
5.7.2 Environmental Protection Act 1986
The environmental protection of the mining industry in WA was addressed eight years
after the enactment of the Mining Act 1978 through the introduction of the
Environmental Protection Act 1986 (EP Act) under which the Environmental
protection Agency (EPA) was established. The EP Act has also gone through various
amendments, including its additional associated regulations. Among them are the
Environmental Protection Regulations 1987 and the Native Vegetation Regulations
2004. Both these are important pieces of regulation concerning environmental
protection.
The EP Act (WA) has a broad scope in protecting the environment across the State
of Western Australia. It has the authority for “the prevention, control and abatement
of pollution and environmental harm, for the conservation, preservation, protection,
enhancement and management of the environment and for matters incidental to or
connected with the foregoing” (Government of Western Australia: Environmental
104
|
Curtain
|
Protection Act 1986. p.1). Other unique jurisdictions of the EP Act are its powers to
prosecute those discharging waste causing pollution and the authority to prosecute
for criminal negligence for breaches (EP Act 1986, Section 50, p.89), as well as
declare environmentally sensitive areas (Op. Cit., Section 51B, p.91). The Act also
has authority to prosecute for “unreasonable noise” (EPA Act, subsection (3);
vegetation conservation (ibid, section 70), and causing serious environmental harm”
(p.90). Further, the Act has the power to prosecute for causing unreasonable
emissions from premises (p.157) and vehicles or vessels (p.90) and dumping waste
in WA (ibid, p. 89 ).
5.7.3 Environmental Protection (Clearing of Native Vegetation) Regulations
2004
Amendments to the EP Act were gazetted December 2013 and came into effect on
Wednesday 4 December 2013 by formulating Environmental Protection (Clearing of
Native Vegetation) Regulations 2004 (DER, n.d.; para one). The document titled
Regulations 2004 provides definitions and conditions of clearing native vegetation in
the State of WA. One of the key features of the Regulations 2004 is the provision of
the definition of the following key terms:
R. 5 (2) In this regulation —
biodiversity conservation includes conservation of species diversity, genetic
diversity or ecosystem diversity;
land conservation includes management of salinity, erosion, soil acidity or
waterlogging;
plant includes to sow and to propagate. (Environmental Protection (Clearing of
Native Vegetation) Regulations 2004. P.4). (Original emphasis).
Seven years after Regulations 2004 was approved, the legislative power under the
EP Act was delegated to the DMP through a memorandum of understanding (MoU).
Under this MoU, the provisions for clearing “native vegetation under the
Environmental Protection Act 1986 for mineral and petroleum activities [now]
regulated under the Mining Act 1978” (DMP, 2011. para one).
105
|
Curtain
|
5.7.4 Environment Protection and Biodiversity Conservation Act 1999 (EPBC)
The most important legislation that governs all Australian projects with significant
environmental consequences is the Environment Protection and Biodiversity Act
1999 (EPBC). This is Federal legislation which applies to all States and Territories
for any project that has a significant environmental component (EPBC). The
objectives of the EBPC are listed in Box 5.7.
TABLE 5.7 THE OBJECTIVES OF THE ENVIRONMENT PROTECTION
AND BIODIVERSITY CONSERVATION ACT 1999
The objectives of the EPBC Act are to:
(a) provide for the protection of the environment, especially matters
of national environmental significance conserve Australian
biodiversity
(b) provide a streamlined national environmental assessment and
approvals process
(c) enhance the protection and management of important natural
and cultural places
(d) control the international movement of plants and animals
(wildlife), wildlife specimens and products made or derived from
wildlife
(e) promote ecologically sustainable development through the
conservation and ecologically sustainable use of natural
resources
(f) recognise the role of Indigenous people in the conservation and
ecologically sustainable use of Australia's biodiversity
(g) promote the use of Indigenous peoples' knowledge of biodiversity
with the involvement of, and in cooperation with, the owners of
Source: Australian Government: Department of Environmental and Energy –
EPBC Actht e1 9k9n9o wledge.
Of the wide range of powers under the EPBC Act, the objectives (a), (b) and are
relevant to the scope of this study. They are discussed in detail in Chapter Eight
(Section 8.5.5).
106
|
Curtain
|
5.8 Department of Planning, Lands and Heritage
The Department of Planning, Lands and Heritage (DPLH) has the jurisdiction over the
Land Administration Act 1997 (“LA Act”) under which the Minister has authority on
granting land rights access to Crown and private lands, pastoral and mining lands.
The LA Act provides clarifications on land ownership issues across WA. Concerning
mining, section 205 of the Act assures those who hold mining tenements for
compensation for damage to mines as follows:
“If an interest in land taken under Part 9 is held under any Act relating to the
use of land for mining purposes, the holder of the interest is only entitled to
claim compensation for “actual loss sustained by reason of the taking through
damage to a mine on the land, or the works connected with a mine” (Land
Administration Act, 1997, p.175).
Section 49 of the Act stipulates conditions relating to the “development, management
and use of the Crown land” (ibid, p.42).
5.8.1 Department of Biodiversity, Conservation and Attractions
The Department of Biodiversity, Conservation and Attractions (DBCA) was
established in 2017 following amalgamating of the Botanical Gardens & Parks
Authority, Parks and Wild Life Service, Perth Zoo and the Rottenest Island Authority
(ibid). It has the jurisdiction over the Biodiversity, Conservation Act 2016 (BCA 2016).
(DBCA, n.d. para one) which is the “replacement for the Wildlife Conservation Act
1950 and Sandalwood Act 1929” (Department of Biodiversity, Conservation and
Attractions, n.d., para one)
The objective of the Act is twofold:
(a) “to conserve and protect biodiversity in the State”; and
(b) “to promote the ecologically sustainable use of biodiversity components in
the State” (BCA 2016, p. 2).
107
|
Curtain
|
5.9. Abandoned mines and mine rehabilitation legislation in Western Australia
This section provides an overview of the mining rehabilitation legislation and the
environmental legacies of Western Australia. After more than over one hundred years
of mining, there are 17,000 abandoned mine sites in WA (Government of Western
Australia: Media Statement. (8 June 2014). para thirteen) which are no longer
operational, but where the earlier presence of the industry has left long-lasting
environmental legacies (ibid). In 2014, mining rehabilitation legislation became
mandatory to address the environmental and safety issues due to abandoned mines
in WA. For example, the abandoned Elverdton copper-gold mine located 12
kilometres south of Ravensthorpe in south-west Australia is an example of an
environmental legacy mine. “It is a target for rehabilitation under the government
mine rehabilitation program” (Ibid, para four).
“Under the new MRF, the focus will be on avoiding the sort of environmental
legacies left by abandoned projects such as Elverdton.
The Elverdton mine was operating between 1956 -1972. A small potash
operation for farm fertilizer continues, but beyond this mining ceased in 1972.
The “massive uncontained tailings dump which is eroding into a local river
catchment” (mindat.org. n.d.).
In order to consider the environmental harms of disused mine sites such as the
abandoned Elverdton mine in WA, it is essential to define the term “abandoned mine’.
It refers to sites where mining activities occurred, but acceptable mine closure and
reclamation did not take place or was incomplete. Abandoned mines contribute to the
legacy of environmental degradation left by historic mining activities which occurred
before mine closure regulations were developed.” (miningfacts.org. n.d). The
Government of Western Australia defines abandoned mines as “shafts, dumps and
buildings that are commonly found at sites of historical mine production. “Affected
land” in relation to an abandoned mine site means land outside the site that has been
affected by mining operations carried out in, on or under the site” (Government of
Western Australia: Department of Mines and Petroleum (2016, p.3).
The past mining activities in WA were functioning without any regulations for mine
closures. The issue of addressing the rehabilitation of the 17,000 abandoned mines
was enacted in 2012, and the legislation became mandatory in July 2014. It shows
that the enactment of the MRF Act is a vital landmark within the MinReF. However,
108
|
Curtain
|
the $50, 000 annual rehabilitation liabilities under the MRF legislation are limited to
mine tenement holders operating under the Mining Act and not applicable to any of
the State Agreements:
“All tenement holders operating on Mining Act 1978 (Mining Act) tenure (with
the exception of tenements covered by State Agreements not listed in the
regulations), are required to report disturbance data and contribute annually to
the fund. Tenements with a rehabilitation liability estimate (RLE) below a
threshold of $50,000 must report disturbance data but are not required to pay
into the fund” (DMP, n.d. para three)
According to the MRF Act the mine “rehabilitation work” means work to rehabilitate
an abandoned mine site or affected land that is funded from money standing to the
credit of the Fund” (MRF Act, p.7). As this definition has a limited scope implying
that all abandoned would be restored, in this thesis, a practical definition is adopted
to define mining rehabilitation: “recovery of a mine site to a healthy ecological state
or for productive human use” (Marinova, 2018).
All tenement holders operating on Mining Act 1978 (Mining Act) tenure (with the
exception of tenements covered by State Agreements not listed in the regulations),
are required to report disturbance data and contribute annually to the fund.
Tenements with a rehabilitation liability estimate (RLE) below a threshold of $50,000
must report disturbance data but are not required to pay into the fund (MRF Act,
2012).
Table 5.8 provides a timeline of mining rehabilitation legislation and initiatives.
109
|
Curtain
|
TABLE 5.8 TIMELINE OF MININING REHABILITATION LEGISLATION
Year Legislation/ and initiatives Comments
1854 Gold Regulation Ordinance The first mining law in WA.
1904 Mining Act No environmental protection
conditions included.
1978 Mining Act No environmental protection
conditions included.
2010 The Amendment to the Mining The amendments mandated the
Act 1978 need to submit mine closure plans
with mining applications.
2011 Guidelines for Preparing Mine The preliminary version of the
Closure Plans (Version 1) “Guidelines for Preparing Mine
Closure Plans” developed in
collaboration with the EPA.
2012 Mining Rehabilitation Fund Act The MRF Act 2012 became
(MRF Act) mandatory legislation was enacted.
2013 Mining Rehabilitation Fund Act MRF Act provides guidelines on
(MRF Act) Regulations 2013 how to calculate the MRF Leavy;
definitions of terminology, the
appointment of MRF Advisory
Panel and other admin issues.
2013 DMP commenced the The funding for the AMP was
implementation of the sourced from the Mining
‘Abandoned Mines Program’ Rehabilitation Fund (MRF).
(AMP).
2014 MRF Act became mandatory MRF Act became mandatory on 1
July 2014. The mining operators to
pay one per cent of self-estimated
mine closure liabilities annually.
2015 Guidelines for Preparing Mine These guidelines were published in
Closure Plans (version 2) collaboration with the
Environmental Protection Agency
110
|
Curtain
|
2015 DMP commenced the This was an “unplanned project to
rehabilitation of the ‘Ellendale address immediate concerns at the
Diamond Mine’ in the Ellendale Diamond Mine…” (DMP,
Kimberley as a pilot under the n.d. Abandoned mine project)
MRF,
Source: The sources cited above.
DMP has undertaken the responsibility for rehabilitating. Selected abandoned mines
using the funds from MRF as a pilot program:
“Currently, there are five projects in the [Abandoned Mines Program]. The
Ellendale Diamond Mine was abandoned in 2015 and was the first site where
works were undertaken using the funds from the principal of the MRF. Ellendale
continues to be managed in care and maintenance whilst DMIRS is undertaking
an Expression of Interest (EOI) process to have mining recommence at the site.
There are four historical abandoned mine sites identified as pilot sites for
rehabilitation funded from the interest generated on the MRF: Black Diamond
Pit Lake, Pro-Force Plant Site, Bulong Nickel Tailings Storage Facility and the
Elverdton Dumps. Two of the pilot Sites, Black Diamond and Pro-Force, were
successfully completed during the 2016–17 financial year”. (GoWA: DMP,
2017. pp 6-7).
The effectiveness of the MRF Act and issues concerning mine closure plans and
rehabilitation of mine sites are discussed in detail concerning the two case studies
(Chapter Seven). How the mining sector complies with environmental legislation is
also of interest and relates to the focus of this research. The Auditor General of
Western Australia conducted two audit reports: First in 2004 examining the State
Agreements and the second in 2011 reviewing the overall environmental compliance
of the mining regulatory framework. The following section provides a review of the
findings from these two reports.
111
|
Curtain
|
5.10 Environmental Compliance: The findings of two audit reports on current
gaps of the regulatory framework
The report by the Auditor General titled Developing the State: Management of State
Development Acts (2004) examined the WA State Agreements as critical pieces of
legislation which support large-scale resource projects while the 2011 audit report
titled Ensuring Compliance with Conditions on Mining analysed the general
environmental compliance of the industry. They are discussed below.
5.10.1 Findings of the WA Auditor General’s Report on State Agreements
One of the key findings of the Auditor General’s 2004 Report identifies the need to:
“develop a more systematic approach to Agreement risk management,
consistent with their value and importance to the State improve reporting to
Parliament on Agreement status and performance” (WAAG, 2004, p.20).
Further, the Audit Report highlights the absence of “a structured process to evaluate”
the achievements of agreement and the absence of a “systematic approach to
Agreement risk management” (ibid). However, the Audit Report neither provides
details explaining what this “systematic approach” is nor explains how to manage
risks and the environmental conditions incorporated in the SAs. This PhD study fills
in a gap by analysing how environmental assurance regulations of three SAs are
implemented in two specific case studies. It also includes a critical evaluation of the
environmental compliance aspects of the SAs (Chapter Five).
5.10.2 Findings of the Auditor General’s Report on the Environment
Compliance
The second report titled Ensuring Compliance with Conditions on Mining (2011)
published by the Auditor General (WAAG, 2011) notes several weaknesses in agency
practices:
“Responsibility for monitoring and ensuring compliance with conditions rests
with several agencies, and performance varies significantly across these
agencies, and across key conditions…Weaknesses in agency practice mean
that we cannot give assurance that environmental protection conditions are
being met.” (WAAG, 2011 p.7).
112
|
Curtain
|
Of the overall weaknesses, the WAAG report (2011) highlights the lack of inter-
agency coordination and a principal agency for monitoring the Annual
Environmental Reports (AER) submitted by mining companies. The Report notes
the following deficiencies concerning one of the agencies; namely the Department
of Mines and Petroleum (DMP):
“Only 55 per cent of sampled operators submitted their required Annual
Environmental Reports (AERs) to DMP to provide regular information on
whether they are minimising their impact on the environment.
When the AERs were not submitted, DMP rarely followed up with the operator
or took action” (Western Australian Auditor General, 2011, p.8).
Further, the Audit Report notes that the DMP has not established the extent and the
scope of inspections required to provide “reasonable assurance that mining
conditions are being met” and only “[f]orty-three per cent of sampled mines were
inspected over the five years to 2011” (ibid). One of the key insight of the Audit Report
is DMP’s role in monitoring “whether mining operators have taken action to address
identified noncompliance” and notes the agency practice “poor” (ibid). Another key
finding of the audit is the poor “coordination between agencies”, (p.17) However, the
audit findings do not discuss the strengths and weaknesses of the legislation that
comes under the WA MinReF and the reasons for the lack of interagency coordination
of relevant legislation. A reason for not monitoring the Annual Environmental Reports
submitted by the mining companies is the initiation by DMP of a mining regulatory
reform process between 2011 and 2015 by proposing “risks and outcome based”
regulatory solutions through amendments to the Mining Act 1978 (see also Section
5.4 of this Chapter). A key issue of the mining regulations in WA seems to arise from
the lack of effective coordination as various legislation and regulations on mining
confine to individual agencies. The Auditor General highlights:
“The legislation …is clearly ‘owned’ by individual agencies. However, the way
this framework is currently implemented does not provide overall assurance on
compliance with conditions” (Western Australian Auditor General, 2011, p.17).
Nevertheless, this audit report does not explain the genesis and the evolution of the
MinReF resulting in a piecemeal approach to environmental legislation. The findings
from the audit justify researching to identify any theoretical grounds for the
113
|
Curtain
|
shortcomings and deficiencies of specific agency-based legislation. Further,
regulatory requirements for monitoring and enforcement of environmental conditions
and how the responsible agencies could improve their practices have not been
adequately addressed in the Auditor General’s Report. Further, the 2011 Audit
Report does not provide the functions of the EPBC and its role within the WA
MinReF.19 This research project examines the objectives of the EPBC Act and its
functionality within the WA MinReF in Chapter Eight (section 8.5.7). Neither of the
audit reports examines the overall functionality and effectiveness of MinReF and in
particular, nor provide policy solutions to address the existing gaps and deficiencies.
Further, this thesis draws from multiple theoretical approaches to explain the gaps
and deficiencies identified in the respective reports.
5.11 Summary
This chapter provided an overview of how the mining regulatory framework in WA has
evolved over a period of 160 years since the enactment of the first mining law (GRO
1854) in WA. The large number of legislation, regulations and policies also
demonstrate the scope and complexities of the various subjects the framework
covers. Included in this chapter was an overview of the merits and demerits of the
SAs as a prelude to the two case studies in Chapter Seven where a sample of these
Agreements will be reviewed as regulatory tools examining their capacity to assure
environmental compliance concerning a uranium mine approval and coal mining. The
main conclusion from the identification of the WA’s complex mining legislation is that
there are two parallel systems—the Mining Act and the State Agreements which deal
differently with mining approval, management including mine rehabilitation work. The
chapter demonstrated that these responsibilities are distributed across different State
ministries and government departments displaying a lack of a coordinated approach.
These policy gaps require further analysis in order to produce workable solutions by
strengthening the role of legislation concerning the environmental protection in WA
and discuss in Chapter Eight.
19 2011 audit report only focused on the WA compliance process and did not address the
role of the EPBC Act 1999.
114
|
Curtain
|
CHAPTER SIX METHODOLOGY AND METHODS
6.1 Introduction
This chapter describes the rationale for the chosen research methodology and
methods utilised to collect and analyse data to obtain evidence to address the issues
embodied in the research question and objectives of this study. This chapter includes
the approach to the inquiry, data collection and analysis while Chapters Seven and
Eight represent the insights obtained from the participants, literature review and the
analysis and interpretation of various issues relevant to this research project. Further,
this chapter establishes methods to ground the analysis of the two case studies
(Chapter Seven) using qualitative research methods.
The study was conducted based on qualitative research using the principles of case
study methods (Yin, 2011, 2018), and supported by an analysis using primary and
secondary data sources. Table 6.1 provides the research question, objectives and
methods utilised to conduct the study.
Chapters Two, Three, and Four identified key issues, and the literature addressing
sustainable development, global drivers which influenced the corporate world and
mining industry to adopt sustainable approaches in their business practices. Further,
the previous chapters also identified the theoretical approaches relevant to this study
which requires an approach based on intradisciplinary perspectives to investigate the
research question and objectives. This PhD project, developed within a social
sciences framework, is grounded in sustainable development principles.
Nevertheless, it draws from other disciplines such as public policy, mining law,
theories on legal doctrine and environmental law, regulation design principles,
theories of bureaucracy, and discourse analysis to understand various theoretical
approaches relevant to this study. A suite of methods has been used to answer the
research question (see Table 6.1) which are explained in further detail below starting
from the underlying philosophy and strategy. In essence, this is a qualitative
investigation which builds on two case studies, interviews with experts and secondary
sources. Content analysis was used to examine the collected data and inform the
insights gained to support the findings of this study.
The research methods of social sciences are different from investigations in
disciplines describing natural phenomena, such as chemistry, physics, biological
studies and medicine. While the hard sciences depend on verifiable data, including
115
|
Curtain
|
clinical trials, and quantitative approaches, the social sciences are very much
interested in concepts and relationships between people and within society, to which
qualitative thinking seems more appropriate. (Yin, 2011, 2018; Creswell & Poth,
2018). However, it is important to note that research in social as well as natural
sciences these days needs to be cross-fertilised with interdisciplinary and
transdisciplinary insights. For example, in medicine understanding people’s and
patients’ behaviour, attitudes and priorities now depend on qualitative research
(Creswell & Poth, 2018; Baker & Edwards, 2012; Adler & Adler, 1987). Similarly, in
environmental science, preserving and restoring biological diversity, maintaining
natural resources and functional ecological systems can be justified using insights
from social sciences (Filho, Marans, & Callewaert 2018). The remainder of this
chapter clarifies the methodological facets of the research design. It provides an
overview of the applicability and limitations of the selected approaches adopted in
conducting this research project.
TABLE 6.1 RESEARCH QUESTION, OBJECTIVES AND METHODS
RESEARCH QUESTION/OBJECTIVES METHODS
Research • How is the mining regulatory • Identify State and Federal
Question framework in Western mining acts, regulations,
Australia being implemented policies and administrative
legislatively to assure tools under the Mining
environmental protection Regulatory Framework of
during the mining life cycle? Western Australia. (Table 5.2).
• Case study analysis of the
Yeelirrie uranium mine and
Collie coal mining (Chapter
Seven).
• Analysis of data collected from
a sample of well-informed
participants representing
government, academia, mining
regulators and non-
government organisations
using semi-structured, in-depth
interviews (Chapters Seven, &
Eight.
Objective • Analyse the strengths and • Identification, and analysis of
one weaknesses of the current relevant government
mining regulatory framework legislation, regulations,
in relation to environmental policies, audit reports and the
protection in Western outcomes of two mining reform
Australia.
116
|
Curtain
|
. agendas of WA. (Chapters
Five & Eight).
• Analysis of two case studies
(Chapter Seven).
• Analysis of data collected
from a sample of key
informants representing
government, academia, non-
government organisations and
mining regulators using semi-
structured, in-depth interviews
(Chapters Seven, & Eight).
• Review of two sets of primary
data, namely interviews,
legislative reviews, secondary
data from relevant peer-
reviewed literature and
government websites.
(Chapters Seven & Eight).
Objective • Analyse how the mining • Analysis of the case study of
two regulatory framework is the Yeelirrie uranium mine
being implemented in two based on primary data from
case study locations. legislation, interviews and
secondary data from literature
sources (Chapter Seven).
• Analysis of the case study of
the Collie coal mining based
on primary data from
legislation and interviews and
secondary data from literature
sources (Chapter Seven).
Objective • Identify Australian and global • Review of literature related to,
three best practices of of Australian and global best
environmental protection practices of innovative
relating to mining operations approaches of ecosystem
and rehabilitation work. restoration and mine
rehabilitation. (Chapter Nine).
Objective • Propose ways and means of • Synthesis of research findings
four improving the Western based on the analysis of the
Australian mining regulatory case studies and identifying
framework to assure the strengths and weaknesses
environmental protection. of the MinReF) Chapter
Eleven).
• Propose policy
recommendations to address
the gaps and deficiencies
identified in the Western
Australian mining regulatory
framework (Chapter Eleven).
117
|
Curtain
|
6.2 Research philosophy and strategy
The research philosophy and strategies adopted in this study are based on qualitative
research and case study methods (Creswell and Poth, 2018; Yin, 2018, 2011;
Creswell, 2013). According to Creswell, (2013, p. 44):
“Qualitative research begins with assumptions and the use of
interpretive/theoretical frameworks that inform the study of research problems
addressing the meaning’s [of] individuals or groups ascribed to a social or
human problem. To study this problem, qualitative researchers use an
emerging qualitative approach to inquiry, the collection of data in a natural
setting sensitive to the people and places under study, and data analysis that
is both inductive and deductive and establishes patterns or themes. The final
written report or presentation includes the voices of participants, the reflexivity
of the researcher, a complex description and interpretation of the problem, and
its contribution to the literature or calls for change”.
6.3. Qualitative research
Qualitative research conveys different things and meanings when a researcher is
engaged in an “activity that locates the observer in the [real] world” (Denzin & Lincoln,
2018, p.10). Hence, qualitative research “consists of a set of interpretive, material
practices that make the world visible and generic definitions could be offered” (ibid).
According to Denzin & Lincoln, 2018, p. 10):
“These practices transform the world. They turn the world into a series of
representations, including field notes, interviews, conversations, photographs,
recordings, and memos to the self. At this level, qualitative research involves,
an interpretive, naturalistic approach to the world. This means that qualitative
researchers study things in their natural settings, attempting to make sense of
or interpret phenomena regarding the meanings people bring to them”.
King et al. (1994, p. 4) highlight even though qualitative research “covers a wide range
of approaches… by definition, none of these approaches relies on numerical
measurements”. Denzin & Lincoln (2018, p. 10) explain the scope of qualitative
research state that it:
“involves the studied use and collection of a variety of empirical materials—
case study, personal experience, introspection, life story, interviews, artefacts,
118
|
Curtain
|
and cultural texts and productions, along with observational, historical,
interactional, and visual texts—that describe routine and problematic moments
and meanings in individuals’ lives. Accordingly, qualitative researchers deploy
a wide range of interconnected interpretive practices, hoping always to get a
better understanding of the subject matter at hand. It is understood, however,
that each practice makes the world visible in a different way. Hence, there is
frequently, a commitment to using more than one interpretive practice in any
study”.
In this study, the empirical materials gathered cover two case studies, interviews,
historical data describing WA mining history and the evolution of the mining legislation
(Table 5.2). Further, this study included reviews of old legislation such as the Mining
Act 1904, agency annual reports (historical data), visual texts of abandoned mine
sites in WA, pit lakes in the Collie Region and abandoned mine shafts. I have also
examined cultural (media) texts, such as media coverage of issues relating to the
scope of the study and also reflected on my professional experience as a former
public official. My experience includes over two decades of employment as a civil
servant holding positions in public service agencies in WA, including agencies such
as health, transport, Perth Zoo, commerce, industry and resources. Between
February 1999 and 31 March 2014, I was employed at the Department of Mines and
Petroleum (DMP) with responsibilities related to management of information systems;
corporate risk management; development, analysis and implementation of policies,
and advised the Senior Executives as the chairperson of the Department’s staff
consultative and communication committee.20 As a result, I embarked on this
research not as a novice, but as a practitioner with twenty years of knowledge on how
public service agencies operate, the cultures of agencies, and diversity in several key
departments in the State of Western Australia. Consequently, the overall experience
makes me see the world from a particular point of view which includes the richness
of experience and observations which would have missed, had I engaged in this study
as a researcher with no public service experience.
This research includes a review of relevant social science literature and theories
identified in Chapters Two, Three and Four. The theories relating to environmental
law, regulatory theories, legal doctrines and mining practices outlined in Chapters
20 During my 15 years of employment at DMP (until 31 March 2014), I did not hold any
formal positions relating to environmental compliance or mining regulatory work.
119
|
Curtain
|
Two, Three, Four and Five were adopted to understand issues in connection the
implementation of regulations within the public sector and evaluating legislation, such
as mining laws (legislation, regulations and policies) in WA. Further, the theories
embodied in the works of Weber (1952, 2015) were used to analyse the government
bureaucratic systems responsible for implementing the MinReF in WA.
It is essential at the outset to examine a definition of ’theory’. According to Ragin
(1994, p. 25), a theory is “an attempt to specify as clearly as possible, a set of ideas
that pertain to a particular phenomenon”. In this study, the chosen “phenomenon” is
the implementation of the mining regulatory framework of WA to assure
environmental protection. Ragin notes (1994, p. 32):
”A primary goal of social research is to improve and expand the pool of ideas
known as theories by testing their implications and to refine their power to
explain. Testing is carried out by deriving hypotheses from theories and the
implications of these theories and by… working through the implications of a
theory and then testing this refinement, it is possible to progressively improve
and elaborate a set of ideas” (ibid).
I follow the views expressed by Ragin (1994) in Chapter Seven where I present two
case studies. I followed the same approach in my analysis of the MinReF in Chapter
Eights using the data collected through expert interviews.
Despite its ability to provide a rich description and different worldviews, qualitative
research has some limitations. It requires good research design and works to convey
the best understanding and theory development using the available information and
the researcher’s insights.
6.3.1 Limitation of qualitative research
There are resistances to the approaches adopted in qualitative research. According
to Denzin and Lincoln (2018, p.9), the “academic and disciplinary resistance to
qualitative research illustrates the politics embedded in this field of discourse”. There
are many criticisms against qualitative research. To better understand these
criticisms, it is necessary to “distinguish the political (or external) role of [qualitative]
methodology from the procedural (or internal) one” (Seale, Gobo, Gubrium, &
Silverman, 2004, p.7).
120
|
Curtain
|
A possible way to do so is to compare it with quantitative research which uses “precise
and compact abstract data” (Neuman, 2014, p. 479). Neuman’s (2014) insights into
quantitate versus qualitative research methods identify the inherent weakness and
strengths of qualitative research. Table 6.2 outlines the essential resemblances and
variances between these two groups of research methods.
TABLE 6.2 COMPARISON OF QUANTITATIVE AND QUALITATIVE RESEARCH
RESEMBLANCES VARIANCES
Both approaches derive abstract concepts Quantitative research uses a limited number
from empirical data. of standardised methods. Qualitative
research uses many non-standardised
methods and techniques.
Both use objectively available sources and Quantitative uses pre-existing or
describe them in detail depending on the established theories or hypotheses which be
research. tested for “verification or falsification of
facts.” 21
Qualitative research can be used for
conceptualisation and is capable of
developing theories.
Both methods use comparisons with chosen Quantitative methods use precise “and
variables. verifiable data”.
Qualitative methods use imprecise and
“subjective data”.
Both methods could avoid errors and Different researchers can reproduce the
conclusions “using empirical data”. results following the prescribed quantitative
methods to generate “scientifically verifiable
facts”.
Qualitative methods cannot validate a theory
using “scientifically verifiable empirical
data” 22 , and the conclusions depend on the
analytical skills of the researcher.
Source: Neuman (2014, p.497) & Govinnage (2018)
21 All highlighted texts in italics bold in the table are my contribution to this table (Govinnage,
2018)
22 I have borrowed the highlighted words “verification” from scientific methodology
(Andersen, Hanne and Hepburn, et al. (2016). as established by Gallio in and falsification
facts” from Carl Popper’s work. James, F. and Hempel, C. (Fall 2017) who first
proposed that facts could also be falsified when using the scientific method.
121
|
Curtain
|
The most significant difference between quantitative and qualitative methods is the
role that the researcher plays. While with quantitative techniques the results are
reproducible by any well-trained researcher, qualitative analysis produces outcomes
which depend on the analytical skills and previous knowledge as well as the value
system of the researcher. In this sense, a limitation of the qualitative methods is their
subjectivity. The same feature, however, could also act as the strength of the
methodology, as researchers look for theory development and explanations of
phenomena within the areas where they feel most knowledgeable and well-informed.
They also engage with a particular phenomenon because of passion and other
emotional explanations – reasons usually left entirely outside the hard formal logic of
quantitative techniques.
Further to the empirical qualitative data collected from 16 research participants, the
detailed information about the two case studies (presented in Chapter 7), I use
several theoretical approaches from the disciplines mentioned earlier in this chapter.
For example, I draw from the work of Seale et al. (2004) to examine both external –
the role of politics, and internal–the rationale for using Yeelirrie (Uranium Agreement
Act 1979), factors for the approval of the uranium project in January 2017. Additional
theoretical insights are drawn from Hoecke (2013) related to legal doctrines, the
theories about bureaucracy (Weber, 1952 & 2015) and discourse analysis as
discussed in Chapter Three (section 3.6).
6.3.2. Research design
Based on the literature review of qualitative approaches and case study research
(Denzin & Lincoln, 2018, Creswell & Poth, 2018, Maier & Allen, 2017; Yin, 2011,
2018), this PhD research was conducted using four design choices. I briefly discuss
this below with my reflections on the four choices I considered in developing the
design for this study:
Option A: To carry out an investigation reviewing both historical and contemporary
data on environmental compliance, and conduct an agency-centric survey, aimed at
finding out the administrative arrangements adopted to implement environmental
compliance regulations. Further, I also considered interviewing those responsible for
the implementation of the legislation under the Western Australian MinReF and base
the thesis on these data and findings. Having done further desktop research and
reading the works by Helms and Nixon (2010), I also considered carrying out
Strengths, Weakness, Opportunities and Threats Analysis (SWOT). Although this
122
|
Curtain
|
appeared as an attractive option given my familiarity with the WA public sector, on
reflections, I realised that the institutional responses would be subjective and most
likely defend existing agency practices. This concern was justified based on the
analysis of various discourses and practices as represented in some agencies’ official
reports (DMP, 2017; WAAG, 2004; WAAG, 2011).
Option B: To conduct and analyse two sets of data to be collected from the
bureaucratic agencies and external stakeholders. The intention was to compare the
data sets against existing regulations. I intended to present my findings according to
themes identified based on the interviews and literary reviews. Having explored the
literature and through reflections, I realised that most likely I would have had to deal
with two sets of data with two polarised opinions representing pro and against the
current mining regulatory framework. Thus, such black and white representation
would not have been helpful as the research question is not about investigation
opinions pro and against mining, but about analysing environmentally responsible
mining regulations. Hence, I did not follow the second option as study design.
Option C: To carry out the research analysing multiple case studies (hence based
on case study research (Stake, 1995; Denzin & Lincoln, 2011; Creswell & Poth; Yin,
2011, 2018). I thought that it would help develop “stories”: focusing on environmental
compliance, thereby allowing issues to emerge using grounded theory. As introduced
by Glaser and Strauss in 1967, the grounded theory rests on an analysis of actual
data related to the behaviours of the participants being studied. It is not applicable in
the case of stories as they are not direct observation and a particular interpretation
would have already been imposed. As stated in Chapter Five, the mining regulatory
framework is complex and has evolved over a century. Further, it is implemented
through several individual agencies (WAAG, 2011). Moreover, environmental
protection applies to all stages in the mine’s life cycle which might require longitudinal
observations beyond the time constraints of a PhD project. Multi-disciplinary
approaches based in the respective conceptual frameworks may be a better solution
to understand the many factors which have influenced and contributed to the current
regulation and practices adopted such as the Mining Act 1978, 64 State Agreements
and the newly developed the MRF Act 2012, which focusses only on rehabilitating
abandoned mines.
123
|
Curtain
|
Option D: To carry out an empirical evaluation of all pieces of legislation and
regulations to examine the effectiveness of their implementation. I realised that this
approach would not be productive for two reasons. First, an analysis of all legislation
and regulations would end up with a legislative inventory and a description of their
individual, features, strengths and weaknesses. Secondly, such an inventory-based
study would not provide an opportunity to analyse the operational and implementation
issues within particular settings, such as one or two case studies. Having collected a
large number of legislation and regulations which come under the MinReF (Table
5.2), I realised the complexity of analysing a larger terrain of legal documents (nearly
200 pieces of legislation and regulations, including 64 State Agreements Acts, without
being able to undertake an in-depth analysis.
Therefore, having reflected on the four options separately, I decided to draw elements
from all of them and to focus on compiling two case studies, conduct interviews with
key informants and stakeholders and analyse the legislative framework. Logistically,
focusing on two types of minerals, namely uranium, coal and provides an opportunity
to identify, collect and analyse empirically valid and achievable sets of data, and
identify various factors influencing the implementation of the legislation. Hence, the
research design comprised two case studies using the theoretical approaches
outlined by Yin 2011, (2018), Creswell and Poth (2018) and Stake (1995). The case
study approach gives flexibility. Further, it is a reliable methodology to collect data
and to examine a sample of regulations applicable to these two types of minerals and
conduct an in-depth analysis. Also, the interviews allow me to investigate some
general themes, ask for different opinions and insights about better practices. The
structure of the methodology is presented in Figure 6.1 while further details are
provided in the sections to follow.
124
|
Curtain
|
FIGURE 6.1 RESEARCH METHODOLOGY
Legislative
framework
analysis
Case studies Interviews
Content analysis
Findings,
conclusions, and
Recommendations
6.4 Case study method
Yin (2011, 2018)—a widely recognised academic in the area of case study
methodologies, explains the essence of the case study method as follows:
“There is no formula, but your choice depends in large part on your research
question[s]. The more that your questions seek to explain some contemporary
circumstance (e.g. ‘how’ or ‘why’ some social phenomenon works), the more
that case study research will be relevant. Case studies also are relevant the
more that your question requires an extensive and “in-depth” description of
some social phenomenon” (Yin, 2018, p.4).
A running thread of this study is asking ‘how’ (as well as ‘why’) as my entry to the
investigation of the mining regulatory framework in WA examining the background
information identified in Chapter Five. I begin my investigation first by reviewing key
mining legislation such as the Mining Act 1978, the jurisdictional powers under the
State Agreements (SAs) which operate above and over the State’s laws (Southalan,
2016; Hillman, 2006). Further, my investigation focus on the functions of the SAs and
why it is operating outside the current mining rehabilitation law (MRF Act). I also
analyse the Federal legislation, primarily the Environmental Protection and
Biodiversity Act 1999, and inquire its role concerning the environmental compliance
of the two minerals (coal and uranium) as discussed in the two case studies in
125
|
Curtain
|
Chapter Seven. In the case study analysis, I have carried out an in-depth review of
the regulatory tools adopted to manage the coal mines in the Collie Region.
Furthermore, I investigate ‘how’ and ‘why’ by following the phenomenon of the
Yeelirrie uranium mine approval under a SA. This approach is essential as three
other uranium mines have been approved under the Mining Act 1978 which suggests
a dichotomy in mining regulations and the resource development politics in decision
making in mine approval in WA. A case study analysis allows for the details to be
revealed in a thick description. According to Mills, Durepos, & Wiebe (2010) thick
description is used to describe the process that pays attention to related details of
observation, and interpretation of social meanings, that allows the researcher to
present the context, and not just the facts and observations. Across all major
disciplines of the social sciences, the case study methods are is widely used to
examine a chosen research focus. The emerging evidence suggests that this is a
research strategy in its own right (Jacob, 1987; Hartley,1994, Denzin & Lincoln,
1994.). Stake (1995, p. 3) explains the dependability of case studies when a
researcher has a “research question, a puzzlement; a need for general understanding
and feel that we may get insights into the question by studying a particular case”.
This is the reasons behind the two case studies included in the thesis. Nevertheless,
“[u]sing case studies for research purposes remains one of the most challenging”
(Yin, 2009, p.1). It requires the investigators to discover their own way of presenting
and explaining the context as well as the facts and observations about the studied
phenomena. These challenges represent both the strengths and limitations of case
study research. The following sections provide a brief introduction of the selected
case studies and a review of the strengths and limitations of the method.
6.4.1 Design of the case study research
‘Case study’ is not a homogeneous term. According to Creswell and Poth (2018, p.
98) “case studies are distinguished by the focus of analysis for the bounded case
such as whether the case involves studying one individual, several individuals, a
group, an entire program, or an activity”. In the two case studies of this PhD thesis, I
follow the activities involved in the current mining approval process in WA. Creswell
and Poth (2018) identify three types of case studies, based on the “intent of case
analysis” (ibid). They identify the ‘variations’ of case studies “in terms of [the] intent:
the single Instrumental case study, the collective or multiple case study, and the
intrinsic case study (ibid; the original emphasis). The focus of the single instrumental
case study is the researcher focusing on a single issue (the intent). The collective or
multiple case study method selects multiple issues mainly to provide “different
126
|
Curtain
|
perspectives on the issue (p. 99). Based on these classifications, this PhD thesis
analyses the features of intrinsic case study elements—that is, environmental
compliance of the mining regulatory framework to evaluate its effectiveness. The
chosen focus provides opportunities to determine whether environmental protection
has been assured during the life cycle of mine operations in the Collie region and the
uranium approval process. Map 7.1 & 7.2 shows the location of the sites for the two
case studies—one in the vicinity of the mining town of Collie and the other 70 km from
the town of Wiluna in Western Australia. The two case studies are very different, as
one relates to coal mining in several sites that have been in operation for an extended
period, while in the other case, mining operations have not yet commenced. There
are, however, some similarities in the contested political environment surrounding the
two types of mining. The climate change priorities have cast doubts on the continued
use of coal as an energy source (Paddenburg, 2014; EPA WA, 1991, while the
radioactive qualities of uranium pose threats to human health (world-nuclear.org, n.d)
and are also perceived as undesirable by many (Flannery & Stanley, 2014; Doctors
for the environment, 2013).
As both case studies were focused on the effectiveness of the regulatory system, the
applicable laws were indexed and reviewed. Further, desktop research was carried
out to identify and review the applicability of the sustainability principles for the
respective two mining companies. Field observations were carried out only for the
coal mine, as the uranium mine is not yet operational. I visited the Collie Region twice
and observed the environmental impact due to coal mining. The Yeelirrie site was not
visited intentionally as it was not yet operational. The uranium mine approval was
granted in January 2017, and operational activities have not yet commenced during
this research. Further, it is located over 1200 km (one- way journey) away from Perth.
The purpose of the uranium case study was to analyse the current environmental
regulations of WA and was not to evaluate the environmental impact assessment
(EIA) of the project. A field trip to Yeelirrie would not have generated additional data
or insights.
The evaluation was carried out reviewing all important reports including two
environmental impact assessments made available by the proponent and the
environmental protection agency (Cameco Australia, 2015, EPA 2016).
127
|
Curtain
|
6.4.2 Strengths and limitations of case study methods
Comparing case studies with other social science research approaches, Yin (2018,
p. 5) notes that “each method has its own advantages and disadvantages”. It is
difficult to argue which has better “exploratory, descriptive and explanatory” power
(Yin, 2018, p.8). The principal characteristic of the case study method is the
emphasis on the details which contextualise the observed facts and behaviours.
Moreover, the three main research purposes of social science research—exploring,
describing and explaining (Yin, 2018), can be achieved within the same settings.
For example, in this study, I explored certain regulatory phenomena such as the
unique features of SAs, their merits and demerits and the empirical reasons for their
powers as regulatory tools reviewing relevant literature and legislative framework
(Table 5.3). Further, in Chapter Seven, I provide detailed evidence about the uranium
approval process, including critical issues behind the government decision, the legal
issues around the State Agreement drawing from the context of legal doctrines and
gaining insights from the politics of resource development. In the second case study
I describe and explore the environmental effects of coal mining in the Collie Region,
including whether the existing regulation could manage adverse effects (e.g.
formation of pit lakes in abandoned mines (McCafferty, 2017; McCullough & Lund
(2016).
Nevertheless, case study research has inherent weaknesses. The main criticism
relates to the fact that it is based on loosely framed non-generalised theories. These
include: (a) biases involved in selecting the cases to be investigated; (b) informal
nature and lack of rigour in research design; (c) non-replicability and (d) subjective
conclusions (Achen and Snidal, 1989; Geddes, 2003, King, Keohene & Verba, 1994;
Lieberson, 1987). Examining the criticisms against case study research, Gerring
(2007, p.6) notes that it is “not necessarily against case studies per se”. The criticisms
against case study research can apply to any qualitative investigation. The strength
of case study research is that the ‘thick description’ (Mills, et al. 2010; Ponterotto,
2006) allowing users, including practitioners, policy makers or researchers to make
informed judgements about how relevant previous findings are to a set of
circumstances they face. Universal ethics and value system play a significant part in
this, but most importantly the collected and presented evidence can inform other
users about the applicability of the research findings.
128
|
Curtain
|
6.5.1 Selection of the sample
In selecting an appropriate sample size to conduct interviews, I had to overcome two
problems. First, there was no defined population, such as an electoral roll or white
pages, from which a sample could be selected. People knowledgeable and
experienced in environmental compliance related to mining operations are located
across different institutions and fields of activities. There is no publicly available list
of mining regulators or researchers in Australia, let alone in Western Australia, as the
questions required specific familiarity with this State. Second, determining the size
of the sample, that is the number of professionals to be interviewed, is a subjective
decision. According to Deming (1950), any sample which is not a probability sample
is a “judgement sample”. Given that a probability sample was not possible (as the
population size was unknown), a judgement sample inherently includes errors.
Nevertheless, Deming (1959, p. 11) points out that;
“It is more important to learn something about the biases of a judgment-sample
than about its sampling errors. The usefulness of data from judgment-samples
is judged by expert knowledge of the subject matter” (Deming, 1959, p.11).
To collect data for this study, I selected a ‘judgement sample’ representing a group of
research participants with expert knowledge on WA mining regulations. A summary
of the research participants and their positions is presented in Table 8.2. In selecting
a ‘judgement sample’, I used not only my knowledge of the literature on mining
regulations, but also the networks of contacts that I have developed through my public
service career in Perth, Western Australia. My primary goal was to find people who
had a corporate memory as well as an understanding and knowledge of the current
situation of the WA mining operations and associated issues. Concerning the number
of participants to be selected, also considering the required effort in transcribing a
large quantity of data, Adler and Adler (1997, p. 10) note:
“In sum, the number of people required to make an adequate sample for a
qualitative research project can vary from one to a hundred or more. However,
when considering the length of time this type of research often takes, the
difficulty of gaining entrée to even the most mundane group or setting, the
difficulty in transcribing thousands of hours of interviews, and the “publish or
perish” world in which we live, our best bet is to advise in the broad range of
between a dozen and 60” (ibid).
130
|
Curtain
|
A study on social sustainability issues related to mining in Western Australia (Petrova,
2012), used 14 key informants to collect data for her research. Furthermore, Hennink,
Kaiser & Marconi (2017) explain that data collection should occur until there is
saturation represented as; (a) a stable number of themes (or codes) with new
interviews—that is, no new themes are being generated, and (b) no new insights or
ideas appear. Consequently, the sample size was determined at 16, which falls within
the parameters of Adler and Adler (2007), and is compatible with previous studies
conducted on social sustainability using case study methods in Western Australia
(Petrova, 2012).
6.5.2 Ethical Considerations
This research was conducted following the policies and guidelines of the Curtin
University’s Human Research Ethics Committee. The National Health and Medical
Research Council’s (NHMRC) National Statement on Ethical Conduct in Human
Research (2007) was followed as a standard in dealing with the human research
participants throughout the journey of this research project.
All participants were given the right to withdraw from the interviews or from
participating in this research. No such requests were expressed or registered. The
data collected through the interviews and analysed for this study were anonymised to
maintain the privacy and confidentiality of the participants who openly and freely
expressed their views and opinions related to the questions. The data included in the
thesis is tagged using only the participant’s respective expertise and a number, for
example, academic #11 represents the opinion provided by an anonymous academic
research participant in this study (see Section 8.3).
The next section presents further details about the data collection throughout the
research process (see Figure 6.1). It describes the three data sets were generated
following the literature review, legal documentation and interviews.
6.6 Data collection
In any given research, the selection of a sample and data collection is a challenging
exercise (Cochran, 2007). Defining and understanding how data relates to the
different phases and methods employed in the investigation are important
methodological puzzles. Three types of data sets support the analysis of this research
project. First, an extensive literature review was carried out during this PhD study.
The literature reviewed covered issues such as the genesis, evolution of legislation,
131
|
Curtain
|
regulations and policies defining the WA MinReF, previous research, gaps and
deficiencies identified in the literature which helped to define the scope of the
research project. Peer-reviewed literature identifying the concepts of sustainable
development, mining sustainability, corporate social responsibility and social licence
to operate and related issues were also identified and reviewed. The literature review
also covered past and contemporary factors which guided the changes to legislation
and two mining reform agendas that fall within the timeline of this research. Vital
documents, such as annual reports of government agencies, policy papers, public
consultation papers and agency structures were also identified and reviewed. The
identified literature was processed and updated using EndNote maintaining a
reference list.
The second data set relates to the legislation and regulations analysed for two case
studies, and the conceptual framework of the project. The conceptual framework
includes all relevant State and Federal legislation, regulations, and policies come
under the WA MinReF. (see Table 5.2). Although the relevant legislation and
regulations represent published documents which sit outside of the mainstream
literature, they are considered a source of primary data (Library, University of New
South Wales, n.d., Coen, 2018). This is a standard approach in legal studies where
primary sources are defined including court decisions under case law and Acts of
Parliament for legislative inquiries (ibid). The identification and review of the
legislative documents helped to define not only the scope of this study but also the
legal framework examined in this PhD project including the two case studies. 23 The
third set of primary data for this research project was gathered using semi-structured
interviews from a selected group of informants. They represent regulators,
administrators, lawyers, independent researchers, academics, and former
bureaucrats who have worked in the agencies responsible for implementing
environmental legislation under the WA MinReF. All interviews were conducted face
to face. Each interview lasted approximately sixty minutes. The location was
selected to be convenient for the interviewee, and thirteen of the sixteen interviews
were conducted at the interviewee’s workplace, and other three in secured public
spaces. According to Nueman (2014, p. 347), “[f]ace-to-face interviews have the
highest response rates and permit the longest and interactive” opportunities to collect
23 There is a similarity between the case study and legal research concerning the applicability
of the findings. As the legal profession builds its cases on precedents, the users of case study
research decide the usefulness of its outcomes in comparison to the particular circumstances
they face.
132
|
Curtain
|
data. In order to achieve data saturation with the interview material, the collected
information had to be coded as soon as I got the transcripts typed. The coding of data
was done manually after unsatisfactory attempts to use the Nvivo software. Next
section provides further clarification.
6.6.1 Data coding
The qualitative data collected for this research project were analysed following a
structured approach to ensure quality and available richness to address the research
question and objectives adequately. I started coding the data in three phases:
preliminary—after the first four interviews were completed, mid-way, and after the
tenth interview was completed, and final— and at the end of all interviews. The coding
of data was based according to the framework proposed by Neuman (2014, see Table
6.3). It starts with open coding which assigns tentative labels to condense the
information into preliminary categories followed by axial coding which links the open
categories to create connections and analytical meaning. Finally, selective coding
allows the core variables or themes to be identified to support concept development.
Using a manual process, seven themes were produced as a result of the selective
coding exercise.
TABLE 6.3 DATA CODING CATEGORIES
CODING CATEGORY TASKS
Open “The first coding of qualitative data that examines the
data to condense them into preliminary analytic category
or code” (Nueman, 2014, p.481)
Axial “A second stage of coding during which the researcher
organizes the codes links them, and discover key
analytical categories” (ibid, p.482)
Selective “The last stage in coding qualitative data that examines
previous codes to identify and select data that will
support the conceptual coding categories that were
developed” (ibid, p.484).
(Source: Nueman, 2014, pp 481- 484)
133
|
Curtain
|
6.6.2 Limitation of computer software in analysing qualitative data
There is ample literature highlighting the importance of using qualitative software for
analysing qualitative data (e.g. Bazeley & Jackson, 2013; Miles et al. (1994).
However, in analysing the large quantity of qualitative data gathered for this research,
I found using computer software limiting and restrictive to extract some of the ‘value-
laden’ information with a significant portion of subjective elements. For example, the
software could not independently capture participants’ personal, professional,
philosophical and linguistic expressions behind certain verbally articulated views and
perceptions properly. My pilot experience in using Nvivo demonstrated the need to
go back often to search texts and put different keywords. I realised that it was critical
for me to go through every transcribed sentence and reflect on conversations also by
simultaneously listening to the taped voices repeatedly – any computer software is
unable to capture verbally expressed, and reflections as a human could do. In some
instances, listening to some parts of the conversations with the research participants’
voices brought back memories of the interviewee’s body language and non-verbal
gestures during the interviews. An example is an incident during my interview with a
senior regulator. During my interview seeking clarifications about State Agreements
and follow-up questions, I asked: “Why aren’t the SAs coming under the newly
introduced mining regulatory legislation; the MRF Act 2012?” The interviewee jumped
up from the chair and showed me the sign of victory using his hands. After the non-
verbal gesture, the regulator replied that he too had asked the same question from a
stakeholder in another agency highlighting the importance of asking questions on
mining rehabilitation of projects come under the State Agreements. A software
analysis cannot capture these kinds of interactions during data gathering through
reflections and extract particular chunks of qualitative data as an output. As this study
does not use quantitative methods, analysis and reflection of data extraction by
manual coding appeared productive and useful. Further, coding of qualitative data
by assigning numerical values would not have provided any meaningful insights.
Reflection during manual data coding also revealed a key feature of qualitative
research. For example, in disciplines, such as physics or chemistry, a researcher’s
findings could be validated in a laboratory anywhere in the world and could obtain the
same results. However, qualitative research enquiries involve people’s opinions and
attitudes which would vary in interpretation depending on the knowledge, values and
the professional training of the researcher, hence, interpreting the data beyond its
numeric representation is vital in qualitative research.
134
|
Curtain
|
The collected and coded data were analysed using content analysis. This is a
quantitative process which allows qualitative data to be used dependent on the intent
of the research (Denzin & Lincoln, 2018; Maier & Allen (2017). The following section
provides further explanation of content analysis.
6.7 Content Analysis
Concerning the content analysis, Maier and Allen (2017, p. 243) state:
“Scholars use content analysis to describe or explain communication; however,
content analysis cannot be used to predict cause-and-effect relationships.
While used as an approach to discover communication, content analysis can
be used in conjunction with other methods and is useful as a starting point for
understanding the effects of particular messages through other research
methodologies” (ibid).
Maier and Allen (2017) further explain that content analysis can be applied “in a wide
variety of contexts”. However, it is important to maintain objectivity, systematic
approach and generality (ibid) when using content analysis. The merits and demerits
of the content analysis are presented in Table 6.4.
In this study, while all precautions were taken to maintain objectivity in analysing the
qualitative data from 16 transcribed interviews (representing over 100,000 words), it
is important to emphasise that the data contains opinions, and the views of the
research participants are subjective. However, the participants’ responses on most
issues have been validated using the literature review undertaken for this study. One
example is the object and the legislative limitations of the Mining Act 1978 as a
regulatory tool to assure environmental protection. The data were collated supporting
the objectives of the research under a thematic framework. These findings are
presented with supporting data in the two case studies, and also in Chapters Eight.
135
|
Curtain
|
TABLE 6.4 MERITS AND DEMERITS OF CONTENT ANALYSIS AS A RESEARCH METHOD
Strengths Limitations Comments
A flexible method used by scholars and Subject to the design of questions, the Validation of questioners could address the limitation.
practitioners. research participants may not provide
the required data as they might provide
subjective responses..
Can be used to examine the manifest Subject to the content and the focus of Manifest content is the specific characteristics of the
or latent content of the communication, research questions. message itself, or what the interviewees say.
depending on the research
question. Manifest content is the
specific characteristics of meanings.
Describes communication Content analysis is a complex, time- Data gathered from research participants (n= 16) was
phenomenon consuming, and meticulous process. analysed under seven thematic frameworks.
Provides a systematic, quantitative “Content analysis also faces It is not always easy to obtain precise quantitative data if
examination of communicative challenges of generalizability; that is, unstructured interview techniques are used.
messages. sampling can be difficult for a variety of
reasons” (Maier & Allen, 2017).
Content analysis can be broadly used Non-availability of random sampling This feature can be applied to any discipline.
in a variety of different contexts. universe would provide biased data..
136
|
Curtain
|
6.8 Limitation of the research
The two case studies chosen for this research are not random samples. Western Australia
has over 1000 active mine sites, but there is no publicly available list as in telephone white
Pages or electoral voters’ list of these locations. It is not feasible to take a representative
sample of these sites randomly to evaluate how environmental compliance takes place at mine
sites. Thus, the judgement sample method was applied to produce some meaningful insights
and minimise errors. Their applicability, however, also depends on judgement based on
similarity and appropriateness.
Under the principles of sustainable developments (SD), the impact of mining could be
investigated using the three triple bottom lines of SD—environmental, economic and social.
However, this research study focussed only on the environmental sphere of the SD principles.
It was a deliberate decision given the complexity of the mining regulatory framework and the
existing research gaps identified through the literature review. Although all three aspects of
sustainability need to be integrated into any business operations, research can selectively aim
at providing an in-depth analysis by addressing only a particular aspect of SD, which is an
investigation into the environmental compliance as chosen for this research. In a previous
study on the sustainability aspects of mining in Western Australia, Petrova (2012) has
conducted research focusing on one aspect of sustainability principle, i.e. social sustainability.
This study focuses on the environmental regulatory compliance of two types of minerals,
namely the uranium and coal, also considering other relevant legislation that governs the
mining tenement, access to land and, and mining rehabilitation. Of the total of 64 State
Agreements (SAs) operating in WA at present, this study examined only three SAs. The SAs
also manage large iron ore projects in Western Australia’s Pilbara region, diamond and other
mineral extraction projects, and gas and petroleum across the State and offshores. The study
does not cover mining laws which regulate petroleum and gas industry or other minerals.
Therefore, the findings of this research cannot be universally applied to the overall
effectiveness of the WA MinReF that consists of over 100 legislation including the 64 SAs.
However, the methodology adopted and the findings of this research, and in particular, the
issues identified about the gaps and deficiencies of the MinReF would be useful to examine
other mining regulations in Australia and elsewhere.
138
|
Curtain
|
CHAPTER SEVEN TWO CASE STUDIES
7.1 Introduction
This chapter includes two case studies analysing the application of the relevant regulations
listed under the Mining Regulatory Framework (MinReF) of Western Australia (WA): the first
is the approval of the Yeelirrie uranium project, and the second, the operation of coal mines
in the Collie Region of South-West Australia. The analysis of the first case study is limited to
the approval of the Yeelirrie uranium mine by the then Environmental Minister, Albert Jacobs
on 12th January 2017 (Shepherd & Tomlin, 2017) with the operational phase of the mine yet
to commence (Cameco Australia, 2015). The second case study covers the life cycle
operation of the coal mines in Collie excluding the exploratory phase which was carried out in
the early 1880s. A standard operational definition of the life cycle of mining covers exploration,
operation, and mine closure (Hartman, and Mutmansk, 2002) typically. However, under the
influence of the sustainability principles, the mining industry has added a new dimension or
stage to the original definition called “reclamation” which is linked to the mine closure work.
Hartman and Mutmansk, (2002) define:
“The overall sequence of activities in modern mining is often compared with the five
stages in the life of mine: prospecting, exploration, development, exploitation, and
reclamation. Prospecting and exploration, precursors to actual mining, are linked and
sometimes combined. Geologists and mining engineers often share responsibility for
these two stages—geologists more involved with the former, mining engineers more
with the latter. Likewise, development and exploitation are closely related stages; they
are usually considered to constitute mining proper and are the main province of the
mining engineer… Closure and reclamation of the mine site has become a necessary
part of the mine life cycle because of the demands of society for a cleaner environment
and stricter laws regulating the abandonment of a mine” (Hartman, and Mutmansk,
2002, p.6).
Both case studies can be accommodated within the description espoused by Yin (2014).
According to him, a case study is “an empirical inquiry that investigates a contemporary
phenomenon (the ‘case’) in depth and within its real-world context” (Yin, 2014, p. 16). The
contemporary phenomenon on which I focus the first case study for this research is the
approval process of the Yeelirrie uranium mine with particular attention to the environmental
regulations under the MinReF (see Table 5.2). In this case study, I investigate how the
environmental protection conditions were considered during the approval process and
whether the current legislation on closure and reclamation plans applies to the Yeelirrie mine.
140
|
Curtain
|
Further, to the theoretical approaches espoused by Yin (2014 & 2018), I also draw from the
work of Creswell and Poth (2018) and Stake (1995 & 2006) to investigate and analyse this
case study. Concerning the ‘intention’ of the case study, Schramm, (1971) provides a useful
insight:
“The essence of a case study, the central tendency among all types of the case study,
is that it tries to luminate a decision or set of decisions: why they were taken, how they
were implemented, and with what results” (Yin, 2018, p.14, emphasis added).
The analysis of the uranium mine approval is an explorative case study to gain insights into a
set of circumstances. Three of the four uranium mines had already been approved under the
Western Australian Mining Act 1978 while the fourth approval for the Yeelirrie project was
granted under a State Agreement ratified in 1978 for a different company (Western Mining
Corporation). A second reason for selecting a uranium mine as a case study for this research
project is the widely available literature on the potential harmful effects on the environment
and people involved in the rehabilitation of the mining sites. For example, Mudd and Patterson
(2010, p. 1) provide an analysis of “an internationally important case study on environmental
pollution from and rehabilitation of … the Rum Jungle mining project” which is a uranium mine
located 100 kilometres south of Darwin. They review the Rum Jungle case “followed by a
critical evaluation of monitoring data and pollution loads prior to and after rehabilitation –
leading to the conclusion that rehabilitation has clearly failed the test of time after just two
decades” (ibid). Based on the evidence and work of Mudd and Patterson (2010), it is important
to consider whether during the approval process, the mine closure plans of the Yeelirrie project
have been considered and how they are going to be implemented.
This uranium case study also reviews the legal ownership issues surrounding the Yeelirrie
project, the environmental impact assessment (EIA) submitted by the current tenement holder
– Cameco, and the previous EIAs submitted by the former owners – Western Mining
Corporation (WMC) and Broken Hill Proprietary (BHPB). The time span of the approval
process covers a period from 1978 to 2018.
The second case study is an examination of the legislation focusing on the environmental
regulations of two State Agreements (SAs) that is used to manage the coal mining in Collie
Region in South-West Australia.
141
|
Curtain
|
7.2 The Yeelirrie case study
The objective of this case study is to gain insights into the implementation of regulations on
the environmental compliance of the Yeelirrie project. Foremost, it is essential to identify the
nature of the mineral uranium. According to the World Nuclear Association (n.d.), “[u]ranium
is a naturally occurring element with an average concentration of 2.8 parts per million in the
Earth's crust [and is] used almost entirely for [generating] electricity, a small proportion is used
for the important task of producing medical isotopes”. Uranium has been mined in Australia
since the middle of the 20th century (Lanzen, 2008). During the 1930s, uranium was mined
at Radium Hill and Mount Painter in South Australia to extract radium, solely for medical
purposes, and as a result “a few hundred kilograms of uranium were produced (World Nuclear
Org. 2017). The “Yeelirrie deposit is the largest known uranium deposit in WA” (Cameco
Australia, 2015, p. xxi). According to the World Nuclear Association, 29% of the known world
uranium deposits are located in Australia (World Nuclear Association. 2016). Moreover,
Australia is considered the third largest uranium ore producer in the world (Cameco Australia,
2015). In 2014 -15, the country exported 5,515 tonnes of uranium oxide concentrate (valued
at $532 million) with South Australia producing more than 70% of this commodity (DMP, n.d.
para thirteen). In February 2014, it was estimated that 226,000 tonnes of uranium deposits
are on the territory of Western Australia (DMP, n.d. para thirteen).
7.2.1 Yeelirrie uranium deposit
An Australian Parliament document (2009) describes the Yeelirrie uranium deposit as follows:
“The Yeelirrie uranium deposit is [located] between Wiluna and Leinster… about 500
kms north of Kalgoorlie and close to the Goldfields gas pipeline (See Map 7.1). Access
by road to the proposed mine site is about 1040 kms from Perth. Land use in the region
is rangeland pastoralism, with homesteads around 30 km apart” (Australian Parliament,
27 November 2009, para eight).
Yeelirrie’s location is in a sparsely populated area with the nearest settlements being
Sandstone (population 89) and Wiluna (population 720) (ABS, 2016). This is considered
one of Australia's largest undeveloped uranium deposits (Cameco Australia, 2015). It
“contains about 52,000 tonnes of uranium oxide (U O ) and would sustain an annual
3 8
production of 5000 tonnes U O (yellow cake) for at least 10 years” (Needham, 2009. para
3 8
three). The deposit extends over 9 km, is up to 1.5 km wide, up to 7 m thick and has an
142
|
Curtain
|
MAP 7.2 - DESCRIPTION OF YEELIRRIE URANIUM DEPOSITS
(Source: McKay & Miezitis: Geoscience Australia, 2001, Mineral Resource Report 1)
When the Cameco’s Yeelirrie project commences, the plan is to “involve a 9 km open-pit mine,
clearing 2421 ha of native vegetation and generating 36 million tonnes of potentially
radioactive mine waste to be stored in open pits” (Cameco, 2115; Mckinnon, 8 February 2018,
para seventeen). The then Environment Minister, Albert Jacob granted the environmental
approval of the mine against the recommendation of the Environmental Protection Agency of
WA. This approval was met with strong opposition by environmental groups, including the
Conservation Council of Western Australia, which were concerned about radioactive
contamination and the extinction risk of subterranean stygofauna species endemic to the area
(McKinnon, 2018). Although the current Yeelirrie uranium project received approval in
January 2017 as a new mine site, it has over 40-year history going back to 1972 when the
deposit was discovered by the Western Mining Corporation (Needham, 2009), which secured
a licence for exploration. The mining tenement for the Yeelirrie project was granted under the
old Mining Act 1904 (Hunt, Kavenagh & Hunt, 2015, p.10).
The following sections identify the history, ownership changes, amendments to the legislation
and past environmental approval of the Yeelirrie mine, and analyse the legal issues
144
|
Curtain
|
surrounding the project and the environmental regulations embodied in the mining regulatory
framework.
7.2.2 History, ownership changes, amendments to the legislation and past
environmental approval 1978 – 2016
Yeelirrie is a pastoral station on Western Australian crown land where deposits were
discovered by Western Mining Corporation (WMC) in 1972 (Needham, 2009). The history of
the Yeelirrie project and key events on its timelines between 1972 and 2016 are listed in Table
7.1.
TABLE 7 1 TIMELINE OF THE YEELIRRIE URANIUM MINE, 1972 – 2017
1972 Western Mining Corporation (WMC) discovered the Yeelirrie uranium
deposits in Western Australia. Subsequently, WMC submitted a
proposal for approval to mine with Environmental Impact Statement
(EIS) and subsequently an Environmental Review and Management
Programme (ERMP) (Needham, 2009).
1972- WMC carried out several exploration activities and three trial uranium
1980 exploration programs at Yeelirrie (ibid)
1978 The WA Liberal government under the leadership of Charles Court
(Dec) ratified the Uranium (Yeelirrie) Agreement Act 1978 “to facilitate the
construction of a uranium and vanadium treatment plant at Yeelirrie with
a capacity of 1.21 million tonnes a year to produce uranium oxide.” (WA
Parliament, Hansard, 1978, para 2).
1978 Urangesellschaft Australia Pty Ltd made a $3 million offer to WMC and
bought 10 per cent of the project.
1978 Esso was granted 15 per cent equity of the deposit for a commitment to
80 per cent of funds (at $21 million) for the proposed a feasibility study
(Stage I), and a pilot plant (Needham, 2009).
1978 WMC and its partners (including Esso) invested a total of $35 million for
preparatory work including building and operating a pilot metallurgical
plant to produce uranium ore as yellow cake25 (ibid).
25 “Yellowcake is milled uranium oxide, known to chemists as U 3O 8. When uranium ore comes out of
the mine, it actually contains fairly little of the precious radioactive element” (Koerner, 2003, para two).
145
|
Curtain
|
2004 Minister Brown announced in the Parliament “the intention of the State
(March) and WMC Resources Ltd to end the only State Agreement in Western
Australia for the mining of uranium.”27 (Parliament of Western Australia:
Hansard, 2004),
2005 WMC ownership was passed onto BHP Billiton Ltd due to company
takeover (Cameco, 2015).
2009 WA Liberal-National coalition government lifted the embargo on
uranium mining in Western Australia
2009 BHP Billiton submitted to the then Federal Minister for the Environment
(May) for a determination of Yeelirrie mining under the Environment Protection
Biodiversity and Conservation Act (EPBC Act) on 22 May 2009
(Needham, 2009, p.1).
2009 The (Federal) Department of Environment determined the Yeelirrie
(June) mine proposal be considered as a project of ‘national environmental
significance’ on 19 June 2009 under the EPBC Act (ibid).
2012 Cameco, a company based in Saskatoon, Canada acquired the
(Dec) Yeelirrie mine from BHP Billiton for US$ 430 million (Cameco, 2012).
2016 The Yeelirrie uranium mine was approved by Albert Jacobs (former)
(Jan) Minister of Environment (Shepherd & Tomlin, 2017).
2017 The McGowan Labor Government announced its policy on uranium
(June) mining cancelling the approval of new mines (Government of WA:
Media Statements, 2017).
(Sources: Government of Australia: Media Statements, 2004 & 2017; Australian
Academy of Science, 2009; Needham, 2009; WA Parliament: Hansard, 1978, 2004;
Cameco Australia, 2015; Shepherd & Tomlin, 2017, www,aph.gov,au).
Having carried out extensive uranium exploration with the assistance of two foreign
companies, namely Urangesellschaft Australia Pty Ltd and Esso Ltd, WMC sold the ownership
of all its Australian projects, including that of Yeelirrie, to BHP Billiton (BHPB) in 2005. In
December 2012, the Canadian company Cameco acquired 100% ownership of the Yeelirrie
project from BHPB (Cameco Australia, 2015, p. xix).
27 Despite the Government Media Release (31 March 2004) and the Minister Brown’s statement in the
Parliament, the Uranium (Yeelirrie) Agreement Act 1978 was never revoked. It is still listed as an
active agreement as reported to the Parliament as stated in the annual report in 2017-2018 published
by the Department of Jobs, Tourism, Science and Innovation.
147
|
Curtain
|
Before Cameco’s takeover of the Yeelirrie ownership, several important milestones about the
project had taken place under its previous owners, including testing the quality of the uranium
ore in a laboratory in Kalgoorlie (Needham, 2009). The most important milestone, however,
is the project receiving approval under its first owner – WMC, under a State Agreement titled
Uranium (Yeelirrie) Agreement Act 1978 (hereafter referred to as the Yeelirrie Act). The
genesis and issues relating to SAs were listed and discussed in Chapter Five (Section 5.5).
However, it is essential to examine the regulatory clauses embodied in the Yeelirrie Act
including its environmental management and protection conditions.
7.2.3 The Uranium (Yeelirrie) Agreement Act
This section provides a review of the Uranium (Yeelirrie) Agreement Act (hereafter Yeelirrie
Act), its objectives, special conditions granted to the proponent and environmental regulations
embodied in it.
The Yeelirrie Act is a State Agreement (SA) and was ratified in the Parliament in 1979:
“to facilitate the construction of a uranium and vanadium treatment plant at Yeelirrie with
a capacity of 1.21 million tonnes a year to produce uranium oxide” (WA Parliament,
Hansard, 1978, para 2).
The most noteworthy issue about the approval of the Yeelirrie Act is that it received both the
exploration licence and the mining tenement under the Mining Act 1904 which is now obsolete
(Hunt et al. 2015, p. 10). Moreover, in the last amendment to the Yeelirrie Act in 1982, the
current Mining Act 1978 was substituted, but still it poses questions about the validity of the
Agreement (ibid).
It is important to identify some of the special conditions granted to the WMC under the Yeelirrie
Act. A summary of these issues is listed in Table 7.2. It highlights special conditions granted
under the Yeelirrie Act and offered to the proponent. These clauses confirm a special feature
of State Agreements (SAs) as during the contract negotiation process any conditions agreed
by two parties could include in the contract. (Hillman, 2006; Southalan, 2016). Similar
features can be observed in the other 64 SAs which are currently valid in WA (see Table 5.3).
148
|
Curtain
|
TABLE 7.2 A SAMPLE OF SPECIAL CONDITIONS UNDER THE YEELIRRIE ACT
SPECIAL CONDITIONS GRANTED & RATIFIED UNDER THE ACT REFERENCES
“The Corporation [WMC] intends to establish a metallurgical Schedule (b) of
research plant at Kalgoorlie at a cost in excess of $7 million and the Agreement.
under a programme estimated to cost approximately $6 million to
test such ore.”
“The Corporation is currently investigating the economic feasibility of Schedule (c)
constructing a uranium and vanadium treatment plant at Yeelirrie
with a capacity to treat 1.21 million tonnes of ore per year to produce
uranium oxide (yellow-cake) and vanadium oxide (red-cake) for
export through a port or ports in Western Australia.”
“The Corporation has in respect of both the proposed metallurgical Schedule (e)
research plant and the uranium-vanadium treatment plant submitted
environmental review and management programmes to the State for
consideration.”
“The provisions of the Mining Act shall be deemed to be Section 5 (3)
modified to permit the creation of the temporary reserve under
subclause (1) of this Clause.”
“The Corporation may with the prior approval of the research State Section 7(1)
(sic) construct a metallurgical research plant at Kalgoorlie plant to
test ore and to have such plant in operation by 30th June 1982.”
“For the purposes of the construction and operation of the Section 7 (2)
metallurgical research plant referred …
(a) special lease under the Land Act [1933] of land at a site to be
agreed for the said plant;
(b) a pipeline easement for water over a route to be agreed from
Addis Street Kalgoorlie to the said plant; (c) “a powerline easement
over a route to be agreed to connect with the Corporation's existing
Great Boulder-Scotia powerline and the said plant.”
“a special lease under the Land Act of land at a site to be agreed for Section 2 (a)
the said plant…”
(Source: Uranium (Yeelirrie Act), emphasis added).
149
|
Curtain
|
Under section 8 (n) of the Yeelirrie Act, the proponent is also required to submit “an
environmental management programme” as a measure in respect of its commitment under
the Agreement (Act). However, the Agreement does not specify the scope or any conditions
of this environment management plan. The Yeelirrie Act also addresses matters about the
provisions of water supply and the proponent’s obligations for securing water resources
(Yeelirrie Act, Section 5 -16). Supplying water, including marketing of the water back to the
State, is subject to the proponent’s finding adequate underground or nearby water resources
(Yeelirrie Act: Section 5 – 16).
The SAs do not come under the jurisdiction of the Mining Act (except for granting the mining
tenements) or any other legislation unless they are explicitly included in the Agreement
(Southland, 2016; Hillman, 2006). There are two critical aspects of the ratification of the
Yeelirrie Act (as well as any other State Agreement). First, once a SA is ratified, the
compliance is only limited to the conditions included in the Agreement (similar to any other
commercial contract). Table 7.2 lists the conditions and exemptions granted under the
Yeelirrie Act for the proponent (WMC), under the Mining Act 1904 and the Land Act 1936.
Secondly, unless there are specific clauses in a SA and once they are ratified in the
Parliament, a proponent is not legally bound to carry out any other tasks, including
environmental protection plans, unless they are included as conditions in the SA.
As the focus of this research project is about environmental regulations in WA, it is essential
to examine the mine closure and other environmental (protection) clauses in the Yeelirrie Act.
Concerning the natural environment, an important clause is included in Section eight of the
Yeelirrie Act as follows:
“Corporation [WMC] to submit Proposals
8. (1) On or before the 31st December, 1982 (or thereafter within such extended
time as the Minister may allow as hereinafter provided) and subject to the provisions of
this Agreement the Corporation shall submit to the Minister (having due regard where
applicable to the environmental review and management programmes previously
submitted by the Corporation and the State’s responses thereto) to the fullest extent
reasonably practicable its detailed proposals (which proposals shall include plans where
practicable and specifications where reasonably required by the Minister) for a mining and
treatment project with a capacity to treat 1.21 million tonnes of ore per year or such other
tonnage as the Minister may approve and the transport and shipment through a port or
ports within the said State…” (Yeelirrie Act 1978, pp 11-12).
150
|
Curtain
|
Concerning environmental protection, the company’s obligation under the Yeelirrie Act is limited
to submitting a proposal “to the fullest extent reasonably practicable…”. This clause does not
bind the proponent to implement an environmental management plan nor submit a financial
bond or penalty for failure to fulfil their environmental management plan. Further, defaulting the
above clauses does not impose any penalties as any such penalty clauses are not incorporated
in the Yeelirrie Act. It is important to recognise that the original leaseholder of the Yeelirrie
project, WMC did follow the above clauses of the Yeelirrie Act, and submitted an EIA which was
approved by both the WA and Federal governments (See Table 7.2).
The conditions relating to environmental management are stipulated in the First Schedule of the
of the Yeelirrie Act and stated in section (d) and (e) as follows:
(d) The Corporation intends to provide facilities and services necessary for the
accommodation, health, safety and welfare of its workforce and to take adequate
measures to safeguard the public and the environment in its operation under this
Agreement.
(e) The Corporation has in respect of both the proposed metallurgical research plant
and the uranium-vanadium treatment plant submitted environmental review and
management programmes to the State for consideration (Yeelirrie Act 1978:
Schedule (D) & (E).
There are a few other references to environmental conditions in Section 41 of the Yeelirrie
Act, but they do not provide any assurance of environmental protection, such as preserving
biodiversity or prevention of polluting underground water resources with the radioactive waste
material (tailings). It is important to note that issues such as biodiversity and protection of the
underground water have been identified in the 2015 Environmental Impact Study (EIS)
proposal submitted by the current proponent Cameco for public environmental review (PER)
(Cameco, Australia, 2015). However, as these new environmental conditions included in the
EIS have not been incorporated and ratified in the Yeelirrie Act, hence, the new proponent is
not legally bound to address any of the issues that are not in the Act.
Section 41 of the Yeelirrie Act includes an environmental clause which is the only reference
concerning the protection of the environment:
“Nothing in this Agreement shall be construed to exempt the Corporation from compliance
with any requirement in connection with the protection of the environment arising out of or
151
|
Curtain
|
incidental to the operations of the Corporation hereunder that may be made by the State
or any State agency or instrumentality or any local or other authority or statutory body of
the State pursuant to any Act for the time being in force” (Yeelirrie Act 1978, p.56).
However, whether the new proponent Cameco is bound to carry out these environmental
management tasks is questionable as the new ownership of the project has not been added
and ratified in the Parliament yet. Thus, a question arises whether the new proponent,
Cameco is legally liable and bound to carry out the tasks enlisted in Section 41 of the Yeelirrie
Act. In a legal context, as the Yeelirrie Act still carrying the name of the first proponent (WMC),
raises the validity of the approval process (Yeelirrie Act, 1978, p.1). To further review the
validity of the Yeelirrie mine approval under the new proponent (Cameco), the next section
identifies the amendments made to the Yeelirrie Act since its enactment in 1978.
7.2.4 Amendments to the Yeelirrie Act
The only amendments appear in the original Agreement are the changes made in 1982 to
include adding the names of two foreign companies that became partners of the WMC. These
amendments made to the changes were incorporated into the Yeelirrie Act in 1982 which
appear to be the only changes ratified and incorporated into the Act since 1978 (see Table
7.3).
152
|
Curtain
|
TABLE 7.3 AMENDMENTS TO THE YEELIRRIE STATE AGREEMENT ACT 1978
Uranium (Yeelirrie) Agreement Act 1978
Portfolio: Minister for State Development, Jobs and Trade
The Legislation The Year Date of Date
(Act) and the Act Ratification receiving the
no approval of
the Governor
Uranium(Yeelirrie) 1978/110 12 Dec 1978 12 Dec
Agreement Act 1978t 1978
Uranium (Yeelirrie) 1982/040 27 May 1982 27 May
Agreement Amendment 1982
Act 1982
(This is the amendment
that relates to the WMC’s
partnership with two other
companies).
(Source: www.legislation.wa.gov.au)
The information in Table 7.3 shows only three amendments to the Yeelirrie Act with no
references to any amendments made after 1982. Under the WMC ownership, there was trial
mining at Yeelirrie until 1983 when the Australian Labor Government implemented its three
mines policy. As a result, the WMC had to stop the mining and place the project under
maintenance and care:
“Trial mining commenced, and ore was extracted from three excavation pits. Between
1980 and 1982, ore was sent to the Kalgoorlie Research Plant (pilot metallurgical plant)
for processing test work. The Project was placed on monitored care and maintenance
in 1984 after the newly elected Australian Labor Government implemented its three
mines policy in 1983 and the Western Australian Government assumed an anti-uranium
position in the same year. Monitored care and maintenance allowed for WMC to
undertake, inspect and maintain rehabilitation of already disturbed areas” (Cameco,
2015, p.7).
153
|
Curtain
|
Before the ownership of the Yeelirrie project being transferred from WMC to BHPB, there were
legal issues, including a government decision to revoke the Yeelirrie Act due to WMC
terminating the mining project. The next section outlines and provides a discussion of these
legal issues.
7.2.5 Legal issues about the ownership of the Yeelirrie Project
When WMC ceased exploratory activities at Yeelirrie, the company consented to terminate
the Yeelirrie Act (Government of Western Australia: Media Statement. 31 March 2004. Para
1- 4). The then Minister for Mines of the State Labor Government issued a media statement
on 24 March 2004 that the Yeelirrie Act would be revoked:
“The Gallop Government and WMC Resources have reached an agreement to
terminate the Uranium (Yeelirrie) Agreement Act 1978, which is the only State
Agreement in Western Australia related to the mining of uranium.
The termination of the agreement will also see the rehabilitation of the Yeelirrie
uranium project, located south of Wiluna, completed this year.
The rehabilitation will go ahead following the approval of WMC Resources’
rehabilitation program by the State Mining Engineer.
State Development Minister Clive Brown said he had been advised by WMC
Resources, the holder of the Yeelirrie tenements, that tender documents for the
rehabilitation work were currently being finalised.”
(Source: Government of Western Australia: Medial Statement, 31 March 2004).
On the same day – 31 March 2004, the termination of the Yeelirrie Act was announced in the
Parliament. A member of the then opposition party asked a question from the then Minister
of Mines about the termination of the Yeelirrie Act. The Hansard records of the Minister’s
response as follows:
“Mr C.M. BROWN replied: I was pleased to issue a media release indicating that it is the
intention of the State and WMC Resources Ltd to end the only state agreement in
Western Australia for the mining of uranium. This state agreement was legislated by the
former Liberal Government of Sir Charles Court in 1978 to facilitate the construction of
a uranium and vanadium treatment plant at Yeelirrie with a capacity of 1.21 million
tonnes a year to produce uranium oxide or yellowcake as it is known. The Government’s
154
|
Curtain
|
policy is one of opposing uranium mining. That has been the Government’s policy
throughout. We are very pleased that we have been able to work with WMC Resources
Ltd in implementing our policy through this measure. WMC Resources has a company
view about uranium, but that does not coincide with the Government’s view. The
company has been working cooperatively in implementing government policy, and for
that, we are very grateful indeed. It indicates firmly that the Western Australian
Government is able to implement its policy through rational discussion with industry, by
talking straight and directly with the company and by talking about outcomes that I
believe will have a benefit for the State as a whole. The final nature of the agreement
between WMC Resources and the State will be ratified later this year, but I am very
pleased to be able to flag at this time that this agreement will end later this year”
(Parliament of Western Australia- Hansard. 31 March 2004. p.1380).
However, the Gallop Labor Government’s decision to revoke the Yeelirrie Act was never
followed up, and there are no public records available to the reason for this inaction. The
Annual Report 2016 - 2017 of the Department of Jobs, Tourism, Science and Innovation
(formerly Department of State Development), the agency responsible for managing all projects
under SAs, lists the Yeelirrie Act as an active Agreement (a list of all valid 64 SAs including
the Yeelirrie Act is in Table 5.3). There are no records available either in the Hansard or any
other documents why Yeelirrie Act was never revoked despite the March 2004 Labor
Government’s policy decision to revoke the Act.
Some plausible explanations for this inaction are: (a) flaw in overall project monitoring process
of State Agreements; (b) inefficient bureaucratic structure in managing State Agreements; 28
(c) lack of governance about the overall resource project management including SAs due to
the absence of a whole-of-government resource management policy; and (d) a combination
of (a), (b) and (c).29 A research participant provided a legal perspective attributing this inaction
to lack of transparency due to ignoring the rule of law:
28 The WA Auditor General states that the project management of the SAs is weak. (WAAG, 2004).
See section 5.7 in Chapter Five. The current practice of reporting the State Agreement is limited to
provide a list of active SAs in the DJTSI’s Annual Reports.
29 It is important to note here that the responsibility of the State Agreements come under an important
portfolio of State Development Department (DJTSI) that usually come under the Head of the State
(Premier) of Western Australia.
155
|
Curtain
|
“I was amazed by it, but I am not. Because it goes to – if I draw it back to the rule of law
issue; the Rule of Law is not just simply about the fact that everyone is subject to the
same law. That is what it is about in very simple terms, but it is also about the institutions
of government actually going forward and doing things. And, if there are decisions that
are made in Parliament or if there are State Agreements made in Parliament, obviously
it is then left to government departments to operationalise”.
(Research Participant # 4: Academic/Lawyer).
Although the reasons are unclear, the Yeelirrie Act has never been revoked. In 2005, the
WMC ownership of the Yeelirrie project was passed onto BHP Billiton Ltd (BHPB) due to
company takeovers (Long, 2005). No mining operations were commenced by BHPB. Seven
years later, in 2012, Cameco—a world-renowned company specialised in uranium based in
Saskatoon, Canada, acquired the Yeelirrie project form BHP Billiton for US$ 430 million
(Cameco Australia, 2015; DMP, 2017, para 8).
The current Yeelirrie deposit owners, Cameco states that the operation of the project would
be continued under the Yeelirrie Act. However, they do not refer to the Yeelirrie Act as the
key legal framework, and their interpretation of the Agreement is different to the regulatory
clauses identified in section 7.2.3 of this chapter Referring to the Yeelirrie Act, Cameco states:
“State Agreements specify the rights, obligations, terms and conditions for the
development of a project and establish a framework for ongoing relations and
cooperation between the State and the Project proponent” (Cameco Australia, 2015, p.
25).
Cameco’s project description concerning the Yeelirrie Act is different from the conditions and
the object of the Yeelirrie Act identified in section 7.2.3. Cameco’s website provides an
overview of their project goals as follows:
“At our Yeelirrie project, in 2016:
• we continued to assess the technical, environmental and financial aspects of
the project
• the Western Australian government granted state environmental approval,
subject to a range of conditions that are considered implementable. We
continue to advance the project through the federal environmental assessment
process.
156
|
Curtain
|
• the term of the Yeelirrie State Agreement was extended for a period of 10
years. We now have until 2028 to submit the required mine development and
infrastructure proposal to the Western Australian government” (Camaco.com.
n.d).
However, in accordance with the Project Proposal (PER, 2015) submitted by Cameco for
public review, the company provides a different narrative about the intended mine which is
about the next phase of project life cycle:
“Cameco is proposing to develop the Project, which comprises a uranium mine and
associated treatment facilities... Ore would be mined from shallow pits using open cut
techniques. The ore would be processed using alkaline leaching, including the following
steps: comminution via SAG milling, atmospheric alkaline leaching, counter-current
decantation (CCD), followed by direct precipitation of uranium oxide concentrate (UOC),
product drying and packaging.
The current reported resource estimate … is 127.3 million pounds (Mlbs) (57,742
tonnes) (measured and indicated) with an average grade of U3 O8 of 0.16% or 1,600
ppm. Over the anticipated 19-year life of the Project, it will produce an estimated 106
Mlbs (48,081 tonnes) of U3 O8 -based UOC for export.
The UOC would be transported by road from the mine site to the Port of Adelaide, South
Australia, via the Goldfields Highway, and the Eyre Highway. This environmental
assessment covers all transport within Western Australia. Transport within South
Australia will be the subject of a separate assessment and approvals processes”
(Cameco Australia, 2015, p. xx).
The claim by the current proponent Cameco that the project has been approved under the
Yeelirrie Act is questionable as there is no reference of such in the amendments to the original
1978 Act at the time of writing (August 2018). The reason being the Yeelirrie Act has not been
duly amended, hence the approval of the Yeelirrie mine may not be valid. The Cameco’s
claim that the 1978 Agreement has been “extended for a period of 10 years” enabling the
company to “submit the required mine development and infrastructure proposal to the Western
Australian government until 2028”. Cameco's public statement cannot be validated as neither
legislation nor agency documents available in public space. Further, there are no references
to the tenure of the project appear in the PER submitted by the proponent (Cameco. Australia,
2015), which is now available in the website of the Department of Water and Environmental
157
|
Curtain
|
Regulations. The Yeelirrie Act was ratified in the WA Parliament on 1 November 1978 stating
its lifetime as 21 years “with the right to renew the same from time to time for further periods
each of twenty-one (21) years” (Yeelirrie Act, p.27). The sections 3 and 3A of the Act (p.1)
explicitly state that any variations of the Agreement must be ratified to be an authoried
amendment. Had there been any variation either to the tenure or any other conditions of the
original Agreement, the changes should have been ratified and recorded as was the case in
the Uranium (Yeelirrie) Agreement Amendment Act 1982. According to the WA government’s
open access database which maintains all WA legislation (Acts and all amendments to
legislation). According to current legislation, the last amendments to the Yeelirrie Act was
made and duly reflected in the Uranium (Yeelirrie) Agreement Amendment Act 1982 (see
Table 7.3).
Any State Agreements and the amendments, similar to any other WA legislation should be
ratified in the Parliament. The new contractual conditions therein become law, the mutually
agreed contract should be ratified in the Parliament as a special Act. (Hillton, 2006; Southalan,
2016). Further, any amendments to a SA should be recorded in the Hansard after the
ratification, and then the changes to the original Agreement would be recorded in the WA open
access legal repository as a standard procedure.
If this alleged extension of the Agreement as claimed by Cameco, until 2028, then it should
appear as an amendment to the Yeelirrie Act. However, no such changes to the Yeelirrie Act
do not exist in the WA legal repository records after the 1982 amendment to the original Act.
Thus, Cameco’s public declaration about the validity of the Yeelirrie Act, and its extension until
2018 is contestable as these alleged changes to the Act have not been duly ratified. There is
no documentary evidence that the Yeelirrie Act has been extended until 2028, nor have any
changes to the ownership as the original proponent been made. The name WMC is still
appearing as the proponent in the Yeelirrie Act. In other words, the status of the Yeelirrie Act
as it is appearing today is still recorded under the first owner of the project, namely WMC. The
statement about the change of the project owner, and the transfer is in the public space
(Cameco Australia, 2015). However, any such statements are not legally valid until the new
ownership changes are ratified through a new amendment of the Act representing the
ownership changes.
No empirical evidence is available for any such amendments in the official legislative
repositories of WA and Federal open access databases, namely the WA State Law Publishers
and Federal AusLit legal database (Department of Premier and Cabinet: Online publications
& classic.austlii.edu.au/au/wa). The referred data repositories maintain all legislation including
158
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.