University
stringclasses 19
values | Text
stringlengths 458
20.7k
|
|---|---|
Curtain
|
all State legislation and amendments, including the history of amendments to current and
repealed legislation. Table 7.3 provides a history of the amendments to the Yeelirrie Act based
on the information gathered and verified from the open access legal databases.
The mine’s ownership and the legal status of the Yeelirrie Act is relevant to this study. If there
is no valid legal status of the Act, any company or corporation that owns the Yeelirrie project
at present or in future is not bound to carry out any work or comply with mine closure or
rehabilitation work. The importance of having a mandatory legal framework for environmental
compliance is of vital Importance as the core value of any mining company is to make profits.
A research participant articulated this point as follows:
“Mining companies are designed to make a profit. That’s what they’re there for. So,
production at a profitable price is what they want to do – cost and price. So, that’s what
mining companies are there to do, and regulators are there to make sure they do it within
certain bounds and certain boundaries – so it’s not surprising that they’re two different
cultures, because one is there as a business, one is there as a regulator. That’s why we
have regulation. That’s why we regulate capitalism. That’s why we regulate companies.
It’s no surprise to say that the miners – and it’s no crime if the miners are there trying to
make a profit. Obviously, they’ve got to do it within the law.” (Participant no. 9,
Academic).
In this context, it is important to review the uranium regulatory frameworks of the Federal and
State governments and whether both Federal and State regulations ensure environmental
protection while authorising mining companies to make profits within the law.
159
|
Curtain
|
7.2.6 Uranium regulatory frameworks - Federal and State Government’s discourses
Before discussing the uranium regulatory framework in WA, it is important to examine the
Federal government’s framework, together with the discourses focusing the philosophy and
approaches to uranium mining. According to the Federal Government:
“Australia has a leadership role in ensuring the sustainable development and
responsible use of this globally important energy resource. Consequently, the
Australian Government’s policy is that uranium exploration and mining will only be
approved subject to stringent environmental and safety requirements in line with
world’s best practice.” (Australian Government: Department of Industry, Innovation
and Science, n.d.) para 3). (emphasis added)
Hunt (2009) enumerates the legislative framework which needs to be considered in approving
uranium mining and transporting the uranium ore (yellow cake) across Australia. Table 7.4
lists various State, and Federal legislation that need to be considered in uranium approval,
production and transportation across Australia, hence applicable to WA uranium mining and
transportation as well. As uranium production and transportation work in WA has not yet
commenced, the only relevant Federal legislation for this case study is the EPBC Act.
TABLE 7.4 FEDERAL LEGISLATION OF URANIUM APPROVAL, PRODUCTION AND
TRANSPORTATION
Legislation Object
Environmental Protection and The EPBC Act applies to manage any project with
Biodiversity Act 1999 (EPBC Act) a significant environmental component.
Atomic Energy Act 1953 (Cth) s35 Under section 35 of the Atomic Energy Act 1953
prescribed that mineral substances (uranium) in
the Northern Territory be declared to be the
property of the Commonwealth.
Environmental Protection (Nuclear This Act was enacted to regulate the industry
Codes Act 1978 (Cth) s12(10)
Environmental Protection (Impact of This Act led to the Commonwealth Ranger
Proposal Act 1974 (Cth) Uranium Enquiry.
(Sources: Hunt 2009 & the Federal Acts listed above)
160
|
Curtain
|
The WA legislative framework on uranium mine approval is of particular interest. As described
by the Western Australian Government (WAG) and listed on the agency’s website under the
header “Uranium” is described under seven categories (Table 7.5). They range from uranium
mining in WA to information on radiation.
TABLE 7.5 WESTERN AUSTRALIAN GOVERNMENT’S DESCRIPTION ON
URANIUM
• Uranium mining in Western Australia
• Current projects
• Uranium mining and production
• Safety and uranium mining
• Transporting uranium
• Environmental impacts
• Information on radiation
(Source: DMP, 2017)
There is no specific reference to a legislative framework on uranium in WA. However, the
literature review revealed the reference to legislation and regulations listed in a DMP
publication titled Guide to Uranium in Western Australia. Based on the content of publication,
it appears to be a document prepared for potential investors.30 In my analysis, there are
several legislation and regulations need to be considered for uranium mining regulatory
framework in WA, and they are listed in Table 7.6. However, it is important to note that except
one legislation, all other legislation therein have been enacted after the Yeelirrie Act was
ratified in 1978.
30 It is important to note the title of the document as listed in the DMP website with the words
“Investors-Uranium_WesternAustralia_Guide.pdf” suggest the document is meant for investment and
not the Uranium Regulatory Framework of WA. Source:
http://www.dmp.wa.gov.au/Documents/Investors/Investors-Uranium_WesternAustralia_Guide.pdf
161
|
Curtain
|
TABLE 7.6 .URANIUM REGULATORY FRAMEWORK: WESTERN AUSTRALIA
ACTIVITY/LEGISLATION DESCRIPTION
Yeelirrie (uranium) The key legislation under which conditions and
Agreement Act 1978 operation were approved in 1978. The mining
tenements for the Yeelirrie project was approved
under the Mining Act 1904. (Hunt et al. 2015, p.10).
Exploration - Mining Act According to DMP, any company must first “obtain
1978 an exploration licence under the Mining Act 1978.
They must also have agreements with relevant
Native Title holders and landowner/occupiers before
an exploration licence can be granted.”
Operation - Mining Act DMP outlines that “approvals to operate a uranium
1978 mine in Western Australia begins with obtaining a
Mining Lease from DMP under the Mining Act 1978.”
Native Title Rights- Native The DMP Guidelines on uranium approval state that
Title Act 1993 after obtaining the application for a mining lease to
mine uranium, the Lease, “companies may be
required to demonstrate they have a formal
agreement under the Native Title Act 1993 with
relevant Native Title holders…”
Environmental After obtaining the mine exploration and obtaining a
Environmental Protection mining lease for operation, the proposed uranium
Act 1986 (WA) project needs to be referred to the WA
Environmental Protection Authority (EPA) for
assessment.
Environmental (Federal) As uranium mining has significant environmental
Environmental Protection significance, the uranium Project needs the Federal
and Biodiversity Act 1999 Environmental Minister’s Approval under the EPBC
(EPBC Act) Act which is at peak level legislation as it operates
above all State legislation.
Mining proposals back to The native vegetation clearing permit under the
the DMP after the Environmental Protection Act (1986)”
environmental approval • required for approval and/or have a licence to
construct and operate a plant, tailings storage facility
or other ‘prescribed premises’ under Part V of the
162
|
Curtain
|
Environmental Protection Act (1986) (a)
Groundwater Abstraction Licence under the Rights in
Water and Irrigation Act 1914 required before
removing water from a pit or bore;
any activities on reserved land requiring approval
from the vested authority of that reserve approval
under the Wildlife Conservation Act 1950 for
disturbance to declared rare flora
Abstraction of A licence for abstracting water from a pit or bore for
Groundwater: all mining activities should be obtained under the WI
Water and Irrigation Act Act 1914.
1914 (WI Act 1914)
The Wildlife Conservation All mining approval in WA need to declare and
Act 195031 (WC Act 1950) receive approval under the WC Act 1950 if there is
Alternate Citations: Fauna any disturbance to declared rare fauna and flora. (It
Conservation, Fauna is important to note here that the DMP guidelines
Conservation Act 1950. under WC Act refer to only to flora and NOT fauna).
(Sources: The legislation listed above)
7.2.7 A Critique of uranium mining approval framework – Western Australia
The Western Australian Government’s (WAG) discourses and the philosophy on uranium
mining are different to that of the Commonwealth. Three narratives are listed on the DMP’s
website. The first appears under the header “Safety and Uranium Mining” as follows:
“WA regulators and the mining industry have been managing the safe mining,
transportation and export of uranium”. (DMIRS, 25 July 2017, para 15).
Described under the header “Uranium Regulation”, the second narrative states:
“Mining radiation safety in Western Australia is regulated by the Department of Mines,
Industry radioactive material for 40 years.” (DMP, 25 July 2017, para 16).
The same section of the DMP website includes a hyperlink to a document titled “Memorandum
of Understanding [MoU] Radiation Safety for Mining Operations Working Arrangement.” This
31 This Act has been replaced by the Biodiversity Conservation Act 2016 (WA).
163
|
Curtain
|
MoU was signed by the Radiological Council on 22 January 2013. The third discourse on
uranium is represented under the header “Transporting Uranium” is as follows:
“Once in production in Western Australia, uranium oxide will most likely be transported
by road from the producing mine to existing container port facilities in South Australia or
the Northern Territory for shipment to international customers.
The transport and export of uranium oxide is regulated by State and Federal
Government agencies. In the case of uranium, there are also international standards
that must be followed.” (DMP. 25 July 2017, para 19).
It is important to note that the Western Australian Government’s narratives on uranium, though
somewhat descriptive, are not similar to the two Federal discourses, namely: (a) “ensuring the
sustainable development and responsible use,” and (b) “world’s best practice” (Australian
Government: Department of Industry, Innovation and Science, n.d., para 3). References to
the sustainable development and best practice are absent in the WAG narrative indicating two
different set of philosophies or ideologies between the Federal and State Governments on
uranium mining.
7.2.8 Yeelirrie Project Environmental approval
Since the Yeelirrie Act was ratified in 1978, there had been three environmental approvals
submitted by all three proponents who owned the Yeelirrie project since 1978 (Table. 7.1 and
Table 7.7). The first environmental approval took place after the Western Mining Corporation
Ltd (WMC) discovered the Yeelirrie uranium deposits and submitted a proposal with an
Environmental Impact Statement (EIS) to the Environmental Protection Authority WA
(Needham, 2009). BHP Billiton submitted the second EIS statement concerning the Yeelirrie
project in 2009 to the Federal Minister for the Environment under the EPBC Act (ibid).
Cameco submitted the third EIS along with their proposal to the EPA (WA) in 2015. (EPA,
2016). The details of Cameco’s proposal and the EIS is discussed in section 7.2.9. The long
awaited uranium operation at Yeelirrie was finally approved by the former Minister for
Environment in January 2017. The policy on uranium mining changed when the McGowan
Labor Government decided not to approve any new uranium mines in WA in June 2017:
“The Government will not prevent the four uranium projects that have received State
Ministerial approvals from progressing, as it has clear legal advice it cannot legally deny
secondary approvals for the purpose of frustrating approvals already granted.
164
|
Curtain
|
This includes Toro Energy's Wiluna project, Cameco's Kintyre and Yeelirrie projects,
and Vimy Resources' Mulga Rock project” (Government of Western Australia: Media
Statement, 20 June 2017 para 5 & 6).
TABLE 7.7 YEELIRRIE PROJECT - TIMELINE OF THE ENVIRONMENTAL
APPROVAL (1978 – 2017)
YEAR EVENT
1978 Western Mining Corporation Ltd (WMC) discovered the Yeelirrie uranium
deposits and submitted a proposal with an Environmental Impact Study
(EIS) to the Environmental Protection Authority WA (EPA WA). Needham,
2009).
1979 A supplement to the original EIS was submitted addressing issues raised
(Jan) in the WMC proposal. Although WMC received the State and Federal
approval of the proposal and the EIS, the Australian Labor Party (ALP)
denied development of uranium at Yeelirrie based as outlined in the ALP’s
Three Mines Policy.
1979 – Approximately 220 000 m3 of uranium-rich ore was mined from three pilot
1983 exploratory pits, and some ore was transported to a plant in Kalgoorlie for
processing. Some of the tailings were used to provide an operating surface
on two routes and mine access tracks. A bulk of mine tailings were placed
in five stockpiles (Ibid).
1983 The Australia Labor Party (ALP) won the 1983 Federal election and
implemented the ALP three uranium mines policy. As a result, the WMC’s
permission to develop and contract to sell uranium was withdrawn in
March 1983. The approved plans for Yeelirrie uranium were abandoned,
the project was placed under care and maintenance.
1999 The Environmental Protection and Biodiversity Act 1999 (Cwth) was
proclaimed. Of the nine matters of “national environmental significance”
thus the EPBC Act plays a critical role in the approval of the Yeelirrie
project (EPBC Act).
2005 The ownership of the project was transferred to BHP Billiton Ltd due to
company takeover.
2007 Under the leadership of then Prime Minister (Kevin Rudd) in April 2007,
the Labor party voted at their national conference to abandon the “three
mine policy”.
165
|
Curtain
|
2008 The relaxation of ALP’s Federal uranium policy and the election of a WA
Liberal-National government in September 2008 provided the opportunity
for BHP Billiton to lodge a new application for the development of uranium.
2008 - “Extensive environmental and mine planning studies were undertaken”
2011 (Cameco Australia, 2016, p.xix).
2009 BHP Billiton made a fresh application to the Federal Minister for the
Environment for a determination under the Environment Protection
Biodiversity and Conservation Act (EPBC) 22 May 2009.
2009 “Federal Environment Minister … determined that the proposed [Yeelirrie
mine] development was a Controlled Action under the EPBC Act” (Cameco
Australia, 2016, p. xix).
2012 Cameco acquired the Yeelirrie mine from BHP Billiton for US$ 430 million.
(Dec)
2014 Cameco requested the Environmental Protection Agency (WA) to cancel
(Nov) previous environmental approval and submitted a new environmental
proposal for production of 7500 tonnes of Uranium Oxide annually
(Cameco Australia, 2015).
2015 Cameco submitted a new proposal with an EIS to the approval of the
Yeelirrie project to EPA (WA).
2015 EPA arranged a multi-agency field visit was to the mine site as a part of its
(Nov) evaluation of Cameco’s submission (PER).
2016 EPA announced a Public Environmental Review (PER) assessment with
(Aug) recommendations in response to the Cameco’s Yeelirrie proposal.
2016 The head of WA’s Environmental Protection Authority Dr Tom Hatton, the
(Aug 3) chairperson of the EPA (WA), announced the uranium project did not meet
one of the nine environmental criteria and did not recommend it’ s approval
16 Jan The former Minister Environment, Albert Jacobs approved the Yeelirrie
2017 project against the EPA advice.
20 McGowan Government that defeated the former Liberal Government in
June March State Election announced a new uranium policy banning “uranium
2017 mining on all future granted mining leases”.
(Sources: Needham, 2009, Australian Government, 1999); Government of WA, 2017,
(Cameco Australia, 2015; EPBC Act)
166
|
Curtain
|
7.2.9 Cameco’s proposal on the Yeelirrie project
It is important to understand the background information by examining the details of Cameco’s
project and how the Environmental protection agency (EPA) provided its recommendations to
the then Minister who approved the project. Cameco’s request for approval of the Yeelirrie
project contained a Public Environmental Review (PER) including an environmental impact
statement (EIS) in a 422-pages long report outlining details of the Yeelirrie project and issues
to be managed. However, Cameco’s PER does not refer to any of the environmental
management conditions of the Yeelirrie Act discussed in this Section 7.2.3 of this chapter.
Cameco’s EIS identified the environmental conditions that should be considered under the
State and the Federal legislation. Table 7.9 provides a summary of ,significant environmental
conditions in the PER and the response of the State Government agencies responsible for
implementing the relevant regulations. According to the Cameco’s proposal (Cameco
Australia, 2015, pp. 23 -30), the legislative framework and impacts assessment process:
“requires environmental approval from:
• the Western Australian (WA) Minister for Environment under the provisions of the
Environmental Protection Act 1986 (EP Act); and
• the Australian Minister for the Environment under the provisions of the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) Cameco Australia,
(Ibid, p. 23).
Cameco’s Public Environmental Review further identified that the:
“EP Act and its associated regulations are the principal statute in WA that provides for
environmental protection in the State. Part IV – (Environmental Impact Assessment) of
the EP Act allows for referral, environmental assessment and implementation of
proposals. Part V – (Environmental Regulation) of the EP Act outlines mechanisms for
control of pollution through the licensing system. The EP Act is administered by the State
Office of the Environmental Protection Authority (OEPA) and the Department of
Environment Regulation (DER). An overview of the Part IV environmental assessment
process as it applies to this PER … The EPBC Act provides a legal framework to
manage environmental issues of national significance including nuclear actions
(such as uranium mines) and the protection of nationally and internationally important
flora, fauna, ecological communities and heritage places (Cameco Australia, 2015, p.23,
emphasis added).
167
|
Curtain
|
In response to Cameco’s Public Environmental Review, the EPA called for public submission
and made the entire report available through the agency’s website. The EPA received more
than 3,000 submissions from various stakeholders. A summary of the stakeholder categories
that responded, and the number of submissions are shown in Table 7.8.
TABLE 7.8 SUMMARY OF PUBLIC SUBMISSIONS ON THE YEELIRRIE PROJECT
WA Govt Federal Federal State Stake- Private Online
Depts Govt Politicians Politician holders Citizens Submissions
Depts s External
9 1 1 1 12 151 2,964
(Source: EPA, August 2016)
In response to Cameco’s proposal on the Yeelirrie project, and the environmental impact
statement, the WA Environmental Protection Agency provided a detail report (EPA, 2016),
and identified nine critical factors based on scientific evidence outlining the agency concerns
about approving the Yeelirrie project.
TABLE 7.9 EPA’s ENVIRONMENTAL ASSESSMENT OF THE YEELIRRIE
PROJECT
KEY FACTORS DESCRIPTION OF EFFECTS
1 Subterranean Fauna • Potential impacts from loss of habitat
(Environment) due to dewatering and mine
excavation work
2 Flora and Vegetation • Direct impacts on flora and
(Environment) vegetation due to clearing
• Indirect impacts on vegetation from
groundwater usage and reinjection,
and potential changes to surface
water flows
3 Terrestrial Fauna • Potential impacts due to the loss of
(Environment) habitat of significant species as a
consequence of clearing of local
(native) vegetation
168
|
Curtain
|
4 Human Health • Potential impacts from the increased
(Environment) exposure to radiation on mine
workers, residents of nearby
sensitive receptors and along the
transport route (from Yeelirrie to Port
of Adelaide)
5 Hydrological Processes • Potential impacts due to extraction
(Environment) and reinjection of groundwater.
• Potential changes to surface flow
patterns.
6 Environmental quality on inland water • Potential changes to the quality of
sources water due to surface water flow and
(Environment) seepage from proposed Tailing
Storage Facility (TSF)
8 Rehabilitation and Decommissioning • Potential long-term impacts if
(Environment) rehabilitation and closure of the TSF
are unsuccessful.
• Potential long-term impacts to aquifer
water quality from seepage from the
TSF.
9 Offsets • Counterbalance strategies of the
(Environment) significant lasting impacts on
endangered flora.
Source: Extracted from the the Environmental Protection Authority (2016)
Based on the nine factors assessed, (Table 7.9), the EPA concluded that the company
(Cameco), would be unable to develop strategies to preserve subterranean fauna under the
EPA’s environmental objectives (EPA, 2016). The EPA, in its report, notes that eight other
factors including potential impacts on the destruction of biodiversity, removal of vegetation,
and the effect on human health and rehabilitation and decommissioning issues in future. The
EPA submitted its recommendations against the approval of the project as a requirement
under the EP Act and submitted its report to the then Minister of Environment for his
consideration (Table 7.9).
The EPA report (2016) raised significant concerns about the Yeelirrie project, and its impact
on biodiversity due to uranium mining, and the potential destruction of subterranean terrestrial
environment unique to WA. Further, the EPA report also included the responses of the
government agencies responsible for environmental compliance under the MinReF. This
report also shows two different approaches of the proponent (Cameco), and the Environmental
Protection Agency concerning how the environmental issues would be managed. Table 7.10
provides key environmental factors and likelihood of impact identified by the EPA in response
to the EIS as proposed under the Cameco’s proposal of the Yeelirrie project.
169
|
Curtain
|
I believe 1,200 jobs and a $5 billion investment in our state’s economy is something
that we need right now and something worth supporting” (Ibid, para 7 & 9).
The approval of the Yeelirrie uranium project took place two months before the WA State
Election scheduled for 17 March 2017. At the election, the Liberal-Coalition Party lost the
power of governing and was replaced by a Labor Government which announced a policy
banning new uranium mining in June 2017 (Government of Western Australia: Media
Statement, 20 June 2017).
One of the crucial issues about the Yeelirrie project is the supreme power of the elected
officers’ ability (in the case Yeelirrie approval, the former Minister for Environment, Albert
Jacob) to overrule the scientific evidence and approve the project disregarding environmental
protection. I discussed the issue about the elected minister’s authority for approval concerning
the Yeelirrie project with a regulator during the data gathering phase of this study. This well-
informed research participant provided an insightful narrative about the ministerial decision
explaining the environmental approval process of mining in WA (see Box 7.1). The regulator
explained the power the Minister holds and also emphasised that ultimately all decisions are
finally assessed by the public on an election day. In this case, the outcomes from the State
Elections March 2017 among other issues, the public did not support the decision made by
the former Minister of Environment on the Yeelirrie Project as he lost his Parliamentary seat.
However, the elected Labor Government did not overrule the former, Minister’s decision (ibid).
According to the DMIRS’ open access MINDEX database,32 the Yeelirrie is an approved mine
under Cameco Australia (DMIRS: MINEDEX, n.d.).
32 MINEDEX is an open access database containing information on mines, mineral deposits and
prospects, and maintained by Government of Western Australia (DMIRS, n.d).
172
|
Curtain
|
BOX 7.1 MINISTERIAL DECISION OF APPROVING THE YEELIRRIE PROJECT
“Because he’s the minister. He’s a minister of the Crown. They reflect
community – he can make a decision based on anything.
The power of the EPA is they can publish. They publish their views. They can
produce reports and so on. But in the end the minister has the authority under
the Environmental Protection Act. He is the one who makes a decision from the
environmental perspective. It’s not the final decision, because the minister for
mines still has to authorise that the mining takes place, but the [environment]
minister can consider social and economic [issues] because that’s why he’s
there.
The EPA provides the minister with its considered advice based on everything
that it’s heard, what the companies have put in, whatever else it’s found. But
the power – the strength of our system is that the minister then looks at it more
broadly and he then has to defend it to the public. Because if the public aren’t
happy with the decision he has made, he won’t be voted back in at the next
election. That’s how it works”
(Research participant no #10: Regulator).
The decision of the then Minister of Environment by approving the Yeelirrie project against the
scientific advice could be explained by relating to “historical evidence”; an approach espoused
by case study research (Denzin & Lincoln (2018, p. 10). Layman (1982, p. 149) notes that
mining and “resource development has been an objective of all Western Australian
Governments”. Layman’s (1992) observation explains contemporary ministerial decisions
which only focus on economic and social benefits over environmental values as in the case of
the Yeelirrie project. However, according to Weber (2015), the bureaucratic and political
decisions should be based on rational and neutral grounds. This also supports one
manifestation of the “explanatory doctrine” by Hoecke, (2013). According to the explanatory
doctrine (Hoecke, 2013), the former Minister for Environment provided an “explanation” that
the uranium project could bring economic benefits by overruling the scientific advice provided
by the Government Independent Advisory Body—the Environmental Protection Agency,
against the approval of the project.
173
|
Curtain
|
The Yeelirrie mine approval process documented in this case study highlights three issues.
First, the centralisation of Ministerial power. Second, the limited authority of the EPA
established under legislation to protect the environment, and suggest that in practice the
advice it provides based on scientific evidence has no real value due to the ministerial power
to overrule EPA’s advice. Third, the continuous concerns raised by anti-nuclear campaigners
about the environmental impact due to uranium mining in WA (Landgrafft, 2016).
7.2.10 Conclusion
The objective of this case study was to gain insights into the implementation of the
environmental regulations concerning the complex case of the Yeelirrie uranium project. I
provided evidence and questioned the validity of the key legislation (Yeelirrie Act 1978) that is
used to approve the project, and potential adverse impact on a variety of environmental issues
it could pose as the compliance conditions therein are not mandatory (Table 7.10). In this
case study, I also examined not only the issues relating to the multiple and complex ownership
transfers of the Yeelirrie project, but also the environmental regulations embodied in the Act.
Further, evidence was presented that the new ownership of the Yeelirrie project has not been
ratified in the Parliament for it to be a valid approval process. There is no evidence about the
alleged claim by proponent about the approval of the project until 2028 under the Yeelirrie Act.
The case study also demonstrated the insufficient project management of State Agreements
as the Yeelirrie Act should have been revoked in 2004 (Parliament of Western Australia,
2004).
The controversial and non-transparent nature of the approval of the Yeelirrie project raised
the question of why this project was approved under a State Agreement. The rationale for
approving the Yeelirrie project under the Yeelirrie Act is not only questionable but not
transparent as three other uranium mines have been approved under the Mining Act 1978.
Therefore, they are under the jurisdiction of the MRF Act concerning the mine rehabilitation
work at the end of the life cycle of the mine; a condition not mandatory under the Yeelirrie
project as the MRF Act has no authority over State Agreements.
One of the research puzzles of this study was the lack of evidence to understand the rationale
for approving four of the three uranium mines, namely, Kintyre, Mulga Rock, Wiluna under the
Mining Act, and the Yeelirrie project under a State Agreement ratified in 1978 whereas the
project was approved in January 2017. There was no literature to find evidence to explain this
legal phenomenon. The research participants could not provide any responses either. As the
Yeelirrie project has been approved under a SA means that the current mining rehabilitation
legislation (MRF Act) has no jurisdiction over the Yeelirrie Act.
174
|
Curtain
|
In summation, the analysis of the Yeelirrie Act revealed that it does not contain any mandatory
regulatory clauses addressing mine rehabilitation or mine closure plans. While it is due to an
inherent weakness of the Yeelirrie Act similar to other State Agreements, it also reflects the
contemporary attitudes on environmental protection prevailed during the late 1970s when the
Yeelirrie Agreement was ratified. However, when there are no mandatory regulatory clauses
for environmental protection in the Agreement, a proponent is not legally bound to carry out
any mine rehabilitation work in the absence of such conditions in the legislation (Yeelirrie Act).
There are only negative implications when approval is granted for the Yeelirrie uranium project
in 2017 under an Act of 1978 which has no mandatory environmental protection regulatory
conditions.
The uranium case study revealed three key issues. First, a weakness of the MinReF
representing the dichotomy of two systems of approving and managing uranium mining in WA,
under the Mining Act 1978, and a State Agreement respectively. Second, the case study
confirmed the inefficiencies of managing State Agreements as the Yeelirrie Act should have
been revoked in 2004 following the Gallop Government’s decision to terminate the Yeelirrie
Act. Finally, the case study demonstrated the absolute powers of the elected Ministers who
can overrule and ignore scientific evidence against the approval of mining proposals.
The analysis of the Yeelirrie uranium project confirmed the case study definition by Schramm,
(1971) who states that the “essence of a 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”
(cited from Yin, 2018, p.14). This case study demonstrated how sets of decisions were taken
to approve a uranium mine using controversial and flawed legislation.
175
|
Curtain
|
7.3 CASE STUDY TWO – ENVIRONMENTAL REGULATIONS OF COAL MINING IN
WESTERN AUSTRALIA
7.3.1 INTRODUCTION
The second case study examines the implementation of environmental regulations embodied
in two State Agreements (SAs), and how they have been utilised as legislation to assure
environmental protection during the life cycle of coal mining in the Collie Region in South-West
Western Australia (WA). The rationale for selecting coal mining operations in WA is due to
the availability of scientific literature, and research suggesting various environmental impacts
in the Collie region due to coal mining (McCullough & Lund, 2016; Doupé & Lymbery, 2005;
Johnson & Wright, 2003; Thompson, 2000).
Coal has long been considered a reliable source of energy and is widely used in power
generation in many countries (Munawer, 2018, p.87). However, it comes with costs because
the process that enables coal to generate energy by breaking down carbon molecules in coal
produces harmful environmental pollutants that impact human health (Union of Concerned
Scientists Inc [US], n.d, para 1). These pollutants are accumulated in air and water and lead
to severe environmental and health impacts as a result of leaching, volatilization,33 melting,
decomposition, oxidation, hydration and other chemical reactions” (Munawer, 2018, p.87). Air
pollution due to coal combustion contributes to global warming (Union of Concerned Scientists
Inc [US], n.d, para 1). At present, the supply of coal extracted under the two SAs are primarily
used for power plants in Western Australia (Lund et al. 2012). The inherent environmental
risks of using coal as an energy source for coal-fired power plants have been the focus of
several studies (Munawer, 2018; Flannery & Stanley, 2014; Doctors for the Environment,
2013; Union of Concerned Scientists, 2012).
This case study examines the legislation and regulations that manage coal mining in the Collie
Region with a special focus on environmental compliance, and evaluates whether they have
been implemented to assure environmental protection. The structure of this case study is
different from the previous case where I only focused on the uranium approval process of the
Yeelirrie project as the operation phase of the uranium mine is yet to commence (Cameco
Australia, 2015). However, this case study also falls within the definition espoused by Robert
Yin (2014) who defines a case study as “an empirical inquiry that investigates a contemporary
phenomenon (the ‘case’) in depth and within its real-world context” (p. 16). The “contemporary
33 “Volatilization is a potential route by which hazardous waste constituents migrate out of a landfill,
especially one having a high vapor pressure”. Source: Environmental Management, 2017
176
|
Curtain
|
phenomenon” that I focus “within its real-world context” in this case study is the examination
of the environmental regulations of two State Agreements namely the Collie Coal (Griffin)
Agreement Act 1979 (“Griffin Act”), and the Collie Coal (Western Collieries) Agreement Act
1979 (“Western Collieries Act”). These two Agreements have been utilised as the regulatory
framework to manage the life cycle of the coal operations in WA, but my analysis excludes
early phases of coal operations before 1978.
Further to this introduction, this case study includes: (i) background; (ii) the history of coal
mine operations in WA; (iii) coal mining approval regulatory system in WA; (iv) a critique of the
environmental regulations embodied in the two State Agreements; (v) sustainability and
environmental performance of the two coal mining companies; (vi) the environmental impact
of coal mining in the Collie Region; followed by (vii) a conclusion.
In this case study, my analysis focuses on how the legislation and environmental regulations
have been utilised to assure environment “with respect to the mining, development and
rehabilitation of certain coal reserves” in WA (Griffin Act, 1979, p.1). The two State
Agreements identified as relevant legislation for this thesis are considered under the Mining
Regulatory Framework (MinReF) in WA. Both the Griffin Act and Western Collieries Act are
“Agreements” between the State of Western Australia, and the two companies cited in the
Agreements. These two “Agreements” were ratified in the State Parliament in 1979 as central
legislation, and have been enacted to authorise among other things, the operation of coal
reserves in the Collie Region of Western Australia.
As a consequence of coal mining in the Collie Region, many environmental issues have
emerged over the years, (McCafferty, 2017; Etten at al., 2014; McCullough & Lund, 2009 &
2006; Lund, n.d.; Lund et al., 2012), and some of these works are discussed in this case study.
7.3.2 BACKGROUND
Coal is defined as “combustible rock of organic origin composed mainly of carbon along with
variable quantities of other elements, chiefly hydrogen, sulphur, oxygen and nitrogen”
(Geoscience Australia, 2013). Although coal was discovered in New South Wales in 1797
(Australian Government, 2013; Australian Bureau of Statistics, 1910), there was no interest in
coal as a source of energy until the 1880s as an export commodity of WA. The search for
coal in WA first began due to the arrival of steamships in WA ports and the expansion of the
rail networks (ibid). A stockman named George Marsh led to the operation and development
of the coal mining in Collie following the discovery of coal near the Collie River (ibid). Coal
has been mined in Collie for over a century. However, the formal process of Collie coal mines
177
|
Curtain
|
Coal mining in Australia has a long history. Table 7.11 provides a timeline of WA coal mining
activities from 1923 to 2017.
TABLE 7.11 -- HISTORY OF COLLIE COAL MINING, 1923 - 2017
YEAR ACTIVITY
1923 A private syndicate was established to negotiate and develop mining leases
south of Collie to supply coal to Western Australian Government Railways
(WAGR).
1925 The ‘Western Australian Coal Mining Briquetting and By-Product Company
Ltd’ (WACMBBCL) was incorporated.
1927 WACMBBCL changed its name as Griffin Coal Mining Company Pty Ltd
(Griffin Coal) and commenced supplying coal to ships, WAGR and the
goldfields.
1949 The first Chief Coal Mining Engineer in WA was appointed.
1950 Western Collieries Limited (WCL) was established.
1952 WCL commenced an open cut mine called Collieburn, followed by operating
two underground mines.
1953 Open cut mining operations commenced at Muja coal mine located 18
kilometres south-east of Collie.
1954 Deep underground mining work commenced at Muja.
1960 Griffin Coal won a contract to supply a major share of its coal to Muja Power
Station, a new power station to be operated by Western Power, then WA’s
sole electricity provider.
1965 Deep mining operation ceased at Muja mine due to flooding.
1966 -69 Establishment of the Muja Power Station helps to stabilise the coal market
due to the supply of coal produced by the two mining companies.
1970 Griffin’s contract to supply coal to WAGR ended.
1979 Collie Coal (Western Collieries) Agreement Act 1979 was ratified in the State
Parliament.
1979 Collie Coal (Griffin) Agreement Act 1979 was ratified.
1982 Open cut mining commenced at Chicken Creek Mine on the banks of Collie
River.
1989 Wesfarmers Ltd purchased WCL and renamed the company as Premier Coal
Ltd.
1994 The closure of the last underground mine operated by Griffin Coal Ltd
179
|
Curtain
|
1994 Wesfarmers Ltd terminated the underground mining started by WCL
1996 Open cut mining commenced at Ewington II mine.
2009 Open cut mining commenced at Ewington I mine.
2010 Griffin Coal Ltd sold their business to an Indian company called Lanco
Infratech (Smith, 2017).
2011 Wesfarmers Ltd sold the Premier Coal mine to a Chinese coal group Yancoal
(Woods, 2011).
2011 Lanco Infratech acquired by a Chinese Company called Yangzhou and has
been managed by Yancoal Australia.
2017 Indian-owned Lanco Resources appointed receivers and managers declaring
heavy financial losses (Smith, 2017).
Sources: Griffincoal.com; Premiercoal.com; Spillman, (1993); Collie Coal (Griffin) Agreement
Act 1979, Collie Coal (Western Collieries) Agreement Act 1979, Woods, 2011; (Smith,
2017).
Table 7.11 provides a brief history of WA coal mining as well as information on the formation
of coal mining companies in the 1950s, and the transfer of ownership of two companies that
were the signatories of the two State Agreements ratified in 1979. Since then, there had been
several ownership transfers. For example, Wesfarmers Ltd (WL) purchased Western Colliers
in 1989, and the WL sold the operation to a Chinese coal group called Yancoal in 2011
(Woods, 2011). Similarly, Griffin Coal sold its business to an Indian company called Lanco
Infratech in 2011 (Smith, 2017). In the same year, Lanco Infratech was acquired by a Chinese
Company called Yangzhou, and since the takeover, Griffin Coal has been managed by
Yancoal Australia. However, none of these ownership changes has been duly ratified and
reflected in the two State Agreements confirming their validity as legal documents. Later, in
this case study, I will revisit the legal issues concerning the implementation of environmental
regulations, embodied in two State Agreements in section 7.3.6 to review whether the
ownership transfers would impact the environmental protection during the life cycle of coal
mines in the Collie Region.
7.3.3 Approval of Coal mining regulation of Western Australia
Historical documents and archived legislation reveal the nature and regulations of coal mining
operations that existed since the first decade of 20th Century (Spillman, 1993, Public Service
Commissioner, 1908; Department of Premier and Cabinet, n.d). Early regulation of coal
activities could be traced to the Coal Mines Regulation Act 1902. The 1902 Act stipulates
180
|
Curtain
|
“General Rules” (Section 50. (1) such as “Penalty on non-compliance with rules” (Section 51)
and “Special rules for every mine” (Section 53. (A). Some of the special rules include the
prohibition of employing “Boys” under 15 for mining operations reflecting early signs of health
and safety regulations on mining in WA (Mines Safety and Inspection Act 1994). The
machinery used for coal mines has also been managed under the Mines and Machinery Act
1911 (MM Act 1911). The MM Act 1911 was enacted over a century ago “relating to the
administration of certain [mining] Acts for the Inspection of Mines and Machinery” (Mines and
Machinery Act 1911, p.1). In December 1949, a year before Premier Coal started its mining
operations in Collie, the first Chief Coal Mining Engineer was appointed (Spillman, 1993,
p.329). The overarching legislation that applies to the regulation and granting of leases to the
coal mines in Western Australia was provided by the Mining Act 1904 and Mining Act 1978,
the Rights in Water and Irrigation Act 1914. Coal mining activities were subsequently
subjected to the Environmental Protection Act 1986 (Johnson & Wright, 2003, p.22; Griffin
Coal Mining Company Pty Ltd, 1994).
The Western Collieries Act was ratified in the Parliament as a contract between the then
Premier of the State of Western Australia, and the Western Collieries Ltd, Perth-based
Australian company on 17 January 1979 (Western Colliers Act, p.4). On 5 November 1979,
the Griffin Coal State Agreement was signed between the then Premier of WA and Griffin Coal
Mining Company Ltd (Griffin Act, p.2). However, as listed in Table 7.11, the ownership of both
these companies has changed, but still, the central legislation that manages the coal mining
remains with the two State Agreements that were ratified in 1979. It is important to recognise
that both the Western Colliers Act and Griffin Act are considered as legislation among the 64
State Agreements that support large resource development projects in WA (Chapter Five,
Table 5.3). It is also essential to note that both these SAs were legislated before the EP Act
1986 or the Federal EPBC Act 1999 were enacted and before formal environmental
regulations being introduced to the Mining Regulatory Framework in WA. There are no
references in the two State Agreements—the Griffin Act and Western Colliers Act, stipulating
the companies submit to environmental impact assessments (EIA) or undergo formal
environmental scrutiny including public consultation before receiving the approval for mining
operations. Therefore, it is reasonable to assume that pre 1979 and post 1979 coal mining
was not subjected to EIA until the EP Act came into effect in 1986. However, the literature
revealed that when a company wanted to expand its operation, it had to go through an EIA
after the EP Act was enacted in 1986. As a result, when the Griffin Coal’s proposed to expand
the Ewington Coal Mine (II) in 1994, the company had to submit an EIA proposal under section
46 of the EP Act (Griffin Coal Mining Company Pty Ltd, 1994). An EIA was required to receive
approval for the expansion under the current tenement to operate an additional open pit coal
181
|
Curtain
|
mine covering 495 hectares. The EIA proposal, titled ‘Expansion of Ewington Coal Mine
Ewington II – Collie – Proposed Change to Environmental conditions’ contained references to
mining rehabilitation information. However, Griffin’s expansion did not have any references to
mine closure plans therein (ibid) indicating the attention given to mine closure plans prevailing
before the mining rehabilitation legislation (MRF Act) was enacted. The then Minister of
Environment approved the expansion proposal without any specific conditions imposed on
mine closure plans (Bob Pearce, Minister for Environment. 3 September 1992).
The following section provides a critique of the Griffin Coal State Agreement ratified as
legislation to manage the coal mines in WA.
7.3.4 A critique of the environmental regulations in State Agreements used for coal
mining operations in Western Australia
This section provides a critique of the environmental regulations embodied in the two State
Agreements which are the central legislation enacted to manage the coal operations in WA.
My analysis is limited to a review of the Griffin Act as the environmental regulations included
in the Western Collieries Act are identical to the former. 34
Section 7 (I) of the Griffin Act 1979 refers to “the protection and management of the
environment including rehabilitation and restoration of the mined areas:
“measures to be taken in accordance with best modern practice for the protection and
management of the environment including rehabilitation and/or restoration of the
mined areas referred to in Clause 6 and the workings associated therewith, the
prevention of the discharge of tailings, slimes, pollutants or overburden into the
surrounding country, water courses, lakes or underground water supplies, the
prevention of soil erosion and forest disease and, to the extent that the Company is
responsible for implementing the matters referred to in paragraphs (a) to (k) of this
subclause, consideration of the environmental effects relating thereto” (Griffin Act
1979, p.8).
The critical issue about section 7 of the Griffin Act is its introductory sentence which states,
“measures to be taken in accordance with best modern practice for the protection and
management of the environment”. The analysis of the Act revealed the clause; “consideration
of the environmental effects relating” is not a mandatory requirement. The way the clause has
34 An identical clause appearing in section 7 (m) of the Western Colliers Act.
182
|
Curtain
|
been written suggests that it does not bind the company to initiate action to address issues to
assure environmental protection including mine rehabilitation. Further, section 7 of the Griffin
Act does not stipulate any mining closure plans, and the consequences of defaulting mining
rehabilitation work. The “consideration of the environmental effects” cannot be enforced.
Further, under a subsection of the Act titled “Protection and management of the environment”
states:
“The Company shall in respect of the matters referred to in paragraph (l) of subclause (1)
of Clause 7 and which are the subject of approved proposals under this Agreement,
carry out a continuous programme of investigation and research including monitoring
and the study of sample areas to ascertain the effectiveness of the measures it is taking
pursuant to its approved proposals for rehabilitation and the protection and management
of the environment” (Griffin Act 1979, p11).
In 1979, the coal mining operations also required the approval for clearance of native forest
(vegetation), however, there was no legislation to enforce it as the EP Act was enacted in
1986. This requirement has been stated in section 17 of the Agreement under the header
‘Implementation of approved proposals relating to the environment’ as follows:
“The Company may with the consent of the Conservator of Forests arrange for the
Conservator of Forests to carry out on behalf of the Company any approved proposal
relating to the environment at the cost in all respects of the Company” (Ibid).
The weakness of the above clause is that the implementation of approved proposals and
completion schedules (specific dates). The clause 7 (i) of the Act where it states that “modern
practice for the protection and management of the environment including rehabilitation and/or
restoration of the mined areas” is not a mandatory condition as the Agreement states that
company “may with the consent of the Conservator of Forests arrange for the Conservator of
Forests to carry out on behalf of the Company any approved proposal relating to the
environment”.
In the late 1970s, the reference to “modern practice for the protection and management of the
environment including rehabilitation and/or restoration of the mined areas” is no different to
what it means today as it implies the revegetation and restoration of the land back into the
way it had been prior to the disturbances to the natural environment due to mining. However,
when approval was granted to clear vegetation and topsoil for a large open cut mine covering
183
|
Curtain
|
495 hectares as in the case of Ewington 11 coal mine extension, it becomes a difficult task to
rehabilitate the land into its original conditions.
7.3.5 Weaknesses of the Griffin Agreement Act 1979
Section 11 (1) of the Griffin Act refers to the need to carry out “a continuous programme of
investigation and research including monitoring and the study of sample areas to ascertain
the effectiveness of the [rehabilitation] measures” and the conditions as follows:
“The Company shall in respect of the matters referred to in paragraph (l) of subclause (1)
of Clause 7 and which are the subject of approved proposals under this Agreement,
carry out a continuous programme of investigation and research including monitoring
and the study of sample areas to ascertain the effectiveness of the measures it is taking
pursuant to its approved proposals for rehabilitation and the protection and management
of the environment” (Griffin Agreement Act, p.11).
The fundamental question of the above clause is the lack of transparency for two reasons.
First, it does not specify which government agency is responsible for ensuring the company
would carry out continuous investigation and research including the protection and
management of the environment. Second, it does not state what penalties would be imposed
for not adhering to the proposed environmental management conditions. Similar clauses
appear in the Western Colliers Act; hence, they are not repeated.
7.3.6 Lack of regulatory provisions for environmental protection in State Agreements
As discussed in Chapter Five (section 5.5), a unique feature of the State Agreements is that
during the negotiation phase, and before the agreement is ratified, both the proponent, and
the government need to agree on all conditions to be included in the Agreement. Concerning
the environmental regulatory conditions such as minimising excessive damage to the top and
deep layers of soil, prevention of air, water and noise pollutions, preservation of biodiversity,
mine rehabilitation and closure plans could be incorporated into an Agreement with specific
details how such condition would be executed. Any conditions—environmental or other, if not
included before the contract (Agreement) is ratified, they would not become mandatory
requirements, thus, a company is not obliged to carry out any tasks that are not included in
the ratified Agreement (contract). As all mining companies operate to maximise their profits,
any additional expenditure on “non-core” activities, whether they are relating to environmental
protection or not, would be interpreted as non-mandatory conditions, and any company would
be reluctant to invest funds on such work. In other words, companies operating under a State
Agreement are not legally obliged to implement environmental protection measures unless
184
|
Curtain
|
they are specified and incorporated into an agreement before it is ratified in the WA Parliament
as legislation. This unique characteristic of State Agreements is a significant factor impacting
environmental protection through regulations.
7.3.7 Inherent weaknesses of State Agreements managing coal mining
To illustrate the inherent weaknesses of the two SAs utilised to manage the operation of coal
mines in WA, I provide the following example as evidence by referring to a Parliamentary
session which took place in 2014. During this Parliamentary session, both the role of the
government agency responsible for managing State Agreements and environmental
obligations such as the mine rehabilitation was raised as a Question on Notice (No 2013)
directed to Mr Colin Barnett, the then Minister for State Development and also the then
Premier of WA. The following questions were asked on 1 April 2014, by Mr M. P. Murray, an
opposition Member of the Parliament:
“(a) what role does the Department of State Development (DSD) have in the
development of Lake Kepwari;
(b) what development plans does the DSD have in place for Lake Kepwari;
(c) what stage in the process is the DSD currently at of handing back Lake Kepwari
from Yancoal to the Department of Parks and Wildlife;
(d) what is the expected timeframe for this handover/transfer process; and
(e) what total funding, past and present, has been expended for the development of
Lake? (Parliament of Western Australia: Hansard, May 6 May 2014).
Mr Barnett as the then Minister responsible for the Department of State Development provided
the following responses on 6 May 2014, at the 39 Session of the WA Parliament:
“The Department of State Development advises:
(a) The Department administers the Collie Coal (Western Collieries) Agreement Act
1979 (State Agreement) under which Yancoal Australia Group's Premier Coal Pty Ltd
operates.
(b) None.
(c) The Department is advising the Minister for State Development on Premier Coal's
progress in implementing its proposal, that has been approved under the State
Agreement, for rehabilitating the area around Lake Kepwari. Completion of this
proposal, as approved, is a precondition of the land being transferred from the Mining
Lease.
185
|
Curtain
|
(d) There is no set timeframe for Premier Coal to complete its proposal.
(e) The Department has not expended funds on this. Until the area is transferred from
the Mining Lease, Premier Coal is responsible for the area” (Parliament of Western
Australia: Hansard, 31 March 2004).
The critical issue emerging out of Mr Barnett’s response is the absence of a “set timeframe”
for Premier Coal to complete its proposal” about the rehabilitation of a large pit lake (Lake
Kepwari35) which confirms an inherent weakness of the State Agreement under which the
company operates. The reasons are twofold. First, there should be specific clauses embodied
in the Agreement stipulating how the company should act to rehabilitate the disturbed land at
the end of a mine’s life cycle. Second, the absence of specific conditions stipulating that old
mine voids such as lake Kepwari need to be rehabilitated within a set period. The situation
about the rehabilitation of Lake Kepwari gets further complicated as Yancol—the new owner
of Premier Coal is not the proponent appearing in the State Agreement signed on 17 January
1979 (Western Collier’s Act, p.4). Due to the nature of State Agreements, any changes to the
original, including the ownership transfers should be ratified, and reflected in the Agreement
as an amendment it to be valid legislation. During the course of this study, I have verified
whether any amendment to the Western Collier’s Act has been made concerning the
ownership transfers, but no such changes appear in the latest version of the Agreement
available in the government's open access database (Department of Justice: Western
Australian Legislation, n.d., para one) which has records of versions and the history of the
Agreement should be duly recorded. The ownership of the companies operating under the
Western Collier’s Act has changed several times (Table 7.11). However, any of these
ownership transfers have not been ratified and incorporated into the Agreement. While there
is a provision in the original Agreement to transfer the ownership of the Western Collieries Ltd,
the key legal issue is how the term “Company” is defined in the Act:
“associated company” means —
(a) any company or corporation providing for the purpose of this
Agreement capital of not less than $2 000 000 which is incorporated or
formed within the United Kingdom the United States of America or
35 Lake Kapawari is a mine void previously known as coal mine WO5B where mining had ceased
operation in 1997. “The volume of Lake Kepwari is now 24 x 106 m3, with a maximum depth of 65 m
and surface area of 1.03 km2” (Zhao, McCullough, & Lund, 2009, p.130). “The pit lake was renamed
Lake Kepwari to facilitate its acceptance by the community” (ibid).
186
|
Curtain
|
Australia or such other country as the Minister may approve ...”
(Western Collieries Act 1979, p.4).36
Yanacol, the current owner of the Premier Coal is a Chinese owned company though it has a
presence in Australia. However, Yanacol cannot be considered as a “company” by the above
definition as embodied in the Agreement. Further, an Australian legal firm (Corrs Westgrath
Chambers) had raised concerns about the company transfer issue:
“Yanzhou Coal became the first Chinese state-owned enterprise to acquire 100% of an
Australian listed company through the A$3.5 billion acquisition of Felix Resources.
The deal featured an innovative undertaking whereby Yanzhou Coal would list Yancoal
Australia on the Australian Securities Exchange by no later than the end of 2012, thereby
guaranteeing public ownership.
Corrs advised Yanzhou Coal on what was the biggest ever Chinese deal in the
Australian coal sector at the time.
The implementation of the transaction involved managing disclosures on three key stock
exchanges - ASX, Shanghai and Hong Kong. A tight timeframe of only four months was
met, even though all documents had to be translated and there were significant
language and cultural differences that the team had to overcome” (Corrs Westgrath
Chambers, n.d. para. 1- 4).
These legal issues are relevant to the scope of this study as it has a significant impact on the
mining regulations analysed in this PhD research. The legal issues raise questions not only
about the validity of the ownership of the company, but whether the current owner (Yancol) as
the owner of the Premier Coal Ltd is a valid corporate entity under the Western Collier’s Act
as;
“Yancoal manages the Premier Coal operation on behalf of its majority shareholder
Yanzhou Coal Mining Company Limited (Yanzhou)” (premiercoal.com, n.d., para one).
The implication is whether Yancol––a foreign company, would carry out not only the
rehabilitation of Lake Kepwari, but all other coal mines managed under the Premier Coal Ltd
36 This quote is from the last amended version of the Act, (version 01-c0-05, as at 11 Sep 2010),
extracted from www.slp.wa.gov.au, website.
187
|
Curtain
|
in years to come. As the former Premier of WA has confirmed the company has no “timeframe”
to rehabilitate Lake Kepwari reflects the non-mandatory nature of the legislative framework
under which not only the coal mining in Collie Region operates but also all other resource
projects under the current State Agreements implying the validity of regulations concerning
environmental protection.
The issues I have identified about the validity of the Agreements, and other matters could be
attributed to both legal and general project management issues concerning State Agreements.
Among other things, the ‘project management’ issues of State Agreements have also been
identified by the WA Auditor General who observed that “DSD’s responsibility for monitoring
mines that operate under State Agreements is unclear (WAAG, 2011, p.24)”. However,
examples such as the Kepwari lake issue raised in the Parliament of WA in 2004 suggest that
after fourteen years of the audit report, no follow-up on managing the mines under the State
Agreements has taken place. I attribute this weakness in the Western Collier’s Act to the lack
of adaptive capacity—a concept developed and discussed as a core weakness of the MinReF
in Chapter Eight (Sections 8.4 & 8.6). State Agreements not having legislative mechanisms
for correction and project monitoring has a direct impact on effective mining rehabilitation. The
Auditor General’s Audit Report (2011) also identified the need to ensure “the State is protected
from the risk of long-term liability when a mine closes through effective rehabilitation and
financial arrangements” (p.5), and it has not happened concerning the Lake Kepwari example.
These gaps of the MinReF could also be attributed to agency discourses that have developed
over the years as a consequence of having a multi-agency system implementing the legislation
under the MinReF. These discourses also might have influenced the way agency bureaucrats
perceive and act upon State Agreements. One of the research participants, a senior officer,
attached to a regulatory agency provided a perspective that reflects an inherent regulatory,
cultural practice prevailing among the regulators responsible for State Agreements:
“Under the State Agreements, we don’t look at the environmental aspects. So, we
brought in the MRF— mining rehabilitation fund…No; it doesn’t impact on State
Agreements. So, there’s been informal discussions, why don’t you do it? We’ve also
got – under the State Agreement there may also be some environmental aspects, but
that’s covered by Department of State Development. We don’t do it (Participant #8;
Regulator, emphasis added).
188
|
Curtain
|
Regarding the validity of the current owner’s entitlement to operate under the Western
Collieries Act would have been addressed as an amendment to the Act ratified in 1979, but it
has not happened yet. The consequence is the agency responsible for managing the State
Agreements would not be able to enforce not only the environmental regulations embodied in
the Western Collieries Act, but also to enforce any other condition therein. The former
Premier’s response about the rehabilitation of lake Kepwari, and the company having no set
timeframe for mine rehabilitation is evidence about the government’s inability to enforce
environmental conditions or take any appropriate action to address environmental harm due
to coal mining. Therefore, assuring environmental protection through existing legislation by
implementing mine closure plans, and land rehabilitation works of Collie coal mines will remain
as one of the legacies of mining in WA for many more years to come.
Several scientific studies which have been carried out since the mid-1980s (McCullough &
Lund, 2009; Doupé & Lymbery, 2005; Johnson & Wright, 2003; Thompson, 2000), have
identified the long-term adverse environmental effects due to abandoned coal mines in the
Collie Region. The former Premier who oversaw the WA State Development Department
responsible for managing State Agreements, and the government’s inability to enforce a
schedule for the rehabilitation of Lake Kepwari is just one example of a larger problem
concerning the mining regulatory framework in WA.
The current issues emerging from this analysis not only confirm a regulatory flaw that prevents
environmental protection due to coal mining in Western Australia, but suggest the inevitable
event of passing the sovereign risk of rehabilitation of mines operated under State Agreements
onto future generations. This is not a mere scenario, but a reality, and confirms that due to
innate weaknesses of State Agreements that the WA Government has breached the core
sustainability principle of ‘inter-generation equity’ (United Nations General Assembly, 1987, p.
43).
The environmental management conditions embodied in the Griffin and the Western Collier
Acts have not become effective 39 years after the ratification of the two Agreements in 1979.
When perusing the number of untreated abandoned mines in the Collie Region, it is evident
that mine closure plans have not been implemented. Doupé and Lymbery (2005) observed
that “there are currently about 1800 final mine voids, and 150 operational open cut mines in
the Collie Basin” (p.314). The “open cut voids have been abandoned to form lakes, which are
acidic because of the pyrite-rich Permian sediments of the Collie basin (p.135). Johnson and
Wright (2003) predicted that those mine voids filled with rain water for decades would become
more saline due to the high annual evaporation rate of water in the Collie Region (Johnson
189
|
Curtain
|
and Wright, 2003). Doupé and Lymbery, (2005) identify the “urgent need for a regulatory
framework to address mine lake options” (p.134) and environmental issues arising from
abandoned mine pits in the Collie Region. This raises the sustainability and environmental
performance of the two coal mining companies operating under two State Agreements.
7.3.8 Sustainability and environmental performance of the two coal mining
companies
This section provides an overview of the discourse of the two coal mine operator’s
environmental performance and sustainability practices. Griffin Coal states the company’s
commitment to mining operation as follows:
“Griffin Coal is committed to ensuring management of its mining operations are
undertaken in a sustainable manner.
Griffin Coal aims to minimise, mitigate and remediate any impacts from its business on
the environment. Griffin Coal recognises that excellence in managing the Company’s
environmental performance is critical to its business success.” (Griffincoal.com.au
(n.d). para 1 & 2)
However, Griffin coal doesn’t provide additional information on how the company ensures
their “mining operations are undertaken in a sustainable manner”. (ibid).
Premier Coal which formally commenced its operations in 1950 claims that the company
“supports the principles of sustainability and places great emphasis on environmental
management” (Premiercoal.com. n.d. para one). Concerning sustainability, Premier Coal
states:
“Premier Coal fully supports the principles of sustainability and places great emphasis
on environmental management. The Company is aligned with the ISO14001
management system designed to assist in managing and improving our workplace
environment” (premiercoal.com, n.d., para one)
ISO 14001 is an international standard that defines guidelines and requirements for an
effective environmental management system (EMS) (saiglobal.com. n.d., para 1). The
standard provides a framework enabling an organisation to follow guidelines. However, it is
not a mandatory standard for, establishing the requirement for environmental performance
190
|
Curtain
|
(ibid). Nevertheless, decades-long coal mining operations have contributed to adverse
environmental effects mainly due to the practice of open cut mining commenced in the 1970s:
“Open cut operations in Collie currently result in a final void at the end of mine life.
Careful mine planning is done to minimise the size of the final voids through backfilling
whenever possible. Inevitably, the style, scale and depth of operations require some out-
of-pit dumping, leaving a final void” (premiercoal.com. n.d., para 2).
Coal is a non-renewable resource which once extracted and used, will provide no more stocks
to be used by future generations. The major environmental issue is how the mine voids (pits)
that have been created due to extracting coal contrary to the discourses of the two companies
claiming their emphasis on “environmental management” and carrying out operations in a
“sustainable manner”. The following section examines the sum effects of environmental
issues due to coal mining in Collie.
7.3.9 Environmental impact of coal mining in the Collie Region
The major environmental impacts of the Collie coal mining could be described under two
categories: (a) the formation of mine voids (pit lakes) and, (b) associated environmental
degradations and risks (McCafferty, 2017; McCullough & Lund, 2006 & 2009) and the
environmental risks due to end use of abandoned coal mines (Doupé & Lymbery, 2005. The
operations of Griffin’s Collie coalfield have created 12 underground mines and 18 open cut
mines (Griffin.com. n.d. para 7). When the open cut mines are abandoned at the end of the
mine’s life cycle, they are described as “mine voids” (McCafferty, 2017; Lund et al., 2012;
Lund, n.d; McCullough & Lund, 2006 & 2009). Lund et al. (2012) describe the history, the
extent of nature of mine voids, and rehabilitation issues due to coal mining in the Collie Region:
“The pit lakes of Collie range from 4.5 ha to 98.5 ha in area and 8 to 81 m deep... One
group of lakes consists of those abandoned in the 1960’s with no shaping or attempts at
rehabilitation (Blue Waters, Stockton and Black Diamond), another includes relatively
new lakes (<10 years old) that have been contoured and have had catchments
revegetated (Lake Kepwari, WO5H, WO5F, WON9, WO5C, WO5D). The Chicken Creek
lakes (4 and 5) are new lakes that have not been rehabilitated (due to possible re-
mining). WO3 and Centaur are historic and have not been rehabilitated” (Lund,
McCullough & Kumar, 2012, pp.289-290).
The focus of this section is to identify a series of environmental impacts of the abandoned coal
mines that have not been rehabilitated. An overview of these environmental issues is provided
191
|
Curtain
|
below based on scientific studies concerning the abandoned coal mines in the Collie Region
(McCullough & Lund, 2010; Doupé, and Lymbery; 2005; Lund et al., 2012). Doupé and
Lymbery (2005) explain the legacy of hundreds of mine voids throughout WA and the
difficulties of rehabilitation or stabilisation them throughout decades or possibly millennia:
“Mining is leaving a legacy of hundreds of mine voids throughout the State. There are
numerous safety issues that must be addressed as part of mine closure and, until
recently, there had been no assessment of the potential long-term environmental
impacts of mining below the water table. The mine void issue is vitally important to both
the Government and mining industry, as neither wishes to be liable for rehabilitation or
stabilisation of a mine void over a period of decades or possibly millennia” (Ibid, p.8).
McCullough & Lund, (2010) identify 13 issues of consequences due to untreated abandoned
coal mines in Collie district (Table 7.12).
TABLE 7.12 ENVIRONMENTAL CONSEQUENCES OF PIT LAKES IN COLLIE
NO ISSUE CONSEQUENCES
1 Presence of high-level metals 1.1 limit in-lake diversity and abundance;
in pit lakes. 1.2 causes skin lesions in vertebrates living in the
water;
1.3 drinking or feeding of poisonous biota in the
water (livestock, pests and natives)
2 Physical hazards in the 2.1 Pit bank instability such as erosion and
catchment area fluctuating water levels could impact wild and
domestic animals by falling from high walls and
become injured or drowning;
2.2 prevention of riparian vegetation;
2.3 smothering of aquatic plants due to pit bank
erosion;
2.4 burying secondary minerals;
2.5 contribution to acid sulphate soils (that have
previously been buried deep)
3 Salinisation 3.1 Limitation of beneficial end uses of pit lakes;
192
|
Curtain
|
3.2. the potential for acidic pit water discharge
contaminating ground and downstream
groundwater communities;
3.3 discharge of saline waters into surface
waters degrading these environments.
4 Stratification 4.1 If pit lake water is permanently stratified, and
does eventually change, highly contaminated
waters may discharge hazardous gases (CO ,
2
H S, CH and N O), releasing them into the
2 4 2
atmosphere;
4.2 production of algal blooms and release of
metals to surface waters
5 Occurrences of health hazards 5.1 Pit lake water could cause health hazards for
such as disease and biotic people living nearby or coming into contact with
toxins the waters due to forming toxic algal blooms, the
growth of disease-causing vectors (e.g.
mosquitoes);
5.2 causing diseases such as avian botulism and
salmonella affecting humans and transmitted
birds.
6 Extremely low pH 6.1 Buffering of acidity which makes remediation
more difficult, as buffering has to be overcome
prior changing pH to an optimum level;
6.2 chemical neutralisation (e.g. with lime) if used
may result in smothering of benthic organisms
and create a barrier to normal sediment/water
interactions;
6.3 Low pH may negatively impact on survival of
riparian zone flora if flooding occurs;
7 Changes in groundwater 7.1 Ongoing abstraction from nearby mining may
reduce the fill rate of the pit lake or reduce
groundwater inputs into established lakes;
7.2 changes in groundwater quality (salinity,
metals, nutrients and pH) in the discharge area.
Reduced exploitability of groundwater in high
193
|
Curtain
|
evaporation areas, either regarding quality or
quantity.
8 Connection to underground 8.1 Reductions in water quality;
workings 8.2 greater inter-seasonal variation in pH.
9 River flow-thru 9.1 Changes in riverine water quality (both
positive (e.g., nutrient additions), and negative,
e.g., increased salinity) may adversely impact on
endemic biota
9.2 changes in hydrologic management
downstream, e.g., contaminants might impact on
riverine processes.
10 Lake morphology 10.1 The influence of size and shape of the lakes
for biological activity, both in the lake and
riparian;
10.2 enhancement or reduction of wind mix
through the lake orientation and area: depth
ratio;
11 In lake storage 11.1 the possibility of oxidation due to the
presence of reactive materials in water which
may then release contaminants into the lake
water impacting the water quality;
12 Overburden dumps 12.1 Contaminants can reduce lake water
quality;
12.2 soils washing can smother aquatic plants or
benthic algae;
12.3 changes in wind flow and microclimates can
influence lake mixing and stratification.
13 Catchment morphology 13.1 Potential for the erosion of catchment areas
due to the absence of natural flow;
13.2 impact on the hydrology of the lake.
(Source: McCullough & Lund, (2010) Mine Voids Management Strategy (IV): Conceptual
Models of Collie Basin Pit Lakes).
194
|
Curtain
|
7.3.10 Conclusions: The second case study
The second case study provides an analysis of how two State Agreements ratified in 1979
have been utilised to manage coal mining in WA. Although the regulatory clauses embodied
therein emphasise the need for adopting “modern practice for the protection and management
of the environment including rehabilitation and/or restoration of the mined areas” (Griffin Act,
p.1), the mine rehabilitation work has not taken place as the regulatory clauses in both Acts
enacted to manage coal mining are not mandatory. The State Agreements also do not contain
specific time schedules for mine rehabilitation work to be completed by the two mining
companies. Further, in both Agreements, there are no penalty clauses for defaulting the
condition: “the protection and management of the environment”, hence, the government
agency responsible for monitoring the Agreements (DJTSI/DSD) has not been able to assure
environmental protection as in the case of Lake Kepwari example cited in this chapter.
Though WA has introduced mining rehabilitation legislation (MRF Act), it has no jurisdictional
powers over State Agreements. Furthermore, mine rehabilitation work might be untenable as
one of the current owners of the Griffin Coal are under administration due to financial losses,
hence, the cost of any rehabilitation work of that company would become the responsibility of
the State of Western Australia. As a combined effect of the regulatory flaws, and the financial
encumbrances of one mining company, the proposed coal mine rehabilitation work in WA may
remain as an unresolved legacy for many more years to come, and provide evidence that two
specific State Agreements enacted to manage coal mines have not been able to assure
environmental protection.
7.4 Conclusions of two case studies
The two case studies included in this chapter addressed research objective two of the PhD
study. In the uranium case study, I focused only on the approval of the uranium project as the
operational phase is yet to commence. In this case study, I identified complex legal issues
about the validity of the central legislation––the Yeelirrie Act under which the project has been
approved. I also identified its environmental regulations, and the difficulties of implementing
them for future mining rehabilitation work as the existing State legislation on mining
rehabilitation (MRF Act) has no authority over the mining operation concerning the mine
closures and rehabilitation work to protect the environment. Another critical issue that I
identified in the uranium case study is the absolute power of the Minister in charge of the
mining approval process in WA. In the example of Yeelirrie project approval, I provided
evidence of how the former Minister for Environment ignored the scientific evidence presented
by the Environmental Protection Agency about the potential environmental harm including the
loss of rare species of fauna impacting biodiversity. Thus, Yeelirrie uranium mine case study
195
|
Curtain
|
supports the issues identified in the literature review about the Ministerial power and authority
on mine approval (Chapter Four, section 4.5.2 ).
Another issue I identified in the first case study is the dichotomy of the WA mining regulatory
framework where due no rational grounds two types of regulatory systems have been adopted
to approve three uranium mines under the Mining Act and the other; the Yeelirrie mine under
a State Agreement. I also provided evidence about the validity of the Yeelirrie Act due to
ownership transfers that have not been ratified since 1982. The ownership changes after the
first owner (tenement holders) of each Agreements have not been ratified as discussed in the
two case studies. The ownership transfer issues raise questions not only about the ineffectual
nature of enforcing the environmental regulations in all three SAs examined in this chapter,
but also the possibility of passing the sovereign risks of mining rehabilitation liabilities to
subsequent governments and future generations.
Concerning the coal mine operations in the second case study, I discussed the reasons for
not implementing the environmental regulations embodied in the two SAs, and as a result how
it has contributed to adverse environmental effects as revealed by scientific studies conducted
about the impact on coal mining in the Collie Region.
In summation, the two case studies discussed in this chapter provided evidence about
weaknesses of the State Agreements as ineffective regulatory tools from the perspectives of
environmental protection. The main weakness is that the environmental regulations embodied
in State Agreements cannot be implemented as they are not mandatory. As a result, passing
the sovereign risks of mining rehabilitation liabilities to subsequent governments and future
generations are inevitable.
196
|
Curtain
|
CHAPTER EIGHT STRENGTHS AND WEAKNESSES OF THE MINING REGULATORY
FRAMEWORK
8.1 Introduction
The objective of this chapter is to examine the strengths and weaknesses of the mining
regulatory framework (MinReF) of Western Australia (WA). For the analysis presented in this
chapter, I obtained data from three sources referred to in Chapter Six (Methodology and
Methods). The first part of this chapter provides an overview of data collected for the analysis
of the MinReF. This chapter also includes the findings of the two case studies discussed in
Chapter Seven. The term MinReF is a construct designed to define State and Federal
legislation, regulations, policies and other administrative tools such as policies and guidelines
developed to manage the mining industry in WA. This framework is also responsible for
managing all forms of mining encompassing minerals, gas and petroleum, but the analysis
presented in this chapter is limited to examine regulations of two minerals, namely uranium
and coal. I presented a schematic diagram in Chapter Five (Figure 5.1) when I first introduced
the MinReF in this thesis. Figure 5.1 includes key components of a conceptual model
embodied in the MinReF.
In this chapter, I focus on one distinctive component of the MinReF, namely the environmental
regulations of two types of minerals: uranium and coal. In the remainder of this PhD thesis, I
will use the terms ‘MinReF; ‘mining regulatory framework’ and ‘regulatory framework’
interchangeably referring to the mining regulatory framework of Western Australia. The
analysis in this chapter focuses only on the regulations embodied in MinReF concerning the
environmental protection relevant to uranium and coal mining in WA. Several aspects of the
regulatory framework applicable to the scope of this study could be defined under four main
categories. They are: (i) environmental protection during the life cycle of mining activities; (ii)
regulating natural resources, such as land, water, fauna and flora affected by mining; (iii)
rehabilitation of mine sites as essential post-mining activities; and (iv) adhering to overarching
legislation, such as those laws related to environmental protection which exist to protect
natural environment irrespective of the cycle of mining operations.
MinReF represents unique characteristics. First, the legislation and regulations considered
under the MinReF have evolved since the enactment of the first formal mining legislation in
WA, namely the Mining Act 1904. Second, the mining legislation and associated regulations
in WA have gone through a legislative metamorphosis since 1904 up-to-now to help develop
197
|
Curtain
|
a wide array of mining laws to support a variety of mining activities including employee safety37
in WA and environmental protection. Third, the current MinReF covers several vital functions
associated with mining operations in WA, such as approval of exploratory licences, mining
tenements, transferring mining leases, and regulating the environmental impact due to mining.
Since 2011, it also plays a role by receiving Mine Closure Plans with every new mining
proposal. Fourthly, the MinReF includes a unique set of legislation commonly known as State
Agreements (SAs) that have been designed as regulatory tools to support large resource
development projects (Southalan, 2016; Barnett, 2014; Hillman, 2006). The SAs do not come
under the current mining legislation (Southalan, 2016; Hillman, 2006). As a result, the mining
projects operated under SAs do not come under the current legislation on mining rehabilitation.
The SAs are contractual arrangements agreed between the State Government and a mining
company (ibid), that are unique to each project. These contracts become legislation when
they are ratified in the Parliament. The two case studies in Chapter Seven included an
analysis of three SAs as regulatory tools from the perspectives of environmental protection.
There are vast amounts of legislation, regulations, and policies developed since 1978 to
regulate environmental protection in Western Australia—the Environmental Protection Act
1986; Environmental Protection Regulations 1987; WA Environmental Offsets Policy 2011; on
mining rehabilitation—Mining Rehabilitation Fund Act 2012; the use of water for mining—
Water Services Act 2012; and a new legislation to protect biodiversity in WA – the Biodiversity
Conservation Act 2016. Regulations associated with these mining-related laws are also
needed to be considered within the MinReF. The rationale for some of the WA legislation
such as the WA Environmental Offsets Policy 2011 and the Biodiversity Conservation Act
2016 appears to be redundant and superseded by Federal laws. For example, the Federal
Environmental and Biodiversity Act 1999 (EPBC Act) and the Off-Set policies under the EPBC
Act, still need to be considered under the MinReF because the EPBC Act and the associated
regulations are considered Australia’s peak regulations on matters concerning environmental
significance (Department of Environment and Energy, n.d.).
As there is interconnectivity of these pieces of legislation, regulations and policies, the broader
framework needs to be mapped out first. Table 5.2 lists all relevant legislation, regulations
and policies relating to this study and have been considered under the MinReF. The relevant
legislation, regulations and policies in Table 5.2 are listed since the enactment of the Mining
Act 1904 (though the timeline of the study commenced from 1978) because the pre-1978 State
37 In my analysis of legislation come under the MinReF (Table 5.2), I have excluded legislation and
regulation concerning employee safety as they are out of the scope of this PhD study.
198
|
Curtain
|
Agreement including the Yeelirrie Uranium Act 1978 has been approved under the Mining Act
1904 (Hunt et al., 2015, p.10). The legislation, regulations and policies listed in Chapter Five
(Table 5.2) are extensive and cover a wide variety of issues.
Environmental protection is a complex subject as it covers several issues relating to air, water,
and noise pollutions, acid mine drainage, impact on flora and fauna, and preservation of
biodiversity (Azapagic, 2014). Azapagic’s framework relating to mining sustainability practices
has nine variables to be considered with measurable indicators. However, his framework does
not cover mandatory mine closure plans and relevant regulations to enforce such plans at the
end of the life cycle of mining and safer storage of nuclear waste after uranium mining.
Therefore, I have added two additional variables to the framework by Azapagic. The variables
proposed by Azapagic (1 to 9) and the two additional variables proposed (10 to 12) are
summarised in Table 8.1. Further, I have proposed the ability to measure indicators under the
header ‘capacity to measure’ to the framework of Azapagic (2004) supplemented by additional
comments.
TABLE 8.1 SUMMARY OF KEY SUSTAINABILITY ISSUES ASCRIBED TO
ENVIRONMENT
No Variable Capacity to Comments
measure
1 Loss of biodiversity Yes. Need baseline data on pre-mining
biodiversity conditions via an
inventory before the commencement
of mining operations.
2 Release of emissions to air Yes. Need clear, measurable indicators to
(dust, toxic elements measure emissions before and during
including acid mine drainage) the operation.
3 Increased carbon footprints Yes. Can be measured, but in current
contributing to local and mining regulation, this aspect has not
national global warming received much attention due to the
absence of legislation to obtain
regular reports from at least from
large mine sites.
4 Loss of flora and fauna Yes. Need baseline data on pre-mining
flora and fauna conditions.
199
|
Curtain
|
5 Impact on land, and inability Yes Need clear measurable indicators to
to restore land & mine measure emissions during the
rehabilitation operational phase of mining
6 The quantity of solid waste Yes, (only Need to ensure proper waste storage
(tailing) estimated facilities relevant to each mineral.
amount
Storage of uranium tailing could be Azapagic’s framework does not have
(waste products in storage quantified) specific reference to uranium waste
facilities) facilities.
The waste material of uranium mining
contain harmful radioactive material,
and they should be kept in proper
storage facilities (World Nuclear Org).
7 Liquid effluent pollution and Estimated Need regular reports with clear
related impacts amount of measurable liquid effluent pollution
effluent indicators during the operation of
pollution. mining.
8 Use of water for mining and Yes Need regular reports with clear
approaches adopted for measurable water usage indicators
sustainable water usage during the operational phase of mining
9 Discharge of effluents and Yes Need regular reports with clear
leachates (including acid measurable indicators during the life
mine drainage) to the cycle of the mining operation
physical environment
10 Availability of mine closure Yes Submission of mine closure plans
plans submitted when mining (MCP) with mining proposals and their
proposals are submitted. capacity to address all relevant
environmental impact due to mining.
11 The applicability of Yes Having a mine closure plans are not
mandatory legislation that sufficient unless there are regulations
enforces mining companies binding companies to allocate funding
to implement mine closure to implement MCPs.
plans.
(Sources: Based on Azapagic, 2004 & Govinnage 2018)
200
|
Curtain
|
8.2 Data description
To address the research question and four objectives of this research project, I used three
sets of data: two sets of primary data and one set of secondary data which includes the
information collected from an extensive literature review. The first set of primary data includes
relevant State and Federal, legislation, regulations and policies as listed in Table 5.2. The
legislation and regulations ratified in the Parliament are considered primary sources though
they sit outside the reviews of the academic and grey literature (Coen,38 2018; University of
New South Wales, n.d.; Adelaide University, n.d.).39 Court decisions in case law and Acts of
Parliament enacted as legislative instruments are also considered a source of primary data in
a legal context (ibid). The first set of primary data includes the legislative instruments covering
the Acts of Parliament and relevant to the scope of this study, such as the Mining Act and the
EPBC Act etc.
The second set of primary data used for the analysis and the discussion in this chapter is
drawn from qualitative data from individual interviews with a group of research participants
(n = 16). A summary of the participants’ professional categories and their work experience is
listed in Table 8.2. Secondary data was also used from academic literature as well as the
government agency reports. Based on the literature review, it was possible to use theoretical
insights and “frame” the analysis of the interview material (Dekker, 2017, p.127).
8.3 Description of the research participants
For the analysis in this chapter, I interviewed sixteen research participants who are
professionals with significant knowledge of the WA’s mining sector. Some of them collectively
had over a century of corporate memory with expert knowledge relevant to the scope of the
study. For example, I estimated that three independent researchers I interviewed (see Table
8.2) had a collective corporate memory of nearly 70 years having worked in the public sector
with responsibilities under the Mining Act and the State Agreements.
The research participants generally expressed their opinions openly, shared their views on
the strengths and shortcomings of the legislation they are familiar with based on their past or
present work. Five of the sixteen participants (Table 8.2) are academics and two of them were
38 The issue about the primary concerning legislation was also discussed with Marilyn Coen who is
the Librarian, Humanities, Curtin University (Coen, 2018).
39 Legislation exists in two principal forms: Acts/Statutes, and delegated/subordinate Legislation, such
as rules, regulations and by-laws. The Commonwealth now refers to delegated Legislation as
legislative instruments (source: university of Adelaide, n.d.)
203
|
Curtain
|
TABLE 8.2 SUMMARY OF EXPERTISE OF RESEARCH PARTICIPANTS
Nos CATEGORY AREA/S OF EXPERTISE
4 Regulators The four participants had worked in key regulatory agencies.
Their work experience covered environmental regulations,
ecology, policy development and mining reform agendas of
WA with an ‘estimated corporate knowledge’ of over 100 years.
2 Lawyers The two lawyers had worked on key mining regulatory work
primarily in WA. One of them had work experience in the WA
public service.
5 Academics All five participants had published books and, peer-reviewed
journal articles covering issues such as mining sustainability,
corporate social responsibility, licence to operate, uranium
regulation and environmental protection issues. Three
participants had practical knowledge of mining regulatory
framework of WA and related subjects. One of the five
participants is a practising lawyer.
3 Independent These participants had an ‘estimated combined’ work
researchers experience and collective corporate knowledge of over 70
years. All three of them had worked in the WA Government
agencies responsible for some aspects the MinReF
legislation. One of them had published a postgraduate
dissertation on sustainable development, corporate
governance focusing on the bureaucratic structure of one key
government agency managing key legislation come under the
MinReF of WA.
2 Other These two participants represented the community interest
Stakeholders issues on mining, environmental protection and also acted as
public voices on such issues.
(Source: Primary research data)
The research participants do not include any representatives from mining companies which
was a deliberate decision because of the regulatory focus of this research project. My
objective was to understand the opinions and the perspective of the regulators rather than
205
|
Curtain
|
8.4 The Strengths of the WA mining regulatory framework
According to Chandler (2014, 165), the WA mining legislation is robust. Chandler notes:
“WA legislation provides a strong and comprehensive basis for regulating the
environmental impacts of mining. But legislation alone cannot guarantee an effective
regulatory regime.” (Chandler, 2014).
The Auditor General of Western Australia highlights that some aspects of the mining regulatory
framework have worked effectively, such as the collection of Royalties (WAAG, 2011, p. 18).
In a similar vein, some of the research participants also highlighted the strengths of the
MinReF, as follows:
“if you consider the mining regulatory framework to be beyond the Mining Act, i.e. the
Environmental Protection Act, the Water Act and other things, then we do have some
reasonable pieces of legislation which, if implemented properly, have the potential to
protect our environment.” (Participant # 2: External Stakeholder.)
“The strengths are that if you are really concerned about a project – that it’s really
causing a problem – you can close them down. You know, overnight you can just close
them down. That’s – you can say cease production, and that’s the real strength.”
(Participant # 12: Independent researcher)
Another research participant provided an insight highlighting another strength of the MinReF:
“The EPA provides the Minister with its considered advice based on everything that it
has heard, what the companies have put in, whatever else it has found. However, the
power – the strength of our system is that the Minister then looks at it more broadly and
s/he then has to defend it to the public” (Participant #10: Regulator).
Although the above opinion highlights the power of the Minister as a positive feature of
MinReF, this can be a double-edged sword as any person who holds this portfolio could
disregard any advice based on empirical evidence pointing to negative impacts on the
environment. For example, the former Environmental Minister, Albert Jacob overruled the
EPA advice against approving the Yeelirrie uranium project (Shepherd & Tomlin, 2017).
207
|
Curtain
|
A research participant who was a lawyer with significant experience in resource law in WA
emphasised the strength of the MinReF:
“The strength is that there’s a lot of – legislatively the framework is actually really strong
in WA and there’s also a pretty good history of environmental research and collecting
environmental data and using environmental knowledge within the State”.
(Participant # 3: Lawyer)
Another participant highlighted the powers of the legislation under the MinReF:
“One is – it does force mine developers to think through their actions, their
consequences, to quantify them, to predict them and to show how they are going to
either avoid, mitigate or offset those impacts. And that discipline is there. It is enforced…
And under the more recent legislation, them having to account on an annual basis how
much environment they disturb, what kind of and what they are doing to redress that
each year, rehabilitate each year where they can. So, those are the strengths from an
environmental point of view” (Participant # 10: Regulator).
Despite the legislative provision for annual environmental reporting, the submission of annual
reports by mining companies has not been enforced. According to the WA Auditor General:
“[o]nly 55 percent 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).
However, the Auditor General provides evidence that the agencies have not had in place
strategies to coordinate and follow up on regulatory compliance. Furthermore, the participants
highlighted some inherent weaknesses of the existing mining legislation which are described
in section 8.5.
208
|
Curtain
|
8.5 Research findings
This section outlines seven main findings which were identified from the analysis of the
collected data supported by the review of legislation, and data collected from the research
participants and literature review. The seven findings are: (i) inherent weaknesses of key
legislation; (ii) unclear demarcations and overlap of legislation; (iii) ambivalence and
dichotomy of the mining regulatory framework; (iv) lack of coordination of mining regulatory
framework and multi-agency roles; (v) absence of an apex agency to coordinate mining
regulations; (vi) delays in introducing environmentally-centric legislation; and (vii) lack of
adaptive capacity, and these are discussed below.
8.5.1 Inherent weaknesses of key legislation Acts
In this section, I investigate a sample of mining legislation based on the data gathered from
the legislative analysis (primary data), and perspectives gathered from a group of research
participants. The sample of the legislation include: Rights in Water and Irrigation Act 1914;
Mining Act 1978, Mining Rehabilitation Fund Act 2012, State Agreements, the Environmental
Protection Act 1986 and Environmental Protection and Biodiversity Act 1999.
8.5.2 Rights in Water and Irrigation Act 1914
This century-old Act regulates the rights in water resources and addresses the provision of
water, management of water resources, and protection of water resources (Rights in Water
and Irrigation Act 1914, p.1). Under section 26GX (d) of the Act, the Minister in charge of the
portfolio 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 the weakness of this century-old legislation.
8.5.3 Mining Act 1978
The Mining Act 1978 (Mining Act) plays a vital role in issuing different types of mining
tenements. Any company – large or small, or an individual who wants to obtain a prospector’s
licence or mining tenement cannot undertake any mining activity in WA without receiving the
appropriate licenses under the Mining Act. Hence, it plays a crucial role within the MinReF.
The Mining Act which evolved from the Mining Act 1904, is a symbol of the dynamic nature of
the legislation under the MinReF. It has been amended 70 times, and as of 1 July 2015, the
regulations associated with the Act have been amended 116 times (Hunt et al. 2015, p.7).
These amendments primarily deal with administrative issues. A research participant
confirmed the evolving nature of the Act:
209
|
Curtain
|
“The Mining Act has evolved where if you go back to, you know, the 1904 Act, there’s
been an evolution where environmental aspects have slowly been incorporated and
we’ve gone through this year [another]…” (Participant # 8: Regulator)
Despite its evolutionary nature, the Mining Act has limitations as it has to operate under other
legislation which limits its jurisdictional powers. As stipulated under section 6 (1) of the Mining
Act, it needs to be operated under the Environmental Act 1986. A research participant who
had served in the WA’s EPA confirmed the role and its limited jurisdiction powers:
“The Environmental Protection Act prevails over the Mining Act and if there is a dispute
about the definition of “environment” and what should be included or what not, then the
Environmental Protection Act will prevail over the Mining Act, if the two are in operation”
(Participant # 11: Academic).
Hunt (2009) who has analysed various statutory issues of the Mining Act notes:
“As an instrument of government policy relating to mining, the Mining Act establishes
the basic ground rules for finding and securing rights to mine minerals”. (Hunt. 2009,
p.15).
The subordination nature of the Mining Act takes away its capacity to enforce environmental
regulations. Another weakness of the Mining Act is that only recently it had been given powers
to solicit Mine Closure Plans (MCPs). The 2011 Amendments to the Mining Act granted
authority to call for MCPs when mining proposals are submitted for approval (DMP, EPA,
2015, p.4). By that time many major mineral projects in Western Australia have already been
approved and were in operations. Hence, mine closure plans which are essential elements of
environmental protection have only been incorporated into the Mining Act 40 years after it was
enacted, leaving thousands of mining licences and tenements outside this provision.
The jurisdiction of the Mining Act is also subject to the powers of other legislation under the
Native Title Act 1993 (WA). According to Hunt et al., 2015:
“It is essential to consider the effect of the Native Title Act 1993 about exploration and
mining on lands subject of native title” (Hunt et al., 2015, p.63).
210
|
Curtain
|
A research participant who is an academic, and a practising lawyer highlighted that the Mining
Act had incrementally evolved to accommodate environmental concerns:
“I don’t think we can say that the Mining Act as such was geared towards protecting the
environment, but certainly over the years in its various iterations it has, I guess, adopted
more favourable terms concerning the environment. But in the end, the Mining Act is
not so much about protecting the environment. It is about facilitating mining activities”
(Participant # 4: Regulator).
In a similar vein, a regulator considered the Mining Act as a mere rule book for granting mining
tenements:
“From a purely philosophical point of view, the Mining Act is really about the rules. How
does the government give out exclusive rights to explore or mine? So, it’s the exclusive
right to carry out an activity.” (Participant # 8: Regulator).
Another participant who represents the community voices on environmental protection
highlighted the limited powers of the Mining Act:
“There is no object in the Mining Act for protection of the environment. It is not an object
of the Mining Act. There are no head powers in the Mining Act which empower the
Department of Mining and Petroleum, the agency that gives effect to the Mining Act –
there are no head powers to empower them for environmental protection. Instead the
Mining Act has different objects and the objects of the Mining Act are to assist and
facilitate the Environmental Protection Act using the Mining Act” (Participant #: 2,
Stakeholder).
Since the enactment of the Mining Act, it never had regulatory powers to enforce mine
rehabilitation which is an essential condition of environmental protection. Therefore, the
Western Australian Government had to introduce a new regulation outside the Mining Act on
mine rehabilitation through the Mining Rehabilitation Fund Act 2012. The evolution of the
Mining Act indicates adding critical regulatory conditions such as mine closure plan (MCP)
with new mining proposals which became mandatory in 2011 due to an amendment to the
Act. However, each MCP submitted under the Mining Act is now subjected to the MRF Act
for mine rehabilitation as the Mining Act has no jurisdictional powers on mine rehabilitation
(Participant # 8).
211
|
Curtain
|
8.5.4 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 abandoned
mine sites of the State and a non-refundable annual levy payable; (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). It is critical to recognise the enactment of the MRF Act which became
a mandatory law for mines operating under the Mining Act However, both the Mining Act and
the MRF Act has no authority over the State Agreements (Morrison-Saunders et al. 2014),
used for approving and managing large-scale resource projects including the uranium and
coals mining operations discussed in two case studies in Chapter Seven. Despite the
enactment of the MRF Act, it has no authority to request mine rehabilitation work of 64 projects
operating under State Agreements (See Table 5.3).
A participant––a senior regulator, involved with mining regulations highlighted the fragmented
structure of the MinReF, and questioned the rationale of having a seperate legislation on
mining rehabilitation (MRF Act) external to the Mining Act:
“We have introduced the MRF, mining rehabilitation fund; that was a separate Act. In
some respects, I would have said, you should have stuck it in the Mining Act”.
(Participant # 8: Regulator).
8.5.5 State Agreements
State Agreements (SAs) are unique pieces of legislation first enacted in 1952 which continue
to provide the legitimacy and support all major resource projects in WA (Barnett, 2014).
According to the Government of Western Australia, 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 3). Barnett describes SAs as legislative
instruments that “allow the whole of State government requirements to be managed under a
single Act for each [large-scale] project” (Barnett, 1996; p.315).
At present, there are 64 SAs which are considered active (djtsi.wa.gov.au, n.d.), and they are
listed in Table 5.3. One of the inherent weaknesses of the SAs is that they do not operate
within the current mining legislation (Southalan, 2016; Hillman, 2006). Each SA begins as a
contractual negotiation between a company and the State Government, and companies
negotiate what they expect the government to offer various privileged conditions sometimes
212
|
Curtain
|
lower Royalty rates. One example of special conditions granted under a SA is the Yeelirrie
Act which was granted special conditions as listed in Chapter Seven (Table 7.2).
Another weakness of the SAs is that any conditions on environmental regulatory compliance
especially the mine rehabilitation work incorporated in them cannot be operationalised
because the MRF Act has no jurisdictional powers over State Agreements. I analysed the
environmental regulations incorporated into the Yeelirrie Act in Chapter seven, and how the
uranium project was approved. In the second case study, I explained how the coals mines
have been managed for many decades but have contributed to adverse environmental effects
in the Collie Region due to inherent weaknesses of SAs. In both cases, the embodied
environmental regulations have not been applied to ensure environmental assurance.
Further, I found that the mining rehabilitation work at the end of mine operations have not been
enforced as the embodied regulations are not mandatory. During a parliamentary debate
which took place in 2016, the minister in charge of SAs under the State Development Portfolio
confirmed that mining rehabilitation work under coal mines could not be guaranteed (Chapter
seven, section 7.3.6). As a result, the mining companies can walk away at the end of mine’s
life cycle of projects operated under SAs (Participant # 8). The reasons are twofold. First, the
SAs do not come under the current mining rehabilitation legislation (MRF Act). Second, the
SAs are developed through negotiated agreements by granting benefits to multi-national and
local companies ignoring public interest, such as environmental protection. All SAs are
operating above the existing mining laws in WA (Southalan, 2016; Hillman, 2006).
The SAs do not demonstrate transparency under governance principles—a characteristic of
public policies operating in liberal democratic societies focusing on public interests (Porter &
Phillips, 2007; Ogus (2004; 2004a). The way economic benefits and incentives have been
granted to companies under State Agreements (SAs) ignoring public interests, and also
contravening environmental conditions and compliance as the current mining rehabilitation
legislation (MRF Act) is not applicable to SAs. When discussing the uranium case study, I
provided a list of exclusive benefits granted to the first owner of the uranium mine project
through the Yeelirrie Act 1978 (Chapter Seven; Table 7.2).
Once the conditions of the contractual agreement in each SA is finalised through negotiations
between the government and a mining company, each Agreement needs to be ratified in the
Parliament as legislation (Hillman, 2006). Once a SA is ratified, the conditions therein are
fixed for the life cycle of the project. This issue was confirmed by a research participant—a
senior regulator who stated:
213
|
Curtain
|
“We are not really worried about the State Agreement, and they’re fixed in stone
and the only way we can change it is, if there’s agreement between both government
and the companies” (Participant # 8: Regulator, emphasis added).
The plausible reason for the Government of WA to be comfortable with the SAs may be since
80 per cent of the Royalties collected as income from mines comes from the projects under
State Agreements opposed to 20 per cent from the mines operated under the Mining Act
(Barnett, 2014). The same participant explained why the government is comfortable with the
current status of the SAs despite their inherent weaknesses of not considered under the WA
mining rehabilitation legislation, i.e. the MRF Act:
“Most of the Royalties come from State Agreements, which Charlie Court did years ago.
It’s very much related to iron ore. Not all the iron ore operations in WA are under State
Agreements. You’ve also got some of the heavy mineral sands downstream processing,
petroleum as well. So, yeah, it’s quite a lot” (Participant # 8: Regulator).
Despite the significant income from mining Royalties from the projects under the State
Agreements, there are adverse environmental impacts as mine closure plans and mining
rehabilitation work are not mandatory for mines operating under SAs. Hence, there are
financial liabilities and sovereign risks for unfunded environmental consequences; an issue
identified in the Collie coal mining as discussed in Chapter Seven. There are 17,000
abandoned mines in WA (Government of Australia: Media Statement, December 2014, para
twelve). Research participant # 8 highlighted the unfunded liability concerning the mine
closure plans of projects under SAs. Mining companies could walk away at the end of the life
cycle of mining without mine rehabilitation as the environmental assurance conditions of SAs
are not mandatory. Participant # 8 highlighted this regulatory gap in SAs:
“What are the liabilities? Funded or unfunded? The answer I got for what it’s worth is
under the Mining Act with the MRF, there’s a narrative that says the potential – the
liabilities are funded and money for defaulting. However, for the State Mining Act
agreements, the older ones, it is unfunded liability. If the companies walk away for some
reason, there is an unfunded liability” (Participant #8: Regulator).
As the mining rehabilitation is a key issue of environmental protection whether the unfunded
liabilities could be addressed under the WA environmental protection legislation need to be
214
|
Curtain
|
explored. The next section provides a description and issues concerning the Environmental
Protection Act 1986.
8.5.6 Environmental Protection Act 1986
As outlined in Chapter Five (section 5.7.2) the Environmental Protection Act 1986 (EP Act)
comes under the jurisdiction of the newly re-structured agency now known as the Department
of Water and Environmental Regulation (DWER). The EP Act was legislated eight years after
the enactment of the Mining Act, and also has the authority to protect various environmental
issue including vegetation conservation (EP Act, 1986, p.91). There is a hierarchy of mining
regulatory framework, and the EP Act sits on top of other legislation. A participant confirmed
the same:
“The Environmental Protection Act is sitting at the top of the pile and then you’ve got
other acts underneath it in various relationships to each other” (Participant #:11,
Academic).
Further, the EP Act carries an authority to prosecute individuals or corporations for criminal
negligence (EP Act, p.89), and has the power to declare environmentally sensitive areas, (Op.
cit, p.91). The jurisdictional power of the EP Act is broader than the powers under the Mining
Act.
The DWER is also responsible for providing guidelines for Environmental Impact Assessments
under the EP Act. A “review” was carried out by a team of independent lawyers (Quinlan,
Heenan, Govinnage, 2016) in In 2016. According to the review, “the EPA’s current policy
structure is inadequate to provide the necessary guidance for all users of the documents and
… this situation adversely affects both the use and the development of policy instruments
generally”. (ibid, p. viii). About the agency’s power in conducting environmental impact
assessments, Quinlan et al. note:
“The conduct of an environmental impact assessment and resulting report under s 44 of
the EP Act is clearly “administrative action” that can be subject to judicial review and
may be declared invalid where it is occasioned by an error of law. Nevertheless, there
are a number of features of the EPA’s powers which distinguish it from those usually
exercised by administrative bodies” (Quinlan et al., 2016, p. vi).
215
|
Curtain
|
The findings of the Quinlan et al., reveal that despite the powers of the EP Act, the way it has
been implemented has flaws, leading the agency to develop “several ‘types” of policy
instruments with different purposes” (ibid).
In addition to the implementation functions of the EP Act, the DWER has a responsibility of
implementing the Federal EPBC Act, and the issues relating to this function are discussed in
the next section. The EP Act also has some responsibilities of mine closure planning work in
WA. According to a publication titled Administration of Mine Closure Plans:
“[E]xisting operations that are not administered under the Mining Act 1978 and mine
closure is not regulated under the Environmental Protection Act 1986. Operators are
expected to liaise with the appropriate regulator(s) about requirements for mine closure
planning and are encouraged to have in place mine closure planning and
implementation consistent with these guidelines” (dmp.wa.gov.au: Administration of
Mine Closure Plans, Section 8).
The words “existing operations that are not administered under the Mining Act” refers to the
SAs. However, mine closure is not regulated under the EP Act; hence this represents a
regulatory gap that cannot be managed by the EP Act to enforce mine closures of the projects
come under the SAs.
8.5.7 Environmental Protection and Biodiversity Act 1999
The Environmental Protection and Biodiversity Act 1999 (EPBC Act) incorporates regulations
for the protection of the physical environment including biodiversity in all Australian States and
Territories, and natural and culturally significant places (EPBC Act). Under section 45 of the
Act, the Federal Government has the authority to have bilateral agreements with State and
Territories (Australian Government, EPBC Act: s. 45). A bilateral agreement under the EPBC
Act) is now in operation, and the WA Environmental Protection Authority states:
“The Western Australian Government (WA) has signed a new assessment bilateral
agreement with the Commonwealth Government under the Commonwealth’s
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The
agreement was signed on 3 October 2014 and came into effect on 1 January 2015. The
agreement allows WA to assess proposals likely to have a significant impact on the
environment on behalf of the Commonwealth. The Commonwealth will still make the
216
|
Curtain
|
approval decision under the EPBC Act relying on the WA assessment report. (Office of
the Environmental Protection Agency. February 2015, para one & two).
The Federal Government has delegated the administration of the EPBC Act to the Western
Australian Government through a Memorandum of Understanding (MoU) which became
effective 1 July 2015. (Ibid) The MoU states:
“The purpose of the MoU is to set out the agreed arrangements that will be pursued
by the Commonwealth and Western Australia to deliver a one-stop shop for
environmental approvals under the Environment Protection and Biodiversity
Conservation Act, 1999 (EPBC Act) and State legislation, removing duplication in
assessment and approvals processes, while maintaining environmental outcomes
(Commonwealth of Australia: Memorandum of Understanding, 2015)”.
However, a question remains whether the Federal Government has delegated the ‘legislative
authority’ of the EPBC Act to the EPA, as the MoU is not a legal document. Sections C & D
confirm that the;
“MoU is not a legal agreement. However, both Parties commit to using their best
endeavours to achieve its purpose” (ibid, p.2).
The validity of the MoU could not be verified due to the absence of literature and court cases
on this issue. The validity of the Australian Government’s MoU has not been challenged or
tested in a Court of Law at the time of writing this thesis (August 2018).
In the uranium case study in Chapter Seven, the environmental approval process under the
EPBC Act is discussed by outlining the conditions that would have been evaluated under the
Act. Four months before the Commonwealth and State bilateral agreement came into effect,
the EPBC Act 1999 was audited by the Australian National Audit Office (ANAO). According
to the ANAO audit report (2014) titled Managing Compliance with Environment Protection and
Biodiversity Conservation Act 1999 Conditions of Approval, the administrative arrangements
of the EPBC Act have not functioned adequately:
“Nearly 14 years after the enactment of the EPBC Act, Environment [Dept.] is yet to
establish mature administrative arrangements to effectively discharge its regulatory
217
|
Curtain
|
communication from the former Federal Minister for Environment (2013-2016). Under the
Australian Constitution, the State agencies have no jurisdictional powers to make changes to
Federal legislation, and in this context, the Federal EPBC Act.
8.6 Unclear demarcations and overlaps of legislation
The WA Auditor General’s (WAAG) audit report (WAAG, 2011) is the first publicly available
evaluation of the strengths and weaknesses of the mining regulatory framework of WA. The
Auditor General observed that the framework could create “the potential for overlap, repetition
or gap” (WAAG, 2011, p17). This observation can also be used as a baseline to find out how
issues have progressed since 2011.
The participants shared a variety of opinions primarily highlighting the negative aspects of the
framework. Two different perspectives were provided about the overlaps and duplication of
the MinReF by two participants from two agencies responsible for two different roles on mining
regulations. The first opinion emphasised the difficulties encountered by the mining
companies due to overlap and duplications of legislation:
“When you go through the [mining] approval process, there’s actually a fair bit of overlap
between the information that you might need to provide and also the conditions that may
be imposed if your [proposal] get approved” (Participant #5: Lawyer)
Another participant also noted overlaps and duplication of legislation as significant weakness
of the mining regulatory framework. Further, the participant provided a summary of the current
situation highlighting the downside of the multi-agency structure:
“Yes, I think it is to do with the number of regulatory agencies that are involved, but that’s
pretty much symptomatic of the fact there’s overlapping legislation as well… So, in my
opinion, you want to streamline the number of different agencies that are involved. But
to do that I believe you’d actually have to have legislative reform because, you know,
the EPA and DWER are there essentially, because of the Environmental Protection Act.
We’re there because of the Mining Act. You know…the water—Department of Water
and other water agencies are there because of their various bits of legislation… a lot of
them haven’t been updated since the 1920s and the 1940s. And then you get the
Commonwealth agencies as well, obviously, because of the Environment Protection and
Biodiversity Conservation Act. So, yes there’s – I think streamlining the number of
219
|
Curtain
|
agencies that are involved, purely from a regulatory point of view is vital”
(Participant #5: Lawyer).
Concerning the old water-related legislation, the participant was referring to the Rights in
Water and Irrigation Act 1914 and the Country Areas Water Supply Act 1947.
This participant’s opinion was also validated through secondary data. The WA Auditor
General observed:
“As well as spreading the requirement to provide assurance, the framework also creates
the potential for overlap, repetition or gaps, and complicated processes for operators
and agencies to navigate. Minimising these risks needs clear roles and responsibilities,
effective coordination between agencies, sound internal processes and effective
planning (WAAG, 2011, p.17).
Despite Auditor General’s findings seven years ago, no significant improvements have taken
place except name changes and shifting of roles from one agency to another:
“The Department of Mines, Industry Regulation and Safety was created on 1 July 2017
with the amalgamation of the Departments of Mines and Petroleum and Commerce.
These structural changes are part of the WA Government’s State-wide public sector
reforms. The new department will regulate the mining, building and construction industry
with an elevated focus on worker safety. It will also assume consumer protection
responsibilities’ (DMIRS, n.d., para. 9).
One plausible explanation for the continued overlap and duplication of legislation could be
found by examining the “lead-agency” discourses of the individual agencies responsible for
implementing an uncoordinated legislative framework (WAAG, 2011). Due to multiple agency
structures of MinReF, some departments have developed unique organisational cultural
discourses by providing “lead agency” narratives about their specific roles and responsibilities.
The term “lead agency” has been defined as an “agency responsible for coordinating the
approvals process (Premier and Cabinet, n. d. p.4). For example, in 2014 DMP claimed that
it is the lead agency for regulating the mining industry in WA:
“Department of Mines and Petroleum is the lead agency for regulating mining and
petroleum exploration and development activities. The environmental regulatory role of
220
|
Curtain
|
Department of Mines and Petroleum operates within and contributes to the State and
Federal regulatory framework.” (Government of Australia: Department of Mines and
Petroleum, 2014, p.1).
Further to the lead agency discourse of the DMP, the then Department of State Development
also claimed its role about the lead “agency for major resource, and industry infrastructure
projects” (DPC., n.d., p.10). These agency narratives which are not embodied in legislation
indicate that each agency’s claim for being the “lead agency” and, these narratives could be
attributed to the ambivalence, and the dichotomy of the mining regulatory framework which is
the focus of the next section.
8.7 Ambivalence and dichotomy of the mining regulatory framework
The term ‘ambivalence’ is used in this section in a legal context though it is also used in other
disciplines. Sociologist Bauman (1991) in his work titled ‘Modernity and Ambivalence’ define
ambivalence as “the possibility of assigning an object or an event to more than one category”
(p.1). Further, he identifies two notions of ambivalence. According to Bauman, the first notion
represents a feature of waste and the second—a weakness (p.15). Bauman’s second notion
of weakness as embodied ambivalence is in alignment with the legal interpretation of the
concept. For example, in Burton’s Legal Thesaurus (2007), the term ‘ambivalence’ denotes
meanings such as dubiety, incertitude, indecisiveness, and indetermination suggesting that it
is both a weakness and uncertainty. The additional term “dichotomy” which I added to this
description indicates a contrast or duality.
The ambivalence and dichotomy of the MinReF are due to having two systems of mining
regulations; one operating under the Mining Act and the other regulating the large resource
projects under State Agreements. The unclear demarcation of legislation under the MinReF,
allows both ambivalence and dichotomy are enabling one segment of the mines to be
managed under the Mining Act, and exempting the projects under the State Agreements from
the mandatory conditions such as mining rehabilitation. The dichotomy of the mining laws has
engraved two sets of mining laws in WA, against the governance and equity principles under
the Rule of Law where every individual and legal system should operate on the same level
playing field as in other Capitalist Democratic Western societies.
Further, when it comes to environmental protection of mining, the regulative powers of
environmental protection are divided under five State agencies with fissured boundaries
(Chapter Five, Sections 5.6.1 – 5.8.1). While the Mining Act now has authority to request for
221
|
Curtain
|
Mine Closure Plans along with new mining proposals, the final adjudication of the
environmental protection rests with the EP Act which comes under the Department of Water
and Environmental Regulation. Another example of the dichotomy of the MinReF is the
division of the State and Federal legislation. Section six of the Mining Act states that
environmental issues concerning a mining proposal which has significant environmental
components (such as in approving uranium mining), needs to be evaluated under the EPBC
Act which “is the Australian Government’s central piece of environmental legislation
(Australian Government: Department of Environment and Energy (n.d., para 1).
The dichotomy of the mining legislation in WA is visible with regard to mining rehabilitation
work as the current legislation (MRF Act) has limited authority. The MRF Act applies to all
mines operated under the Mining Act, but it has no jurisdictions over the projects operated
under State Agreements confirming two sets of legislation on mining rehabilitation work in WA.
This particular feature of MinReF can be described as ‘legislative dichotomy’. Further insights
into the dichotomy of SAs can be explained using the ‘politics of regulations’ and roles of
government institutions and regulatory functions using theoretical discourses relevant to this
study. Anthony Ogus (2004 & 2004a), explains relevant theoretical discourses using
economics theories and ‘public interest policy’. Ogus’ work helps to understand the dichotomy
of the mining legislation in WA. Ogus’ study (2004, pp 31 - 41) on regulation was first
published in the 1990s. He examines the fundamental changes in the relationship between
the state and the industrial sector. Utilising economic theories, Ogus critically examines how
public law has been employed to regulate the industrial actors by offering benefits. Further,
Ogus provides a systematic and comparative overview of the underlying forms of theories that
drive social and economic regulation. He provides a case for the parallel existence of two sets
of frameworks. The first set includes “public interest” theories that drive the effort to improve
social and economic welfare in society. In the second set of economic theories, he suggests
that regulations aim to satisfy the needs and demands of private interests. Ogus’s second set
of the theory is helpful to explore why the State of Western Australia maintains two parallel
systems of mine approval and management by favouring a class of mining companies
operating under the SAs. Due to having two systems of mining approval; one depends on the
Mining Act and the other using State Agreements, and the latter favouring companies that are
willing to invest funds to undertake huge projects such as uranium mining in WA (Cameco
Australia.com, 2015).
The ambivalence of the mining legislation also poses issues when it comes to mining reform
agendas as the responsibility of which is divided among three agencies (DMP, 2014, p. 5).
222
|
Curtain
|
For example, mining regulatory reform program (2012 - 2015), initiated by the Department of
Mines and Petroleum had to operate in parallel with two other agencies:
“Over the past few years…Western Australian State Government agencies have …
progressed with implementing environmental regulatory reform programs. The three
agencies with significant environmental regulatory responsibility in the mineral and
energy sector (Environmental Protection Authority, Department of Environment
Regulation and Department of Mines and Petroleum) regularly collaborate on reform
proposals which are of an administrative, systems and legislative nature.” (Government
of Australia: Department of Mines and Petroleum, 2014, p.5).
The above statement also confirms the multi-functional nature of the various agencies
responsible for environmental regulations under the MinReF indicating the need for a better
coordinated regulatory system.
8.8 Lack of coordination of the mining regulatory framework and multi-agency roles
During the first formal evaluation of the WA mining regulatory framework, the WA Auditor
General (WAAG, 2011) noted two key issues relating to the difficulties of coordinating
legislation and regulations that come under the MinReF. They are: (a) “The regulatory
framework around the mining industry has been established over time”; and (b) “there are
numerous agencies and pieces of legislation involved” (WAAG, 2011, p.14). Although the
Audit report does not provide further analysis of these two issues supported by theoretical
explanations, they are crucial to understand the factors of unclear demarcation and overlap of
legislation. Further to the issues noted by the Auditor General, during this study, I identified
five other features of the MinReF. They are: (a) the evolution of the legislation and regulations;
(b) the drivers that influenced the form and shape of the structure of the regulatory framework;
(c) the diverse roles and uncoordinated functions of the implementing agencies; (d) the current
mode of formal and informal communication between implementing agencies and (e) the risks
associated with the framework.
I have already identified two of the five features stated above. In Chapter Five (Section 5.2),
I covered the historical factors, identified and listed (Table 5,2) how all key legislation and
regulations have evolved since the enactment of the Mining Act 1904 up to 2017. I also
described in Chapter Five how two mining reform agendas had been implemented––the
Keating Review (2009), and the Mining Reform Agenda (2012 – 2015) as drivers of legislative
reviews and introduction of new legislation For example, the enactment of the MRF Act in
223
|
Curtain
|
2012, and the aborted Mining Amendment Bill 2015 which aimed at introducing risk and
outcome-based regulatory system (Chapter Five; section 5.3), which ended up with a
Parliamentary inquiry due to community concerns (Chiat, 2017, para one).
In Chapter Five (section 5.6. – 5.8.1) of this thesis, I have already discussed the roles,
functions and legislative jurisdictions of the implementing agencies and introduced various key
legislation come under each agency. As the legislation and regulations come under the
MinReF are implemented through a multi-agency system, it is now essential to identify how
the legislation and regulation to explore how effectively they have been implemented. The
WA Auditor General (WAAG, 2011) provides an insight using a term a term “dispersed
approach” about the lack of evidence to “provide overall assurance on compliance with
conditions” (Op. cit, p.17) highlighting “that no agency is responsible for providing assurance
on overall compliance with conditions placed on mining (ibid). The WAAG further notes:
“Individual agencies report on aspects of their own activity and performance. For
agencies other than DMP, mining is not their key activity and is not reported specifically.
While DMP reports on mining issues, no agency reports on the overall compliance of
industry, or on whether conditions provide the intended outcomes” (ibid).
However, the Auditor General does not explain the reasons for his finding. Three reasons
were identified using the primary data. To gain insights into the issue of the “overall
compliance”, I asked one of the research participants—a senior official with responsibilities on
mining regulation focusing on the coordination of State Agreements between agencies:
“There are processes. Sometimes State Agreements are written in or approved by the
State Development, but then it must be approved by the Minister for State Development.
It also must be approved by the Minister for Mines as well. So, there is a lot of
coordination and a lot of my people do a lot of work for the DSD because they say,
‘Here’s a State Agreement; under the Act this has to be done.’ The Act may say the
Minister for Mines will grant this, but they still must go through the process even though
at the end the minister must do it. They still have to do the process”. (Participant #:8;
Regulator).
The above response provides an insider’s perspective on how both the formal and informal
communication between two agencies takes place. Another participant who is a lawyer and
224
|
Curtain
|
an employee of a key regulatory agency provided insights into the “regulatory layers” that exist
within and between agencies and the difficulties encountered:
“The challenge is the way the agencies been set up; it’s almost like a splitting up of
different aspects of the environment. So, you’ve got water; you’ve got heritage, you’ve
got mining. Sometimes it’s split by industry, and sometimes it’s split up by the actual
environmental issue. You’ve got parks and wildlife – so they focus on biodiversity –
water, heritage, mining and everything else. So, whilst there is a common purpose.
Obviously, when you start breaking everything up into individual components and having
agencies specifically look at those components, there’s the ability for things either to be
missed. As I’ve said before, there’s gross overlap and duplication”.
(Participant # 5: Lawyer)
The participant’s views were similar to observations of a radiologist examining an X-ray to
diagnose an illness of a patient. The participant who used his legal and observational skills
diagnosed a problem with communication between various components of regulations,
highlighting how agencies interact. According to the participant, the agencies involved in
mining regulatory functions have to deal with “chunks of regulatory responsibilities” in an
environment already burdened with “gross overlap and duplication” of regulations. This is a
good departure point to examine the fourth factor, identified at the beginning of this section:
risks and outcomes of the regulatory framework.
The overall finding including the analysis of the two case studies and insights gained from
research participants, three issues can be identified. First, the “fragmented nature” of
regulatory functions that come under the MinReF. Second, the reasons for the fragmented
nature of the MinReF could be attributed to historical reasons as the current framework has
evolved through a legislative metamorphosis over 100 years, and how agencies have
emerged to manage uncoordinated regulatory functions (participant # 5). It is important to
note that both agency structures and legislation assigned to them do not fit into a well-
designed montage of the regulatory framework. Third, is the Auditor General’s observation
that the “regulatory framework around the mining industry “is large and complex…” (WAAG,
p.14). The complexity of the regulatory framework has not added structures and processes
to strengthen it, make it weaker, especially monitoring gaps and identifying weaknesses.
Another research participant who was a member of an environmental advisory committee
summarised the situation as a one-line statement confirming a weakness of the MinReF:
225
|
Curtain
|
“That’s it– the monitoring end has been the weak end for 50 years!”
(Participant # 11: Academic).
In this context, it is important to consider the information provided by another participant about
the fragmented nature of mining regulations. For example, according to the participant, the
Mining Act is legislatively “fragment” as it does not cover all aspects of mining regulations as
it operates within a dichotomised mining regulatory framework. The participant’s opinion
supports the presence of features of the dichotomy and fragmented nature of the mining
regulatory framework (Box 8.2).
BOX 8.2 A REGULATOR’S VIEWS ON THE FRAGMENTED NATURE OF
MINING REGULATORY FRAMEWORK
“Safety is an integral part of mining, but it is a separate Act. And
probably from a practical point of view having a separate Act means it’s
quite clearly defined, and it’s tacked on to it. The other jurisdictions are
going the other way where you put everything together… but having
separate Acts! This is the safety bit, that’s that bit. You know, you could
actually merge safety into the Mining Act, but you’ve always got the
environment, you’ve got other things, and, basically, all you do is to
have Sections; this part is for safety. This part for that etc – when you look
at any of these Acts, they tend to do that anyhow. So instead of having a
separate Act, you’ve still got the same Act, but you’ve got quite a few
sections there. And that’s another way of doing things, right?
But you tend to end up with legislation that gone through a historical
context, and the way you end up is really based on history… So, we’ve
ended up with separate safety, but [part of ] the environment is in the
Mining Act and part of the new Amendment Bill was to take all the bits and
pieces out and put it into one section. We’ve introduced the MRF, mining
rehabilitation fund; that was actually a separate Act. In some respects, I
would have said, you should have stuck it in the Mining Act.
(Source: Participant # 8: Regulator; emphasis added).
226
|
Curtain
|
It is evident how history has played a role in forming and influencing the shape and form of
the MinReF. Also, due to the evolutionary nature of the legislation various “bits and pieces”
have been allocated to different agencies over time. When the gaps of the existing legislation
were identified rather than amending relevant legislation with shortcomings or gaps, new Acts
have been developed as separate legislation e.g. enactment of the MRF Act and the
Regulations under it. Table 5.8 provided a timeline of the mining rehabilitation legislation in
WA which includes several separate legislation related to mining rehabilitation. When
perusing Table 5.8, a few important questions emerge. One is the amendment made to the
Mining Act in 2010 to grant authority to request Mine Closure Plans (MCPs) when a new
mining proposal is submitted. It was a positive action to address an obvious gap which had
prevailed since the enactment of the Mining Act in 1978. When the MCP’s are received under
the Mining Act, another team in the agency evaluates them, and some MCPs are referred to
the EPA (Participant # 8). Though this practice sounds irrational, the receipt and evaluation
of the MCPs by another part of the DMP (Environmental Division) may be due to the expertise
(specialisation) required to evaluate MCPs. The practice of separation of action concerning
the evaluation of MCPs by a separate team may be understood using the theory of
“Bureaucracy” by Weber (1952, 2015), where he has written about specialised skills among
the workforce to do various tasks based on employees technical skills. However, four years
after the 2010 amendment to the Mining Act, when the DMP proposed new changes to the
Act under the 2012 - 2015 Mining Reform Agenda, the Government considered the tenement
holders to submit environmental reports by identifying “environmental risks” in a flexible
manner (Government of Western Australia: Department of Mines and Petroleum, September
2014. p.8). Review of these practices and uncoordinated actions by agencies suggests the
reason is the lack of a whole of government resource policy and not having an apex level
organisation. An apex level organisation can monitor various practices of agencies
responsible for implementing legislation and review and identify contradictory actions, gaps
and deficiencies by supporting the improvement of the MinReF continuously.
The third issue about the MinReF is the overall ambivalence and dichotomy of the mining laws
discussed in section 8.7 of this chapter. In this context, the emergence and the use of State
Agreements (SAs) need to be reviewed considering the merits and demerits of SAs as
discussed in Chapter Five (section 5.5). The first State Agreement was ratified in the early
1950s (Barnett, 1996) when policies on environmental assurance, technology and work
conditions were different. The need for legislation to enact large resource projects would have
been justified under the conditions prevailed at that time. However, if the same practices are
still applied especially the absence of mandatory environmental protection conditions under
227
|
Curtain
|
SAs, it raise questions about the management of State Agreements. Monitoring of legislation
is essential as some of the legislation (Mining Act) is subject to change on a regular basis.
(Hunt et al.,2015 p.7). However, this requirement has not been considered for projects
operated under the State Agreement
With the above issues in the background, I now want to focus on how to address the issues
and weaknesses of the MinReF to justify the need for establishing an Apex Level Agency
(APA) for effective coordination of legislation and regulations that come under the MinReF
using an analogy. The use of analogies, metaphors and concepts for effective
communication has been discussed in relations to disciplines such as sustainability,
(Larson, 2014); public policy, (Guess and Farnham, 2011; and also, in educational
psychology (Ausubel, Novak, & Hanesian, 1978). Concepts have been defined as
particular sets of objects, events, symbols, properties, or situations that can be classified
under one or more shared characteristics and are given common identifying labels or
symbols (Merrill & Tennyson, 1977). Larson (2014), an ecologist by training, highlights
the usefulness of analogies and metaphors in sustainability. I coined the phrase: “mining
regulatory symphony of Western Australia” (MRSWA) to explain and highlight the need to
address the long-felt and identified need of addressing the overlap and lack of
coordination; a significant weakness of the MinReF confirmed by the findings of this study
and other literature (WAAG 2004, 2011).
In my analogy, I consider the implementing agencies under the MinReF as “players”
(actors) of a musical symphony playing their single musical instruments (legislation)
without the direction of a conductor. I adopted the definition of a symphony as “extended
musical composition for orchestra in several movements” (Dictionary.com, n.d.). When
compared the current situation of the WA mining legislation, and the ‘Bureaucracy’
responsible for implementing them through multiple agencies having “several
movements”, the analogy—the “mining regulatory symphony of Western Australia”
(MRSWA) could be justified. It conveys that each agency responsible for a function under
the MinReF makes just one or two musical movements (sounds) using one or two
instruments (legislation) without the directions of a conductor (absence of a whole-of-
government direction). Then it becomes clear that individual performance could not bring
a harmonised “sound of music” as in a musical orchestra or a symphony. Without a
conductor to emphasise and justify having an Apex Level Agency (ALA) to coordinate the
different legislative functions of the mining regulatory symphony of WA that do not have
228
|
Curtain
|
PARTICIPANT: I think it’s a beautiful analogy and I agree with it. It speaks eloquently to
the issue. In the end, it’s the community that’s the conductor. This is the job of the
community in a way” (Participant #4: Academic/Lawyer).
Another participant, a retired senior public servant who had worked in key agencies
responsible for resource development, and now an independent researcher with an overall
experience of over 30 years also commented on the ‘Mining Symphony Regulation’ analogy.
“I would suggest that you just change your analogy slightly because you’re trying to
create a model. It’s not a symphony without a conductor. It’s, basically, a symphony
with each of the players coming to the concert with a different sheet of music. So, when
you think about those agencies, it’s that each of those agencies says they’re looking
after the environment, but they have other responsibilities, and they weight the
environment against those other responsibilities. So, the department, our old
Department of Industries and Resources, it would have had a greater emphasis on
getting the project happening than it did getting the environment working. So, its sheet
of music in front of it when it turns up to the concert is we’re going to play a sheet of
music, we need state development, and we’ll try to look after the environment as we do
it. The other musical player that came along, the EPA; it came along with a sheet of
music, which was we must look after the environment and if it’s going to impact state
development, so be it. My argument is you have an orchestra of people who all have
different musical scores in front of them” (Participant #15: Independent researcher).
The participant’s insights into the conflicting objectives of the agencies are useful to
understand the lack of coordination of mining regulations:
The next section outlines the need for an apex-level agency to address the weaknesses of the
MinReF identified in this chapter.
231
|
Curtain
|
8.9 Absence of an apex level agency to coordinate mining regulations
The analysis of the strengths and weaknesses of MinReF confirmed that there is no apex-
level agency to coordinate the mining regulatory framework in WA. The bureaucratic structure
responsible for implementing various legislation under the MinReF confirms that they are
implemented through a multi-agency approach, and each agency with its jurisdictional powers
managing uncoordinated regulatory functions that come under each agency. The WA Auditor
General also provided some insights into this issue in 2011 (WAAG, 2011).
WA has a history of over 120 years of bureaucracy centred around one key Department which
is now known as the Department of Mines, Industry, Resources and Safety (DMIRS). The first
bureaucratic agency to manage the mining industry in WA was established on 1 January 1894
as the Department of Mines (State Records Office of WA, n.d., para one). The name of the
agency was changed as the Department of Minerals and Energy on 1 July 1992 (ibid). Since
then the agency has undergone several names changes, and assumed its current name on 1
July 2017 by merging the bulk of the Department of Commerce with the former Department of
Mining and Petroleum” (DMIRS. 2017, para three). Further to DMIRS, there are four other
agencies implementing mining related regulations in WA. They are: (a) Department of Water
and Environmental Regulation (DWER); (b) Department of Jobs, Tourism, Science and
Innovation (DJTSI); (c) Department of Planning, Lands and Heritage (DPLH), and to a lesser
extent (d) Department of Biodiversity, Conservation and Attractions. All of these agencies
work under specific legislation, and operate under different jurisdictions, but none has any
authority to coordinate whole of government mining regulatory work. This gap was first
identified in 2011 by the WA Auditor General who observed that 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 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).
However, seven years after the above observation by the Auditor General, no successive
governments have responded to the findings as the same agency structure still exists today
under different names such as DMP becoming DMIRS and DSD which carry responsibilities
232
|
Curtain
|
for SAs now named DJITIS. When perusing the legislation listed in Table 5.2, it becomes
clear that the agencies responsible for mining legislation, regulations and policies have been
adding a few more legislation since 2011. The mining legislation enacted by the State of
Western Australia since 2011 are listed in Table 8.3.
TABLE 8.3 MINING LEGISLATION ENACTED BY THE WESTERN AUSTRALIAN
GOVERNMENT SINCE 2011
YEAR LEGISLATION AGENCY
2011 WA Environmental Offsets Policy – 2011 EPA/DWER
2011 WA Environmental Offset Policy and EPA/DWER
Guidelines
2012 Water Services Act 2012 DoW/DWER
2012 Mining Rehabilitation Fund Act 2012 DMP/DMIRS
2013 Rehabilitation Fund Regulations 2013 DMP/DMIRS
2014 Agreement between the Commonwealth of DWER [EPA]
Australia and Western Australia relating to
environmental assessment 41
2015 The Mining Legislation Amendment Bill DMIRS [DMP]
2015 Guidelines for Preparing Mine Closure Plans DMIRS/DWER [DMP/EPA]
2016 Abandoned Mines Policy, 2016 DMIRS [DMP]
2016 Biodiversity Conservation Act 2016 DBCA
2017 Restriction of Uranium mine approval policy DMIRS
(Source: State legislation and regulations as listed above)
41 The Commonwealth Government confirms the Memorandum of Understanding “signed with
Western Australia (WA), setting out governments’ commitment to the process, timing for
implementation of the policy, and key principles”. Source:
http://www.environment.gov.au/protection/environment-assessments/bilateral-
agreements/wa#current-assessment\
233
|
Curtain
|
8.10 Delays in introducing environmentally-centric legislation and regulations
Analysis of the mining regulatory framework confirmed the delays in of introducing legislation
in Western Australia. Enacting legislation takes time, and it is not an easy task. For example,
considering the time consumed to replace the Mining Act 1904 with the current Mining Act is
over ten years which is more than two times the life cycle of two Federal Parliaments. The list
of legislation included in tables 5.2 represent a wide variety of legislation and regulation
developed since 1904 and there are only few legislation covering environmental protection.
However, these additions are single pieces of legislation, and no legislation exists to
coordinate multiple agency functions to avoid duplication and improve coordination on
environmental compliance.
There is no statutory reporting or public information on the cost of developing legislation. The
timeline (Table 5.2) of WA mining legislation is an indicator to understand the time consumed
to develop mining legislation and regulations. For example, after a review of the Mining Act
1904, it took twelve years to develop, enact and proclaim the Mining Act 1978, and to repeal
the 1904 Act. Taking twelve years to replace one single piece of legislation is equivalent to
four times of the life of the Federal Parliament. Though the inquiry into the old Act commenced
in 1970, it took ten years to develop and enact the new Mining Act 1978. Although the new
Act was enacted in 1978, the proclamation of the new Act, and the repeal of the Mining Act
1904, took place on 1 January 1982. (Hunt et al., 2015 p.10). Hunt et al. (2015) explain the
reasons for this delay. There had been “many tenements under the old Act” including “74 coal
mining leases, 85 mineral leases and 4 licences to treat tailings” and they were “all [needed]
to “remain current” before the new Mining Act was proclaimed. Though the additional archival
material was not available to ascertain other reasons to identify the four-year delay to proclaim
the new Act, it indicates ineffective minining tenement management prevailed in the late
1970s. Mining rehabilitation legislation was not included into Mining Act by adding mining
rehabilitation regulations. Instead, the Government introduced separate legislation under the
MRF Act in 2012, and it became mandatory on 1 July 2014 (MRF Act; Gorey, McHenry,
Morrison-Saunders, Mtegha, & Doepel., 2016)
When reviewing the issues behind the second mining reform agenda from 2012 to 2015 with
only one legislative outcome (MRF Act), but no results from the efforts to amend the primary
objective (amendment of the Mining Act). It is another example of delays to introduce much
needed environmental regulations into the MinReF. Although, the first formal mining
legislation was enacted in 1904, it took over 80 years to introduce environmental protection
regulations i.e. the Environmental Protection Act 1986; and over another 25 years to introduce
234
|
Curtain
|
the Mining Rehabilitation Fund Act 2012. One plausible reason for this delay might have been
the lack of environmental awareness as the global sustainability agendas emerged only after
the publication of Our Common Future in 1987. The global sustainability drivers and how they
have influenced the mining industry was discussed in Chapter Two. About the delays of
legislating the MRF Act; one participant provided feedback explaining why the mining
rehabilitation regulation was not added into the Mining Act.
“We are not going to have a separate Act. We will have a separate Section.” We have
introduced the MRF, mining rehabilitation fund; that was a separate Act. In some
respects, I would have said, you should have stuck it in the Mining Act.
They said, “Oh, it is convenient to have a separate Act because then we do not have to
worry about things.” But you’ve got the MRF, which is the mining rehabilitation – it is
more attuned—if you’re going to do environmental aspects in the Mining Act, but
the rehabilitation of abandoned mine are not in it, it doesn’t make sense!”
(Participant #8: emphasis added).
This insider’s perspective provides insights that do not appear in the literature on introducing
mining rehabilitation legislation in WA. Another example of delays and not initiating action to
rectify the gaps is that the State Agreement have not been reviewed to add mandatory
environmental conditions. Though the first State Agreement was enacted in the early 1950s
(Barnett, 1996), a formal evaluation of the SAs did not take place until the WA Auditor General
carried out an audit on SAs and tabled a report in the Parliament in 2004 (WAAG, 2004).
However, 14 years after the 2004 Audit Report on State Agreements, no follow-up action such
as introducing mandatory environmental compliance regulations into the SAs have not taken
place. A participant provided an insider’s perspective for guarding SAs and why any State
policies or structural changes have not been made to SAs.
“Under the State Agreements, we don’t look at the environmental aspects. So, we
brought in the MRF— mining rehabilitation fund…No; it doesn’t impact on State
Agreements. So, there’s been informal discussions, why don’t you do it? We’ve also
got – under the State Agreement there may also be some environmental aspects, but
that’s covered by Department of State Development. We don’t do it” (Participant #8:
Regulator; emphasis added).
The participant’s explanation revealed three issues. First, is that “guarding of SAs” implies the
economic incentives of the SAs providing about 80 per cent of Royalties from the WA mining
235
|
Curtain
|
operations. Second, the confirmation about the limitation of the MRF Act as it has no
jurisdictions over SAs. Third, the issues about one agency (DMP) ”handballing”42 the agency
responsibility to another (Department of State Development)43 as stated in the Auditor
General’s Report (WAAG, 2011, p.31).
The delays and inactions to introduce environmental regulation into the SAs could also be
attributed to lack of an “adaptive capacity” and absence of a culture of continuous
improvement to address gaps and deficiencies of legislation and regulations come under the
MinReF. These observations led to identifying the need for a new approach by enhancing
adaptive capacity by advancing governance for using theoretical approaches discussed by
Cleaver & Whaley, 2018; Karpouzoglou, Dewulf, & Clark, 2016; Holling (1978).
8.11 Lack of adaptive capacity
The overall weaknesses of the MinReF suggest that it needs to be strengthened and interject
with new inputs to address the current gaps and deficiencies by introducing processes,
procedures for it to be an innovative policy framework. This section describes this concept
supported by a new theoretical framework (Figure 8.4). Having identified both the strengths
and weaknesses of the MinReF, this thesis proposes the need to introduce a new theoretical
framework to be named as “Adaptive Capacity”. It is an innovative policy approach to be
introduced under the MinReF. In this thesis, “Adaptive Capacity” is defined as “an ability to
adjust and make improvements to the mining regulatory framework of Western Australia”
(ADMINREF) in response to the changing needs of society to cope with the consequences of
the legislative shortfall through innovative policy discourses”. Among these inputs include an
amendment to expand the scope and the jurisdictional powers of the MRF Act 2012. The
objective of strengthening the MRF Act is to enable it to cover mining rehabilitation work under
the State Agreements.
The existing literature provides examples of adaptive governance and coping mechanisms
covering subjects such as climate change and social-ecological applications (Karpouzoglou
et al., 2016; Vink, Dewulf & Termeer. 2013; Berkes, 2007; Adgar, 2000). However, the
literature does not provide practical approaches to address weaknesses in regulatory systems
42 I borrowed the term ‘hand ball’ (handballing) from Australian (Aussie) Rule Football games where
‘handball’ means’ “a player receives a handpass from another player, play continues” (wikipedia.org)
to indicate as an analogy.
43 The name of the DSD was changed as DJTSI on 1 July 2017, and the management of SAs still
remains with the agency (DJTSI, 2017).
236
|
Curtain
|
such as the MinReF which has unique characteristics with roots in WA’s colonial past. MinReF
has legislation with a history of over 100 years which is still being used to regulate access to
water for mining activities (Abstraction of Groundwater: Water and Irrigation Act 1914) and
also new legislation such as the WA Biodiversity Conservation Act 2016 representing the
regulatory needs of an old and a new world.
Cleaver and Whaley, (2018) have introduced a framework— "adaptive governance” in their
recent work titled “Understanding process, power, and meaning in adaptive governance: a
critical institutional reading” (ibid). They present their framework as an emerging concept to
examine issues in a changing world with a globalised perspective where the world has new
challenges such as climate change and how to gain “legitimacy and endurance” to face such
challenges. Further, Cleaver and Whaley (2018) provide insights into understanding
processes, power, and meaning of adaptive governance by defining a framework which they
describe as “key elements”. I found their key elements (ibid) could be used to evaluate the
features of the MinReF considering both its strengths and weaknesses. In this context, the
issues Cleaver and Whaley (2018) review, and the concepts put forward to discuss “new
institutional economics to get the instruction right” (ibid, figure 1, chart 3) is also useful. Their
approach identifies an “institutional turn” by focusing on factors covering ‘political’, ‘cultural
and historical’, ‘sociological’ “institutionalism” (ibid). The adaptive governance framework as
proposed by Cleaver and Whaley, (2018), does not include or discuss “triple bottom” line
approach relating to sustainability or sustainable development principles which are relevant to
the scope of this PhD study. However, I found the key elements of adaptive governance
capacity (Cleaver and Whaley, 2018) as a practical guide to conceptualising the strengths and
weaknesses of the MinReF of WA. The key elements of adaptive governance and the
strengths and weaknesses of the mining regulatory framework is compared in Table 8.4.
237
|
Curtain
|
TABLE 8.4 KEY ELEMENTS OF ADAPTIVE GOVERNANCE AND
STRENGTHS AND WEAKNESSES OF MINING REGULATORY
FRAMEWORK COMPARED
Key elements of adaptive MinReF
governence
Key element (a): Multiple The analysis of the MinReF did not provide
cross-scale institutions substantial evidence of “experimentation”. The
“Multiple cross-scale institutions mining reform agenda program (2012 – 2015)
facilitate experimentation, could be cited as an “experimentation” process
learning, and change” (Cleaver that aimed to amend the Mining Act to include
and Whaley, 2018, Table 1 – 5) environmental provisions. However, the
amendments proposed were never approved.
(Chapter Five, section 5.3). It is evident that
the 2012 -2015 mining reforms have not
followed up any of the recommendations from
the previous reform agenda (Keating Review,
2009) (Chapter Five, section 5.3).
MinReF shows signs of “change”, such as
replacing the Mining Act 1904 by introducing a
new Mining Act 1978, and also enacting the
MRF Act in 2012. However, these changes
have not addressed gaps and deficiencies,
such as introducing environmental compliance
under the State Agreements (Chapter Eight;
Section 8.5.5).
Key element (b): Complexity MinReF
and scale
“Social-ecological systems are The legislation and regulations which come
inherently complex” (Cleaver under the MinReF are inherently complex
and Whaley, 2016, Table 1, (Chapters Five and Eight). However, this
para 1-5). complexity has contributed to overlap of
legislation, and lack of coordination among the
implementing agencies. There are inherent
238
|
Curtain
|
weaknesses in key legislation (Chapter Eight,
Section 8.5), poor coordination and information
sharing between agencies (WAAG, 2011).
The key element (c): MinReF
Resilience
“The capacity of a social- MinReF displays some sign of resilience
ecological system to absorb through the evolution of the mining laws that
natural or human shocks” (ibid). have helped to form the structure of the current
framework. However, this capacity has not
addressed weaknesses such as lack of
coordination and fixing the gaps identified by
the Government Auditor General (WAAG 2004
& 2011). The current agency practices instead
display ambivalence and dichotomy of
legislation. (Chapter Eight; Section 8.7).
Key element (d): Shared MinReF
vision – multilevel networks
of actors
“Self-organizing, multilevel MinReF is implemented by “multi-level actors”,
networks of actors enable but the agencies function as standalone silos.
learning, trust, power-sharing, As a result, each agency has developed
information transfer, and shared different discourses, and cultures confine to
visions” (ibid). each agency but have no linkage to “multilevel
networks of actors’. The only sharing and
shared vision are represented by the Mine
Closure Guidelines Policy developed in
collaboration between the DMP & EPA (2012).
However, these guidelines are not applicable
to the State Agreements that provide 80 per
cent of the Royalty incomes from mining
operations in WA (Chapter Five; section 5.5).
239
|
Curtain
|
The key element (e): MinReF does not display any signs of
Institutions, adaptation, and adaptation about environmental protection over
social learning Institutions. the years and lacks effective, innovative
These are “system of rules, policies. i.e. challenges such as climate
laws, policies, and norms” (ibid). change and addressing the mining legacies of
over a century. Also, the Government of WA
has not yet developed a whole-of-government
resource development policy or has developed
an apex-level agency to coordinate the mining
regulatory functions (Chapter Eight, section
8.9.).
Key element (f): Outcomes MinReF
Outcomes are described as The MinReF does not show any specific
“having a social-ecological elements of “social-ecological resilience” as
resilience lens, assumes the Government of WA has not managed the
adaptive governance” for MinReF effectively and yet to develop an
desired outcomes (ibid). adaptive capacity for continuous
improvements. As a consequence, MinReF
represents gaps and deficiencies such as not
having strategies to address the legacy of
17,000 abandoned mines. Evidence from the
uranium and coal case studies (Chapter
Seven) suggests that there are significant
sovereign risks concerning future mining
rehabilitation liabilities, as the environmental
protection conditions therein cannot be
enforced.
(Adapted from: Cleaver and Whaley, 2018)
240
|
Curtain
|
8.12 New theoretical framework
While it is useful to gain insights from the work of Cleaver and Whaley, (2018) to help
understand the strengths and weaknesses of the MinReF, their work does not suggest ways
and means of further improving the mining regulatory framework of WA. The literature reveals
many works by others (Karpouzoglou et al. 2016; Chaffin et al. 2014; Cote & Nightingale 2012;
Plummer 2009; Armitage, Plummer, Berkes, Arthur, Charles, Davidson-Hunt, Diduck,
Doubleday, Johnson, Marschke, McConney, Pinkerton, & Wollenberg. 2009) who have
contributed to help understand how adaptive governance have worked in several areas such
as resilience towards climate change, ecosystem management, collaboration, learning and
multi-level governance. However, these works are not either directly or indirectly relate to
mining and environmental management, hence, cannot be used as a method to address
issues relating to the MinReF of WA. As discussed in Chapter Five of this thesis, the WA
mining regulatory framework has evolved over a period of 100 years. MinReF consists of
many regulations implemented by several agencies. Further to having century-old legislation
such as the Abstraction of Groundwater: Water and Irrigation Act 1914, it includes legislation
such as the EPBC Act as an external input from the Federal government to evaluate projects
with significant environmental components. Further to the EPBC Act, the MinReF also
includes several other Federal legislation and regulations that govern uranium mining,
radiation control and transportation (see Table 7.4). As a result of the legacies of the past,
the WA regulatory framework needs to address issues relating to rehabilitating 17,000
abandoned mines. Due to these unique characteristics of the MinReF, any overseas models
or frameworks are not relevant to address and remedy the weaknesses of the MinReF.
Therefore, having identified both the strengths and weaknesses of the MinReF, this thesis
proposed a new theoretical framework—Adaptive Capacity for the improvement of the mining
regulatory framework of Western Australia (ADMINREF). Figure 8.4 provides key elements
of a new theoretical framework developed as a conceptual model to improve the MinReF of
WA.
241
|
Curtain
|
In alignment with the work of Cleaver and Whaley (2018); Gunderson (1999), and Holling
(1978 & 1996), the ADMINREF incorporates environmental management policies and
practices. The argument of learning lessons from past mistakes and adapting to changing
contexts and environmental circumstances provides further justification for a new framework.
In oppose to the current dichotomy representing two sets of regulatory systems for approving
and managing mining activities in WA, the proposed model aims to build on the existing
strengths of the MinReF aiming to develop one integrated regulatory framework. The
proposed new model (see Figure 8.2) has two main elements—improved MinReF which
eliminates the regulatory dichotomy and is managed with a whole-of-government approach,
and an apex body which is in charge for the constant adaptation of the MinReF. This
framework uses innovative policy approaches in response to inputs coming from changing
socio-economic needs and the transitioning of the mining sector to more sustainable practices.
The improved MinReF should be able to influence the existing mining operations under the
Mining Act, and State Agreements and better align them with the overall requirements for
environmental protection. This improved adaptive MinReF continually interacts with the apex
body by adopting new approaches and sending signals about unresolved challenges. As the
process of adapting and improving MinReF evolves, it is assumed that it may result in
reforming the Mining Act, MRF Act and the State Agreements in some future point in time.
However, the new theoretical framework needs to be refined further as it has not been
implemented as a policy initiative. It needs to advance and build on the sustainable
development principles which are the focus of this study.
The ADMINREF emphasises the need to focus on developing a capacity to cope with changes
and uncertainty by continuously enhancing relationships between management interventions
and environmental changes as proposed by Cleaver and Whaley (2018) in their work on
adaptive governance. Further, Holling (1978 & 1996), and Gunderson (1999) support the
need to test environmental management policies and practices as hypotheses, and their works
justify developing the ADMINREF as a new framework to suite Western Australian issues, and
conditions. However, examining the strengths and weaknesses of the MinReF, one cannot
find examples of either testing of hypotheses for improved environmental regulations, let alone
critically evaluating untested assumptions proposed to strengthen it. For example, the
Government of Western Australia did attempt to test a hypothesis to improve the weaknesses
of the MinReF. As discussed in Chapter Five (Section 5.3), the WA Government proposed
the mining tenement holders to identify “environmental risks” without suggesting any standard
risk management methodology or any practical conceptual model supported by a resource
management policy. Had the proposal were implemented by amending the Mining Act 1978,
it would have ended up with a different type of environmental risks identified by the companies.
243
|
Curtain
|
To avoid such mistakes, the regulatory agencies need to develop an appropriate framework
by evaluating the real issues to be tackled and propose strategies to assure environmental
protection.
The above issues were considered in conceptualising the ADMINREF as proposed in this
thesis (Figure 8.4). The crucial point to note about many of the attributes associated with the
ADMINREF can be justified within the standard spectrum of adaptive governance, the
principles of governance, and public interest policy (Cleaver and Whaley, 2018; Fukuyama,
2010, Ogus, 2004), validate the core principle of the proposed new framework. The standard
spectrum of governance includes principles such as transparency and the rule of law, under
which the equity principle is applied across all issues of lawmaking. These principles would
exclude granting privileges for one group of mining operators which is visible in the current
use of State Agreements—a unique feature of MinReF which allows regulatory dichotomy with
different privileges granted to one group of mining companies.
The proposed new model (see Figure 8.4) has two main elements—improved MinReF which
eliminates the regulatory dichotomy and is managed with a whole-of-government approach,
and an apex-level body which is in charge for the constant adaptation of the MinReF. This
framework uses innovative policy approaches in response to inputs coming from changing
socio-economic needs and the transitioning of the mining sector to more sustainable practices.
The improved MinReF should be able to influence the existing mining operations under the
Mining Act, and State Agreements and better align them with the overall requirements for
environmental protection. This improved adaptive MinReF continually interacts with the apex-
level body by adopting new approaches and sending signals about unresolved challenges.
As the process of adapting and improving MinReF evolves, it is assumed that it may result in
reforming the Mining Act, MRF Act and the State Agreements in some future point in time.
8.13 Summary
In this chapter, I analysed the strengths and weakness of the Mining Regulatory Framework
of WA using three sets of data. Further, I engaged in a discussion reflecting on the findings
of this study and the ability to contribute to new knowledge on the mining regulatory framework
of Western Australia. I systematically examined in detail both the strengths and weaknesses
and also incorporating the findings of the two case studies. I proposed a new theoretical
framework to address the weaknesses of the MinReF and further improve it. The finding from
the analysis were presented under seven thematic framework. They are: (i) inherent
weaknesses of key mining legislation; (ii) unclear demarcations and overlaps of legislation;
(iii) ambivalence and dichotomy of the mining regulatory framework; (iv) lack of coordination
244
|
Curtain
|
CHAPTER NINE BEST PRACTICE MODELS AND ENVIRONMENTAL REGULATORY
STRATEGY OF WESTERN AUSTRALIA
9.1 Introduction
This chapter provides examples of best practices and highlights the need to address
the problems of 17,000 abandoned mines and calls for change through innovative
approaches. This chapter focusses on the following areas. First, I identify the problematics
of defining the term ‘best practice’ to ascertain whether there are standard definitions that I
could employ to address the research objective. Secondly, I review literature in a broader
context to understand how the terminology has been used in several disciplines, including by
Australian and international standard agencies. Thirdly, I examine how two WA Government
agencies implementing mining and environmental regulations have used the term ‘best
practice’. Further, in this chapter, I compare two WA government models. Finally, I provide
five Australian and overseas examples as best practices of environmental protection relating
to mining operations and rehabilitation work that I consider as “beyond compliance” efforts
defined as “environmentally friendly actions not required by law” (Lyon and Maxwell, 2004, p.
240).
9.2 Problematics of defining best practice
The analysis of secondary sources reveals the diverse nature of the literature that provides
different meanings to the term ‘best practice’, both in the context of environmental regulations
and other disciplines, such as education, medicine and engineering. All of these disciplines
require professional accreditation processes to work in respective areas based on accepted
standards. For example, for teaching accreditation in education, a postgraduate qualification
is required for school teachers in Australia (Edith Cowan University, n.d.; University of Western
Australia, n.d) and the situation is no different in countries like the United Kingdom (University
of Dundee). In medicine, even before progressing into specialised areas such as surgery,
psychiatry and general practice, formal registration is required to practice medicine and
register with an agency in each country of practice (medicalboard.gov.au, n.d.). In
engineering, all graduates need accreditation by a national body that reviews and assesses
their qualifications. However, in comparison, there is no specialised training for regulators and
an accreditation process, except for lawyers, either to work in areas such as regulations or
environmental management in the WA public sector. My work experience and observations
of practices for over two decades also confirm this. For example, I have worked with geologists
who have qualifications in geology, and engineers specialised in engineering work and
chemists who have studied specialist tertiary courses to work in their specialised areas of
246
|
Curtain
|
work, and who were then working in the area of environmental management with no additional
formal accreditation on regulatory work. Against this background, it is useful to review the
literature on the use of the terminology of ‘best practice’ models to explore opportunities to
improve current practices in the mining sector.
The term ‘best practice’ is not a homogeneous or well-defined concept. It has been used to
give different meanings to diverse human endeavours in various fields in Australia and
overseas. For example, the Australian education sector (Ingvarson, Reid, Buckley, Kleinhenz,
Masters, & Rowley, 2014); medical profession representing over 30 different specialised areas
(British Medical Journal.com, n.d.); and engineering (engineersaustralia.org, n.d.) have used
the term ‘best practice’ within different contexts. In relating to environmental regulation on
mining, Australian Federal Government agencies led by high-level politicians have also
endorsed different terminology for ‘best practice’ (AGPS, 1995). For example, concerning
mining, the term ‘best practice’ appears in one of the Australian Government publications titled
The Leading Practice: Sustainable Development Program for the Mining Industry (2011) – one
of a series of handbooks published to share “Australia’s world-leading expertise” in mine
management and planning. It documents various best practices of mining companies across
Australia. Canavan and Bishop (2011). The ‘Foreword’ of this publication states that its
purpose is to “provide practical guidance on environmental, economic and social aspects
through all phases of mineral extraction, from exploration to mine construction, operation and
closure” (Canavan and Bishop; 2011, p.i). 44 However, nowhere in the book the term ‘best
practice’ has been defined. It is implied as a synonym to “leading practice”. Also, the term
“sustainable development” seems to be seen as a substitute for best practice or “a good way
to do business”:
“sustainable development means that investments in minerals projects should be
financially profitable, technically appropriate, environmentally sound and socially
responsible. Businesses involved in extracting non-renewable resources have come
under mounting pressure to embed the concept of sustainability into strategic decision-
making processes and operations. In addition to these considerations, responsible
corporations have been able to move towards sustainability by developing a range of
appropriate stewardship initiatives. Economic development, environmental impact and
social responsibilities must be well managed, and productive relationships must exist
44 One of the authors of the Foreword’ was the former Foreign Minister. Julie Bishop, and by
endorsing the statement in this key publication support my point how different professional and even
politicians misjudge when defining terminology.
247
|
Curtain
|
between governments, industry and stakeholders. Achieving such a situation is simply
a ‘good way to do business’ (Australian Government, 2011, p,7).
The above citation illustrates that the terminology of ‘best practice’ has been perceived and
interpreted differently by agencies of national significance in Australia. The work of Rein &
Schön (1993) discussing frame analysis and public policy explains the “argumentative turn in
policy analysis and planning” (p145-166) about misjudgements in a policy context.
Undoubtedly, the Australian Government’s definition of ‘sustainable development’ is a
misjudgement.
There appear to be two ways of understanding the term “best practice”. First, as a standard,
that is as good practice that everybody should follow and; Second, as exemplary, that is an
example of what good performance is possible in a particular area which everybody should
aspire to achieve. When used in the first sense, the term ‘best practice’ is often represented
as standards developed by professional bodies. The second serves as an arena for
researchers and managers to explore to find ways to improve the current ways of doing things
better. To further examine these two terminologies, I identified a few examples from SAI
GLOBA––the Australian standard organisation (Saiglobal.com) which include the term “best
practice” representing a range of disciplines and subjects. The samples illustrate how the
term ‘best practice’ has been used by Australian and global standard organisations (Table
9.1).
248
|
Curtain
|
second meaning is that they deal with mining-related subjects including eco-system and
mining rehabilitation as those subjects fall within the scope of the study.
In the academic literature, there are references to examples relating to best practice methods
that deal with mining rehabilitation and environment (Morrison-Saunders, McHenry, Sequeira,
Gorey, Mtegha, & Doepel, 2016; Gorey, et al, 2016; Finucane, 1995; Best Practice
Environmental Management in Mining, 1995) implying the second meaning of the term; “as
exemplary, that is an example of what good performance is possible in a particular area which
everybody should aspire to achieve”. Examples under the second category include specific
approaches to mine closure planning; mine rehabilitation and ecosystem approach to
environmental management. For example, Morrison-Saunders et al. (2016) write about
integrating mine closure planning with environmental impact assessments. Finucane (1995)
appraises a mining company operating in the Pilbara Region in WA on issues such as early
planning for environmental management, mine rehabilitation, and an ecosystem approach to
environmental management. A journal article titled ‘Best Practice Environmental Management
in Mining (1995) describes:
“best practice management is the name given to a joint programme partnership between
the Australian mining industry and the Environmental Protection Agency (EPA) to
document best practice environmental management in mining” (p.207).
9.3 Regulating environmental protection by Western Australian agencies
In this section, I discuss the approaches adopted by the Department of Mines and Petroleum
(DMP) – the main agency responsible for the implementation of environmental regulations in
Western Australia. When DMP introduced a regulatory reform (2012 – 2015) among other
issues, and proposed changes to the Mining Act, and published a series of documents
including background information for public consultation. In one of the papers titled,
Environmental Regulation Strategy, the agency included its objective to introduce ‘risks and
outcome based regulatory system’ based on ‘best practice’ (Government of Western Australia:
Department of Mines and Petroleum, November 2014. P.1).
To compare different meanings assigned to the term ‘best practice’ by the regulatory agencies
on mining and environmental protection in WA, first, I examine two models to further illustrate
the point about the subjectivity of the term. Secondly, I compare the WA Government’s
proposed ‘best practice’ model for mining regulation against the principle of regulatory design
principles by Gunningham & Sinclair (1999).
250
|
Curtain
|
9.3.1 Best practice model of the Department of Mining, Industry, Resources and Safety
In this section, I discuss how DMP/DMIRS has introduced the ‘best practice’ terminology
below. In reference to the second mining reform agenda (2012 – 2015), the Department of
Mines and Petroleum (DMP/DMIR) introduced its ‘regulatory reform’ proposals as follows:
“DMP continues to focus on ensuring that resources development in Western Australia
occurs in a manner that is safe, environmentally acceptable, and achieves community
confidence.
Over the last four years, the Western Australian Government has implemented
substantial improvements in reforming approval processes. Consistent with this reform
strategy, in May 2012 DMP announced the implementation of its Reforming
Environmental Regulation (RER) program to fully integrate risk and outcomes-
based approach to implement the principles of best practice environmental
regulation into its regulatory functions. The petroleum industry has been regulated
under risk-based legislation since 2000, and the necessary legislative framework for
mining is currently under development (Government of Western Australia: Department
of Mines and Petroleum, November 2014. Environmental Regulatory Strategy. P.1,
emphasis added).
In the same document, the DMP/DMIR describes the agency’s “regulatory strategy in
alignment with the principles of best practice government administration” (ibid, p.4). The
government best practice model as proposed by the mining regulatory agency DMP/DMIRS
is of particular interest to this research. The DMP’s proposed environmental strategy (2014)
includes a model suggesting the agency’s approach to adopting a risk and outcome based
best practice:
“The strategy model of the Department of Mines and Petroleum is described as aligned
with the following way of delivering environmental regulation in the State:
“Effective – DMP’s service delivery contributes to the achievement of environmental
outcomes
Targeted – DMP’s service delivery is targeted on minimising risk to environmental
outcomes
Proportional – DMP’s service delivery is proportional to risk or harm.
Predictable and consistent – DMP’s service delivery is predictable and consistent
according to clear standards, procedures and guidelines.
251
|
Curtain
|
Authoritative – DMP is well informed, evidence-based, detects non-compliance,
undertakes effective enforcement, and has an excellent reputation
Efficient – DMP has clear procedures and processes utilising information systems,
innovation
Transparent – Information is well managed and available and informs operational
decision making, policy development and public opinion.
Accountable – DMP will be subject to public and industry scrutiny on the performance
of its service delivery.
Inclusive – DMP engages with industry and the community to promote environmental
compliance and set standards”.
(Source: Government of Western Australia: Department of Mines and Petroleum. 2014.
P.4).
Although the above best practice model of DMP/DMIRS appears a responsible approach to
best practices based on the words used to describe it. However, the reality is that there are
obstacles to implement environmental regulations due to current gaps and deficiencies within
the MinReF as discussed in Chapter Eight. Further, the best practice model of the Department
of Mines and Petroleum will not guarantee any environmental protection as there are other
agencies responsible for the environmental regulation of the mining sector. The other major
player is the Department of Water and Environmental Regulation. These two agencies have
developed two sets of best practice models with different emphasis (Table 9.2).
252
|
Curtain
|
Table 9.2 illustrates subjectivity and differences in defining the term ‘best practice’ adopted by
two government agencies in WA. Four plausible explanations could be suggested for the
different WA government agencies using diverse terminology on environmental regulations
concerning mining. First, due to the multi-agency approach of implementing the legislation
and regulations that come under the MinReF, provide opportunities for each department to
interpret and develop their discourses and narratives on agency-specific interpretations and
narratives which operate external to the legislation (Chapter Three, section 3.6). Secondly,
how agencies have evolved developing agency-specific legislation. This study revealed how
historical reasons had influenced agencies not only to develop agency specific legislation such
as the Mining Act but also to progress agency specific discourses (see Chapter Four, section
3.7). For example, DMP/DMIRS, the agency responsible for mining regulations was
established in1894 as the Department of Mines for managing mining operations in WA (State
Records Office of WA, n.d., para one). As a result, it has evolved by adding new functions
over the years and have formed into the new agency it is today. Thirdly, how some of the
agencies have been entrusted to implement Federal legislation as in the case of WA, the
Department of Water and Environmental Regulation is now responsible for implanting the
EPBC Act (see section 8.5.7 in Chapter Eight. These factors would have played a role and
influenced each department to have agency-specific interpretations to develop ‘best practice’
models to suite agency specific legislation. Finally, the lack of an apex-level agency to
coordinate and provide resource policy development and the absence of a whole-of-
government approach on mining and environmental regulations through an apex-level agency
(Chapter Eight, section 8.9).
Despite the good intentions of proposing ‘best practice’ models by two key government
agencies, the following weaknesses of the current legislative framework (MinReF) prevent
these arrangements to functions as “best practice” models:
(1) Uncoordinated multi-agency approach – the multi-agency approach of
implementing the MinReF provides opportunities for each department to interpret and develop
their discourses and narratives on agency-specific interpretations and models;
(2) The interplay between State and Federal legislation – the accountability about
environmental performance varies depending on specific legislation and in some cases, it is
the State responsibility (e.g. the Mining Act) while when a proposal has a significant
environmental component, it is the responsibility of the Federal legislation (e.g. the EPBC Act);
(3) Historical path dependence – new functions are added to existing agencies to cover
environmental-related regulations. Some cases, there may be an inherent conflict between
these functions. For example, the environmental regulation functions were added to the
254
|
Curtain
|
portfolio of the DMP/DMIRS to its original responsibilities related to managing mining
operations by issuing mining tenements.
(4) Lack of an apex coordinating body – there is no apex-level agency to coordinate
and provide policy development and regulatory standards for environmental protection for
mining operations in WA (Chapter Eight, section 8.9).
The “best practice” models of WA regulatory agencies have not been legislated; hence, they
do not form a part of any of the legislation or other regulations examined within the MinReF
(Chapter Eight, also see Table 5.2). Furthermore, the five regulatory design principles by
Gunningham & Sinclair (1999) included in Chapter Four (Table 4.1) seem not applicable to
the best practice models proposed by the two Western Australian agencies. The five
principles of Gunningham & Sinclair (1999) are discussed below by comparing them with the
elements of two WA ‘best practice’ models.
Principle one – Policy mixes incorporate instruments and institutional combination:
The DMP and DWER models do not conform to this principle as the mining companies have
to follow regulations such as the Mine Closure Plans under the Mining Act and the
Environmental Impact Assessment (EIA) as required under the EP Act and obtain approval
for the clearance of native vegetation (Section 5, EP Act).
Policy mixes according to Gunningham & Sinclair (1999), incorporate economic mechanisms.
Such mechanisms tend to be efficient, but only if they are properly designed and coordinated
with other relevant legislation. Due to its non-coercive nature (principle one), it has low
reliability to support regulations available to assure environmental protection. The institutional
combination may help deliver multi-agency legislation and regulations which are contradictory
when interpreted within the realities of mining which aligns with an agency’s core function, be
it economic or environmental. If an apex-level agency exist, then it can provide room for all
interests to come together and merge at a whole-of-government strategy supporting
environmental protection under appropriate legislation.
Principle two – Less interventionist measures:
During the Mining Regulatory Reform Agenda (2012 – 2015), DMP proposed changes to the
“functional” Mining Act as the agency considered the regulations thereon are prescriptive,
and proposed a ‘less interventionist measure”:
255
|
Curtain
|
“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” (Ministerial Advisory Panel. (2012). December 2012. P.6).
However, this approach was not implemented, and, the proposed amendments to the Mining
Act was never materialised (Chapter Five; section 5.3). According to Gunningham & Sinclair
(1999), regulatory interventionist measures have two components: (a) prescription, and (b)
coercion. Prescription refers to the extent to which external parties determine the level, type
and method of environmental interventions and protection. Coercion refers to the extent to
which parties or instruments place negative pressure, but, could be exercised through a price
signal, which mining companies, by and large, cannot avoid. Environmental protection would
be difficult to implement without using prescription and coercion..
Principle three – Escalate up an instrument pyramid to the extent necessary to achieve
policy goals:
The third principle of regulatory design (Gunningham & Sinclair, 1999) is not visible in the
DMP’s model as there is no apex-level agency to which the problems could be escalated up
for resolution. On the other hand, the third element of the DWER best practice model states
the need to adhere to regulatory rules. No condition under the EP Act has flexibility. The third
regulatory design principle is not visible in the DMP’s model as there is no apex-level agency
to which the problems could be escalated up for resolution. On the other hand, the third
element of the DWER model implies the need to adhere to regulatory rules. No condition
under the EP Act has the flexibility such as non-submission of EIAs for review and approval,
they are mandatory regulatory conditions under the existing legislation (EP Act 1986, Section
50, p.89; Section 51B, p.91).
The instrument pyramid makes the process of environmental regulation and protection
complex and allows for different behaviours to be tolerated. Updates or improvements in one
instrument may not be immediately translated into adjustments in the other instrument/s. For
example, the requirements under the EBPC Act or MRF Act were not translated into the State
Agreements retrospectively despite the assumption that the two legislations represent an
instrument pyramid. This has allowed limited responsibility concerning the EPBC Act for
projects under State Agreements. For example, some of the large iron ore mines operated
under State Agreements in the Pilbara Region in WA has significant environmental
consequences. This issue was raised by the government’s environmental protection agency
which highlighted “Western Australia’s Pilbara needs a long-term plan to protect its fragile
256
|
Curtain
|
environment from massive mining developments” (abc.net.au, (2014, para one). Non-
submission of EIAs for review and approval, as these are mandatory regulatory conditions
under legislation (EP Act 1986, Section 50, p.89; Section 51B, p.91).
Principle four – Empower participants:
This principle supports the empowerment of the participants. The WA’s ‘best practice’
regulatory models emphasise the need for accountability and transparency, rather than
empowering participants. However, as discussed in Chapter Seven (table 7.2), the privileges
granted to large resource projects operating under 64 State Agreements (SAs) indicate the
empowerment of participants which are large mining companies generating large profits and
contributing to the State’s budget through Royalties. Any such significant benefits have not
been offered to participants under the MinReF.
Under the Mining Act, the participants would be the exploratory and tenement licence holders.
Given the remoteness of many of the mining operations, there would be only small Aboriginal
and other communities that could be seen as participants or stakeholders. However, there
are many wildlife speices that might be affected with no or little opportunity to represent these
important species. For example, in the case of the Yeelirrie uranium mining approval, one of
the affected “participants” is stygofauna comprising of 73 species which do not exist anywhere
else in the world (Young, 2017, para four). It is not clear how such participants can truly be
empowered.
Principle five – Maximise opportunities for win-win outcomes:
This principle encourages the regulators to look for opportunities to seek win-win solutions
instead of penalties or prosecution. This regulatory principle is not explicitly included in the
DMP model while there may be opportunities for win-win outcomes; the “responsive”
element of the DWER model may imply some potential for maximising win-win outcomes.
The empirical evidence as presented in the case of the coal mines in Collie and the 17,000
abandoned mines sites in Western Australia indicate that this principle has not been followed
up yet.
The intention of this principle is excellent, particularly if applied at a design stage of the
regulatory framework. However, it is crucial to identify who are the potential “winners”. When
such an understanding is narrowed down to humans or groups in power within society, there
may be enormous environmental problems affecting the weakest and underprivileged people
as well as other species that are not represented by any civil society. Given the enormity of
the problems created by the lack of proper environmental regulations and compliance in WA,
257
|
Curtain
|
a possible solution may be to give grace periods to the mining companies to contribute to
mining rehabilitation under the MRF Act for win-win outcomes to avoid penalties and
persecution. The rehabilitation of only 20 per cent of the abandoned mines has been
estimated to cost between 3 to 5 billion dollars (Gorey et al. 2016; Government of Western
Australia, 2016). Hence, the complexity of the environmental regulation of mining operations
is much higher than the usual regulatory challenges, mainly as it involves responsibilities and
accountability for species other than human beings. However, even if we accept the
Gunningham & Sinclair (1999) principles as an applicable guiding framework relevant to this
thesis, the ‘best practice models’ proposed by DMP and DWER still do not comply with these
requirements.
The analysis of the best practice models of Western Australia demonstrates that there is a
need for better incorporation of environmental protection. Even strong compliance is not
enough because the requirements contained in the WA MinReF are fundamentally weak and
do not guarantee positive environmental outcomes. The next section provides five examples,
three from Australia including one from WA, and two overseas examples that highlight
opportunities about the possibility to go beyond compliance and adopt environmentally friendly
actions that would ensure environmental protection outside the regulatory framework.
9.4 Examples of innovative best practices
The examples cited in this section are indicative, and they provide mainly directional insights.
The first example provides an overview of the Australian Government’s Landcare Program
(“ALCP”) (2018) which offers useful information to gain insights into exploring approaches to
support mine rehabilitation and environmental protection work. The second example is about
an award-winning mining environmental restoration and mining rehabilitation program
implemented by a mining company jointly with a community group in Western Australia. The
third Australian example provides a summary of a Royal Commission investigating the
potential of the nuclear fuel cycle in South Australia. The last two examples are about the
reuse of two abandoned mines “for productive human use” in Europe that have received global
attention as tourist destinations. The European examples provide innovative approaches
adopted to utilise in difficult to rehabilitate abandoned mines for successful commercial
activities. They are examples that support innovative emerging approaches (cnbc.com, 2015;
mining.com, 2015) where the original environmental conditions could not be restored due to
the way resources have been extracted or where mining has been carried out in underground
tunnels for decades (fontina.com). The importance of these approaches may be relevant to
WA which is the geographical focus of this study where according to Government records
258
|
Curtain
|
confirm the presence of 17,000 abandoned mines (Government of Western Australia: Media
Statement, 2014).
Under the current WA government pilot project on rehabilitating abandoned mines
commenced in 2014, so far only three mines have been rehabilitated (DMP: Mining
Rehabilitation Fund Yearly Report, 2017). At this rate, unless new and innovative approaches
are explored as a matter of priority, it will take over 5600 years to rehabilitate the 17,000
abandoned mines in WA. Therefore, two examples from Europe were included to provide
insights that “recovery of a mine site to a healthy ecological state or for productive human use”
(Marinova, 2018) need to be explored as an innovative approach to rehabilitate abandoned
mines in WA. All these examples are investigated and presented using secondary data
sources.
9.4.1 Australia’s National Land Care Program
In August 2018, the Federal Department of Environmental and Energy launched the second
stage of its work under the Coalition Government’s Land Care Program which has an overall
budget of $1 billion (Australian Government: Department of Environment and Energy, n.d.).
The second phase of the Australian Land Care Program (ALCP) has a target of $450 million
invested through 47 organisations under the ALCAP (ibid). The ALCP has funded successful
tenderers who have demonstrated the capability to deliver vital, sustainable programs
including agricultural and land care for the benefit of regional communities.
“This program will be delivered at a local level by groups that know the lay of the land to
help our farmers improve their productivity in the good years and the bad” (Australian
Government: Department of Environment and Energy, n.d.).
The projects funded under the ALCP can be described as ‘best practice’ as it has natural
resource management capability of delivering benefits not only for Australia’s environment but
also as a potential as a model for mining rehabilitation across the country primarily due to the
availability of financial resources and other factors listed in this section:
“Over the next five years, the Government is investing $450 million in local and regional-
scale projects that will help us meet the needs of our local communities while delivering
on our national priorities and international obligations.”
“Through the Regional land Partnerships, the Australian Government will invest in
projects that protect our threatened ecological communities, restore our globally-
259
|
Curtain
|
important wetlands, and support recovery efforts for species identified under the
Threatened Species Strategy,” Assistant Minister Price said. Australian Government:
Department of Environment and Energy (n.d., para eight).
Four elements of the National Land Care Program (Table 9.3) would be useful as a model to
explore for potential environmental restoration and mining rehabilitation programs that could
be implemented outside the regulatory approach.
TABLE 9.3 NATIONAL LANDCARE PROGRAM – PARTICIPATION BY
STATES AND TERRITORIES
(1) Protection threatened ecological communities
(2) Restoration globally-important wetlands
(3) Supporting recovery efforts for species identified under the
‘Threatened Species Strategy.’
(4) Involvement of local community groups in Regional Australia
Total Project cost $450 million
Total no. of community groups involved 47
Total no of WA community groups involved 7
The life cycle of the project 3 year
(Source: Australian Government: National Land Care Program, 2018)
The participants, primarily voluntarily community groups, are selected for grants under an
open tender process. At present, there are no formal networking of these group with
regulatory bodies to utilise them into assisting with environmental restoration or mining
rehabilitation work. As these are public records and would be useful information to explore
joint programs, Table 9.4 provides a list of WA participants of the program.
260
|
Curtain
|
FIGURE 9.1 NATIONAL LANDCARE PROGRAM – PARTICPATION BY
STATES AND TERITORIES
2%
2% 17%
21% SA
2% ACT
WA
QLD
15% NSW
VIC
TAS
22%
NT
19%
(Source: Australian National Land Care Program, 2018).
The chart provides an overview of funding allocated for each State and Territories. Funds
have been allocated to larger States that range from 15 percent to 22 percent of the total’
funds. However, the Territories have received lower percentage including Tasmania under
the ALCP. The data source does not reveal the no of community groups who applied for
funding and the number of unsuccessful community groups who applied for funding in each
geographical location. The resource allocation patterns would be useful for both the
government sector and mining companies interested in mining rehabilitation or environmental
restoration work. The ACLP has many potentials for such endeavours and could work in
parallel with the regulatory framework. The potentials include: (a) involvement of community
groups across Australia who are familiar with the local conditions; (b) regionally based
people’s experience would be useful to learn lessons; (c) Replicability; (d) assist mining
companies to boost the bottom-line and add value to their ongoing formal rehabilitation work
262
|
Curtain
|
within the existing regulatory framework. However, it is important to recognise that to operate
as an effective model three critical factors need consideration. These include (i) voluntary
community participation; (ii) the presence of a motivated core group at a local level utilising
local human resources; and (iii) ability to tap into the local capacity to solve local environmental
problems. The mining company working with the Greenbushes has a global presence, but
the locally operated community group provides evidence of the presence of all four critical
factors. Further, the next example of best practice from Western Australia also provides the
possibility of achieving positive outcomes through a non-compliance framework (Lyon and
Maxwell, 2004, p. 240).
Though the Land Care Program (LCP) operates outside a regulatory framework work, it
supports Gunningham and Sinclair’s (1999) fourth and fifth regulatory design principles of
“empowerment” (of local communities) and supports the “win-win” outcomes.
The next section provides an example of a mining rehabilitation and restoration of the
ecosystem implemented jointly by a mining company and a community group.
9.4.2 Mining rehabilitation and restoration of the ecosystem due to old mining legacies:
Greenbushes, Western Australia
This section provides an example of an effective partnership program between an Australian
mining company and a local community group working together to implement mining
rehabilitation and eco-system restoration in South-West Australia. The company involved in
this work is known as Talison Mining Company (hereafter referred to as the Company) which
has its roots in tin mining in 1888 (Murphy, 9 July 2017, p.1). Greenbushes – the place of
operation is located approximately 250 kilometres south of Perth and 90 kilometres south-east
of the South-West port city of Bunbury (Talinson.com. n.d). The Company now known as
Talison Lithium Pty Ltd (ibid) operates a mine site to extract ore to produce lithium. The mining
at Greenbushes now covers a 100 square-kilometre area which includes over 20 abandoned
pits and human-made dams (ABC: Landcare, 2017, p.1).
I selected this example to illustrate four issue. First, to highlight the importance of community
participation and identify its role in land care programs; second, to find out whether a
partnership is a useful approach for such endeavours; third, to gain insights about joint
ventures of mining companies and local groups working together, and fourth, identify critical
success factors as lessons to be learnt as replicable model.
263
|
Curtain
|
The data for this example comes from four secondary sources. The first and second types of
data was collected from websites and associated secondary sources describing the work of
the mining company and the community group based in the region. The third set of data comes
from the press reports and a TV documentary about the joint program produced by the
Australian national broadcaster commonly known as Australian Broadcasting Corporation
(ABC). Fourth, data come from the WA mining regulatory agency (DMP/DMIRS) that maintain
documents about old mining tenements and other archival records of the Geological Survey
of Western Australia revealing the history of the old tin mining that operated previously and
had contributed to the formation of pit lakes.
The mining company now operates lithium mining under a tenement claimed to be one of the
oldest mining tenements of Western Australia, and now is the world’s largest producer of
lithium ore (ABC: landline transcript, 2017, p.3). The Greenbushes mine site has a history of
over a century. The original tenement of the Greenbushes commenced in 1883 long before
the WA’s first Mining Act 1904 came into force (ibid). Among the many archival records of the
Geological Survey of Western Australia (GSWA), there are references to the origins of tin
mining in Greenbushes (geodocs.dmp.wa.gov.au). The earliest record about the mine site
appears in a report of 1891, submitted by the then government geologist, H. P. Woodward
(ibid).
The Company claims to have a sustainability approach to its mining and work:
“Talison Lithium is committed to sustainable development and regards the
environmental management and rehabilitation of mining sites as among its highest
priorities. The Company continuously reviews and improves its environmental
management system to reduce the impact of mining on site and neighbouring
communities.
The Greenbushes Lithium Operation has stringent environmental operating conditions.
The site is certified to International Standards ISO 9001:2008 Quality Management
System Requirements and ISO 14001:2014 Environmental Management System
requirements by BVQI” (Talison.com. n.d., para five).
The Company’s responsibility of rehabilitating the old abandoned tin mines has been made
easier due to the participation of a community group known as Blackwood Basin Group (BBG)
which is composed of local people engaged in land rehabilitation work since its inception in
1991:
264
|
Curtain
|
“The Blackwood Basin Group is a non-profit, community-based organisation that
coordinates environmental management within the Blackwood River Catchment.
Formed in 1990 from community-led concern about the declining health of the
Blackwood River, the BBG has since worked with 54 catchment groups, assisted over
500 farming families and delivered more than $16million of Landcare activities
throughout this iconic river basin. We have a rich history of achievements for innovation
in community-led action and faced many challenges along the way to remain a Landcare
leader” (Blackwoodbasingroup.com, n.d., para one).
The Group Chair, Per Christensen is a retired biologist, and now living in the region (ibid).
Below is the explanation of the Company manager about the encounter and the beginning of
the joint partnership with BBG.
“The Basin Group came to us. We saw it as a great opportunity for community
engagement. So, we’ve allowed them to focus on how they wanted to change the
wetlands, but we have been there to help them as required with resources at stages and
just in ensuring that, you know, the longer-term plans are sustainable” (ABC: Landcare
transcript, 2017, p.4).
The joint land and ecosystem rehabilitation commenced in 2012. Due to their environmental
restoration work in the area. (ibid).
Brian Chambers the manager of the BBG provided an overview of the project:
“We have either planted nursery stock or transplanted fully grown plants – planted over
300 000 stems of those. We’ve done some 21 hectares of other revegetation around the
place with fringing vegetation and more forest species, so that’s planted close to 50 000
seedlings” (ibid. p.)
According to Brian Chambers, the group had received $1.6 million “grant to kick-start the
project at Schwenke’s Dam, the biggest waterbody on the Talison site. The goal was to
encourage rare and endangered waterbirds to the wetlands as well as to create new passive
recreation sites” (ABC: Landline transcript, 2017, p.4). A team of researchers was employed
by BBG to obtain an independent report on their rehabilitation of the Schwenke’s mine lake
in Greenbushes.
265
|
Curtain
|
Now the joint project has completed revegetation of “fully-grown plants and over 300,000
stems” over a mine cite spreading over 21 hectares. A mining company alone cannot
undertake such as activity unless they outsource such land rehabilitation activities by spending
money. The voluntary intervention of a local community working with a mining company
without any intervention from a regulator is in alignment with the fifth regulatory principle of
“maximising “opportunities for win-win outcomes” (Gunnigham & Sinclair, 1999).
One natural advantage both the company and the BBG had was that the “mining voids have
filled with winter rains over the years and become populated with plants, fish and insects,
attracting birds from around the world” (Murphy, 2017, para two). This natural filtration of
mining voids in the Greenbushes has been an advantage unlike the pit lakes in the Collie
Region (Case Study two in Chapter Seven) where the abandoned mines have high acidic
levels. Collaborative scientific studies (Keleher, Beatty & Allen, 2014) on the water qualities
would undoubtedly a critical success factor emerging from this ‘best practice’ example that
has been implemented outside a regulatory framework. Undoubtedly, the example of
Greenbushes joint company-community program could provide several lessons about the
possibility of environmental protection that could work outside non-compliance methods. In
this example, the presence and the willingness of both parties to work on a common goal is a
critical factor for the success of the program. The availability of funding and the transfer of
skills and approaches by the BBG participation appear to be another success factor and a
lesson to learn. Nature has also played an important factor as the mining voids in the
Greenbushes have been able to provide a medium for fauna to grow in mine voids, and
adjacent land areas to re-plants vegetation easily.
9.4.3 Royal Commission on South Australia’s participation in the nuclear fuel cycle
This example provides a summary of an initiative of the South Australian Government that
appoint a Royal Commission to enhance the State’s participation of the nuclear fuel cycle.
This example was included as it is a unique and pathfinding action by a government
undertaking and a high-level independent inquiry to find out the potential effects on human
and environment due to uranium mining and disposal of nuclear waste. The rationale for
including this example as a non-compliance best practice is due to three reasons. First, the
appointment of a Commission to examine an important issue of uranium mining and storage
of nuclear waste is unique as it is a pathfinding effort, hence, many lessons can be learnt from
it. Second, it is an open and transparent enquiry under a Commission and the first of its kind
on mining activities. Australia has a tradition of having such commissions since the 1850s
(Parliament of Australia, n.d.). Usually, Commissions have been appointed in Australia to
examine issues of significant public interest such as police corruptions in WA (2002 -2004) or
266
|
Curtain
|
reasons for devastating bushfires in 2002 in Victoria (ibid). The third reason for citing the South
Australian example is that it provides a contrasting approach to the policy adopted for uranium
mining under the Barnett Government (2008 – 2017) in WA as an extension to the State’s
resource development approach under the Liberal Party agenda (Phillimore, 2014).
The Commission in South Australia on uranium nuclear fuel cycle commenced on 19 March
2015 with the aim to undertake an independent and comprehensive investigation into the
potential for increasing South Australia’s participation in the nuclear fuel cycle. Its terms of
reference are:
evidence-based – meaning the findings to be supported with facts and to identify the basis
for claims made.’
• open and transparent – offering interested parties to provide evidence for the
Commission
• independent – To obtain view and opinions independent of government, industry and
lobby groups (Government of South Australia, n.d.).
The Commission collected evidence from four sources for its enquiry (i) written submissions;
(ii) oral evidence obtained via open public sessions; (iii) its research supported by overseas
visits, and (iv) commissioned studies (ibid). After the appointment of the Commission, four
background papers were issued outlining (a) exploration and mining of uranium in South
Australia; (b) further uranium processing; (c) use of uranium for electricity generation; and (d)
disposal and storage of nuclear waste. The objective was to invite interested people to
respond to the four areas of enquiries. A three month-time framework was given for written
submissions on oath as evidence for the consideration of the Commission. (ibid). More than
250 submissions were received from government agencies, community members,
organisations and industry representatives.
The Commission held a series of open public sessions from September to December 2015 to
April 2016. All the sessions were streamed live on the Commission’s website. Transcripts and
videos were made available to be downloaded from the website (ibid). Over 37 sitting days,
the Commission heard from 132 witnesses from Australia and overseas, including experts
from Belgium, Canada, Finland, Germany, South Korea, Spain, Switzerland, the United
Kingdom and the United States of America (ibid).
The Commission engaged organisations with the expertise to provide detailed assessments
of the commercial feasibility of establishing various nuclear facilities in South Australia. It also
267
|
Curtain
|
wanted an analysis of the broader economic effects of investments made in developing
nuclear industry related facilities. Further, the Commission obtained professional assessments
about the leasing of nuclear fuel, the risks involved in transporting used fuel, the safety of
conditions geological disposal facilities, and skills required for the development of establishing
nuclear facilities in South Australia.
On 9 May 2016, Premier of South Australia Jay Weatherill released the findings of the
Commission revealing the economic benefits. The findings suggested the possibility of
injecting $445 billion into the South Australia economy by establishing a nuclear waste
disposal and storage facility from global nuclear power plants estimated to be more than
390,000 tones, a use of nuclear for generating electricity for the State (Government of South
Australia, n.d.; Starick, 2016). The World Nuclear Association (WNA) reported that
“fundamentally changed the nature of the global nuclear waste discourse,” and a multinational
nuclear waste facility based in South Australia would provide a positive option for countries
operating nuclear facilities. It would be a “viable alternative” to national projects (WNA, n.d.,
para eighteen).
In summation, this example provided a summary of an initiative of the South Australian
Government to appoint a Royal Commission to enhance the State’s participation of the nuclear
fuel cycle. This is a unique and pathfinding action by a government to find out potential effects
on human and environment due to uranium mining and disposal of nuclear waste. The South
Australian initiative has been recognised as an effort that has changed the “the global nuclear
waste discourse by the World Nuclear Association, and the lessons from the inquiry have both
nations and global significance.
9.4.4 Innovative approaches to re-use difficult to rehabilitate abandoned mines
There are “more than 60,000 abandoned mines across Australia” (abc.net.com, 16 Feb 2017,
para one; mininglink.com.au, 2017). In Western Australia, there are 17,000 abandoned mine
sites (Government of WesternAustralia, 2016). Around the world similar problems remain due
to the legacy of mining (ukminingremain.co.uk, n.d.). Some these mine sites are difficult to
convert into its original environmental landscape, and they “pose environmental, health, safety
and economic problems to communities, the mining industry and governments in many
countries (abandoned-mines.org, n.d., para one). However, both government and private
sectors have taken action to re-use some of these difficult to rehabilitate abandoned mines
through innovative approaches to re-use some of them for various purposes. Table 9.5
provides a sample of innovative global approaches of re-use of abandoned mines for benefits
for humans across the globe.
268
|
Curtain
|
9.4.5 Production and storage of cheese in an abandoned mine: Italy
This example is about a group of people who established a cooperative in the Valle
d’Aosta valley in northern Italy producing world-class cheese using an abandoned
copper mine where the operation stopped in the mid-1940s. This innovative work using an
abandoned underground mine has also become a tourist attraction. At present, the
cooperative has six cellars with a total storage capacity of approximately 150,000
cheeses. The Valle d’Aosta valley is one production site. Most of the warehouses
were secured from military depots used during the Second World War, including the
old copper mine operated until 1946. Even today, cheese is moved using the tracks
that were previously used for transporting the copper ore from the underground mine
(fontina.com, n.d., para one).
In 1957, a group of milk producers founded the corporative known as Cooperativa Produttori
Latte e fontina (Fontina.com, n.d., para one) with the objective of collecting, ageing and
marketing the high-quality agricultural product of the d’Aosta valley. The initial group of
members representing dairies and pastures was limited for 46, and it has now risen to 200
(ibid). In the following year (1958), the group with the sponsorship of private companies
commenced producing cheese. At the end of 1958, the production number of Cheese was
less than 40,000, and it has increased to about 300,000 today (ibid).
The group initially used underground military depots used during the Second World War, but
were searching for warehouses suitable for making, and storing cheese as a part of their
production expansion initiatives. The group found the underground abandoned mine in Santa
Barbara in the municipality of Valpelline Preslong. In 1964, the abandoned copper mine was
acquired, redesigned, and expanded for the production, maturation and preservation of
cheese (Fontina.com).
Today, the visitor’s centre of the Municipality of Valpelline Preslong is located at the entrance
to the Fontina Cheese producer’s warehouse (Lovevda.it, n.d.). It is open to the public, and
visitors can see the production process and taste samples of various cheese produced in the
abandoned underground copper mine (ibid).
The signs of the old copper mining are still visible including the rail carriage tracks that were
used to move copper ore from the underground mine. (photograph 9.1).
272
|
Curtain
|
9.4.6 Wieliczka Salt Mine – Re-use of abandoned mine as a cultural centre and a tourist
destination
This section provides an example of utilising difficult to rehabilitate abandoned mine in Europe
and how it has been re-used as a centre of cultural significance and also as a tourist attraction.
In this section, a brief description of its history, and the current use and the value of cultural
and tourist centre is discussed.
The Wieliczka Salt Mine is located in the town of Wieliczka in the Kraków metropolitan area in
southern Poland. It was of the world’s oldest salt mines in operation. Commenced in the 13th
century, the mine produced table salt continuously until 2007. The mine was used to produce
table salt, and its operations ceased in 2007. The commercial-scale mining was abandoned
in 1996 due to low pricing and mine flooding (Wieliczka -saltmine.com). According to the
UNESCO, the “deposit of rock salt in Wieliczka and Bochnia has been mined since the 13th
century. This major industrial undertaking has royal status and is the oldest of its type in
Europe. (unesco.org, n.d. para one). During its entire operation, it was run by the Żupy
krakowskie Salt Mines company (wieliczkasaltmine.net). The mine is currently recognised as
one of Poland’s official national places that attract local, European and international tourists.
It houses dozens of statues, and four chapels carved out of the rock salt by miners and
supplementary carvings by contemporary Polish artists.
When the Wieliczka rock salt operations ceased in 2007, it became an abandoned mine
extending over nine levels of 327 meters deep and over 287 kilometres long hole underground
(ibid). At present, it has 300 km of galleries with works of art, altars, and statues sculpted in
the salt (ibid). Today, the abandoned Wieliczka salt mine has over “2,000 excavated
chambers. Features include a large chapel ornamented with works of art, altars and statues –
all carved from salt. There are also venues––a museum, sports hall, and rehabilitation and
treatment centre for people with respiratory ailments” inside the abandoned mine (ibid).
Further, it is also functioning as an international tourist destination. Visitors from anywhere in
the world can make arrangements to visit and stay over using an online booking system
(booking.com).
274
|
Curtain
|
PHOTOGRAPH 9.2-- WIELICZKA SALT MINE: POLAND AN ABANDONED SALT MINE
AS A CULTURAL AND TOURIST CENTRE
Wieliczka Salt Mine from above
(Source: www.wieliczka-saltmine.com)
In 1978, the UNESCO recognised Wieliczka salt mine under the World Heritage List of places
of the natural and cultural heritage of outstanding value to humanity (wieliczkasaltmine.net
n.d). However, The UNESCO delisted its World Heritage Status on 1 December 1998 “due to
the success of measures undertaken for their restoration and preservation” (unesco.org, 1998,
para one) by removing both the old city of Dubrovnik and Wieliczka Salt Mine from its List of
Endangered Sites (ibid).
The selection of the “best practice” samples has limitations as they were not chosen randomly.
The two European examples support that some abandoned mines could be re-used when it
is difficult to “recovery of a mine site to its previous eco-system”. The two examples cited have
been successfully transformed into productive human use, which has yet to happen in WA.
Of the three Australian sample, all of them have been operated outside a regulatory framework
with the initiatives of the community groups who had both the skills and desire to restore eco-
systems voluntarily. However, the best practice samples cited in this chapter, are useful to
learn lessons. Any regulatory parameters, however useful they are, work within a legislatively
defined framework. Hence, they are rigid and goal-oriented. This was, an area that research
participants have not been able to provide examples. One of the questioned asked form all
research participants (n =16) was about their familiarity with or knowledge of best practices of
regulatory approaches or environmental focused best practices. However, only one
affirmative answer was received from one regulator who referred to a commissioned
275
|
Curtain
|
consultancy where the consultant had rated the agency as one of the three best regulatory
models in the world. As that consultancy had focused only on the gas and petroleum industry,
it was not considered.
The primary aim of this research objective was not just to cite ‘best practice’ samples, but to
explore whether innovative human actions aimed at protecting the environment could be
established. Though all the examples are unique and diverse, they provide insights into a new
scenario that such practices do prevail.
All the five cases cited in this chapter have functioned through “beyond compliance” efforts of
“environmentally friendly actions not required by law” (Lyon and Maxwell, 2004). This lesson
is of vital importance for WA where there are 17,000 abandoned mines and the burden of
rehabilitating them have to be passed on to several future generations against the
“intergeneration principle” of sustainable development. WA has abandoned mines all over the
State. Thus, it provides opportunities to explore through further studies and sponsorship
outside the regulations to obtain fresh insights. At least a few abandoned mines out of a larger
sample of 17,000 could be identified and turned into tourist attraction centres where production
and storage of agricultural or dairy linked with tourists following the example of Italy may be
considered. However, the current mining rehabilitation legislation; the MRF Act is goal specific
such as payment of a compulsory levy for the mines operated under the Mining Act, therefore
not flexible, as it focused on rehabilitating a few selected mines out of 17,000 exist in WA. As
discussed in the Italian cheese making warehouse example, an innovative group of dairy
farmers in collaboration with the private sector has found and now successfully using an
abandoned copper mine of the 1940s. These issues need to be further explored through future
research.
9.5 Summary
The first part of this chapter discussed issues about the difficulties of defining ‘best practice’
definition due to a variety of reasons. The chapter describes two types of best practice models
developed by two regulatory agencies in WA and reviewed their usefulness against the
regulatory design principles. While analysing various definitions, and how WA government
agencies have adopted ‘best practice models’, this chapter emphasised the need to look for
innovative approaches beyond environmental regulations.
This chapter also provided an example about a Royal Commission into the nuclear cycle in
South Australia aimed to identify empirical evidence outside a regulatory framework without
implementing top-down government policy on uranium mining as happened in WA with no
276
|
Curtain
|
inquiry or investigation. This chapter also included two WA environmental best practice
models to gain insights and examine whether regulatory best practices could be framed
external to regulations adopted by government agencies. The recommendation to look for
“beyond environmental regulatory” approaches is an option to address the challenges faced
by the WA Government. The chapter provided insights into approaches of re-using old mine
sites that cannot be restored to its original conditions. To emphasise the need to look for
innovative approaches for mining rehabilitation, this chapter provided real-world examples
from Australia and Europe. The chapter provided five diverse examples that could be
described as best practices based on emerging innovative approaches to difficult to
rehabilitate mine sites by “re-using” them for productive human use. The five examples cited
in this chapter have operated outside a formal regulatory framework and support justification
for adopting new approaches to rehabilitate and re-use mine sites that could otherwise remain
as a financial liability and environmental hazard for eternity.
277
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.