The Department for Energy and Mining (DEM) is undergoing a major review of South Australia’s Mining Act 1971 (SA) (the Mining Act). The review commenced in 2016, in parallel with the Stronger Partners Stronger Futures program. As a result of this review, the Statutes Amendments (Mineral Resources) Act 2019 (the Amendments) came into effect in October 2019. DEM has now released draft mining regulations to support the Amendments (the Draft Regulations). The Draft Regulations will come into effect in January 2021.
This article summarises key aspects of the draft updates, as they relate to native title and Aboriginal cultural heritage issues.
The Amendments aim to encourage early engagement with landowners and communities, to increase community access to information, and to improve the transparency of compliance and enforcement with the Act.
Part 9B of the Mining Act details how exploration and mining operations can be undertaken on native title land. This article sets out three areas that the Draft Regulations will affect native title holders.
a. the Mining Register
DEM administers and manages resource licences through a mining register on the DEM website (see See https://www.energymining.sa.gov.au/minerals/exploration/tenement_information/mining_register). The register contains information on permits, claims, leases and licences. Section 15AA of the Statutes Amendment (Mineral Resources) Act 2019 expands the type of dealings and the range of information that is required on the mining register.
The Draft Regulations aim to make the mining register more transparent and accessible by increasing public access to a broader range of information. Regulation 14 and Schedule 1 of the Draft Regulations support s 15AA of the Amendments by requiring the following information on the mining register:
- mineral tenements (such as mineral claims, exploration licences, mining leases, retention leases, miscellaneous purpose licences and private mines) and their terms and conditions;
- transfers of title;
- dealings and agreements required to be registered under the Mining Act (e.g. waivers on exempt land, appointment of operators);
- notices served to the registrar (e.g. notices of entry);
- Warden’s court proceedings and decisions;
- environmental directions; and
- Other information required by Schedule 1 of the Draft Regulations.
b. Applications and renewals for exploration licences
To commence exploration operations, an applicant must apply for an exploration licence under s 29A of the Mining Act 1971. The application must be in a manner and form determined by the Minister (Mining Act 1971 (SA), s 29(1)).
The Draft Regulations set out the minimum level of information needed to accompany an exploration licence application. The Draft Regulations aim to expand the information required to accompany an exploration application, to demonstrate that the applicant has the necessary capability and resources to operate the licence in compliance with the law and their social requirements.
In particular, regulation 23 requires that the following information be included in an application or renewal for an exploration licence:
- a statement outlining the intended exploration operations for the first two years of operations, including the estimated expenditure of those operations (sub-regulation 23(1)(a));
- a current technical, operational and financial capabilities and resources statement (sub-regulation 23(1)(b));
- a statement nominating the principal minerals sought and the exploration model employed (sub-regulation 23(1)(c));
- a statement outlining the applicant’s history of non-compliance under the Act or the equivalent act any other State or Territory (sub-regulation 23(1)(d)); and
- a statement declaring whether the applicant or a related body has within the preceding 3 months held an exploration licence in any part of the application area (sub-regulation 23(1)(e)).
c. Programs for environment protection and rehabilitation
An exploration or mining licence holder must have an operating approval known as a Program for Environment Protection and Rehabilitation (PEPR) before commencing any operations (Mining Act 1971 (SA), s 70B(2)).
Regulation 62 promotes early engagement with landowners (including native title holders) by requiring the licence holder, when submitting the PEPR to the Minister for assessment, to include information on the consultation undertaken in connection to the expected environment outcomes under the PEPR.
The information must detail the licence holder’s reasonable steps to engage the landowner, including:
- who was consulted;
- any issues or concerns raised; and
- any steps the licence holder proposes to take to address those concerns.
Early engagement is a key control to ensure that explorers comply with their obligations of Aboriginal heritage management under the PEPR, and to determine whether low impact exploration may impact on Aboriginal heritage. To meet the PEPR requirements, licence holders will need to factor in early engagement in their planning process.
By requiring licence holders to document any controls agreed on with native title groups to minimise impacts on heritage, the Draft Regulations encourage the licence holder to consider how they will notify and engage with native title groups regarding their planned operations.
Further commentary on early engagement of native title groups
Early engagement is integral to ensuring native title groups have the opportunity to contribute and participate in the mining application process. Native title groups have the most comprehensive understanding of Aboriginal heritage matters on their country. Their participation is essential in the assessment of the potential impacts of proposed mineral operations and appropriate measures to avoid impacts to Aboriginal heritage.
For more information, contact Reade Allison (reade@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).