Mining Regulations Consultation Report November 2020

Mining Regulations Consultation Report

November 2020

Department for Energy and Mining

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Mineral Resources Division

Department for Energy and Mining Level 4, 11 Waymouth Street, Adelaide GPO Box 320, Adelaide SA 5001

Phone +61 8 8463 3000

Email [email protected] energymining.sa.gov.au/minerals

South Australian Resources Information Gateway (SARIG) map.sarig.sa.gov.au

Report Book 2020/00030

© Government of South Australia 2020 With the exception of the piping shrike emblem and where otherwise noted, this product is provided under a Creative Commons Attribution 4.0 International Licence.

Published November 2020

Disclaimer The contents of this document are for general information only and are not intended as professional advice, and the Department for Energy and Mining (and the Government of South Australia) makes no representation, express or implied, as to the accuracy, reliability or completeness of the information contained in this paper or as to the suitability of the information for any particular purpose. Use of or reliance upon the information contained in this paper is at the sole risk of the user in all things and the Department for Energy and Mining (and the Government of South Australia) disclaim any responsibility for that use or reliance and any liability to the user.

DEM and the Crown in the right of the State of South Australia does not accept responsibility for and will not be held liable to any recipient of the information for any loss or damage however caused (including negligence) which may be directly or indirectly suffered as a consequence of use of these materials. DEM reserves the right to update, amend or supplement the information from time to time at its discretion.

Preferred way to cite this publication. Department for Energy and Mining 2020. Draft Mining Regulations 2020 – Consultation Report. Mineral Resources Division, Department for Energy and Mining, South Australia, Adelaide.

https://creativecommons.org/licenses/by/4.0/legalcode

November 2020 n Department for Energy and Mining 3

Contents1. Summary .........................................................................................................................................................................4 1.1 Overview of the draft mining regulations process ......................................................................7 2020 Mining Regulation Process Flow Chart .............................................................................................8 1.2 Public consultation .........................................................................................................................................9

2. Feedback received during public consultation ...............................................................................11 2.1 Submission content themes and topics .........................................................................................11 2.2 Miscellaneous considerations relating to common provisions

and production tenements ..............................................................................................................................17

3. Changes to draft regulations and non-regulatory documents .............................................19

4. Next steps ....................................................................................................................................................................22

5. Appendix ......................................................................................................................................................................25

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1 SummaryThe Mining Act 1971 (Mining Act) has regulated the exploration and mining sector in South Australia for over 50 years. During this time significant and widespread change has occurred in how the mining sector is managed, financed, and regulated. In 2016, the Department for Energy and Mining (DEM) led a major and overdue review of South Australia’s mining laws. This led to the updated Statutes Amendment (Mineral Resources) Act 2019 (SA) (Act) being passed by Parliament in late 2019.

Central to the updated Act is the implementation of mining regulations, which sit beneath the Act and detail its application. In 2020, DEM drafted the draft Mining Regulations 2020, draft Opal Mining Regulations 2020 and the draft Mines and Works Inspection (Mine Manager) Variation Regulations 2020 (collectively, the ‘draft regulations’) which, when completed, will support the Mining Act, Opal Mining Act and the Mines and Works Inspection Act 1920 (collectively, the ‘Mining Acts’) when they comes into effect on 1 January 2021.

Public consultation on the draft regulations is an important part of overall development of the draft regulations, in order to solicit a diversity of viewpoints and inputs across a variety of stakeholders. This input was carefully considered as part of finalising the regulations. With the draft regulations, public consultation occurred for a six week period from 3 August to 11 September 2020. It was undertaken in the COVID-19 environment, necessitating DEM’s use of a number of new online consultation approaches to reach and inform relevant and interested stakeholders, and provide them an

opportunity to contribute. Throughout 2020, COVID-19 has substantially affected workflows within the South Australian Government in relation to the drafting of all regulations in the state, and the passage of the draft regulations was also adjusted to align with this reality.

Despite the changing working environment, the goal of the public consultation period remained consistent throughout the regulatory reform: to provide accessible information on the draft regulations so as to solicit specific feedback via submission forms from interested stakeholders.

This report summarises the major themes and stakeholder feedback obtained from public submissions. It also provides details of input relating to the regulatory reform obtained from webinars, meetings, queries, and emails received during public consultation. The report will outline key changes made to the draft regulations as a result of the submissions received during public consultation.

58 submissions were received on the draft regulations. Of the submissions, 20 came from the mining industry, 10 from individuals involved in the quarrying or mining industry, five were primary producers or involved in the agricultural sector, five were individuals, two were Aboriginal groups, seven professional bodies and associations, and nine other submissions were received from mining sector consultants, government departments, non-governmental organisations (NGOs), community groups, and academics. In obtaining this number of submissions and explaining the draft changes to a cross section


of the community, DEM engaged with more than 370 organisations and individuals in over 53 online meetings and webinars, along with detailed written explanatory materials, emails and phone conversations. Engagement and ongoing communication with external stakeholders has continued after the conclusion of the public consultation period, with multiple follow up meetings, clarifications, information sharing and conversations occurring right up to the completion of the mining regulations.

Submissions were of a high quality. This enabled DEM to carefully consider the content in relation to the overriding intent of the regulatory reform of the updated Mining Acts. The main issues focused on in the submissions included:

� land access and landowner rights, and ensuring appropriate community and public participation throughout the mining project cycle from early exploration to closure and rehabilitation

� how the draft regulations and ministerial determinations (MDs1) will interact, and requests to see relevant updated MDs before the finalisation of the draft regulations

� the need to transparently monitor and report against compliance in order to strengthen the confidence of stakeholders interacting with the sector

� queries about compliance and enforcement, especially related to incident reporting and the need for annual compliance reporting requirements

1 A ministerial determination is a statutory instrument that enables the Minister to make specific decisions about the regulation of exploration and mining within the state.

� input that the increase in compliance and enforcement reporting requirements creates a significant burden of new work and administration for exploration, mining and extractive companies

� the type, content and public availability of instruments and documents to be placed on the Mining Register2 and ensuring legally and commercial confidential matters not becoming publicly available

� the type, content and public availability of instruments and documents to be placed on the Mining Register will lead to unintended consequences resulting in less communication and openness between companies and the regulator

� whether environmental reporting and incident reporting should be published in real time on the Mining Register and the negative consequences this will have

� practical operation of requirements relating to the draft Work Health and Safety (Mine Manager) Variation Regulations 2020, including matters relating to the competency of mine managers, certification, assessment and multiple extractive sites queries

� how early project scoping will support and not add to the application process, when will it occur, who will lead it, what it entails, how it will streamline mining lease applications (MLAs), and its voluntary nature

� concern over new suggested time frames for the release of company geological and exploration data being publicly released

2 The Mining Registrar is required to keep a register of registered claims, leases and licences issued and instruments registered under the Mining Act. Instruments here refers to reports, notices, agreements, bonds, orders, directions and other documents that are required to be recorded in the Mining Register.

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� how the inclusion of a social impact assessment (SIA) regulation will be regulated, practical requirements, the power of the Minister to call for a SIA, and when it will be required as part of a MLA

� clarification and questions about the thresholds relating to a change in operations – when is a change large enough to be classified a change in operations according to the new regulations

� the use of a Retention Lease (RL) in the new project and regulatory framework, what activities can be undertaken with an RL, and how it can it support the effective transition towards production

� the need to remove duplication on the requirement to engage on environmental outcomes if this has already occurred in a tenement recently

� concerns about the administrative burden associated with the new regulatory requirements for a tenement holder to provide a declaration that the content of an application is accurate

� operational approvals and how the new regulations will hasten the approval processes without reducing environmental protections, including direct feedback and input on where changes can be implemented to create efficiencies

� transitional and practical application of the new regulations relating to the fixed 18 year exploration deadline for existing exploration licence (EL) tenement holders

� queries on documents to accompany an application to subdivide an exploration licence (EL), a retention lease (RL) and a miscellaneous purposes licence (MPL), and

� concerns about the requirement and legislated scope to inform the regulator as part of the application process as to previous non-compliance records for companies applying for a MLA in South Australia.

Key changes made to the draft regulations and non-regulatory documents after public consultation include matters relating to the:

� content, process, and accessibility of documents and instruments on the Mining Register

� declaration of relevant non-compliance at the applications stage

� lengthening the time before for the release of company geological and exploration data to DEM to stimulate investment

� list of geological and exploration data that needs to be kept by the company and given to the Minister

� simplification and clarification of documents to accompany an application to subdivide an EL

� clarification of documents to accompany an application for a RL and a MPL

� increasing the time given to applicants to review and make a submission on draft terms and conditions of a tenement prior to granting

� scoping process and the social impact assessment (SIA)

� community engagement processes and increasing related efficiencies where possible when preparing an operating approval program for environmental protection and rehabilitation (PEPR)

� clarification on the ability to reinstate an EL to compel existing rehabilitation orders


� where there is a requirement to prepare an assessment report if the condition of a tenement is changed, varied, or revoked, a related requirement for the Minister to prepare a report explaining the reasons for this requirement

� a lower fee where a change to a PEPR is administrative in nature or a change in operations fee has been paid

� changes to the application process for a special mining enterprise (SME)

� more time given to provide annual exploration technical reports

� incident reporting requirements and reporting on environmental breaches

� processes to confirm an emergency order issued on a private mine (PM)

� administrative penalties for failing to compile, create or keep exploration or geological data in accordance with the Act and regulations, and

� a number of matters relating to transitional provisions and specific transitional and practical application of the new regulations.

1.1 Overview of the draft mining regulations process Following the completion of the Statutes Amendment (Mineral Resources) Act 2019, DEM developed draft regulations to underpin the revised Mining Acts. The draft regulations set out in more detail how the processes in the Mining Acts will operate and be applied. As a key part of the regulatory reform, the regulations will:

� streamline the regulatory process for those involved in exploration and mining activities

� improve the transparency, compliance and enforcement of regulation for the benefit of communities and the mining industry

� introduce modern environment enforcement powers ensuring operations and rehabilitation occurs in line with government approvals.

Given the variety of topics within the draft regulations and the increasingly restricted ability for people to move and meet across the state due to COVID-19, DEM reworked the approach to the draft regulations consultation process to ensure it could be accessed in a manner that supported involvement for interested people and key stakeholders, whilst adhering to public health restrictions. This was particularly important given the limited time that company representatives, community members and key stakeholders had to share on the draft regulations as a result of their own increased workloads in the COVID-19 environment.

Rather than providing the draft regulations in one large document, they were released in three tranches sequentially, in a manner that followed a mining project process: from land access and initial exploration, to mine closure and rehabilitation. Three draft regulations packages were released in successive weeks during consultation: Package one: Land access (topics on

access to land, exploration licences, and mineral claims), released on 3 August

Package two: Compliance and Enforcement (topics on compliance and enforcement, Wardens Court, Mining Register, royalties and finance, opal mining and competency of mining managers), released on 11 August, and

Package three: Operating approvals (topics on private mines, and a consolidated Mining approval made up of topics on common provisions, production tenements, and operating approvals), released on 19 August.

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2020 MINING REGULATION PROCESS FLOW CHART

Mining Act consultation

The Statutes Amendment (Mineral Resources) Act 2019

DRAFT REGULATIONS

FINALISE MINING REGULATIONS

Input from engagement and public submissions (consistent with the Mining Act) on topics included in draft regulations*

» Public consultations» 130 submissions

» Legal drafting » Parliamentary debate and approval

DEM technical advice

DEM technical advice

Legal drafting team

Legal drafting

DEM Strategic Direction Framework

DEM and Parliamentary Counsel analyse, consider and redraft if applicable (where appropriate and within the scope of the regulation drafting process)

*Draft regulations to be released in stages covering different topics. • Competency for mine managers • Access to land, public participation and engagement

• Mining Register, collection and release of data and information • Compliance and enforcement and Warden’s Court • Opal mining • Private mines • Exploration licences and mineral claims • Royalties and finance • Common provisions

• Production tenements • Operating approvals

Subject to change taking into account input and advice.

Inform on completed mining regulations to interested parties

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1.2 Public consultation The South Australian public was invited to provide their feedback and input on the draft regulations to ensure the final regulations considered multiple viewpoints arising from the regulatory changes of the updated Mining Acts.

In order to advise stakeholders of the upcoming formal consultation process, the Minister and DEM wrote to key stakeholder groups to inform organisations and their members of the planned consultation approach and the scope of the draft regulations, including Primary Producers SA, Grain Producers SA, Environmental Defenders Office, South Australian Chamber of Mines and Energy, Cement Concrete and Aggregates Australia and the Association of Mining and Exploration Companies, as well as stakeholders involved in DEM’s recently completed Stronger Partners Stronger Futures program. The Minister also wrote to all Members of Parliament and local councils informing them of the upcoming public consultation.

Information about the consultation process was distributed through live online sessions with the Minister for Energy and Mining, via social media, videos, and documents released on the department’s website, as well as radio and print media across the state and a poster advertising campaign in key rural areas prior to the commencement of formal consultation. An online webinar informed Aboriginal stakeholders of the process and how they could participate, while another specifically focused on government stakeholders.

In response to COVID-19, DEM offered a range of engagement options for public and stakeholder consultation, including digital platforms, public webinars and online, email and telephone meetings.

To facilitate people’s involvement, DEM:

� created information that could be viewed and downloaded from DEM’s website at any time

� created a standard submission form to ensure feedback was consistent and relevant to each component of the new regulations, and simplify the process for stakeholders, and

� printed and posted the regulations and accompanying documents to stakeholders on request.

Stakeholders and those who registered their interest in the draft regulations process were regularly emailed from April 2020 until the completion of the consultation period.

A series of small meetings were also set up at various times throughout consultation for any groups or individuals who wished to engage on the draft regulations consultation process as well as smaller online meetings hosted by technical experts involved with the development of the draft regulations.

The consultation period was anchored around three webinars on August 4, 11 and 17, providing stakeholders an opportunity to hear live from DEM staff involved in the development of the regulations. The public were able to submit their questions live to the panel and they were either answered in the webinar or followed up afterwards.

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DEM’s approach to the drafting of the mining regulations and consideration of the submissions:

� needed to firstly ensure that in order for the content of the submissions to be considered and accommodated the input must be within the scope of the updated Mining Acts

� maintained a continual process of critical reflection and interrogation of the input and views both from within the department, other government departments, interested stakeholders, and from the submissions received

� aligned with DEM’s Strategic Direction planning

� encouraged a variety of viewpoints throughout

� focused on capturing information, converging topics and information, and seeking to understand where significant differences of opinion exist on a given topic.

Submissions from the draft regulations consultation process were considered in relation to the updated Mining Acts, and how they aligned with and added value to the intent of the overall regulatory reform. The proposed mining regulations have also been informed by major state and national expert reviews including the Australian Productivity Commission Review into Resources Sector Regulation (2019-20), the Independent review of the Environment Protection and Biodiversity Conservation Act 1999 (2020) and the South Australian Productivity Commission (SAPC) Review into the Extractives Supply Chain (2020).

During the post-consultation submission assessment period, DEM continued to meet with a number of stakeholders on an on-going basis to seek clarity and input. This was an important step to ensure all relevant points of view were captured and considered in the draft regulations. DEM compiled all input and submissions and prepared an internal synopsis detailing how each material issue was captured and addressed. Departmental meetings involving multiple teams with different responsibilities (i.e. assessment, compliance, finance, legal, community and others) carefully considered and discussed all submissions before finalising a position on a particular regulatory topic. Through this process, this consultation report was compiled and made publicly available.


2 Feedback received during public consultation2.1 Submission content themes and topicsStakeholders and interested people were able to provide submissions on the draft regulations in three ways: via a prepared online template form, via email to DEM, or via downloading the form and sending to the DEM office. People requesting physical copies of the regulations were sent copies via registered post.

The online template outlined specific questions relating to each package; individuals and stakeholders were able to provide multiple comments and input for each question and were able to attach additional material.

This meant submission topics were accurately captured. Submissions sent as individual documents, independent of the online template, had topic headings that were added to the results. DEM reviewed the submissions and cross-checked them at multiple stages for accuracy and comments and inputs were collated into the key themes.

The following section summarises the main themes and topics outlined in the submissions received during public consultation. The main themes and topics are approximated in a topic cloud below.3

3 Illustrative and approximate only.

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Land access Access to land DEM received 20 submissions relating to land access. Key matters relating to land access were:

� the identification and process of measuring exempt land and the consequent compensation that applies where exempt land occurs, as well as the adequacy of the compensation that applies with other landowners

� how waivers and land access agreements agreed on by landowners can be better managed to create improvements in landowner, explorer and mining relationships

� the importance of maintaining confidentiality of land related agreements between landowners and companies, and the need for an increase in the amount of compensation and support for landowners in general during negotiation with an exploration or mining company

� input and commentary on how to improve the non-regulatory documents provided during the consultation that relate to this topic; for example, Ministerial Guideline number four (MG4) on Rights, access and interacting with landowners: A guideline for explorers, miners and landowners, Ministerial Guideline number 25 (MG25) Guidelines for explorers on Aboriginal engagement, good faith negotiation and agreement making, information sheets for notices of entry and biosecurity information sheets, as well as other information sheets and guidelines

� improvements to biosecurity information that can be used by exploration and mining companies more holistically as a way to better support the agricultural sector

� increasing the amount of public participation and engagement processes for private mines in South Australia

� clarification on the extent of public consultation required as part of scoping reports, programs for environment protection and rehabilitation (PEPRs), and change of operations processes

� how the regulations will measure consultation and engagement with the community, and greater clarification over the boundaries of the definition of a community, and

� the need for identification of stakeholders at the early stages of an EL and the level of requisite legislated engagement an exploration company should undertake with landowners.

Exploration licences (ELs)

DEM received 16 submissions relating to ELs. Key matters relating to ELs included:

� specific questions, queries and clarifications about the new sub-division process for ELs and compulsory reduction in ELs areas, including how the forfeiture4 of ELs works, and what would be the requirements for notifications and consideration of existing agreements (including agreements with Aboriginal groups) as a result of subdivision

4 A tenement can be forfeited if the explorer or operator has unpaid debts due to the state. Mineral claims, retention leases and mining leases can also be forfeited on application to the court by another operator. Any right to seek forfeiture (and transfer) of an EL should be limited to circumstances where the explorer has materially breached their obligations under the EL, the PEPR or the Mining Act. Forfeiture reforms reflect modern mining and the South Australian framework by expanding the process for an “interested person” to seek the forfeiture of a mining tenement in the Warden’s Court. It is used across other mining jurisdictions in Australia.


� queries on the new standard conditions for ELs and timeframes relating to compulsory expenditure over a tenement

� guidance on the EL application requirement relating to technical, operational, and financial capabilities and resources, and more information about the circumstances in which a Minister would consider refusing an application

� clarifications relating to the new expenditure obligations as part of a secured EL

� the need to limit the parameters for the submission of non-compliance records as part of an EL application

� input that the EL subdivision provision be amended to allow the current tenement holder and related parties to retain some interest in the new mandatory area that must be subdivided under the EL requirements, as this will encourage exploration, turnover of acreage and drive good corporate behaviour

� requests for further information relating to statutory declarations required from the applicant as part of the EL application process

� the need for changing the first EL term from five to six years (to a maximum of 18 years) to align with other business processes, reduce regulatory burden, and increase project cycle efficiency

� overall support for the introduction of the retention status, but that the retention licence (RL) should have a regulatory time limit to avoid this licence being used to retain land

� queries over the tiered annual fee structure for ELs, with specific questions about the fees for areas of the state in which

the government has already focused on providing mineral exploration information and encouraged development, and

� questioning the policy efficacy of plainting5 during different stages within ELs and the effect of the plainting provision on mining investment towards the end of an exploration licence life cycle.

Mineral claims (MC)

DEM received five submissions relating to mineral claims. Input included support for the registration of a MC from 14 days to 28 days, but recommended flexibility to take representative bulk samples, and increasing the time limit for preparing a MC application. Further input in submissions relating to MCs included:

� further explanation of rationale for moving directly from exploration to mining without using a MC licence. Related to this were suggestions about how to increase the efficiency and use of a retention licence (RL) and ELs

� how to improve the interaction between multiple tenements over the same piece of land, and

� concern over the name and use of the retention lease (RL) and associated cost arrangements, and how it can be more effectively used as a step to progress to mining.

5 Plainting is an attempt of a miner to take a tenement from another under-performing miner by filing an application in the Warden’s Court.

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Compliance and enforcementDEM received 25 submissions relating to compliance and enforcement matters. Key issues included:

� concerns that annual reporting in the extractives and quarrying sector was a significant new administrative burden for a tenement holder

� concern that the large list of designated materials – such as drill core samples or mine production quantities – that are now required to be kept by tenement holders will generate a substantial increase in the administrative workload of tenement holders

� the threshold required to trigger incident reporting. This included matters relating to what the trigger is for a reportable incident and included suggestions on timelines for reportable incident reporting and how incident reporting and follow up would be undertaken

� clarification sought in relation to associated penalties and the ability to review penalties

� the importance of forfeiture not being a central part of the compliance regime6

� the need for further explanation about existing compliance and enforcement regime and tools, and more information about how non-compliance is managed in South Australia. This was apparent from a number of submissions and meetings, and included how the mineral compliance regime pyramid operates

6 A tenement holder who fails to meet the minimum expenditure commitments carries the risk of facing an application for forfeiture by other companies. Forefeiture is a process in the mining sector designed to stimulate development and competition. It is therefore not directly a part of compliance framework, but can be triggered as a result of a non-compliance.

� questions relating to compliance regarding exploration on native title land and a desire for more periodic compliance auditing

� the role of contractor and consultant responsibilities and requirements and their ability to ‘sign off’ on project documents, and

� that non-compliance should extend further to other related body corporates (as an anti-avoidance measure) and include an applicant’s record on Aboriginal engagement or cultural heritage matters.

Mining RegisterConsiderable input and submissions were received on the Mining Register: 24 submissions or sections within submissions across all stakeholder groups on a diversity of matters. While some mining companies and associations were concerned about the release and public accessibility of material and instruments available on the Mining Register, a number of individual and NGO submissions requested far greater accessibility and open access to information as part of increasing transparency.

Key matters relating to the Mining Register were:

� concern about the protection of commercial in-confidence or sensitive information for exploration and mining companies and a risk to investment

� determining what will be on the register and in what form, including the sort of detail that will be available on the Mining Register (for exsample whether an instrument or document is to be noted solely in relation to existence –eg, company-landowner agreements), or in a redacted file, or placed in the Register in its entirety


� management, access, correction and interpretation of information and public information about past non-compliance of a previous tenement holder, including input that court orders or declarations of an interlocutory or interim nature should not be included on the Mining Register

� the use of automatic notifications via the Mining Register to relevant community stakeholders and communities when licences are either submitted, approved or changed, and

� the need for the Mining Register to align with Australian Stock Exchange (ASX) requirements regarding transparency processes.

Royalties and financeDEM received five submissions relating to royalties and finance. Key matters in the submissions included:

� concerns about rehabilitation and closure bond assurances

� input on the need to allow for progressive rehabilitation and the associated return of bonds to tenement holders, greater flexibility in how bonds are paid and if they should be allowed in conjunction with milestone payments, as well as how different financial instruments and bonds are implemented overall, and

� input on fees for an application to register a dealing or registration of a caveat.7

Other feedback on royalties and finance noted that royalty rates remain unchanged with the draft regulations and the modernisation of the approach for calculating royalty payments more aligned to a market (‘sales invoice’) value

7 Under the Torrens system used in South Australia, a caveat is a means of protecting an interest in the land claimed under an unregistered instrument or an equitable charge. This means it is a way of protecting an interest an individual or company may have in relation to a given area of land.

approach. There were requests for further clarification of the prescribed costs relating to royalties and transporting minerals to an actual point of sale. Where fee increases were stipulated, there was concern and questions about whether this is contrary to the intention of the updated Mining Acts.

Warden’s CourtThere were no submissions specifically relating to the Warden’s Court during public consultation.

Opal miningTwo submissions were received relating to opal mining: one submission suggested the fees and offences were punitive and excessive for low income opal miners, and one raised concerns about accessibility of compliance directions, rehabilitation directions, and instruments relating to penalties being accessible on the opal Mining Register.

Competency of mining managers23 submissions on the operation of the draft Work Health & Safety (Mine Manager) Variation Regulations 2020 were received. Responsibility for this part of this regulation is transferring to SafeWork SA (SFSA), aligning with the overwhelming request for this to occur during the updated Mining Acts consultation in 2016-17. Queries and input here related to the appointment of mine managers, certification, experience, and technical knowledge requirements, the types of mines and numbers of people necessitating a mining manager, how a mining manager is to be appointed, how risk is to be assessed and audited, and the specific requirements for a mining manager working across multiple work sites. Eight of the 23 submissions received were identical; the remaining submissions focused on the above matters. DEM has forwarded relevant submissions to SafeWork SA for consideration.

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Operating approvals22 submissions related to operating approvals. Key matters relating to operating approvals included:

� ensuring the regulations provide for an appropriate streamlining and flexible program for environment Protection and Rehabilitation (PEPR) process

� concerns on increasing scope of stakeholder engagement regarding PEPR preparation, particularly on the development of outcome measures

� smaller companies could receive an ‘exemption’ to the need for consultation if it is already undertaken prior to a PEPR application

� requests for updated PEPR templates and more guidance material, including clarification and information about the new changes regarding the Minister’s power to reject a PEPR

� requests for further information in relation to the assessment of capability, social, and operational skills/experience during an application stage

� requests for clarity relating to key terms including ‘undue’, ‘effective and efficient mining’ and ‘significant impact’, notwithstanding these terms and their definition have not materially changed from the previous regulatory framework and are defined in the updated Act

� who will have the responsibility and authority for the care, control, management and sharing of infrastructure as a result of the request for additional information in relation to local infrastructure information

� queries about special mining enterprise (SME) application processes and fees, and

� why is community consultation required when surrender and forfeiture of tenements occurs.

Private minesA total of seven submissions related to private mines. Feedback included support for the proposed changes to private mines and alignment with the PEPR regime, but also included concerns about the regulator’s new powers and how this could create uncertainty for industry, resulting in increased costs and time and administrative burdens as part of transitioning from mining operations plans (MOPs) to PEPRs. The changes for MOPs here also relate to new environmental compliance standards, community consultation requirements, reporting requirements, and incident reporting. Other input included:

� the seven year MOP review should only apply if there are significant changes to operations that will affect the environment or community, and

� requests for more information on the process and extent of financial surety8, including a mechanism to enable the extent of the financial surety to vary over time proportional to the risk factors of a specific site.

8 The setting of a bond by the Minister, the establishment of the Extractive Areas Rehabilitation Fund and the Mine Rehabilitation Fund provide a surety mechanism to protect the state from assuming post mining rehabilitation or abandoned liabilities. Bonds provides surety that tenement holders will achieve their legal obligations, whereas the Extractive Areas Rehabilitation Fund and the Mine Rehabilitation Fund provide surety against the tenement holders where they have failed to meet their legal obligations to undertake rehabilitation in line with agreed environmental outcomes, including outcomes for mine closure and completion, or where those obligations continue post-surrender.


Closure and rehabilitationThere were multiple inputs relating to concerns about appropriate management and oversight of exploration and mining tenements in relation to rehabilitation responsibility and the power of the regulator. This included concerns about when an existing mine or quarry is surrendered, how this affects rehabilitation and closure requirements, queries on the calculation of rehabilitation bonds, input on native vegetation and significant environmental benefit (SEB) payments.

2.2 Miscellaneous considerations relating to common provisions and production tenements35 submissions on matters concerning production tenements were received. Key matters raised relating to production tenements were:

� the long duration of timeframes for consultation and for considering the conditions given to specific production tenements

� how the proposed scoping process for project assessment and approvals would operate. There was in-principle support for scoping, but there was interest in further information relating to process, timeframes, size of operations, additional workload, and cost and time impacts on companies. Concerns were raised about how the regulator will review and assess scoping, and questions about how the regulator will measure the efficacy of scoping studies. DEM will undertake detailed work on scoping in 2021 (see next steps below), to provide more information and guidance

� a call to redesign the mining lease application (MLA) process to include scoping at the beginning of the MLA and develop a terms of reference (TOR) that will guide the application

� the interaction between environmental and social impacts as part of the existing EIA now that there is a new SIA requirement in the regulations

� queries about the application of SIAs for extractive companies (e.g. quarries) and other operations, as well as its application to private mines and the different scale of SIAs needed depending on the specific tenements. [It is important to note that the current regulations already require an assessment of the human environment as part of the EIA]

� an additional request on the SIA clause was that a provision be included to allow the SIA for a miscellaneous purposes lease (MPL) and a mining lease (ML) to be done together

� the need for greater consistency with the Environment, Biodiversity and Conservation Act 1999 (EPBC Act) and ensuring reduced duplication between state and federal processes

� a request for the inclusion and broadening of the requirement that consultation on a mining application also occur with any other person who may be directly affected by the proposed operations

� for miscellaneous purposes licences (MPLs), there were queries on the stipulated 250 hectares maximum land area available for a MPL and the perceived arbitrary nature of this amount

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� further information is requested on the definition of shared infrastructure and consideration of shared infrastructure sharing options being addressed as part of the new infrastructure regulation where an operation may occur

� concern on the new personal declaration requirement regarding the accuracy of information within applications, with suggestions that this imposes a new administrative burden on operators and a new level of risk for company employees. Clarity was requested in relation to the intent of this requirement

� multiple submissions noted that consultation and stakeholder engagement for MLs, RLs, MPLs, PEPRs, SMEs and proposed changes in operations was a positive development, with some noting concern over ‘consultation fatigue’, and

� an assessment of greenhouse gas (GHG) emissions for mines of a certain threshold, and recommendations the regulations ensure there is a better description of projected environmental impacts, climate impacts, biodiversity impacts and water impacts, and increased reporting of progress against these as part of actual environmental impact plans.

Financial assuranceInput and commentary on the financial assurance mechanisms under the new Act and regulations related to the management of the Extractive Areas Rehabilitation Fund (EARF), the role and operation of the new rehabilitation fund and the management of rehabilitation bonds, options for deferral or waiving of fees, timing of rental payments, and the royalty calculation methodology and timeframe for commencement. These matters will be further clarified in 2021 as DEM continues to work with

stakeholders on funding arrangements and related matters to finalise and create the most appropriate arrangement for the state.

Transitional arrangementsThere were a number of submissions and specific questions about how current ELs, production tenements and PEPRs will transition under the new regulations, and how land access and waivers will be managed for existing projects already in place. DEM is working with current exploration companies and tenement holders to manage this transition to the new regulatory framework and will be providing updated MDs and specific communication to support this transition in 2021.

Accuracy of information in an applicationThe new requirement for a personal declaration on the accuracy of information forthcoming in an application. It was felt imposed an increased administrative burden on operators and a new level of risk on company employees.


3 Changes to draft regulations and non-regulatory documentsThe summary section in part two outlined the topics within the draft regulations that have been updated as a result of the public consultation. This section provides more detail of the changes that have occurred in the draft regulations as part of their completion.

CHANGES TO THE DRAFT REGULATIONSReg no. Regulation purpose Feedback summary Change3, 23, 28, 30, 31, 34, 37, 40 & 68

Declaration by application of relevant non-compliance under the Act other than the Mining Acts. History of non-compliance is relevant to decisions of the Minister to grant or renew a tenement.

The declaration should: • include relevant non-

compliance under SA Acts

• include relevant environmental, safety, native title and Aboriginal heritage non-compliance not just mining

• be limited to serious offences

• be limited by time.

An applicant must declare serious non-compliances in the last five years that are serious that relate to mining, environment, safety, Aboriginal heritage and native title across Australia. Serious includes offences imposed by a court, loss or suspension of approval (e.g. EPA licence, work permit, mining leases), and orders given by a regulator that require work to stop or rehabilitation be undertaken.

14 & schedule (sch) 1

Establish content of the Mining Register to improve transparency, encourage compliant behaviour and attract commercial investment.

Accessibility of documents should be clear. Commercial sensitivity should be protected. Decisions of the Registrar should be challengeable.

Increased discretion of the Registrar to determine what appears on the Mining Register has been clarified (to manage a staged commencement). The nature of dealings listed in schedule one have been clarified where possible. (All other changes are to be reflected in policy and the commencement project plan.)

16 List of geological and exploration data that needs to be kept and furnished to the regulator for continued research and to be released for investment attraction.

Government feedback led to change.

Clarification that drill core samples cannot be disposed of at the Core Library.

New requirement to provide technical and environmental data used to prepare a proposal for an EIA.

17 Timing of when geological and exploration data can be released.

The sunset period should be five years.

Sunset period was increased from four years to five years.

27 Documents to accompany an application to subdivide an EL.


It is not practical to request a final exploration technical report at this time; therefore, this requirement was removed.

20


Reg no. Regulation purpose Feedback summary Change31 Documents to accompany

an application for a retention lease.

A statement from the applicant demonstrating that environmental outcomes can be achieved should be attached.

This omission was an oversight, therefore the regulations were amended to include this requirement.

33, 39, 58 Provide applicants an opportunity to review and make a submission on draft terms and conditions of a tenement prior to grant.

Time to review and respond should be longer than seven days.

Increased to 28 days, but allows for the time to be shortened at the request of the applicant to allow for timely grants.

37 Documents to accompany an application for a miscellaneous purposes licence.

A statement from the applicant demonstrating that environmental outcomes can be achieved should be attached.

This omission was an oversight, therefore the regulations were amended to include this requirement.

42, 43, 44, 45, 46 & 48

Provision of a scoping report to provide greater certainty with respect to government and community expectations as to the scope of work and the level and extent of assessment relating to project impacts.

Part should be clarified to make it clear that scoping is to be proponent lead for efficiency and certainty.

Redrafted parts of the regulations to make it clear that a proponent is to submit a report, and softened the discretion or power of the Minister.

Expanded to include applications for change in operations.

Clarified that a scoping report can qualify and limit an environmental impact assessment where evidence based.

48, 68, 69 & 72

Power for the Minister to call a social impact assessment.

Address any dichotomy that may reduce the ability for an environmental impact assessment to assess the human environment.

Clarified that a social impact assessment is in addition to an environmental impact assessment and it does not in any way limit or derogate from an assessment of the human environment in an environmental impact assessment.

53 Power to reinstate an exploration licence following expiry to compel rehabilitation.

Internal feedback led to change. This omission was an oversight, therefore the regulations were amended to include this requirement.

54 Requirement to prepare an assessment report if the Minister unilaterally add, varies or revokes a term or condition of a tenement.

Request for transparent reasons as to why the Minister would exercise a power to add, vary or revoke a term or condition of a tenement.

Impose requirement on the Minister to prepare an assessment report setting out reasons why the Minister exercised the power to add, vary or revoke a term or condition of a tenement. This report is to be published on the Mining Register.

64 Requirement of the tenement holder to engage when prepare an operating approval (PEPR).

Remove duplication on express requirements to engage on environmental outcomes when this is a requirement of engagement on a tenement application which may have already occurred in the recent past.

Remove the specific requirements on what to engage on, but retain obligation for the PEPR to set out who was engaged, what issues were raised, and how those issues were addressed.

66 Powers for the Minister to determine a lower fee with respect to the assessment of a PEPR.

Government feedback lead to change.

Ensure the Minister can determine lower fee as being payable where a change to a PEPR is administrative, or where the change is as a result of an application for Change of Operations where a fee has already been paid.


Reg no. Regulation purpose Feedback summary Change68 Application for concept

stage to establish a Special Mining Enterprise.

Requires the same level of rigour as other assessments by requiring assessment of non-compliances and capability.

This omission was an oversight, therefore the regulations were amended to include the following: • requirement to prepare a statement

disclosing relevant non-compliances;

• requirement to demonstrate capabilities; and

• social impact assessment where required.

78 Requirements to furnish annual exploration technical reports.


Unreasonable to require a final exploration technical report before expiry or surrender, therefore, this was amended to require the final report within two months of the cessation of the exploration licence.

79 & sch 1 Requirement to report on environmental breaches.

Should align with modern environmental legislation. Incident report should not be published in real time on the Mining Register as this will lead to under-reporting.

Reporting timeframe changed from one business day to 24 hours.

Removal of incident reports from the list of instruments on the Register (noting incident will be published in an annual compliance report).

83 Process to confirm an emergency order issued on a private mine.


The omission of this regulation was an oversight.

84 & 85 Declaration from a tenement holder that the content of an application is accurate.


Amended to make a declaration compulsory for all tenement applications and operating approvals (PEPRs and MOPs).

Sch 3 Administrative penalties. Government feedback led to change.

New administration penalties for failing to compile or create or keep exploration or geological data in accordance with the Act and regulations.

Sch 5 Transitional provisions. Government feedback and questions during consultation led to change.

Transitional provision to address: • Exempt land changes on applications

under assessment;

• Assessment of exploration renewals submitted this year but determined next year;

• Inconsistency of terms or conditions of an exploration licence with Act or regulations;

• Minister’s power to grant a retention lease after assessing a mining lease application submitted before the commencement of the Act;

• Aligning frequency of reporting from the old Act to the new Act;

• Compliance of historic tenements with no operating approvals.

22


A number of topics were raised in public forums and meetings that were outside the remit of the updated Mining Acts and draft regulations and the intent of the public consultation.

Topics that were raised that did not result in an amendment to the draft regulations but will influence ongoing change to policies, procedures, ministerial determinations, forms and regulatory culture include, but are not limited to the following:

� Recognition through procedures that allow tenement holders to be exempted from holding public liability insurance from a third-party provider where the tenement holder is capable of self-insurance.

� Updates to biosecurity guidelines.

� Design and implementation of a system to send out automated alerts for grants

4 Next steps

of leases and licences or other approvals based on geographical locations.

� Review, renaming and redrafting of determinations by the Minister to reduce regulatory burden and improve flexibility and ingenuity.

� Staged commencement approach to the Mining Register with a transparent approach to accessibility of instruments registered.

� Staged commencement approach to scoping of projects and implementation of social impact assessments.

� Creation of iApply forms to streamline online applications.

DEM’s approach to adopting these topics is set out in Part 4 below, titled ‘Next Steps’.

The amended draft regulations will be tabled before both Houses of Parliament in late November to be reviewed by the Legislative Review Committee of the Parliament. The Committee must consider all regulations as soon as conveniently practicable after they are referred to the Committee. In preparation for the updated Mining Acts and the draft regulations to commence on 1 January 2021, DEM will continue to update the non-regulatory documents, which includes the forms, templates, MDs, guidelines and information sheets required to reflect the amended Act and regulations, and support enactment of the new regulatory framework.

The public consultation period was invaluable to the regulatory reform process due to the quality of completed public submissions and multiple meetings DEM had with stakeholders as they sought clarification and further information before finalising their submissions. As a result of this input, change and improvements in non-regulatory documents associated with the draft regulations will be a DEM focus in the next steps of regulatory reform.

DEM will work with industry and stakeholders on further non-regulatory matters in 2021 during the transition to the new regulatory arrangements. The following table outlines


topics that were of particular public and stakeholder interest relating to the non-regulatory material, and a brief outline of actions to be taken. DEM welcomes the support and input of interested stakeholders in this regard.

REFORM NEXT STEPS Topic / Issue DEM action Scoping As part of the 2020 review of the regulations, a scoping option is proposed as part of the

environmental and social impact assessment process for complex mining projects in South Australia. Scoping will be proportional to the specific environmental risks and will help the proponent identify matters they think need to be addressed as part of future project approval.

Draft material and information will be available to interested stakeholders for review in late 2021. The guidance package will include an outline of how to prepare a scoping report, confirm thresholds and considerations for undertaking scoping, and include general information on expected interactions and timelines.

Mining Register - list of items for inclusion in schedule one; process to challenge the Registrar’s decisions; rectification process; sunset on non-compliance disclosure; timeframe for publishing significant notices; others.

There will be no material changes or new requirements to the Mining Register on 1 January 2021. Changes will come in a staged approach during the first six months of 2021. Commercially sensitive and legal propriety information will not be publicly available either during or after this time.

On a related matter in relation to the prescribed release of information and material for a tenement, the five year stipulation will remain. DEM will work to finalise positions on these matters over the next 12 months to minimise the chance of any unintended consequences due to confidentiality and legal concerns. Where appropriate, ASIC processes and jurisdictional comparisons with other states will guide the release of information and availability on the Mining Register.

Related to the Mining Register but of a far broader remit, a plain English writing initiative for important public-facing guidelines and documents will be undertaken across DEM to increase transparency, useability, and understanding of significant mining documents for communities and applicants.

Development of the ministerial determinations (MDs)

The Mining Act(s) provide for the Minister to make specific decisions about the administration and regulation of the exploration and mining sector. These decision-making powers provide the flexibility needed to enable the Mining Act(s) to keep pace with industry change and support continuous improvement to regulatory efficiency and effectiveness. These decisions are made through the publication of statutory instruments, currently described as MDs in South Australia.

Public consultation on the draft regulations highlighted some misunderstandings of the nature and scope of MDs. The regulator proposes to provide clarity about the types of decisions made through this process by changing the way the instruments are published and categorised, placing them into three groups: • terms of reference

• forms and templates

• mineral instructions

In late October and November, a suite of updated MDs were released to the public to enable a better understanding of the regulatory process between the updated regulations, the MDs, and the various forms and documents that encompass guidelines material.

Further information and communication on the MDs will be forthcoming in 2021.

24


Guidelines for the new regulatory framework

DEM will be focusing on extensive guideline updating and communication with external stakeholders to support the transition to the new regulatory framework. This will also align with the plain English writing initiative outlined previously and the potential future automatic notification system (via the Mining Register) to relevant community stakeholders when licences are either submitted, approved or changed.

In association with this process, and in response to recommendations from the SAPC’s review of the extractives industry supply chain, DEM will update, simplify and improve accessibility to DEM’s regulatory guidance for the extractives industry. This will include locating all guidance material and information for the extractives sector, and embedding links to relevant co-regulator legislation, regulation and guidance material not covered by the Mining Act 1971, on a single webpage.

Biosecurity DEM will work with with PIRSA and relevant government departments to provide a draft Information Sheet on Biosecurity to reflect proposed changes to South Australia’s biosecurity law, which includes the introduction of a general biosecurity duty.

Following the commencement of the amended Mining Act and Regulations, DEM will continue to liaise with PIRSA and relevant agricultural and farming bodies to ensure consistency with leading practice biosecurity principles and South Australia’s biosecurity law.

DEM will also inform the SA Landowner Information Service of the proposed changes to ensure the Service has access to all relevant information to assist landowners with their enquiries on exploration and mining matters.

Social impact assessment (SIA)

A SIA is a description of the impacts on people and communities that are reasonably expected to occur as a result of proposed authorised operations to be carried out under the tenement or the proposed change in operations and an outline of the measures that will be used to manage, limit or remedy those impacts (in the case of negative impacts), or to facilitate or ensure those impacts (in the case of positive impacts).

The inclusion of this regulation does not limit or derogate from any assessment of social impacts that must already be undertaken as part of assessing environmental impacts under the Act or these regulations, so it is not a significant level of additional work to be undertaken by a proponent.

Departmental guidance on the process, type of social impacts, magnitude, and thresholds for projects requiring specific SIAs will be provided in late 2021.

Financial Assurance Review - Mining Rehabilitation Fund (MRF), Rehabilitation Bonds, Extractive Areas Rehabilitation Fund (EARF)

This is a matter to be reviewed in 2021. Some submissions expressed concern about ‘capital capture’ (meaning where capital from exploration and mining companies is taken to balance project liability and risk for the state).

In conjunction with the review of the Mining Rehabilitation Fund, and in response to SAPC’s review of the extractives industry supply chain, DEM will also evaluate the current rehabilitation indemnification model for extractives. This will include consideration of different financial assurance models (including bonds and insurance funds).

Transitional provisions pertaining to existing exploration licences (Subsequent EL)

Ongoing communication will occur to support the understanding of, and explain the transition process to the new regulatory framework for individual companies. It is important to underline that an application for a subsequent EL made before the 2021 commencement that has not been determined will continue to be considered and determined, under the current regulation and applicable section until that section has been repealed by the Amendment Act. DEM has begun to work with tenement holders to explain the transitional provisions both in industry sessions and individual meetings.

Waiver of exemption Updating of information sheets with relevant agricultural and community groups to support better relationship building between companies and landowners and increase awareness of rights and responsibilities of both parties more effectively, leading to better multiparty outcomes. The waiver of exemption process is a key part of this. Development of information sheets concerning ELs will be forthcoming in 2021 for the same intent and purpose.


5 Appendix – Consultation results Information about the draft mine regulations, consultation period and methods and details of how to make submissions was distributed through a public consultation campaign that encompassed a variety of approaches and used diverse media and digital avenues.

Reach and inform

FACEBOOK /TWITTER

MINING REGS WEBPAGE EMAIL / PHONE ENQUIRIES

INTRO VIDEOS

POSTERS EMAILS TO STAKEHOLDERS

REGISTEREDVIEWS

INSTAGRAM

STAKEHOLDER ONLINE MEETINGS

‘LISTEN TO THE MINISTER’ ONLINE SESSIONS

RADIO / NEWSPAPER ADS

205 Posters

35 Rural Towns

10 Regions Emails

21

7621 views

2051

13

Recipients

39,441

97.23%

42%

Delivered

Opened

70 50

72 POST 28 POST S H A R E S

REACTIONS

569,918

2330

Aboriginal-specific information webinar SA government-specific information webinar1

2

78

4

4

3

38

4

Stations

Ads

Spots

Newspapers

IMPRESSIONS

CLICKS

VIEWS

941

26


Submissions by topic

20 16 5 525 25Land Access Exploration Licences Mineral Claims Compliance and

enforcement Mining Register Royalties and

Finance

2 7 423 35 22Opal Mining Private Mines Production

tenementsOperating approvals

MiscellaneousOperation of the draft Work Health & Safety

(Mine Manager) Variation Regulations 2020

Consultation

58

3Webinars 279 Attendees

Questions addessed

135

Submissions

79 Further INFOINFO

5 5 2 7 920 10

Submissions by stakeholder

Mining IndustryIndivuals linked

to Mining Industry

Primary Producers Individuals Professional

Bodies OtherAboriginal Groups

Post-consultation survey

23Com

plet

ed

958

Feed

back

re

ciev

ed


� 205 posters informing about the draft regulations consultation period were distributed in 10 regions and 35 towns in key visible public spaces before and during the consultation.

� 20 separate emails were sent to 835 specific stakeholders during public consultation and to 38,606 registered YourSAy members. There was a strong 42 per cent email open rate, informing a large number of people about the consultation at least once.

� There were 7,621 visits to the DEM website, where there was a full range of information and downloads on the draft regulations available.

� 70 specific email and phone enquiries provided detailed one-on-one consultation about the draft regulations, consultation process and related queries.

� Four videos provided information on the draft regulations changes and consultation, with 941 views in total.

� 38 radio spots advertised the public consultation period across four local radio stations across the state.

� Three advertisements were placed during the consultation period in four regional newspapers with substantial community reach.

� On social media, Facebook posts had a solid 553,056 impressions with 1,921 clicks, 52 post reactions and 21 post shares. Instagram obtained 2,330 impressions and 13 clicks.

� Two ‘Listen to the Minister’ online sessions that bookended the public consultation had 78 registrations.

� 17 individuals or organisations attended the Aboriginal stakeholder-specific webinar.

� Over 50 people attended the SA government information webinar.

Paid advertising saw the following results from engagement:

� Display advertising in York Peninsula, Murray Bridge, Port Lincoln, and Adelaide had more than 758,000 views and a click through rate of 0.19 per cent; in line with expectations for a campaign of this type.

� Facebook and Instagram delivered over 555,000 impressions, with more than 1,900 clicks to the website, a click through rate of 0.35 per cent, in line with expectations for this type of campaign.

The YourSAy platform also promoted the mining regulations consultation with the following results:

� 14 posts on social media reached 16,862 accounts on Facebook and Twitter. Facebook had 722 engagements at a rate of 1.93 percent and 20 reactions. Twitter had 351 impressions on 7 tweets.

� Emails to 38,606 registered YourSAy users were opened a total of 16,270 times.

� The draft regulations documentation was downloaded 33 times via the YourSAy website.

� There were 72 click throughs from the YourSAy to the DEM website.

At the conclusion of the public consultation there was an opportunity for stakeholders to fill in a survey on the consultation after its completion. 23 surveys were received, with more than 80 percent of respondents nominating the consultation as being either good or excellent, or being neutral in their assessment. 50 per cent of respondents stated that the provision of the material was about right or too much information overall was provided. The main concerns about consultation and engagement on the regulatory reform process related to the timing, lack of physical meetings and failure to postpone the consultation given the COVID -19 situation.

205416_20/11/2020

Acknowledgement of CountryThe Department for Energy and Mining (DEM) acknowledges Aboriginal people as the First Nations Peoples of South Australia. We recognise and respect the cultural connections as the traditional owners and occupants of the land and waters of South Australia, and that they continue to make a unique and irreplaceable contribution to the state.

Mining Regulations Consultation Report November 2020

Documents

Transcript of Mining Regulations Consultation Report November 2020