Environmental Regulations For Coal Mining In Hunter Valley New South Wales

Factors Considered Before Leave to Mine Coal is Granted

Question:

Write about the Environmental Assessment of Coal Mining.

Coal is one of the important minerals in Australia is majorly mined in New South Wales. The primacy of coal mineral is that it used in electricity supply in Australia and it is also exported to eastern Asia countries. The mining of coal has been criticized in Australia as having a deleterious impact on the environment because of the emissions of carbon dioxide during the combustion process. The courts have also revealed a sustained commitment to enforce the environment rights and protect the society from the harmful effects of environment destruction. The object of exercise of this research is to determine the environmental regulations that guide coal mining in Hunter Valley New South Wales. It will explicate the primary factors that are considered before leave to mine coal is granted. This research will evince a robust application of legal principles derived from legislations and case laws.

Environmental assessment is inevitable in the coal mining base in New South Wales because of the acute need to mitigate the hazardous environmental impacts. The Minister of Planning is bestowed with a moral imperative of putting the best interest of the environment at heart and be vigilant to protect and preserve it as he considers whether or not consent for mining should be granted (Sec. 74 Petroleum (Onshore) Act 1991 (NSW)).

It is important that before an environmental assessment is conducted an application is sent to the Director-General so that one can receive the environmental assessment requirements required to undertake coal mining in Hunter Valley. Under the old law ‘Major Projects’ according to Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) include coal mining. The new law repealed Part 3A and introduced State Significant Infrastructure under section 115U (4)) State and Regional Development SEPP 2011. It is instructive to note that coal mining is a state significant project because it has a humongous impact on the environment and the economic and is within the local government of Hunter. Coal mining in Hunter Valley is guided by the fact that significant state development can be done within the government areas of local area of upper hunter. Therefore, the legal assessment requirements for coal mining in Hunter Valley will be based on the standard of coal mining recognized as state significant in the repealed law. As a matter of course, mining and extraction activities have been recognized pursuant to the State Environmental Planning Policy (State and Regional Development) (2011 sch. 2) as a state significant project. It is prudent that the person that is making the application to develop a state significant project such as coal mining must be done through an Environmental Impact Statement (EIS) (sch.2 Environmental Planning and Assessment Regulation 2000).  

The Minister for Planning shall give consent to any person that seeks to pursue a state significant project such as in the Hunter Valley (Sec. 89D Environmental Planning and Assessment Act 1979 NSW). Before consent is given by the minister for environment in the case of state significant projects one must have an aquaculture permit (Sec. 144 Fisheries Management Act 1993 (NSW). In addition, one must have a mining lease that has in accordance to section 51 Mining Act 1992 (NSW). A mining lease is an indication that one has been has the legal right to undertake the mining process.  In the state significant project one must have a license for environment protection as has been envisaged in Protection of the Environment Operations Act 1997 (NSW) section 43. In case the coal mining activity in Hunter Valley is likely to disrupt public roads one also seek consent form the road authority (sec. 138 Roads Act 1993 (NSW)). An exploration license is also required for the assessment of mining of Coal under Section 29 of the Petroleum (Onshore) Act 1991 (NSW). The development application must contain the total capital investment value that will be required for the development. The application must explain the nature of development that is to be carried out and the extent to which it is going to affect the economy and the environment (sch.1 Environmental Planning and Assessment Regulation 2000). The application for development must contain all the authority consents that have been prescribed under section 89K of Environmental Planning and Assessment Act 1979. Ideally, for coal mining in hunter valley water that sourced from any natural source of water such as river, one should have a water access license (Sec. 60A of the Water Management Act 2000 (NSW)). The proponent is also required to have a assessment lease pursuant to Section 33 of the Petroleum (Onshore) Act 1991 (NSW) which is intended to impose rights on the proponent over the area identified with deposits of coal but it does not give the right to begin the mining. The assessment lease only permits the proponent to conduct a general assessment of the coal (Section 73 of the Mining Act 1992 (NSW)).

Legal Principles Derived from Legislation and Case Law

One of central goals of the Environmental Planning and Assessment law in Australia is to promote public participation during planning and assessment of mining activities (Sec. 5 (c) of the Environmental Planning and Assessment Act 1979 (NSW)). Public participation among the community in Hunter Valley will enhance confidence in the public because it promotes transparency and accountability. The ascendancy of public participation in the assessment process is that it ensures the suggestions that are surmised by the public are incorporated into the decision (Innes and Booher, 2000 p.6). Public participation gives the public the opportunity to make propositions of preferences in policies and the planning. There many minority groups in Hunter Valley that that may be forgotten because of the complex government procedures that is undertaken. Public participation therefore ensures that the voice of these minority groups is put into consideration. According to Schedule 1, clause 21(3) of the Mining Act 1992 (NSW) Companies that seeks to mine Coal must serve a notice to the landowners within 21 days after they have made the application for consent. For State significant project, Section 89F of the Environmental Planning and Assessment (Part 3A Repeal) Act 2011 (NSW) requires that mining companies should send the application documents and other vital documents to the public exhibition for a period of 30 days.

The Mining Act and the Petroleum (Onshore) Act do not contain an express provision that requires direct notification stakeholders but rather they require that applicants must the put a notice on the newspaper indicating the details of the application. However, in New South Wales direct consultation with stake holders has been encouraged. Pursuant to Section 142 of the Mining Act 1992 (NSW) an ‘access arrangement’ must be made between the landowners and the people who intend to commence the mining process. If the parties do not arrive at a plausible conclusion an access arrangement may be made through an arbitral process (Part 8, Div. 2 of the Mining Act 1992 (NSW)).

According to section 87 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) the minister has the duty to ensure that he defines the approach that will adopted in the assessment. The minister has a duty to serve a notice if the decision that has been made on the approach of assessment within 10 days after he has made the decision. Pursuant to section 136 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) before making a decision with regard to the application the minister should take into account economic and social factors, the precepts of ecological sustainable development and any advice that may have ben given by the independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development. It bears noting that according to Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities (2013) the minister does not have an obligation to take into account cumulative effects and the failure of it will not be an excuse for obscuring justice. In the case of Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) it was affirmed that the minister has the duty to ensure that he is guided by the contents of the Environmental Impact Statement (EIS).  Under section 79 c of Environmental Planning and Assessment Act 1979 (NSW) the decision makers must have the interest of the public while making the decision and must see that the site is suitable for the mining activity. In Kennedy v NSW Minister for Planning (2010) the court held that held that the duty to protect the interest of the aboriginal heritage is an epitome of the public interest duty envisaged by legislation. By dint of section 6 of the Protection of the Environment Administration Act 1991 (NSW) the decision makers have a duty to ensure that the environment New South Wales remains to be one of good quality and sanctioning ecologically sustainable practices. They should ensure that the miming activities undertaken pose less risk to human life within the environment. In a bid to promote the precautionary principle it has been decided in the case of Telstra Corporation Limited v Hornsby Shire Council (2006) that the decision makers have a duty to prevent irreversible damage to the environment as they make an evaluation of the application and prepare to make a decision. It was also noted that alternative options should also be devised to promote effectiveness of the process.

Pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979 any individual that is not contended with the determination of the decision making authority has the right to appeal to the Land and Environment Court within 12months after being served with the notice of the consent making authority. A member of the public has the right to appeal to the Land and Environment court if the consent authority has not made a decision 40 days after the days of receipt of the application ( sec. 109k Environmental Planning and Assessment Act 1979). Conversely, the Land and Environment Court Act 1979 under part 3 has the jurisdiction to hear and determine appeals concerning Environmental planning and protection. A person making such a peal may appear in court in person or may do so through a representative such as an advocate (Sec. 63 Land and Environment Court Act 1979).

Conclusion

Ideally, it can be argued that public participation promotes justice to the members of the surrounding community because it encourages democracy which is fundamental tenet of good governance. On the other hand, it is imperative to note that the surge in the eminence of climate change has given rise to many environmental regulations of coal mining at the federal, state and international level. The environment assessment is conducted to promote the efficient extraction of coal enhancing checks and balances.

References

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment (Part 3A Repeal) Act 2011 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Fisheries Management Act 1993 (NSW)

Innes, J.E. and Booher, D.E., 2000. Public participation in planning: new strategies for the 21st century.

Land and Environment Court Act 1979

Kennedy v NSW Minister for Planning [2010] NSWLEC 129 esd

Mining Act 1992 (NSW)

Petroleum (Onshore) Act 1991 (NSW)

Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154,

Protection of the Environment Administration Act 1991 (NSW)

Protection of the Environment Operations Act 1997 (NSW)

Roads Act 1993 (NSW)

State Environmental Planning Policy (State and Regional Development) (2011)

Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694

Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133

Water Management Act 2000 (NSW)