LEGAL BARRIERS TO THE USE OF MINE DEWATERING SURPLUS

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1 LEGAL BARRIERS TO THE USE OF MINE DEWATERING SURPLUS NELA (WA) STATE CONFERENCE THURSDAY 3 SEPTEMBER 2015 HYATT REGENCY PERTH Daniela Tonon, Special Counsel, , daniela.tonon@hsf.com

2 OVERVIEW State policy framework mining projects in WA What is mine dewatering surplus? Regulatory requirements and approvals Pilbara region: use of mine dewatering surplus for irrigated agriculture Future opportunities and challenges Questions 2

3 STATE POLICY FRAMEWORK MINING PROJECTS IN WA Department of Water 2013 Western Australian water in mining guideline Options to use mine dewatering surplus can be considered at any time during the mine s life However, desirable to consider expected surplus volumes and alternative uses for the surplus water as early as possible - preferably during Stage A (prelim consultation) or Stage B (scoping of the project) Proponent to optimise the use of mine dewatering surplus (either on site or off site) to maximise efficiency and reduce adverse effects of releases to the environment 3

4 STATE POLICY FRAMEWORK Department of Water 2013 Strategic policy 2.09: Use of mine dewatering surplus Neither the Mining Act 1978 (WA) nor the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act) expressly limit or restrict the use of mine dewatering surplus for non-mining related purposes Check State Agreements: some contain explicit rights However, relevant approvals to authorise the use of water will need to be obtained Alternative uses for surplus water may require proponent and/or third party to obtain additional approvals 4

5 WHAT IS MINE DEWATERING SURPLUS? Effective and efficient use of water by mining companies is encouraged Mine dewatering surplus is the volume of water from a mine dewatering operation which is surplus to the water requirements of a particular mine Mine dewatering volumes must first be used for: mitigation of environmental impacts fit-for-purpose onsite activities (processing, dust suppression, mine camp use) Any dewatering volumes that remain after these requirements have been met constitute mine dewatering surplus 5

6 REGULATORY REQUIREMENTS AND APPROVALS No legal barriers but complex regulatory process involving various State agencies Key approvals required: To construct/alter a well, a section 26D licence under RIWI Act To dewater, a section 5C licence under RIWI Act to take water If supply to a third party constitutes a water service under the Water Services Act 2012 (WA), a licence or exemption If supply is to be used for drinking water purposes, limitations may apply if source of water falls within a public drinking water source area (PDWSA) 6

7 REGULATORY REQUIREMENTS AND APPROVALS Other key approvals: Environmental approval may be required under Part IV of the Environmental Protection Act 1986 (WA) (EPA) if use of surplus water has the potential to adversely impact the environment; Where a dewatering proposal triggers a prescribed premises category, it must be assessed under Part V of the EPA and in accordance with a works approval or licence Ministerial approval to impact an Aboriginal Site may be required under the Aboriginal Heritage Act 1972 (WA) 7

8 REGULATORY REQUIREMENTS AND APPROVALS Other key approvals (continued): Appropriate land tenure may entail other approvals, for example: o future acts under the Native Title Act 1993 (Cth) o diversification permits issued by Pastoral Lands Board under the Land Administration Act 1997 (WA) 8

9 MARANDOO IRON ORE MINE, PILBARA MAP: Location map Marandoo mine in Western Australia Source URL: topic/assessments/australias-waterblueprint-national-reformassessment-2014/chapter-3- progress 9

10 MARANDOO INTEGRATED WATER MANAGEMENT SCHEME Marandoo mine is located approx. 45 km east of Tom Price, adjacent to Karijini National Park Key components: Water supply to the Marandoo mine operations and accommodation village; Water supply to Tom Price mine and town; Reinjection into the acquifer accessed by the Southern Fortescue Borefield; The Hamersley Agriculture Project (HAP) irrigated agricultural scheme using centre pivot irrigators on RTIO s Hamersley Station to grow hay; A buffer dam to store irrigation water volumes unable to utilised during winter; and Environmental approval for limited discharge into a nearby creek. 10

11 HAMERSLEY AGRICULTURAL PROJECT (HAP), PILBARA PHOTO: An aerial photo of the pivot at Rio Tinto s Hamersley Agricultural Project (HAP) on Hamersley Station. These were some of the first centre pivots in the Pilbara to use surplus dewater from mining to grow irrigated crops. (supplied: DAFWA) ws/ /pilbarapreparation-to-sow-cropsusing-minewater/

12 HAMERSLEY AGRICULTURAL PROJECT (HAP), PILBARA PHOTO: This hay was grown using excess water at a Pilbara mine site. (Lucie Bell) ws/ /pilbaraag-vision/

13 PILBARA HINTERLAND AGRICULTURAL DEVELOPMENT INITIATIVE (PHADI) Pilbara Hinterland Agricultural Development Initiative (PHADI) Funded by Royalties for Regions over 4 years PHADI will assess the potential of irrigated agriculture in the Pilbara utilising surplus mine dewater and other in-situ water resources, and deliver high-impact research outcomes to assist future development decisions by government and industry Initial pilot site underway Second pilot site is currently being explored 13

14 PHADI - PILBARA LAND AND WATER ASSESSMENT MAP: The study area for the Pilbara Hinterland Agricultural Development Initiative is approximately 270,000 km 2, or 27 million hectares. Source URL: tters/pilbara-hinterland-agriculturaldevelopment-initiative-issue-1 14

15 WOODIE WOODIE PILOT PROJECT, EAST PILBARA The 38-hectare pilot site is located on Warrawagine Station, about 140 km south-east of Marble Bar The Warrawagine Cattle Company will use excess water from the nearby Woodie Woodie manganese mine to irrigate a variety of crops, including sorghum, maize, and oats (ABC, July 2015) There are plans for 3 pivots and crops are expected to be used for cattle feed for the Station and potentially for biofuel for the mining industry 2 year pilot commenced in 2015, seeding has started Initial hiccup when Woodie Woodie mine ceased dewatering operations Trial results will be collated into a report and made publically available 15

16 WOODIE WOODIE PILOT PROJECT, EAST PILBARA PHOTO: The Woodie Woodie pilot project is a 38-hectare irrigation trial on Warrawagine Station in the remote eastern Pilbara. The pilot will trial a range of irrigated crop species and test the logistics of irrigated agriculture using mine dewater as part of the Pilbara Hinterland Agricultural Development Initiative (PHADI). Source URL: tters/pilbara-hinterland-agriculturaldevelopment-initiative-issue-1 16

17 WARRAWAGINE STATION, EAST PILBARA PHOTO: Sorghum will be grown at Warrawagine Station in the East Pilbara, using excess water from Woodie Woodie mine (AgGrow Group) Source URL: ews/ /sorghumtrial/

18 FUTURE OPPORTUNITIES AND CHALLENGES Opportunities Beneficial uses solutions enable water to flow to its highest and best use (key NWI principle) Use on other mine sites Mine rehabilitation and closure (eg. re-establishment of native veg) Agriculture and horticulture Town drinking water supply / community amenities (eg. POS) Industrial use 18

19 FUTURE OPPORTUNITIES AND CHALLENGES Challenges Whole of government approach? Reliable and variability of supply: water supply will only be available as long as the mine is operating and volumes may vary Water quality: quality of water may vary over the life of the mine as water is abstracted from different parts and from different depths Cost of using dewatering surplus v cost of establishing a new supply? Supply chain logistics Cumulative impacts? 19

20 DISCLAIMER The contents of this publication, current at the date of publication set out in this document, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication. Herbert Smith Freehills LLP and its affiliated and subsidiary businesses and firms and Herbert Smith Freehills, an Australian Partnership, are separate member firms of the international legal practice known as Herbert Smith Freehills. Herbert Smith Freehills

21 QUESTIONS?

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