TIPS AND TRAPS IN UNDERTAKING ENVIRONMENTAL ASSESSMENT FOR PROSPECTING OPERATIONS Samantha Daly, Partner, Johnson Winter & Slattery 2018 NSW Minerals Council Exploration Forum, Monday 7 May 2018
Agenda Prospecting categories and when environmental assessment is required When is a REF required and what must it contain? When is an EIS or SIS required and what must that contain? The legal risks and the role of the Court Tips and Traps 2
Prospecting categories Exempt Assessable - complying exploration activities Assessable - non-complying exploration activities 3
Prospecting categories Category Criteria Assessment requirements Exempt (a) the construction, maintenance and use of equipment for the monitoring of weather, noise, air, groundwater or subsidence, (b) low intensity activities associated with mineral exploration or petroleum exploration, including the following: (i) geological mapping and airborne surveying, (ii) sampling and coring using hand-held equipment, (iii) geophysical (but not seismic) surveying and downhole logging, (iv) accessing of areas by vehicle that does not involve the construction of an access way such as a track or road, if minimal environmental impact. Assessable CEA Location requirements Impact thresholds and criteria Can be carried out in accordance with codes of practice (post 1 July 2015 prospecting authorities only): o Environmental management o Rehabilitation o Produced water management, storage and transfer Assessable non CEA None (NB: other approvals may be required) Development without consent Part 5 of the EP&A Act applies, unless activity approved under Part 4 or Part 3A Application Form ESF 4 CEA questions (Agricultural Impact Statement (AIS) not required) Do not meet CEA criteria Development without consent Part 5 of the EP&A Act applies, unless activity approved under Part 4 or Part 3A Application Form ESF 4 (all questions) plus additional information (including potentially an AIS): o Targeted REF 4 o Guideline REF
Impact thresholds: recent law reform Biodiversity Seven-part test for assessing significance of impact on threatened species, populations or ecological communities or their habitat, replaced by test in section 7.2 of the Biodiversity Conservation Act (BCA) If SIS is required, SIS is to be prepared in accordance with Division 5 of Part 7 of BCA must request assessment requirements from OEH BDAR (using the BAM) may be prepared instead of a SIS at proponent s election retirement of credits may be required Aboriginal Cultural Heritage Due diligence defence (for harm to ACH) to be superseded by new ACH assessment pathway AHIPs to be replaced by ACH Management Plan Changes not likely to be implemented until late 2021 5
When is a REF required? ELs subject to condition that the licence holder must not carry out any assessable prospecting operation without the approval of the Minister A REF must be prepared before the assessable prospecting operation is carried out (ie cannot be retrospective) Further assessment/ approval may be required if the activity is modified (unless the impact is lessened as a result of the modification) ESF4 form still required to be completed (in part) 6
What must a REF include? The determining authority must examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of an activity Level of enquiry and investigation Element of reasonableness to be read into the statutory duty REF checklist cl 228 EP&A Regulation ESG2 Guideline: CEA Non-CEA Targeted REF Guideline REF 7
When is an EIS or SIS required? An EIS must be prepared where the prospecting activity is likely to significantly affect the environment EP&A Regulations apply Applicants to seek SEARs from the Departmental Secretary Public exhibition period (minimum 30 days) A SIS is required if a prospecting activity is likely to significantly affect threatened species Biodiversity Conservation Act applies If only likely significant affect on the environment is the significant affect on threatened species, an EIS will not be required (and the proponent may prepare a SIS only) Proponent may choose to prepare BDAR instead of SIS 8
Determining significance of impact Informed by REF Significant = important or notable Definition of activity cannot be described in error so as to reduce its likely impacts Activity to be considered must be raw activity as proposed by the proponent, not the activity as proposed to be conditioned or modified by the determining authority Likely means a real chance or possibility rather than more probable or not Consider short term and long term impacts Lack of scientific certainty will not justify the decision that the activity is not likely to have a significant impact Consider not only the absolute qualitative environmental effects of the activity, but also those in the context of existing adverse impacts arising from the subject environment (ie cumulative impacts are to be considered) The higher the environmental values, the lower the threshold of impacts of an activity which would give rise to a significant impact 9
The role of the Courts the Fullerton Cove case Dart Energy Ltd proposed to carry out a pilot CSG exploration project at Fullerton Cove Cat 3 activity requiring activity approval under PEL conditions Department required to assess the pilot project under Part 5 of the EP&A Act Dart Energy provided the Department with a REF. The Department: Assessed the pilot project using the REF; On the basis of the REF, determined that an EIS was not required; and Approved the project for 12 months 10
The role of the Courts the Fullerton Cove case Issues: Whether the Department breached s111 in approving the pilot program by failing to consider mandatory matters, or alternatively, by failing to give proper, genuine and realistic consideration to those matters Whether the Department had breached s112 on the basis that the Department should not have approved the pilot program without first obtaining an EIS because: The overall potential impact of the activity was assessed as medium (under the ESG2 Guidelines) The activity was analogous to designated development; and The impact was likely to be significant on certain specified species and when considered cumulatively. 11
The role of the Courts the Fullerton Cove case Findings: Although there was no separate groundwater assessment, the Department had considered the environment impacts to the fullest extent possible Department s guidelines (ESG2) may specify matters to be taken into account in the application of ss111 and 112, but cannot fetter the Department's discretion as to whether an activity is likely to significantly affect the environment (ie the Guidelines are not determinative as to the s112 question) On a review of the merits by the Court (standing in the shoes of the determining authority and applying an objective test), the project was not likely to significantly effect the environment (and therefore an EIS was not required) 12
But wait there s more Other approvals may be required, examples: Native title (if native title not extinguished) Water access licences and approvals (NB may be exempt if <3ML/yr) Aboriginal Heritage Impact Permit EPBC Act approval 13
Tips and Traps Tips Ensure entirety of activity is prospecting (as defined in the Mining Act) Define prospecting activity in REF carefully (including duration, any ancillary works and rehabilitation and decommissioning) to ensure activity approval covers what you want to do Consult early and thoroughly reduce risk of legal challenge Engage suitably qualified and experienced person to prepare REF and consider cl 228 and Department s guidelines Consider risk of EIS/SIS being required early in the process and factor into exploration program timing Ensure strict compliance with the application documents, as amended by the conditions of the EL 14
Tips and Traps Traps Targeted REF use with caution Consultation with affected parties Compliance with the guidelines does not guarantee an approval by the Department of an activity approval application Assessment of significance of impact to be undertaken prior to application of mitigation measures/ conditions Failure to tell the whole story - false or misleading information offences Changes in laws (eg biodiversity and ACH) Timing and cost Access arrangements to be in place and updated for activity if required Other approvals may be needed 15
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