Publications / Projects and Infrastructure
For those who have been following the Queensland State Government’s Strategic Cropping Land (SCL) policy development, a little more clarity was revealed yesterday morning (31 May 2011).
The State Government yesterday released modified trigger maps identifying land likely to be afforded two different levels of protection under the amended SCL framework: ‘management areas’ and ‘protection areas’.
To download any of the below maps (from the DERM website) please click on the links below:
- Statewide trigger map (PDF, 325K)*
- Statewide protection and management areas map (PDF, 307K)*
- Central protection area map (PDF, 343K)*
- Southern protection area map (PDF, 442K)*
Background - what has changed?
The SCL policy, administered by the Department of Environment and Resource Management (DERM), has received criticism from some sectors (including open cut mining) for a lack of clarity and 'heavy-handed approach' since its release in February 2010. The policy statement released at that time included the following comments:
‘The Queensland Government considers that the best cropping land, defined as strategic cropping land, is a finite resource that must be conserved and managed for the longer term. As a general aim, planning and approval powers should be used to protect such land for most developments that would lead to its permanent alienation or diminished productivity.’
The thrust of the policy since inception has been to introduce a new development assessment framework that would limit impacts on areas that meet SCL criteria.
This driver has not changed. However, under the initial framework the protection would have been afforded to SCL throughout the candidate areas identified on October 2010 mapping - an area covering a significant portion of Queensland.
Under the framework as amended yesterday, the trigger maps now identify land in Southern Queensland and the Emerald-Springsure region in two areas defined as ’protection areas’, which are afforded the same protection as was set out under the initial policy framework. There is also a much larger area mapped as ‘management areas’ - covering a significant portion of the east coast of Queensland stretching inland for example just past Roma.
Management area - what does it mean?
For the first time since the policy was announced last year, the term ‘management’ is being applied to land which may be the subject of protection from development.
A new requirement has been introduced for the ‘management areas’. SCL in these areas will be protected only where there is a history of cropping and where the proposed SCL criteria are met.
This effectively means that if the land in question is within the ‘management areas’ and has not been cropped before, it is open for development but could be subject to strict conditions, which are likely to be established following these principles (taken directly from the material produced by the State Government yesterday):
‘SCL is a finite natural resource and, based on current scientific knowledge, is not able to be directly created (as in a like-for-like offset).’
‘Mitigation measures must only be adopted where development cannot avoid or minimise impacts on SCL, and any unavoidable impacts on the SCL are permanent. Mitigation cannot be substituted for the requirements to avoid, minimise or restore where possible.’
‘A mitigation measure should lessen/offset the impact on production that results from a permanently alienating activity, such that the value of the mitigation measure is equal or greater than the lost productive capacity.’
‘A mitigation measure should generally relate to the loss of the primary cropping activity (i.e. be of relevance to the type of cropping that has historically been undertaken on the land that will be permanently alienated).’
‘Financial contributions to activities that enhance cropping productivity are proposed as the most suitable means of mitigating for the loss of productivity capacity. Accordingly, a mitigation measure must have a financial value.’
‘A mitigation measure should provide benefits for the future productivity of cropping in Queensland, and preferably within the zone in which the impact occurs.’
‘Mitigation is to provide positive benefits for the productivity of cropping of land in an enduring manner, rather than in a short term manner.’
Please click here to download the Strategic Cropping Protection and Management Areas fact sheet (PDF, 771K)* (from the DERM website).
In order to be protected within the ‘management area’ land will need to:
- have had a ‘history of cropping’ (which is open for interpretation)
- meet all eight of the SCL criteria (as set out in the Queensland Government’s April SCL update - including thresholds for each).
The criteria and thresholds differ for each region - Western, Eastern Darling Downs, Central Queensland, Wet Tropics and Granite Belt.
Please click here to download the Proposed criteria for identifying strategic cropping land (PDF, 778K)* (from the DERM website).
Protection areas will be afforded the greatest level of protection. As outlined in policy statements previously released by the Government, protection areas are almost completely protected from 'development'. Where the SCL would be permanently alienated or diminished, development will not proceed except in limited exceptional circumstances.
In order to be protected within these ‘protection areas’, the land must meet the SCL criteria (as outlined above). 1.84 million hectares are identified on trigger maps that have been updated yesterday within the areas as land where SCL is expected to exist, subject to on-ground assessment using the SCL criteria.
The trigger map is a broadscale indicator of likely cropping land, so the on-ground assessment against SCL criteria will be important in identifying which areas will be impacted.
Allowances will be made for proposed mining projects that are already well advanced and have met certain milestones in the assessment process. ‘Transitional projects’ may be allowed to proceed on strategic cropping land, but those without final environmental approvals will still be required to avoid, minimise and mitigate any impact on SCL.
Transitional arrangements – which projects qualify?
Transitional arrangements have been released, however some of the significant details are not yet known. (link to transitional guidelines provided)
The transitional arrangements are intended to apply to projects set out below:
- for production projects that are part way through an Environmental Impact Statement (EIS) - where the project has finalised terms of reference by yesterday (31 May 2011) and for Mining Lease Applications (MLAs) where a certificate of application under section 252 Mineral Resources Act 1989 exists
- for production projects not requiring an EIS - where there is already a draft environmental authority under the Environmental Protection Act 1994, and
- for expansions of existing mines - where there were existing exploration permits or mineral development licences held by the existing mine owner and contiguous with the existing production tenure as at 23 August 2010 and a certificate of application is obtained by August 2012.
Projects which are ineligible for transitional arrangements - what next?
The State Government intends that projects which are not eligible for transitional arrangements as at 31 May 2011 will be assessed under full SCL protection and management arrangements, in accordance with the new strategic cropping land legislation, when it comes into effect.
This means that:
- projects on land located in proposed protection areas will be assessed to ensure they do not permanently alienate SCL (except in limited exceptional circumstances), and
- projects on land located in proposed management areas will be assessed to ensure they avoid, minimise and mitigate their impacts on SCL.
It is interesting to note that, as legislation has not yet been drafted, yet a date - yesterday, 31 May 2011 - has been nominated as the date from which projects will be assessed – any bill which comes before the Parliament later in the year will potentially be considered retrospective.
While yesterday’s announcement and release of mapping brings some clarity and certainty to SCL framework, many stakeholders will still be wondering just where they stand.
The State Government has not yet made a call on cost implications related to the assessment process. A Regulatory Assessment Statement investigating the options for DERM to manage fees and costs has been released for public comment over the next 28 days.
We are monitoring the situation carefully, particularly development of the legislation and can provide tailored advice on all aspects of the SCL.
For further assistance or enquiries please contact:
Diana Lohrisch on 07 3233 8845
Tim Hanmore on 07 3233 8955
Liam Davis on 07 3233 8764.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.