New kid on the block – EPOLA introduces key changes to the resources sector

On 20 August 2020, the Environmental Protection and Other Legislation Amendment Act 2020 (Qld) (EPOLA 2020) received assent and commenced as law.

The two key aspects of EPOLA 2020 are:

(a) providing for the appointment of a Rehabilitation Commissioner with specific functions in relation to mine rehabilitation; and

(b) expanding the residual risk framework applicable around the surrender of a resources environmental authority (EA).

Introduction of a Rehabilitation Commissioner

EPOLA 2020 amends the Environmental Protection Act 1994 (Qld) (EP Act) to introduce the appointment of a Rehabilitation Commissioner, an independent statutory role.  The Rehabilitation Commissioner is expected to provide independent and technical advice to both the Queensland Government and the resources sector.  This advice is not intended to be site-specific.

The Rehabilitation Commissioner’s functions are broad and include:

(a) providing advice on mine rehabilitation and management practices;

(b) developing technical and evidence-based reports;

(c) reporting to the Minister on mine rehabilitation performance and trends; and

(d) chairing workshops and forums on relevant technical matters.

The role is separate from the Department of Environment and Science (DES), particularly its assessment and enforcement functions, but may draw on administrative support from DES.

Expansion of the residual risk framework

EPOLA 2020 also amends the existing residual risk framework to strengthen the EP Act provisions around residual risk (i.e. any environmental risk that remains after a resource activity is completed).

Notably, EPOLA 2020 amends the EP Act and the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld) (MERFP Act) to:

(a) introduce a residual risk fund (RRF) to pool residual risk payments;

(b) expand the functions of the Scheme Manager under the MERFP Act to manage the RRF;

(c) improve consistency in the residual risk information required to be provided as part of an EA surrender application; and

(d) introduce requirements for post-surrender management reporting.

Residual risk on land titles

During the second reading, an amendment to EPOLA 2020 was made to clarify that the noting of residual risk on land titles will be limited to the parcels of land actually affected by the residual risk.  Ambiguity in the initial drafting was a particular item of concern during the parliamentary committee inquiry process.

Additional amendments

EPOLA 2020 enacts a number of other amendments to the EP Act, including to:

(a) enable a proposed progressive rehabilitation and closure plan (PRCP) to be submitted later in the EA application process where an environmental impact statement is required;

(b) prevent an unincorporated body from applying for an EA or registration as a suitable operator;

(c) introduce a ‘properly made application’ concept for EA amendment applications to provide consistency with the framework for new EA applications;

(d) require an EA holder to apply for amendments to both the EA and PRCP schedule if an application for amendment of only one of these documents would result in an inconsistency between the documents;

(e) align public notification requirements for EA amendment applications relating to a new mining lease (ML) with the public notification requirements for new EA applications relating to an ML; and

(f) require applications for de-amalgamation of an EA to be accompanied by an application for a new decision about estimated rehabilitation cost.

Our thoughts

The creation of the new Rehabilitation Commissioner role has generated particular interest in the industry, although it will take time to see the true impact that the role will have on:

(a) government decision-making, particularly as the Commissioner’s role is not intended to address individual sites, and nor does it appear decision-makers are expressly required to consider the Commissioner’s advice; and

(b) operational matters and environmental outcomes in the short or long term.

An announcement regarding the appointment of the Rehabilitation Commissioner is expected shortly.

If you require any further information on any aspect of EPOLA 2020, we invite you to contact one of our experienced team members below.

Special thanks to Deekshita Ardham, Graduate, for her assistance in preparing this alert.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It 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.