Mining Bill

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council), on behalf of the Hon. Virginia Chadwick [4.28]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

It originally had been intended that this be simply a bill which would amend the Mining Act 1973. The result would have been such a complex bill that Parliamentary Counsel recommended bringing forth a new bill. Many provisions in the bill, including those relating to opal prospecting licences, agricultural lands, access to lands and the Mining Museum are unchanged. The Coal Mining Act will be repealed and incorporated in this bill in simpler form. The amendments brought forward are the results of years of deliberation by officers of the New South Wales Coal Association, the Chamber of Mines, Metals and Extractive Industries, the Department of Planning and the Department of Minerals and Energy. Few, if any, practitioners involved in the application for, or the processing of, mining and exploration titles under the Mining Act 1973 or the Coal Mining Act 1973 would say the process is uncomplicated. Indeed, most would agree it is unnecessarily very complicated indeed. There are currently ten titles under these Acts. Prospecting licences, honorable members would recall, were abolished last year.

It is proposed to streamline administration by integrating the provisions of the Coal Mining and Mining Acts. The Mining Act now will include coal, shale and methane - where methane is extracted as part of a title for coal. The existing cumbersome system of ten forms of title is being replaced with just five titles: the opal prospecting licence - this is unchanged - mineral claim, exploration licence, assessment lease and mining lease. These proposals are aimed at improving and streamlining the current mining approvals process. The effect will be to remove duplication between mining legislation and planning legislation. The Environmental Planning and Assessment Act is not being changed. In line with this Government's comprehensive environmental policies, considerable emphasis is being placed on the environmental aspects of mining. In future, it will be a requirement that private mining agreements be registered with the Department of Mineral Resources. Environmental and rehabilitation conditions, including the lodgment of a security deposit, will be imposed on registration. This will ensure proper rehabilitation of private lands used for mining. Existing provisions of the Coal Mining Act 1973 and the Mining Act 1973 relating to environmental protection and rehabilitation are being brought across into the new Act. The environment is given careful attention both before and after an authority is granted.

The Mining Act will continue the major emphasis on rehabilitation of land following mining activities. All mining projects will continue to require approval under the Environmental Planning and Assessment Act. The bill will ensure that the public is aware of all exploration and mining proposals. As soon as possible after an authority is applied for, granted, renewed, transferred or cancelled, a notice must be published in the Government Gazette. This will ensure accountability. In line with the Government's deregulation policy, fossicking licences are to be abolished, although people will still be able to fossick. It is also proposed to abolish mining districts, the Prospecting Board, licensing of tourist activities on mining titles, licences to remove tailings and licences to construct tunnels towards further deregulation and simplification of titles. Existing provisions which relate to the payment of rent and front end cash payment on lease grant are to be repealed. Rent will become part of future compensation arrangements.

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It is proposed to proclaim mineral claim districts similar in concept to an opal prospecting area. Before such a district is proclaimed, the local community, including small scale- miners, will be consulted. It will also be necessary to obtain the concurrence of local councils and relevant government authorities. Rules and conditions will apply to a minerals claims district. It will be possible, after marking out an area, to apply to a Mining Registrar for a mineral claim in a mineral claim district and have it registered without delay. The claim will be registered subject to conditions which may include rehabilitation of the claim area and the lodgment of a security deposit. In the case of land outside a mineral claim district, before making an application the land must be marked out and adequate notice given to the occupier of the land. The occupier may object on the basis that the land is used for agricultural pursuits. A mineral claim will be registered, subject to conditions, over an area not more than two hectares and for not more than five years.

Before commencing work on the claim development consent, if required by planning legislation, must be obtained. The current compensation provisions will continue to apply. They will, however, be expanded to provide for compensation to owners and occupiers of private land affected by claims. The new exploration licence is basically unaltered from the current exploration licence and coal authorisation. It will authorise the licensee to carry out exploration activities in an exploration area for an initial period of up to five years. An exploration licence does not necessarily guarantee the grant of an assessment lease. The assessment lease is a new concept which will significantly improve the responsible progression from the exploration stage to the mining process. The Minister will be able to grant an assessment lease to cover the period between exploration and mining. This will enable further detailed prospecting and feasibility and other studies to be carried out so as to determine the economic viability of the area of interest and/or retain the area until markets or other circumstances are appropriate for development. Industry sees a need for this form of title, which has already been provided in some other States. The maximum term for holding an assessment lease will be five years renewable for further periods of five years if the Minister considers it necessary. Before an assessment lease can be granted, notice of the application for such a lease is required to be given to all materially affected government authorities and the Director of the Department of Planning. If there is a dispute which cannot satisfactorily be resolved the matter must be referred to the Premier who will arbitrate.

Environmental matters that may in some circumstances arise, relating to the decision to grant an assessment lease will be considered under part 5 of the Environmental Planning and Assessment Act. As is the case at present, the granting of a mining lease will be subject to the applicant fulfilling the requirements of the Environmental Planning and Assessment Act and of relevant statutory authorities. Consent is also required from landholders where agricultural land or improvements are included. At present the Minister will not be able to grant a mining lease without the consent of materially affected Government authorities and the Director of the Department of Planning. Where consent of relevant authorities is withheld, the Minister will refer the application to the Premier for resolution. The automatic right of objection to the mining warden by a landholder objecting to a Mining lease will be removed. This existing power duplicated the development application process under the Environmental Planning and Assessment Act. Where this does not apply the warden will inquire and report. Nevertheless, if representations are made, the Minister still has the power to direct that the mining warden conduct the inquiry. This removes duplication on environmental matters which are properly dealt with during the environmental impact assessment procedure. Matters such as compensation and conflict of title will still be able to be dealt with by the warden.

The bill provides for the potential grant of mining leases for longer periods than the 21 years presently allowed. If it is proposed to grant a mining lease for more than 21 years it will be necessary to obtain the concurrence of the Premier. One factor which discourages mining investment in this state is a lack of security of title for mining activities. At the request of industry, it is proposed to provide that title cannot be challenged in any legal proceedings commenced later than three months after the notification of a grant in the Government Gazette. This accords with similar provisions in the State's planning legislation relating to development. Large mining applications involve expenditure of many millions of dollars. It is unrealistic to expect companies to undertake large financial commitments and commence operations while it is uncertain that their title to mine is valid. The procedure for consolidating leases is being simplified. This should enable the issue of consolidated leases to be expedited to the mining industry's obvious benefit. It is proposed to provide that only a magistrate is eligible for appointment as a mining warden. At present there is no requirement that a warden be legally qualified. This will put beyond doubt the judicial nature and independence of the position. Specific rules will be formulated for wardens courts. It is also proposed to streamline the workings of the wardens courts. For example, every warden will be a warden for the whole State. This will mean that an injunction of extraordinary urgency will be able to be obtained from any wardens court. The definition of compensable loss is being clarified to

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make it clear that damage to crops will include fruit and vegetables, and interference with stock on land will include products of that stock, for example milk.

On 30 May 1991, the New South Wales Court of Appeal handed down its decision in The Chief Mining Warden V The District Court of New South Wales and Others. The Court of Appeal held that certain decisions of the mining warden, which up to then had been considered to be administrative in nature, were in fact of judicial character. This means, in effect, that the District Court would have jurisdiction to entertain appeals from wardens' courts in purely administrative matters such as cancellation of registration of a claim. It has never been intended that the District Court should have such an appellate jurisdiction in such matters. Clause 337 of the bill makes it clear that there is no appeal against a warden's administrative functions.

The bill has been further reviewed by the New South Wales Coal Association and the Chamber of Mines Metals and Extractive Industries (NSW), and many of the suggestions of those industry bodies have now been incorporated. The chamber, on the advice of its legal advisers, Mallesons, submitted that the bill should contain a provision precisely stating when property in minerals passes to a miner. Similar provisions are contained in recent Victorian and Queensland legislation. The chamber believes that lack of such a provision in this bill could create difficulty in some joint ventures where foreign investment is sought. The Government is keen to encourage investment in mining in this State and has agreed to the chamber's request in this regard. Clause 11 of the bill proposes that any lawfully mined mineral becomes the property of the miner when the material from which it is recovered is severed from the land, at the time it is dug from the ground.

Clause 161 proposes that any person claiming a legal or equitable interest in an authority may apply for registration of that interest. In any subsequent legal proceedings, a registered interest will have priority over an unregistered interest, and an earlier registered interest will have priority over a later registered interest. The period during a caveat can remain in force has now been extended from 28 days to three months. Additionally the period for which the warden can issue a permit to enter lands to carry out environmental studies has been increased from six to 12 months. This will remove the need for the warden to conduct a fresh hearing if an environmental study, which may be quite expensive, takes longer than six months. Mining plays an essential part in this State's economic development.

Let me remind any such honourable members that coal provides 95 per cent of this State's electricity, that coal is the nation's largest export earner and that we are the world's largest coal exporter. More than 1000 dollars in export earnings for each New South Wales family every year comes from coal. The mineral industry contributes significantly to the well being of our State. In 1990-91, production was valued at about four billion dollars or 3 per cent of gross state product. Coal is the State's largest export revenue asset, earning nearly two billion dollars. Metalliferous ores and metal scrap contributed another 300 million dollars. Open cut mining by its very nature affects the landscape. What is important is that when mining operations cease the land is responsibly rehabilitated for other productive uses. The environmental conditions imposed before an authority or mineral claim is granted will ensure full rehabilitation of the land. If the mining operator does not do this his security deposit will be used to ensure rehabilitation. When authorities are renewed the amount of deposit will be reviewed and increased if circumstances indicate this is desirable.

I believe ecologically sustainable development is the answer to problems in this area. We in New South Wales have been practising this long before Canberra ever found out about it. This State's future prosperity depends on our mining industry. This legislation will encourage future investment for New South Wales. Of prime concern to the mining industry has been the length of time taken to gain an approval to mine. The proposals contained in this bill will reduce that time to a minimum whilst still observing stringent development controls and retaining legitimate rights of objection. Productivity gains will be achieved by removing duplication. Western Australia, Queensland and Victoria have recently simplified their mining legislation and those States are already reaping the benefits.

The proposals in this bill will speed up administrative procedures, simplify the various mining authorities, remove over-regulation and, within the bounds of strict environmental controls and rehabilitation of land requirements, free the mining industry so it can get on with exploration and stimulate investment in New South Wales.

I commend the bill to the House.


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The Hon. R. D. DYER [4.28]: The Opposition welcomes this bill. I refer the House to the television advertisements by the mining industry which show that mining is absolutely essential. Our modern way of life depends on the viability and continuance of the mining industry. Honourable members would have seen the advertisement in which light switches disappear, walls fall down and so on. We tend to take things such as being able to switch on a light for granted in our daily lives. Without the mining industry modern conveniences would not exist. Mining not only is essential for our modern way of life; it is also essential to the health of the economy of this nation and the State of New South Wales. I remind the House that one commodity, coal, provides 90 per cent of all electricity generated in this State; that it is the nation's largest export earner and that Australia is the largest exporter of coal in the world. The mineral industry in this State contributes significantly indeed to the economic well-being of New South Wales. In the last financial year, 1990-91, mineral production was valued at about $4 billion, or 3 per cent of gross State product. Coal is the State's largest export revenue asset, having earned nearly $2 billion in 1990-91. Metalliferous ores and metal scrap, which must be added to that figure, contributed another $300 million. From those few brief statistical details it can be seen that coal and metalliferous ores contribute significantly indeed to the economic welfare of New South Wales and Australia. The purpose of the bill is to repeal and re-enact the Mining Act 1973 and the Coal Mining Act 1973 and to consolidate the existing provisions of those two Acts into one enactment. Clearly that will be of considerable convenience to the mining industry.

By way of brief background, I remind the House that during the 1980s many representations were received from the mining industry - and I include the previous Labor Government in that statement - to the effect that the Mining Act 1973 and the Coal Mining Act 1973 could be improved substantially. Extensive discussions took place with representatives of the industry and other parties regarding those approaches. Following those discussions, a white paper was produced at the time the Hon. Ken Gabb was Minister for Mineral Resources. That white paper was awaiting approval from the then Premier, the Hon. Barrie Unsworth, at the time of the change of government from the Labor Government to the present non-Labor Government. It is relevant to note that the bill incorporates the major provisions contained in that white paper. The present Government introduced the new Mining Bill, that is, the consolidated measure incorporating the provisions of the Mining Act 1973 and the Coal Mining Act 1973, prior to the 1991 State election. Because of the onset of that election, regrettably the measure did not proceed beyond the Minister's second reading speech in another place. At that time the Hon. Neil Pickard was Minister for Minerals and Energy.

During the period between the introduction of what might be termed the present bill and the bill in its current form, some new measures were incorporated in it. For example, following a decision of the Court of Appeal, which declared that what were considered to be administrative functions of the Mining Warden were in fact judicial in nature, the bill makes clear that no appeal is available against a decision of the Mining Warden in the exercise of his administrative functions. That provision certainly has the support of the Opposition. Another new provision inserted in the bill clarifies when property in minerals passes to the miner. That has been a matter of some concern to the mining industry, and a provision has been inserted to overcome difficulties which have arisen in some joint venture arrangements where foreign investment is involved. I note also in passing that a similar provision relating to when property in minerals passes to a miner has been included in interstate legislation. I refer in that regard to the States of Victoria and Queensland. In addition to the consultation process to which I referred earlier, the opportunity has been taken in this bill to give effect to a number of other
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significant reforms. For example, the existing mining legislation has been improved by reducing from 10 to five the number of different mining titles which can be granted. That clearly will be of advantage to the mining industry. To the extent that the title process is rationalised and simplified, great efficiency will be injected into the process leading to the granting of mining titles.

Another reform included in this measure is the introduction of what might be termed a retentional holding form of tenure between the exploration phase and the mining phase of mining development. The bill also contains provisions to facilitate the speeding up or streamlining of the title application process. The bill seeks to eliminate duplication between mining legislation and other legislation. A number of concerns about this measure were expressed to the Opposition by the environmental movement. Those concerns were considered carefully, particularly in another place by my colleague the honourable member for East Hills, Pat Rogan, who is the Opposition spokesman on mining and energy matters. As a result of those approaches to the Opposition, it is my understanding, and I certainly have advice to this effect from Mr Rogan, that a number of amendments were inserted in the bill in another place. I am assured that to a large degree those amendments meet the concerns expressed by the environmental movement. In saying that I do not suggest to the House that the concerns of the environmental movement have been allayed totally. The movement probably still has on its agenda third party appeals regarding mining developments.

The Opposition takes the view that to permit such appeals would be going too far and would inject undue uncertainty into the process of obtaining a mining title. It has to be understood that before mining developments can proceed, many millions of dollars, sometimes tens of millions of dollars, have to be invested. If amendments along those lines were to be moved in Committee, I indicate firmly on behalf of the Opposition that they will not have our support. However, I believe that to a large extent the Opposition has addressed the concerns of the environmental movement. I note also that the bill places considerable emphasis on environmental aspects of mining, as mentioned in the Minister's second reading speech. For example, in future, private mining agreements will be required to be registered with the Department of Mineral Resources. In addition, environmental and rehabilitation conditions, including the lodgment of a security deposit, will be imposed upon the registration of those agreements with the department.

The provisions of the Coal Mining Act 1973 and the Mining Act 1973, relating to environmental protection and rehabilitation, have been taken from the existing legislation and included in the bill currently before the House. I note that the mining legislation will continue the major emphasis that has existed in the past with regard to the rehabilitation of land following mining activities. As part of my background, I served on the personal staff of the Hon. Ron Mulock for two years before I entered this House in 1979. During part of the time I was with Mr Mulock, he was Minister for Mineral Resources, and I became very much aware of the emphasis that the Department of Mineral Resources places on rehabilitation of land following mining activity. That rehabilitation includes the lodgment of security deposits to ensure that the work is done or, if it is not done, that the bond or deposit lodged was sufficient to meet the cost of the rehabilitation. Modern technology allows for rehabilitation to a very sophisticated and advanced degree. It no longer happens that, following mining activity, a dreadful mess is left which scars the landscape. That should no longer occur. It is a thing of the past. Rehabilitation can and does occur very successfully indeed.

Another particular provision of this bill to which I shall make brief reference - and which I outlined earlier - concerns the new retention or holding form of tender
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between the exploration and mining phases of project development, which has been introduced under this bill. In that regard, I note that the Minister will be able to grant an assessment lease to cover the period between exploration and mining. This provision will enable further detailed prospecting, feasibility and other studies to be carried out to determine the economic viability of the area of interest to the particular miner and permit a particular applicant for a mining title to retain the area until markets or other circumstances are appropriate for development. The mining industry has seen a need for that new form of title and I believe it is a worthwhile initiative. The holding of an assessment lease, to which I have just referred, will be permitted for a period of five years, but it will be possible to renew assessment leases for further periods of five years if the Minister considers it necessary or appropriate.

I note also a particular provision of the legislation to the effect that the bill provides that only a magistrate is eligible for appointment as a mining warden. Under the existing law there is no requirement that a warden should be a magistrate - or, indeed, even be legally qualified. I believe it is appropriate that a mining warden - who is, after all, operating in a quite technical area - should be legally qualified; indeed, should be a magistrate. The Minister has noted that this will put beyond doubt the judicial nature and independence of the position of mining warden. The last matter to which I wish to refer concerns the drafting of the legislation. Honourable members will observe that it is drafted in plain English, which is a welcome change. All measures in the bill are very clearly expressed. It is a major piece of legislation, not only in regard to its importance but in regard to its content and weight, and I am delighted to see that ready understanding of it will be facilitated by its drafting in plain English rather than what might be termed legalese. A lot more could be said about the bill but, having regard to the pressure of business before the House, I conclude with those few remarks and warmly welcome and support the bill on behalf of the Opposition.

The Hon. R. S. L. JONES [4.45]: It is unfortunate that the Minister who introduced this bill in the lower House, the Minister for Natural Resources, Mr Ian Causley, is virulently anti-green. In the past four years he has shown himself to be incessantly anti-conservation and anti-wilderness. On television recently he called the conservation movement the "green rot". Mr Causley and other anti-environmentalists continue to propagate the myth that the conservation movement in New South Wales is seeking to stop all mining. That is clearly an outrageous lie. The conservation movement is well aware that we all depend on mining to maintain our current lifestyles. I, for one, could not even read this speech if it were not for mining; I would not be able to get home tonight; I would not be able to cook a meal; I would not be able to drink a glass of water; I would not be able to watch television. Honourable members can see the results of mining everywhere. It is a ridiculous proposition to suggest that I or any other conservationist is opposed to mining per se. The mining industry is one of the key components of the New South Wales economy. Our standard of living, indeed our quality of living, would be significantly reduced without the mining industry.

I want to place some facts on the record to indicate just how important the New South Wales mining industry is and how it has increased in the past few years. I quote from the 1991 New South Wales Pocket Year Book in respect of mining and energy. In 1983-84 the value of the gross domestic product of mining in New South Wales was $1.56 billion. The mineral industry Year Book Australia - and I do not have the date of the publication - shows that in 1988-99 the value had risen to $2.1 billion, value added, the turnover was $3.58 billion, and the mining industry employed 19,737 people. Honourable members will realise from those figures just how important the mining industry is. In 1990-91 New South Wales produced 33,939 tonnes of copper, 7,258
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kilograms of gold, 233,058 tonnes of lead, 66,339 tonnes of titanium dioxide, 46,645 tonnes of zircon, 312,702 kilograms of silver, 298,238 tonnes of sulphur, and 376,917 tonnes of zinc. They are significant tonnages. Apart from those, many other minerals are mined in this State - for example, antimony, barite and various clays which are exceedingly important to the mining industry in New South Wales. No one denies that mining is very important to Australia generally.

Australia is the world's largest producer of bauxite and alumina. In 1988-89 the value of mineral exports rose by 9 per cent to a record $24.5 billion, according to the Mineral Industry Yearbook - Australia. Though I and most other people in New South Wales regard the mining industry as being extremely important, I take issue with the environmental and social irresponsibility of some segments of the industry. It was the National Lead Incorporated subsidiary, Mineral Deposits Limited, that first prompted me to stand for Parliament in 1972. At that time, Mineral Deposits Limited was busy destroying some of the most magnificent dune country at Myall Lakes on the coast of New South Wales. That area is now a beautiful national park, though it was badly damaged by that company. It has been proved that it is impossible to restore a pristine wilderness once it has been destroyed by a mining operation. Some parts of the environment are too precious, too rich to allow any company to destroy them. Myall Lakes and wilderness areas along the coastline, such as wetlands, littoral rainforest, koala habitat and old growth habitat should never be disturbed. They should be allowed to remain in their pristine condition to maintain the wilderness values and the habitat for rare and endangered species, and in addition to provide recreation areas in which local people as well as tourists may escape the stress of cities.

Tourism is our fastest growing and most valuable export dollar earner. It makes environmental, social and economic sense to retain these areas. The mining industry constantly complains that it has access to only 95 per cent of the State and wants access to the other 5 per cent of national parks. Some areas, not yet in national parks, are too valuable to be allowed to be destroyed by the mining industry or any other industry. There must be a balance. Surely the mining industry should be content with having access to, say, 95 per cent of undeveloped land in the State. The remaining 5 per cent, either in national parks or other areas, is too precious to be allowed to be disturbed. For the sake of future generations of both people and the multitude of native species that inhabit New South Wales, the mining industry should co-operate by not seeking to destroy every last piece of wilderness in order to retrieve mineral resources. The environment movement has expressed some concerns to me about this legislation in a letter dated 27th April, which in part reads:

No exemptions from Environmental Planning and Assessment Act

Under section 65 (2) of the Bill mining leases can only be granted once development consent under the Environmental Planning and Assessment Act 1979 (EP&A Act) has been obtained, however under section 65 (3), once a lease has been granted, any conditions attached to the development consent by the consent authority are void if they are conditions which relate to mining and rehabilitation ("special purpose conditions").

Conditions which relate to mining and rehabilitation can only be attached to a mining lease by the Minister under the Mining Act. The only conditions which can be attached to the development consent by the consent authority under the EP&A Act are those which do not relate to mining or mining rehabilitation.

While the Minister must give local councils and Government agencies the opportunity to propose conditions to be added to the list (schedule 1, Part 2) the Minister can choose to completely ignore their proposals.

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For example, a local council may grant consent on the condition that eucalypts are planted on the site afterwards. A lease can then be granted which does not require tree-planting, as the local council's development consent condition is now void.

This is effectively an exemption from the EP&A Act. The process of gaining development consent has been overridden and so becomes completely ineffective.

Any kind of exemption from the EP&A Act has been consistently and unanimously opposed by NSW environment groups since the Act was introduced.

The following is recommended:

Mining should be treated like any other development. Conditions attached to a development consent by a consent authority should stand. When considering whether to grant a mining lease the Department of Minerals should only be able to add additional conditions to the mining lease which strengthen or improve environmental protection measures.

Objections must be heard through the EP&A Act

Section 28 of Schedule 1 of the Bill is of major concern because it precludes any person entitled to object to the granting of development consent from objecting to the granting of a lease.

While much of the Bill merely re-writes the Mining Act 1973 and the Coal Mining Act 1973, this is a new process which is of major concern to the environment movement.

Although objections can be made to the development application, any gains made during this process may be completely overridden or ignored when the mining lease is being granted.

As explained above, the granting of development consent is a process with no substance and no power to determine the final form of the development. The objector has no right to object to the final form of the mining lease despite the fact that it may be completely different to the development consent and its attached conditions.

The movement recommends:

As this process of objection and resolution is an integral part of the development approval process, the outcomes of that process must be respected. Any person must be entitled to object to aspects of a mining development during both the granting of development consent and the granting of a mining lease.

Broad Standing to Ensure the Law is Enforced

As discussed above the Bill entrenches the unacceptable situation in which the only conditions which can be attached to a mining development under the EP&A Act are those which do not relate to mining or rehabilitation.

I seek leave to have the remainder of this letter incorporated in Hansard.

Leave granted. [See Addendum.]

The Hon. R. S. L. JONES: In summary, the Australian Democrats fully acknowledge the value of the mining industry to both New South Wales and Australia in general. However, we ask the mining industry to co-operate with the community - as represented sometimes by conservation groups and at other times by ordinary community groups - to speak with them and ascertain their problems in relation to certain developments, and to acknowledge that often these groups are correct when they object to certain areas being destroyed. The mining industry should work with communities to ensure that when mining does take place it will benefit New South Wales and not merely the company. It should be for the long-term benefit of the State and the community. Certain instances of mining, such as at Diamond Beach, are not of benefit to the community. Once again Mineral Deposits Limited want to mine this area, as it did at
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Myall Lakes. It is clear to me and to others who have studied the Diamond Beach project that mining would be detrimental to the local community. It would be of more value to the community and to tourists to maintain the area in its present state. I ask the mining industry to be more sensitive to the needs of the community and to maintain more areas in a pristine state and not assume it can take over whole areas for mining. With that caution I accept that the mining industry is valuable and that my lifestyle would not be complete without it.
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Addendum

This is compounded by section 74 which states that:

"While a mining lease has effect:

(a) nothing in, or done under, the EP&A Act or an environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area; and

(b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease."

In contrast, a breach of the conditions attached to a consent for a non-mining development can be challenged in court by any person under the third party standing provisions of the EP&A Act.

Under this Bill, a person with a mining lease and with development consent who is breaching the conditions of that consent (i.e. those conditions which are not special purpose conditions) cannot be challenged under the EP&A Act because "nothing in . . . the EP&A Act . . . operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area.

In addition, as this Bill has no third party standing provisions, breaches of the conditions attached to the mining lease cannot be challenged in court by a third party either.

Third party standing is a well established principle in much NSW legislation (e.g. National Parks and Wildlife Act 1974, Heritage Act 1977, Environmental Planning and Assessment Act 1979, Environmentally Hazardous Chemicals Act 1985, Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986, Wilderness Act 1987, Protection of the Environment Administration Act 1991).

It is essential to the effective enforcement of environmental laws because it ensures that both the private and public sector fulfil their legal obligations to protect the environment. It also allows the community to exercise its right to protect the environment, whether or not it is materially affected.

RECOMMENDATION 3: Breaches of both mining lease and development consent conditions should be publicly enforceable through third party rights of appeal under the EP&A Act. Conditions attached to mining lease should be considered to have been added under the EP&A Act. In this way, the implementation and enforcement provisions of that Act (i.e. broad standing, Commissions of Inquiry) can be activated. The Land and Environment Court is the relevant Court for the hearing of all appeals relating to the environmental impacts of a development, not the Warden's Court.

RECOMMENDATION 4: Third party standing provisions for challenging breaches, or apprehended breaches, of the Act should be introduced into the Mining Bill.

Environment protection must be mandatory

Section 237 of the Bill requires the Minister to take into account the need to conserve and protect a number of environmental attributes when considering granting a mining lease.

Section 238, however, does not ensure that any conditions will be added to a mining lease to conserve and protect the environment. It states that "The conditions subject to which an authority

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or mineral claim is granted or renewed may include conditions relating to the conservation and protection of" these environmental attributes.

RECOMMENDATION 5: In section 238 of the Bill, replace "may" with "shall, where relevant,".

RECOMMENDATION 6: As the Bill refers to protecting the environment, yet contains no definition of 'environment', the definition from the Protection of the Environment Administration Act 1991 should be added to the 'Dictionary of Words and Expressions'.

Rehabilitation conditions must apply to all phases of mining

Under the Bill, rehabilitation conditions can only be attached to a mining lease or a mineral claim, but not to other mining authorities. This is despite the fact that both the exploration and the assessment phases of mining have the potential to damage the environment. It is also despite the fact that sections 237 and 238 require the Minister to consider the environment when granting any mining authority or mineral claim.

Exploration can include vegetation clearance, access road construction, bulldozing of seismic lines, use of explosives, trial mining, test drilling and the excavation of costeans (trenches); none of these are benign activities. The exclusion referred to here implies that these effects are insignificant.

RECOMMENDATION 7: To ensure that rehabilitation conditions can be attached to all mining authorities, replace "a mining lease" with "an authority" in section 239 of the Bill.

NPWS and EPA must approve rehabilitation conditions

The Bill requires that only the Commissioner of the Soil Conservation Service approve rehabilitation conditions attached to a mining lease. The Soil Conservation Service may be highly skilled in the physical aspects of stabilising the land, but it has little expertise in choosing appropriate species and management plans for revegetating an area to something approaching its original condition. The NPWS is the appropriate body to approve these conditions.

The Soil Conservation Service is also not the appropriate body to assess the environmental effects of pollutants which may be discharged from a rehabilitated mine site. This is the province of the Environment Protection Authority, which should be involved at this stage.

RECOMMENDATION 8: To section 239(3) add ", the Director of the NPWS and the Director-General of the Environment Protection Authority".

Return of rehabilitation bonds must be publicly reviewed

Section 168 of the Bill gives the Minister complete discretion to determine how much of a security deposit is returned. This is an unacceptable process for security deposits held to ensure that mined areas are fully rehabilitated.

While the Soil Conservation Service must approve the conditions when they are added to the authority, there is no requirement that they be consulted to ensure that those conditions have been fulfilled. In Recommendation 8 we recommended that the National Parks and Wildlife Service be involved in approving rehabilitation conditions. This involvement, and that of the public, should continue to the stage of determining whether the rehabilitation conditions have been fulfilled.

RECOMMENDATION 9: Before a security deposit is returned, the Soil Conservation Service and the National Parks and Wildlife Service must concur that the conditions relating to rehabilitation of the mine site have been satisfied. A process of public review and appeal, involving public submissions, should be followed before any security deposit is returned.

The public must be involved in every stage

As was mentioned above, the public's right to be involved in decisions affecting their environment, and natural resources which are the property of the Crown, is being increasingly recognised in legislation. Mining should be treated no differently.

We are encouraged to see that the Bill contains a separate schedule of procedures for public

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consultation, however a number of these provisions should be improved.

RECOMMENDATION 10: As an assessment lease is a "holding lease" before mining commences, the public should be notified of, and be allowed to object to, the granting of an assessment lease. The process should be similar to that used for a mining lease, as described in Division 5 of Part 2 in Schedule 1.

RECOMMENDATION 11: The resolution of objections (Section 10 of Schedule 1 of the Bill) should use the same process as used in Section 12(4) of the Protection of the Environment Administration Act 1991, to ensure openness and public accountability.

RECOMMENDATION 12: As the Bill makes no provision for public participation in the renewal of mining authorities, these processes should be introduced into the Bill so that they apply equally to the renewal of mining authorities as to the initial granting of an authority.

Information on mining authorities must be freely available

While section 159 requires the Director-General to keep a record of all authorities granted, renewed, transferred or cancelled, there is no requirement in the Bill that these be available for public inspection.

The community has a right to know how resources vested in the Crown are being used.

RECOMMENDATION 13: The Bill should be amended to ensure that the records referred to in section 159 are available for public inspection during business hours. Copies should be able to be made at reasonable cost.

Information collected under mining authorities must be freely available

In the process of prospecting and exploring, holders of mining authorities are collecting information about a publicly-owned resource. This information is of great importance to the community in its long-term planning for mineral exploitation.

RECOMMENDATION 14: All information collected under mining authorities about mineral resources vested in the Crown should be publicly available.

Less Ministerial discretion in cancelling authorities

Under section 125, the Minister has the discretion whether to cancel a mining authority if the holder of the authority has breached the authority's conditions, this Act or its regulations. Other reasons for cancelling an authority are also listed.

We believe that the breaches listed above are sufficient for a mandatory cancellation of a mining authority. This division of the Bill has an appeals process which should be sufficient to remedy any unwarranted cancellations.

RECOMMENDATION 15: In section 125, the Minister should be required to cancel an authority if the holder of that authority has breached the conditions of that authority, of the Act, or of any regulations under the Act.

All conservation areas should be protected from mining

While it is no longer possible to issue mining leases over national parks and nature reserves, many mining leases are still extant over existing reserves. There is no guarantee that these will not be activated at some time in the future.

RECOMMENDATION 16: All mining should be prohibited within and beneath all areas within the NPWS estate. All mining authorities in areas reserved for conservation should be cancelled.

In addition, a precautionary approach should be taken in relation to areas proposed as national parks and nature reserves. Until a full and proper assessment of the conservation value of each proposed area has been made by the National Parks and Wildlife Service, no mining activity should be approved, and none should be allowed to go ahead. Such an exclusion is included in the NSW

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Government's Coastal Policy.

RECOMMENDATION 17: Mining authorities should be excluded from areas which have been proposed as conservation reserves until their conservation value has been fully assessed, the NPWS has relinquished its interest in the area, and the decision has been publicly notified.

Prospecting must be bound by the EP&A Act

NSW peak environment groups have consistently argued for a strict adherence to the EP&A Act, without exemption. Section 381 of this Bill is in direct opposition to our clear position. No exemptions to the EP&A Act are acceptable.

Prospecting should be subject to the EP&A Act like any other activity in the State. We reject the implication that all prospecting is environmentally benign. We draw attention to the possibility of unacceptable impacts from vegetation clearance, access road constraints, the use of explosives, test drilling, excavation and the like.

RECOMMENDATION 18: Section 381, which exempts prospecting from the EP&A Act, should be deleted.

Fossicking must be defined in the Bill

Section 12 of the Bill states that fossicking is a lawful activity, yet fossicking is not defined in the Bill. That is to be defined by regulation at some later date. We cannot approve of allowing Ministerial discretion being used to decide what is and what is not lawful. This is certainly a matter for the Parliament to decide.

RECOMMENDATION 19: A clear definition of "fossicking" should be added to the `Dictionary of Words and Expressions' attached to the Bill. Fossicking should be by non-mechanical methods only. The use of lightweight portable dredges, which has been banned in New South Wales, should be specifically excluded.

While many of the provisions of this Bill are similar to those in the current Mining Act, we do not want to see the inadequacies of the Act perpetuated. We have sought to identify those inadequacies in the existing Act, and in the proposed legislation, and to remedy them with our recommendations.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [4.57], in reply: I thank honourable members for their support of the legislation and I commend the bill.

Motion agreed to.

Bill read a second time and passed through remaining stages.