Chapter 3 Key Issues and Concerns
The Committee has identified three broad areas of concern relating to
the Bill and its aims.
n Firstly, the Bill
would significantly alter the regulation of mining activities in Australia;
n Secondly, there are a
number of technical matters raised by the Bill; and
n Thirdly, future
action to better protect water resources, from coal seam gas mining in
particular, should rely on better scientific knowledge about those water
As noted above, the Committee received six submissions to the inquiry.
None of these submissions expressed support for the Bill.
As noted by many submissions to the inquiry, the Bill would create
additional regulation of mining activities in Australia.
According to the South Australian Government, its legislative framework
at the forefront of best practice regulatory frameworks which
adopt triple bottom line assessment and risk management principles, and provide
processes to adequately assess the issues that this draft Bill is aiming to
The Tasmanian Government submitted:
Tasmania already has significant and thorough assessment
processes under environmental, mining and water management legislation.
The Northern Territory Government submitted that:
there are adequate safeguards in place to identify, monitor
and protect water resources from potentially unacceptable impacts from mining
and petroleum activities. Current processes of regulatory review and reform
being conducted by the Territory Government are expected to identify, and
respond appropriately to, any areas where these safeguards can be strengthened.
The South Australian Government also submitted that the existing EPBC
provides appropriate mechanisms for determining when a
mining, petroleum, geothermal energy and greenhouse gas storage activity should
be assessed by the Commonwealth, and is adequate in addressing Commonwealth
Numerous submissions raised concerns about the duplication that would
result if the Bill was passed. The Western Australian Government indicated that
such duplication would likely result ‘in increased timeframes, uncertainty and
complexity for project approvals.’ As noted by the South
Australian Government, this additional ‘layer of regulation and assessment’
would be contrary to the recently established COAG Working Group on
Environmental Regulation Reform. This would create:
unnecessary burdens on minerals, petroleum, geothermal energy
and gas storage exploration, development and production enterprises by
unnecessarily duplicating regulatory regimes, contradictory to COAG’s
commitment to the streamlining of regulation processes as recommended by
Australia’s Productivity Commission.
The Tasmanian Government’s submission stated that additional assessment
...considered unnecessary, and would be contrary to the work
occurring nationally for a Seamless National Economy and our efforts to reduce
regulatory burden by streamlining and harmonisation.
Any future inquiry into the Bill and its aims would also need to
consider the following technical matters as raised by the submissions. These
matters include the Bill’s:
n focus on the mining
n impact on the
operation of the EPBC Act; and
n impact on the
accreditation of state approvals processes.
According to the South Australian Government, the definition of ‘water
resource’ is very broad, and has the potential to create complications.
RET submitted that ‘the definition of mining is broad and encapsulates
incidental activities (infrastructure), exploration, recovery, milling,
processing and waste disposal.’ The Tasmanian Government
...the application of such a broad definition of mining may
capture more activities than necessary or appropriate to address the concerns
of the impact on water resources.
Submissions have raised concerns about the ‘selective’ nature of the
Bill’s focus on the impact mining operations have on water resources. The South
Australian Government submitted that ‘the objectives of the regulation appear
to be anti-competitive due to the increased regulatory burden being targeted
specifically at exploration, mining, upstream petroleum, geothermal energy and
gas storage companies’. RET also raised concerns
about this aspect of the Bill, questioning the ‘merits of singling out the
resources sector for special attention when other activities may individually
or collectively also have significant impacts on water extraction and use.’
Submissions have also raised concern about the retrospective operation
of the Bill, if passed. If passed, most of the Bill would be taken to have come
into operation from the date it was introduced into the House of Representatives.
According to the South Australian Government, this has the potential to cause
uncertainty with ‘all key stakeholders that are currently undergoing regulatory
assessment’ and ‘could be regarded as a significant risk by mining and
petroleum companies working in South Australia’.
RET’s submission stated:
...the retrospective effect of the Bill...will risk creating
considerable uncertainty for projects that have not completed their approval
processes with the potential for significant delays and additional costs.
Submissions raised concerns about the impact the Bill would have on the
operation of the EPBC Act, and existing arrangements thereunder. According to
RET, the recent review of the EPBC Act led by Dr Allan Hawke AC considered
whether an additional ‘water’ trigger was warranted. RET’s submission noted that
the review found the administration of such a trigger was ‘impractical’, and
that the ‘impact of water extraction and use can already be assessed under the
Finally, the South Australian Government also observed:
The Bill provides for the Minister to accredit a State
legislative process after the Commonwealth Parliament has been given the
opportunity to oppose the accreditation...South Australia has limited state
process accredited under the EPBC Act and it would be likely that accreditation
would involve significant costs to the State.
As noted above, future action to better protect water resources will
rely on better scientific knowledge about those water resources. Whilst this is
clearly a matter of importance for environmental regulation, many submissions
to the inquiry have not addressed the need for improved science.
However, as noted in the submission from RET:
In order to ensure that its decisions are evidence based, the
Australian Government and its agencies are undertaking a number of studies and
investigations into coal seam gas and other resource extraction activities that
affect ground water.
The submission also lists six separate
government initiatives that will improve scientific knowledge about ground
water in Australia.
The Committee notes that the Bill does not deal with improving the
quality of scientific knowledge about ground water. The Committee looks forward
to seeing the results of the recent agreements to change this situation. In the
absence of such agreements, the role of science under the EPBC Act would
deserve careful consideration in any future comprehensive inquiry into the Bill
or the EPBC Act more generally.