Mining lease objections under review – have your say by 13 September 2024

Overview

The Queensland Law Reform Commission (QLRC) has been tasked with reviewing the processes for deciding contested applications for mining leases under the Mineral Resources Act 1989 (Qld) (MRA) and the associated environmental authorities under the Environmental Protection Act 1994 (Qld) (EP Act). This review, commissioned in June 2023, is currently at the consultation stage, with submissions due by 13 September 2024. The final report is anticipated to be released in June 2025. The QLRC has also been asked to consider whether similar changes should apply to the Greenhouse Gas Storage Act 2009, the Geothermal Energy Act 2010, and the Petroleum and Gas (Production and Safety) Act 2004. The QLRC has issued two consultation papers:

1.   Reimagining decision-making processes for Queensland mining", which contain proposed amendments to the existing mining lease approval process; and

2.   Valuing the perspectives of Aboriginal peoples and Torres Strait Islander peoples", which discusses how the Aboriginal peoples and Torres Strait Islander peoples are involved in the mining lease approval process and how this process interacts with other processes relevant to Aboriginal peoples and Torres Strait Islander peoples, including the Native Title Act 1993 (Cth), the Aboriginal Cultural Heritage Act 2003 (Qld), Torres Strait Islander Cultural Heritage Act 2003 (Qld) and the Human Rights Act 2019 (Qld).

A copy of the consultation papers is available here.

Background

Currently, when there is an objection to a mining lease application or an application for an environmental authority (EA), the Land Court conducts a hearing and makes a recommendation to the chief executive administering the EP Act and the Minister for Resources, who make a decision to approve or refuse the EA and grant the mining lease, respectively. This process places the Land Court in a unique position, as it is not typical for courts to make non-binding recommendations to public sector decision-makers. These recommendations can be challenged through judicial review in the Supreme Court of Queensland, and the subsequent decisions of the chief executive and the Minister are also subject to similar judicial review. The QLRC review aims to reduce the number of decisions or recommendations related to mining leases or EAs that are subject to judicial review, which can potentially delay the process.

Key proposed changes

There are six substantive proposals for change considered within the consultation paper:

1.   Introducing an integrated, non-adversarial participation process for interested parties, including removing the Land Court objections hearing pre-decision and establishment of an Aboriginal and Torres Strait Islander Advisory Committee where rights of those peoples may be impacted by a project which would coordinate participation of those affected peoples;

2.  A new online portal within which all documentation submitted related to all Queensland mining proposals are centrally located and accessible to the public;

3.   A new Independent Expert Advisory Panel for environmental authority applications that satisfy particular criteria, with the panel proposed to be comprised of recognised experts in their fields, similar to the NSW Independent Expert Advisory Panel for Mining that informs the NSW Independent Planning Commission;

4.   Amendments to the statutory criteria to require decision-makers to consider public input gathered through the new participation process as well as the expert advice provided by the Independent Expert Advisory Panel;

5.   A new express statutory criterion to require decision-makers to consider the rights and interests of Aboriginal and Torres Strait Islander peoples; and

6.   A new combined review process in which the Land Court is entitled to undertake both a merits review and hear a judicial review of the decisions pertaining to mining approvals, with the QLRC seeking feedback on which persons should be entitled to commence such reviews.

The following is a diagram prepared by the QLRC summarising the changes to the decision-making process proposed: