Northern Territory environment reforms: establishing the new mining regulatory framework

Major mining reforms are underway in the Northern Territory. The Northern Territory Government has committed to revamping its mining regulatory framework, introducing a series of reforms aimed at bolstering environmental management in the mining sector and ensuring greater certainty for industry stakeholders.

Building upon the changes initiated by the Environment Protection Act 2019 (NT) (EP Act), the fulsome suite of amendments proposed by the Environment Protection Legislation Amendment Bill 2023 (NT) (EPLA Bill) and Legacy Mines Remediation Bill 2023 (NT) (Legacy Mines Bill) form part of an ongoing reform agenda to streamline the regulatory process and ensure more effective management of mining activities under a single regulatory framework.  

Snapshot of Proposed Reforms

Centrepiece reforms to overhaul the Northern Territory’s mining regulatory framework were introduced to Parliament during the October sitting. The EPLA Bill, poised to introduce a new system for licensing mining operators, outlines several key amendments to the EP Act and associated regulations, including:

• the introduction of a new three-tiered risk-based licensing system for effective management of mining activities, underpinned by general environmental obligations;
• an extension of compliance and enforcement powers under the EP Act; and
• transitional provisions to facilitate the gradual transition of mining activities from the current approvals regime to the revised environmental licensing scheme.

The EPLA Bill also incorporates chain of responsibility (COR) amendments tailored for the petroleum sector, aiming to enforce environmental compliance and address potential inconsistencies with the Corporations Act 2001 (Cth) (Corporations Act).

Concurrently, the Northern Territory Government has introduced the Legacy Mines Bill, which focuses on contemporising the management of legacy mines. Significantly, the Legacy Mines Bill proposes to repeal the Mining Management Act 2001 (NT) (Mining Act), which will see a transition of the responsibility for environmental regulation of mining to the EP Act. Together, these legislative changes will contemporise the management framework for mining in the Territory.

Legacy Mines Remediation Bill 2023

With the proposed repeal of the Mining Act, the Legacy Mines Bill seeks to establish the necessary regulatory framework for the effective remediation and management of legacy mines and their associated features.

Key features of the Legacy Mines Bill include:

• Continuation of the Mining Remediation Fund (MRF): The Legacy Mines Bill sustains the MRF, focusing on addressing liabilities and potential risks associated with legacy mines, with an emphasis on minimising and remediating environmental harm. The Legacy Mines Bill also broadens the definition for what was previously considered a ‘remediation activity’ to account for investigating, assessing, planning, and implementing remediation works for legacy mines.
  
  
• Regulation of the Mining Remediation Levy: The Legacy Mines Bill retains the requirement for mining operators to pay an annual non-refundable 1% levy on their mining security, contributing to the MRF. Importantly, changes are introduced regarding how the levy is paid, emphasising its enforcement as a condition of the new environmental (mining) licence.
  
  
• Remediation Activities: The Legacy Mines Bill establishes a framework for the regulation and administration of legacy mines, allowing certain remediation activities to proceed without prescribed statutory approvals if authorised by the Minister. Additionally, the Minister is empowered to declare the necessity of undertaking remediation activities in the event of imminent environmental harm.
  
  
• Legacy Mines Officers and enhanced oversight: Introducing the role of a legacy mine officer, the Legacy Mines Bill assigns responsibilities for inspecting, auditing, and investigating legacy mine sites and features. These officers are granted the authority to enter and inspect land and premises to facilitate their functions, ensuring comprehensive oversight and enforcement.

It’s important to note that the provisions outlined in the Legacy Mines Bill do not apply to mining activities with prior approval, including those secured and covered under existing mining authorisations or licences, or current environmental registrations, licences, or approvals under the EP Act. These exemptions extend to activities authorised under the Mining Act and deemed approvals and licences facilitated through transitional arrangements under the EP Act.

Environmental Protection Legislation Amendment Bill 2023

The EPLA Bill establishes a new regulatory framework for the effective management of environmental impacts related to mining activities. The EPLA Bill introduces several enhancements to the existing EP Act, Environment Protection Regulations 2020 (NT), and Environment Protection Legislation Amendment (Chain of Responsibility) Act 2022 (NT) (COR Act), as well as consequential and operational amendments to support the revamped regulatory framework and align with the impending repeal of the Mining Act.

Key features of the EPLA Bill include:

• Three-tiered, risk-based licensing system for mining activities: The EPLA Bill introduces a new environmental (mining) licensing framework for mining activities (including exploration activities, extractive operations, and mining operations), clarifying the detailed procedures for licensing and related activities. The EPLA Bill mandates that a mining operator must hold an environment (mining) licence prior to carrying out a mining activity. For the purposes of the EP Act regime, the concept of ‘mining activity’ will reflect the same matters applied in the Mining Act. The EPLA Bill also identifies that a site in a care and maintenance period is considered to form part of a ‘mining activity’.
  
  
• New mining security provisions: Mining operators are required to provide a security for their mining activities in accordance with the conditions of the environmental (mining) licence. The EPLA Bill outlines the matters that the Minister is to consider when determining the amount of mining security to be provided, such as the level and risk of environmental disturbance. The methodology for calculating security must be published.
  
  
• General environmental obligations and tiered offences: The EPLA Bill contains several general environmental obligations and offences associated with breaching the requirements of the environmental (mining) licensing framework, each reflecting different levels of environmental risk and the culpability of the offender.
  
  
• Extension of compliance and enforcement powers under the EP Act: The EPLA Bill seeks to strengthen compliance and enforcement powers by introducing tiered offences and penalties for non-compliance with directions and causing environmental harm. The amendments clarify the meaning of environmental harm, encompassing both direct and indirect consequences of pollution, highlighting the expansive scope of environmental protection measures under the revised framework. The EPLA Bill further outlines specific requirements for recording and reporting incidents on mining sites, distinguishing between notifiable incidents and recordable incidents. Penalties apply for failure to comply with these reporting obligations and neglecting to take appropriate action to address the resulting environmental harm.
  
  
• ‘Fit and proper person’ criteria: When assessing whether an applicant is a ‘fit and proper person’ to hold an environmental (mining) licence, the Minister may consider various factors such as compliance with environmental laws, work health and safety, and other matters the Minister considers relevant. The EPLA Bill also expands the existing ‘fit and proper’ test for determining whether an individual is fit and proper to hold an environmental approval or notice under the EP Act, to include, for example, whether the person has violated Northern Territory taxation or royalty laws.
  
  
• Periodic Ministerial review and amendment powers: Key features of the new licensing regime include the power for the Minister to review environmental (mining) licence conditions in a number of circumstances, including, for example, instances where:
  • the Minister becomes aware of new information that would have changed the Minister’s decision about the conditions imposed on a licence at the time of granting it becomes available;
  • the mining operator has contravened a provision of the EP Act or condition of the licence and it is necessary or convenient to prevent environmental harm; and
  • the mining activities under the licence have been in care and maintenance for over 12 months.

These amendments aim to mitigate potential environmental risks associated with prolonged inactivity and to ensure that licence conditions are still appropriate for the evolving nature of the mining activity. Complementing the review process, the EPLA Bill establishes the power of the Minister to amend environmental (mining) licence conditions during the licence period, in specified circumstances (i.e., at the request of the mining operator, if in the reasonable opinion of the Minister changes are necessary arising from a review of the licence).

The Minister is obliged to consult with the mining operator before making any amendments and, further, publish the proposed amendments to environmental (mining) licence conditions for public review and comment if the amendments are a consequence of a substantial alteration to the mining activity. There are no review or appeal avenues available to third parties to seek a review of the Minister’s decision to amend an environment (mining) licence.

• Ongoing compliance with a suspended or revoked licence: Mining operators that have had their environmental (mining) licence revoked or suspended, or where the licence ceases to have effect, are obliged to continue to comply with the conditions of the licence in relation to rehabilitation. The mining operator must take steps to minimise or remediate the environmental impacts at the mining site related to the mining activity, including to undertake necessary environmental monitoring and reporting activities at the mining site. These obligations are intended to prevent further environmental impacts resulting from inaction by the mining operator due to the revocation, suspension, or period of no effect.

General amendments to the environment protection legislation

In addition to the key regulatory amendments introduced to establish the new licensing framework for mining activities, notable general amendments to the environment protection legislation include:  

• Integration of chain of responsibility (COR) scheme in the petroleum sector: The current round of reforms introduces COR requirements specifically tailored to oil and gas activities. The EPLA Bill broadens defined terms in the COR Act to enable the incorporation of the COR laws into the Petroleum Act 1984 (NT). The changes will enable utilisation of the COR scheme to enforce compliance measures and obligations related to environmental management within the petroleum sector.
  
  
• Wider effect of COR Act amendments (to address potential conflicts with the Corporations Act): While the EPLA Bill’s primary focus is on the petroleum sector, the amendments bring clarity to the interaction between COR laws and the Corporations Act, particularly in the context of compliance notices issued under the COR Act. The objective is to prevent the invalidation of compliance notices due to inconsistencies with the Corporations Act, thereby establishing a more robust framework for environmental protection. Specifically, for compliance notices issued under the COR Act, the amendments aim to exclude such notices from the operation of section 5F of the Corporations Act.

Similarly, to prevent direct inconsistency between the Corporations Act and Territory laws, the revisions in the EPLA Bill provide powers to declare in the Regulations provisions of the COR Act, or a prescribed Act related to a compliance notice, as a ‘Corporations legislation displacement provision’ for section 5G of the Corporations Act. The intended effect of the new provisions is to ensure compliance notices issued using the COR laws are not detrimentally affected by any bankruptcy, administration, or liquidation processes and to alleviate concerns that such notices could be and rendered ineffective. It will be important for related entities, administrators, and liquidators to carefully consider all environmental obligations imposed on a company and any ongoing compliance liability, particularly in the case of administrators and liquidators before accepting any appointment.   

• Certain notifications taken to be referrals: The EP Act currently requires a proponent to refer a proposed action or a strategic proposal to the Northern Territory Environment Protection Authority (NT EPA) for approval where the action has the potential to have a significant impact on the environment. The EPLA Bill identifies how the environmental impact assessment and approval system treats significant variations to actions or strategic proposals that have never been referred for environmental impact assessment under the current EP Act or repealed Environmental Assessment Act 1982 (NT). The EPLA Bill specifies that notification to the NT EPA of a variation that has the potential to have a significant impact on the environment is to be treated as a new referral. The intention is to capture actions and strategic proposals that did not require referral when an approval was originally obtained as it had no potential significant impact on the environment, and the variation will result in a potential for significant impact on the environment (i.e., expansion of project footprint).
  
  
• Multiple approvals may be granted for a proposed action: The EPLA Bill clarifies that more than one environmental approval may be granted under the EP Act for a proposed action. These reforms are intended to facilitate circumstances where an approval holder intends to split the operation of the proposed action into separate components and it would be appropriate to split the conditions of an approval as they relate to different components of the operation (i.e., commercial activities and public enterprises).
  
  
• Ongoing availability of an environment protection bond: The EP Act currently provides that conditions of an environmental approval may be expressed as continuing to comply after an action is ‘complete’, including, for example, particular rehabilitation activities and ongoing monitoring. The EPLA Bill introduces the requirement for an environment protection bond (which may be required as a condition of an environmental approval) to extend beyond the period to which the approval relates to include any period for which post-closure monitoring, management and reporting are required.

Transitional provisions

To ensure a seamless and certain transition from the current regulatory system under the Mining Act to the new environmental regulatory regime for mining under the EP Act, the Bills include essential transitional arrangements. Key takeaways include:

• Existing mining authorisations and Mining Management Plans (MMPs) will be deemed to be environmental (mining) licences upon the commencement of the amendment Act. These deemed licences will remain valid for four years from the enactment of the new legislation, facilitating the gradual transition of mining activities from the current Mining Act approvals regime to the revised environmental licensing scheme.
  
  
• A deemed environmental (mining) licence cannot be varied unless the variation is required under the conditions of the authorisation or MMP that make up the deemed licence (i.e., the revision of a document, report or plan, or mining security) or the variation was approved under the Mining Act prior to the commencement of the amendment Act.
  
  
• A deemed environmental (mining) licence cannot be transferred to a new mining operator. Instead, where the ‘responsibility’ for the mining activity is to be transferred between mining operators, the new operator will need to obtain an environmental (mining) licence for the mining activity under the new licensing framework. This may have timing implications for mining operators who are looking to acquire or divest mining assets that have an existing authorisation and MMP.
  
  
• Existing mining security held for an authorisation and MMP on commencement of the amendment Act will be recognised as security that has been provided and held in accordance with the security requirements for environmental (mining) licences. Notably, mining operators will not be required to provide new or revised bank guarantees to the Minister.

Next Steps

Both Bills were formally tabled in the Legislative Assembly of the Northern Territory on 25 October 2023. Recognising the need for reform and modernisation of the Northern Territory’s environment protection framework, these measures aim to deliver a streamlined and comprehensive approvals framework that instils certainty for mining operators. The Northern Territory Parliament is set to conclude its final sitting for the year on 30 November 2023. The outcome of these sessions will likely influence the trajectory of the new legislative framework for managing the environmental impacts of mining.