Part 10AOperating approval—program for environment protection and rehabilitation

Part 10A—Operating approval—program for environment protection and rehabilitation 70A—Object of Part (1) The object of this Part is to ensure that the holders of mineral tenements— (aa) ensure that an operating approval in the form of a program for environment protection and rehabilitation is in force; and (a) provide adequate information about the authorised operations that will be conducted under the tenements; and (b) ensure that authorised operations that have (or potentially have) adverse environmental impacts are properly managed to reduce those impacts as far as reasonably practicable and eliminate, as far as reasonably practicable, risk of significant long term environmental harm; and (c) ensure that land adversely affected by authorised operations is properly rehabilitated. 70B—Preparation or application of program (1) A person must not carry out authorised operations unless a program that complies with the requirements of this Part is in force for those operations. (2) A program under subsection (1) must— (a) specify the authorised operations that are proposed to be carried out under this Act; and (b) set out— (i) the environmental outcomes that are expected to occur as a result of the authorised operations (including after taking into account any rehabilitation proposed by the tenement holder and other steps to manage, limit or remedy any adverse environmental impacts); and (ii) a statement of the criteria to be adopted to measure those environmental outcomes, in a form prescribed by the regulations; and (c) incorporate information about the ability of the tenement holder (and any other person who may be acting on behalf of the tenement holder) to achieve the environmental outcomes set out under paragraph (b); and (d) set out such other information as may be required by a condition of the tenement or by the regulations; and (e) comply with any other requirements prescribed by the regulations. (3) The Minister may, on application by the holder or holders of 2 or more mineral tenements, determine that a program may relate to a group of mineral tenements within a particular area and, in such a case— (a) the holder or holders of the mineral tenements within the ambit of the determination may prepare and furnish a combined program for the purposes of this section; and (b) this section will apply to the holder or holders of the mineral tenements with such modifications as may be necessary for the purpose. (4) A program under subsection (2) or (3) must be submitted to the Minister for approval. (4a) An application for the approval of a program must be made in a manner and form determined by the Minister. (4b) The Minister may require a person who has submitted a program to furnish the Minister with any additional information specified by the Minister (and that information must be furnished within any period specified by the Minister). (4c) The submission of a program to the Minister for the purposes of this section must be accompanied by the prescribed fee. (5) The Minister may on the receipt of a program submitted for the purposes of this section— (a) approve the program without alteration; or (b) require alterations to the program after consultation with the tenement holder (or tenement holders) in order to ensure that the program complies with the requirements of subsection (2) (and to ensure consistency with the other provisions of this Act); or (c) reject the program on the basis that the program fails to comply with the requirements of subsection (2) (and any other relevant provision of this Act). (6) A tenement holder in relation to whom a decision is made by the Minister under subsection (5)(b) or (c) may apply to the ERD Court for a review of the decision within 28 days after receiving notice of the decision or such longer period as the Minister may allow in a particular case. (7) On a review under subsection (6), the ERD Court may— (a) confirm the decision (with or without modifications); or (b) revoke the decision and give directions with respect to the approval of the program. (7a) A program approved under this section is subject to— (a) such conditions as may be prescribed; and (b) such additional conditions (if any) as the Minister thinks fit and specifies by notice to the tenement holder (or tenement holders). (8) The regulations may set out or adopt a program that may apply in relation to authorised operations of a prescribed class. (a) a program is in place under subsection (8); and (b) the authorised operations to be carried out under a mineral tenement fall within the ambit of that program, the tenement holder (and any other person who may be acting on behalf of the tenement holder) may, subject to complying with any requirement prescribed by the regulations for the purposes of this subsection, rely on the program prescribed by the regulations rather than a program prepared under subsection (2) or (3) (and subsections (4) to (7) will not apply). (10) Subsection (9) does not apply in relation to authorised operations carried out under a mineral tenement if the Minister has, by notice to the tenement holder, determined that the subsection will not apply in the circumstances of the particular case. (11) A program may be developed and approved under this section even though it may relate (wholly or in part) to exempt land (on the basis that the tenement holder will seek to gain access to the land under a waiver of the benefit of the exemption). 70C—Review of programs (1) A program under this Part may be reviewed at any time by the relevant tenement holder. (2) A program must be reviewed— (a) if the tenement holder is seeking approval under Part 8B Division 7 to a change in authorised operations that may be carried out under the relevant mineral tenement and the change is inconsistent with the program; or (b) if the Minister directs that the program should be reviewed (whether on the basis of a report provided to the Minister under section 70DA or for some other reason); or (c) if a review is required by the regulations. (3) A review must be conducted— (a) in accordance with any requirements prescribed by the regulations; and (b) taking into account the requirements of section 70B(2) (and so as to provide consistency with those requirements); and (c) within a period prescribed by the regulations. (4) A copy of any program revised under this section must be furnished to the Minister in accordance with any requirements prescribed by the regulations. (4a) The submission of a revised program to the Minister for the purposes of this section must be accompanied by the prescribed fee. (5) The Minister may on the receipt of a revised program submitted for the purposes of this section— (a) approve the revised program without alteration; or (b) require alterations to the revised program after consultation with the tenement holder (or tenement holders). (6) A tenement holder required to make any alterations under subsection (5) may apply to the ERD Court for a review of the requirement within 28 days after receiving notice of the requirement or such longer period as the Minister may allow in a particular case. (7) On a review under subsection (6), the ERD Court may— (a) confirm the requirement (with or without modifications); or (b) revoke the requirement and give directions with respect to the approval of the revised program. (7a) The Minister may, on approving a revised program under this section, add, vary or revoke a condition applying in relation to the program. (8) If a program is reviewed at the direction of, and submitted to, the Minister but the fee prescribed under subsection (4a) is not paid, the fee is recoverable from the holder of the mineral tenement as a debt due to the Crown. 70D—Notice of certain programs (1) This section applies in relation to a program under this Part if— (a) authorised operations that are proposed to be carried out constitute a controlled action within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth; and (b) the controlled action is not to be assessed under Part 8 of that Act but instead assessed under a bilateral agreement in accordance with that Act. (2) The Minister must, before approving or reviewing a program to which this section applies, publish, in such manner as the Minister thinks fit, a notice— (a) describing the land to which the program relates; and (b) specifying a place where the program may be inspected; and (c) inviting written submissions in relation to the program to the Minister within a time specified in the invitation. (3) The Minister— (a) must give to the person who has submitted the program a copy of any submission received by the Minister under subsection (2) within the relevant period specified by the Minister; and (b) may require the person to respond to any matter raised in any such submission within a period specified by the Minister. (4) A submission under subsection (2) cannot be made on the basis that the submission (or part of the submission) will be kept confidential and a response under subsection (3) cannot be made on the basis that the response (or part of the response) will be kept confidential. (5) In determining whether or not to approve a program under section 70B and, if so, any terms and conditions to which the program may be subject, the Minister must have regard to any submissions or response received under subsection (2) or (3). 70DA—Audit of program (1) A tenement holder must, at the direction of the Minister, do 1 or both of the following: (a) carry out specified tests, environmental monitoring or other investigations (a program audit) relating to any authorised operations carried out under the relevant mineral tenement; (b) comply with the requirements or outcomes of a program audit to the satisfaction of the Minister. (2) The Minister may, in acting under subsection (1), provide directions about 1 or more of the following: (a) the independence, qualifications or experience of a person who will carry out a program audit; (b) the period within which a program audit must be completed; (c) the provision of a report or reports to the Minister. (3) A program audit must be carried out in accordance with any requirements prescribed by the regulations. (4) Without limiting subsection (1)(b), the Minister may rely on any information provided in a report under this section for the purposes of requiring a review of a program under section 70C. (5) Without limiting subsection (2)(a), the Minister may require that the audit be conducted by a person approved by the Minister. (6) Any cost associated with a requirement under this section will be borne by the tenement holder. 70DB—Publication of program The Minister may publish a program or part of a program in such manner as the Minister thinks fit. 70DC—Offences (1) A tenement holder must not carry out authorised operations under a mineral tenement if the person is in breach of a requirement under this Part. (2) A tenement holder must not contravene, or fail to comply with, a condition of a program under this Part. (3) A tenement holder must not fail to comply with a requirement under this Part to review a program under this Part. (4) A tenement holder must not fail to comply with a requirement under this Part relating to— (a) the conduct of a program audit; or (b) the action to be taken as a result of a program audit. (5) A person, who in connection with any authorised operations— (a) contravenes or fails to comply with a program under this Part that applies in relation to those operations; or (b) contravenes or fails to comply with a condition of a program under this Part that applies in relation to those operations, is guilty of an offence. 70DD—Development programs to be taken to be approved programs A development program approved under regulation 9 of the Mines and Works Inspection Regulations 2013 and in force immediately before the commencement of this section will be taken to be an approved program under, and to be subject to the operation and requirements of, this Part.