On November 12 2003 the Environmental Protection Amendment Act was proclaimed.
Part 9 of the act, dealing with clearing permits, only came into operation on July 8 when the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 were finalised.
The act introduced many changes to the Environmental Protection Act relevant to mining companies and others with land access requirements.
Because of perceived deficiencies in existing clearing controls under the EP act and other Western Australian legislation, specific clearing controls have been introduced into the EP act.
Activities associated with mineral exploration and mining can cause a range of environmental disturbances, including clearing.
These activities are regulated under the Mining Act.
In recent times, by a memorandum of understanding between the Department of Industry and Resources and other government agencies, activities likely to result in clearing where there is some environmental sensitivity have been referred to the Environmental Protection Authority for assessment under Part IV of the EP Act.
The amendments to the EP Act make it an offence for a person to clear native vegetation without obtaining a permit unless the clearing is:
- required by an existing authorisation or written law; or
- prescribed in the regulations and not done in an environmentally sensitive area.
A person may appeal to the Minister for Environment against refusal to grant a permit to clear land or against permit conditions.
The maximum penalty for unauthorised clearing is $250,000 for individuals and $500,000 for body corporates.
Offenders may also be ordered to restore the area cleared.
‘Clearing’ includes any form of killing or destruction, removal, severing, ringbarking or causing damage through grazing stock, flooding or burning.
‘Native vegetation’ means indigenous aquatic or terrestrial vegetation and includes dead vegetation unless declared otherwise.
Native vegetation does not include plantations or most types of intentionally sown, planted or propagated vegetation.
Applications for clearing permits are advertised and considered by the Department of Environment in consultation with public authorities or persons with a direct interest.
In determining applications the DoE should consider:
- ‘clearing principles’ including biodiversity, threatened ecological communities, land degradation, impacts on surface or groundwater quality and environmental values of conservation areas; and any relevant planning instrument including a scheme or plan.
The regulations provide for prescribed clearing activities and environmentally sensitive areas where clearing permits are required, including World Heritage properties, Ramsar Wetlands, areas within 50 metres of a ‘Bush Forever’ site or rare fauna.
Prescribed clearing activities relevant to mining include clearing:
- for safety or in an emergency;
- resulting from low impact mineral and petroleum activities carried out under the Mining Act;
- resulting from carrying out prospecting or exploration under an authority granted under the Mining Act if done within 12 months after July 8.
Where clearing is a result of ground disturbing activities for mining operations a clearing permit is required when a notice of intent is lodged.
Under an administrative agreement currently being negotiated by the DoIR and the DoE, the DoIR will administer clearing permits and refer them to the DoE along with its recommendation for the DoE to determine.
Mining operators should actively manage existing authorisations to ensure they do not lapse, expire or become void by virtue of failure to carry out substantial commencement operations.
The environmental parameters of various proposals can evolve and change with the life of an authorisation.
An authorisation may be difficult to renew unless there has been substantial commencement within the life of the authorisation and additional permits for clearing will now be required.
Mining operators should also carefully consider the nature and extent of any current authorisation to ensure that it authorises the clearing activities.
Further, under the regulations, disturbance resulting from exploration and prospecting which causes clearing and is currently authorised under the Mining Act, must be carried out within 12 months from July 8 when the amendments to the EP Act relating to clearing came into operation.
Graham Castledine, partner
9429 7552