Purpose of this Guideline
This document provides stakeholders with guidance on the regulatory framework for ancillary mining activities (previously referred to as mining purposes). Mining is tightly controlled in NSW, with a range of authorisations required prior to commencing mining operations. The environmental impact of mining is subject to many other statutory controls in addition to those under the Mining Act 1992 (the Act). These include environment protection licences under the Protection of the Environment Operations Act 1997, planning approvals under the Environmental Planning & Assessment Act 1979, and approvals under the Water Management Act 2000 or the Water Act 1912 in relation to taking water from certain water sources while carrying out mining. NSW Department of Planning and Environment - Resources & Geoscience Division (the Division) is one of a number of key government agencies that play a role in the regulation of mining. One of the Division’s key objectives is to ensure that land disturbed by mining operations (including ancillary mining activities) is returned to a sustainable post-mining land use.
Ancillary mining activities (AMAs) Significant reforms to the Act came into effect in 2010, with the primary aim of ensuring that the environmental impacts of mining are subject to the appropriate statutory controls. One of the key changes in those reforms was the requirement to obtain an authorisation to carry out certain AMAs. A more fit-for-purpose regulatory framework has been developed to streamline administrative processes, provide greater regulatory clarity and ensure that the appropriate environmental protections are in place. Under the 2017 amendments to the Act, the decision maker is to have regard to this guideline when deciding an application in relation to an AMA for the purpose of section 63(7) and clause 7B(6) of schedule 1B of the Act. In addition, the guideline provides stakeholders with an overview of the regulatory framework regarding AMAs.
Note: Proponents should seek independent legal advice in relation to any obligations referred to in this guideline.
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What does this guideline apply to?
2.1 All AMAs All AMAs are prescribed under clause 7 of the Mining Regulation 2016 (the Regulation). AMAs are essentially activities and infrastructure that are ancillary to mining operations. Table 1: Ancillary Mining Activities prescribed under clause 7 of the Regulation (a) the construction, maintenance or use (in or in connection with mining operations) of any one or more of the following: (i) any building or mining plant (ii) any road, railway, tramway, bridge or jetty (iii) any reservoir, dam, drain or water race (iv) any cable, conveyor, pipeline, telephone line or signalling system (v) any bin, magazine or fuel chute (vi) any plant nursery (b) opal puddling (c) the removal, stockpiling, management or depositing of overburden, ore or tailings to the extent that it is associated with mineral extraction or mineral beneficiation (d) the storage of fuel, machinery, timber or equipment for use in or in connection with mining operations (e) the generation and transmission of electricity for use in or in connection with mining operations (f) the construction, maintenance and use (in or in connection with mining operations) of any drillhole or shaft for: (i) drainage of gas, or (ii) drainage or conveyance of water, or (iii) ventilation, or (iv) conveyance of electricity, or (v) conveyance of materials, or (vi) communications, or (vii) emergency access to underground workings (g) the environmental management, protection and rehabilitation of land on which an ancillary mining activity referred to in another paragraph of clause 7 of the Regulation is being or has been carried out
2.2 Designated AMAs Designated AMAs are defined under section 6(6) for the purposes of section 6 of the Act. They are a subset of the AMAs from clause 7 of the Regulation.
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Table 2: Designated AMAs under section 6(6) of the Act Designated AMAs must not be carried out within an authorisation area, or under certain other circumstances, except in accordance with an appropriate authorisation under the Act (s.6). (a) the construction, maintenance or use of any reservoir, dam (including a tailings dam), drain or water race, other than any reservoir, dam, drain or water race principally used for purposes not connected with mining or any other activities regulated by or under an authorisation (b) opal puddling 1
(c) the removal, stockpiling or depositing of overburden , ore or tailings to the extent that it is associated with mineral extraction or mineral beneficiation
2.3 AMAs other than ‘designated AMAs’ AMAs that are not defined as ‘designated AMAs’ may be undertaken without an authorisation under the Act. However, for operational or strategic reasons, proponents may still wish to apply for an appropriate authorisation for these activities.
A proponent seeking to undertake a designated AMA outside a mining area, but in the immediate vicinity of and that directly facilitates the mining lease in respect of mineral(s) must apply for one of the following:
A separate mining lease for AMAs only 2 – the Act enables a person to apply for a mining lease solely to carry out AMAs. The mining lease does not provide the right to mine, but it does provide security of tenure for the AMA, by providing the holder with the right to access the mining area
An AMA condition 3 on an existing mining lease in respect of mineral(s) 4– the Act enables a person to apply to add an AMA condition onto an existing mining lease, notwithstanding that the AMA occurs outside of the mining area. Holders of a mining lease in respect of mineral(s) may use this pathway to consolidate their rehabilitation obligations for AMAs onto the existing mining lease.
Overburden includes (but is not limited to) interburden, spoil and waste rock
Section 63(5) of the Act
Clause 7B of Schedule 1B of the Act
An AMA condition may only be imposed on a mining lease in respect of mineral(s) if the AMA is to be carried out in the immediate vicinity of and to directly facilitate the mining lease concerned, clause 7(B)(3) Schedule 1B of the Act. The Division will impose an AMA condition on a single mining lease Ancillary Mining Activities Guideline Page 4
Note: these regulatory pathways may only be granted if the immediate vicinity test and the direct facilitation test, outlined below, are satisfied. Both regulatory pathways, if granted, have identical consequences in respect of the protection of the environment, including, but not limited to, providing security deposits and preparing rehabilitation plans. In particular, the full suite of compliance and enforcement powers under the Act applies to both pathways. Where required under the Environmental Planning and Assessment Act 1979, development consent from the relevant consent authority must be obtained prior to any grant of a mining lease for AMAs only or the imposition of an AMA condition on an existing mining lease in respect of mineral(s). Similarly, environment protection licences from the Environment Protection Authority may be required under the Protection of the Environment Operations Act 1997.
Immediate vicinity and direct facilitation tests The two regulatory pathways may only be granted if the following two ‘tests’ are satisfied 5:
Immediate vicinity test – the AMAs are to be carried out in the immediate vicinity of a mining lease in respect of mineral(s) or a mineral claim.
The following principles may be considered when interpreting the expression ‘immediate vicinity’. It includes: i. activities that will be carried out on land that adjoins all or part of the mining area or claim area 6 (including land separated only by road or water course); and/or ii. activities that are within 20 kilometres of the authorisation area7; and/or iii. activities that are on the surface area of a subsurface mining lease, but within the boundary of that lease.
For the purpose of mineral claims, the immediate vicinity is taken to include the entire mineral claims district that the mineral claim falls within.
Section 63(5), and clause 7B of Schedule 1B, of the Act
The mining area means land the subject of a mining lease. The claim area means land the subject of a mineral claim
The 20 kilometre distance may be calculated from the closest point of the authorisation boundary when measured in a direct line Ancillary Mining Activities Guideline Page 5
Direct facilitation test – the AMAs are to be carried out to directly facilitate a mining lease or a mineral claim.
The following principles may be considered when interpreting the term ‘directly facilitate’: i. activities that directly assist the extraction of materials from land that is authorised under a mining lease in respect of mineral(s) or a mineral claim; and/or ii. activities that directly assist the recovery of minerals from the material which has been extracted in accordance with an authorisation; and/or iii. activities that are primarily used for the purpose of supporting the authorisation (including activities or operations under the authorisation). These principles focus on the definition of the term ‘mine’ (in the dictionary to the Act) to ensure that the focus of the Department’s regulatory role in relation to AMAs is consistent with the objects of the Act. For example, a stockpile of soil extracted from an open-cut mine may require authorisation under the Act, whereas, a heavy vehicle washing facility adjacent to the mine may not.
Note: the decision-maker may not grant a mining lease for AMA(s) only or impose an AMA condition on a mining lease in respect of mineral(s) under the Act unless both tests are satisfied. Activities that do not meet one or both tests still need to meet the statutory obligations under other NSW legislation, including, for example, environment protection licences under the Protection of the Environment Operations Act 1997.
Summary of regulatory framework for each approval pathway
Table 3 below provides a summary of the regulatory framework that applies to each pathway. This information is not intended to provide legal advice, but rather provide guidance for proponents to consider the appropriate pathway for their circumstances.
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Table 3: Summary of the regulatory framework based on the pathway Requirement/powers/ obligations
Separate mining lease for AMAs only
Imposing an AMA condition on an existing mining lease in respect of mineral(s)
A separate mining lease for AMAs only confers certain rights on the authority holder. The grant of a separate mining lease for AMAs must be made in accordance with the Native Title Act 1993 (Cth) and the Native Title (New South Wales) Act 1994.
An AMA condition to rehabilitate off-title works does not confer any power or right on the authority holder in connection with the AMA that is not authorised to be carried out (or exercised) under another Act or law. Therefore, it does not create rights that may trigger requirements under the Native Title Act 1993 (Cth).
A mining lease for AMA(s) only provides the holder with the right to access the mining area, subject to landholder protections under the Act.
An AMA condition does not provide access rights. An access arrangement is required to be in place between the authority holder and the landholder.
Compliance and enforcement powers
The full suite of the compliance and enforcement powers under the Act applies in relation to both regulatory pathways in the same way.
Under both regulatory pathways, security deposits are collected to cover the potential rehabilitation liability of the AMA.
If required under the Environmental Planning and Assessment Act 1979, an AMA and associated activities must have appropriate development consent.
Dwelling houses, gardens and significant improvements
Under section 62 of the Act, a mining lease for AMAs only and an AMA condition may not be imposed on an activity that is within the prescribed distances for dwelling-houses, gardens, or on a significant improvement, without the 8 landholder’s consent.
Compensation to landholders
Section 265 of the Act provides that on the granting of a mining lease for AMA(s) only or the imposition of an AMA condition, landholders (including secondary landholders) become entitled to compensation for any compensable loss suffered, or likely to be suffered, as a result of the: 1. exercise of the rights conferred by the mining lease for AMA(s) only, and 2. any activity required by an AMA condition imposed on a mining lease in respect of mineral(s).
Landholders are not liable for acts or omissions carried out by a mining operator exercising their rights or complying with requirements as a result of the: 1. exercise of any power or right conferred by the mining lease for AMA(s) only, and 2. any activity required by an AMA condition imposed on a mining lease in respect of mineral(s).
All mining operators undertaking AMAs are required to document plans detailing how they will minimise impacts on the environment and undertake progressive and effective rehabilitation of disturbed land.
Work, health and safety
The Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies to workplaces where ‘mining operations’ are carried out. Mining operations includes activities carried out in connection with mining activities at a local site (s.7).
For AMAs that have been operating lawfully off-title under the current Ministerial exemption order published in the Gazette on 11 September 2015, no new requirements for landholder consent will be imposed as the existing AMA could only have taken place with the original landholder’s consent (Schedule 6 – ‘Existing ancillary mining activities’). Ancillary Mining Activities Guideline Page 7
Application and assessment process
5.1 Application of a mining lease for AMA(s) only Part 5 of the Act applies to an application for a mining lease for AMA(s) only. Applications are assessed against published criteria and policies and further information on this process is available at http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/applications-andapprovals/mining-and-exploration-in-nsw/coal-and-mineral-titles 5.2 Application to vary a mining lease in respect of mineral(s) to impose an AMA condition Schedule 1B of the Act provides for an application for variation of a mining lease to impose an AMA condition. An indicative map of the proposed area is also required along with an application fee of $8000. Administrative levies also apply to the area where the AMA condition is imposed in respect of the security deposit condition, but annual rental fees are not applicable. The target processing timeframe is currently set at 42 business days but over time further improvements may be possible. Further information on the application and assessment process for an AMA condition are available at http://www.resourcesandenergy.nsw.gov.au/miners-andexplorers/applications-and-approvals/mining-and-exploration-in-nsw/coal-and-mineral-titles/ancillarymining-activity-ama.
All mining operators who undertake ancillary mining activities will be subject to the new regulatory framework. AMAs that were exempt under the Ministerial exemption order (published in the Gazette on 11 September 2015) will not be subject to the new section 6 of the Act, except after the exemption period expires on 15 November 2017. On and from 16 November 2017, the new section 6 of the Act applies to the carrying out of designated AMAs that were previously exempt under the Ministerial exemption order, unless: (a) an application was lodged before 16 November 2017 for either: (i) the variation of a mining lease in respect of mineral(s) to impose an AMA condition, or (ii) a mining lease for AMA(s) only, and (b) that application is pending final determination. During this transition period, any pending applications for a mining lease for mining purposes only may be withdrawn and resubmitted as an application for an AMA condition (at the applicant’s discretion), or continue to be progressed as a mining lease for an AMA.
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Ancillary Mining Activities Guideline