BILL: Mineral Resources

Today, Mark spoke about the need for mining reform and outlined a number of the amendments he will be introducing on behalf of the Greens to the Mineral Resources Bill. 

Statutes Amendment (Mineral Resources) Bill 2018

At 44 years of age, the Mining Act 1975 is of middle age and certainly in need of reform, but a more important question for this chamber is whether this particular bill delivers the reform that South Australia needs. I was a child in secondary school when this act came into operation. There are some members of parliament who were not even born when the Mining Act commenced, including the state's current environment minister. The mining minister certainly was around, but in short pants at kindy or primary school, perhaps.

The 44 years since the Mining Act became law has seen incredible developments in our understanding of the natural environment, our appreciation of the interconnectedness of plants, animals and ecosystems, and the fragility of species. With that increased knowledge came a slow increase in environmental regulation, standards and policies. In relation to mining, improvements were incredibly slow and not at the initiative of mining companies, but it was at the insistence of communities through environmental activism over many years that saw reforms. This included campaigns to stop sand mining on Fraser Island or gold mining in Kakadu National Park.

In South Australia progress has been even slower. Our mining and environmental laws have improved only marginally, whilst human impact on the environment is growing exponentially. Laws covering the exploitation of natural resources have not been enough to address the extinction crisis or the climate emergency. That is not to say that mining is the only impact, but it is a significant one, especially the mining of fossil fuels, which are driving global warming, regardless of whether the fuels are burnt here in South Australia or elsewhere in the world. We are trashing the planet like there is no tomorrow, which is why we see millions of schoolchildren around the world striking for action on climate change, and it is why we see groups such as Extinction Rebellion protesting in the streets, demanding real action to protect the environment.

Although the extinction of species is a natural phenomena, it occurs at a natural background rate of about one to five species per year. Scientists estimate that we are now losing species at up to 1,000 times the background rate, with literally dozens of species going extinct every day. It could be a scary future indeed, with as many as 30 to 50 per cent of all species possibly heading towards extinction by mid-century.

It is similar with climate change. Yes, measured over thousands of years, the climate has always changed, but nothing like the changes brought about by human activity in recent decades. We are in a climate emergency and nearly at the tipping point, beyond which slowing climate change will be impossible, and that is why citizens are taking to the streets on these issues now.

So it is against this backdrop of a deteriorating environment that we need to assess the new mining bill that is before us. There are many yardsticks against which we could measure this bill, but three of the main ones for the Greens are the following: firstly, is it fit for purpose in an age of climate emergency and accelerating species extinction? Secondly, does the bill include best practice public participation and democratic rights? Thirdly, does the bill fairly balance the competing social and economic priorities of growing food, fibre and materials against mineral exploitation? In short, the bill fails all three tests.

Of course, if you are a mining company, your questions are very different. Your first question is: does the bill ensure that mining can proceed unimpeded with minimal effective regulation through a single, compliant government department? Tick. Secondly, does the bill enable us to mine virtually anywhere we want, including most national parks and other conservation areas? Tick. Thirdly, are our activities protected from pesky third party appeals and civil enforcement? Tick. Through that lens, the bill is a great success, because it perpetuates the regime that has served the mining industry so well for the last half century but has not served the rest of society well and has certainly not served the environment well.

I have tabled a number of amendments to this bill, and my colleague the Hon. Frank Pangallo has tabled a number of amendments as well, which is why it is incredibly disappointing to hear the very brief contribution of the Labor Party, saying that they will not support any amendments. In my discussions with the Labor Party, when I put that to them, that they were not going to support any amendments, they said, 'That's not right. We will look at any sensible amendments carefully and support them.'

The Labor Party is not going to be considering any of the crossbench amendments. I cannot speak for my colleague, but I will certainly be moving mine and I will be dividing on many of them. The farming community in particular can see Liberal and Labor siding together, standing up for mining companies against the interests of those who grow our food. I am sure they are going to delight in that spectacle.

I am not going to go through every amendment now, because the committee stage will take some time.

The Hon. R.I. Lucas: Hear! hear!

The Hon. M.C. PARNELL: I am loath to disappoint the Treasurer. If you would like me to go though all the amendments now, I can. I want to highlight a few points. The first point that I would highlight is one that is very difficult to legislate for but is at the heart of many of the issues we are going to be discussing in this bill, and that is the concept of regulator capture. Regulator capture is the situation you find when a government body—a regulatory body—is so close to the industry that they are supposed to be regulating that they are incapable of critical evaluation and independent regulation.

This has been a theme of mine for the last 30 or so years that I have worked in this space, and over many years in parliament I have told many stories that go to this question of industry or regulator capture. One of my favourite stories was a very early contribution that I made to a government inquiry back in the 1990s, in relation to a mining company that was clearly breaking the law. They were clearly, unambiguously breaking environment laws and when we put that to the inquiry, the response from the department was, 'Clearly the laws are wrong,' and they promptly set about changing them. That was the extent of capture that we had.

Similarly, in court cases that I ran as an environmental lawyer, again mainly in the primary industries area—the aquaculture section—they had the person whose job it was to regulate the industry sitting next to the person whose job it was to give money to the industry. They never really understood that they were different roles, and so the regulators were incapable of independently regulating that industry.

We have seen with the mining department that that has been the case. There is probably no better example than when it comes to what should be very difficult decisions, such as allowing mining in a national park or a conservation area. You would think that that would challenge regulators and that they would be scratching their heads and thinking of the competing interests at stake, but no.

In fact, I am only aware of two examples where conservation has prevailed over mining in the last 30 years in South Australia. I will go through those two examples later, but I will start with a look at the National Parks and Wildlife Act and its relationship to mining. Of course, when they wrote the National Parks and Wildlife Act, and its predecessors, they did not ever comprehend that these areas being set aside for their natural beauty and their biodiversity would ever be opened up for mining, and so the law was pretty clear: it is a national park or conservation park—no mining; really clear.

But those parks only comprised about 4 per cent of the South Australian land mass, and it got to the point where the government was getting a bit embarrassed because other states were getting more parks and poor old South Australia was languishing on 4 per cent. The story, as told to me by a former director of national parks, is that the minister went to the parks director and said, 'Look, we have to boost these numbers. I want you to acquire a whole lot more of South Australia for the conservation estate.' The director of national parks rubbed his hands together and asked, 'How much money are you giving me for this task?' The response was, 'Oh, nothing. You have to do it for free.'

As a result, the poor old director of parks goes out, mainly to the outback and desert areas, and consults with industry, mainly the pastoral industry and the mining industry, and says, 'Have I got a deal for you! We're going to put this land under the National Parks and Wildlife Act, and we have no compensation for anyone.' As a result, both those sectors, the pastoral industry and the mining industry, negotiated even better terms for themselves for these new National Parks and Wildlife Act reserves than they would have had under regular Crown land or Crown leases.

Those are the origins of the so-called regional reserves. A regional reserve is a Clayton's park: it is the park you have when you are not having a park. It is a park that does not disrupt any commercial activity, especially mining and grazing. We saw it at places like Innamincka. When it became a regional reserve, the pastoralists got even longer leases over this new conservation estate and the mining companies got greater access as well.

That is how South Australia managed to increase the area under so-called conservation. It got up to over 20 per cent of the state, but we still had the situation where most of the protected national parks were that original 4 per cent that go back to the 1970s and beyond, before they had this brilliant idea of allowing multiple use parks with mining. The other trick was that they incorporated into the National Parks and Wildlife Act a provision called joint proclamation. That is a brilliant little provision. It says that the Governor, when proclaiming a national park, can jointly, or simultaneously, proclaim it to be open for mining at the same time.

As a result of those two measures, simultaneous proclamations and regional reserves, we find that, on paper, a map of South Australia has lots of nice colours showing all the conservation estates, with nearly all of them open to mining. There are only two examples I can think of where mining has not prevailed over conservation. One is the Arkaroola Wilderness Sanctuary. Some members here are very familiar with that debate; it went for some years. It was only when the mining company behaved so badly, broke so many laws, that eventually the government showed them the door and said, 'No, we are not going to let you mine in this wilderness area because of your behaviour.'

As it transpired, the mining company then kicked up such a fuss that the state government paid them a $5 million ex gratia payment for kicking them out of a conservation area, even though they had broken the law, illegally dumped waste and behaved appallingly. To rub salt into the wound, the company that was responsible for that appalling behaviour in the Arkaroola Wilderness Sanctuary was none other than Marathon Resources, which languished on the stock exchange doing nothing for a while then, like the undead in a zombie movie, came back to haunt us.

It is now called Leigh Creek Energy, and it is now proposing underground coal gasification at Leigh Creek. It is the same company. It has different owners, sure; it is under different management, but it shows that there is perpetual succession when it comes to environmental vandalism. Leigh Creek Energy, formerly known as Marathon Resources, is one of only two examples I can think of where conservation has prevailed over mining and, even then, they had a golden handshake of $5 million.

The only other case I can think of goes back to the year 2000 or 2001, and that was a company that was proposing to mine the Gammon Ranges national park. It was a proposal for a magnesite mine. In the end, it was defeated, so the official story says, by the presence of a very rare fish, the Flinders Ranges purple-spotted gudgeon. That always creates a lot of mirth: how could a fish stand in the way of a mine?

I can tell you anecdotally that the story, as it was told to me, was that the only reason the Weetootla Gorge in the Gammon Ranges national park was protected from mining was that the officer whose job it was to process these things went on holiday and this person's replacement did not get the memo that mining is always supposed to win. They ended up ultimately protecting the Weetootla Spring in the Weetootla Gorge as a special wildlife zone. They are the only two examples I can think of, and I have been doing this work in South Australia since 1989.

When it comes to mining, it is pretty much open access. For many years, the various minerals lobbies at the state and federal level used to run campaigns bemoaning what they saw was problems with access to land. But from the mining industry's point of view, land is off limits to mining if you have to ask anyone's permission or if you have to pay anyone compensation—that makes it off limits. They are so used to having open slather that even having to deal with stakeholders is regarded as an unreasonable impediment to their unfettered access to South Australia.

To give one quick example of one of the amendments I will be putting forward, there is a provision at present that says that when it comes to mining in national parks the environment minister and the mining minister should sit down and talk about it and if they cannot reach agreement it goes to cabinet. My amendments says, 'No, the environment minister should prevail.' If it is a national park or it is a reserve under the National Parks and Wildlife Act, this should be a matter where conservation has the ability to triumph, and it will best have that chance if the environment minister makes a decision.

Under the present regime, I am not entirely convinced that will be the outcome, but this legislation will transcend the current government and it will be potentially with us for another 44 years, so I want to at least make sure that we level that playing field a little bit so that when it comes to mining companies wanting access to our special protected areas that the environment minister responsible for a piece of environmental legislation will have some chance of prevailing.

The issue that most dominated the debate on this bill in the other place was in relation to the respective rights of mining companies and farmers. That debate saw four members of the government cross the floor and other members in this chamber threaten—I do not know if I can use the word 'promise', but at least threaten—to cross the floor. The issue was that the bill as drafted—and it is also in the act as currently written—does not give landholders any real right to stop a mining company entering the land and undertaking exploration or mining activities.

I need to just very quickly explain the mechanism because when students of topics like this read the legislation they cannot believe that it is not better than it is and that is because, fairly early on in the Mining Act, they get to a section called 'Exempt land', which says that land is exempt from mining, for a number of reasons, including if it is very close to someone's house, or if it is land that is used for cropping, for farming, then that is exempt. So, at face value, the mining company cannot go there: it is exempt land—they are the words that are used.

But when you read a bit further into the act and when you go to the regulations as well, you will find a regime that is in fact very different. The way the regime works is that if a farmer exercises her or his right to say no to a mining company, the mining company can come knocking on the door and say, 'This is exempt land, it's farmland, or it's very close to your house, but we want to mine anyway. Here is a form we want you to sign, it's called a waiver of exemption, and if you don't sign that form we are going to take you to court, we are going to win and we might even get costs awarded against you. So, if you know what's good for you, you will forget that this is exempt land, you will sign our piece of paper and you will let us access your property,' and that property may have been in the family for generations. That is how the regime works.

I will be honest: I did not quite believe that it was that bad. When I first came across it, I remember a client came to me down in Mount Gambier. There was a quarry that was quite some distance from her house and they wanted to expand it to within about 200 metres of her house—very, very close. So, as a young lawyer, I went through the legislation and said, 'No, this is exempt land. They are too close to your house. They can't mine there unless you agree.' She said, 'Well, I am not signing the form they gave me. I am not going to sign this waiver of exemption.' In the end, the mining company took her to the mining Warden's Court. The mining warden wagged his finger at her and said, 'How dare you stand in the way of mining,' found against her and ordered her to pay the quarry and company's legal costs. What an outrageous outcome when the parliament has said this is exempt land. It is no such thing: it is not exempt land.

The debate in the lower house focused a great deal on whether farmers should be able to have a right of veto. A right of veto is actually a very strong measure but it does have some legal problems associated with it, and one of them is that under our system the minerals under the ground are owned by the community through the Crown and so the theory has always been that the decision about whether they can be extracted and used and sold is a question for the government as custodian, I guess, of the Crown minerals on behalf of the community, and so farmers have never had a right of veto. But I think that even if we do not go to that point of saying that farmers have an absolute right to say no, even if we do not go to quite that point, we can certainly level the playing field a great deal more than is currently the case.

One of the difficulties is that when these cases have wound up before the mining warden—and I have discussed this personally with a number of mining wardens—their attitude has been, 'But it's the Mining Act; it's supposed to be about mining so, of course, we find in favour of mining companies.' I am only aware of one case in the last 30 years where a landholder has succeeded in keeping the mining company off their land, only one case out of all of them. All of the losing cases were as a result of precedent decisions that had been established over many years in the mining Warden's Court, which is why, a number of years ago, I successfully moved for this jurisdiction to be taken away from the mining wardens and given to the Environment, Resources and Development Court.

The idea was that that court was a little bit more impartial, we hoped, than the mining wardens would be; it had a less formal structure. They had roundtable conferences as a prerequisite to any trial so, in other words, people would be forced around the table to work out if they could sort it out without going to a trial. It seemed to me and to a majority of the parliament that that was probably a better way to go, so we had the environment court put in as the dispute resolution mechanism.

There are still some problems with the regime and one of the problems is that the decision-maker, if there is a dispute between a farmer and a mining company about access or anything else, there is no real guidance to the decision-maker as to what they should be taking into account. I have some amendments before us, and we will get to them in detail later, which actually go through a list of some of the things that the environment court should take into account. For example: will the mine be rehabilitated or will it just be a hole in the ground that will never be able to grow crops ever again? Another question would be: what is the life expectancy of the mine? If the life expectancy of the mine is only a few years and if it is not going to be rehabilitated back to a cropping standard then we have to weigh up: how long can we mine for, a few years; how long can we grow food and fibre, maybe 1,000 years, maybe 2,000 years.

The Middle East is on the television every other night where there are paddocks and fields there that have continuously grown food for thousands of years and yet when it comes to a decision to allow a very short-term mine that would take out of production valuable farmland forever, the mine always wins. Probably a good example of that is the Hillside mine on Yorke Peninsula. I am very grateful to the Yorke Peninsula Landowners Group, who have been solid in their opposition to this bill because they realise that it does not provide a level playing field between farmers and miners.

I want to reinstate the environment court. I want to make sure that the court is given some guidance as to factors they have to take into account, which would also include not just physical factors but if the mining company has a track record of appalling behaviour, breaches of environmental standards and leaving a trail of destruction behind them. Why should they not take that into account as well before deciding whether or not to give the mining company access to that private land?

People might say, 'Jeez, you're making it tough, Mark, to allow mining companies onto farmland.' Yes, and the point is that most of the minerals they are looking for are relatively common and are available outside farming land. They are available in areas where there is not that conflict. Of course, they are going to have to deal with Aboriginal traditional owners, as of course they should. If there are environmental issues they are going to have to manage those but you can actually take one level of conflict off the table by keeping these mining companies out of farming land.

Another example that has been in the media the last little while relates—it is very close to where we are here—to the situation in the Adelaide Hills with the Bird in Hand mine. Now, there is a bit of irony here, and I will set it out there in case someone tries to ambush me with it later on. The Bird in Hand Winery is actually named after the Bird in Hand mine. The mine was an historic mine that operated 100 or so years ago and in the end became unviable because of the groundwater which ends up filling the holes, filling the tunnels, and they did not have sufficient capacity to pump it out. It was a fairly short-lived mine which was abandoned as a result of its interaction with the groundwater.

That became an historical location, and so a winery comes along and names themselves—'Oh, we'll call ourselves the Bird in Hand Winery.' It was in fact originally a mine. But the Adelaide Hills have changed a fair bit since then. We now have an extensive horticulture and viticulture industry, employing thousands of people, including hundreds of people employed at cellar doors and in wineries all through the Adelaide Hills, and when a mining company comes back and says, 'Oh, we've got better pumps now, can we go back and reopen the mine?' all of a sudden you are imposing this heavy industrial activity, with its noise, its explosions and its truck movements, in a bucolic landscape where cellar doors predominate and which is full of people on the weekends, enjoying the best of what the Adelaide Hills have to offer.

The reason I am using this example is that people might have seen in the newspaper the other day—in fact, I think it was only on Friday—the winery is proposing to expand their operations. They want a new restaurant, they are going to provide new facilities for visitors and they have lodged their applications. Their applications were supported by the local council, supported by the state government, through the State Planning Commission, and what has happened? Terramin, the company, has gone and lodged an appeal in the environment court to stop the winery expanding their business.

I do not think there is any explanation other than tit for tat, because clearly the winery and fellow wineries in that area have been trying very hard to keep this mine from being reopened, because of the impact they know it will have on the amenity of the area and also on groundwater. The point I am making is that these wine companies have no right under the Mining Act to appeal against anything that Terramin might want to do. There is no right of appeal against mining decisions. There is no ability even to enforce mining laws through civil enforcement. Yet both those rights exist in reverse.

If you want to challenge a decision made under the Development Act, a planning decision, as Terramin is doing, you have that right to do that. If they think the law is not being complied with, they can go to court on a civil enforcement action. This just shows you how skewed the thing is. The winery is not allowed to challenge the mine, but the mine is allowed to challenge the expansion of the winery. That just sums up the complete absence of any real civil or legal rights associated with this industry, and that is the way the industry likes it.

I was going to read out some chunks from the newspaper, but I will not. People can look at it in The Advertiser last Friday. But I cannot see that it is anything other than tit for tat. I will read a couple of sentences:

Terramin refused to comment on its court action.

'Terramin does not wish to comment in detail on a court matter,' chief executive Richard Taylor said.

'Like any council ratepayer we have rights, especially being the winery’s nearest neighbour.'

So they are standing up for their rights to go to court and challenge something their neighbour wants to do. Reverse the situation: there are no rights at all for anyone to challenge any decision under the Mining Act. It is just not right.

The Greens have a number of amendments, as I said, that are filed. We are keen to redress the balance in spite of the Labor Party's blanket refusal to even consider the amendments, to even look at them on their merits; they are just saying, 'Well, we're just with the government.' I expect that we will see a number of divisions when we get into the committee stage. I look forward to cosying up to my crossbench colleagues, many of whom I think will support amendments we have, as we will support some of theirs. We will do justice to South Australia's farming community, South Australian conservation groups and others who are demanding that after 44 years we can do better than the bill that is before us.

I would like to put on the record my thanks to the Environment Defenders Office, the Conservation Council SA, the Yorke Peninsula Landowners Group, and also many of the other residents' groups, local farmer groups, conservation groups and the many individuals who have offered advice, feedback and support in relation to trying to make this bill better. With those brief words, I look forward to the committee stage of this debate.