The purpose of this report is to identify existing Commonwealth law and policy relevant to the regulation of coal mining and unconventional gas exploration and production in Australia. Having identified the regulatory gaps, this report outlines opportunities for law reform in 10 key areas, with an emphasis on ecologically sustainable development (ESD) and decision-making based on best-available science.
Why national law reform is needed
A report of this nature is timely and necessary given the degree of concern expressed by communities across Australia about the impacts of mining in general, and coal mining and unconventional gas development in particular. This concern has arguably been driven by two central factors.
The first factor is the number and size of production titles for these resources, which taken together cover large portions of affected States and Territories. Similarly, the number and scale of actual and projected exploration and production activities (including ancillary infrastructure) is significant. With tenements covering large parts of almost all Australian States and Territories, and exploration and production often associated with considerable environmental and social impacts, there is a critical need for national laws and standards regulating these industries. Put simply, the magnitude of these activities results – and will continue to result - in pronounced, cumulative impacts on Australian communities, agricultural industries, air and water quality, and environment.
The second factor is the current inadequacy of State and Territory regulation of coal mining and unconventional gas development. Coal mining development and unconventional gas development are principally regulated by State and Territory governments. State and Territory laws regulating these activities are deficient, particularly in respect of biodiversity conservation, greenhouse gas (GHG) emissions, air quality, water resources, chemical use and access to land. Key inadequacies relate to environmental assessment and approval processes. State and Territory legislation predominantly confers broad discretion on decision-makers to determine how environmental and social impacts will be assessed and whether or not high-impact mining projects will be approved. It is also characterised by legislation which limits the extent to which a decision-maker or court may consider environmental impacts when determining a development application for a coal mining development or CSG development.
This options paper was prepared by the Australian Network of Environmental Defender’s Offices Inc. (ANEDO).