Keywords

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Juggernaut: a massive, inexorable force or object that crushes whatever is in its path. The term ‘juggernaut’ is taken from a Hindi word used to describe a huge wagon used to transport images of the Hindu deity Krishna in processions. Krishna is a manifestation of the supreme god Vishnu “the maintainer or preserver” of the cosmos (Hefner GA n.d.)

How Big Is the Issue?

There is no disputing the importance of the resource sector in the Western Australian and Australian economies. In 2011–2012 mineral and petroleum exports comprised 91 % of Western Australia’s total merchandise exports and accounted for 46 % of Australia’s total merchandise exports (DMP 2013a). According to the Australian Bureau of Statistics (2013), sales and service income for the mining industry in WA amounted to some $112.1 billion in 2011–2012. Nearly 97,000 people were directly employed by the WA mining industry in 2011–2012. Royalties paid to the state by mineral and petroleum producers during that period amounted to some $5.3 billion (DMP 2013a) (see also Chap. 1). This sum does not include an estimated $0.76 billion of petroleum resource rent tax paid to the Commonwealth by operating oil fields in Commonwealth waters off the WA coast (DMP 2013a). For these and other reasons, the state has an obvious interest in supporting the efficient and timely assessment of resource projects, including infrastructure projects required for the delivery of mining and petroleum enterprises.

The dominant influence of the minerals and petroleum sector is reflected in the number of environmental assessments conducted for mining and petroleum projects and for related infrastructure. In recent years mining and petroleum projects have typically accounted for about 60 % of the major projects assessed by the Environmental Protection Authority (EPA). If resource industry related infrastructure projects are taken into account, the resource sector easily accounts for more than two-thirds of EPA assessments (see Fig. 11.1).

Fig. 11.1
figure 1

Environmental assessments of major projects in Western Australia, 2007–2012. Data derived from EPA WA (EPA 2013b) annual reports for the years shown

Full size image

The major projects assessments carried out by the EPA, which currently average about 22 per year (not including assessments related to project modifications or changes to approval conditions) represent a small proportion of the regulatory effort related to environmental impact assessments for mining and petroleum activities. In the 2 years to the end of March 2013, the number of environmental assessments completed by the WA Department of Mines and Petroleum (DMP) for exploration, mining and petroleum activities averaged over 800 per quarter (see Fig. 11.2).

Fig. 11.2
figure 2

Environmental assessments completed by DMP, 2011–2013. Data for compiled from DMP approvals performance reports for the periods shown (DMP 2013d)

Full size image

Additional environmental assessments are conducted by the Department of Water (water licensing), Department of Environment Regulation (industry licensing) and Department of Aboriginal Affairs (impacts on Aboriginal sites).

Overview of Regulatory Control

Regulation of environmental aspects of the resource sector in Western Australia is administered by multiple agencies under a number of Acts, regulations and policies. The key Acts used in regulating the environmental impacts of the mining sector in Western Australia are listed in Table 11.1.

Table 11.1 Key statutes for regulating environmental aspects of mining (WA)
Full size table

The regulatory framework in Western Australia comprises a wide array of statutory tools for managing environmental impacts of minerals and petroleum activities, including, but not limited to, provisions for:

  • Policy development and implementation;

  • Conducting investigations and research into environmental and related matters;

  • Establishing and promulgating environmental standards, criteria and methods;

  • Conducting environmental impact assessments;

  • Monitoring compliance with approval conditions; and

  • Implementing enforcement actions in cases where legislative requirements or approval conditions are not adhered to.

Assessment and Permitting of Resource Projects

In contrast to many other Australian jurisdictions, the Western Australian Environmental Protection Act 1986 (EP Act) takes precedence over other legislation, including (in most instances) Commonwealth environmental legislation, in the assessment and authorisation of environmentally significant projects. The tests for what constitutes “significance” under the EP Act are set out in the Environmental Impact Assessment (Part IV Division 1 and 2) Administrative Procedures 2012. In determining whether or not a project might be environmentally significant, the EPA may take into account many environmental aspects, including cumulative impacts with other projects and public concern about the proposal. The notion of ‘public concern’ as a factor in defining environmental significance is a distinctive feature of the WA system, and one that has important implications for the resource sector, as the EP Act does not require formal environmental impact assessment of all projects—only of ‘environmentally significant’ proposals.

The EP Act and the administrative procedures that support its implementation make specific provision for stakeholder participation in the assessment of proposals. Any person may refer a significant proposal for assessment by the EPA. There have been a number of recent cases, most notably the Vasse Coal Project, in which a project formally assessed by the EPA was referred by a third party, rather than by the project proponent. The general public has always had the opportunity to comment on projects being considered for assessment by the EPA. In 2012, the Office of the EPA made public input to the environmental impact assessment process much more accessible by establishing an online consultation hub (see EPA 2013a) to enable the general public to comment on projects. Of the 44 matters posted on EPA’s consultation hub between August 2012 and May 2013, half have been in relation to impact assessment for resource projects or infrastructure required for resource projects. The EPA received public comment on fewer than half of the resource-related projects posted on the consultation hub between August 2012 and May 2013.

Under the EP Act, the concept of ‘environment’ is defined very broadly. It includes the biophysical environment, social surroundings and the interactions between these. This definition, together with the environmental protection principles referenced in Clause 4A of the Act (precautionary principle; inter-generational equity; conservation of biological diversity and ecological integrity; waste minimisation; use of pricing, valuation and incentive mechanisms to further environmental objectives) give regulators considerable latitude in setting the scope for those projects that are formally assessed by the EPA and, more generally, for developing policies and standards to guide environmental practices.

A relatively small number of resource projects are formally assessed by the EPA in any year. In any given year, only about 10 % of the number of projects referred to the EPA are assigned a formal level of assessment. Irrespective of whether or not a resource project is formally assessed by the EPA, all mining and petroleum projects are subject to environmental impact assessment by the Department of Mines and Petroleum under the provisions of WA’s Mining Act 1978, or comparable legislation governing the energy sector, for example, the Petroleum (Submerged Lands) Act 1982. In recent years, the DMP has completed in the order of 3,000 environmental assessments for mining and petroleum projects per year. No mining or petroleum project may proceed without some form of environmental impact assessment. Although some special conditions apply to large projects for which State Agreement Acts are in place, such projects are not exempt from assessment under the EP Act. Proposals for resource activities to be conducted under a State Agreement Act cannot be approved until all primary environmental approvals, native title agreements, and heritage clearances are in place. Environmental Impact Assessment reports (‘mining proposals’) submitted to the DMP are publicly available via the DMP website, as are the conditions imposed on the projects under each project’s tenement conditions.

Resource projects which are not assessed by the EPA require an approval through the DMP and most will also require additional environmental consents, for example, permits to clear native vegetation, licences to abstract groundwater and licences for a range of industrial activities, such as the treatment of ore or storage of tailings. The Department of Environment and Conservation (DEC 2012: 31), now the Department of Environment Regulation, reports that it received and processed 148 works’ approvals for major resource projects in 2011–2012, compared to 150 in 2010–2011 and 71 in 2009–2010.

Virtually all of the forms of environmental approval in WA include some provision for appeal by third parties. In most circumstances, a project may not proceed until all appeals have been resolved. There are effectively no legal constraints on the time that may be taken to resolve an appeal, although the Office of the Appeals Convenor seeks to resolve appeals related to licences, vegetation clearing permits and assessments of environmentally significant projects within a nominal 6-week period from the time of lodgement. In December 2012, the DMP estimated that an average of 28 months was required to gain approval for a mine in Western Australia, not including time required for grant of tenure.Footnote 1

Although the grant of tenure under the Mining Act is a not matter that has conventionally formed part of the environmental assessment framework for resource industry regulation, a number of recent decisions in the WA Warden’s Court have underscored the link between environmental interests and decisions on tenure. For example, in 2012 objectors to the grant of an exploration tenement in the South West region of Western Australia successfully argued that tenure should not be granted on the grounds that exploration would necessarily lead to mining and that both exploration and mining were unacceptable at the proposed location in that such activities were incompatible with existing land uses (agriculture, forestry, horticulture and tourism), would contribute to cumulative environmental impacts and exacerbate existing environmental pressures (erosion, salinity and die-back), would not result in economic or social benefits to local communities and would generally constitute inappropriate development (Darling Range South P/L -v- Ferrell & Ors [2012] WAMW 12). There are other recent examples such as Poelina -v- Blackfin P/L [2012] WAMW 34, Mineralogy P/L -v- Kuruma Marthudundera NTC [2012] WAMW 2, where grant of tenure has been stayed or refused on environmental and other public interest grounds, including consideration of both biophysical impacts and social or cultural impacts of proposed mining or exploration activities.

Post-approval Regulation

Conditions imposed on mining projects at the time of regulatory approval (including ministerial conditions, licence conditions and tenement conditions) are legally binding. The key statutes under which mining activities are approved in WA include explicit provision for regulatory scrutiny and enforcement of compliance with approvals conditions, although such regulatory oversight by administering agencies is not obligatory. For example, Section 48(1) of the EP Act says that the CEO of the administering agency ‘may’—not ‘must’—monitor implementation of a proposal, or cause it to be monitored, for the purpose for determining whether the implementation conditions relating to the proposal are being complied with.

Effectively all mining and petroleum operations are required to lodge annual environmental reports to the DMP. Many operations are also required to lodge regular compliance reports in connection with approvals issued by the Department of Water and the Department of Environment Regulation. Projects assessed by the EPA are usually requiredFootnote 2 to lodge annual compliance reports and may also be required to lodge (at less frequent intervals) performance review reports. The EPA may require that such reports be made publicly available.

In addition to standard requirements for routine reporting, resource project proponents may be required to participate in regulatory audits or inspections. In most instances such assessments are conducted by government agencies, although it is possible for regulators to involve third party auditors in compliance or performance reviews.

In the event that approval holders are found—through annual reports, audits or other means—to be in breach of approval conditions, each of the key Acts makes provision for enforcement actions. A range of penalties is available—these include, but are not limited to: forfeiture of the mining tenement; fines; modification to the approval conditions; direct intervention by the minister to prevent control or abate environmental harm or pollution; and forced cessation of the approved activity for up to 24 h.

There is no clear statutory obligation on the EPA or on the agencies responsible for regulating environmental impacts of mining to review or to report on the effectiveness of the regulatory regime or to conduct other analysis or public reporting on the individual or cumulative environmental effects of activities conducted by the resource sector. The state government periodically issues State of the Environment reports, the most recent of which was prepared by the EPA and released in 2007. The State of the Environment report includes a section on mining and petroleum. However, at the time of the most recent report, the EPA identified that it could not draw a conclusion on the extent of land disturbed by mining between 2002 and 2007 or on the compliance of mining projects with approval conditions because the systems used by the agencies responsible for regulating environmental aspects of mining were not capable of providing the information (EPA 2007). In relation to sustainability matters, the EPA concluded that there had been “significant progress at the individual business level” in relation to the use of environmental management systems, but that “a uniform sector approach to sustainability is lacking” (EPA 2007: 6). The State of the Environment report specifically noted that sustainability indicators, targets and limits relevant to the mining and petroleum sectors were inadequately developed.

Political Barriers to Regulating the Resource Industry

It is sometimes suggested that powerful industry interests stand in the way of a robust regulatory regime and discourage enforcement of environmental rules. The influence of the resource sector presumably arises from its dominance in the WA economy and, potentially, through political donations. According to Keane (2012) mining company donations to the WA Liberal Party, which currently holds about 53 % of the seats in the WA Legislative Assembly and 47 % of the seats in the WA Legislative Council, have increased more than an order of magnitude in the past decade, from less than $100,000 in the mid-2000s to over $1.2 million in 2010 and 2011, representing about 20 % of the party’s current revenue. But what is the evidence that the resource sector deters proper environmental regulation?

Of the many facets of regulation (establishment of legislation and policies, granting of approvals, monitoring of compliance, enforcement of statutory requirements) it is in the making and revision of laws, regulations and policies that resource interests have the most direct opportunity to exert political influence, through corporate or collective representations to government. Arguably, it would be in the interests of the mining sector to actively hinder the expansion of environmental controls arising from new policies or legislation. How then can one explain recent developments such as the introduction in WA (in 2010) of amendments to the Mining Act to mandate the preparation, regular review and public availability of mine closure plans? Or the introduction of the Mining Rehabilitation Fund Act 2012 to enable the imposition of a new levy aimed at creating a pooled fund to provide for rehabilitation of abandoned mines and legacy mine sites? These new laws squarely target the resource sector and have no direct parallel applicable to other sectors that also conduct land clearing or other industrial activities which may give rise to the need for land rehabilitation.

It is true that the resource sector takes an active interest in environmental policy matters. The mining industry is currently a vocal participant in the development of a new environmental offsets policy in WA. However, the public discussion papers prepared by industry bodies are not arguing against the implementation of a biodiversity offset policy. Rather, the chief focus of key industry submissions on the draft offset policy relate to the need for procedural fairness, mechanisms to ensure accountability and transparency and adequate resourcing to enable timely assessments (CME and AMEC 2013).

Do mining interests deter proper environmental regulation by collectively exerting pressure on public servants involved in the assessment of applications, monitoring of compliance or enforcement of environmental rules? In reality, there is little opportunity for sectoral participation in regulation of individual projects. These aspects of regulation are administered through one-on-one interactions between agencies and individual companies.

It is undoubtedly true that governments may be predisposed to grant environmental approvals to certain large and lucrative projects. Moreover, neither the Minister for the Environment nor the government is obliged to act in accordance with recommendations made by the EPA as to whether a particular project should or should not be approved. For example, the original EPA assessment of Chevron’s Gorgon Gas Project (EPA Report 1221, 2006) recommended against approval of the Gorgon Project, which has nonetheless been granted approvals. Nonetheless, there are circumstances where even a favourable EPA assessment and government support for a major project cannot prevail against other interests, as a recent WA Supreme Court decision in relation to Woodside Energy’s proposed Browse LNG Precinct at James Price Point has demonstrated (The Wilderness Society of WA (Inc) -v- Minister for the Environment [2013] WASC307).

Indeed, WA has a particularly liberal approach to public participation in environmental regulation, especially in the area of environmental impact assessment. The Environmental Impact Assessment Administrative Procedures 2012 explicitly recognise “public concern about the likely effect of the proposal, if implemented” among the tests of “significance” to be applied when deciding whether or not a project should be formally assessed. No conditions are applied to who may comment on a project referred to the EPA, and no special standing or interest requirements are applied to those who wish to object to an EPA report or to a ministerial decision to grant project approval. A range of other appeal procedures is available to third parties in relation to the grant of other environmental consents (licences and clearing permits, for example). Overall, the regulatory systems in WA provide both express access and implicit support for those inclined to deny approvals or to require imposition of regulatory controls on resource proposals.

If there exists a political barrier to environmental regulation of the mining sector in WA, it may arise from the fact that environmental considerations are not currently among the major concerns expressed by the Australian population. For some years, concern for environmental matters has declined in the level of importance accorded it, relative to issues such the economy, job security, health care and education. A national survey conducted by EMC Essential Vision (2013) found that only 13 % of the 1,913 people surveyed included “protection of the environment” in their top three concerns. Similarly, a national “youth survey” of 806 young people aged 17–25 years conducted by the Australia Institute (2013) found that fewer than 25 % of respondents included “mining” in the top five issues that might influence their voting choices (jobs and housing affordability were the highest ranking issues). Administrators of environmental regulations cannot help but be aware that the general level of public interest in environmental matters is waning and that, accordingly, there is relatively less reputational advantage to pursuing strict approaches to environmental assessment, surveillance and enforcement.

How Effective Is Regulation of the Mining and Petroleum Sector in WA?

A report prepared by the WA Auditor General in 2011 provides the most reliable and pragmatic answer to the question of how effectively the resource sector is regulated in Western Australia: no one knows. The extent to which agencies check on compliance or performance of resource activities varies, but it is evident that the resourcing of post-approval surveillance is substantially less than that allocated to project assessments and permitting. The Auditor General’s report concluded that while there are adequate statutory powers in place to support rigorous scrutiny of the environmental performance of the mining sector, agencies have generally not developed or implemented an effective framework to provide assurance on the overall levels of compliance with conditions, or whether the conditions deliver the desired outcomes (Auditor General 2011). That is, agencies are not able to assess whether approval conditions are being adhered to and—if they are being adhered to—whether the environmental outcomes targeted by the conditions are being achieved.

Although the key regulatory agencies involved in administering environmental aspects of the resource sector now include some information on their compliance activities in annual reports, the audit reports themselves are not publicly available, even for sector-based audits. The DMP provides summary statistics of its inspection and audit activities and has reported consistently high levels of industry compliance with approval conditions. In the three reporting years from 2009, DMP reports that 89 % or more of the sites it inspected were ‘compliant’ in that that Department did not take an enforcement action such as issuing a ‘Direction to Modify’, a ‘Stop Work Order’, a fine in lieu of forfeiture of tenure or written instructions to improve the site within a specified timeframe (DMP 2013b). The number of sites inspected is not reported.

The Office of the EPA (OEPA) reports similar high compliance levels. In its 2011–2012 annual report, the OEPA reported that it had conducted 55 audits, 87 % of which met all approval conditions (EPA 2012). The number of mining or petroleum projects included in the 55 audits is not specified. The resulting audit reports are have not yet been made publicly available, although OEPA states that the results of industry sector reviews will be analysed and reported on in 2012–2013.

What Is Required for More Effective Regulation?

WA legislation provides a strong and comprehensive basis for regulating the environmental impacts of mining. But legislation alone cannot guarantee an effective regulatory regime. An effective system to regulate the resource sector—and other activities with the potential to cause environmental harm—requires appropriate administrative tools, a supportive political environment and a balanced understanding of environmental management. At present, the WA regulatory approach is heavily focussed on environmental impact assessment. Other facets of the management cycle—monitoring the effectiveness of environmental conditions and the development of meaningful criteria by which to assess the effectiveness of environmental practices—are inadequately developed.

Until very recent times, there has been little emphasis in WA on post-approval surveillance of compliance or performance. There is still poor transparency in this aspect of resource industry regulation. The key government agencies accountable for regulating the resource sector have not yet developed and implemented effective information systems for using the large amounts of environmental monitoring information supplied by approval holders. This is a major impediment which prevents those responsible for administering environmental protection from evaluating the effectiveness of their work: those who are responsible for setting conditions on mining activities do not have sufficient access to evidence of the effectiveness—or otherwise—of those conditions. The underdeveloped state of information management in WA regulatory agencies is also a serious constraint to the assessment of cumulative impacts.

Unlike some other Australian jurisdictions (for example, South Australia), there has been little emphasis in WA on using tools such as benchmarking to help assess industry performance and the effectiveness of regulatory practices. Why is this the case? The relative lack of effort in surveillance of compliance and performance cannot be explained by a lack of statutory authority. Existing legislation provides a sufficient basis for establishing comprehensive assurance systems. The low priority assigned to monitoring and reporting on compliance and performance in the resource sector cannot be fully explained by a lack of resourcing of government agencies. The wording of the EP Act in relation to post-surveillance monitoring, “CEO may monitor or cause to be monitored… [emphasis added]”, lends itself readily to a system in which mining entities could be required to periodically participate in third-party audits by suitably qualified and experienced auditors, the results of which would be submitted to the government (and potentially made available to the public). There is nothing in current legislation to say that the full burden of checking on the outcomes of implementing resource projects needs to fall to government agencies.

The absence of an active and transparent system of industry surveillance undermines public confidence and leads to exceedingly cumbersome systems for environmental assessment and approvals, as stakeholders seek to use the approvals’ system to frustrate development or at the least to impose detailed and prescriptive approval conditions that will somehow ensure good environmental behaviour even in the absence of any post-approval regulatory oversight.

In order for a system of compliance and performance checks to be effective, there must be a set of agreed measures by which to judge what constitutes an acceptable outcome. At present, there is a conspicuous lack of meaningful, measureable sustainability indicators relevant to the resource sector. The development and promulgation of environmental standards is not an easy task, as it involves complex technical considerations and must take into account a range of cultural and political factors. There is nonetheless a pressing need for government to formalise a clear set of standards to guide discussions of what constitutes an acceptable level of social and biophysical impact from mining. In the absence of such standards, the resource industry will be increasingly exposed to the use of alternative systems, such as the Mining Warden’s Court, to adjudicate on what constitutes appropriate development and reasonable impact at a particular location. Although the EPA has recently introduced new methods to facilitate public participation in environmental impact assessment decisions, there is not yet clear evidence that the general public has embraced this consultation approach as one that offers stakeholders a substantive level of participation.

Summary and Conclusions

The mining and petroleum sectors dominate the WA economy and it is often assumed that the environmental impacts of the resource sector are commensurately great. This is not a proposition that can be tested under current administrative arrangements. The application of WA’s established and comprehensive legal framework for regulating the resource sector has been uneven, focussing on environmental impact assessments, while neglecting necessary work on developing standards and implementing periodic checks of the effectiveness of regulatory systems. The lack of transparent auditing of the resource sector against an agreed set of impact criteria has undermined public confidence in the regulatory system and hinders the development of an objective and evidence-based understanding of cumulative impacts (see Chaps. 12 and 13).

The resource sector is literally the juggernaut that carries the businesses that maintain the WA economy. There are ample regulatory powers to control the mining sector. Whether or not the environmental and social impacts of mining will be regulated in a way that is fair and appropriate relies on the way in which regulatory authority is applied. At present, there are significant imbalances in the system of environmental administration, to the detriment of both the industry and the environment.