The Strategic Cropping Land Act 2011 (Qld) (SCL Act) has made several major changes to Queensland's regulatory regime which resources proponents in particular should be aware of. Under the SCL Act, the identification and management of Queensland's 'Strategic Cropping Land' (SCL) imposes an additional step for new resource tenement / EA application processes, and applications to amend those authorities.
This alert:
- clarifies the transitional arrangements for the SCL Act and the project categories which are subject to these arrangements; and
- discusses several key aspects of the Queensland SCL regime around the identification of SCL land, permission for development on SCL land and the assessment process for temporary/low risk development activities.
The transitional provisions
The Department of Environment and Resource Management (DERM) has released a Guide to transitional provisions for resource authority applications: Strategic Cropping Land Act 2011 (Guide).
The SCL Act generally applies for an environmental authority (EA) application or a resource authority application made, but not decided, before the commencement. However, the SCL Act provides 'transitional provisions' for certain applications that were undecided when the SCL Act commenced on 30 January 2012.
Where transitional provisions do not apply, resource projects must comply with the SCL Act requirements and may be either conditioned or even prevented from proceeding where they impact Queensland's 'Strategic Cropping Land' (SCL). Regardless of whether transitional arrangements apply, a fresh application to amend existing authorities will trigger the need for SCL assessment.
The Guide outlines DERM's understanding of the application and eligibility requirements of the transitional provisions under Chapter 9 of the SCL Act to proposed resources development projects.
Projects subject to transitional arrangements
The Guide identifies categories of projects that are subject to the transitional arrangements (ie. the SCL Act does not apply):
Category 1 EA issued before 30 January 2012 (regardless of whether the resource authority was issued before 30 January 2012)
Category 2 Environmental impact statement (EIS) stage completed on or before 31 May 2011
Category 3 Draft EA given on or before 31 May 2011
The SCL Act applies to applications within categories 4 (A, B and C) and 5, but the application is excluded from the 'permanent impact' restriction (ie. that an EA for a resource activity can only be issued in 'exceptional circumstances' if land is identified permanently impacted land in a protection area):
Category 4A For an EA and its related mining lease (ML) application, on or before 31 May 2011:
- there was a finalised EIS terms of reference (TOR) and
- a certificate of application (CoA) had been issued for the ML application.
Category 4B For an EA and its related petroleum lease (PL) application, on or before 31 May 2011:
- there was a finalised EIS TOR and
- the PL application complied with the requirements under the relevant petroleum legislation
Category 4C For an EA and its related PL application:
- on or before 31 May 2011there was a finalised EIS TOR for an area that included the area of an authority to prospect (ATP) and
- the area subject to the PL application includes the ATP's area.
Category 5 Expansion of existing ML operations, where:
- the area of a ML and an Exploration Permit (EP) or Mineral Development Licence (MDL) formed a contiguous area on 23 August 2010 and
- on or before 23 August 2012:
- a ML application was made for any area of the EP or MDL and
- a CoA was issued for the ML application, and
- on 23 August 2010, the applicant was:
- the holder of the ML and the holder of the EP or MDL, or in a joint venture or partnership with, or a subsidiary of, the holder or
- the holder of the EP or MDL, and in a joint venture or partnership with, or a subsidiary of, the holder of the ML.
The Guide's notes on categories 4A, 4B and 4C should also be considered but they are not reproduced here.
No development in Protection Areas that will permanently impact on SCL
The SCL Act distinguishes between SCL located in 'Protection Areas' and SCL located in the broader 'Management Area'. See http://www.derm.qld.gov.au/land/planning/strategic-cropping/mapping.html for maps of these areas.
SCL within a Protection Area is afforded the highest protection by the SCL Act. The identified Protection Areas cover a total of 4.78 million hectares and include large parts of the Bowen and Surat Basins. The Management Area covers an area of approximately 37.2 million hectares.
In the Protection Areas, any development proposing to permanently impact confirmed SCL (which includes extraction activities that endure for longer than 50 years or where the land will not be able to be restored to its former SCL status) will not be permitted unless 'exceptional circumstances' exist.
It is expected that many resource proponents will have difficulty satisfying the exceptional circumstance criteria, (particularly the first) which require that:
- the resource is not found at an alternative site in Queensland which is not on SCL, and
- the development provides a significant community benefit to the state including a social or community service, or an economic benefit.
Developments may proceed if SCL impacts are avoided, minimised and mitigated
Any development that will temporarily or permanently impact on confirmed SCL in a Management Area, and any development that will have a temporary impact only (or which satisfy the exceptional circumstances criteria) in Protection Areas may be allowed to proceed, provided:
- any impacts on SCL are avoided and minimised, and
- if impacts can not be avoided and minimised, they are mitigated as far as possible.
SCL conditions can be imposed on either the resource tenement or the EA.
The mitigation regime established under the SCL Act is potentially costly. If impacts on SCL require mitigation and a financial contribution is made, the contribution is based on the area of land and its value prescribed under the Strategic Cropping Land Regulation 2011 (Qld) —currently between $4,750 per hectare and $25,000 per hectare.
The financial contribution can be made to the prescribed SCL mitigation fund. A resources proponent can propose its own mitigation measures, which must meet certain requirements set out in the legislation.
Resources proponents and landowners can challenge the existence of SCL
DERM has released a series of trigger maps which identify land in the Protection Areas and Management Area that is 'potential SCL'. If the relevant land is not indicated as potential SCL on a trigger map, no further SCL assessment is required. However, landowners in the Management Area or a Protection Area can ask DERM to determine their land is SCL even if it does not appear on the trigger maps as potential SCL.
Accepting potential SCL as SCL
Where land is identified as potential SCL, project proponents can accept this and design the project accordingly:
- for the Management Area, to avoid and minimise to the maximum extent possible, any temporary or permanent impacts on SCL and to mitigate any permanent impacts;
- for a Protection Area, to avoid and minimise to the maximum extent possible, any temporary impacts on SCL (given permanent impacts are only allowed in exceptional circumstances).
The project proponent must submit an SCL compliance certificate application or an SCL protection decision application before development will be approved.
For exploration activities under an EP or ATP, it is possible to apply for the SCL quarantine condition which excludes land that is SCL or potential SCL from the exploration area.
Challenging the existence of SCL
If the proponent does not accept that the potential SCL is SCL, further on-ground assessment against eight specified criteria (including slope, rockiness, soil pH etc.) is required to confirm whether or not the land is SCL.
In the Management Area, in addition to the eight specified criteria, the land must also have the required cropping history. Essentially this means that, from 1 January 1999 to 31 December 2010:
- the land must have been cropped or cultivated at least three times; or
- perennial crops or timber plantations existed on the property for periods totalling three years or more.
In these circumstances, the project proponent can apply to DERM to confirm whether or not the land meets the SCL criteria and/or history of cropping test. The application (SCL validation) is subject to public notification requirements. It is therefore an additional forum for challenging proposed resources projects ahead of the standard approvals process, and will increase the time required for project approvals.
As areas are confirmed as SCL (or non SCL), the boundaries of validated SCL will be entered into a register which will override the trigger map.
Simplified assessment process for temporary / low risk activities
Certain resources activities that have a temporary impact and pose a relatively low risk of adversely impacting SCL may be able to be assessed against the standard conditions code rather than be subject to full SCL development assessment.
These include construction of access tracks, underground pipes, coal seam gas wells and certain exploration activities, although applications must still be assessed to ensure compliance with the code and will require a compliance certificate to proceed.