Mine closure projects are complex, costly and expose owners to significant downsides if they are delivered poorly. Owners face potential reputational damage, including among key stakeholders who they may need to engage with in relation to other operational assets. Notwithstanding these potential downsides, a successful closure and repurposing provides an opportunity for a mine owner to leave a positive legacy in the mine's local community and to enhance their reputation with regulators.
Repurposing is critical because it defines the legacy left by an organisation that has usually operated in an area for many years, even decades.”
When done well, repurposing provides an opportunity for the legacy to be positive for the local communities and other stakeholders, whether that be in the form of social benefits, such as providing lakes for recreational activities, or economically-productive land uses like agriculture or pumped hydro.
Given the importance of this topic, Simon Ball spoke in the session Putting the purpose in repurpose – how can we improve post-mining legacies? as part of MinterEllison's role as Legal Partner for IMARC 2022. In this article, he reflects on some key points raised during that discussion. The discussion highlighted the aspects mining companies need to navigate to achieve desirable closure outcomes and leave a positive legacy for the communities in which they've been operating:
- Adopt an iterative and ongoing approach to planning for closure and post-mining land use
- Allow additional time to pursue opportunities for post-mining land use
- Communicate closure mechanisms to raise community confidence in closure outcomes
- Be prepared to address varying requirements across Government
Adopt an iterative and ongoing approach to planning for closure and post-mining land use
Many of the legal frameworks that govern mine closure are designed to establish new mines. This leads to locking in closure outcomes early in the mine planning process. The challenges this can create when the time for mine closure arrives include:
- closure typically involves a broad range of stakeholders with views about the desired closure outcomes, all of which may not have been involved in the process due to the planning framework in place at the time of mine approval
- studies may have only just been completed that now demonstrate that the intended closure outcome envisaged when the mine was approved is no longer achievable
- community expectations for closure may have moved on from the outcome locked in at the planning stage 30 years earlier, and plans no longer reflect what they desire.
As a result, mining companies can be left having to implement outdated rehabilitation outcomes that may have been decided many years earlier, and are no longer appropriate, but are at least approved and achievable. Where possible, mining companies can seek to overcome these challenges by adopting an iterative approach to closure planning throughout the lifecycle of a mine:
A successful re-purposing begins by considering and planning for sustainable post-mining land uses from the earliest stages of mine planning. It is also an iterative activity that continues throughout the mining lifecycle, adapting as further information, for example about community expectations, is gathered.”
Allow additional time to pursue opportunities for post mining land use
While there are opportunities for productive post-mining land uses, the timeframes associated with the additional approvals required for those uses may reduce the attractiveness of those sites, compared to other locations for potential projects.
For example, brownfield mines often provide the perfect location for renewable energy projects such as pumped hydro and solar. Repurposing a mine site may require approvals in addition to those for the mine closure under the applicable Development Consent.
Where the market window for some repurposing outcomes closes quickly, parties need to be prepared for a scenario where the planning system may struggle to deliver the closure outcomes quickly enough to take advantage of that repurposing opportunity.
Communicate closure mechanisms to raise community confidence in closure outcomes
A key element supporting community confidence in closure outcomes is clarity around the responsibilities for addressing any adverse impacts that may occur. This clarity depends on the stage of rehabilitation. In a progressive closure situation where the mine is operating, the mining lease will still be in place, making it much simpler for the community to understand who is liable for any adverse impact. After the mine has closed and the former mine owner has relinquished the mining tenement, it becomes more difficult for the community to understand where liability lies if there is an unexpected adverse impact.
While there is no shortage of legislated obligations addressing adverse impacts, they are dispersed across different legislation and regulations. For example, in New South Wales, the Contaminated Land Management Act 1997 enables a party to take action against the past contaminator. There are also provisions in the Mining Act 1992 allowing notice to be served on past tenement holders. This fragmentation of obligations across legislative instruments makes it difficult for the community to get a clear view of which parties are responsible, and who will take the lead role in rectifying a contamination issue.
There is an opportunity for mine owners to give the community confidence in the delivery of the closure outcome they were promised by clearly presenting the mechanisms which exist under legislation, how they will operate, and who will enforce them.
Navigating complexities to take advantage of the opportunities
The IMARC session reinforced the opportunities that can arise from post-mining uses, and some of the innovative ways old mines can be repurposed. For a mine owner or subsequent operator to realise these opportunities, there are several complexities and challenges to navigate.