Mineral Resources (Sustainable Development) Amendment Act 2014

Authorised by the Chief Parliamentary Counsel Authorised Version i Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Principal Act 2 4 Definitions 2 5 Minister may exempt land from exploration or mining licence 3 6 Mining licences 3 7 Application for a licence 4 8 Grant or refusal of licence 4 9 Grant of licence 5 10 New section 26AAA inserted 6 26AAA Transfer of consents and approvals to undertake work 6 11 Variation of licence 6 12 Cancellation of licence 7 13 Authority to enter land 7 14 Work must be approved 7 15 New section 40 substituted 7 40 Work Plan 7 16 Work plan requirements—subsequent amendment of section 40 9 17 New section 40A inserted 11 40A Work plan—approval 11 18 Section 41 and 41AA substituted and new section 41AAB inserted 12 41 Application for variation of work plan 12 41AA Department Head may direct licensee to lodge application for variation of work plan 13 41AAB Approval of variation of work plan 14 19 Licensee to submit area work plan schedule 15 20 Variation application must be made if mine is declared 15 21 Commencement of work under mining licence or prospecting licence 16 22 Commencement of work under exploration licence or retention licence 18 23 Prohibition of work near dwellings and certain places and sites 19 -- 1 of 43 -- Section Page ii Authorised by the Chief Parliamentary Counsel 24 Certain exploration and mining work complies with section 45 20 25 Minister may authorise work near dwelling house 20 26 New consent or authorisation for certain work plan variations 20 27 Work plan 21 28 Section 77H substituted and new sections 77HA and 77HB inserted 22 77H Application for variation of work plan 22 77HA Department Head may direct holder to lodge application for variation of work plan 22 77HB Approval of variation of work plan 23 29 New section 77HC inserted 24 77HC Planning permits not required for some work variations 24 30 Variation application must be made if quarry is declared 25 31 Cancellation of an extractive industry work authority 25 32 Review of certain decisions about work plans and extractive industry authorities 25 33 Department Head may endorse work plan or variation to approved work plan 26 34 Department Head must give work plan or variation application to referral authority 26 35 Review by Tribunal 27 36 New Part 6C inserted 27 PART 6C—REVIEW 27 77TI Review by Tribunal 27 77TJ Application for review 29 37 Definitions 30 38 Rehabilitation bond 30 39 Code of Practice 31 40 New section 139 inserted 31 139 Savings and transitional provisions— 2014 amendments 31 41 New Schedule 4A inserted 31 SCHEDULE 4A—Low Impact Exploration 31 42 New Schedule 9 inserted 38 SCHEDULE 9—Savings and transitional provisions arising from the Mineral Resources (Sustainable Development) Amendment Act 2014 38 1 Definition 38 2 Grant or refusal of licence 38 3 Work plans 38 4 Endorsement of work plan or variation to approved work plan 39 -- 2 of 43 -- Section Page iii Authorised by the Chief Parliamentary Counsel 43 Repeal of amending Act 39 ═══════════════ ENDNOTES 40 -- 3 of 43 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Mineral Resources (Sustainable Development) Amendment Act 2014 † No. 10 of 2014 [Assented to 25 February 2014] The Parliament of Victoria enacts: 1 Purpose The purpose of this Act is to amend the Mineral Resources (Sustainable Development) Act 1990 to— (a) insert a new definition of low impact exploration; and (b) amend various licence provisions to provide consistent processes for different licences under the Act; and Victoria -- 4 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 2 Authorised by the Chief Parliamentary Counsel (c) amend the provisions relating to work plans to further manage risk and the achievement of socially, environmentally and economically sound outcomes; and (d) make other minor and miscellaneous amendments. 2 Commencement (1) Subject to subsections (2) and (3), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act (other than section 4(3), 7, 16 or 27) does not come into operation before 1 November 2014, it comes into operation on that day. (3) If section 4(3), 7, 16 or 27 does not come into operation before 31 December 2016, it comes into operation on that day. 3 Principal Act In this Act the Mineral Resources (Sustainable Development) Act 1990 is called the Principal Act. 4 Definitions (1) In section 4(1) of the Principal Act, for the definition of low impact exploration substitute— "low impact exploration has the meaning set out in Schedule 4A;". s. 2 See: Act No. 92/1990. Reprint No. 9 as at 1 December 2012 and amending Act No. 84/2012. LawToday: www. legislation. vic.gov.au -- 5 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 3 Authorised by the Chief Parliamentary Counsel (2) In section 4(1) of the Principal Act, in the definition of community engagement plan, for "40(3)(c)" substitute "40(3)(d)". (3) In section 4(1) of the Principal Act, in the definition of community engagement plan, for "77G(3)(c)" substitute "77G(3)(e)". (4) In section 4(1) of the Principal Act, the definition of work authority is repealed. (5) In section 4(1) of the Principal Act, in the definition of work plan, after "section 77G" insert "or varied under section 41AAB or 77HB". 5 Minister may exempt land from exploration or mining licence (1) Insert the following heading to section 7 of the Principal Act— "Minister may exempt land from being subject to a licence". (2) For section 7(3) of the Principal Act substitute— "(3) In deciding whether to grant an exemption, the Minister must take into account— (a) the known or potential value of the mineral resources and the impact that the proposed exemption may have on that value; and (b) the social and economic implications of the decision.". 6 Mining licences In section 14(1) of the Principal Act, for "who obtains a work authority is" substitute "is, subject to section 42(1),". s. 5 -- 6 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 4 Authorised by the Chief Parliamentary Counsel 7 Application for a licence After section 15(1A) of the Principal Act insert— "(1AB) Subsection (1A)(h) and (i) do not apply if— (a) the person who applied for the licence is the holder of an exploration licence, mining licence or retention licence covering land that surrounds the area of the application; and (b) the land was previously covered by— (i) a mining licence not exceeding 5 hectares; or (ii) a prospecting licence; or (iii) an application for a prospecting licence.". 8 Grant or refusal of licence (1) For section 25(2) of the Principal Act substitute— "(2) Otherwise, the Minister may grant or refuse a licence, after considering any objections made under section 24— (a) in the case of an exploration licence or a prospecting licence, within 90 days of the application being accepted in accordance with section 15; or (b) in the case of a retention licence or mining licence, within 120 days of the application being accepted in accordance with section 15.". s. 7 -- 7 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 5 Authorised by the Chief Parliamentary Counsel (2) After section 25(2) of the Principal Act insert— "(2A) For the purposes of subsection (2), the calculation of the number of days in which a licence may be granted or refused does not include any day that occurs within any of the following periods— (a) from the time that the Minister asks the applicant under section 15(7) to provide additional information until that information is provided; (b) from the time that a matter relevant to the application is referred for investigation to the mining warden under section 25A, 97 or 98 until that investigation is completed; (c) in the case of an application involving Crown land, any time taken by the applicant to comply with the requirements of the Native Title Act 1993 of the Commonwealth or the Traditional Owner Settlement Act 2010.". (3) The note at the foot of section 25 of the Principal Act is repealed. 9 Grant of licence After section 26(2) of the Principal Act insert— "(2A) If, because of section 40(2)(b) or (c), a person holding a mining or prospecting licence is not required to lodge a work plan, the Minister may impose a condition requiring compliance with a Code of Practice on that mining licence or prospecting licence.". s. 9 -- 8 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 6 Authorised by the Chief Parliamentary Counsel 10 New section 26AAA inserted After section 26 of the Principal Act insert— "26AAA Transfer of consents and approvals to undertake work The Department Head may approve the transfer of an approved work plan, rehabilitation bond or any other consent or approval in relation to a licence under this Act to any other licence held by the same licensee.". 11 Variation of licence (1) In section 34(2)(cb) of the Principal Act, for "under section 40(6) or 41(5)" substitute "or of a variation of a work plan under section 40A or 41AAB". (2) After section 34(2) of the Principal Act insert— "(2A) The Minister may also act under subsection (1) to make compliance with the Code of Practice a condition of— (a) a mining licence that— (i) covers an area of 5 hectares or less; and (ii) does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments; or (b) a prospecting licence that does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments.". s. 10 -- 9 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 7 Authorised by the Chief Parliamentary Counsel 12 Cancellation of licence (1) For section 38(1B)(a) of the Principal Act substitute— "(a) in the case of a mining licence, if the licensee has not lodged a work plan within 12 months (or any longer period allowed by the Minister) after the licence was granted; or". (2) In section 38(2A) of the Principal Act— (a) for "work authority" (wherever occurring) substitute "work plan"; (b) for "granted" substitute "approved"; (c) for "grant" (wherever occurring) substitute "approval". 13 Authority to enter land For section 38AB(3) of the Principal Act substitute— "(3) An authority to enter land expires if the licence ceases to have effect.". 14 Work must be approved Section 39(3) and (4) of the Principal Act are repealed. 15 New section 40 substituted For section 40 of the Principal Act substitute— "40 Work Plan (1) A licensee who proposes to do work under the licence must lodge a work plan with the Department Head. (2) Subsection (1) does not apply to— (a) a licensee who proposes to carry out only low impact exploration work; or s. 12 -- 10 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 8 Authorised by the Chief Parliamentary Counsel (b) a licensee who holds a mining licence that— (i) covers an area of 5 hectares or less; and (ii) does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments; or (c) a licensee who holds a prospecting licence that does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments— unless the Minister declares, in writing, that the licensee must lodge a work plan. (3) A work plan must contain— (a) the prescribed information; and (b) if the licence is a mining licence relating to a declared mine, in addition to the prescribed information referred to in paragraph (a), prescribed mine stability requirements and processes; and (c) if the licence is a mining licence or a prospecting licence under which mining activities are proposed to be carried out, a rehabilitation plan for the area of land covered by the licence; and (d) if the licence is a mining licence or prospecting licence, in relation to the mining activities proposed to be carried out under the licence, a plan for consulting with the community prepared in accordance with the regulations and any guidelines issued s. 15 -- 11 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 9 Authorised by the Chief Parliamentary Counsel by the Minister relating to such plans (a community engagement plan). (4) A specified work plan that is lodged under subsection (1) must be statutorily endorsed. (5) In the case of a mining licence, if any part of the land relating to the work plan is Crown land, the Department Head must without delay lodge a copy of the work plan with the Crown land Minister. (6) Subsection (5) does not apply if the only work set out in the work plan that is proposed to be done on the Crown land is exploration work. (7) Within 28 days after a copy of the work plan is lodged with the Crown land Minister, or any longer period allowed by the Minister, the Crown land Minister— (a) must give comments to the Minister on the rehabilitation plan included in the work plan; and (b) may recommend changes to be made to the work plan before it is approved or conditions to which an approval should be made subject.". 16 Work plan requirements—subsequent amendment of section 40 For section 40(3) of the Principal Act substitute— "(3) A work plan must— (a) be appropriate in relation to the nature and scale of the work proposed to be carried out; and s. 16 -- 12 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 10 Authorised by the Chief Parliamentary Counsel (b) identify the risks that the work may pose to the environment, to any member of the public, or to land or property in the vicinity of the work; and (c) specify what the licensee will do to eliminate or minimise those risks as far as reasonably practicable; and (d) if the licence is a mining licence or prospecting licence, in relation to the mining activities proposed to be carried out under the licence, include a plan for consulting with the community that demonstrates that the licence holder will use appropriate and effective measures to consult with the community throughout the period of the licence and is prepared in accordance with the regulations and any guidelines issued by the Minister relating to such plans (a community engagement plan); and (e) if the licence is a mining licence or a prospecting licence under which mining activities are proposed to be carried out, include a rehabilitation plan for the land proposed to be covered by the licence; and (f) if the licence is a mining licence relating to a declared mine, contain the prescribed mine stability requirements and processes; and (g) contain any other matters required by the regulations.". s. 16 -- 13 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 11 Authorised by the Chief Parliamentary Counsel 17 New section 40A inserted After section 40 of the Principal Act insert— "40A Work plan—approval (1) The Department Head must— (a) approve the work plan with or without conditions; or (b) require the changes to the rehabilitation plan or the work plan specified in a notice to the licensee to be made before the plan will be approved; or (c) refuse to approve the work plan. (2) The Department Head must approve the work plan, require changes to the rehabilitation plan or work plan, or refuse to approve the work plan under subsection (1), within 28 days after the last of any of the following events that are applicable occurs— (a) the licensee notifying the Department Head that all required planning approvals have been granted; (b) the Minister administering the Environment Effects Act 1978 submitting an assessment to the Minister under section 42(7); (c) the granting or refusal of any application under section 26B relating to the licence; (d) the Minister notifying the Department Head that he or she has considered any comments received under section 41A(2); s. 17 -- 14 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 12 Authorised by the Chief Parliamentary Counsel (e) the Crown land Minister giving the Minister comments under section 40(7); (f) the lodging of the work plan. (3) If the Minister administering the Environment Effects Act 1978 submits an assessment under section 42(7), the Department Head must give a copy of the work plan to that Minister at least 10 days before approving the plan. (4) The Department Head must— (a) notify the licensee of his or her decision on the work plan; and (b) give the licensee a statement of reasons for the decision.". 18 Section 41 and 41AA substituted and new section 41AAB inserted For sections 41 and 41AA of the Principal Act substitute— "41 Application for variation of work plan (1) The holder of a licence who— (a) proposes to vary an approved work plan; or (b) is directed by the Department Head under section 41AA to lodge an application for approval of a variation of a work plan— must lodge an application for approval of the variation with the Department Head. (2) An application for approval of a variation must contain the prescribed information. (3) A proposed specified variation that is the subject of an application must be statutorily endorsed. s. 18 -- 15 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 13 Authorised by the Chief Parliamentary Counsel (4) In the case of a mining licence, if any part of the land relating to the proposed variation of the work plan is Crown land, the Department Head must without delay lodge a copy of the application with the Crown land Minister. (5) Subsection (4) does not apply if the only work set out in the work plan that is proposed to be done on the Crown land is exploration work. (6) Within 28 days after the application is lodged with the Crown land Minister under subsection (4), or any longer period allowed by the Minister, the Crown land Minister— (a) must give comments to the Minister on the rehabilitation plan included in the work plan if affected by the proposed variation; and (b) may recommend changes to be made to the proposed variation before it is approved or conditions to which an approval should be made subject. 41AA Department Head may direct licensee to lodge application for variation of work plan (1) The Department Head may, on his or her own initiative, determine that an approved work plan be varied. (2) On making a determination, the Department Head must give the licensee written notice of the proposed variation, and the reasons for it, and give the licensee an opportunity to comment on the proposal. (3) After considering any comments made by the licensee, the Department Head may direct the licensee to lodge an application for approval of the variation. s. 18 -- 16 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 14 Authorised by the Chief Parliamentary Counsel 41AAB Approval of variation of work plan (1) On application by a licensee under section 41(1) or 41AE for approval of the variation of a work plan, the Department Head must— (a) approve the variation with or without conditions; or (b) require the changes specified in a notice to the licensee to be made before the variation will be approved; or (c) refuse to approve the variation. (2) The Department Head must approve, require changes, or refuse to approve a variation under subsection (1), within 28 days after the last of any of the following events that are applicable occurs— (a) the licensee notifying the Department Head that all required planning approvals have been granted; (b) the Minister administering the Environment Effects Act 1978 submitting an assessment to the Minister under section 42(7) or section 42A; (c) the granting or refusal of any application under section 26B relating to the licence; (d) the Minister notifying the Department Head that he or she has considered any comments received under section 41A(2); s. 18 -- 17 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 15 Authorised by the Chief Parliamentary Counsel (e) the Crown land Minister giving the Minister comments under section 41(6); (f) the lodging of the application for approval. (3) Once the Department Head has decided to approve a variation, the approved work plan for the licence is the work plan as amended by that variation. (4) If the Minister administering the Environment Effects Act 1978 submits an assessment under section 42(7) or 42A, the Department Head must give a copy of the proposed variation to that Minister at least 10 days before approving the variation. (5) The Department Head must— (a) notify the licensee of his or her decision on the application; and (b) give the licensee a statement of reasons for the decision.". 19 Licensee to submit area work plan schedule Section 41AD(4)(a) of the Principal Act is repealed. 20 Variation application must be made if mine is declared In section 41AE(3) of the Principal Act, for "Sections 41(2) to (9)" substitute "Section 41(2) to (6)". s. 19 -- 18 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 16 Authorised by the Chief Parliamentary Counsel 21 Commencement of work under mining licence or prospecting licence (1) For section 42(1), (2), (2A), (3), (4) and (5) of the Principal Act substitute— "(1) The holder of a mining licence or prospecting licence must not carry out any work on the land covered by the licence unless— (a) the licensee has an approved work plan if required under this Act; and Note Section 40 contains the requirements for a work plan. (b) the licensee has entered into a rehabilitation bond in accordance with section 80; and (c) the licensee has obtained all the necessary consents and other authorities required by or under this or any other Act; and (d) the licensee has complied with any condition imposed by the Minister under section 26(2)(d) to provide an environmental offset; and (e) the licensee has obtained the insurance required under section 39(5); and (f) any consent under section 45 or authorisation under section 46 has been registered; and (g) the licensee has given 7 days notice to— (i) the Chief Inspector; and s. 21 -- 19 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 17 Authorised by the Chief Parliamentary Counsel (ii) the owners and occupiers of the land affected— of the licensee's intention to commence work; and (h) if the land affected is private land— (i) the licensee has obtained the written consent of the owners and occupiers of the land affected; or (ii) the licensee has made and registered compensation agreements with those owners and occupiers; or (iii) the amount of compensation payable to those owners and occupiers has been determined under Part 8; or (iv) the licensee has purchased the land affected. Penalty: In the case of a corporation, 1000 penalty units; In any other case, 200 penalty units. Default Penalty: In the case of a corporation, 20 penalty units; In any other case, 10 penalty units. (2) Subsection (1)(h) does not apply if it is waived by the Department Head under subsection (3). s. 21 -- 20 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 18 Authorised by the Chief Parliamentary Counsel (3) If the land affected is private land and the licensee has been unable to determine the name and address of the owners and occupiers of the land, the licensee may apply to the Department Head to have the requirement specified by subsection (1)(h) waived. (4) The Department Head may grant such an application if, in his or her opinion, the licensee has made all reasonable efforts to determine the name and address of the owners and occupiers of the land. (5) Before waiving the requirement, the Department Head may require the licensee— (a) to advertise the licensee's intention to start work on the land affected in a specified edition of a newspaper circulating generally in the area in which the land is situated; (b) to post a notice on the land affected stating that the licensee intends to start work on that land.". (2) In section 42(7) of the Principal Act— (a) in paragraph (b), for "Minister; and" substitute "Minister."; (b) paragraph (c) is repealed. 22 Commencement of work under exploration licence or retention licence (1) For section 43(1)(ea) of the Principal Act substitute— "(ea) the licensee has obtained the written consent or informed verbal consent of the owners and occupiers of the land affected, if the land affected is private land and the work being s. 22 -- 21 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 19 Authorised by the Chief Parliamentary Counsel carried out involves exploring for minerals on land but does not involve— (i) the use of equipment (other than non- mechanical hand tools) to excavate on the land; or (ii) the use of explosives on the land; or (iii) removing or damaging any tree or shrub on the land.". (2) In section 43(1A) of the Principal Act, for ", (1)(b), (1)(ba), (1)(ca) and (1)(d)" substitute "and (1)(ba)". (3) After section 43(1A) of the Principal Act insert— "(1B) Subsection (1)(a), (ab), (b), (ba), (ca) and (d) do not apply to a licensee if the work being carried out involves exploring for minerals on land but does not involve— (a) the use of equipment (other than non- mechanical hand tools) to excavate on the land; or (b) the use of explosives on the land; or (c) removing or damaging any tree or shrub on the land.". 23 Prohibition of work near dwellings and certain places and sites (1) Section 45(1)(a)(xi), (1)(a)(xii), (1)(a)(xiii), (4), (4A) and (4B) of the Principal Act are repealed. (2) In section 45(5) of the Principal Act omit ", or a person or a body that consents under subsection (4), (4A) or (4B),". s. 23 -- 22 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 20 Authorised by the Chief Parliamentary Counsel (3) In section 45(7) of the Principal Act, in the definition of work, for "but does not include the carrying out of low impact exploration." substitute— "but does not include exploring for minerals on land— (k) without using equipment (other than non- mechanical hand tools) to excavate on the land; and (l) without using explosives on the land; and (m) without removing or damaging any tree or shrub on the land.". 24 Certain exploration and mining work complies with section 45 In section 45A(1) of the Principal Act— (a) in paragraph (a)(i) omit ", and, in the case of a mining licence, a work authority,"; (b) in paragraph (b) omit "and, in the case of a mining licence the work authority,". 25 Minister may authorise work near dwelling house In section 46(3) of the Principal Act omit ", or with the consent of a person or body under section 45(4),". 26 New consent or authorisation for certain work plan variations (1) In section 47(1) and (2) of the Principal Act omit "or 41AA". (2) In section 47(1)(b) of the Principal Act— (a) omit ", (xi) or (xii)"; (b) for "work; and" substitute "work.". (3) Section 47(1)(c) of the Principal Act is repealed. s. 24 -- 23 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 21 Authorised by the Chief Parliamentary Counsel 27 Work plan (1) For section 77G(3) of the Principal Act substitute— "(3) A work plan must— (a) be appropriate in relation to the nature and scale of the extractive industry activities proposed to be carried out; and (b) identify the risks that the extractive industry activities may pose to the environment, to any member of the public, or to land or property in the vicinity of the activities; and (c) specify what the person who proposes to apply for an extractive industry work authority will do to eliminate or minimise those risks as far as reasonably practicable; and (d) include a rehabilitation plan for the land proposed to be covered by the work authority; and (e) include a plan for consulting with the community that demonstrates that the extractive industry authority holder will use appropriate and effective measures to consult with the community throughout the period of the extractive industry work authority and is prepared in accordance with the regulations and any guidelines issued by the Minister relating to such plans (a community engagement plan); and (f) if the extractive industry work authority relates to a declared quarry, contain the prescribed mine stability requirements and processes; and s. 27 -- 24 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 22 Authorised by the Chief Parliamentary Counsel (g) contain any other matters required by the regulations.". (2) In section 77G(4) of the Principal Act for "and notify the person" substitute "and notify, and give a statement of reasons for the decision to, the person". 28 Section 77H substituted and new sections 77HA and 77HB inserted For section 77H of the Principal Act substitute— "77H Application for variation of work plan (1) The holder of an extractive industry work authority who— (a) proposes to vary an approved work plan; or (b) is directed by the Department Head under section 77HA to lodge an application for approval of a variation of a work plan— must lodge an application for approval of the variation with the Department Head. (2) An application for approval of a variation must contain the prescribed information. (3) A proposed specified variation that is the subject of an application must be statutorily endorsed. 77HA Department Head may direct holder to lodge application for variation of work plan (1) The Department Head may, on his or her own initiative, determine that an approved work plan be varied. s. 28 -- 25 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 23 Authorised by the Chief Parliamentary Counsel (2) On making a determination, the Department Head must give the holder of the extractive industry work authority written notice of the proposed variation, and the reasons for it, and give the holder an opportunity to comment on the proposal. (3) After considering any comments made by the holder of the work authority, the Department Head may direct the holder to lodge an application for approval of the variation. 77HB Approval of variation of work plan (1) On application by a holder of an extractive industry work authority under section 77H(1) or 77KB for approval of the variation of a work plan, the Department Head must, within 28 days after the application is lodged— (a) approve the variation with or without conditions; or (b) require the changes specified in a notice to the licensee to be made before the variation will be approved; or (c) refuse to approve the variation. (2) The Department Head must not approve a variation of a work plan unless he or she has consulted the municipal council in whose municipal district the land is situated. (3) Once the Department Head has decided to approve a variation, the approved work plan for the work authority is the work plan as amended by that variation. s. 28 -- 26 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 24 Authorised by the Chief Parliamentary Counsel (4) The Department Head must— (a) notify the holder of the work authority of his or her decision on the application; and (b) give the holder of the work authority a statement of reasons for the decision.". 29 New section 77HC inserted Before section 77I of the Principal Act insert— "77HC Planning permits not required for some work variations (1) This section applies if— (a) an extractive industry work authority holder proposes to vary an approved work plan that was approved in respect of work for which an Environment Effects Statement was prepared and assessed under section 77T; and (b) a permit is required to be obtained under a planning scheme for the new work that it is proposed to do. (2) The extractive industry work authority holder is not required to obtain a permit for that work only if— (a) the Minister, after consultation with the Minister administering the Environment Effects Act 1978, is satisfied that the new work will not cause any significant additional environmental impacts; and (b) the Department Head approves the variation. s. 29 -- 27 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 25 Authorised by the Chief Parliamentary Counsel (3) If the Minister is not satisfied that the new work will not cause any significant additional environmental impacts, the holder of an extractive industry work authority is still not required to obtain a permit for that work if— (a) the Minister administering the Environment Effects Act 1978 directs that a report be prepared on the additional environmental impacts that the new work may have; and (b) the report is made available for public inspection and comment for at least 28 days; and (c) after considering any comments made during that period, that Minister submits an assessment of the report to the Minister; and (d) the variation, in the form that it is approved by the Department Head, substantially complies with any requirements recommended by that assessment.". 30 Variation application must be made if quarry is declared In section 77KB(3) of the Principal Act, for "Section 77H(2) to (8)" substitute "Section 77H(2) and (3)". 31 Cancellation of an extractive industry work authority In section 77O(1)(a)(iv) of the Principal Act, for "section 77H" substitute "section 77HB". 32 Review of certain decisions about work plans and extractive industry authorities Section 77P of the Principal Act is repealed. s. 30 -- 28 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 26 Authorised by the Chief Parliamentary Counsel 33 Department Head may endorse work plan or variation to approved work plan (1) For section 77TD(1) of the Principal Act substitute— "(1) Subject to this Part, on receiving a work plan or a variation to an approved work plan, the Department Head must, by written notice within 28 days— (a) ask for changes to be made to the work plan or variation to an approved work plan; or (b) endorse or refuse to endorse the work plan or variation to an approved work plan; or (c) give a copy of the work plan or variation to an approved work plan to a referral authority under section 77TE.". (2) After section 77TD(1) of the Principal Act insert— "(1A) If the Department Head asks for changes to be made to the work plan or variation to an approved work plan, the licensee, holder of an extractive industry work authority or person proposing to apply for an extractive industry work authority must, in accordance with section 77TC, give to the Department Head, for statutory endorsement, a work plan or variation to an approved work plan that includes those changes.". 34 Department Head must give work plan or variation application to referral authority (1) In section 77TE(1) of the Principal Act, for "without delay" substitute "within 28 days". s. 33 -- 29 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 27 Authorised by the Chief Parliamentary Counsel (2) After section 77TE(2) of the Principal Act insert— "(3) If the Department Head gives a copy of the work plan or variation to an approved work plan to a referral authority, the Department Head must, by written notice, endorse or refuse to endorse the work plan or the variation to the approved work plan— (a) within 28 days of being told by a referral authority that it objects or does not object to the endorsement of the work plan or variation of the work plan; or (b) within 28 days of the expiry of the time specified in section 77TF(2).". 35 Review by Tribunal Section 77TH of the Principal Act is repealed. 36 New Part 6C inserted After Part 6B of the Principal Act insert— "PART 6C—REVIEW 77TI Review by Tribunal (1) A licensee or the holder of an extractive industry work authority may apply to the Tribunal for review of— (a) a decision of the Department Head under section 40A, 41AAB, 77G or 77HB to refuse to approve a work plan or a variation of an approved work plan; or s. 35 -- 30 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 28 Authorised by the Chief Parliamentary Counsel (b) a decision of the Department Head under section 40A, 41AAB, 77G or 77HB to approve a work plan or the variation of an approved work plan with conditions. (2) The holder of an extractive industry work authority may apply to the Tribunal for review of— (a) a decision of the Minister to impose a condition on the extractive industry work authority under section 77J; or (b) a decision of the Minister to vary a condition of the extractive industry work authority under section 77M or impose a new condition under that section; or (c) a decision of the Minister under section 77N to impose a new condition on the extractive industry work authority that the Minister has consented to be transferred to another person under that section. (3) A licensee, the holder of an extractive industry work authority or a person proposing to apply for an extractive industry work authority may apply to the Tribunal for review of— (a) a decision of the Department Head under section 77TD to refuse to statutorily endorse a work plan or variation to an approved work plan; or (b) a decision of the Department Head under section 77TD to statutorily endorse a work plan or variation to an approved work plan with conditions. s. 36 -- 31 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 29 Authorised by the Chief Parliamentary Counsel (4) The former holder of an extractive industry work authority may apply to the Tribunal for review of a decision of the Minister to cancel the work authority under section 77O. (5) Subsections (1) and (3) do not apply to a condition that has been imposed on an approval of a work plan or of a variation of a work plan if— (a) the condition is substantially the same as a condition of the relevant planning scheme or a planning permit for the carrying out of the extractive industry; or (b) a decision to impose the condition has already been the subject of review by the Tribunal. 77TJ Application for review An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) either— (i) the day on which the statement of reasons for the decision is given under section 40A, 41AAB, 77G, 77HB or 77TD to the person entitled to apply for review; or (ii) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person entitled to apply for review requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under s. 36 -- 32 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 30 Authorised by the Chief Parliamentary Counsel section 46(5) of that Act that a statement of reasons will not be given. __________________". 37 Definitions In section 77U of the Principal Act, in the definition of authority— (a) for paragraph (a) substitute— "(a) an exploration licence, a mining licence, a prospecting licence or a retention licence under Part 2; or"; (b) paragraph (b) is repealed. 38 Rehabilitation bond (1) In section 80(4) of the Principal Act, after "further rehabilitation bond" insert "within 28 days after service of that notice, or by a later date specified in the notice,". (2) After section 80(4) of the Principal Act insert— "(4A) An authority holder must comply with a requirement to enter into a further rehabilitation bond under subsection (4). Penalty: In the case of a corporation, 200 penalty units In any other case, 40 penalty units.". (3) In section 80(5) of the Principal Act, for "1 month" substitute "28 days". s. 37 -- 33 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 31 Authorised by the Chief Parliamentary Counsel 39 Code of Practice For section 89G(2) of the Principal Act substitute— "(2) Subjection (1) does not apply to— (a) the holder of an extractive industry work authority that is subject to a condition of compliance with a Code of Practice under section 77J(2); or (b) the holder of a mining licence that is subject to a condition of compliance with a Code of Practice under section 26(2A); or (c) the holder of a prospecting licence that is subject to a condition of compliance with a Code of Practice under section 26(2A).". 40 New section 139 inserted After section 138 of the Principal Act insert— "139 Savings and transitional provisions—2014 amendments Schedule 9 has effect.". 41 New Schedule 4A inserted After Schedule 4 to the Principal Act insert— "SCHEDULE 4A Section 4(1) LOW IMPACT EXPLORATION 1 In this Act— low impact exploration means exploration that does not involve any of the following— (a) the use of explosives; s. 39 -- 34 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 32 Authorised by the Chief Parliamentary Counsel (b) the taking of flora listed under section 10 or Schedule 2 of the Flora and Fauna Guarantee Act 1988, unless that flora is taken from private land that is not owned by a public authority; (c) the taking of flora from a community listed under section 10 or Schedule 2 of the Flora and Fauna Guarantee Act 1988, unless that community is found on private land that is not owned by a public authority; (d) the taking of fauna listed under section 10 or Schedule 2 of the Flora and Fauna Guarantee Act 1988; (e) the taking of any taxon or community of flora or fauna from any habitat or parts of habitat under section 20 of the Flora and Fauna Guarantee Act 1988; (f) the removal or damaging of more than 1 hectare of native vegetation if that area does not contain any native trees during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; (g) the removal or damaging of more than 15 native trees that have a trunk diameter of less than 40 cm at a height of 1.3 metres above ground level during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; s. 41 -- 35 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 33 Authorised by the Chief Parliamentary Counsel (h) the removal or damaging of more than 5 native trees that have a trunk diameter of 40 cm or more at a height of 1.3 metres above ground level during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; (i) the creation of any road, structure or hardstand area without the consent of the owner or occupier of the land on which it is created; (j) the use of any closed road without the consent of the owner or occupier of the land on which the road is located, or undertaking works on any road without the consent of the owner or occupier of the land on which the road is located; (k) ground intrusive work that— (i) is within 200 metres of a waterway; or (ii) is on a slope steeper than 1 vertical : 3 horizontal; or (iii) is of greater than 2 hectares in an area of cultural heritage sensitivity during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; or s. 41 -- 36 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 34 Authorised by the Chief Parliamentary Counsel (iv) involves taking water from an aquifer, hydraulic fracturing, or excavation using heavy earth moving equipment. 2 In this Schedule— area of cultural heritage sensitivity means an area specified as an area of cultural heritage sensitivity under regulations made under the Aboriginal Heritage Act 2006; closed road means a road lawfully closed to public access by barriers (including roads closed seasonally, temporarily or permanently, and management vehicle only roads), roads which have been rehabilitated, and roads which are not trafficable due to the regrowth of vegetation; community has the same meaning as in the Flora and Fauna Guarantee Act 1988; critical habitat has the same meaning as in the Flora and Fauna Guarantee Act 1988; damaging, in relation to native trees or vegetation, means all activities that impact native vegetation, but does not include— (a) lopping or trimming no more than one third of the foliage or a tree or shrub (not including the trunk); or (b) mowing or slashing native grasses (but not trees, shrubs or groundcovers) to a height greater than 10 cm; s. 41 -- 37 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 35 Authorised by the Chief Parliamentary Counsel fauna has the same meaning as in the Flora and Fauna Guarantee Act 1988; flora has the same meaning as in the Flora and Fauna Guarantee Act 1988; ground intrusive work means work that disturbs the topsoil or surface rock layer of the ground by machinery (other than hand-held machinery) in the course of drilling a hole, ground levelling or augering; hardstand area means an open ground area with a prepared surface that is used for storing material and standing vehicles; hydraulic fracturing means the injection of water and other materials into a bore under pressure; native tree means a tree that is indigenous to Victoria; native vegetation means plants indigenous to Victoria including trees, shrubs, herbs and grasses; public authority has the same meaning as in the Flora and Fauna Guarantee Act 1988; road means a road within the meaning of the Road Management Act 2004 and includes Crown land permanently or temporarily formed for the passage of motor vehicles having four or more wheels, and land specified as an unused road under section 400 of the Land Act 1958; s. 41 -- 38 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 36 Authorised by the Chief Parliamentary Counsel structure means materials that have been erected for the purpose of facilitating exploration activities and includes, but is not limited to, facilities associated with exploratory team members, sound attenuation devices to minimise noise disturbance from exploration activities, and ancillary storage facilities; take has the same meaning as in the Flora and Fauna Guarantee Act 1988; taxon has the same meaning as in the Flora and Fauna Guarantee Act 1988; waterway means— (a) a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998; or (b) a natural channel the name of which is registered under the Geographic Place Names Act 1998 in which water regularly flows, whether or not the flow is continuous; or (c) a lake, lagoon, swamp or marsh, being— (i) a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into, through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or s. 41 -- 39 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 37 Authorised by the Chief Parliamentary Counsel (ii) a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) of the Water Act 1989 to be a lake, lagoon, swamp or marsh; or (d) land which is regularly or intermittently covered by water from a waterway as described in paragraph (a), (b) or (c) but does not include— (i) any artificial channel or work which diverts water away from such a waterway; or (ii) an area covered by the floodwaters of a waterway; or (iii) an area, other than the waterway, designated on a planning scheme as being a floodway or liable to flooding or as being subject to inundation; or (e) if any land described in paragraph (d) forms part of a slope rising from the waterway to a definite lip, the land up to that lip. __________________". s. 41 -- 40 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 38 Authorised by the Chief Parliamentary Counsel 42 New Schedule 9 inserted After Schedule 8 to the Principal Act insert— "__________________ SCHEDULE 9 Section 139 SAVINGS AND TRANSITIONAL PROVISIONS ARISING FROM THE MINERAL RESOURCES (SUSTAINABLE DEVELOPMENT) AMENDMENT ACT 2014 1 Definition In this Schedule— amending Act means the Mineral Resources (Sustainable Development) Amendment Act 2014. 2 Grant or refusal of licence The amendments made by section 8 of the amending Act do not apply to an application for a licence that was accepted before the commencement of that section in accordance with section 16 of this Act as in force before that commencement. 3 Work plans (1) This clause applies to— (a) a licensee who has an approved work plan immediately before the commencement of section 16 of the amending Act; or (b) a licensee who, before that commencement, lodged a work plan or a variation of an approved work plan under section 40 or 41 as in force before that commencement. s. 42 -- 41 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 39 Authorised by the Chief Parliamentary Counsel (2) Despite anything to the contrary in Part 3 of this Act, a person to whom this clause applies is not required to comply with the requirements for an approved work plan as in force after the commencement of section 16 of the amending Act if the approved work plan has not been varied after that commencement. (3) Part 3 of this Act as in force immediately before the commencement of section 16 of the amending Act continues to apply to the approval of a work plan to which clause (1)(b) applies. 4 Endorsement of work plan or variation to approved work plan Section 77TD(1) of this Act as in force immediately before the commencement of section 33(1) of the amending Act continues to apply to a work plan or variation of an approved work plan received but not endorsed before that commencement.". 43 Repeal of amending Act This Act is repealed on 31 December 2017. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 43 -- 42 of 43 -- Mineral Resources (Sustainable Development) Amendment Act 2014 No. 10 of 2014 40 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 30 October 2013 Legislative Council: 12 December 2013 The long title for the Bill for this Act was "A Bill for an Act to amend the Mineral Resources (Sustainable Development) Act 1990 and for other purposes." Endnotes -- 43 of 43 --