On 1 July 2017, the current Native Vegetation Regulations will be revoked and replaced by new Regulations. The existing exemptions that are commonly relied upon by operators in the Resources Industry have been altered and the layout of the Regulations has been restructured. This Alert explains the key changes that will impact the clearance of native vegetation associated with exploration, mining and petroleum production.
The Native Vegetation Regulations 2003 (SA) currently set out limited exemptions for clearance of native vegetation in South Australia. On 1 July 2017, these regulations will be revoked and replaced by the Native Vegetation Regulations 2017 (SA).
The current regulations provide that clearance of native vegetation for specified purposes is exempt from the requirement to obtain approval from the Native Vegetation Council (NV Council) under the Native Vegetation Act 1991.
Currently, resources companies commonly rely on exemptions that apply to clearance that is incidental to:
- operations authorised under a Mining Act* [r5(1)(zd)];
- exploratory operations authorised under the Mining Act 1971 or the Petroleum and Geothermal Energy Act 2000 [r5(1)(zc)];
- an approved Major Development [r5(1)(c)]; or
- development otherwise approved under the Development Act 1993 [r5(1)(da)].
* ‘Mining Act’ is defined to mean the Mining Act 1971, the Opal Mining Act 1995, the Petroleum and Geothermal Energy Act 2000, the Offshore Minerals Act 2000 or the Roxby Downs (Indenture Ratification) Act 1982.
These exemptions have, for the most part, been retained in the 2017 Regulations. However, there are some important changes that should be noted.
Mining and Petroleum operations
The existing exemptions for clearance incidental to authorised mining and petroleum operations are retained in the 2017 Regulations as regulation 14 and clause 28 of Part 5 of Schedule 1.
Importantly, however, a new time limit will be imposed on undertaking permitted clearances. Regulation 21(2) of the 2017 Regulations provides that, if a clearance is to be undertaken in accordance with a management plan approved by the NV Council, clearance must be commenced within 2 years of the day on which the plan is approved, and undertaken within the time frame specified in the plan.
If a company makes a payment into the Native Vegetation Fund, no management plan to achieve a significant environmental benefit is required. In those circumstances, it appears that the time limit will not apply to the clearance.
The exemption for clearance incidental to approved exploratory operations has been retained in essence as regulation 15 and clause 29 of Part 5 of Schedule 1, but slightly altered.
Firstly, there is no longer a requirement that there be no other practicable alternative to the clearance that involves less clearance or clearance of less significant vegetation.
Further, while at present an exempt clearance is required to be undertaken in accordance with ‘accepted industry environmental management practices… recognised by the NV Council’, the 2017 Regulations provide that clearance is only exempt if undertaken ‘in accordance with industry standards developed and endorsed by the NV Council for the purposes of the Regulation’. In setting the industry standards for the purposes of the 2017 Regulations, the NV Council must consider and aim to minimise impact on native vegetation, and adequately address concerns raised by the Minister for Resources.
That being said, given that the NV Council already recognises currently accepted exploration industry practices for the purposes of the existing Regulations, we would expect that the practical application of the replacement exemption will not be materially different from the current regime.
Finally, the 2017 Regulations provide that if there are no applicable standards set or it is not possible to undertake the operations in accordance with the applicable standards, clearance is exempt if it is undertaken in accordance with a management plan approved by the NV Council that results in a ‘significant environmental benefit’ (or if payment is made into the Fund). If an approved management plan is used, there will be a 2 year time limit imposed on commencement of the clearance.
The existing exemption for clearance of native vegetation that is incidental to an approved Major Development is retained as regulation 13 and clause 27 of Part 4 of Schedule 1 to the 2017 Regulations.
As per the current regime, the new exemption requires the clearance to be undertaken in accordance with a management plan approved by the NV Council that results in a ‘significant environmental benefit’ (unless a payment has been made into the Fund). If an approved management plan is used, the new Regulations impose a 2 year time limit on commencement of the clearance.
Other approved development
The existing exemption that applies to clearance incidental to development approved under the Development Act 1993 (if certain requirements are met) has been replaced with a requirement to either obtain written approval from the NV Council or clear in accordance with an approved standard operating procedure. The NV Council may impose conditions on the approval and in doing so must aim to minimise potential impacts on biological diversity, soil, water, natural resources and threated species arising from any proposed clearance.
Approvals given by the NV Council expire after 2 years.
Conditions of approval bind the applicant, all owners and subsequent owners of the land to be cleared, and occupiers of the land to be cleared.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.