Monday, 21 April 2014

Sand mining extension is no certainty

This is the unedited version of an article published in the latest Stradbroke Island News.
Contrary to the misleading claims by some State politicians, the amendments to the North Stradbroke Island Protection and Sustainability Act passed by parliament on 21 November, 2013 did not extend sand mining to 2035. That could have been done, but it wasn’t. The release, on 6 February, of a consolidated North Stradbroke Act incorporating the amendments exposes the politicians’ misinformation. This is a link to it – https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/N/NorthStradA11.pdf

The truth is that no extension of sand mining is scheduled to take place until 2019.

Another indisputable fact is that the current expiry date for the Enterprise mine’s leases remains as 31 December, 2019. The November amendments allow Sibelco to apply for renewal of the relevant mining leases to 2035 – but the applications cannot be made until 2019.

As with all legislation, the Act can be amended again by a future parliament, including by repealing the Newman government’s amendments.

A key section of the Act is section 11, in all its parts. It now provides for the future extension of sand mining at Enterprise mine by permitting Sibelco to apply for (and be granted) the renewal of the Enterprise mine leases. Usual rights which allow public interest objections from community groups and individuals are extinguished by the section. Court appeals on the merits of a renewal are also extinguished.

The 31 December, 2019 lease expiry dates enacted by parliament in April 2011, have not been altered. Instead, the new section 11C permits Sibelco to apply for renewal of the leases within the “renewal period”:-


11C Application for renewal of mining leases
(1)  The holder of mining lease 1105, 1109, 1117 or 1120 may, within the renewal period, apply to the Minister for renewal of the mining lease.
Subsection 3 of section 11C defines “renewal period” as :-
(a) at least 6 months, or any shorter period allowed by the Minister, before the current term of the lease expires; and
(b) not more than 1 year before the current term expires.

Schedule 1 of the Act provides that the “current term” of the relevant leases expires on 31 December, 2019. Because of the definition of “renewal period”, no application for renewal of these leases can be made before 1 January, 2019.

The November amendments also removed other restrictions on areas permitted to be mined at the Enterprise mine. If the mining leases are renewed in 2019, this is likely to result in a total area approximating 14 sq.km being cleared of all vegetation and sand mined to a depth of up to 100 metres, destroying complex dune structures formed up to 300,000 years ago. Based on the number of past admitted incidents of damage to island water bodies, the expansion of sand mining will also increase the risk of damage to the adjoining, internationally recognised RAMSAR wetlands.

As reported in the last SIN, native title owners have indicated an intention to challenge in the courts the Newman government’s amendments. A successful legal challenge would render them invalid. But even if a successful challenge is not made, as this article illustrates, a future parliament could still amend the North Stradbroke Island Protection and Sustainability Act by repealing the Newman government amendments. If that occurs, it would result in sand mining ending at Enterprise mine on 31 December, 2019. No compensation would be payable to Sibelco because section 6 of the Act prohibits it. As recognised in the explanatory notes to the 2011 Bill, Sibelco would still be bound by the mining lease conditions to rehabilitate the mined land.

Richard Carew