Environmental law enforcement in WA is on the uptick

The Perth Magistrates Court recently found gold miner Bellevue Gold Limited (Bellevue) liable for two environmental offences relating to a hypersaline spill after enforcement action by the Department of Water and Environmental Regulation (DWER). Bellevue was fined $41,000 in total for the offences.

This prosecution comes a number of months after the recommendations in the Auditor General’s Report on Compliance with Mining Environmental Conditions which concluded that DWER and the Department of Mines, Industry Regulation and Safety have not been fully effective in ensuring mining projects comply with conditions to limit environmental harm and in monitoring operator compliance (see our previous blog post here).

These developments are coupled with reforms to WA’s criminal liability laws which commenced on 4 April 2023. Amongst other matters, those reforms impact director and officer liability for environmental offences and reinforce the possibility for both companies and individuals to be penalised for the same environmental offence.

Snapshot

• The prosecution in the Bellevue case related to a hypersaline spill which occurred between December 2019 and March 2020. Bellevue discharged around 145 million litres of saline water into a surface pit near Leinster without a licence. The resulting spill affected approximately 16 hectares of native vegetation and ecosystems.
• DWER brought an action against Bellevue for causing material environmental harm and causing emissions without a licence under the Environmental Protection Act 1986 (WA) (EP Act). Bellevue was found liable and fined $41,000 by the Magistrate, comprising $31,000 (material environmental harm) and $10,000 (causing emission without a licence) in addition to costs.
• The maximum potential penalties applicable under these offences are $250,000 and $100,000 respectively.

The Prosecution

Between December 2019 and March 2020, Bellevue drew saline water from disused mines at its northern Goldfields operation near Leinster with the intent to pump the water into surface pits. Bellevue discharged approximately 145,000 kilolitres of saline water into one surface pit, which overflowed through a vent shaft connected to the pit. The resulting hypersaline spill extended over 46 hectares and impacted 16 hectares of native vegetation and associated ecosystems.

DWER commenced investigations into the spill in August 2020. DWER then brought action against Bellevue for causing material environmental harm and causing emissions without a licence under sections 50B(2) and 56 of the EP Act.

On 27 April 2023, the Magistrates Court imposed fines of $31,000 and $10,000 on Bellevue for the above offences, and also ordered Bellevue to pay $4,663.30 in costs.

Previous penalties relating to hypersaline spills have included:

• Barto Gold Mining Pty Ltd, which was fined $20,000 and ordered to pay $2,028.30 in costs for causing a spill affecting 6.42 hectares of native vegetation. The sentencing Magistrate noted that the company had taken measures to remediate the damage caused.
• Fortescue Metals Group, which was fined $25,000 for impacting 7.5 hectares of vegetation; and
• Western Areas Limited, a modified penalty of $37,500 was issued after a discharge of about 4.7 million litres of hypersaline water into the environment.

The penalty imposed on Bellevue appears to follow previous sentencing trends relating to this type of offence, given the comparative magnitude of Bellevue’s spill and the significant amount of native vegetation impacted.

Higher penalties can be payable and the quantum of fines payable may also depend upon the number of charges. For example, Cockburn Cement Limited (CCL) was found guilty in March 2023 on six charges of causing unreasonable odour emissions in contravention of the EP Act. CCL was fined a total penalty of $290,000.

Next Steps

DWER has publicly emphasised the need for environmental protection on isolated mining operations, stating that responsibility lies with mining companies to obtain the correct permissions to discharge water or otherwise impact the environment.

Further, on 4 April 2023, the Directors’ Liability Reform Act 2023 (WA) came into force. This legislation has amended the liability position for company officers for Tier 1 and Tier 2 EP Act offences, where officers have failed to take reasonable steps to prevent the company from offending. This reform has reinforced the possibility for both companies and individuals to be penalised for the same environmental offence.

We anticipate a continuing focus by environmental regulators in Western Australia, as well as the Commonwealth, on the compliance and enforcement front and anticipate that DWER may be seeking to use the reforms to criminal liability laws to penalise directors or officers in corporations.

For further information please contact Melanie Debenham or Naomi Hutchings.