Draft regulations released for Eligible Mining Activity Framework

The Department of Energy, Mines, Industry Regulation and Safety (DEMIRS) has released draft regulations setting out the requirements of the Eligible Mining Activity (EMA) framework. The EMA framework introduces a new avenue for authorisation for certain eligible low impact prospecting and exploration activities. Eligible activities will be those which are typically minimal in disturbance and do not result in lasting environmental impact. The intent of the EMA framework is effectively designed to reduce some ‘red tape’ for prospectors and explorers.

The draft regulations, the Mining Regulations Amendment Regulations 2024 (Draft Regulations), were released on 8 May 2024, accompanied by an Information Sheet. Consultation on the Draft Regulations is open until 3 July 2024 at 5pm. The Draft Regulations prescribe the requirements of the EMA framework which is intended to enable mining tenement holders to receive automatic authorisation for eligible activities without assessment from a DEMIRS Environmental Officer, by lodging an EMA Notice with DEMIRS.

Eligible activities under the EMA framework

The Draft Regulations describe the following activities as ‘low impact mining activities’ which are able to be dealt with under the EMA framework:

• drilling and activities associated with drilling including drill pads and sumps;
• excavations, including scrape and detect operations, costeans and test pits, to a maximum depth of four metres;
• access tracks required for any of the above activities; and
• rehabilitation works associated with these activities.

A low impact activity will be an EMA if it is carried out for the purposes of prospecting or exploring for minerals (not mining) and if it conforms with the prescribed requirements set out in Regulations 58D to 58H. Those requirements include:

• limits on the size of the surface land disturbed by the activity and level of excavation;
• prohibited activities for EMAs (such as damaging or destroying riparian vegetation or damaging or destroying trees of a certain size) and a requirement to apply clearing principles to avoid, minimise and reduce impacts of clearing on any environmental value;
• work management for drilling and excavation works, such as ensuring surface holes are plugged immediately after being drilled and securely plugged underground, backfilled and mounded within 12 months;
• rehabilitation within 12 months; and
• record keeping.

EMA process – notice and completion of activities

An EMA Notice will be able to be given to the Minister for Mines by way of an electronic lodgement. An EMA Notice can cover more than one prescribed activity, however, the cumulative area of the activities cannot be more than two hectares. A mining tenement holder will not be able to give an EMA Notice whilst more than one EMA Notice relating to that tenement is active or during a financial year in which more than four EMA Notices relating to that tenement have already been given.

An EMA Notice will no longer be active and will be deemed ‘completed’ once the tenement holder issues DEMIRS with a ‘Notice of Completion’, which must be lodged within three months of completing rehabilitation works associated with the activity. A mining tenement can apply for a new EMA Notice as soon as a Notice of Completion has been submitted to DEMIRS.

Compliance

DEMIRS will audit and undertake compliance checks of submitted Notices of Completion to ensure EMAs are conducted and rehabilitated in line with the prescribed conditions in the Draft Regulations.

Section 103AE of the amended Mining Act (once enacted by the Mining Amendment Act 2022 (WA)) will provide that failure to comply with the prescribed requirements will have the same effect as a breach of tenement conditions and render the tenement liable for forfeiture or a penalty in lieu of forfeiture.

Excluded areas

As set out in the Information Sheet, the EMA framework will not apply to any activities conducted in ‘Excluded Areas’ that are considered to contain environmental sensitivities, and which will require assessment by an Environmental Officer or landholder consent. Excluded Areas are not included in the Draft Regulations but will be published by the Minister for Mines in the Government Gazette in an ‘Excluded Area Notice’.

DEMIRS has proposed the following areas as Excluded Areas:

• Crown Reserves;
• Environmentally Sensitive Areas;
• Threatened and Priority Ecological Communities;
• Threatened and Priority Flora and Fauna (including 50m buffer);
• Forest Disease Area;
• Public Drinking Water Source Areas;
• Clearing Control Catchments – CAWSA;
• Waterway Management Areas;
• Ramsar Sites;
• Wild Rivers;
• WA Heritage Sites;
• Freehold Land; and
• Townsites (including 200m buffer).

In the event that a prospector or explorer wishes to conduct activities in an Excluded Area, it will not be able to give an EMA Notice and will need to apply for a Programme of Works under the Mining Act and other relevant approvals under other legislation.

Interaction with other legislation

An EMA Notice is not intended to absolve a mining tenement holder of the requirement to seek authorisation and regulatory approvals under other relevant legislation, such as the Aboriginal Heritage Act 1972 (WA).

The Draft Regulations also include consequential amendments to the Mining Rehabilitation Fund Regulations 2013 (WA) which will extend those regulations to include works authorised by an EMA in the definition of ‘exploration operations’. Mining tenement holders conducting EMAs will therefore still be subject to reporting requirements and payment of a contribution to the Mining Rehabilitation Fund. The EMA framework is likely to be welcomed by explorers, particularly those exploring for critical minerals, as it has the potential for some low impact exploration activity in Western Australia to proceed in a more timely manner, without assessment by an Environmental Officer of DEMIRS.

For more detailed advice in relation to your response to the Draft Regulations or how the EMA framework may impact you, please feel free to contact us.

By Naomi Hutchings, Special Counsel and Amelia Arndt, Senior Associate