Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697640423472.pdf (Australia)
SUBMISSION TO: THE SENATE ENNIRONMENT AND COMMUNICATIONS REFERERENCES COMMITTEE Inquiry into the rehabilitation of mining and resources projects as it relates to Commonwealth responsibilities In 2014, I was invited to provide a commentary on an opinion piece entitled “The mining industry and land rehabilitation in Australia – once were leaders” by the editorial team of a special volume of the Journal of Cleaner Production (Volume 84, Issue 1, 2014) on “The sustainability agenda of the minerals and energy supply and demand network: ..”).
My ‘contribution and opinion’ at that time is copied below: The view that the Australian mining industry has lost its way and momentum and can no longer claim leadership in the field of disturbed land rehabilitation is one that could not be disputed easily.
The noting that the current wave of innovations in restoration science and management is predominantly coming from working with lands and landscapes requiring damage repair from activities arguably less drastic than those created by mining, is also a valid observation.
Examples of actions by which the industry could once again lead in this area are well noted, but the dominance of short-term thinking and waning commitment to go beyond compliance currently being expressed by the sector will regrettably not see much action enactment in the foreseeable future.
Given the nature and shortfall reality of government financial assurance schemes, any recommendations for use of those limited securities for purposes that the industry themselves should take full responsibility, would be a policy to be approached with caution.
For many years, the Australian minerals industry considered itself, and was considered by others, to be a leader in the field of post-mining land rehabilitation; the question posed by the opinion piece rightfully challenges whether that truism still holds and after considering that it doesn’t, calls for industry to step back up.
Has the industry dropped the ball or are we just more aware and knowledgeable of what could be or should be; has our expanded knowledge through research, while providing critical solutions along the way, also just expanded our understanding of the risks and uncertainties and hence opportunity to be more critical of industry deficiencies?
Has the expansion of the industry and the mining and processing technologies that now allow lower grades to be economically extracted and recovered mean that the consequential greater volumes of mine wastes produced made us more cognizant of the potential impacts and risks?

Has the entry of the industry into areas where communities and other land uses are conflicted heightened concerns and expectations about how the industry addresses its environmental and social obligations?
Thus, is it that the industry commitment has stayed the same and the industry expansion and society’s interest and awareness has just widened the gap to give the impression that that there’s been a reduced effort, or has the commitment really declined?
Unfortunately, and though not universal, experience and familiarity with the sector would suggest a reduction in overall commitment to fund innovation and research – and what is supported is primarily reactive and/or driven to meet a minimalist default position of compliance, a space in which there is little room for forward-thinking, innovation and the obligatory longevity of a committed investment.
Reliance on compliance to achieve a positive outcome can be a risk in itself as a regulatory framework rarely incorporates the rate of new knowledge acquisition that science and research can and has delivered.

While ever there remains a dominance of short-term thinking and too few site champions with the capacity to influence senior site management who typically still have KPIs around production metrics and not future environmental values of a site, engendering change will be difficult.
Without change and renewed commitment, however, mediocrity will rule and the Australian industry will not to be able to legitimise living off past global recognition as a research and innovation leader in mined land rehabilitation nor reap the benefits of greater future certainty about post-mine environments.
1 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40 Against that summary that probably still encapsulates much of my current view I offer a few specific responses to some of the ToRs.

Much of my direct understanding and/or ‘informed perceptions’ are shared by my colleagues in our Centre for Mined Land Rehabilitation (CMLR) at The University of Queensland where I have been located since its inception back in 1993.
This submission was originally intended to probably be a combined and collective view from our Centre and thus Institute (the Sustainable Minerals Institute – SMI), as the CMLR is the entity within the SMI (and in fact University) that has the focus and most integrated (though not exclusive) expertise in this area.

However, time, circumstance and pragmatism led me to the point of considering that an individual, though to a large extent inclusive view, was the best option as a submission as this stage.

a.
a.

The cost of outstanding rehabilitation obligations of currently operating projects While the magnitude of this is periodically mentioned in the media to generate (often justified) shock value following a particular event or agenda, the real total cost of what is currently latently sitting across operating mines is not overly apparent.

The respective governments would have an estimate from the summation of the various and diverse ways in which financial assurances, etc.
are calculated but it is the companies themselves that would have a more accurate figure as they know the actual on-ground costs of the various stages of the rehabilitation processes for their individual sites.
These figures themselves, however, would still likely be less than what the true cost of rehabilitation would be if it was to a standard acceptable for closure and relinquishment and where no or minimal risk was transferred on, and that it was ‘returned’ in a condition able to be used as per the agreed purpose.

A reason for saying this is that typically rehabilitation achievements are metricised on quantity and not quality.

b.
b.

The adequacy of existing regulatory, policy and institutional arrangements to ensure adequate and timely rehabilitation Regulations and policies clearly exist but are they appropriate and achieving the desired outcomes?

The outcomes on-the-ground and the input and/or controversies that led to the creation of this Inquiry would suggest not.
A government-mandated prescriptive approach through policy and legislation to guide/enforce rehabilitation practices has not been the norm; rather, industry self- regulation has tended to be the mechanism.
There is certainly value in avoiding a prescriptive approach when it comes to the detail as the highly variable nature of mining methods, locations, land-uses, climates, and materials being excavated, processed and relocated in the landscape, makes a one-size-fits-all legislated requirement an inappropriate and high risk strategy.
However, to be fully successful, self-regulation does depend on the industry, its owners and its shareholders, having the appropriate level of maturity, values, morality and social conscious and responsibility.
In Queensland, for example, rehabilitation is required under the Environmental Protection Act (1994) which requires ‘all reasonable and practicable measures be taken to protect environmental values from all sources of environmental harm and requires persons who cause environmental harm to pay costs and penalties for the harm’.
The rehabilitation goals are typically set by government policies that require areas disturbed by mining to be left in a condition that is (1) safe to humans and wildlife, (2) non-polluting, (3) stable, and (4) capable of sustaining an agreed post-mining land use.

There may be additional goals relevant at some sites through requirements under other legislation dealing with matters such as endangered species, water, heritage or regional or local planning.
2 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40 Thus, the government sets the overarching goals required to be achieved, but it is the company that develops the environmental management plan which states the objectives for rehabilitation as well as measurable indicators and standards (completion criteria) that are to be achieved.
This plan needs to include rehabilitating each different type of disturbance footprint the company has impacted or influenced during the time they have been temporary or transitional users of the land.

These plans, measures and targets have to be approved by government in order for a project to proceed but the progressive rehabilitation assessment/monitoring over time is largely done by the company and/or its consultants.
The government, often with both limited resources and/or breadth of expertise, rarely exercises a serious level of oversight unless there is a particular issue of non- compliance at a site that becomes known.

So, provided the boxes are ticked to say that what was done and when complies with what was agreed in the Environmental Authority (as named under Queensland legislation but all States/Territories have an equivalent type of authorisation), things proceed, compliance is achieved and no laws are broken.
If this is the case, and yet we still have a very significant and increasing backlog of disturbed land at many sites that has yet to be rehabilitated (and thus by definition remains potentially unsafe, polluting, unstable and incapable of supporting another use), there clearly needs to be tighter, better, different types of agreements and controls on rehabilitation.
That said, while ever the site and its condition and ‘cost of repair’ remains the responsibility of the company/operator that holds the lease, the risk to government and society is controlled.

That risk is escalated and not controlled, however, if ever the full cost of rehabilitation and protection of environmental values is not held through financial protection mechanisms, the processes for which governments can control.
c. The adequacy and transparency of financial mechanisms, including assurances, bonds and funds, to ensure that mining and resources projects are rehabilitated without placing a burden on public finances Each of the States and Territories has different calculators and approaches to ensuring public finances are not left at risk of a default or unplanned and not fully financed closure.
Governments seeking 100% financial assurance is far from the norm with risk-based assessments and company performance/profile/reputation often being a consideration when concessions are made.

The regular review and recalculation of such bonds is critical as is the justifications for ‘discounts’ as time, circumstances and site and company ownership change.
The risk to public finances in some states has been amplified in recent years as a trend has appeared for majors to sell-off less economic (for them) or declining assets to juniors (in some cases very small operators) who clearly don’t have the backed capital to buffer the true cost of the liability that has been passed on to them, particularly if confronted by an unplanned economic, climatic or operational scenario.
While a free market allows this and the transactional costs of such arrangements is the decision of the parties involved, I am sure governments equally see the risks in such practices.

Global reputation of the majors provides a degree of comfort that while they hold the lease, ‘walk-away’ is less likely, but not so for many small operators.
The fact that these exchanges and the risks appear to be accepted, suggests it may be opportune to ascertain whether there is a policy or regulatory void that needs attention.
3 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40 d. The effectiveness of current Australian rehabilitation practices in safeguarding human health and repairing and avoiding environmental damage From the perspective of human health impacts, the industry (and legislation) has done much to minimise the hazards and impacts of contaminants leaving a site via water pathways.
Where containments have been ‘breached’ and flows have left lease boundaries, the rate of reactivity and imposition of appropriate management controls that have been built into the environmental management systems have generally proven themselves to be protective of human health.
The larger risk to human health linked to rehabilitation practices is via the air pathway, and the source of this risk is predominantly dust and the mobilisation of fine particles (that may contain elements in a form deleterious to human health).

Exposed and dry surfaces of tailings storage facilities are a primary source of such particles.
While there are components of nuisance and aesthetics associated with small particle mobilisation and dispersion, there is, nonetheless, depending on the climate, weather patterns, and proximity to populated areas, unrehabilitated tailings or other disturbed surfaces from which fine particles can be mobilised that do present a potential risk to human health.
On the more general topic of how current practices repair and avoid environmental damage and assuming this refers to off-site damage, the repair aspect would relate to where there is an off-site impact of contaminants, both chemical and physical, via the water pathway (either from surface flows, via groundwater, or both).

Surface water flows off-site are typically the result of a climatic event that results in the uncontrolled release from containment structures.
Legislation seems to regulate and provide monitoring guidance to ensure the risks to environmental values downstream are managed.

A proactive company would have well understood the background water chemistry, ecosystem values and users and uses of water prior to commencing the mine development and hence an appreciation of the tolerances of the downstream environment and values to a temporary change in the nature of the water body.
Avoiding the risk of exceeding the capacity of the on-lease water management system by pre-wet-season preparation and practices to ensure there will be maximum capacity to hold water on site during the next wet season are common among the established and leading companies.

From a rehabilitation perspective, the knowledge of how to manage mine and mineral processing wastes that have the potential to generate acid and metalliferrous drainage (AMD) are well understood.
A lapse or non-attention to this critical aspect of potential contaminant containment that leads to an off-site release that creates an environmental impact should no longer be excused as a ‘consequence of an extreme weather event’.
Indeed, given extremes are becoming the norm, there should be an increased effort and requirement to build reconstructed landscapes resilient to such events in order to demonstrate true sustainability of the post-mining landform and features for the decades/centuries and beyond time frames ahead.
Slope instability and erosional losses leading to high potential sediment loads moving off-site and into drainage lines and creek/river systems are also closely linked to the effectiveness and efficiency of a rehabilitation program which, if properly and timely implemented, should maximise slope stability and minimise erosion losses.

Contaminating groundwater resources is a major problem if it eventuates as it is a costly and difficult process to repair and reverse, if possible at all.
Thus, the best management strategy is to avoid the risk of contamination in the first place.

In this regard, a thorough and extensive knowledge of the groundwater systems in and around the areas of mine impact and zones of influence in advance of mine commencement is an absolute and one in which governments have to have maximum confidence in prior to mine approval, and one in which they need to maintain oversight of through monitoring and modeling over the life cycle of the mine.
4 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40 e. The effectiveness of existing abandoned mines programs, with regard to repairing environmental damage and safeguarding human health There has been considerable and increasing discussion on this over the past several years, and is an area that all governments have struggled to address.
Back in 2003, a workshop in Brisbane recommended Australia develop a national strategy for managing abandoned mines.

A working group (AMWG) was formed around 2005/6 comprised largely of state government abandoned/derelict mine managers, Minerals Council of Australia (MCA) and the then Commonwealth Department of Resources Energy and Tourism (DRET).

In 2010 the AMWG finalised the document entitled ‘Strategic Framework for Managing Abandoned Mines in the Minerals Industry’.
In 2012, we held a ‘Managing Mining Legacies’ forum at the Sustainable Minerals Institute at UQ where abandoned/legacy mine managers from State and Territory governments, representatives from the Canadian national and provincial governments, and other stakeholders and researchers from a range of disciplines came together.

From this forum, several key themes emerged:  Abandoned mine management is a critical social and environmental responsibility in Australia.
Full liability accounting is needed to ensure governments understand the scale of abandoned mine/mining legacies across jurisdictions.

This forms the basis for development of policies and well-focussed programs, engaging appropriate expertise and preparing progress reports on performance (improvements and expenditure).

The same high standard should be applied to abandoned mine regulation as is applied to active mines.
Mines, health, environment and heritage departments all have responsibilities for abandoned mines and these departments and their expertise need to be actively engaged by a lead agency.

   We need to explore and more widely promote the possibilities for self-funding of  rehabilitation.

This can take place when reprocessing of waste rock/tailings and/or removal of elements of value from pit water, for example, can occur.
Potential partnership opportunities exist which could support the implementation of the Strategic Framework although there has been no progress on developing an Implementation Plan for the Strategic Framework.
We also developed a value proposition following the 2012 workshop to establish a National Abandoned Mines Hub to assist in the implementation process of the national policy for abandoned mines, and to provide a platform for governments, industry and key stakeholder groups across Australia to engage in a dialogue about abandoned mines, to collaborate and share information to address negative legacies and explore opportunities for beneficial post-mining land uses.
State/Territory parochialism and an inability to capture any government funding whatsoever for this initiative meant the establishment of such a hub did not progress.

The very existence of these sites for which governments have responsibility present a constant and high risk from a public safety, health and liability perspective.
The identified need to address the multiple and complex issues these sites present is well understood by government officers in the relevant departments that have the responsibility for their management, but lack empowerment to effectively manage and attempt to reduce the risks present at these sites due to a lack of allocated funding.
A variety of funding models have been proposed and/or implemented over the years across the different State/Territory jurisdictions, but the issues and legacies of these blights from history remain.

Our inability to effectively manage the multi-layered, multi-disciplinary risks continues to be a major concern that just keeps being spoken about without action.
The potential opportunities for reprocessing and gaining ‘wealth from waste’ at sites like these, wealth that could be integrated and re-invested into the site itself to fund the rehabilitation more broadly is clearly 5 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40 there (and indeed recognised).
However, in order for a small operator (or indeed even a larger company) to take on such opportunities, there needs to be policies and regulations introduced and approved that allows such re-engagement with a site and that allows the new operator to mine/re- mine without having to take on the whole historic liability of the site.
f. Whether any mining or resources companies have engaged in conduct designed to avoid fulfilling their rehabilitation obligations It was mentioned previously (refer point c.) that the sell-on of operations at or near the end of their productive life to small operators that, with lower overheads and different business models from the larger operators, can still extract value from the mine or mine wastes are, at the same time, ‘purchasing’ the liability.
It could be seen that for some companies, selling and transferring the funds calculated as the liability at the time of the transfer to another company, are doing so to avoid having to confront the full and true costs of properly rehabilitating and closing out the site to the standards agreed and accepted under their own licenced and authorised conditions.
g. The potential social, economic and environmental impacts, including on matters of national environmental significance under the EPBC Act, of inadequate rehabilitation The social and economic impacts of inadequate rehabilitation include the loss of capacity to earn income from a land use post-mining that was previously agreed would be re-instated or established.
For indigenous traditional owners, the loss and non-re-instatement of the land’s cultural values is a very significant loss and a failure to meet a social and community commitment.
Environmental impacts that arise due to inadequate or failed rehabilitation from a fauna perspective include the loss of habitat that may have pre-existed prior to mining, a loss of connectivity across the landscape for fauna movements, a loss of appropriate structural and functional diversity in the vegetation and hence risk of species exclusion or loss, and a loss of clean water bodies.
The entry of chemical and physical contaminants into adjacent waterways as a consequence of inadequate on- site rehabilitation poses a risk to the ecosystem and environmental values of aquatic and riparian zones downstream.
h. The potential social, economic and environmental benefits of adequate rehabilitation, including job opportunities in communities affected by job losses in the mining and resources sectors The social and economic benefits of adequate rehabilitation include the opportunities to regain employment and value from the re-instatement of past land uses or new land uses that may have been created as a result of a new range of options that the post-mined land and it’s reshaping and reconstruction may have presented.
Environmental benefits are the absence of the negative attributes that arise in circumstances where the rehabilitation is inadequate.

Depending on the agreed and appropriate end use(s), and demonstration of the resilience of the post-mining land to the subsequent end-use(s), the opportunity to return productivity and/or biodiversity values, for example, are clear benefits.
The protection of water quality and ecosystem values downstream will likewise be realised 6 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40 i.

International examples of effective rehabilitation policy and practice There are many advanced examples of best practice rehabilitation policy and practice throughout the US, Canada and Europe.

j.
j.

Proposals for reform of rehabilitation of mining and resources projects The issue of what to do with final voids (and whether they should exist/remain) has had prominence over recent years.

There is a reality that legislation of the past did not always specify a requirement for backfilling (although it has been done) and thus the industry would generally argue that the costs of now designing-out such a feature would be (potentially fatally) uneconomic.
The discussion has largely been around the strip mines of the coal industry, and while we possibly need to accept the unlikelihood of voluntary backfilling where another viable, safe and economic use for the void can be identified and proven, there would seem to be limited arguments from a rehabilitation and environmental perspective to allow approvals for new coal mines, for example, to plan to leave a final void.
There is recognised calorific value (in the case of coal mine tailings) and residual value in many of the other elements deposited in metal mine tailings storage facilities, that are typically in above-ground structures that present an environmental (and social) liability in perpetuity.
A ‘reformed’ approach would be to maximise the recovery of value from all the effort and investment of money, energy and water used to mine and process raw materials and is a strategy that should be encouraged (incentivised) ahead of further developing new major footprints of extraction and disturbance.
Apart from generating a revenue stream, the re-processing of the past (Next Generation Mining) will provide technological opportunities (and new industries and employment) to then produce a more benign waste (non-product) stream that should then provide an opportunity to work with a less- toxic, less hostile residual substrate.

This in turn would lead to lower risk rehabilitation strategies and hence improved and more successful environmental outcomes.
k. Any other related matters Having been closely linked with the sector as a research provider for almost three decades, I have observed several cycles and the industry’s responses.

The recent downturn has been deeper and longer, however, and while such circumstances often drive investment in improving production efficiencies to reduce costs, the same cannot be said for the companies propensity to invest in the ‘softer’ environmental and social sciences during such times.
Companies have tended to cut costs on being progressive and seeking continual improvement in rehabilitation, but rather have contracted to a compliance-focused mentality.
This is not the type of ‘environment’ that encourages or fosters R&D, and any commitment in rehabilitation projects are tending to be non-committal beyond 12 months – again not the best environment to enable longer term planning, and not one which facilitates the engagement of research postgraduate students whose operating costs for projects are often dependent on company and industry support.

7 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 40