Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697645795603.pdf (Australia)
Committee Secretary Senate Standing Committees on Environment and Communications PO Box 6100 Parliament House Canberra ACT 2600 ec.sen@aph.gov.au Submission to the inquiry into the rehabilitation of mining and resources projects as it relates to Commonwealth responsibilities.

About ACF The Australian Conservation Foundation (ACF) is Australia’s national environmental organisation.
We are a not-for-profit community organisation, more than 340,000 people strong, committed to achieving a healthy environment for all Australians.

For over 50 years we have been a strong voice promoting solutions for the environment through research, consultation, education and partnerships.

We are independent, non-partisan and funded by donations from our community.

Introduction There are clear long term environmental and social impacts that arise from mining activity.
As the mining boom fades, there are major challenges and pressures on governments, regulators and companies to ensure that landscapes are repaired and that ecosystems, water resources and agricultural lands are healthy and functional, and meet community expectations.
Unfortunately, short term policy making, poor economic management and lax regulatory standards have meant that inadequate safeguards currently exist to address the serious negative social and environmental harm that arise from unrehabilitated mines.

Impacts from mining remain in the landscape long after operations cease.

To this end mining is not a temporary land use.


These impacts include open pits and final voids, subsidence, contaminated lands, acid mine water and water pollution, leeching, altered hydrology, air pollution, residual tailings dams and loss of biodiversity, community amenity and cultural heritage.

In 2016 ACF provided a grant to the Minerals Policy Institute to complete research on a national perspective on mine-site rehabilitation.
The final report - Ground Truths: Taking Responsibility for Australia’s Mining Legacies (Attachment A to this submission) highlighted that:  Most mine closures are unplanned and a result of economic and market factors  A failure to reform the regulation of mine closures will result in long term pollution affecting communities, water, air and wildlife  While companies’ exposure to risk is usually protected by subsidiary entities and limited liability, governments and the community have limited protection against the social, environmental and financial risks when a project or company fails.
In addition, the MPI report notes the efforts by industry and government to rectify rehabilitation practice and reporting, particularly in the mid 2000’s, including the Commonwealth’s development of the Mine Closure and Completion Handbook.
However, the case studies contained within the report Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 highlight that successful mine rehabilitation continues to be an aspiration for industry and major issue for regulators and the community, both in terms of ongoing environmental harm and exposure of governments and taxpayers to unacceptable future liabilities.
ACF supports the key recommendations from the MPI report which are reflected through this submission and below.

Summary of recommendations contained in this submission 1.

All governments should ensure all environmental and financial regulatory mechanisms that authorise and govern mining activity are based on a polluter pays principle.

2.

The Australian Government should ensure that a specific legal duty of care for proponents to restore our environment where they cause harm is enshrined in national law.
3.
That the Department of Environment and Energy develop: a. a transparent and open system for approvals data, including searchable condition sets and centralised monitoring data for projects; b. a framework for measuring and reporting on the environmental outcomes of its regulatory activities; and c. a nationally consistent approach to conditioning for the performance and operation of mine rehabilitation for the benefit of matters of national environmental significance, including: i. performance and occupancy criteria for habitat restoration for threatened and migratory species and ecological communities; desired environmental outcomes, void infill and landscape repair, make-good arrangements and steady state conditions for water resources; and utilisation of bonds or other financial assurances for the rehabilitation of groundwater, air pollution and threatened species and ecological community impacts.
ii.

iii.

4.

The development of clear national standards for mine rehabilitation accounting, including: full closure costs and post mine management requirements over the life of the site (including perpetual management) and requiring full disclosure by governments.

5.

That environmental impact assessments include the full cost estimates of the total mine rehabilitation liability, on-going management, future land use and financial assurances to meet stated objectives.

6.
6.

Implementation of a national legal obligation for closure liability accounting and reporting on a site-by-site basis, and ensuring this is reflected in annual financial statements and as a separate line item in company balance sheets.

7.

The Australian Government develop and enforce national standards requiring the backfilling of voids, specifically in relation to protection and management of matters of national environmental significance and water resources.

8.
8.

The Australian Government should review the NSW assessment bilateral agreement to ensure that the NSW Major Projects Offsets Policy satisfies Commonwealth standards regarding additionality and timeliness of offsets and does not enable mine-rehabilitation to be used as a biodiversity offset where incompatible with these principles.

Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 9.
Ensure that the radioactive mine tailings standard of isolation for a period of not less than ten thousand years required at the Ranger mine in Kakadu should be a Commonwealth requirement for operations at all current and any future uranium operations in any Australian jurisdiction.

10.
10.

The Committee review the adequacy of current closure and rehabilitation plans at the Ranger mine in Kakadu and act to ensure that Commonwealth frameworks and forums accurately and fully reflect the aspirations of the regions Mirarr Traditional Owners.

11.

The Committee undertake a comprehensive review of previous federal Parliament Inquiries into the uranium sector and a compliance and implementation audit of extant recommendations.

12.
12.

That the Committee actively address the legal exemptions provided to BHP Billiton in the South Australian Roxby Downs Indenture (Ratification) Act 1982 and ensure that the Commonwealth-SA regulatory framework and bilateral agreements do not facilitate this mines legal privileges and rehabilitation funding uncertainty.

13.
13.

Ensure that the rehabilitation and closure plans and capacity Australian or ASX listed corporations engaged in off-shore uranium projects is consistent with best industry practise and Australian standards and community expectation.

Regulatory oversight of mine rehabilitation The Australian Government’s primary piece of legislation for regulating mining activity is the Environment Protection and Biodiversity Conservation Act 1999.
In addition, the government has oversight of a range of other national mechanisms, including National Environmental Protection Measures and corporate disclosure and accountability obligations under corporation law.

The Commonwealth, through the EPBC Act, has a clear and ongoing role in the regulation of mining impacts on the environment and the performance and security of mining rehabilitation.
As of early 2016 there were 129 projects for which the Australian Government had placed specific conditions of approval under the EPBC Act that related to the rehabilitation of a mine site (this is out of approximately 420 operating mines nationally).1 In March 2017 the Australian Government released the independent national State of the Environment Report.

The report specifically noted the ongoing impact of legacy mining sites.
In drawing up its key findings, along with noting the decline of biodiversity and explosion in land- clearing, the authors made a key finding that: “Although mining developments have slowed in recent years, the ongoing environmental impact of former mining sites and the expansion of unconventional gas extraction are 1 Standing Committee on Environment and Communications Question 62 – Additional Estimates 24 February 2016 http://www.aph.gov.au/~/media/Committees/ec_ctte/estimates/add_1516/environment/q62.pdf Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 emerging concerns, particularly because of concerns for safety and competition with other land uses” 2 Mining legacies and rehabilitation are a significant issue that require a strategic and well-coordinated response nationally.
There are reportedly more than 50,000 legacy mines in Australia, many of which are more than 40 years old.3 Whilst these represent significant hazards, these mining operations pale in comparison to modern mines, that number in their hundreds and fundamentally and permanently alter landscapes and hydrology due to their size and scale.

The regulatory responses to mine-site rehabilitation differ across jurisdictions.

Attachment A has further detailed background of Australia’s regulatory regimes.
Discussion of case studies, poor rehabilitation performance, insufficient bonds and inappropriate bond systems are outlined in this submission.

There are several different impacts that can affect communities neighbouring mines, noise, dust, access and safety to name a few.

Lack of rehabilitation and community transition planning for when mining is no longer viable in these regions have largely let communities down.
As Australia and the world transition to a clean economy as part of the Paris agreement, more coal mines will need to close.

At the same time, there will be a need to rehabilitate these mine-sites over decades to ensure they are safe and do not pollute the environment.

Mine rehabilitation will present an opportunity for employment of skilled labour in a variety of tasks, for example in backfilling voids, monitoring and managing water quality and replanting habitats and pastures.
The opportunity that complete mine site rehabilitation can play in just transitions for mine affected communities and workers warrants further exploration.

The current legal frameworks do not adequately reflect community expectation when it comes to mine-site rehabilitation, especially when it comes to environmental outcomes, community well- being, human health and who pays for rehabilitation.
At the same time, there are a range of strategies that corporations use to avoid their rehabilitation liabilities, including letting mines sit idle in ‘care and maintenance’, offloading mines with rehabilitation liabilities to smaller players and putting operations into liquidation.4 There needs to be defining principle of our national environmental law that specifies that polluting companies must internalise the environmental and social costs of their business and clean up and compensate for the environmental harm that arises from their activity, as presently no such provision exists.
Recommendations: 1.

Ensure all environmental and financial regulatory mechanisms that authorise and govern mining activity are based on a polluter pays principle 2.

The Australian Government should ensure that a specific legal duty of care for proponents to restore our environment where they cause harm is enshrined in national law.
2 State of Environment (2016) Key Findings - Overview https://soe.environment.gov.au/theme/overview/key- findings?year=96#key-finding-79926 3 Ground Truths: Taking Responsibility For Australia’s Mining Legacies, Minerals Policy Institute http://www.mpi.org.au/wp- content/uploads/2016/06/Ground-Truths-2016-web.pdf 4 Dodging clean up costs Environmental Justice Australia https://envirojustice.org.au/sites/default/files/files/EJA_Dodging_clean_up_costs.pdf Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 Lack of long term performance in postmining landscapes benefiting biodiversity Most conditions placed on mining rehabilitation under the EPBC Act relate to impacts on threatened species.
Generally, these conditions set performance criteria for rehabilitation of habitat, as mitigation to ongoing impacts on the species.

As discussed further below, the use of mine rehabilitation as an offset under the EPBC Act is virtually precluded under the provisions of the national offsets policy.

There are some examples of positive biodiversity outcomes for mine-site rehabilitation.
For example, in some older legacy underground and shaft mines, threatened bat species have taken up residence in lieu of cave habitat.

In Western Australia, Alcoa’s bauxite mine on the Darling Range has been studied as an example of biodiverse restoration of Jarrah forest.5 Despite some successes, there are serious questions to be raised as to the long-term performance of mine-site rehabilitation for the benefit of threatened species and biodiversity.
Despite the above examples, there are numerous scientific studies that highlight the failure of post-mining rehabilitation and recolonization by suitable species of endemic flora and fauna, including:  Koala occurrence on post-mining landscapes in Queensland6  Poor vegetation recovery on post-mining landscapes in the northern Australia7  Colonisation of post-mining landscapes in monsoonal Queensland by fauna8 It remains highly uncertain and unlikely that mine site rehabilitation can effectively restore pre- mining ecosystems, assemblages and habitats, especially for threatened species.
In general, there is a lack of data collection and transparency in post-approval monitoring by the Department of Energy and Environment in relation to reporting on the effectiveness of EPBC Act approval conditions.
This has been a key aspect of audits completed by the national audit office, which found that the Department’s “regulation of approved controlled actions—particularly in relation to compliance monitoring—does not instil confidence that the environmental protection measures considered necessary as part of the approval of controlled actions have received sufficient oversight over an extended period of time”.9 While the Department is taking some steps to address these, in most cases the Department is unable to answer the question as to whether their regulatory functions are improving the health of the environment.
This, again, is reinforced by a finding of the 5 Koch, J. M. and Hobbs, R. J.

(2007), Synthesis: Is Alcoa Successfully Restoring a Jarrah Forest Ecosystem after Bauxite Mining in Western Australia?.

Restoration Ecology, 15: S137–S144.

doi:10.1111/j.1526-100X.2007.00301.x 6 Cristescu, R. H., Rhodes, J., Frére, C. and Banks, P. B.

(2013), Is restoring flora the same as restoring fauna?

Lessons learned from koalas and mining rehabilitation.

J Appl Ecol, 50: 423–431.


doi:10.1111/1365-2664.12046 7 Gould, S. F. (2012), Comparison of Post-mining Rehabilitation with Reference Ecosystems in Monsoonal Eucalypt Woodlands, Northern Australia.

Restoration Ecology, 20: 250–259.

doi:10.1111/j.1526-100X.2010.00757.x 8 Gould Susan F. (2011) Does post-mining rehabilitation restore habitat equivalent to that removed by mining?

A case study from the monsoonal tropics of northern Australia.
Wildlife Research 38, 482-490. https://doi.org/10.1071/WR11019 9 Managing Compliance with Environment Protection and Biodiversity Conservation Act 1999 Conditions of Approval https://www.anao.gov.au/work/performance-audit/managing-compliance-environment-protection-and-biodiversity- conservation-act Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 ANAO, which in its follow-on audit in 2017 found “limited progress has been made in relation to the implementation of broader initiatives to strengthen the department’s regulatory performance”.10 This is not to suggest that the Department of Environment and Energy regulatory work is without merit, but it does highlight a continued practice of reactive monitoring and a lack of evaluation of environmental outcomes from regulated activities.
Since the implementation of the water trigger under the EPBC Act the federal government has not taken a proactive approach into investigating or conditioning the rehabilitation of coal mining sites in relation to the protection and impact on water resources.

This is somewhat alarming considering the most significant and ongoing impacts of poorly rehabilitated mines, both underground and above ground, are impacts to water.
Effective rehabilitation is critical to ongoing protection and safe management of water resources (discussed further below in relation to final voids).

Recommendations 3.
That the Department of Environment and Energy develop: a. a transparent and open system for approvals data, including searchable condition sets and centralised monitoring data for projects; b. a framework for measuring and reporting on the environmental outcomes of its regulatory activities; and c. a nationally consistent approach to conditioning for the performance and operation of mine rehabilitation for the benefit of matters of national environmental significance, including: i. performance and occupancy criteria for habitat restoration for threatened and migratory species and ecological communities; desired environmental outcomes, void infill and landscape repair, make-good arrangements and steady state conditions for water resources; and utilisation of bonds or other financial assurances for the rehabilitation of groundwater, air pollution and threatened species and ecological community impacts.
ii.

iii.

Rehabilitation liabilities for Australia’s modern mega-mines Mining legacies represent one of the most significant negative environmental externalities in our economy, in terms of the persistence, impact and cost to ameliorate.

Failure to ensure private entities, which derive significant commercial benefit from publicly owned mineral resources, are fully liable for the clean-up costs of mining activities is one of the clearest examples of environmental cost-shifting to the public.
Evidence of failures of the system of financial assurances and bonds are rife.

These failures include governance, transparency, reporting, accountability and performance.
Specific examples of recent failures in adequate financial assurance being held by different levels of government include: 10 Monitoring Compliance with Environment Protection and Biodiversity Conservation Act 1999 Conditions of Approval: Follow-on audit https://www.anao.gov.au/work/performance-audit/monitoring-compliance-epbc-act-follow Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27  Hazelwood Coal Mine and power station, Vic – The Hazelwood Mine Fire Inquiry identified a shortfall in the rehabilitation bond, and required it go from $15 million to $73.4 million,11 meanwhile post closure, owners Engie have estimated that the cost of rehabilitation would likely be more than $740 million.12  McArthur River Mine, NT – Media reports have stated the amount held by the Northern Territory Government to be around $140 million, though the Government has refused to release the final bond amount.13 Public estimates are that the rehabilitation liability for the mine (discussed further below) is between $550 million and $1 billion.14  Ellendale Diamond Mine, WA – Ellendale went into liquidation, after cashing in a $2 billion performance bond.
The company, once folded, passed a potential $28 - $40 million liability to the Western Australian Government under its Mine Rehabilitation Fund, even though the company only had contributed $818,000 to the fund.

15 16  Texas Silver Mine, Qld – In 2016 it was reported the abandoned mine risks spilling heavily polluted water into Murray Darling Basin.
Queensland Government holds only approximately $2 million in financial assurance for the mine, despite the estimated clean up being more than $10 million.17 In 2015 it was estimated that Queensland held $5.38 billion in rehabilitation securities, in the form of cash or bank guarantees.
More recently it has been stated that New South Wales holds $2.2 billion.18 However, it was estimated by an expert from the University of Queensland that it would cost 10 times that amount to ensure that mines would be adequately rehabilitated in line with community expectation.
This included ensuring that would be no contamination of surrounding lands and waterways, that the landform would be safe and stable and the site would be sustainable over the longer term.19 In its 2014 audit into environmental regulation the Queensland Auditor General was highly critical of that states capacity to effectively safeguard against environmental harm and financial liability arising from poorly rehabilitated mines, noting: 11 Latrobe Valley brown coal mine bonds increased in Hazelwood fire response http://www.theage.com.au/victoria/latrobe- valley-brown-coal-mine-bonds-rise-dramatically-in-hazelwood-fire-response-20160415-go76u2.html 12 Hazelwood rehabilitation estimated to cost $743 million but may rise, Engie says ABC News 20 Jan 2017 http://www.abc.net.au/news/2017-01-20/hazelwood-rehabilitation-to-cost-743-million-engie-says/8197784 13 Ground Truths: Taking Responsibility For Australia’s Mining Legacies, Minerals Policy Institute http://www.mpi.org.au/wp- content/uploads/2016/06/Ground-Truths-2016-web.pdf 14 Calls to halt McArthur River mine operations over safety and remediation concerns https://www.theguardian.com/environment/2016/aug/21/calls-to-halt-mcarthur-river-mine-operations-over-safety-and- remediation-concerns 15 New Minister warns mine ‘rogues’, The West Australian 31 March 2017 https://thewest.com.au/business/mining/new- minister-warns-mine-rogues-ng-b88430792z 16 WA Resources Update | March 2016https://www.gtlaw.com.au/wa-resources-update-march-2016 17 Pump crews work at abandoned silver mine to keep toxic spill out of Murray-Darling Basin http://www.abc.net.au/news/2016-08-25/emergency-action-taken-to-prevent-texas-heavy-metal-discharge/7784224 18 Dark side of the boom (NSW) What we do and don’t know about mines, closures and rehabilitation in New South Wales http://www.tai.org.au/sites/defualt/files/P192%20Dark%20side%20of%20the%20boom%20-%20NSW%20FINAL.pdf 19 Industry insider warns taxpayers may foot bill for mine rehabilitation unless government, industry step up ABC News 19 Sep 2015 http://www.abc.net.au/news/2015-09-19/taxpayers-may-foot-bill-for-mine-rehabilitation/6787954 Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 “Environmental rehabilitation at the expense of those in the mining industry whose activities cause the damage, continues to remain an unrealised aspiration.
Environmental rehabilitation does not always happen once approved resources activities cease.

A cause of unsuccessful rehabilitation is the inability of the operators to meet the rehabilitation requirements which, in some cases, may be unachievable.

This means some sites go into care and maintenance and a few operators forfeit the financial assurance to the state.
As the financial assurance is often insufficient to cover the estimated cost of site rehabilitation, the state is left with an increasing legacy of sites that are not rehabilitated.

There are a number of reasons why a mine might go into care and maintenance, such as changes in world commodity prices.

It can also be used as a means of avoiding rehabilitation.
There is no clear definition of care and maintenance sites and there are a lack of protocols between EHP and NRM about the management of these sites.

This results in sites remaining in care and maintenance while the departments dispute over the administrative and regulatory responsibility for the site.

There is no clear record of financial assurance held by the state because some assurance is held by NRM and some is held by EHP.
Inadequate communication and processes between the two departments mean there is no reconciliation of records between the departments against funds held.
At times, EHP staff did not know whether the financial assurance they required from an environmental authority holder had been requested, received or retained by NRM.”20 The NSW Audit Office is currently undertaking an audit into whether the NSW government maintains adequate security deposits to cover the liabilities associated with mining rehabilitation, including the decommissioning of infrastructure and any long term post-closure management requirements.
This audit is anticipated to report its findings in mid-2017.

The fact that in many cases governments refuse to disclose the specific value of the bonds or assurances held for an individual mine is alarming.

Similarly, the lack of data or transparency on closure, abandonment and rehabilitation also warrants concern.
As noted by The Australia Institute: “When it comes to data on the end of mine operations – of how many mines have been abandoned or how many have been successfully rehabilitated and relinquished for other use – estimates are not ambiguous so much as but absent.
There is very little official, comprehensive, publicly available data on mine abandonment or relinquishment in Australia”21 The lack of transparency associated with these costs and liabilities, both by the companies to their shareholders and government to citizens, needs to be remedied.

Recommendations 4.
Recommendations 4.

The development of clear national standards for mine rehabilitation accounting, including: full closure costs and post mine management requirements over the life of the site (including perpetual management and reporting) and requiring full disclosure by governments.
20 Environmental regulation of the resources and waste industries (Report 15: 2013-14) https://www.qao.qld.gov.au/reports- parliament/environmental-regulation-resources-and-waste-industries 21 Dark side of the boom (NSW) What we do and don’t know about mines, closures and rehabilitation in New South Wales http://www.tai.org.au/sites/defualt/files/P192%20Dark%20side%20of%20the%20boom%20-%20NSW%20FINAL.pdf Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 5.
That environmental impact assessments include the full cost estimates of the total mine rehabilitation liability, on-going management, future land use and financial assurances to meet stated objectives.

6.

Implementing a national legal obligation for closure liability accounting and reporting on a site-by-site basis, and ensuring this is reflected in annual financial statements and as a separate line item in company balance sheets.
Final voids and legacy landscapes Mining leaves long-term legacies and associated environmental impacts as discussed throughout this submission.

This is especially the case where large open pits are left in the wake of mining operations, which can easily exceed more than 100 metres in depth.
In NSW alone it has been estimated that there are at least 45 voids with a total of 6,050ha of voids either planned or approved, covering an area greater than all of Sydney Harbour.22 Impacts on the water table through mining are becoming more well-known as we see large scale mining operation alter the hydrology of entire regions and catchments.
Poor, inadequate or sometime absent remediation of these impacts, especially from heavy metal and coal mining, can lead to serious ongoing damage to environment health.

This especially applies to the ongoing water quality in final voids and abandoned pits.

As noted by Energy Resource Insights: Modern coal mines have pits that may extend 150 metres or more below the natural water table.

This means water impacts are a key issue with final voids.

In most cases, lakes will form in the voids.


These will draw down local groundwater and take significant periods of time to fill with water, often centuries.

Water quality in these final void lakes is typically poor and will worsen over time.

These lakes will become increasingly saline.

A scientific study estimated that one large void in the Hunter Valley may contain approximately 1 million tonnes of salt after a period of 500 years.
Should these lakes overfill, the flooding of water onto surrounding land would have a detrimental impact.

The full extent of this toxic legacy is poorly understood.

Groundwater assessments for mining approvals often address final void water chemistry very poorly.

In addition, there are significant variations in both the quality and nature of predictions contained in environmental impact assessments.
Most companies plan to close their operations when mining is occurring at the deepest point they consider economical.

At this point, the highwall is therefore at its greatest - potentially hundreds of metres tall.

These highwalls are often unstable over long time periods.

This can present a safety risk, with land slips endangering nearby people, animals and structures.23 In Queensland, the Carmichael Coal Mine will leave numerous final voids.
The base of the deepest, Pit G, will be more than 300 metres from its highest edge in its final landform, this is taller than any of Australia’s sky-scrapers.
More than 28,000 hectares is required to be rehabilitated for the mine according to the companies own documents.24 Given the scale of the impacts associated with the 22 Energy Resource Insights - The Hole Truth - http://downloads.erinsights.com/reports/the_whole_truth_LR.pdf 23 Ibid 24 Carmichael coal mine Closure and rehabilitation strategy http://www.adaniaustralia.com/docs/download/appendix-r1-mine- closure-and-rehabilitation-strategy Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 mine the cost to rehabilitate the Carmichael Coal Mine will most likely exceed $1 billion, however final figures determined by the Queensland Government as financial assurance are not yet known.
The conscious decision to allow open pits and voids to remain post-mining is extremely contentious.

It is a decision by policy makers and regulators that explicitly favours corporate interests over the interests and values of affected communities, local stakeholders and the environment.
In places like the Latrobe Valley in Victoria and the Hunter in NSW, the prospect of very large final voids now faces communities grappling with the mining down-turn and the transition of their local communities and economies.

Proposals to fill these voids with water to create lakes are largely flawed and give little consideration to the climate and water resources available on the driest inhabited continent on earth.
In contrast to the approach of Australian policy makers, the United Stated legislated for the filling of voids in the 1970’s.25 The case of McArthur River zinc, lead and silver mine in the Northern Territory could arguably be one of the most significant mining regulatory failures in Australia’s recent history.
Despite a series of approvals from both the Commonwealth and the Northern Territory Government the project has been littered with ongoing environmental and health impacts, including significant waste dump seepage and drainage issues, pollutants entering the MacArthur river system and most notably the spontaneous combustion of the waste dump that burned for years.

This coupled with lack of adequate financial assurance has been a recipe for regulatory failure and environmental disaster.
Despite numerous enquiries, and increase in oversight by the NT EPA, reporting by The Australian Newspaper in April 2017 highlighted the ongoing inadequacies of the regulation of the mine site.
The Australian noted that “data from the mine’s own air-quality monitor show that on 31 occasions between September and last month, atmospheric sulphur dioxide concentrations averaged over a one-hour period exceeded the National Environment Protection Measure standard.”26 The story also pointed to a complete lack of awareness of the data by the EPA.

There is currently another environmental impact assessment process considering the management of the MacArthur River Mine waste dump.
The assessment falls under the bilateral agreement between the Commonwealth and the NT.

The proposed rehabilitation schedule again flags leaving an open pit at the site.

However, MPI note that the site is a prime example of the need to backfill final voids: “The McArthur River site, given the major and ongoing AMD risks it is managing, also presents a strong example for the use of complete pit backfill.
The principal technical arguments include:  Sulfidic waste is below ground level and erosion of engineered soil covers is avoided;  Sulfidic waste is below the water table, and given the low solubility of oxygen in water and the time it takes for oxygen to diffuse through the thick cover of mine wastes, this almost eliminates the availability of oxygen to drive the biogeochemical process of sulphide oxidation and AMD;  Deep-rooted trees cannot penetrate through and compromise any engineered soil covers, since thick roots provide open pathways for the infiltration of water; 25 Energy Resource Insights The Hole Truth: The mess coal companies plan to leave in NSW http://downloads.erinsights.com/reports/the_whole_truth_LR.pdf 26 Authorities oblivious to toxic mine breaches The Australian - April 8 2017 http://www.theaustralian.com.au/national- affairs/authorities-oblivious-to-toxic-mine-breaches/news-story/d95f1a9f66542b4d65e10663d69d8c4c Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27  Sulfidic waste is well below the zone where interaction with the above ecosystem would be important, such as tree roots and burrowing animals27 Current practise in relation to void management in Australia is widely out of step with community expectation and international best-practise.
It leaves the public to endure a fundamentally altered landscape long after mining has ceased.

The failure to adequately fill final voids will leave the landscape pockmarked and scarred, with little hope of other agricultural or environmental uses.

Recommendation: 7.

That national standards are developed and enforced requiring the backfilling of voids, specifically in relation to protection and managements of matters of national environmental significance and water resources.
Enabling mine site rehabilitation to be considered as an offset A recent policy shift emanating from NSW (under the NSW Major Projects Offsets Policy) enables the consideration of mine site rehabilitation as a component of a mine proponent’s biodiversity offsets package.
In contrast the use of mine site rehabilitation to offset residual impacts from a mining development is generally precluded under sections 7.6 and 7.7 of the EPBC Act offsets policy, which relate to ‘additionality’ and timeliness respectively.28 Nonetheless the NSW Major Projects Offsets Policy has been accredited under the assessment bilateral agreement.

In NSW mine site rehabilitation is a standard lease requirement under the NSW Mining Act 1992.
The standard requirement as part of any mineral or coal mining lease is the rehabilitation of the disturbed site to the satisfaction of the Minister for Resources and Energy.

This must be done in accordance with a Mining Operations Plan (MOP) which then must identify the post mining land use and set out a detailed rehabilitation strategy.

These are activities that are already required to occur in the absence of an offset proposal.
There may be some capacity for post mining land use to be additional above a specified baseline – such as that set in the mining lease or MOP, but such activities will fail to deliver timely offset outcomes.

Under the EPBC Act offsets policy, offsets must be delivered in a timely fashion, this is defined within the policy as being at or before the time of impact.
Whilst it is convenient for mining companies to discharge their mining lease obligations and meet their offset requirements through mine site rehabilitation, there is very good reason why such activities are not considered suitable offsets – primarily it is not physically possible to mine and rehabilitate the same site at the same time.

Time lags between operational extraction and mine-site rehabilitation can be substantial, often decadal.
Once rehabilitation commences the time until any native vegetation represents suitable habitat for EPBC Act listed species or communities can again take decades, let alone time until species occupancy.
In many cases mine site rehabilitation has delivered less than ideal results for habitat 27 The Mcarthur River Project: The Environmental Case For Complete Pit Backfill http://www.mpi.org.au/wp- content/uploads/2016/08/The-McArthur-River-Project-The-Environmental-case-for-Complete-Pit-Backfill-1.pdf 28 EPBC Act offsets policy 2012 http://www.environment.gov.au/system/files/resources/12630bb4-2c10-4c8e-815f- 2d7862bf87e7/files/offsets-policy_2.pdf Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 restoration and threatened species occupancy – with substantial failures in ongoing rehabilitation and management, as noted through a range of case studies highlighted in this submission.
Further, the NSW Framework for Biodiversity Assessment (FBA) methodology is highly unlikely to deliver equivalent or better outcomes to the EPBC Act Offsets Assessment Guide for mine site rehabilitation (notwithstanding the likely breaches of Sections 7.6 and 7.7 of the EPBC Act offsets policy noted above).
Generally, the NSW FBA generates more value of offset through its credit calculation for mine site rehabilitation, as it does not account for the significant time lag between the impact occurring and the offset deliverable.

This factor is explicitly accounted for under the EPBC Act offsets assessment guide and has a very significant bearing on outcomes generated through the guide.
This is due to the time until ecological benefit and threatened species status functions that drive much more stringent requirements under the EPBC Act process.

The Department of the Environment and Energy has acknowledged this through numerous questions on notice and responses to mine rehabilitation strategies.
For example, evidence provided by the Department to the Senate Environment and Communications committee noted that: “Mine rehabilitation can contribute in a limited way to conservation outcomes in large coal mines.

While open coal mine pits have limited capacity for rehabilitation, land cleared for other infrastructure associated with large coal mines can be rehabilitated, particularly at mine decommissioning.
Under the EPBC Act Environmental Offsets Policy and Offsets Assessment Guide, the conservation gain of proposed mine rehabilitation is limited by: the uncertainty of rehabilitation success, particularly on land that is highly degraded; and the time to ecological benefit, given the time lapse between land clearing and rehabilitation.”29 The Department has been less equivocal when providing specific advice to proponents, noting in its comments on the Shenhua Watermark Coal Project that: “rehabilitation of disturbance footprints does not qualify as an offset and should be referred to as a component of the project’s ongoing operations rather than an ‘offset’”30 Further internal documents obtained via freedom of information have also demonstrated that, in its view, mine rehabilitation was of concern when assessing the suitability of the NSW Major Projects Offsets Policy, under the bilateral agreement, along with a series of other inconsistencies.31 Despite these initial concerns the policy was accredited by the Government.
Concerns were also voiced within NSW Government agencies in relationship to the utilisation of mining rehabilitation as an offset approach.

Freedom of information documents revealed significant concerns by a key agency in relation to the utilising of mining rehabilitation for offset credits.
The Office of Environment and Heritage noted: 29 Question on Notice No 127 Additional Estimates 29 October 2014 http://www.aph.gov.au/~/media/Committees/ec_ctte/estimates/supp_1415/environment/answers/q126.pdf 30 Watermark Coal Project (SSD-4975 and EPBC 2011/6201) Shenhua Watermark Coal Pty Ltd Merit Review Comments – Department of Sustainability, Environment, Water, Population and Communities https://majorprojects.affinitylive.com/public/d20bc3aa4ce96af431feb844312a798a/Watermark%20Coal%20Project%20- %20SEWPaC%20Submission.pdf 31 NSW to take over federal environmental approvals despite not meeting criteria, Guardian Australia https://www.theguardian.com/australia-news/2015/sep/23/nsw-to-take-over-federal-environmental-approvals-despite-not- meeting-criteria Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27   "there is no certainty that functioning ecosystems can be restored to their original value through rehabilitation" "believes that the record of success in biodiversity restoration from the rehabilitation of degraded land (specifically mine sites) is very poor", with impacts lasting "multiple decades": and  "OEH questions whether restoration of biodiversity on a degraded site is even possible,"32,33 Discharging offset liabilities through rehabilitation is an overt strategy to minimise costs, but comes at the significant expense of not delivering environmental outcomes.
In the development of the NSW Major Projects Offsets Policy correspondence obtained via freedom of information from NSW Trade and Investment demonstrated that it actively advocated for the utilisation of rehabilitation as the preferred method for delivering offsets, to counteract any growth in the conservation estate which it viewed as a risk to development.
In correspondence sent 26 September 2013 NSW Trade and Investment stated: “T&I has taken the position that rehabilitation of degraded land should take priority over direct offsetting on high biodiversity value land in many if not most situations where development is temporary.
At the very least, developers should have the option to choose land rehabilitation over direct offsetting by biobanking.”34 However, NSW Trade and Investment went on to note: “T&I has acknowledged that there will always be a significant risk of failure to restore biodiversity in any project for the rehabilitation of degraded land.”35 The decision by NSW to enable mine site rehabilitation to be utilised as an offset was primarily a political one – with the directive given from government.36 This policy position clearly lacks integrity and scientific credibility, and is a clear step down on national standards in relation to offsets and protecting matters of national environmental significance.
Recommendation 8.

The Australian Government should review the NSW assessment bilateral agreement to ensure that the NSW Major Projects Offsets Policy satisfies Commonwealth standards regarding additionality and timeliness of offsets and does not enable mine-rehabilitation to be used as a biodiversity offset where incompatible with these principles.
Radiation and Rehabilitation: the unresolved problem of the legacy of uranium mining Uranium is a mineral with unique properties and uranium mining and processing requires dedicated regulatory attention and poses sustained and significant challenges and risks.
32 http://www.smh.com.au/environment/very-poor-environment-office-opposed-miners-using-rehabilitation-work-as- biodiversity-offset-20160315-gnjfb3.html 33 GIPA583 - Records relating to the NSW Biodiversity Offsets Policy for Major Projects and the Framework for Biodiversity Assessment - peer review report and OEH and other agencies’ comments.
http://www.environment.nsw.gov.au/whoweare/disclosurelog2015.htm 34 Ibid 35 Ibid 36 Ibid Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 ACF welcomes this Senate evaluation of the adequacy of rehabilitation of abandoned mines and mill tailings as we maintain there is a real need for concerted efforts at the legislative level to address the issues of sub-standard rehabilitation and poor post closure monitoring and mitigation across the Australian uranium sector.
There is an urgent need to address the long-term impacts of the Australian uranium sector in a way that does not allow cost shifting from mining companies to the public purse – now or in the future.

A particular concern is the unresolved issue of future management of hazardous uranium tailings.

All uranium mining operations produce large volumes of long lived radioactive wastes (tailings) which need to be contained and controlled on site to reduce the risk of polluting ground and surface water.
These tailings contain around 80% of the radioactivity of the original ore body and, post mining, are far more mobile and bio-available.

A material that was formerly geologically cocooned is now available for dispersal in wind and water.

Tailings pose a long-term human and environmental hazard.
Twenty years ago, a previous Senate inquiry into the uranium sector viewed “tailings management as amongst the most serious challenges facing uranium miners and, indeed, the entire nuclear energy industry in the future.
It will also continue to be a major preoccupation for regulators and scientists as well”.37 ACF maintains that all of Australia’s current and former uranium mines are in urgent need of attention and improvement and we support the view taken by the 2003 Senate Inquiry into the adequacy of federal regulation of the Australian uranium industry.
This found “a pattern of under- performance and non-compliance”, it identified “many gaps in knowledge and found an absence of reliable data on which to measure the extent of contamination or its impact on the environment”.

It concluded changes were necessary “in order to protect the environment and its inhabitants from serious or irreversible damage”.
Australia’s under-performing and under-regulated uranium sector Ranger Uranium Mine, NT: The biggest test of the adequacy of the Commonwealth mine rehabilitation regime will be the current clean up and exit of Energy Resources of Australia from Australia’s longest running uranium operation at Ranger in Kakadu.

Mining has ceased at ranger at the site is now processing remaining ore-stockpiles ahead of the mandated cessation of mining and processing by January 2021.
Energy Resources of Australia (ERA) is required to ensure that: (i) the tailings are physically isolated from the environment for at least 10,000 years; (ii) any contaminants arising from the tailings will not result in any detrimental environmental impacts for at least 10,000 years.38 ACF doubts that the corporate, technical and political capacity and longevity exists to meet these requirements.
However, we acknowledge and welcome the recognition this requirement gives to the seriousness and long term nature of the threats posed by uranium mining operations and view this as an industry benchmark.

This ten thousand year isolation standard should be a Commonwealth requirement for operations at all current and any future uranium operations in any Australian jurisdiction.
37 Uranium Mining and Milling in Australia - Report of the Senate Select Committee on Uranium Mining and Milling, May 1997 p.63 38 Ranger uranium mine – Environmental Requirements Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 There has been deep concern from a range of stake-holders over the capacity of ERA to fund the extensive rehabilitation works required at Ranger.
ACF notes and welcomes the commitment by parent company Rio Tinto to offer an additional credit facility to ERA to help provide some increased capacity certainty.

There will be keen interest in this work and Rio Tinto will be long judged by the way they manage Rangers closure, exit and rehabilitation.

The rehabilitation challenges are very significant and the required work standard is very high.
The heavily impacted Ranger site needs to be rehabilitated to a standard where it can satisfy the criteria for inclusion in the surrounding Kakadu National Park World Heritage area.

ACF urges the Committee to give particular attention to this issue and to ensuring that Commonwealth frameworks and forums accurately and fully reflect the aspirations of the regions Mirarr Traditional Owners.

Beverley Four Mile: this mine in South Australia uses a method known as In Situ Leach (ISL) or solution mining.
ISL does not involve extensive open cut or underground mining but is based on the use of an acid solution to dissolve the uranium where it is located and the subsequent pumping of the resultant slurry to the surface for processing.

Australian ISL operations discharge liquid radioactive, heavy metal and other mine wastes directly to groundwater.

There is no requirement – and the miner has no capacity – to rehabilitate the area from the impacts its operations have on groundwater systems.
Other international uranium mining jurisdictions including the USA require ISL operations to rehabilitate groundwater to pre-mining standards.

Australia’s failure to require such basic operational standards is inconsistent with industry leading practise and community expectation and should be addressed as an important part of the rehabilitation requirement of any ISL operation.
Olympic Dam: BHP Billiton’s massive mine in South Australia enjoys considerable political influence and unjustifiable legal exemptions.

It further plans to create the world’s largest radioactive tailings pile without any credible plan to contain this waste for the thousands of years it will remain hazardous.

Olympic Dam is also one the largest industrial users of underground water in the southern hemisphere – in the driest state of the world’s driest continent.
The legal exemptions provided to BHP Billiton under the Roxby Downs Indenture (Ratification) Act, 1982 are a deep concern to ACF and are inconsistent with best regulatory practise.

This concern is increased given the lack of demonstrated rehabilitation financial provision at Olympic Dam.

It was confirmed in response to September 2016 federal Parliament questioning that there “are no bonds held at the Commonwealth or state level in relation to the Olympic Dam project” - this is simply untenable.
This failure to make provision for rehabilitation costs is profoundly deficient and ACF urges the Inquiry to address this in order to provide some community and stakeholder confidence and certainty and assured rehabilitation capacity.
In particular, the legal exemptions provided to BHP Billiton in relation to compliance with the SA Water Act, Environment Protection Act and Aboriginal cultural heritage protections by the South Australian Indenture legislation actively works against the realisation of best environmental and wider outcomes.
Whilst these exemptions are provided under a state law they relate to the extraction of a Commonwealth regulated mineral and improved environmental and cultural protection and rehabilitation certainty is a matter of clear national interest.

ACF commends this deep deficiency in the regulatory architecture of Australia’s largest uranium operation to the Committee’s attention.

Rum Jungle: The Rum Jungle rehabilitation experience is an important case study relating to uranium mining and its legacy.
It is a prime example of the many problems facing uranium mines at the end of Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 their life cycle.

Poor waste management led to long-term environmental impacts at the site.

Belated major rehabilitation work commenced during the 1980s and continues to this day.
A comprehensive study undertaken by Dr. Gavin Mudd found that: “Rum Jungle remains a polluting site…Given that groundwater remains contaminated and waste rock dump infiltration is increasing, pollutant loads into the Finniss River can be expected to intensify in the future, The Rum Jungle U-Cu site, despite significant effort has not met the test of time and remains a recalcitrant and polluting mine.”39 A renewed environmental impact assessment process examining the next round of rehabilitation works required is happening in parallel with this Senate Inquiry.
This works program includes plans for backfilling a former mine pit at the site with material from the existing waste rock dumps and consolidating the remaining waste rock, and any residual contaminated soil, to a new purpose-built waste rock dump.
Ancillary activities include dewatering, treating and discharging contaminated water, native vegetation clearing for new borrow pit areas and road and bridge construction, and landform re-design and rehabilitation of the remnant mine features, including the waste rock dumps, tailing dams, borrow pits and haul roads.

The problems facing Rum Jungle nearly forty years after it ceased operations, are set to continue and possibly worsen.

Moreover, the extensive problems come at the taxpayers’ expense.
Compass Resources Ltd, whose primary focus was the Rum Jungle mineral field, went into voluntary administration in January 2009.

The Compass story and the wider Rum Jungle saga should serve as a cautionary lesson regarding the gap between the promise and the performance of uranium mining operations.
Mary Kathleen: Despite winning an award in 1986 by the Institution of Engineers Australia, the rehabilitation of the Mary Kathleen uranium mine in Queensland has similarly faced substantial problems including: The deliberate release of one million litres of radioactive liquid from evaporation ponds in February 1984 and the use of waste rock to cover radioactive tailings instead of engineered fine soil or clay to lower costs.
This has increased the potential of further groundwater contamination and has led to groundwater and waste rock management problems and further public expense.40 There are continuing serious and unresolved rehabilitation issues at Mary Kathleen today.

Nabarlek: In 1970 Queensland Mines Ltd. discovered Nabarlek, a small high-grade deposit just inside Arnhem Land, 15 kilometres east of Gunbalanya (Oenpelli) in West Arnhem and mining operations commenced in 1979.
The Nabarlek ore body was mined over the dry season and 600,000 tonnes of average 2% grade ore stockpiled for treatment from 1980.

Just over 10,000 tonnes of uranium oxide (U3O8) and sold to Japan, Finland and France between 1981 and 1988.

The mining process generated around 2.3 million tonnes of waste and ceased operation in 1988.
In August 2003, the operators of the closed Nabarlek uranium mine received 95% of the money previously held in a trust fund dedicated to pay for the clean-up and rehabilitation of the mine.
The decision to grant this money was made by officers in the former Northern Territory Department of Business, Industry and Resource Development (DBIRD) and occurred without the knowledge or 39 Gavin M. Mudd and James Patterson, ‘The Rum Jungle U-Cu Project: A Critical Evaluation of Environmental Monitoring and Rehabilitation Success,’ in Broder J. Merkel and Andrea Hasche-Berger (eds.)

Uranium Mining and Hydrogeology V, Saxon Ministry of Environment and Agriculture: Freiburg, Germany, p. 326.
40 Gavin M. Mudd, Uranium Mill Tailings Wastes in Australia: Past, Present and Future Management – Research Report Summary, MAPW National Conference on Nuclear Issues, Canberra, 2005, p. 8.
Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 consent of the traditional Aboriginal owners, the Northern Land Council or the Supervising Scientists Division (SSD) – the Commonwealth agency charged with oversight of uranium mining operations in the Alligator Rivers region.
The return of the bond money was made despite there being no final agreed and approved mine closure plan and despite continuing and unresolved rehabilitation and mitigation efforts at the former mine site.

Further work is still required at Nabarlek and clearly much further work is needed on both a policy framework and practise to ensure that future generations of Australian citizens and taxpayers will not be left footing the environmental, social and financial bill.
Historic mine and industrial sites The South Alligator uranium mines and mills have also caused environmental problems.

Radioactive tailings from mines were discharged onto adjacent floodplains, a poorly funded ‘Hazard Reduction Works’ program has not stood the test of time and high gamma radiation rates still persist in some areas, with erosion problems and perpetual maintenance required.
In addition to mine sites ACF draws the Committee’s attention to unresolved rehabilitation concerns at former trial or processing sites including the Maralinga nuclear test site, the former WMC uranium pilot plant at Kalgoorlie and the Port Pirie uranium tailings dam legacy site.

All require further attention and action.


Australian uranium operations off-shore: Recent years has seen a trend of Australian junior miners seeking to develop projects off-shore, often in areas with limited industry experience or low governance.
ASX listed companies are now active in Africa, Spain and Greenland and ACF urges the Committee to examine whether these operations and the related rehabilitation and closure plans and capacity is adequate and consistent with best industry practise and Australian standards and community expectation.

A particular concern to ACF is the current status of Paladin Energy’s Kayelekera mine in Malawi.
Production was suspended at this controversial operation in 2014 and the project remains in extended care and maintenance.

Local community groups and national civil society organisations have raised concerns over the continuing impacts of the mine and the company has declined requests by Australian non-government organisations to discuss the operation and related concerns.
ACF urges the Committee to examine the status of rehabilitation works and environmental impacts at this operation and the wider adequacy of the regulatory framework and compliance of Australian uranium companies operating outside Australian jurisdiction.

Recommendations 9.
Recommendations 9.

That the radioactive mine tailings standard of isolation for a period of not less than ten thousand years required at the Ranger mine in Kakadu should be a Commonwealth requirement for operations at all current and any future uranium operations in any Australian jurisdiction.

10.
10.

That there is a review of the adequacy of current closure and rehabilitation plans at the Ranger mine in Kakadu and that Commonwealth frameworks and forums accurately and fully reflect the aspirations of the regions Mirarr Traditional Owners.

Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27 11.
That the Committee undertake a comprehensive review of previous federal Parliament Inquiries into the uranium sector and a compliance and implementation audit of extant recommendations.

12.

That the Committee actively address the legal exemptions provided to BHP Billiton in the South Australian Roxby Downs Indenture (Ratification) Act 1982 and ensure that the Commonwealth-SA regulatory framework and bilateral agreements do not facilitate this mines legal privileges and rehabilitation funding uncertainty.
13.

Ensure that the rehabilitation and closure plans and capacity Australian or ASX listed corporations engaged in off-shore uranium projects is consistent with best industry practise and Australian standards and community expectation.

Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilitiesSubmission 27