Environmental Impact Assessment (EIA) refers to any process that seeks to assess the likely or possible impacts of a development or project before a decision is made as to whether or not the development or project should proceed, and if so, under what conditions. These days, it is to be hoped that almost every decision made by governments, companies and individuals will include some component of EIA. Some forms of EIA are required by law (such as an Environmental Impact Statement i.e. EIS under the Planning, Development and Infrastructure Act 2016 (SA), EIA under the Mining Act 1971 (SA), or an Environmental Impact Report under the Petroleum and Geothermal Energy Act 2000 (SA). There are other provisions in the Mining Act 1971 (SA) that are important in relation to environment protection, including the referral of tenement applications in ‘specially protected areas’ to other Ministers, including the Adelaide Dolphin Sanctuary, and River Murray. In other cases, the requirement of a government department to take the environment into consideration when making decisions is purely a matter of policy and not set out in any Act of Parliament.

Two main Acts covering EIA are the Planning, Development and Infrastructure Act 2016 (SA) (also discussed in LOCAL GOVERNMENT AND PLANNING) and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth). For mining and petroleum activities, EIA requirements are largely dealt with under the Mining Act 1971 (SA) and Petroleum and Geothermal Energy Act 2000 (SA); except for some large proposed mining developments of economic social and environmental significance which could be ‘called in’ under the Planning, Development and Infrastructure Act 2016 (SA) procedures. The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and associated regulations cover the exploration and recovery of petroleum and greenhouse gas activities in Commonwealth waters (those areas that are more than three nautical miles from the territorial seal baseline).

The Environment Protection and Biodiversity Conservation Act 1999 requires that a controlled action must be assessed before it can be approved. Controlled Actions are defined as actions that are likely to have a significant impact on a matter or national environmental significance (MNES). The Act sets out the process to be followed, which includes consultation with the responsible State or Territory Minister as well as public consultation. Not all environmental impacts of the action are considered by the Commonwealth when choosing the appropriate level of assessment. Only the relevant impacts of a matter of national environmental significance that trigger the EIA process in the first place are considered. Once an action is declared to be a controlled action, the Minister can assess the matter in one of six ways:

An Accredited Process (or "one-off accreditation") This process is carried out under some other Commonwealth or State law. For the purposes of the EPBC Act, the Minister can accredit that other process if he or she is confident that the relevant impacts will be assessed. At the conclusion of the process, the Minister will receive a report on the outcome of the EIA so that an informed approval decision can be made. This is the process most likely to be used by the Commonwealth in assessing an action where a State EIS is also required. It avoids the need for two EISs to be prepared.

Assessment on Referral InformationUnder this process the Minister assesses the proposed action on receipt of referral information, so long as it complies with Division 3A of the Act. The Secretary to the Department of Agriculture, Water and the Environment (DAWaE) must prepare a draft recommendation report, publish the report on the internet, and invite public comment on the report. After the end of the period for comment, the Secretary must finalise the draft recommendation report, taking into account any comments received during the period. A finalised recommendation report is then given to the Minister, with either a copy of comments received during the period for comment, or a written statement to state no comments were received during the period.

Assessment on Preliminary Documentation Under this process the Minister assesses the proposed action on preliminary information provided by the developer. The Minister can approve the proposed action if he or she believes on reasonable grounds based on this preliminary documentation that the impacts are properly identified and will be properly managed. There is also a requirement for the Secretary to the Department of Agriculture, Water and Environment (DAWaE) to prepare a report to the Minister.

A Public Environment Report (PER) This process involves the Minister preparing guidelines and the developer preparing a draft PER that is published and made available for public comment. Any public comments are submitted to the Minister along with a report from the Secretary of the DSEWPaC, before the Minister makes a decision.

An Environmental Impact Statement (EIS) Under this process, guidelines are prepared, a draft EIS is prepared and published and public comment is invited. The level of documentation required is extensive and will normally consist of hundreds of thousands of pages. The EIS will pass through a number of stages before a final copy is submitted to the Minister for approval. A report by the Secretary of the DSEWPaC is also required.

Public Inquiry Under the EPBC Act, an office of Commissioner is established. This person is empowered to undertake a public inquiry into the environmental and other impacts of a proposed action. A public inquiry provides the most thorough process of EIA. On completion of the inquiry, the Commissioner must report to the Minister.

Environment Protection and Biodiversity Conservation Act resources The EPBC Act is the first major environmental legislation where both government and non-government information can be found extensively on the internet. As well as the DSEWPaC links identified elsewhere in this chapter, there is a wide range of material on sites administered by conservation groups such as the World Wildlife Fund, the Humane Society International and the Australian Conservation Foundation. For other relevant links, visit the Environmental Defenders Office web site at http://www.edosa.org.au.

Mining is regulated by both State and Commonwealth law, however the State laws are most important. The Mining Act 1971 (SA) and associated Mining Regulations 2020 (SA) are the main legislation governing mining. Department of Mining policies, determinations and guidelines should also be consulted in addition to the principal Act and regulations. Further guidance can be found at the Department for Mining and Energy Legislation and Guidance webpage (link opens new window).

Whilst the Mining Act covers most of South Australia, it does not apply to land that is the ‘Indenture Area’ under the Roxby Downs (Indenture Ratification) Act 1982 (SA), and land to which the Arkaroola Protection Act 2012 (SA) applies. There are certain other Acts which regulate mining in reserves under the National Parks and Wildlife Act 1972 (SA), and in wilderness protection areas under the Wilderness Protection Act 1992 (SA). Acts relevant to mining on Aboriginal land include Part 9B of the Mining Act, the Native Title Act 1993 (Cth), the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), the Maralinga Tjarutja Land Rights Act 1984 (SA) and the Aboriginal Heritage Act 1988 (SA).. Note also, that some mines are private mines (these are mainly quarries) and there are different provisions in Part 11B of the Act governing these mines. Opal mining is covered by the Opal Mining Act 1995 (SA) and Opal Mining Regulations 2012(SA). Also, special arrangements govern mining in defence areas such as the Woomera Protected Area.

The main legislative requirement in the Act is that all mineral exploration or extraction must be licensed. The Mining Register is the register of licensed mining tenements. A mining tenement includes an Exploration Licence, Mining Lease, Retention Lease or Miscellaneous Purposes Licence. The publicly available register includes information such as the holder of the mining tenements, the area of the tenements and grant, and the expiry date and particular conditions of the tenement.

Licences for exploration, and miscellaneous purposes licences and mining leases are issued subject to certain conditions, some of which are prescribed by the legislation, but most of which are at the Minister's discretion. This high level of ministerial discretion means that it is very difficult to legally challenge environment conditions (or lack of) imposed by the Minister. Traditionally, Courts are reluctant to find that ministerial discretion has been exercised improperly unless there has been a serious error of process.

Another impediment to challenging a minister's decision on a mining matter is that most people will not have locus standi (the legal right to challenge the Minister's decision in court). The Mining Act does not provide for third party challenges or appeals. Generally, the only parties identified by the legislation as having an interest in mining are mining companies, affected landholders and the government itself.

If a mining company intends to export the minerals produced, a Commonwealth export licence is also required. Mining may also be considered a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) if the mining action impacts on a matter of national environmental significance. In such cases, the Commonwealth Environment Minister must assess and approve the action. An Environmental Impact Assessment may be required for the mining site. This is in addition to the approvals required under State law. However, for some activities, to which an assessment bilateral agreement made under the EPBC Act applies, assessment will take place only under the Mining Act. Under recent amendments to the Mining Act 1971 (SA) a new notice provision requires the Minister to undertake public consultation if the proposed mining activity triggers the EPBC Act 1999 (Cth) and any assessment or approval bilateral agreement with the Commonwealth [see ss 70D, 56J, 56ZA].

Application for an Exploration Licence

An exploration licence is required for exploration activities. A company need not conduct Environmental Impact Assessment (‘EIA’) before applying for an Exploration Licence, but once the Exploration Licence is granted, the company cannot conduct exploration activities until a Program for Environment Protection and Rehabilitation (‘PEPR’) has been approved. The company must comply with the PEPR, as this is required by the Mining Act 1971 (SA). It is an offence not to do so.

Application for a Mining Lease/Retention Lease/Miscellaneous Purposes Licence

A mining lease (‘ML’) is required for mining production, and to operate a mine. A miscellaneous purposes licence (‘MPL’) is essentially required to construct other infrastructure that is not part of actually extracting the minerals. A company wishing to apply for a mining lease or miscellaneous purposes licence must conduct prior EIA before applying for a lease. The applicant must attach a mining proposal to the application for a mining lease, a retention proposal to the application for a retention lease (‘RL’), and a proposal to an application for a miscellaneous purposes licence. Among other things, these must set out any impacts on the environment, environmental outcomes to be achieved, and the results of any consultation conducted under the Mining Regulations 2020 (SA) in relation to the proposed mine. This is before a lease is granted or a PEPR prepared. The Minister cannot grant the ML/RL/MPL unless satisfied that appropriate environmental outcomes will be able to be achieved.

There is a two step-process for a ML/RL/MPL, including the requirement for a proposal to accompany the application for one of these tenements. This proposal contains the EIA conducted prior to the grant of ML/RL/MPL and provides the Minister with information to determine whether to approve the tenement, and if so, which conditions to place on the tenement.

A proposal/prior EIA does not need to accompany an application for an EL, where EIA takes place only through the PEPR which is prepared after the tenement is approved. For a ML/RL/MPL and an EL, a PEPR must be prepared after the tenement is granted. This also requires EIA, and no mining activities can begin until the PEPR is approved. The PEPR must be publicly available, and strong penalties apply for non-compliance (up to $250 000). The PEPR must be reviewed if there is an application for a change in authorised operations.

When determining conditions to attach to a mineral exploration or production licence (or a PEPR itself), the Minister may consider any factors appropriate to a particular case, but must consider the protection of:

Notice to be given of a tenement application by the Minister

Section 56H of the Mining Act 1971(SA) outlines the notice/advertisement that must be given by the Minister when an applicant has applied for a ML/RL/MPL. The Minister must give notice to the landowner and the local council. Also, the Minister must, before making a decision whether or not to approve the application, or impose conditions, give notice to the public of the application (e.g., in the newspaper) and invite submissions. This is when the general public are able to make submissions. The Minister must give a copy of the submissions to the proponent and require the applicant to respond to any matter. In making their decision of whether to approve the ML/RL/MPL, and on what conditions if any, the Minister must take into account the submissions and any response by the applicant. Again, there is no appeal from a decision to approve a tenement. Note, that the Minister must take into account environmental impacts when making the decision to approve a ML/RL/MPL. New provisions to the Act require the Minister to publish an assessment report.

Compliance with the Act

A breach of PEPR/licence exposes the tenement holder to civil and criminal penalties, suspension or cancellation of the tenement, and administrative orders such as environmental directions and rehabilitation directions. However, there is no provision in the Act for community enforcement; nor is there any avenue for the general public or community to challenge the merits of a decision to approve an EL, ML, MPL or RL.

Notice of entry given by the proponent to the landowner- Exempt land

The notice of entry provisions are addressed under ‘exempt land’ provisions of the Mining Act 1971 (SA) (ss 9 and 9AA). An authorisation (EL/ML/MPL) cannot authorise mining operations on exempt land, unless the benefit of the exemption is waived either through a negotiated agreement, or by the Environmental Resources and Development Court (‘ERD Court’) upon application by the mining company. The recent amendments to the Act now allow an owner of exempt land to apply to the Court for confirmation as to whether the landowner will retain the benefit of the exemption, or whether the Court would waive the benefit of the exemption. Where the Court waives the benefit of the exemption, the Court can impose any conditions it sees fit. The phrase ‘exempt land’ has been viewed as problematical as many landowners do not understand that the benefit of the exemption can be waived by the court – it is not an absolute exemption.

In relation to prospecting and exploration, the notice is a notice of entry onto land to conduct authorised operations. In relation to exploration, the company will have an EL that authorises exploration activities, and the notice of entry is given by the holder of the EL to the landowner to inform them of the intention to enter land and conduct the authorised exploration operations [see Part 9 of the Act].

In relation to a ML/MPL/RL, the notice provisions in Part 9 are notice of an intention to apply for a respective ML/MPL/RL.

The landowner can lodge a notice of objection in the ERD Court to the entry onto land, or to the land, or any part of the land being used for authorised operations i.e., exploration or production. In the case where the notice is one of intention to apply for a ML/MPL/RL, the ERD Court can delay the hearing of a notice of objection to entry onto land until after the application has been determined by the Minister.

Notice is not required in certain circumstances, for example if entry is authorised by an agreement between the landowner and mining company.

The new Mediation Code

A mediation process may be useful for landowners to utilise under the Land Access Dispute Resolution Code- pursuant to Schedule 1 of the Fair Trading (Mining and Resources Industry Land Access Dispute Resolution Code) Regulations 2018.

The Mediation Code (link opens new window) applies to a dispute between a farmer and one or more mining operators in relation to access to land used by the farmer for the purpose of primary production.

Whilst access to a mediation process is not strictly a right under the Mining Act 1971 (SA) (or does it take the place of the objection to entry) affected landowners may still wish to utilise a dispute resolution process.

Other landowner rights include:

The Landowner Information Service (link opens new window) commenced in July 2020, which is a free, independent information service for South Australian landowners on matters related to exploration, extractive minerals (including quarrying) and mining regulatory practices. The service can explain your options, rights and responsibilities. The service does not however provide legal, commercial, compensatory, or financial advice.

The environmental impacts of agricultural primary production in South Australia are covered by the Landscape South Australia Act 2019 (SA) and the Landscape South Australia (General) Regulations 2020 (SA). Details of this legislation are available on the Landscape South Australia website [link opens in a new window].

The Pastoral Land Management and Conservation Act 1989 (SA) deals with the management of sheep and cattle grazing on native vegetation on leases of public land in the outback areas of South Australia. Pastoral leases (or runs) are often thousands of square kilometres in size and many are unfenced. Stock is generally untended and annual (or more frequent) mustering is used to collect stock for sale. In unfenced areas, the location or spread of stock is mainly determined by access to water points. Both natural and artificial watering points are used. The objects of this Act include both resource exploitation and conservation. Conservation objectives are primarily met through a statutory programme of scientific assessment of the condition of land prior to granting or renewal of a lease. Maximum stocking rates are set on the basis of the capacity and condition of the land. Enforcement provisions of the Act include the issue of orders by the Pastoral Board such as orders to de-stock the land for a specified period [s 43]. As pastoral leases consist of rights over public land, an ultimate sanction always exists of cancelling or refusing to renew a lease. To date, this option has never been used.

Fishing (both commercial and recreational) can have a major impact on the environment. This is one of the reasons why fishing is highly regulated. The laws governing fishing are complex and vary according to whether the fishing is being carried out in State, Commonwealth or local government waters or on the high seas (outside Australia's 200km exclusive economic zone).

Within State waters, the main legislation is the Fisheries Management Act 2007 (SA). Amongst the provisions of the Act aimed at conservation are restrictions on:

The contact point for fisheries matters in South Australia is Primary Industries and Regions SA http://www.pir.sa.gov.au.