Rehabilitation on the surface cracks in the system

By Andrew White*

One of those matters is the right to grant a mining lease which overrides the freehold title authorising the extraction of minerals (in the case of coal which almost all owned by the Crown) for the benefit of the wider community.
Underground mining is usually supported by a subsurface mining lease (extending to the surface only in those areas where there is a need for surface “mining operations” and access).
With the rights conferred by a mining lease comes a series of obligations. These obligations in the case of an underground miner include the responsibility to ensure that the manifestations of the surface expression of the underground mining are properly managed (ie the surface is rehabilitated). In New South Wales the Mines Subsidence Board looks after “improvements”. However, the rest of the rehabilitation of the surface is for the holder of the mining lease.
Since the demise of the Coal Mines Regulation Act the regulatory tool used for the regulation of the management of subsidence in New South Wales has been the Subsidence Management Plan (SMP) Approval, the need for which is imposed by a condition of the mining lease.
The SMP Approval is based upon a series of individual property subsidence management plans which are a separate plan of management for each individual property (usually determined per property owner). These are called PSMPs.
The PSMP is a plan for the monitoring and management of the results of surface subsidence for the property concerned.  It is a document which sets out how the miner will discharge its responsibilities for rehabilitation of the surface.
The Guidelines pursuant to which SMPs are prepared and SMP Approvals are issued stress the importance of liaison and consultation between the miner and the landholders. However, it is important to recognise that the SMP is in no way an agreement between the landholder and the miner. It is a plan which requires DPI approval.
If either the SMP Approval or the PSMP becomes or depends upon an agreement between the landholder and the miner then to change it will be a matter which could cause the miner considerable delay and frustration. The landholder is ill equipped to be put in the position where it must approve changes to an SMP and therefore it is inappropriate for the PSMP to be allowed to become an agreement between landholder and miner.
The greatest “crack” in the system however is the lack of a process whereby a miner can gain access to the surface above mining (or adjacent to the surface above mining) to undertake rehabilitation works. Whilst you might think that a landholder would welcome a miner onto a land surface which has impacted by subsidence for the purpose of remediation the impacts of subsidence that is not always the case.
Where the landholder declines access to the surface above underground mined land, the Mining Act does make provision for access to the surface for various purposes (some of which processes involve the intervention of arbitration processes or Mining Wardens Courts). However, there are significant gaps in those rights including the following very material areas:
•    Rehabilitation on the surface above mining
•    Rehabilitation required to be undertaken on land adjacent to areas above mining.
The problem then for the miner is that the SMP Approval and the Mining Lease and the Mining Act all impose positive obligations to rehabilitate and rectify the subsidence related issues (such as ponding, cracking etc). However, the miner lacks the legal ability to gain the access to the land which is required to fulfil that responsibility.
The only way to address this problem in the current legislative regime is for there to be a surface mining lease above the underground mining lease. This is not particularly common in New South Wales.
Section 75V of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) provides that a mining lease cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under this Part: (namely Part 3A EPA Act). Given the absence of rights to gain access to the surface for rehabilitation under the Mining Act, it may be that in the future section 75V of the EPA Act may result in an application (properly made pursuant to an appropriate Part 3A Project Approval) will force the grant of a (limited) surface mining lease above all of the underground mining area.
This a result which miners should consider as it may also provide for the solution to other problems of lack of access to the surface above underground workings (for necessary activities such as gas and water drainage).

* Andrew White is a partner at Sparke Helmore - an integrated, national law firm chosen by corporate and government leaders for the insight, energy and collaboration it brings to legal services delivery.