MINING ACCESS TO WATER RESOURCES – TRADITIONS AND DEVELOPING PRINCIPLES MINING ACCESS TO WATER RESOURCES – TRADITIONS AND DEVELOPING PRINCIPLES ALEX GARDNER UNIVERSITY OF WESTERN AUSTRALIA-FACULTY OF LAW RESEARCH PAPER Silvia Idiris Navpreet Singh Albiona Cokaj IBD

OUTLINE 1. History of the mining and the petroleum laws regarding the taking, diversion and use of water resources 2. Essential concepts of the NWI model of water access entitlements 3. The application of the precautionary principle and adaptive management

KEY QUESTION: Is mining and coal seam gas production subject to they key legal principles that apply to the water resources management, especially the allocation of water resources in circumtances of water scarsity and competing uses? o Map of Australian water resources

AUSTRALIAN WATER POLICY AGREEMENTS :  Water Reform Framework (1994)  Intergovernmental Agreement on National Water Iniziative (2004)  «The Parties agree that there may be special circumstances facing the minerals and petroleum sectors that will need to be addressed by policies and measures beyond the scope of this Agreement» - CLAUSE 34 OF NWI MODEL-

HISTORICAL TRADITIONS AND LEGISLATIVE EVOLUTIONS  Common law  Historical overview of Petroleum Legislation: Western Australia The Petroleum Act Queensland The Petroleum and Gas Production Act New South Wales The Petroleum Onshore Act

HISTORICAL OVERVIEW OF MINING LEGISLATION Western Australia It was one of the first laws to regulate the right to take and use water resources. (Rights in Water and Irrigation Act ) : its main purpose was to regulate the provision of water for irrigation districts. The Mining Act 1904 (WA) RiWI Act 1914 (WA)

THE ROLE OF THE MINING WARDEN  In recent years there has been a debate about the role of the Mining Warden in resolving competition over access to water resources between: a) tenement holders and applicants b) miners and other land users. In particular, the main question is if the Warden has such a role or if the allocation of water resources is simply a question for the agency administering the RiWI Act.  Current licences for mining operations: the taking and use of water resources in mining operations in Western Australia are regulated under the RiWI Act. In particular to get a licence for mining operations, a licence applicant and holder must satisfy a landholder eligibility requirement and licences are typically granted for 10 years while licences are granted for free and are usually issued to the first in time applicant.

QUEENSLAND AND NEW SOUTH WALES The mining legislation in Queensland and New South Wales: The historical and current regulation of the taking and use of water in mining operations under the laws of Queensland and New South Wales, are more similar than the legislative model of Western Australia. The mining legislation in Queensland and New South Wales: The historical and current regulation of the taking and use of water in mining operations under the laws of Queensland and New South Wales, are more similar than the legislative model of Western Australia. Role of specialist courts: Role of specialist courts: Queensland and New South Wales have stronger, but different tribunal regimes for the consideration of water resource impacts of mining.

THE NWI MODEL & REFORMS NSW Water Management Act principles are available to be implemented under the Queensland Water Act The key features of the tradable water access entitlements are that:  they confer perpetual exclusive entitlements  all extractions of water are to be metered and reported  release of unallocated water under a plan would have to be sustainable  regular review to re-set the plan regime Increase the efficiency of Australia's water use, leading to greater certainty for investment, for rural and urban communities, and for the environment

WATER RIGHTS IN AUSTRALIA In 2010, the NWC’s mining and CSG position statements called for the mining and CSG industries to be brought more into the NWI model of water resource management,. Groundwater trading rules are established by the relevant water sharing plan in areas covered by the Water Management Act 2000.

LAWS GOVERNING MINING OPERATIONS NEW SOUTH WALES QUEENSLANDQUEENSLAND WESTERN AUSTRALIA Two elements in the policy that qualify the operation of the NWI model under the Water Management Act. 1.exemptions from obtaining a water access licence for exploration, 2.ensure no more than minimal harm will be done to any water source There is no limit on the extraction or diversion of associated water in the production of CSG. a) The operator must prepare an “Underground Water Impact Report” b) the operators are obligated to do baseline assessments of the wells at risk c)restore a water supply to the impacted licensee rather than to restore the water resource the Pilbara Groundwater Allocation Plan proposes to identify specific areas affected by cumulative impacts of iron or mine dewatering.

CONCLUSIONS The following model for mining and CSG access to water resources is proposed: 1.The NWI model should be preferred for regulating mining and CSG access to water resources 2. If this is not feasible in particular regional circumstances, there should still be: a) cumulative regional limits on mining and CSG access b) obligations to make good harm done to other water users and to high conservation value ecological assets c) the oversight of an independent agency to administer the cumulative limits.

THANK YOU FOR YOUR ATTENTION!

 References: management/default.aspx availability/Groundwater/default.aspx efault.aspx