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2019 MLL426 Mining and Energy Law Deakin University

2019 MLL426 MINING AND ENERGY LAW STUDYGUIDE PREPARED BY PROFESSOR SAMANTHA HEPBURN UNIT CHAIR

Topic 1: Ownership of Minerals and Natural Resources  Mining and Energy Law TB Chapter 1;



Star Energy Weal Basin Ltd v Bocardo SA [2011] 1 AC 320; Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35; [2011] 1 AC 380, 399.

 Di Napoli v New Beach Apartments Pty Ltd (2004) 11 BPR 21, 493, 21,495 [18];  Sale Elderly Citizens Village Inc v Environment Protection Authority Victoria [2018] VSC 266



Wade v NSW Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177, 187.

 Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195  Legislative Examples of Statutory Vesting Provisions: Petroleum (Onshore) Act 1991 (NSW), s6; Petroleum and Gas (Production and Safety) Act 2004 (Qld), s26; Petroleum and Geothermal Energy Resouces Act 1967 (WA), s10; Mineral Resources (Sustainable Development) Act 1990 (Vic), s9; Mining Act 1971 (SA), s16; Mineral Resources Development Act 1995 (Tas), s6. Michael Crommelin,  ‘The Legal Character of Resource Titles” (1998) 17(1) Australian Mining and Petroleum Law Journal 57;  Michael Crommelin, ‘Governance of Oil and Gas Resources

in

the

Australian

Federation’

(2009)

University of Melbourne Law Research Series;



Samantha Hepburn, Ownership Models for Geological Sequestration:

A

Comparison

of

the

Emergent

Regulatory Models in Australia and the United States (2014) 44 Environmental Law Reporter

2

Review Questions for Topic 1 1. Explain the issues relevant to the decision in Star Energy Weald Basin Ltd v Bocardo SA [2011] 1 AC 320. a. Case of trespass. b. Landowner owns all the land above and below their land. Exclusion to all others. However this prevents access to the minerals which are under the ground. 2. What is the basic position regarding the ownership of sub-surface land at common law? a. Anything below the surface of the land belongs to the land owner. To the centre of the earth b. Royal prerogative to gold and silver 3. How has the common law position been modified by statute? a. Statute has vested ownership in the States, whom then issue mining licences to companies to mine the resources b. Retrospective vesting provision 4. What sort of resource interest is a ‘geological storage formation’? a. When Carbon is captured and stored in the ground, it needs to be stored somewhere, which is what a geological storage formation is 5. What is the rationale underlying the ownership of ‘royal minerals’? a.

6. What is the scope of the definition of a ‘mineral’ under the Mineral Resources (Sustainable Development) Act

1990 (Vic)? (a) including— (i) oil shale and coal; and (ii) hydrocarbons and mineral oils contained in oil shale or coal or extracted from oil shale or coal by chemical or industrial processes; and (iii) any substance specified in Schedule 4; (b) excluding water, stone, peat or petroleum;

Topic 2 Resource Titles: Permits, Licences and Leases

 Mining and Energy Law CB Chapter 2  Newcrest Mining (WA) Ltd v The Commonwealth (1997) 71 ALJR 1346  Commonwealth v WMC Resources Ltd (1998) 194 CLR 1  Commonwealth Constitution Section 51 (xxxi) :  ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140;  Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210.  Mathew Storey, “Not of this Earth: The ExtraTerrestrial Nature of Statutory Property in the 21st Century’ (2006) 25 Australian Resources and Energy Law Journal 51.  S. Hepburn, ‘Public Resource Ownership and Community Engagement in a Modern Energy Landscape’ (2017) 34 Pace Environmental Law Review 379  P. A. Glover, The Strength of the Timor-Leste Case and s51(xxxxi) of the Constitution’ (2005) 24 Australian Resources and Energy Law Journal 307.

Revision Questions 1. Explain the difference between onshore and offshore mining and petroleum tenements? 2. What is an exploration licence and what incidental rights does it carry?

2019 MLL426 Mining and Energy Law SG Deakin University

3. Explain the legal character of a ‘mining lease’ 4. What rights, if any, do landholders have where mining tenements have been granted to explorers? 5. Discuss why the High Court in Commonwealth v WMC Resources Ltd felt that an offshore exploration licence could not warrant the protection of s51(xxxi)

Topic 3 Australian Offshore Regulation

 Mining and Energy Law CB Chapter 3  Offshore Petroleum Greenhouse Gas and Storage Act 2006 (Cth), Part 2.2-2.9 and 6.10 (National Offshore Petroleum Titles Administrator (NOPTA) and National Offshore Petroleum and Safety Management Authority (NOPSEMA)  Michael White, ‘Australia’s Offshore Legal Jurisdiction Part 1: History and Development” (2011) 25 (1) Australian and New Zealand Maritime Law Journal 3

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2019 MLL426 Mining and Energy Law SG Deakin University

 Michael White, ‘Australia’s Offshore Legal Jurisdiction Part 2: Current Situation (2011) 25 Australian and New Zealand Maritime Law Journal 19  T. Hunter, ‘Offshore Petroleum Facility Incidents Post Varanus Island, Montaro and Macondo’ (2014) 38 William and Mary Environmental Law and Policy Review 585 

Mining in the Great Australian Bight https://www.theguardian.com/environment/2018/may/ 07/impending-blight-how-statoils-plans-threaten-thegreat-australian-bight

Review Questions 1. Explain the constitutional arrangement regulation of the territorial seas

for

the

2. How is the constitutional arrangement set out in the Offshore Petroleum Greenhouse Gas and Storage Act 2006 (Cth) (OPGGSA)? 3. The United Nations Convention on the Law of the Sea (UNCLOS) set out a framework for jurisdiction in the High Seas. Explain the difference between the Exclusive Economic Zone (EEZ) and the High Seas. What jurisdiction does the Commonwealth have in the EEZ? 4. Explain the scope of a petroleum exploration permit under the OPGGSA 5. How broad is the definition of ‘petroleum’ in the OPGGSA? 6. Explain the scope of an offshore geological storage formation injection licence under the OPGGSA

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2019 MLL426 Mining and Energy Law SG Deakin University

7. Consider the following problem: Esso Petroleum Pty Ltd have a petroleum production lease in Bass Strait. They seek to acquire a greenhouse gas injection licence in order to develop a carbon capture project which will involve the transportation of carbon dioxide from the operational site for petroleum production to geological storage formations existing under the sea-bed. The liquidized carbon dioxide will be transported via underground pipelines. The storage formation for the carbon dioxide is located in the area covered by the production lease. Esso Petroleum Pty Ltd are unsure whether the production lease automatically entitles them to utilise the geological storage area as this area is immediately adjacent to their drilling operations. They seek your advice. Please refer to the relevant provisions of the OPGGSA.

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2019 MLL426 Mining and Energy Law SG Deakin University

Topic 4: Climate Change and the Energy Sector See detailed overview in the powerpoints

 Mining and Energy Law CB Chapter 8  Wayne Gumley, ‘Legal and Economic Responses to Global Warming - An Australian Perspective’ (1997) 14 Environmental and Planning Law Journal 341. 

United Nations Framework Convention on Climate Change (UNFCCC), open for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994), Article 1[3], http://unfccc.int/resource/docs/convkp/conveng.pdf.

 Ross Garnaut, The Garnaut Review 2011: Australia in the Global Response to Climate Change (Garnaut 2011) 

Kyoto Protocol to the United Nations Framework Convention on Climate Change, (Kyoto Protocol) opened for signature 11 December 1997, 2303 UNTS 148 (entered into force 16 February 2005) http://unfccc.int/essential_background/kyoto_protoco l/items/1678.php

 Australian Government, Department of Climate Change and Energy Efficiency, Reducing Australia’s

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2019 MLL426 Mining and Energy Law SG Deakin University

Emission: National Target (2010) http://www.climatechange.gov.au/en/government/redu ce/national-targets.aspx  Christine Batruch, ‘Climate Change and Sustainability in the Energy Sector’ 2017 Journal of World Energy Law and Business https://academic.oup.com/jwelb/article abstract/10/5/444/4565586

 J. Cronin, Climate Change Impacts on the Energy Sector: A Review of Trends and Gaps 2018 https://link.springer.com/article/10.1007/s10584-0182265-4 FURTHER READING ON CLIMATE CHANGE  Michael Power, ‘Emissions Trading in Australia: Markets, Law and Justice under the CPRS’ (2010) 27 Environmental and Planning Law Journal, 134. 



Australian Government, Carbon Pollution Reduction Scheme, Australia’s Low Pollution Future, White Paper, (White Paper) (December 2008) Vol 1, 5-12 http://www.climatechange.gov.au/publications/cprs/whitepaper/cprs-whitepaper.aspx Michael Porter, ‘Reforms in the greenhouse era: Who pays, and how?’ (2009), Growth 61: A Taxing Debate Climate policy beyond Copenhagen, Committee for Economic Development of Australia, http://www.ceda.com.au/media/12013/growth61_porter.pd f

 J. McDonald, ‘A Shore History of Climate Adaptation Law in Australia’ (2014) 4 Climate Law 150  J. Peel, H. Osofsky, A. Foerster, ‘Shaping the Next Generation of Climate Change Litigation in Australia’ (2018) 41 Melbourne University Law Review 793

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2019 MLL426 Mining and Energy Law SG Deakin University

Revision Questions 1. Why is the Energy Sector so critical for climate change? 2. What is the most effective mechanism (in your opinion) for incentivizing decarbonisation in the energy sector? 3. What is the difference between international policy objectives?

domestic

and

Topic 5: Environmental Regulation  Mining and Energy Law CB Chapter 9  Environmental Protection and Conservation Act 1999 (Cth), ss1-24

Biodiversity

 Gray v Minister for Planning [2006] NSWLEC 720; 

Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042 (appeal from a decision dismissing a judicial review challenge – where the Minister’s decision was to approve a coal mine project – alleged error by the Minister in failing © Deakin University

2019 MLL426 Mining and Energy Law SG Deakin University

to determine the “impact” of combustion emissions on the Great Barrier Reef – consideration of s 527E of the Environmental Protection and Biodiversity Conservation Act1999 (Cth)) (http://www.judgments.fedcourt.gov.au/judgments/Ju dgments/fca/single/2016/2016fca1042 

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 https://www.caselaw.nsw.gov.au/decision/5c59012ce4 b02a5a800be47f

 P.M. Reddy, A. Rosencranz, ‘Challenging the Proposed Carmichael Mine before the UN’ (2018) 48 Environmental Policy and Law 31  L.M. Collins ‘Revisiting the Doctrine of Intergenerational Equity in Global Environmental Governance’ (2007) 30 Dalhousie Law Journal 79;  C.S. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, 2005) esp pp18-20 (outlining the different notions of the precautionary principle)  D. Kysar, ‘Law, the Environment and Vision’ (2003) 97 Northwestern University Law Review 675  L. Godden and J. Peel, ‘’The EPBC Act: Dark Sides of Virtue’ (2007) 31 University of Melbourne Law Review 262.

Revision Questions 1.

Can the production of adequate energy services ever be properly balanced with sustainability issues? How might this be achieved?

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2019 MLL426 Mining and Energy Law SG Deakin University

2.

What is the precautionary principle and intergenerational equity and how, if at all, at they incorporated into the EPBC Act?

3.

Explain the framework of the EPBCA: (i) how is environmental assessment implemented and (ii) in what circumstances?

4.

What is an Environmental Impact Statement and what are some of the criticisms associated with it?

5.

Does the EPBCA provide sufficient coverage for emergent forms of energy production?

6.

Consider the conclusions of the Federal Court in the Adani appeal. What improvements are needed for the EPBC Act?

Topic 6: Unconventional Gas Mining  Mining and Energy CB, Chapter 5  S. Hepburn, Coal Seam Gas Mining in Australia: An Adaptive Future 2013 Vol 7 (1) Australian Resources and Investment 124-125 (available on Cloud)  Review of the Socio-Economic Effects of Coal Seam Gas in Queensland 2015 Office of the Chief Economist;

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2019 MLL426 Mining and Energy Law SG Deakin University

https://www.industry.gov.au/sites/g/files/net3906/f/June %202018/document/pdf/review_of_the_socioeconomic_imp acts_of_coal_seam_gas_in_queensland.pdf  Gas: resources, industry structure and domestic reservation policies Briefing Paper No 12/2013 by Andrew Haylen and Daniel Montoya https://www.parliament.nsw.gov.au/researchpapers/Docum ents/gas-resources-industry-structure-and-domesticre/Gas%20-%20resources,%20industry%20structure %20and%20domestic%20reservation%20policies.pdf  Codes of Practice: Fracture Stimulation and Well Integrity (NSW) https://www.resourcesandgeoscience.nsw.gov.au/__data/a ssets/pdf_file/0006/516174/Code-of-Practice-for-Coal-SeamGas-Well-Integrity.PDF https://www.resourcesandenergy.nsw.gov.au/__data/assets /pdf_file/0018/516114/Code-of-Practice-for-Coal-Seam-GasFracture-Stimulation.pdf

 Land Access Code Queensland: https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0004/44 2633/land-access-code-2016.pdf  Land Access Template NSW (per s141(1A) Mining Act 1992 (NSW) – available at: http://www.resourcesandenergy.nsw.gov.au/__data/as sets/pdf_file/0009/446562/Template-AccessAgreement-Mining-Act-1992-v2-June-2013.pdf  Petroleum (Onshore) Act 1991 (NSW), ss25-45  T. Marshall, ‘Coal Seam Gas Licences and Landholder Rights’ (2011) Australian Environment Review 226  Environmental Assessment of Coal Seam Gas Lacks Scientific Back-Up, The Conversation, 17th April, 2013 http://theconversation.com/environmental-assessment-of-coalseam-gas-lacks-scientific-back-up-13314

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 N. Evershed, An unconventional gas boom: the rise of CSG in Australia, 18 June, 2018 https://www.theguardian.com/environment/datablog/nginteractive/2018/jun/18/an-unconventional-gas-boom-the-riseof-csg-in-australia  Initial report on the Independent Review of Coal Seam Gas Activities in NSW NSW Chief Scientist & Engineer July 2013 http://www.chiefscientist.nsw.gov.au/__data/assets/pdf_file/0016 /31246/130730_1046_CSE-CSG-July-report.pdf



Coal Seam Gas is Coming to Victoria and We're Nowhere Near Ready, online journal The Conversation, June, 2012.

 Who Owns NSW CBM Gas, Natural Gas Daily, Volume 2, 86 at p. 8, May, 2012. Who Owns Coal Seam Gas in New South Wales and Who Can Stop it Being Mined ( 

National Coal Seam Gas Agreement: An Important Step in Protecting Water, March 2012.



Not Quite the Castle: Why Miners have a Right to What is Under Your Land, November 2011.



D. A. Maloney ‘Unconventional Gas and Oil in Australia: A Case of Regulatory Lag’(2015) Journal of Energy and Resources Law https://www.tandfonline.com/doi/full/10.1080/02646811.20 15.1089112

Revision Questions 1. What is the difference between shale gas mining and coal seam gas mining ?

2. What are some of the concerns with hydro-fracturing for the environment and have these been accurately © Deakin University

2019 MLL426 Mining and Energy Law SG Deakin University

publicised? 3. What is the primary environmental impact of CSG Mining and how can it be minimized? How does shale differ if at all? 4. Explain the circumstances in which the gateway framework in NSW comes into operation? 5. Outline some of the problems with the existing regulatory framework for mining under the Mineral Resources Sustainable Development Act 1990 (Vic) and consider how these might be exacerbated with the introduction of CSG mining in this state. How are these issues alleviated (if at all) in the Qld context?

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Topic 7: Renewable Energy Regulation in Australia  Mining and Energy Law CB, Chapter 6;  Renewable Energy (Electricity) Act 2000 (Cth), Part 2, 3 and 4;  Clean Energy Australia Report, 2018, Clean Energy Council https://www.cleanenergycouncil.org.au/policyadvocacy/reports/clean-energy-australia-report.html  Australia at 19% Renewables, July 7, 2018 Renew Economy, G. Parkinson https://reneweconomy.com.au/australia-19-renewablesneg-2030-target-reached-2021/ 

Clean Energy Council, Power Shift: A blueprint for a 21st century energy system, April 2016.

 J. Prentice, ‘Making Effective Use of Australia’s Natural Resources – The Record of Australian Renewable Energy Law under the Renewable Energy (Electricity) Act 2000 (Cth) (2011) 2 Renewable Energy Law and Policy Review 5;

 L. Davies, “Eulogizing Renewable Energy Policy’ (2018) 33 Journal of Land Use and Environmental Law 309;  A. Kallies, ‘The Impact of Electricity Market Design on Access to the Grid and Transmission Planning for Renewable Energy in Australia: Can Overseas Examples Provide Guidance?” (2011) 2 Renewable Energy Law and Policy Review 147;  A.L. Carleton, ‘Mandating Market Access for Renewable Energies in Australia’ (2008) Journal of Energy and Natural Resources Law 402  A.Kent and D. Mercer, ‘’Australia’s Mandatory Renewable Energy Target (MRET): An Assessment’ (2006) 34 Energy Policy 1046;

 A.Brisman, ‘The Aesthetics of Wind Energy Systems’ (2005) 13 New York University Environmental Law Journal 1; 

Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council [2013] VCAT 521.(available at: http://www.austlii.edu.au/cgibin/sinodisp/au/cases/vic/VCAT/2013/521.html? stem=0&synonyms=0&query=title(Cherry%20Tree %20Wind%20Farm%20Pty%20Ltd%20v%20Mitchell %20SC



Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPEC 38



J. Seel, A. Mills and R. Wiser, ‘As More Solar and Wind Come Onto the Grid, Prices Go Down But New Questions Come Up’ April, 2018, The Conversation https://theconversation.com/as-more-solar-and-windcome-onto-the-grid-prices-go-down-but-newquestions-come-up-96704

 A.Bradbrook, ‘Creating Law for Next Generation Energy Technologies’ (2011) 2 George Washington Journal of Energy and Environmental Law 17.

Revision Questions 1. What are the objectives underlying the LRET? 2. Outline some of the practical difficulties associated with the implementation of solar and wind energy 3. In the decision: Cherry Tree Wind Farm Pty Ltd v Mitchell the tribunal concluded that wind farms were consistent with sustainability objectives. Explain how the tribunal approached this issue. Compare some of the sustainability conclusions in the Cherry Tree decision with the conclusions of the Land and Environment court in the Mirani Solar Farm decision.

2019 MLL426 Mining and Energy Law SG Deakin University

4. Why are solar access rights important? 5. What is the...