procedure for the assessment of applications for the grant ...€¦ · 16 february 2015 . 0 ....

Procedure for the assessment of applications for the Grant and Renewal of Exploration Licences V3.0 To incorporate changes introduced by the EL Codes and Conditions Project ESU-PRC-201 Rev 3 of 27 Effective date: 1 July 2015

DOCUMENT INFORMATION Document Title: Procedure for the assessment of applications for the Grant and Renewal of Exploration Licences

Document Number: ESU-PRC-201 Total No. of Pages: 27

Effective Date: 16 February 2015 Revision No: 3

Document Developer:

Name: Sally Franco and Andrea Gill

Title: Environmental Standards, ESU Department: Industry

DOCUMENT APPROVALS

Functional Lead Approval:

Name: Michael McFadyen Signature: Version 3.0 Approved

Title: Assistant Director Environmental Operations

Date:

Other Approvals (as necessary or desired):

Name: Matthew Newton Signature: Version 3.0 Approved

Title: A/Assistant Director Environmental Standards

Date:

Name: Dr David Blackmore Signature: Version 3.0 Approved

Title: Director Environmental Sustainability Date:

Name: Signature:

Title: Date:

ESU-PRC-201 Procedure for the assessment of applications for the Grant and Renewal of Exploration Licences V3.0 1


REVISION HISTORY

Effective Date Revision Number Reason for Revision Section(s) Revised

16 February 2015 0 Version 1.0 - Initial release for use

Not applicable

25 March 2015 1 Version 2.0 – Templates updated and EMR-ER&R checklist Added.

Not applicable

8 May 2015 2 Version 2.1 – Added Template for EMR Stop the Clock Letter

Not applicable

1 July 2015 3 Version 3.0 – Updated checklists to incorporate changes introduced by the EL Codes and Conditions Project.

Entire document.



TABLE OF CONTENTS

Table of Contents ............................................................................................................................................... 3 1.0 PURPOSE ................................................................................................................................................ 4 2.0 SCOPE ..................................................................................................................................................... 4 3.0 APPLICABILITY ....................................................................................................................................... 4 4.0 REQUIREMENTS .................................................................................................................................... 5 5.0 TERMS AND DEFINITIONS .................................................................................................................... 5 6.0 RESPONSIBILITIES ................................................................................................................................ 6 7.0 PROCEDURE .......................................................................................................................................... 6 8.0 RECORDS.............................................................................................................................................. 13 9.0 REFERENCES ....................................................................................................................................... 13 10.0 ATTACHMENTS .................................................................................................................................... 13

Appendix 1: Flowcharts ......................................................................................................................... 14 Appendix 2: Indicative TRIM Structure for each Application ................................................................. 19 Appendix 3: Further Guidance on Section 237 and Environmentally Sensitive

Lands........................................................................................................................................... 20 Appendix 4: Legislative Context ............................................................................................................ 22 Appendix 5: Factsheet on Making Robust Decisions ............................................................................ 23



1.0 PURPOSE

1.1 The purpose of this Procedure is to assist ESU in the provision of advice to the Titles Unit and Titles Recommendation Committee (formerly the Exploration Titles Committee) where applications have been received for a new Exploration Licence (EL) or for an Exploration Licence Renewal (EL Renewal).

1.2 This Procedure documents the assessment procedure, and workflow between the Titles Unit and DRE Business Units, for applications received for a new EL (ELA) or EL Renewal.

2.0 SCOPE

2.1 There is an obligation for DRE to assess “relevant” legislative and policy considerations for all EL applications received by the Department.

2.2 ESU must document the factors considered and the advice provided to the Titles Recommendation Committee and Decision Maker.

2.3 ESU is responsible for providing advice on the conservation and protection of the environment and natural resources; special environmental management or rehabilitation conditions; environmental management performance; environmental management contraventions; false and misleading information; security; and, other relevant considerations regarding the protection of the environment.

2.4 For EL Renewal applications, exploration activities continuing into the new term are also subject to an assessment under Part 5 of the Environmental Planning & Assessment Act 1979 (Planning Act).

2.5 There is an obligation under Part 5 of the Planning Act to assess the environmental impacts of exploration activities continuing into the new term and advise the Decision Maker whether the environmental impacts of the activities are likely to be significant.

3.0 APPLICABILITY

3.1 This Procedure is applicable to ESU Regional Inspectors Environment (Assessment Officers) assessing applications for a new EL or an EL Renewal under the Mining Act 1992.

3.2 This Procedure is applicable to Regional Managers and/or the Assistant Director Environmental Operations (ADEO) when reviewing and approving advice prepared by Assessment Officers for the Decision Maker regarding applications for new EL or EL Renewal.

3.3 This Procedure is applicable for the Environmental Officer Technical Support (EOTS) when assisting with the processing of applications and workflow with the Titles Unit.



4.0 REQUIREMENTS

4.1 This Procedure is to be followed by ESU Assessment Officers, Principal Inspectors Environment/Regional Managers, the Assistant Director Environmental Operations and the EOTS when an application for a new EL or EL Renewal is received by DRE and forwarded to ESU.

5.0 TERMS AND DEFINITIONS

ADEO - Assistant Director Environmental Operations

Approver – means the Regional Managers and/or the Assistant Director Environmental Operations responsible for reviewing and approving advice prepared by Assessment Officers for the Titles Recommendation Committee and the Decision Maker regarding applications for new EL or EL Renewal.

Assessment Officer – means a Regional Inspector Environment, Senior Regional Inspector Environment, Principal Inspector Environment, or suitably qualified contractor, assessing an application for a new EL or EL Renewal.

Authority - means an exploration licence, an assessment lease or a mining lease.

Business Units – Environmental Sustainability Unit, Titles Unit, Coal and Petroleum Geoscience, Mineral Exploration Assessment, Regulatory Audit & Investigations Unit, Mine Safety Operations.

Decision Maker – Responsible for deciding whether to grant or renew an Authority. (For an EL, the Decision Maker is the Minister)

Department - NSW Department of Industry

DRE – Division of Resources & Energy

EL – Exploration Licence

ELA - Exploration Licence Application

EOTS – Environmental Officer Technical Support

ESU – Environmental Sustainability Unit

Mining SEPP - State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

Minister – Minister for Industry, Resources & Energy

Planning Act – Environmental Planning and Assessment Act 1979



6.0 RESPONSIBILITIES

Management at all levels is responsible for providing the support and resources necessary to implement this procedure effectively.

The ADEO is responsible for the following:

a. Ensuring that all Inspectors within the Environmental Operations Sub Unit of ESU follow the Procedure and workflows defined within ESU-PRC-201 (this Procedure).

b. Ensuring that any non-conformances with this Procedure are recorded.

c. Ensuring that inconsistencies or administrative errors within this Procedure are reported to the Environmental Standards Sub Unit.

Generally, all Environmental Operations employees, the EOTS and applicable contractors are responsible for compliance with the requirements of this procedure.

7.0 PROCEDURE

7.1. Introduction

The Mining Act 1992 sets out certain considerations which the Minister must take into account when making a decision on an application received with respect to an Authority. In relation to an Exploration Licence, these relevant considerations must be considered when granting a new EL and on EL renewal, transfer and cancellation.

Applications with respect to an Authority are received by the Titles Unit and distributed to DRE Business Units for their assessment. ‘Advice’ from each Business Unit is then provided to the Titles Recommendation Committee who provides a “Recommendation” to the Decision Maker (which is the Minister for ELs).

Refer to Appendix 1 for an overall Workflow for the assessment of an Exploration Licence Application (ELA) and an application for EL Renewal.

ESU is responsible for providing advice on: the conservation and protection of the environment and natural resources; special environmental management or rehabilitation conditions; environmental management performance; environmental management contraventions; false and misleading information; security; and, other relevant considerations regarding the protection of the environment.

For EL Renewal applications, exploration activities continuing into the new term are also subject to an assessment under Part 5 of the Planning Act. There is an obligation under Part 5 of the Planning Act to assess the environmental impacts of exploration activities continuing into the new term and advise the Decision Maker whether the impacts of the activities are likely to have a significant effect on the environment.

The following procedure outlines the steps required to be taken by an Assessment Officer when assessing an application for a new EL or an application for EL Renewal.



This procedure is to be implemented in the Environmental Operations Sub Unit across all regions to ensure that the assessment of applications for EL Grant and EL Renewal is conducted in a consistent manner, and in accordance with legislative and administrative requirements.

In an instance where this document does not provide sufficient guidance, the matter should be referred to the ADEO for advice and resolution.

7.2. Procedure for Assessing Applications for an ELA or EL Renewal

Reminder:

ESU has 15 Business days to “assess” the Application and provide “advice” to the Titles Recommendation Committee. ESU provides “advice” via the completion of an ESU Checklist and input of ESU advice and recommendation into the TRC Assessment Summary.

Step 1: ESU receives application via Application Form - Environmental Officer Technical Support (EOTS)

a. TRIM Notification sent to ESU Administrator - [email protected] - by the Titles Unit - EOTS to receive. (TRIM Action – “ETC Referral”).

b. The Titles Unit is responsible for workflowing the ESU Checklist for ELA or EL Renewal.

Refer:

i. FRM-201-1 Checklist for assessing an application for an Exploration Licence (ELA)

ii. FRM-201-2 Checklist for assessing an application for an Exploration Licence Renewal

c. The EL Application will be available to view in the TRIM Application Sub Folder where the ESU Checklist is located – Refer to Appendix 2 for the indicative TRIM File Structure.

d. Record date received and due date for ESU advice in Task Track and relevant Regional Reporting Spreadsheet

Note: The Titles Unit will complete the Adequacy Assessment on initial receipt of the application.

Step 2: Forward to Regional Inspector Environment (Assessment Officer) in relevant region where the Authority is located - EOTS

The EOTS is to:

a. In TRIM, workflow the ESU Checklist to relevant Assessment Officer. TRIM Action - “Process Work”.

b. Add a note in TRIM (on the ESU Checklist document) of the name of the Assessment Officer to which the application was referred. This will allow all Business Units to know who is assessing the application on behalf of ESU.

c. Update Task Track and relevant Regional Reporting Spreadsheet.


mailto:[email protected]


Step 3: Assessment – Assessment Officer

The Assessment Officer is to:

a. Check that the correct ESU Checklist has been Workflowed to ESU by the Titles Unit

i. The ELA Grant (FRM-201-1) checklist is required for applications for new ELs

ii. The EL Renewal (FRM-201-2) checklist is required for applications for EL Renewal

Note: The legislative considerations assessed by ESU differ for ELAs compared to EL Renewals.

b. Review the application and provide advice on each of the considerations in the ESU Checklist. There are Guidance Notes within the ESU Checklists to assist Assessment Officers address each of the “relevant considerations”.

a. If the information within the application is not sufficient to allow a thorough assessment of the “relevant considerations”, the Assessment Officer is to “Stop the Clock” and request additional information from the Applicant. See the Stopping the Clock section below. For further guidance on the assessment of Environmentally Sensitive Lands, refer to Appendix 3.

c. Filing: All relevant documents are to be related to the main Application Subfolder for the ELA or EL Renewal Application so that all Business Units may access the information. A separate MCV folder is not required.

Part 5 Planning Act considerations for EL Renewal


a. Review the information within the Application Form. The Application Form for Renewal (EL5) requests information about exploration activities conducted during the expiring term of the EL.

b. Based on the information provided by the Applicant, establish whether any approved Category 2, Category 3 or “Assessable” prospecting operations are continuing into the new term.

c. Review the Environmental Management Report (EMR) which is required to be submitted with applications for EL Renewal. The EMR must be prepared in accordance with ESG4: Environmental Compliance Reporting Guidelines for Coal and Mineral Prospecting Operations which is available on the DRE website.

d. If the approved activities are completed, a Part 5 Assessment and Determination is NOT required upon renewal of the EL. (Proceed to Step 4 of the Procedure)

e. If the approved activities are continuing into the new term, the Assessment Officer is to:

i. identify the activities continuing into the new EL term

ii. review the outcome of the Part 5 Assessment and Determination carried out for the approved activities

iii. review DRE inspection reports and findings

iv. review the environmental impacts of the continuing activities based on the environmental impact of the completed activities

v. review any submitted EDG13 – Rehabilitation and Relinquishment Report Note: Until rehabilitation is fully completed and has been approved by DRE, rehabilitation activities are to be considered as a “continuing activity”.



f. If the assessment of the continuing activities confirms the outcome of the initial Part 5 Assessment

and Determination, the Assessment Officer is to advise the Decision Maker that the continuing activities are not likely to have a significant impact on the environment and no further assessment is required.

• Note: if the continuing activity has already been assessed and approved and there are modifications proposed to the new activity that will reduce the overall environmental impacts (e.g. fewer drill holes remaining), no further assessment is required (s110E Planning Act).

g. If the assessment of the continuing activities does not confirm the outcome of the initial Part 5 Assessment and Determination, then the Exploration Assessment Procedure is to be followed to re-assess the continuing activities (i.e. use the Part 5 Assessment Tables; Briefing Documents; and, Approval and Determination Pathways).

h. If the information within the application is not sufficient to allow a Part 5 Assessment, the Assessment Officer is to “Stop the Clock” and request additional information from the Applicant. See the Stopping the Clock section below.

i. For a detailed workflow of this process, please refer to Workflow 2 in Appendix 1.

j. Further legislative information, please refer to Appendix 4.

Stopping the Clock

It is the responsibility of ESU Assessment Officers to assess all relevant considerations in the ESU Checklist. Should information regarding one or more relevant consideration be lacking, ESU is to formally contact the Applicant to request additional information to enable ESU’s assessment. The current Business Rule, as agreed by senior management in the Titles Unit and in Governance, is that: • Applications are received by the Titles Unit and forwarded to DRE Business Units for their assessment

and provision of advice to the Titles Recommendation Committee and Decision Maker. • Each Business Unit is to contact the Applicant directly, and in writing, if further “relevant” information is

required to enable DRE’s thorough assessment of the application. • Information from the Applicant must also be provided in writing. • This information is to be added to the Application Sub Folder in TRIM so that all Business Units may view

and utilise this information in their assessment.

Note: This Business Rule may change in the future as the Titles Unit’s systems and resources permit additional administrative functions.

The Process for “Stopping the Clock” is explained in Workflow 1 in Appendix 1. The Steps and required TRIM actions are described below. If further information is required from the Applicant, the Assessment Officer is to:

a. Formally write to the Applicant to request additional information and to “Stop the Clock”

i. FRM-201-3 Request Further Info for new EL Applications – Stop the Clock

ii. FRM-201-4 Request Further Info for new EL Renewal – Stop the Clock

iii. FRM-201-4B EL Renewal - Additional Information - Stop the Clock for EMR 8-5-15



b. The letter is to be added to the TRIM Application Subfolder as an OUT document.

c. The Titles Unit is to be notified of the “Stop the Clock” through the following process:

i. Workflow the ESU Letter to the Applicant to the Titles Unit (TRIM Action “KPI Clock”) and

add a TRIM Note of the date the “Clock” stopped.

ii. Action to relevant Titles Unit position:

• Minerals: Team Leader Eastern

• Coal: Team Leader Coal

• Petroleum: Team Leader Petroleum or OCSG Titles Administrator

iii. This new TRIM Action will trigger the Titles Unit to stop their processing clock and update

TAS. (Note: The Titles Unit is ultimately responsible for reporting on the KPI’s for ELA’s and

EL Renewals).

d. Update Task Track or relevant Regional Reporting Spreadsheet.

When the required information is received from the Applicant via ([email protected]), the EOTS is to:

a. Add the information received from the Applicant to the TRIM Application Subfolder as an INW

document. This allows for all Business Units to view the documents/information supplied by the

Applicant. This promotes transparency.

b. Notify the Titles Unit of the “Start the Clock” through the following process:

i. Workflow the INW Letter (from the Applicant) to the Titles Unit (TRIM Action “KPI Clock”)





iii. Add a TRIM Note of the date the information was received and the “Clock” restarted.

iv. This TRIM Action will trigger the Titles Unit to re-start their processing clock and update

TAS.

c. Update Task Track or relevant Regional Reporting Spreadsheet.

d. Forward (via Email) the information to the Assessment Officer for further assessment.


a. Continue with the assessment in accordance with this Procedure.




Step 4: Approval assessment and provision of Advice to Decision Maker

To increase probity, DRE requires that the task of assessing the merits of an EL application, and approval of ESU advice for the Titles Recommendation Committee and Decision Maker, must be separated and therefore conducted by separate officer levels. Similarly, should a Part 5 be required, the tasks of assessing the environmental impacts of the activity and undertaking the Part 5 Determination, must also be conducted by separate officer levels (as per the Exploration Assessment Procedure). Note: Prior to sending advice to the Decision Maker, the Principles of Good Decision Making are also to be taken into account. Refer to Appendix 5 for a Factsheet on Making Robust Decisions.

To finalise the Assessment, the Assessment Officer is to:

a. In the “Comments/Considerations” section on the ESU Checklist, the Assessment Officer is to:

i. Document the key advice (as indicated in the ESU Checklist). Advice must only consider “relevant considerations” (e.g. those supported by Legislation, Regulations, Conditions or Policy).

ii. If necessary, document reasons for possible refusal (See Appendix A of the Checklist for Standard Words).

iii. Sign and date the Assessment.

iv. Update Task Track and/or relevant Regional Reporting Spreadsheet.

v. Upload to TRIM (replace the blank ESU Checklist).

b. For Renewal, and where ESU has assessed the security deposit on behalf of the Secretary, draft the FRM-201-5 Security Notification Letter for the EL Holder. This is required where required security deposit is equal to or greater than the minimum ($10,000).

The “assessed deposit” is to be based on the estimated cost for the fulfilment of obligations under the authorisation, including those related to rehabilitation, at the time of renewal. The “assessed deposit” is to include the estimated cost for the rehabilitation of all liabilities from the last term of the EL, and any outstanding liabilities from previous terms.

Note: For EL Grant, in most cases, the minimum security deposit of $10,000 is to be applied. When the minimum security is applied (and the Secretary has not assessed the amount of the security deposit under s.261BC), then the Secretary (or delegate) does not need to notify the EL Holder of the minimum deposit. FRM-201-5 Security Notification Letter is not required in this instance.

c. Should a new Part 5 Determination be required, the appropriate documentation (such as the Part 5 Tables and Assessment Summary) is also to be sent to the Approver for their review and recommendation to the Decision Maker.

d. Complete the Workflow on the ESU Checklist and Action the ESU Checklist to the Approver (TRIM Action - “ETC Referral”).

e. The Approver is to be in a position senior to the Assessment Officer (see Table 2 on the next page).



Assessment Officer Approver of Advice to TRC

Position Environmental Inspector/Senior Environmental Inspector

Principal Environmental Inspector (or higher)

Position Principal Environmental Inspector Assistant Director Environmental Operations (or higher)

Table 2: Assessment and Approval Functions

The Approver is to:

a. Review the Application and the assessment information contained within the ESU Checklist.

b. Review the advice provided in the “Recommendations by the ESU Assessment Officer” section of the ESU Checklist.

c. Provide an overall review of the “relevant considerations” and document advice for the Titles Recommendation Committee and Decision Maker (e.g. all advice must be supported by Legislation, Regulations, Conditions or Policy).

d. If necessary, document reasons for possible refusal (See Appendix A of the Checklists for standard words for advice to the Decision Maker).

e. Approve and finalise the ESU Checklist and add the approved version into TRIM.

f. For Security Deposits above the minimum ($10,000):

i. Review and approve the security deposit assessment (according to appropriate delegations).

ii. Sign the FRM-201-5 Security Notification Letter and add the letter as an OUT document to the Application Subfolder. Relate the FRM-201-5 Security Notification Letter to the completed ESU Renewal Checklist.

iii. Send the FRM-201-5 Security Notification Letter to the Applicant.

iv. Important Note: ESU is to send the Security Notification Letter to the Applicant. The letter states that the “assessed deposit” will apply only if/when the EL is renewed.

Step 5: Communication of Advice to the Titles Unit and TRC

The Approver is to:

a. Update Task Track and/or relevant Regional Reporting Spreadsheet

b. Complete the Workflow on the ESU Checklist and Action to the Titles Unit in TRIM (Action – “ETC Referral”). Refer to the following Titles Unit positions:






The Titles Unit will coordinate information from each Business Unit prior to the Application progressing to the Titles Recommendation Committee for discussion.

It is important to note that NO applications will be permitted to progress to the Titles Recommendation Committee without assessment and advice from every DRE Business Unit.

8.0 RECORDS

FRM-201-1 Checklist for assessing an application for an Exploration Licence (ELA)

FRM-201-2 Checklist for assessing an application for an Exploration Licence Renewal

FRM-201-3 Request Further Info for new EL Applications – Stop the Clock

FRM-201-4 Request Further Info for new EL Renewal – Stop the Clock

FRM-201-4B EL Renewal - Additional Information - Stop the Clock for EMR 8-5-15

FRM-201-5 Security Notification Letter

FRM-201-6 EMR – ER&R Checklist

9.0 REFERENCES

Procedure interfaces Interaction

ESU-PRC-201 Exploration Assessment Procedure For Part 5 Assessment and Determination for continuing activities.

Table 2 – Procedural Interfaces

10.0 ATTACHMENTS

Appendix 1 Flowcharts

• Workflow on the Assessment of an Exploration Licence Application (ELA) and an application for EL Renewal.

• Workflow for the Renewal of EL incorporating activity approval

Appendix 2 TRIM Folder Structure (Indicative)

Appendix 3 Further Guidance on Assessment of Environmentally Sensitive Lands

Appendix 4 Additional Information: Legislative Context

Appendix 5 Principles for good decision making and procedural fairness


Appendices

Appendix 1: Flowcharts

Purpose Assessment of an Exploration Licence Application (ELA) and an application for EL Renewal

Scope Process, Assessment and Stop the Clock

Responsible Step Process Flow Details

Input Output Titles Unit Titles Unit Titles Unit Titles Unit Environmental Officer Technical Support (EOTS) ESU Assessment Officer ESU Assessment Officer

Detailed Application Assessment by ESU

ELA or EL Renewal received by Titles Unit

Is further information required?

ESU Actions Checklist to Assessment Officer in TRIM

(“ETC Referral”)

Upload Business Unit Checklists and Assessment

Briefing into TRIM Subfolder relating to the ELA

Complete Adequacy Assessment

Clock Starts when Application is deemed “Adequate”

Note in TRIM – Start Date

Checklists actioned in TRIM (“ETC Referral”) to ESU

Note in TRIM – Due Date

Yes: See Page 2, No: See Page 3

Incoming Application for new EL or EL Renewal

Completed Titles Adequacy Checklist; Note in TRIM – Start Clock Date In TRIM: Create ELA Subfolder Add Checklists and Assessment Summary Add Application Action Checklist to “ESU Administrator” position in TRIM. TRIM Action “ETC Referral” TRIM Notification “ETC Referral” Complete ESU Checklist

Workflow 1 - Page 1 of 3





Input Output ESU Assessment Officer Titles Unit ESU Assessment Officer EOTS EOTS Titles Unit

Notify Titles Unit of need to “Stop the Clock”

Develop Letter; Put in TRIM as OUT; send to Applicant; Action to Titles (“KPI Clock”)

Titles Unit to update TAS “Stop the Clock”

Letter to Applicant

Information provided by the

due date?

Notify Titles UnitDevelop Memo or Email; Put in TRIM as INT; Action to

Titles (“KPI Clock”)

No

Notify Titles Unit that information is received

“Start the Clock” Action INW to Titles –

Add Note: Date received(“KPI Clock”)

Titles Unit to update TAS and “Start the Clock”

Yes

Add the information to EL Application Subfolder so

all Business Units can access

Forward (via Email) the information to the Assessment Officer

Process continued on Page 3:

Note: Update TRC Assessment Summary

Letter to the Applicant; TRIM Notification “KPI Clock” to Titles - Team Leader

Eastern - Team Leader

Coal TAS Entry Memo/Email as INT file in TRIM; Action in TRIM “KPI Clock” – Reason to Refuse Application Add Information to Application Subfolder – INW doc in TRIM Workflow INW file to Titles in TRIM; Action - “KPI Clock” Re-start Clock Forward information to Assessment Officer TAS Entry



ESU-PRC-201 Procedure for the assessment of applications for the Grant and Renewal of Exploration Licences




Input Output ESU Assessment Officer ESU Approver ESU Approver Titles Unit

End Process

Assessment Officer to complete checklist and forward to “Approver”

for review and approval (TRIM Action – “ETC Referral”)

Approver Actions Checklist to Titles Unit “ETC Referral”

and Completes Action Note in TRIM – Assessment

Complete by “Name”

ESU “Approver” completes Checklist and TRC

Assessment Briefing in TRIM

Titles Unit review and compile information for TRC

Meeting

Completed ESU Checklist; TRIM Action “ETC Referral” Approved ESU Checklist; Complete ESU section in Assessment Summary TRIM Action “ETC Referral” to Titles Unit - Team Leader


Coal. Update Task Track




Purpose Renewal of EL incorporating Category 2, Category 3 or “Assessable” activities continuing into the new term

Scope Process for Part 5 Assessments where Category 2, Category 3 or “Assessable” activities are continuing into the new term


Input Output Titles Unit Titles Unit Environmental Officer Technical Support (EOTS) ESU Assessment Officer ESU Assessment Officer

Application for Exploration Licence Renewal (EL5) received by the Titles Unit

Titles Unit actions the ESU Checklist for Renewal to the Environmental Officer

Technical Support

Environmental Officer Technical Support Actions ESU Checklist for Renewal to

Assessment Officer (in relevant Region)

Assessment Officer assesses the Application, completes the Checklist and

determines whether a Part 5 Determination is required

Approved Cat 2 or 3 Activities Continuing into the

new term?

Part 5 Assessment NOT requiredNo

Yes: See Page 2


Action Checklist to “ESU Administrator” – TRIM Action “ETC Referral” TRIM Notification TRIM Action “ETC Referral” Application review and complete ESU Checklist Continue with Procedure







Input Output ESU Assessment Officer ESU Assessment Officer ESU Assessment Officer ESU Assessment Officer ESU Assessment Officer

Does the Assessment Officer

have sufficient information?

Yes

Conduct the Part 5 Assessment

Stop the Clock, Advise the Titles

Unit via “KPI Clock” in TRIM

Contact the Applicant to obtain

the required information

Info provided to enable Part 5

Assessment and Determination?

Yes

No

Notify Titles to “Restart Clock”.

Add info to TRIM.

Update EL Renewal Checklist

Send Documentation to ESU “Approver” for

Determination

Continue with Steps in Procedure ESU-PRC-201

No

Letter to the Applicant. “KPI Clock” TRIM Action to Titles Unit. Add Information as INW Document to Application Subfolder in TRIM Action INW to Titles Unit in TRIM “KPI Clock” Re-start Clock Part 5 Tables and Assessment Brief Complete ESU EL Renewal Checklist Continue with Procedure




Appendix 2: Indicative TRIM Structure for each Application TRIM Structure

Application Subfolder

Summary Briefing

Checklist ESU

Checklist C&E

Checklist Coal and Petroleum or MEA (Coal or Minerals)

Titles Checklist

Title Folder

Decision Maker’s Checklist

Other Folders related

“Alternatively within”

Note: The CPG checklist or the MEA checklist will be added to the Application Subfolder, depending on the exploration type (coal or minerals) the application relates to. CPG and MEA have different considerations, as such, the ESU Checklists vary.



Appendix 3: Further Guidance on Section 237 and Environmentally Sensitive Lands

Important

Category 1 prospecting operations (exploration defined by the Mining SEPP as “Exempt development”) are the only prospecting operations permitted on Grant of the Exploration Licence. By virtue of the definition of “Exempt development”, these prospecting operations are of minimal environmental impact and cannot be performed within an environmentally sensitive area of State significance.

As only Exempt Prospecting Operations will be permitted on the Exploration Licence after Grant, and no activities may be performed on an environmentally sensitive area of State significance (as defined by the SEPP) without further approval, ESU considers that there are no issues of concern pursuant to s.237 for the Decision Maker to take into account.

Environmentally Sensitive Land includes: • land reserved as a State Conservation Area under the National Parks and Wildlife Act 1974 • land declared as an Aboriginal place under the National Parks and Wildlife Act 1974 • land identified as wilderness under the Wilderness Act 1987 • land subject to a ‘conservation agreement’ under the National Parks and Wildlife Act 1974 • land acquired by the Minister for the Environment under Part 11 of the National Parks and Wildlife

Act 1974 • land proposed to be reserved as a national park or nature reserve under the National Parks and

Wildlife Act 1974 • land declared as critical habitat under the Threatened Species Conservation Act 1995 or the

Fisheries Management Act 1994 • land subject to a ‘biobanking agreement’ under the Threatened Species Conservation Act 1995 • land within State forests mapped as Forestry Management Zone 1, 2 or 3 • wetlands mapped under State Environmental Planning Policy No 14 - Coastal Wetlands • wetlands listed under the Ramsar Wetlands Convention • lands mapped under State Environmental Planning Policy No 26 - Littoral Rainforests • aquatic reserves under the Fisheries Management Act 1994 • areas listed on the World Heritage List, National Heritage List, Commonwealth Heritage List or

Register of the National Estate • areas listed under the Heritage Act 1977 for which a plan of management has been prepared • land within a restricted area prescribed by a controlling water authority • waterfront land as defined under the Water Management Act 2000 • land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna,

geological formations or other environmental protection purpose • land identified as Potential Acid Sulfate Soils or Actual Acid Sulfate Soils as defined by the NSW

Office of Environment and Heritage Acid Sulfate Soils Risk Maps • land identified as Strategic Agricultural Land under State Environmental Planning Policy (Mining,

Petroleum Production and Extractive Industries) 2007 Biobanking Sites The Mining Act 1992 states:

381A Biobank sites

The Minister is to notify the Minister administering the Threatened Species Conservation Act 1995 of the grant of any authority, mineral claim or opal prospecting licence in relation to land that is a biobank site (within the meaning of Part 7A of that Act).

It is ESU’s responsibility to notify the Titles Unit and the Decision Maker of any future Authorities (including Exploration Licences) which overly land that is the subject of a Biobanking Agreement.


http://www.legislation.nsw.gov.au/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D1995%20AND%20no%3D101&nohits=y


The Titles Unit is to formally write to the Minister administering the Threatened Species Conservation Act 1995 following grant of the Exploration Licence.

Forestry Management Zones

Forestry Management Zones (FMZ) 1, 2, and 3 are defined by NSW Forests as areas that require addition protection because of their inherent environmental qualities such as: important watershed catchment area; habitat to threatened species; or, high quality native habitat. NSW Forests owned lands have many areas of very high environmental value, equal to the quality of any National Park in NSW. These areas have been recognised by Forestry ecologists and mapped accordingly.

FMZ’s 1, 2, and 3 fall into the "Sensitive Lands" category. As such they are afforded addition protection through a higher level of assessment when required. Category 1 prospecting within sensitive lands is automatically elevated into Category 2 because of these sensitivities. The current and historical Exploration Licence conditions reflect this. For example see an excerpt from the Exploration Licence conditions below:

Note: All prospecting operations in Sensitive Lands are also subject to Condition 2 (Prospecting Operations Requiring Further Approval).

All Assessment Officers need to have access to accurate mapping on FMZs and other sensitive land layers, as required, so that the information stated within an EL application may be properly assessed.

An FMZ layer is available in the following folder on the ESU Drive: W:\CURRENT RESOURCES\Mapping



Appendix 4: Legislative Context The NSW Department of Industry, Division of Resources & Energy (DRE) is the determining and approval authority for all exploration activities subject to environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (Planning Act).

The approval of exploration activities conducted in accordance with an EL is a function imposed upon DRE by the grant of an EL that has a condition requiring the approval as a condition of the licence. Exploration licences may be renewed from time to time and upon renewal, the exploration activities previously approved may be continuing if not completed in the prior term of the EL.

The assessment and determination of the environmental impacts of exploration activities is a duty imposed under Part 5 of the Planning Act in connection with an exploration activity for which an approval is required under the Mining Act 1992 and the Petroleum (Onshore) Act 1991.

The determination of the renewal triggers Part 5 of the Planning Act and any activities continuing on the date of the renewal, even if previously assessed and approved, are subject to the operation of Part 5 at the time of renewal.

The assessment is not required for continuing prospecting that is Category 1 (i.e. exempt development pursuant to clause 10(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP). Additional Information

Part 5 of the EP&A Act imposes two central requirements on determining authorities when determining whether or not to grant an approval for an activity:

(a) a duty to, “in its consideration of an activity… examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”; and

(b) a duty to require and consider an environmental impact statement (EIS) if the activity is likely to significantly affect the environment (including critical habitat) and threatened species, populations or ecological communities and their habitats, and engage in public participation informed by the EIS.

Section 110(1) of the EP&A Act states that: (a) an “activity” does not include:

(i) any act, matter or thing for which development consent under Part 4 is required or has been obtained; or

(ii) exempt development; (b) an “approval” includes a consent, licence or permission or any form of authorisation; and (c) a “determining authority” means a Minister or public authority and, in relation to any activity, means

any Minister or public authority whose approval is required in order to enable the activity to be carried out.

Therefore Part 5 must be applied in respect of any approval issued by the Department which authorises a person to undertake (or continue undertaking) an activity:

(a) that is not exempt development (i.e. Category 2 or 3 activities); and (b) for which development consent is not required.



Appendix 5: Factsheet on Making Robust Decisions

Making robust decisions – a guide Issued by Legal Branch

This fact sheet provides general guidance on the legal requirements for good decision making, including guidance on satisfying procedural fairness obligations.

Summary

Principles of good decision-making include:

• the decision is within power; • procedural requirements are followed; • the decision-maker has the necessary authority or delegation to make the decision; • the decision is made for a proper purpose; • only relevant considerations are taken into account; • the decision is reasonable; • the decision is supported by evidence; • discretions are exercised properly; and • the decision is expressed with certainty and clarity.

Procedural fairness is another principle of good decision making which obliges decision-makers to give persons affected by a decision an opportunity to have their views heard (the ‘fair hearing rule’) and obliges decision makers to make impartial and unbiased decisions (the ‘rule against bias’).

What is the risk?

Breaching these rules and principles may result in a court finding your decision is invalid. This is likely to have cost and reputational consequences for the department.

Your legal obligation to comply with administrative law

Administrative law makes government decision-makers accountable for their actions to protect the rights of the public in relation to the State. The principles of good decision making and procedural fairness are important elements of administrative law.

Courts can review decisions made by government decision-makers. One avenue of review is judicial review. Here, the question is whether a decision was made according to principles of administrative law. If found not to be, the court may set aside the original ‘decision’ and order that it be re-made according to law.

Where legislation provides for it, there may also be a right to merits review. Here, the question is whether the decision was warranted on its merits, even if it isn’t affected by illegality. A tribunal or court can ‘stand in the shoes’ of the original decision maker and remake the decision.

What should I do?

When making a decision in the course of your work, consider the following:

1. What is the scope of my power?



Check the legislative provision which gives you power to make the decision. Ask yourself whether your decision goes beyond the decision-making power. Also consider whether the legislation imposes requirements or restrictions on making the decision.

2. Are there procedural requirements?

You need to follow any procedures set out in legislation for making a decision. For example, legislation may require you to advertise an application or require you to give an individual an opportunity to make submissions before you make your decision.

If you think that following a procedure leads to an unfair, unreasonable or absurd outcome, get written advice from a Senior Executive in your area, and consider obtaining legal advice.

3. Do I have an authorisation or delegation?

It is crucial to ensure you have the appropriate authorisation or delegation to make your decision.

Authorisation: where a statute requires a decision only to be made by an authorised officer, you need to make sure you are currently authorised. Your authorisation specifies which powers you can exercise. Check your authorisation.

Delegation: A delegation means that the power to make a decision has been delegated to you from someone else, usually the Minister or Secretary. An instrument of delegation will set out who can exercise a function and any limitations that apply. Check your delegation.

4. Am I exercising my power for the purpose Parliament intended?

You must exercise your power to achieve the purposes or objects of the legislation which grants you the decision-making power. Apart from the general objects, legislation can prescribe specific purposes for which particular powers can be exercised. An abuse of power occurs where a decision-maker has an improper purpose for exercising a discretion or seeks to achieve an improper objective.

5. Have I taken into account all relevant considerations? Have I ignored irrelevant considerations?

You must take into account all mandatory relevant considerations and you must not take into account irrelevant considerations. In other words: consider only the relevant matters or facts.

Sometimes, legislation will require certain matters to be taken into account or forbid other matters from being taken into account.

A decision-maker can, and generally should, consider any policies and guidelines relevant to

a particular decision. However, policies and guidelines do not provide a blanket answer to fit all circumstances and should be applied appropriately in the circumstances. This means you cannot slavishly apply policies or guidelines, nor should you depart from them without a reason.

6. Is my decision reasonable?

Your decision may be invalid if it is so unreasonable that no reasonable person could ever have reached it and it lacks intelligible justification.

Ask yourself:

• Are the facts I based my decision on correct (have I got the facts right)? • Have I given appropriate weight to different factors in accordance with their relative importance?



• Can my decision be justified?

7. Is my decision supported by evidence?

You must have evidence to justify your decision, rather than mere suspicion or speculation. The decision must be based on material which logically tends to show the existence or nonexistence of facts which support the decision.

There should be a record of the decision-making process on file. Keeping a record on file will help meet any claim that your decision was not based on evidence.

8. Have I properly exercised my discretion?

Discretion is the power to make a decision according to your own judgment, within the scope of the legislation.

You should ask yourself:

• Have I turned my own mind to the decision, free from any fetters or directions? • Have I avoided giving any promises or making any agreements about how I will exercise my

discretion in advance of considering all the evidence?

9. Have I expressed my decision with certainty and clarity?

People affected by your decision must be able to understand it. They must also be able to understand what, if anything, they are required to do in response. Any conditions imposed must also be clear, certain and understandable.

Procedural Fairness

Decision-makers have a duty to accord procedural fairness. There are two rules of procedural fairness: the ‘fair hearing rule’ and the ‘rule against bias’.

Fair hearing rule

The general rule is that a decisionmaker must give each person affected by a decision the opportunity to be heard. This extends to persons whose rights and interests or legitimate expectations will be adversely affected. The precise nature of the hearing required varies depending on the legislation and the nature of the decision. However, as a general rule, a decision-maker must ensure that the person affected by a decision is aware of the upcoming decision and has an opportunity to make submissions.

What type of hearing do I have to give?

Sometimes, legislation sets out what type of hearing must be given. Refer to the legislation to check if this is the case. If legislation sets out procedures on how to provide a hearing, this does not necessarily preclude other forms of hearing.

More often legislation is silent on the type of hearing you have to provide. In this case, the type of hearing necessary depends on an interpretation of the legislation and circumstances. Legal Branch can assist in advising on what requirements may be necessary in a given situation.

You will need to inform the person about the critical issue or factor that forms the basis of the proposed decision. For example, if you are going to cancel a licence you will have to tell the licence holder not just that you intend to cancel their licence, but also why.



Exclusion of procedural fairness

If legislation provides in very clear terms that the decision-maker does not need to provide a hearing to the person who is going to be affected, procedural fairness is not legally required. It can nevertheless still be afforded to promote good decisionmaking.

Rule against bias

Decisions must be made in an impartial and unbiased manner. You will be considered biased and not impartial if you have a conflict of interest.

For example, you cannot make a decision where:

• your own financial interests may be affected by the decision; • you are a relative of an interested party; • you have a personal or professional association with an interested party; or • you have expressed a hostile or a favourable view about an interested party or your preferred

outcome.

The rule against bias may also be contravened where there is a reasonable suspicion or apprehension that you are not impartial. For example, because of a past or present personal, professional or business association. Ask yourself what your decision might look like to an outsider.

Consequences of breaching the rules of procedural fairness

Where a Court finds that a decisionmaker has breached either the hearing rule or the rule against bias, the Court can set aside the decision.

Documenting decisionmaking

You should:

• keep a record of all documents and materials considered in making your decision, and • set out and record in writing your decision-making process.

You should consider making a detailed statement of the evidence presented to you, your consideration given to the materials, your reasons for your decision, as well as the decision itself.

See Legal Fact Sheet No. 5 on Keeping File Notes (Refer to the Department’s website)

Some legislation will require a statement of reasons to be provided to the applicant. Other legislation may not require this. It is good practice to keep a record of reasons for your decision on file even if there is no requirement to give reasons.

If your decision is challenged in court you may be required to provide reasons.

Conclusion

This Fact Sheet provides an overview of key principles of decision making.

Please contact Legal Branch if you have a question or need assistance by submitting a Request for Legal Services form.



Important: This internal fact sheet is for use by NSW Trade & Investment staff. Readers are advised to contact Legal Branch to obtain further assistance in relation to any specific legal questions that you may have.

© State of New South Wales through Department of Trade and Investment, Regional Infrastructure and Services (NSW Trade & Investment)

Disclaimer: The information contained in this publication is based on knowledge and understanding at the time of writing (February 2015). However, because of advances in knowledge, users are reminded of the need to ensure that the information upon which they rely is up to date and to check the currency of the information with the appropriate officer at the Department of Trade and Investment, Regional Infrastructure and Services or through the user’s independent advice.


ESU-PRC-201 Rev 3 Page 1 of 25 Effective date: 16 February 2015

DOCUMENT TITLE: Procedure for the assessment of applications for the Grant and Renewal of Exploration Licences V3.0

DOCUMENT NUMBER: ESU-PRC-201

DOCUMENT INFORMATION

Senior Regulatory Reform Officer Assistant Director Environmental Standards

Director ESU

Document Developer: Functional Lead Approval: Director Approval

16 February 2015 16 February 2015 16 February 2015

VERSION

Effective Date Revision Number Reason for Revision Section(s) Revised

16 February 2015 0 Version 1.0 - Initial release for use

Not applicable

25 March 2015 1 Version 2.0 – Templates updated and EMR-ER&R checklist Added.

Assessment Checklists

8 May 2015 2 Version 2.1 – Added Template for EMR Stop the Clock Letter

New Template

1 July 2015 3 Version 3.0 – Updated checklists to incorporate changes introduced by the EL Codes and Conditions Project.

Entire document.

ESU-PRC-201 Procedure for the assessment of applications for the Grant and Renewal of Exploration Licences V3.0 Page 1

For Internal Use Only-Not for External Distribution


TABLE OF CONTENTS

1.0 PURPOSE ................................................................................................................................................ 3 2.0 SCOPE ..................................................................................................................................................... 3 3.0 APPLICABILITY ....................................................................................................................................... 3 4.0 REQUIREMENTS .................................................................................................................................... 3 5.0 TERMS AND DEFINITIONS .................................................................................................................... 4 6.0 RESPONSIBILITIES ................................................................................................................................ 4 7.0 PROCEDURE .......................................................................................................................................... 5 8.0 RECORDS.............................................................................................................................................. 11 9.0 REFERENCES ....................................................................................................................................... 11 10.0 ATTACHMENTS .................................................................................................................................... 11

Appendix 1: Flowcharts ......................................................................................................................... 12 Appendix 2: Indicative TRIM Structure for each Application ................................................................. 17 Appendix 3: Further Guidance on Section 237 and Environmentally Sensitive

Lands........................................................................................................................................... 18 Appendix 4: Legislative Context ............................................................................................................ 20 Appendix 5: Factsheet on Making Robust Decisions ............................................................................ 21




1.0 PURPOSE

1.1 The purpose of this Procedure is to assist ESU in the provision of advice to the Titles Unit and Titles Recommendation Committee (formerly the Exploration Titles Committee) where applications have been received for a new Exploration Licence (EL) or for an Exploration Licence Renewal (EL Renewal).

1.2 This Procedure documents the assessment procedure, and workflow between the Titles Unit and DRE Business Units, for applications received for a new EL (ELA) or EL Renewal.

2.0 SCOPE

2.1 There is an obligation for DRE to assess “relevant” legislative and policy considerations for all EL applications received by the Department.

2.2 ESU must document the factors considered and the advice provided to the Titles Recommendation Committee and Decision Maker.

2.3 ESU is responsible for providing advice on the conservation and protection of the environment and natural resources; special environmental management or rehabilitation conditions; environmental management performance; environmental management contraventions; false and misleading information; security; and, other relevant considerations regarding the protection of the environment.

2.4 For EL Renewal applications, exploration activities continuing into the new term are also subject to an assessment under Part 5 of the Environmental Planning & Assessment Act 1979 (Planning Act).

2.5 There is an obligation under Part 5 of the Planning Act to assess the environmental impacts of exploration activities continuing into the new term and advise the Decision Maker whether the environmental impacts of the activities are likely to be significant.

3.0 APPLICABILITY

3.1 This Procedure is applicable to ESU Regional Inspectors Environment (Assessment Officers) assessing applications for a new EL or an EL Renewal under the Mining Act 1992.

3.2 This Procedure is applicable to Regional Managers and/or the Assistant Director Environmental Operations (ADEO) when reviewing and approving advice prepared by Assessment Officers for the Decision Maker regarding applications for new EL or EL Renewal.

3.3 This Procedure is applicable for the Environmental Officer Technical Support (EOTS) when assisting with the processing of applications and workflow with the Titles Unit.

4.0 REQUIREMENTS

4.1 This Procedure is to be followed by ESU Assessment Officers, Principal Inspectors Environment/Regional Managers, the Assistant Director Environmental Operations and the EOTS when an application for a new EL or EL Renewal is received by DRE and forwarded to ESU.




5.0 TERMS AND DEFINITIONS

ADEO - Assistant Director Environmental Operations

Approver – means the Regional Managers and/or the Assistant Director Environmental Operations responsible for reviewing and approving advice prepared by Assessment Officers for the Titles Recommendation Committee and the Decision Maker regarding applications for new EL or EL Renewal.

Assessment Officer – means a Regional Inspector Environment, Senior Regional Inspector Environment, Principal Inspector Environment, or suitably qualified contractor, assessing an application for a new EL or EL Renewal.

Authority - means an exploration licence, an assessment lease or a mining lease.

Business Units – Environmental Sustainability Unit, Titles Unit, Coal and Petroleum Geoscience, Mineral Exploration Assessment, Regulatory Audit & Investigations Unit, Mine Safety Operations.

Decision Maker – Responsible for deciding whether to grant or renew an Authority. (For an EL, the Decision Maker is the Minister)

Department - NSW Department of Industry

DRE – Division of Resources & Energy

EL – Exploration Licence

ELA - Exploration Licence Application

EOTS – Environmental Officer Technical Support

ESU – Environmental Sustainability Unit

Mining SEPP - State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

Minister – Minister for Industry, Resources & Energy

Planning Act – Environmental Planning and Assessment Act 1979

6.0 RESPONSIBILITIES

Management at all levels is responsible for providing the support and resources necessary to implement this procedure effectively.

The ADEO is responsible for the following:

a. Ensuring that all Inspectors within the Environmental Operations Sub Unit of ESU follow the Procedure and workflows defined within ESU-PRC-201 (this Procedure).

b. Ensuring that any non-conformances with this Procedure are recorded.

c. Ensuring that inconsistencies or administrative errors within this Procedure are reported to the Environmental Standards Sub Unit.




Generally, all Environmental Operations employees, the EOTS and applicable contractors are responsible for compliance with the requirements of this procedure.

7.0 PROCEDURE

7.1. Introduction

The Mining Act 1992 sets out certain considerations which the Minister must take into account when making a decision on an application received with respect to an Authority. In relation to an Exploration Licence, these relevant considerations must be considered when granting a new EL and on EL renewal, transfer and cancellation.

Applications with respect to an Authority are received by the Titles Unit and distributed to DRE Business Units for their assessment. ‘Advice’ from each Business Unit is then provided to the Titles Recommendation Committee who provides a “Recommendation” to the Decision Maker (which is the Minister for ELs).

Refer to Appendix 1 for an overall Workflow for the assessment of an Exploration Licence Application (ELA) and an application for EL Renewal.

ESU is responsible for providing advice on: the conservation and protection of the environment and natural resources; special environmental management or rehabilitation conditions; environmental management performance; environmental management contraventions; false and misleading information; security; and, other relevant considerations regarding the protection of the environment.

For EL Renewal applications, exploration activities continuing into the new term are also subject to an assessment under Part 5 of the Planning Act. There is an obligation under Part 5 of the Planning Act to assess the environmental impacts of exploration activities continuing into the new term and advise the Decision Maker whether the impacts of the activities are likely to have a significant effect on the environment.

The following procedure outlines the steps required to be taken by an Assessment Officer when assessing an application for a new EL or an application for EL Renewal.

This procedure is to be implemented in the Environmental Operations Sub Unit across all regions to ensure that the assessment of applications for EL Grant and EL Renewal is conducted in a consistent manner, and in accordance with legislative and administrative requirements.

In an instance where this document does not provide sufficient guidance, the matter should be referred to the ADEO for advice and resolution.

7.2. Procedure for Assessing Applications for an ELA or EL Renewal

Reminder:

ESU has 15 Business days to “assess” the Application and provide “advice” to the Titles Recommendation Committee. ESU provides “advice” via the completion of an ESU Checklist and input of ESU advice and recommendation into the TRC Assessment Summary.

Step 1: ESU receives application via Application Form - Environmental Officer Technical Support (EOTS)

a. TRIM Notification sent to ESU Administrator - [email protected] - by the Titles Unit - EOTS to receive. (TRIM Action – “ETC Referral”).





b. The Titles Unit is responsible for workflowing the ESU Checklist for ELA or EL Renewal.

Refer:

i. FRM-201-1 Checklist for assessing an application for an Exploration Licence (ELA)

ii. FRM-201-2 Checklist for assessing an application for an Exploration Licence Renewal

c. The EL Application will be available to view in the TRIM Application Sub Folder where the ESU Checklist is located – Refer to Appendix 2 for the indicative TRIM File Structure.

d. Record date received and due date for ESU advice in Task Track and relevant Regional Reporting Spreadsheet

Note: The Titles Unit will complete the Adequacy Assessment on initial receipt of the application.

Step 2: Forward to Regional Inspector Environment (Assessment Officer) in relevant region where the Authority is located - EOTS

The EOTS is to:

a. In TRIM, workflow the ESU Checklist to relevant Assessment Officer. TRIM Action - “Process Work”.

b. Add a note in TRIM (on the ESU Checklist document) of the name of the Assessment Officer to which the application was referred. This will allow all Business Units to know who is assessing the application on behalf of ESU.

c. Update Task Track and relevant Regional Reporting Spreadsheet.

Step 3: Assessment – Assessment Officer


a. Check that the correct ESU Checklist has been Workflowed to ESU by the Titles Unit

i. The ELA Grant (FRM-201-1) checklist is required for applications for new ELs

ii. The EL Renewal (FRM-201-2) checklist is required for applications for EL Renewal Note: The legislative considerations assessed by ESU differ for ELAs compared to EL Renewals.

b. Review the application and provide advice on each of the considerations in the ESU Checklist. There are Guidance Notes within the ESU Checklists to assist Assessment Officers address each of the “relevant considerations”.

a. If the information within the application is not sufficient to allow a thorough assessment of the “relevant considerations”, the Assessment Officer is to “Stop the Clock” and request additional information from the Applicant. See the Stopping the Clock section below. For further guidance on the assessment of Environmentally Sensitive Lands, refer to Appendix 3.

c. Filing: All relevant documents are to be related to the main Application Subfolder for the ELA or EL Renewal Application so that all Business Units may access the information. A separate MCV folder is not required.

Part 5 Planning Act considerations for EL Renewal


a. Review the information within the Application Form. The Application Form for Renewal (EL5) requests information about exploration activities conducted during the expiring term of the EL.




b. Based on the information provided by the Applicant, establish whether any approved Category 2,

Category 3 or “Assessable” prospecting operations are continuing into the new term.

c. Review the Environmental Management Report (EMR) which is required to be submitted with applications for EL Renewal. The EMR must be prepared in accordance with ESG4: Environmental Compliance Reporting Guidelines for Coal and Mineral Prospecting Operations which is available on the DRE website.

d. If the approved activities are completed, a Part 5 Assessment and Determination is NOT required upon renewal of the EL. (Proceed to Step 4 of the Procedure)

e. If the approved activities are continuing into the new term, the Assessment Officer is to:

i. identify the activities continuing into the new EL term

ii. review the outcome of the Part 5 Assessment and Determination carried out for the approved activities

iii. review DRE inspection reports and findings

iv. review the environmental impacts of the continuing activities based on the environmental impact of the completed activities

v. review any submitted EDG13 – Rehabilitation and Relinquishment Report Note: Until rehabilitation is fully completed and has been approved by DRE, rehabilitation activities are to be considered as a “continuing activity”.

f. If the assessment of the continuing activities confirms the outcome of the initial Part 5 Assessment and Determination, the Assessment Officer is to advise the Decision Maker that the continuing activities are not likely to have a significant impact on the environment and no further assessment is required.

• Note: if the continuing activity has already been assessed and approved and there are modifications proposed to the new activity that will reduce the overall environmental impacts (e.g. fewer drill holes remaining), no further assessment is required (s110E Planning Act).

g. If the assessment of the continuing activities does not confirm the outcome of the initial Part 5 Assessment and Determination, then the Exploration Assessment Procedure is to be followed to re-assess the continuing activities (i.e. use the Part 5 Assessment Tables; Briefing Documents; and, Approval and Determination Pathways).

h. If the information within the application is not sufficient to allow a Part 5 Assessment, the Assessment Officer is to “Stop the Clock” and request additional information from the Applicant. See the Stopping the Clock section below.

i. For a detailed workflow of this process, please refer to Workflow 2 in Appendix 1.

j. Further legislative information, please refer to Appendix 4.

Stopping the Clock

It is the responsibility of ESU Assessment Officers to assess all relevant considerations in the ESU Checklist. Should information regarding one or more relevant consideration be lacking, ESU is to formally contact the Applicant to request additional information to enable ESU’s assessment. The current Business Rule, as agreed by senior management in the Titles Unit and in Governance, is that: • Applications are received by the Titles Unit and forwarded to DRE Business Units for their assessment

and provision of advice to the Titles Recommendation Committee and Decision Maker. • Each Business Unit is to contact the Applicant directly, and in writing, if further “relevant” information is

required to enable DRE’s thorough assessment of the application.




• Information from the Applicant must also be provided in writing. • This information is to be added to the Application Sub Folder in TRIM so that all Business Units may view

and utilise this information in their assessment.

Note: This Business Rule may change in the future as the Titles Unit’s systems and resources permit additional administrative functions.

The Process for “Stopping the Clock” is explained in Workflow 1 in Appendix 1. The Steps and required TRIM actions are described below. If further information is required from the Applicant, the Assessment Officer is to:

a. Formally write to the Applicant to request additional information and to “Stop the Clock”

i. FRM-201-3 Request Further Info for new EL Applications – Stop the Clock

ii. FRM-201-4 Request Further Info for new EL Renewal – Stop the Clock

iii. FRM-201-4B EL Renewal - Additional Information - Stop the Clock for EMR 8-5-15

b. The letter is to be added to the TRIM Application Subfolder as an OUT document.

c. The Titles Unit is to be notified of the “Stop the Clock” through the following process:

i. Workflow the ESU Letter to the Applicant to the Titles Unit (TRIM Action “KPI Clock”) and

add a TRIM Note of the date the “Clock” stopped.





iii. This new TRIM Action will trigger the Titles Unit to stop their processing clock and update

TAS. (Note: The Titles Unit is ultimately responsible for reporting on the KPI’s for ELA’s and

EL Renewals).

d. Update Task Track or relevant Regional Reporting Spreadsheet.

When the required information is received from the Applicant via ([email protected]), the EOTS is to:

a. Add the information received from the Applicant to the TRIM Application Subfolder as an INW

document. This allows for all Business Units to view the documents/information supplied by the

Applicant. This promotes transparency.

b. Notify the Titles Unit of the “Start the Clock” through the following process:

i. Workflow the INW Letter (from the Applicant) to the Titles Unit (TRIM Action “KPI Clock”)





iii. Add a TRIM Note of the date the information was received and the “Clock” restarted.





iv. This TRIM Action will trigger the Titles Unit to re-start their processing clock and update

TAS.

c. Update Task Track or relevant Regional Reporting Spreadsheet.

d. Forward (via Email) the information to the Assessment Officer for further assessment.


a. Continue with the assessment in accordance with this Procedure.

Step 4: Approval assessment and provision of Advice to Decision Maker

To increase probity, DRE requires that the task of assessing the merits of an EL application, and approval of ESU advice for the Titles Recommendation Committee and Decision Maker, must be separated and therefore conducted by separate officer levels. Similarly, should a Part 5 be required, the tasks of assessing the environmental impacts of the activity and undertaking the Part 5 Determination, must also be conducted by separate officer levels (as per the Exploration Assessment Procedure). Note: Prior to sending advice to the Decision Maker, the Principles of Good Decision Making are also to be taken into account. Refer to Appendix 5 for a Factsheet on Making Robust Decisions.

To finalise the Assessment, the Assessment Officer is to:

a. In the “Comments/Considerations” section on the ESU Checklist, the Assessment Officer is to:

i. Document the key advice (as indicated in the ESU Checklist). Advice must only consider “relevant considerations” (e.g. those supported by Legislation, Regulations, Conditions or Policy).

ii. If necessary, document reasons for possible refusal (See Appendix A of the Checklist for Standard Words).

iii. Sign and date the Assessment.

iv. Update Task Track and/or relevant Regional Reporting Spreadsheet.

v. Upload to TRIM (replace the blank ESU Checklist).

b. For Renewal, and where ESU has assessed the security deposit on behalf of the Secretary, draft the FRM-201-5 Security Notification Letter for the EL Holder. This is required where required security deposit is equal to or greater than the minimum ($10,000).

The “assessed deposit” is to be based on the estimated cost for the fulfilment of obligations under the authorisation, including those related to rehabilitation, at the time of renewal. The “assessed deposit” is to include the estimated cost for the rehabilitation of all liabilities from the last term of the EL, and any outstanding liabilities from previous terms.

Note: For EL Grant, in most cases, the minimum security deposit of $10,000 is to be applied. When the minimum security is applied (and the Secretary has not assessed the amount of the security deposit under s.261BC), then the Secretary (or delegate) does not need to notify the EL Holder of the minimum deposit. FRM-201-5 Security Notification Letter is not required in this instance.

c. Should a new Part 5 Determination be required, the appropriate documentation (such as the Part 5 Tables and Assessment Summary) is also to be sent to the Approver for their review and recommendation to the Decision Maker.



ESU-PRC-201 Rev 3 Page 10 of

25 Effective date: 16 February 2015

d. Complete the Workflow on the ESU Checklist and Action the ESU Checklist to the Approver (TRIM

Action - “ETC Referral”).

e. The Approver is to be in a position senior to the Assessment Officer (see Table 2 on the next page).

Assessment Officer Approver of Advice to TRC

Position Environmental Inspector/Senior Environmental Inspector

Principal Environmental Inspector (or higher)

Position Principal Environmental Inspector Assistant Director Environmental Operations (or higher)

Table 2: Assessment and Approval Functions

The Approver is to:

a. Review the Application and the assessment information contained within the ESU Checklist.

b. Review the advice provided in the “Recommendations by the ESU Assessment Officer” section of the ESU Checklist.

c. Provide an overall review of the “relevant considerations” and document advice for the Titles Recommendation Committee and Decision Maker (e.g. all advice must be supported by Legislation, Regulations, Conditions or Policy).

d. If necessary, document reasons for possible refusal (See Appendix A of the Checklists for standard words for advice to the Decision Maker).

e. Approve and finalise the ESU Checklist and add the approved version into TRIM.

f. For Security Deposits above the minimum ($10,000):

i. Review and approve the security deposit assessment (according to appropriate delegations).

ii. Sign the FRM-201-5 Security Notification Letter and add the letter as an OUT document to the Application Subfolder. Relate the FRM-201-5 Security Notification Letter to the completed ESU Renewal Checklist.

iii. Send the FRM-201-5 Security Notification Letter to the Applicant.

iv. Important Note: ESU is to send the Security Notification Letter to the Applicant. The letter states that the “assessed deposit” will apply only if/when the EL is renewed.

Step 5: Communication of Advice to the Titles Unit and TRC

The Approver is to:

a. Update Task Track and/or relevant Regional Reporting Spreadsheet

b. Complete the Workflow on the ESU Checklist and Action to the Titles Unit in TRIM (Action – “ETC Referral”). Refer to the following Titles Unit positions:




ESU-PRC-201 Rev 3 Page 11 of

25 Effective date: 16 February 2015



The Titles Unit will coordinate information from each Business Unit prior to the Application progressing to the Titles Recommendation Committee for discussion.

It is important to note that NO applications will be permitted to progress to the Titles Recommendation Committee without assessment and advice from every DRE Business Unit.

8.0 RECORDS

FRM-201-1 Checklist for assessing an application for an Exploration Licence (ELA)

FRM-201-2 Checklist for assessing an application for an Exploration Licence Renewal

FRM-201-3 Request Further Info for new EL Applications – Stop the Clock

FRM-201-4 Request Further Info for new EL Renewal – Stop the Clock

FRM-201-4B EL Renewal - Additional Information - Stop the Clock for EMR 8-5-15

FRM-201-5 Security Notification Letter

FRM-201-6 EMR – ER&R Checklist

9.0 REFERENCES

Procedure interfaces Interaction

ESU-PRC-208 Assessment Procedure for Common and Non-Common Prospecting Operations

For Part 5 Assessment and Determination for continuing activities.

Table 2 – Procedural Interfaces

10.0 ATTACHMENTS

Appendix 1 Flowcharts

• Workflow on the Assessment of an Exploration Licence Application (ELA) and an application for EL Renewal.

• Workflow for the Renewal of EL incorporating activity approval

Appendix 2 TRIM Folder Structure (Indicative)

Appendix 3 Further Guidance on Assessment of Environmentally Sensitive Lands

Appendix 4 Additional Information: Legislative Context

Appendix 5 Principles for good decision making and procedural fairness




Appendix 1: Flowcharts




Input Output Titles Unit Titles Unit Titles Unit Titles Unit Environmental Officer Technical Support (EOTS) ESU Assessment Officer ESU Assessment Officer

Detailed Application Assessment by ESU

ELA or EL Renewal received by Titles Unit

Is further information required?

ESU Actions Checklist to Assessment Officer in TRIM

(“ETC Referral”)

Upload Business Unit Checklists and Assessment

Briefing into TRIM Subfolder relating to the ELA

Complete Adequacy Assessment

Clock Starts when Application is deemed “Adequate”

Note in TRIM – Start Date

Checklists actioned in TRIM (“ETC Referral”) to ESU

Note in TRIM – Due Date

Yes: See Page 2, No: See Page 3


Completed Titles Adequacy Checklist; Note in TRIM – Start Clock Date In TRIM: Create ELA Subfolder Add Checklists and Assessment Summary Add Application Action Checklist to “ESU Administrator” position in TRIM. TRIM Action “ETC Referral” TRIM Notification “ETC Referral” Complete ESU Checklist








Input Output ESU Assessment Officer Titles Unit ESU Assessment Officer EOTS EOTS Titles Unit

Notify Titles Unit of need to “Stop the Clock”

Develop Letter; Put in TRIM as OUT; send to Applicant; Action to Titles (“KPI Clock”)

Titles Unit to update TAS “Stop the Clock”

Letter to Applicant

Information provided by the

due date?

Notify Titles UnitDevelop Memo or Email; Put in TRIM as INT; Action to

Titles (“KPI Clock”)

No

Notify Titles Unit that information is received

“Start the Clock” Action INW to Titles –

Add Note: Date received(“KPI Clock”)

Titles Unit to update TAS and “Start the Clock”

Yes

Add the information to EL Application Subfolder so

all Business Units can access

Forward (via Email) the information to the Assessment Officer

Process continued on Page 3:

Note: Update TRC Assessment Summary

Letter to the Applicant; TRIM Notification “KPI Clock” to Titles - Team Leader


Coal TAS Entry Memo/Email as INT file in TRIM; Action in TRIM “KPI Clock” – Reason to Refuse Application Add Information to Application Subfolder – INW doc in TRIM Workflow INW file to Titles in TRIM; Action - “KPI Clock” Re-start Clock Forward information to Assessment Officer TAS Entry








Input Output ESU Assessment Officer ESU Approver ESU Approver Titles Unit

End Process

Assessment Officer to complete checklist and forward to “Approver”

for review and approval (TRIM Action – “ETC Referral”)

Approver Actions Checklist to Titles Unit “ETC Referral”

and Completes Action Note in TRIM – Assessment

Complete by “Name”

ESU “Approver” completes Checklist and TRC

Assessment Briefing in TRIM

Titles Unit review and compile information for TRC

Meeting

Completed ESU Checklist; TRIM Action “ETC Referral” Approved ESU Checklist; Complete ESU section in Assessment Summary TRIM Action “ETC Referral” to Titles Unit - Team Leader


Coal. Update Task Track








Input Output Titles Unit Titles Unit Environmental Officer Technical Support (EOTS) ESU Assessment Officer ESU Assessment Officer

Application for Exploration Licence Renewal (EL5) received by the Titles Unit

Titles Unit actions the ESU Checklist for Renewal to the Environmental Officer

Technical Support

Environmental Officer Technical Support Actions ESU Checklist for Renewal to

Assessment Officer (in relevant Region)

Assessment Officer assesses the Application, completes the Checklist and

determines whether a Part 5 Determination is required

Approved Cat 2 or 3 Activities Continuing into the

new term?

Part 5 Assessment NOT requiredNo

Yes: See Page 2


Action Checklist to “ESU Administrator” – TRIM Action “ETC Referral” TRIM Notification TRIM Action “ETC Referral” Application review and complete ESU Checklist Continue with Procedure








Input Output ESU Assessment Officer ESU Assessment Officer ESU Assessment Officer ESU Assessment Officer ESU Assessment Officer

Does the Assessment Officer

have sufficient information?

Yes

Conduct the Part 5 Assessment

Stop the Clock, Advise the Titles

Unit via “KPI Clock” in TRIM

Contact the Applicant to obtain

the required information

Info provided to enable Part 5

Assessment and Determination?

Yes

No

Notify Titles to “Restart Clock”.

Add info to TRIM.

Update EL Renewal Checklist

Send Documentation to ESU “Approver” for

Determination

Continue with Steps in Procedure ESU-PRC-201

No

Letter to the Applicant. “KPI Clock” TRIM Action to Titles Unit. Add Information as INW Document to Application Subfolder in TRIM Action INW to Titles Unit in TRIM “KPI Clock” Re-start Clock Part 5 Tables and Assessment Brief Complete ESU EL Renewal Checklist Continue with Procedure





Appendix 2: Indicative TRIM Structure for each Application

TRIM Structure

Application Subfolder

Summary Briefing

Checklist ESU

Checklist C&E

Checklist Coal and Petroleum or MEA (Coal or Minerals)

Titles Checklist

Title Folder

Decision Maker’s Checklist

Other Folders related

“Alternatively within”

Note: The CPG checklist or the MEA checklist will be added to the Application Subfolder, depending on the exploration type (coal or minerals) the application relates to. CPG and MEA have different considerations, as such, the ESU Checklists vary.




Appendix 3: Further Guidance on Section 237 and Environmentally Sensitive Lands

Important

Category 1 prospecting operations (exploration defined by the Mining SEPP as “Exempt development”) are the only prospecting operations permitted on Grant of the Exploration Licence. By virtue of the definition of “Exempt development”, these prospecting operations are of minimal environmental impact and cannot be performed within an environmentally sensitive area of State significance.

As only Exempt Prospecting Operations will be permitted on the Exploration Licence after Grant, and no activities may be performed on an environmentally sensitive area of State significance (as defined by the SEPP) without further approval, ESU considers that there are no issues of concern pursuant to s.237 for the Decision Maker to take into account.

Environmentally Sensitive Land includes: • land reserved as a State Conservation Area under the National Parks and Wildlife Act 1974 • land declared as an Aboriginal place under the National Parks and Wildlife Act 1974 • land identified as wilderness under the Wilderness Act 1987 • land subject to a ‘conservation agreement’ under the National Parks and Wildlife Act 1974 • land acquired by the Minister for the Environment under Part 11 of the National Parks and Wildlife

Act 1974 • land proposed to be reserved as a national park or nature reserve under the National Parks and

Wildlife Act 1974 • land declared as critical habitat under the Threatened Species Conservation Act 1995 or the

Fisheries Management Act 1994 • land subject to a ‘biobanking agreement’ under the Threatened Species Conservation Act 1995 • land within State forests mapped as Forestry Management Zone 1, 2 or 3 • wetlands mapped under State Environmental Planning Policy No 14 - Coastal Wetlands • wetlands listed under the Ramsar Wetlands Convention • lands mapped under State Environmental Planning Policy No 26 - Littoral Rainforests • aquatic reserves under the Fisheries Management Act 1994 • areas listed on the World Heritage List, National Heritage List, Commonwealth Heritage List or

Register of the National Estate • areas listed under the Heritage Act 1977 for which a plan of management has been prepared • land within a restricted area prescribed by a controlling water authority • waterfront land as defined under the Water Management Act 2000 • land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna,

geological formations or other environmental protection purpose • land identified as Potential Acid Sulfate Soils or Actual Acid Sulfate Soils as defined by the NSW

Office of Environment and Heritage Acid Sulfate Soils Risk Maps • land identified as Strategic Agricultural Land under State Environmental Planning Policy (Mining,

Petroleum Production and Extractive Industries) 2007 Biobanking Sites The Mining Act 1992 states:

381A Biobank sites






It is ESU’s responsibility to notify the Titles Unit and the Decision Maker of any future Authorities (including Exploration Licences) which overly land that is the subject of a Biobanking Agreement.

The Titles Unit is to formally write to the Minister administering the Threatened Species Conservation Act 1995 following grant of the Exploration Licence.

Forestry Management Zones

Forestry Management Zones (FMZ) 1, 2, and 3 are defined by NSW Forests as areas that require addition protection because of their inherent environmental qualities such as: important watershed catchment area; habitat to threatened species; or, high quality native habitat. NSW Forests owned lands have many areas of very high environmental value, equal to the quality of any National Park in NSW. These areas have been recognised by Forestry ecologists and mapped accordingly.

FMZ’s 1, 2, and 3 fall into the "Sensitive Lands" category. As such they are afforded addition protection through a higher level of assessment when required. Category 1 prospecting within sensitive lands is automatically elevated into Category 2 because of these sensitivities. The current and historical Exploration Licence conditions reflect this. For example see an excerpt from the Exploration Licence conditions below:

Note: All prospecting operations in Sensitive Lands are also subject to Condition 2 (Prospecting Operations Requiring Further Approval).

All Assessment Officers need to have access to accurate mapping on FMZs and other sensitive land layers, as required, so that the information stated within an EL application may be properly assessed.

An FMZ layer is available in the following folder on the ESU Drive: W:\CURRENT RESOURCES\Mapping




Appendix 4: Legislative Context

The NSW Department of Industry, Division of Resources & Energy (DRE) is the determining and approval authority for all exploration activities subject to environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (Planning Act).

The approval of exploration activities conducted in accordance with an EL is a function imposed upon DRE by the grant of an EL that has a condition requiring the approval as a condition of the licence. Exploration licences may be renewed from time to time and upon renewal, the exploration activities previously approved may be continuing if not completed in the prior term of the EL.

The assessment and determination of the environmental impacts of exploration activities is a duty imposed under Part 5 of the Planning Act in connection with an exploration activity for which an approval is required under the Mining Act 1992 and the Petroleum (Onshore) Act 1991.

The determination of the renewal triggers Part 5 of the Planning Act and any activities continuing on the date of the renewal, even if previously assessed and approved, are subject to the operation of Part 5 at the time of renewal.

The assessment is not required for continuing prospecting that is Category 1 (i.e. exempt development pursuant to clause 10(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP). Additional Information

Part 5 of the EP&A Act imposes two central requirements on determining authorities when determining whether or not to grant an approval for an activity:

(a) a duty to, “in its consideration of an activity… examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”; and

(b) a duty to require and consider an environmental impact statement (EIS) if the activity is likely to significantly affect the environment (including critical habitat) and threatened species, populations or ecological communities and their habitats, and engage in public participation informed by the EIS.

Section 110(1) of the EP&A Act states that: (a) an “activity” does not include:

(i) any act, matter or thing for which development consent under Part 4 is required or has been obtained; or

(ii) exempt development; (b) an “approval” includes a consent, licence or permission or any form of authorisation; and (c) a “determining authority” means a Minister or public authority and, in relation to any activity, means

any Minister or public authority whose approval is required in order to enable the activity to be carried out.

Therefore Part 5 must be applied in respect of any approval issued by the Department which authorises a person to undertake (or continue undertaking) an activity:

(a) that is not exempt development (i.e. Category 2 or 3 activities); and (b) for which development consent is not required.




Appendix 5: Factsheet on Making Robust Decisions

Making robust decisions – a guide Issued by Legal Branch

This fact sheet provides general guidance on the legal requirements for good decision making, including guidance on satisfying procedural fairness obligations.

Summary

Principles of good decision-making include:

• the decision is within power; • procedural requirements are followed; • the decision-maker has the necessary authority or delegation to make the decision; • the decision is made for a proper purpose; • only relevant considerations are taken into account; • the decision is reasonable; • the decision is supported by evidence; • discretions are exercised properly; and • the decision is expressed with certainty and clarity.

Procedural fairness is another principle of good decision making which obliges decision-makers to give persons affected by a decision an opportunity to have their views heard (the ‘fair hearing rule’) and obliges decision makers to make impartial and unbiased decisions (the ‘rule against bias’).

What is the risk?

Breaching these rules and principles may result in a court finding your decision is invalid. This is likely to have cost and reputational consequences for the department.

Your legal obligation to comply with administrative law

Administrative law makes government decision-makers accountable for their actions to protect the rights of the public in relation to the State. The principles of good decision making and procedural fairness are important elements of administrative law.

Courts can review decisions made by government decision-makers. One avenue of review is judicial review. Here, the question is whether a decision was made according to principles of administrative law. If found not to be, the court may set aside the original ‘decision’ and order that it be re-made according to law.

Where legislation provides for it, there may also be a right to merits review. Here, the question is whether the decision was warranted on its merits, even if it isn’t affected by illegality. A tribunal or court can ‘stand in the shoes’ of the original decision maker and remake the decision.

What should I do?

When making a decision in the course of your work, consider the following:




1. What is the scope of my power?

Check the legislative provision which gives you power to make the decision. Ask yourself whether your decision goes beyond the decision-making power. Also consider whether the legislation imposes requirements or restrictions on making the decision.

2. Are there procedural requirements?

You need to follow any procedures set out in legislation for making a decision. For example, legislation may require you to advertise an application or require you to give an individual an opportunity to make submissions before you make your decision.

If you think that following a procedure leads to an unfair, unreasonable or absurd outcome, get written advice from a Senior Executive in your area, and consider obtaining legal advice.

3. Do I have an authorisation or delegation?

It is crucial to ensure you have the appropriate authorisation or delegation to make your decision.

Authorisation: where a statute requires a decision only to be made by an authorised officer, you need to make sure you are currently authorised. Your authorisation specifies which powers you can exercise. Check your authorisation.

Delegation: A delegation means that the power to make a decision has been delegated to you from someone else, usually the Minister or Secretary. An instrument of delegation will set out who can exercise a function and any limitations that apply. Check your delegation.

4. Am I exercising my power for the purpose Parliament intended?

You must exercise your power to achieve the purposes or objects of the legislation which grants you the decision-making power. Apart from the general objects, legislation can prescribe specific purposes for which particular powers can be exercised. An abuse of power occurs where a decision-maker has an improper purpose for exercising a discretion or seeks to achieve an improper objective.

5. Have I taken into account all relevant considerations? Have I ignored irrelevant considerations?

You must take into account all mandatory relevant considerations and you must not take into account irrelevant considerations. In other words: consider only the relevant matters or facts.

Sometimes, legislation will require certain matters to be taken into account or forbid other matters from being taken into account.

A decision-maker can, and generally should, consider any policies and guidelines relevant to

a particular decision. However, policies and guidelines do not provide a blanket answer to fit all circumstances and should be applied appropriately in the circumstances. This means you cannot slavishly apply policies or guidelines, nor should you depart from them without a reason.

6. Is my decision reasonable?

Your decision may be invalid if it is so unreasonable that no reasonable person could ever have reached it and it lacks intelligible justification.




Ask yourself:

• Are the facts I based my decision on correct (have I got the facts right)? • Have I given appropriate weight to different factors in accordance with their relative importance? • Can my decision be justified?

7. Is my decision supported by evidence?

You must have evidence to justify your decision, rather than mere suspicion or speculation. The decision must be based on material which logically tends to show the existence or nonexistence of facts which support the decision.

There should be a record of the decision-making process on file. Keeping a record on file will help meet any claim that your decision was not based on evidence.

8. Have I properly exercised my discretion?

Discretion is the power to make a decision according to your own judgment, within the scope of the legislation.

You should ask yourself:

• Have I turned my own mind to the decision, free from any fetters or directions? • Have I avoided giving any promises or making any agreements about how I will exercise my

discretion in advance of considering all the evidence?

9. Have I expressed my decision with certainty and clarity?

People affected by your decision must be able to understand it. They must also be able to understand what, if anything, they are required to do in response. Any conditions imposed must also be clear, certain and understandable.

Procedural Fairness

Decision-makers have a duty to accord procedural fairness. There are two rules of procedural fairness: the ‘fair hearing rule’ and the ‘rule against bias’.

Fair hearing rule

The general rule is that a decisionmaker must give each person affected by a decision the opportunity to be heard. This extends to persons whose rights and interests or legitimate expectations will be adversely affected. The precise nature of the hearing required varies depending on the legislation and the nature of the decision. However, as a general rule, a decision-maker must ensure that the person affected by a decision is aware of the upcoming decision and has an opportunity to make submissions.

What type of hearing do I have to give?

Sometimes, legislation sets out what type of hearing must be given. Refer to the legislation to check if this is the case. If legislation sets out procedures on how to provide a hearing, this does not necessarily preclude other forms of hearing.




More often legislation is silent on the type of hearing you have to provide. In this case, the type of hearing necessary depends on an interpretation of the legislation and circumstances. Legal Branch can assist in advising on what requirements may be necessary in a given situation.

You will need to inform the person about the critical issue or factor that forms the basis of the proposed decision. For example, if you are going to cancel a licence you will have to tell the licence holder not just that you intend to cancel their licence, but also why.

Exclusion of procedural fairness

If legislation provides in very clear terms that the decision-maker does not need to provide a hearing to the person who is going to be affected, procedural fairness is not legally required. It can nevertheless still be afforded to promote good decisionmaking.

Rule against bias

Decisions must be made in an impartial and unbiased manner. You will be considered biased and not impartial if you have a conflict of interest.

For example, you cannot make a decision where:

• your own financial interests may be affected by the decision; • you are a relative of an interested party; • you have a personal or professional association with an interested party; or • you have expressed a hostile or a favourable view about an interested party or your preferred

outcome.

The rule against bias may also be contravened where there is a reasonable suspicion or apprehension that you are not impartial. For example, because of a past or present personal, professional or business association. Ask yourself what your decision might look like to an outsider.

Consequences of breaching the rules of procedural fairness

Where a Court finds that a decisionmaker has breached either the hearing rule or the rule against bias, the Court can set aside the decision.

Documenting decisionmaking

You should:

• keep a record of all documents and materials considered in making your decision, and • set out and record in writing your decision-making process.

You should consider making a detailed statement of the evidence presented to you, your consideration given to the materials, your reasons for your decision, as well as the decision itself.

See Legal Fact Sheet No. 5 on Keeping File Notes (Refer to the Department’s website)

Some legislation will require a statement of reasons to be provided to the applicant. Other legislation may not require this. It is good practice to keep a record of reasons for your decision on file even if there is no requirement to give reasons.

If your decision is challenged in court you may be required to provide reasons.




Conclusion

This Fact Sheet provides an overview of key principles of decision making.

Please contact Legal Branch if you have a question or need assistance by submitting a Request for Legal Services form.

Important: This internal fact sheet is for use by NSW Trade & Investment staff. Readers are advised to contact Legal Branch to obtain further assistance in relation to any specific legal questions that you may have.

© State of New South Wales through Department of Trade and Investment, Regional Infrastructure and Services (NSW Trade & Investment)

Disclaimer: The information contained in this publication is based on knowledge and understanding at the time of writing (February 2015). However, because of advances in knowledge, users are reminded of the need to ensure that the information upon which they rely is up to date and to check the currency of the information with the appropriate officer at the Department of Trade and Investment, Regional Infrastructure and Services or through the user’s independent advice.



Checklist for the Environmental Sustainability Unit’s review of authorisation decisions and advice to the Decision Maker for Exploration Licence Applications (ELA) Version 4.0 – To incorporate changes required for practical implementation by ESU. TITLE INFORMATION: ELA: To be input by Titles Unit Applicant: To be input by Titles Unit

Location (Region): To be input by Titles Unit Titles Assessment Summary RM8 Reference:

To be input by Titles Unit

ESU Checklist RM8 Reference:

To be input by ESU

Timeframes:

ESU has 15 Business days to “assess” the Application and provide “advice” to the Decision Maker. ESU provides “advice” via the completion of this Checklist and Assessment Report for the Decision Maker.

GRANT Relevance of

consideration Factors to consider YES NO

Conserve and Protect the Environment ESU1.1 s.237(1) In deciding whether or not to grant an Exploration

Licence, the Minister is to take into account the need to conserve and protect the environment and natural resources (including but not limited to flora, fauna, fish, fisheries and scenic attractions, and the features of Aboriginal, architectural, archaeological, historical or geological interest)1 Note: Exempt Prospecting Operations are exploration operations defined by the Mining SEPP as “Exempt development”. Exempt Prospecting Operations are the only prospecting operations permitted on Grant of the Exploration Licence. Exempt Prospecting Operations are of minimal environmental impact and CAN NOT be performed within an environmentally sensitive area of State significance. Comments: Mandatory advice to the Decision Maker is detailed in the Assessment Report. Please review the advice and advise the Decision Maker of any other significant risks or issues which need to considered to conserve and protect the environment and natural resources.

Note

ESU1.2 s.16 and Further information required?2 ESU Authorisation Assessment Form – Exploration Licence applications under the Mining Act 1992 – V4.0

Relevance of consideration

Factors to consider YES NO

s.237(2) Is further information required to enable the Decision Maker to make a decision regarding the conservation and protection of natural resources and the environment? Does the Minister need to cause studies (including environmental impact studies) to be carried out to enable such a decision to be made?3 No further assessment required. Copy and paste this mandatory advice to the Decision Maker (see below). Comments: ESU notes that only Exempt Prospecting Operations will be permitted on the Exploration Licence without further approval from the Minister. Further information is not required for the conservation and protection of natural resources and the environment as Exempt activities are of minimal impact and no activities may be performed on an environmentally sensitive area of State significance.

No

No

ESU1.3 s.238 and s.26 Conditions Are there any specific or unusual risks associated with this application licence which may require special conditions to protect the environment?4 Note: there are standard conditions imposed for the protection of the environment. e.g.

• a condition requiring compliance with the Rehabilitation Code, • incident reporting condition, • rehabilitation condition.

For each Activity Approval, the relevant Codes will also be applied on approval, to manage specific environmental risks.

If further conditions are required, describe the particular risk and one or more ways this risk could be addressed (by special condition or otherwise).

If no, accept standard conditions. Comments:

ESU1.4 s.27 Term of Licence Taking into account the protection of natural resources and the environment, is there any reason to modify the term of the proposed Exploration Licence (eg 5 years)?5 Comments:

ESU1.5 s.13(5)(f), Environmental performance record FRM-201-1 ELA Checklist - Environmental Sustainability Unit – V4.0 Page 2 of 14



s.22(2) cl.14(1)(a)

Does the applicant’s environmental record demonstrate that the applicant contravened the Mining Act or the Regulation (whether or not the person has been prosecuted or convicted)?6

Note: RAIU are responsible for examining Fit and Proper Person and the Environmental Performance Record taking into account other Environmental legislation. ESU is also required to comment on aspects known to ESU relevant to the Mining Act 1992. Consider:

- Where available, review DRE inspection reports and findings. - Review ACES. - Past/current rehabilitation performance of the applicant. - Past/current environmental management performance of the

applicant. - Past improvement notices or “warning letters” which required

action to prevent a breach of conditions, Mining Act 1992 or Mining Regulation 2010.

- Past auditing results of applicant. - Compliance issues (note C&E Unit will provide information on

“Contraventions” which are recorded in ACES). - Timing/lodgement of reports.

Also notify the RAIU of any compliance issues which are identified and update the ACES. Comments:

Other factors ESU1.6 s.22(2) False and Misleading Information7

In the opinion of the Assessor, is it believed that the applicant has provided false and misleading information in relation to environmental/environmental management aspects of the application? On the information received, has the Assessor detected information which may be false or misleading. Check:

- Past records of applicant - Past reports

If yes, register the allegation on ACES and note in the “Comments” section below. Comments:

ESU1.7 s.246P Mandatory Audit Condition Is a mandatory audit condition recommended for this authorisation in order to protect natural resources?8 Consider:

- Past compliance record

FRM-201-1 ELA Checklist - Environmental Sustainability Unit – V4.0 Page 3 of 14



- Environmental management and rehabilitation performance If yes, advise of the need for a condition, the purpose and timeframes. Note: this condition should only be added in exceptional circumstances. Comments:

ESU1.8 Part 12A, s.261B, cl.75(c)

Security9 Are there any special circumstances or rehabilitation liabilities which would trigger the security condition to be set as higher than the minimum ($10,000)? If yes, conduct an assessment of the security deposit in accordance with the Security Deposit Assessment Procedure and note the recommended Security in the comments section below.

If no, in the “Comments” section below, advise the Decision Maker to apply the minimum deposit of $10,000.

Note: For EL Grant, in most cases, the minimum security deposit of $10,000 is to be applied. An assessed deposit must not be less than the minimum deposit for the authorisation or, in the case of a group security deposit, the sum of the minimum deposits for all affected authorisations. When the minimum security is applied (and the Secretary has not assessed the amount of the security deposit under s.261BC), then the Secretary (or delegate) does not need to notify the EL Holder of the deposit. FRM-201-5 Security Notification Letter is not required in this instance.

Comments:

ESU1.9 s.237 and s.3A(e)-(g)10

Other Considering both the objects of the Mining Act at s3A(e)-(g) and:

a. the protection of natural resources and the environment

b. the identification and development of mineral resources in ways that minimise impacts on the environment

are there any additional factors which the Decision Maker should take into account.

Comments:

ESU1.10 Internal Policy Natural resource issues – community feedback and/or consultation11 Are there any known issues raised by the community or through consultation with the Authority holder (if they have existing titles), or affected stakeholders, which require consideration by the Decision Maker?




Consider: - Any correspondence submitted to ESU/DRE via email or RM8 - Internal memos - Information issued from Strategic Communications

If yes, detail in the “Comments” section below. Comments:

ESU1.11 s.381A

Is this application in relation to a Biobank site (s.381A?)12 Review http://www.environment.nsw.gov.au/bimspr/

- Review the location of the ELA area - access MinView to obtain a map of the ELA - Open the OEH Link, enter the name of the LGA in which the

ELA is located. - Check for Biobanking sites, agreements, EOIs etc which may

intersect or overlap with the ELA Area. If yes, advise the Titles Unit in “Comments” section below of any Biobanking site within the meaning of Part 7A of the Threatened Species Conservation Act 1995. (Note: Titles Unit to send the letter to the Minister administering the TSCA following Grant). Comments:


http://www.environment.nsw.gov.au/bimspr/

Direction from Assistant Director Environmental Operations and the Director ESU, to be implemented from 1 September 2015

1. Complete the Environmental Assessment Report below. 2. Then update the Title’s Unit’s ELA Assessment Summary to answer the 3 key questions which are

the responsibility of ESU to provide to the Decision Maker. ENVIRONMENT ASSESSMENT REPORT

1. Has the Applicant complied with the required statutory requirements? Yes/No If no, provide details (See Appendix A on next page for standard words, as required).

2. Does ESU have any objections to the grant of the exploration licence? Yes/No If no, detail issues/advice to the Decision Maker (See Appendix A on next page for standard words, as required).

Issues identified: List any issues identified through the completion of the ESU check sheet – provide extra relevant details as required. If there are no issues record as ‘none’. Considerations may include:

• Any unusual risks which might need to be addressed via special conditions or mandatory audit conditions – identify the risk and how it might be managed via a condition on the authorisation.

• Term of Licence – should the term of the licence be restricted to protect the environment? • Environmental compliance record – see Appendix A. • False and misleading information - advise of offence proven and refer to RM8 record and ACES. • Security determination (advise of the “assessed deposit”, other than the minimum) - If not the minimum,

advise the Decision Maker of the RM8 record for the “Notice of the Assessed Deposit”. • Community feedback and/or consultation? Advise any local or regional contentious issues. • Biobank site? If a Biobank site is on the land applied for, advise of its presence. • [Any other issue]

Summary of advice: Information to conserve and protect the environment and natural resources provided by the applicant has been considered in accordance with s.237 of the Mining Act 1992 and on the basis that:

a) a condition has been imposed on the authorisation prescribing that only Exempt Prospecting Operations (Exempt development under the Mining SEPP) will be permitted on the Exploration Licence without further approval from the Minister, and;

b) no prospecting activities may be performed on an environmentally sensitive area of State significance (as defined by the SEPP) without further approval, and;

c) a standard condition has been be imposed to require an obligation to rehabilitate all land and water disturbances caused by activities carried out under this licence in accordance with the requirements in Part B of the Exploration Code of Practice - Rehabilitation (NSW Department of Industry, July 2015) to the satisfaction of the Minister, and;

d) [additional condition(s) are imposed (pursuant to s239 of the Mining Act) to manage/mitigate “issues identified” above,] – only add where required – delete if no additional conditions are required.

the Decision Maker is advised that sufficient measures are in place to conserve and protect the environment pursuant to s.237 when determining the application.


Recommendation by ESU Assessment Officer

ESU Assessing Officer: Signature:

Update Task Track and assign to Approver in RM8 for Approval (Action – “Approval”)

Review and Approval by ESU Approver

Principles of Good Decision Making Taken into Account

Yes No

Approve “Notice of Assessment” – Security Notification Letter

Yes No NA RM8 Ref:

Environmental Assessment Report Approved:

Yes No NA Insert any additional comments from Approver as necessary.

Titles Assessment Summary updated:

Yes No

Name, Position:

Signature:

Date of Approval: Update Task Track, update Titles Unit’s ELA Assessment Summary in RM8 and assign this Checklist to Team Leader Eastern in RM8 for Action (Action – “Process Work”)


Appendix A Advice to the Decision Maker GRANT Conservation and Protection of the Environment

• Information to conserve and protect the environment and natural resources provided by the applicant has been taken into account in accordance with s.237 of the Mining Act 1992.

• Imposing the standard conditions will ensure that only Exempt Prospecting Operations (Exempt development under the Mining SEPP) will be permitted on the Exploration Licence without further approval from the Minister. A standard condition will also be added to require the imposing an obligation to rehabilitate all disturbance caused by activities carried out under this licence in accordance with the requirements in Part B of the Exploration Code of Practice - Rehabilitation (NSW Department of Industry, July 2015) to the satisfaction of the Minister.

• As only Exempt Prospecting Operations will be permitted on the Exploration Licence after Grant, and no activities may be performed on an environmentally sensitive area of State significance (as defined by the SEPP) without further approval, ESU considers that there are no issues of concern pursuant to s.237 for the Decision Maker to take into account.

Security • On the grant of the authorisation, in accordance with section 261B of the Mining Act 1992, the Decision

Maker imposes the condition for a Security Deposit, which is required for fulfilment of obligations under the authorisation, including obligations under the authorisation that may arise in the future.

• An assessed Deposit has not been determined and the minimum Security Deposit of $10,000 (the prescribed minimum amount) may be imposed.

[OR]

• The Assessed Deposit as determined by the Secretary (as delegated) is $XX,XXX.

Compliance • In considering the Applicant’s environmental compliance record, no issues have been identified to

justify refusal of the Authorisation.

[OR]

• In considering the applicant’s environmental compliance record, the following issues have been identified that may justify refusal of the Authorisation: • [Minor / Moderate / Major] contraventions of the Mining Act 1992 in relation to the protection

of the environmental have been recorded and the applicant is considered at [Minor / Moderate / Major] risk of contravening this Authorisation if granted.

• There is evidence that the Applicant has contravened an Activity Approval Condition and/or Authority Condition relating to rehabilitation/environmental management/reporting under the Mining Act 1992 in relation to other authorisations held in the same name or related companies.

• There is evidence that the Applicant has been convicted of an offence relating to mining or minerals under the Mining Act 1992.

• There is evidence that the Applicant has provided false or misleading information in or in connection with the application.


1 Natural resource protection Mining Act 1992 237 Need to protect natural resources etc to be taken into account

(1) In deciding whether or not to grant an authority or mineral claim, the Minister or mining registrar is to take into account the need to conserve and protect:

(a) the flora, fauna, fish, fisheries and scenic attractions, and (b) the features of Aboriginal, architectural, archaeological, historical or geological interest, in or on the land over which the authority or claim is sought.

13 Application for exploration licence (5) The required information (for an EL application) is as follows: (a) a description, prepared in the approved manner, of the proposed exploration area, (b) particulars of the financial resources and relevant technical advice available to the applicant, (c) particulars of the program of work proposed to be carried out by the applicant in the proposed exploration area, (d) particulars of the estimated amount of money that the applicant proposes to spend on prospecting in that area, (e) if the application is for an exploration (mineral owner) licence, evidence that the minerals to which the

application relates are owned by the applicant, (f) any other information that is prescribed by the regulations.

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 10 Exempt development

(1) This clause applies to development that is on land that: (a) is not within an environmentally sensitive area of State significance, or (b) is within a state conservation area but is not land referred to in paragraphs (a)–(e) or (g)–(i) of the definition of

environmentally sensitive area of State significance. (2) Development for any of the following purposes is exempt development if it is of minimal environmental impact: (a) the construction, maintenance and use of equipment for the monitoring of weather, noise, air, groundwater or

subsidence, (b) low intensity activities associated with mineral exploration or petroleum exploration, including the following: (i) geological mapping and airborne surveying, (ii) sampling and coring using hand-held equipment, (iii) geophysical (but not seismic) surveying and downhole logging, (iv) accessing of areas by vehicle that does not involve the construction of an access way such as a track or road.

Environmentally Sensitive Land includes (DRE List): • land reserved as a State Conservation Area under the National Parks and Wildlife Act 1974 • land declared as an Aboriginal place under the National Parks and Wildlife Act 1974 • land identified as wilderness under the Wilderness Act 1987 • land subject to a ‘conservation agreement’ under the National Parks and Wildlife Act 1974 • land acquired by the Minister for the Environment under Part 11 of the National Parks and Wildlife Act 1974 • land proposed to be reserved as a national park or nature reserve under the National Parks and Wildlife Act

1974 • land declared as critical habitat under the Threatened Species Conservation Act 1995 or the Fisheries

Management Act 1994 • land subject to a ‘biobanking agreement’ under the Threatened Species Conservation Act 1995 • land within State forests mapped as Forestry Management Zone 1, 2 or 3 • wetlands mapped under State Environmental Planning Policy No 14 - Coastal Wetlands • wetlands listed under the Ramsar Wetlands Convention • lands mapped under State Environmental Planning Policy No 26 - Littoral Rainforests • aquatic reserves under the Fisheries Management Act 1994 • areas listed on the World Heritage List, National Heritage List, Commonwealth Heritage List or Register of the

National Estate • areas listed under the Heritage Act 1977 for which a plan of management has been prepared


• land within a restricted area prescribed by a controlling water authority • waterfront land as defined under the Water Management Act 2000 • land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna, geological

formations or other environmental protection purpose • land identified as Potential Acid Sulfate Soils or Actual Acid Sulfate Soils as defined by the NSW Office of

Environment and Heritage Acid Sulfate Soils Risk Maps • land identified as Strategic Agricultural Land under State Environmental PlanningPolicy (Mining, Petroleum

Production and Extractive Industries) 2007

2 Further Information Required? Mining Act 1992 16 Decision-maker may require further information

The decision-maker may require the applicant or tenderer to furnish further information in connection with the application or tender, including (if the applicant or tenderer is a corporation) information as to the extent to which the controlling power in the corporation’s affairs is held by: (a) a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) a company registered under that Act that is taken for the purposes of that Act to be registered in a State or

Territory other than New South Wales, or (c) an individual who is a resident of a foreign country.

3 237 Need to protect natural resources etc to be taken into account

(2) The Minister or mining registrar may cause such studies (including environmental impact studies) to be carried out as the Minister or mining registrar considers necessary to enable such a decision to be made.

4 Further Conditions for Environmental Performance Mining Act 1992 26 Conditions of exploration licence

(1) An exploration licence is subject to such conditions (if any) as the decision-maker imposes when the licence is granted, or at any other time under a power conferred by this Act.

238 Inclusion of conditions for protecting the environment

The conditions subject to which an authority or mineral claim is granted or renewed must, if the Minister or mining registrar considers it appropriate, include conditions relating to the conservation and protection of: (a) the flora, fauna, fish, fisheries and scenic attractions, and (b) the features of Aboriginal, architectural, archaeological, historical or geological interest, in or on the land subject to the authority or claim.

5 Term of Licence Mining Act 1992 27 Term of exploration licence

An exploration licence: (b) ceases to have effect on the expiration of: (i) 2 years after the date on which it took effect, in the case of an exploration (mineral owner) licence, or (ii) such period (not exceeding 5 years) as the decision-maker determines, in the case of any other exploration

licence.

6 Environmental Performance Record Mining Act 1992 FRM-201-1 ELA Checklist - Environmental Sustainability Unit – V4.0 Page 10 of 14

13 Application for exploration licence

(1) Any person may apply for an exploration licence. (2) To avoid doubt, the owner of privately owned minerals may apply for an exploration (mineral owner) licence or

any other exploration licence with respect to those minerals. Note. The owner of privately owned minerals may choose to apply for an ordinary exploration licence with respect

to those minerals, rather than an exploration (mineral owner) licence. In relation to exploration (mineral owner) licences see section 24 (4).

(3) An application that relates to land in a mineral allocation area may not be made, except with the Minister’s consent, in relation to any group of minerals that includes an allocated mineral.

(4) An application for an exploration licence must: (a) specify the group or groups of minerals in respect of which the application is made, and (b) be lodged with the Director-General, and (c) be accompanied by the required information and the application fee prescribed by the regulations, and (d) if the application is for an exploration (mineral owner) licence with respect to privately owned minerals that

have more than one owner, be made by all the owners. (5) The required information is as follows: (a) a description, prepared in the approved manner, of the proposed exploration area, (b) particulars of the financial resources and relevant technical advice available to the applicant, (c) particulars of the program of work proposed to be carried out by the applicant in the proposed exploration

area, (d) particulars of the estimated amount of money that the applicant proposes to spend on prospecting in that

area, (e) if the application is for an exploration (mineral owner) licence, evidence that the minerals to which the

application relates are owned by the applicant, (f) any other information that is prescribed by the regulations. (6) If there is more than one applicant for the licence, a reference in subsection (5) to the applicant is a reference

to each applicant. 22 Power of decision-maker in relation to applications

(1) After considering an application for an exploration licence, the decision-maker: (a) may grant to the applicant an exploration licence over all or part of the land over which a licence was sought,

or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be

refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a

director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,

(b) that the decision-maker is satisfied that the applicant provided false or misleading information in or in connection with the application.

(3) The decision-maker may grant a single exploration licence in respect of 2 or more applications or 2 or more exploration licences in respect of a single application.

Mining Regulation 2010 14 Application for exploration licence

(1) For the purposes of section 13 (5) (f) of the Act, the following information is prescribed: (a) the environmental performance record of the applicant, (b) in the case of an exploration (mineral owner) licence: (i) the privately owned mineral or minerals in relation to which the licence is sought, and (ii) evidence of the applicant’s ownership of any such mineral.

7 False and misleading information

Mining Act 1992 FRM-201-1 ELA Checklist - Environmental Sustainability Unit – V4.0 Page 11 of 14

22 Power of decision-maker in relation to applications

(1) After considering an application for an exploration licence, the decision-maker: (a) may grant to the applicant an exploration licence over all or part of the land over which a licence was sought,

or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be

refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a

director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,

(b) that the decision-maker is satisfied that the applicant provided false or misleading information in or in connection with the application.

(3) The decision-maker may grant a single exploration licence in respect of 2 or more applications or 2 or more exploration licences in respect of a single application.

8 Conditions for mandatory audits

Mining Act 1992 246P Conditions for mandatory audits

(1) A condition that requires one or more mandatory audits to be undertaken, to the satisfaction of the Director-General, for any one or more of the purposes referred to in section 246N (a mandatory audit condition) may be imposed on an authorisation.

(2) A mandatory audit condition must specify the purpose or purposes of the audit. (3) A mandatory audit condition may require any one or more of the following: (a) appointment of an auditor to undertake the audit, (b) approval by the Director-General of the auditor before being appointed, (c) preparation of particular written documentation during the course of the audit, (d) preparation of an audit report, (e) production to the Director-General of the audit report.

9 Security deposit Mining Act 1992 261B Security deposit conditions

(1) A decision-maker may impose a condition on an authorisation that requires the holder of the authorisation to provide and maintain a security deposit to secure funding for the fulfilment of obligations under the authorisation, including obligations under the authorisation that may arise in the future.

(2) A condition may be imposed under this section: (a) whether or not the land that is or may be affected by the activities the subject of the obligations or direction is

or has at any time been an authorisation area, and (b) whether or not the obligations relate to activities that were carried out by the current holder of the

authorisation, and (c) whether or not the obligations relate to activities that were authorised by the authorisation, and (d) if the authorisation has been previously wholly or partly transferred, whether or not the obligations relate to

activities carried out under the transferred authority. (3) A security deposit condition may be varied to change the required amount of the deposit (whether the deposit

was provided by the holder of the authorisation or by another person) or any other requirement of the condition.

(4) A security deposit condition may be imposed or varied: (a) when an authorisation is granted or renewed, or (b) when a full or partial transfer of an authority is approved under this Act, or (c) when a mineral claim is transferred under this Act, or (d) at any other time during the term of an authorisation.


261BB Amount of security deposit

The amount of the security deposit that may be required by a security deposit condition is: (a) the assessed deposit for the authorisation concerned as at the date the decision-maker imposes or varies the

condition, or (b) if there is no assessed deposit for the authorisation—the minimum deposit for the authorisation as at the date

the decision-maker imposes or varies the condition.

Mining Regulation 2010 75 Minimum deposit—security deposit condition

For the purposes of section 261BF of the Act, the minimum deposit for an authorisation is: (a) $200 for a small-scale title, and (b) $1,000 for an environmental assessment permit, and (c) $10,000 for any other authorisation.

10 Objects of the Mining Act 1992 Mining Act 1992 3A Objects

The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular:

(a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and

(b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and

(c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and

(d) to ensure an appropriate return to the State from mineral resources, and (e) to require the payment of security to provide for the rehabilitation of mine sites, and (f) to ensure effective rehabilitation of disturbed land and water, and (g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment.

237 Need to protect natural resources etc to be taken into account



11 Natural resource issues – community feedback and/or consultation This is a policy requirement to inform the Decision Maker as opposed to a legislative requirement. 12 BioBanking Site

Mining Act 1992

381A Biobank sites


Checklist for the Environmental Sustainability Unit’s review of authorisation decisions and advice to the Decision Maker for Exploration Licence Renewal Version 4.0 – To incorporate changes required for practical implementation by ESU. TITLE INFORMATION: EL number: To be input by Titles Unit Holder: To be input by Titles Unit

Grant date: To be input by Titles Unit

Last renewed date: To be input by Titles Unit

Location (Region): To be input by Titles Unit Titles Assessment Summary RM8 Reference:

To be input by Titles Unit

ESU Checklist RM8 Reference:

To be input by ESU

Timeframes: ESU has 15 Business days to “assess” the Application and provide “advice” to the Decision Maker. ESU provides “advice” via the completion of this ESU Checklist and Assessment Report for advice to the Decision Maker.

RENEWAL Relevance of

consideration Factors to consider YES NO

Conserve and Protect the Environment ESU1.1 s.237(1) In deciding whether or not to grant a renewal of an

Exploration Licence, the Minister is to take into account the need to conserve and protect the environment and natural resources (including but not limited to flora, fauna, fish, fisheries and scenic attractions, and the features of Aboriginal, architectural, archaeological, historical or geological interest)1 Comments: Mandatory advice to the Decision Maker is detailed in the Environmental Assessment Report. Please review the advice and advise the Decision Maker of any other significant risks or issues which need to considered to conserve and protect the environment and natural resources.

Note

ESU Authorisation Assessment Form 2 – Exploration Licence renewal applications under the Mining Act 1992 – V4.0



ESU1.2 Conditions of Authority, s. 114(2)(b)

Environmental Management Compliance Report2 Has the applicant submitted an Environmental Management Report (EMR) or Environmental and Rehabilitation Report (E&RR) or an Annual Environmental and Rehabilitation Compliance Report (AE&RCR) in accordance with the Exploration Licence conditions? Important Note: Check the Conditions of the current EL –

- For Exploration Licences granted with respect to applications received after 1 July 2015, an AE&RCR is required to be submitted annually at grant date.

- For older Exploration Licences, an EMR or E&RR is required to be submitted with the application for renewal

Review Table 2 of the Annual Environmental & Rehabilitation Compliance Report/EMR/ER&R prepared in accordance with ESG4 – This table deals with compliance with environmental conditions of the authorisation. Use the EMR Checklist FRM-201-6 to review the EMR or ER&R. Use the AE&RCR Checklist FORM – to be developed – to review an AE&RCR. Notify the ADEO and RAIU of any compliance issues which are identified and update ACES. Comments:

ESU1.3 s.114(2)(a), s.114(2)(b)

Contravention – environmental management Does the applicant’s environmental record demonstrate that the applicant contravened:

- the Mining Act or - the Mining Regulation - a condition of Authority (eg the Exploration Licence)

whether or not the person has been prosecuted or convicted?

- A condition of an Activity Approval, such as compliance with the Environmental Management Code or Drilling Code etc.

Consider:

- Past/current rehabilitation performance of the applicant. - Past/current environmental management performance of the

applicant. - Past improvement notices or “warning letters” which required

action to prevent a breach of conditions, Mining Act 1992 or Mining Regulation 2010.

- Other compliance issues (RAIU will provide information on “Contraventions” which are recorded in ACES).

- Timing/lodgement of reports. Review

- Table 2 of the latest Annual Environmental & Rehabilitation Compliance Report/EMR/ER&R prepared in accordance with ESG4 – This table deals with compliance with environmental conditions of the authorisation.

- Any DRE inspection reports and findings.

FRM-201-2 EL Renewal Checklist - Environmental Sustainability Unit – V4.0 Page 2 of 17



- Past auditing results. Notify the ADEO and RAIU of any compliance issues which are identified and update ACES. Comments:

ESU1.4 s.16 Further information required?3 Is further information required to enable the decision maker to make a decision regarding the protection of the environment? If yes, formally contact the applicant to “Stop the Clock” and request the required information. Notify Titles Unit of “Stop the Clock”. Comments:

ESU1.5 ss.3A(e)-(g), s.114

Generally Considering both the objects of the Mining Act at s3A(e)-(g) and:

a. the protection of the environment b. the identification and development of mineral

resources in ways that minimise impacts on the environment

are there any reasons why the decision maker should not grant this renewal?4

Comments:

ESU1.6 s.26, s.114(4) and s.238, s.239

Conditions Have any new specific or unusual risks been identified that may need to be addressed by imposing new special conditions to adequately protect the environment?5 Note: there are standard conditions imposed for the protection of the environment. e.g.

- a condition requiring compliance with the Rehabilitation Code, - incident reporting condition, - rehabilitation condition.

For each Activity Approval, the relevant Codes will also be applied on approval, to manage specific environmental risks. If further conditions are required, describe the particular risk and one or more ways this risk could be addressed (by special condition or otherwise). Also, consider the information above (ESU1.1-1.4) above. If yes, describe the risk and one or more ways this risk could be addressed (by special condition or otherwise).




If no, advice Decision Maker to apply the standard conditions.

Comments:

ESU1.7 s.114(3) Term Taking into account the protection of the environment, is there any reason to modify the term of the proposed Exploration Licence (eg 5 years)?6 Comments:

Other factors ESU1.8 s.114(2)(c) False and Misleading Information7

In the opinion of the Assessor, is it believed that the applicant has provided false and misleading information in relation to environmental/environmental management aspects of the application? On the information received, has the Assessor detected information which may be false or misleading. Check:

- Past records of applicant - Past Annual Environmental & Rehabilitation Compliance

Report/EMR/ER&R prepared in accordance with ESG4 If yes, register the allegation in ACES and note in the comments below. Comments:

ESU1.9 s.246P Mandatory Audit Condition Is a mandatory audit condition recommended for this authorisation?8 Consider:

- Past compliance record - Environmental management and rehabilitation performance

If yes, advise of the need for a condition, the purpose and timeframes. Comments:

ESU1.10 Part 12A, s.261B, s.261BB and cl.18(1)(c).

Security9 Has the applicant provided a Rehabilitation Cost Estimate (RCE) in relation to the application for renewal? (Note: this is a mandatory requirement in cl.18 of the Mining Regulation 2010). Assess the RCE and advise the Decision Maker of the security required




for the EL renewal for the fulfilment of obligations under the authorisation, including obligations under the authorisation that may arise in the future. Note: the Applicant is to detail the liability on the authorisation at the date of application.

- Review the RCE, the renewal application and Annual Environmental & Rehabilitation Compliance Report/EMR/ER&R prepared in accordance with ESG4.

- Assess the rehabilitation liability - conduct an assessment of the security deposit in accordance with the Security Deposit Assessment Procedure.

- Advise the Decision Maker of the “Assessed Deposit” – Complete the Notice of Security for the Licence Holder (FRM-201-5 Security Notification Letter)

- If the assessed deposit is equal to or less than the minimum deposit ($10,000), in the “Comments” section below advise the Decision Maker to apply the minimum deposit.

- If the rehabilitation liability has not changed and the required Security Deposit is already held by the Department, then note in the Comments that “no change to the Security Deposit Condition is required as the Security Deposit held is sufficient for the fulfilment of obligations under the Exploration Licence, including those related to rehabilitation, and obligations under the Exploration Licence that may arise in the future from activities previously approved by DRE”.

Important Note: Should a Holder require a reduction in the Security Deposit, ESU is required to confirm that rehabilitation is to the satisfaction of the Department. Any decisions made by ESU for the release of security must be supported by an EDG13 which has been reviewed and “accepted” by ESU. Note: Rehabilitation is not complete until rehabilitation is finished and the Holder has confirmed, through monitoring and maintenance, that rehabilitation has been successful (i.e. the Holder has met the rehabilitation objectives, completion criteria and any other relevant authority conditions relating to rehabilitation). Recommend renewal with the existing security. Then review security at a later time following the submission of an “acceptable” EDG13 - Rehabilitation and Relinquishment Report.

Comments: The Assessed Deposit is: $XX,XXX Where required, complete Notice of Security for Licence Holder (FRM-201-5 Security Notification Letter) and add to the Application Subfolder.

ESU1.11 Conditions of Authority s.114(2)(b), s.114(5)-(6)

Part renewal - Relinquishment of Area10 Review the Renewal application and Environmental Compliance Report (EMR, E&RR or latest AE&RCR). For areas being relinquished, is the standard and progress of rehabilitation suitable at this point in time?




- Review EMR, ER&R, AE&RCR - Review DRE inspection reports and findings - Review rehabilitation performance on EL (on areas to be

renewed and relinquished). - Review environmental management on EL (on areas to be

renewed and relinquished). - Compliance with Activity Approval Conditions and Conditions of

the Exploration Licence. - Compliance with the Codes. - Advise Decision Maker if outstanding liabilities/risks/impacts

exist on areas to be relinquished and those areas being renewed.

Note: This question is a performance review only. For areas for renewal, should rehabilitation not be suitable, notify the Principal Inspector Environment/ADEO of the compliance issue and update ACES. Formal Directions can also be issued under s.240 to address liabilities/impacts for any areas which are relinquished or are to be relinquished. Comments:

ESU1.12 Part 5, EP&A Act

Consideration of Part 5 – Environmental Planning and Assessment Act 197911 Are there any approved Category 2, Category 3, or Assessable activities which are continuing into the new term (should the EL be renewed)? Review the renewal application Question: Are there any approved Category 2, Category 3 or Assessable Activities continuing into the new term (assuming the licence is renewed)? If yes, follow the steps in the Exploration Assessment Procedure to fulfil Part 5 obligations. Advise of the outcome of the Determination in the “Comments” section below. If no, in the “Comments” section, advise that there are no continuing Category 2, Category 3 or Assessable activities continuing into the new term and therefore a Part 5 is not required. Comments:

ESU1.13 Activity Approval Conditions

Activities Carried Forward? Review the application form. Are there any approved Category 2 or Category 3 which are continuing into the new term (should the EL be renewed)?




If yes, the following recommendation is to be made to the Decision Maker: New conditions are to be added to the “standard” EL Conditions in the renewed Title Instrument to account for the instance where existing Activity Approvals are continuing into the new term. These are: Activities approved prior to the renewal of this licence

1. Any assessable prospecting operation approved prior to

[insert date of renewal of this licence] (which at that time, was known as a Category 2 prospecting operation or Category 3 prospecting operation) must be carried out in accordance with: (a) any conditions imposed on that approval; and (b) Part B of the following Codes of Practice, as relevant:

i. the Exploration Code of Practice: Environmental Management

ii. the Exploration Code of Practice: Produced Water Management, Storage and Transfer

2. To the extent of any inconsistency between (a) and (b)

above, the provisions of the Codes of Practice will prevail.

If no, no further action is required. Comments:

ESU1.14 s.114 Natural resource issues – community feedback and/or consultation12 Are there any known issues raised by the community or through consultation with the Authority holder, or affected stakeholders, which require consideration by the Decision Maker? If yes, detail in the “Comments” section below. Comments:

ESU1.15 Other Comments:


Direction from Assistant Director Environmental Operations and the Director ESU, to be implemented from 1 September 2015

1. Complete the Environmental Assessment Report below. 2. Then update the Title’s Unit’s ELA Assessment Summary to answer the 3 key questions which are

the responsibility of ESU to provide to the Decision Maker. ENVIRONMENTAL ASSESSMENT REPORT

1. Has the Applicant complied with the required statutory requirements? Yes/No If no, provide details (See Appendix A on next page for standard words, as required).

2. Does ESU have any objections to the renewal of the exploration licence? Yes/No If no, detail issues/advice to the Decision Maker (See Appendix A on next page for standard words, as required).

Issues Identified: List any issues identified through the completion of the ESU check sheet – provide extra relevant details as required. If there are no issues record as ‘none’. Considerations may include:

• Whether the conditions need amending to adequately protect the environment? Any unusual risks which might need to be addressed via special conditions or mandatory audit conditions – identify the risk and how it might be managed via a condition on the authorisation.

• Environmental compliance record – see Appendix A • Term of Licence – should the term of the licence be restricted to protect the environment? • Security determination (advise assessed deposit, other than the minimum) - If not the minimum, advise

the Decision Maker of the RM8 record number for the “Notice of the Assessed Deposit”. • Community feedback and/or consultation? Advise any local or regional contentious issues. • Part 5 Assessment (EP&A Act) – are there any approved Category 2, Category 3 or Assessable

activities being carried forward? Confirm that these activities are likely/not likely to significantly affect the environment.

• Category 2 or 3 activities carried forward – include the additional Activity Approval Conditions as follows: [Refer to Appendix A]

Summary of advice: Information to conserve and protect the environment and natural resources provided by the applicant has been considered in accordance with s.237 of the Mining Act 1992 and Part 5 of the Environmental Planning and Assessment Act 1979 and provided that:

a) a condition has been imposed on the authorisation prescribing that only Exempt Prospecting Operations (Exempt development under the Mining SEPP) will be permitted on the Exploration Licence without further approval from the Minister, and;

b) no prospecting activities may be performed on an environmentally sensitive area of State significance (as defined by the SEPP) without further approval, and;

c) a standard condition has been be imposed to require an obligation to rehabilitate all land and water disturbances caused by activities carried out under this licence in accordance with the requirements in Part B of the Exploration Code of Practice - Rehabilitation (NSW Department of Industry, July 2015) to the satisfaction of the Minister, and;

d) [add any further conditions that need to be imposed to protect the environment (pursuant to s239) of the Mining Act arising from “issues identified” above], – only add where required – delete if no additional conditions are required.


the Decision Maker is advised that sufficient measures are in place to conserve and protect the environment pursuant to s.237 when determining the application.

Recommendation by ESU Assessment Officer

ESU Assessing Officer: Signature:

Update Task Track and assign to Approver in RM8 for Approval (Action – “Approval”)

Review and Approval by ESU Approver

Principles of Good Decision Making Taken into Account

Yes No

Approve, sign and send Notice of Assessment – Security Notification Letter

Yes No NA RM8 Ref:

Environmental Assessment Report Approved:

Yes No NA Insert any additional comments from Approver as necessary.

Titles Assessment Summary updated:

Yes No

Name, Position:

Note: Must have appropriate delegation for approving an assessed deposit

Signature:

Date of Approval: Update Task Track, update Titles Unit’s EL Renewal Assessment Summary in RM8 and assign this Checklist to Team Leader Eastern in RM8 for Action (Action – “Process Work”)


Appendix A Advice to the Decision Maker for EL Renewal Compliance

• In considering the Applicant’s environmental compliance record, no issues have been identified to justify refusal of the Authorisation.

[OR]

• In considering the Applicant’s environmental compliance record, the following issues have been identified that may justify refusal of the Authorisation: • [Minor / Moderate / Major] contraventions of the Mining Act 1992 in relation to environmental

protection have been recorded and the applicant is considered at [Minor / Moderate / Major] risk of contravening this Authorisation if renewed.

• There is evidence that the Applicant has contravened Activity Approval Conditions and/or Authority Conditions relating to rehabilitation/environmental management/reporting/Codes under the Mining Act 1992 in relation to [this authorisation] [and] [other authorisations held in the same name or related companies.]

• There is evidence that the Applicant has been convicted of an offence relating to mining or minerals under the Mining Act 1992.

• There is evidence that the Applicant has provided false or misleading information in or in connection with the application.

• There is evidence that the Applicant has not complied with the approved Work Program.

Part 5 • There are continuing Category 2, Category 3 or Assessable activities continuing into the new term

of the licence. These prospecting operations have been assessed under Part 5 of the Environmental Planning and Assessment Act 1979 and ESU has determined that the activities are not likely to significantly affect the environment.

• There are no continuing Category 2, Category 3 or Assessable activities permitted by the renewal of the authorisation, and therefore a Part 5 assessment under the Environmental Planning and Assessment Act 1979 is not required.

Security

• On the renewal of the authorisation, in accordance with section 261B(3) of the Mining Act 1992, the Decision Maker varies the condition for the Security Deposit, which is required for fulfilment of obligations under the authorisation. The Assessed Deposit as determined by the Secretary (as delegated) is $XX,XXX.

[OR]

• On the renewal of the authorisation, the Decision Maker maintains the existing Security Deposit amount of $XX,XXX, required for the fulfilment of obligations under the authorisation.

Activities Carried Forward – New Conditions Required

• Two new conditions are to be added to the “standard” EL Conditions in the renewed Title Instrument to account for the instance where existing Activity Approvals are still ongoing. These are as follows:

Activities approved prior to the renewal of this licence


1. Any assessable prospecting operation approved prior to [insert date of renewal of this licence] (which at that time, was known as a Category 2 prospecting operation or Category 3 prospecting operation) must be carried out in accordance with: (c) any conditions imposed on that approval; and (d) Part B of the following Codes of Practice, as relevant:

iii. the Exploration Code of Practice: Environmental Management iv. the Exploration Code of Practice: Produced Water Management, Storage and Transfer

2. To the extent of any inconsistency between (a) and (b) above, the provisions of the Codes of Practice will

prevail.

1 Natural resource protection Mining Act 1992 237 Need to protect natural resources etc to be taken into account



13 Application for exploration licence (5) The required information (for an EL application) is as follows: (a) a description, prepared in the approved manner, of the proposed exploration area, (b) particulars of the financial resources and relevant technical advice available to the applicant, (c) particulars of the program of work proposed to be carried out by the applicant in the proposed exploration area, (d) particulars of the estimated amount of money that the applicant proposes to spend on prospecting in that area, (e) if the application is for an exploration (mineral owner) licence, evidence that the minerals to which the

application relates are owned by the applicant, (f) any other information that is prescribed by the regulations.

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 10 Exempt development

(1) This clause applies to development that is on land that: (a) is not within an environmentally sensitive area of State significance, or (b) is within a state conservation area but is not land referred to in paragraphs (a)–(e) or (g)–(i) of the definition of

environmentally sensitive area of State significance. (2) Development for any of the following purposes is exempt development if it is of minimal environmental impact: (a) the construction, maintenance and use of equipment for the monitoring of weather, noise, air, groundwater or

subsidence, (b) low intensity activities associated with mineral exploration or petroleum exploration, including the following: (i) geological mapping and airborne surveying, (ii) sampling and coring using hand-held equipment, (iii) geophysical (but not seismic) surveying and downhole logging, (iv) accessing of areas by vehicle that does not involve the construction of an access way such as a track or road.

Environmentally Sensitive Land includes (DRE List): • land reserved as a State Conservation Area under the National Parks and Wildlife Act 1974 • land declared as an Aboriginal place under the National Parks and Wildlife Act 1974 • land identified as wilderness under the Wilderness Act 1987 • land subject to a ‘conservation agreement’ under the National Parks and Wildlife Act 1974 • land acquired by the Minister for the Environment under Part 11 of the National Parks and Wildlife Act 1974


• land proposed to be reserved as a national park or nature reserve under the National Parks and Wildlife Act 1974

• land declared as critical habitat under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994

• land subject to a ‘biobanking agreement’ under the Threatened Species Conservation Act 1995 • land within State forests mapped as Forestry Management Zone 1, 2 or 3 • wetlands mapped under State Environmental Planning Policy No 14 - Coastal Wetlands • wetlands listed under the Ramsar Wetlands Convention • lands mapped under State Environmental Planning Policy No 26 - Littoral Rainforests • aquatic reserves under the Fisheries Management Act 1994 • areas listed on the World Heritage List, National Heritage List, Commonwealth Heritage List or Register of the

National Estate • areas listed under the Heritage Act 1977 for which a plan of management has been prepared • land within a restricted area prescribed by a controlling water authority • waterfront land as defined under the Water Management Act 2000 • land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna, geological

formations or other environmental protection purpose • land identified as Potential Acid Sulfate Soils or Actual Acid Sulfate Soils as defined by the NSW Office of

Environment and Heritage Acid Sulfate Soils Risk Maps • land identified as Strategic Agricultural Land under State Environmental PlanningPolicy (Mining, Petroleum

Production and Extractive Industries) 2007

2 Environmental Management Compliance Report Example Condition of Authority

Environmental Management Report 43. The licence holder must submit an Environmental Management Report to the Department in the following circumstances: a) where the licence holder is seeking to renew this exploration licence, an Environmental Management Report must accompany an exploration licence renewal application; or b) where the licence holder is seeking to cancel or part cancel this exploration licence, an Environmental Management Report must accompany an exploration licence cancellation application; c) where the licence holder is not seeking to renew or cancel this exploration licence, an Environmental Management Report must be submitted prior to the expiry of this exploration licence. 44. The report must be prepared in accordance with any Secretary’s requirements for environmental and rehabilitation reporting on exploration licences and include information on all disturbance resulting from prospecting operations and rehabilitation carried out within the exploration licence area. The report must be prepared to the satisfaction of the Secretary.

114 Power of decision-maker in relation to renewal applications

(1) After considering an application for the renewal of an authority, the decision-maker: (a) may renew the authority, or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that the decision-maker is satisfied that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention), (c) that the decision-maker is satisfied that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority.

3 Further Information Required? Mining Act 1992 FRM-201-2 EL Renewal Checklist - Environmental Sustainability Unit – V4.0 Page 12 of 17

16 Decision-maker may require further information

The decision-maker may require the applicant or tenderer to furnish further information in connection with the application or tender, including (if the applicant or tenderer is a corporation) information as to the extent to which the controlling power in the corporation’s affairs is held by: (a) a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) a company registered under that Act that is taken for the purposes of that Act to be registered in a State or

Territory other than New South Wales, or (c) an individual who is a resident of a foreign country.

4 Conserve and Protect the Environment Mining Act 1992 3A Objects

The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular: (a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and (b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and (c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and (d) to ensure an appropriate return to the State from mineral resources, and (e) to require the payment of security to provide for the rehabilitation of mine sites, and (f) to ensure effective rehabilitation of disturbed land and water, and (g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment.


(1) After considering an application for the renewal of an authority, the decision-maker: (a) may renew the authority, or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that the decision-maker is satisfied that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention), (c) that the decision-maker is satisfied that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority. (3) The period for which an authority is renewed may not on any one occasion exceed: (a) 5 years in the case of an exploration licence or assessment lease, or (b) 21 years (or such longer period as the decision-maker may, with the concurrence of the Premier, determine) in the case of a mining lease. (4) On renewing an authority, the decision-maker may amend any of the conditions of the authority and may include further conditions in the authority. (5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal. (6) The area of land over which an exploration licence may be renewed is not to exceed half the area over which the licence was in force when the application for renewal was made unless the decision-maker is satisfied that special circumstances exist that justify renewal of the licence over a larger area. (7) The decision-maker may defer dealing with an application for the renewal of a mining lease over any land if the mining lease is the subject of action being taken under Part 6 in connection with the granting of a consolidated mining lease over that land.


5 Further Conditions for Environmental Performance Mining Act 1992 26 Conditions of exploration licence

(1) An exploration licence is subject to such conditions (if any) as the decision-maker imposes when the licence is granted, or at any other time under a power conferred by this Act.


(1) After considering an application for the renewal of an authority, the decision-maker: (a) may renew the authority, or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that the decision-maker is satisfied that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention), (c) that the decision-maker is satisfied that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority. (3) The period for which an authority is renewed may not on any one occasion exceed: (a) 5 years in the case of an exploration licence or assessment lease, or (b) 21 years (or such longer period as the decision-maker may, with the concurrence of the Premier, determine) in the case of a mining lease. (4) On renewing an authority, the decision-maker may amend any of the conditions of the authority and may include further conditions in the authority. (5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal. (6) The area of land over which an exploration licence may be renewed is not to exceed half the area over which the licence was in force when the application for renewal was made unless the decision-maker is satisfied that special circumstances exist that justify renewal of the licence over a larger area. (7) The decision-maker may defer dealing with an application for the renewal of a mining lease over any land if the mining lease is the subject of action being taken under Part 6 in connection with the granting of a consolidated mining lease over that land.

238 Inclusion of conditions for protecting the environment

The conditions subject to which an authority or mineral claim is granted or renewed must, if the Minister or mining registrar considers it appropriate, include conditions relating to the conservation and protection of: (a) the flora, fauna, fish, fisheries and scenic attractions, and (b) the features of Aboriginal, architectural, archaeological, historical or geological interest, in or on the land subject to the authority or claim.

239 Rehabilitation etc of area damaged by mining

(1) The conditions subject to which an authority or mineral claim is granted or renewed may include such conditions relating to: (a) the rehabilitation, levelling, regrassing, reforesting or contouring of such part of the land over which the authority or claim has effect as may have been damaged or adversely affected by prospecting operations or mining operations, and (b) the filling in, sealing or fencing off of excavations, shafts and tunnels, as may be prescribed by the regulations or as the Minister or mining registrar may, in any particular case, determine. (1A) The Minister or mining registrar may, in any particular case, determine that an authority or mineral claim be granted or renewed subject to conditions relating to the afforestation (including for carbon sequestration within the


meaning of section 87A of the Conveyancing Act 1919 and related environmental purposes) of such part of the land over which the authority or claim has effect as may have been damaged or adversely affected by prospecting operations or mining operations. (1B) However, a condition referred to in subsection (1A) may only be imposed at the request of the applicant for, or holder of, the authority or claim. (2) The Minister or mining registrar may amend an authority or mineral claim: (a) that does not contain conditions of the kind that may be imposed under this Division, or (b) that does contain such conditions, being conditions that the Minister or mining registrar considers are inadequate, so as to include conditions or further conditions of that kind or so as to alter any such conditions. (3) Any conditions of the kind referred to in subsection (1) (a) or (1A) are to be in a form approved by the Commissioner of the Soil Conservation Service and after consultation with the Director of National Parks and Wildlife. (4) An amendment takes effect on the date on which notice of the amendment is served on the holder of the authority or mineral claim or on such later date as may be specified in the notice. (5) This section has effect despite anything to the contrary in section 93 of the Environmental Planning and Assessment Act 1979.

6 Term of Renewal Mining Act 1992 114 Power of decision-maker in relation to renewal applications

(3) The period for which an authority is renewed may not on any one occasion exceed: (a) 5 years in the case of an exploration licence or assessment lease, or (b) 21 years (or such longer period as the decision-maker may, with the concurrence of the Premier, determine) in the case of a mining lease.

7 False and misleading information

Mining Act 1992


(2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that the decision-maker is satisfied that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention), (c) that the decision-maker is satisfied that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority.

8 Conditions for mandatory audits

Mining Act 1992

246P Conditions for mandatory audits

(1) A condition that requires one or more mandatory audits to be undertaken, to the satisfaction of the Director-General, for any one or more of the purposes referred to in section 246N (a mandatory audit condition) may be imposed on an authorisation. (2) A mandatory audit condition must specify the purpose or purposes of the audit. (3) A mandatory audit condition may require any one or more of the following:





(a) appointment of an auditor to undertake the audit, (b) approval by the Director-General of the auditor before being appointed, (c) preparation of particular written documentation during the course of the audit, (d) preparation of an audit report, (e) production to the Director-General of the audit report.

9 Security deposit

Mining Act 1992

261B Security deposit conditions

(1) A decision-maker may impose a condition on an authorisation that requires the holder of the authorisation to provide and maintain a security deposit to secure funding for the fulfilment of obligations under the authorisation, including obligations under the authorisation that may arise in the future. (2) A condition may be imposed under this section: (a) whether or not the land that is or may be affected by the activities the subject of the obligations or direction is or has at any time been an authorisation area, and (b) whether or not the obligations relate to activities that were carried out by the current holder of the authorisation, and (c) whether or not the obligations relate to activities that were authorised by the authorisation, and (d) if the authorisation has been previously wholly or partly transferred, whether or not the obligations relate to activities carried out under the transferred authority. (3) A security deposit condition may be varied to change the required amount of the deposit (whether the deposit was provided by the holder of the authorisation or by another person) or any other requirement of the condition. (4) A security deposit condition may be imposed or varied: (a) when an authorisation is granted or renewed, or (b) when a full or partial transfer of an authority is approved under this Act, or (c) when a mineral claim is transferred under this Act, or (d) at any other time during the term of an authorisation.

261BB Amount of security deposit

The amount of the security deposit that may be required by a security deposit condition is: (a) the assessed deposit for the authorisation concerned as at the date the decision-maker imposes or varies the condition, or (b) if there is no assessed deposit for the authorisation—the minimum deposit for the authorisation as at the date the decision-maker imposes or varies the condition.

Mining Regulation 2010

18 Renewal of exploration licence

(1) For the purposes of section 113 (3) of the Act, the following information is prescribed: (a) the licence number or other identifying code for the licence and the date of expiry of the licence, (b) the contact details of the current licence holder, (c) a rehabilitation cost estimate in relation to the licence, (d) a renewal justification statement.

10 Relinquishment of Area

Mining Act 1992


(1) After considering an application for the renewal of an authority, the decision-maker: (a) may renew the authority, or


(b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the decision-maker is satisfied that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that the decision-maker is satisfied that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention), (c) that the decision-maker is satisfied that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority. (3) The period for which an authority is renewed may not on any one occasion exceed: (a) 5 years in the case of an exploration licence or assessment lease, or (b) 21 years (or such longer period as the decision-maker may, with the concurrence of the Premier, determine) in the case of a mining lease. (4) On renewing an authority, the decision-maker may amend any of the conditions of the authority and may include further conditions in the authority. (5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal. (6) The area of land over which an exploration licence may be renewed is not to exceed half the area over which the licence was in force when the application for renewal was made unless the decision-maker is satisfied that special circumstances exist that justify renewal of the licence over a larger area. (7) The decision-maker may defer dealing with an application for the renewal of a mining lease over any land if the mining lease is the subject of action being taken under Part 6 in connection with the granting of a consolidated mining lease over that land.

11 Part 5 – EP&A Act 1979 – Considerations The NSW Trade & Investment, Division of Resources & Energy (DRE) is the determining and approval authority for all exploration activities subject to environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The approval of exploration activities conducted in accordance with an Exploration Licence (EL) is a function imposed upon DRE by the grant of an EL that has a condition requiring the approval as a condition of the licence. ELs may be renewed from time to time and upon renewal the exploration activities previously approved may be continuing if not completed in the prior term of the EL. The assessment and determination of the environmental impacts of exploration activities is a duty imposed under Part 5 of the EP&A Act in connection with an exploration activity for which an approval is required under the Mining Act 1992. The determination of the renewal triggers Part 5 of the EP&A Act and any activities continuing on the date of the renewal, even if previously assessed and approved, are subject to the operation of Part 5 at the time of renewal. The assessment is not required for continuing prospecting that are Exempt Prospecting Operations (i.e. exempt development pursuant to clause 10(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP)). The decision maker makes the determination of the renewal of the licence and must independently take into consideration the environmental impacts of the continuing exploration activities when making the determination. ESU Regional Inspectors Environment assess the environmental impacts of the continuing activities and provide advice to the decision maker regarding whether the impacts are likely to be significant. 12 Natural resource issues – community feedback and/or consultation This is a policy requirement to inform the Decision Maker. The Decision maker has broad discretionary powers under s.114 of the Mining Act 1992. FRM-201-2 EL Renewal Checklist - Environmental Sustainability Unit – V4.0 Page 17 of 17

OUT15/XXXX Application Subfolder XXX

XX Date 2015 "Applicant Contact Name" "Applicant Company Name" "Postal Address" "City State Post Code" Dear "Applicant Contact Name"

Exploration Licence Application No. XXXX

Request for Additional Information Your Exploration Licence Application No. XXXX has been forwarded to the Environmental Sustainability Unit, INSERT REGION, for a detailed assessment. The detailed assessment of the application has identified that further information is required to allow for the Environmental Sustainability Unit to further assess factors relating to the Protection of Natural Resources and the Environment. In accordance with the Division of Resources & Energy’s (DRE) service delivery standards, this request for further information has “stopped the clock” on the processing of this application. APPLICANT COMPANY NAME is required to provide the Required Information listed below and submit this information to the Environmental Sustainability Unit (at the email address: [email protected]) by DATE XX/XX/XXXX. Required Information: Clearly detail why the application was deficient and what further information is required etc.

1. XX 2. VV 3. YY

Processing of the application will only recommence once the Required Information is provided to the Environmental Sustainability Unit. If the Required Information is not received by the due date listed above, the application may be refused. DRE has implemented service delivery standards for the processing of applications under the Mining Act 1992. Implementing service delivery standards provides greater certainty and allows industry to manage operations and deadlines around the expected waiting times. DRE’s new process for the handling of applications also includes exception management including “stop the clock” provisions. Further information on service delivery standards can be found at: http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/programs-and-initiatives/service-delivery

Environmental Sustainability Unit PO Box 344 Hunter Region Mail Centre NSW 2310

516 High St MAITLAND NSW 2320 Email: [email protected]

Tel: 02 4931 6605 Fax: 02 4931 6790 Web: www.resourcesandenergy.nsw.gov.au ABN 72189919072

http://www.resourcesandenergy.nsw.gov.au/

http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/programs-and-initiatives/service-delivery


If you require additional information on this matter please contact the [Assessment Officer Name] at the Environmental Sustainability Unit’s [Office Location] office on [Phone Number]. Yours sincerely, "Assessment Officer’s name" "Assessment Officer’s position" Environmental Sustainability Unit


XX Date 2015 "Contact Name" "EL Holder's Registered Company Name" "Postal Address" "City State Post Code" Dear "Contact Name"

Exploration Licence No. XXXX

Request for Additional Information Your renewal application for Exploration Licence XXXX has been forwarded to the Environmental Sustainability Unit, INSERT REGION, for a detailed assessment. The detailed assessment of the application has identified that further information is required to allow for the Environmental Sustainability Unit to further assess factors relating to the Protection of Natural Resources and the Environment. In accordance with the Division of Resources & Energy’s (DRE) service delivery standards, this request for further information has “stopped the clock” on the processing of this application. EL HOLDER NAME is required to provide the Required Information listed below and submit this information to the Environmental Sustainability Unit (at the email address: [email protected]) by DATE XX/XX/XXXX. Required Information: Clearly detail why the application was deficient and what further information/ assessments are required etc.

1. XX 2. VV 3. YY

Processing of the application will only recommence once the Required Information is provided to the Environmental Sustainability Unit. If the Required Information is not received by the due date listed above, the application may be refused. DRE has implemented service delivery standards for the processing of applications under the Mining Act 1992. Implementing service delivery standards provides greater certainty and allows industry to manage operations and deadlines around the expected waiting times. DRE’s new process for the handling of applications also includes exception management including “stop the clock” provisions. Further information on service delivery standards can be found at:





http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/programs-and-initiatives/service-delivery If you require additional information on this matter please contact the [Assessment Officer Name] at the Environmental Sustainability Unit’s [Office Location] office on [Phone Number]. Yours sincerely, "Assessment Officer’s name" "Assessment Officer’s position" Environmental Sustainability Unit





Exploration Licence No. XXXX

Request for Additional Information Your renewal application for Exploration Licence XXXX has been forwarded to the Environmental Sustainability Unit, INSERT REGION, for a detailed assessment. The detailed assessment of the application has identified that further information is required to allow for the Environmental Sustainability Unit to further assess factors relating to the Protection of Natural Resources and the Environment. In accordance with the Division of Resources & Energy’s (DRE) commitments to its service delivery standards, this request for further information has “stopped the clock” on the processing of this application. EL HOLDER NAME is required to provide the Required Information listed below and submit this information to the Environmental Sustainability Unit (at the email address: [email protected]) by DATE XX/XX/XXXX. Required Information: 1. An Environmental Management Report (EMR) is required to be submitted which

addresses the requirements of Condition 22 [double check condition number] of the Exploration Licence.

The ESG4 Environmental Compliance Reporting Guidelines for Coal and Mineral Prospecting Operations (ESG4 Guidelines) should be considered in the preparation of the EMR so that the required information is provided to enable DRE to assess compliance with the environmental management conditions of the authorisation. The ESG4 Guidelines provide guidance material to assist Industry to comply with the authorisation conditions. The level of detail provided within the EMR should be commensurate with the nature, and amount, of prospecting activities undertaken. For example, where minimal surface disturbing activities have occurred since the last renewal, DRE would expect that the EMR would be brief and targeted.

2. XXYYZZ Environmental Sustainability Unit

PO Box 344 Hunter Region Mail Centre NSW 2310 516 High St MAITLAND NSW 2320

Email: [email protected] Tel: 02 4931 6605 Fax: 02 4931 6790 Web: www.resourcesandenergy.nsw.gov.au

ABN 72189919072


Processing of the application will only recommence once the Required Information is provided to the Environmental Sustainability Unit. If the Required Information is not received by the due date listed above, the application may be refused. DRE has implemented service delivery standards for the processing of applications under the Mining Act 1992. Implementing service delivery standards provides greater certainty and allows industry to manage operations and deadlines around the expected waiting times. DRE’s new process for the handling of applications also includes exception management including “stop the clock” provisions. Further information on service delivery standards can be found at: http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/programs-and-initiatives/service-delivery If you require additional information on this matter please contact the [Assessment Officer Name] at the Environmental Sustainability Unit’s [Office Location] office on [Phone Number]. Yours sincerely, "Assessment Officer’s name" "Assessment Officer’s position" Environmental Sustainability Unit





Exploration Licence No. XXXX (ELXXXX) Application for Renewal

Notice of Assessment for Security An assessment of the security deposit required under ELXXXX has been made under s.261BC(1) of the Mining Act 1992 by a delegate of the Secretary. The reason for this assessment is to secure funding for the fulfilment of obligations under the Exploration Licence including those related to rehabilitation, and obligations under the Exploration Licence that may arise in the future, should the Exploration Licence be renewed. The Assessed Deposit for ELXXXX is: $XX,XXX.XX This will require an additional payment of $XXX.XX (being the difference between the “Assessed Deposit” and the current security deposit held by the Department). Review of the Assessed Deposit If you disagree with the assessment of the security deposit, you may apply to the Minister for a review of the Assessed Deposit. Applications for review must be made using FormAD17, and lodged within 28 days of receipt of this letter. Form AD17 is available on the Department’s website at the following address: http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/applications-and-approvals/titles-application-forms/mining-act-forms Alternatively, you may confirm your satisfaction of the Assessed Deposit to waive the 28 day review period. Next Steps The Titles Unit will be in contact with you after a decision regarding your application for renewal has been made. If you require additional information regarding this letter, or wish to confirm your satisfaction with the Assessed Deposit, please contact [Name], [Office Location], on [Phone number].





Yours sincerely, [Name] Principal Inspector Environment/Assistant Director Environmental Operations [delete part not required] Signed under delegation from the Secretary of the Department of Industry, Skills and Regional Development. "Insert Date" Cc: The Minister for Industry, Resources and Energy, or delegated authority.

Checklist for the Environmental Sustainability Unit’s review of Environmental Management Reports (EMR) and Environmental and Rehabilitation Reports (ER&R) prepared in accordance with ESG4: Environmental Compliance Reporting Guidelines for Coal and Mineral Prospecting Operations

FRM-201-6 TITLE INFORMATION Title Information

EL / AL number:

Registered Holder:

Location (ESU Region):

Current area (ha):

Grant date:

Last renewed date:

Expiry date:

Reason for Submission (e.g. renewal, cancellation etc.):

ESU Assessing Officer:

Date of Assessment:

Signature:

Step 1: Surface Disturbance Activity Record History Surface Disturbance Activity Records

Data Base Record Comments

TRIM / Gdrive surface disturbance records (List all SDN / REF Approvals for the Authority)

List all TRIM and G drive records for Category 2 and 3 activities

Summary of Approved activities (e.g.: # holes, project name / location)

GS NSW Data Warehouse Records

Undertake ‘full report’ for the Authority in Data Warehouse and record the number of holes reported to Geology

Geological Report Records (DIGS search)

List all DIGS records for geological report submissions

Summarise reported activities as above

Step 2: EMR / ER&R Adequacy Review FRM-201-6 EMR / ER&R Review Checklist - Environmental Sustainability Unit Page 1 of 5

EMR / ER&R Adequacy Review

Section Requirement Complies with ESG4

Comments

Title Page • Report title • Nature of the report: renewal, part renewal,

cancellation, expiry etc. • Name of Authority Holder • Authority Number • Expiry date • Author(s) of the report and Authority Holder

representative contact details (preferably the Technical Manager or Environmental Officer)

• Verification signature

Yes No

Section 1 General Status

History of Authority Yes No

History of Areas proposed to be cancelled or relinquished

Detail of areas proposed to be cancelled or relinquished

Statement indicating if Section 252 permit has been sought or issued

Statement indicating if activities have been undertaken in Sensitive Areas

Statement indicating if activities have been undertaken in Exempted Areas

Note: where statements indicate prospecting activities have been undertaken in Sensitive or Exempted Areas detail of the activities and locations is required. Also for prospecting in an Exempted Area, review whether exempted area consent has been issued. If not, refer to C&E and update ACES.

Section 2 Status of compliance with Env. Mgmt. Conditions

Statement indicating compliance status of environmental management conditions of the Authority

Yes No

Provide (where relevant): • Condition numbers (as per the reporting

requirements contained in the Authority conditions)

• Status of compliance with each condition (yes/no)

• Particulars of any non-compliances • Reasons for the non-compliances • Actions taken (or proposed) to prevent

FRM-201-6 EMR / ER&R Review Checklist - Environmental Sustainability Unit Page 2 of 5

recurrence or to mitigate the effects of the non-compliance

• Details of any environmental incident reports associated with the non-compliance

Note: information above may be presented in table form as per ESG4 S5.1.

Section 3 Status of Prospecting Operations – Surface Disturbance

Description of all surface disturbance activities since grant of the Authority including: • Activity Category (1,2,3) • General description (e.g. diamond drilling 3

holes), ancillary activities (e.g. construct access, sumps, water usage etc.), location coordinates

• Project operator (contractor details) • Application / Activity Approval reference if

applicable (i.e. REF, SDN, EIS) • Relevant plans detailing the location of

activities (or refer to Section 5 if this information is contained within those plans)

Note: This should be presented in table form as per ESG4 S5.2 Check all known surface disturbance is included as identified in Step 1

Yes No

Section 4 Status of Rehabilitation

Statement of compliance against rehabilitation conditions in Activity Approvals (eg. SDNs) and Authority conditions.

Yes No

ESG4 Table 5.3 or text that includes as a minimum: • Reference number (i.e. a link to the Activity

listed in Table 5.2), category and Activity type (see example Table 5.3)

• Description of the receiving environment (land use, vegetation & % ground cover, aspect and slope, proximity to watercourses or drainage lines)

• Area disturbed since grant, area under rehabilitation, area or rehab completed (awaiting sign off) and area of completed rehab (achieved DRE sign-off)

• Date borehole(s) sealed, how borehole sealed or made safe (reference to appended documentation)

• Summary of rehabilitation activities • Reference to Plan or Photographs and

Departmental approval (if applicable)

Note: Where the scope of the activity makes it impractical to provide all details in Table 5.3, references to appendices that include relevant detail is appropriate.


Section 5 Continuing or proposed exploration

Description of any continuing, or proposed Category 2 or 3 activities including: • Summary of the current status of the

exploration activity • Summary of the current status of any

rehabilitation as per Table 5.3

Yes No

Plans A plan or set of plans that includes: • Authority boundary • Scale and north arrow • Access tracks, amenities / temporary

camps • Towns, major infrastructure such as roads

and rail lines, water courses • Natural features such as SCAs and

National Parks • Locations of sensitive receivers • Landholder boundaries (cadastre) • Activity approval areas (SDN, REF) since

grant • Current disturbance areas • Areas under current rehabilitation • Areas of completed rehabilitation (formally

signed off by the DRE) • Areas proposed to be retained / renewed

and areas proposed to be cancelled or relinquished (under part renewal)

Note: The number of plans is at the discretion of the titleholder, provided all features listed above are clearly visible and provide adequate spatial context for all activities described in Sections 3 and 4.

Yes No

Photographic Evidence

Photographs are included for all activity areas, clearly depicting: • The receiving environment prior to

commencement of operations • Disturbed areas, including areas

undergoing rehabilitation • Areas of completed rehabilitation.

Note: Preferably photographs will be taken from the same location/aspect and coordinates provided.

Yes No


Review Summary ESU Assessing Officer:

Comments/Considerations for the Assessor:

Further information required? Yes Stop the Clock Date:__________ Information Due Date: __________ No

Required information provided? Yes No

Approval of EMR or ER&R: Yes

Date of Approval: Date:

Signature:

Update ESU Checklist (EL Grant and Renewal), add report to EL Application Subfolder, Update Task Track.
