Ownership of minerals is vested in the NSW Government under the Mining Act. Under that Act the Minister can issue an exploration licence (s13), an assessment lease (s33) or a mining lease (s51). These grants can be made within and adjacent to protected areas. On declaration of a national park under the NPW Act, all existing interests in the area have no right of renewal or extension except with permission of the Minister administering the NPW Act. However, mining is exempted from that control (s 39(4)). Private enterprise and development is generally excluded from national parks9 , including forestry (s42).

Mining interests on the other hand can continue to be granted. A mining lease within the national park estate may be granted by an Act of Parliament (s41(1)). For prospecting, the interest need merely be gazetted (s41(4)). Since mining and mineral exploration can occur in national parks, strong environmental regulation is necessary to ensure the continued integrity of conservation objects and purposes of a reserve. Unfortunately in NSW this is not the case.

A mining lease needs a development consent under the EP&A Act. Normally environmental impacts must be taken into account and appropriate protective conditions are attached to the consent (EP&A Act s90(1),(2)). However, for a mining lease, any conditions attached to the development consent are voided (Mining Act s65(3)(a)) and the development consent is considered to be granted without conditions (s65(3)(b)). During the life of a grant made under the Mining Act, the holder is totally exempted from the operation of the EP&A Act (Mining Act s74, s381). Hence in NSW mining is exempted from the standard environmental controls used to contain impacts of development in or adjacent to protected areas. Environmental regulation instead occurs within the framework of the Mining Act.

Environmental protection conditions can be attached to any mining authority or claim granted under the Mining Act by the Minister. The power to do so is construed widely and without detail, requiring only that the Minister consider environmental protection when considering a grant (s237(1)) and have regard to impacts on ‘the flora, fauna, fish, fisheries and scenic attractions;’(s237(1)(a)). There is no express requirement to

consider the impact on the values of a national park, for instance.

Conditions requiring rehabilitation can also be attached to a grant made under the Mining Act (s239). The Minister is required to consult with the Director of National Parks and Wildlife only on the appropriate form of the rehabilitation conditions (s239(3)). The wide discretionary powers to decide the level of environmental protection are fortunately not enjoyed by other industry sectors in NSW10 . The legislative exemption of mining from standard environmental regulation is of greater concern where public comment and scrutiny is also restricted.

Public comment on the environmental conditions attached to a mining lease are quite cleverly restricted within the interaction of the EP&A Act and the Mining Act. Section 26 of the Mining Act provides that any person may object to a mining lease, however, section 28 excludes any person who is entitled to make a submission on the development consent under the EP&A Act – Section 79 and 79A of the EP&A Act widely construe who may object to a development consent. The practical effect of these provisions is to bar all third parties, such as NPA, from objecting to a mining lease. It must be remembered that any environmental conditions attached to a development consent are considered void under the Mining Act. Effectively, environmental conditions attached to a grant under the Act occur free of public scrutiny.

The environmental regulation outlined above demonstrates that mining and mineral exploration enjoy continued exemption from the standard environmental protection mechanisms relied on to protect the integrity of the NSW national park estate. The ability of the Minister administering the Mining Act to exercise wide discretionary powers as to the level of environmental regulation of mining, even within national parks, further undermines the conservation of the environmental values of NSW’s protected areas. Inherent conflict of interest exists within the legislative framework in allowing the Minister, and through administrative extension the Department of Mines and Energy, to be both regulator and advocate of mining in NSW.

The same used to be true in Queensland. A 1994 Criminal Justice Commission Inquiry into the disposal of liquid wastes from mine sites resulted in the finding of a ‘policy of non-enforcement’ of environmental regulatory controls within the Queensland Department of Mineral Resources (DMR)11 . The effect was a massive and continually growing liability bill for the Queensland taxpayer to contain toxic pollution sourced from mine sites. Justice Matthews found that a ‘departmental dilemma’ existed in the Department holding the roles of both advocate and regulator of the mining industry. The inquiry led to the transfer last year of the ‘Mines Environmental Compliance Unit’ from the DMR to the Environment Protection Authority12 . Such a move would also be beneficial for accountability of mine regulation in NSW.

In light of the environmental impacts, the capacity of mining to occur in national parks and the exemption it enjoys from standard environmental controls, the question must be asked – is appropriate protection being exercised over the NSW national park estate? A legislative review of environmental regulation of mining in NSW is long overdue. To improve protection of national parks such a review must include consideration of independent auditing of mine-site environmental regulation; improved public accountability of environmental regulation of mining; and explicit inclusion in decision making of the effects of mining on the conservation values of the national park estate where development occurs adjacent to a reserve. The review must also canvass a ban on all mining developments within the national park estate without exemption.