Newman's Straddie sand mining bill: The Sibelco favours

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STEPHEN KEIM SC and Alex McKean’s 10 June IA article 'Clive Palmer, Jeff Seeney and Campbell Newman's Straddie donation' raises important questions — in particular, relating to North Stradbroke Island sand miner Sibelco’s large donation to Campbell Newman’s 2012 election campaign, the 2013 special legislation favouring Sibelco and whether this involved corruption.

The issue was recently referred to the CMC by Labor’s Jackie Trad.

Unfortunately, the authors unintentionally endorsed mass media misreporting of the North Stradbroke Island special sand mining legislation. If not corrected, this is likely to contribute to the current misunderstanding and confusion over the legislation.

The objective evidence illustrates that, in 2011, the former Labor Government legislated to extend sand mining on North Stradbroke — not end it as the authors assert.

This special legislation renewed key, already expired, mining leases, side-stepping existing legislation and existing applications for renewal. It also extinguished the pre-existing legal rights of opponents to renewal in circumstances where the Supreme Court otherwise had the power to overturn any decisions to renew. [See Financial Review article for more detail.]

The politicians provided mixed messages about the 2011 legislation. However, putting aside the politics, the explanatory notes to the 2011 Bill introduced into parliament by Labor’s Kate Jones conceded that the intention was, in fact, to extend sand mining.

For example, at page 3, the claimed policy objectives were to be

 '…achieved by renewing or extending certain leases needed for mining.'

The explanatory notes, at page 6, also conceded that the Enterprise mine could not have continued without the renewal of a key expired lease:

'…the Bill also renews a key lease at Enterprise Mine, which expired over three years ago, prior to the current leaseholder acquiring the mine and without which the mine would not be able to operate.'

It also stated:

'... the holder of a mining lease does not have a right to renewal.'

The latter statement was an oblique reference to section 286A of Queensland’s Mineral Resources Act (MRA), which set out how the expired lease applications should have been dealt with.  The explanatory notes were otherwise silent about the usual expired lease processes and the Bill’s breaches of a number of fundamental legislative principles. The Bill was passed without amendment without these breaches being identified or debated by parliament.  

Labor legislated the extension of sand mining over the pre-existing legal rights of opponents to an extension.  

The key mining lease, ML 1117, had long expired (in 2007). Under existing legislation mining could continue until the application for renewal was dealt with. Labor sat on the application for years, despite calls by environment groups and indigenous owners to refuse it. Supreme Court precedent dictated that the minister had to be satisfied of all the various factors listed in section 286A(1) of the MRA before renewal was possible.

The opponents to renewal included North Stradbroke native title owners and environment groups. They had legal advice that in the special circumstances applying on North Stradbroke, there were good prospects of overturning any renewal in the Supreme Court.

They called on the Minister, in writing, to refuse to renew. Instead, Labor introduced the special legislation to extend sand mining.

But this still didn’t satisfy Sibelco.

It had wanted sand mining extended at the Enterprise mine to 2027, so it could mine out the mineral sand deposits. Long standing evidence from the mines owner until 2009, Consolidated Rutile Limited (CRL), established that this was the latest date by which heavy mineral sand deposits on North Stradbroke would be exhausted.

Sibelco spent millions of dollars on an orchestrated campaign attempting to force the Labor Government to extend mining to 2027, claiming that this had been promised by Labor. It included prime time television advertisements, full page newspaper advertisements, cinema advertising, social media and so on. It also included the $90,000 (plus) so-called ‘straddie mothers’ campaign, centred on Newman’s Ashgrove electorate.

The second error made by the authors was to endorse mass media claims that the Newman Government amendments to the North Stradbroke legislation, passed in November 2013,

'... extended sand mining to 2035.'

The extension of sand mining to 2035 was certainly the intent of Campbell Newman’s amendments, but it is not scheduled to happen until 2019.

In reality, the amending legislation does what the 2013 explanatory notes to the Bill state – on page 1 – as its objectives.

Namely, objective 1(a):

'... enable Sibelco to seek a renewal of mining leases in 2019 at the Enterprise mine until 2035.'

As well as objective 1(b), which came into operation immediately:

'... remove the restricted mine path and non-winning condition over part of the Enterprise mine.'

Unless the amending legislation is repealed, Sibelco will make its renewal applications in 2019 and continue to mine outside the 2011 restricted mine path in the meantime. Newman’s amending legislation also disallows conventional objection and judicial review rights of opponents to renewal. This will ensure an extension of sand mining beyond 2019, unless the legislation is repealed either as a result of a successful legal challenge to the legislation by native title owners or as a result of a change of government.

It is timely to remember that, in 1976, sand mining was stopped on Fraser Island, the world’s largest sand island, with just six week's notice. This followed the report of the Fraser Island Inquiry and the Federal Government’s acceptance that sand mining caused major, permanent environmental harm.

Using the same arguments as the Newman Government, the Bjelke-Petersen Government lobbied for a two year transition away from mining, but the Federal Government refused. Notably and somewhat ironically, Campbell Newman’s father Kevin Newman, was then the Federal environment minister.

Sibelco and its supporters cannot legitimately complain about the many years the company has been permitted to mine beyond the 2007 expiry date of the key lease. 

The Newman amendments need to be repealed.  

Any extension of sand mining beyond Labor’s 2019 extension date would be a travesty.

Find out more about this issue at savestraddie.com.

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