Is the fox still guarding the henhouse? Mining and environmental protection in South Australia

Abstract

This article explains the complexities, and provides a critical analysis, of South Australia's environmental protection regime in relation to mining. In South Australia, the Mining Act 1971 (SA) and Mining Regulations 2011 (SA) together constitute the main statutory regime for protecting the environment from mining activities. While the creation of a separate set of environmental controls within the Mining Act means that a number of key environmental statutes do not generally apply to activities undertaken pursuant to licences or leases under the Mining Act, the legal position regarding environment protection is more complex than this statement suggests. This article's critique of the regime focuses on issues of compliance and enforcement. First, assuming that a robust system of third party participation is fundamental to a truly rigorous compliance and enforcement regime, it critically assesses the adequacy of rights of third party public participation in the assessment, decision and review of mining proposals. Secondly, given that the State Minister for Mineral Resources and Energy has the responsibility not only for promoting mining but also regulating the technical aspects of mining and ensuring that mining does not have adverse environmental impacts, it is argued that his or her position is open to the possibility of regulatory capture.