This is the fifth in a series of seven articles prepared by HFW (Holman Fenwick Willan) which aim to ask frequently asked questions regarding foreign investment in Australia’s mining sector. In this article, we look at what land access rights are required for mining companies to operate effectively in Australia. These land access rights include government approvals, native title issues and private land access issues. We will focus on the regime that applies in Western Australia and while indicative of the regimes adopted in other Australian jurisdictions, it is important to note that each jurisdiction does have its own set of rules.
TO acquire good title to the requisite project area, mining companies should apply for the relevant approvals and identify the underlying land interests as early as practicable in the project development schedule.
As a general principle, all Crown land, parks and reserves are open for mining, subject to consent from the relevant Minister. Compensation may be payable for damage caused to a park or reserve.
Private land is open for mining under the Mining Act 1978 (WA), however mining companies need to understand the various hurdles related to applying for and mining on private land. A permit to enter onto private land which is granted by the Mining Warden is required by a mining company before it can enter the land for any mining relating purpose.
Before a mining tenement may be granted in respect of the surface of private land the written consent of the owner and occupier must be acquired. Consequently, mining companies enter into agreements with private landholders about the terms of any access, which commonly includes compensation terms.
The Environmental Protection Authority assesses mining projects that are likely to have a significant effect on the environment when they are referred under the Environmental Protection Act 1986 (WA). The Federal Government also assesses mining projects that are likely to have a significant impact on matters of national environmental significance (as defined in the Act).
If mining companies assess their environmental approvals requirements appropriately and understand their project schedule in the pre-referral phase, delays and costs can be minimized. Early stakeholder engagement and consultation can also deliver significant positive outcomes. Mining companies should understand that once a proposal is referred it becomes an offence to do anything to implement the proposal. Approval timeframes fluctuate and are affected by the mining operation details and the location and level of public interest in the proposed project.
Native Title requirements arise if a proposed mining tenement is on Native Title land – land where Native Title exists or may exist. Any act undertaken on or after January 1, 1994 which affects Native Title rights and interests, is known as a ‘future act’ under the Native Title Act 1993 (Cth). A future act will be legitimate if there is compliance with relevant procedural requirements in the Act.
To establish whether, and to what extent, the future act will affect Native Title, a determination whether Native Title exists in the area needs to be made by the Federal Court. Prior to such a determination, the legitimacy of future acts can be ensured if a mining company complies with the procedures of the Act.
Registered Native Title claimants have a ‘right to negotiate’ which generally applies to mining tenure which is not infrastructure related. The right to negotiate requires the mining company (and the State) to negotiate in good faith with the registered Native Title claimants over a 6-month period with the goal of reaching agreement regarding the grant of the mining tenure. Native Title compensation agreements are predominantly confidential between the Native Title party and the mining company and the State does not participate. Depending on the requirements of the parties, the Native Title agreement can take the form of a commercial agreement or an indigenous land use agreement.
Ethnographic and archaeological sites which are of significance to Aboriginal people in Western Australia are protected under the Aboriginal Heritage Act 1972 (WA). The Act protects all Aboriginal sites, whether they are registered under the Act or not. Aboriginal heritage surveys are conducted by mining companies with Aboriginal traditional owners to identify ethnographic and archaeological sites and guarantee that all Aboriginal sites in the proposed project envelope are avoided.
For complementary infrastructure to a mining project such as roads or residential complexes, mining companies should understand the effects of local planning schemes, zoning and special control areas, and whether it will be necessary for existing schemes to be amended or for new schemes to be prepared. When planning approval is granted, it is often subject to conditions which must be met before that infrastructure can be properly used. These conditions can be complex and therefore the project schedule must allow a reasonable timeframe for compliance.
Early preparation is critical to ensure land access rights are achieved within the project schedule. Mining companies should consider identifying all tenure requirements as soon as practicable, conducting early stakeholder consultation and reaching agreements to secure project tenure on unambiguous terms.
HFW is a law firm advising businesses engaged in international commerce. For more information, please contact:
Robert Desmond, Partner, on +61 3 8601 4500 or [email protected]
Andre Maynard, Associate, on +61 8 9422 4700 or [email protected]
Disclaimer: Whilst every care has been taken to ensure the accuracy of this information at the time of publication, the information is intended as guidance only. It should not be considered as legal advice.