Australia: Mining: The Regulation of Exploration & Extraction:

Getting the Deal Through
Last Updated: 18 August 2010
Article by Kym Livesley

Mining industry

1 What is the nature and importance of the mining industry?

The mining industry is one of Australia's most important export sectors and makes a significant economic and social contribution to the Australian economy. Mining and minerals activity currently comprises 8 per cent of the Australian economy and 40 per cent of exports. The mineral and minerals processing sector has contributed over A$500 billion directly to Australia's wealth over the past two decades, supporting more than 320,000 Australians.

Australia currently has one of the largest mineral sectors by value of production in the world. The Australian mining industry has benefited from a global boom in demand for minerals in recent years, and is expanding, as a result of a high demand for raw materials from China and other parts of Asia. Australia has the world's largest reserves of lead, nickel, uranium and zinc. It is the world's leading producer of bauxite, alumina and diamond (by volume), the secondlargest producer of uranium, lead, zinc and nickel, and the third largest producer of iron ore, silver, magnesium and gold.

Australia is also a world leader in developing and exporting mining equipment, services and technologies.

Legal and regulatory structure

2 Is the legal system civil or common law-based?

The Australian system is common law-based. Its laws are based on a combination of legislation made by parliament and decisions made by an independent judicial system that adheres to the rule of law and due process.

Laws are made and regulated by three tiers of government – federal, state and territory, and local government. The federal government (the Commonwealth) represents a federation of the six Australian states (New South Wales, South Australia, Queensland, Tasmania, Victoria and Western Australia) and the Commonwealth's territories (including the Northern Territory and Australian Capital Territory). The Commonwealth has the power to make laws under the Australian Constitution. The Commonwealth has power to legislate in areas such as corporations, taxation, native title, overseas trade, trade practices, foreign investment and foreign affairs. However, using such power, the Commonwealth also legislates on broader issues including environmental issues and native title.

The state and territory governments are given broad legislative power under their respective constitutions. Areas such as mining, roads and traffic, environment, health and criminal law are regulated primarily by laws at this level.

Local governments are established by state or territory legislation. Local governments typically make and enforce regulations in relation to building and development, town planning, local amenities, environment and land use within their local government areas.

3 How is the mining industry regulated?

Minerals and the mining industry are regulated at the state and territory level. Each state or territory has its own legislation relating to minerals found onshore and offshore within coastal waters.

Nevertheless, some Commonwealth laws may affect the mining industry because the Commonwealth legislates over areas such as corporations, competition and trade practices, interstate and overseas trade, taxation, and defence and foreign affairs.

Mining companies listed on the Australian Securities Exchange (ASX) must also comply with the ASX Listing Rules.

4 What are the principal laws that regulate the mining industry? What are the principal regulatory bodies that administer those laws?

Each state has a Mining Act and Mining Regulations (or equivalent) that regulate the ownership of minerals and operation of mining activities in that state. The states have other laws dealing with areas such as mine operation, mine inspection, occupational health and safety, environment, and planning. The government department administering mining law in each state administers and sets out guidelines and policy statements relating to state mining legislation.

5 What classification system does the mining industry use for reporting mineral resources and mineral reserves?

The Australian mining industry uses the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (the JORC Code) for public reporting (eg, annual reports and analyst reports). The JORC Code is published by the Australasian Institute of Mining and Metallurgy, Australian Institute of Geoscientists and Minerals Council of Australia.

The JORC Code is applicable to all solid minerals, including diamonds, other gemstones, industrial minerals and coal. The JORC Code requires reporting on the company's mineral resources under quantities known as 'mineral resources' or 'ore reserves'. The classification of the mineral resource depends upon the quantity, distribution and quality of data available and the level of confidence that attaches to such data.

A 'mineral resource' is an occurrence of a mineral material of intrinsic economic interest that has reasonable prospects for eventual economic extraction. The location, quantity, grade, geological characteristics and continuity of a mineral resource must be known, estimated or interpreted from specific geological evidence and knowledge. Mineral resources are subdivided, in order of increasing geological confidence, into inferred, indicated and measured mineral resources.

An 'ore reserve' is the economically mineable part of a measured or indicated mineral resource and is subdivided, in order of geological confidence, into a 'probable ore reserve' or a 'proved ore reserve'.

Although the JORC Code applies to the reporting of mineral resources and ore reserves by all public companies, the ASX Listing Rules also expressly require any report by an ASX-listed company on its exploration results, mineral resources or mineral reserves to comply with the JORC Code.

Mining rights and title

6 Who has title to metallic minerals in the ground?

The Crown owns all minerals in the land. Common law presumes that a landowner also owns all minerals on or beneath the surface of that land. However, this principle has been virtually abolished by statute in Australia and all new grants of freehold titles in Australia have provided that all minerals are reserved to the Crown. A very small percentage of minerals in Australia are owned by those who were granted titles to the land before enactment of relevant state legislation excluding mineral ownership.

Any mineral that is lawfully mined becomes the property of the person by or on behalf of whom it is mined at the time the material from which it is recovered is severed from the land from which it is mined. Until lawfully mined, minerals remain the property of the Crown.

7 What information and data is publicly available to private parties that wish to engage in mining activities?

Legislation and regulations relating to mining activities are freely accessible through the Commonwealth and state parliaments (see, for example, www.comlaw.gov.au and www.legislation.nsw.gov.au ). The relevant government department of each state publishes policies, guidelines, fact sheets and forms relating to their administration of mining activities and can be accessed at www.australia.gov. au/states_and_territories .

Each department also offers the public access to mining information databases which allow the public to view mining reports, maps, surveys, geoscientific data, exploration and tenement information in that state. Many of these services are available online (see, for example, www.dpi.nsw.gov.au/minerals ).

A large number of articles and research papers on mining companies and the mining industry generally are published in industry journals, analyst reports or in other publications.

8 What mining rights may private parties acquire? How are these acquired? What obligations does the rights holder have?

A miner may obtain rights to conduct mining activities on unreserved Crown land or on private land where the permission of the landowner has been granted. The specific mining rights that miners may acquire differ slightly in each state or territory, but the rights are based upon the three basic stages of development of a mine: initial exploration, further detailed exploration and assessment, and production.

Holders of mining rights may also have ancillary rights that relate to those mining activities, such as public road access, access to water and setting up crushing, sizing and grading facilities on the land surface.

Mining rights may be acquired from the applicable state department generally through an application process on a first-come, first served basis, or in some instances, a tender-based process. Mining rights may also be acquired by entering into a contractual arrangement with the holder of the mining right. Rights to access the surface are regulated both by legislation and by private contract with landowners.

Mining right holders will generally have obligations such as payment of rent and royalties, compliance with work programmes, mine rehabilitation and reporting requirements (for example, exploration activities and mining expenditure).

9 Is there any distinction between the mining rights that may be acquired by domestic parties and those that may be acquired by foreign parties?

No. However, a major acquisition of assets by a foreign company may require the approval of the Australian treasurer, through the Foreign Investment Review Board. The Foreign Investment Review Board has the power to block proposals that are required to be notified to it and which are determined to be 'contrary to the national interest'.

A proposed acquisition by a foreign company of an asset or company valued at over A$231 million (a higher threshold of A$1004 million applies to acquisitions by US companies) must be notified to the Foreign Investment Review Board.

There are also notification requirements below this threshold if investment is in a prescribed sensitive sector; the extraction of (or the holding of rights to extract) uranium or plutonium is one such sector.

10 How are mining rights protected?

The legislation of each state prohibits prospecting or mining minerals otherwise than in accordance with the terms of a valid mining tenement. As a general rule, mining rights may not be granted to third parties over land that is subject to an existing mining tenement, unless the holder of the existing mining right gives consent. These and other mining rights can be protected or enforced through an independent judicial system. A mining court or tribunal has been set up in each state or territory, and is given the jurisdiction to determine all suits concerning mining tenements and may exercise any other jurisdiction vested by the particular state and territory regulation. Mining rights obtained through contractual arrangements are also protected under contract law.

11 How do the rights of aboriginal, indigenous or currently or previously disadvantaged peoples affect the acquisition or exercise of mining rights?

Aboriginal land interests (native title) are a sui generis concept uniquely acknowledged at common law and the Native Title Act 1993 (Cth) provides the methods and procedures for dealing with such title.

Native title can affect timing of a grant of a mining tenement. Aboriginal groups may claim to hold native title on land subject to a mining application (it is unnecessary for the group to prove they hold native title). These groups are entitled to negotiate with the applicant in relation to issues such as land use, access and compensation. Under the 'right to negotiate' procedure, mining tenements cannot be granted unless the native-title claimants consent or the National Native Title Tribunal otherwise determines.

Aboriginal ethnographic and archaeological sites are also protected under state and Commonwealth legislation (collectively known as cultural heritage).

12 What surface rights may private parties acquire? How are these rights acquired?

A holder of mineral rights is generally given rights on the land surface to carry out mining purposes. These rights may depend upon the stage of the mining operation, and may include rights to access water and public roads; construct, maintain and use buildings, plants, roads and railways; and conduct primary treatment operations and other acts ancillary to mining.

Where the holder is seeking to engage in these ancillary activities on private land, rights must be obtained from the private landowners by means of purchases, leases, easements, etc. The general laws of contract apply between private parties. Mining legislation may also set out requirements for certain terms relating to access and compensation arrangements with landholders.

Duties, royalties and taxes

13 What duties, royalties and taxes are payable by private parties carrying on mining activities? Are these duties, royalties and taxes revenuebased or profit-based?

First, royalties are payable to the Crown on extraction of the minerals. The amount and calculation of such royalties vary from state to state and may include, for example, flat-rate royalties (eg, on a 'cost per tonne' basis), ad valorem royalties (based on a percentage of the total value of minerals recovered, ranging from 2.5 to 8.2 per cent) and profit-based royalties (applied in some states to all minerals, such as Tasmania and the Northern Territory, and applied in some states to only certain minerals, such as diamonds). The level and nature of royalties also varies depending on the type of commodity and its location within Australia. A number of state governments (including Queensland and New South Wales) charge mining companies higher freight rates to carry minerals compared with other commodities. In these cases, mining freight subsidises the operation of government railways.

Second, private royalties may be payable, for example, in circumstances where the mining rights have been transferred between private parties subject to the payment of an ongoing private royalty.

Third, general duties and taxes are payable in the same manner as any other business within Australia, such as local government rates and fees, stamp duty, goods and services tax, capital gains tax or income tax. There is no general Australian government mining legislation or specific taxation of mining products, although the general duties and taxes include certain special provisions and concessions for mining activities. However, please refer to the comments in 'Update and trends' regarding the federal government's recent announcement of plans to introduce a 40 per cent mining tax on 'super profits'.

14 What tax advantages and incentives are available to private parties carrying on mining activities?

A broad-based goods and services tax (GST) applied at the rate of 10 per cent has been in operation since 1 July 2000.

The GST regime benefits industry, as GST-registered enterprises are typically able to recover the GST paid on their business inputs. Mining enterprises are not required to charge GST on goods they export to overseas customers (which account for the bulk of industry sales). However, careful consideration is required where the enterprise supplies or receives certain financial supplies, including, among others, forward contracts, options to buy or sell foreign currency, commodity derivatives and security lending arrangements as these transactions can give rise to restrictions on recovery of GST on associated business inputs. There are also special GST rules for domestic sales of precious metals.

Fuel tax credits commenced on 1 July 2006 as part of the government's major programme of reform to modernise and simplify the fuel taxation system. The previous system of fuel grants, rebates and remissions has been substantially replaced with a single fuel tax credit, claimable via a business activity statement.

The Enhanced Project By-Law Scheme (EPBS) provides tariff duty concessions on eligible goods for major products in the mining and resource processing industries. Only eligible goods integral to the project may be eligible for a tariff duty concession.

The major form of government assistance provided to the mining industry is in the form of research and development via the CSIRO Institute of Minerals, Energy and Construction. In addition, the Australian Geographical Survey Organisation (part of the Department of Industry, Science and Resources) is undertaking national geoscientific mapping aimed at encouraging the sustainable management and development of Australia's natural resources.

Direct assistance in the form of export assistance and subsidies is minimal.

The Regional Minerals Programme is designed to encourage a coordinated regional approach in the development of new mines and mineral processing, as well as to reduce industry costs and increase the scope for investment.

15 Is there any distinction between the duties, royalties and taxes payable by domestic parties and those payable by foreign parties?

Although there is no obvious distinction between specific mining taxes such as duties and royalties paid by domestic parties compared to those paid by foreign parties, parties must consider more general taxation matters such as withholding taxes, thin capitalisation rules, double tax agreements and foreign tax credits.

Business structures

16 What are the principal business structures used by private parties carrying on mining activities?

Mining activities can be conducted by corporations, partnerships or by way of joint venture; however, mining projects are most commonly structured as joint ventures. The joint venture can either be incorporated or unincorporated. An incorporated joint venture uses a company as the project vehicle, and as such, is governed by its constituent documents. The typical unincorporated joint venture is governed by a joint venture agreement.

Financing

17 What are the principal sources of financing available to private parties carrying on mining activities? What role does the domestic public securities market play in financing the mining industry?

Financing is one of the principal barriers to entry in mining, which is a highly capital-intensive enterprise. Large sums of money are required to construct mines and production facilities, and to sustain the exploration and development needed to replenish reserves. Project finance is extensively used in Australia for mining- and exploration-related projects.

The domestic public securities market, by way of the ASX, lists many publicly listed mining companies. Such listed companies seek to raise the capital required to fund various mining activities through their shareholders by undertaking capital raisings.

Restrictions and limitations

18 What restrictions and limitations are imposed on the importation of machinery and equipment or services required in connection with mining activities?

An import permit is required to import used agricultural, earthmoving and mining machinery and can be assessed by the regional offices of the Australian Quarantine and Inspection Service. Also, all machinery imported into Australia requires a cleanliness declaration which states that the machinery is clean and free of all soil, plant and animal debris.

There are occupational health and safety laws in each state and territory of relevance to the use of plant and equipment.

19 What restrictions and limitations are imposed on the use of domestic and foreign employees in connection with mining activities?

There are no general restrictions or limitations as to the use of domestic employees. Foreign employees, however, must comply with the visa restrictions imposed by the federal government.

As many mines are located in regional and low-population areas, employers can be provided with special assistance so as to be able to attract employees with an adequate set of skills.

20 What restrictions or limitations are imposed on the processing, export or sale of metallic minerals?

Other than export controls that exist for the sale of uranium, there are no general restrictions or limitations imposed on the processing, exporting or selling of metallic minerals.

21 What restrictions or limitations are imposed on the import of funds for mining activities or the use of the proceeds from the export or sale of metallic minerals?

Generally, foreign and Australian currency can be transferred in and out of Australia without restriction. Virtually all exchange controls in Australia have been removed.

To detect tax evasion and other criminal activities, the Financial Transaction Reports Act 1988 (Cth) requires cash dealers to report significant cash transactions to the Australian Transaction Reports and Analysis Centre (AUSTRAC).

There are no general restrictions or limitations in relation to the use of the proceeds from the export or sale of metallic minerals.

Environment, health and safety

22 What are the principal environmental, health and safety laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

Environmental laws

Each state and territory has a detailed legislative and regulatory regime relating to environmental conservation, assessment, planning and land use. The environmental aspects of the mining industry are generally administered by the relevant state and territory environmental protection agency, the resources department and local government. Most mining tenements will only be granted after the relevant state department assesses the environmental impacts of any proposed or potential mining activity. Commonwealth laws will also apply to mining activities that will impact on Commonwealth lands or national matters (for example, national heritage-listed land or the Environment Protection and Biodiversity Conservation Act 1999, which provides a planning regime for obtaining consent for a project if it affects certain Commonwealth land or threatened species).

Many Australian mining companies also adhere to international standards such as ISO 14001 for Environmental Management Systems. The Commonwealth Department of Resources, Energy and Tourism has also published a set of guidelines on Best Practice on Environmental Management in Mining. This is in the process of being updated with the Leading Practice Sustainable Development Program for the Mining Industry.

Mining health and safety

The principal health and safety laws applicable to the mining industry are the occupational health and safety laws of each state that apply to all industries. In addition, states may have supplementary legislation dealing specifically with mining; for example, mine inspection procedures and emergency management systems. These laws are administered by the state department for occupational health and safety together with the resources department.

Various state mine-safety advisory councils provide recommendations to the government to promote issues surrounding occupational health and safety in mines.

23 What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

The mining company will prepare a proposal for mining operations, along with the potential environmental impacts and how they will be managed. The relevant government departments will then decide whether the project is environmentally significant and the extent of environmental assessment necessary (if at all) before giving approval for the proposal. Assessment may involve public environmental reports, environmental impact statements, community consultation and public inquiries. The time it takes to obtain the necessary permits will depend on whether the project is complex or controversial. Mining tenements are ordinarily granted within six months. If public consultation is needed then the time taken will increase, with some projects taking several years for the necessary permits to be obtained.

24 What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

Mine operators must submit to the relevant department a detailed remediation plan associated with its mining operations. In many cases such plans must be submitted within one to two years of commencing operations, and in some cases prior to commencing operations. Obligations under these plans upon closure of a mining plant are incorporated into the terms and conditions of the mining tenement. The mine operator will generally be required to lodge a security deposit with the department to guarantee the fulfilment of their remediation obligations. The size of this deposit is determined by the department and will depend on the size of the proposed operation and the likely costs of remediation.

International treaties

25 What international treaties apply to the mining industry or an investment in the mining industry?

Australia does not have international treaties applicable specifically to the mining industry.

Australia has established free-trade agreements with New Zealand, Singapore, Thailand, United States, the Association of South- East Asian Nations (ASEAN) and Chile that have relevance to the mining industry, and is negotiating similar agreements with China, Japan, Malaysia, Korea and the Gulf Cooperation Council. Australia also has double tax treaties with over 40 countries.

Update and trends

As the mining industry emerges from the global financial crisis relatively unscathed in contrast to the world economy, industry sentiment and investor confidence is increasing, encouraging mineral exploration and project development in 2010. With commodity prices rising and some of Australia's key market exports nearing financial recovery, initial predictions for the industry in 2010 saw a surge in investment in mining sectors. However the federal government's recent announcement of plans to increase corporate mining taxes to 40 per cent on 'excess profits' in 2012 (the Super Profits Tax) has resulted in significant uncertainty over the viability of certain exploration activities in Australia. Several of the country's largest mineral producers have already announced plans to scale back their Australian operations, a sentiment which will likely echo throughout the industry, at least until the future of the tax is decided.

While the proposed Super Profits Tax has undermined the growing confidence in investment in the mining industry, there is still an underlying optimism that foreign investment in mining by emerging nations such as China and India will escalate. Countries such as these, which are continuing to modernise but lack domestic reserves, are likely to look to invest in the prosperous Australian mining industry to secure their local supply of natural resources. While foreign investment in base metals and bulk commodities is expected to rise, so is investment in mining infrastructure and assets. Insufficient infrastructure is a significant problem in the mining industry at present and poses an attractive option for countries that are seeking to diversify their portfolios to leverage negotiations for the supply of sought after minerals. Early 2010 has already seen a series of moves by Chinese entities to acquire stakes in Australian mining assets and it is expected that China will maintain strong levels of investment in the Australian mining sector throughout 2010.

The trends that have followed previous mining booms (the 1850s gold rush, late 19th century mineral boom, 1960s and early 1970s mineral and energy boom and the late 1970s and early 1980s energy boom) indicate that increased investment in mining produces a higher income derived from mining activities and a greater need for mining infrastructure. Should this activity and spending eventuate, Australia can expect increased inflationary pressures and a general strengthening of the economy in the medium term future. It is difficult to predict how closely the current mining boom will follow historic trends in light of the proposed Super Profits Tax as this is likely to be a significant element that may distinguish the current boom from previous ones.

It is also likely that 2010 will see a resurgence of initial public offers of mining exploration companies as capital markets and investor confidence strengthens. Despite the uncertainty regarding the Super Profits Tax by large mineral producers, the current understanding is that small exploration companies that are yet to realise substantial profits will be unaffected as the Super Profits Tax is proposed to be imposed only on profits after allowing for extraction costs, recouping capital investment and the provision to shareholders of a normal return on their capital investments. As a result, the prospect of the imposition of the Super Profits Tax in the future is not expected to discourage smaller exploration companies from proceeding with Australian mining operations and accordingly, these companies are expected to look to the capital markets for the requisite funding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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