Australia: Australian Resources Sector Update: September 2012


Welcome to the September edition of the Australian Resources Sector Update, a monthly publication prepared by Corrs Chambers Westgarth for clients who are interested in the Australian resources industry.

This publication brings together a brief summary of information on recently completed deals, market rumours and potential opportunities, and relevant regulatory updates.

Recent Announcements

On 24 August 2012, ASX-listed Whitehaven Coal announced that Tinkler Group Pty Ltd's due diligence process in respect of the non-binding proposal by a Tinkler Group-led bid vehicle to acquire all of the issued shares in Whitehaven at A$5.20 per share has ended1. Whitehaven further announced that it has been advised by Tinkler Group that Tinkler Group will not be making a formal binding offer at A$5.20 per share.

ASX-listed coal miner Blackwood Corporation Ltd announced on 14 August 2012 that Mulsanne Resources Pty Ltd, a company associated with Tinkler Group Pty Ltd, has failed to pay placement monies in accordance with the Share Placement Agreement for shares in Blackwood. Under the Share Placement Agreement, Tinkler Group offered A$28.4 million to Blackwood for 94 million shares in Blackwood at A$0.30 per share. However, Tinkler Group has failed to pay the placement monies to Blackwood by the due date of 13 August 2012 (which had already been extended once from the original due date of 12 July 2012). Blackwood has refused to grant a further extension. Blackwood intends to recover the placement monies from Mulsanne Resources.

On 13 August 2012, ASX-listed iron ore producer Rico Resources applied for and was granted a trading halt in response to an unspecified offer from an unknown party. The offer was subsequently withdrawn on 14 August 2012 and the trading halt has been lifted. It has been reported in Proactive Investors that Rico is in discussions with various parties who are interested in acquiring Rico's Wonmunna iron ore project in the southeast Pilbara region of Western Australia. It has been further reported that Rico is also investigating a number of potential merger and acquisition opportunities to increase its asset holdings.

ASX-listed Cuesta Coal announced on 8 August 2012 that it has entered into a farm-in and joint venture agreement with Queensland Coal Investments (QCI), a subsidiary of Hancock Prospecting. Under the agreement, QCI will invest A$3 million and earn up to a 51% interest in Cuesta Coal's two Exploration Permits for Coal (EPC) applications located in the Eastern Galilee basin in the State of Queensland. The joint venture is conditional on Cuesta Coal being granted the two EPCs, which are expected to be approved in the coming months.

On 6 August 2012, Linyi Mining Group, a subsidiary of China's Shandong Energy, announced that it would extend the offer period for its takeover bid for ASX-listed coal miner Rocklands Richfield from 13 August 2012 to 12 September 2012 and that it would accelerate payment terms. Under the accelerated payment terms, Linyi will use its best endeavours to pay shareholders who accept the offer on or before the offer becomes unconditional within 15 days after the offer becomes unconditional. Linyi will use its best endeavours to pay shareholders who accept the offer after it becomes unconditional within 15 days after the offer has been accepted. Linyi is still awaiting various Chinese governmental approvals before declaring its bid to be unconditional. According to Rocklands Richfield's latest announcement, Shandong holds 88% of Rockland's ordinary shares as at 17 August 2012.

In related news, Rocklands Richfield's court proceedings with the minority shareholders in HLM Coal Australia Pty Ltd (HLM) are continuing. Rocklands hold a 60% interest in HLM. Frank Farrall and Alan Prowse, who collectively hold the remaining 40% interest in HLM, commenced litigation against Rocklands for alleged breaches of the shareholders agreement and opportunity loss. Farrall and Prowse claim that their interest in HLM is worth A$108.6 million, based on the value of Linyi Mining Group's takeover bid for Rocklands. On 22 August 2012, Rocklands announced that an expert valuation of the plaintiff's interest in HLM ranged from A$34.6 million to A$38.7 million if the shareholder's agreement remains in force and A$28.9 million to A$32.6 million if the shareholder's agreement is terminated. The proceedings are set down for trial on 17 September 2012.

Following an initial proposal in May 2012 that was rejected, India's Aditya Birla Group submitted a revised indicative, non-binding stage one proposal on 23 July 2012 to acquire all of the outstanding shares in ASX-listed iron ore miner Northern Iron Limited at A$1.40 per share. Aditya Birla's revised offer was valid until 22 August 2012 and coincides with Swiss-based Prominvest AG's highly conditional offer to acquire all of Northern Iron's outstanding shares for A$1.42 per share, which was submitted on 27 July 2012. Under the terms of its offer, Prominvest also proposes to assume US$93 million of Northern Iron's net debt. Prominvest's offer was valid until 28 August 2012. Northern Iron is now considering both proposals and will engage with each bidder in an attempt to agree on a binding proposal. Although neither Aditya Birla nor Prominvest has officially extended its offer period, both companies have commenced a ten week due diligence process and are expected to finish towards the end of October.

Legacy Iron Ore Limited, a 50%-owned subsidiary of India's state-owned NMDC, announced on 2 August 2012 that it has finalised its acquisition of two EPCs from Sunbiaco Capital Pty Ltd. Legacy Iron has stated that Sunbiaco's EPCs are two of six EPCs that Legacy Iron intends to acquire as part of its strategy to build its portfolio of steelmaking raw material assets. The other four EPCs are still in the application stage, with one held by Velarium Holdings Pty Ltd and the remaining three held by Sara Bella Energy Pty Ltd.

On 2 August 2012, ASX-listed iron ore miner Iron Road Limited announced a 31-for-40 accelerated non-renounceable entitlement offer of new Iron Road shares at A$0.32 per share to raise A$40 million. The offer is fully underwritten by CIBC Australia Ltd and is comprised of an institutional component and a retail component. On 15 August 2012, Iron Road announced the settlement of the institutional component after receiving a total of A$6.2 million (before costs) from institutional shareholders. The retail entitlement offer opened to eligible shareholders on 14 August 2012 and will close on 4 September 2012. The funds raised through the entitlement offer will be used towards the Definitive Feasibility Study for Iron Road's expanded Central Eyre Iron Project located on the Eyre Peninsula of South Australia, which is expected to produce 20 mtpa of premium iron product, and a scoping study for Iron Road's Gawler Iron Project located along the eastern margin of the Great Victoria Desert.

ASX-listed iron ore miner Fortescue Metals Group announced on 3 August 2012 that it has secured a US$1.5 billion dual tranche credit facility to expand the company's production to 155 mtpa. The facility will mature on 31 December 2013 and is underwritten by Bank of America Merrill Lynch.

On 22 August 2012, ASX-listed BHP Billiton announced that it will not be ready to approve an expansion of its Olympic Dam iron ore project before the 15 December 2012 deadline of its Indenture Agreement with the South Australian government. CEO of BHP Billiton, Marius Kloppers, stated that the reason that BHP Billiton has decided not to expand is because the expansion would be too capital-intensive given the currently subdued commodity prices and higher capital costs.

Recently Completed Deals

On 21 August 2012, ASX-listed Whitehaven Coal announced that its compulsory acquisition of all of the ordinary shares in ASX-listed Coalworks has completed and Whitehaven now holds 100% of the ordinary shares in Coalworks2. Coalworks was delisted from the ASX on 22 August 2012.

Market Rumours and Opportunities

Various sources including The Australian and Herald Sun have reported that iron ore miner Roy Hill Holdings, a company owned by Gina Reinhart, has been in discussions with the United States' Export-Import Bank in relation to securing funding for the Roy Hill Project, Roy Hill's A$9 billion iron ore mine in Western Australia. It has been reported that Roy Hill needs to secure A$7 billion by the end of 2012 so that its Roy Hill Project can commence production in 2014. It has been further reported that, earlier this month, Roy Hill signed agreements with two Chinese steelmakers for the sale of iron ore and that this could reassure financiers about the viability of the Roy Hill Project. If the US Ex-Im Bank proceeds with financing A$2 billion to Roy Hill, this will be the bank's second largest financing in Australia after its A$2.95 billion loan to the Australia Pacific LNG project in Queensland in March 2012.

It has been rumoured that Korea's LG International Corporation is looking to acquire an iron ore project in Western Australia as it sees the currently low iron ore prices as a buying opportunity. It is also reported that, while LG does not presently have a significant portfolio in iron ore assets, LG recently considered acquiring an interest in Iron Road Limited, a South Australian iron ore miner, and ASX-listed iron ore miner Northern Iron Limited. However, it is reported that LG has determined that neither company is a viable acquisition target for LG.

Alwyn Vorster, the managing director of ASX-listed Iron Ore Holdings, has been reported as saying that Iron Ore Holdings is seeking Chinese joint venture partners for its Bungaroo South iron ore project in Western Australia. Mr Vorster has been further reported to say that Iron Ore Holdings would prefer to work with a Chinese state-owned or private mid-small steel producer with a production scale of around 10 mtpa, and would be willing to retain a minority holding while the Chinese company would take majority control. The Bungaroo South project contains 242 million tonnes of JORC-compliant resources at 57.2% of iron. The project requires a total investment of A$400 million and the feasibility study will be completed by the end of 2012.

It has been rumoured that China's CNOOC New Energy Investment is interested in acquiring coal assets in Australia, in particular either acquisition or joint venture opportunities in greenfield coal projects with a higher water content, to further develop its coal-to-liquids business. Queensland-based Cougar Energy's managing director Rob Neill has been reported as saying that Cougar Energy is interested in engaging with CNOOC. Cougar Energy is reported to be currently selling its Mackenzie coal project in the Bowen Basin and Wandoan coal project in the Surat Basin.

It has been reported in The Economic Times that India's Adani Group is considering listing Adani Enterprise Limited on overseas stock exchanges as Adani Group increases its exposure in Australia and Indonesia. It has been separately rumoured that Adani Group is looking to raise US$1 billion by selling down stakes in its listed companies Adani Enterprises, Adani Ports and Special Economic Zone and Adani Power.

Regulatory Updates

Greentape reduction for environmental approvals

As discussed in the August edition of the Australian Resources Sector Update, the Queensland Government has recently been undergoing the process of passing legislation to streamline the approval process for environmental authorities.

The Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 was assented to on 14 August 2012. The Act introduces an automatic approval process for certain business activities, streamlines mining approval process and related information requirements. The Act is part of the Queensland Government's aim to streamline the approval process for environmental authorities, which is expected to save time and approximately A$11.7 million per year for businesses.

One significant change is the introduction of what is described in the Explanatory Notes as "a licensing model that is proportionate to environmental risk". Previously, the same licensing process for environmentally relevant activities (ERA) applied to all resources activities. Under the new model, applicants for mining tenements which involve resources activities that pose lower risks to the environment will only need to make a standard application for ERA and comply with a set of eligibility criteria and standard conditions. For those activities that do not meet all of the standard conditions, a variation application can be made and the assessment process will only focus on the variations. Only the resource activities that are not eligible for standard or variation applications will be subject to the full licensing process.

There is now an option to apply for a single project environmental approval for resource activities, which means that companies will only have to administer one environmental authority for each project, and an option to amalgamate licenses from different sites into a single environmental authority. In addition, an environmental authority can now be transferred with the related mining tenement without the need for a separate transfer under the Environmental Protection Act 1994.

Mines Legislation (Streamlining) Amendment Bill

In line with the greentape reduction legislation, the Queensland Government introduced the Mines Legislation (Streamlining) Amendment Bill 2012 into the Legislative Assembly on 2 August 2012 to streamline the approval process for resources permits.

The aims of the Bill are to clarify the legislative framework for compulsory acquisition of land in the context of resources interests, implement part of the Streamlining Approval Project (SAP), confirm and clarify current jurisdictional arrangements for the regulation of health and safety matters and provide regulatory certainty in the Coal Seam Gas to Liquid Natural Gas industry.

The SAP was introduced in 2009 to reduce the time taken to process resources permit applications. The concept of an online service delivery platform was proposed by the SAP, where authenticated customers can transact with the Queensland Government online and track their application status. The Bill proposes to amend the current legislative framework to provide for this online service delivery model.

The Bill also aims to establish common structure, terminology and assessment processes for all resources activities by amending the Mineral Resources Act 1989, Petroleum and Gas (Production and Safety) Act 2004, Petroleum Act 1923, Greenhouse Gas Storage Act 2009 and Geothermal Energy Act 2010.

Mining Rehabilitation Fund Bill

This month, the Western Australian Government introduced the Mining Rehabilitation Fund Bill 2012 to establish a fund to replace the existing mining environmental bonds. Introduction of the Bill follows extensive consultation with industry and community bodies since 2010. It is anticipated that the Mining Rehabilitation Fund levy will commence on 1 July 2013.

Other News

A lower company tax rate at the expense of resources sector?

The Australian Government is considering the recommendation from the 2010 Henry Review to reduce the corporate tax rate from 30% to 25%. According to a discussion paper on 13 August 2012 by the Business Tax Working Group, this proposal would cost the Australian Government A$26 billion. The Australian Government is looking to fund this cost by equivalent savings found elsewhere in the business tax system. The 'potential savings' may come at the expense of the energy and resources sector.

Corrs' thought piece that analyses this issue in detail is available at:

Carbon tax floor price to be abolished

Federal Government Climate Change Minister, Greg Combet, announced on 28 August 2012 that significant amendments will be made to the current form of the Australian carbon tax. One significant change is the removal of the floor price of A$15 per tonne, which was to be implemented when the carbon tax moved to a floating market in July 2015. In addition, the Australian market for carbon units will be linked to the European Union Emissions Trading System (EU ETS), which will have the effect of matching the prices of carbon units under the Australian and the European schemes. Currently, carbon units under the EU ETS are trading at about A$9.80 per tonne. Australian companies can begin buying EU ETS carbon credits immediately to meet their future carbon tax liabilities from 1 July 2015.

WA Government releases its Strategic Energy Initiative

Energy2031, Western Australia's Strategic Energy Initiative, was released on 28 August seeking to paint the State's vision for its energy sector over the next 20 years. Developed against the four strategic goals of affordable, secure, reliable and cleaner energy, the report recognises the continued reliance by WA on coal and gas, and liquid fuels for regional generation and long haul transport, but targets increases in renewable sources in the energy market. Acknowledging that developments of substantial quantities of 'tight gas' and shale gas may improve WA's gas supply security and contribute to meeting increasing demands, the report recognises concerns around potential environmental impacts from extraction of unconventional gas sources.

The report suggests the private sector would be best placed to deal with the need for better infrastructure, with help from Government infrastructure planning. The report also provides a high level description of an infrastructure planning strategy, plus strategies for effective and efficient energy delivery, informed and responsible energy use, and capacity building for WA's energy future.

Some other notable issues arising out of the report:

  • continuation of the State Domestic Gas Reservation Policy, requiring producers to reserve 15% of LNG for domestic gas use;
  • an absence of anticipated energy price subsidies and discounts for WA users; and
  • the WA Government does not believe nuclear power will form part of the State's fuel mix within the 2031 timeframe.

New fund to assist emissions reduction

Australian Minister for Resources and Energy, Martin Ferguson, launched the A$70 million Coal Mining Abatement Technology Support Package to allow Australia's coal mining operators to access support to reduce greenhouse gas emissions by developing coal abatement technologies. The A$70 million of funding will be provided to coal mining operators over five years and has three key areas of focus:

  • supporting research, development and demonstration of abatement technologies and processes;
  • funding measures that address safety and regulatory issues associated with the development and deployment of these technologies; and
  • supporting small and medium-sized mines to prepare carbon emissions abatement strategies.

The first round of funding is currently open. Additional information and application forms are available on the Department of Resources, Energy and Tourism website

Lowering application costs for junior miners

The Queensland Mines Minister, Andrew Cripps, has announced a six month plan to review legislation and regulation for junior miners. The aim of the review is to lower application costs and streamline applications to encourage investment in the junior mining sector. Over the next six months, the Queensland Government will also seek to publish new guidelines to support the State's Royalties for Regions programme, complete Galilee and Surat basin infrastructure plans and progress the Surat basin rail project. The State will also work to progress a port strategy as part of a strategic assessment for the Great Barrier Reef.

Pilot program for online lodgement of environmental reports

Following the implementation of online lodgements of mining and petroleum Environmental Proposals, the Western Australia Department of Mines and Petroleum has commenced a trial for an online system for submiting Annual Environmental Reports with a pilot group of resource companies. The department will collect feedback from the pilot group before the system is officially launched.


1 Corrs is advising the Whitehaven Coal committee of independent directors on this transaction.

2 Corrs is advising Whitehaven Coal on this transaction.

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