The Queensland Government has lifted RA394 and with it
the moratorium on applications for new coal mining tenements in
Queensland, and released an operational policy to clarify the use
of prospecting permits to apply for mining leases.
Restricted Area 394 (RA394), which placed a
moratorium over the application for and grant of new coal tenements
in Queensland since January 2012, was lifted on 28 June 2013.
In lifting RA394, the Department of Natural Resources and Mines
(DNRM) still has some concerns about the use of
PPs as a direct route to peg out and apply for a ML as it believes
it could technically be used as a means of avoiding the competitive
tender process for EPCs.
To rectify this concern, DNRM released an Operational Policy in
June 2013. The policy highlights that the Minister may reject a ML
Application (MLA) using PPs as a prerequisite
tenure if it is not in the public interest for it to be
The policy indicates that the Minister has broad powers in
deciding whether the grant of the ML is not in the public interest
and may take into account any information in relation to the
subject matter and scope of the Mineral Resources Act 1989 (Qld)
(MRA). Such non-exhaustive considerations referred
to in the policy include:
maximising the economic value of Queensland's resource
the objectives of the MRA;
the objective of allocating land for coal exploration through a
competitive tender process; and
Acceptable ML applications
Pursuant to the policy, MLAs from PPs will generally be accepted
where they are not seen to be subverting the tender process. This
may be the case where:
an overlapping EPC or mineral development licence (coal) holder
consents to the application;
the MLA is adjacent to the applicant's existing ML or MLA
and the applicant requires the lease for the purposes of access or
infrastructure to support the existing or proposed project; or
there is a net positive public interest.
Importantly, because of the Minister's discretionary powers,
even where the application for the ML is predicated on one of the
first two scenarios described above, the Minister may still
reject that application on public interest grounds. It
would seem then that for land which is prospective or highly
prospective, a greater threshold will be faced by the applicant in
satisfying the public interest.
The Queensland Government is intent on ensuring that the grant
of coal exploration mining tenements are subject to the competitive
tendering process with only limited exceptions. A proponent seeking
to apply for a ML from PPs should seek an early decision
from DNRM as to whether any such MLA is to be rejected on public
interest grounds. This way, an expensive and timely
approval process will not commenced only for a ML to be later
rejected on public interest grounds, based solely on the use of PPs
to apply for the ML.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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It is a common misconception that the grant of mining tenure, whether it be an Exploration Permit, Mineral Development Licence or Mining Lease, will entitle the holder to access all land within it in order to explore or mine.
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