It won't apply to: Overlaps with an
existing granted production tenement (ie. a mining lease or
petroleum lease). However, the parties may agree to opt into the
It will apply to: All other coal and CSG
tenement overlaps (subject to one limited exception). However, the
parties may agree to opt out of the new regime (except for some
For tenements to which the new regime applies, existing
co-development agreements will effectively be preserved (subject to
the mandatory provisions of the New Regime).
What has changed since Common Provisions Act was passed?
Since 2014, amendments to the new regime have been made in the
Water Reform and Other Legislation Amendment Act 2014 and the
Mineral and Other Legislation Amendment Act 2016.
While those amendments were mainly for clarification and do not
alter the fundamental requirements of the New Regime, there are
some important amendments. For example, the requirement to have a
joint development plan will now only apply where there are
overlapping production tenures (ie. a mining lease and a petroleum
We understand that a consolidated version of the new regime
(incorporating these subsequent amendments) will not be available
until its commencement.
When will the Regulations commence?
Many aspects of the new regime rely on key detail that is to be
contained in the Regulations (such as in respect of the calculation
of compensation). Government has undergone industry consultation on
many aspects of the Regulations, however some aspects are yet to be
seen by industry.
It is understood that the Regulations will be gazetted on 23
When will the Joint Interaction Management Plan requirements
The Water Reform and Other Legislation Amendment Act 2014
contains amendments to the safety regime applicable to mining and
petroleum tenements in an overlap area between a coal mining and
CSG tenement (including exploration tenements). A key requirement
is that a Joint Interaction Management Plan be agreed (though there
is a six-month grace period).
It is expected that the amendments will commence on or about the
same time as the commencement of the new regime.
Immediate actions required to get ready for the new overlapping
Most tenement holders will have already taken steps to prepare
for the commencement of the new regime.
For those tenement holders who are subject to the new regime,
the key immediate requirements are:
Mining lease applicants who overlap ATPs
(except where the ATP was applied for after the date of the mining
lease application) will be required to give an advance notice to
the ATP holder by 12 October 2016.
Petroleum lease applicants who overlap EPCs or
MDL will be required to give a petroleum production notice
to the EPC/MDL holder by 12 October 2016.
Mining lease applicants and petroleum lease applicants
that overlap (where there is no approved co-ordination
arrangement) will be required to give each other an advance notice
and petroleum production notice (respectively) by 12 October
Agreement of a Joint Interaction Management
Plan for tenements in an overlapping area by 27 March 2017
(assuming the safety amendments commence at the same time as the
In addition, the information exchange
provisions of the new regime (which apply to require tenement
holders for an overlapping area to exchange certain information)
apply within 20 business days of the overlapping area coming into
existence (as well as at least once each year). For many tenements,
the transitional provisions deem the relevant overlap area to come
into existence on the commencement of the new regime. Parties will
need to make contact with their respective counterparts to make the
necessary arrangements for such an exchange.
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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