The key areas affected by the Common Provisions Act are the overlapping tenement and land access regimes.
The remaining provisions of the Mineral and Energy Resources (Common Provisions) Act 2014 will commence on 27 September 2016. We understand the Mineral and Energy (Common Provisions) Regulation 2016 will be gazetted on 23 September 2106.
The Common Provisions Acts makes amendments to key areas of the current resources legislation:
changes to the land access regime for resource authorities, including the restricted land regime;
a new overlapping coal and coal seam gas tenure framework (Overlapping Tenement Regime); and
standardization of provisions relating to dealings, caveats and associated agreements.
Mooted changes to the notification and objection rights for mining leases and environmental authorities have now largely been removed by the State Development and Public Works Organisation and Other Legislation Amendment Act 2015 and Mineral and Other Legislation Amendment Act 2016 (MOLA).
Some additional amendments that were included in MOLA following examination by the Committee include:
Public Notification: In addition to the current public notification obligations for mining lease applicants, applicants are required to directly notify:
the owners of land adjoining land that is the subject of the proposed mining lease; and
entities that provide infrastructure wholly or partially on the land the subject of a proposed mining lease (eg. power and telecommunication providers).
These notification provisions were originally in the Common Provisions Act in circumstances where there was no general public notification obligations. This means that the notification regime is not just back to where it was, but more onerous in relation to notification.
Restricted land: removing the definition of "residence" from section 68(3) of the Common Provisions Act, meaning the ordinary definition of the term 'residence' would then apply for the purposes of restricted land.
What to look out for
Some of the more pertinent issues to be aware of at this stage include:
the Overlapping Tenement Regime: production authority applicants (where that production authority has been applied for but not granted as at 27 September 2016) that overlap with existing exploration authority tenements will have notification obligations to fulfil within 10 business days, following commencement of the Common Provisions Act.
the land access regime: all resource authority holders who are a party to current Conduct and Compensation Agreements (CCAs) (which, for clarity, does not include mining lease holders) will have six months following commencement of the Common Provisions Act to notify the Registrar of Titles of the existence of any CCAs. This requirement, under section 227 of the Common Provisions Act, applies retrospectively, meaning all CCAs entered into prior to the commencement of the Common Provisions Act will be required to be registered;
Going forward, resource authority holders will have 28 days to notify the Registrar of Titles of the existence of a CCA (or opt-out agreement). A similar notification obligation also applies when a CCA has ended, or the land the subject of the CCA is subdivided such that the agreement no longer applies to a new lot.
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. Persons listed may not be admitted in all states and territories.
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