23/02/2022

Partners Michael Blakiston, Marshall McKenna, Claire Boyd and special counsel Christopher Marchesi authored the Chambers and Partners Global Practice Guide: Mining 2022. This publication explores every aspect of Mining Law, including the general framework of the mining industry and its legal system, the all-important impact of environmental protection and community relations and the impact of climate change and sustainable development on mining. It also details the critical details of taxation on mining and exploration and how to approach investment and finance from both domestic and foreign investment perspectives. Gilbert + Tobin has provided this step by step guide to investment in mining and also takes a look at forecast trends for the mining sector going forward.

Chapters: 


Mining Law: General framework

Main Features of the Mining Industry

The mining industry in Australia is governed under state legislation. Although there is broad similarity among state and territory laws, there can be important differences between jurisdictions.

However, the following apply in all cases.

  • Practically all the mineral resources are reserved to and vested in the states.
  • The right to mine state-owned minerals is governed by the grant of mining rights under legislation. The relevant minister has some discretion during the grant process, but limited influence after grant, except in the case of default.
  • Mining rights are a form of property (although likely not an interest in land) and can be sold, secured and surrendered.
  • Mining is subject to environmental and other approvals, which can impose significant operational and rehabilitation liabilities throughout the life of the project and upon mine closure.

While mining of private minerals occurs, private ownership of minerals generally only occurs in relation to grants made prior to 1900.

Contracts can be entered into between proponent and state for the exploitation of minerals but are generally only enforceable if ratified by the legislature of the relevant jurisdiction.

External investment in mineral projects is broadly welcomed in Australia, but “foreign” investment must be formally approved in certain circumstances.

Taxes and other imposts are payable in relation to mining operations.

The key legal developments affecting the energy and resources industry in Australia are expected to include the following:

  • obtaining approvals for certain projects following the potential recognition of State decision-makers’ duty of care to avoid climate change harms;
  • an increased emphasis on the interaction of mining and environmental legislation, particularly in the context of climate change;
  • an increased focus on corporate regulation, including greenwashing, net zero commitments and climate-related financial and other risk disclosure;
  • increased litigation from the private and public sector in relation to the above and the corporate social licence to operate;
  • greater recognition of the rights and interests of Indigenous traditional owners, particularly in relation to heritage protection; and
  • the regulatory approach to rehabilitation and mine closure.

Legal System and Sources of Mining Law

Australia is a federation that was formed in 1901 with six states (New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania), two territories (Northern Territory and Australian Capital Territory) and several small external territories. Australia inherited its Westminster parliamentary model of government and its court system from England, and is an English common law jurisdiction.

Australia has three levels of government: federal, state/territory and local. Foreign companies doing business in Australia must comply with laws made by all three levels of government. A business operating in several states and territories also needs to be aware that laws can differ across jurisdictions.

Mining is mainly regulated by state laws (although some federal and local laws apply to mining projects).

Ownership of Mineral Resources

Upon European settlement in Australia, English common law principles applied to grants of land by the Crown, so private landowners held the rights to minerals in that land, but “Royal Metals” (ie, gold, silver and other precious metals) were excluded and reserved to the Crown.

Subsequently, all minerals in ungranted land have vested in their relevant states, except privately vested minerals subject to freehold grants made prior to the vesting legislation. Typically, that occurred prior to 1900, but it varies between states.

Role of the State in Mining Law and Regulations

Each state is the owner of the minerals and the grantor and regulator of mining titles within its jurisdiction, but state governments do not directly own or operate mining projects.

Usually, the relevant state grants rights to explore or mine on the basis of a ground rental and a royalty on recovered metals.

Nature of Mineral Rights

The Australian Constitution vests limited powers in the Commonwealth, not including the granting or regulation of mining rights.

State and territory governments hold the power to grant and regulate mining rights within their states or territories. However, the exercise of the power of grant is itself regulated by legislation, and administrative action in accordance with that legislation is subject to the rule of law.

Mineral rights in Australia are proprietary in nature and may be the subject of formal limitations on transfer, including the need to record or register such transactions in writing. The transfer of such interests may be subject to duty and taxes.

Granting of Mineral Rights

Mining rights are granted by the relevant state under state laws. Unlike petroleum resources, there is no process of unitisation of mineral resources that straddle state boundaries – a miner needs to secure mining rights in each relevant jurisdiction.

Legislation determines the process of application and the person authorised to make the grant. Generally, senior departmental officers are authorised to grant certain types of exploration rights and minor infrastructure rights, but authority to grant mining and significant infrastructure rights is reserved to the minister.

Some significant mineral developments are established under contracts between a state and a proponent. Generally, these are only effective once they have been ratified by the relevant state legislature.

There has been litigation across Australia recently that seeks to establish the recognition of a duty of care on decision-makers to avoid foreseeable harm (such as climate-related damage) for future generations. Some attempts have been successful, although the issue is yet to reach finality in Australia’s superior courts. Relevant government policies are generally in line with the duty, and as such rejection of certain projects has been upheld due to the decisions’ consistency with existing and known policies.

Mining: Security of Tenure

Once granted, tenure for mineral rights is secure, subject to compliance with the relevant legislative framework. The specific mineral rights and length of tenure vary from state to state, but generally:

  • mineral rights cannot be granted over an area that is already the subject of a grant of mineral rights, although other activities – including for agricultural or pastoral purposes, infrastructure projects, petroleum rights, rights to geothermal energy and Indigenous rights (albeit not to minerals) – may often co-exist with a grant of mineral rights;
  • exploration rights carry a shorter term than mining rights, do not allow commercial extraction of materials, and carry a positive obligation to undertake exploration activities;
  • mining rights are granted for a term of 21 years, with a right to renew for a further 21 years; further grants tend to be at the discretion of the minister (so proponents that see longer-term security often enter into contracts with the State, ratified by the legislature); and
  • exploration rights-holders are typically entitled to apply for a mining right over that land, subject to compliance with the relevant legislation (which in some cases requires “proof” of mineralisation or an intention to engage in productive mining within a known timeframe).

Generally, compliance with the terms of the grant of mineral rights (including any minimum annual expenditure on exploration or mining) is all that is required to maintain the rights for the prescribed term. There is no scope for arbitrary cancellation or deprivation of mining rights following grant. There is scope in some jurisdictions for ministerial discretion to refuse grant, but that power is used sparingly and usually only for reasons in the “public interest”.

Mineral rights can be transferred, subject to ministerial approval in most jurisdictions. This is usually an uncontroversial administrative step, but there have been limited instances of restrictions being imposed on transfer. For example, the Queensland government required certain guarantees from the transferor of the Blair Athol coal mine to a much smaller operator to secure end of mine life obligations.

The transfer of mineral rights may be the subject of duty and taxes.


Impact of environmental protection and community relations on mining projects

Environmental Protection and Licensing of Mining Projects

In Australia, environmental, planning and climate change laws are principally regulated through state and territory legislation, which is generally divided into two main categories:

  • environmental protection laws (including management of contaminated land, protection of threatened species, water rights, pollution and waste disposal, protection of Aboriginal and European heritage and native title rights); and
  • planning laws (regulating land use and development).

The environment and climate change are also regulated at the federal level. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) regulates a development that is likely to have a significant impact on “matters of national environmental significance”, via an additional approval pathway. For example, a proposed development that is likely to have a significant impact on a nationally listed threatened species and/or ecological community will require approval from the federal government, as well as approvals at state or territory level.

In recent years, there has been a growing trend of both state and federal governments introducing complex pieces of legislation, policies and mechanisms, including increases to penalties, to regulate industry sectors and activities that have potential to adversely affect the environment.

Notably, the federal government has proposed amendments to the assessment process for projects that may have a significant impact on matters of national environmental significance. The amendments seek to streamline the assessment and approval process, as well as devolve substantial decision-making responsibility to states.

Furthermore, there has been an increased focus on mine rehabilitation and closure, driven by the failure of several projects before the end of life of the mine, and by some multigenerational projects beginning to approach the end-of-life phase.

Impact of Environmentally Protected Areas on Mining

There are environmentally protected areas in Australia, but the primary impact on development is operational, since projects must be undertaken in accordance with all relevant environmental approvals.

Areas of environmental sensitivity can be protected under state and federal legislation. Several such areas are subject to specific protections.

All significant developments (including mining) are subject to an environmental impact assessment to determine whether they will have a “major” impact on the environment and, if so, whether and under what conditions the development can proceed. The impact on aspects of the social environment (including communities and First Peoples) can be relevant in addition to any impact on landscape, flora and fauna.

All mining rights are subject to the primacy of environmental laws. Mining projects cannot proceed without environmental assessment and, if necessary, environmental approvals. It is possible, albeit rare, for approvals to be withheld in their entirety.

In most states it is unlawful to emit substances without approval. Substances that require environmental approvals can include greater than “background” quantities of otherwise innocuous substances, including water (whether or not it is contaminated).

Operating without approvals, or non-compliance with granted approvals, can result in monetary penalties (for the company and/or its responsible officers), prosecution or direction from government to cease operations. Environmental non-compliance does not usually result in forfeiture of the mining rights in question.

Impact of Community Relations on Mining Projects

There is no specific legislation that requires community engagement. However, communities have an important role as stakeholders in several approval processes, including in securing environmental and planning approvals.

Accordingly, recognised best practice for mining proponents is to be significantly engaged with communities before and during approval processes, and throughout the life of the relevant project. Practically, this engagement with the local community is critical to securing a “social licence” to operate, the absence of which may encourage and attract disruptive activists.

Prior and Informed Consultation on Mining Projects

Prior and informed community consultation is not mandatory, but is generally considered prudent. While there is no requirement that such

consultation be “prior and informed”, there are good practical reasons to ensure that it is. Likewise, there is no obligation to secure consent (either at all, or on a “free, prior and informed” basis), although consent can help facilitate favourable and quick environmental approvals.

Impact of Specially Protected Communities on Mining Projects

Native title describes the rights and interests of Indigenous Aboriginal and Torres Strait Islander people in land under their traditional laws and customs. Native title matters in Australia are governed by the Native Title Act 1993 (Cth) (as amended) (NTA). Some states have also introduced complementary legislation dealing with certain aspects of native title.

Where a person proposes to do something that affects native title over land that is subject to a registered native title claim or determined native title rights or interests, any native title claimants or holders must be notified. This notification triggers certain processes under the NTA, including the following.

  • The “right to negotiate” process, which requires the state and the proponent to negotiate in good faith with the claimants or holders to obtain their agreement to the proposal. The “right to negotiate” process generally results in either the execution of an Indigenous Land Use Agreement between the parties, which is then registered and has the effect of law, or the execution of a land access agreement, which is an unregistered agreement. Failing agreement, the matter can be referred to the National Native Title Tribunal for determination.
  • An expedited process, which can apply where the proposed development will have a minimal impact on the land.
  • A notification and consultation process, where the rights to be granted to a proponent relate to infrastructure.

If a grant of an interest in land is made without the appropriate process under the NTA being followed, this can invalidate that grant to the extent that the rights purportedly granted to the proponent are inconsistent with the continued existence or enjoyment of any native title rights in the subject land.

Separately, the protection of sites and items of significance to Indigenous people falls under various state and Commonwealth laws. Negotiations about Indigenous heritage are often conducted contemporaneously with the negotiation of native title issues. The consent of the relevant government minister may be required if activities on the land could damage Aboriginal heritage sites or items of significance to Aboriginal people.

Compensation

The NTA also specifies the procedures by which people determined to hold native title can claim compensation for the impact of developments on their native title rights. Compensation is payable by the Crown in the first instance but, depending on the circumstances, the Crown might have a right of recovery against a titleholder.

Compensation may also be payable by a person as a result of agreements made pursuant to the “right to negotiate” or other grant process, and may be set off against any compensation payable to the native title party or to the Crown.

Enhanced Protection

Many states and territories are considering, or have implemented, enhanced Indigenous heritage protection laws, which provide more power to First Nations people in respect of activities affecting sites of significance. It is also expected

that traditional owners, and negotiations with native titleholders in general, will take a more central role in the negotiation of land use agreements, particularly given the extent of determinations of native title and that clean energy projects require significant tracts of land and are, theoretically, indefinite in duration.

Community Development Agreement for Mining Projects

Subject to the comment under 2.5 Impact of Specially Protected Communities on Mining Projects in relation to native title claimants, community development agreements are not usual. Even in the case of native title claimants, it is not mandatory to enter into a community development agreement.

It is recognised that best practice includes engagement by a project proponent with the local community, including Indigenous communities, to ensure that they are fully informed of the project, and are able to formulate reasonable and articulate positions in relation to it. Otherwise, a project proponent risks dealing with negative community perception and poorly informed objections that could delay approvals.

Environmental, Social and Governance (ESG) Guidelines and Regulations

There are no federal or state ESG guidelines or regulations as such. However, the mining industry is under pressure from investors and shareholders to demonstrate a continued social licence to operate. While investors remain primarily influenced by commodity and equity prices, they are increasingly assessing how they deploy capital based on ESG measures, using frameworks and standards such as ICMM Mining Principles, Global Reporting Initiatives or the Equator Principles, in conjunction with the United Nation’s Sustainable Development Goals.

The Equator Principles offer a robust framework for the identification, assessment and management of ESG risk on major projects. The principles are wide-ranging, and their suggestion that ESG principles should be incorporated into lending covenants may provide a powerful incentive for corporate behaviour. Similarly, the Global Reporting Initiative provides a framework under which entities can report on their adherence to ESG principles. The lack of an agreed global ESG standard for mining remains a significant impediment to sector-wide progress.

The COVID-19 pandemic appears to have catalysed increased action on ESG issues. Some investors now focus on ESG measures in addition to the traditional focus on capital return.

The Modern Slavery Act 2018 (Cth) passed into law on 29 November 2018 established a national Modern Slavery Reporting Requirement that seeks to uncover the impact of large organisations on modern slavery both in Australia and abroad. The risk of modern slavery in large organisations in Australia and abroad was heightened during the COVID-19 pandemic, during which companies were forced to cut costs and overseas visits to perform due diligence on site conditions was limited. The Modern Slavery Act requires entities based or operating in Australia that have an annual consolidated revenue of at least AUD100 million over a 12-month period to report on their organisation’s modern slavery risks. The term “modern slavery” is defined in the new regime as conduct that amounts to serious exploitation.

Impact of the Demolition of the Juukan Gorge Site by Rio Tinto

The community reaction to the demolition of the Juukan Gorge site by Rio Tinto in Western Australia, despite its sacred nature to the site’s traditional owners, suggests that the relevant legislative framework may not yet reflect current community expectations. This could prove a “watershed moment” that significantly impacts how the industry relates to Aboriginal and Torres Strait Islander peoples and protects heritage and cultural sites.

The interim report of the federal parliamentary inquiry into the Juukan Gorge demolition, released on 9 December 2020, recommended that Rio Tinto rehabilitate the site, that all actions under Section 18 of the Aboriginal Heritage Act 1972 (WA) be put on hold, that a voluntary moratorium be placed on Section 18 applications, and that an urgent review of the Aboriginal and Torres Strait Island Heritage Protection Act 1984 (Cth) be undertaken.

The Western Australian government has since released its proposed amendments to the Aboriginal Heritage Act 1972 (WA), which would dispense with all future Section 18 approvals and provides an end date for current Section 18 approvals, as well as providing for a new tiered approvals system depending on the extent of damage to Aboriginal heritage. However, the amendments do not provide a right of appeal or veto right for Aboriginal and Torres Strait Islander people. The federal government has also been urged to review its legislative framework.

Onus on the Mining Sector to Address Lasting Effects of the Pandemic

The longer-term effects of the COVID-19 pandemic may exacerbate issues of wealth inequality and Indigenous disadvantages, resulting in a greater onus on the mining sector to promote employment and other opportunities for local communities.

Good and Bad Examples of Community Relations/Consultation Impacting Mining Projects

It is difficult to identify any project that has a completely full and productive community engagement, or one that is uniformly bad. Moreover, one can have a negative engagement despite attempts to engage appropriately.

An example of successful community engagement is the “Super-pit” mine in Western Australia. The operations of the Kalgoorlie Consolidated Gold Mines are located within the town boundaries of Kalgoorlie and the operations (including blasting) are carried on despite the proximity to residential and industrial areas. Similarly, the Greenbushes Lithium Mine operated by Talison Australia has been a mainstay of the community economy for more than 100 years and manages environmental issues despite mining operations being within the boundaries of a state forest (being an area reserved for forest preservation).

The Carmichael coal mine in Queensland is a project that has faced persistent opposition from a range of community stakeholders and lengthy delays. Adani Australia received final approval to proceed with the project in June 2019, but community opposition remains.


Impact of climate change and sustainable development on mining 

Effects

The Australian government has introduced a range of programmes and policies that are designed to support action on climate change. Most of these programmes and policies presently have limited impacts on the mining industry.

Australia’s current key climate change policies are as follows.

  • Emissions Reduction Fund (ERF) – a voluntary scheme that provides economic incentives for approved emissions reduction activities, by incentivising the reduction of emissions to earn Australian Carbon Credit Units (ACCUs). The government utilises the fund to purchase ACCUs generated by emissions reduction activities through a reverse auction system.
  • Safeguard Mechanism – this forms part of the ERF, and ensures that ACCUs purchased by government are not offset by significant increases in emissions above business-as-usual levels. The safeguard mechanism provides a framework for Australia’s largest emitters to measure, report and manage their emissions by encouraging large facilities whose net emissions exceed the safeguard threshold to keep their emissions at or below emissions baselines set by the Clean Energy Regulator. If such a facility exceeds its emissions baseline, it is required to purchase and surrender ACCUs to offset that excess.
  • Renewable Energy Target – this provides a financial incentive for investment in renewable energy, with the statutory objective of delivering 33,000 GW hours of additional electricity supply from renewable sources until the scheme ends in 2030. These policies offer incentives for the mining industry to reduce greenhouse gas emissions, rather than penalising the industry for increases in emissions.

There are examples of mining companies “selling” emissions reduction through the ERF processes under which the relevant regulator conducts purchasing processes to select eligible proponents of registered projects from which eligible emissions reductions will be purchased (in the form of ACCUs). Generally, the regulator purchases ACCUs by conducting reverse auctions and at the lowest available cost. However, the regulator is also able to purchase ACCUs through other purchasing processes, such as a tender.

Following a purchasing process, the regulator will enter into a standardised contract with a successful seller for the purchase of carbon abatement.

The government’s total investment in the ERF in 2020 stood at AUD4.55 billion and the fund now forms part of the AUD2 billion Climate Solutions Fund. ACCUs can also be purchased and surrendered by facilities that exceed their emissions baseline set under the Safeguard Mechanism.

There is scope for the mining industry’s participation in the ERF to increase.

Last year, the government also received expressions of interest from potential developers of an Australian exchange-traded market for emissions offsets, set to become operational in mid-2023.

Climate Change Legislation and Proposals Related to Mining

There is a growing expectation of a surge in demand for ACCUs resulting from ESG concerns, increasing net-zero commitments from industry and pressure on corporates to reduce or otherwise offset greenhouse gas emissions.

There is no current or proposed climate change legislation specific to mining in any Australian jurisdiction.

Climate change might be a relevant merit consideration under the existing environmental approval mechanisms. Environmental approvals have been refused in relation to Gloucester Resources’ “Rocky Hill” proposed coal mine, and there is concern that this approach might become more widespread.

While there is no specific climate change legislation, opportunities for developing climate-friendly projects are increasing, with the passing of legislation at federal and state government level aimed at the development and expansion of clean and renewable energy projects. There is a particular political and commercial focus on hydrogen production in this space, given Australia’s vast land mass and abundant sun and wind resources.

Sustainable Development Initiatives Related to Mining

The federal government has a target to deliver 33,000 GW hours of additional electricity supply annually through renewable energy by 2020. This target was set in 2015 with the target remaining consistent from 2021, which suggests a revised target may be near.

The Clean Energy Regulator administers the following two relevant schemes.

  • The large-scale renewable energy target, which relates to investment in generating renewable energy. This target, which is enshrined in legislation, is intended to deliver the majority of the increase in renewable energy by 2020; after which, no further increase is currently targeted.
  • The small-scale renewable energy target, which relates to household renewable energy and other smaller sources, such as hot water systems powered by solar energy.

Both large-scale power stations and small-scale systems are eligible for certificates for every megawatt of renewable power that they generate. These certificates are typically sold to wholesale purchasers of electricity to meet prescribed renewable energy obligations.

There are also secondary markets for these certificates for entities such as financial institutions and other companies that purchase the certificates to partially or fully offset their emissions (to achieve “carbon neutral” status), but, more typically, ACCUs are purchased voluntarily by organisations to achieve a “carbon neutral” status, as opposed to the purchasing of large-scale generation certificates.

Recently, there have been instances of mining companies constructing large-scale renewable power stations to supply power to mining projects (solar panels are common, given the abundance of sunlight throughout much of Australia).

Other federal programmes that support sustainable development include:

  • the Clean Energy Innovation Fund;
  • the Carbon Neutral Programme;
  • the National Low Emissions Coal Initiative;
  • the Solar Communities Programme;
  • the Equipment Energy Efficiency (E3) Programme;
  • support for low emissions and carbon capture and storage; and
  • the National Landcare Programme.

These regulatory measures are under constant review and scrutiny from policymakers and are subject to change. Changes in government regulations in Australia that increase restrictions over the use of land for mining could affect the time and costs associated with obtaining approvals.


Taxation on mining and exploration

Mining and Exploration Duties, Royalties and Taxes

The Australian tax system is one of the most complex in the world. The significant taxes that may affect an exploration or mining project are described briefly below, while 4.3 Transfer Tax and Capital Gains on the Sale of Mining Projects describes the transfer taxes that are applicable

Income Tax

Income tax is imposed on the taxable income of entities that are required to pay tax. These entities generally include individuals, companies and limited partnerships (except certain venture capital limited partnerships), but not general partnerships or unincorporated joint ventures. Despite its name, taxable income is broadly the accounting profits of the taxpayer subject to various modifications required by the tax law.

Income tax rate

The 2021–22 income tax rate for companies is 30%, although companies that have less than AUD50 million of “aggregated turnover” (which includes the turnover of affiliated and connected entities) and derive no more than 80% of their income in passive forms are taxed at 25%.

Mining Royalties

Royalties are generally payable under mining legislation in all states and territories in respect of minerals derived from that state or territory. Royalty rates and calculation methods differ between states and territories and between different commodities, but royalties are commonly calculated based on revenue or a value that uses a published indexed price.

Non-resident Withholding Taxes

Australia imposes dividend (30%), royalty (30%) and interest (10%) withholding taxes on payments to non-residents. The withholding tax rates may be reduced under a double taxation agreement, if applicable, or as a consequence of exceptions under the domestic law.

Dividends that are “franked” (ie, paid from after-tax profits) or that represent income derived from foreign business operations (ie, conduit foreign income) are generally not subject to withholding. A reduced withholding tax rate of 15% applies to certain trust distributions (ie, fund payments) made by qualifying managed investment trusts or attribution managed investment trusts (withholding MITs) to residents of information exchange countries, or 30% to residents of countries that are not information exchange countries. This rate is reduced to 10% where the withholding MIT holds interests in certain energy-efficient buildings. Fund payments exclude distributions of dividends, interest and royalties (which are subject to the standard withholding regime).

An interest withholding tax exemption may also apply to interest paid in respect of certain publicly offered debt.

Natural Resource Payments

Withholding tax is imposed on payments made to foreign residents that are based on the value or quantity of a natural resource produced or recovered in Australia. The entity will be advised by the Commissioner of Taxation of the amount to be withheld.

Construction and Related Activities Payments

An entity that carries on an enterprise must withhold an amount on payments made under construction contracts or for related activities to a foreign resident, an entity that the payer believes is a foreign resident, or an entity that the payer has no reasonable grounds to believe is an Australian resident. Construction works include mine site development, natural gas field development and natural resource infrastructure. The imposition of withholding tax extends to construction-related activities such as the administration, assembly, commissioning and operation of facilities; engineering; installation; project management; site management; the supervision and provision of personnel; and the supply of plant and equipment.

Mining Payments

Australia imposes a mining withholding tax on mining payments made to Indigenous people or groups relating to the use of Indigenous land for mining and exploration purposes. Broadly, a mining payment is a payment made in consideration for the issuing, granting or renewal of mining rights in respect of Indigenous land, or the granting of permission to enter or remain on Indigenous land in relation to mining or exploration purposes, or by way of royalties in respect of the mining of minerals on Indigenous land. The current rate of mining withholding tax is 4%.

Tax Incentives for Mining Investors and Projects

Several tax incentives may be applicable for mining investors and projects.

State Agreements

In some states and territories, an agreement with the relevant state or territory may be made in respect of significant mining projects that include royalty concessions, stabilisation provisions or reduced administrative requirements. These agreements are passed as state or territory law.

Capital Gains Tax Exemption for Non-residents

Capital gains tax (CGT) is the income tax that applies to gains or losses calculated under the CGT rules in respect of “CGT events” (ie, disposals and certain other events).

Non-residents are generally not subject to CGT, except where the gain relates to Australian real property or certain mining, quarrying or prospecting rights. Non-residents are also not subject to CGT on the disposal of shares in a company (that are held on capital account), unless the non-resident holds a 10% or more membership interest in the Australian company whose underlying value is principally derived from Australian real property or certain mining, quarrying or prospecting rights.

Purchasers of Australian real property, certain mining, quarrying or prospecting rights, or shares in an Australian company whose underlying value is principally derived from Australian real property or certain mining, quarrying or prospecting rights are required to withhold 12.5% from the payment of consideration to foreign resident sellers and pay this amount to the Australian Taxation Office (subject to certain exclusions and exemptions). This amount is usually collected by way of a deduction from the consideration otherwise payable.

Managed Investment Trusts Regime

Subject to integrity rules, fund payments made to non-residents who hold interests in a qualifying withholding MIT are subject to a final withholding tax of 15% or 30%, depending on whether the payment is made to a resident of a country that has an exchange of information agreement with Australia (or 10% where the withholding MIT holds an interest in certain energy-efficient buildings).

Conduit Foreign Income Rules

Subject to integrity rules, no Australian withholding tax is payable in respect of certain foreign-sourced income that is ultimately received by a non-resident through one or more interposed Australian corporate tax entities.

Research and Development (R&D) Tax Incentive

Australia provides an incentive programme for entities incurring eligible expenditure on R&D activities. Depending on the size of a business, claimants under the R&D programme may be eligible for one of the following incentives:

  • for small businesses (less than AUD20 million aggregated turnover) – a 43.5% refundable tax offset; or
  • for other businesses – a 38.5% non-refundable tax offset for eligible expenditure below AUD100 million and 30% for eligible expenditure over AUD100 million.

Significant changes to the R&D incentive programme have been enacted, and apply from the first income year commencing on or after 1 July 2021. Companies with an annual aggregated turnover of less than AUD20 million may access a refundable offset of 18.5% above the claimant’s corporate tax rate, which is currently 25%, providing a 43.5% refundable tax offset. The changes also include the introduction of an “incremental intensity threshold” that increases or decreases the non-refundable tax offset available to companies with an annual aggregated turnover of AUD20 million or more based on the proportion of their eligible R&D expenditure as a percentage of total business expenditure.

Transfer Tax and Capital Gains on the Sale of Mining Projects

Capital Gains Tax

The sale of a mining project will constitute a CGT event for Australian CGT purposes.

Resident individuals are typically entitled to a discount of 50% and complying superannuation funds to a discount of 33⅓% on capital gains in respect of CGT assets held for at least 12 months before the time of the CGT event.

Non-residents are generally not subject to CGT, except where the gain relates to Australian real property or certain mining, quarrying or prospecting rights. Purchasers of Australian real property or certain mining, quarrying or prospecting rights are required to withhold 12.5% from the payment of consideration to foreign resident sellers and pay this amount to the Australian Taxation Office (subject to certain exclusions and exemptions).

Stamp Duty

Stamp duty is levied by each state and territory government and applies to a range of transactions. The purchaser or transferee is generally liable to pay the duty (however, this may vary in certain states, depending on the transaction).

Stamp duty is payable on a “dutiable transaction” (including transfers of land), unless an exemption or concession applies. All states and territories provide various exemptions and concessions (for instance, the “farm-in agreement” concession).

The liability for duty usually arises when the sale or transfer occurs. However, if the sale or transfer is effected by a written contract, liability arises when the instrument is first executed, which is generally taken to be when counterparts of contracts are exchanged.

A liability for duty will also arise when a “significant interest” is acquired in a company or trust that holds land over a certain land holding value in a particular state or territory. All states and territories impose different threshold land holding values. Also, the acquisition threshold varies depending on the type of company and/or trust. For instance, listed companies have an acquisition threshold of 90% whereas, in most states, unit trusts require only a 50% interest. Queensland imposes trust acquisition duty for any trust interest acquisition and surrender where the trust directly or indirectly holds any dutiable property.

Each state and territory imposes various rates of duty, including additional duty on foreign persons (the definition of which varies between states and territories) as well as time limits for the lodgement and payment of duty.

Goods and Services Tax (GST)

GST is charged on the supply of goods and services in Australia and on goods that are imported into Australia. It also extends beyond goods and services to other kinds of transactions, including dealings in real estate and other kinds of property and rights.

Most transactions involve GST, but only as a temporary cost. Generally, when an entity incurs an expense that includes GST, it has the potential to claim the GST component in an entity’s Business Activity Statement.

GST is imposed on “taxable supplies”. The entity making the supply is liable to pay the GST. It is standard market practice for the supplier to contractually pass on its GST liability to the recipient of the supply pursuant to a GST gross-up provision. The amount of GST is 10% of the value of the supply.


Mining investment and finance 

Attracting Investment for Mining

The key features of Australian jurisdictions from a legal perspective that are attractive for mining investment include the following:

  • stable rule of law and low sovereign risk;
  • clear and known pathways for the grant of mining tenure;
  • the inability of the state to deprive a proponent of a project tenure without cause (usually limited to a serious breach of the mining conditions applicable to that mining tenure);
  • the existence of environmental and other approval legislation that has:
      1. clear and known criteria for imposition of conditions; and
      2. generally, a co-operative approach to project approval, balancing environmental issues with development; and
  • a clear and known cost base, in relation to royalties, duty and tax issues.

Political stability and domestic security are non-legal issues that contribute to Australia being a favourable investment jurisdiction.

Foreign Investment Restrictions and Approvals in the Exploration and Mining Sectors

Australia generally welcomes foreign investment. The Australian government screens foreign investment proposals on a case-by-case basis to determine whether a proposal is contrary to the national interest. The Treasurer may review proposals that involve “significant actions” and has the power to make orders if the action is deemed contrary to the national interest. Notifying a significant action and obtaining a notice of no objection cuts off this power. A “notifiable action” is a subset of significant actions that must be notified to the Treasurer. Failure to notify is an offence under Australian law.

The kinds of proposals examined include business investments across all economic sectors, and investment in land, subject to certain materiality thresholds and specific exemptions. Greater scrutiny is applied to proposals relating to transactions involving “critical minerals”. More information regarding Australia’s critical minerals policy (including a list of “critical minerals”) can be found at the Commonwealth Department of Industry, Science, Energy and Resources’ website.

Offshore proposals can be captured, so it is important to consider Australian regulatory requirements whenever a target has an Australian connection.

Key Laws and Regulations

The main laws that regulate foreign investment in Australia are the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) and the Foreign Acquisition and Takeovers Regulation 2015 (Cth) (FATR). Together these give the Australian Treasurer the power to review foreign investment proposals that meet certain criteria and block them or to apply conditions to their implementation, to ensure they are not contrary to the national interest.

In addition to the return of monetary thresholds to normal (having been reduced to AUD0 in response to the COVID-19 pandemic), long-awaited changes to Australia’s foreign investment rules came into effect on 1 January 2021. Key amongst those changes was the introduction of another head of approval, called a “notifiable national security action”. Broadly speaking, a notifiable national security action involves acquisitions of interests in national security businesses or national security land by foreign persons and these actions must be notified to the Treasurer (failure to do so is an offence).

What constitutes a national security business is expected to expand now the Security Legislation Amendment (Critical Infrastructure) Act 2021 (Cth) has come into effect and may have implications for the mining sector. Businesses that hold critical infrastructure assets – which will include certain assets in the electricity, freight, infrastructure, gas, fuel and energy sectors – may be considered “national security” businesses under Australia’s foreign investment rules.

Another key change is that the Treasurer has new “call-in” powers, which give him the ability, unilaterally, to review:

  • a significant action that is not a notifiable action and that was not notified, or notifiable national security action; and
  • a new category of actions called “reviewable national security actions” (not to be confused with “notifiable national security actions” described above), which is a category of transactions that are not otherwise caught by the legislation.

The Treasurer may review these if he considers that the action may pose a national security concern. If the action is determined to be contrary to national security, the Treasurer can make the usual array of orders in relation to the action. Obviously, a party can choose to notify a significant action, and a party can also choose to notify these new “reviewable national security actions”, if they have some doubt about whether their transaction would have a national security impact, in order to cut off this power. The time limit on the availability of the Treasurer’s call-in power is ten years from when the action is taken.

More stringent rules and restrictions apply to “foreign government investors”; these include entities in which a foreign government holds an interest of over 20%.

Some relevant concepts in the FATA as they relate to the mining sector are described below.

Mining or Production Tenement

A mining or production tenement is Australian land for the purpose of the foreign investment framework. A mining or production tenement includes:

  • a right under a law of the Commonwealth, a state or territory to recover minerals, oil or gas in Australia or from the offshore area (other than a right to recover minerals, oil or gas for the purposes of prospecting or exploring for minerals, oil or gas);
  • a right preserving such right;
  • a lease under which the lessee has such right; or
  • an interest in such right or lease.

All acquisitions of interests in a mining or production tenement by foreign persons are both notifiable and significant actions under the FATA regardless of value, other than direct acquisitions from the Australian government or acquisitions by relevant agreement country investors (including Chilean, New Zealand and United States investors) that have a higher threshold.

The “acquisition of an interest” is a broad concept under the FATA and can include interests acquired by taking security over mining or production tenements.

Exploration or Prospecting Tenements

An exploration tenement is a right to recover minerals, oil or gas in Australia from land or the seabed for the purpose of prospecting or exploring such minerals, oil or gas. Generally, it will be for a set period and will allow for activities including sampling, testing, drilling, surveys and prospecting.

There was previously ambiguity as to the application of the FATA framework to exploration tenements. As discussed above, the reforms introduced in January 2021 exempt exploration tenements from review.

Australian Land Corporations

Acquisitions of securities in Australian land corporations may also be notifiable where the value of the company’s interests in Australian land (including mining or production tenements) exceeds 50% of the value of its total assets, subject to the applicable monetary thresholds.

Agreement with the Holder of a Tenement

Entering into or terminating a significant agreement with the holder of a mining or production tenement is a significant action where the total value of the business exceeds the threshold and the action results in a change of control. Significant agreements include those relating to the right to use or lease assets, or to participate in profits or management and control of the business.

International Treaties Related to Exploration and Mining

Trans-Pacific Partnership

On 31 October 2018, Australia ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), which is a regional free trade agreement negotiated between 11 economies, being Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. The TPP-11 has been ratified by the other signatories (except Brunei, Malaysia and Peru), meaning that these signatory countries are now “agreement countries” for the purposes of the foreign investment framework. Higher monetary thresholds apply to private foreign investors from those countries in non-sensitive sectors.

Double Tax Agreements (DTAs)

Generally, resident entities are assessed on their worldwide income, while non-resident entities are only taxed on income derived from Australian sources. Australia has a highly developed network of double taxation agreements, the main function of which is to avoid the double taxation of income for enterprises.

Sources of Finance for Exploration, Development and Mining

The main sources of finance for exploration, development or mining projects in Australia are:

  • financial institutions, both Australian and overseas, and both bank and non-bank institutions; and
  • public finance, through capital raising on securities markets.

The key lending institutions in the Australian financial system consist of commercial banks, retail banks and investment banks (including branches and subsidiaries of foreign banks), and some non-bank financial institutions.

There is some concern as to how the recently observed increase in regulation will affect the risk appetite for institutional investors. It is also becoming increasingly difficult for coal miners, in particular, to attract finance from traditional sources, as financial institutions set their own ESG and climate change targets.

Role of Domestic and International Securities Markets in the Financing of Exploration, Development and Mining

The Australian Securities Exchange is the main domestic securities market and represents a major source of financing for exploration, development and mining in Australia. Australian projects are financed through international securities markets such as London and Toronto to a lesser degree, but such financing still represents a significant option for projects in Australia.

Statements made by the Australian Securities & Investments Commission (ASIC), the corporate regulator, and Australian Prudential Regulation Authority (APRA), the financial regulator – along with the establishment of the International Sustainability Standards Board (ISSB), the green sibling of the International Accounting Standards Board (IASB) – suggest Australia is likely to see the imminent imposition of enhanced climate change disclosure requirements, which will bring climate risks to the forefront in company disclosure documents and financial products.

Security over Mining Tenements and Related Assets

Securities over mining tenements and assets are generally granted in favour of financiers of exploration, development and mining projects in Australia. Mortgages may be registered against mining tenements. Mining assets are usually the subject of fixed and floating charges. Granting security over mining or production tenements in favour of a foreign person may be a significant action and therefore notifiable under the FATA.

There is a complex structure for the registration of securities over chattels under the Personal Property Securities Act 2009 (Cth); according to which, unregistered security interests may not be enforceable.


Mining outlook and trends

Two-Year Forecast for the Mining Sector

The outlook for the mining sector remains strong in Australia, as a location from which to undertake mining and to fund mining in other jurisdictions. Significant secondary processing proposals are also currently being implemented, which are beginning to reposition Australia away from being solely a primary producer.

Impact of the COVID-19 Pandemic

The COVID-19 pandemic has profoundly impacted Australia’s economy, but the economic impact appears to have been well managed through extensive engagement and co-operation between industry and state and federal governments. Mining was identified as an essential service, which helped the industry remain productive throughout the pandemic. Some governments used the pandemic as an opportunity to introduce streamlined approvals processes to encourage greater efficiency in the resources sectors.

Commodity prices have remained relatively high, with an increasing demand for “battery minerals” (including lithium, nickel, cobalt and copper), albeit with some volatility. Mining companies proved their adaptability and drew on their experience in crisis planning and management to minimise disruption to operations, and to monitor and manage the health of their employees.

The easing of COVID-19 restrictions has allowed parts of Australia’s economy to reopen. The industry must now adapt and grow in the “new normal” environment. As restrictions are lifted, companies may see the benefit of greater operational flexibility, but there is no clear timeframe for the reopening of interstate borders and, while international borders have reopened, restrictions such as quarantine remain a possibility, thereby restricting the availability of overseas talent and risking a skills shortage. Australian companies with operations in other jurisdictions will continue to face challenges in managing their assets due to access restrictions.

As before, the effectiveness of any vaccines against new variants and the speed of vaccine and booster roll-outs will determine the nature of any recovery. The economic outlook may also be affected by disruptions if global trade protectionism and economic nationalism persist, although the transition from the Trump administration to the Biden administration in the USA offers hope of a reversal of this trend.

Commodity price risk and volatility is expected to continue given the ongoing impact of the COVID-19 pandemic, global trade barriers and climate change risk. Any recovery will occur at different rates in different jurisdictions, and COVID-19 outbreaks may impact mineral production and supply in Australia’s major global competitors, such as Brazil. Any reduction in Chinese economic growth or any further tightening of Chinese trade policy would cause concern for Australian producers, but economic stimulus packages and the consequent demand stimulus may create opportunities. A prolonged surge in the price of iron ore has already accompanied such measures.

Climate Change

Investors are increasingly pressuring company boards over climate change. Already, cyclones have caused mine shutdowns, rainfall has impacted tailings dams and droughts have affected water supply. 2021 saw a renewed global focus on decarbonisation with the re-entry of the USA into the United Nation’s Paris Climate Agreement under the Biden administration, as well as the gathering of world leaders at the United Nations Climate Change Conference (COP26), with signs growing that the coal sector is set to be heavily impacted over the coming decades. Companies are reacting to the mounting pressure by making net zero greenhouse gas emissions commitments by 2050 (or, in some cases, even earlier).

Meanwhile, unprecedented bushfires on Australia’s east coast in early 2020 highlighted the operational risks of climate change, with fire, drought, extreme rainfall events, cyclones and heat waves representing threats to mining operations.

There is now a discernible focus on the impacts of climate change in the assessment of mining-related development proposals. Recent New South Wales Land and Environment Court decisions treated greenhouse gas emissions and climate change impacts from mining proposals in a significantly different way than previous practice, while the Federal Court of Australia found in 2021 that the Minister for Environment must consider the harm from carbon emissions that would arise from approving a coal mine expansion. The risks of climate change litigation are set to increase, with a prominent Australian oil and gas company to go before the courts in relation to whether its net zero statements are misleading.

Companies are also facing practical challenges: in February 2019, development consent was refused for a new open-cut mine, Gloucester Rocky Hill Mine Project, which was expected to produce 21 million tonnes of coal over 19 years (including rehabilitation) and support up to 110 jobs during operation and 60 jobs during construction. The project was refused on grounds including the impact of the mine on climate change, and the impact of downstream greenhouse gas emissions. The precedential value of the Rocky Hill case is as yet unclear, but climate change and carbon emissions are (at least) relevant considerations to the administrative decision-makers responsible for mining-related approvals. Coal mining applications have previously been terminated on purportedly environmental grounds.

Corporate Regulation

Following the Federal Financial Services Royal Commission, the corporate regulator adopted a “why not litigate” approach to the enforcement of regulatory infringement. Following a change in leadership, the corporate regulator changed its focus to promoting economic recovery and efficiency through a targeted and collaborative approach to enforcement. The change in focus was generally welcomed by industry, but the extent to which the regulator intends to follow that path remains to be seen.

The next period in financial services regulation will remain challenging for lenders, regulators and legislators alike. Skill and restraint will be necessary for all parties to ensure that rhetoric and misplaced or manufactured indignation do not inadvertently cause retreat by financial institutions from risk that the economy depends on them assuming.

First Peoples’ Compensation

The Australian courts did not recognise the potential for the continued existence of Indigenous land rights under traditional laws and customs of Australia’s peoples until 1992. The subsequent legislative codification of that recognition under the Native Title Act 1993 (Cth) has also raised the possibility of compensation for the impact of grants made that affect the existence or enjoyment of traditional rights and interests.

The Australian courts have now grappled with aspects of the scope of compensation and some limited observations in relation to mining titles may be made:

  • there are two elements to the available compensation:
      1. economic loss (which is limited to freehold but is likely to be 50% or less of freehold value); and
      2. cultural harm (reflecting hurt caused by grants, notwithstanding the existence of traditional laws and customs or the result of harm done to sites of spiritual significance);
  • compensation is likely payable by the state that granted the mining right, although in most states there is intended to be an indemnity from the titleholder;
  • compensation is likely payable in relation to grants made after 31 October 1975 (limiting historical liability);
  • compensation is not tied to the value of minerals in the land subject to the grant; and
  • the scope of the liability (both in terms of whether it will be borne by the mineral rights-holder or the granting state, and the quantum of compensation) is yet to be determined by any court.

Rehabilitation and Mine Closure

Mine rehabilitation and closure, and the attendant environmental liability, continue to be focus areas for regulators. While requirements vary by state, many jurisdictions have power to impose performance bonds in addition to any levies payable under relevant state legislation.

A significant number of major mines are approaching their end of life, crystallising the rehabilitation obligation. It is common for end-of-life mines to be transferred to smaller operators that specialise in mining diminished reserves, but this may result in increased concern about the capacity of owners to undertake rehabilitation. There has been critical reporting on some transactions.

There have been important developments relating to the ramifications of insolvency in the context of rehabilitation. In 2015, the Ellendale Diamond Mine in Western Australia’s Kimberley region closed, and the proponent subsequently went into liquidation. The liquidator disclaimed the mining rights applicable to the mine as “onerous property”, given the rehabilitation obligations attached to those rights. The mine was therefore dealt with under Western Australia’s Abandoned Mines Programme, and the rehabilitation liability effectively fell to the state. Following these developments, the following trends are expected to emerge.

  • Greater imposition of bonds in addition to any ongoing rehabilitation levies and obligations. This trend will not necessarily be widespread, but the regulatory bodies are expected to undertake risk management assessments of outstanding rehabilitation obligations.
  • The imposition of onerous conditions on the transferor of such interests. In the Blair Athol example cited above, the transferor had to pay AUD80 million to the government in “environmental financial assurances” as a condition of the transfer of the mine.
  • An ongoing legislative push to ensure that miners cannot sell or disclaim away their rehabilitation obligations. For example, the Commonwealth government introduced a new decommissioning framework in 2021 under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), resulting in new regulatory approvals relating to a “change in control” of an offshore titleholder and previous titleholders retaining “trailing liability” in respect of decommissioning work (including a power to pursue former titleholders throughout the chain of ownership, rather than just the entity with legal title), as well as expanded information-gathering powers of the Australian government and regulators.

There is likely to be increased public scrutiny of similar decisions.

There appears to be increased optimism in the mining industry, with growing transactional and M&A activity, and improved prospects of undertaking secondary processing within Australia. While Australia has always been perceived as a jurisdiction where high labour costs and a small domestic population may restrict expansion, the COVID-19 pandemic has emphasised the benefits provided by Australia’s robust regulatory framework, public health policies and low sovereign risk.

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