The regulatory mechanism of Australian Mining and resources aspires to control mining behaviour so that it meets the minimum requirements of the regulator. Tenements are the cornerstone and an essential puzzle piece of Australian mining regulation.

A tenement refers to a claim, lease or licence which is granted under the relevant mining act that applies within a particular jurisdiction. A tenement may include the granting of exclusive rights to prospect within a given area; an exploration licence that grants the right to explore for minerals under certain limitations; or a mining lease which empowers the undertaking of actual mining operations and the sale of extracted minerals. It is also possible to hold a retention licence whereby land is held, but not able to be mined at the present point of time.

In the interests of transparency, all tenement applications are published and available to the public to examine.

The goals of mining regulation in Australia

Regulation of mining and resources activities is generally the domain of state and territory governments, who own the minerals and land, and therefore have the right to grant tenement. Regulation occurs within the context of regulatory frameworks that strive towards certain goals. Regulatory decision making is generally governed by certain overarching goals, which may conflict with each other. Balance is key in regulation.

In every decision it makes, the regulator is balancing the benefits to the local economy against its aspirations for environmental and social wellbeing. Therefore, it is logical that a project that is more likely to benefit the economy, and that has minimal impact on environment and people, will more likely be approved and granted tenement.

Of course, any claims in this direction must be proven, and clear plans must be demonstrated to the regulator throughout the process. Once tenement is secured, it is not possible to disregard the role of the regulator and to do as one pleases. Tenement can be revoked, and it is therefore critical to maintain compliance with the terms which are approved in the tenement. Regulators ensure they have the capacity to enforce agreements.

In a sense, when a tenement has been granted, the regulator’s role has only just begun. It is now their responsibility to hold tenement holders to account against the agreed upon outcomes. Tenement holders must not only be able to meet these outcomes, but also to effectively demonstrate and communicate how they have done so.

Successful regulation will hold itself to best practice standards that ensure that it is both protecting the community and the land, while also supporting its own economy. Many regulatory authorities recognise the importance of predictability in mining investment and mining activity. Strict, protracted, complicated or changing Mining Regulations all risk deterring mining and resources activity.

However, for mining and resources to thrive, it is essential to maintain a healthy relationship with community, and this is an expectation that is placed on exploration and mining companies intending to take out and maintain a tenement. Social licence and the gaining of community trust and cooperation is critical, and recognition of this fact is built into regulatory requirements. Benefits here are also extra-regulatory; in that relationships and trust may have tangible impacts on reputation and partnerships.

When operating within this environment, it is important to recognise that one’s ability to secure and obtain tenement is not a reflection solely of the mining regulations as they stand. It is also a reflection of one’s ability to engage effectively with regulators and to follow their processes satisfactorily and in a way that allows you to undertake intended mining exploration and extraction programs of work.

Tenement consultants and tenement managers

A tenement consultant or tenement management company can play a helpful role in assisting you to navigate mining regulation and to achieve success within the relevant regulatory frameworks. The role of the mining consultant or mining lawyer is multi-faceted, and may include assistance to:

• Understand mining regulations. Mining regulations are complex and hyper-local. Unpacking the legal language can be complicated for those who are not trained in this speciality, and yet a deep understanding is essential to compliance. A tenement consultant can provide specific advice, for example under the Mining Act 1971 and the Mining Regulations 2020. This information can then guide your decision-making.
• Actively achieve compliance. Compliance doesn’t grow on trees but is an active process, and it is critical to demonstrate compliance to the regulator, as well as your intent to comply going forward. A tenement consultant or environmental consultant such as Hetherington can assist with due diligence investigations, mine work health and safety, and preparation, review, and submission of statutory reports.
• Achieving and sustaining access to tenements. A tenement consultant can assist with application renewals, exploration or extraction applications, amalgamated expenditure arrangement applications, and environmental approval lodgements. Furthermore, they can assist with title negotiations, landholder notifications or negotiations, and other complex stakeholder relationships.

For more information on our services, browse the Hetherington website or contact our team.

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