Key takeaways
Negotiations with freehold owners, pastoralists, and other occupiers are often required before land access is permitted, or activities commence.
Access and compensation requirements vary across Australian states and territories.
Proactively managing land access and compensation can avoid costly delays and disputes during project development.
Securing access to land is a critical step in the development of any exploration or mining project, and navigating competing land uses and rights can present significant challenges for project development.
Once a tenement application has been made, the next step is for proponents to identify, and negotiate access agreements with owners or occupiers to ensure that access to the land is permitted by law and access is not unduly interfered with, particularly where there are co-existing land uses.
In Part 4 of HopgoodGanim’s Mining Project Lifecycle Series, we outline the relevant statutory processes for land access including native title implications.
Navigating native title
Navigating the complexities of native title remains a significant challenge for the mining industry, despite native title first being recognised by the High Court of Australia over 30 years ago.
As native title claims and determinations cover a significant proportion of Australia’s landmass, explorers and miners must understand and carefully manage the commercial, legal and cultural considerations involved in the Native Title Act 1993 (Cth) (NT Act) regime.
Native title and future acts
Where native title has not been extinguished over an area of land, any ‘future act’ (which is an act that will affect native title rights and interests, such as the grant of a mining tenement that takes place on or after 1 January 1994) in relation to that area of land will be subject to the future act procedures under the NT Act.
The relevant future act process to be complied with is prescribed in the NT Act and broadly depends on the nature of the act and the level of impact the future act is anticipated to have on native title rights and interests. There are different procedural rights afforded to the relevant native title party, depending on the nature of the future act.
There are three separate procedures which may apply to validate the grant of applications for mining tenements in Australia, being:
- the expedited procedure;
- the right to negotiate (RTN); and
- the infrastructure procedure.
In practice, each of these procedures often result in an agreement between the applicant for the tenement and the native title party which includes a protocol for protecting Aboriginal cultural heritage (such as by carrying out heritage surveys).
The expedited procedure
The expedited procedure is a ‘fast-tracking’ of tenement applications which, in the view of the relevant state or territory, do not affect or are unlikely to involve major disturbance to native title land or waters or to Aboriginal cultural heritage, or are not likely to interfere directly with community or social activities of the relevant native title party.1 This procedure generally applies to exploration or prospecting tenure.
If a native title party (being either a registered native title claimant or registered native title body corporate) does not object to the application of the expedited procedure within 4 months from the ‘notification date’, the tenement may be granted at the conclusion of the 4 month notification period. In some jurisdictions, exploration tenure is granted subject to native title protection conditions. These conditions generally require that the explorer does not carry out activities which are likely to interfere directly with the carrying on of the community or social activities; areas or sites of particular significance or involve major disturbance to any land or waters (see s 237 of the NT Act).
If a native title party objects to the application of the expedited procedure, the applicant for the tenement and the native title party may either:
- seek a determination from the National Native Title Tribunal (NNTT) to confirm whether the tenement attracts the ‘expedited procedure’ and can be granted, or whether the RTN should apply instead;
- resolve the objection by negotiating an agreement; or
- voluntarily enter the RTN procedure.
The right to negotiate
Generally, mining lease applications will attract the RTN, as mining leases confer exclusive rights to the holder and allow for intensive land use.
The State may decide that the RTN applies to exploration or prospecting tenure, particularly where the application overlaps known Aboriginal cultural heritage, or where the State is aware of previous decisions before the NNTT which held that the expedited procedure should not apply to the relevant ground.
When an application for a mining lease is made, the State will give notice of the application to the native title party, and the applicant for the tenement (also referred to as the ‘grantee party’), stating that the RTN applies.2 The parties must then negotiate in good faith for a minimum of 6 months, in an effort to reach agreement on the terms of the native title party’s consent to the grant of the tenement.
Typically, the parties will negotiate and enter into a separate ‘ancillary agreement’ pursuant to which the grantee party provides community benefits (which can include monetary compensation) and agrees to heritage protection procedures with each native title party, as consideration for the consent of the native title party to the grant of the tenement. Once an ancillary agreement is finalised, the State, the native title party and the grantee party will execute a deed pursuant to section 31 of the NT Act (known as a ‘State Deed’ or ‘Section 31 Deed’), and the tenement application will proceed to grant.
Negotiations with the native title party are commonly conducted on country, with senior representatives from the mining company present at such meetings with the traditional owners.
If an agreement is not reached within 6 months, either party (normally the grantee party) can make a future act determination application to the NNTT.3 Usually, parties will continue to negotiate for a longer period where there is some likelihood that agreement will be reached. This is to avoid any costs and delays associated with the future act determination process.
A future act determination requires the NNTT to determine whether a future act that has gone through the RTN process, such as the grant of a mining tenement, may be done (with or without conditions) or must not be done, notwithstanding there is no agreement between the grantee party and native title party.4 However, the NNTT must not make a determination about the future act if it is satisfied that either the grantee party or the State has failed to negotiate in good faith with any of the native title parties.5
The infrastructure procedure
The creation of a right to mine (by the grant of ancillary tenure, or otherwise) for the sole purpose of the construction of an infrastructure facility is subject to the procedure set out in section 24MD(6B) of the NT Act. Native title parties are notified by the State of an application for such mining tenure and may lodge an objection within 2 months. If a native title party objects, the applicant must consult with the objectors about minimising the impact of the grant (including the activities to be carried out) on any native title interests in the affected land or waters. Where an objection has been made and not withdrawn within 8 months of the application being notified, the State must ensure the objection is heard by an independent body. For further information on the kind of applications which are subject to the procedure in section 24MD(6B), see our previous article here.
Other owners and occupiers
While complying with native title processes is a significant step forward for a mining project, often other third parties (such as freehold landowners, pastoralists or other tenement holders) will need to be identified and negotiated with, to ensure access to the land is secured, compensation is determined, and priority is established between competing land uses.
Freehold land
Mining legislation across Australia provides protections to owners of freehold land, over which a mining tenement has been applied for.
While the legal requirements differ across Australia, generally an explorer or miner will be required to negotiate and enter into an access agreement with the landowner prior to carrying out activities on the freehold land, which will often provide for compensation payments to the landowner.
In Queensland and New South Wales, it is a statutory requirement to enter into an agreement with the landowner which deals with compensation prior to the grant of certain mining tenements, or prior to the conduct of certain activities.6
In other jurisdictions, while there is no strict legal requirement to enter into an access agreement, a mining tenement will not be granted, or activities cannot be carried out on private land unless the landowner’s consent is first obtained.7 In practice, the landowner’s consent to the grant or the conduct of activities is often documented in an access agreement between the parties in exchange for compensation.
Sometimes miners opt to purchase the freehold land to avoid land access issues entirely, or enter into option agreements to purchase the land at the conclusion of exploration and due diligence investigations prior to commencing productive mining.
Crown land
In addition to native title claims and determinations, Crown land in Australia is often subject to other forms of tenure, such as pastoral leases, reserves, conservation areas or parks.
Where mining tenure overlaps Crown land occupied by a third party (such as a pastoralist), generally an access agreement will need to be negotiated. Like freehold land, an access agreement with all landholders (including Crown Lands) is a statutory requirement in New South Wales.8
In Queensland and the Northern Territory, proponents may access Crown land to carry out low disturbance activities by giving prior notice to the public land authority or pastoralist, however an access agreement is required for advanced exploration or significant disturbance.
In Western Australia, there is no statutory requirement to enter into an access agreement with a pastoralist or other occupier of Crown land. In practice, a pastoralist (or other Crown leaseholders) may object to the grant of the relevant tenement application, and the applicant and pastoralist may resolve such objection by entering into an access agreement which deals with priority and conditions of access, compensation, and in some cases relocation of infrastructure.
For areas subject to reserves, conservation areas or parks generally, access and exploration requires consent from the relevant Minister or is otherwise restricted.9
Compensation
Under mining legislation across Australia, compensation to landowners or occupiers is generally payable in respect of damage to the land, or improvements and loss of earnings (attributable to the exploration or mining activities).10
As noted above, in some states, compensation must be determined between the parties and documented in an access agreement. Even where this is not required by law, parties may prefer to agree to mechanisms for calculating compensation for damage to improvements or loss of income to provide greater certainty and avoid a formal compensation determination process under mining legislation.
Other mining tenure
Other land users to be considered include other tenement holders. In some jurisdictions, existing tenement holders are permitted to object to the grant of tenement applications overlapping their tenure.11
Objections by other tenement holders are often resolved commercially via an access agreement. Generally, the existing tenement holder who was ‘first in time’ retains priority in relation to access and typically seeks to secure the costs of the relocation of infrastructure in an access agreement where the relevant infrastructure is required to be moved for the purposes of exploration, or mining by the ‘second in time’ tenement holder.
Considerations
Gaining access to the land is a key step in any exploration or mining project, and expert advice is crucial in ensuring that access for exploration or mining is secured.
Whether navigating the complexities of the native title regime, negotiating with freehold landowners, pastoralists, or other tenement holders, proponents must carefully manage several legal, cultural, and commercial considerations. Each access pathway, from native title future act procedures to private land compensation agreements, requires early planning, clear communication, and often, tailored negotiation strategies. A thorough understanding of these frameworks is essential not only to ensure compliance but also to foster long-term, respectful relationships with landholders and native title parties.
HopgoodGanim's Mining Project Lifecycle Series
1 NT Act s 32.
2 NT Act s 29.
3 NT Act s 35.
4 NT Act s 38.
5 NT Act s 36(2).
6 See Mineral Resources Act 1989 (Qld) s 279; Mining Act 1992 (NSW) s 140.
7 See for example Mineral Resources (Sustainable Development) Act 1990 (Vic) s 42; Mining Act 1978 (WA) s 29.
8 Mining Act 1992 (NSW) s 140.
9 See for example Mining Act 1978 (WA) s 24; Mining Act 1992 (NSW) s 30.
10 See for example Mining Act 1978 (WA) s 123; Mining Act 1971 (SA) s 61.
11 See for example Mineral Resources Act 1989 (Qld) s 260; Mining Act 1978 (WA) s 42, s 59.