The co-existence of LAA tenure within a mineral field
It is the nature of operating in WA that mining companies will be faced with third parties wanting to obtain tenure that overlaps their tenements in order to construct and operate infrastructure, either for alternative mining, or for non-mining, purposes.
However, it is not always open for an infrastructure developer to obtain that tenure under the Mining Act. While such infrastructure could be intended to serve the mining industry (such as, transmission lines and other energy related infrastructure), if there is insufficient connection to mining, or a specific mining operation, tenure under alternative legislation may be needed.
More specifically the infrastructure developer may seek tenure under theLand Administration Act 1997 (WA) (LAA), such as a section 91 licence or an LAA easement.
As a result of the far less prescriptive nature of the tenure application and objection procedures of the LAA, there are a number of issues that a mining company will need to consider to safeguard its interests when faced with an overlapping application for LAA tenure. We explore these below. We have also set out what we consider is critical information that should be sought by a mining company from an applicant who is seeking tenure under the LAA for infrastructure development.
The LAA application process – limited rights to be served and object
Under the LAA:
- there are limited requirements for an application to be advertised or served on underlying tenement holders;
- there is no public way to search an application or monitor its status; and
- there are no statutory rights to object (except where compulsory acquisition is involved).
Given these limitations, a mining company should ask the following questions upon being made aware of an overlapping tenure application:
- as discussed further below, the type of LAA tenure that has been applied for and its purpose;
- the area to which the application applies, as confirmed by precise mapping and Landgate or geospatial data; and
- the nature of the proposed works, setting out details of the timetable for the works, when access to land is needed and the extent of ground disturbance that will occur.
What tenure is being sought and on what conditions
For the most part, the LAA does not itself specify any of the rights or obligations that will be incorporated in the tenure, when granted. Under the LAA, the Minister for Lands is generally authorised to grant tenure for any purpose and on terms and conditions that it sees fit in the given circumstances, including as to the term or duration of the tenure.
As such, there will be a negotiation between the applicant and the State as to the terms and conditions that will be incorporated under the tenure.
In our experience, applicants may be reluctant to reveal the details of the terms and conditions that are being negotiated with the State to a third party. In these circumstances, an impacted mining company cannot easily avail itself of the conditions on which co-existing tenure may be granted. This may place it at a material disadvantage when it comes time to negotiate and agree to any consent arrangement that may be put in place.
Therefore, it is critical that there are enquiries made of the applicant for relevant details of the tenure application, including pertinent terms and conditions that may adversely impact the rights of underlying tenement holders.
Safeguards for a mining company - clearance under the Mining Act and LAA approval processes
Despite the limitations of the LAA, there are several safeguards in place for mining companies.
- section 16 (3) of the Mining Act effectively provides that no LAA tenure shall be granted in a mineral field without the approval of the Minister for Mines (known as a ‘section 16(3) clearance’). If a mining company does not provide a consent for the grant of the tenure, the Mines Department will consult to hear its concerns as one factor in deciding whether or not to grant the clearance. However, we understand that the consent and consultation considerations of the Mines Department are set out in policy only;
- in addition, section 117 of the Mining Act provides that no grant of LAA tenure has the effect of injuriously affecting an existing tenement holder; and
- finally, depending on the type of LAA tenure sought, the Minister for Lands either must not, or as a matter of policy would not, grant the tenure without an impacted mining company having consented (usually evidenced in a consent letter or under an access and consent agreement).
Navigating a way through the statutory approval, intra-governmental referral and consultation processes
Notwithstanding the above, a conclusion can be drawn that the rights of mining companies in regards to LAA tenure applications can be found somewhere within a complex matrix of statutory, intra-governmental referral and consultation processes. This makes it difficult for a mining company to clearly understand its rights where an LAA tenure application may impact its existing or prospective mining activities.
Accordingly, we suggest that:
- a proper understanding of the impact on the rights of a mining company relies on a high level of consultation with the State (or an applicant), if not advice from legal or other advisors who are well versed in the interplay of the LAA and Mining Act processes; and
- the tenure applicant should be requested to provide as much specific information as possible regarding:
- the LAA tenure application and the proposed construction activities. Ideally, a copy of the tenure instrument will be obtained prior to the State and the applicant having executed it; and
- the consultation process that will be followed by it or the State for the grant of the tenure. One should not assume that consultation will necessarily occur at a time that is advantageous to the interests of all concerned.
A consistent and transparent regulatory framework
For an efficient industry, there should be a consistent and transparent regulatory framework to enable parties to ascertain how proposed infrastructure may best co-exist with existing mining operations in all circumstances.
As such, one is left querying why the State’s key pieces of land tenure legislation (ie the LAA and the Mining Act) differ in such fundamental ways. What these differences mean is cost, time and uncertainty for the industry.