Sunday, September 24, 2017
 Sustainability - Land Access And Mining Tenure Minimize

INTRODUCTION

Exploration and mining companies are subject to the regulatory environments in which they operate.

Companies operating in Australia ( where Peninsula Mines has its tenements ) are subject to the relevant laws in those juristictions. 

These include, in the case of the Western Australian tenements;

  • the Western Australian Mining Act 1978,
  • the Commonwealth Government Native Title Act; and
  • the relevant State and Federal environmental and occupational health and safety legislation legislation;

WESTERN AUSTRALIA

Tenement Titles

In WA, ownership of all minerals is vested in the Government. Exploration and mining companies and individuals may access rights to minerals, subject to payment of rents and royalties, by obtaining exclusive mining title, commonly called mining “tenements”.

The Company's mining tenements ("Mining Tenements") comprise exploration licences, mining leases and prospecting licences, granted or applied for under the Western Australian Mining Act 1978.

The WA Mining Act applies generally in relation to mining, prospecting and related activities conducted on the land subject to the Mining Tenements in addition to any standard and special conditions that apply to each tenements.

An exploration licence remains in force for a period of 5 years. Those applied for before 6 February, 2006 may, in certain circumstances, be extended by a further period or periods of one or two years on application, while at the end of the third and fourth years of the term, the holder must relinquish not less than half of the area of the licence. Exploration licences applied for after 6/2/06 still remain in force for 5 years but at the end of this term the licence can be extended for a further period of 5 years, subject to a 40% relinquishment of the original area. Further extensions of 2 years each are then possible under prescribed circumstances.

No legal or equitable interest in or affecting a granted exploration licence application can be transfered or dealt with.

No legal or equitable interest in or affecting an exploration licence can be transferred or otherwise dealt with during the first year of its term without the prior written consent of the relevant Western Australian Government minister ("Minister")

Exploration licences are applied for in graticular blocks comprising one minute of latitude and longitude. The area comprising one graticular block will range from approximately 2.8 km2 to 3.3 km2 depending on latitude.

The WA Mining Act confers on the holder of an exploration licence which is in force, the right to apply for and, subject to the WA Mining Act, have granted one or more mining leases over any part of the land the subject of that licence, for the purpose of a bonafide mining operation.

A mining lease remains in force for a period of 21 years and may be renewed for successive periods of 21 years. In the case of mining leases the period of 21 years commences from the date of notification by the Minister.

No legal or equitable interest in or affecting a mining lease can be transferred or otherwise dealt with, or sub-lease entered, without the prior written consent of the Minister. Mining tenements in Western Australia are granted subject to various conditions prescribed by the WA Mining Act including payment of rent, expenditure and reporting requirements and standard environmental conditions.

Information on rent and expenditure conditions can be found at the website of the WA Department of Industry and Resources at

http://www.doir.wa.gov.au/aboutus/D69EC29123C14078A7F3F51D8C4864B3.asp

In 2006-2007 a large numbers of the Company's EL’s were applied for. A significant number of these are now granted, and the remainder are the subject of native title claimant objections.

If there are no objections to an application, then grants can occur in approximately seven months from application. However delays of more than 12 months can occur if objections are lodged, under either the Mining Act or Native Title Act.

Native title objections are usually avoided if an applicant and an affected native title claimant/holder sign a standard heritage agreement, which facilitates the future survey and protection of heritage sites in areas of ground disturbing activities. Many claimants do not currently support this process and in the areas affected by their claims, it is expected that delays, in the granting of applications and in conducting heritage surveys, may be experienced.

The Company closely monitors the progress of the applications and has employed a specialist tenement consultant to assist with the process.

Mining tenements in Western Australia are also subject to statutory requirements of certain other Acts including the Aboriginal Heritage Act 1972, Environmental Protection Act 1971, Rights in Water and Irrigation Act 1914 and Conservation and Land Management Act 1984.

Aboriginal Heritage

Generally, this would not appear to apply to low impact activities such as soil sampling or airborne geophysical surveys. In order to achieve  outcomes in accordance with heritage agreements in areas it wishes to conduct exploration the Company is reliant on the timely, efficient and reasonable co-operation of the relevant claimants and those who represent them.

There may be sites of significance to Aboriginal people located on the land on which the Mining Tenements are situated.

The Aboriginal Heritage Act 1972 (WA) (WA Heritage Act) applies to the Mining Tenements and makes it an offence to, among other things, knowingly alter or damage an Aboriginal site or object on or under an Aboriginal site. A site is defined to include any sacred, ritual or ceremonial site which is of importance and special significance to persons of Aboriginal descent. There is no requirement or need for a site to be registered in any public manner or, indeed, be in any way acknowledged as an Aboriginal site for it to qualify as an Aboriginal site for the purposes of the WA Heritage Act.

The Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth.) (Commonwealth Heritage Act) also applies to the Mining Tenements and is aimed at the preservation and protection from desecration of significant Aboriginal areas and significant Aboriginal objects. An area or object is found to be desecrated if it is used or treated in a manner inconsistent with Aboriginal tradition.

The Company has not undertaken database searches to ascertain if any Aboriginal sites have been registered in the vicinity of its exploration licences and applications, under any of these Acts, as there is no obligation in any of those Acts to register sites, objects or relics. In any event, their exact location is often not ascertainable from such searches. Further, these enquiries are generally done by the mining company after the mining tenure applied for is granted and once a particular work programme has been determined. In those cases it may be generally necessary to enter into separate arrangements with the traditional owners of the sites to obtain that information. This may add to the time taken for the Company to gain access to the ground for exploration.

To ensure that that it does not contravene any of these Acts while carrying out operations on the Mining Tenements, the Company would need to conduct heritage surveys to determine if any Aboriginal sites exist within the area of the Mining Tenements. If so, the Company would also need to ensure that any interference with such Aboriginal sites is in strict conformity with the provisions of the above WA Heritage Act and the Commonwealth Heritage Act.

Native Title - Generally

On 3 June 1992 the High Court of Australia held in Mabo -v- Queensland that the common law of Australia recognises a form of native title. In order to maintain a claim to native title the persons making such claim must show that they enjoyed certain customary rights and privileges in respect of a particular area of land and that they have maintained their traditional connection with that land. Such a claim will not be recognised if the native title has been extinguished, either by voluntary surrender to the Crown, death of the last survivor of a community entitled to native title, abandonment of the land in question by that community or the granting of an "inconsistent interest" in the land by the Crown. An example of inconsistent interest would be the granting of a freehold or some types of leasehold interest in the land. The granting of a lesser form of interest will not extinguish native title unless it is wholly inconsistent with native title.

The Commonwealth Parliament responded to the Mabo decision by passing the Native Title Act 1993 (Commonwealth Act). Among other things, the Commonwealth Act:

(a) regulates the recognition and protection of native title;

(b) confirms the validity of titles granted by the Federal Government prior to the commencement of that Act on 1 January 1994;

(c) specifies the procedures to be complied with for certain future acts which affect native title; and

(d) specifies the procedures by which Aboriginal peoples can claim native title and by which people determined to hold native title holders can claim compensation.

The Commonwealth Act was extensively amended in 1998 by the Native Title Amendment Act 1998. These amendments include the validation of any titles that may have been invalidly granted over pastoral leases and certain other leasehold interests during the period 1 January 1994 to 23 December 1996. Other significant amendments include a revised threshold test for the acceptance of native title claims, confirmation of extinguishment of native title by the grant of "exclusive possession" pastoral leases and certain other leasehold interests and provisions intended to deal with overlapping claims.

The Western Australian Parliament has enacted the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 which adopts the Commonwealth Act in Western Australia. The majority of the High Court concluded in the recent Ward decision (8 August 2002) that, among other things:

(a) native title has been wholly extinguished in respect of land the subject of freehold, public works or other previous "exclusive possession" acts, and in respect of minerals and petroleum which are vested in the Crown, as well as various other grants and vestings; and

(b) native title has been partially extinguished as a result of the grant of "non-exclusive possession" pastoral leases and mining leases, and also as a result of the creation of certain reserves.

The underlying land tenure has not been researched in respect of the Mining Tenements in order to determine the extent of extinguishment.

Native Title – Claims

Persons claiming to hold native title may lodge an application for determination of native title (being a native title claim) with the Federal Court. Applications which are lodged with the Federal Court will be referred to the National Native Title Tribunal (NNTT) for the purposes of registration of the claim.

If the Native Title Registrar is satisfied that a claim meets the registration requirements set out in the Commonwealth Act (Registration Test) it will be entered on the Register of Native Title Claims maintained by the NNTT (Register). Claimants of registered claims are afforded certain procedural rights under the Commonwealth Act including the "right to negotiate" discussed further below.

Claims which fail to meet the Registration Test are recorded on the Schedule of Applications Received maintained by the NNTT. Such claims may be entered on the Register at a later date if additional information is provided by the claimant that satisfies the Registration Test. Claims which are deregistered will lose the right to negotiate from the date of deregistration but will still remain on foot in the Federal Court until such time as they are determined by the Court.

All of the Mining Tenements relate to land which is currently the subject of at least one registered native title claim.The fact that a claim has been lodged does not necessarily mean that native title exists over the area claimed, nor does the absence of a claim necessarily indicate that no native title exists over that area. The existence of native title will be established in due course as the claims are determined by the Federal Court. The Company has not undertaken the considerable historical, anthropological and ethnographic work that would be required to determine the possibility of any further claims in respect of the area of the Mining Tenements being made in the future.

Native Title – Validity of Titles

Granted Tenements – Western Australia

(a) Tenements granted prior to 1 January 1994 Under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 the grant of mining tenements granted in Western Australia prior to 1 January 1994 has been validated to the extent that the grant may have been invalid as a result of the existence of native title. 

(b) Tenements granted after 1 January 1994 The grant of a mining tenement is an act that is capable of affecting, and which may affect, native title. The future act processes of the Commonwealth Act provide a mechanism for achieving the valid grant of a mining tenement in terms of native title.

The Western Australian Parliament passed the Titles Validation Amendment Act 1999 which confirmed the validity of certain acts made by the State of Western Australia between 1 January 1994 and 23 December 1996, provided such acts had met various conditions set out in the Commonwealth Act.

Mining Tenements granted since 23 December 1996 which are affected by native title rights and interests will be valid provided the applicable processes prescribed by the Commonwealth Act were complied with. The balance of the granted WA Mining Tenements were granted after 23 December 1996. We understand that it has been the practice of the Western Australian Government to comply with these processes but we have not undertaken any independent enquiries to confirm that this is the case.

Future Tenement Grants

As stated above, the valid grant of any of the Mining Tenements which may affect native title requires full compliance with the provisions of the Commonwealth Act in addition to compliance with the usual procedures under the relevant State's mining legislation. The primary procedure prescribed under the Commonwealth Act is the "right to negotiate" process. Other procedures generally apply to low-impact titles (such as prospecting and exploration licences) or infrastructure titles.

The right to negotiate process involves the publishing of a notice of the proposed grant of a tenement followed by a minimum 6 month period of negotiation between the relevant State Government, the tenement applicant and the relevant registered native title claimant. If agreement is not reached to enable the grant to occur, the matter may be referred to arbitration before the NNTT, which has a further 6 months to reach a decision. The decision of the NNTT may be reviewed by the relevant Federal Minister.

The Commonwealth Act provides that, in relation to the grant of mining tenements in certain areas, a State law can operate in lieu of the right to negotiate process of the Commonwealth Act. These areas are principally areas covered by pastoral leases. The Western Australian State Government has not yet introduced such a law. The right to negotiate process does not have to be pursued in cases where an indigenous land use agreement (ILUA) is negotiated with the relevant Aboriginal people and registered with the NNTT. In such cases, the procedures prescribed by the ILUA must be followed to obtain the valid grant of the tenement. These procedures will vary depending on the terms of the relevant ILUA.

Renewals

As with the grant of mining tenements, renewals of mining tenements granted prior to 1 January 1994, to the extent the renewals were invalid due to native title, have been validated by legislation. Renewals granted between 1 January 1994 and 23 December 1996 have been similarly validated provided certain statutory criteria have been met. Renewals made after 23 December 1996 of tenements validly granted before that date will not be subject to the right to negotiate process provided:

(i) the area to which the earlier right is made is not extended;

(ii) the term of the new right is not longer than the term of the earlier right; and

(iii) the rights to be created are not greater than the rights conferred by the earlier grant.

There is doubt as to whether the right to negotiate process applies to second and subsequent renewals but this matter is yet to be determined by the courts. Other than as stated above, renewals of mining tenements are subject to the same right to negotiate (or, pending legislation, alternative State) process as is described above.

 Print