Land Access for Exploration and Mining Projects

As a mining company, you will be aware of the need to gain rights to access the land on which you wish to operate. When working on privately owned land, it is inevitable that a mining company will need to comply with land access laws and follow the required legal procedures to gain access to this land to undertake their projects.

However, the process of gaining access can be fraught with legal or operational risks if not approached with the necessary level of experience and familiarity with relevant national and jurisdictional laws within the sphere of environmental and mining law, and more broadly.

Indeed, the requirements are not static, but are dependent on the activities that are being undertaken and how advanced or straightforward these activities are – to paint a picture of the complexity of land access arrangements.

In fact, certain efforts to access land may be futile or restricted from the outset, and a failure to appreciate this can result in misdirected effort and squandered resources that may have been better spent in other areas.

Outlining general rules

The framework around land access is commonly locally defined, and hence general rules of thumb are hard to establish. However, some general principles include that land access is dependent upon the written consent of the landholder, and the provision – by the mining and exploration company – of an entry notice prior to access for preliminary activities, unless this has been waived through the acquisition of a waiver in advance of entry.

Perhaps most importantly, a land access agreement must be negotiated prior to access for activities of a more impactful nature, and this can take on many different shapes and forms including a conduct and compensation agreement, or an opt-out agreement. This process is bound to include extensive negotiation as both parties strive to secure terms that are viable for them. While there is a Land Court for the determination of such cases, it is preferred that disputes be resolved locally – and with the assistance of a skilled mining lawyer, they typically can be.

It is premature to discuss land access arrangements on freehold or Native Title land before the acquisition of the necessary mining or exploration licence from the regulatory agencies. Just because an arrangement is on private land, it does not entail that mining and exploration activities can be undertaken without tenure, or government approval. Hence it is clear that freehold agreements can be unusually complex and involve multiple stakeholders – all the more reason to approach with the expert support of a mining lawyer such as Hetherington Legal.

Creating a land access agreement

Land access agreements need to balance the needs of the mining company and of the private landholder to succeed and avoid lengthy disputes. Of course, a degree of back and forth is expected and healthy and needs to be allowed for and approached with a skillful mining lawyer.

A land agreement will provide a level of protection to landholders. For example, if we look at a farmer, this could be centered on livestock disturbance, the introduction of weeds and pests, and infrastructure. An agreement will typically factor in compensation for the landholder for having the usage or enjoyment of their land restricted, and any damage incurred through mining or exploration. This compensation may also relate to the impact on land value.

Gaining land access under environmental and mining law

The mining lawyers at Hetherington can assist with the following services related to securing land access for your mining and exploration projects. We can assist you whether you are seeking land access and tenement on Crown land (non-freehold land) or freehold land.

• Land access and compensation agreements. This can include dispute resolution over such agreements, inclusive of objections made under the Mining Act 1978 (WA), Wardens Court proceedings, and medication and arbitration.
• Native Title and Aboriginal Heritage arrangements. This can include expedited procedure objections, Aboriginal Heritage and Native Title advice, and the right to negotiate.
• Due diligence and VALMIN reporting, including due diligence for tenure acquisition, VALMIN compliant reports for prospectuses, and independent tenement overview reports.

Contacting our team

For more information on our services related to land access for mining and exploration projects within the Australian and international mining and resources sector, we encourage you to contact your local Hetherington office.

We can also provide services with tenements, mine work health and safety, tenement compliance, your program of work and more.

Our Sydney office can be reached on 02 9967 4844 and our Perth office can be reached at 08 9228 9977, or you can email legal@hetherington.net.au. We look forward to working with you to secure and maintain land access for your exploration and mining projects.