Beneath the Surface

NSW Resources Department of Primary Industries and Regional Development ("Department") has adopted a distinct native title process, referred to as the "Infrastructure Facility Process", for mining lease applications for Ancillary Mining Activities ("AMA") only. Driven by the High Court's ruling in Harvey v Minister for Primary Industries and Resources [2024] HCA 1 ("Harvey"), this regulatory change effectively replaces the traditional Right to Negotiate ("RTN") process, and pivots to validation of the future act via section 24MD(6B) of the Native Title Act 1993 (Cth) ("NTA"). The Infrastructure Facility process introduces a new timeline and negotiation framework that project managers must now navigate.

Key takeaways

• The Infrastructure Facility process applies to the grant of mining leases for AMAs under the Mining Act 1992 (NSW), where the proposed acts align with the description of infrastructure facilities within the NTA (or the ordinary meaning of infrastructure facilities), and are for the sole purpose of the construction of such a facility.
• In NSW, the Department has introduced the Guideline: Application of the native title infrastructure facility process to mining leases for ancillary mining activities ("Guideline"), which has been released for industry to follow.
• Neither the Department nor an applicant can choose whether the Infrastructure Facility process or the RTN applies to a particular mining lease — if the mining lease meets the Infrastructure Facility criteria, the RTN cannot apply.
• Compared with the RTN, the initial notification period is shorter, and public advertising is removed. Unresolved objections may be escalated to the NSW Civil and Administrative Tribunal ("NCAT") after 8 months.
• If the Infrastructure Facility process is applied to the grant of a mining lease, it will likely apply to each renewal. It may also apply to a variation of a mining lease, including where a new right is created or an existing right is expanded.

Key facts

In Harvey, the High Court considered the validity of the grant of a mining lease to construct a dredge spoilage emplacement area at the McArthur River Mine project in the Northern Territory, as a result of required future act processes under section 24MD(6A) or section 24MD(6B) of the NTA. The High Court ruled that the grant of this mining lease was a future act within the meaning of an "infrastructure facility" under the NTA, and restricted its grant until processes under section 24MD(6B) of the NTA had been followed.

Section 24MD is part of the future acts regime of the NTA and is applicable to acts that pass "the freehold test" — if an act can be done on freehold land, then it can be done on land subject to native title. If section 24MD applies to a future act (such as the grant of a mineral lease), the native title holders must be afforded the same rights as freehold land owners.

Section 24MD(6B) provides additional rights of objection to mining activities that involve the creation or variation of a right to mine for the sole purpose of constructing mining infrastructure facilities. This includes notifying native title parties and observing a 2-month notification period during which the notified parties may object. Consultation and negotiation requirements following an objection must also be followed.

Importantly, the High Court confirmed that the definition of "Infrastructure Facility" in section 253 of the NTA is non-exhaustive. It extends beyond the expressly listed examples of roads, railways and ports to include facilities that meet the "ordinary meaning" of infrastructure, capturing ancillary support facilities such as workers' camps and administrative centres.

Key impacts

When considering whether the Infrastructure Facility process applies to a mining lease application, the Department will consider both the list of infrastructure facilities in section 253 of the NTA and the ordinary meaning of "infrastructure facilities". As a result of Harvey, the Guideline provides an extensive explanation of how most AMAs in NSW fall within this category.

The Infrastructure Facility process also has a number of key positive impacts on the timeline for native title processes affecting AMA approvals:

• Replaces public advertisement requirements with letters only to known native title parties;
• Shortens the native title party objection window from 4 months to 2 months;
• Removes the automatic negotiation process, which is only triggered if a native title party formally objects; and
• Caps the negotiation timeframe, requiring unresolved objections to be referred to NCAT after eight months.

For guidance on how the Infrastructure Facility process may affect your project, contact Hetherington.

On 29 October 2025, the South Australian Parliament introduced the Statutes Amendment (Mining and Energy Reforms) Bill ("Bill"). The Bill passed through the House of Assembly on 11 November 2025, and the Legislative Council on 25 November 2025, and is currently back before the House of Assembly with amendments.

The Bill proposes to amend three pieces of South Australian mining legislation: the Mining Act 1971, the Energy Resources Act 2000, and the Hydrogen and Renewable Energy Act 2023.

Extending the life of an exploration licence

Principally, the amendments to the Mining Act 1971 ("Mining Act") allow for exploration licence holders to extend the term of an exploration licence beyond the 18th anniversary date. Currently, exploration licence holders are required to surrender their licence upon reaching the 18th anniversary (or the deemed 18th anniversary). However, under the proposed amendments, exploration licence holders may apply for a "special circumstances extension" that would extend the term for up to two years. There is no limit on the number of two-year extensions that can be granted.

Proposed grounds for a special circumstances extension

• During the term of the exploration licence, the applicant has satisfactorily met the requirements of the expenditure commitment; otherwise satisfactorily performed authorised operations; has made a discovery of minerals, has a new exploration model or is further developing a mineral deposit; and would be capable of undertaking exploration operations within the term of a special circumstances extension (if the extension were to be granted); or
• The applicant has been unable to meet the requirements of the expenditure commitment, work program or other requirement under their exploration licence within the existing term of the licence due to circumstances beyond the control of the applicant, and that could not reasonably have been foreseen at the time at which the licence was last renewed; or
• Any other circumstances as may be prescribed.

No information is currently available on the prescribed circumstances, and there is no timeframe for when these amendments may be made.

On 18 March 2026, the Northern Territory Minister for Mining and Energy, Hon Gerald Maley MLA, introduced the Mineral Titles Legislation Amendment Bill 2026 (NT). The bill was passed on 14 May 2026, assented to on 4 June 2026 and commenced on 5 June 2026, now being the Mineral Titles Legislation Amendment Act 2026 (NT) ("Amendment Act").

Key takeaways

The Amendment Act amends the Mineral Titles Act 2010 (NT), the Mineral Titles Regulations 2011 (NT), the Environment Protection Act 2019 (NT) and the Environment Protection Regulations 2020 (NT), addressing minor issues identified since the introduction of the Environmental (Mining) Licensing Scheme. It aims to improve the efficiency and transparency of exploration and mining processes by simplifying application pathways, modernising reporting requirements, and introducing more flexible, proportionate approaches to renewals, reductions and reporting.

New title categories

New mineral title categories are being introduced to better reflect the diversity of mining and fossicking activities: Mineral Leases for Small-Scale Mines, Tourist Fossicking and Fossicking — fit-for-purpose arrangements for activities not captured under the existing legislation, reducing administrative burden on small operators and fossicking businesses.

• The Mineral Lease for Small-Scale Mines supports operations such as alluvial gold mining, with reporting requirements reduced or simplified when activity and risk are low, and less stringent application requirements — excluding the requirement to provide evidence of an economic resource.
• It also supports the transition of non-compliant existing interests, preserving the holder's rights (subject to compliance with title conditions such as annual rent, administration fees, an expiry date and a right of renewal) while aligning them with the contemporary legislative framework.
• Tourist Fossicking and Fossicking titles support individuals and tourist operations over relatively small areas, allowing mechanical means to push back topsoil to a maximum depth of one metre. A fossicking permit will be available to individuals, family groups, clubs and commercial tour groups for a fee, with a reduced-fee NT resident permit.

Exploration licences

• Renewal period extended from two to six years.
• Biennial title reduction requirements removed — reduction now required at first renewal.
• A summary of the proposed technical work program for the following four years will be required.
• Minimum size of an exploration licence reduced from four blocks to one.
• Renewals must be received one month prior to the title's expiry date, be accompanied by the rent for the operational year, and reduce the title area by 50%.

Extractive mineral exploration licences

Improvements for extractive minerals operators include longer grant periods, a 30-day moratorium over land previously subject to a ceased extractive mineral exploration licence (allowing for more competitive applications), and the ability to move extractive materials from one extractive mineral permit to another for processing, storage and removal.

Preliminary exploration

The Amendment Act clarifies preliminary exploration requirements, particularly on Aboriginal land, ensuring consent processes align with the Aboriginal Land Act 1978 (NT) rather than the more onerous section 41 processes under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Airborne geoscientific surveys no longer require the Minister's approval; instead, proponents must give the Minister at least 30 days' notice, and the Minister may impose conditions, including written notification to affected stakeholders.

Key impacts

The Amendment Act represents a significant modernisation of the Northern Territory's mineral titles system — strengthening environmental safeguards, clarifying land access and consent processes, and delivering a more accessible and efficient legislative framework.

WA's petroleum sector plays a key role in the WA Government's commitment to achieve net zero emissions by 2050. During the energy transition, renewable energy sources will attempt to meet community and industry needs, with the WA petroleum industry meeting any shortfalls.

In 2023–24, the Economics and Industry Standing Committee ("EISC") conducted an inquiry into WA's Domestic Gas Policy. The Domestic Gas Security in a Changing World report ("EISC Report") was tabled in the Legislative Assembly on 15 August 2024. The EISC Report predicted a domestic gas shortfall from 2032 onwards, and provided a number of recommendations for the State Government's consideration.

The EISC Report raised concerns about the prolonged use of Retention Leases in offshore waters and recommended that the State Government consider pathways for operations in retention to progress to production in a timely manner. In response, the Department of Mines, Petroleum and Exploration ("DMPE") reviewed the "use it or lose it" provisions in the current legislative framework and provided proposals for reform as set out in the Accelerating WA's petroleum developments: Review of the State petroleum legislative framework Discussion Paper.

Five key reform proposals

1. Stricter limits on extensions for exploration permits. Applications for an extension of term will be assessed on a case-by-case basis, but with a greater emphasis on the applicant demonstrating that the works are essential to progress exploration.

2. Re-evaluations of commercial viability on Retention Leases. Under the Petroleum and Geothermal Energy Resources Act 1967 (WA) ("PGERA") and the Petroleum (Submerged Lands) Act 1982 (WA) ("PSLA"), the Minister may request a leaseholder to conduct a re-evaluation of commerciality at any point during the five-year term of a Retention Lease. This is currently applied inconsistently. This proposal would make reassessments mandatory during every five-year term, increasing transparency and accountability. If the Minister is satisfied that the operation is commercially viable, they can issue a notice of intention to cancel a Retention Lease.

3. Reducing the commerciality window for Retention Leases. Under the PSLA, applicants for a Retention Lease must demonstrate that their petroleum discovery is not yet commercially viable but is likely to become so within 15 years (the commerciality window). DMPE suggests shortening the commerciality window from 15 years to 7 years, ensuring that operations in retention can progress to production in a timely manner.

4. Limiting Retention Lease renewals. Currently, the legislation does not have a limit on Retention Lease renewals. The proposal would introduce an initial five-year term, with only two further renewal periods, totalling a maximum of 15 years.

5. Stronger powers to terminate inactive Production Licences. Currently, under section 64A of the PGERA and section 54A of the PSLA, the Minister has discretionary powers to take action to terminate a Production Licence if a licensee has not carried on any operations for the recovery of petroleum under the licence at any time during a continuous period of at least five years. The State Government proposes reducing the inactivity threshold from five years to three years and introducing a reasonableness/significance test to prevent minimal activity from being used to avoid termination, and to ensure that title holders are actively pursuing the recovery of petroleum in a genuinely efficient manner.

Stakeholder input

DMPE invited feedback from industry, community groups and other stakeholders. The submissions period ended on 22 December 2025. DMPE has not yet published any stakeholder submissions or any response to the submissions document.

As of 31 March 2026, the revised Exploration Code of Practice: Community Consultation ("Code") has completed its transition period and is now fully enforceable. The updated Code introduces clearer, more structured requirements for how titleholders must plan, undertake and report on community consultation, with a focus on transparency and accessibility for stakeholders.

Key takeaways

• The revised Code is now fully enforceable, introducing mandatory requirements for planning, reporting and stakeholder accessibility.
• Exploration companies must adopt a more structured and transparent approach to community consultation, with clear obligations to provide information upon request.

Key facts

• Community Consultation Plan (Section 8.2): Titleholders must prepare a Community Consultation Plan before the commencement of any permitted prospecting operations. This replaces the former Community Consultation Strategy and must be provided to any person upon request within 28 days, at no charge.
• Engagement contact (Section 8.1): Titleholders are required to nominate an engagement contact or community liaison officer. Contact details, including a phone number and regularly monitored email address, must be published on the titleholder's website within 30 days following the grant of an exploration licence. Any changes must be updated within 7 days.
• Annual Community Consultation Report (Section 8.4): An annual report must be prepared within one month of the grant anniversary date. The report must be provided to any person who requests a copy in writing within 28 days. The requirement to publish the report on the titleholder's website has been removed.
• Monitoring and evaluation: Titleholders are required to monitor and evaluate the effectiveness of their consultation activities, supported by more prescriptive record-keeping obligations.

Key impacts

• Titleholders will need to ensure that a compliant Community Consultation Plan is prepared prior to commencing operations, with processes in place to respond to requests for the Plan within the required timeframe.
• The requirement to publish engagement contact details and provide key documents upon request will make it easier for community stakeholders to obtain information about exploration activities.
• Annual reporting requirements reinforce the recurring obligation that must be completed within a defined timeframe each year.
• Titleholders are provided with greater flexibility to determine the most appropriate consultation methods for the nature and scale of activities and the needs of their key stakeholders.
• More prescriptive monitoring and evaluation obligations will require titleholders to maintain accurate and comprehensive records of consultation activities.
• Exploration companies will need to ensure that both the Community Consultation Plan and Annual Community Consultation Report are made available to any person upon request within 28 days.

The revised Code provides greater certainty for both titleholders and community stakeholders regarding how consultation is to be conducted. With the transition period now complete, compliance with these requirements is mandatory.