Mining and exploration law in NSW

A title application, renewal, access request or proposed acquisition raises different legal questions. We identify the decision that needs to be made, the documents that govern it and any unresolved approvals or obligations that could affect the next stage.

Our work concerns the legal rights, agreements and regulatory requirements of exploration and mining in New South Wales. We work with the project’s technical advisers where geological, environmental, heritage or rehabilitation evidence is needed.

Exploration and mining titles

Exploration licences, assessment leases and mining leases serve different purposes under the Mining Act 1992 (NSW). An exploration licence permits exploration within its terms; it does not permit mining or guarantee the later grant of a mining lease. The minerals, area, conditions and proposed activities need to be checked against the particular title.

We advise on applications and renewals, proposed variations, partial relinquishment and cancellation requests. That includes the legal requirements for the application, the effect of title conditions, correspondence with NSW Resources and the consequences of an unresolved compliance issue. Grant or renewal should not be treated as assured.

For a renewal or proposed change, we examine the existing title and its history alongside the intended work. Technical work programs and reporting may inform that review; our role is to advise on their legal significance and the requirements that apply.

Read our exploration and mining tenements issue overview.

Land access and compensation

The right to hold a title and the right to carry out work on a particular property need separate attention. The access rules depend on the title, land and proposed activity. For prospecting titles, the statutory access process can involve a written agreement or an arrangement determined through arbitration, subject to the applicable provisions and exceptions.

We advise on access requests, draft and negotiate access and compensation agreements, and assist with disputes about their terms or operation. The documents should address the area and methods of work, access routes, notice, hours, gates, livestock, biosecurity, water, damage, insurance and reinstatement. We also examine how payment, ongoing obligations and any release of claims are expressed.

Where agreement cannot be reached, we assess the applicable negotiation, mediation, arbitration or Court process and the evidence it needs. The procedure for exploration access should not be assumed to apply unchanged to a mining lease or another statutory access power.

Read our resource project impacts issue overview and land access and easements practice page.

Planning, environmental and activity approvals

A granted title does not establish that every proposed activity can begin. We examine title conditions and activity approvals alongside planning consent, environmental licensing, water, biodiversity and heritage requirements. The legal pathway depends on the activity, the land and the scale and status of the project.

Our advice addresses the approvals needed, their sequence and the conditions relevant to construction, operation and changes to the project. We review approval documents against the proposed work and identify legal dependencies before an acquisition, funding commitment or start on site.

Read our project approvals and licensing practice page and project approvals issue overview.

Native title and Aboriginal cultural heritage

We advise on the native title position relevant to a proposed grant, renewal, dealing or activity, including the applicable process and the terms of related agreements. That work can include negotiation of native title and heritage protection agreements and review of existing arrangements during due diligence.

Aboriginal cultural heritage requires separate attention. We review the legal requirements for the proposed work, available assessment material and agreement terms, working with appropriately qualified heritage advisers. We check what each agreement and approval covers before advising on whether the proposed activity can proceed.

Read our Aboriginal cultural heritage issue overview.

Due diligence and project agreements

For an acquisition, investment or other dealing, we examine the title’s scope and status, conditions, renewal history, approvals, access arrangements, existing agreements and outstanding compliance issues. The review also considers rehabilitation and security obligations and how responsibility is allocated in the transaction documents.

We draft and negotiate acquisition, joint venture, farm-in and royalty agreements. The terms should deal with the interest being acquired, expenditure commitments, decision-making, access to information, transfer requirements, default and exit. We consider how those commercial arrangements fit the underlying titles and approvals.

The purpose of legal due diligence is to identify rights, obligations and risks that matter to the transaction. Any geological assessment, resource estimate or valuation needs its own appropriately qualified adviser.

Compliance, rehabilitation and disputes

We advise on title conditions, legal reporting obligations, rehabilitation requirements, security arrangements and regulator correspondence. For a proposed suspension, cancellation or other adverse decision, we examine the power relied on, the allegations or reasons, response requirements and any available review or challenge.

A transfer or exit from a project warrants a separate review of continuing obligations and contractual responsibility. We identify the approvals and evidence needed for the proposed transaction and the questions that remain unresolved.

Disputes can involve expert evidence, legal expense, delay and costs orders. A challenge does not guarantee that a title will be granted or retained, or that a condition will be changed. We assess those risks alongside negotiated and compliance options.

See our administrative law and government enforcement practice for advice on regulatory decisions and investigations.

Preparing for an initial discussion

Have the title numbers, location, proposed activity or transaction and any stated dates to hand. Useful material includes title instruments and conditions, application or renewal correspondence, access agreements, existing approvals, transaction documents and relevant rehabilitation or security records.

Please don’t send confidential or privileged material until we confirm in writing that we can act. Do tell us any deadline or response date; it remains your responsibility until we confirm in writing that we act for you.

The principal title framework is the Mining Act 1992 (NSW). Planning and environmental requirements must be considered alongside that framework for the particular project.