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Legal Risk Rating
60
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100
Score: 60
Moderate Risk
The Tasmanian code is a refreshingly simple and clear example of a model mining code. The elegance of its simplicity and the clarity of its drafting ought to be an inspiration to the cumbersome models of compromise and ambiguity of rights offered in many other Australian states.

Regulatory Corruption Risk

Very High Corruption Potential

Corruption Exposure Risk

Very Low Corruption Risk

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Mining Overview Commentary plus sign

AUSTRALIA MINING REGULATION- TASMANIA GENERAL

The mining industry is one of Australia's most important export sectors and makes a significant economic and social contribution to the Australian economy. Mining and minerals activity currently comprises 8 per cent of the Australian economy and 40 per cent of its exports. Tasmania is one of the most highly and diversely mineralised areas in the world, with significant mineral deposits including copper, gold, silver, iron, tungsten, tin, zinc, silica, magnesite, limestone, dolomite, fluorite and coal. Tasmania’s mining sector makes up 50 percent of Tasmanian export earnings (FY 2013). Tasmania is ranked 34th out of 109 countries on the Fraser Institute Policy Potential Index (2015).

PRINCIPAL LEGISLATION AND REGULATOR

The primary legislation for Tasmania is the Mineral Resources Development Act 1995 (TAS) (MRDA) and the Mineral Resources Development Regulations 2002 (TAS). The Minister for the Department of State Growth, with the support of Mineral Resources Tasmania (a division of the Department of State Growth) (“MRT”), administer and approve mining tenements in Tasmania. In addition to the legislative framework, the Tasmanian Magistrate Court - Mining Division (also known as the Mining Tribunal) manages specific issues relevant to mining law and is the ultimate arbitrator for disputes in relation to mining interests (s127 MRDA).

GRANT AND FORMS OF MINERAL TITLE

In Tasmania, the following types of mining licenses and leases are available:

  • Exploration Licence - allows the holder exclusive access to explore for minerals listed in the license (s. 12, MRDA) and gives priority for a grant of a mining lease (s. 71(1), MRDA). A license may be granted by the Minister subject to conditions. For example, the Minister may require work programs to be completed and holds a wide discretion to amend, rescind, substitute conditions (s. 18(3)-(4), MRDA). A license is issued for a period of 5 years; it may then be extended and transferred with the Minister’s approval (ss. 24, 25 and 32, MRDA).

  • Retention License - allows the holder the right to perform limited exploration activities, enter and pass over crown and private land, and carry out tests in accordance with the licence conditions (s. 58, MRDA). The license is granted by the Minister for a period of 5 years and may be extended with the Minister’s approval (not exceeding 5 years for each period) (s. 59, MRDA). On granting the licence, the Minister may set conditions. Licences may be transferred with the Minister’s approval (ss. 61 and 62, MRDA).

  • Mining Lease - provides the holder with a right to extract minerals exclusively in accordance with the conditions of the lease (ss. 71(1) and 84, MRDA). If an applicant is already holding an exploration or retention license, they will be able to convert their interest in priority to any other third party (s. 71(1), MRDA). A lease is granted by the Minister and may be subject to conditions deemed appropriate by the Minister, who has a wide discretion to amend, rescind and/or substitute any condition (s. 80, MRDA). The term of a lease is determined by the Minister who has the authority to renew, or refuse to renew, a lease. If certain conditions are met, however, the Minister must renew a lease for a period not exceeding 20 years (ss. 85, 97-98, MRDA).

In addition to the mining tenements listed above, Tasmania has implemented State Agreements as a legal foundation to facilitate development of major mineral projects. There are currently 3 State Agreements in place including;

  • Cooper Mines of Tasmania Pty Ltd Act 1999 (TAS);

  • Goldamere Pty Ltd Act 1996 (TAS); and

  • Hellyer Mine Ratification Act (TAS).

Each State Agreement is designed to establish an integrated regime for approval, management and monitoring of all stages of the project and enables the project to proceed outside most State laws (which is valuable as it overcomes the wide discretion held by the Minister in the MRDA).

DEVELOPMENT CONSIDERATIONS

The MRDA, along with the Environmental Management and Pollution Control Act 1994 (TAS) (EMPCA), regulates the impact of mining on the environment. The MRDA requires that every mining tenement application must be accompanied by a statement detailing the likely impact on the environment (ss. 11 and 78A, MRDA). The EMPCA provides for the Environmental Protection Agency (EPA) to set and enforce conditions on level 2 activities as defined in Schedule 2 of the EMPCA (which includes mining and mineral related activities). Once assessed, the EPA can impose conditions in permits (including mining tenements). The environmental conditions attached to permits may be varied by issuing a regulatory Environment Protection Notice (EPN).

Additionally, any development that falls within “matters of national environmental significance” will be subject to the Environment Protection and Biodiversity Conservation Act 1999 (Cth), requiring an environmental impact assessment and approval from the Commonwealth Minister for the Environment. Other considerations include that Native Title may exist on Crown land, therefore requiring prospective licensees to meet their obligations under the Native Title Act 1993 (Cth) before a licence can be granted.

ENVIRONMENTAL REGULATION

See Tasmania Environmental Regulation.

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Environmental Overview Commentary plus sign

GENERAL

Australia is one of the most biologically diverse countries on the planet. It is home to more than one million species of plants and animals, many of which are found nowhere else in the world. The country has diverse landscape formations ranging from snow-capped mountains of the Australian Alps and Tasmania to large deserts, tropical and temperate forests. Australia is the driest inhabited continent on earth, with the least amount of water in rivers, the lowest runoff and the smallest area of permanent wetlands of all the continents. There are 19 Australian properties on the World Heritage List (including the Tasmanian Wilderness).

Tasmania is the only island state of Australia, with a surface area of 26,410 square miles. It is located 150 miles to the south of the Australian continent, separated by the Bass Strait and the Roaring Forties. Geologically, Tasmania consists of four regions and is considered a “natural state”, owing to its large and relatively unspoiled natural environment with almost 45% of its land consisting of reserves, national parks and World Heritage Sites. The ecology of Tasmania is unique, primarily owed to the fact that it is geographically isolated. It is well known for its flora and fauna, much of which is found only in Tasmania. It also exhibits the largest carnivorous marsupial in the world, the Tasmanian Devil, and the now extinct Tasmanian Tiger.

PRINCIPAL LEGISLATION AND REGULATOR

The main legislation applicable to Tasmania is the Mineral Resources Development Act 1995 (TAS) (MRDA) and the Environmental Management and Pollution Control Act 1994 ( TAS) (EMPCA), which together provides the framework for regulating development and protecting the environment; ensuring the proper management, development and conservation of natural and man-made resources.

The EMPCA is partly administered by the Environmental Protection Authority (EPA), which is headed by a board of independent directors (“Directors”). The Directors have the authority to exercise powers at arm’s length from the State Government and have independent statutory powers under the EMPCA (Issuing Environment Protection Notices, Environmental Infringement Notices). The EPA is supported by the EPA Division of the Department of Primary Industries, Parks, Water and Environment, and the Tasmanian Planning Commission (TPC), which is overseen by the Minister for Planning and Local Government (“Minister”).

EIA PROCESS

The MRDA requires every mining tenement application to be accompanied by a statement detailing the likely impact on the environment. An application may be refused if insufficient information is provided (ss. 11, 17A and 78A, MRDA). Under the authority provided the EMPCA, the EPA assesses developments that fall within level 2 activities as defined in Schedule 2 of the EMPCA (which includes mining and mineral related activities). Once assessed, the EPA can set and enforce conditions on permits (including mining tenements) and may make recommendations to the Minister to either refuse or grant approval for a project (Division 4, EMPCA). The EPA may also vary the conditions set, by issuing a regulatory Environment Protection Notice (s44 EMPCA).

Despite the powers granted to the EPA, the ultimate decision rests with the Minister (s. 25, EMPCA). The Minister, who normally delegates his or her authority to the TPC (who further delegates the authority to panel members), has the discretion to refuse a permit or grant a permit either unconditionally or subject to conditions (s. 25(9), EMPCA and s. 8, Tasmanian Planning Commission Act 1997).

Additionally, certain projects may be declared;

  • Projects of regional significance - these are declared by the Minister and are projects that require a high level of assessment and potential for environmental impact. They are assessed under Part 4 of the Land Use Planning and Approvals Act 1993 (TAS).

  • Projects of state significance - these are declared by the Governor and must be approved by both houses of parliament before assessment can begin. They are assessed under Part 3 of the Land Use Planning and Approvals Act 1993 (TAS) or through bilateral agreements with the federal government.

Furthermore, any development that falls within “matters of national environmental significance” will be subject to the Environment Protection and Biodiversity Conservation Act 1999 (Cth), requiring an environmental impact assessment and approval from the Commonwealth Minister for the Environment.

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