Mining Law:

Mining law can be a very large area of legal practice relating to the extraction and processing of mineral resources from the land. The legal principles that will invariably be ventilated in mining law disputes or requests for legal advice in relation to a mining law matter will incorporate the statutory provisions of mining specific legislation as well as the general principals of contract law (in relation to agreements and contacts between parties to a mining project, mining licenses and the like) corporations law (in relation to the liability of a mining corporation, director’s duties and corporate responsibility to the public and the environment) tort law (particularly the laws of negligence and professional negligence in relation to mining employees and the general public) environmental law (in relation to the use of land and the impact on this use on the flora and fauna as well as the health and safety of the general public), and employment law (in relation to the terms and conditions of miners’ employment). This is a huge area of commercial and corporate activity and for this reasons mining disputes can be very complicated indeed. According to the New South Wales Environmental Defender’s Office,

“Mining and CSG projects in regional areas can bring benefits to local communities, including employment. However, the introduction of mining and CSG operations into an area can also cause a great deal of concern amongst community members, and potentially long term social, economic and environmental disruption.” [1]

There are two main government bodies that regulate mining in the state. These are the Department of Trade and Investment (Regional Infrastructure Services) and the Department of Planning and Infrastructure. [2] The operation of these government bodies will intervene in the business operations of mining enterprises laying our professional standards and industry requirements. Moreover,

“Other government departments will also have input into the assessment and approval of mineral and petroleum projects. For example, the Office of Environment and Heritage (OEH) may have a role to play in issuing certain permits that mining or CSG developments need to operate, such as permits to damage or destroy Aboriginal cultural heritage. The Environment Protection Authority (EPA) is responsible for issuing permits to pollute (known as environment protection licences). The Office of Water is responsible for issuing licences to access water and interfere with aquifers.” [3]

The State government has policies in place for the regulation of activity in this industry:

“The Environmental Sustainability Unit is uniquely placed within NSW Trade & Investment – Division of Resources & Energy (DRE) to advance the standard of environmental management for exploration, petroleum and mining activities in NSW.” [4]

The government’s objectives include the following:

• Facilitate communication between the government and mining interests;
• Pursue regulatory activities including the review of environmental impact assessment, promotion of compliance via inspections, audits and reporting, investigation of incidents, enforcement action for non-compliance issues;
• Review environmental performance before title is granted for mineral exploration and extraction;
• Reviewing and approving rehabilitation standards proposed by mining interests;
• Reviewing and setting security deposits provided for environmental rehabilitation;
• Supervising mine closures; and
• Regulating environmental rehabilitation onsite and determining when rehabilitation has been achieved after mining activity has ceased.

Apart from general licensing disputes, other disputes may occur at each step of the above processes. Mining interests may wish to obtain legal advice in relation to communicating with government bodies and officials. Failure to obtain legal advice may result in representations being made that do not accord with the interest of the mining business. Likewise, good faith communications will require a level of clarity, especially when liaising with government departments, which might benefit from a review by a mining solicitor. Government agencies which engage in review activities may also give rise of alleged liabilities on part of mining companies. These too may require mining law legal advice before action is taken either at the administrative level or by way of litigation.

Compliance with environmental standards and environmental law requirements may require constant monitoring by mining companies themselves. Policies may be set in place to minimise the likelihood of a liability arising and these too can be drafted with the assistance of a Mining Law lawyer to ensure that all relevant legal provisions are considered. A dispute may nevertheless occur in relation to an alleged non-compliance. Here, the expertise of a mining law litigator will be invaluable in preparing a case before the courts. Environmental rehabilitation is obviously an essential concern for the management of natural resources. Disputes in relation to rehabilitation of the environment after mining activity has ceased may involve complex questions of fact which will invariably require the assistance of detailed and comprehensive expert evidence. A Mining Law legal firm which specialises in commercial litigation will be in a position to deal with these and ancillary issues.

If you wish to make an appointment, please contact us by telephone on (02) 9233 4048 or send an email to info@navado.com. 

[1] Mining Law in New South Wales (NSW EDO, 15 August 2012) p 8.

[2] Ibid pp 9-10.

[3] Ibid p 10 (references redacted).

[4] “Environmental management of exploration, mining and petroleum” Resources & Energy – Trade & Investment website (undated) <www.resources.nsw.gov.au> (accessed, 17 December 2013).

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