Key Legal Considerations for Securing Access to Water in the Mining Industry

Water is becoming an increasingly valuable commodity in Australia and the mining community is finding itself competing with pastoralists, domestic consumers and industry for access to what is an essential but finite resource. This paper will provide an overview of various legislative regimes in Australia governing water resources, and will review some of the fundamental issues which should be considered by mining companies when contracting with other parties for the supply of water. The paper will focus on mechanisms to secure access to water for mining purposes, and will deal with the following issues: Grants of water entitlements under legislation û (navigating the legislative requirements necessary to facilitate the taking and use of water for mining activities) The paper will focus on the key legislative requirements for securing access to water in Queensland, Western Australia, New South Wales, Victoria, South Australia, Tasmania and the Northern Territory, and will examine: compliance with regulatory processes for securing water entitlements through the grant of water allocations, licences and permits, etc; and dealings with water entitlements (ie statutory mechanisms for transferring water entitlements on a temporary or permanent basis). Securing access to water under water entitlements through contractual means. The paper will also review of some of the fundamental issues which should be considered by mining companies when contracting with holders of water entitlements for the supply of water from both groundwater and surface water sources. These issues include (inter alia): securing appropriate rights to take and use water in compliance with relevant legislation, the necessity to protect the validity of underlying water entitlements, ensuring the security of supply for the contract term, access rights affecting water entitlements and other important issues relating to the security of water entitlements for miners.