20 November 2014
Practice Group(s):
Energy, Infrastructure
and Resources
Mining and Metals
Some Welcomed Recognition for Exploration
Mining Companies
Australia Energy, Infrastructure and Resources Alert
By Su Sze Ting and Clive Cachia
As market sentiment and investor confidence in Australia's extractive industries
remains subdued, recent initiatives from governments and regulators demonstrate, at
least, an acknowledgment of the issues faced by mineral exploration companies and
a desire to improve conditions.
In this Legal Insight, we explore some of these initiatives and how they may assist
market participants.
JORC Code 2012 – A Year on
Australian Securities Exchange (ASX), Australian Securities and Investment
Commission (ASIC) and the Joint Ore Reserves Committee (JORC) have recently
provided useful tips for mining companies in preparing their announcements in
compliance with ASX Listing Rule 5 and JORC Code 2012. This guidance is drawn
from their experience with companies' compliance since the mandatory
commencement of JORC Code 2012 in December 2013. It seeks to remove some of
the uncertainties faced by mining companies in complying with their revised
disclosure obligations. A summary of the guidance is set out below.
Table 1 of the JORC Code 2012
Table 1 of the JORC Code 2012 sets out a checklist of assessment and reporting
criteria which must be addressed and included in public announcements of
exploration results, mineral resources and ore reserves.
Each criterion in Table 1 must be addressed. Even if a criterion in Table 1 is not
relevant, it must be completed on a 'if not, why not' basis.
JORC Code 2012 does not support partial publication of a Table 1 section. For
example:
•
if a mining company previously published Section 1 (Sampling Techniques
and Data) and Section 2 (Reporting of Exploration Results) in an
announcement, and if that mining company releases an announcement with
mineral resources for the first time (which requires Section 3 to be published),
that updated announcement must include Sections 1, 2 and 3
•
if a mining company is reporting results on a follow-on program, the mining
company should republish the full relevant sections of Table 1 in their
announcement even though the mining company can note that none of the
criterion in Table 1 has changed since its last publication
Some Welcomed Recognition for Exploration Mining Companies
•
if a mining company is releasing a maiden JORC Code 2012 Ore Reserve
based on a JORC 2004 resource, the announcement of the Ore Reserve
requires a full update of sections 1 to 3 criteria as well as section 4
•
the regulators consider that an investor should not have to pull multiple
updates to piece together the full picture.
Competent Person Sign Off
The relevant consent of the competent person must be included in an announcement.
If exploration results are being announced for the first time, the consent of the
competent person relating to the exploration results must be included in the
announcement.
For exploration targets, the streamlined procedure for the consent of a competent
person in ASX Listing Rule 5.23 cannot be utilised. Every announcement containing
an exploration target (even if that exploration target has previously been announced)
must contain the consent of a competent person.
A competent person's consent must also be refreshed each year for the annual
reporting of the Mineral Resources and Ore Reserves even if a company's Mineral
Resources and Ore Reserves have not changed.
Exploration Targets
Mining companies should now be cognisant of the requirements in clause 17 of the
JORC Code 2012 for exploration targets. Common issues with the announcements
of exploration targets are:
•
an exploration target must be expressed as a range and cannot be a
'headline statement' in an announcement
•
there must be a detailed explanation on the basis of the exploration target ie
what is the exploration activity which has been completed for the exploration
target?
•
a clarification statement of the conceptual nature of the exploration target
must be included in the same paragraph containing the first reference to the
exploration target. A presentation containing a slide with an exploration target
must include a cautionary statement in the slide with the first reference to that
exploration target.
Production Targets
Mining companies must ensure that they comply with the requirements of ASX
Listing Rules 5.15 – 5.19 for any announcements relating to production targets. In
particular, mining companies need to be careful to distinguish between aspirational
statements and production targets. ASX also emphasised that a production target is
the responsibility of the board of a mining company, not the competent person. The
board must be satisfied that there is a reasonable basis for any production target
which is announced and include a description of the exploration work that has been
done and an assessment of relevant modifying factors.
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Some Welcomed Recognition for Exploration Mining Companies
Exploration Development Incentive
In recognition of the challenges faced by mining companies in raising funds, the
Federal Government has recently introduced the Exploration Development Incentive
scheme for 'greenfield' mineral exploration. On 10 October 2014, Treasury released
the exposure draft legislation for the Exploration Development Incentive scheme.
This measure is intended to enable small mineral exploration companies with no
taxable income to provide exploration credits to their Australian shareholders as a
refundable tax offset.
The new measures, if enacted, will apply to exploration expenditure incurred by
'eligible companies' from 1 July 2014. The allocated aggregate AUD100 million for
the Exploration Development Incentive scheme will be made available to eligible
companies as follows:
•
2015-16 year: AUD25 million
•
2016-17 year: AUD35 million
•
2017-18 year: AUD40 million
To be an eligible company, the exploration company must be a disclosing entity
(under the Corporations Act) which has not carried on mining operations in an
income year. An entity 'connected with' or an 'affiliate of' the exploration company
must not have carried out any mining operations. For more details, please see our
earlier Legal Insight here.
Initiatives by State Governments
Various state governments have also implemented initiatives aimed at encouraging
mineral exploration in Australia. Most of these initiatives relate to identifying and
obtaining new mining information through applying new ideas and technologies.
Currently funded initiatives include subsidised drilling programs, regional geophysical
surveys, mapping and geochemistry programs, creating databases and virtual core
libraries and core data, and collaborative projects with research organisations.
For example, the New South Wales government has implemented and invested
AUD2 million in the New Frontier Cooperative Drilling Program which provides grants
to mineral exploration companies to assist private exploration drilling programs for
minerals and encourage exploration, which will hopefully lead to new scientific and
economic discoveries. The program will provide funding up to 50% of direct drilling
costs for each individual project, with a cap of AUD200,000 for each approved project.
Winding Back Taxation Laws on Options
The Federal Government has also announced that it intends to unwind the changes
to the taxation of employee share schemes which were introduced in 2009 by the
former Labor Government. The media release announces that this change will apply
to all companies effective from 1 July 2015.
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Some Welcomed Recognition for Exploration Mining Companies
Under the announced unwinding of taxation laws on employee option schemes,
employees who receive discounted options will be taxed at the time of exercise,
rather than issue, of the options. The change to the taxation treatment of employee
share options will benefit junior mining companies who provide, or would like to
provide, non-cash based remuneration to its workforce as an incentive to grow the
value of the enterprise whilst maintaining cash flow for exploration endeavours.
How we can Help
If you have queries about any of the above matters, please feel free to contact us.
Authors:
Su Sze Ting
susze.ting@klgates.com
+61.8.9216.0905
Clive Cachia
clive.cachia@klgates.com
+61.2.9513.2515
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