A new era for investment in the Trans-Pacific region

We are entering an important new phase in the push for the liberalisation of trade in goods and services – one which highlights the importance of the Asia Pacific region as a driver of economic progress and welfare and may finally bring long promised benefits to Australia.

At this month’s summit of the APEC leaders in Honolulu, the nine current negotiating states of the Trans-Pacific Partnership Agreement (TPP) have issued a joint statement outlining the key objectives and features of the proposed free trade agreement between the USA, Chile, New Zealand, Singapore, Australia, Peru, Vietnam, Brunei Darussalam and Malaysia.

This joint statement, which is also endorsed by the Australian Government, announces that “[t]he investment text will include provisions for expeditious, fair, and transparent investor-State dispute settlement subject to appropriate safeguards, with discussions continuing on scope and coverage. The investment text will protect the rights of the TPP countries to regulate in the public interest.

This announcement appears to be a significant shift in attitude by the Australian Government. In April 2011, the Gillard Government published its trade policy, stating that Australia would discontinue the practice of including investor-state dispute resolution mechanisms in trade agreements with developing countries. There is no comment available on the Government’s website as to how to reconcile the two statements.

If agreed, the inclusion of investor-state dispute settlement procedures into the TPP is a good development for Australian investors abroad, giving them a direct right of recourse against the foreign state in an international arbitration forum in the event that that state has enacted measures negatively affecting the investment.

The participating states have indicated a wish to finalise the legal text of the TPP within 2012, and it remains to be seen which precise form the investor-state dispute settlement mechanisms will take. With the announcement of Japan, Canada and Mexico to join the negotiations, the TPP has gained new momentum making it the largest free trade agreement world-wide. President Obama is highly supportive of the TPP announcing that the United States “are a Pacific nation and … are deeply committed to shaping the future security and prosperity of the Trans-Pacific region, the fastest-growing region in the world”. The ultimate aim is to create a Pacific Free Trade Area. Such a bloc – one which would counterbalance the European Union and other free trade areas – would significantly change the dynamics of trading relations in goods and services, to the benefit of all. This trend of an increased focus on free trade in the Asia-Pacific region is further highlighted by Indonesia’s ratification of the ASEAN-Australia-New Zealand free trade agreement last week.

For further background on the importance and effect of investor-state dispute settlement mechanisms in bi- and multilateral investment agreements for Australian cross-border investments, please see http://www.freehills.com.au/7589.aspx and http://www.freehills.com/7649.aspx.

Disclosing production targets

Controversy surrounds listed mining companies disclosing their production targets with the ASX and JORC unexpectedly deciding to release separate consultation papers on the issue.

The production target disclosures debate was highlighted in ‘08 with the Midwest Corporation Limited Takeovers Panel decision and arose again in August ’11 when Tigers Realm Coal Limited reissued its prospectus having removed all references to forecast production tonnages and dates, capital development and operating cost estimates for a number of its projects.

Neither the ASX Listing Rules nor the JORC code specifically address the disclosure of production targets in their present form but leave the requirement for having ‘reasonable grounds’ for making a statement contained in s670A(2), s728(2) and s769C of the Corporations Act 2001 (Cth).

ASIC Regulatory Guide 170 gives some colour to what is meant by ‘having reasonable grounds’ but a considerable degree of discretion is retained by individual companies due to the ’08 decision and the lack of detail in the rules and regulations governing the issue.

The ASX has suggested a mandatory minimum reporting obligation whereas JORC has stated that it considers this approach to be overly prescriptive. After failing to agree on a preferred approach to the matter, the ASX and JORC decided to release separate consultation papers on the issue.

So what’s the likely outcome of the dual consultation process?  

In addition to formalising the production targets disclosure requirements applicable to mining companies, the process is likely to require companies to identify:

1. the key assumptions made in calculating the target
2. the key contingencies and risks associated with the realisation of the target
3. a cautionary statement highlighting the aspirational nature of the target.

These elements would all need to be disclosed clearly and unambiguously in an equally prominent manner to the target, as well as being proximately situated to the target in the disclosure.

Two of the more restrictive approaches canvassed in the ASX discussion paper would also see companies banned from disclosing production targets based on exploration targets or inferred mineral resources in greenfields projects respectively.

Let’s see where the debate ends up.

Carbon price passed: Now what?

After many years, 2 Prime Ministers and 3 opposition leaders to name a few, the Federal Parliament passed carbon price legislation yesterday. The price will apply from 1 July 2012 at $23/t Carbon Dioxide equivalent in the first year.

Many will be unhappy about this, but our focus must now turn to what do we do about it. We can’t ‘wait and see’ anymore.

The Opposition has committed to ‘roll back’ the carbon price if it wins government in the future. However, a roll back would be very difficult and appears unlikely, or at least not for some time (meaning we must still prepare for the carbon price).

So there are 2 key questions:

1. What does it mean for the mining industry?
2. What should the mining industry do about it?

What does it mean for the mining industry?

A carbon price will increase the cost of activities that directly or indirectly (ie through their inputs) emit greenhouse gas emissions. For mining the key carbon costs will attach to gas, coal, diesel and electricity use. Coal mines will also face direct costs for their direct methane emissions.

Whether carbon costs are directly paid to government by the mining company or its suppliers will depend on where the emissions arise and who has operational control of them.

Notably, the default position for liquid fuels is they will not be subject to the carbon price regime (with an obligation to obtain and surrender permits). Instead some liquid fuels, including off-road mining and power generation fuel, will face an equivalent carbon price through the fuel tax/rebate system. Mining diesel use will have a reduced diesel fuel rebate, initially at 6.21c/L in 2012/2013. Large fuel users will have the opportunity to ‘opt in’ to the carbon price regime and then need to obtain and surrender permits instead of paying through the fuel tax system. The ‘opt in’ regime is yet to be finalised, but this opportunity is expected to be available for users of fuel that produce more than 25,000t CO2e pa (about 9.1mL of diesel).

This generally means mining companies will pay for their fuel use, any power generation they undertake and coal methane emissions. Suppliers will most likely have any other direct liability. Those suppliers will in turn look to pass their costs through to the mining company.

The end result is the mining company will pay for their carbon footprints, directly or indirectly. Therefore the mining company’s commercial exposure is best calculated on the basis of its total emissions profile. 

Some compensation is being made available for ‘emissions-intensive, trade-exposed’ industries. However, it appears to be of limited availability for the mining industry. It will give some compensation to some minerals refining. Gassy coal miners will be able to access separate compensation.

What should the mining industry do about it?

Key steps include:

1. Review and design contracts: It is important to review and design your contractual arrangements to best manage carbon costs. This is generally achieved where all parties accept appropriate pass through. You should always consider where emissions (and therefore costs and risks) are likely to arise and how they can be best managed.
2. Offsets: Carbon offsets may be one key way to manage carbon costs. The ‘Carbon Farming Initiative’ voluntary scheme will present positive emissions reduction opportunities.
3. Disclosure: Be careful what statements you are making publicly and in your financial documents.
4. Approvals: If you are going through an approval process, any carbon offset proposals or negotiations should be revisited.
5. Compensation: Review what compensation may be available.
6. Opt in?: Large fuel users should consider whether to opt in to the carbon price regime or not. Main reasons to do so are to more effectively manage the carbon price exposure, including through the use of offsets.

How important is Africa to Australian mining?

Australian mining companies now have more projects in Africa than in any other region outside of Australia. While our mining companies have been part of Africa’s mining industry for years, the last several years have seen a dramatic increase in the level of direct investment into the broader African resources sector.

The Chinese are no less ambitious in their interest in African projects, being engaged in almost all of Africa’s 54 countries – either as miner, trader, offtaker, engineer or lender. More recently, a trend has emerged of Chinese entities seeking control of ASX listed vehicles with African assets.

At this time of increased focus on mining investment into Africa, highlighted at the recent Commonwealth Business Leaders Forum held in Perth as part of the build-up to CHOGM – Freehills’ partners Justin Little, John Tivey and Gemey Visscher, as well as representatives from our alliance firm in Beijing (TransAsia), are gearing up to speak on the importance of fostering greater ties between Chinese and Australian companies looking at investments in African mining projects at the 3rd annual China Overseas Investment Fair in Beijing next month.  The Investment Fair will be attended by all of the major Chinese SOEs and government agencies, including those such as the China-Africa Development Fund, which have a mandate to support investments into Africa.

Australia’s bullish approach to investing in regions once considered to be on the wrong end of the sovereign risk spectrum is certainly supported by recent statistics, comments recently made by the Foreign Minister, Kevin Rudd, and by a recent Australian Trade Commission Survey:

• there are now approximately 230 Australian mining and oil & gas companies operating about 650 projects in approximately 43 countries within Africa.  In total, these projects account for around $24 billion worth of investment 
• 143 new projects were added in 2010 alone and approximately 100 new projects (sponsored by roughly 20 companies) have been added since the beginning of 2011
• of the 700 or so mining companies listed on the ASX, 127 (or 18%) have their primary asset in Africa, spread across 400 projects
• Recent examples of Chinese entities bidding for companies with African-focussed mining projects include:
• Minmetals $6 billion bid for dual Australian and Canadian listed copper miner Equinox
• Minmetals friendly $A1.3 billion takeover of Congo-focused copper miner Anvil Mining; and
• Hanlong Mining’s recent takeover bid for Sundance Resources which has an iron ore project in Africa

Freehills’ has acted in both of the recent Minmetals’ transactions referred to above and for other Chinese entities seeking cornerstone or strategic investments in ASX-listed mining companies with exposure to African projects.

The China Overseas Investment Fair is scheduled to run for two days from 8 – 9 November 2011.

Unconventional moves: changes to WA onshore gas regulation

WA has proven it is alive to the fact that there is an increasing importance of unconventional gas resources, with the WA Department of Mines and Petroleum (DMP) releasing on Monday its response to Dr Tina Hunter’s report on the regulation of shale, coal seam and tight gas activities in onshore WA.

Stakeholders should take a keen interest this response as it proposes amendments to provide for public disclosure of the chemicals used in fraccing operations, and of approved environmental management plans – information which is usually commercially sensitive. 

Dr Hunter’s report was commissioned by the DMP to provide an independent assessment of the existing regulatory framework for unconventional gas resources. Their response indicates that changes are afoot for the regulatory regime for onshore gas activities in WA, particularly on key issues associated with development of unconventional gas resources – with the reform package seeking to propose:

1. legislative amendments to mandate full disclosure of chemicals used in fraccing operations and publication of approved environmental management plans on the DMP website
2. new Resource Management Regulations to regulate onshore petroleum activities and which will:
• specifically address field sterilisation
• incorporate requirements for field abandonment; and
• address onshore decommissioning
3. new Environment Management Regulations to regulate onshore petroleum activities including gas from unconventional sources and which will:
• clarify guidelines for management of produced water from fraccing processes; and
• include management guidelines for produced water from abandoned wells.

The Resource Management Regulations and the Environment Management Regulations are expected to be released for stakeholder input by mid 2012 and end 2011 respectively.