Can a Foreigner Buy a Mine in Australia? FIRB and Mining Tenure Explained

The short answer

Australia is one of the more open mining jurisdictions in the world for foreign capital, and foreign ownership of Australian mines is entirely normal — most of the country's largest operations have substantial offshore shareholding. There is no rule that a mine must be Australian-owned.

But "can I buy one" and "can I buy one without asking permission" are different questions, and the answer to the second is almost always no. Under the Foreign Acquisitions and Takeovers Act 1975, an interest in a producing tenement is treated as an interest in Australian land, and land attracts the strictest screening in the framework.

Two gates, not one

Foreign investors routinely research one of these and get blindsided by the other.

Gate one: state tenure

Minerals in Australia belong to the Crown in right of each state or territory, not to the surface landholder. You do not buy minerals; you acquire a tenement — a statutory right granted under state law to explore for or recover them. Each jurisdiction has its own regime: Western Australia's Mining Act 1978, Queensland's Mineral Resources Act 1989, New South Wales' Mining Act 1992, South Australia's Mining Act 1971, the Northern Territory's Mineral Titles Act 2010, and equivalents in Victoria and Tasmania.

These Acts screen an applicant's capacity and compliance record, not their nationality. In practice, though, a foreign company will generally not hold a tenement in its own name — it incorporates an Australian proprietary company or registers a branch, because the holder carries expenditure commitments, reporting obligations and rehabilitation liability that the state expects to enforce against an Australian legal person.

Gate two: federal screening

This is the one that decides your timetable. It is administered by the Treasurer on advice from the Foreign Investment Review Board (FIRB), and it applies to the acquisition itself, not to your presence in the country. You do not need to be a resident, hold a visa, or have any Australian connection at all. You need approval.

Which tenement are you actually buying?

The single most important distinction in the framework is between a tenement that lets you recover minerals and one that lets you look for them. They are screened completely differently.

The exemption for private investors acquiring exploration tenements was introduced on 1 January 2021 and sits in section 27B of the Regulation. It is a genuine liberalisation and it is why early-stage entry into Australian ground is materially easier than buying production.

The thresholds that actually apply

For an acquisition of an interest in a mining or production tenement, FIRB's Guidance Note 5: Mining (Version 6, 2 January 2026) sets out three thresholds:

Read that table carefully, because it is counter-intuitive. A private Canadian or Japanese investor buying a single small producing tenement needs approval. A private American investor buying the same tenement almost certainly does not. The free trade agreement carve-out for mining tenements is narrow — Chile, New Zealand and the United States — and does not extend to every FTA partner.

One further exception matters in practice: an acquisition of a tenement directly from an Australian government is not notifiable. That is why applying for a fresh grant behaves differently from buying an existing tenement off a private holder. The exception does not apply where the land is national security land.

The trap: are you a "foreign government investor"?

This catches ordinary private funds constantly, and the consequences are severe, because foreign government investors face a $0 threshold on everything — mining tenements, exploration tenements, and any interest in an operational mine.

You are a foreign government investor if a foreign government or separate government entity holds a substantial interest of at least 20 per cent in your vehicle, including with associates; or if government entities from more than one foreign country hold, in aggregate, at least 40 per cent.

A "separate government entity" includes sovereign wealth funds and state-owned enterprises. If a fund has taken cheques from two or three sovereign LPs, the aggregate can cross 40 per cent without anyone in the deal team thinking of the fund as state-backed. Test this before you sign anything, not after.

Does partnering with an Australian company help?

This is the first question most non-resident buyers ask, and the honest answer is that it helps with the decision, not with the requirement. A local partner will not get you out of screening unless you give up so much of the asset that there is little point owning it.

Why a joint venture does not remove the obligation

The framework does not ask who controls the vehicle in commercial terms, or whose name is on the door. It asks whether the acquiring vehicle is a foreign person. Under section 4 of the Act, an Australian-incorporated company is a foreign person if:

• a single foreign person — a non-resident individual, a foreign corporation or a foreign government — holds a substantial interest, meaning at least 20 per cent; or
• two or more such persons hold an aggregate substantial interest, meaning at least 40 per cent.

Twenty per cent is a low bar. It means an Australian company with a foreign minority shareholder is a foreign person, and its acquisition of a producing tenement is screened at a $0 threshold exactly as if the foreign investor had bought the tenement directly.

Look at the last row honestly. Dropping below 20 per cent avoids an application fee that starts at $15,600 and a decision period measured in weeks. In exchange you give up control of a mining asset. That is not a structuring win; it is abandoning the investment to avoid the paperwork attached to it.

The local partner may itself be a screened target

Investors sometimes propose the reverse: let the Australian partner acquire the tenement, and buy into the partner instead. That is also caught. Where a company's Australian land — which includes mining and production tenements — exceeds 50 per cent of its total assets, it is an Australian land corporation, and acquiring an interest of 10 per cent or more in it is itself an acquisition of an interest in Australian land. Interests below 10 per cent are exempt only while you have no ability to influence or participate in the entity's management or policy — so a board seat or a veto can pull a small stake back into scope.

One narrow relief: where the Australian partner has its primary listing on an Australian stock exchange, holdings of less than 5 per cent are disregarded when working out whether foreign holders together have an aggregate substantial interest.

Unincorporated joint ventures and farm-ins

Much of Australian exploration and development is done through unincorporated joint ventures, where each participant holds a direct percentage interest in the tenement rather than shares in a company. That structure offers no shelter at all: the foreign participant is acquiring a legal or equitable interest in a mining or production tenement, which is the screened action itself. The presence of an Australian co-venturer is irrelevant to whether you must notify.

Where a local partner genuinely helps

Having established what it does not do, here is what it does — and it is worth more than the exemption people were hoping for:

• The national interest test. Notification is mandatory, but the outcome is discretionary. Australian operatorship, local management, employment, and a partner with a clean compliance record all read well, and can be the difference between approval on light conditions and approval on heavy ones — or a withdrawn application.
• Tenement administration. Your partner may already be the registered holder, with expenditure compliance, reporting and rehabilitation bonds in order. That removes a whole category of transfer risk.
• Native title and heritage. An existing Indigenous land use agreement and established community relationships take years to build and cannot be bought at completion.
• Regulator familiarity. A partner who has dealt with the relevant state department before, and who may already hold an exemption certificate covering a programme of acquisitions, shortens the path.

The one structure that does avoid screening

If the objective is exposure to a mine's economics rather than ownership of it, the royalty exemption is real. Funding an Australian operator in return for a royalty is exempt from screening where the interest is not a proprietary right and confers no right to occupy the land or to control or influence who enters it. It is narrow, it is not equity, it does not apply to national security land, and taking a mortgage over the tenement as security for the royalty is a separate question that can bring it back into scope.

Do not structure purely to dodge

A final caution. The Treasurer can call in a significant action that was never notified where it may pose a national security concern, and retains a last-resort power even after approval. Arranging holdings to sit at 19 per cent while retaining de facto control is precisely what the associates and tracing provisions exist to catch. Structure for the commercial arrangement you actually want, then notify — the fee is small relative to the asset, and a no objection notification is worth having.

Three more traps worth knowing

1. Converting exploration into production

You acquire an exploration licence as a private investor with no approval required, drill it out, and apply to convert it to a mining lease. FIRB's guidance is explicit: conversion of an existing exploration tenement into a mining or production tenement may constitute a new acquisition of an interest in a mining or production tenement, and therefore require further approval. Budget for a second application at the point the project becomes valuable.

2. Buying the company instead of the tenement

Acquiring shares rather than the asset does not route around the framework. A mining, production or exploration entity is defined as one where the value of tenement interests held by the entity or its subsidiaries exceeds 50 per cent of total asset value. For a foreign government investor, taking 10 per cent or more of the securities of such an entity is notifiable and significant regardless of value. Private investors are screened under the ordinary business-investment rules.

3. An operational mine is sensitive land

A producing mine is treated as sensitive developed commercial land. A foreign government investor must notify before acquiring any interest in one, at any value. Other foreign persons notify when the relevant monetary threshold is met.

What approval costs

Fees are indexed annually on 1 July. Under the Schedule of Fees for the 2026-27 financial year, tenements sit in the same fee family as commercial land, businesses and entities, with tiers rising every $50 million of consideration:

A reviewable national security action is charged at 25 per cent of the equivalent notifiable-action fee. The fee is payable on application and is not contingent on approval.

If you intend to buy repeatedly: exemption certificates

An investor planning a programme of tenement acquisitions rather than one deal can apply for a Land Exemption Certificate under section 58 of the Act. It grants up-front approval for a class of acquisitions instead of requiring a separate application each time, and is normally conditioned on a specified geographic region and specified minerals.

One limitation is worth planning around: exemption certificates will generally not be granted to foreign government investors covering a mixture of exploration and mining or production tenements over substantially the same area and target resource. The expectation is that you come back for a second certificate once exploration has substantially progressed.

After approval: the register nobody remembers

Approval is not the end of the compliance chain. Since 1 July 2023, a foreign person who acquires an interest in a mining, production or exploration tenement must register it on the Register of Foreign Ownership of Australian Assets, administered by the ATO, within 30 days. The same obligation arises if you become a foreign person while already holding a tenement.

Registration is free and is done through Online services for foreign investors. It applies to exploration tenements too — including the ones that needed no approval in the first place, which is exactly why it gets missed. Failure to register can attract infringement notices and civil penalties.

What is not screened

Two useful exemptions, both from 1 January 2021:

• Royalty interests. Acquiring a royalty over a mining tenement is exempt where the interest is not a proprietary right and does not give a right to occupy the land or to control or influence who enters or occupies it. Royalty streams that do confer occupancy or control remain caught, as do royalties over national security land, and taking a mortgage over the underlying tenement as security is a separate question.
• Exploration tenements for private investors, as set out above.

How a deal is actually put together

A workable sequence for a non-resident buyer looks like this:

• Establish the vehicle. An Australian proprietary company, with the foreign ownership disclosed. Test the 20/40 foreign-government-investor thresholds at this point.
• Classify the target. Exploration tenement, mining lease, or shares in a tenement-heavy entity? The answer changes everything downstream.
• Sign conditionally. FIRB expressly contemplates entering a contract conditional on approval, so you can lock the asset without breaching the Act. Never complete first.
• Apply through the Foreign Investment Portal and pay the fee. Build the statutory decision period and possible extensions into your timetable.
• Run technical and legal diligence in parallel — resource statements against the JORC Code, tenement validity and expenditure compliance, native title and Aboriginal heritage, environmental bonds and rehabilitation liability.
• Complete, then register on the Register of Foreign Ownership within 30 days.
• Plan the offtake. A mine without a route to market is an expense. Concentrate, ore or metal needs a buyer, logistics and inspection arranged before first production, not after.

Penalties for getting it wrong

Breaching the foreign investment law can attract infringement notices, civil penalties and criminal penalties, and the Treasurer holds a call-in power over actions that were never notified where a national security concern arises. Divestment orders are available. This is not a regime where forgiveness is easier to obtain than permission.

Frequently asked questions

This article is general information about a regulatory framework, not legal or tax advice. Thresholds, fees and guidance change — the figures here reflect FIRB Guidance Note 5 (Version 6, 2 January 2026) and the Schedule of Fees for 2026-27. Take Australian legal advice before committing to a transaction.