The Mining Act 1992 contains one express appeal right. Everything else runs through the processes before the decision, or through the courts.
Section 158 — the compensation appeal
A holder of a tenement, or a landholder claiming an entitlement to compensation, aggrieved by a determination of the Warden under section 157(4)(a) as to the amount to which he is entitled or which he is obliged to pay, may appeal to the National Court.
Section 158 is not confined to a question of law. It is an appeal against the amount — available to either side.
Contrast section 68(4) of the Environment Act 2000, where the appeal from the Environment Council lies to the National Court on a question of law only.
Note also section 159: subject to appeal under section 158, a determination is a condition of the tenement and binding as a contract. So the appeal is the way to challenge it; ignoring it is not.
No merits appeal against a grant
Section 120(2)(a) — except in the case of fraud, no informality or irregularity in the application, or in the proceedings previous to the grant or extension of term, shall affect the title of the registered holder.
Section 120(1) — except in the case of fraud, the registered holder has priority over any other person, subject only to interests notified on the Register and the conditions of the tenement.
So the effective remedies come before the grant:
- Objection under section 107 — any person, in writing, before the date the Registrar fixes (at least 30 days after registration).
- The Warden’s hearing under section 108, whose report the Council must consider.
- The provincial government report, which section 110(1) requires the Council to consider, and the consultation the Minister must undertake before granting a mining lease (s 3(3)).
- The development forum before a special mining lease, conducted so as to afford a fair hearing to all participants (s 3(1)).
And the realistic outcome to aim for is section 110(4)(c): a deferral requiring the applicant to amend the application or revise the programme or proposals, which then become enforceable conditions.
Judicial review
Judicial review lies in the National Court under Order 16 of the National Court Rules, supported by section 155(4) of the Constitution, which gives the National Court an inherent power to make such orders as are necessary to do justice.
The grounds most likely to arise under the Mining Act include:
- Failure to consider a mandatory matter — section 110(1) requires the Council to consider the reports under sections 103(b)(ii), 104 and 109 and any provincial government report; section 110(2) requires it to consider the objections; section 110(3) requires it to consider the programme or proposals.
- Breach of natural justice — section 59 of the Constitution, whose minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly. Section 108(1) requires the Warden’s hearing to be conducted under procedures affording a fair hearing; section 3(1) requires the same of the development forum; and section 157(3) requires the Warden to have regard to natural justice at all times in a compensation determination.
- Acting outside power — for example, granting an alluvial mining lease to a person who is not a citizen or a land group, or over land they do not own (s 48(1)); or granting a tenement over land reserved for exclusive use under another Act without the responsible Minister’s consent (s 8).
- Section 41 of the Constitution — an act that is harsh or oppressive, disproportionate, or otherwise not reasonably justifiable in a democratic society, is unlawful even if specifically authorised by law.
Judicial review is discretionary and time-sensitive, and it is directed at the legality of the decision, not its merits. Get advice as soon as a decision is notified — from the Public Solicitor, or a firm from the law firms directory.
The internal routes
| Decision | Remedy |
|---|---|
| A show-cause notice before cancellation | Show cause under s 142(1) — the Minister decides after a Council recommendation |
| A boundary dispute | The Registrar arranges a survey; costs fall on the party claiming a different location — s 97(9) |
| A conflict with a petroleum licensee | Referral to the Managing Director — s 164 |
| An error in the Register | Rectification — s 125; and a caveat to hold the position — s 127 |
| An objection by an existing tenement holder | Notice of, and a hearing at, the Council meeting — ss 63, 79, 95 |
| A customary land dispute | The Land Disputes Settlement Act; compensation to a statutory trust — s 160 |
The environment route is often the stronger one
A mine needs an environment permit. Under section 68 of the Environment Act 2000, a person dissatisfied with a decision of the Director in relation to an application made by that person or an activity carried on by that person may apply to the Environment Council for review within 21 days, with the Director standing aside, and may then appeal to the National Court on a question of law within 28 days. Section 69 allows a stay.
That review is limited by standing. But the public review of the impact statement is not: any governmental authority or person may make submissions in the period and manner the Director determines, and the Environment Council must have regard to them under section 58(2)(k).
Sources
- Mining Act 1992 — ss 3, 8, 48, 63, 79, 95, 97, 103–110, 120, 125, 127, 142, 157–160, 164
- Environment Act 2000 — ss 55, 58, 68, 69
- Land Disputes Settlement Act (Chapter 45)
- Constitution — ss 41, 59, 155(4)
Before relying on anything here, read the current text of the Mining Act 1992 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.