Division 3 of Part VI of the Mining Act 1992 gives a person claiming an interest in a tenement the same protection a caveat gives over registered land.
Section 127 — lodging
A person claiming an interest in a tenement may lodge with the Registrar a caveat forbidding the registration of a transfer or other instrument affecting the tenement or interest.
(a) be on the prescribed form;
(b) give an address within the country for the service of notices and proceedings;
(c) otherwise contain the prescribed particulars; and
(d) be accompanied by the prescribed fee.
The address for service is where the Registrar sends the notice that triggers the 14-day lapsing period under section 129(1)(c). An address that is out of date, or that nobody monitors, means the caveat lapses without the caveator knowing.
Give an address that is genuinely attended — usually a lawyer’s office — and update it if it changes.
“A person claiming an interest”
Section 127(1) requires a claim to an interest in a tenement. That connects to section 116, under which a legal or equitable interest in an existing or future tenement can only be created by a written instrument signed by the person creating or dealing with it.
Typical caveatable interests include a purchaser under an unregistered transfer awaiting Ministerial approval; a mortgagee or chargee whose instrument is not yet registered; a party to a farm-in or joint venture with an equitable interest; and a person entitled on devolution under section 124.
It is not a way to object to a tenement. That is done by objection under section 107 and at the Warden’s hearing.
It is not a compensation claim. Compensation is agreed under section 156 or determined by a Warden under section 157, and unpaid compensation bears on extension under section 28(1)(b).
And it does not give a landholder an interest in the tenement. Customary ownership of the surface is not an interest in the tenement; the landholder’s protections are elsewhere in the Act — principally section 155 and Part VII.
Section 128 — the Registrar’s duties
(a) enter a memorandum of the caveat in the Register; and
(b) send by registered post to the holder of the tenement affected, notice that the caveat has been lodged.
The memorandum makes the caveat visible on a search of the Register of Tenements — which matters, because under section 120(1)(a) the registered holder’s priority is subject to encumbrances or other interests notified on the Register.
Section 129(2) — the effect
No transfer or other instrument affecting a tenement the subject of a caveat shall be registered while the caveat remains in force.
That is a complete block on registration. And because section 118(4) provides that a transfer conveys no legal or equitable interest unless and until it is approved and registered, a caveat in force means the transaction cannot complete at all.
Section 129(1) — how a caveat lapses
(a) any order of the National Court for its removal; or
(b) its withdrawal by the caveator or his agent; or
(c) the expiry of 14 days after the Registrar has sent, by registered post to the address for service, notification that application has been made for the registration of a transfer or other instrument affecting the subject matter of the caveat — unless within that period the National Court otherwise orders.
Paragraph (c) is the critical provision. Once a dealing is lodged, the caveat gives the caveator 14 days to obtain an order of the National Court extending it. If no order is made in that period, the caveat lapses and the dealing may be registered.
Practically, that means: monitor the address for service; act the day the notice arrives; and be ready to move quickly, with the evidence of the claimed interest and the signed instrument that created it already assembled.
When a caveat lapses, the Registrar shall enter in the Register a memorandum of that fact (s 129(3)).
Compared with a caveat over land
| Caveat over a tenement | Caveat over registered land | |
|---|---|---|
| Statute | Mining Act 1992, ss 127–129 | Land Registration Act (Chapter 191) |
| Who may lodge | A person claiming an interest in a tenement | A person claiming an interest in the land |
| Effect | No transfer or other instrument may be registered while it is in force | Blocks registration of dealings |
| Notice to the holder | By registered post — s 128(b) | Notice to the registered proprietor |
| Lapsing | 14 days after notice, unless the National Court orders otherwise | On the statutory lapsing procedure |
Practical steps
- Make sure you have a caveatable interest, created by a written instrument signed under section 116.
- Lodge on the prescribed form, with the fee and the prescribed particulars.
- Give a reliable address for service within the country, and keep it current.
- Search the Register afterwards to confirm the memorandum has been entered.
- Monitor for the section 129(1)(c) notice, and treat its arrival as a 14-day deadline.
- Be ready to go to the National Court within that period, with the instrument and the evidence.
- Do not lodge a caveat without a genuine interest — it blocks a transaction, and the National Court may order its removal.
- Landholders: a caveat is not your remedy. Use the objection, the hearing, and the compensation provisions. Get advice from the Public Solicitor or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 28, 107, 108, 113–129, 154–157
- Land Registration Act (Chapter 191) — PacLII 1986 Revised Edition
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
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.