Section 9 of the Mining Act 1992 contains the one right in the Act that a landowner can exercise without any licence at all.
Section 9(1) — the general rule
Except as provided in subsection (2), the mining of alluvial minerals shall be undertaken on a tenement and shall be subject to the provisions of Part V.
So alluvial mining is ordinarily tenement work — on an alluvial mining lease, or on a mining lease for the sole purpose of mining alluvial minerals, which under section 38(2) may be held only by a citizen, a company at least 51% beneficially owned by citizens, or a joint venture at least 51% citizen-owned.
Section 9(2) — the exception
Any natural person who is a citizen may carry out non-mechanized mining of alluvial minerals on land owned by that natural person, provided:
— the mining is carried out safely and in accordance with the Mining (Safety) Act (Chapter 195A); and
— the land is not the subject of a tenement — other than an exploration licence.
| Condition | What it means |
|---|---|
| A natural person who is a citizen | Not a company, not a land group, not a non-citizen. The right is personal |
| Non-mechanized | Pan, sluice box, shovel and dish. Excavators, dredges, pumps and mechanical processing are outside the right |
| On land owned by that person | Your own land — including customary land you own. Not a neighbour’s, and not on the strength of permission from someone else |
| Safely, under the Mining (Safety) Act | The safety legislation applies in full |
| Not on tenement land | Except where the only tenement is an exploration licence |
An exploration licence confers exclusive occupancy for exploration purposes under section 23(2) — but section 9(2) expressly preserves the citizen’s non-mechanised alluvial right over the same land. An explorer cannot use its licence to stop a landowner panning their own creek.
Once a mining lease, special mining lease, alluvial mining lease or lease for mining purposes is granted over the land, the right ends.
Sections 9(3) and (4) — what the right does not do
Section 9(3) — the right shall not affect the right of any person to make application for and be granted a tenement under the Act. Mining your own creek does not reserve the ground, and does not give you priority.
Section 9(4) — the Minister may, under section 7, reserve land from mining under section 9(2) by notice in the National Gazette.
Nor does the right give ownership of minerals in the ground: under section 5 all minerals are the property of the State. What section 9(2) gives is lawful authority to win them by hand.
Moving from section 9 to a lease
Section 9(3) cuts both ways: it means someone else may apply over your land, and it means you may apply too. The tenement designed for landowners is the alluvial mining lease:
The Minister may, on the application of a natural person who is a citizen or of a land group, in respect of land owned by that person or land group, and after considering a recommendation from the Council, grant an alluvial mining lease over that land to that person or land group.
| Section 9(2) right | Alluvial mining lease | |
|---|---|---|
| Who | A citizen, personally | A citizen or a land group |
| Where | Land you own | Land you or the group owns |
| Method | Non-mechanised only | Mechanised mining and treatment permitted |
| Area | Not specified | 5 ha, river bed and up to 20 m from it |
| Term | Continuing, while the conditions hold | 5 years, extendable |
| Exclusivity | None — anyone may apply over the land | Exclusive occupancy for alluvial mining — s 51(2)(a) |
| Ownership of what is won | Lawfully won minerals | Owns all alluvial minerals lawfully mined — s 51(2)(b) |
| Obligations | Safety | Approved proposals, rent, royalty, security, reporting |
If you are working a creek under section 9(2) and want to keep others out, apply for an alluvial mining lease. The section 9(2) right confers no exclusivity at all, and section 9(3) makes that explicit.
Note also section 57: an alluvial mining lease is not transferable, and section 58 prevents its consolidation — the tenement is meant to stay with the landowner.
Other law that still applies
- Safety. The Mining (Safety) Act (Chapter 195A) applies in terms — section 9(2) makes safe conduct a condition of the right itself.
- Environment. Working a river bed may involve an activity under section 41 of the Environment Act 2000, and the general environmental duty in section 7 of that Act applies to everyone, permit or no permit. Discharging silt or contaminants into water is regulated under Part VII.
- Mercury. Using mercury creates environmental harm risks and serious health risks, and may engage the offences in sections 11 to 13 of the Environment Act.
- Young persons. The Employment Act rules on young persons apply to anyone employed — including the prohibition on injurious work for anyone under 16.
- Data. Section 5A requires mineral and geological data to be submitted to the Mineral Resources Authority.
Practical steps
- Check the land is yours, and that you can show it.
- Check the tenement position — ask the Registrar of Tenements what is registered over the land.
- Check for a section 7 reservation in the National Gazette.
- Keep it non-mechanised if you are relying on section 9(2).
- Work safely — collapsing banks and pit walls kill people every year.
- Avoid mercury, and keep silt out of the river so far as reasonable and practicable.
- If the operation is growing, apply for an alluvial mining lease — or, through a land group, hold it collectively.
Sources
- Mining Act 1992 — ss 5, 5A, 7, 9, 23, 38, 48–58
- Mining (Safety) Act (Chapter 195A)
- Environment Act 2000 — ss 7, 11–13, 41; Part VII
- Employment Act (Chapter 373)
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.