Tenements under the Mining Act 1992 sit on top of one another. This article deals with what happens when they do.
Section 29 — from exploration licence to lease
| Stage | Effect on the exploration licence |
|---|---|
| Application for a special mining lease or mining lease by the licence holder | Does not affect the rights and obligations of the holder until the application is determined — except so far as approved programme conditions have been varied under s 27 — s 29(1) |
| While the application is pending | The term of the exploration licence continues until the application is determined — s 29(2) |
| On grant of the lease | The natural surface and the land lying beneath it are excised from the licence, and all licence rights cease over the excised land — s 29(3) |
| On surrender, cancellation or expiry of the lease | The excised land reverts to the exploration licence; or, where another tenement surrounds it, that part is amalgamated with the surrounding tenement — s 29(4) |
Without it, a licence could expire while the lease application was still being processed — leaving the applicant with nothing and the ground open to others. Section 29(2) freezes the position: the licence continues until the application is determined.
Note the drafting of section 29(3). It is the natural surface and the land beneath it that is excised. The licence does not survive underneath the lease.
Sections 22 and 30 — ground given up
Section 22(2) — at each application to extend an exploration licence, the holder shall relinquish not less than half the area held at the start of that term, subject to the 30 and 75 sub-block floors in section 22(3).
Section 30 — where a licence expires, is surrendered or cancelled, or part of the land is surrendered or relinquished, no valid application for an exploration licence over the same land may be made by any person for 30 days after the land ceases to be subject to the licence.
The 30-day rule prevents an immediate re-pegging of the same ground — by the outgoing holder or anyone else. Relinquished ground may then be reserved under section 7 and taken up by a State Applicant under Part VA, which enjoys priority under section 7(6).
When a tenement may be granted over another
| New tenement | Over an existing tenement? | Provision |
|---|---|---|
| Alluvial mining lease | No — except as provided in ss 59 and 90 | s 48(2), s 59 |
| Lease for mining purposes | No — except as provided in ss 75 and 90 | s 65(1), s 75 |
| Mining easement | Yes — may be granted over land the subject of an existing tenement | s 90 |
| Mining lease by a third party | No — only over land not subject to an exploration licence, special mining lease, mining lease or alluvial mining lease | s 38(1)(c) |
| Section 9(2) alluvial right | Yes over an exploration licence; not over any other tenement | s 9(2) |
The notice-and-objection pattern
Where a new tenement may be granted over an existing one, the Act gives the existing holder a defined process. It appears three times, in identical form:
| Step | Alluvial mining lease | Lease for mining purposes | Mining easement |
|---|---|---|---|
| May be granted over an existing tenement | s 59 | s 75 | s 90 |
| Effect on the existing tenement | s 60 | s 76 | s 92 |
| Registrar notifies the existing holder | s 61 | s 77 | s 93 |
| Existing holder may object | s 62 | s 78 | s 94 |
| Objector given notice of the Council meeting | s 63 | s 79 | s 95 |
| Existing holder may elect to negotiate | s 64 | — | — |
| Minister’s duty in granting over another tenement | — | — | s 91 |
The existing holder gets notice, an objection, and notice of the Council meeting that considers it. The decision remains the Minister’s, on the Council’s recommendation.
Section 64 goes one step further for alluvial mining leases: the exploration licence holder may elect to negotiate with the applicant instead of objecting.
Dealings, consolidation and the first two years
- Section 31 — a person whose only interest is in an exploration licence in its first two-year term may not create, transfer or otherwise dispose of that interest, directly or indirectly — subject to exceptions, including where the holder is a corporation listed on a public stock exchange. An anti-flipping rule, reinforced by section 25(3)(a), under which buying a tenement is not acceptable exploration expenditure.
- Sections 130 to 136 — consolidation of tenements into a single consolidated tenement, with its own term and area rules.
- Sections 57 and 58 — an alluvial mining lease may not be transferred and may not be consolidated. It stays with the landowner.
- Sections 116 to 124 — interests in tenements must be created in writing, and dealings require approval and registration.
What this means on the ground
- An exploration licence over your land does not lock everything out. An alluvial mining lease may still be granted under section 59, and the section 9(2) right to non-mechanised alluvial mining on your own land survives.
- A project will involve several tenements — the lease, the supporting lease for mining purposes, and easements. Each has its own landholders, and each attracts compensation.
- Ask for the full tenement picture from the Registrar of Tenements: what is applied for, what is granted, and over whose land.
- Watch the ground given up. Relinquished land may be reserved and re-granted, with priority to a State Applicant.
- Compensation follows each tenement, and under section 155 there is no entry on any of them until compensation is agreed or determined.
Sources
- Mining Act 1992 — ss 7, 9, 22, 25, 27, 29–31, 38, 48, 57–64, 65, 75–79, 90–95, 116–124, 130–136, 154, 155
- Environment Act 2000
- Mining (Safety) Act (Chapter 195A)
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.