Division 2 of Part VI of the Mining Act 1992 creates a register of title for tenements, with rules that will be familiar to anyone who has dealt with registered land.
Section 113 — the Register of Tenements
The Registrar shall establish and maintain a Register of Tenements.
It shall contain details of all registered applications for tenements, all details of their subsequent grant or refusal, and such other prescribed particulars.
The Register shall be received by all courts as prima facie evidence of all matters required or authorised by the Act to be entered in it.
The Register records applications, not just grants. That makes it the place to find out whether an application has been lodged over your land, and where it stands — alongside the copies held at the nearest District and Sub-District Offices under section 106(d) and posted at the headquarters of the Authority under section 106(f).
Sections 114 and 115 — registration and provisional registration
All instruments requiring registration shall be lodged with the Registrar in the manner specified or prescribed, accompanied by the prescribed fee.
The time and date of lodgement shall be deemed to be the time and date at which registration was effected.
Registration relates back to lodgement. Where two instruments compete, the one lodged first is treated as registered first — the same principle that gives an application priority under section 100.
Where the Registrar considers a document erroneous or defective, he may reject the lodgement — but, except in the case of an application under section 101, where he considers the error can be corrected, he shall:
(a) enter the time and date of lodgement and the particulars in the Register, marked “provisional”; and
(b) direct the person, by written notice, to correct the error before a specified date.
If corrected in time, the instrument is deemed registered at the original time and date and the word “provisional” is deleted. If not, the entry is deleted entirely.
Provisional registration is not available for a tenement application. Under sections 101 and 102, an application that fails the preliminary examination is not accepted or registered, and the documents are returned immediately. Only dealings get the second chance.
Sections 116 and 117 — creating and dealing with interests
A legal or equitable interest in an existing or future tenement is not capable of being created, assigned, or dealt with, whether directly or indirectly, except by a written instrument signed by the person creating, assigning or dealing with the interest, or by his duly authorised agent.
Note the words “or future tenement”. An agreement about a tenement not yet granted — a farm-in over an application, for instance — must be in a signed written instrument.
Subject to this Act, a legal or equitable interest in a tenement may be sold, transferred, mortgaged, charged or otherwise encumbered, transmitted, seized under a warrant or writ of execution, or otherwise disposed of or made the subject of any other dealing.
Two important limits sit outside this Division: section 31 prohibits dealings in an exploration licence in its first two-year term by a person whose only interest is in that licence; and section 57 prohibits any transfer or other dealing in an alluvial mining lease. See transfers and dealings.
Section 120 — the effect of registration
Except in the case of fraud, the registered holder of a tenement shall have priority over any other person in respect of that tenement — subject only to:
(a) an encumbrance or other interest notified on the Register; and
(b) conditions contained in the grant or imposed by this Act.
(a) no informality or irregularity in the application, or in the proceedings previous to the grant or extension, shall affect the title of the registered holder; and
(b) a person dealing with a registered holder need not inquire into the circumstances under which he or a predecessor became registered, and shall not be affected by notice of any unregistered interest — and knowledge of such an interest shall not of itself be imputed as fraud.
Section 120 does for a tenement what section 33 of the Land Registration Act does for registered land: the register governs, subject only to fraud, to interests notified on the Register, and to the conditions of the tenement.
Section 120(2)(a) is striking — once registered, irregularities in the application or the process before the grant do not affect the title. That is a strong reason for landholders to use the objection and hearing process before a grant rather than complaining about process afterwards.
Section 120(3) preserves the other direction: a grant of a freehold or leasehold estate in land shall not affect any existing tenement acquired or continued under the Act.
Sections 121 to 123 — what registration does not do
- Section 121 — the Minister is not concerned with the effect in law of an instrument lodged under this Division, and approval does not give it any force, effect or validity it would not otherwise have had. Ministerial approval is not a warranty that the document works.
- Section 122 — the rights conferred by the Act are only exercisable by the holder, and the obligations are only enforceable against the holder. A contractor or joint venturer who is not the registered holder cannot exercise the tenement rights in its own name.
- Section 123 — instruments made in contemplation of approval.
- Section 124 — devolution, where a holder dies or an entity is wound up.
- Section 126 — the effect of a mortgage.
Section 125 — rectification of the Register
Section 125 provides for rectification of the Register — the mechanism for correcting entries. Read with section 120, it is the counterpart of the fraud exception: the Register governs, but it can be corrected.
Anyone claiming an interest that is not on the Register should also consider a caveat under section 127, which forbids registration of a transfer or other instrument while it remains in force.
Using the Register
- Search it at the Registrar of Tenements to find out what is applied for and granted over your land.
- Ask for the conditions — section 120(1)(b) makes them binding, and the approved programme or proposals are among them.
- Check for encumbrances notified on the Register; they bind a purchaser under section 120(1)(a).
- Obtain a certified extract if you may need it in court — the Register is prima facie evidence under section 113(3).
- Act before grant. Section 120(2)(a) means irregularities in the process do not unwind a registered title.
- Consider a caveat where you claim an interest and a dealing is expected.
Sources
- Mining Act 1992 — ss 31, 57, 100–102, 106, 113–129; Part VI Division 2
- 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.