Ground worth having is applied for by more than one person. Section 100 of the Mining Act 1992 decides who is heard first.
Section 100(1) — first to lodge
Subject to this section and to section 101, where two or more applications are made for the grant of a tenement over the same land or any part of the same land, the applicant who first lodges an application with the Registrar has the right in priority over every other applicant to have his application considered and determined.
Section 100(1) gives the first applicant the right to have his application considered and determined ahead of the others. It does not guarantee a grant. The application still goes through the objection process, the Warden’s hearing, and the Council’s recommendation to the Minister.
Priority is also expressly subject to section 101: an application that fails the preliminary examination is not accepted or registered at all, and the documents are returned on the spot. An incomplete application lodged first beats nothing.
That is why section 98(1) requires an application for a grant to be lodged in person or by agent at the Registrar’s office in the National Capital District. Someone must be at the counter, with a complete application, at the moment it opens.
Section 100(2) and (3) — the ballot
Where the Registrar is satisfied that two or more applicants for the same land were present in his office at the same time for the purpose of lodging, then notwithstanding the order in which he receives the applications, priority shall be determined by ballot conducted by the Registrar in the presence of the applicants.
Under section 100(3), the ballot applies only to applications that meet the section 101 requirements.
Where several parties arrive together for the same ground, ranking them by who reached the counter first would reward jostling. The ballot removes the advantage — and it is conducted in the presence of the applicants, so it is seen to be done.
The gate in section 100(3) is important: only complete applications go into the ballot. Turning up with incomplete papers means the application is not accepted at all, whatever the ballot might have produced.
Section 100(4) — the position of the unsuccessful
An applicant not accorded priority in the ballot — and where there is more than one, each in the order the ballot determined — has the right in priority over every other person (except those ahead of him in the ballot) to have his application considered and determined:
(a) where the prior application is refused; or
(b) over any land not included within the tenement granted as a result of the prior application.
So the losing applicants form an ordered queue. If the winner is refused, the next in line is considered. And if the winner is granted a tenement over part of the land applied for, the remainder falls to the next applicant — a common outcome, since a survey under section 97(5)(b) often shows that only part of the land is available.
Section 100(5) and (6) — the associated persons rule
Where competing applications are made by persons associated with each other, only one such application may be submitted for ballot — and where, on the Registrar’s request, those persons do not select one, the Registrar shall select the application he first received.
Where, after a ballot, the Registrar ascertains that the successful applicant was an associated person of another applicant in the same ballot, he shall:
(a) refuse that application; or
(b) where a tenement has already been granted, cancel the grant.
Without it, a well-resourced applicant could enter several related entities into the ballot and multiply its chances. Section 100(5) allows one entry per group of associated persons; section 100(6) removes the prize if the association is discovered afterwards — even after grant.
The consequence for a tenement already granted is cancellation, which puts everything built on it at risk. Applicants should disclose associations at the counter rather than have the Registrar find them later.
Where the land is reserved
Priority interacts with reservation. Where land is reserved under section 7:
- the Registrar defers dealing with registered applications under section 103(b) until the reservation is revoked or expires (s 7(3));
- a reservation has no effect on a tenement or application already registered, or on an application to extend such a tenement (s 7(4));
- on revocation or expiry, deferred applications are dealt with under section 103(b) (s 7(5)); and
- an application by a State Applicant shall be considered as priority by the Registrar (s 7(6)).
Section 30 adds a further timing rule: where an exploration licence expires, is surrendered or cancelled, or land is relinquished, no valid application for an exploration licence over the same land may be made by anyone for 30 days.
Practical points
- Completeness beats speed. An application that fails the section 101 examination is returned and never registered.
- Lodge in person or by agent for a grant — section 98(1) requires it.
- Bring everything: the form in triplicate, signed; the schedule and sketch map or survey; the programme or proposals; the statutory declarations; and the fee, plus any late fee.
- Disclose associations and select one application if related entities are competing.
- Losing the ballot is not the end — the queue survives refusal, and survives a partial grant.
- Watch relinquished and reserved ground, and the 30-day bar in section 30.
- Landholders: priority is about who is considered, not about whether the tenement is granted. Your objection and the Warden’s hearing come after this stage, and no one may enter until compensation is agreed or determined.
Sources
- Mining Act 1992 — ss 7, 30, 97–103, 105–112, 155
- Mineral Resources Authority (Amendment) Act 2018
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.