The Mining Act 1992 replaced an older regime built around prospecting authorities, claims and leases. Part X of the Act carried what existed into the new system.
Sections 171 and 172 — repeal, and pending matters
The Acts specified in Schedule 1 are repealed — principally the former Mining Act (Chapter 195).
Where, immediately before commencement, any action, arbitration or proceeding was pending, or any cause of action was pending or existed in respect of a tenement or authority granted, renewed or continued under the repealed Acts, it does not abate and is not affected, and may be prosecuted, continued and enforced as if this Act had not been made.
Section 173 — what was preserved untouched
Nothing in this Act shall affect the provisions of the Acts and the agreements specified in Schedule 2.
And notwithstanding anything in this Act, a special mining lease issued under the repealed Acts and those provisions shall continue in full force and effect as though the repealed Acts had not been repealed.
Schedule 2 covers the project agreement statutes — among them the Mining (Bougainville Copper Agreement) Act and the Mining (Ok Tedi Agreement) Act with its supplemental agreement Acts. This is the counterpart of section 3(2), under which the Act applies to projects governed by those statutes only to the extent that those Acts provide for its application.
- Section 173(3) — subject to the relevant agreement, a person may apply under this Act for a tenement over part or all of land the subject of a prospecting authority or lease granted under the repealed Acts.
- Section 173(4) — any reservation of land in force under the repealed Acts continues in full force and effect.
- Section 173(5) — the royalty provisions of the repealed Acts continued until the Mining (Royalties) Act 1992 came into operation — with the 5% figure in section 107(2) of the repealed Act read as 20%, and payable in respect of a special mining lease and mining lease under the new Act.
Sections 174 to 177 — conversion of old titles
| Old title | Becomes | Section |
|---|---|---|
| Prospecting authority | Exploration licence | 174(1)(a) |
| Lease for mining purposes (old) | Lease for mining purposes | 174(1)(a) |
| Special mining easement | Mining easement | 174(1)(a) |
| Mining leases and claims — ordinary reef claim for gold, ordinary reef claim for other minerals, ordinary alluvial claim for gold, and the other tenements listed | Mining lease or alluvial mining lease | 175 |
| Ancillary areas | Lease for mining purposes | 176 |
| Land areas converted to titles under other legislation | Dealt with by section 177 | 177 |
A converted tenement remains in force for the unexpired period for which it was granted or renewed under the repealed Acts, unless sooner terminated according to law.
And, unless inconsistent with this Act, it is subject to the conditions and encumbrances in force immediately before commencement — other than a condition restricting the scope of a prospecting authority to certain minerals.
The exclusion of mineral-specific restrictions on a prospecting authority reflects the design of the new exploration licence, which is not confined to particular minerals.
And under section 174(2), the citizen ownership requirement in section 38(2) — that a mining lease for the sole purpose of mining alluvial minerals be held by a citizen or a majority citizen-owned entity — does not apply to a mining lease granted to the holder of an exploration licence converted from a prospecting authority.
Sections 178 to 181 — applications, mortgages, officers and consents
- Section 178 — disposal of applications pending under the repealed Acts.
- Section 179 — mortgages, other encumbrances and agreements, carried into the new registration system in Division VI.2. See transfers and dealings.
- Section 180 — officers.
- Section 181 — consents and compensation agreements to follow the land.
Consents and compensation agreements follow the land. An agreement made with a previous holder, in respect of particular land, is not extinguished by the change of statute or of holder.
If your group has an old compensation agreement, find it. Read with section 159, a compensation agreement is a condition of the tenement and binding as a contract — and unpaid compensation blocks extension and is deducted from the security.
Section 182 provides that references to the repealed Acts are read as references to this Act, and section 183 allows regulations to resolve difficulties with transitional provisions.
The same pattern under the Environment Act
The Environment Act 2000 did the same job for environmental approvals. Section 134 repealed the Environmental Planning Act, the Environmental Contaminants Act and the Water Resources Act; section 135 reads references to them as references to the new Act; and section 136 continues approvals, permits and licences in force, deeming them to be corresponding environment permits.
That is why the water rights conferred by sections 23, 41, 51 and 69 of the Mining Act — expressed to be subject to the Water Resources Act (Chapter 205) — are now governed by Part VII of the Environment Act.
Checking an old title today
- Search the Register of Tenements — a converted tenement appears there as the corresponding new tenement.
- Ask what conditions carried over under section 174(1)(c), and whether any were inconsistent with the new Act.
- Check the unexpired term, and whether it has since been extended.
- Look for old compensation agreements and consents — section 181 makes them follow the land.
- Check whether the project is governed by a Schedule 2 agreement statute; if so, the Mining Act applies only so far as that statute provides.
- Check the environment position separately — an approval under a repealed Act may continue as a deemed environment permit under section 136 of the Environment Act.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 3, 23, 38, 41, 51, 69, 159, 171–183; Schedules 1 and 2
- Environment Act 2000 — ss 134–136
- Mining (Bougainville Copper Agreement) Act
- Mining (Ok Tedi Agreement) Act
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.