Section 108 of the Mining Act 1992 is where landholders meet the tenement system face to face. Every application for the grant or extension of a tenement shall come before a Warden for hearing (s 105(1)).
Section 108(1) — the fair hearing duty
The Warden shall attend at the places and on the dates fixed by the Registrar and shall conduct a hearing in accordance with the procedures in subsection (2) and such other procedures as will afford a fair hearing to:
— the applicant;
— the landholders present at the hearing; and
— such other persons as the Warden considers will be affected by the applicant’s programme or proposals.
The Registrar fixes places as well as dates under section 105(2)(c), and the Warden must attend at them. Hearings are held in or near the affected area, not only in Port Moresby — which is what makes the process usable by people who cannot travel.
The fair hearing requirement echoes section 59 of the Constitution: the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
Section 108(2) — the four mandatory steps
(a) satisfy himself as to the identity of the persons present, and that they are persons affected by the applicant’s programme or proposals;
(b) allow the applicant to explain his programme for exploration, or his proposals for conducting mining or operations ancillary to mining on the land;
(c) record and assess the views of any landholders present concerning the conduct of exploration, ancillary operations or mining on their land; and
(d) record and assess the views of such other persons whom the Warden considers to be affected.
Paragraphs (c) and (d) require more than listening. The Warden must record the views — so they appear in the report — and assess them, that is, form and express a view about them.
That is what makes the hearing worth preparing for. What is said, and how well it is supported, goes into a written report that the Mining Advisory Council must consider under section 110(1)(c).
Paragraph (a) explains why an objection under section 107 should identify the objector’s land and interest: the Warden must satisfy himself that those present are affected persons.
Under section 108(3), the Warden may adjourn the hearing from time to time and from place to place, on such conditions as to costs or otherwise as he thinks fit. If people have not had notice, or the interpreter has not arrived, or the applicant’s proposals have only just been produced, ask for an adjournment.
Preparing for the hearing
- Lodge the written objection first, before the date fixed under section 105(2)(b).
- Get the application and the programme or proposals. Copies are 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).
- Decide who will speak for the group, and on what authority.
- Bring the evidence — dated photographs, sketch maps, GPS points, counts of trees and gardens, records of water sources, burial grounds and sacred sites, and of tracks and access.
- Bring the people. Section 108(2)(c) is about the views of landholders present at the hearing.
- Address the programme or proposals specifically — where the drill pads, the camp, the road, the waste and the water will be.
- Ask for what you want — refusal, a reduced area, or conditions. Under section 110(4)(c) the Council may defer and require the applicant to amend the application or revise the programme or proposals.
- Ask for an interpreter if needed, and ask for an adjournment if you are not ready.
Compensation is a separate process under Part VII: agreement under section 156, which must go to the Chief Warden before execution and then be registered, or determination by a Warden under section 157.
And remember section 154(4) and (5): no compensation may be paid in consideration of permitting entry, and paying it is an offence. Nothing said at a Warden’s hearing changes that.
Section 109 — the Warden’s report
The Warden shall, within 14 days after a hearing, submit a written report on the hearing to the Executive Officer of the Council.
Under section 110(1), the Council shall review and consider that report, together with the reports under sections 103(b)(ii) and 104, and any report submitted by a provincial government advised of the application under section 106(a).
What the Council does with it
| Provision | Material |
|---|---|
| 110(1)(a)–(c) | The reports under sections 103(b)(ii), 104 and 109 (the Warden’s report), and any provincial government report |
| 110(2)(a) | Objections by existing tenement holders under sections 62(1), 78(1) and 94(1) |
| 110(2)(b) | Objections received under section 107 — the general public right |
| 110(3) | The programme (exploration licence, s 24) or the proposals (ss 35, 42, 52, 70, 85) |
| 110(4) | Then: recommend grant, recommend refusal, or defer and require amendment, further information or revised programmes or proposals |
Where the Council defers, the Executive Officer must give the applicant written notification of what is required and the time allowed (s 110(5)); and where the applicant fails to provide it in time, the Council may recommend refusal (s 110(6)).
Section 110(4)(c) is the realistic outcome to aim for in most cases. Outright refusal is rare; a deferral requiring revised proposals — moving a road, relocating a camp, protecting a water source or a burial ground, reducing the area — is achievable, and it is what a well-evidenced hearing produces.
Sources
- Mining Act 1992 — ss 24, 35, 42, 52, 62, 70, 78, 85, 94, 103–110, 154–157
- Constitution — ss 41, 59
- Environment Act 2000
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.