Section 152 of the Mining Act 1992 deals with what is left on the ground when a tenement ends.
Section 152(1) and (2) — scope and definitions
“Mining plant” means any building, plant, machinery, equipment, tools or other property of any kind, whether or not affixed to land.
“Prescribed period” means three months, or such longer period as the Managing Director may determine, after a tenement expires, is surrendered or is cancelled, or land is relinquished.
The definition of mining plant is very wide, and the words “whether or not affixed to land” displace the ordinary rule that fixtures pass with the land. A camp, a workshop, a mill, a conveyor and a power station are all mining plant.
This section does not apply to a tenement the subject of a mining development contract.
For the largest projects — those on a special mining lease, which requires such a contract — closure is governed by the contract instead. That makes the closure and rehabilitation terms of the contract a matter landholders should ask about at the development forum, since section 152 will not apply.
Section 152(3) and (4) — removal, and sale by the State
When a tenement expires, is surrendered or cancelled, or land is relinquished, the person who was the holder may, within the prescribed period, remove any mining plant from the land.
Where it is not removed, the Managing Director may arrange for it to be sold by public auction or public tender and removed — and the proceeds shall be retained by the State.
A landholder left with an abandoned camp or mill does not become its owner, and does not receive the sale proceeds. What the landholder has is:
- compensation under section 154 for damage to the surface and improvements, deprivation of use, and disruption — including loss foreseen to be suffered;
- the ability to have unpaid compensation deducted from the security before any balance is returned (ss 139(2), 143(2), 144(2)); and
- the possibility of a section 152(6) agreement.
Section 152(5) — tailings, materials and mined ore
Where, at the time the tenement ends, the former holder (a) leaves upon the land any tailings, other materials or mined ore, and (b) does not, within the prescribed period, either remove or complete treatment of them, those tailings, other materials and mined ore shall, at the expiration of the prescribed period, become the property of the State.
Ownership passes to the State — consistently with section 5, under which all minerals are the property of the State, and with sections 41(2)(b) and 51(2)(b), under which a holder owns only what he has lawfully mined.
They are an environmental liability. Under the Environment Act 2000, tailings and waste sit on a lease for mining purposes, the activity requires an environment permit, and permit conditions under section 66 may require rehabilitation of the affected area and an environmental bond.
The general environmental duty applies to everyone, and a Clean-up Order may be issued for harm caused by a contravention — with the Director able to do the work and recover the uncapped cost as a civil debt.
Section 152(6) — agreements with the landholder
Nothing in this section affects a valid agreement made by the former holder with the landholder of any land to which the tenement relates in respect of mining plant left on such land after the prescribed period — and the section shall be construed subject to such an agreement.
A landholder group may agree with the holder that particular assets stay: a workshop, a water supply, a generator, an airstrip, a road, staff housing, a school or aid post building.
Do it in a written agreement, and do it well before closure — not in the last weeks, when the equipment is already being loaded. Deal expressly with condition, spares, fuel, maintenance, and who is responsible for anything left that turns out to be a liability rather than an asset.
Section 152(7) — timber and support material
Notwithstanding the preceding provisions, no timber or other material used and applied in the construction or support of any shaft, drive, gallery, adit, terrace, race, dam or other mining work shall be removed without the consent in writing of an inspector.
This is a safety provision, and it overrides the removal right. Stripping the timber out of a shaft or the material out of a dam or race creates an obvious danger to anyone in the area afterwards. The consent must come from an inspector — a reference to the safety regime under the Mining (Safety) Act (Chapter 195A).
The security, and what it covers
Under section 150, a tenement holder must lodge a security within 30 days of being notified of the grant, for compliance with his obligations under the Act. On surrender, cancellation or expiry, the Registrar deducts from it:
- any fee, rent, royalty, compensation, penalty or other money payable on or before that date; and
- any costs incurred by the Authority in ensuring that any other liabilities are met,
and remits only the balance to the former holder (ss 139(2), 143(2), 144(2)). And on a surrender, section 139(1) requires the Registrar first to satisfy himself that the holder has complied with the conditions relating to the cessation of operations, restoration of the land and surrender.
Checklist for landholders as a mine winds down
- Get compensation settled and on the record — agreed and registered, or determined by a Warden — before the tenement ends.
- Tell the Registrar in writing of any unpaid compensation so it is deducted from the security.
- Ask what the prescribed period is — three months, or longer if the Managing Director has determined one.
- Negotiate a section 152(6) agreement for anything the community wants to keep, in writing and early.
- Do not let mine workings be stripped — section 152(7) requires an inspector’s written consent.
- Ask about rehabilitation under the tenement conditions and under the environment permit, and about any environmental bond.
- Record the condition of the land as the operation closes, with dated photographs.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 5, 41, 51, 139, 143–145, 150, 152, 154–160, 167
- Environment Act 2000 — ss 7, 66, 99, 103, 105
- 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.