The special mining lease is the apex tenement under the Mining Act 1992. Everything about it is designed for a project of national significance.
Section 33 — who grants it, and to whom
The Head of State, acting on advice, shall, on the application of the holder of an exploration licence who is also a party to a mining development contract, and after considering a recommendation by the Council, grant to the applicant or his assignee a special mining lease over the land, or part of the land, the subject of the exploration licence.
Three features distinguish it from every other tenement:
- it is granted by the Head of State, acting on advice — that is, by the National Executive Council — not by the Minister;
- the applicant must already hold an exploration licence over the land and be a party to a mining development contract; and
- a development forum must have been convened by the Minister before the grant under section 3(1).
A special mining lease shall be on the prescribed form; shall require as a condition that the holder complies with the approved proposals; and may include such other conditions, consistent with the mining development contract, as may be determined by the Head of State, acting on advice.
The words “consistent with the mining development contract” tie the lease conditions to the contract — while section 19 provides that, to the extent of any conflict between the contract and the Act, the Act prevails.
Under section 33(3), the Head of State shall not grant a special mining lease in relation to a Mining Project unless the Minister has first given written notice to the Company — a reference to the State participation machinery in Part IIIA.
Sections 34 and 36 — term and extension
A special mining lease may be granted for a term not exceeding 40 years, which may be extended under section 36.
Forty years is double the maximum for a mining lease and eight times that of an alluvial mining lease. It reflects the scale of capital that a project of this kind requires, and the length of time over which it is recovered.
Under section 36, the Head of State, acting on advice, may extend the term on application by the holder, after considering a recommendation from the Council.
Section 35 — the application
(a) be on the prescribed form, with attached either a schedule describing the corners of the boundary in latitude and longitude plus a sketch map showing the boundary and such natural features as enable the area to be located, or a survey under section 97;
(b) be accompanied by the applicant’s proposals and a statutory declaration that the area has been marked out in accordance with section 96;
(c) be lodged in triplicate with the prescribed application fee; and
(d) otherwise be lodged in accordance with the procedures in Division VI.1.
An exploration licence is applied for by latitude and longitude alone. A special mining lease requires the ground to be physically marked out under section 96, verified by statutory declaration. That matters to landholders: marking out is the first visible sign on the ground that an application is coming, and the applicant swears to having done it.
Section 29 — the effect on the exploration licence
| Stage | Effect |
|---|---|
| Application made | Does not affect the rights and obligations of the exploration licence holder until determined — s 29(1) |
| While pending | The term of the exploration licence continues until the application is determined — s 29(2) |
| On grant | The natural surface and the land beneath it are excised from the exploration licence; all licence rights cease over that land — s 29(3) |
| On surrender, cancellation or expiry of the lease | The excised land reverts to the exploration licence, or is amalgamated with a surrounding tenement — s 29(4) |
The tenements that go with it
A special mining lease covers the mine. The rest of the project sits on other tenements:
- a lease for mining purposes for the treatment plant, tailings and waste, housing and infrastructure, roads, airstrips and ports — whose term is identical to the term of the special mining lease (s 66); and
- a mining easement for roads, railways, ropeways, power lines, pipelines, conveyors, bridges, tunnels and waterways — whose term is likewise identical to the related tenement (s 81).
Under section 37, certain provisions relating to mining leases apply to special mining leases.
What it means for landowners
- The development forum is mandatory, must be held before the grant, and must afford a fair hearing to all participants. Landholders of the lease land and of other tenements to which the proposals relate must be invited.
- Objection rights still apply — section 107 and the Warden’s hearing under section 108.
- No entry until compensation is agreed or determined — section 155.
- Compensation is built from the section 154 heads, including social disruption, and covers neighbouring and nearby land under section 154(6).
- The environment approvals are separate. A mine of this scale is a level 3 activity under the Environment Act 2000, requiring full impact assessment, public review, and the Minister’s approval in principle.
- Forty years is a long time. Ask what happens at the end — rehabilitation obligations, the security under section 150, and any environmental bond under section 99 of the Environment Act.
- Get advice for the group — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 3, 16A, 18, 19, 29, 33–37, 66, 81, 96, 97, 107–110, 150, 154, 155
- Environment Act 2000 — ss 42, 50, 55, 59, 99
- 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.