Part VA of the Mining Act 1992 is a self-contained regime for the State to hold tenements in its own right. It opens with an override.
Section 95A — the override
The provisions of this Part apply to the State Applicant and are applicable notwithstanding any other provision in this Act, or any other laws.
That is unusually wide language — it reaches beyond the Mining Act to any other laws. Where Part VA says something different from the rest of the Act, Part VA governs.
Sections 95B and 95C — what land it applies to
“Reserved land” means land that is the subject of an expired, cancelled, surrendered, or relinquished tenement that has been reserved under section 95C.
(1) Reserved land shall be dealt with under section 7 of this Act — the Minister’s power to reserve land by notice in the National Gazette.
(2) Subject to this Act, the State shall have the right to do exploration and mining through a State nominee or a subsidiary duly established for the purpose.
- A tenement expires, is cancelled, surrendered or relinquished — including the half-area relinquishment required at each exploration licence extension under section 22(2).
- The Minister reserves that land under section 7, by National Gazette notice.
- Under section 7(3), the Registrar defers dealing with other registered applications over it.
- A State Applicant may then apply under section 95D — and under section 7(6), such an application shall be considered as priority by the Registrar.
The effect is a right of first refusal for the State over ground that has been worked and given up.
Sections 95D and 95E — application and grant
A State Applicant may apply for a tenement in relation to reserved land. The application shall be in the prescribed form. And no fees shall be imposed on applications under this Part.
The Head of State, acting on the advice of the Minister, consistent with the recommendation of the Mining Advisory Council, shall, on the application by a State Applicant and after considering a recommendation by the Council, grant the tenement.
The tenement shall be in the prescribed form, shall require as a condition that the State Applicant complies with the approved proposals, and may include such other conditions as the Minister determines on the Council’s advice (s 95E(2)).
Under section 95E(3), the State Applicant may enter into a Mining Development Contract or other agreement in respect of the tenement granted — the route by which a partner is brought in to fund and operate the project.
The grant is made by the Head of State, acting on advice, for any tenement under this Part — not only for a special mining lease, as under section 33. And the advice must be consistent with the recommendation of the Mining Advisory Council.
Section 95F — other permits and authorisations
Following the grant, the State Applicant may apply, under the relevant laws, for permits, licences, authorisations, or other enabling instruments granted by the State in relation to the reserved land or operations on it.
The other approvals are not dispensed with. The State Applicant must still obtain an environment permit under the Environment Act 2000, and must comply with the Mining (Safety) Act (Chapter 195A).
Section 95G — consultation, and the forum
(a) the landholders of the land the subject of the tenement;
(b) the relevant provincial government; and
(c) the National Government,
on the tenement and matters pertinent to the mining operations.
Notwithstanding section 3, a development forum may be convened by the Minister. Section 3(4) says the same thing from the other direction: for a State Applicant, a forum may be convened following the grant of a special mining lease.
So the ordinary rule — that a forum shall be convened before the grant — does not apply. What replaces it is the section 95G(1) duty to take active steps to consult landholders.
Landholders should therefore engage early and in writing, ask what consultation is planned and when, and ask the Minister to convene a forum. “Active steps” is a real standard, and a record of what was and was not done is what makes it enforceable.
Sections 95H and 95I — encumbrances and disputes
The State Applicant shall not be liable for any encumbrances related to the expired, cancelled, surrendered, relinquished or terminated tenement.
It relieves the State Applicant of encumbrances relating to the former tenement — mortgages, charges and registered dealings created by the previous holder.
It does not displace the State Applicant’s own obligations under Part VII. Section 154 makes the holder of a tenement liable to pay compensation for his entry or occupation, and section 155 forbids entry until compensation is agreed or determined. A new holder cannot rely on section 95H to avoid compensating for its own operations.
Unpaid compensation owed by the former holder is a different question, and one on which landholders should take advice quickly — a claim against a departed holder is worth far less than a claim against one still on the ground.
Any dispute arising out of any matter under this Part must be settled in Papua New Guinea under Papua New Guinean laws.
That is a deliberate contrast with section 17(1)(b), which allows a section 17 agreement to provide for the settlement of disputes by international arbitration. For State Applicant tenements, the forum and the governing law are domestic.
What landowners should do
- Watch the National Gazette for reservations under section 7 over ground given up near you.
- Ask the Registrar what is registered and what has been reserved.
- Do not wait for a development forum — it may come after the grant, or not at all.
- Insist on the section 95G(1) consultation, in writing, and keep a record of what was said and by whom.
- Assert compensation rights early — section 154 and the section 155 bar on entry apply to a State Applicant like any other holder.
- Ask about unpaid compensation from the previous holder before it disappears.
- Ask about the environment approvals under section 95F.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 3, 7, 17, 22, 33, 95A–95I, 154, 155; Part VA
- Environment Act 2000
- 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.