For every tenement except an exploration licence, the Mining Act 1992 requires the ground to be marked on the ground before anything else happens.
Section 96 — marking out
(a) mark out each corner of the land by erecting a distinctively coloured hardwood, metal or concrete post standing at least 1.2 m above the surface, or such survey marks as the survey directions permit; and
(b) either clear lines along the boundaries or place distinctively coloured markers at sufficiently close spacing to indicate the boundaries clearly; or comply substantially with those requirements to the satisfaction of the Managing Director, to the extent that the land has been sufficiently identified to be located in the field.
Marking out is usually the first visible sign that an application is coming. Posts appear at the corners; lines are cleared or markers placed along the boundaries.
If you see them, act. Ask who placed them and under what authority, photograph them with dates, record the GPS positions, and ask the Registrar of Tenements what application is on foot. The objection period runs from the notice of the application under section 106, and the marking out is your warning that it is close.
The applicant shall maintain the posts, markers or cleared lines until the application is determined; and the holder shall maintain them during the term of the tenement.
Under section 96(4), the Managing Director may grant a person not otherwise authorised the right, on the prescribed form, to enter land for the purposes of marking out and maintaining the marks. And under section 96(5), a person carrying out that work shall not interfere unreasonably with the activities undertaken on the land.
People arriving to peg your land should be able to show either the tenement application or a section 96(4) authority on the prescribed form. And whatever they hold, section 96(5) requires them not to interfere unreasonably with what you are doing on the land — gardens, stock, ceremonies.
Marking out is not entry for exploration or mining. Under section 155 there is no entry or occupation for the purpose of mining until compensation is agreed or determined.
Section 97 — survey
Prior to the grant of a tenement (other than an exploration licence), the boundary shall be surveyed. The survey shall:
(a) be made by a registered surveyor or under the direction of a registered surveyor;
(b) be at the cost of the applicant;
(c) conform to a class of survey permitted under the survey directions; and
(d) include a schedule on the prescribed form describing the corners of the boundary in latitude and longitude.
Surveying is governed by the Survey Act. As with marking out, section 97(2) allows the Managing Director to authorise entry for survey on the prescribed form, and section 97(11) requires the surveyor not to interfere unreasonably with the activities undertaken on the land.
Section 97(4) and (5) — lodging and publication
(a) where it confirms that all the land is available for the purpose applied for — publish a copy of the survey schedule in the National Gazette; or
(b) where only part is available — prepare a revised schedule of the land that is available, publish it in the National Gazette, and send a copy to the applicant.
So the surveyed boundary of a proposed tenement is published in the National Gazette. That is a public record worth checking, in latitude and longitude, against the land you claim.
Sections 97(6) to (8) — where a survey is not yet available
Where a survey is not available at lodgement, the application shall nevertheless be dealt with. If the Head of State acting on advice, or the Minister, is prepared to grant subject to the survey confirming the availability of a substantial portion of the land, the Minister shall give the applicant 90 days’ notice to lodge a survey.
Where the survey is then lodged and the land is available, the application shall be granted (s 97(7)).
Where the applicant fails to lodge a survey, or the survey shows none of the land is available, the application shall be refused (s 97(8)).
Survey is expensive, and section 97(6) lets an applicant avoid incurring it before knowing whether the tenement will be granted at all. The trade-off is a hard 90-day deadline once notice is given, and mandatory refusal if it is missed.
Sections 97(9) and (10) — boundary disputes
Where there is a dispute as to the location of a boundary, the Registrar shall arrange for the disputed boundary to be surveyed, and the costs shall be met by the party or parties claiming a location different from that surveyed.
Where the Registrar considers a party may default on payment, he may require each party to lodge a bond sufficient to cover the cost before arranging the survey.
Whoever turns out to be wrong pays. That is a discipline on frivolous boundary claims — but also a reason for a landholder to be confident of the position before disputing it. Gather the evidence first: the gazetted schedule, the pegs on the ground, and your own GPS record.
Note that this is a dispute about the boundary of a tenement. A dispute about interests in customary land or the position of customary boundaries is a different matter: under section 4 it does not affect the right to apply for or be granted a tenement, and it is settled under the Land Disputes Settlement Act (Chapter 45).
Sections 98 and 99 — where and when to lodge
- Section 98(1) — an application for the grant of a tenement shall be lodged with the Registrar, at his office in the National Capital District, by the applicant in person or by his agent. Not by mail.
- Section 98(2) — an application for an extension may be lodged in person, by an agent, or by mail.
- Section 99 — an applicant who lodges an extension application less than 90 days before expiry shall pay a late fee equal and additional to the prescribed fee.
The in-person requirement for grants matters because of priority: under section 100, where two or more applications are made, the order of lodgement can decide who gets the ground.
Checklist
- Mark out before applying — corner posts at least 1.2 m above the surface, and boundaries cleared or marked.
- Maintain the marks through the application and the whole term.
- Engage a registered surveyor, at your own cost, to a permitted class of survey.
- Lodge the survey with the application, or within the 90 days once notice is given.
- Check the gazetted schedule against what you applied for.
- Lodge in person or by agent in the National Capital District for a grant.
- Apply for extensions at least 90 days before expiry to avoid the double fee.
- Landholders: photograph the pegs, record their positions, and ask the Registrar what has been lodged.
Sources
- Mining Act 1992 — ss 4, 35, 42, 52, 70, 85, 96–100, 106, 155
- Survey Act — PacLII 1986 Revised Edition
- Land Disputes Settlement Act (Chapter 45)
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.