Section 3 of the Mining Act 1992 is headed simply Consultation. It is the provision that gives landholders a formal seat at the table before the largest projects are approved.
Section 3(1) — the obligation
A development forum shall be convened by the Minister before the grant of any special mining lease, to consider the views of those persons whom the Minister believes will be affected by the grant, and shall be conducted by the Minister according to such procedures as will afford a fair hearing to all participants.
- “Shall be convened” — it is mandatory, not discretionary.
- “Before the grant” — not after the decision is effectively made.
- “By the Minister” — convened and conducted by the Minister, not by the developer.
- “A fair hearing to all participants” — the procedures must actually allow each participant to be heard.
The fair hearing requirement echoes section 59 of the Constitution — the principles of natural justice, whose minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly.
Note the trigger: a special mining lease. Under section 33(1) such a lease may be granted only to the holder of an exploration licence who is also a party to a mining development contract, and under section 18 the Minister requires such a contract where the size or distribution of the deposit, the method, the infrastructure or the economics make one necessary. So the forum is reserved for the country’s largest mines.
Section 3(2) — who must be invited
(a) the applicant for the special mining lease;
(b) the landholders of the land the subject of the application — and of other tenements to which the applicant’s proposals relate;
(c) the National Government; and
(d) the provincial government, if any, of the province in which the land is situated.
Landholders of the land under the special mining lease must be invited — and so must landholders of other tenements to which the proposals relate. That takes in the ground under a lease for mining purposes (tailings, camps, roads, airstrips, ports) and under a mining easement (pipelines, power lines, conveyors).
Communities along a pipeline or haul road, or beneath a tailings facility, are entitled to be represented even though the mine itself is elsewhere. If your land is affected by any tenement in the project, ask in writing to be represented.
The Minister invites representatives, not every individual. That makes the question of who represents the landholders critical — and it is a question the landholders themselves should settle, in writing, before the forum is convened.
An incorporated land group with a clear membership and executive is the most defensible basis for representation. Where representation is contested, say so to the Minister in writing rather than letting the choice be made for the group.
Section 3(3) — consultation before a mining lease
Before the grant of any mining lease the Minister shall consult with the provincial government, if any, in whose province the mining lease will be located.
A mining lease does not attract a development forum — but provincial consultation is mandatory. Landholders concerned about a mining lease should therefore make their case to two audiences: the Warden, through an objection and hearing under sections 107 and 108, and the provincial government, which the Minister must consult.
Section 3(4) — the State Applicant exception
Notwithstanding subsection (1), a development forum may be convened by the Minister following the grant of a special mining lease to a State Applicant under Part VA.
For a State Applicant, the forum may come after the grant rather than before it. Part VA contains its own consultation provision in section 95G, and section 95F deals with permits and other authorisations.
What the forum is, and what it is not
| Process | Who runs it | What it decides |
|---|---|---|
| Development forum (s 3) | The Minister | Nothing directly — it considers the views of those affected before the grant |
| Warden’s hearing (ss 107–109) | A Warden | Hears objections; the Warden reports to the Council |
| Council recommendation (s 110) | The Mining Advisory Council | Recommends grant or refusal to the Minister |
| Compensation (ss 154–157) | The parties, then a Warden | The amount, times and mode of compensation |
| Public review of the impact statement | The Director of Environment | Submissions feeding the Environment Council’s recommendation and the Minister’s approval in principle |
Compensation is governed by Part VII, is built from the section 154 heads, and under section 156 any agreement must go to the Chief Warden before execution and then be registered.
And remember section 154(4) and (5): no compensation may be paid in consideration of permitting entry, for the value of minerals, or by reference to rent or royalty — and paying it is an offence. Nothing said at a development forum changes that.
Preparing for a development forum
- Settle representation first — who speaks for the landholders, and on what authority. Record it in writing.
- Ask in writing to be invited, identifying the land and the tenement it falls under, including leases for mining purposes and easements.
- Ask for the material in advance — the proposals, the tenement applications, and the environmental impact statement.
- Ask for time. A fair hearing requires an opportunity to prepare, not just to attend.
- Bring your own advisers, engaged and instructed by the group.
- Prepare a written statement and hand it in, so the views are on the record.
- Keep the separate processes separate — objections to the Warden, compensation under Part VII, and submissions on the environmental impact statement.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 3, 18, 33, 38, 95F, 95G, 107–110, 154–157
- Environment Act 2000 — ss 5, 51, 55, 58, 59
- Constitution — ss 41, 59
- Land Groups Incorporation Act — PacLII 1986 Revised Edition
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.