The Mining Act 1992 does not give landowners a veto. Section 6 makes all land available for tenements, and section 4 provides that a customary land dispute does not affect the right to apply for or be granted one. What it gives instead is a series of defined opportunities to be heard.
The five opportunities
| Opportunity | When | Before whom | What it can achieve |
|---|---|---|---|
| Objection — s 107 | Before the date fixed by the Registrar, at least 30 days after registration | Lodged with the Registrar | Puts your case into the material the Council must consider — s 110(2)(b) |
| Warden’s hearing — s 108 | 7 to 14 days after objections close | A Warden, in or near the area | Views recorded and assessed in a report to the Council within 14 days |
| Development forum — s 3 | Before the grant of a special mining lease | The Minister | A fair hearing to all participants; the setting for benefit arrangements |
| Compensation — Part VII | Before entry — s 155 | Negotiation, the Chief Warden, then a Warden | The amount, times and mode of payment; a tenement condition under s 159 |
| Environmental public review | During assessment of the impact statement | The Director of Environment and the Environment Council | Submissions the Council must have regard to — s 58(2)(k) |
What each can realistically change
Outright refusal of a tenement is rare. What a well-evidenced case most often produces is a deferral under section 110(4)(c), in which the Council requires the applicant to amend the application or provide revised programmes or proposals.
Because compliance with the approved programme or proposals is a mandatory condition of every tenement, whatever is written in at that point becomes enforceable — and its breach a ground for cancellation under section 142.
So frame the case around changes: move the road, relocate the camp, protect the water source, keep the burial ground and the sacred sites out, reduce the area, fix the access crossings, set the monitoring.
The environmental process offers the same leverage in a different form. Under section 58(1) of the Environment Act 2000, the Environment Council may specify the conditions to which a proposed activity should be subject when recommending approval in principle — and under section 55(6) the Director may refer issues raised in public review back to the proponent and require the impact statement to be amended.
Why timing decides everything
Except in the case of fraud, no informality or irregularity in the application, or in the proceedings previous to the grant or extension, shall affect the title of the registered holder.
Once a tenement is granted and registered, complaints about the process that led to it do not unwind it. The time to act is before the grant.
Watch for the two early signals:
- Marking out — corner posts at least 1.2 m high and cleared or marked boundaries must be in place before an application for any tenement other than an exploration licence, and must be maintained.
- Notice of the application — under section 106 a copy goes to the provincial government, the National Gazette, the nearest District and Sub-District Offices, a national newspaper, and is continuously posted at the headquarters of the Authority.
The recurring opportunity: extension
(a) complied with the conditions during the previous term;
(b) paid compensation as required by this Act; and
(c) submitted a programme for the extended term the Council recommends for approval.
And under section 28(4), on the compensation question the Council shall rely on the advice of the Chief Warden.
An exploration licence comes up for extension every two years, and section 107 allows any person to object to an extension as well as a grant. If compensation is unpaid or commitments have not been honoured, that is the moment to say so — in writing, to the Registrar and to the Chief Warden.
Organising to be effective
- Settle who speaks for the group, and on what authority. The Minister invites persons who will fairly represent the views of the landholders; the Warden must satisfy himself that those present are affected persons. An incorporated land group with a constitution and a membership list is the most defensible basis.
- Settle boundaries and membership before a project arrives. A land dispute does not stop the tenement; it only delays payment, which goes into a statutory trust until resolved.
- Build the record early — dated photographs, GPS points, sketch maps, counts of trees and gardens against the Valuer-General’s published values, improvements, earnings, water sources, tracks, burial and sacred sites.
- Get your own advisers, engaged and paid for by the group.
- Put everything in writing, and keep copies.
- Never accept a payment for permitting entry — section 154(4) and (5) makes it unpayable and makes paying it an offence.
- Do not obstruct physically. Section 167(4)(h) makes obstructing the exercise of a right under the Act an offence. Record it, and take it to the Warden and the Registrar.
After a tenement is granted
- Compensation still has to be settled before entry for mining — section 155.
- Conditions are enforceable: breach is a ground for a show-cause notice and cancellation.
- Unpaid compensation blocks extension and is deducted from the security on surrender, cancellation or expiry.
- The environment permit has its own conditions, monitoring reports on a public register, and its own suspension and cancellation regime — including for unpaid compensation under section 87, on application by the person entitled.
- Closure is governed by section 152 and by the rehabilitation conditions under both Acts.
Get advice early — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 3, 4, 6, 28, 96, 97, 105–112, 120, 142, 150, 152, 154–160, 167
- Environment Act 2000 — ss 5, 55, 58, 72, 87, 131
- Land Disputes Settlement Act (Chapter 45)
- 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.