Section 6 of the Mining Act 1992 starts from the widest possible proposition, and sections 7 and 8 cut it back.
Section 6 — all land is available
Subject to this Act, all land in the State, including all water lying over that land, is available for exploration and mining and the grant of tenements over it.
There is no carve-out for customary land, freehold, State leases, gardens, villages or sacred sites. Section 6 makes every hectare of the country prospectively available for a tenement, and section 4 provides that a dispute about interests in, or the boundaries of, customary land does not affect the right to apply for or be granted a tenement, or the validity of one granted.
What landowners keep is the surface, the right to object and be heard by a Warden, the requirement that no entry occur until compensation is agreed or determined, and the compensation itself.
Section 7 — reservation by the Minister
Where the Minister considers it to be in the best interests of the State, he may, by notice published in the National Gazette, reserve from exploration or mining — or from the non-mechanised alluvial mining allowed by section 9 — any land specified in the notice. The reservation is effective on and from the date of publication.
The notice shall specify the area by reference to latitude and longitude and shall comprise sub-blocks.
The test is broad — the best interests of the State — and the power is exercised by gazettal alone. It can be used for national parks and conservation areas, water catchments and town water supplies, defence and infrastructure corridors, culturally significant places, or ground the State wishes to hold for later allocation.
Section 7(3) to (6) — the effect on applications
| Situation | Effect |
|---|---|
| An application registered before the notice | Unaffected — s 7(4)(a) |
| A tenement registered before the notice | Unaffected — s 7(4)(a) |
| An application to extend the term of such a tenement | Unaffected — s 7(4)(b) |
| The right to apply, and the requirement that an application be registered under s 103(a) | Unaffected — s 7(4)(c) |
| Applications registered over the reserved land | The Registrar shall defer dealing with them under s 103(b) until the reservation is revoked or expires — s 7(3) |
| On revocation or expiry of the reservation | Registered applications are dealt with under s 103(b) — s 7(5) |
| An application by a State Applicant under s 7(5) | Shall be considered as priority by the Registrar — s 7(6) |
Applications over reserved land are not refused. They stay on the register and are deferred. When the reservation goes, they are picked up again in order — subject to the State Applicant priority in section 7(6). Anyone relying on a reservation to protect an area should understand that the queue is still there.
And a reservation cannot be used against an existing holder: section 7(4)(a) and (b) protect both the tenement and its extension.
Section 8 — land reserved under other Acts
(1) An application for a tenement over land reserved for exclusive use under the Land Act or any other Act may not be granted without the consent of the Minister responsible for that reserved land.
(2) Where consent has been obtained, no further consent is required if the tenement is converted to another tenement.
So a second, separate consent is required wherever land has been reserved for exclusive use under other legislation — a reserve or public purpose reservation under the Land Act, or a reservation under conservation, defence, or infrastructure legislation. It is a consent to grant, not to apply.
Consent given once, at exploration licence stage, carries through to a converted tenement — a mining lease or special mining lease over the same ground. The responsible Minister therefore has one opportunity to consider the question, and should be told at that point what the exploration is expected to lead to.
Other protections over particular land
- Environment. A conservation or protected area does not of itself bar a tenement, but the activity needs an environment permit, and a mine will be a level 3 activity requiring full impact assessment. Section 5 of the Environment Act 2000 requires every decision-maker under that Act to recognise and provide for areas of significant biological diversity and the habitats of rare, unique or endangered species, and sources of clean water and subsistence food.
- Compensation. Section 154 requires compensation for damage to the surface, improvements, crops and trees, and for disruption of agricultural activities and social and cultural disruption.
- Objection. Any person may lodge an objection under section 107 and be heard by a Warden under section 108.
- Existing tenements. An alluvial mining lease may not be granted over land already subject to a tenement except under sections 59 and 90, and a lease for mining purposes is subject to the same restriction under sections 75 and 90.
Asking for a reservation
- Identify the land precisely — a reservation notice must describe it by latitude and longitude and comprise sub-blocks.
- Frame the case as the best interests of the State — water supply, food security, biodiversity, cultural significance, public infrastructure.
- Act early. A reservation does not affect a tenement or an application already registered.
- Check whether the land is already reserved under another Act — if so, section 8 gives the responsible Minister a veto on grant.
- Use the objection and hearing process in the meantime; a reservation is not the only protection.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 4, 6–9, 59, 75, 90, 103, 107, 108, 154, 155
- Land Act 1996
- Environment Act 2000 — ss 5, 41–46
- Constitution — s 53; Preamble, Fourth National Goal
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.