Section 110 of the Mining Act 1992 sets out how every tenement application is decided.
Section 110(1) to (3) — the material
(a) the report under section 103(b)(ii);
(b) the reports of officers under section 104;
(c) the Warden’s report on the hearing under section 109;
and any report submitted by a provincial government advised of the application under section 106(a).
(a) objections by existing tenement holders under sections 62(1) (alluvial mining lease), 78(1) (lease for mining purposes) and 94(1) (mining easement); and
(b) objections received under section 107 — the general public right.
For an exploration licence — the programme submitted under section 24.
For a special mining lease, mining lease, alluvial mining lease, lease for mining purposes or mining easement — the proposals submitted under sections 35, 42, 52, 70 or 85 respectively.
Section 110(4) — the three possible recommendations
| Recommendation | What follows | |
|---|---|---|
| (a) | Recommend the grant or extension | The Minister — or the Head of State, acting on advice — decides |
| (b) | Recommend refusal | The application is refused |
| (c) | Defer further consideration and request the applicant to amend the application or provide further information or revised programmes or proposals under sections 26, 43, 53, 71 or 86, within a reasonable time specified | The Executive Officer notifies the applicant in writing (s 110(5)); failure to comply in time allows the Council to recommend refusal (s 110(6)) |
Outright refusal is rare. What a well-evidenced objection and a well-run Warden’s hearing most often produce is a deferral under section 110(4)(c), with the applicant sent back to revise the programme or proposals.
That is the point at which a road can be moved, a camp relocated, a water source or burial ground protected, or an area reduced — and, because compliance with the approved programme or proposals is a mandatory condition of the tenement, whatever is written in becomes enforceable.
So frame objections in terms of what should change, not only that the tenement should be refused.
Who makes the final decision
| Tenement | Granted by | Section |
|---|---|---|
| Exploration licence | The Minister, after considering a Council recommendation | s 20(1) |
| Special mining lease | The Head of State, acting on advice, after considering a Council recommendation | s 33(1) |
| Mining lease | The Minister | s 38(1) |
| Alluvial mining lease | The Minister | s 48(1) |
| Lease for mining purposes | The Minister | s 65(1) |
| Mining easement | The Minister | s 80(1) |
| Tenement to a State Applicant | The Head of State, acting on the advice of the Minister, consistent with the Council’s recommendation | s 95E(1) |
Two additional requirements apply before particular grants:
- a development forum must be convened before the grant of any special mining lease (s 3(1)); and
- the Minister shall consult the provincial government before granting any mining lease (s 3(3)).
Section 44 separately deals with refusal to grant a mining lease, and section 28(2) allows the Minister to refuse to extend an exploration licence where he considers it in the best interests of the State.
Section 111 — what happens on grant
(a) advise the applicant of the Minister’s decision;
(b) require the prescribed rent within 30 days;
(c) on a grant, require the prescribed security within 30 days; and
(d) publish notice of the grant or extension in the National Gazette.
Failure to pay the rent or lodge the security allows the Minister to cancel the grant or extension (s 111(2)). On compliance, the Registrar issues a title document on the prescribed form (s 111(3)).
Under section 112, where an extension is applied for before expiry, the tenement continues in force until the application is determined, and the extended term is deemed to have commenced the day after it would otherwise have expired.
If you disagree with the decision
The Mining Act contains no general merits appeal against a decision to grant a tenement. What is available is:
- The processes before the decision — objection, hearing, provincial report and, for a special mining lease, the development forum. Use them.
- Compensation, which is separate: a Warden’s determination under section 157, with an appeal under section 158.
- Judicial review in the National Court where a decision is affected by legal error — under Order 16 of the National Court Rules and section 155(4) of the Constitution, read with section 59 (natural justice) and section 41.
- The environment process, which has its own review by the Environment Council within 21 days and an appeal to the National Court on a question of law.
Get advice quickly — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 3, 20, 24, 26, 28, 33, 35, 38, 42–44, 48, 52–53, 62, 65, 70–71, 78, 80, 85–86, 94, 95E, 103–112, 157, 158
- Environment Act 2000 — ss 68, 69
- Constitution — ss 41, 59, 155(4)
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.