Mining Act 1978 - 06-b0-01

Western Australia

Mining Act 1978

An Act to consolidate and amend the law relating to mining and for incidental and other purposes.

Part I — Preliminary

1. Short title

This Act may be cited as the Mining Act 1978 1.

2. Commencement

(1) The long title, the heading Part I — Preliminary, section 1, this section, the heading Second Schedule, and clause 3 of the Second Schedule shall come into operation on the day on which this Act receives the Royal Assent 1.

(2) The remaining provisions of this Act shall come into operation on a date to be fixed by proclamation 1.

[3. Omitted under Reprints Act 1984 s. 7(4)(f).]

4. Transitional provisions

The transitional provisions set forth in the Second Schedule, as from time to time modified to prevent anomalies or otherwise affected by the operation of clause 15 of that Schedule, shall have effect without prejudice, except in so far as those transitional provisions are not consistent with such an application, to the application of —

(a) in so far as that Act applies, the Interpretation Act 1918 2 and in particular sections 15 and 16 thereof; and

(b) in any other case, the Interpretation Act 1984 and in particular Part V thereof.

[Section 4 inserted by No. 100 of 1985 s. 3.]

5. Saving

(1) Nothing in this Act shall affect the provisions of any Act in force on the commencing date that approves or ratifies any agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations pursuant to the agreement.

(2) Notwithstanding anything in the Second Schedule, a party to an agreement referred to in subsection (1) —

(a) who is the holder of an existing mining tenement under that agreement may continue, subject to that agreement, to exercise the rights conferred by that mining tenement; or

(b) to whom an existing right of occupancy has been granted under section 276 of the repealed Act or that agreement, or under both section 276 of the repealed Act and that agreement, as the case requires, may continue, subject to that agreement, to exercise that right of occupancy,

as though the repealed Act had not been repealed.

(3) Subject to the relevant agreement referred to in subsection (1), a person may, in accordance with this Act, apply for a mining tenement in respect of an area or part thereof that is the subject of a mineral lease granted in accordance with that agreement.

[Section 5 amended by No. 69 of 1981 s. 5.]

6. Operation of this Act

(1) This Act shall be read and construed subject to the Environmental Protection Act 1986, to the intent that if a provision of this Act is inconsistent with a provision of that Act, the first‑mentioned provision shall, to the extent of the inconsistency, be deemed to be inoperative.

(1a) Notwithstanding subsection (1) and section 5 of the Environmental Protection Act 1986, in the case of an application for a mining lease accompanied by the documentation referred to in section 74(1)(ca)(ii) —

(a) only the applicant can refer a proposal to which the application relates under section 38(1) of that Act; and

(b) section 38(5) of that Act does not apply to such a proposal.

(1b) In subsection (1a) —

“proposal” has the meaning given to that term in section 3(1) of the Environmental Protection Act 1986.

(1c) Subsection (1a) does not apply to an application for a mining lease made pursuant to a Government agreement as defined in section 2 of the Government Agreements Act 1979.

(1d) If a mining lease is granted on an application referred to in subsection (1a), nothing in that subsection affects the application of section 38 of the Environmental Protection Act 1986 to —

(a) a programme of work lodged by the holder of the mining lease in compliance with the condition referred to in section 82(1)(ca); or

(b) a mining proposal lodged by the holder of the mining lease in compliance with the condition referred to in section 82A.

(2) Notwithstanding anything in this Act —

(a) a local government is not required to hold a mining tenement to —

(i) exercise the power given to it by section 3.27 of, and clause 3 of Schedule 3.2 to, the Local Government Act 1995; or

(ii) remove from local government property (as defined in that Act), rock, stone, clay, sand or gravel for use in the construction of local government facilities;

and

(b) if a local government leases local government property to another person, that person is not required to hold a mining tenement to remove from that land, rock, stone, clay, sand or gravel for use in the construction of local government facilities, unless the Minister requires that person to hold a tenement.

[Section 6 amended by No. 100 of 1985 s. 4; No. 77 of 1986 s. 8; No. 14 of 1996 s. 4; No. 39 of 2004 s. 26.]

[7. Repealed by No. 122 of 1982 s. 4.]

8. Interpretation

(1) In this Act, unless the contrary intention appears —

“agricultural” used in relation to the purposes for which land is occupied, includes cropping or pasturing purposes;

“burial ground” means an area of land reserved or demarcated exclusively for the purpose of burials;

“commencing date” means the date of the coming into operation of the provisions of this Act referred to in section 2(2) 1;

“Corporations Act” means the Corporations Act 2001 of the Commonwealth;

“Crown land” means all land in the State, except —

(a) land that has been reserved for or dedicated to any public purpose other than —

(i) land reserved for mining or commons;

(ii) land reserved and designated for public utility for any purpose under the Land Administration Act 1997;

(b) land that has been lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown;

(i) a pastoral lease within the meaning of the Land Administration Act 1997, or a lease otherwise granted for grazing purposes only;

(ii) a lease for timber purposes; or

(iii) a lease of Crown land for the use and benefit of the Aboriginal inhabitants;

(d) land that is a townsite within the meaning of the Land Administration Act 1997;

“dam” means any accumulation or storage of water, whether natural or artificial;

“damage”, in relation to agricultural land, includes the disturbance of stock and any proper cost reasonably incurred for the purpose of rectifying that disturbance;

“dealing” means a transfer or mortgage of a legal interest in a mining tenement;

“Director General of Mines” means the person for the time being holding or acting in the office of chief executive officer of the Department;

“Director, Geological Survey” means the person for the time being holding or acting in the office of Director, Geological Survey in the Department;

“expenditure conditions” in relation to a mining tenement means the prescribed conditions applicable to a mining tenement that require the expenditure of money on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be so carried out;

“fossick” means to search for, extract and remove rock, ore or minerals, other than gold or diamonds, in quantities not exceeding the prescribed amount and by means not prohibited under the regulations, as samples or specimens for the purpose of a mineral collection, lapidary work or a hobby interest;

“geological sample” includes a drill core;

“ground disturbing equipment” means —

(a) mechanical drilling equipment;

(b) a backhoe, bulldozer, grader or scraper; or

“identified mineral resource” means a deposit of minerals identified in the prescribed manner;

“land” includes water; and also includes the foreshore and the sea bed within the meaning of section 25;

“land under cultivation” means land being used for agricultural purposes and includes any land, whether cleared or uncleared, used by a person for the grazing of stock in the ordinary course of management of the land of that person where the land so used for grazing forms the whole or a part of the land owned or occupied by that person;

“lapidary work” includes the selection, cutting, polishing, engraving and setting of rock or other minerals;

“listed public company” means a corporation that is a listed corporation within the meaning of that expression in the Corporations Act;

“local government” means the local government of the district in which the matter in relation to which the term is used, arose or is situated;

“machinery” includes all mechanical appliances of whatever kind used or intended to be used for any mining purpose;

“marine management area”, “marine nature reserve” and “marine park” have the meanings given to them by the Conservation and Land Management Act 1984;

“mine”, as a noun, means any place in, on or under which mining operations are carried on;

“mine”, as a verb, includes any manner or method of mining operations;

“minerals” means naturally occurring substances obtained or obtainable from any land by mining operations carried out on or under the surface of the land, but does not include —

(a) soil;

(b) a substance the recovery of which is governed by the Petroleum Act 1967 or the Petroleum (Submerged Lands) Act 1982;

(d) any of the following substances if it occurs on private land —

(i) limestone, rock or gravel;

(ii) shale, other than oil shale;

(iii) sand, other than mineral sand, silica sand or garnet sand; or

(iv) clay, other than kaolin, bentonite, attapulgite or montmorillonite;

“mineral field” means a mineral field constituted under this Act or deemed so to be;

“mining” includes fossicking, prospecting and exploring for minerals, and mining operations;

“mining operations” means any mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes —

(a) the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral;

(b) operations by means of which salt or other evaporites may be harvested;

(d) the doing of all lawful acts incident or conducive to any such operation or purposes;

“mining product” means any material won from land by mining;

“mining registrar” means a mining registrar appointed in accordance with this Act or deemed so to be and includes a reference to the person holding, acting in, or performing the functions of a prescribed office or position in the Department;

“mining tenement” means a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act; and includes the specified piece of land in respect of which the mining tenement is so granted or acquired;

“occupier” in relation to any land includes any person in actual occupation of the land under any lawful title granted by or derived from the owner of the land;

“oil shale” includes naturally occurring hydrocarbons that are or may be contained in rocks from which they cannot be recovered otherwise than by mining those rocks as oil shale;

“owner” in relation to any land means —

(a) the registered proprietor thereof or in relation to land not being land under the Transfer of Land Act 1893 the owner in fee simple or the person entitled to the equity of redemption thereof;

(b) the lessee or licensee from the Crown in respect thereof;

(d) the person who is entitled to receive the rent thereof;

“prescribed official” means the holder of an office in the Department that is prescribed, or is of a class prescribed, for the purposes of the provision in which the term is used;

“private land” means any land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof (not being a pastoral lease within the meaning of the Land Administration Act 1997 or a lease or concession otherwise granted by or on behalf of the Crown for grazing purposes only or for timber purposes or a lease of Crown land for the use and benefit of the Aboriginal inhabitants) but —

(a) in relation to mining for minerals other than gold, silver and precious metals, for the purposes of Division 3 of Part III, does not include land alienated before 1 January 1899, except as provided in that Division;

(b) other than in so far as the primary tenement may be treated as private land in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B, does not include land that is the subject of a mining tenement; and

(c) no land that has been reserved for or dedicated to any public purpose shall be taken to be private land by reason only that any lease or concession is granted in relation thereto for any purpose;

“public purpose” means any of the purposes for which land may be reserved under Part 4 of the Land Administration Act 1997, and any purpose declared by the Governor pursuant to that Act, by notification in the Government Gazette to be a public purpose within the meaning of that Act;

“register” means the register kept under section 103F;

“registration” means registration under section 103C;

“related” has a meaning affected by subsection (4);

“retention status” has a meaning affected by subsection (5);

“reversion licence application” means a reversion licence application authorised by an order under section 120AA(2);

“the Department” means the department of the Public Service of the State principally assisting the Minister in the administration of this Act;

“the office of the mining registrar” means —

(a) in relation to the lodging of an application for a mining tenement, the office of the mining registrar of the mineral field or district in which the largest portion of the land to which the application relates is situated;

(b) in relation to the lodging of an agreement, claim, notice of objection, security or any other thing in respect of a mining tenement, the office of the mining registrar of the mineral field or district to which the application for that mining tenement has been assigned;

“the repealed Act” means the Mining Act 1904 3;

“the warden” or “the mining registrar” means the warden or the mining registrar of the mineral field or district thereof in which the subject matter in relation to which the term is used arose or is;

“vehicle” includes an aircraft, helicopter or air cushion vehicle;

“warden” means a warden of mines appointed in accordance with this Act or deemed so to be and includes a person appointed to be an acting warden;

“warden’s court” means the warden’s court constituted under this Act or deemed so to be for the mineral field or district thereof in which the subject matter in relation to which the term is used arose or is.

(2) Notwithstanding anything in subsection (1), the Minister may, in the event of a dispute whether a particular substance is or is not oil shale, decide whether that substance is or is not oil shale for the purposes of this Act and the Petroleum Act 1967 and his decision in the matter shall be final.

(3) A reference in this Act to the owner and occupier of private land includes a reference to a person who is both the owner and occupier of private land and parts of speech in the plural number shall be construed accordingly.

(4) For the purposes of this Act a person is related to —

(a) an individual, if the person is —

(i) a spouse or de facto partner;

(ii) a parent, grandparent or great‑grandparent;

(iii) a child, grandchild or great‑grandchild; or

(iv) a sibling,

of the individual, whether the relationship is a step relationship or a relationship established by, or traced through marriage or a de facto relationship, a written law or a natural relationship; and

(b) a body corporate, if the person is a related entity (as defined in section 9 of the Corporations Act) in relation to the body corporate.

(5) For the purposes of this Act —

(a) a prospecting licence has retention status if an approval under section 54 has effect in relation to the licence; and

(b) an exploration licence has retention status if an approval under section 69B has effect in relation to the licence.

[Section 8 amended by No. 69 of 1981 s. 6; No. 122 of 1982 s. 5; No. 100 of 1985 s. 5; No. 105 of 1986 s. 7; No. 22 of 1990 s. 4; No. 37 of 1993 s. 10(2), 12(2), 26 and 27; No. 14 of 1996 s. 4; No. 54 of 1996 s. 4; No. 5 of 1997 s. 40; No. 31 of 1997 s. 71(1) and 141; No. 10 of 2001 s. 130; No. 15 of 2002 s. 4; No. 28 of 2003 s. 152; No. 39 of 2004 s. 20, 42 and 87; No. 27 of 2005 s. 4.]

8A. Rights in respect of oil shale or coal

(1) Notwithstanding anything in section 8, a mining tenement (other than a coal mining lease) granted and in force under, or continued in force by, this Act in respect of land which is the subject of an exploration permit specified in the Schedule to the Petroleum Act 1967 does not confer on the holder of that mining tenement any rights in respect of oil shale or coal.

(2) If land referred to in subsection (1) ceases to be the subject of an exploration permit referred to in that subsection, the holder of the mining tenement referred to in that subsection may apply to the Minister for rights in respect of oil shale or coal or both in respect of that land.

(3) On receiving an application made under subsection (2), the Minister may in writing confer on the applicant such rights in respect of oil shale or coal or both in respect of the land concerned as he thinks fit, in which case the mining tenement concerned shall be amended accordingly.

[Section 8A inserted by No. 69 of 1981 s. 7.]

9. Gold and silver and other precious metals property of the Crown

(1) Subject to this Act —

(a) all gold, silver, and any other precious metal existing in its natural condition on or below the surface of any land in the State whether alienated or not alienated from the Crown and if alienated whenever alienated, is the property of the Crown;

(b) all other minerals existing in their natural condition on or below the surface of any land in the State that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown.

(2) Notwithstanding anything in this Act or any previous enactment the owner, grantee, lessee or licensee of, or other person entitled to, any land to which this section or any corresponding provisions apply, that is not the subject of a mining tenement, is entitled to use any mineral existing in a natural state on or below the surface of the land for any agricultural, pastoral, household, road making, or building purpose, on that land.

9B. Position on the Earth’s surface

(1) Where for the purposes of this Act, or the regulations made for the purposes of this Act, it is necessary to determine the position on the surface of the Earth of a point, line or area, that position is to be determined by reference to the prescribed Australian datum.

(2) Regulations that prescribe a datum for the purposes referred to in subsection (1), or amend that datum or prescribe another datum to replace that datum, may make any transitional or savings provisions that are necessary or convenient to be made —

(a) in relation to mining tenements granted or acquired before the regulations take effect;

(b) in relation to applications for mining tenements pending when the regulations take effect; or

(3) Regulations referred to in subsection (2) may modify or otherwise affect the operation of this Act.

[Section 9B inserted by No. 54 of 2000 s. 5(2).]

Part II — Administration, mineral fields and courts

10. Administration of Act

(1) This Act shall be administered by the Minister.

(2) The Minister —

(a) shall be a corporation sole, with perpetual succession and shall have an official seal; and

(b) may, in his corporate name, acquire, hold, lease and otherwise dispose of real and personal property, and may sue and be sued in that name.

(3) All courts, judges and persons acting judicially shall take notice of the official seal of the Minister affixed to a document and shall presume that it was duly affixed.

11. Chief executive officer and other officers

There shall be a department of the Public Service of the State to assist the Minister in the administration of this Act, to which department there shall be appointed, under Part 3 of the Public Sector Management Act 1994, a chief executive officer and such number of persons to be mining registrars, geologists, surveyors, inspectors and such other officers as may be necessary for the due administration of this Act.

[Section 11 amended by No. 113 of 1987 s. 32; No. 32 of 1994 s. 19.]

12. Delegation

(1) The Minister may —

(a) by instrument in writing delegate any of his powers and functions (except this power of delegation) to —

(i) any officer of the Department; or

(ii) the person for the time being occupying a position in the Department,

being an officer named or a position specified in the instrument of delegation; and

(b) vary or revoke a delegation given by him.

(2) Any delegation of a power or function under this section by the Minister ceases to have effect upon the appointment (other than in the capacity of an acting Minister) of another person to be the Minister for the purpose of this Act.

(3) A power or function delegated by the Minister under this section —

(a) shall, if exercised or performed, be exercised or performed in accordance with the instrument of delegation; and

(b) may, if the exercise of the powers or the performance of the functions is dependent upon the opinion, belief or state of mind of the Minister in relation to a matter — be exercised upon the opinion, belief or state of mind of the delegate in relation to that matter.

[Section 12 amended by No. 100 of 1985 s. 6.]

13. Wardens of mines

(1) Any person holding office as a magistrate under the Magistrates Court Act 2004, may be appointed by the Governor to be a warden of mines and is thereby authorised and empowered to preside in a warden’s court.

(2) Without prejudice to subsection (1) the Governor may appoint other fit and proper persons to be wardens of mines, and the persons so appointed shall be paid such remuneration as the Governor determines, but a person so appointed is not thereby authorised or empowered to preside in a warden’s court.

(3) Part 3 of the Public Sector Management Act 1994, does not apply to any appointment made under subsection (2) but an officer of the Public Service —

(a) may, with the consent of the Minister for Public Sector Management, be appointed to the office of a warden of mines under that subsection for such period as the Governor determines; and

(b) may hold that office in conjunction with his office as a public service officer under that Part.

(4) A person who holds office under Part 3 of the Public Sector Management Act 1994 may, with the consent of the Minister for Public Sector Management, be appointed to hold or act in the office of a mining registrar notwithstanding that he is not a person appointed to the Department pursuant to section 11 and that person shall, whilst holding, acting in or performing the functions of the office of mining registrar, be deemed for the purposes of this Act to be an officer of the Department.

[Section 13 amended by No. 100 of 1985 s. 7; No. 32 of 1994 s. 19; No. 59 of 2004 s. 116.]

14. Power to appoint acting warden

(1) When and as often as a warden, whether appointed under section 13(1) or (2), is absent on leave, or in consequence of sickness or for any other reason is temporarily unable to perform the duties of his office, the Governor may appoint a fit and proper person to act in the office of such warden for the period during which such warden is temporarily absent or unable to perform the duties of his office.

(2) While a person appointed under subsection (1) acts in the office of a warden —

(a) he may exercise the same jurisdiction and has all the powers and authorities conferred upon a warden by this Act; and

(b) he shall be a Justice of the Peace, by virtue of his office.

[Section 14 amended by No. 100 of 1985 s. 8.]

15. Warden prohibited from adjudicating in certain matters and officer prohibited from using information

(1) A warden who acts or adjudicates in any matter in which he has directly or indirectly any pecuniary interest, is guilty of a crime.

Penalty: Imprisonment for 2 years or a fine of $1 000.

(2) A warden or an officer appointed pursuant to section 11 who uses any information that comes to his knowledge in the course of, or by reason of, his appointment as a warden or as such an officer for the purpose of personal gain is guilty of a crime.

Penalty: Imprisonment for 2 years or a fine of $1 000.

[Section 15 amended by No. 100 of 1985 s. 9; No. 70 of 2004 s. 82.]

16. Power to proclaim mineral fields

(1) The Governor may, by proclamation —

(a) constitute any part of the State to be a mineral field;

(b) divide any mineral field into districts;

(d) abolish a mineral field or district.

(2) Any part of the State that was immediately before the commencing date a mineral field or district thereof or a goldfield or district thereof under the repealed Act, shall be deemed to be a mineral field or district thereof constituted under this Act and may be dealt with as provided in subsection (1).

(3) No Crown land that is in a mineral field shall be leased, transferred in fee simple, or otherwise disposed of under the provisions of the Land Administration Act 1997, without the approval of the Minister.

[Section 16 amended by No. 31 of 1997 s. 71(2) and 141.]

[17. Repealed by No. 100 of 1985 s. 10.]

Part III — Land open for mining

Division 1 — Crown land

18. Crown land open for mining

All Crown land, not being Crown land that is the subject of a mining tenement, is open for mining and as such is land —

(a) where any person may set up pegs or otherwise mark out the land pursuant to section 104 in connection with an application for a mining tenement;

(b) where the holder of a Miner’s Right may do the things authorised by section 20; and

subject to and in accordance with this Act.

[Section 18 amended by No. 100 of 1985 s. 11.]

19. Power to set aside land for mining or exempt it therefrom

(1) The Minister may from time to time by instrument in writing under his hand —

(a) exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor, from —

(i) mining;

(ii) a specified mining purpose;

(iii) this Act; or

(iv) a specified provision of this Act;

(b) vary or cancel an exemption referred to in paragraph (a),

and shall cause any such instrument to be published in the Government Gazette as soon as is practicable after its execution by him.

(2) Each instrument made under subsection (1) has effect on and from the date thereof and shall specify the area and description of land to which the instrument relates.

(2a) An instrument made under subsection (1)(a) before the prescribed day, has effect until it is cancelled under subsection (1)(b).

(2b) An instrument made under subsection (1)(a) on or after the prescribed day, has effect until it is cancelled under subsection (1)(b) or until it expires under subsection (2c), whichever occurs first.

(2c) An instrument referred to in subsection (2b) expires at the end of the period of 2 years from its date unless it is extended for a period or periods (not exceeding 2 years at a time) by instrument in writing under the Minister’s hand published in the Government Gazette.

(2d) In subsections (2a) and (2b) “the prescribed day” means the day on which section 4 of the Mining Amendment Act 1994 1 commences.

(3) While any land is so exempted from mining or any specified mining purpose, or from this Act or any specified provision thereof, the land to the extent of the exemption, may be dealt with by the Minister in accordance with this section and to that extent is not subject to the other provisions of this Act.

(4) The Minister may, while any land is exempted under this section, call in such manner as he determines for applications for the grant of such mining tenements as he determines in respect of that land or a part thereof.

(5) A person applying to the Minister for the grant of a mining tenement in respect of any land or a part thereof referred to in subsection (4) shall do so in such manner as the Minister directs.

(6) On receiving an application made under subsection (5), the Minister may —

(a) grant the mining tenement applied for or another mining tenement subject to such terms and conditions as he thinks fit; or

(b) refuse that application.

(7) This Act applies to a mining tenement granted under this section as if that mining tenement had been granted under Part IV.

(8) Nothing in this section authorises or allows land to which section 24, 24A or 25 applies to be exempted from a provision of Division 2 or to be dealt with otherwise than in accordance with Division 2.

[Section 19 amended by No. 69 of 1981 s. 8; No. 100 of 1985 s. 12; No. 21 of 1993 s. 45; No. 58 of 1994 s. 4; No. 52 of 1995 s. 20; No. 5 of 1997 s. 41(2).]

20. General rights to prospect and protection of certain Crown land

(1) The Minister, the Director General of Mines, a warden or a mining registrar may issue or cause to be issued to a person upon being satisfied as to the identity of the applicant and payment of the prescribed fee a Miner’s Right which is not transferable and not limited in term and such a Miner’s Right shall be in the prescribed form.

(2) Subject to this Act the holder of a Miner’s Right is authorised to do all or any of the following things —

(a) to pass and repass over Crown land with such employees and agents, vehicles machinery and equipment as may be necessary or expedient for the purpose of prospecting for minerals and marking out of any land which may be made the subject of an application for a mining tenement;

(b) to prospect on —

(i) Crown land that is not the subject of a mining tenement; or

(ii) Crown land that is the subject of an exploration licence if the holder of the Miner’s Right holds a permit to do so under section 20A,

for minerals and conduct tests for any mineral thereon for the purpose of ascertaining whether any part of the land, and if appropriate determining which area, is to be marked out or applied for, or both, for the purpose of making an application for a mining tenement in respect thereof;

(c) to extract or remove samples or specimens of rock, ore or minerals with as little damage to the surface of such land as possible, in quantities, in total or on occasions, not exceeding the prescribed limits, and to keep as his property or to utilize for testing or evaluation purposes any samples and specimens of any mineral found by him on such land;

(d) to take, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, water from any natural spring, lake, pool or water‑course situated in or flowing through such land and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for the purposes of prospecting and for domestic purposes only; and

(e) to camp on Crown land, for the purpose of prospecting, in such manner and subject to such conditions as may be prescribed; and

(f) subject to the prior written consent of —

(i) any occupier of that Crown land; and

(ii) the holder of the mining tenement concerned,

to fossick by prescribed means on Crown land, whether or not land which is held as a mining tenement.

(3) Any person acting in the exercise or purported exercise of an authorisation conferred or alleged to be conferred by subsection (2) shall —

(a) cause all holes, pits, trenches and other disturbances on the surface of the land which were made while he was so acting and which are likely to endanger the safety of any person or animal, to be filled in or otherwise made safe, together with such other holes, pits, trenches and other disturbances made, wholly or in part, by him as the Minister may from time to time direct;

(b) take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise; and

(c) be liable to pay compensation in accordance with section 123, as may be agreed or as may be determined by the warden’s court on the application of the owner or occupier of the land or of the holder of any mining tenement affected, for any loss or damage caused by, and not made good by, that person in relation to any land or mining tenement while he was so acting,

and a determination made by the warden’s court under this subsection is for the purposes of section 147(1), a final determination of the warden’s court.

[(4) repealed]

(5) Notwithstanding that any Crown land to which this subsection refers may be marked out as or be included in a mining tenement, a mining tenement or Miner’s Right does not entitle the holder thereof to prospect or fossick on, explore, or mine on or under, or otherwise interfere with, any Crown land that is —

(a) for the time being under crop, or which is situated within 100 metres thereof;

(b) used as or situated within 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;

(c) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;

(d) the site of or situated within 100 metres of any cemetery or burial ground;

(e) land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 which is the site of, or is situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease,

without the written consent of the occupier, unless —

(ea) the warden in relation to any land other than land referred to in paragraph (c) by order otherwise directs; or

(eb) in the case of mining, it is carried out not less than 30 metres below the lowest part of the natural surface of the land,

but nothing in this subsection prevents such a holder from passing and repassing over any Crown land that is situated within —

(f) 100 metres of any Crown land that is —

(i) for the time being under crop;

(ii) used as a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;

(iii) in actual occupation and on which a house or other substantial building is erected; or

(iv) the site of any cemetery or burial ground;

(g) 400 metres of any Crown land that is the site of any water works, race, dam, well or bore,

in order to gain access to other land (not being Crown land referred to in paragraph (f) or (g)), for the purpose of prospecting or fossicking on, exploring, mining on or under, or marking out that other land but a warden shall not make an order under this subsection unless he is satisfied that the land is bona fide required for mining purposes and he is satisfied that compensation in accordance with section 123 for all loss or damage suffered or likely to be suffered by an owner or occupier of the land has been agreed upon or otherwise determined, or is assessed and settled in accordance with this Act by the warden.

(5a) The holder of a mining tenement or Miner’s Right who passes or repasses over any Crown land that is situated within —

(a) 100 metres of any Crown land referred to in subsection (5)(f); or

(b) 400 metres of any Crown land referred to in subsection (5)(g),

in order to gain access to the other land referred to in subsection (5) for the purpose referred to therein shall —

(c) before so passing or repassing, take all reasonable and practicable steps to notify the occupier of the Crown land so situated of his intention to do so;

(d) when so passing or repassing —

(i) take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise;

(ii) cause as little inconvenience as possible to the occupier of the Crown land so situated; and

(iii) comply with any reasonable request made by the occupier of the Crown land so situated in relation to the manner in which that holder so passes or repasses;

(e) restrict the number of occasions on which he so passes or repasses to the minimum necessary for the purpose of prospecting or fossicking on, exploring, mining operations on or under, or marking out that other land; and

(f) make good any damage caused by that passing or repassing to any improvements or livestock on the Crown land so situated,

and the occupier of the Crown land so situated is entitled to be compensated by that holder for any damage referred to in paragraph (f) that is not made good by that holder, and, in respect of land under cultivation, for any other loss or damage for which that holder is liable in accordance with section 123.

(5b) The amount of any compensation payable under subsection (5a) by the holder of the mining tenement or Miner’s Right concerned to an occupier of Crown land referred to in that subsection shall be determined —

(a) by agreement between that holder and that occupier; or

(b) in default of agreement, by the warden’s court on the application of that holder or that occupier.

(5c) A determination made by the warden’s court under subsection (5b) is, for the purposes of section 147(1), a final determination of the warden’s court.

[Section 20 28 amended by No. 122 of 1982 s. 6; No. 100 of 1985 s. 13; No. 22 of 1990 s. 5; No. 31 of 1997 s. 141; No. 63 of 2000 s. 4; No. 15 of 2002 s. 5; No. 39 of 2004 s. 88.]

20A. Permit to prospect on Crown land the subject of an exploration licence

(1) The mining registrar or the holder of a prescribed office in the Department may issue a permit to prospect for minerals on Crown land that is the subject of an exploration licence to —

(a) a natural person who is the holder of a Miner’s Right; or

(b) 2 or 3 natural persons, each of whom is the holder of a Miner’s Right, as joint holders of the permit.

(2) A permit cannot be issued under subsection (1) if the applicant for the permit is already the holder of a permit under this section in respect of the exploration licence to which his or her application relates.

(3) An application for a permit —

(a) shall be made in the prescribed form;

(b) shall be lodged at the office of the mining registrar or the principal office of the Department at Perth; and

(4) The area of land in respect of which a permit is issued is to be specified in the permit in the prescribed manner.

(5) A permit is subject to such conditions as are imposed in accordance with the regulations and specified in the permit.

(6) In addition to any conditions that may be imposed under subsection (5) every permit is to be regarded as having been issued subject to conditions that the holder or each holder (in the case of joint holders) —

(a) shall not use explosives or tools, other than hand tools, on the land the subject of the permit;

(b) shall not prospect below the prescribed depth;

(d) shall not prospect within 100 metres of any activities that are being carried out under the authority of an exploration licence; and

(e) shall not prospect on land that is the subject of a special prospecting licence under section 70.

(7) A permit is not transferable.

[Section 20A inserted by No. 63 of 2000 s. 5.]

20B. Power to remove Crown land from the operation of section 20A

(1) The Minister may, by notice published in the Gazette, declare that section 20A does not apply to Crown land that is —

(a) the subject of a specified exploration licence;

(b) in a specified block (within the meaning of Division 2 of Part IV); or

(2) The Minister may, by notice published in the Gazette, vary or cancel a notice under subsection (1).

(3) A notice under this section takes effect on the day on which the notice is published in the Gazette or such later day as is specified in the notice.

(4) A notice under this section does not affect the operation of a permit issued under section 20A before the day on which the notice takes effect.

[Section 20B inserted by No. 63 of 2000 s. 5.]

20C. Limitation on actions in tort

(1) The holder of a permit cannot bring an action in tort against the holder of an exploration licence for injury, loss or damage suffered by the holder of the permit as a result of —

(a) the condition of the permit land; or

(b) a thing that the holder of the exploration licence has done on the permit land under the authority of that licence.

(2) Nothing in subsection (1)(b) prevents the bringing of an action in tort if the thing was done —

(a) with the deliberate intent of causing injury, loss or damage to the holder of the permit; or

(b) with reckless disregard for the presence of the holder of the permit on the permit land.

(3) In this section a reference to the doing of a thing includes a reference to an omission to do a thing.

(4) In this section —

“permit” means a permit under section 20A;

“permit land” means land that is the subject of both the permit and the exploration licence concerned.

[Section 20C inserted by No. 63 of 2000 s. 5.]

21. Power to resume land

(1) Any land, including land under the surface (not being land that is the subject of a mining tenement or land on which mining operations are lawfully being carried on under an agreement in writing with the owner of the land) that in the opinion of the Governor on the recommendation of the Minister ought to be taken for the purposes of this Act is hereby authorised to be taken on behalf of the Crown pursuant to Part 9 of the Land Administration Act 1997 as though the taking were required for a public purpose, and for that purpose the Minister or the Minister administering that Act may cause the land to be inspected, surveyed, explored, and reported upon by such officers and workmen as he directs, all of whom may thereupon enter upon the land and carry out all necessary operations in accordance with that Act.

(2) At the request of a person interested in land to which subsection (1) refers, any other land that is being or is intended to be used in conjunction with that land may be, and is hereby authorised to be, taken on behalf of the Crown in accordance with that subsection if the Governor, on the recommendation of the Minister, so determines.

(3) Upon the taking of any land pursuant to this section the owner and occupier is entitled to compensation, and the amount of the compensation shall be determined in the manner prescribed by Part 10 of the Land Administration Act 1997 but in assessing the amount of the compensation to be paid no allowance shall be made for the value of any minerals known or supposed to be on or under the land taken, other than minerals which are the property of the owner.

(4) Where it is agreed or the State Administrative Tribunal determines that damage has been sustained by a claimant by reason of the severance of the land taken from other adjoining land of the claimant, the Governor, on the recommendation of the Minister, may determine or the State Administrative Tribunal may order that in accordance with this section such adjoining land or some portion thereof shall also be taken.

[Section 21 amended by No. 100 of 1985 s. 14; No. 31 of 1997 s. 71(3)‑(6); No. 55 of 2004 s. 570.]

22. Effect of resumption

Where any private land is taken under section 21 pursuant to Part 9 of the Land Administration Act 1997 that land shall for the purposes of this Act be taken to be Crown land under and subject to this Act, but every mining tenement granted in respect of, or occupied upon the land shall notwithstanding any of the provisions of this Act to the contrary, be subject to such rent, royalty or other payment to the Crown as may be determined by the Minister in each case, and the provisions as to royalty, other than as to the amount thereof as hereinafter provided by this Act shall be applicable.

[Section 22 amended by No. 100 of 1985 s. 15; No. 31 of 1997 s. 71(7).]

Division 2 — Public reserves, etc.

23. Mining on public reserves, etc.

Subject to this Act, a mining tenement may be applied for in respect of any land, or land of a class, to which section 24, 24A or 25 applies (not being land that is already the subject of a mining tenement) but —

(a) no mining shall be carried out on or under any such land otherwise than in accordance with a relevant consent obtained in relation to that land under section 24, 24A or 25; and

(b) a mining tenement held in relation to such land by a person who —

(i) contravenes this section; or

(ii) is in breach of any term or condition to which a consent given under section 24, 24A or 25 is made subject,

is liable to be forfeited,

and such land is only open for mining as provided in those sections and subject to such terms and conditions as are thereby imposed.

[Section 23 inserted by No. 100 of 1985 s. 16; amended by No. 5 of 1997 s. 41(2).]

24. Classification of reserves

(1) The classes of land to which this section applies are —

(a) land that is in the South‑West Division of the State as described in Schedule 1 to the Land Administration Act 1997, or in the local government district of Esperance or Ravensthorpe and that is reserved under Part 4 of that Act and classified as a class A reserve pursuant to that Part or so classified pursuant to any other Act;

(b) any land comprised within —

(i) a national park, being land to which section 6(3) of the Conservation and Land Management Act 1984 applies;

(ii) a nature reserve, being land to which section 6(5) of the Conservation and Land Management Act 1984 applies and which is reserved under Part 4 of the Land Administration Act 1997 and classified as a class A reserve pursuant to that Part or so classified pursuant to any other Act; or

(iii) a nature reserve, not being land to which section 6(5) of the Conservation and Land Management Act 1984 applies but which is reserved under Part 4 of the Land Administration Act 1997 for the conservation of flora or fauna, or both flora and fauna, and classified as a class A reserve pursuant to that Part or so classified pursuant to any other Act;

(i) land to which paragraph (a) or (b) of this subsection refers;

(ii) land reserved for mining or commons;

(iii) land reserved and designated for public utility for any purpose pursuant to that Part;

(iv) land that is a townsite within the meaning of the Land Administration Act 1997;

(d) land within the South West Mineral Field that is a State forest or a timber reserve within the meaning of the Conservation and Land Management Act 1984;

(da) land, not being land to which paragraph (d) refers, that is a State forest or a timber reserve within the meaning of the Conservation and Land Management Act 1984;

(e) land that is a water reserve or catchment area for the purposes of the Metropolitan Water Supply, Sewerage, and Drainage Act 1909 or of the Country Areas Water Supply Act 1947 or any other relevant Act within the meaning of that term as defined by section 5 of the Water Agencies (Powers) Act 1984, or of that Act;

(f) land to which Part III of the Aboriginal Affairs Planning Authority Act 1972 applies;

(fa) land dedicated under section 21 of the Western Australian Land Authority Act 1992 or vested in or under the control of the Western Australian Land Authority established by that Act; and

(g) land that is reserved under any Act other than those Acts already referred to in this subsection.

(2)(a) The Governor may, from time to time, by order in council, apply this section to any other land or class of land specified in the order in council and as from the date so specified this section shall apply to the extent and in the manner specified in the order in council.

(b) The Minister shall cause an order in council made pursuant to paragraph (a) to be laid on the table of each House of Parliament within 12 sitting days of its making and if either House does not pass a resolution disallowing such order in council within 12 sitting days of that House after the order in council has been laid before it the order in council shall have effect from the date of its making.

(3)(a) Subject to subsection (4) mining may be carried out on any land referred to in subsection (1)(a) or (b) with the written consent of the Minister who may refuse his consent or who may give his consent subject to such terms and conditions as the Minister specifies in the consent.

(b) Before giving his consent whether conditionally or unconditionally the Minister shall first consult with, and obtain the concurrence thereto, of the responsible Minister.

(4) No mining lease or general purpose lease shall be granted on any land referred to in subsection (1)(a) or (b) unless both Houses of Parliament by resolution consent thereto, and then only on such terms and conditions as are specified in the resolution.

(5)(a) Mining on any land referred to in subsection (1)(c) may be carried out with the written consent of the Minister who may refuse his consent or who may give his consent subject to such terms and conditions as the Minister specifies in the consent.

(b) Before giving his consent whether conditionally or unconditionally the Minister shall first consult the responsible Minister and the local government, public body, or trustees or other persons in which the control and management of such land is vested with respect thereto, and obtain its or their recommendations thereon.

(6)(a) Mining may be carried out on any land referred to in subsection (1)(d) with the written consent of the Minister who may refuse his consent or who may give his consent subject to such terms and conditions as are specified in the consent.

(b) Before giving his consent, whether conditionally or unconditionally the Minister shall first consult with, and obtain the concurrence thereto, of the responsible Minister.

(7)(a) Mining may be carried out on any land referred to in subsection (1)(da), (e), (f), (fa) or (g) with the written consent of the Minister who may refuse his consent or who may give his consent, subject to such terms and conditions as are specified in the consent.

(b) Before giving his consent, whether conditionally or unconditionally, the Minister shall first consult the responsible Minister with respect thereto and obtain his recommendation thereon.

(c) The giving by the Minister of his consent under this subsection in relation to land referred to in subsection (1)(f) does not prevent or in any way affect the application of section 31 of the Aboriginal Affairs Planning Authority Act 1972 to any person acting under that consent.

(8) The responsible Minister for the purposes of this section is the Minister for the time being charged with the administration of the land or the enactment to which the land is subject, and if in any case a question arises as to who is the responsible Minister under this section, the question shall be determined by the Governor whose decision shall be final.

[Section 24 amended by No. 122 of 1982 s. 7; No. 100 of 1985 s. 17; No. 105 of 1986 s. 8; No. 22 of 1990 s. 6; No. 20 of 1991 s. 57; No. 35 of 1992 s. 49; No. 73 of 1995 s. 188; No. 14 of 1996 s. 4; No. 54 of 1996 s. 5; No. 31 of 1997 s. 71(8)‑(11).]

24A. Mining in marine reserves

(1) Without limiting section 23, nothing in section 13A, 13B or 13C of the Conservation and Land Management Act 1984 —

(a) prevents a mining tenement from being —

(i) held and renewed; or

(ii) applied for, granted, held and renewed,

in a marine nature reserve, marine park or marine management area; or

(b) affects the validity or effect of a mining tenement in a marine nature reserve, marine park or marine management area.

(2) Subject to subsection (4) mining may be carried out in a marine nature reserve or marine park with the written consent of the Minister who may refuse consent or who may give consent subject to such terms and conditions as the Minister specifies in the consent.

(3) Before giving consent under subsection (2), whether conditionally or unconditionally, the Minister shall first —

(a) consult, and obtain the concurrence of, the conservation Minister; and

(b) consult and obtain the recommendations of the fisheries Minister and the marine Minister.

(4) No mining lease or general purpose lease shall be granted in respect of any marine nature reserve or marine park unless both Houses of Parliament by resolution consent to the grant, and then only on such terms and conditions as are specified in the resolution.

(5) Mining in any marine management area may be carried out with the written consent of the Minister who may refuse consent or who may give consent subject to such terms and conditions as the Minister specifies in the consent.

(6) Before giving consent under subsection (5), whether conditionally or unconditionally, the Minister shall first consult and obtain the recommendations of the conservation Minister, the fisheries Minister and the marine Minister.

(7) Despite any consent given under subsection (2) or (4), nothing in this Act authorises the disturbance of —

(a) the sea bed or other land beneath waters in any restricted area in a mining tenement;

(b) land in any restricted area in a mining tenement; or

(8) Subsection (7) applies only if the restricted area was a restricted area when the mining tenement was granted.

(9) In this section —

“conservation Minister” means the Minister for the time being charged with the administration of the Conservation and Land Management Act 1984;

“fisheries Minister” means the Minister for the time being charged with the administration of the Fish Resources Management Act 1994;

“marine Minister” means the Minister for the time being charged with the administration of the Marine and Harbours Act 1981;

“restricted area” means —

(a) any area of a marine nature reserve; or

(b) any area of a marine park which is classified by notice under section 62 of the Conservation and Land Management Act 1984 as —

(i) a sanctuary area;

(ii) a recreation area; or

(iii) a special purpose area which, or that part of such an area which, the conservation Minister has declared in the classification notice to be an area where disturbance of the land, sea bed or subsoil would be incompatible with a conservation purpose specified in the classification notice.

[Section 24A inserted by No. 5 of 1997 s. 41(1); amended by No. 10 of 1998 s. 52.]

25. Mining on foreshore, sea bed, navigable waters or townsite

(1) The classes of land to which this section applies are —

(a) any part of the foreshore, being the area between the mean high water springs level of the sea and the mean low water springs level of the sea;

(b) any part of the sea bed between the mean low water springs level of the sea and the seaward limits of the territorial waters of the State;

(d) any land that is a townsite within the meaning of the Land Administration Act 1997,

but this section does not apply to land that is part of a marine nature reserve, marine park or marine management area.

(2)(a) Mining on any land referred to in subsection (1)(a), (b) or (c) may be carried out with the written consent of the Minister who may refuse his consent or who may give his consent subject to such terms and conditions as the Minister specifies in the consent.

(b) Before giving his consent whether conditionally or unconditionally the Minister shall first consult the Minister to whom the administration of the Fish Resources Management Act 1994 is for the time being committed by the Governor, the Minister to whom the administration of the Marine and Harbours Act 1981 is for the time being committed by the Governor, the Minister to whom the administration of the Land Administration Act 1997 is for the time being committed by the Governor and the Minister to whom the administration of the Environmental Protection Act 1986 is for the time being committed by the Governor with respect thereto and obtain their recommendations thereon.

(3)(a) Mining on any land referred to in subsection (1)(d) may be carried out with the written consent of the Minister who may refuse his consent or who may give his consent subject to such terms and conditions as the Minister specifies in the consent.

(b) Before giving his consent whether conditionally or unconditionally the Minister shall first consult the Minister to whom the administration of the Land Administration Act 1997 is for the time being committed by the Governor and the local government, in respect thereto and obtain their recommendations thereon.

[Section 25 amended by No. 77 of 1986 s. 9; No. 22 of 1990 s. 7; No. 37 of 1993 s. 4; No. 14 of 1996 s. 4; No. 5 of 1997 s. 42; No. 31 of 1997 s. 71(12) and 141; No. 24 of 2000 s. 26(1).]

26. Terms and conditions

(1) The terms and conditions that may be imposed pursuant to sections 24, 24A and 25 may include among others a condition that —

(a) any person carrying out mining operations on the land shall make good injury to the surface of the land or injury to anything on the surface thereof;

(b) if default is made in making good any such injury the person having the control and management of such land may carry out the work necessary to do so and recover the cost thereof in a court of competent jurisdiction from the person in default;

(c) mining operations shall be confined to such depth below the surface of the land as may be specified in the conditions;

(d) the person carrying out such mining operations shall lodge with the Minister, within such period as the Minister specifies in writing, a security to cover the probable cost of the work referred to in paragraph (b);

(e) compensation to be assessed in accordance with this Act shall be paid to the person having the control and management of the land affected for any loss or damage caused by such mining operations.

(1a) A security referred to in subsection (1)(d) shall be in accordance with and subject to section 126.

(2) In relation to any application for a mining tenement in respect of any land, or land of a class, to which section 24, 24A or 25 applies —

(a) land to which section 24(1)(a) or (b) refers may be marked out only with the consent of the Minister and the responsible Minister;

(aa) a marine nature reserve or marine park may be marked out only with the consent of the Minister and the conservation Minister as defined in section 24A(9); and

(b) land to which section 24(1)(d) refers may be marked out only in accordance with such conditions and restrictions, if any, as are lawfully prescribed pursuant to section 128(1)(h) of the Conservation and Land Management Act 1984,

but otherwise the land shall be marked out as a mining tenement in accordance with this Act.

(3) The responsible Minister for the purposes of subsection (2) is the person who is the responsible Minister in relation to the land as determined pursuant to section 24(8).

[Section 26 amended by No. 100 of 1985 s. 18; No. 5 of 1997 s. 41(2); No. 17 of 1999 s. 4.]

26A. Mining tenements within townsites

(1) Where any land that is a townsite within the meaning of the Land Administration Act 1997 is the subject of a mining tenement and the Minister considers that the land or a part of the land is required for community purposes, the Minister may, by notice in writing given to the holder of the mining tenement, require the holder to surrender the land specified in the notice to a depth of 15 metres from the lowest part of the natural surface of that land, within a period of 30 days after the giving of the notice.

(2) Where the holder of a mining tenement fails to surrender land when required to do so under subsection (1), the land specified in the notice shall, on the expiry of the period referred to in that subsection, be deemed to have been surrendered and a memorial to that effect shall be entered in the register.

(3) Where land is surrendered or deemed to have been surrendered under this section, the holder of the mining tenement in respect of that land may, while the mining tenement remains in force —

(a) with the approval of the Minister and subject to such terms and conditions as the Minister thinks fit, explore for minerals on that land;

(b) if that land ceases to be a townsite within the meaning of the Land Administration Act 1997, or otherwise with the approval of the Minister, apply to have that land or a part of that land reincorporated in the mining tenement.

(4) The Minister shall consider an application under subsection (3)(b) and may —

(a) grant the application, and the mining tenement shall be endorsed to reincorporate the land to which the application relates; or

(b) refuse the application.

(5) Subject to subsections (3)(a) and (4), land surrendered or deemed to have been surrendered under this section is not open for mining while the mining tenement in respect of that land remains in force.

(6) Where part of land the subject of a mining tenement is surrendered pursuant to subsection (1), section 95(4) and (5) apply, with such modifications as the circumstances require, for the purpose of that surrender.

(7) Where part of land the subject of a mining tenement is deemed to have been surrendered pursuant to subsection (2), section 95(5) applies, with such modifications as the circumstances require, for the purpose of that surrender.

(8) Where land the subject of a mining tenement is surrendered or deemed to have been surrendered under this section the holder of the mining tenement is entitled to claim and receive compensation under Part 10 of the Land Administration Act 1997 as if the land had been taken by the Crown under that Act.

(9) Section 205 of the Land Administration Act 1997 applies to a claim for compensation referred to in subsection (8) except that the compensation payable is limited to compensation for actual loss sustained through damage to buildings or other structures on the surface of the land.

[Section 26A inserted by No. 22 of 1990 s. 8; amended by No. 54 of 1996 s. 6; No. 31 of 1997 s. 71(13)‑(16).]

Division 3 — Private land

27. Private land open for mining

(1) Subject to this Act, a mining tenement may be applied for in respect of any private land (which for the purposes of this Division does not include private land that is the subject of a mining tenement, other than in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B in which case the land which is the subject of the application for that licence or lease is to be dealt with as private land) and such land is open for mining in accordance with this Act.

(2) This Division does not apply to the land specified in the Third Schedule.

[Section 27 amended by No. 100 of 1985 s. 19; No. 37 of 1993 s. 12(2).]

28. Unlawful entry on private land

No person shall enter or remain upon the surface of any private land for any of the purposes of this Division or those specified in section 104(1) unless he —

(a) is the owner in occupation of that private land; or

(b) is authorised to do so, by a permit issued by the warden under section 30, or by any other provision of this Act, or by virtue of a mining tenement.

29. Granting of mining tenements in respect of private land

(1) Subject to this Act, but notwithstanding any other Act or law, a mining tenement may be granted in respect of an area that consists of private land only or partly of private land and partly of any other land and the authority conferred thereby on the holder thereof may be exercised by that holder in respect of any such land.

(2) Except with the consent in writing of the owner and the occupier of the private land concerned, a mining tenement shall not be granted in respect of private land —

(a) which is in bona fide and regular use as a yard, stockyard, garden, orchard, vineyard, plant nursery or plantation or is land under cultivation;

(b) which is the site of a cemetery or burial ground;

(d) on which there is erected a substantial improvement;

(e) which is situated within 100 metres of any private land referred to in paragraph (a), (b), (c) or (d); or

(f) which is a separate parcel of land and has an area of 2 000 square metres or less,

unless the mining tenement is granted only in respect of that part of that private land which is not less than 30 metres below the lowest part of the natural surface of that private land.

[(3) repealed]

(4) For the purposes of subsection (2)(d), the warden is the sole judge of whether or not any improvement is substantial.

(5) The holder of a mining tenement which —

(a) has been granted wholly or partly in respect of private land referred to in subsection (2)(a), (b), (c), (d), (e) or (f); but

(b) has not been granted in respect of that portion of the private land referred to in paragraph (a) that is less than 30 metres below the lowest part of the natural surface of that private land because the consents referred to in subsection (2) have not been given,

may apply to the Minister for that mining tenement to be amended by granting it in respect of the portion referred to in paragraph (b) as well as in respect of the land in respect of which that mining tenement is already granted and that portion, whilst the right so to apply subsists, is not open for mining to any other person.

(6) On receiving an application made under subsection (5), the Minister may, if he is satisfied that both the owner and the occupier of the private land referred to in paragraph (a) of that subsection have consented in writing to the grant of the mining tenement concerned in respect of the portion referred to in paragraph (b) of that subsection, grant that application.

(6a) Subsection (6b) applies to a mining tenement if it —

(a) has been granted wholly or partly in respect of private land referred to in subsection (2)(a), (b), (c), (d), (e) or (f); but

(b) has not been granted in respect of that portion of the private land (“the relevant portion”) that is less than 30 metres below the lowest part of the natural surface of that private land because the consents referred to in subsection (2) have not been given.

(6b) If during the currency of a mining tenement to which this subsection applies, the relevant portion or any part of the relevant portion ceases to be private land, the relevant portion or that part of the relevant portion, as the case requires, is, by operation of this subsection, included in the mining tenement.

(7) A mining tenement granted under this Division in respect of any private land —

(a) shall, subject to this Act, authorise the holder of that mining tenement —

(i) to carry out mining on the natural surface of the private land and at any depth thereunder; or

(ii) to carry out mining at a depth of not less than 30 metres from the lowest part of the natural surface of the private land;

(b) shall comprise a right of access by a right of way, to be marked in the prescribed manner at the expense of the holder of that mining tenement, from the private land through any land, whether occupied under a mining tenement or otherwise, to the nearest practicable point of a street or road, but except with the consent in writing of the owner and the occupier of any land used as a yard, garden, orchard or cultivated field no such right of way shall be had by the holder of that mining tenement through that land;

(c) does not without the consent in writing of the owner and the occupier of the private land authorise the holder of that mining tenement to use water artificially conserved by that owner or occupier or to fell trees, strip bark or cut timber on the private land or, except in connection with mining carried out on the private land, to remove earth or rock therefrom;

(d) does not authorise the holder of that mining tenement to impound any stock or other animals belonging to or being in the custody or under the control of the owner or occupier of any land adjoining the mining tenement, or to disturb or molest any such stock or other animals in any manner whatever, or to prevent any such stock or other animals from depasturing on or over the land the subject of the mining tenement, unless that land is fenced.

[Section 29 inserted by No. 69 of 1981 s. 9; amended by No. 100 of 1985 s. 20; No. 105 of 1986 s. 9; No. 58 of 1994 s. 6.]

30. Granting of permits in respect of private land

(1) A person who desires to enter on any private land to search for any mineral or to mark out a mining tenement may apply in writing to a warden for a permit to enter on the private land.

(2) An application under subsection (1) shall be made in the prescribed manner and be in the prescribed form and shall contain —

(a) such description of the private land concerned as in the opinion of a warden will enable it to be identified; and

(b) such particulars relating to the private land concerned as are sufficient to enable a warden to be satisfied that the land is private land.

(3) A warden, on being satisfied that an application made under subsection (1) is made in good faith, may grant a permit in writing to enter on the private land concerned —

(a) for such term not exceeding 30 days from the date thereof; and

(b) subject to such conditions, not being conditions preventing the marking out of any mining tenement or the maintenance of any marks or notices relating thereto,

as he thinks fit and specifies in that permit and, where the holder of the permit marks out and applies for a mining tenement in relation to that land or any part thereof, the permit shall be deemed to continue in force, for the purpose only of repairing or maintaining the marks so set up and the notices posted thereon, until such time as the application for the mining tenement is determined.

(4) A warden may, on granting a permit under subsection (3), fix a sum of money and require that sum to be paid to him by the applicant for the permit before the issue thereof to the applicant.

(5) A warden shall —

(a) hold the sum of money paid to him under subsection (4) to compensate the owner and the occupier of the private land to which the permit concerned relates for any damage likely to be caused by the holder of that permit during the currency thereof;

(b) pay the sum referred to in paragraph (a) either wholly or in part to the owner or the occupier of the private land to which the permit concerned relates or to both, if he or they suffer any damage caused by the holder of that permit during the currency thereof.

(6) If a warden does not pay any or all of the sum referred to in subsection (5)(a) in accordance with that subsection, he shall return that sum or the balance thereof, as the case requires, to the holder of the permit concerned as soon as is practicable after the expiry of that permit.

(7) A permit under subsection (3) shall be deemed to be held subject to the condition that the holder is liable —

(a) in accordance with section 123, in respect of loss or damage arising out of the lawful exercise of the authorisation conferred by the permit; and

(b) generally for any loss or damage arising by reason of any entry on the land effected in purported pursuance of the authorisation conferred by the permit where the exercise of that authorisation contravened conditions to which the permit was subject or the entry was otherwise unlawful.

[Section 30 inserted by No. 69 of 1981 s. 10; amended by No. 100 of 1985 s. 21; No. 22 of 1990 s. 9.]

31. Holder of permit to give notice to owner and occupier

(1) The holder of a permit issued under section 30 or his duly authorised employee or agent shall hand a copy of the permit to the occupier of the private land over which the permit has been granted on the first occasion that the holder, his employee or agent enters upon that land after the issue of the permit, but if the occupier is not present on the private land on that occasion, the holder of the permit, his employee or agent shall —

(a) on entering the land on that occasion place a copy of the permit in a prominent position on the occupier’s dwelling or in a prominent position at the main entrance to the land if no such dwelling is situated on the land; and

(b) in any event, within 48 hours of his first entering the land after the issue of the permit, cause a copy of the permit to be sent by prepaid registered post to the occupier at his last known place of abode or business.

(2) Where the occupier of the private land is also the owner or one of the owners of that private land, no further notice other than that required by subsection (1) is required to be served on that owner or any of the other owners of that land for the purposes of subsection (3).

(3) Where none of the owners of any private land is also in occupation of that land, the holder of a permit granted over that private land shall cause a copy of the permit to be sent, within 48 hours of his first entering the land after the issue of the permit, by prepaid registered post to one of those owners at —

(a) in the case of an owner which is a body corporate — the registered office of the body corporate; or

(b) in the case of an owner who is not a body corporate — to his last known place of abode or business.

[Section 31 amended by No. 100 of 1985 s. 22; No. 22 of 1990 s. 10.]

32. Rights conferred by a permit

(1) The holder of a permit issued under section 30 or his duly authorised employee or agent is thereby authorised —

(a) to enter upon and remain upon the surface of the private land to which the permit relates and to search thereon for any mineral and to mark out, and repair and maintain the marks set up and notices relating to the application for one or more mining tenements with respect to that land or any part thereof;

(b) to search thereon for any mineral and detach one or more samples of any vein or lode outcropping on the surface thereof not exceeding in the aggregate 13 kilograms and to take therefrom such other samples as may be agreed by the owner or, where the owner is not in occupation of the private land, the occupier of the private land; and

but the holder or his duly authorised employee or agent shall not carry out any other mining on or otherwise disturb the surface of the land.

(2) Where the warden refuses to grant an application for a permit under section 30 or grants the application on conditions the applicant considers unreasonable or fixes a sum of money under section 30(4) which the applicant considers excessive the applicant may within the time and in the manner prescribed appeal to the Minister against such refusal, conditions or amount as the case may be.

(3) The Minister may dismiss the appeal or uphold the appeal and grant the permit which he is hereby authorised to do.

[Section 32 amended by No. 69 of 1981 s. 11; No. 100 of 1985 s. 23.]

33. Application for mining tenement by permit holder

(1) Subject to subsection (1a), where an application is made in accordance with this Act for a mining tenement that relates to private land notice of the application shall be given in the prescribed manner by the applicant to —

(a) the chief executive officer of the local government;

(b) the owner and occupier of the private land; and

(c) each mortgagee of the land under a mortgage endorsed or noted on the title or land register or record relating to that land,

but if there is no occupier of the land, or no such occupier can be found, the notice of the application shall be affixed in some conspicuous manner on the land.

(1a) Where the application for a mining tenement relates only to that portion of the land that is not less than 30 metres below the lowest part of the natural surface of the private land, it shall not be necessary to give notice of the application to the owner or occupier or to a mortgagee of the land, but no application shall be made under section 29(5) or otherwise in respect of that portion of the land that is less than 30 metres below the lowest part of the natural surface unless notice is given in accordance with subsection (1) notwithstanding the prior grant of an application for a mining tenement over any portion of the land.

(1b) Where the application relates to land to which section 29(2) or (5) applies, the applicant shall be required to establish that both the owner and the occupier have consented in writing to the grant of the mining tenement concerned but otherwise, subject to the determination of the amount of any compensation payable in accordance with section 123, a mining tenement in respect of private land may be granted in accordance with this Act.

(2) The owner and occupier of the private land or any portion of that land and any mortgagee referred to in subsection (1)(c) are entitled to be heard in relation to any application in respect of any portion of that land and if the owner or occupier objects to the granting of the mining tenement, the warden may, if in the circumstances of the case he considers it proper so to do, and irrespective of the manner in which the application for the mining tenement is disposed of, order that the applicant pay to the objector or objectors, such sum by way of costs as the warden orders.

(3) Nothing in subsection (2) limits or otherwise affects the other powers conferred by this Act upon a warden.

[Section 33 amended by No. 100 of 1985 s. 24; No. 14 of 1996 s. 4.]

[34. Repealed by No. 69 of 1981 s. 12.]

35. Compensation to be agreed upon or determined before mining operation commences

(1) The holder of a mining tenement shall not commence any mining on the natural surface or within a depth of 30 metres from the lowest part of the natural surface of any private land unless and until he has paid or tendered to the owner and the occupier thereof the amount of compensation, if any, that he is required to pay under and as ascertained in accordance with this Act, or he has made an agreement with the owner and occupier as to the amount, times and mode of the compensation, if any.

(2) Where any person to whom compensation is payable under this Act cannot be found or is dead or is otherwise incapacitated at law, any payment of compensation may be made to the Minister in trust for that person or his personal representative as the case requires.

[Section 35 amended by No. 69 of 1981 s. 13; No. 100 of 1985 s. 25.]

[36. Repealed by No. 69 of 1981 s. 14.]

37. Application to bring certain private land under this Division

(1) Any person may in manner prescribed apply to the Minister to have any private land alienated before 1 January 1899 brought within the operation of this Division for the purpose of mining for minerals other than gold, silver and precious metals.

(2) In respect of an application under subsection (1), the Minister may authorise and instruct a geologist or any other professional officer in the Department to enter, inspect and report upon the private land to which the application, relates and thereupon the geologist or the professional officer with assistants may enter and prospect the private land and do all things necessary to ascertain whether there is a reasonable likelihood of that land containing any mineral in payable quantities.

(3)(a) If the geologist or the professional officer reports to the Minister that in the geologist’s or professional officer’s opinion there is a reasonable likelihood of the private land containing any mineral in payable quantities, the Minister may, with the approval of the Governor, by notice published in the Government Gazette, declare that at the expiration of a period specified in the notice, being a period of not less than 6 months from the date the notice is so published, the private land shall come within the operation of this Division.

(b) A copy of the notice published in the Government Gazette shall be served upon the owner of the private land to which the notice relates, as soon as practicable after it is so published.

38. Right of owner to apply for mining tenement

(1) The owner of the private land to which section 37 refers may, at any time within the period referred to in subsection (3)(a) of that section, apply for a mining tenement in respect of the private land or any part thereof.

(2) Where within the period referred to in subsection (1) the owner of the private land fails to apply for a mining tenement with respect to the land as provided in that subsection, or if he so applies but a tenement is not granted, —

(a) the land shall come within the operation of this Division and all rent and royalties received by the Crown for any minerals won from the land shall be paid to the owner of the land less one‑tenth of the amount thereof; and

(b) the Minister may grant to the person who made the application under section 37(1) for such period as he thinks fit, the prior right to the exclusion of all other persons to mark out the private land or any part thereof and/or apply for a mining tenement in respect thereof.

[Section 38 amended by No. 69 of 1981 s. 15; No. 100 of 1985 s. 26.]

39. Owner to comply with mining tenement conditions

Where the owner of any private land is granted a mining tenement on an application made under section 38 he shall comply with the terms and conditions of the mining tenement and in particular the expenditure conditions applicable thereto, but no rent or royalty shall be payable by the owner with respect to the land the subject of the mining tenement or in respect of any mineral won therefrom.

Part IV — Mining tenements

Division 1 — Prospecting licence

[39A. Repealed by No. 52 of 1995 s. 21.]

40. Grant of prospecting licence

(1) Subject to this Act, the mining registrar or the warden, in accordance with section 42, may, on the application of any person grant to that person a licence to be known as a prospecting licence which shall be subject to such conditions as are prescribed or are imposed pursuant to section 24, 24A or 25 or are specified in the licence.

(2) The area of land in respect of which any one prospecting licence may be granted shall not exceed 200 hectares.

(3) A person may be granted more than one prospecting licence.

[Section 40 amended by No. 122 of 1982 s. 8; No. 100 of 1985 s. 27; No. 58 of 1994 s. 7; No. 5 of 1997 s. 41(2).]

41. Application for prospecting licence

(1) An application for a prospecting licence —

(a) shall be made in the prescribed form;

(b) shall be accompanied by the amount of the prescribed rent for the first year or portion thereof as prescribed;

(c) shall be made by reference to a written description of the area of land in respect of which the licence is sought, and be accompanied by a map on which are clearly delineated the boundaries of that area;

[(d) deleted]

(e) shall be lodged at the office of the mining registrar;

(f) shall be accompanied by the prescribed application fee.

(2) Within the prescribed period the applicant shall serve such notice of the application as may be prescribed, on the owner and occupier of the land to which the application relates and on such other persons as may be prescribed.

(3) An applicant for a prospecting licence shall at the request of the mining registrar or warden furnish such further information in relation to his application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.

[Section 41 amended by No. 122 of 1982 s. 9; No. 52 of 1983 s. 3; No. 100 of 1985 s. 28; No. 37 of 1993 s. 26; No. 58 of 1994 s. 8.]

42. Determination of application for prospecting licence

(1) A person who wishes to object to the granting of an application for a prospecting licence shall lodge at the office of the mining registrar a notice of objection within the prescribed time and in the prescribed manner.

(2) Where no notice of objection is lodged within the prescribed time the mining registrar may —

(a) grant the prospecting licence if satisfied that the applicant has complied in all respects with the provisions of this Act; or

(b) refuse the prospecting licence if not so satisfied.

(3) Where a notice of objection —

(a) is lodged within the prescribed time; or

(b) is not lodged within the prescribed time but is lodged before the mining registrar has granted or refused the prospecting licence under subsection (2) and the warden is satisfied that there are reasonable grounds for late lodgment,

the warden shall hear and determine the application for the prospecting licence in open court on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.

[Section 42 inserted by No. 58 of 1994 s. 9(1).]

43. Prospecting licence not to include land already the subject of a mining tenement

(1) Where an application for a prospecting licence relates to land that is, or was when the application was made, the subject of a mining tenement, any prospecting licence granted in respect of that application shall not include that land.

(2) Subsection (1) does not apply in relation to a special prospecting licence granted under section 56A, 70 or 85B or a prospecting licence granted in respect of an application under section 56B or a reversion licence application.

[Section 43 inserted by No. 15 of 2002 s. 6; amended by No. 39 of 2004 s. 4; No. 27 of 2005 s. 5.]

44. Power to grant prospecting licence over all or part of land in application

Subject to section 43, a prospecting licence may be granted in respect of all or part of the land to which the application therefor relates.

[Section 44 amended by No. 100 of 1985 s. 30; No. 15 of 2002 s. 7.]

45. Term of prospecting licence

(1) A prospecting licence shall, subject to this Act, remain in force for a period of 4 years from and including the date on which it was granted, and shall then expire.

(1a) Notwithstanding subsection (1) the Minister may, if satisfied that a prescribed ground for extension exists, extend the term of a prospecting licence —

(a) by one period of 4 years; and

(b) if the licence has retention status, by a further period or periods of 4 years.

(1b) An application for the extension of the term of a prospecting licence under subsection (1a) (an “extension application”) shall be made within the prescribed time and in the prescribed manner.

(1c) If an extension application is made in respect of a prospecting licence and the term of the licence would but for this subsection expire, the licence continues in force in respect of the land the subject of the extension application until the application is determined.

(1d) If —

(a) an extension application is made in respect of a prospecting licence the term of which has been extended under subsection (1a)(a); and

(b) an application for retention status in respect of the prospecting licence —

(i) is pending when the extension application is made; or

(ii) is made at the same time as the extension application,

the extension application shall not be determined until the application for retention status has been determined.

(1e) If the holder of a prospecting licence transfers the licence after making an extension application in respect of the licence, the extension application continues in the name of the transferee of the licence as if the transferee had made it.

(2) When a prospecting licence is surrendered, forfeited or expires the land the subject of the prospecting licence or any part thereof shall not be marked out or applied for as a prospecting licence or an exploration licence —

(a) by or on behalf of the person who was the holder of the prospecting licence immediately prior to the date of the surrender, forfeiture or expiry;

(b) by or on behalf of any person who had an interest in the prospecting licence immediately prior to that date; or

within a period of 3 months from and including that date.

(2a) For the purposes of subsection (2)(b) the holding of shares in a listed public company which held the prospecting licence in question does not of itself constitute an interest in the prospecting licence.

[Section 45 amended by No. 122 of 1982 s. 11; No. 100 of 1985 s. 31; No. 22 of 1990 s. 11; No. 37 of 1993 s. 5; No. 15 of 2002 s. 8; No. 39 of 2004 s. 5(1).]

46. Conditions attached to every prospecting licence

In addition to any conditions that may be prescribed or imposed with respect to a prospecting licence, every prospecting licence shall be deemed to be granted subject to the condition that the holder of the licence will prospect for minerals and to the following conditions —

(a) that all minerals of economic interest discovered in or on the land the subject of the prospecting licence be promptly reported in writing by the holder to the Minister;

(aa) that no ground disturbing equipment will be used by the holder when prospecting on the land the subject of the prospecting licence unless —

(i) the holder has lodged in the prescribed manner a programme of work in respect of that use; and

(ii) the programme of work has been approved in writing by the Minister or a prescribed official;

(b) that all holes, pits, trenches and other disturbances to the surface of the land the subject of the prospecting licence which are —

(i) made while prospecting; and

(ii) in the opinion of a prescribed official, likely to endanger the safety of any person or animal,

will be filled in or otherwise made safe to the satisfaction of the prescribed official;

(c) that all necessary steps are taken by the holder to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.

[Section 46 amended by No. 69 of 1981 s. 16; No. 100 of 1985 s. 32; No. 57 of 1997 s. 89(1); No. 39 of 2004 s. 6(1).]

46A. Conditions for prevention or reduction of injury to land

(1) Reasonable conditions may be imposed on the holder of a prospecting licence for the purpose of preventing or reducing, or making good, injury to the natural surface of the land in respect of which the licence is sought or was granted, or injury to anything on the natural surface of that land or consequential damage to any other land.

(2) A condition may be imposed under this section —

(a) by the mining registrar, the warden or the Minister on the granting of the licence; or

(b) by the Minister at any subsequent time.

(3) A condition imposed under this section may be cancelled or varied by the Minister at any time.

(4) A condition imposed in relation to a licence under this section —

(a) may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and

(b) whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.

[Section 46A inserted by No. 22 of 1990 s. 12; amended by No. 58 of 1994 s. 9(2).]

47. Survey of area of prospecting licence not required in first instance

(1) On an application for a prospecting licence or on a prospecting licence being granted the land affected is not thereby required to be surveyed, but where a dispute arises with respect to the position of such land or the boundaries or any boundary thereof the warden or Minister may order a survey to be made of the boundaries or the boundary in order to settle the dispute.

(2) A survey ordered under subsection (1) shall be arranged and paid for by such party or parties to the dispute as the warden or the Minister determines.

[Section 47 amended by No. 100 of 1985 s. 33; No. 37 of 1993 s. 28(1).]

48. Rights conferred by prospecting licence

A prospecting licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject —

(a) to enter and re‑enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of prospecting for minerals in, on or under the land;

(b) to prospect, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;

(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;

(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with prospecting for minerals on the land.

[Section 48 amended by No. 100 of 1985 s. 34 (as amended by No. 105 of 1986 s. 4); No. 22 of 1990 s. 13; No. 5 of 1997 s. 41(2).]

49. Holder of prospecting licence to have priority for grant of mining leases or general purpose leases

(1) The holder of a prospecting licence has —

(a) subject to this Act and to any conditions to which the prospecting licence is subject; and

(b) while the prospecting licence continues in force,

the right to apply for, and subject to section 75(9) to have granted pursuant to section 75(7), one or more mining leases or one or more general purpose leases or both in respect of any part or parts of the land the subject of the prospecting licence.

(2) Where an application for a mining lease or a general purpose lease is made by the holder of a prospecting licence in respect of any land and the term of the prospecting licence would but for this subsection expire, that licence shall continue in force in respect to the land the subject of that application until the application for a lease is determined.

(3) If, after an application is made under subsection (1) in respect of land the subject of a prospecting licence —

(a) the holder of the licence transfers the licence; or

(b) where there are 2 or more holders of the licence, a holder transfers the holder’s interest in the licence,

the application continues in the name of the transferee of the licence or interest as if the transferee were the applicant or one of the applicants, as the case requires.

(4) For the purposes of subsection (3), where there are 2 or more transferees of the prospecting licence, each of the transferees is to be regarded as an applicant for an interest in the relevant mining lease or general purpose lease that corresponds to the interest held by that transferee in the licence.

[Section 49 inserted by No. 122 of 1982 s. 12; amended by No. 100 of 1985 s. 35; No. 21 of 1993 s. 45; No. 58 of 1994 s. 29(2); No. 52 of 1995 s. 22; No. 17 of 1999 s. 5.]

50. Compliance with expenditure conditions

(1) During the currency of a prospecting licence the holder thereof shall comply with the prescribed expenditure conditions relating thereto unless in accordance with this Act total or partial exemption therefrom is granted.

(2) In the case of a prospecting licence that has retention status, expenditure conditions prescribed for the purposes of subsection (1) —

(a) shall provide for a reduction calculated in the prescribed manner of the amount of expenditure required during the year of the term of the licence in which retention status is approved; and

(b) shall not require expenditure during any subsequent year of the term of the licence.

[Section 50 amended by No. 39 of 2004 s. 21.]

51. Reports of work and expenditure

The holder of a prospecting licence shall, at such times and in such manner as may be prescribed, file or cause to be filed with the Department at Perth a report of all work done on, and money expended in connection with, prospecting in the area the subject of the licence, during the period to which the report relates.

[Section 51 amended by No. 58 of 1994 s. 10.]

51A. Geological samples

The holder of a prospecting licence shall furnish to the Minister such geological samples obtained in the course of operations conducted by the holder under the licence as the Minister may request.

[Section 51A inserted by No. 39 of 2004 s. 43.]

52. Security relating to prospecting licence

(1) The applicant for a prospecting licence shall lodge at the office of the mining registrar within the prescribed period a security, in respect of each prospecting licence to which the application relates, for compliance with the conditions to which the prospecting licence, if granted, will from time to time be subject and with the provisions of this Part and the regulations.

(1a) The Minister may require the holder of a prospecting licence to lodge at the office of the mining registrar or the Department at Perth, within such period as the Minister specifies in writing, an additional security for compliance with conditions imposed in relation to the licence under section 46A.

(2) A security referred to in subsection (1) or (1a) shall be in accordance with and subject to the provisions of section 126.

(3) A prospecting licence shall not be granted unless a security has been lodged by the applicant for the prospecting licence in accordance with subsection (1).

(4) Notwithstanding section 154(1), an applicant for a prospecting licence who fails to comply with subsection (1) does not commit an offence against this Act.

[Section 52 amended by No. 122 of 1982 s. 13; No. 100 of 1985 s. 36; No. 37 of 1993 s. 26; No. 58 of 1994 s. 11; No. 17 of 1999 s. 6(1) and (2).]

53. Application for retention status

(1) In this section —

“prospecting licence” does not include a prospecting licence that is a primary tenement for the purposes of Division 2A.

(2) The holder of a prospecting licence may apply to the Minister for approval of retention status under section 54.

(3) An application under subsection (2) —

(a) shall be in writing;

(b) shall be made in the prescribed manner;

(d) shall be accompanied by any map, statement or other information required by the regulations; and

(e) shall be accompanied by the prescribed application fee.

(4) For the purposes of subsection (3)(d), but without limiting section 162(5), the regulations may require a statement or other information to be in the form of a statutory declaration.

(5) If the holder of a prospecting licence transfers the licence after making an application under subsection (2) in respect of the licence, the application continues in the name of the transferee of the licence as if the transferee had made it.

[Section 53 inserted by No. 39 of 2004 s. 22.]

54. Approval of retention status

(1) The Minister may approve retention status for the whole or any part of the land the subject of a prospecting licence if satisfied that —

(a) there is an identified mineral resource located in, on or under that land; and

(b) the mining of that identified mineral resource is impracticable because —

(i) the resource is uneconomic or subject to marketing problems although the resource may reasonably be expected to become economic or marketable in the future;

(ii) the resource is required to sustain the future operations of an existing or proposed mining operation; or

(iii) there are existing political, environmental or other difficulties in obtaining requisite approvals.

(2) An approval shall be in writing.

(3) An approval takes effect on the day on which notice of the approval is published in the Gazette or on a later day specified in the notice.

(4) The area of land to which an approval applies shall be an area that, in the opinion of the Minister, is sufficient to include —

(a) the land in, on or under which the identified mineral resource is located; and

(b) such other land as may be required for future mining operations in respect of that identified mineral resource.

(5) The area of land to which an approval applies may be less than the area of land in respect of which the approval was sought.

(6) If retention status is approved for part of the land the subject of a prospecting licence, the holder of the prospecting licence shall mark out in the prescribed manner the boundaries of the land covered by the approval as soon as practicable after the day on which the approval takes effect.

(7) If retention status is approved for part of the land the subject of a prospecting licence, the land not covered by the approval ceases to be the subject of the licence on the day on which the approval takes effect.

[Section 54 inserted by No. 39 of 2004 s. 22.]

55. Consultation with other Ministers

(1) Before approving retention status under section 54 for land of a class referred to in section 24(1), the Minister shall consult and obtain the recommendations of the relevant responsible Minister under section 24(8).

(2) Before approving retention status under section 54 for land in a marine management area, marine nature reserve or marine park, the Minister shall consult and obtain the recommendations of the other Ministers referred to in section 24A(6).

(3) Before approving retention status under section 54 for land of a class referred to in section 25(1)(a), (b) or (c), the Minister shall consult and obtain the recommendations of the other Ministers referred to in section 25(2)(b).

(4) Before approving retention status under section 54 for land of the class referred to in section 25(1)(d), the Minister shall consult and obtain the recommendations of the other Minister referred to in section 25(3)(b).

[Section 55 inserted by No. 39 of 2004 s. 22.]

55A. Programme of work

(1) On the approval of retention status under section 54, or at any subsequent time, the Minister may impose on the holder of the prospecting licence a condition requiring the holder to comply with a specified programme of work in respect of the land the subject of the licence within a specified period.

(2) Before imposing a condition under subsection (1), the Minister may require the holder of the licence to submit to the Minister a draft programme of work in a form approved by the Minister and the holder shall comply with that requirement.

(3) A condition imposed under subsection (1) may be cancelled or varied by the Minister at any time.

(4) A condition imposed under subsection (1) —

(a) may be endorsed on the prospecting licence, for which purpose the holder of the licence shall produce the licence on demand; and

(5) In subsection (1) —

“specified” means specified in writing by the Minister.

[Section 55A inserted by No. 39 of 2004 s. 22.]

55B. Holder of prospecting licence with retention status may be required to apply for mining lease

(1) The Minister may at any time, by notice in writing, require the holder of a prospecting licence that has retention status to show cause why a mining lease should not be applied for in respect of the whole or any part of the land the subject of the prospecting licence.

(2) Where —

(a) the holder of a prospecting licence fails to show cause within the time specified in the notice referred to in subsection (1); or

(b) the Minister is of the opinion that the holder of a prospecting licence has shown insufficient cause,

the Minister may, by notice in writing, require that holder to apply in accordance with this Act for a mining lease in respect of the whole or any part of the land the subject of the prospecting licence within a period of 60 days from the giving of that notice.

[Section 55B inserted by No. 39 of 2004 s. 22.]

56. Appeal against refusal to grant prospecting licence

(1) Where the mining registrar or the warden refuses to grant an application for a prospecting licence or grants the application on conditions the applicant considers unreasonable, the applicant may within the time and in the manner prescribed appeal to the Minister against such refusal or conditions as the case may be.

(2) The Minister may dismiss the appeal or uphold the appeal and grant the application on such conditions as he considers reasonable.

[Section 56 inserted by No. 122 of 1982 s. 15; amended by No. 21 of 1993 s. 45; No. 58 of 1994 s. 9(3) and (4); No. 52 of 1995 s. 23.]

56A. Special prospecting licences

(1) Where any land is the subject of a prospecting licence (in this section called “the primary tenement”) then, notwithstanding section 117, a person may at any time after the expiry of 12 months from —

(a) in the case of land which was the subject of a mineral claim or dredging claim granted under the repealed Act that by the operation of the transitional provisions set forth in the Second Schedule became subject to the primary tenement, the date of approval of the claim; and

(b) in any other case, unless subsection (1aa) applies, the date on which the primary tenement was granted,

mark out and, in accordance with section 41, apply for a prospecting licence for gold (in this section called a “special prospecting licence”) in respect of any part of the land the subject of the primary tenement.

(1aa) If the primary tenement was granted as a result of an application under section 56B or a reversion licence application, a special prospecting licence may be marked out and applied for at any time after the date on which the primary tenement was granted.

(1a) A special prospecting licence may only be applied for by, granted to or held by a natural person.

(2) Unless subsection (5a) applies, an applicant for a special prospecting licence shall, within the prescribed period, serve notice of his application on the holder of the primary tenement as if that holder were the occupier of the land to which that application relates, and subsections (3) to (5) apply in respect of that application.

(3) If, after being served with notice of an application for a special prospecting licence, the holder of the primary tenement does not lodge an objection against that application, the mining registrar may, subject to this Act, grant that application as provided in subsection (6).

(4) If the holder of the primary tenement lodges an objection to an application for a special prospecting licence, the warden shall obtain a report from the Director, Geological Survey, in respect of the prospecting carried on by the holder of the primary tenement on the land to which the application relates.

(4a) A report prepared by the Director, Geological Survey for the purposes of subsection (4) is to be based solely on information contained in reports filed by or on behalf of the holder of the primary tenement under section 51 or 115A.

(5) After hearing an objection referred to in subsection (4), the warden may refuse the application for the special prospecting licence concerned on the ground that prospecting for gold on the land to which that application relates would result in undue detriment to the prospecting being carried on by the holder of the primary tenement or he may recommend that application to the Minister, who may —

(a) refuse that application; or

(b) subject to this Act, grant that application as provided in subsection (6),

but, if the warden refuses an application under this subsection, the applicant may within the time and in the manner prescribed appeal to the Minister against that refusal and the Minister may dismiss that appeal or uphold that appeal and grant that application as provided in subsection (6).

(5a) If at the time when an applicant for a special prospecting licence marked out the land to which his application relates —

(a) a special prospecting licence was in force in respect of land the subject of the primary tenement; or

(b) another application for a special prospecting licence in respect of land the subject of the primary tenement had been made, but had not been determined, under this section,

the applicant shall, within the prescribed period, lodge at the office of the mining registrar the written consent of the holder of the primary tenement to the grant of his application.

(5b) If written consent to the grant of an application is lodged in accordance with subsection (5a), the mining registrar may, subject to this Act, grant the application as provided for in subsection (6).

(6) Subject to this section, the mining registrar or the Minister may grant an application for a special prospecting licence on such terms and conditions as he thinks fit, but a special prospecting licence so granted —

(a) shall not exceed 10 hectares in area;

(b) shall authorise the holder thereof to prospect only for gold;

(c) shall not, unless the Minister otherwise directs, prevent the holder of the primary tenement from prospecting for minerals other than gold in or on the land the subject of the special prospecting licence;

(d) does not authorise the holder thereof to excavate, extract or remove during the period for which the tenement remains in force a total amount of earth, soil, rock, stone, fluid or mineral bearing substances in excess of 500 tonnes, except in so far as the prior written approval of the Minister may otherwise permit; and

(e) does not authorise mining to be carried out in any portion of the land that is —

(i) below a depth specified in the terms and conditions of the special prospecting licence, and any depth so specified shall be less than 50 metres below the lowest part of the natural surface of the land the subject of the special prospecting licence; or

(ii) if a depth is not so specified, 50 metres or more below the lowest part of the natural surface of the land the subject of the special prospecting licence, except in so far as both the prior written consent of the holder of the primary tenement and the prior written approval of the Minister may otherwise permit.

(6aa) A special prospecting licence may be granted for a period of 3 months or for any period which is a multiple of 3 months but which does not exceed 4 years.

(6a) A special prospecting licence —

(a) continues in force notwithstanding that the holder of the primary tenement may apply for and be granted a retention licence, mining lease or general purpose lease in respect to the land; but

(b) ceases (and the land in respect to which it was granted reverts to the primary tenement holder as an integral part of the tenement held by him) on the surrender, forfeiture or expiry of that special prospecting licence.

(7) No legal or equitable interest in or affecting —

(a) a special prospecting licence; or

(b) a mining lease in respect of the land or any part thereof the subject of a special prospecting licence,

is capable of being created, affected or dealt with, whether directly or indirectly, except with the prior written consent of the holder of the primary tenement, and no person shall hold or have any beneficial, legal or equitable interest in —

(d) more than one such mining lease.

(7a) A reference in subsection (7) to a person includes a reference to any other person who would, for the purposes of the Corporations Act, be taken to be an associate of the first‑mentioned person.

(7b) No more than one mining lease in respect of the land or any part thereof which is the subject of a special prospecting licence shall be granted in respect of the primary tenement.

(8) The holder of a special prospecting licence granted for a period of 4 years may make an application for a mining lease for gold in respect of the land or any part thereof which is the subject of the special prospecting licence, and on an application being made the Minister may, subject to subsection (7b), grant the application for a lease in respect to that portion of the land to which the special prospecting licence relates that is less than a depth of 50 metres, or such greater depth as the Minister approves with the prior written consent of the holder of the primary tenement, below the lowest part of the natural surface of the land and on such terms and conditions as the Minister thinks fit, and thereupon the area of land in respect of which that mining lease is granted shall be excised from the primary tenement (whether or not the primary tenement has in the meantime been converted into a retention licence or a mining lease).

(8aa) Sections 74, 74A and 75 apply to an application for a mining lease under subsection (8).

(8a) A mining lease granted pursuant to subsection (8) —

(a) has effect in relation to gold and any minerals occurring in conjunction with that gold;

(b) does not authorise the lessee thereof, his agents or employees to excavate, extract or remove a total amount of earth, soil, rock, stone, fluid or mineral bearing substances in excess of 750 tonnes in any year, except in so far as both the prior written consent of the holder of the primary tenement and the prior written approval of the Minister may otherwise permit;

[(c) deleted]

(d) ceases to have effect (and the land in respect to which it was granted reverts to the primary tenement holder as an integral part of the tenement held by him) on the surrender, forfeiture or expiry of that lease.

(9) Subject to this section, the provisions of this Act relating to —

(a) prospecting licences apply to a special prospecting licence; and

(b) mining leases apply to a mining lease,

granted under this section.

(9a) Where, before the determination of an application for a special prospecting licence in respect of land, the primary tenement is surrendered or forfeited or expires, the application is, by virtue of this subsection, converted into an application for a prospecting licence in respect of that land and the provisions of this Act relating to such applications apply accordingly.

(10) On the surrender, forfeiture or expiry of the primary tenement, a special prospecting licence in respect of any land the subject of the primary tenement immediately before the date of its surrender, forfeiture or expiry is, by virtue of this subsection, converted into a prospecting licence in respect of that land and, subject to subsection (11), the provisions of this Act relating to prospecting licences apply accordingly.

(11) Where a special prospecting licence is converted into a prospecting licence, the prospecting licence remains in force, subject to this Act, for the remainder of the period for which the special prospecting licence was granted.

(12) Subsections (9a) and (10) do not apply if —

(a) the primary tenement is amalgamated with an exploration licence under section 67A(1);

(b) prior to the surrender, forfeiture or expiry of the primary tenement the holder of the primary tenement applies for a retention licence, a mining lease or a general purpose lease and the licence or lease is subsequently granted in respect of any land the subject of the application for a special prospecting licence or the special prospecting licence, as the case requires;

(c) prior to the surrender, forfeiture or expiry of the primary tenement the holder of the primary tenement makes an application under section 56B and a prospecting licence is granted as a result of that application in respect of any land the subject of the application for a special prospecting licence or the special prospecting licence, as the case requires; or

(d) prior to the surrender, forfeiture or expiry of the primary tenement the holder of the primary tenement makes a reversion licence application and a prospecting licence or an exploration licence is granted as a result of that application in respect of any land the subject of the application for a special prospecting licence or the special prospecting licence, as the case requires.

[Section 56A inserted by No. 122 of 1982 s. 16; amended by No. 100 of 1985 s. 37; No. 22 of 1990 s. 14; No. 21 of 1993 s. 45; No. 37 of 1993 s. 6, 10(2) and 27; No. 58 of 1994 s. 12; No. 52 of 1995 s. 24; No. 54 of 1996 s. 7 and 23; No. 10 of 2001 s. 131; No. 15 of 2002 s. 9; No. 39 of 2004 s. 8; No. 27 of 2005 s. 6.]

56B. Certain licence holders to have right to apply for further prospecting licence

(1) In this section —

“relevant licence” means a prospecting licence the term of which expires within 12 months after the day on which section 7 of the Mining Amendment Act 2004 comes into operation.

(2) Despite sections 18, 23 and 27 but subject to the other provisions of this Act, the holder of a relevant licence has, while the licence continues in force, the right to apply for a prospecting licence in respect of the whole or any part of the land the subject of the relevant licence.

(3) Where the holder of a relevant licence exercises the right conferred by subsection (2) and the term of the relevant licence would but for this subsection expire, the relevant licence shall continue in force in respect of the land the subject of the application for a prospecting licence until the application is determined.

(4) If the holder of a relevant licence transfers the licence after making an application for a prospecting licence in the exercise of the right conferred by subsection (2), the application continues in the name of the transferee of the licence as if the transferee had made it.

[Section 56B inserted by No. 39 of 2004 s. 7.]

Division 2 — Exploration licence

[56AA. Repealed by No. 52 of 1995 s. 25.]

56C. Graticular sections

(1) For the purposes of this Division, the surface of the Earth shall be deemed to be divided —

(a) by the meridian of Greenwich and by meridians that are at a distance from that meridian of 1, or a multiple of 1, minute of longitude; and

(b) by the equator and by parallels of latitude that are at a distance from the equator of 1, or a multiple of 1, minute of latitude,

into sections (in this Division called “graticular sections”), each of which is bounded —

(d) by portions of 2 of those parallels of latitude that are at a distance from each other of 1 minute of latitude.

(2) For the purposes of this Division —

(a) a graticular section that is wholly within the State constitutes a block; and

(b) if part of a graticular section is within the State that part of the graticular section constitutes a block.

(3) In this Division —

(a) a reference to a graticular section that constitutes a block includes a reference to a graticular section part of which constitutes a block;

(b) a reference to a part of a block includes a reference to 2 or more parts of the block;

(4) For the purposes of this Division each block shall be identified by reference to the number of the block on a plan held at the Department.

[Section 56C inserted by No. 22 of 1990 s. 15.]

57. Grant of exploration licence

(1) Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.

(2) The area of land in respect of which an exploration licence may be granted shall be a block or blocks but shall not be more than 70 blocks unless subsection (2aa) applies.

(2aa) If the area of land referred to in subsection (2) is in an area of the State designated under section 57A(1) it shall not be more than 200 blocks.

(2a) Where an exploration licence is granted in respect of 2 or more blocks the graticular sections that constitute those blocks shall —

(a) constitute a single area; and

(b) each have a side in common with at least one other graticular section in that area.

(2b) Where —

(a) an application is made for an exploration licence in respect of 3 or more blocks;

(b) before the exploration licence is granted one or more of the blocks applied for becomes the subject of another mining tenement; and

the graticular sections that constitute the blocks in respect of which the licence is granted need not comply with subsection (2a)(a) and (b) if they form 2 or 3 discrete areas each consisting of —

(d) a single graticular section; or

(e) a number of graticular sections each having a side in common with at least one other graticular section in that area.

(2c) Where an application for an exploration licence is made with respect to one block, the land in respect of which the licence is granted may comprise part of the block if the rest of the block consists of land that is unavailable for exploration.

(2d) Where an application for an exploration licence is made with respect to 2 or more blocks, the land in respect of which the licence is granted may include part of a block if the rest of the block consists of land that is unavailable for exploration.

(2e) For the purposes of subsections (2c) and (2d) land is unavailable for exploration if that land is, or was when the application for the exploration licence was made, the subject of a current mining tenement (other than a miscellaneous licence).

(2ea) Where the application for the exploration licence is a reversion licence application, the reference in subsection (2e) to a current mining tenement does not include a continuing licence as defined in section 120AA(1).

(2f) Where the land in respect of which an exploration licence is granted comprises or includes part of a block —

(a) the licence is deemed to be granted in respect of that block for the purposes of subsections (2), (2a) and (2b);

(b) that block is deemed to be subject to the licence for the purposes of section 65; and

(c) the boundaries of the land the subject of the licence shall be deemed to be the same as the boundaries of the block for the purposes of section 67A.

(2g) A person may be granted more than one exploration licence.

(2h) Where the land in respect of which an exploration licence is granted comprises or includes part of a block, no other exploration licence shall be granted in respect of that block or any part of that block.

(3) The mining registrar or the warden shall not recommend the grant of an exploration licence under this section unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.

(4) Where in any particular area extensive mining is being carried on, the Minister may, from time to time, by notice published in the Government Gazette declare that no application for an exploration licence shall be made or granted with respect to any land comprising the area or any land within such area as is specified in the notice.

[Section 57 amended by No. 69 of 1981 s. 17; No. 122 of 1982 s. 17; No. 100 of 1985 s. 38; No. 22 of 1990 s. 16; No. 37 of 1993 s. 7; No. 58 of 1994 s. 13 and 15(2) and (3); No. 15 of 2002 s. 10; No. 39 of 2004 s. 12; No. 27 of 2005 s. 7.]

57A. Designation of areas for purposes of s. 57(2aa)

(1) The Minister may, by notice published in the Gazette, designate one or more areas of the State for the purposes of section 57(2aa).

(2) The Minister may, by notice published in the Gazette, vary or cancel a designation under subsection (1).

(3) A notice under this section comes into operation on the day on which the notice is published in the Gazette or such later day as is specified in the notice.

(4) The variation or cancellation of a designation under subsection (2) does not affect the operation of any exploration licence granted before the variation or cancellation takes effect.

(5) If —

(a) an application for an exploration licence is made in respect of an area of land that is in an area of the State designated under subsection (1) (a “designated area”); and

(b) before the application is determined the designation is varied or cancelled under subsection (2) with the result that the area of land to which the application relates ceases to be in a designated area,

then, despite that variation or cancellation, section 57(2aa) applies as if the area of land were in a designated area.

[Section 57A inserted by No. 39 of 2004 s. 13.]

58. Application for exploration licence

(1) An application for an exploration licence —

(a) shall be in the prescribed form;

(b) shall be accompanied by a statement specifying —

(i) the proposed method of exploration of the area in respect of which the licence is sought;

(ii) the details of the programme of work proposed to be carried out in such area;

(iii) the estimated amount of money proposed to be expended on the exploration; and

(iv) the technical and, subject to subsection (1aa), financial resources available to the applicant;

(c) shall be accompanied by the amount of the prescribed rent for the first year of the term of the licence or portion thereof as prescribed;

(d) shall be lodged at the office of the mining registrar; and

(e) shall be accompanied by the prescribed application fee.

(1aa) The statement under subsection (1)(b) does not have to specify the financial resources available to the applicant if —

(a) the applicant is a natural person;

(b) the application is in respect of not more than 4 blocks; and

(c) the statement specifies that the applicant intends to utilise his or her own labour to carry out the programme of work referred to in subsection (1)(b)(ii).

(1a) In order to facilitate the operation of section 105A(3) and (4)(a) in relation to applications for exploration licences in respect of an area that are made at the first available opportunity after that area has been surrendered under section 65 or has become forfeited under section 96A or 97, those applications shall be made in accordance with a prescribed procedure and shall be regarded as having been lodged at a time determined in accordance with the regulations.

(2)(a) An application referred to in subsection (1) must identify the block or blocks applied for by number in accordance with section 56C(4).

(b) On an application for an exploration licence or on an exploration licence being granted the land affected is not thereby required to be surveyed, but where a dispute arises with respect to the position of such land or the boundaries or any boundary thereof the warden or Minister may order a survey to be made of the boundaries or the boundary in order to settle the dispute.

(c) A survey ordered under paragraph (b) shall be arranged and paid for by such party or parties to the dispute as the warden or Minister determines.

(3) An applicant shall at the request of the mining registrar or warden furnish such further information in relation to his application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.

(4) Within the prescribed period the applicant shall serve such notice of the application as may be prescribed on the owner and occupier of the land to which the application relates and on such other persons as may be prescribed.

[Section 58 amended by No. 100 of 1985 s. 39; No. 22 of 1990 s. 17; No. 37 of 1993 s. 26 and 28(1); No. 58 of 1994 s. 14; No. 15 of 2002 s. 11.]

59. Determination of application for exploration licence

(1) A person who wishes to object to the granting of an application for an exploration licence shall lodge at the office of the mining registrar a notice of objection within the prescribed time and in the prescribed manner.

(2) Where no notice of objection is lodged within the prescribed time the mining registrar shall, unless subsection (4)(b) applies, forward to the Minister a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.

(3) The mining registrar shall —

(a) recommend the grant of the exploration licence if satisfied that the applicant has complied in all respects with the provisions of this Act; or

(b) recommend the refusal of the exploration licence if not so satisfied.

(4) Where a notice of objection —

(a) is lodged within the prescribed time; or

(b) is not lodged within the prescribed time but is lodged before the mining registrar has forwarded a report to the Minister under subsection (2) and the warden is satisfied that there are reasonable grounds for late lodgment,