South Australia: Opal Mining Act 1995 (SA)

South Australia Opal Mining Act 1995 An Act to regulate prospecting and mining for opals and other precious stones. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Declaration of precious stones field or reserved land 5 Declaration of designated area or exclusion zone 6 Exempt land Part 2—Precious stones prospecting permits 7 Application for permit 8 Nature of permit 9 Terms and renewal of permit 10 Rights of holder of permit 10A Special provisions in relation to Mintabie precious stones field 11 Qualifications to permits 12 Area to be pegged out etc 13 Major working areas—Coober Pedy 14 Notice of pegging 15 Effect of pegging an area 16 Ballot may be conducted in certain cases 17 Pegging may lapse 18 Contravention of Part Part 3—Precious stones tenements 18A Special conditions for tenements in relation to Mintabie precious stones field 18B Cancellation of tenements on Mintabie precious stones field 19 Application for registration of tenement 19A Special provision related to application for and registration of tenements on Mintabie precious stones field 20 Registration of tenement 21 Maximum number of tenements 22 Term and renewal of tenement 23 Rights conferred by tenement 24 Tenement non-transferable 25 Unlawful entry on tenement 26 Caveats 26A Application to Warden's Court to lapse caveat or obtain compensation 27 Power of Opal Mining Registrar to cancel tenement 27A Cancellation and suspension 28 Surrender of tenement, removal of posts etc 29 Removal of machinery 30 Maintenance of posts Part 4—Entry on land and declared equipment Division 1—Entry on land 31 Entry on land 32 Notice of entry 33 Duration of notice of entry Division 2—Declared equipment 34 Use of declared equipment Part 5—Rehabilitation and compensation 35 Rehabilitation of land 35A Compliance directions 35B Contravention of Act 36 Bonds 37 Application of bonds 38 Compensation Part 6—Opal mining co-operation agreements 39 Interpretation 40 Nature of agreement 41 Parties to an agreement 42 Content of an agreement 43 Registration of agreement 44 Agreement may be varied or revoked 45 Appeal to Warden's Court 46 Persons bound by agreement 47 Enforcement of agreement 48 Restriction on mining operations by third parties Part 7—Native title land Division 1—Prospecting 49 Qualification of rights conferred by permit Division 2—Production 50 Limits on grant of tenement 51 Applications for tenements Division 3—Application for declaration 52 Application for declaration Division 4—Negotiating procedure 53 Types of agreement authorising mining operations on native title land 54 Negotiation of agreements 55 Notification of parties affected 56 What happens when there are no registered native title parties with whom to negotiate 57 Expedited procedure where impact of operations is minimal 58 Negotiating procedure 59 Agreement 60 Effect of registered agreement 61 Application for determination 62 Criteria for making determination 63 Limitation on powers of Court 64 Effect of determination 65 Ministerial power to overrule determinations 66 No re-opening of issues Division 5—Miscellaneous 67 Non-application of this Part to Pitjantjatjara and Maralinga lands 68 Compensation to be held on trust in certain cases 69 Non-monetary compensation 70 Review of compensation 70A Opal Mining Native Title Register Part 8—Special powers of Warden's Court 72 Jurisdiction relating to tenements and monetary claims 73 Cancellation of permit 74 Cancellation of pegging 75 Forfeiture of tenement Part 9—Miscellaneous 75A Opal mining registrar 76 Opal mining register 77 Appointment of authorised persons 78 Delegations 79 Exemptions 80 Passing of property 81 Acts of officers, employees and agents 82 Offences 83 Proceedings for offences 84 Prohibition orders 85 Power of Opal Mining Registrar to require pegs be removed 86 Compliance orders 87 Evidentiary provision 88 Avoidance of double compensation 89 Disposal of waste 90 Persons under 18 92 Land subject to more than one tenement 93 Interaction with Mining Act 94 Interaction with other Acts 95 Public roads and access routes 96 Approval of associations 98 Powers of attorney 98A Administrative penalties 98B Penalties payable into Mining Rehabilitation Fund 99 Regulations Schedule 1—Transitional provisions 1 Precious stones fields; reserved land 2 Existing permits, tenements etc—Precious stones 3 Exploration licences 4 Appointments Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Opal Mining Act 1995. 3—Interpretation (1) In this Act, unless the contrary intention appears— appropriate court means— (a) the Supreme Court; or (b) the ERD Court; or (c) if proceedings do not involve a monetary claim, or a claim for more than $150 000—the Warden's Court;1 approved association means an association granted an approval under section 96; authorised person means a person appointed as an authorised person under section 77; corporation means a body corporate; council has the same meaning as in the Local Government Act 1999 and includes a body corporate that is, by virtue of any Act, deemed to be, or vested with the powers of, a council; declared equipment means— (a) a trench digger or excavator; or (b) mechanically driven equipment, equipped with a blade or bucket of a width exceeding 750 mm, capable of ripping, gouging, scooping or digging earth or rock material; or (c) equipment that is capable of digging, boring or tunnelling underground, generally in a horizontal plane, with a cross sectional dimension greater than 750 mm; or (d) equipment of a kind prescribed by the regulations for the purposes of this definition, but does not include surface drilling equipment; designated area means an area within a precious stones field declared by the Minister under section 5 to be a designated area; Director means the Director of Mines under the Mining Act; director of a company includes a person occupying or acting in the position of a director or member of the governing body of the company, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and includes any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act; ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993;2 exclusion zone means land declared by the Minister under section 5 to be an exclusion zone for the purposes of this Act; exempt land means land that is exempt from mining operations under section 6; exploration licence means an exploration licence under the Mining Act; fossicking means the gathering of precious stones— (a) as a recreation; or (b) without the intention to sell the stones or to utilise them for a commercial or industrial purpose, but does not include the gathering of precious stones through the disturbance of land by machinery or explosives; holder of a tenement means the person who is registered as the holder of the tenement under this Act; machinery means a device operated other than solely by muscular force exerted by the operator; marine waters means the coastal waters of the State (see the Coastal Waters (State Powers) Act 1980 (Cwth)) or that part of the sea that is within the limits of the State, and includes estuaries and tidal waters; minerals has the same meaning as under the Mining Act; Mining Act means the Mining Act 1971; mining operations means operations carried out in the course of prospecting or mining for precious stones, or rehabilitation operations, but does not include fossicking; mining operator or operator means a person by whom, or on whose behalf, mining operations are carried out under this Act; Mintabie Township Lease Agreement and Mintabie township lease area have the same meaning as in the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; native title, native title holder and native title land—see Native Title (South Australia) Act 19943; native title mining determination means a determination authorising a mining operator to enter land and carry out mining operations on the land under Part 7; opal development lease means an opal development lease registered under section 20; opal mining register means the register kept by the Opal Mining Registrar under section 76; opal mining registrar means a person appointed as an opal mining registrar under section 75A and includes the Opal Mining Registrar; Opal Mining Registrar means a person appointed as the Opal Mining Registrar under section 75A and includes a person who is acting in the position of the Opal Mining Registrar; owner of land means— (a) a person who holds a registered estate or interest in the land conferring a right to immediate possession of the land; or (b) a person who holds native title in the land; or (c) a person who has, by statute, the care, control or management of the land; or (d) a person who is lawfully in occupation of the land; precious stones means opal and other minerals declared by regulation to be precious stones for the purposes of this Act; precious stones claim means a precious stones claim registered under section 20; precious stones prospecting permit or permit means a precious stones prospecting permit issued under section 7; precious stones field means land declared to be a precious stones field by proclamation under section 4; precious stones tenement or tenement means— (a) a precious stones claim; or (b) an opal development lease; prescribed exempt land means exempt land under section 6(1)(a); prescribed notice of entry—see section 32; prospecting means operations carried out in the course of exploring for precious stones, including the pegging out of an area for a tenement, other than operations that involve disturbance of land by declared equipment or explosives, and to prospect has a corresponding meaning; registered representative of native title holders—see Part 4 Native Title (South Australia) Act 1994; rehabilitation of land includes the filling in or sealing of an excavation (including an open-cut excavation), the reinstatement, levelling, contouring and revegetation of land, and the erection of signs and fences, and to rehabilitate has a corresponding meaning; River Murray Protection Area means a River Murray Protection Area under the River Murray Act 2003; Warden's Court means the Warden's Court established under the Mining Act. (2) The division of land under the Mining Act into strata will also have effect for the purposes of this Act and, accordingly, a reference in this Act to land, or an area, will, where appropriate, be taken to be a reference to the surface stratum or a subsurface stratum, as the case requires. (3) In this Act, a reference to mining operations over land includes a reference to mining operations involving land covered by water and a reference to the disturbance of land includes a reference to the disturbance of water. (4) A note to a provision of this Act forms part of the provision to which it relates. 1 All native title questions arising in proceedings before the Warden's Court must be referred to the ERD Court—see Part 3 Native Title (South Australia) Act 1994. 2 The Environment, Resources and Development Court Act 1993 and the Native Title (South Australia) Act 1994 contain provisions under which the ERD Court may refer cases to the Supreme Court, or the Supreme Court may remove cases commenced before the ERD Court into the Supreme Court. 3 Part 5 of the Native Title (South Australia) Act 1994 sets out the method of service on native title holders. 4—Declaration of precious stones field or reserved land (1) The Governor may, by proclamation— (a) declare land in the State (including land within the marine waters of the State) to be a precious stones field; or (b) reserve from the operation of this Act, or a specified provision of this Act, land specified in the proclamation, and the proclamation will have effect according to its terms. (2) The Governor may, by subsequent proclamation, vary or revoke a proclamation under subsection (1). (3) A precious stones field over mineral land under the Mining Act that has been divided into strata will consist only of the surface stratum (as defined by that Act). 5—Declaration of designated area or exclusion zone (1) The Minister may, by notice in the Gazette— (a) declare an area within a precious stones field to be a designated area for the purposes of this Act; (b) declare land in the State to be an exclusion zone for the purposes of this Act, and the declaration will have effect according to its terms. (2) The Minister may, by subsequent notice in the Gazette, vary or revoke a declaration under subsection (1). (3) The Minister must consult with such approved associations as the Minister thinks fit before the Minister makes a declaration under this section. (3a) If a declaration under this section applies to any part of a River Murray Protection Area, the Minister must first consult with the Minister to whom the administration of the River Murray Act 2003 is committed. (4) If the Minister makes a declaration under this section, the Minister must ensure that a copy of the declaration is published in a newspaper circulating generally throughout the State. (5) If an area ceases to be part of a precious stones field, the declaration of a designated area within that area ceases to have effect. 6—Exempt land (1) The following land is exempt from mining operations under this Act if it is outside a precious stones field: (a) land that is situated— (i) within 400 metres of a building or structure used as a place of residence (except a building or structure of a class excluded by regulation from the ambit of this paragraph); or (ii) within 150 metres of— (A) a building or structure, with a value equal to or exceeding the prescribed amount, used for an industrial or commercial purpose; or (B) a spring, well, reservoir or dam that has some commercial value or use, (but not if it is an improvement made for the purposes of mining operations); (b) land that constitutes a distinct allotment of less than 2 000 square metres in a city, town or township; (c) land that is genuinely used as a yard, garden, plantation, orchard or vineyard; (d) land that is under crop; (e) land that is genuinely used as an airfield, railway, tramway or busway; (f) the grounds of a church, chapel, school, hospital or institution; (g) parklands or recreation grounds under the control of a council; (h) land— (i) that is dedicated or reserved by or under a prescribed Act, or by or under an Act for a prescribed purpose; or (ii) that is vested in a Minister for a prescribed purpose; or (iii) that is comprised within an easement in favour of a Minister; (i) land that is constituted as a forest reserve under the Forestry Act 1950. (2) While land is exempt land— (a) a person is not authorised under a precious stones prospecting permit to prospect for precious stones on the land; and (b) a precious stones tenement must not be registered over the land (or a part of the land). (3) However— (a) a person may peg out an area for a precious stones tenement on exempt land1, other than prescribed exempt land (see subsection (4)); and (b) a precious stones tenement may be registered over exempt land (or a part of exempt land) if— (i) the land was not exempt land at the time the area of the tenement was pegged out; or (ii) the tenement is registered in the name of the owner of the land. (4) In the case of prescribed exempt land, a person must not enter or peg out an area within the land except with the written permission (which may be given subject to conditions) of the person who has the benefit of the relevant exemption under this section. (5) If— (a) a person who has the benefit of an exemption under this section, by agreement with a mining operator, waives the exemption on terms and conditions set out in the agreement; or (b) the appropriate court, on the application of a mining operator, waives the exemption on terms and conditions (which should include provision for payment of compensation to the person or persons who have the benefit of the exemption), the land ceases to be exempt land. (6) Land that ceases to be exempt land under subsection (5) will revert to being exempt land on completion of the mining operations for which the agreement or determination is made, or at an earlier time specified in the agreement or determination. (7) The following persons will be regarded as having the benefit of an exemption under this section: (a) the owner of the exempt land; and (b) in the case of land that is exempt under subsection (1)(a) by reason of its proximity to other land on which a building, structure, spring, well, reservoir or dam is situated—the owner of the other land. (8) An agreement or determination is binding on, and enforceable by or against, the original parties to the agreement or determination and— (a) successors in title to the owner of the land who originally had the benefit of the exemption; and (b) the holders from time to time of precious stones tenements authorised under the terms of the agreement or determination. (9) An agreement by which an exemption is waived must comply with requirements determined by the Director and a copy of the agreement must be lodged with the Opal Mining Registrar in accordance with the regulations. 1 A person may peg out an area for a tenement with a view to negotiating a waiver, or to obtaining a determination of a court, under subsection (5). Part 2—Precious stones prospecting permits 7—Application for permit (1) A person may apply for a precious stones prospecting permit. (2) The application— (a) must be made in a manner and form determined by the Director; and (c) must be accompanied by the prescribed application fee. (3) The applicant (in the case of a natural person) must be at least 16 years of age. (4) An opal mining registrar may issue a precious stones prospecting permit to a person who has made due application for the permit and paid the appropriate fee. (5) A person is not eligible to be issued, or to hold, a precious stones prospecting permit if the person is disqualified from holding a permit under this Act or the regulations. 8—Nature of permit (1) A person must not hold more than one precious stones prospecting permit. (2) A precious stones prospecting permit cannot be held jointly by two or more persons. (3) A precious stones prospecting permit is not transferable. (4) A person must not— (a) lend a precious stones prospecting permit to another person; or (b) permit another person to use, or to take the benefit, of his or her precious stones prospecting permit. Administrative penalty. 9—Terms and renewal of permit (1) A precious stones prospecting permit will, subject to this Act, remain in operation for a term of one year from the date of issue. (2) A person may from time to time apply for the renewal of a precious stones prospecting permit. (3) The application— (a) must be made any time after one month before the day on which the precious stones prospecting permit is due to expire; and (b) must be made in a manner and form determined by the Director; and (d) must be accompanied by the prescribed application fee. (4) A renewal will be issued by an opal mining registrar. (5) The period of renewal will be one year. (6) A precious stones prospecting permit may, subject to this Act and in accordance with the regulations, be surrendered. 10—Rights of holder of permit (1) A precious stones prospecting permit authorises the holder to prospect for precious stones and to peg out an area for a precious stones tenement in accordance with this Act. (2) However, the authority conferred by subsection (1) is subject to various qualifications prescribed by this Act.1 (3) The holder of a precious stones prospecting permit (other than a corporation) must carry out any pegging of an area under the permit personally. (4) In the case of a corporation, any pegging out under the permit must be carried out by a person who holds a specific authority from the corporation to act on its behalf. (5) The pegging must comply with requirements prescribed by the regulations. (6) It is a condition of every precious stones prospecting permit that the holder of the permit (being a holder who is a natural person) must not reside on the precious stones field other than in the Mintabie township lease area in accordance with a licence issued under section 29D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, or as otherwise allowed under that Act. 1 See especially section 11. 10A—Special provisions in relation to Mintabie precious stones field (1) Despite any other provision of this Act, a precious stones prospecting permit does not authorise a person to prospect for precious stones on the Mintabie precious stones field unless the permit has been endorsed by an opal mining registrar as authorising such prospecting. (2) The holder of a precious stones prospecting permit may apply for endorsement of his or her precious stones prospecting permit to authorise prospecting for precious stones on the Mintabie precious stones field. (3) An application under subsection (2)— (a) must be made in a form determined by the Director; and (b) must be accompanied by the prescribed application fee; and (c) must be accompanied by any other information that the Director may require (including, without limiting this paragraph— (i) in the case of an applicant who is of or above 18 years of age, information in relation to the criminal history of the applicant; or (ii) in the case of an applicant who is a body corporate, information in relation to the criminal history of the applicant, or a director, officer or employee of the applicant). (4) If an opal mining registrar refuses to endorse a precious stones prospecting permit under this section, the opal mining registrar must, by notice in writing, inform the applicant of that fact. (5) A precious stones prospecting permit that authorises prospecting for precious stones on the Mintabie precious stones field is subject to conditions specified by the opal mining registrar by notice in writing given to the holder of the permit. (6) A condition under subsection (5) has effect when the notice under that subsection is given to the holder of the permit. (7) A condition under subsection (5) is in addition to, and does not derogate from, any other condition or qualification applicable to a precious stones prospecting permit under this Act. (8) The holder of a precious stones prospecting permit that authorises prospecting for precious stones on the Mintabie precious stones field must not contravene or fail to comply with a condition of his or her permit. (9) An opal mining registrar must revoke an endorsement under this section if the holder of the relevant precious stones prospecting permit has been excluded from the Mintabie precious stones field under section 29H of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. (10) An opal mining registrar may, by notice in writing, on any reasonable grounds— (a) revoke an endorsement under this section; or (b) vary the conditions of a precious stones prospecting permit that authorises prospecting for precious stones on the Mintabie precious stones field by the addition, substitution or deletion of 1 or more conditions. (11) A revocation or variation under subsection (10) has effect when the notice under that subsection is given to the holder of the permit (or on such later date as may be specified in the notice). (12) An endorsement under this section expires on the day on which the precious stones prospecting permit to which the endorsement relates expires or is renewed, whichever occurs first. (13) A holder of a precious stones prospecting permit— (a) whose application for endorsement of his or her precious stones prospecting permit under this section is refused by an opal mining registrar; or (b) who receives a notice under subsection (5) imposing a condition on the endorsement; or (c) who receives a notice under subsection (10) revoking an endorsement, or varying the conditions, of the precious stones prospecting permit, may apply to the Warden's Court to have the relevant decision or decisions of the opal mining registrar reviewed. (14) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days after the relevant notice is given to the person. (15) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for a particular decision, do 1 or both of the following: (a) — (i) in the case of a review of a decision of an opal mining registrar to refuse to endorse a precious stones prospecting permit under this section—quash the opal mining registrar's decision; or (ii) in the case of a review in respect of a notice under subsection (5) or (10)—cancel the revocation or the imposition or variation of the relevant condition (as the case requires); (b) remit the subject matter of the review to an opal mining registrar for reconsideration. (16) An opal mining registrar must not, in exercising a power or function under this section, act in a manner that is inconsistent with the Mintabie Township Lease Agreement. 11—Qualifications to permits (1) A precious stones prospecting permit does not authorise a person to prospect for precious stones on exempt land.1 (2) A precious stones prospecting permit does not authorise the conduct of operations that involve the disturbance of land by declared equipment or explosives, other than where explosives are used to assist in sinking a prospecting shaft. (3) A precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement on land that has been granted in fee simple, or is subject to native title conferring an exclusive right to possession of the land, except with the written consent of the owner of the land. (4) If the holder of a precious stones prospecting permit is a corporation, the precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement— (a) on land that is within a precious stones field unless— (i) the land is within a designated area; or (ii) the land is not within 500 metres of a registered tenement at the time of pegging;2 or (iii) the corporation was lawfully prospecting on land within the precious stones field at the time the precious stones field was declared and the pegging occurs during the course of that prospecting, or within three months of a cessation of that prospecting; or (b) on land that is within an exclusion zone. (5) A precious stones prospecting permit does not authorise the pegging out of an area for an opal development lease on land that is within a precious stones field unless— (a) the land is within a designated area; or (b) the land is not within 500 metres of a registered tenement at the time of pegging and is not over ground that has been previously disturbed by mining operations. (6) A precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement on land that is within an opal development area under the Mining Act.3 (6a) A precious stones prospecting permit does not authorise the pegging out of an area that is not either wholly within, or wholly outside, a precious stones field. (7) A precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement on land— (a) that is within an area that has been pegged out by another person (that pegging out not having lapsed or been cancelled); or (b) that is within an existing precious stones tenement.4 (8) If a precious stones tenement lapses or is cancelled under this Act— (a) if the tenement is an opal development lease— (i) the holder of the lease must not peg an area for another opal development lease on land that was within the previous lease; and (ii) no other person may peg an area for another opal development lease on land within the previous lease unless at least 30 days have elapsed since the previous lease came to an end; and (b) if the tenement is a precious stones claim—the holder of the claim must not, without the written approval of the Opal Mining Registrar, peg an area for another tenement on land within the previous tenement unless at least 12 months have elapsed since the previous tenement came to an end. (9) A person may appeal against a decision of the Opal Mining Registrar not to grant an approval under subsection (8)(b) to the Warden's Court and the court may, on appeal— (a) confirm the Opal Mining Registrar's decision; or (b) reverse the Opal Mining Registrar's decision. (10) A person must not have pegged out at the same time— (a) more than one area for an opal development lease; (b) more than one area for a precious stones claim in a part of a precious stones field that is not within a designated area, subject to the qualification that a person may peg out two areas for precious stones claims in such a case if one or both of the claims are within the area (or former area) of an opal development lease5; (c) more than two areas for precious stones claims. (11) A person must not peg out an area if to do so would be contrary to the regulations. 1 Detailed provisions about exempt land appear in section 6. 2 There is one exception to this provision, namely, the holder of an opal development lease can peg out an area for a precious stones claim within the area of the lease. 3 See section 8A of the Mining Act. 4 There is one exception to this provision, namely, the holder of an opal development lease can peg out an area for a precious stones claim within the area of the lease. 5 Section 23(2)(b) provides that a person can only peg out one area for a precious stones claim within the area of an opal development lease during the term of registration. However, once the registration of the lease has come to an end, a person could peg out and register another opal development lease and, subsequently, another precious stones claim. 12—Area to be pegged out etc (1) The size, shape and dimensions of an area pegged out under a precious stones prospecting permit must conform with the regulations. (2) The person who pegs out an area must ensure that all posts, boundary indicators and notices are maintained in accordance with requirements prescribed by the regulations. 13—Major working areas—Coober Pedy (1) The regulations must, after the Minister has consulted with such approved associations as the Minister thinks fit, identify an area or areas within the Coober Pedy Precious Stones Field as a major working area or major working areas for the purposes of this section. (2) A major working area identified under subsection (1) must include a buffer zone around all extensively worked areas within the major working area (as determined according to circumstances in existence at the time that the regulation establishing the major working area is made). (3) The buffer zone under subsection (2) must (at the time that the buffer zone is established) be at least 500 metres wide at any particular point. (4) The following provisions apply with respect to a major working area identified under subsection (1), and to a person who has pegged out an area for a tenement within such an area, despite the other provisions of this Act: (a) a person may only peg out an area for a precious stones claim within a major working area, and a corporation cannot peg out any area within a major working area; and (b) the maximum permissible area that can be pegged out for a precious stones claim within a major working area is 5 000 square metres; and (c) a person who has pegged out an area for a precious stones claim within a major working area cannot simultaneously have another area pegged out within the precious stones field and, if or when the tenement is registered, the person cannot simultaneously hold more than one tenement within the precious stones field. (5) The regulations under subsection (1) may, by subsequent regulation, after the Minister has consulted with such approved associations as the Minister thinks fit, be varied from time to time. 14—Notice of pegging If an area (or part of an area) pegged out under a precious stones prospecting permit is within a precious stones field, notice of the pegging must be given in accordance with the regulations. 15—Effect of pegging an area (1) The holder of a precious stones prospecting permit who pegs out an area for a precious stones claim that is wholly within a precious stones field has, subject to this Act— (a) an exclusive right to conduct mining operations, other than by the use of declared equipment, for the recovery of precious stones from the area, and to sell, use, or dispose of precious stones recovered in the course of those operations, from the day of the pegging; and (b) an exclusive right to apply for the registration of a precious stones claim within 14 days after the day on which the area is pegged out. (2) The holder of a precious stones prospecting permit who pegs out— (a) an area for a precious stones claim that is wholly outside a precious stones field; or (b) an area for an opal development lease, has an exclusive right to apply for the registration of the relevant tenement within 14 days after the day on which the area is pegged out (but does not have a right to conduct mining operations on the land until a tenement is registered). 16—Ballot may be conducted in certain cases (1) If— (a) it is proposed that the Governor, by proclamation, declare land to be a precious stones field; and (b) the Minister considers that it is appropriate that this section apply in order to facilitate orderly prospecting and pegging of areas for precious stones tenements on the land, the Minister may, by notice published in the Gazette at the time that the Governor makes the proclamation, declare that this section applies in relation to the land. (2) If the Minister makes a declaration under subsection (1)— (a) the holder of a precious stones prospecting permit cannot prospect for precious stones or peg out an area on the land to which the declaration relates until a day specified by the Minister in the notice in the Gazette (the declared day); and (b) a person appointed by the Minister for the purpose will carry out a ballot on the declared day in accordance with the Minister's directions to determine who may have the first opportunity to prospect for precious stones and peg out areas on the land. (3) For the purposes of subsection (2), the Minister must— (a) in the notice in the Gazette— (i) set out the conditions that are to apply to the ballot; and (ii) invite interested persons (being the holders of precious stones prospecting permits) to register for inclusion in the ballot before a specified day in a manner and form determined by the Minister; and (b) cause the land to be divided into blocks, of dimensions determined by the Minister, and ensure that each block is allocated an identifying number for the purposes of the ballot; and (c) cause a plan of the land that clearly delineates those blocks with their identifying numbers to be made available for public inspection at the principal office of the Director, or at another appropriate place specified by the Minister by notice in the Gazette, at least seven days before the declared day. (4) The holder of a precious stones prospecting permit who is registered for inclusion in the ballot in accordance with subsection (3) may participate in the ballot by attending in person on the declared day at a place and time specified by the Minister in the notice under subsection (1). (5) A person who is allocated a block by virtue of participation in the ballot— (a) may, no later than 5 p.m. on the day immediately following the day of allocation, peg out the block for a precious stones tenement in accordance with directions issued by the Minister at the time of the allocation of the block; and (b) must, if the person has pegged out the block under paragraph (a), give notice of the pegging in accordance with the regulations; and (c) may apply to the nearest office of the Opal Mining Registrar to the land for registration of the tenement no later than 14 days after the declared day. (6) An opal mining registrar must not, for 14 days immediately following the declared day, register a precious stones tenement in respect of a part of the land unless the application is made by a person under subsection (5). (7) A person must not, for 14 days immediately following the declared day, prospect for precious stones or peg out an area for a precious stones tenement on land to which this section applies except on a block allocated to the person by virtue of his or her participation in the ballot. (8) If— (a) a person who has been allocated a block— (i) fails to peg out an area for a precious stones tenement on the block within the time set by subsection (5)(a); or (ii) fails to give notice of a pegging in accordance with the regulations; or (iii) fails to apply for registration of a tenement within the time set by subsection (5)(c); or (b) a block is not taken up through the ballot, the land comprised in the block may, at any time after 14 days from the declared day, be pegged out by another person in accordance with the provisions of this Act (other than this section). (9) A person must not prospect for precious stones in contravention of this section. Maximum penalty: $5 000. (9a) A person must not peg out an area for a precious stones tenement in contravention of this section. Administrative penalty. (9b) A pegging purportedly made by a person in contravention of this section is of no effect. (10) The Minister may, by notice in the Gazette, fix a fee for participation in the ballot, and a person who pays the fee but is not successful in the ballot will, on application in a manner and form determined by the Minister, be refunded the fee. (11) A person is not entitled to obtain more than one block through participation in the ballot. (12) A right to peg out a block awarded to a person through participation in the ballot is not transferable. (13) The Minister must ensure that a copy of a notice published in the Gazette for the purposes of this section is also— (a) published in a newspaper circulating generally throughout the State; and (b) displayed, for a reasonable period of time, in the nearest office of the Opal Mining Registrar to the land. (14) This section applies despite the other provisions of this Act. 17—Pegging may lapse If— (a) an application for registration of a tenement is not made in accordance with Part 3 within 14 days after the day on which an area is pegged out; or (b) an application for registration of a tenement is refused under Part 3, the pegging ceases to have effect (and the entitlements that arise from the pegging lapse). 18—Contravention of Part (1) A person must not— (a) purport to peg out an area for a precious stones tenement if not authorised to do so under a valid precious stones prospecting permit; or (b) while being the holder of a precious stones prospecting permit, peg out an area in contravention of this Act or otherwise than in accordance with an authority conferred by this Act. Administrative penalty. (2) A person must not, having pegged out an area, carry out operations within the area unless those operations are authorised under this Act. Maximum penalty: $5 000. (3) A pegging purportedly made by a person in contravention of this section is of no effect. Part 3—Precious stones tenements 18A—Special conditions for tenements in relation to Mintabie precious stones field (1) Each precious stones tenement on the Mintabie precious stones field is subject to the conditions specified by the Director by notice in writing given to the holder of the tenement. (2) A condition under subsection (1) has effect when the notice under that subsection is given to the holder of the tenement. (3) A condition under subsection (1) is in addition to, and does not derogate from, any other condition or qualification applicable to a precious stones tenement under this Act. (4) The holder of a precious stones tenement on the Mintabie precious stones field must not contravene or fail to comply with a condition of his or her tenement. (5) The Director may, by notice in writing, on any reasonable grounds, vary the conditions of a precious stones tenement on the Mintabie precious stones field by the addition, substitution or deletion of 1 or more conditions. (6) A variation of a condition under subsection (5) has effect when the notice under that subsection is given to the holder of the tenement (or on such later date as may be specified in the notice). (7) A holder of a precious stones tenement on the Mintabie precious stones field— (a) who receives a notice under subsection (1) imposing a condition on the precious stones tenement; or (b) who receives a notice under subsection (5) varying the conditions of the precious stones tenement, may apply to the Warden's Court to have the relevant decision or decisions of the Director reviewed. (8) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days after the relevant notice is given to the person. (9) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for a particular decision, do 1 or both of the following: (a) cancel the imposition or variation of the relevant condition (as the case requires); (b) remit the subject matter of the review to the Director for reconsideration. (10) The Director must not, in exercising a power or function under this section, act in a manner that is inconsistent with the Mintabie Township Lease Agreement. 18B—Cancellation of tenements on Mintabie precious stones field (1) The Director must cancel the registration of a tenement or tenements of a person on the Mintabie precious stones field if the person has been excluded from the Mintabie precious stones field under section 29H of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. (2) Subject to this section, the Director may cancel the registration of a tenement or tenements of a person on the Mintabie precious stones field if— (a) the Director is satisfied on reasonable grounds that the person has acted in a manner prejudicial to— (i) the welfare of Anangu (whether individually or as a group); or (ii) the welfare of those who are lawfully on the Mintabie precious stones field under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; or (b) the person has contravened, or failed to comply with, a condition under section 18A in relation to the tenement or tenements; or (c) an endorsement of a precious stones prospecting permit under section 10A held by the person has been revoked under that section. (3) If the registration of a tenement or tenements on the Mintabie precious stones field is cancelled under subsection (2)(a), the holder of the tenement or tenements may apply to the Warden's Court to have the relevant decision of the Director reviewed. (4) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days of the cancellation. (5) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for the cancellation, do 1 or both of the following: (a) quash the Director's decision; (b) remit the subject matter of the review to the Director for reconsideration. (6) If— (a) an endorsement of a precious stones prospecting permit is revoked under section 10A; and (b) the holder of the precious stones prospecting permit has applied under that section for a review of the decision to revoke the endorsement, the Director may not cancel the registration of a tenement of the person under subsection (2)(c) until the review has been finally determined. (7) This section is in addition to, and does not derogate from, any other provision of this Act. (8) In this section— Anangu has the same meaning as in the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. 19—Application for registration of tenement (1) The holder of a precious stones prospecting permit who has pegged out an area for a precious stones tenement may apply for registration of the tenement within 14 days after the day on which the area is pegged out. (2) The application— (a) must be made in a manner and form determined by the Director or as otherwise determined by the Opal Mining Registrar; and (c) must be accompanied by the prescribed application fee. (4) If the area is wholly outside a precious stones field, the applicant must serve on the owner of the land notice of the application within 14 days after making the application. (5) A notice under subsection (4) must be in a form determined by the Director and, if relevant, must include information about declared equipment that the mining operator proposes to use on the land. (6) A notice need not be given under subsection (4) if it is not required under an agreement under this Act. 19A—Special provision related to application for and registration of tenements on Mintabie precious stones field (1) Without limiting section 19 or 22, an application for registration of, or renewal of the registration of, a precious stones tenement on the Mintabie precious stones field must be accompanied by any other information the Director may require (including, without limiting this subsection— (a) in the case of an applicant who is of or above 18 years of age, information in relation to the criminal history of the applicant; or (b) in the case of an applicant who is a body corporate, information in relation to the criminal history of the applicant, or a director, officer or employee of the applicant). (2) Despite any other provision of this Act, the Opal Mining Registrar must refuse to register, or refuse to renew the registration of, a precious stones tenement on the Mintabie precious stones field if the applicant has been excluded from the Mintabie precious stones field under section 29H of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. (3) Despite any other provision of this Act, the Opal Mining Registrar may refuse to register, or refuse to renew the registration of, a precious stones tenement on the Mintabie precious stones field if— (a) the Opal Mining Registrar is satisfied on reasonable grounds that the person has acted in a manner prejudicial to— (i) the welfare of Anangu (whether individually or as a group); or (ii) the welfare of those who are lawfully on the Mintabie precious stones field under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; or (b) the person has contravened, or failed to comply with, a condition under section 18A in relation to the tenement or a similar tenement; or (c) an endorsement of a kind contemplated by section 10A on a precious stones prospecting permit held by the person has been cancelled under that section. (4) If the Opal Mining Registrar refuses to register, or refuses to renew the registration of, a precious stones tenement on the Mintabie precious stones field under this section, the Opal Mining Registrar must, by notice in writing, inform the applicant of that fact. (5) A person whose application to register, or to renew the registration of, a precious stones tenement on the Mintabie precious stones is refused by the Opal Mining Registrar under subsection (3)(a) may apply to the Warden's Court to have the relevant decision of the Opal Mining Registrar reviewed. (6) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days after the notice under subsection (4) is given to the person. (7) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for the Opal Mining Registrar's decision, do 1 or both of the following: (a) quash the Opal Mining Registrar's decision; (b) remit the subject matter of the review to the Mining Registrar for reconsideration. 20—Registration of tenement (1) If due application is made for the registration of a precious stones claim, the Opal Mining Registrar must, subject to Part 7 and the other provisions of this Act, register the precious stones claim on the opal mining register. (2) If the precious stones claim is wholly within a precious stones field, a registration under subsection (1) will be taken to have occurred at the time that the application was made. (3) If due application is made for the registration of an opal development lease, the Opal Mining Registrar must refer the application to the Director for an inspection of the area and the preparation of a report on the suitability of the area for an opal development lease. (4) The Director must, on receipt of the report, determine whether an opal development lease should be granted or refused and then give notice of his or her decision to the Opal Mining Registrar and to the applicant. (5) If the Director determines that it is appropriate for an opal development lease to be granted, the Opal Mining Registrar must, on receipt of the notice under subsection (4), subject to this Act, grant and register an opal development lease. (6) The Opal Mining Registrar may refuse to register a precious stones tenement if it appears that the applicant has contravened, or failed to comply with, a provision or requirement of this Act.1 (7) The Opal Mining Registrar may refuse to register a precious stones tenement if satisfied that— (a) before the area for the tenement was pegged out, an application had been lodged under the Mining Act for an exploration licence to carry out exploratory operations for precious stones (or various minerals including precious stones) in an area comprising the area that has been pegged out, or a portion of that area; and (b) the application has not been refused. (8) The Opal Mining Registrar cannot register a precious stones tenement if to do so would be inconsistent with a public undertaking by the Minister responsible for the administration of the Mining Act. Note— Except as provided by subsection (2), the registration of a tenement takes effect from the time of registration. 1 For example, if the applicant did not, as the holder of a precious stones prospecting permit, give a valid notice of entry under section 32 for land outside a precious stones field. 21—Maximum number of tenements A person must not hold at the same time— (a) more than one opal development lease; (b) more than one precious stones claim that is in a precious stones field, subject to the qualification that a person may hold two precious stones claims in such a case if one or both of the claims arise from an opal development lease1; (c) more than two precious stones claims. 1 Section 23(2)(b) provides that a person can only peg out one area for a precious stones claim within the area of an opal development lease during the term of registration. However, once the registration of the lease has come to an end, a person could peg out and register another opal development lease and, subsequently, another precious stones claim. 22—Term and renewal of tenement (1) The period of registration of a precious stones tenement will be three months. (2) A person may from time to time apply for the renewal of the registration of a precious stones claim. (3) The application— (a) must be made within the period prescribed by the regulations; and (b) must be made in a manner and form determined by the Director or as otherwise determined by the Opal Mining Registrar; and (d) must be accompanied by the prescribed application fee. (4) Unless otherwise determined by the Opal Mining Registrar— (a) if the tenement is within (or partly within) a precious stones field—the application must be made at the nearest office of the Opal Mining Registrar to the tenement; (b) in other cases—the application must be made at either of the two nearest offices of the Opal Mining Registrar to the tenement. (5) The period of renewal for the registration of a precious stones claim is 12 months. (6) If the registration of a precious stones claim is not renewed as required by or under this section, the claim lapses. (7) However, if an application for renewal of the registration of a precious stones claim is not decided before the date on which the registration is due to expire, the registration continues until the application is decided. (8) The Opal Mining Registrar may refuse to renew a registration if the applicant has failed to comply with a requirement under this Act. (9) The registration of an opal development lease is not renewable (and the lease lapses at the end of the period of registration). 23—Rights conferred by tenement (1) The holder of a registered precious stones claim has, subject to this Act, an exclusive right to conduct mining operations for the recovery of precious stones from the land comprised in the claim during the term of registration, and to sell, use or dispose of precious stones recovered in the course of those operations. (2) The holder of a registered opal development lease has, subject to this Act— (a) an exclusive right to conduct mining operations for the recovery of precious stones from the land comprised in the lease during the term of registration, and to sell, use or dispose of precious stones recovered in the course of those operations; and (b) an exclusive right to peg out an area (and only one area) for a precious stones claim within the area of the lease during the term of registration. (3) It is a condition of every registered precious stones claim and every registered opal development lease that the holder of the claim or lease (being a holder who is a natural person) must not reside on the land comprising the claim or lease other than in the Mintabie township lease area in accordance with a licence issued under section 29D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, or as otherwise allowed under that Act. 24—Tenement non-transferable A precious stones tenement is not transferable. 25—Unlawful entry on tenement (1) A person must not, without lawful authority or excuse, enter or remain on land comprised in a registered precious stones tenement without first obtaining the permission of the holder of the tenement. Maximum penalty: $10 000. (2) However, this section— (a) does not apply— (i) to a police officer acting in the course of official duties; or (ii) to a person appointed under an Act acting in the course of official duties; and (b) does not affect any civil liability. 26—Caveats (1) A person (a caveator) who has, or who is claiming, an interest in a matter relevant to the registration of a tenement may apply to the Opal Mining Registrar to have a caveat registered under this section. (2) An application for the registration of a caveat must be in a form determined by the Opal Mining Registrar. (3) A caveat under subsection (1) may— (a) forbid the registration of any transfer, mortgage or voluntary surrender affecting a specified interest in the tenement (an absolute caveat); or (b) forbid the registration of any transfer, mortgage or voluntary surrender affecting the tenement unless the transfer or mortgage expressly states that it is to be subject to the interest claimed by the caveator (a claim caveat). (4) However, if a caveat is being registered without the express consent of the tenement holder for the tenement to which the caveat relates— (a) the caveator must be a person who has entered into an agreement with the tenement holder relating to— (i) the sale or transfer (or both) of the tenement holder's interest in the relevant tenement; or (ii) any other matter connected with the tenement holder's interest in the relevant tenement; and (b) the agreement must provide for the registration of a caveat under this section; and (c) a copy of the agreement must accompany the application under subsection (2). (5) A caveat may— (a) set out a date of expiry (if any); or (b) set out that the caveat will expire— (i) on a specified transfer or mortgage of an interest in the tenement; or (ii) at the end of a specified period. (6) In connection with the preceding subsections, an application for the registration of a caveat— (a) must be accompanied by— (i) the prescribed fee; and (ii) such other documents or information as the Opal Mining Registrar may require; and (b) if the caveat is being registered without the express consent of the tenement holder for the tenement to which the caveat relates—must include a statutory declaration as to the truthfulness and accuracy of any matter specified by the caveator in the application. (7) The Opal Mining Registrar does not have, on the receipt of an application to register a caveat, any duty to determine whether or not— (a) the caveat relates to a valid caveatable interest; or (b) a caveatable interest has been sufficiently described; or (c) there is sufficient evidence to support the caveat; or (d) any matter specified in the application is true and accurate. (8) The registration of a caveat does not warrant the validity of any interest claimed in the caveat. (9) On the registration of a caveat under this section, a notice of the registration of the caveat must be sent by the Opal Mining Registrar to any tenement holder whose interests are affected by the caveat, other than where the tenement holder is also the caveator. (10) A caveat registered under this section— (a) does not affect or prevent the renewal of a tenement; and (b) does not lapse on the renewal of a tenement (while the caveat is registered); and (c) does not affect or prevent any dealing with the tenement (or any interest in the tenement) that is required by an order of a court or tribunal constituted by law. (11) A caveat registered under this section will lapse on— (a) any order of the Warden's Court providing for the lapsing of the caveat; or (b) the withdrawal of the caveat by the caveator; or (c) the expiry of the caveat as contemplated by subsection (5). (12) If— (a) a caveat is registered in respect of a tenement; and (b) the caveat lapses, the caveator or any related corporation may not apply to register a second or subsequent caveat relating to the same interest in the tenement to which the original caveat related without the approval of the Warden's Court, or unless that second or subsequent caveat is being registered with the express consent of the tenement holder for the tenement to which the caveat relates. (13) In this section— related corporation, in relation to a particular entity (being a corporation), is a corporation that is related to the entity under section 50 of the Corporations Act 2001 of the Commonwealth. 26A—Application to Warden's Court to lapse caveat or obtain compensation (1) A person who— (a) has an interest in a tenement subject to a caveat registered under section 26; or (b) has an interest that is directly affected by a caveat registered under section 26, may apply to the Warden's Court under this section. (2) An application may be made for 1 or more of the following: (a) a declaration that an interest claimed by the caveator is not a valid caveatable interest; (b) an order that a caveat lapse; (c) an order that a transfer, mortgage or surrender relating to a tenement be registered despite the registration of a caveat under section 26; (d) an order that a caveator pay compensation for any loss or damage suffered because a caveat registered under section 26 does not relate to a valid caveatable interest, or an amount for or towards any such loss or damage. (3) Any compensation payable under an order under subsection (2)(d) may be recovered as if it were a debt due to the person in whose favour the order is made in a court of competent jurisdiction. (4) This section does not limit any other jurisdiction or power of the Warden's Court in relation to caveats under section 26. 27—Power of Opal Mining Registrar to cancel tenement (1) If the Opal Mining Registrar discovers or determines, after a tenement is registered, that the tenement should not have been registered under this Act on account of a contravention of, or failure to comply with, a provision or requirement of this Act on the part of the holder of the tenement, the Opal Mining Registrar may, by notice in writing to the holder of the tenement, give notice of his or her intention to cancel the registration of the tenement on a day specified in the notice (which must be at least 21 days after the date of the notice). (2) A person who receives a notice under subsection (1) may apply to the Warden's Court to have the decision of the Opal Mining Registrar reviewed. (3) An application for review must be made within 14 days of service of the notice (unless the Warden's Court allows an extension of time). (4) Pending the determination of an application for review, the Opal Mining Registrar must not cancel the registration of the tenement. (5) At the conclusion of the review, the Warden's Court may— (a) confirm the decision of the Opal Mining Registrar; or (b) cancel the notice. (6) Subject to a decision of the Warden's Court under this section, the Opal Mining Registrar may, after the day specified in a notice under this section, cancel the registration of the relevant tenement. 27A—Cancellation and suspension (1) The Opal Mining Registrar may cancel or suspend a precious stones tenement if the tenement holder contravenes or fails to comply with— (a) a term or condition of the tenement; or (b) a provision of this Act. (2) The Opal Mining Registrar may suspend all or some of the operations under a tenement— (a) pending compliance with an obligation or requirement under this Act by the tenement holder; or (b) until the tenement holder takes some other step specified by the Minister; or (c) on account of any other matter that, in the opinion of the Minister, warrants suspension of rights under the tenement. (3) The Opal Mining Registrar must not take action under this section unless or until the Opal Mining Registrar has— (a) taken reasonable steps to notify the tenement holder of the proposed course of action (including in the notification the grounds on which the Opal Mining Registrar is intending to act); and (b) provided the tenement holder with an opportunity to make written submissions in relation to the matter within a period specified by the Opal Mining Registrar. (4) The Opal Mining Registrar may, after complying with subsection (3), by instrument registered on the opal mining register, cancel or suspend a tenement. (5) The Opal Mining Registrar must ensure that a notice of the cancellation or suspension of a tenement under subsection (4) is given to the tenement holder. (6) A tenement holder may, within 28 days after receiving a notice under subsection (5), appeal to the ERD Court in relation to the matter. (7) The ERD Court may, on hearing an appeal under subsection (6), if satisfied that the ground or grounds on which the Opal Mining Registrar acted were insufficient to justify the cancellation or suspension of the tenement (as the case may be)— (a) revoke the cancellation or suspension; and (b) make any consequential or ancillary order that the Court considers necessary or appropriate. (8) If the ERD Court makes an order under subsection (7)(a), the Opal Mining Registrar may, subject to any order of the Court, reinstate the tenement to a date that coincides with the initial date of the cancellation or suspension, or such later date as the Opal Mining Registrar considers to be appropriate in the circumstances. 28—Surrender of tenement, removal of posts etc (1) The Opal Mining Registrar may, on receipt of an application in a manner and form determined by the Director from the holder of the tenement, cancel the registration of a precious stones tenement. (3) If the land comprised in the tenement is outside a precious stones field, the Opal Mining Registrar must not cancel the registration of the tenement unless or until advised by an authorised person that the land has been rehabilitated in accordance with the requirements of this Act. (4) If the registration of a tenement lapses or is cancelled under this Act, the holder of the tenement must— (a) in the case of a tenement that is wholly within a precious stones field—immediately remove all posts, boundary indicators and markers