Mining Act 1992 (NSW)

Mining Act 1992 No 29 An Act to make provision with respect to prospecting for and mining minerals; to repeal the Mining Act 1973 and the Coal Mining Act 1973; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Mining Act 1992. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Act binds Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. 3A Objects The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular— (a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and (b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and (c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and (d) to ensure an appropriate return to the State from mineral resources, and (e) to require the payment of security to provide for the rehabilitation of mine sites, and (f) to ensure effective rehabilitation of disturbed land and water, and (g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment. 4 Definitions Expressions used in this Act that are defined in the Dictionary at the end of this Act have the meanings set out in the Dictionary. 4A Application of Act This Act does not apply to any area to which the Offshore Minerals Act 1999 applies. 4B Notes Notes included in this Act are explanatory notes and do not form part of this Act. Part 2 Prospecting and mining generally Division 1 General 5 Mining or prospecting without authorisation A person must not prospect for or mine any mineral except in accordance with an authorisation that is in force in respect of that mineral and the land where the prospecting or mining is carried on. Maximum penalty for prospecting in contravention of this section— (a) in the case of a corporation—5,000 penalty units, and, in the case of a continuing offence, a further penalty of 500 penalty units for each day that the offence continues, or (b) in the case of a natural person—1,000 penalty units or imprisonment for 5 years, or both, and, in the case of a continuing offence, a further penalty of 100 penalty units for each day that the offence continues. Maximum penalty for mining in contravention of this section— (a) in the case of a corporation—10,000 penalty units, and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day that the offence continues, or (b) in the case of a natural person—2,000 penalty units or imprisonment for 5 years, or both, and, in the case of a continuing offence, a further penalty of 200 penalty units for each day that the offence continues. 6 Unauthorised carrying out of designated ancillary mining activities (1) Carrying out of designated ancillary mining activities within authorisation area A person must not carry out a designated ancillary mining activity on land within an authorisation area except in accordance with the authorisation. (2) Carrying out of designated ancillary mining activities outside mining area A person must not, on land that is not within the mining area of a mining lease, carry out a designated ancillary mining activity that is in the vicinity of and that directly facilitates the mining lease concerned, except in accordance with— (a) a condition of the mining lease that regulates the carrying out of the activity, or (b) another mining lease in respect of an ancillary mining activity or activities only that authorises the carrying out of the activity. (3) Carrying out of designated ancillary mining activities outside claim area, but within mineral claims district A person must not, on land that is not within the claim area of a mineral claim, but is within a mineral claims district, carry out a designated ancillary mining activity, except in accordance with— (a) a mining lease in respect of an ancillary mining activity or activities only that authorises the carrying out of the activity, or (b) a mineral claim in respect of an ancillary mining activity or activities only that authorises the carrying out of the activity. (4) Carrying out of designated ancillary mining activities outside mineral claims district A person must not, on land that is not within a mineral claims district, carry out a designated ancillary mining activity that is in the vicinity of and that directly facilitates a mineral claim, except in accordance with a mining lease in respect of an ancillary mining activity or activities only that authorises the carrying out of the activity. (5) Exemptions The regulations may provide for the exemption (including by order of the Minister) of a person or class of persons from the operation of this section with respect to the carrying out of a designated ancillary mining activity, or a class of designated ancillary mining activities. (6) Meaning of "designated ancillary mining activity" In this section, designated ancillary mining activity means the following— (a) the construction, maintenance or use, in or in connection with mining operations, of a reservoir, dam (including a tailings dam), drain or water race, (b) opal puddling, (c) the removal, stockpiling or depositing of overburden, ore or tailings to the extent that it is associated with mineral extraction or mineral beneficiation. (7) However, the construction, maintenance or use of a reservoir, dam, drain or water race principally used for purposes not connected with mining or another activity regulated by or under an authorisation is not a designated ancillary mining activity. Maximum penalty— (a) in the case of a corporation—10,000 penalty units, and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day that the offence continues, or (b) in the case of a natural person—2,000 penalty units or imprisonment for 5 years, or both, and, in the case of a continuing offence, a further penalty of 200 penalty units for each day that the offence continues. 7–9 (Repealed) 10 Defences to prosecutions under Part 2 (1) It is a defence to a prosecution of a person for an offence under section 5 if the person establishes that the person was prospecting for or mining minerals in the course of— (a) fossicking, or Note— Section 12 declares fossicking to be a lawful activity. (b) carrying out an activity in accordance with section 81. (2) It is a defence to a prosecution of a person for an offence under section 6 if the person establishes that the person was carrying out the ancillary mining activity in the course of carrying out an activity in accordance with section 81. (3) It is a defence to the prosecution of a person for an offence under section 5 or 6 if the person establishes that the person was prospecting for or mining minerals, or carrying out the ancillary mining activity— (a) in accordance with rights under an authority or a mineral claim that have devolved on the person by operation of law, and (b) at a time when the person had applied under section 162 or 202 to have the person's name recorded as the holder of the authority or mineral claim and the application had not been refused. (4) It is a defence to the prosecution of a person for an offence under section 5 or 6 in relation to mining for mercury if the mercury was mined as a by-product of mining for another mineral as authorised under this Act. 10A Restriction on grant of authorisations with respect to uranium An authorisation (other than an exploration licence or an environmental assessment permit relating to an exploration licence) may not be granted in respect of uranium. 10B Restriction on grant of mining lease in respect of mercury A mining lease must not be granted in respect of mercury. 11 Property in minerals lawfully mined (1) For the purposes of this or any other Act or law, it is declared that any mineral that is lawfully mined becomes the property of the person by or on behalf of whom it is mined at the time the material from which it is recovered is severed from the land from which it is mined. (2) For the purposes of this or any other Act or law, it is declared that any mineral contained in— (a) a stockpile of material that has been lawfully mined for the purpose of enabling the mineral to be recovered, or (b) a pile of tailings arising from the recovery of a mineral from material that has been so mined, remains the property of the person by or on behalf of whom the material was mined and does not become part of the land on which it is situated. (3) However, any mineral that has been mined pursuant to a mining lease or mineral claim but is still contained in such a stockpile or pile of tailings when the lease or claim ceases to have effect— (a) ceases to be the property of the person by or on behalf of whom the material in the stockpile or pile of tailings was mined, and (b) becomes part of the land on which the stockpile or pile of tailings is situated, at the time the mining lease or mineral claim ceases to have effect. (4) This section is subject to the provisions of any private agreement. 11A Certain activities taken not to be prospecting or mining (1) The regulations may declare that, or provide for the declaration by the Minister that, a specified activity is, or a specified class or classes of activities are, not prospecting or mining for the purposes of this Act. (2) A declaration referred to in subsection (1)— (a) may require a person who proposes to carry out any such activity to give notice of intention to do so to the Secretary, and (b) may require a person who carries out any such activity to pay royalty to the Crown in respect of any publicly owned minerals recovered as a consequence of the carrying out of that activity. (3) Part 14 applies, subject to any modifications necessary to give effect to a declaration under subsection (1) and any modifications prescribed by the regulations— (a) to royalty payable under subsection (2) in the same way as it applies to royalty payable on a mineral recovered under a mining lease, and (b) to the person by whom royalty is payable as if the person were the holder of a mining lease. 12 Fossicking (1) For the purposes of this or any other Act or law, it is declared that fossicking is a lawful activity. (2) Subsection (1)— (a) does not affect any other Act or law that prohibits, regulates or restricts fossicking or that has the effect of prohibiting, regulating or restricting fossicking and, in particular, does not make fossicking a lawful authority or lawful excuse for the purposes of any such Act or law, and (b) does not confer on any person a right of entry on to land (other than land prescribed by subsection (2A)) for fossicking purposes. (2A) For the purposes of subsection (2) (b), the prescribed land is Crown land (within the meaning of the Crown Land Management Act 2016)— (a) that is not held under a lease, licence or permissive occupancy under the Crown Land Management Act 2016, and (b) that is not under the management or control of a trustee or a public or local authority. (3) Any publicly owned mineral that is recovered in the course of lawful fossicking becomes the property of the person by whom it is found at the time it is severed from the land on which it is found. (4) A person must not carry out fossicking on any land the subject of an authority, mineral claim or opal prospecting licence except with the consent of the holder of the authority, claim or licence. Maximum penalty—50 penalty units. (5) Subsection (4) does not apply to the carrying out of fossicking on land the subject of an exploration licence if the land is within a fossicking district. (6) A person must not carry out fossicking on any land that is, or in waters that are, the subject of an approved determination of native title under the Commonwealth Native Title Act to the effect that native title exists, except with the consent of the relevant registered native title body corporate with respect to that native title. Maximum penalty—50 penalty units. Division 2 Offences concerning theft of minerals 12A Definitions In this Division— mining land means any land the subject of a mining lease or mineral claim. owner in relation to a mine or mining land, means a person— (a) who is authorised (whether under a mining lease or mineral claim or otherwise) to mine for minerals in or on the mine or mining land, or (b) who is entitled to receive any minerals recovered from the mine or mining land. 12B Stealing minerals A person who— (a) steals, or attempts to steal, a mineral from any mine or mining land, or (b) severs, or attempts to sever, a mineral from any mine or mining land with intent to steal, is guilty of an offence. Maximum penalty— (a) in the case of a corporation—10,000 penalty units, or (b) in the case of a natural person—2,000 penalty units or imprisonment for 5 years, or both. 12C Fraudulent removal and concealment of minerals by employees A person employed in or about any mine or mining land who removes or conceals, or attempts to remove or conceal, a mineral found in that mine or mining land with intent to defraud an owner of the mine or mining land is guilty of an offence. Maximum penalty— (a) in the case of a corporation—10,000 penalty units, or (b) in the case of a natural person—2,000 penalty units or imprisonment for 5 years, or both. 12D Fraudulent removal and concealment of minerals by partners An owner of any mine or mining land who removes or conceals, or attempts to remove or conceal, a mineral found in that mine or mining land with intent to defraud any other owner of the mine or mining land is guilty of an offence. Maximum penalty— (a) in the case of a corporation—10,000 penalty units, or (b) in the case of a natural person—2,000 penalty units or imprisonment for 5 years, or both. 12E (Repealed) Part 3 Exploration licences Division 1 Applications and tenders 13 Application for exploration licence (1) Any person may apply for an exploration licence. (2) To avoid doubt, the owner of privately owned minerals may apply for an exploration (mineral owner) licence or any other exploration licence with respect to those minerals. Note— The owner of privately owned minerals may choose to apply for an ordinary exploration licence with respect to those minerals, rather than an exploration (mineral owner) licence. In relation to exploration (mineral owner) licences see section 24 (4). (3) An application that relates to land in a mineral allocation area may not be made, except with the Minister's consent, in relation to any group of minerals that includes an allocated mineral. (3A) An application that relates to land in a controlled release area may not be made in relation to any group of minerals that includes a controlled release mineral except— (a) pursuant to an invitation under Schedule 1A (Competitive selection process for controlled release prospecting titles), or (b) under section 13C (Application for operational allocation licence by existing authority holders), or (c) by the Secretary on behalf of the Crown under section 13D (Crown pre-competitive exploration licences). (4) An application for an exploration licence must— (a) be lodged with the Secretary, and (b) be accompanied by the application fee prescribed by the regulations, and (c) be accompanied by the information, if any, specified by the regulations, and (d) if the application is for an exploration (mineral owner) licence with respect to privately owned minerals that have more than one owner, be made by all the owners. Note— Section 129A requires an application for an exploration licence to be accompanied by a proposed work program. (5), (6) (Repealed) 13A Notice of application for exploration licence (1) Within 14 days (or such other period as may be prescribed by the regulations) after lodging an application for an exploration licence, the applicant must cause notice of the application to be published in the way specified by the regulations. (2) The notice must— (a) state that an application for an exploration licence has been lodged, and (b) contain a plan of the proposed exploration area, and (c) comply with any other requirements that are prescribed by the regulations for the purposes of this subsection. (3) This section does not apply to an application made pursuant to an invitation under Schedule 1A (Competitive selection process for controlled release prospecting titles). 13B Limit on subsequent applications for exploration licences If a person— (a) applies for the grant or renewal of a mineral owner authority in relation to particular land and that application is refused, or (b) was the holder of a mineral owner authority in relation to particular land when that authority was cancelled, the person may not, within 2 years after that refusal or cancellation, apply for an exploration (mineral owner) licence in relation to that land except with the Minister's consent. 13C Application for operational allocation licence by existing authority holders (1) The holder of an exploration licence, assessment lease or mining lease for coal may apply under this section for an exploration licence for coal. (2) An application under this section is subject to the following requirements— (a) the application must be for a purpose that is prescribed by the regulations as an operational allocation purpose, (b) the land to which the application relates must comply with the regulations in relation to shape, size and such other features as may be prescribed, (c) such other requirements as may be prescribed by the regulations. (3) Without limiting any other provision of this Act, an application under this section may be refused on any one or more of the following grounds— (a) the decision-maker is not satisfied that the application is for an operational allocation purpose, (b) the decision-maker is satisfied that there is sufficient interest from other potential applicants to justify a competitive selection process for the grant of an exploration licence over the area concerned, (c) the decision-maker is satisfied that the application does not comply with any requirement of this section or the regulations. (3A) The decision-maker may, for the purpose of determining whether there is sufficient interest from other potential applicants to justify a competitive selection process for the grant of an exploration licence over the area concerned under subsection (3)(b), conduct a market interest test by seeking expressions of interest from— (a) the applicant under this section, and (b) other potential applicants. (3B) The market interest test may be conducted over an area that differs in size and shape from the area concerned under subsection (3)(b). (4) Without limiting any other provision of this Act, in deciding whether to grant or refuse an application under this section the decision-maker may take into account any guidelines issued (and made publicly available) by the Minister for the purposes of this section. 13D Crown pre-competitive exploration licences (1) The Secretary may apply on behalf of the Crown for an exploration licence (a Crown pre-competitive exploration licence) for a controlled release mineral within a controlled release area to authorise prospecting for the purpose of obtaining information about the potential mineral bearing qualities of land in the State. (2) The regulations may make provision for or with respect to the following— (a) requirements for prospecting conducted under a Crown pre-competitive exploration licence including the purposes for which prospecting is to be undertaken and the criteria that prospecting under the licence is to satisfy, (b) procedures for the relinquishment of a Crown pre-competitive exploration licence when prospecting under the licence is completed. (3) The rights conferred by section 29 (Rights under exploration licence) on the holder of a Crown pre-competitive exploration licence are subject to the requirements of the regulations under this section. 14 Invitations for tenders (1) This section applies only in relation to allocated minerals in land within a mineral allocation area. (2) The Minister may, by notice published in the way specified by the regulations, invite tenders for an exploration licence for an allocated mineral, other than an exploration (mineral owner) licence for an allocated mineral. (3) An invitation— (a) must describe the land to which it relates, and (b) must identify the allocated mineral to which it relates, and (c) must specify the way in which, and the date on or before which, tenders for the exploration licence should be lodged. 15 Tenders (1) A tender for an exploration licence— (a) must be lodged with the Secretary in accordance with the invitation for the tender, and (b) must be accompanied by the required information, and (c) must be accompanied by the lodgment fee prescribed by the regulations. Note— Section 129A requires a tender for an exploration licence to be accompanied by a proposed work program. (2) The required information is as follows— (a) information, if any, specified by the regulations, (b), (c) (Repealed) (d) any other information that is specified in the tender invitation. (3) A tender may specify that, in the event that the tender is successful, the tenderer will pay a specified amount in addition to the cash reserve price (if any) specified in the invitation for the tender. (4) A tender may be made in respect of the whole or any part of the land described in the invitation for the tender. 16 (Repealed) 17 Exclusion of land from application or tender (1) The decision-maker may, by order in writing, direct that any part of the land to which an application or tender for an exploration licence relates be excluded from the application or tender. (2) A direction takes effect on the date on which written notice of the direction is served on the applicant or tenderer. (3) A tenderer affected by any such direction may amend the tender by written notice lodged with the Secretary on or before such date as may be specified in the direction. (4) This section does not apply to an application for an exploration (mineral owner) licence. Division 2 Restrictions on the grant of exploration licences 18 Land in reserve or opal prospecting area An exploration licence may not be granted over any land within— (a) an opal prospecting area, or (b) a reserve in respect of which an order prohibiting the granting of exploration licences is in force under section 367. 19 Land subject to authority (1) An exploration licence may not be granted over any land— (a) the subject of some other exploration licence that includes a group of minerals in respect of which the firstmentioned exploration licence is sought, or (b) the subject of a mining lease, assessment lease or mineral claim, or (c) the subject of an application for any of the following that was lodged before the application for the firstmentioned exploration licence— (i) an exploration licence that includes a group of minerals in respect of which the firstmentioned exploration licence is sought, (ii) an assessment lease, (iii) a mining lease, (iv) a mineral claim. otherwise than to or with the written consent of the holder of, or the applicant for, that licence, lease or claim. (1A) Despite subsection (1) (c) (i), an exploration licence may be granted over land the subject of a preceding application for an exploration licence if— (a) the application for the firstmentioned exploration licence was made pursuant to an invitation under Schedule 1A (Competitive selection process for controlled release prospecting titles), and (b) that invitation was issued before the preceding application was lodged. (2) A written consent given under this section is irrevocable. (3) If, as a result of such a consent, an exploration licence is granted over any such land, that land— (a) ceases to be subject to the exploration licence, assessment lease, mining lease or mineral claim concerned, or (b) is excluded from the application for the exploration licence, assessment lease, mining lease or mineral claim concerned, as the case requires, unless the decision-maker makes a determination under subsection (4). (4) The decision-maker may determine that subsection (3) does not apply with respect to the land or to a part of the land if the decision-maker is satisfied that having the land or that part subject to both the licence and the other authorisation concerned is not likely to make the exercise of rights under the licence or the other authorisation impracticable. 20, 21 (Repealed) Division 3 Granting of exploration licences 22 Power of decision-maker in relation to applications (1) After considering an application for an exploration licence, the decision-maker— (a) may grant to the applicant an exploration licence over all or part of the land over which a licence was sought, or (b) may refuse the application. Note— Schedule 1B contains provisions about the grant or refusal of an application for an exploration licence and the conditions to which an exploration licence is subject. (2) (Repealed) (3) The decision-maker may grant— (a) a single exploration licence for 2 or more applications made by the same applicant, or (b) 2 or more exploration licences to an applicant for a single application. 23 Power of decision-maker in relation to tenders (1) After considering a tender in respect of land in respect of which one tender only is lodged, the decision-maker— (a) may grant an exploration licence to the tenderer, or (b) may refuse the tender. (2) After considering all tenders in respect of land in respect of which more than one tender is lodged, the decision-maker— (a) may grant an exploration licence to any one of the tenderers and refuse the other tenders, or (b) may refuse all of the tenders. Note— Schedule 1B contains provisions about the grant or refusal of an exploration licence to a tenderer. (3) (Repealed) (4) For the purposes of this section, only one tender is lodged in respect of land if no other tender is lodged in respect of the land or any part of the land. 23A Activity approval required for assessable prospecting operations (1) An exploration licence is subject to a statutory condition that the holder of the licence must not carry out an assessable prospecting operation on land over which the licence is granted unless an activity approval has been obtained for the carrying out of the assessable prospecting operation in relation to that land and is in force. (2) The holder of an exploration licence may apply in writing to the decision-maker for approval to carry out an assessable prospecting operation in relation to any part of the land over which the licence is granted (an activity approval). (3) An application for an activity approval must include the information, if any, prescribed by the regulations. (3A) The decision-maker may require the holder of an exploration licence to provide further information as required by the decision-maker, within the time specified by the decision-maker, before considering the application or at any time during consideration of the application. (4) After considering the application for the activity approval, the decision-maker— (a) may grant the activity approval, or (b) may refuse the application. (5) Without limiting the grounds for refusal, the application may be refused if the applicant fails to provide the information required by the decision-maker within the time required. (6) An activity approval may be granted subject to terms. (7) For the purposes of this Act, it is a statutory condition of an exploration licence that the holder must comply with any activity approval granted to the holder and in force. (8) Clauses 7 (2)–(4), 10 (2), 12 and 14 of Schedule 1B apply to and in respect of the imposition of terms on, and variation of the terms of, an activity approval in the same way as they apply to and in respect of the imposition of conditions on, and the variation of the conditions of, an authorisation. (9) The decision-maker may cancel an activity approval— (a) if the holder of the activity approval lodges with the Secretary a request that the decision-maker cancel the activity approval, or (b) if the decision-maker is satisfied that a person has contravened the activity approval (whether or not the person is prosecuted or convicted of any offence arising from the contravention). (10) Before cancelling an activity approval, otherwise than at the request of the holder of the activity approval, the decision-maker is to cause a written notice to be served on the holder of the activity approval that contains the following— (a) notice that the activity approval is proposed to be cancelled, (b) details of the grounds for the proposed cancellation, (c) notice that the holder of the activity approval has a specified period (of at least 28 days) in which to make representations with respect to the proposed cancellation. (11) The decision-maker must not cancel an activity approval, otherwise than at the request of the holder of the activity approval, unless— (a) the decision-maker has taken any such representations received from the holder of the activity approval into consideration, or (b) the period specified in the notice has elapsed and no such representations have been received. (12) The decision-maker is to cause written notice of the cancellation of an activity approval to be given to the holder of the activity approval. (13) The cancellation takes effect on the date on which the written notice of the cancellation is given to the holder of the activity approval, or on a later date specified in the notice. (14) Any person who is aggrieved by the decision of the decision-maker to cancel an activity approval held by the person may appeal to the Land and Environment Court against the decision. Section 128 applies to such an appeal as if it were an appeal against a decision to cancel an authority. (15) The cancellation of an activity approval does not affect any liability incurred by the holder of the activity approval before the cancellation took effect. (16) Action may be taken under subsection (9) (b) whether or not any other action has been taken in respect of the activity approval under this Act. 24 Land and min