Offshore Minerals Act 1999 (NSW)

Offshore Minerals Act 1999 No 42 An Act relating to exploration for, and the recovery of, minerals (other than petroleum) in the first 3 nautical miles of the territorial sea in respect of New South Wales; to amend other Acts consequentially; and for related purposes. Chapter 1 Introduction Part 1.1 Legislative formalities and background 1 Name of Act This Act is the Offshore Minerals Act 1999. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Commonwealth–State agreement (the Offshore Constitutional Settlement) (1) The Commonwealth and the States have agreed that: (a) Commonwealth offshore mining legislation should be limited to the area that is outside State coastal waters, and (b) the States should share, in the manner provided by the Offshore Minerals Act 1994 of the Commonwealth, in the administration of the Commonwealth offshore mining legislation, and (c) State offshore mining legislation should apply to State coastal waters beyond the baseline for the territorial sea (that is, the first 3 nautical miles of the territorial sea), and (d) the Commonwealth and the States should try to maintain, as far as practicable, common principles, rules and practices in regulating and controlling offshore mining beyond the baseline of Australia's territorial sea. Note 1— So far as the agreement relates to petroleum, it is reflected in this State's legislation by the Petroleum (Offshore) Act 1982. Note 2— Some sections of the Commonwealth Act contain provisions that are not relevant to the operation of this Act. To keep uniformity between this Act and the Commonwealth Act the numbers of the sections that are not relevant have not been used in the numbering of this Act. (2) Other Acts that provide background in this State to the agreement (commonly referred to as the "Offshore Constitutional Settlement") are: (a) the Seas and Submerged Lands Act 1973, the Coastal Waters (State Powers) Act 1980, the Coastal Waters (State Title) Act 1980 and the Offshore Petroleum Act 2006 of the Commonwealth, and (b) the Petroleum (Offshore) Act 1982 of this State. Note 1— The Seas and Submerged Lands Act 1973: • declares and enacts that the sovereignty in respect of the territorial sea and the associated airspace, seabed and subsoil is vested in and exercisable by the Crown in right of the Commonwealth, gives the Governor-General power to declare, by Proclamation, the limits of the territorial sea, declares and enacts that the sovereignty in respect of waters of the sea that are on the landward side of the baseline of the territorial sea (but not within the limits of a State) and in respect of the associated airspace, seabed and subsoil is vested in and exercisable by the Crown in right of the Commonwealth, declares and enacts that the sovereign rights of Australia as a coastal State in respect of the Continental Shelf of Australia (for the purpose of exploring it and exploiting its natural resources) are vested in and exercisable by the Crown in right of the Commonwealth, • gives the Governor-General power to declare, by Proclamation, the limits of the Continental Shelf of Australia. Note 2— The Coastal Waters (State Powers) Act 1980 was enacted following a request from the Parliaments of all the States under section 51 (xxxviii) of the Commonwealth Constitution and provides that the legislative powers exercisable under the Constitution of each State extend to the making of certain laws that would operate offshore. Note 3— The Coastal Waters (State Title) Act 1980 vests in each State certain property rights in the seabed beneath the coastal waters of the State. Note 4— The Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth and the Petroleum (Offshore) Act 1982 of this State make provision, based on the agreement referred to in subsection (1), for the licensing regime that applies to the exploration for and recovery of petroleum in coastal waters and offshore areas of this State. Part 1.2 Interpretation Division 1 General 4 Notes in the text Notes in this Act are provided to assist understanding and do not form part of the Act. 5 Interpretation In this Act: appropriate application fee means the application fee determined from time to time by the Minister, with the concurrence of the Treasurer, for the purposes of the provision in which that term appears. approved means approved by the Minister under section 41. associate has the meaning given by section 26 (1). associated agent of a holder has the meaning given by section 26 (3). associated agent of an associated contractor has the meaning given by section 26 (4). associated contractor of a holder has the meaning given by section 26 (2). associated employee of a holder has the meaning given by section 26 (5). associated employee of an associated contractor has the meaning given by section 26 (6). block means a portion of the coastal waters constituted according to section 17. caveat on a licence means a caveat against: (a) the registration of dealings in relation to the licence, or (b) the registration of a person as a holder of the licence under section 340. Chief Commissioner means the Chief Commissioner of State Revenue. coastal waters has the meaning given by section 16 (1) and (2). Commonwealth Act means the Offshore Minerals Act 1994 of the Commonwealth. Commonwealth Minister means a Minister of State for the Commonwealth. compliance inspection has the meaning given by section 377. confidential information has the meaning given by section 27. confidential sample has the meaning given by section 28. consent area means the block or blocks specified in a special purpose consent. dealing in a licence means a transaction that creates, transfers, affects or otherwise deals with an interest in the licence and includes: (a) a transfer of the licence, and (b) a transfer of a share in the licence, but does not include a document that comes within section 337 (1) other than a document by which a block or a licence is surrendered. discrete area has the meaning given by section 21. document file means a document file kept for the purposes of Part 3.1. exploration has the meaning given by section 23. holder of a licence has the meaning given by section 25 (1). hydrocarbon means a hydrocarbon whether in a gaseous, liquid or solid state. inspector means an inspector appointed under section 421. interest, in relation to a licence, includes: (a) an equitable interest in the licence, and (b) a security interest in the licence. licence means: (a) an exploration licence, or (b) a retention licence, or (c) a mining licence, or (d) a works licence. licence area means the block or blocks covered by a licence. licence holder has the meaning given by section 25 (1). mineral has the meaning given by section 22. offshore exploration or mining activities means: (a) the exploration for minerals in coastal waters, or (b) the recovery of minerals from coastal waters, or (c) activities carried out in coastal waters under a works licence. offshore mining register means the register kept for the purposes of Part 3.1. petroleum means: (a) a hydrocarbon or a mixture of hydrocarbons, or (b) a mixture of one or more hydrocarbons and one or more of the following: (i) hydrogen sulphide, (ii) nitrogen, (iii) helium, (iv) carbon dioxide. primary payment period for the provisional grant or provisional renewal of a licence means the period of 30 days after the day on which the applicant is given a written notice: (a) in the case of the grant of an exploration licence, under section 66, and (b) in the case of the renewal of an exploration licence, under section 110, and (c) in the case of the grant of a retention licence, under section 147, and (d) in the case of the renewal of a retention licence, under section 169, and (e) in the case of the grant of a mining licence, under section 210, and (f) in the case of the renewal of a mining licence, under section 246, and (g) in the case of the grant of a works licence, under section 279, and (h) in the case of the renewal of a works licence, under section 296. provisional holder means a person who has been provisionally granted a licence. recovery has the meaning given by section 24. registered means registered in the offshore mining register. reserved block means a block that is declared to be reserved under section 18. responsible Commonwealth Minister means the Commonwealth Minister who is responsible for the administration of the Commonwealth Act. sample of the seabed or subsoil includes a core or cutting from the seabed or subsoil. secondary payment period for the provisional grant or provisional renewal of a licence means the period of 30 days after the day on which an extension of the primary payment period for the grant or renewal concerned ends. share in a licence has the meaning given by section 6 (1), (2) and (3). special purpose consent means a consent granted under Part 2.6. standard block has the meaning given by section 19. State Minister means: (a) a Minister of State for a State, or (b) a Minister of State for the Northern Territory. successor licence to a licence has the meaning given by section 8. surrender day for an exploration licence means: (a) the day on which the initial term of the licence ends, or (b) a day on which the term of a renewal of the licence ends. tender block has the meaning given by section 20. transfer: (a) when used in relation to a licence, has the meaning given by section 7 (1), and (b) when used in relation to a share in a licence, has the meaning given by section 7 (2) and (3). vary a licence condition includes revoke or suspend. 6 Shares in a licence (1) A person has a share in a licence if the person is the holder, or one of the holders, of the licence. (2) If a holder is entitled to a particular percentage of the value of the rights conferred by a licence, that percentage is the holder's share in the licence. Note— A sole holder has a 100% share in the licence. (3) If: (a) a person is a registered holder of a licence, and (b) the person is shown in the offshore mining register as being entitled to a specified percentage of the value of the rights conferred by the licence, the person's share in the licence is taken to be the percentage specified in the register. 7 Transfer of a licence (1) For the purposes of this Act, a licence is transferred if: (a) the licence has only one holder and the holder transfers the whole of his or her interest in the licence to another person or other persons, or (b) the licence has 2 or more holders and the holders all transfer the whole of their interests in the licence to another person or other persons. (2) For the purposes of this Act, a share in a licence is transferred if: (a) the licence has only one holder and the holder transfers a part of the holder's share in the licence to another person or other persons, or (b) the licence has 2 or more holders and: (i) some, but not all, of the holders transfer the whole of their shares in the licence to another person, or (ii) some or all of the holders transfer a part of their shares in the licence to another person. (3) The other person referred to in subsection (2) (b) may be an existing licence holder. 8 Successor licences (1) If: (a) a mining licence takes effect immediately after an exploration licence expires, and (b) the holder of the mining licence immediately after it takes effect was the holder of the exploration licence immediately before it expired, the mining licence is a successor licence to the exploration licence. (2) If: (a) a retention licence takes effect immediately after an exploration licence expires, and (b) the holder of the retention licence immediately after it takes effect was the holder of the exploration licence immediately before it expired, the retention licence is a successor licence to the exploration licence. (3) If: (a) a mining licence takes effect immediately after a retention licence expires, and (b) the retention licence took effect immediately after an exploration licence expired, and (c) the holder of the mining licence immediately after it takes effect was the holder of the retention licence immediately before it expired, and (d) the holder of the retention licence immediately after it took effect was the holder of the exploration licence immediately before it expired, the mining licence is a successor licence to the exploration licence and the retention licence. 9 Section number not used See note 2 to section 3 (1). 10 Position on the Earth's surface (1) The position of a point, line or area on the Earth's surface is to be worked out for the purposes of this Act and subordinate instruments by reference to the Geocentric Datum of Australia within the meaning of the Surveying and Spatial Information Act 2002. (2) In subsection (1): subordinate instrument means: (a) the regulations, and (b) an instrument made under this Act or the regulations. 11 Section number not used See note 2 to section 3 (1). 12 Power to revoke and amend instruments (1) A provision of this Act that confers a power to do something in writing is also taken to confer the power to revoke or amend the written document by which that thing is done. (2) The power to revoke or amend: (a) must also be exercised in writing, and (b) is subject to the same procedural requirements as the original power, and (c) is subject to the same conditions as those that governed the exercise of the original power. Division 2 Basic concepts 13–15 Section numbers not used See note 2 to section 3 (1). 16 Coastal waters, and effect of change in baseline (1) Subject to this section, the coastal waters of the State are so much of the area described in Schedule 1 as is constituted by the first 3 nautical miles of the territorial sea from the baseline. (2) The coastal waters do not include any waters that are inside the baseline. (3) If: (a) a licence has been granted on the basis that an area is within coastal waters, and (b) there is a change to the baseline or, because new data is obtained or existing data is reconsidered, the location of the baseline is reassessed, and (c) as a result of the change to, or reassessment of the location of, the baseline, the area ceases to be within coastal waters, this Act applies as if the area were still within coastal waters. (4) Subsection (3) continues to apply to the area only while the licence (and any successor licence) remains in force. (5) If: (a) a licence under the Commonwealth Act has been granted on the basis that an area is within the offshore area under the Commonwealth Act, and (b) there is a change to the baseline or, because new data is obtained or existing data is reconsidered, the location of the baseline is reassessed, and (c) as a result of the change to, or reassessment of the location of, the baseline, the area: (i) ceases to be within the offshore area under the Commonwealth Act, and (ii) falls within coastal waters, this Act does not apply to the area. (6) Subsection (5) continues to apply to the area only while the licence under the Commonwealth Act (and any successor licence within the meaning of that Act) remains in force. (7) This section has effect subject to section 172A of the Mining Act 1992. (8) In this section: baseline means the baseline adjacent to the coast of the State (including the coast of any island forming part of the State) as for the time being determined under section 7 (2) (b) of the Seas and Submerged Lands Act 1973 of the Commonwealth. Note— Generally the baseline is the lowest astronomical tide along the coast but it also includes lines enclosing bays and indentations that are not bays and straight baselines that depart from the coast. See Australia's territorial sea baseline published 1988 by the Australian Government Printing Service. 17 Blocks This is how a block is constituted in coastal waters: (a) assume that there is laid over the coastal waters a grid constituted by: (i) lines running along meridians drawn through each degree of longitude and the minutes between those degrees, and (ii) lines running along parallels drawn through each degree of latitude and the minutes between those degrees, (b) take a bounded space defined by the grid, (c) the seabed and subsoil within the coastal waters that is under that space is a block. 18 Reserved block (1) Subject to subsection (2), the Minister may declare that a block in coastal waters is a reserved block. Note 1— A reserved block may be put up for tender by the Minister publishing in the Gazette a tender block licence notice (see sections 74 and 218). Note 2— Section 8 (c) of the Interpretation Act 1987 allows a single declaration under this subsection to be made in respect of 2 or more blocks. (2) A declaration under subsection (1) must not be made in relation to a block if: (a) a licence over that block is in force, or (b) an application for a licence over that block has been made and has not been determined. (3) A declaration under subsection (1) must be made by notice published in the Gazette. 19 Standard block A standard block is a block that is not the subject of a declaration under section 18 (1). 20 Tender block A tender block is a block that is the subject of a tender block licence notice published by the Minister under section 74 or 218. 21 Discrete area (1) A group of blocks forms a discrete area if the area formed by the blocks is continuous. (2) Two blocks that are joined at one point only do not form a continuous area. 22 Minerals (1) A mineral is a naturally occurring substance or a naturally occurring mixture of substances. Note— This Act does not apply to petroleum (see section 35). (2) Without limiting subsection (1), a mineral may be in the form of sand, gravel, clay, limestone, rock, evaporites, shale, oil-shale or coal. 23 Exploration (1) For the purposes of this Act, exploration for minerals includes any activity that is directly related to the exploration for minerals. (2) For the purposes of this Act, exploration does not include the exploration for minerals of the subsoil of coastal waters that is carried out by means of underground mining from land in the State if that exploration is carried out in accordance with the Mining Act 1992. 24 Recovery (1) For the purposes of this Act, recovery of minerals includes any activity that is directly related to the recovery of minerals. (2) For the purposes of this Act, recovery does not include the recovery of minerals from the subsoil of coastal waters that is carried out by means of underground mining from land in the State if that recovery is carried out in accordance with the Mining Act 1992. 25 Licence holder (1) References in this Act to the holder of a licence or the licence holder are references to the person whose name is entered in the offshore mining register as the person who holds the licence. Note 1— This Act is based upon the grant and registration of licences. Note 2— If a licence is granted to a person, that person's name is entered in the register (see section 333). Note 3— The entry in the register in relation to a licence will be varied if there is a change in the holder of the licence (see section 338 (4)). (2) A licence may be held by more than one person. 26 Associates (1) For the purposes of this Act, the following are the associates of a licence holder: (a) associated contractors of the holder, (b) associated agents of the holder, (c) associated agents of associated contractors, (d) associated employees of the holder, (e) associated employees of associated contractors. (2) A person is an associated contractor of the holder if: (a) the person enters into an agreement with the holder for carrying out activities under the licence, or (b) the person enters into an agreement with a person who is an associated contractor under paragraph (a) or this paragraph for carrying out activities under the licence. (3) A person is an associated agent of the holder if the person is the agent of, or acts on behalf of, the holder in relation to carrying out activities under the licence. (4) A person is an associated agent of an associated contractor if the person is the agent of, or acts on behalf of, the associated contractor in relation to carrying out activities under the licence. (5) A person is an associated employee of the holder if the person is employed by the holder and, in the course of that employment, carries out activities under the licence. (6) A person is an associated employee of an associated contractor if the person is employed by the associated contractor and, in the course of that employment, carries out activities under the licence. 27 Confidential information (1) For the purposes of this Act, information is confidential information if: (a) a licence holder has given it to the Minister, and (b) it is in a record, return, report or document, and (c) it relates to activities authorised by the licence, and (d) it relates to an area of the seabed or subsoil that is covered by the licence or a successor licence to the licence. (2) However, if: (a) a person is required to give the Minister a report in relation to particular blocks, and (b) the person gives the Minister a report that relates not only to those blocks but also to other blocks, and (c) the Minister is required to make the report available under section 376, the information that relates to those other blocks is not confidential information. (3) A reference in this section to information given to the Minister by a licence holder includes a reference to a return or other information relating to royalty under this Act that is obtained by the Minister, or a delegate of the Minister, from a tax officer (within the meaning of the Taxation Administration Act 1996). 28 Confidential sample For the purposes of this Act, a sample is a confidential sample if: (a) a licence holder has given it to the Minister, and (b) it was recovered in the course of activities authorised by the licence, and (c) it was recovered from an area of the seabed or subsoil that is covered by the licence or a successor licence to the licence. Part 1.3 Administration of the Commonwealth–State offshore area 29 Definitions In this Part: associated revenue Act has the same meaning as in the Commonwealth Act. Commonwealth–State offshore area means the Commonwealth–State offshore area in respect of the State within the meaning of section 13 of the Commonwealth Act. 30 Minister as member of Joint Authority, or as Designated Authority (1) The Minister may perform any function that the Minister has under the Commonwealth Act or an associated revenue Act: (a) as a member of the Joint Authority for the Commonwealth–State offshore area provided for by section 32 (2) of the Commonwealth Act, or (b) as the Designated Authority for that area provided for by section 29 (2) of that Act. (2) The Minister must perform any such function that the Minister is required to perform by the Commonwealth Act or an associated revenue Act. 31 State officer acting under delegation An officer or temporary employee within the meaning of the Public Sector Management Act 1988 to whom a delegation is made under section 419 of the Commonwealth Act may perform any function that the officer or employee has under that delegation and must perform any such function that the officer or employee is required to perform under the Commonwealth Act. 32–34 Section numbers not used See note 2 to section 3 (1). Part 1.4 Application of this Act 35 Act does not apply to exploration for or recovery of petroleum This Act does not apply to the exploration for or recovery of petroleum. Note 1— For "petroleum" see section 5. Note 2— Offshore petroleum exploration and mining are regulated by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth and the Petroleum (Offshore) Act 1982 of this State. 36 Section number not used See note 2 to section 3 (1). 37 Act applies to all individuals and corporations (1) This Act applies to all individuals, including: (a) individuals who are not Australian citizens, and (b) individuals who are not resident in New South Wales. (2) This Act applies to all corporations, including: (a) corporations that are not incorporated in New South Wales, and (b) corporations that do not carry on business in New South Wales. Chapter 2 Regulation of offshore exploration and mining Part 2.1 General 38 General prohibition on exploring and mining without appropriate authorisation A person must not: (a) explore for minerals in coastal waters, or (b) recover minerals from coastal waters, unless the exploration or recovery is authorised by a licence or special purpose consent granted under this Act. Maximum penalty: $30 000. Note— A works licence may be necessary because "exploration" includes activities that are directly related to exploration (see section 23 (1)) and "recovery" includes activities that are directly related to recovery (see section 24 (1)). 38A Exploration and mining in waters subject to fishing closures Despite: (a) the grant of a licence or special purpose consent, or (b) any provision of this Act, offshore exploration or mining activities may be carried out under the licence or consent in waters the subject of a fishing closure under the Fisheries Management Act 1994 only with the written consent of the Minister administering that Act, who may: (c) refuse consent, or (d) give consent subject to such terms and conditions as he or she specifies in the consent. 38B Protecting the environment to be taken into account (1) In deciding whether or not to grant or renew a licence, or to extend the term of a licence, the Minister is to take into account the need to conserve and protect: (a) the flora, fauna, fish, fisheries and scenic attractions in the area concerned, and (b) the features of Aboriginal, archaeological, historical or geological interest of the area. (2) The Minister may cause such studies (including environmental impact studies) to be carried out as the Minister considers necessary to enable such a decision to be made. 38C Inclusion of conditions for protecting the environment The conditions subject to which a licence is granted or renewed must, if the Minister considers it appropriate, include conditions relating to the conservation and protection of: (a) the flora, fauna, fish, fisheries and scenic attractions in the area concerned, and (b) the features of Aboriginal, archaeological, historical or geological interest of the area. 39 Licences and consents available under this Act This Act provides for the grant of: (a) exploration licences (see Part 2.2), and (b) retention licences (see Part 2.3), and (c) mining licences (see Part 2.4), and (d) works licences (see Part 2.5), and (e) special purpose consents (see Part 2.6). Note 1— An exploration licence is designed to cover the exploration phase of a project and authorises: • exploration, and • the recovery of mineral samples. Note 2— A retention licence is designed to ensure the retention of rights pending the transition of a project from the exploration phase to the commercial mining phase and authorises: • exploration, and • the recovery of minerals but not as part of a commercial mining operation. Note 3— A mining licence is designed to cover the commercial mining phase of a project and authorises: • exploration, and • full commercial recovery. Note 4— A project might make use of any of the following 3 licence arrangements: • an exploration licence leading to a mining licence, • an exploration licence leading to a retention licence and then a mining licence, • a mining licence (without progressing through an exploration/retention licence stage). Note 5— A licence is granted over a particular area (constituted by blocks). The licence holder may need to carry out engineering or other activities outside the licence area. If so, the licence holder or someone else must obtain a works licence to carry out those activities. Note 6— If a person wants to carry out: • a scientific investigation, or • a reconnaissance survey, or • the collection of only small amounts of minerals, in coastal waters, the person must obtain a special purpose consent under Part 2.6 to carry out the activity. Note 7— Even though a person has a licence or special purpose consent, the person must not interfere unnecessarily with navigation, native title, fishing, resource conservation or other activities in the area (see section 44). 40 Steps involved in the grant of a fully effective licence (1) The following 3 steps must occur before a licence comes into force: (a) provisional grant of the licence, (b) proper acceptance of the grant, (c) registration of the grant. Note— See sections 88, 154, 232 and 286. (2) If a licence is provisionally granted to a person, the person must do the following to properly accept the grant: (a) give the Minister a written acceptance, (b) lodge any security that the Minister has required, (c) pay the fee that is payable under section 425. Note— See sections 70, 84, 151, 214, 228 and 283. (3) The following 3 steps must occur before a renewal of a licence comes into force: (a) provisional renewal of the licence, (b) proper acceptance of the renewal, (c) registration of the renewal. Note— See sections 89, 155, 233 and 287. (4) If a licence is provisionally renewed, the holder must do the following to properly accept the renewal: (a) give the Minister a written acceptance of the renewal, (b) lodge any security that the Minister has required, (c) pay the fee that is payable under section 425. Note— See sections 114, 173, 250 and 300. 41 Approval of form and manner of applications etc (1) The Minister may approve the form and the manner in which the following are to be made: (a) applications for licences over blocks in coastal waters, (b) applications for the renewal of licences over blocks in coastal waters. (2) An approval under subsection (1) is to be made in writing. 42 Rights to minerals recovered (1) Any minerals recovered