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RECENT CHANGES TO MINING LEGISLATION INCREASE THE BURDEN ON
MINING COMPANIES WISHING TO ACCESS LAND.
In South Australia, amendments to the Mining
Act 1971 impose additional procedural requirements on miners
wishing to enter private land for exploration. The prescribed forms
already used for notifying landowners that the miner will enter
private land have been changed and updated. The Act also now sets
out more detailed provisions which miners must follow before they
can access exempt land, such as land used for cultivation, or land
within 400 metres of a residence or water source. Landowners who
have waived the exemption are entitled to cool off within five
business days if they change their mind.
The amendments also make it clear that it is the tenement owner,
not an agent of the tenement owner (like a mine operator), who is
ultimately responsible for complying with the Act. Tenement holders
will need to ensure that their authorised agents are following all
of the required procedures, otherwise they may be personally
liable.
Queensland has had a uniform land access regime
since August 2010, which regulates access to land for all types of
resource projects. A key part of the regime is the Land Access
Code, which sets out mandatory and best practice requirements for
miners to follow when undertaking authorised activities on land.
The objective of the Code is to ensure that miners continue to
follow industry best practice in dealing with landowners even after
access has been authorised. Miners should become familiar with the
requirements of the Code and take steps to ensure their agents and
subcontractors comply with it.
More recently, the Strategic Cropping Land Act 2011 (Qld) brings
into force additional protection for the State's best cropping
land. Mining projects will need to pass more rigorous assessment
processes against the State's planning policy for strategic
cropping land if the relevant land falls within the protection or
management zones established under the Act. Activities which are
likely to have a permanent impact on land, like open cut mining or
storage of mine waste, are most likely to be affected. Mining
companies should review the provisions to determine what impact, if
any, they have on their resource projects.
In New South Wales (NSW), access arrangements
with landowners are initiated by the service of notification under
Section 142 of the Mining Act 1992 (NSW). A recent decision of the
Supreme Court of NSW resulted in the introduction of an amendment
to the Mining Act. The amendment relieves mining companies from the
obligation to enter into access arrangements with parties holding
registered proprietary interests in land who are not entitled to
immediate possession of the land like a mortgagee or security
holder who has not enforced its security over that land.
As mining activity increases and encroaches onto peri-urban and
cultivated land, attention will focus on the rights of landowners
and occupiers in their dealings with mining (and petroleum)
companies seeking to exploit valuable underground resources.
Whichever side of the fence you may be sitting, landowner or
miner, we can help you unravel the legal maze in this highly
regulated and technical area.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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