Amendments to the Mining Act 1971 and Mining Regulations 2011

New laws apply from July 2011

The Mining (Miscellaneous) Amendment Bill 2010 passed through both Houses of Parliament on 9 November 2010.

The amendments to the Mining Act 1971 and the Mining Regulations 2011 have been in effect as of 01 July 2011.

Introduction

The Mining (Miscellaneous) Amendment Bill 2010 introduces amendments to the Mining Act 1971 to reflect the State Government's commitment to its principles of effective and efficient regulation of our mineral resources sector through best practice management of South Australia's mineral assets.

The exploration and mining sectors require well defined procedures for access to land, security of exploration and/or mining tenure and predictable regulatory processes, in order to commit to higher risks for investment in mineral resource exploration, new mine development and life-of-mine operations.

Landholders and communities require clear and timely advice on their rights under the Mining Act 1971 and on the responsibilities of exploration and mining companies who are seeking to access their land.

The amendments to the Mining Act 1971 achieve these objectives by:

Reducing red tape - repealing and amending legislative requirements that impede industry in the conduct of normal business operations.

Greater transparency - requiring industry to provide more information on proposed and current mining operations and improve notification protocols for access to land for landholders and the community. The amendments also introduce greater transparency in the Government's approvals processes.

Effective regulation - introducing new regulatory and compliance tools, and strengthened powers for authorised officers to ensure the Government's reuglatory body has the appropriate powers to achieve effective and efficient compliance.

Key features

This guide for explorers covers the key features of the new laws which shall apply to explorers including:

• Application
• Assessment
• Programs for Environmental Protection and Rehabilitation (PEPRs) 
• Common Regulations
• Compliance and Enforcement
• General Amendments
• Landowner Related Rights and Obligations

Application

An application for a mining lease must be accompanied by a 'Mining Proposal'.

A mining proposal must specify the proposed mining operations and include details of the mining methods and a description of the existing environment.

A mining proposal must set out:

• An assessment of the environmental impacts of the proposed mining operations
• An outline of the measures that the applicant proposes to take to manage, limit or remedy those environmental impacts
• A statement of the environmental outcomes that are expected to occur
• A draft statement of the criteria to be adopted to measure the expected environmental outcomes
• The result of any consultation undertaken in connection with the proposed mining operations.

An application for a miscellaneous purposes licence must be accompanied by a 'Management Plan' and must set out the same information as that for a mining proposal.

Assessment

In determining the conditions subject to which a licence shall be granted, to the extent it is necessary or appropriate in a particular case, relevant consideration shall be given to the protection of any aspect of the environment that may be affected by the proposed mining operations; any other lawful activities that may be affected by those operations; and any Aboriginal sites or objects that may be affected by those operations.

The new definition of 'environment' includes:

(a) land, air, water (including both surface and underground water and sea water), organisms, ecosystems, native fauna and other features or elements of the natural environment; and
(b) buildings, structures and other forms of infrastructure, and cultural artefacts; and
(c) existing or permissible land use; and
(d) public health, safety or amenity; and
(e) the geological heritage values of an area; and
(f) the aesthetic or cultural values of an area.

In relation to a particular mining tenement, paragraphs (c) and (e) apply according to the circumstances existing at the time that the tenement is (or was) granted.

This definition does not apply to or in relation to Parts 9B or 11B of the Act.

Programs for environment protection and rehabilitation (PEPRs)

The holder of a mining lease, retention lease or miscellaneous purposes licence cannot carry out mining operations unless they have an approved program for environment protection and rehabilitation (PEPR).

A PEPR must set out:

• The proposed mining operations
• The environmental outcomes
• The criteria to measure those environmental outcomes
• The ability of the holder to achieve the environmental outcomes
• Any information required by licence conditions or by the regulations

PEPRs will be publically available (commercial information will remain confidential).

On application a PEPR may relate to more than one mining lease.

All existing mining and rehabilitation plans (MARPs) shall be deemed to be PEPRs upon commencement of the new laws.

Common regulations

New common regulations which shall apply to all leases or licences include:

• Upon request the lessee/licensee must provide information on their capability and competence to comply with the Act, lease/licence conditions and the PEPR.
• The lessee/licensee must prepare an annual compliance report in accordance with the regulations.
• The lessee/licensee must maintain public liability insurance.

Compliance and enforcement

Compliance and enforcement

Authorised officer

The Minister may appoint a Public Service employee to be an authorised officer.  The appointments may be conditional or with limitations.  An Authorised Officer will be issued with an identity card which must be produced on request.  An authorised officer has the power to undertake an authorised investigation.

Authorised investigation

The purpose of an authorised investigation is to gather information for:

• A suspected offence against the Act
• Personal injury or loss of property related to mining operations
• Actual/potential environmental impact
• The administration or enforcement of the Act and to monitor compliance with the Act

Powers of entry and inspection

When carrying out an authorised investigation an authorised officer may:

• Enter land, inspect land and any operations or activities conducted on the land
• Examine anything on the land
• Take photographs, films or videos
• Carry out tests on mines, facilities and equipment
• Take and remove samples
• Take and remove anything that may be evidence of non-compliance with the Act

Production of records 

An authorised officer may require a person to produce records for inspection or answer any questions regarding the records, relevant to an investigation.

Directions to prevent or minimise environmental damage

Where mining operations are being conducted in a way which is likely to result in undue damage to the environment or a breach of environmental outcomes under a program for environment protection and rehabilitation (PEPR) the Minister or an authorised officer may by written notice give an environmental direction (effective immediately).

An environmental direction may include:

• Discontinuance of mining operations – indefinitely or for a specified time
• Undertake a specified action, tests or monitoring
• Undertake rehabilitation or restore any land
• Furnish the Minister with results or reports

There is a $250,000 penalty for non-compliance.

A person required to comply with an environmental direction may appeal to the Environment, Resources and Development (ERD) court (external site) for a review of the direction within 28 days.

Power to direct rehabilitation

The Minister may, by written notice given to any person undertaking mining operations, issue a rehabilitation direction. 

A rehabilitation direction may include:

• The rehabilitation of land in accordance with a PEPR
• The rehabilitation of land to a standard required to meet licence conditions
• The direction must allow reasonable time for compliance and may require the removal of abandoned equipment and facilities

There is a maximum penalty of $250,000 for non-compliance.

A person required to comply with an environmental direction may appeal to the Environment, Resources and Development (ERD) court (external site) for a review of the direction within 28 days.

Compliance directions

The Minister may by written notice issue a compliance direction for the purpose of:

• Securing compliance with a provision of the Act, licence conditions or any authorisation relating to the licence
• Preventing operations which are contrary to the Act or licence
• Rehabilitating land where there is no authority under the Act to undertake mining operations (illegal mining)

There is a maximum penalty of $250,000 for non-compliance.

A person required to comply with an environmental direction may appeal to the Environment, Resources and Development (ERD) court (external site) for a review of the direction within 28 days.

General amendments

Size of mineral claims, miscellaneous purposes licences

Upon application the Minister may approve the registration of a mineral claim or miscellaneous purposes licence greater than 250 hectares.

Pegging of mineral claims

Upon application the Mining Registrar may approve the identification of a claim in some other manner other than placing posts in the ground.

Landowner related rights and obligations

Exempt land

Pursuant to the Mining Act, certain land is exempt from mining operations, unless the person who has the benefit of the exemption waives that right.

Where a mining operator has entered into an agreement with a person to waive the benefit of exempt land, the person who has the benefit of the exemption shall have a cooling-off right.

The person's cooling-off right shall commence form the date of signing of the agreement and concluding at the end of the fifth clear business day after the date the agreement was signed.

If the person who has the benefit of the exemption decides to rescind their agreement, they must give written notice to the mining operator prior to the expiry of the cooling-off period.

A mining operator is liable to pay reasonable costs for the person to obtain legal assistance relating to a waiver of exemption negotiation. Costs are limited to a maximum of $500.

The relevant court for any legal proceedings relating to exempt land is the Environment, Resources and Development (ERD) court (external site).

Waiver of exemption form (.pdf 285kb)

Notice of entry

A Notice of Entry served on a landowner must include information relating to: company details; a detailed work program; timing and location of mining operations; rights of compensation and rights of objection.

If land is subject to a licence under the Petroleum and Geothermal Energy Act 2000 (external site) a Notice of Entry must be served on the holder of that licence.

The relevant court for any legal proceedings relating to a Notice of Entry is either the Warden’s Court (external site) or Environment, Resources and Development (ERD) Court (external site) or Supreme Court (external site).

Notice of entry on land form (.pdf 309kb)

Declared equipment

The definition of declared equipment now includes drilling equipment. 

A Notice of Use of Declared Equipment must be served on the landowner at least 21 days prior to using declared equipment. 

If land is subject to a licence under the Petroleum and Geothermal Energy Act 2000 (external site) a Notice of Use of Declared Equipment must be served on the holder of that licence.

A Notice of Use of Declared Equipment is not required for a mining lease.

The relevant court for any legal proceedings relating to Notice of Use of Declared Equipment is the Warden’s Court (external site).

Notice of use of declared equipment form (.pdf 206kb)

Compensation

Compensation payable to a landowner may include an additional component to cover costs, reasonably incurred by a landowner, in connection with any negotiation or dispute relating to a mining operator gaining access to their land.

Acquisition of land

If the activities of a mining operator on land substantially impair the owner’s use and enjoyment of the land, the owner may apply to the Land and Valuation Division of the Supreme Court for an order to transfer their land to the holder of the mining lease or miscellaneous purposes licence.

The purchase price will be an amount equivalent to market value of the land and a further amount the Court considers just, by way of compensation for disturbance.

The new section in the Act relating to acquisition of land will not apply to exploration licences.

Further information and resources

• New mining laws - Guide for miners
• New mining laws - Guide for explorers  
• Information, guidelines and determinations - guidelines and information sheets have been updated or are in revision and will be made available as soon as possible.
• For more information - phone +61 8 8463 3000