MINING TENEMENTS ON PRIVATE LAND
With a few exceptions, the minerals on or in most privately owned land belongs to the Crown.
Minerals are deposits other than limestone, rock, gravel, shale, sand and clay. Before ground disturbing exploration activities can be undertaken on private land, a mining tenement must be granted by the Minister for Mines and Petroleum.
The Mining Act 1978 (“the Act”) is the relevant act in relation to mining, and in particular, on private land.
The Warden’s Court is constituted under the Act and deals with issues and disputes concerning the Act including any objections to applications for a mining tenement by the owner, occupier or mortgagee of private land (“Owner”).
Entry on to Private Land
The Act provides that no person other than the Owner entitled to the occupation of the land may search for minerals on private land without a permit to enter.
- A permit requires the provision of a map together with a fee. Generally a permit will not exceed 30 days and only authorises the holder or agent to enter the land, search for minerals, take samples of up to 13 kilograms and mark out a mining tenement but not mine or otherwise disturb the surface.
What is a mining tenement?
- A prospecting licence, special prospecting licence for gold, exploration licence, retention licence, mining lease, general purpose lease and miscellaneous licences are all mining tenements.
- Each of these has a special or unique set of requirements, process and reporting requirements for their initial grant, their retention and for progression to the next stage.
Owner Occupier Consent
The Act provides that the consent of the Owner of the land must be obtained for a mining tenement of the natural surface (and to within a depth of 30 metres) in respect of land which is in bona fide and regular use as a yard, stockyard, garden, orchid, vineyard, plant nursery or plantation; under cultivation, including cropping, pasturing, whether cleared or uncleared, used for grazing livestock in the ordinary course of management of the land; the site of a cemetery, burial ground or reservoir; land on which there is erected a substantial improvement (in the opinion of the Warden); within 100 metres of any private land referred to; a separate parcel of land having an area of 2,000 square metres or less.
Objections
As an Owner you may object to any application for a mining tenement and the Warden is obliged to hear your objection. Depending on the timeliness and grounds of your objection the Warden may allow or disallow the objection.
Where no consent is obtained, a mining tenement can only be granted in respect of the land below 30 metres from the natural surface.
Compensation
The holder of a mining tenement may not commence any mining on the surface or to a depth of 30 metres unless and until compensation as required under the Act has been made or an agreement as to the amount, time and mode of compensation has been made.
Compensation includes compensation for being deprived of possession and use of the surface or any part of the surface of private land and for damage to the surface or any improvements on it that may arise from the exercise of the rights of the mining tenement. The compensation will not include the value of any known minerals.
The amount of compensation is determined either by the agreement between the mining tenement holder and the Owner or, in the absence of such agreement, an amount determined by the Warden’s Court. Compensation may also extend to adjoining land which is affected or depreciated in value by the mining operations.
Take Home Message
If you receive a notice of a permit or applications relating to land you own and/or occupy you should obtain legal advice from WA Property Lawyers immediately to ensure that time limits do not expire and that legal requirements are being fulfilled and your rights as the private land owner are recognised.