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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Mining (Protection of Exempt Land From Mining Operations)
Amendment Bill 2014
A BILL FOR
An Act to amend the Mining
Act 1971.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Mining
Act 1971
4Amendment of section
6—Interpretation
5Repeal of sections 9 and 9AA
6Insertion
of Part 2A
Part 2A—Exempt
land
15BInterpretation
15CExempt
land
15DWaiver of
exemption
15ECooling-off
15FNotice of objection by
interested parties and others
15GEffect of notice of
objection
15HApplication to ERD
Court
15IRelated
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Mining (Protection of Exempt Land From
Mining Operations) Amendment Act 2014.
This Act will come into operation 3 months after the day on which it
is assented to by the Governor.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Mining Act 1971
4—Amendment
of section 6—Interpretation
Section 6, definition of exempt land—delete
"section 9" and substitute:
section 15C
5—Repeal
of sections 9 and 9AA
Sections 9 and 9AA—delete the sections
After Part 2 insert:
Part 2A—Exempt land
15B—Interpretation
(1) In this Part—
business day means a day other than a Saturday or a Sunday or
other public holiday;
cooling-off period, in relation to an agreement with a mining
operator to waive the benefit of an exemption, means the period commencing when
the agreement is made and concluding at the end of the fifth clear business day
after the day on which the agreement is made;
mining operations include any operations or activity for
which a miscellaneous purposes licence may be granted.
(2) For the purposes of this Part, land is adjacent to other land if the
land—
(a) abuts the other land; or
(b) is no more than 60 metres from the other land and is directly
separated from the other land only by—
(i) a road, street, path, railway or thoroughfare; or
(ii) a watercourse; or
(iii) a reserve or other similar open space.
15C—Exempt land
(a) land that is lawfully and genuinely used—
(i) as a yard, garden, cultivated field, plantation, orchard or
vineyard;
(ii) as an airfield, railway or tramway;
(iii) as the grounds of a church, chapel, school, hospital or institution;
or
(b) land that constitutes any parklands or recreation grounds under the
control of a council; or
(c) land—
(i) that is dedicated or reserved, pursuant to statute, for the purpose of
waterworks; or
(ii) that is vested in a Minister for the purpose of waterworks;
or
(iii) that is comprised within an easement in favour of a Minister for
infrastructure purposes; or
(d) land that constitutes a forest reserve under the Forestry
Act 1950; or
(e) any separate parcel of land of less than 2 000 square
metres within any city, town or township; or
(i) within 400 metres of a building or structure used as a place of
residence (except a building or structure of a class excluded by regulation from
the ambit of this paragraph); or
(ii) within 150 metres of—
(A) a building or structure, with a value of $200 or more, used for
an industrial or commercial purpose; or
(B) a spring, well, reservoir or dam,
(but not if it is an improvement made for the purposes of mining
operations),
is exempt from mining operations under this Act and, unless the benefit of
the exemption is waived under this Part, no claim, lease or licence may
authorise prospecting, exploring or mining on such land (but this section does
not prevent the pegging out of a claim on such land).
(2) If any land is subject to a claim, lease or licence under this Act and
that land would, but for this subsection, be land exempt from mining operations
under this Act by reason only of a fact or circumstance occurring or arising
subsequent to the pegging out, or granting, of the claim, lease or licence, that
land is not exempt from operations under this Act.
(3) The following persons will, for the purposes of this Act, be regarded
as having the benefit of an exemption under this section (and, subject to an
order of the ERD Court under this Part, each person who has the benefit of
an exemption must be a party to an agreement to waive the benefit before the
land can cease to be exempt land):
(a) the owner of the exempt land;
(b) in the case of land that is exempt from mining operations under
subsection (1)(f)
by reason of its proximity to other land on which a building, structure, spring,
well, reservoir or dam is situated—the owner of that other land.
(4) This section does not affect any provision of the Pastoral
Land Management and Conservation Act 1989 prohibiting or
restricting the conduct of mining operations on lands subject to that
Act.
15D—Waiver of exemption
(1) A mining
operator may, by written notice given personally or by post to a person who has
the benefit of an exemption under
section 15C, request
the person to enter into an agreement with the operator to waive the benefit of
the exemption.
(2) A notice under
subsection (1)
must—
(a) be in a form determined or approved by the Minister; and
(b) be accompanied by any information prescribed by the regulations for
the purposes of this subsection.
(3) An agreement to waive the benefit of an exemption—
(a) must be in writing; and
(b) takes effect on the expiry of the cooling-off period (unless earlier
rescinded) and subject to the operation of
section 15F.
(4) A mining operator is liable to indemnify a person to whom the operator
gives a notice under this section for the reasonable costs of obtaining legal
assistance relating to the operation of this Part up to $500 or, if some
other amount is prescribed by regulation, that amount.
15E—Cooling-off
(1) A person who has entered into an agreement with a mining operator to
waive the benefit of an exemption may, by giving the operator written notice
before the expiration of the cooling-off period of the person's intention not to
be bound by the agreement, rescind the agreement.
(2) A notice rescinding an agreement may be given—
(a) by giving it to the mining operator personally; or
(b) by posting it by registered post to the operator's ordinary place of
business (in which case the notice is taken to have been given when the notice
is posted); or
(c) by leaving it for the operator at the operator's ordinary place of
business with someone apparently over the age of 16 years; or
(d) by transmitting it by fax or email to a fax number or email address
provided by the operator (in which case the notice is taken to have been given
at the time of transmission).
(3) If in legal proceedings the question arises whether a notice
rescinding an agreement has been given in accordance with this section, the onus
of proving the giving of the notice lies on the person rescinding the
agreement.
15F—Notice of objection by interested parties and
others
(1) A person may, in accordance with this section, lodge with the
ERD Court a notice of objection to a proposed agreement between a mining
operator and the person who has the benefit of an exemption under
section 15C to waive
the benefit of the exemption.
(2) If a mining
operator has requested a person who has the benefit of an exemption under
section 15C to enter
into an agreement with the operator to waive the benefit of the exemption, the
operator must, before entering into the agreement—
(a) by written notice
given personally or by post to each person who is an interested party in
relation to the exemption—
(i) notify the person of the proposed agreement; and
(ii) advise the person of his or her right to lodge a notice of objection
to the agreement; and
(b) publish notice
of the proposed agreement in a newspaper circulating generally throughout the
area of the State in which the relevant land is situated and include in the
notice advice as to the right of any person to lodge a notice of objection to
the agreement; and
(c) by written notice given to the Department, notify the Department of
the proposed agreement.
(3) If a mining
operator has notified the Department of a proposed agreement under
subsection (2), the
Department must publish notice of the agreement on a website maintained by the
Department to which the public has access free of charge and include in the
notice the date of publication of the notice and advice as to the right of any
person to lodge a notice of objection to the agreement.
(4) A notice under
subsection (2) or
(3) must be in a form
determined or approved by the Minister.
(5) A notice of
objection must—
(a) set out the grounds of the objection; and
(b) include any other information required under the regulations;
and
(c) be in the prescribed form; and
(d) be lodged with the ERD Court not more than 2 weeks
after—
(i) if the notice is lodged by an interested party—the day on which
the party is given notice of the proposed agreement in accordance with
subsection (2)(a);
and
(ii) in any other case—the day on which notice of the proposed
agreement is published in a newspaper in accordance with
subsection (2)(b)
or the day on which the Department publishes notice of the proposed agreement on
a website in accordance with
subsection (3),
whichever occurs later.
(6) A person who has lodged a notice of objection may withdraw the notice
by lodging a withdrawal notice in the prescribed form with the
ERD Court.
(7) A person who has lodged a notice of objection or a withdrawal notice
must ensure that a copy of the notice is given to the mining operator as soon as
reasonably practicable after the notice is lodged.
(8) For the purposes of this section, a person is an interested
party in relation to an exemption under
section 15C if the
person is the owner or occupier of a piece of land that is adjacent to the land
to which the exemption applies.
15G—Effect of notice of
objection
If a person lodges a notice of objection to an agreement (or proposed
agreement) for the waiver of an exemption with the ERD Court in accordance
with
section 15F, any
agreement for the waiver of the exemption entered into between the mining
operator and the person who has the benefit of the exemption is of no effect (or
ceases to have effect) unless—
(a) the notice is withdrawn or has been struck out; or
(b) the ERD Court confirms the agreement (with or without variation)
under
section 15H.
15H—Application to ERD Court
(a) a mining operator
has been unable to reach an agreement to waive the benefit of an exemption with
a person to whom the operator has given a notice under
section 15D;
or
(b) 1 or more
notices of objection to an agreement (or proposed agreement) between a mining
operator and a person who has the benefit of an exemption have been lodged with
the ERD Court in accordance with this Part,
the mining operator may (as the case requires) apply to the ERD Court
for an order—
(c) waiving the benefit of the exemption for the person; or
(d) confirming the agreement.
(2) Subject to
subsection (4), the
person who has the benefit of the exemption and, if relevant, any person who has
filed a notice of objection in relation to the proposed agreement are
respondents to the application.
(3) The ERD Court may refuse to determine an application under
subsection (1)(a)
unless the mining operator satisfies the Court that—
(a) the mining operator complied with
section 15D(2);
and
(b) the mining operator made a reasonable attempt to reach agreement with
each person entitled to the benefit of the exemption.
(4) A respondent who is
not the person with the benefit of an exemption and is not an interested party
in relation to an exemption for the purposes of
section 15F has standing
to take part in any proceedings under
subsection (1)(b)
only if he or she satisfies the ERD Court that he or she is likely to be
adversely affected by the proposed mining operations if those operations proceed
(and if a respondent fails to obtain standing and no other respondent is
objecting to the relevant agreement then the ERD Court may strike out the
notice of objection).
(5) On an application,
the ERD Court may—
(a) if the mining
operator satisfies the Court that—
(i) any adverse effects of the proposed mining operations on the
respondents can be appropriately addressed by the imposition of conditions on
the mining operator (including the payment of compensation to the respondents);
and
(ii) it is otherwise
appropriate for the benefit of the exemption to be waived (having regard to the
matters specified in
subsection (6)),
according to the circumstances of the case—
(iii) make an order waiving the benefit of the exemption and imposing
conditions on the mining operator; or
(iv) make an order confirming the agreement (with or without variation);
or
(b) if the Court is not so satisfied—refuse the
application.
(6) For the purposes of
subsection (5)(a)(ii),
the Court must have regard to the following:
(a) the expected duration of the proposed mining operations;
(b) the likely effect of the proposed mining operations on uses of land
(including future uses) adjacent to, and in the vicinity of, the land on which
the mining operations are to occur;
(c) the possible social, environmental and economic impact of the proposed
mining operations;
(d) the extent to which rehabilitation of the land is likely to be
required on account of the impact of the proposed mining operations;
(e) the type of minerals sought to be recovered and the relative abundance
or rarity of those minerals in other parts of the State.
(7) A condition imposed by the ERD Court under
subsection (5)(a),
or any variation to an agreement made by the ERD Court under
subsection (5)(a)
(as the case requires), may address adverse effects of the proposed mining
operations on the person who has the benefit of the exemption or on another
respondent.
(8) The ERD Court may not make an order for costs against a
respondent unless the Court considers that it is appropriate to do so on the
ground that the respondent—
(a) has obstructed or unnecessarily delayed the proceedings; or
(b) has failed to attend any proceedings or failed to comply with a rule,
order or direction of the Court; or
(c) in the case of a respondent who is not the person with the benefit of
the exemption or an interested party in relation to the exemption for the
purposes of
section 15F—did not
have reasonable grounds for lodging the notice of objection.
15I—Related provisions
(1) If an agreement
or order takes effect under this Part in respect of exempt land, the land ceases
to be exempt land, but the exemption revives on completion of the mining
operations in respect of which the agreement or order was made or at such
earlier time as may be stipulated in that agreement or order.
(2) An agreement or
order under this Part is binding on—
(a) successors in title to those owners of land who had the benefit of the
former exemption; and
(b) the holders from time to time of any mining tenement under which
mining operations (being mining operations in respect of which the agreement or
order was made) are carried out.
(3)
Subsections (1)
and
(2) apply to an
agreement to waive an exemption under section 9 or 9AA entered into
before the commencement of this Part as if it were an agreement to waive the
benefit of an exemption under this Part.