Regulatory guidelines, information sheets and determinations
As part of the amendment process all forms under the Act have been updated.
As of 1 July 2011, any forms lodged or served under the Mining Act must be in the form determined by the Minister for Mineral Resources Development (the Minister) in the South Australian Government Gazette on 30 June 2011 (from page 2781).
The provision within the Act requiring forms to be signed under a company seal has been removed.
Forms are available from the Forms page on this website.
The definition of mining operator has been amended to:
‘mining operator means the holder of the relevant mining tenement’.
The definition of mining tenement is:
‘mining tenement’ means a claim, lease or licence under this Act’.
The mining operator holds the rights and obligations related to a mining tenement under the Mining Act. Except where otherwise stated in the Mining Act, it is the mining operator who must serve notices, lodge applications and execute agreements/documents related to the mining tenement. This includes the submission of a program for environment protection and rehabilitation (PEPR) .
Unless an agency agreement or other document evidencing a legal authority is provided, the mining operator must lodge all applications under the Mining Act (including PEPRs). It is important to note that the mining operator must be a party to agreements negotiated under the Mining Act (including mining native title agreements, Part 9B).
Approvals and determinations made under the Mining Act shall be given to the mining operator.
The provisions related to miner’s rights have been removed from the Mining Act. A miner’s right no longer confers any rights under the Mining Act.
There are new provisions related to the pegging of a claim, whereby a mining operator may apply to peg in an alternate manner by completing Form 4. This form must be completed when the mining operator is not able to meet the pegging requirements under the Mining Regulations. Authorisation to peg in an alternative manner must be received prior to applying to register a mineral claim.
The maximum area permitted to peg a mineral claim is 250 ha as stipulated in the Mining Regulations. A mineral claim may be pegged for an area exceeding 250 ha with prior approval from the Minister.
Similarly, a miscellaneous purposes licence may be pegged for greater than 250 ha with prior approval from the Minister. An application to peg a claim or miscellaneous purposes licence greater than 250 ha is to be made in writing.
As of 1 July 2011, applications for a mineral or extractive minerals lease must be accompanied by a mining lease proposal and applications for miscellaneous purposes licences must be accompanied by a management plan. Retention lease applications also require a detailed proposal to be included with the application.
In accordance with the new provisions of Part 9 of the Mining Act and the new Mining Regulations, the service of notice of entry now provides the owner of land with information on the proposed mining activity, including the location and duration of the proposed activity and how the activities on the land will be managed. The mining operator must also describe the process by which the owner of land will be kept informed regarding the proposed activity on the land.
Notice of entry is required to be served on the ‘owner of land’ as defined under the Mining Act. The owner of land includes a person who holds native title in the land. For native title land, notice of entry must be served in accordance with section 5 of the Native Title (South Australia) Act 1994:
a. Where there is a native title declaration or registered claim group in the area – to the relevant native title holders or registered native title claimants, and the registered Aboriginal representative body in South Australia (currently South Australian Native Title Services Ltd).
b. Where there is not a native title declaration or registered native title claim group in the area – to the registered Aboriginal representative body in South Australia (currently South Australian Native Title Services Ltd).
More information regarding mining operator obligations in relation to native title can be found on the Native Title Land page of this website.
There are new provisions relating to the negotiation of a waiver of exemption in order to conduct mining operations on exempt land.
The new provisions provide a two-step process by which a mining operator serves notice on the relevant owner of the exempt land and then further negotiates an agreement to conduct mining operations on exempt land. The waiver of exemption may be made by completing Forms 23a and 23b or by serving Form 23a and negotiating a written agreement signed by all parties.
There is a cooling off period of 5 business days following the execution of an agreement whereby the owner of the exempt land may, by written notice, rescind the agreement.
If the mining operator is unable to reach an agreement with the owner of the land, they may apply to the Environment, Resources and Development (ERD) Court for an order waiving the benefit of the exemption. If the mining operator has served a notice to negotiate a waiver of exemption agreement, they are liable to pay costs up to $500 (or some other amount as prescribed) to the person on which the notice was served for obtaining legal assistance related to the notice.
Under the compensation provisions of the Mining Act, compensation may now include reasonable costs incurred by the owner of land in connection with any negotiation or dispute related to access to the land, activities to be conducted on the land and any economic loss, hardship or inconvenience suffered due to the proposed mining operations.
If mining operations will substantially impair the landowner’s use and enjoyment of the land, they may apply to the Land and Valuation Division of the Supreme Court for an order to transfer the land to the holder of the mining lease or miscellaneous purposes licence. This provision does not apply to exploration licences.
Under certain sections of the Mining Act a transitional period applies. This allows mining operations to continue under the old provisions of the Mining Act for a specified amount of time, after which the amended provisions of the Mining Act will apply.
The amendments to the Mining Act have resulted in a change to the way that expired, surrendered or cancelled exploration licence (EL) areas are released to the open market. An expired, surrendered or cancelled mineral exploration licence area may be released to industry as an ‘exploration release area’ (ERA). An ERA is released for a minimum four-week moratorium period after which it is open for application from Monday to Friday immediately following the moratorium period.
Applications for an ERA can only be made during the application week, the dates for which are published on this website and in the South Australian Government Gazette. Valid applications received during the application week will be assessed via a competitive process rather than on a ‘first come, first served’ basis.
Applications over an ERA will be assessed against a predefined set of assessment criteria which are outlined in the Mineral Resources Division Minerals Regulatory Guideline MG17 – Guidelines: applying for mineral exploration release areas (ERAs) in South Australia (.pdf 1.1Mb) and also provided in the standard application Form 29ERA. If more than one application is received over an ERA, these will be assessed by the Department of State Development’s Mineral Exploration Assessment Panel on a merits basis and the successful application will progress to the standard exploration licence application process.
New provisions in the Mining Act deal with environmental protection and provide the Department of State Development with the authority to take action to prevent and/or minimise environmental harm.
The Minister or an authorised officer may, by written notice, direct that action be taken to prevent or minimise damage to the environment.
The Minister may also direct any person undertaking mining operations to undertake rehabilitation on land.
The new maximum penalty for illegal mining is $250 000 or imprisonment for two years.
The holder of a tenement must not conduct mining operations unless they hold an approved PEPR. The purpose of a PEPR is to provide adequate information regarding the proposed mining operations and rehabilitation.
During the transitional period exploration activities may still be undertaken under an approved declaration of environmental factors (DEF) or exploration work approval (EWA). After this period they must be undertaken under an approved PEPR. Guidelines for the preparation of a DEF and EWA are available:
Mining activity may be undertaken under an approved mining and rehabilitation program (MARP) submitted for approval prior to 1 July 2011. Any MARP not submitted by 1 July 2011 must now be developed and approved as a PEPR.
A generic PEPR for low impact mineral exploration in South Australia has been developed. This generic PEPR shall be adopted for all low impact exploration activities conducted under current and future exploration licences. Low impact exploration activities are defined in the generic PEPR.
Within 12 months of grant of a mining lease, the mining operator must provide the Minister with a PEPR. Once the PEPR is adopted, the mining operator must conduct mining operations in accordance with that program.
There is no longer a requirement under the Mining Regulations that a mining lease be operated for 100 hours per calendar month.
The holder of a mineral lease or a miscellaneous purposes licence associated with a mineral lease is now required to provide the Minister with a compliance report. The compliance report will be due at the end of each period as determined by the Minister. Further information will be provided to mineral lease and miscellaneous purposes licence holders once the Minister has determined the period when the compliance report is due.
The holders of any other kind of tenement may be required by the Minister to provide a compliance report at the end of a period (as determined by the Minister).
A compliance report determination for exploration compliance reporting will be published and come into effect on 1 July 2012.
In accordance with annual indexation, the fees under the Mining Regulations 2011 have been updated. A list of the current fees is available on the Mining Act Fees page of this website.
If you have any questions regarding the amendments to the Mining Act or the Mining Regulations 2011 please contact:
Department of State Development Mineral Tenements Team
Phone: +61 8 8463 3103