MINING ACT 1992 - SCHEDULE 1B
MINING ACT 1992 - SCHEDULE 1B
SCHEDULE 1B – Further provisions relating to authorisations generally
Part 1 - Preliminary
1 Meaning of "relevant decision-maker"
In this
Schedule--
"relevant decision-maker" , in relation to a decision concerning an
authorisation made under a provision of this Act, means the person who makes
that decision for the purposes of that provision.
2 Application of Schedule
(1) This Schedule applies to and in respect of applications and tenders for, and decisions made by the relevant decision-maker in relation to, the following--(a) the grant of an authorisation (including the grant of an authorisation to a tenderer),(b) the renewal of an authorisation,(c) the approval of the transfer of an authorisation,(d) the imposition or suspension of conditions on an authorisation,(e) the variation of an authorisation, including the variation of conditions of an authorisation,(f) the suspension of operations under an authorisation under clause 7A, but not a direction to suspend operations under an authorisation or suspend an activity approval relating to the operations under section 240AA.
(2) This Schedule does not apply to environmental assessment permits under section 252.
Part 2 - Considering applications
3 Protection of the environment must be taken into account in considering applications
(1) The relevant decision-maker must take into account the need to conserve and protect the environment in or on the land over which the authorisation is sought (or, in the case of a variation, to which it applies) in considering an application to which this Schedule applies.
(2) The relevant decision-maker may cause such studies (including environmental impact studies) to be carried out as the relevant decision-maker considers necessary to assist in making a decision on the application.
(3) If public money is spent under subclause (2) in having studies carried out or engaging persons to provide advice, the relevant decision-maker may, by written notice, require the applicant concerned to reimburse the Government, within the time specified in the notice, for the money, or any part of the money, reasonably incurred.
(4) The relevant decision-maker may recover from the applicant any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.
4 Other matters that may be taken into account in considering applications
Without limiting the generality of any other provision of this Act, the relevant decision-maker may take into account any one or more of the following when considering an application to which this Schedule applies--(a) whether, in the opinion of the relevant decision-maker, the applicant meets the minimum standards, made public by the relevant decision-maker, required to be met with respect to the technical and financial capability to carry out the proposed work program,(b) if the application relates to a transfer--whether, in the opinion of the relevant decision-maker, the transferee meets the minimum standards, made public by the relevant decision-maker, required to be met with respect to the technical and financial capability to carry out the proposed work program,(c) if the applicant is a natural person--the compliance history of the applicant,(d) if the applicant is a body corporate--the compliance history of any director of the body corporate or of any related body corporate,(e) if the application relates to a transfer and the proposed transferee is a natural person--the compliance history of the proposed transferee,(f) if the application relates to a transfer and the proposed transferee is a body corporate--the compliance history of any director of that body corporate,(g) whether, in the opinion of the relevant decision-maker, the work program proposed to be carried out by the applicant meets the minimum standards, made public by the relevant decision-maker, required to be met with respect to work programs for an authorisation of the kind concerned.
5 Relevant decision-maker may require further information
(1) The relevant decision-maker may require a person who makes an application to which this Schedule applies to furnish further information in connection with the application, including (if the applicant is a body corporate) information as to the extent to which the controlling power in the body corporate's affairs is held by--(a) a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, or(b) a company registered under that Act that is taken for the purposes of that Act to be registered in a State or Territory other than New South Wales, or(c) a natural person who is a resident of a foreign country.
(2) The application may be refused if the applicant does not furnish that further information within the period specified by the relevant decision-maker by written notice when the request for further information is made.
(3) In this clause, in relation to an application to approve the transfer of an authorisation, a reference to a person who makes an application to which this Schedule applies or to an applicant includes a reference to the proposed transferee concerned.
6 Grounds for refusal of applications
Without limiting the generality of any other provision of this Act, the relevant decision-maker may refuse an application to which this Schedule applies on any one or more of the following grounds--
(a) the relevant decision-maker considers that the applicant (or if the application relates to a transfer, the transferee) has an unsatisfactory compliance history,
(b) the relevant decision-maker considers that the applicant (or if the application relates to a transfer, the transferee) does not meet the applicable minimum standards with respect to work programs and the technical and financial capability to carry out the proposed work program,
(c) the applicant has not paid any fee payable in connection with the application,
(d) the applicant has failed to lodge any information required to accompany the application within 10 business days after the application is lodged (other than a written consent referred to in section 13 (5) (e1)),
(d1) the applicant has failed to lodge a written consent with the application (as referred to in section 13 (5) (e1)),
(e) in the case of an application relating to a mineral claim or opal prospecting licence--that the applicant has failed to pay any levy required under section 292SA in relation to the claim or licence.
Part 3 - Conditions of authorisations
7 Conditions of authorisations
(1) An authorisation is subject to--(a) any condition imposed by the relevant decision-maker under this Schedule (including any variation of such a condition), and(b) any condition imposed by or under section 246P or 261B, and(b1) in the case of a mining lease--the conditions referred to in clauses 7A and 7B, and(c) in the case of a mineral claim--the conditions referred to in clause 8, and(d) in the case of an opal prospecting licence--the conditions referred to in clause 9, and(e) any condition prescribed by the regulations.
(2) Without limiting the generality of subclause (1), conditions imposed by the relevant decision-maker or prescribed by the regulations may include conditions relating to the following--(a) the development and conduct of mining operations,(b) environmental management, protection and rehabilitation, including requiring the holder of the authorisation to--(i) carry out activities or not to carry out activities in order to protect, prevent, control or mitigate harm to the environment, and(ii) rehabilitate land or water that is or may be affected by activities under the authorisation,(c) compliance with codes of practice or sets of standards published by any person or body,(d) ensuring the safety of the public in relation to prospecting and mining operations,(e) the administration of authorisations,(f) community relations,(g) requiring the holder to provide the Minister with reports detailing any non-compliance with the conditions of the authorisation, or any requirements of this Act or the regulations relating to activities under the authorisation, and any action taken, or to be taken, to prevent any recurrence, or to mitigate the effects of that non-compliance.
(3) Any obligation imposed on the holder of an authorisation in relation to environmental management, protection and rehabilitation--(a) continues to have effect despite the cancellation of the authorisation or it ceasing to have effect, and(b) can be imposed despite anything to the contrary in section 4.50 of the Environmental Planning and Assessment Act 1979 .
(4) Unless an exemption from conditions imposed by regulations applies, in the event of an inconsistency between conditions imposed by the relevant decision-maker and those imposed by regulations, the conditions imposed by the regulations prevail to the extent of any inconsistency.
7A Additional conditions of mining leases
(1) A mining lease is subject to a condition that the holder of the lease may suspend mining operations in the mining area only if the operations are suspended in accordance with the written consent of the decision-maker.
(2) However, a mining lease that is granted in relation to an ancillary mining activity or activities only is not subject to such a condition.
(3) A mining lease granted on the basis of a tender lodged under section 53 is taken to include a condition in the terms specified in the tender for the purposes of section 53 (3).
(4) The conditions referred to in this clause apply in addition to the conditions referred to in clause 7.
7B Conditions of mining leases relating to ancillary mining activities
(1) Without limiting clause 7 (1) and (2), a condition imposed by the relevant decision-maker or prescribed by the regulations under that clause in the case of a mining lease may regulate the carrying out of one or more ancillary mining activities.Note : Section 65 (2) provides that nothing in this Act permits an activity, for which development consent is required, to be carried out without the consent being obtained in accordance with the Environmental Planning and Assessment Act 1979 .
(2) Without limiting subclause (1), a condition of a mining lease that regulates the carrying out of an ancillary mining activity may require any one or more of the following--(a) that the ancillary mining activity be carried out in a specified manner in order to protect or prevent, control or mitigate harm to the environment,(b) that, in specified circumstances, the ancillary mining activity not be carried out in order to protect or prevent, control or mitigate harm to the environment,(c) that the holder of the mining lease rehabilitate land or water that is or may be affected by the carrying out of the ancillary mining activity,(d) that the holder of the mining lease provide the Minister with reports detailing any non-compliance with the conditions of the mining lease, or any requirements of this Act or the regulations relating to activities under the authorisation, and any action taken, or to be taken, to prevent any recurrence, or to mitigate the effects of that non-compliance,(e) that the holder of the mining lease provide reports regarding the carrying out of the ancillary mining activity (including compliance with conditions of the mining lease regarding the ancillary mining activity).
(3) A condition may regulate the carrying out of an ancillary mining activity on land that is not within the mining area that is the subject of the mining lease only if--(a) the mining lease is a mining lease in respect of a mineral or minerals, and(b) the ancillary mining activity is to be carried out in the vicinity of and to directly facilitate the mining lease concerned.
(4) Nothing in a condition referred to in subclause (3) authorises the carrying out of an ancillary mining activity (or the exercise of any power or right in connection with an ancillary mining activity) that is not authorised to be carried out (or exercised) under another Act or law.
(5) However, a reference to the following--(a) an exercise of rights conferred by a lease in section 265 (Compensation arising under mining lease),(b) an exercise of a right or power in section 383C (General immunity of landholders),includes a reference to the carrying out of the following activities--(c) an activity required by a condition referred to in subclause (3), but not the carrying out of the ancillary mining activity itself,(d) an activity consisting of the environmental management, protection or rehabilitation of land on which an ancillary mining activity is being or has been carried out in accordance with a condition referred to in subclause (3).
(6) A decision-maker, in deciding whether to impose a condition relating to an ancillary mining activity, is to have regard to guidelines issued (and made publicly available) by the Secretary for the purposes of this clause.
(7) A reference in this Act or the regulations to the carrying out of an activity under an authorisation (however expressed) is taken to include a reference to the carrying out of an ancillary mining activity that is regulated by a condition of a mining lease as referred to in this clause.
(8) For the avoidance of doubt, section 62 (Dwelling-houses, gardens and significant improvements) applies to the imposition of a condition referred to in this clause in the same way that it applies to the grant of a mining lease.
8 Additional conditions of mineral claims
(1) In addition to the conditions referred to in clause 7, a mineral claim is subject to--(a) any special conditions that apply to the land, and(b) the conditions imposed on the holder of the claim under section 211 as to his or her exercise of any right of way under that section in respect of the claim area, and(c) the conditions to which the holder of the claim is subject pursuant to any registered access management plan in force in respect of that land, and(d) any other conditions (not inconsistent with any other condition referred to in this subclause) that the Secretary imposes when the claim is granted, or at any other time under a power conferred by this Act.
(2) Without limiting the generality of subclause (1), a condition may be imposed on a mineral claim requiring the holder of the claim to pay royalty to the Crown on any minerals recovered under the claim.
9 Additional conditions of opal prospecting licence
In addition to the conditions referred to in clause 7, an opal prospecting licence is subject to--
(a) any special conditions that apply, pursuant to section 223A, to the opal prospecting block over which the licence is granted, and
(b) the conditions imposed on the holder of the licence, pursuant to section 235C, as to his or her exercise of any right of way under that section in respect of the opal prospecting block over which the licence is granted, and
(b1) the conditions to which the holder of the licence is subject under a registered access management plan in force for the opal prospecting block over which the licence is granted, and
(c) any other conditions (not inconsistent with any other condition referred to in this section) that the Secretary imposes when the licence is granted, or at any other time under a power conferred by this Act.
10 Conditions imposed on authorisations by relevant decision-maker
(1) The relevant decision-maker may impose conditions on an authorisation--(a) at the time of the grant of the authorisation, or(b) at any later time, as permitted by this Schedule.
(2) A condition imposed by the relevant decision-maker takes effect as follows--(a) if the condition is imposed on the grant of an authorisation--when the grant takes effect,(b) if the condition is imposed on the renewal of an authorisation--when the renewal takes effect,(c) if the condition is imposed when a full or partial transfer of an authorisation is approved under this Act--when the transfer is registered under this Act,(d) if the condition is a variation under clause 12--as provided by clause 12 (7),(e) in any other case--when written notice of the imposition of the condition is served on the holder of the authorisation or at a later time specified in the notice.
11 Exemption from conditions imposed by regulations
(1) The relevant decision-maker may, by order published in the Gazette, exempt the holder of an authorisation from compliance with a condition imposed by the regulations.
(2) An exemption may be granted subject to conditions.
(3) An exemption may--(a) apply generally or be limited in its application by reference to specified exceptions or factors, and(b) apply differently according to different factors of a specified kind, and(c) be granted for a specified period or for an indefinite period, and(d) if granted for a specified period--be granted before, during or after that period.
(4) The relevant decision-maker may vary or revoke an exemption (including by imposing, varying or revoking a condition of the exemption) at any time by notice in writing to the holder of the authorisation.
(5) The regulations may make provision for or with respect to exemptions.
Part 4 - Variation of authorisations and variation or suspension of their conditions
12 Variation of authorisations by relevant decision-maker
(1) The relevant decision-maker may vary an authorisation (including the conditions of an authorisation).
(2) A variation of an authorisation may include--(a) the attaching of a condition to an authorisation (whether or not any conditions have already been attached), or(b) the substitution of a condition, or(c) the omission of a condition, or(d) the amendment of a condition, or(e) the variation of the instrument by which an authorisation is granted, including so as to--(i) update the instrument, or(ii) correct a minor error or misdescription, or(iii) consolidate variations made to the authorisation.
(3) An authorisation may be varied on application by the holder of the authorisation or on the initiative of the relevant decision-maker.
(4) An authorisation may be varied at any time during its currency, including on its being transferred to another person.
(5) Except in the case of the renewal or transfer of an authorisation, the decision-maker is not to vary a prescribed condition subsequent to the grant of the authorisation unless the decision-maker--(a) has given the holder of the authorisation notice of the draft variation, and(b) has, at the time notice is given to the holder of the authorisation under paragraph (a), invited the making of submissions to the decision-maker about the proposed variation and specified a deadline for the making of those submissions that is at least 28 days after the notice is given, and(c) has either received such submissions and has taken them into consideration or has not received any such submission after the deadline has elapsed.
(6) An authorisation is varied by notice in writing given to the holder of the authorisation.
(7) The variation of a condition by the relevant decision-maker takes effect as follows--(a) if the condition is varied on the renewal of an authorisation--when the renewal takes effect,(b) if the condition is varied when a full or partial transfer of an authorisation is approved under this Act--when the transfer is registered under this Act,(c) if a prescribed condition is varied other than at the renewal of an authorisation or when a full or partial transfer of an authorisation is approved under this Act--28 days after written notice of the variation of the condition is served on the holder of the authorisation or at a later time specified in the notice,(d) in any other case--when written notice of the variation of the condition is served on the holder of the authorisation or at a later time specified in the notice.
(7A) The variation of an authorisation (other than a variation of a condition of an authorisation) by the relevant decision-maker takes effect when written notice of the variation is served on the holder of the authorisation or at a later time specified in the notice.
(8) In this clause--
"prescribed condition" means a condition that is not--(a) imposed on the application of the holder of the authorisation, or(b) imposed under section 246P or 261B.
(9) This clause does not apply to a condition that is prescribed by the regulations.
13 Variation of conditions imposed by the regulations
(1) Before a regulation is made that varies any condition of an authorisation imposed by the regulations, the Minister is required to ensure that--(a) a notice is published in a way specified by the regulations--(i) stating the objects of the proposed regulation, and(ii) advising where a copy of the regulation may be obtained or inspected, and(iii) inviting comments and submissions within a specified time, but not less than 28 days from publication of the notice, and(b) all the comments and submissions received within the time specified in the notice are considered.
(2) For the purposes of this clause, a regulation varies a condition of an authorisation if the regulation--(a) imposes a new condition (whether or not any conditions have already been imposed), or(b) substitutes a condition imposed by the regulations, or(c) omits a condition imposed by the regulations, or(d) amends a condition imposed by the regulations.
14 Suspension of conditions of authorisations
(1) The relevant decision-maker may (whether on the application of the holder of the authorisation or on the initiative of the relevant decision-maker) suspend any of the conditions of an authorisation (other than a mineral claim) for such period, or until the happening of such event, as the relevant decision-maker may determine.
(2) The Secretary may (whether on the application of the holder of the claim or otherwise) suspend any of the conditions of a mineral claim (other than conditions of the kind referred to in section 175 (4)) for such period, or until the happening of such event, as the Secretary may determine.
(3) A condition of a mineral claim that is suspended on the application of the holder may not be suspended for more than 3 months at a time.
(4) The suspension of conditions of an authorisation may be granted unconditionally or subject to such conditions as the relevant decision-maker may consider appropriate.
(5) The suspension of the conditions of an authorisation takes effect on the date on which written notice of the suspension is served on the holder of the authorisation or on such later date as may be specified in the notice.
(6) An application for suspension of the conditions of an authorisation may be withdrawn by means of a notice of withdrawal signed by the applicant and lodged with the relevant decision-maker.
(7) The application ceases to have effect when the notice is lodged.
(8) The withdrawal of an application under this clause is irrevocable.
(9) The relevant decision-maker may vary the suspension of the conditions of an authorisation (including the conditions to which the suspension is subject).
(10) A variation includes the attaching of a condition to the suspension, the substitution of a condition, the omission of a condition or the amendment of a condition.
(11) A suspension of the conditions of an authorisation is varied by notice in writing given to the holder of the authorisation.
(12) The suspension of any condition of an authorisation under this clause does not prevent any action being taken under this Act in respect of the authorisation (including variation under clause 12).
(13) This clause does not apply to a condition that is prescribed by the regulations.