MINING ACT 1978 - SECT 105
MINING ACT 1978 - SECT 105
105 . Marking out of mining tenement
(1) Except as provided
in subsection (2), before an application for a mining tenement other than an
exploration licence, a retention licence or a miscellaneous licence is made,
the land in relation to which the mining tenement is sought shall be marked
out in the prescribed manner and in the prescribed shape, and for the purpose
of any claim for compensation for loss or damage suffered or likely to be
suffered resulting or arising therefrom under section 123, or for an order
under section 124(2), the activities involved in the marking out shall be
taken to be activities relating to prospecting and, as such, to constitute
mining.
(2) The holder of a
prospecting licence, exploration licence or retention licence may make an
application for the grant of a mining lease or general purpose lease in
respect of any part of the land the subject of the licence without first
marking out the land in relation to which the lease is sought if the holder
includes with the application —
(a) a
statement of the grounds of the application; and
(b)
evidence supporting the statement.
(3) The statement must
specify that, in the opinion of the holder of the licence, it is not possible
for the land in relation to which the lease is sought to be accessed by or on
behalf of the holder for the purpose of marking out as a result of 1 or more
of the following —
(a) any
law;
(b) any
order of a court, tribunal or person acting judicially;
(c) an
act or omission of —
(i)
a department of the Public Service; or
(ii)
a State agency or instrumentality; or
(iii)
a local government, regional local government or regional
subsidiary; or
(iv)
a body, whether incorporated or not, or the holder of an
office, post or position, that is established or continued for a public
purpose under a written law; or
(v)
a brigade as defined in the Fire Brigades Act 1942
section 4(1);
(d) any
disaster or emergency, including a disaster or emergency caused by —
(i)
fire, storm, flood, lightning, landslide or earthquake;
or
(ii)
the holder or any other person;
(e) any
revolution, insurrection, riot or other civil disturbance;
(f) any
vandalism, sabotage or other form of malicious damage of property;
(g) any
war (whether declared or undeclared) or military operation;
(h) any
strike, lock-out or other industrial dispute;
(i)
any other circumstance beyond the control of the holder
of the licence.
(4) If the holder of
the licence makes an application in reliance on subsection (2), the holder
must —
(a) mark
out the land in relation to which the lease is sought in the prescribed manner
and in the prescribed shape —
(i)
as soon as practicable after it becomes possible for the
land to be accessed; or
(ii)
if the mining registrar is not satisfied that the
evidence provided under subsection (2)(b) demonstrates that it is not possible
for the land to be accessed and specifies, in writing, a day by which the land
must be marked out — by the end of the specified day; or
(iii)
if the mining registrar is satisfied that it has become
possible for the land to be accessed and specifies, in writing, a day by which
the land must be marked out — by the end of the specified day;
and
(b) as
soon as practicable after the land is marked out, provide the mining registrar
with evidence that the land has been marked out.
(5) The activities
involved in marking out under subsection (4)(a) are taken to be activities
relating to prospecting and to constitute mining for the purpose of any claim
under section 123 for compensation for loss or damage suffered, or likely to
be suffered, resulting or arising from marking out —
(a)
under subsection (4)(a); or
(b) for
the purposes of an order under section 124(2).
[Section 105 amended: No. 100 of 1985 s. 79; No.
105 of 1986 s. 16; No. 22 of 1990 s. 33; No. 37 of 1993 s. 10(2) and 16; No.
51 of 2012 s. 32; No. 39 of 2022 s. 15.]