MINING ACT 1978 - SECT 123

MINING ACT 1978 - SECT 123

123 .         Compensation in respect of mining

        (1)         On and after the coming into operation of the Mining Amendment Act 1985 , in so far as the mineral is by virtue of section 9 the property of the Crown or the mining is authorised under this Act no compensation shall be payable in any case, and no claim lies for compensation, whether under this Act or otherwise —

            (a)         in consideration of permitting entry on to any land for mining purposes; or

            (b)         in respect of the value of any mineral which is or may be in, on or under the surface of any land; or

            (c)         by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral; or

            (d)         in relation to any loss or damage for which compensation can not be assessed according to common law principles in monetary terms.

        (2)         Subject to this section and to sections 124 and 125, the owner and occupier of any land where mining takes place are entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining, whether or not lawfully carried out in accordance with this Act, and a person mining thereon is liable to pay compensation in accordance with this Act for any such loss or damage, or likely loss or damage, resulting from any act or omission on his part or on the part of his agents, sub-contractors or employees or otherwise occasioned with his authority.

        (2a)         A reference in subsection (2) to mining shall be construed as including a reference to marking out in connection with an application for a mining tenement.

        (3)         The amount of compensation payable to the owner of private land or to an occupier of Crown land or private land may be determined by agreement, but in default of agreement —

            (a)         if the owner or occupier, respectively, and the person liable for payment of the compensation so consent, may be determined by the warden’s court, without requiring any formal proceedings to be taken, pursuant to a claim made in the prescribed manner; and

            (b)         in any other case, shall be determined by the warden’s court in formal proceedings, upon the application of the owner, the occupier or the person liable for the payment of the compensation.

        (4)         Subject to subsection (1) and subsection (7) and taking into account the matters referred to in section 124 and section 125, the amount payable under subsection (2) to which an owner or occupier may be found to be entitled may include compensation for —

            (a)         being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land; and

            (b)         damage to the land or any part of the land; and

            (c)         severance of the land or any part of the land from other land of, or used by, that person; and

            (d)         any loss or restriction of a right of way or other easement or right; and

            (e)         the loss of, or damage to, improvements; and

            (f)         social disruption; and

            (g)         in the case of private land that is land under cultivation, any substantial loss of earnings, delay, loss of time, reasonable legal or other costs of negotiation, disruption to agricultural activities, disturbance of the balance of the agricultural holding, the failure on the part of a person concerned in the mining to observe the same laws or requirements in relation to that land as regards the spread of weeds, pests, disease, fire or erosion, or as to soil conservation practices, as are observed by the owner or occupier of that land; and

            (h)         any reasonable expense properly arising from the need to reduce or control the damage resulting or arising from the mining,

                and where the use for mining purposes of aircraft over or in the vicinity of any land (whether or not private land) occasions damage that damage shall be deemed to have been occasioned by an entry on the land thereby affected.

        (5)         If any private land or improvement thereon adjoining or in the vicinity of land where mining takes place is injured or depreciated in value by the mining or by reason of the occupation of any portion of the surface or enjoyment by the holder of a mining tenement or of any right of way, the owner and occupier of the private land or improvements thereon are entitled severally to compensation for all loss or damage thereby sustained and the amount of compensation shall be determined in the manner provided in this section.

        (6)         Where mining operations are carried out on or under any land the subject of a mining tenement and damage is thereby caused to the surface or part of the surface of any private land comprised within the boundaries of the land the subject of the mining tenement belonging to the same or another owner, or to any improvement on any such private land, not being damage already determined under this Part, the owner and occupier of the private land or improvement are entitled severally to compensation for all loss or damage thereby sustained, and the amount of the compensation shall be determined in the manner provided by this section.

        (7)         Subject to section 124, a person who holds any land —

            (a)         which is leased to or held by that person under a pastoral lease or a lease or concession otherwise granted by or on behalf of the Crown for grazing purposes only or a diversification lease or which is Crown land leased for the use and benefit of the Aboriginal inhabitants; and

            (b)         in respect of which a mining tenement has been granted,

                (in this section called the lessee ) is entitled to be compensated by the holder of that mining tenement for —

            (c)         subject to section 125, any damage to improvements on that land caused by the holder and for any loss —

                  (i)         suffered by the lessee; and

                  (ii)         resulting from that damage;

                and

            (d)         notwithstanding anything in section 125, any substantial loss of earnings —

                  (i)         suffered by the lessee; and

                  (ii)         resulting or arising from mining by the holder.

        (8)         In an action in the warden’s court for compensation pursuant to this Act, if the warden’s court considers it impracticable or inexpedient to determine the amount of compensation to be paid in full satisfaction the warden’s court may on the application of a party to the claim for compensation or of its own motion give judgment or make a determination as to the compensation payable in respect of any specified period and in respect of the whole or part of the total claim for compensation.

        (9)         A determination made by the warden’s court under subsection (3) is, for the purposes of section 147(1), a final determination of the warden’s court.

        [Section 123 amended: No. 69 of 1981 s. 27; No. 100 of 1985 s. 93; No. 105 of 1986 s. 17 and 18; No. 37 of 1993 s. 26; No. 54 of 1996 s. 23; No. 31 of 1997 s. 141; No. 39 of 2004 s. 85; No. 12 of 2010 s. 12 and 40; No. 4 of 2023 s. 135.]