MINING ACT 1978 - SECT 70

MINING ACT 1978 - SECT 70

70 .         Special prospecting licence on an exploration licence

        (1)         Where any land is the subject of an exploration licence (in this section called the primary tenement ) then, notwithstanding section 117, a person may at any time after the expiry of 12 months from —

            (a)         in the case of land which was the subject of a mineral claim or dredging claim granted under the repealed Act that by the operation of the transitional provisions set forth in the Second Schedule Division 1 became subject to the primary tenement, the date of approval of the claim; and

            (b)         in any other case, unless subsection (1aa) applies, the date on which the primary tenement was granted,

                mark out and, in accordance with section 41, apply for a prospecting licence for gold (in this section called a special prospecting licence ) in respect of any part of the land the subject of the primary tenement.

        (1aa)         If the primary tenement was granted as a result of a reversion licence application, a special prospecting licence may be marked out and applied for at any time after the date on which the primary tenement was granted.

        (1a)         A special prospecting licence may only be applied for by, granted to or held by a natural person.

        (2)         Unless subsection (5a) applies, an applicant for a special prospecting licence shall, within the prescribed period, give notice thereof to the holder of the primary tenement as if such holder were the occupier of the land to which the application relates, and subsections (3) to (5) apply in respect of the application.

        (3)         Where, after being served with notice of the application for the special prospecting licence, the holder of the primary tenement does not lodge an objection against the application the mining registrar may, subject to this Act, grant the application as provided in subsection (6).

        (4)         If the holder of the primary tenement lodges a notice of objection against the application for the special prospecting licence —

            (a)         the notice of objection must be —

                  (i)         lodged within the prescribed time and in the prescribed manner; and

                  (ii)         accompanied by the prescribed fee;

                and

            (b)         the warden must obtain a report from the Director, Geological Survey in respect of the exploration carried on by the holder of the primary tenement on the land to which the application relates.

        (4a)         A report prepared by the Director, Geological Survey for the purposes of subsection (4)(b) is to be based solely on information contained in reports filed by or on behalf of the holder of the primary tenement under section 68(3) or 115A.

        (5)         After hearing the objection of the holder of the primary tenement the warden may refuse the application for the special prospecting licence on the ground that prospecting for gold on the land to which the application relates would result in undue detriment to the exploration being carried on by the holder of the primary tenement or he may recommend the application to the Minister who may refuse the application or subject to this Act, grant it as provided in subsection (6), but where the warden refuses an application under this subsection, the applicant may within the time and in the manner prescribed appeal to the Minister against such refusal and the Minister may dismiss the appeal or uphold the appeal and grant the application as provided in subsection (6).

        (5a)         If, at the time when an applicant for a special prospecting licence marked out the land to which his application relates, the grant of the application would have resulted in the number of special prospecting licences in respect of the primary tenement exceeding one for each 200 ha of the primary tenement, the applicant shall, within the prescribed period and in the prescribed manner, lodge the written consent of the holder of the primary tenement to the grant of the application.

        (5b)         If written consent to the grant of an application is lodged in accordance with subsection (5a), the mining registrar may, subject to this Act, grant the application as provided for in subsection (6).

        (6)         Subject to this section the mining registrar or Minister may grant the application on such terms and conditions as he thinks fit but a special prospecting licence granted pursuant to this section —

            (a)         shall not exceed 10 ha in area; and

            (b)         shall authorise the holder to prospect only for gold; and

            (c)         shall not unless the Minister otherwise directs, prevent the holder of the primary tenement from exploring for minerals other than gold in or on the land the subject of the special prospecting licence and the primary tenement; and

            (d)         does not authorise the holder thereof to excavate, extract or remove during the period for which the tenement remains in force a total amount of earth, soil, rock, stone, fluid or mineral bearing substances in excess of 500 t, except in so far as the prior written approval of the Minister may otherwise permit; and

            (e)         does not authorise mining to be carried out in any portion of the land that is —

                  (i)         below a depth specified in the terms and conditions of the special prospecting licence, and any depth so specified shall be less than 50 m below the lowest part of the natural surface of the land the subject of the special prospecting licence; or

                  (ii)         if a depth is not so specified, 50 m or more below the lowest part of the natural surface of the land the subject of the special prospecting licence, except in so far as both the prior written consent of the holder of the primary tenement and the prior written approval of the Minister may otherwise permit.

        (6aa)         A special prospecting licence may be granted for a period of 3 months or for any period which is a multiple of 3 months but which does not exceed 4 years.

        (6a)         A special prospecting licence —

            (a)         continues in force notwithstanding that the holder of the primary tenement may apply for and be granted a retention licence, mining lease or general purpose lease in respect to the land; but

            (b)         ceases (and the land in respect to which it was granted reverts to the primary tenement holder as an integral part of the tenement held by him) on the surrender, forfeiture or expiry of that special prospecting licence.

        (7)         No legal or equitable interest in or affecting —

            (a)         a special prospecting licence; or

            (b)         a mining lease in respect of the land or any part thereof the subject of a special prospecting licence,

                is capable of being created, affected or dealt with, whether directly or indirectly, except with the prior written consent of the holder of the primary tenement, and no person shall hold or have any beneficial, legal or equitable interest in —

            (c)         more than 10 such special prospecting licences; or

            (d)         more than one such mining lease.

        (7a)         A reference in subsection (7) to a person includes a reference to any other person who would, for the purposes of the Corporations Act, be taken to be an associate of the first-mentioned person.

        (7b)         A mining lease in respect of the land or any part thereof which is the subject of a special prospecting licence shall not be granted in respect of the primary tenement where the number of such leases granted in respect of that primary tenement exceeds one for each 200 ha of the primary tenement.

        (8)         The holder of a special prospecting licence granted for a period of 4 years may make an application for a mining lease for gold in respect of the land or any part thereof which is the subject of the special prospecting licence, and on an application being made the Minister may, subject to subsection (7b), grant the application for a lease in respect to that portion of the land to which the special prospecting licence relates that is less than a depth of 50 m, or such greater depth as the Minister approves with the prior written consent of the holder of the primary tenement, below the lowest part of the natural surface of the land and on such terms and conditions as the Minister thinks fit, and thereupon the area of land in respect of which the mining lease is granted shall be excised from the primary tenement (whether or not the primary tenement has in the meantime been converted into a retention licence or a mining lease).

        (8aa)         Sections 74, 74A and 75 apply to an application for a mining lease under subsection (8).

        (8a)         A mining lease granted pursuant to subsection (8) —

            (a)         has effect in relation to gold and any minerals occurring in conjunction with that gold; and

            (b)         does not authorise the lessee thereof, his agents or employees to excavate, extract or remove a total amount of earth, soil, rock, stone, fluid or mineral bearing substances in excess of 750 t in any year, except in so far as both the prior written consent of the holder of the primary tenement and the prior written approval of the Minister may otherwise permit; and

        [(c)         deleted]

            (d)         ceases to have effect (and the land in respect to which it was granted reverts to the primary tenement holder as an integral part of the tenement held by him) on the surrender, forfeiture or expiry of that lease.

        (9)         Subject to this section, the provisions of this Act relating to a prospecting licence, or mining lease apply to a special prospecting licence or mining lease granted pursuant to this section.

        (9a)         Where, before the determination of an application for a special prospecting licence in respect of land, the primary tenement is surrendered or forfeited or expires, the application is, by virtue of this subsection, converted into an application for a prospecting licence in respect of that land and the provisions of this Act relating to such applications apply accordingly.

        (10)         On the surrender, forfeiture or expiry of the primary tenement, a special prospecting licence in respect of any land the subject of the primary tenement immediately before the date of its surrender, forfeiture or expiry is, by virtue of this subsection, converted into a prospecting licence in respect of that land and, subject to subsection (11), the provisions of this Act relating to prospecting licences apply accordingly.

        (11)         Where a special prospecting licence is converted into a prospecting licence, the prospecting licence remains in force, subject to this Act, for the remainder of the period for which the special prospecting licence was granted.

        (12)         Subsections (9a) and (10) do not apply if —

            (a)         the primary tenement is amalgamated with an exploration licence under section 67A(1); or

            (b)         prior to the surrender, forfeiture or expiry of the primary tenement the holder of the primary tenement applies for a retention licence, a mining lease or a general purpose lease and the licence or lease is subsequently granted in respect of any land the subject of the application for a special prospecting licence or the special prospecting licence, as the case requires; or

            (c)         prior to the surrender, forfeiture or expiry of the primary tenement the holder of the primary tenement makes a reversion licence application and a prospecting licence or an exploration licence is granted as a result of that application in respect of any land the subject of the application for a special prospecting licence or the special prospecting licence, as the case requires.

        [Section 70 amended: No. 100 of 1985 s. 49; No. 22 of 1990 s. 22; No. 21 of 1993 s. 45; No. 37 of 1993 s. 9, 10(2) and 27; No. 73 of 1994 s. 4; No. 58 of 1994 s. 21; No. 52 of 1995 s. 27; No. 54 of 1996 s. 10 and 23; No. 10 of 2001 s. 133; No. 15 of 2002 s. 15; No. 39 of 2004 s. 9; No. 27 of 2005 s. 10; No. 12 of 2010 s. 26; No. 51 of 2012 s. 21; No. 39 of 2022 s. 10.]

        [Heading inserted: No. 37 of 1993 s. 10(1).]