MINING ACT 1978 - THIRD SCHEDULE — Private land not open for mining

MINING ACT 1978 - THIRD SCHEDULE

[s. 27]

        [Heading amended: No. 19 of 2010 s. 4.]

East Locations 36, 41, 48, 51, 53, 55, 57, 59, 32, 35, 39, 40, 42, 44, 45, 50, 37, 61, 62.

Notes

This is a compilation of the Mining Act 1978 and includes amendments made by other written laws ⁵ . For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Other notes

¹         Repealed by the Interpretation Act 1984 s. 77(1).

²         Repealed by the Mining Act 1978 s. 3(1).

³         The Mining Amendment Act 1981 s. 3 reads as follows:

3.         Continuation of miners’ rights issued under Mining Act 1904

        (1)         A miner’s right issued under section 22 of the Mining Act 1904 and in force immediately before the repeal of that Act by the Mining Act 1978 shall, notwithstanding such repeal, continue in force and have effect in all respects as if it were issued under section 20 of the Mining Act 1978 .

        (2)         Subsection (1) of this section shall not be construed so as to derogate in any way from sections 15 and 16 of the Interpretation Act 1918 .

        (3)         A miner’s right issued under the Mining Act 1904 before 8 December 1978 shall be deemed to have been valid and in force until the date of expiry expressed thereon.

        (4)         Subsection (3) of this section shall not be construed so as to derogate in any way from the effect of the Mining Act Amendment Clause 1978 as set out in Clause 3 of the Second Schedule to the Mining Act 1978 .

⁴         Under the Alteration of Statutory Designations Order (No. 3) 2001 a reference in a written law to the Department of Mines is, unless the contrary is intended, to be read and construed as a reference to the Department of Industry and Resources.

        At the time of this compilation, the department is called the Department of Mines, Industry Regulation and Safety.

⁵         The Mining Legislation Amendment and Validation Act 2008 Pt. 2 Div. 2 and Pt. 3 read as follows:

Division 2 — Validation and pending applications

6.         Validation of extension of term of certain exploration licences

                If, before the day on which this section comes into operation, the term of a relevant licence was extended as a result of an application lodged at an office of the Department —

            (a)         the extension of the term of the licence; and

            (b)         anything done or purportedly done under the licence, or in relation to the licence, after the extension,

                are taken to be, and always to have been, as valid and effective as they would have been if the application had been lodged at the office of the mining registrar.

7.         Pending applications for extension of term

                If —

            (a)         an application for the extension of the term of a relevant licence has been lodged at an office of the Department; and

            (b)         the application has not been determined before the day on which this section comes into operation,

                the application is to be dealt with and determined as if it had been lodged at the office of the mining registrar.

Part 3 — Provisions relating to miscellaneous licences

8.         Validation of grant of certain miscellaneous licences

                If, before the day on which this section comes into operation, a miscellaneous licence was granted for a purpose approved or specified by the Director General of Mines —

            (a)         the grant of the licence; and

            (b)         anything done or purportedly done under the licence or in relation to the licence,

                are taken to be, and always to have been, as valid and effective as they would have been if the purpose so approved or specified had been prescribed for the purposes of the Mining Act 1978 section 91(1) at the time of the grant.

9.         Pending applications for miscellaneous licence

                If —

            (a)         an application has been made for a miscellaneous licence for a purpose approved or specified by the Director General of Mines; and

            (b)         the application has not been determined before the day on which this section comes into operation,

                the application is to be dealt with and determined as if, on and from the time the application was made, the purpose so approved or specified were prescribed for the purposes of the Mining Act 1978 section 91(1).

⁶         The Mining Amendment Act 1986 Pt. II amended the Mining Amendment Act 1985 s. 34 and 88. The Mining Amendment Act 1990 s. 39 repealed the Mining Amendment Act 1985 s. 88 and 90 before they came into operation.

⁷         The Mining Amendment Act 1990 s. 40 (as amended by the Mining Amendment Act 1993 s. 30(1) and (2) and the Mining Amendment Act 1994 s. 53) reads as follows:

40.         Savings and transitional

        (1)         Notwithstanding sections 15, 16, 17, 19 and 34 but subject to this section —

            (a)         the amendments to the principal Act effected by those sections do not have effect in relation to —

                  (i)         any exploration licence in force before the commencement day;

                  (ii)         any application for an exploration licence lodged with the Department before the commencement day; or

                  (iii)         any exploration licence granted in respect of an application referred to in subparagraph (ii);

            (b)         where, after the commencement day —

                  (i)         land becomes available from an existing licence; and

                  (ii)         other land in the same block is the subject of an exploration licence granted in respect of an application lodged with the Department on or after the commencement day,

                the exploration licence referred to in subparagraph (ii) shall, by virtue, be amended to include the land that has become available from the existing licence;

            (c)         where, after section 52 of the Mining Amendment Act 1994 commences —

                  (i)         land becomes available from an existing licence; and

                  (ii)         other land in the same block is the subject of an application for an exploration licence lodged with the Department on or after the commencement day,

                the application referred to in subparagraph (ii) is deemed to extend, and to have always extended, to the land that has become available from the existing licence, and, if an exploration licence is granted as a result of the application, that land shall be included in the exploration licence.

        (1a)         Subsection (1)(b) or (c) does not apply if the land that has become available from an existing licence has been included in an application under section 67 or 70B and a mining lease, general purpose lease or retention licence is granted in respect of that application.

        (2)         Without affecting anything in subsection (1) the Governor may make regulations providing for such savings and transitional matters as are convenient or necessary for the purposes of giving effect to the amendments effected by this Act to the principal Act.

        (3)         In this section —

        block means a block as described in section 56C of the principal Act as in force after the commencement of section 15 of this Act;

        commencement day means the day on which sections 15, 16, 17, 19 and 34 of this Act come into operation;

        existing licence means an exploration licence referred to in subsection (1)(a)(i) or (iii).

        (4)         A reference in this section to land becoming available from an existing licence is a reference to the land being surrendered or forfeited (otherwise than under section 98 of the principal Act) or to the expiry of the existing licence.

⁸         The Mining Amendment Act 1993 s. 5(2), 19(2) and 28(2), and s. 29 and 30(3) (which are in Pt. 3 of the Act) read as follows:

5.         Section 45 amended and savings

        (2)         Notwithstanding subsection (1), section 45 of the principal Act as in force immediately before the commencement of this section continues to have effect in relation to —

            (a)         any prospecting licence in force before that commencement; and

            (b)         any application for an extension of the term of a prospecting licence lodged before that commencement.

19.         Section 114A inserted and validation

        (2)         Any act or thing done before the commencement of the section by the holder of a mining tenement as defined in the principal Act is, and is to be regarded as having always been, as valid, lawful and effective as it would have been if —

            (a)         section 114A of the principal Act as inserted by subsection (1);

            (b)         section 114(7) of the principal Act as amended by this Act; and

            (c)         clause 7(5) of the Second Schedule to the principal Act as inserted by this Act,

                had been in operation when the act or thing was done.

28.         Amendments relating to surveys and savings provision

        (2)         Notwithstanding subsection (1), section 80(3) of the principal Act as in force immediately before the commencement of this section continues to have effect in relation to survey fees paid under the principal Act before that commencement.        

29.         Principal Act

                In this Part the Mining Amendment Act 1990 is referred to as the principal Act.

30.         Mining Amendment Act 1990 amended and transitional

        (3)         Notwithstanding section 40 of the principal Act as amended by this section —

            (a)         the amendment effected by section 19(b) of the principal Act;

            (b)         section 65(1c)(b) and (c) of the Mining Act 1978 as inserted by section 19(c) of the principal Act; and

            (c)         the repeal effected by section 19(d) of the principal Act,

                have effect in relation to an exploration licence referred to in section 40(1)(a)(i) or (iii) of the principal Act.

⁹         The Mining Amendment Act 1994 s. 21(5), 31(4) and 53 read as follows:

21.         Section 70 amended and saving

        (5)         The amendments made to section 70 of the principal Act by subsections (3) and (4) do not affect the term of any special prospecting licence in force under that section immediately before the commencement of this section.

31.         Section 85B amended and saving

        (4)         The amendments made to section 85B of the principal Act by subsections (2) and (3) do not affect the term of any special prospecting licence in force under section 85B immediately before the commencement of this section.

53.         Operation of section 30(3)(b) of the Mining Amendment Act 1993 modified

        (1)         Despite sections 2(2) and 30(3)(b) of the Mining Amendment Act 1993 , section 65(1c)(b) and (c) of the Mining Act 1978 as inserted by section 19(c) of the Mining Amendment Act 1990 do not have any effect, and are deemed to have never had any effect, in relation to the surrender of an existing licence under section 65 of the Mining Act 1978 where that surrender took place before 1 July 1994.

        (2)         In subsection (1) existing licence means an exploration licence referred to in section 40(1)(a)(i) or (iii) of the Mining Amendment Act 1990 .

¹⁰         The Mining Amendment Act 1996 s. 9 had not come into operation when it was deleted by the Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 93.

¹¹         The proclamation for the commencement of s. 3, 4, 6, 8, 11, 12 and 14- 22 ( Gazette 14 Jan 2005 p. 164) was revoked in Gazette 24 Mar 2005 p. 1001.

¹²         The Mining Amendment Act 1998 s. 4(3) reads as follows:

        (3)         An application for renewal under section 91(4) of the principal Act that has not been determined on the commencement of this Act is to be treated as an application for renewal under section 91A(3)(a) as inserted into the principal Act by section 5.

¹³         The proclamation for the commencement of s. 12 ( Gazette 14 Jan 2005 p. 164) was revoked in Gazette 24 Mar 2005 p. 1001.

¹⁴         The Mining Amendment Act 2004 s. 5(2), 6(2), 11, 15(2) and 19 (as amended by the Mining Legislation Amendment and Validation Act 2008 s. 5 and the Mining Amendment Act 2012 Pt. 3) , 32(3), 35, 36(2), 39(2), 86, 90(2), s. 98(2)-(4) and Pt. 12 read as follows:

5.         Section 45 amended and savings provision

        (2)         Despite the amendment made by subsection (1), section 45 of the Mining Act 1978 as in force immediately before the commencement of this section continues to apply to and in relation to —

            (a)         any prospecting licence in force under that Act immediately before the commencement; and

            (b)         any prospecting licence granted under that Act after the commencement in respect of an application made before the commencement.

6.         Section 46 amended and transitional provision

        (2)         Section 46(aa) of the Mining Act 1978 as inserted by subsection (1) does not apply to a prospecting licence granted under that Act before the day on which this section comes into operation.

11.         Transitional provision

        (1)         In this section —

        commencement means the commencement of this Part;

        old provisions means sections 56A, 70 and 85B of the Mining Act 1978 as in force immediately before the commencement.

        (2)         Despite the amendments made by this Part, the old provisions continue to apply to and in relation to an application for a special prospecting licence or a mining lease for gold under the Mining Act 1978 that is pending immediately before the commencement.

15.         Section 63 amended and transitional provision

        (2)         Section 63(aa) of the Mining Act 1978 as inserted by subsection (1) does not apply to an exploration licence granted under that Act before the day on which this section comes into operation.

19.         Transitional and savings provisions

        (1)         In this section —

        commencement means the commencement of this Part;

        old provisions means the Mining Act 1978 as in force immediately before the commencement;

        relevant licence means —

            (a)         an exploration licence granted under the Mining Act 1978 that is in force immediately before the commencement; or

            (b)         an exploration licence granted under the Mining Act 1978 after the commencement in respect of an application made before the commencement.

        (2)         Despite the amendments made by this Part, the old provisions (other than sections 61(3), 63A, 65(1a), 65(1c) and 65(4)) continue to apply to and in relation to a relevant licence.

        (2a)         Section 61(3) and (3a) of the Mining Act 1978 apply to and in relation to an application for the extension of the term of a relevant licence.

        (3)         If the holder of a relevant licence fails to comply with the requirements for surrender in section 65(1) or (1b) of the old provisions, the Minister must, by notice in writing, require the holder to lodge the surrender for registration within a period specified in the notice.

        (4)         Section 63A of the Mining Act 1978 applies to and in relation to a relevant licence as if it contained a provision to the effect that the licence is liable to forfeiture if the holder of the licence fails to comply with a requirement under subsection (3).

        (5)         Despite the amendments made by section 16, section 65(1a) of the old provisions continues to apply to and in relation to a relevant licence as if —

            (a)         “licence — ” were replaced by —

                “ licence ”;

            (b)         paragraphs (a) and (b), and “or” after paragraph (a), were deleted; and

            (c)         “the Minister may exempt” were replaced by —

“

                the Minister may, if satisfied that a ground for exemption exists, exempt

”.

        (6)         For the purposes of the application of section 65(1a) of the old provisions as modified by subsection (5) each of the following is a ground for exemption —

            (a)         by reason of difficulties or delays —

                  (i)         occasioned by law; or

                  (ii)         arising from administrative, political, environmental or other requirements of governmental or other authorities, in the State or elsewhere; or

                  (iii)         arising from a requirement to conduct an Aboriginal heritage survey on the land to which the application for exemption relates (the relevant land ); or

                  (iv)         in obtaining requisite consents or approvals for exploration or for the marking out of a mining lease or general purpose lease in relation to any part of the relevant land; or

                  (v)         in gaining access to the relevant land because of unfavourable climatic conditions,

                the exploration programme, or the marking out and application appropriate to a mining lease or general purpose lease in relation to the relevant land, could not be undertaken or completed or is restricted in a manner that is, or subject to conditions that are, for the time being impracticable;

            (b)         work already carried out under the licence justifies further exploration.

        (7)         Despite the amendments made by section 16, section 65(1c) of the old provisions continues to apply to and in relation to a relevant licence as if section 65(1c)(b) were replaced by the following paragraph —

“

            (b)         shall be lodged at an office of the Department on or before the last day of the third or fourth year, as the case requires, of the term for which it is lodged;

”.

                [Section 19 amended: No. 19 of 2008 s. 5; No. 51 of 2012 s. 45.]

32.         Section 82 amended and transitional provisions

        (3)         Section 82(1)(ca) of the Mining Act 1978 as inserted by subsection (1) does not apply to a mining lease granted under that Act before the day on which this section comes into operation.

35.         Transitional provision

        (1)         In this section —

        commencement means the commencement of this Part;

        old provisions means sections 74 and 75 of the Mining Act 1978 as in force immediately before the commencement.

        (2)         Despite the amendments made by this Part, the old provisions continue to apply to and in relation to an application for a mining lease under the Mining Act 1978 that is pending immediately before the commencement.

36.         Section 70F replaced and transitional provision

        (2)         Where, immediately before the commencement of this section, an application for a retention licence has been made, but has not been finally determined, under the Mining Act 1978 —

            (a)         the person who made the application is not required to comply with section 70F(1) of that Act as inserted by subsection (1); and

            (b)         section 70F(4) of that Act as inserted by subsection (1) does not apply in respect of the application.

39.         Section 84A replaced and transitional provision

        (2)         Where, immediately before the commencement of this section, an application for a mining lease had been made, but had not been determined, under the Mining Act 1978 —

            (a)         the person who made the application is not required to comply with section 84A(1) of that Act as inserted by subsection (1); and

            (b)         section 84A(4) of that Act as inserted by subsection (1) does not apply in respect of the application.

86.         Transitional provision

                If, on the commencement of this Part, an application or objection in respect of a mining tenement has been made, but has not been determined, under Part IV of the Mining Act 1978 , the application or objection is to be dealt with and determined under that Act as if this Part had not come into operation.

90.         Section 70H amended and transitional provision

        (2)         Section 70H(1)(aa) of the Mining Act 1978 as inserted by subsection (1) does not apply to a retention licence granted under that Act before the day on which this section comes into operation.

98.         Section 118A inserted and validation and transitional provisions

        (2)         A mining authorisation given before the commencement is, and is to be taken to have always been, as valid and effective as it would have been if the amendment made by subsection (1) had been in effect at the time it was given.

        (3)         On and after the commencement an existing mining authorisation is be treated as an authorisation under section 118A(2) of the Mining Act 1978 as inserted by subsection (1).

        (4)         In subsections (2) and (3) —

        commencement means the commencement of this section;

        existing mining authorisation means a mining authorisation in force immediately before the commencement;

        mining authorisation means an instrument in writing under which the holder of a prospecting licence, exploration licence or mining lease (as those terms are defined in the Mining Act 1978 ) purports to authorise another person to carry out mining of the kind authorised by the licence or lease on the land the subject of the licence or lease.

Part 12 — Transitional regulations

105.         Further transitional provisions may be made

        (1)         In this section —

        amending provision means a provision of this Act;

        commencement means the commencement of this section;

        specified means specified or described in the regulations;

        transitional matter means a matter that needs to be dealt with for the purpose of effecting the transition from the Mining Act 1978 as in force before an amending provision comes into operation to that Act as in force after the amending provision comes into operation, and includes a savings or application matter.

        (2)         If there is no sufficient provision in this Act for dealing with a transitional matter, regulations may be made under the Mining Act 1978 prescribing all matters that are required, necessary or convenient to be prescribed in relation to the transitional matter.

        (3)         Regulations referred to in subsection (2) may provide that specified provisions of this Act or the Mining Act 1978 —

            (a)         do not apply; or

            (b)         apply with specified modifications,

                to or in relation to any matter.

        (4)         Regulations referred to in subsection (2) must be made within 12 months after the commencement.

        (5)         If regulations referred to in subsection (2) provide that a specified state of affairs is to be taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in the Gazette but not earlier than the commencement, the regulations have effect according to their terms.

        (6)         If regulations contain a provision referred to in subsection (5), the provision does not operate so as to —

            (a)         affect in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the day of publication of those regulations; or

            (b)         impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.

¹⁵         The proclamation for the commencement of Pt. 9 ( Gazette 14 Jan 2005 p. 164) was revoked in Gazette 24 Mar 2005 p. 1002.

¹⁶         The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

Defined terms



[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term         Provision(s)

absolute caveat         121

aggregate exploration expenditure         102(2a)

agreement         122E(4)

agricultural         8(1)

applicant         105A(2)

application for exemption         102(1)

approved surveyor         162(2)

audit amount         115B(1)

audit statement         115B(1)

authorisation         118A(1)

authorised officer         103A

available land         40A

block         95A(1)

burial ground         8(1)

caveat         121

combined reporting tenements         102(2)

commencement         91A(6)

commencement day         Second Sch. cl. 16(1), 17(1), 18(1) and 19(1)

commencing date         8(1)

Commonwealth land         8(1)

consent caveat         121

conservation land         40A

conservation Minister         24A(9)

continuing licence         120AA(1)

Corporations Act         8(1)

Crown land         8(1)

dam         8(1)

damage         8(1)

dealing         8(1)

Department         8(1)

designated area         57A(5)

designated tenement contact (DTC)         8(1)

Director General of Mines         8(1)

Director, Geological Survey         8(1)

diversification lease         8(1)

end day         65(1)

existing application         Second Sch. cl. 18(1)

expenditure         115B(1)

expenditure amount         115B(1)

expenditure conditions         8(1)

exploration licence         69A(1)

extension application         45(1b)

fisheries Minister         24A(9)

former holder         114(7), 114C(1)

fossick         8(1)

geological sample         8(1)

give         17(1)

grant         125A(3)

granted land         65(4c)

graticular sections         56C(1)

ground disturbing equipment         8(1)

guidelines         70O(1), 115A(1)

identified mineral resource         8(1)

JORC Code         74(7)

judgment         140(1)

LAA Minister         8(1)

land         8(1), 21(2A)

land under cultivation         8(1)

lapidary work         8(1)

late renewal application         111A(2)

later tenement         103EA(3), 122C(1)

lease application         120AA(1)

lessee         123(7), 125

licence         96A(7)

likely         74(7)

listed public company         8(1)

local government         8(1)

machinery         8(1)

marine management area         8(1)

marine Minister         24A(9)

marine nature reserve         8(1)

marine park         8(1)

mine         8(1)

mine closure plan         70O(1)

mineral exploration report         115A(1)

mineral field         8(1)

mineralisation report         74(7), 74A(7)

minerals         8(1)

miner’s right         8(1)

mining         8(1), 123(2a)

mining operations         8(1)

mining plant         114(1)

mining product         8(1)

mining proposal         70O(1)

mining registrar         8(1)

mining tenement         8(1)

mining tenement document         162(3A)

native title holders         125A(3)

new mining tenement         Second Sch. cl. 10(1) and (3)

occupier         8(1)

offsets project         8(1)

offshore area         9A(2)

oil shale         8(1)

old mining tenement         Second Sch. cl. 10(1) and (3)

old mining tenements         Second Sch. cl. 10(1)

operations report         115A(1), 115B(1)

owner         8(1)

Part IV proceedings         162(2)

pastoral lease         8(1)

permit         40G(1)

permit land         40G(1)

prescribed day         19(2d)

prescribed official         8(1), 30(8)

prescribed period         114(1)

prescribed provision         17(1)

primary tenement         56A(1), 70(1), 70A, 85B(1)

private land         8(1)

processed mineral resource         8(1)

proposal         6(1b)

prospecting licence         53(1)

public purpose         8(1)

qualified person         74(7)

register         8(1)

registered         116(3)

registration         8(1)

related         8(1)

relevant licence         56B(1)

relevant mining proposal         70O(1)

relevant portion         29(6a)

relevant tenement         118A(2)

remedial work         114C(1)

repealed Act         8(1)

resource report         74(7)

restricted area         24A(9)

retention status         8(1)

reversion licence application         8(1)

secondary tenement         67A(7)

section 74A report         75(10)

significant mineralisation         70O(1)

special prospecting licence         56A(1), 70(1), 85B(1)

specified         55A(5), 69D(5), 70IA(4)

State         56C(5)

subject to claim caveat         121

surrender day         65(1)

surrendered land         65(4c)

tax memorial         103A

tenement application         96(3b), 100(1a)

the mining registrar         8(1)

the warden         8(1)

transition period         Second Sch. cl. 18(1)

vehicle         8(1)

warden         8(1)

warden’s court         8(1)

withdrawal of memorial         103A

© State of Western Australia 2023

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This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au .

Attribute work as: © State of Western Australia 2023

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By Authority: GEOFF O. LAWN, Government Printer