Western Australia

Mining Act 1978

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 Western Australia

Mining Act 1978

CONTENTS

Part I — Preliminary
1. Short title 2
2. Commencement 2
4. Transitional provisions 2
5. Saving 2
6. Operation of this Act 3
8. Terms used 5
8A. Rights in respect of oil shale or coal 13
9. Gold, silver and other precious metals property of
Crown 13
9A. Effect of change of baseline 14
9B. Position on Earth’s surface 16
Part II — Administration, mineral
fields and courts
10. Administration of Act 17
11. Chief executive officer and other officers 17
12. Delegation 17
13. Wardens of mines, mining registrar 18
15. Prohibition from adjudicating in certain matters or
from using certain information 19
16. Power to proclaim mineral fields 19
Part III — Land open for mining
Division 1 — Crown land
18. Crown land open for mining 21

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Mining Act 1978

Contents

19. Minister may exempt land from mining etc. 21

20. Protection of certain Crown land 23
21. Power to resume land 26
22. Effect of resumption 28
Division 2 — Public reserves, etc. and
Commonwealth land
23. Mining on public reserves etc. and Commonwealth
land 28
24. Classification of reserves 29
24A. Mining in marine reserves 33
25. Mining on foreshore, sea bed, navigable waters or
townsite 35
25A. Mining on Commonwealth land 36
26. Terms and conditions 36
26A. Mining tenements within townsites 38
Division 3 — Private land
27. Private land open for mining 40
28. Unlawful entry on private land 40
29. Granting of mining tenements in respect of private
land 41
30. Granting of permits in respect of private land 44
31. Holder of permit to give notice to owner and
occupier 46
32. Rights conferred by a permit 47
33. Application for mining tenement by permit holder 48
35. Compensation to be agreed upon or determined
before mining operation commences 50
37. Application to bring certain private land under this
Division 50
38. Right of owner to apply for mining tenement 51
39. Owner to comply with mining tenement conditions 52
Part IIIA — Miner’s rights and
related permits
40A. Terms used 53
40B. Conservation land 53
40C. Issue of miner’s right 53
40D. Authorisation under miner’s right 54
40E. Permit to prospect on Crown land or conservation
land subject of exploration licence 56

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 Mining Act 1978

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40F. Power to remove Crown land or conservation land

from operation of s. 40E 58
40G. Limitation on actions in tort 58
Part IV — Mining tenements
Division 1 — Prospecting licence
40. Grant of prospecting licence 60
41. Application for prospecting licence 60
42. Determination of application for prospecting
licence 61
43. Prospecting licence not to include land already
subject of mining tenement 62
44. Power to grant prospecting licence over all or part
of land in application 62
45. Term of prospecting licence 63
46. Conditions attached to every prospecting licence 64
46A. Conditions for prevention or reduction of injury to
land 65
47. Survey of area of prospecting licence not required
in first instance 66
48. Rights conferred by prospecting licence 67
49. Holder of prospecting licence to have priority for
grant of mining leases or general purpose leases 68
50. Compliance with expenditure conditions 69
51. Reports of work and expenditure 69
51A. Geological samples 69
52. Security relating to prospecting licence 70
53. Application for retention status 70
54. Approval of retention status 71
55. Consultation with other Ministers 72
55A. Programme of work 73
55B. Holder of prospecting licence with retention status
may be required to apply for mining lease 74
56. Appeal against refusal to grant prospecting licence 74
56A. Special prospecting licences 75
56B. Certain licence holders to have right to apply for
further prospecting licence 82
Division 2 — Exploration licence
56C. Graticular sections 82
57. Grant of exploration licence 84

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57A. Designation of areas for purposes of s. 57(2aa) 86

58. Application for exploration licence 87
59. Determination of application for exploration
licence 89
60. Security relating to exploration licence 90
61. Term of exploration licence 91
62. Expenditure conditions 92
63. Condition attached to exploration licence 92
63AA. Conditions for prevention or reduction of injury to
land 93
63A. When exploration licence liable to forfeiture 94
64. Consent to dealing in exploration licence 95
65. Surrender of certain areas subject to exploration
licence 96
66. Rights conferred by exploration licence 98
67. Holder of exploration licence to have priority for
grant of mining leases or general purpose leases 99
67A. Holder of exploration licence may apply to
amalgamate secondary tenement 100
68. Holder of exploration licence to keep geological
records 102
69. Land the subject of exploration licence not to be
again marked out for a certain period 103
69A. Application for retention status 104
69B. Approval of retention status 104
69C. Consultation with other Ministers 106
69D. Programme of work 106
69E. Holder of exploration licence with retention status
may be required to apply for mining lease 107
70. Special prospecting licence on an exploration
licence 108
Division 2A — Retention licence
70A. Term used: primary tenement 114
70B. Grant of retention licence 115
70C. Application for retention licence 115
70D. Determination of application for retention licence 118
70E. Term of retention licence and renewal 120
70F. Security relating to retention licence 120
70G. Survey of area of retention licence not required in
first instance 121

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70H. Conditions attached to retention licence 121

70I. Conditions for prevention or reduction of injury to
land 123
70IA. Programme of work 123
70J. Rights conferred by retention licence 124
70K. When retention licence liable to forfeiture 125
70L. Holder of retention licence to have priority for
grant of mining lease or general purpose lease 126
70M. Holder of retention licence to show cause why
mining lease should not be applied for 127
70N. Land subject of retention licence not to be again
marked out for certain period 128
Division 3 — Mining lease
70O. Terms used 128
70P. Guidelines to be publicly available 129
71. Grant of mining lease 129
72. Person may be granted more than one mining lease 130
73. Area of mining lease may be less than area sought 130
74. Application for mining lease 130
74A. Report on significant mineralisation required for
certain applications 133
75. Determination of application for mining lease 134
76. Priorities as to mining tenements 137
78. Term of leases, options and renewals 137
79. Approval of application 138
80. Surveys of mining leases 139
82. Covenants and conditions of lease 139
82A. Condition to be included in certain mining leases 141
83. Issue of mining leases 142
84AA. Review of mine closure plans 142
84. Conditions for prevention or reduction of injury to
land 143
84A. Security relating to mining lease 144
85. Rights of holder of mining lease 145
85A. Land the subject of mining lease not to be again
marked out for a certain period 146
85B. Special prospecting licence on a mining lease 146
Division 4 — General purpose lease
86. Grant of general purpose lease 151

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87. Purposes for which general purpose lease may be

granted 152
88. Term of general purpose lease 152
89. Form of general purpose lease 154
90. Application of certain provisions to general
purpose leases 154
Division 5 — Miscellaneous licences
91. Grant of miscellaneous licence 155
91A. Term and renewal of existing licence or licence
granted in respect of existing application 156
91B. Term and renewal of licence granted in respect of
new application 158
92. Provisions applying to all miscellaneous licences 159
93. Map to accompany application 159
94. Terms and conditions 159
94A. Grant of mining tenement on land in a
miscellaneous licence 160
94B. Surrender etc. of concurrent tenement 160
Division 6 — Surrender and forfeiture of
mining tenements
95. Surrender of mining tenement 161
95A. Exploration licence — surrender of part of block 162
96. Forfeiture of certain mining tenements 162
96A. Forfeiture of exploration licence or retention
licence 166
97. Forfeiture of mining lease or general purpose lease 168
97A. Application for restoration of mining tenement
after forfeiture 169
98. Application for forfeiture on other grounds 171
99. Proceedings by Minister on recommendation 172
100. Applicant to have priority for marking out and
applying for surrendered or forfeited licence or
lease 173
101. Application for forfeiture of mining tenement
while holder is a company in process of winding
up 174
Division 7 — Exemption from expenditure
conditions
102. Exemption from expenditure conditions 175

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 Mining Act 1978

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102A. Exemption from expenditure conditions in respect

of certain holders of exploration licences 178
103. Effect of exemption 179
Part IVA — Registration of
instruments and register
103A. Terms used 180
103B. Authorised officers 180
103C. Registration 180
103D. Provisional lodgment 182
103EA. Memorial for unpaid tax 182
103E. Priority of dealings 183
103F. Register 183
103G. Amendment of register 184
103H. Regulations relating to register 184
Part V — General provisions relating
to mining and mining tenements
104. Entry on land for purpose of marking out etc. 185
105. Marking out of mining tenement 186
105A. Priorities between applicants for certain tenements 186
105B. Grant of tenement subject to survey 188
106. Offence of destroying marks or obstructing
surveyor etc. 188
107. Areas covered by water not required to be marked
out 189
108. Rent payable for mining tenement 189
109. Royalties 189
109A. Verification of royalties payable 190
110. Mining lease restricted to certain minerals 195
111. Power of Minister to exclude mining for iron from
mining tenements 196
111A. Minister may terminate or summarily refuse
certain applications 196
112. Reservation in favour of Crown on prospecting
licence or exploration licence to take rock etc. 198
113. Repossession of land on expiry etc. of mining
tenement 198
114. Removal of buildings etc. on expiry etc. of mining
tenement 199

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Mining Act 1978

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114A. Rights conferred under mining tenement

exercisable in respect of mining product belonging
to Crown 201
114B. Continuation of liability after expiry, surrender or
forfeiture of mining tenement 202
114C. Right to enter land to carry out remedial work after
expiry, surrender or forfeiture of mining tenement 202
115. Power to enter on land for surveys 203
115A. Mineral exploration reports 204
115B. Verification of expenditure amounts in
operations reports 205
116. Instrument of licence or lease 206
117. Mining tenements protected 207
118. Notice of application to be given to lessee of
pastoral lease 207
118A. Tenement holder may authorise mining by third
party 208
119. Mining tenement may be sold etc. 209
119A. Mining tenement may be mortgaged 209
120. Planning schemes to be considered but not to
derogate from this Act 210
120AA. Scheme for reversion licence applications 210
Part VI — Caveats
121. Terms used 213
122. Certain surrenders not affected by this Part 213
122A. Lodgment of caveats 214
122B. Provisional lodgment 215
122C. Caveats deemed to be lodged against later
tenements 216
122D. Effect of caveat 216
122E. Duration of caveat 217
Part VII — Compensation
123. Compensation in respect of mining 219
124. Matters to be considered by warden’s court in
relation to compensation 223
125. Limitation on compensation 224
125A. Liability for payment of compensation to native
title holders 224
126. Securities 225

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 Mining Act 1978

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Part VIII — Administration of justice

127. Establishment of wardens’ courts 228
128. Warden’s court to be court of record 228
129. Signing of process 228
130. Times for holding warden’s court 229
131. Power of warden to act in absence of warden
usually presiding 229
132. Jurisdiction of warden’s court 229
133. Offences to be dealt with by magistrate 231
134. Powers of warden’s court 231
135. Summary determination by warden by consent 234
136. Practice and procedure in warden’s court 235
137. Records of evidence 235
138. Mode of trial 236
139. Contempt of court 237
140. Judgments, enforcement of 237
142. Informality and amendment 238
143. Grant of injunction affecting mining tenement to
be notified 239
146. Reservation of questions of law: hearing and
determination 239
147. Appeal to Supreme Court 240
148. Procedure on appeal 241
149. Power of Supreme Court on appeal 243
150. Withdrawal or failure to prosecute appeal 244
151. Limitation of right of appeal 244
Part IX — Miscellaneous and
regulations
152. Police to assist warden 245
153. Minor capable of being sued and of suing 245
154. General penalty 245
155. Offence of mining without authority 246
155A. Aerial survey work 247
156. Offences 247
157. Obstruction of persons authorised to mine under
this Act 248
158. Power to require information as to right to mine 248
159. Disputes between licensees and other persons 249
160. Saving of civil remedies 250

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160AA. Authority to perform certain functions of

LAA Minister under this Act 251
160A. Immunity of Minister, wardens and officials 251
160B. Time limit for prosecution action 252
160C. No right of appeal from certain decisions of
warden, mining registrar or Minister 252
160D. Persons before whom affidavit may be sworn 253
161. Evidentiary provisions 253
162A. Certain things are not personal property for the
purposes of the Personal Property Securities
Act 2009 (Commonwealth) 254
162B. Extension of prescribed period or time 255
162. Regulations 255
163. Review of Act 262
Second Schedule — Transitional
provisions
Division 1 — Provisions relating to transition
from repealed Act
1. Continuation of certain temporary reserves and
rights of occupancy 263
2. Certain gold mining leases, coal mining leases and
mineral leases to become mining leases 264
3. Rights conferred on holders of certain mineral
claims and dredging claims 266
4. Rights conferred on holders of certain miners’
homestead leases, residential leases, residence
areas, business areas and garden areas 267
5. Continuation of mining tenements held by virtue of
miners’ rights 268
6. Temporary continuation of certain machinery
areas, tailings areas, quarrying areas and water
rights 268
7. Continuation of certain licences 269
8. Disposal of pending applications for mining
tenements 271
9. Rights of holders of certain prospecting areas 273
10. Transitional provisions relating to mortgages 273
11. Officers 275
12. Warden’s courts and warden’s offices 275

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13. Lodging of certain applications 275

13A. Consents to follow the land 276
14. References to repealed Act 276
15. Prevention of anomalies during transitional period 276
Division 2 — Provisions relating to Mining
Amendment Act 2012
16. Miner’s rights 277
17. Surrender requirements 277
18. Commonwealth land 278
19. Time limit for prosecution action 278
Third Schedule — Private land not
open for mining
Notes
Compilation table 280
Provisions that have not come into operation 288
Defined Terms

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 Western Australia

Mining Act 1978

An Act to consolidate and amend the law relating to mining and for
incidental and other purposes.

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Mining Act 1978
Part I Preliminary

s. 1

Part I — Preliminary
1. Short title
This Act may be cited as the Mining Act 1978 1.

2. Commencement
(1) The long title, the heading Part I — Preliminary, section 1, this
section, the heading Second Schedule, and clause 3 of the
Second Schedule shall come into operation on the day on which
this Act receives the Royal Assent 1.
(2) The remaining provisions of this Act shall come into operation
on a date to be fixed by proclamation 1.

[3. Omitted under Reprints Act 1984 s. 7(4)(f).]

4. Transitional provisions
The transitional provisions set forth in the Second Schedule, as
from time to time modified to prevent anomalies or otherwise
affected by the operation of clause 15 of that Schedule, shall
have effect without prejudice, except in so far as those
transitional provisions are not consistent with such an
application, to the application of —
(a) in so far as that Act applies, the Interpretation
Act 1918 2 and in particular sections 15 and 16 thereof;
and
(b) in any other case, the Interpretation Act 1984 and in
particular Part V thereof.
[Section 4 inserted by No. 100 of 1985 s. 3.]

5. Saving
(1) Nothing in this Act shall affect the provisions of any Act in
force on the commencing date that approves or ratifies any
agreement to which the State is a party and under which a party

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 Mining Act 1978
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s. 6

to the agreement is authorised or required to carry out any

mining operations pursuant to the agreement.
(2) Notwithstanding anything in the Second Schedule Division 1, a
party to an agreement referred to in subsection (1) —
(a) who is the holder of an existing mining tenement under
that agreement may continue, subject to that agreement,
to exercise the rights conferred by that mining tenement;
or
(b) to whom an existing right of occupancy has been
granted under section 276 of the repealed Act or that
agreement, or under both section 276 of the repealed Act
and that agreement, as the case requires, may continue,
subject to that agreement, to exercise that right of
occupancy,
as though the repealed Act had not been repealed.
(3) Subject to the relevant agreement referred to in subsection (1), a
person may, in accordance with this Act, apply for a mining
tenement in respect of an area or part thereof that is the subject
of a mineral lease granted in accordance with that agreement.
[Section 5 amended by No. 69 of 1981 s. 5; No. 51 of 2012 s. 4.]

6. Operation of this Act

(1) This Act shall be read and construed subject to the
Environmental Protection Act 1986, to the intent that if a
provision of this Act is inconsistent with a provision of that Act,
the first-mentioned provision shall, to the extent of the
inconsistency, be deemed to be inoperative.
(1a) Notwithstanding subsection (1) and section 5 of the
Environmental Protection Act 1986, in the case of an
application for a mining lease accompanied by the
documentation referred to in section 74(1)(ca)(ii) —
(a) only the applicant can refer a proposal to which the
application relates under section 38(1) of that Act; and

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Mining Act 1978
Part I Preliminary

s. 6

(b) section 38(5) of that Act does not apply to such a

proposal.
(1b) In subsection (1a) —
proposal has the meaning given to that term in section 3(1) of
the Environmental Protection Act 1986.
(1c) Subsection (1a) does not apply to an application for a mining
lease made pursuant to a Government agreement as defined in
section 2 of the Government Agreements Act 1979.
(1d) If a mining lease is granted on an application referred to in
subsection (1a), nothing in that subsection affects the
application of section 38 of the Environmental Protection
Act 1986 to —
(a) a programme of work lodged by the holder of the
mining lease in compliance with the condition referred
to in section 82(1)(ca); or
(b) a mining proposal lodged by the holder of the mining
lease in compliance with the condition referred to in
section 82A.
(2) Notwithstanding anything in this Act —
(a) a local government is not required to hold a mining
tenement to —
(i) exercise the power given to it by section 3.27 of,
and clause 3 of Schedule 3.2 to, the Local
Government Act 1995; or
(ii) remove from local government property (as
defined in that Act), rock, stone, clay, sand or
gravel for use in the construction of local
government facilities;
and
(b) if a local government leases local government property
to another person, that person is not required to hold a
mining tenement to remove from that land, rock, stone,

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s. 8

clay, sand or gravel for use in the construction of local

government facilities, unless the Minister requires that
person to hold a tenement.
(3) Whenever a provision of the Contaminated Sites Act 2003 is
inconsistent with a provision of this Act or a mining tenement,
the provision of the Contaminated Sites Act 2003 prevails.
[Section 6 amended by No. 100 of 1985 s. 4; No. 77 of 1986
s. 8; No. 14 of 1996 s. 4; No. 39 of 2004 s. 26; No. 12 of 2010
s. 4.]

[7. Deleted by No. 122 of 1982 s. 4.]

8. Terms used
(1) In this Act, unless the contrary intention appears —
agricultural used in relation to the purposes for which land is
occupied, includes cropping or pasturing purposes;
burial ground means an area of land reserved or demarcated
exclusively for the purpose of burials;
commencing date means the date of the coming into operation
of the provisions of this Act referred to in section 2(2) 1;
Commonwealth land means —
(a) land in respect of which the Commonwealth holds a
freehold or leasehold interest; or
(b) land that is otherwise vested in or held by the
Commonwealth or vested in or held by an officer or
person on behalf of the Commonwealth;
Corporations Act means the Corporations Act 2001 of the
Commonwealth;
Crown land means all land except —
(a) land that has been reserved for or dedicated to any
public purpose other than —
(i) land reserved for mining or commons;

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Mining Act 1978
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s. 8

(ii) land reserved and designated for public utility for

any purpose under the Land Administration
Act 1997;
(b) land that has been lawfully granted or contracted to be
granted in fee simple by or on behalf of the Crown;
(c) land that is subject to any lease granted by or on behalf
of the Crown other than —
(i) a pastoral lease within the meaning of the Land
Administration Act 1997, or a lease otherwise
granted for grazing purposes only; or
(ii) a lease for timber purposes; or
(iii) a lease of Crown land for the use and benefit of
the Aboriginal inhabitants;
(d) land that is a townsite within the meaning of the Land
Administration Act 1997;
dam means any accumulation or storage of water, whether
natural or artificial;
damage, in relation to agricultural land, includes the disturbance
of stock and any proper cost reasonably incurred for the purpose
of rectifying that disturbance;
dealing means a transfer or mortgage of a legal interest in a
mining tenement;
Department means the department of the Public Service of the
State principally assisting the Minister in the administration of
this Act;
Director General of Mines means the person for the time being
holding or acting in the office of chief executive officer of the
Department;
Director, Geological Survey means the person for the time
being holding or acting in the office of Director, Geological
Survey in the Department;
expenditure conditions in relation to a mining tenement means
the prescribed conditions applicable to a mining tenement that

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 Mining Act 1978
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s. 8

require the expenditure of money on or in connection with the

mining tenement or the mining operations carried out thereon or
proposed to be so carried out;
fossick means to search for, extract and remove rock, ore or
minerals, other than gold or diamonds, in quantities not
exceeding the prescribed amount and by means not prohibited
under the regulations, as samples or specimens for the purpose
of a mineral collection, lapidary work or a hobby interest;
geological sample includes a drill core;
ground disturbing equipment means —
(a) mechanical drilling equipment; or
(b) a backhoe, bulldozer, grader or scraper; or
(c) any other machinery of a kind prescribed for the
purposes of this definition;
identified mineral resource means a deposit of minerals
identified in the prescribed manner;
LAA Minister means the Minister to whom the administration
of the Land Administration Act 1997 is for the time being
committed by the Governor;
land includes water; and also includes —
(a) the foreshore as defined in section 25(1)(a); and
(b) the sea bed and subsoil between the mean low water
springs level and the inner limits of the coastal waters of
the State as defined in section 16(1) and (2) of the
Offshore Minerals Act 2003;
land under cultivation means land being used for agricultural
purposes and includes any land, whether cleared or uncleared,
used by a person for the grazing of stock in the ordinary course
of management of the land of that person where the land so used
for grazing forms the whole or a part of the land owned or
occupied by that person;
lapidary work includes the selection, cutting, polishing,
engraving and setting of rock or other minerals;

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s. 8

listed public company means a corporation that is a listed

corporation within the meaning of that expression in the
Corporations Act;
local government means the local government of the district in
which the matter in relation to which the term is used, arose or
is situated;
machinery includes all mechanical appliances of whatever kind
used or intended to be used for any mining purpose;
marine management area, marine nature reserve and marine
park have the meanings given to them by the Conservation and
Land Management Act 1984;
mine, as a noun, means any place in, on or under which mining
operations are carried on;
mine, as a verb, includes any manner or method of mining
operations;
mineral field means a mineral field constituted under this Act or
deemed so to be;
minerals means naturally occurring substances obtained or
obtainable from any land by mining operations carried out on or
under the surface of the land, but does not include —
(a) soil; or
(b) a substance the recovery of which is governed by the
Petroleum and Geothermal Energy Resources Act 1967
or the Petroleum (Submerged Lands) Act 1982; or
(ba) without limiting paragraph (b), geothermal energy
resources as defined in the Petroleum and Geothermal
Energy Resources Act 1967 section 5(1); or
(c) a meteorite as defined in the Museum Act 1969; or
(d) any of the following substances if it occurs on private
land —
(i) limestone, rock or gravel; or
(ii) shale, other than oil shale; or

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s. 8

(iii)sand, other than mineral sand, silica sand or

garnet sand; or
(iv) clay, other than kaolin, bentonite, attapulgite or
montmorillonite;
miner’s right means a miner’s right issued under section 40C;
mining includes fossicking, prospecting and exploring for
minerals, and mining operations;
mining operations means any mode or method of working
whereby the earth or any rock structure stone fluid or mineral
bearing substance may be disturbed removed washed sifted
crushed leached roasted distilled evaporated smelted combusted
or refined or dealt with for the purpose of obtaining any mineral
or processed mineral resource therefrom whether it has been
previously disturbed or not and includes —
(a) the removal of overburden by mechanical or other
means and the stacking, deposit, storage and treatment
of any substance considered to contain any mineral; and
(b) operations by means of which salt or other evaporites
may be harvested; and
(c) operations by means of which mineral is recovered from
the sea or a natural water supply; and
(da) operations by means of which a processed mineral
resource is produced and recovered; and
(d) the doing of all acts incident or conducive to any such
operation or purposes;
mining product means any material won from land by mining;
mining registrar means a mining registrar appointed in
accordance with this Act or deemed so to be and includes a
reference to the person holding, acting in, or performing the
functions of a prescribed office or position in the Department;
mining tenement means a prospecting licence, exploration
licence, retention licence, mining lease, general purpose lease or
a miscellaneous licence granted or acquired under this Act or by
virtue of the repealed Act; and includes the specified piece of

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Mining Act 1978
Part I Preliminary

s. 8

land in respect of which the mining tenement is so granted or

acquired;
occupier in relation to any land includes any person in actual
occupation of the land under any lawful title granted by or
derived from the owner of the land;
oil shale includes naturally occurring hydrocarbons that are or
may be contained in rocks from which they cannot be recovered
otherwise than by mining those rocks as oil shale;
owner in relation to any land means —
(a) the registered proprietor thereof or in relation to land not
being land under the Transfer of Land Act 1893 the
owner in fee simple or the person entitled to the equity
of redemption thereof; or
(b) the lessee or licensee from the Crown in respect thereof;
or
(c) the person who for the time being, has the lawful control
and management thereof whether on trust or otherwise;
or
(d) the person who is entitled to receive the rent thereof;
prescribed official means the holder of an office in the
Department that is prescribed, or is of a class prescribed, for the
purposes of the provision in which the term is used;
private land means any land, other than Commonwealth land,
that has been or may hereafter be alienated from the Crown for
any estate of freehold, or is or may hereafter be the subject of
any conditional purchase agreement, or of any lease or
concession with or without a right of acquiring the fee simple
thereof (not being a pastoral lease within the meaning of the
Land Administration Act 1997 or a lease or concession
otherwise granted by or on behalf of the Crown for grazing
purposes only or for timber purposes or a lease of Crown land
for the use and benefit of the Aboriginal inhabitants) but —
(a) in relation to mining for minerals other than gold, silver
and precious metals, for the purposes of Division 3 of

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 Mining Act 1978
Preliminary Part I

s. 8

Part III, does not include land alienated before

1 January 1899, except as provided in that Division; and
(b) other than in so far as the primary tenement may be
treated as private land in relation to mining for gold
pursuant to a special prospecting licence or mining lease
under section 56A, 70 or 85B, does not include land that
is the subject of a mining tenement; and
(c) no land that has been reserved for or dedicated to any
public purpose shall be taken to be private land by
reason only that any lease or concession is granted in
relation thereto for any purpose;
processed mineral resource means a substance produced from a
mineral that is under the surface of land without the mineral
being removed from the land;
public purpose means any of the purposes for which land may
be reserved under Part 4 of the Land Administration Act 1997,
and any purpose declared by the Governor pursuant to that Act,
by notification in the Government Gazette to be a public
purpose within the meaning of that Act;
register means the register kept under section 103F;
registration means registration under section 103C;
related has a meaning affected by subsection (4);
repealed Act means the Mining Act 1904 3;
retention status has a meaning affected by subsection (5);
reversion licence application means a reversion licence
application authorised by an order under section 120AA(2);
the warden or the mining registrar means the warden or the
mining registrar of the mineral field or district thereof in which
the subject matter in relation to which the term is used arose or
is;
vehicle includes an aircraft, helicopter or air cushion vehicle;
warden means a warden of mines appointed in accordance with
this Act;

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Mining Act 1978
Part I Preliminary

s. 8

warden’s court means the warden’s court constituted under this

Act or deemed so to be for the mineral field or district thereof in
which the subject matter in relation to which the term is used
arose or is.
(2) Notwithstanding anything in subsection (1), the Minister may,
in the event of a dispute whether a particular substance is or is
not oil shale, decide whether that substance is or is not oil shale
for the purposes of this Act and the Petroleum and Geothermal
Energy Resources Act 1967 and his decision in the matter shall
be final.
(3) A reference in this Act to the owner and occupier of private land
includes a reference to a person who is both the owner and
occupier of private land and parts of speech in the plural number
shall be construed accordingly.
(4) For the purposes of this Act a person is related to —
(a) an individual, if the person is —
(i) a spouse or de facto partner; or
(ii) a parent, grandparent or great-grandparent; or
(iii) a child, grandchild or great-grandchild; or
(iv) a sibling,
of the individual, whether the relationship is a step
relationship or a relationship established by, or traced
through marriage or a de facto relationship, a written
law or a natural relationship; and
(b) a body corporate, if the person is a related entity (as
defined in section 9 of the Corporations Act) in relation
to the body corporate.
(5) For the purposes of this Act —
(a) a prospecting licence has retention status if an approval
under section 54 has effect in relation to the licence; and
(b) an exploration licence has retention status if an approval
under section 69B has effect in relation to the licence.

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 Mining Act 1978
Preliminary Part I

s. 8A

[Section 8 amended by No. 69 of 1981 s. 6; No. 122 of 1982

s. 5; No. 100 of 1985 s. 5; No. 105 of 1986 s. 7; No. 22 of 1990
s. 4; No. 37 of 1993 s. 10(2), 12(2), 26 and 27; No. 14 of 1996
s. 4; No. 54 of 1996 s. 4; No. 5 of 1997 s. 40; No. 31 of 1997
s. 71(1) and 141; No. 10 of 2001 s. 130; No. 15 of 2002 s. 4;
No. 12 of 2003 s. 4; No. 28 of 2003 s. 152; No. 39 of 2004 s. 20,
42, 47 and 87; No. 27 of 2005 s. 4; No. 35 of 2007 s. 100(2) and
(3); No. 8 of 2010 s. 17; No. 12 of 2010 s. 14; (correction to
reprint in Gazette 1 Jun 2012 p. 2282); No. 51 of 2012 s. 5.]

8A. Rights in respect of oil shale or coal

(1) Notwithstanding anything in section 8, a mining tenement (other
than a coal mining lease) granted and in force under, or
continued in force by, this Act in respect of land which is the
subject of an exploration permit specified in the Schedule to the
Petroleum and Geothermal Energy Resources Act 1967 does
not confer on the holder of that mining tenement any rights in
respect of oil shale or coal.
(2) If land referred to in subsection (1) ceases to be the subject of an
exploration permit referred to in that subsection, the holder of
the mining tenement referred to in that subsection may apply to
the Minister for rights in respect of oil shale or coal or both in
respect of that land.
(3) On receiving an application made under subsection (2), the
Minister may in writing confer on the applicant such rights in
respect of oil shale or coal or both in respect of the land
concerned as he thinks fit, in which case the mining tenement
concerned shall be amended accordingly.
[Section 8A inserted by No. 69 of 1981 s. 7; amended by No. 35
of 2007 s. 100(4).]

9. Gold, silver and other precious metals property of Crown

(1) Subject to this Act —

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Mining Act 1978
Part I Preliminary

s. 9A

(a) all gold, silver, and any other precious metal existing in
its natural condition on or below the surface of any land
whether alienated or not alienated from the Crown and if
alienated whenever alienated, is the property of the
Crown;
(b) all other minerals existing in their natural condition on
or below the surface of any land that was not alienated
in fee simple from the Crown before 1 January 1899 are
the property of the Crown.
(2) Notwithstanding anything in this Act or any previous enactment
the owner, grantee, lessee or licensee of, or other person entitled
to, any land to which this section or any corresponding
provisions apply, that is not the subject of a mining tenement, is
entitled to use any mineral existing in a natural state on or
below the surface of the land for any agricultural, pastoral,
household, road making, or building purpose, on that land.
[Section 9 amended by No. 12 of 2003 s. 5.]

9A. Effect of change of baseline

(1) If —
(a) an offshore area is covered by a mining tenement; and
(b) there is a change to the inner limit of the coastal waters
of the State as defined in section 16(1) and (2) of the
Offshore Minerals Act 2003; and
(c) as a result of the change the offshore area comes within
those coastal waters,
this Act applies, while the tenement or any successor tenement
remains in force, as if the area were still within the offshore
area.
(2) In subsection (1) —
offshore area means an area that comes within paragraph (b) of
the definition of land in section 8(1).
(3) If —

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 Mining Act 1978
Preliminary Part I

s. 9A

(a) a mining lease takes effect immediately after an

exploration licence expires; and
(b) the holder of the mining lease immediately after it takes
effect was the holder of the exploration licence
immediately before it expired,
the mining lease is a successor tenement to the exploration
licence for the purposes of subsection (1).
(4) If —
(a) a retention licence takes effect immediately after an
exploration licence expires; and
(b) the holder of the retention licence immediately after it
takes effect was the holder of the exploration licence
immediately before it expired,
the retention licence is a successor tenement to the exploration
licence for the purposes of subsection (1).
(5) If —
(a) a mining lease takes effect immediately after a retention
licence expires; and
(b) the retention licence took effect immediately after an
exploration licence expired; and
(c) the holder of the mining lease immediately after it takes
effect was the holder of the retention licence
immediately before it expired; and
(d) the holder of the retention licence immediately after it
took effect was the holder of the exploration licence
immediately before it expired,
the mining lease is a successor tenement to the exploration
licence and the retention licence for the purposes of
subsection (1).
[Section 9A inserted by No. 12 of 2003 s. 6.]

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Mining Act 1978
Part I Preliminary

s. 9B

9B. Position on Earth’s surface

(1) Where for the purposes of this Act, or the regulations made for
the purposes of this Act, it is necessary to determine the position
on the surface of the Earth of a point, line or area, that position
is to be determined by reference to the prescribed Australian
datum.
(2) Regulations that prescribe a datum for the purposes referred to
in subsection (1), or amend that datum or prescribe another
datum to replace that datum, may make any transitional or
savings provisions that are necessary or convenient to be
made —
(a) in relation to mining tenements granted or acquired
before the regulations take effect; or
(b) in relation to applications for mining tenements pending
when the regulations take effect; or
(c) for any other purpose.
(3) Regulations referred to in subsection (2) may modify or
otherwise affect the operation of this Act.
[Section 9B inserted by No. 54 of 2000 s. 5(2).]

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 Mining Act 1978
Administration, mineral fields and courts Part II

s. 10

Part II — Administration, mineral fields and courts

10. Administration of Act

(1) This Act shall be administered by the Minister.

(2) The Minister —

(a) shall be a corporation sole, with perpetual succession
and shall have an official seal; and
(b) may, in his corporate name, acquire, hold, lease and
otherwise dispose of real and personal property, and
may sue and be sued in that name.

(3) All courts, judges and persons acting judicially shall take notice
of the official seal of the Minister affixed to a document and
shall presume that it was duly affixed.

11. Chief executive officer and other officers

There shall be a department of the Public Service of the State to

assist the Minister in the administration of this Act, to which
department there shall be appointed, under Part 3 of the Public
Sector Management Act 1994, a chief executive officer and such
number of persons to be mining registrars, geologists,
surveyors, inspectors and such other officers as may be
necessary for the due administration of this Act.
[Section 11 amended by No. 113 of 1987 s. 32; No. 32 of 1994
s. 19.]

12. Delegation

(1) The Minister may —

(a) by instrument in writing delegate any of his powers and
functions (except this power of delegation) to —
(i) any officer of the Department; or

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Mining Act 1978
Part II Administration, mineral fields and courts

s. 13

(ii) the person for the time being occupying a

position in the Department,
being an officer named or a position specified in the
instrument of delegation; and
(b) vary or revoke a delegation given by him.
(2) Any delegation of a power or function under this section by the
Minister ceases to have effect upon the appointment (other than
in the capacity of an acting Minister) of another person to be the
Minister for the purpose of this Act.
(3) A power or function delegated by the Minister under this
section —
(a) shall, if exercised or performed, be exercised or
performed in accordance with the instrument of
delegation; and
(b) may, if the exercise of the powers or the performance of
the functions is dependent upon the opinion, belief or
state of mind of the Minister in relation to a matter — be
exercised upon the opinion, belief or state of mind of the
delegate in relation to that matter.
[Section 12 amended by No. 100 of 1985 s. 6.]

13. Wardens of mines, mining registrar

(1) Any person holding office as a magistrate under the Magistrates
Court Act 2004, may be appointed by the Governor to be a
warden of mines and is thereby authorised and empowered to
preside in a warden’s court.
[(2), (3) deleted]
(4) A person who holds office under Part 3 of the Public Sector
Management Act 1994 may, with the consent of the Public
Sector Commissioner, be appointed to hold or act in the office
of a mining registrar notwithstanding that he is not a person
appointed to the Department pursuant to section 11 and that
person shall, whilst holding, acting in or performing the

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 Mining Act 1978
Administration, mineral fields and courts Part II

s. 15

functions of the office of mining registrar, be deemed for the

purposes of this Act to be an officer of the Department.
[Section 13 amended by No. 100 of 1985 s. 7; No. 32 of 1994
s. 19; No. 39 of 2004 s. 48; No. 59 of 2004 s. 116; No. 39 of
2010 s. 89.]

[14. Deleted by No. 39 of 2004 s. 49.]

15. Prohibition from adjudicating in certain matters or from

using certain information
(1) A warden who acts or adjudicates in any matter in which the
warden has directly or indirectly any pecuniary interest, is guilty
of a crime unless —
(a) the warden declares the nature of the interest to each of
the parties to the matter; and
(b) each of the parties consents to the warden so acting or
adjudicating.
Penalty: imprisonment for 2 years or a fine of $1 000.
(2) A warden or an officer appointed pursuant to section 11 who
uses any information that comes to his knowledge in the course
of, or by reason of, his appointment as a warden or as such an
officer for the purpose of personal gain is guilty of a crime.
Penalty: Imprisonment for 2 years or a fine of $1 000.
[Section 15 amended by No. 100 of 1985 s. 9; No. 70 of 2004
s. 82; No. 51 of 2012 s. 6.]

16. Power to proclaim mineral fields

(1) The Governor may, by proclamation —
(a) constitute any part of the State, including any area that
comes within paragraph (b) of the definition of land in
section 8(1), to be a mineral field; or
(b) divide any mineral field into districts; or

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Mining Act 1978
Part II Administration, mineral fields and courts

s. 16

(c) alter or amend the boundaries of a mineral field or

district; or
(d) abolish a mineral field or district.
(2) Any part of the State that was immediately before the
commencing date a mineral field or district thereof or a
goldfield or district thereof under the repealed Act, shall be
deemed to be a mineral field or district thereof constituted under
this Act and may be dealt with as provided in subsection (1).
(3) No Crown land that is in a mineral field shall be leased,
transferred in fee simple, or otherwise disposed of under the
provisions of the Land Administration Act 1997, without the
approval of the Minister.
[Section 16 amended by No. 31 of 1997 s. 71(2) and 141;
No. 12 of 2003 s. 7.]

[17. Deleted by No. 100 of 1985 s. 10.]

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 Mining Act 1978
Land open for mining Part III
Crown land Division 1
s. 18

Part III — Land open for mining

Division 1 — Crown land
18. Crown land open for mining
All Crown land, not being Crown land that is the subject of a
mining tenement, is open for mining and as such is land —
(a) where any person may set up pegs or otherwise mark out
the land pursuant to section 104 in connection with an
application for a mining tenement; and
(b) where the holder of a miner’s right may do the things
authorised by section 40D; and
(c) which may be made the subject of an application for a
mining tenement,
subject to and in accordance with this Act.
[Section 18 amended by No. 100 of 1985 s. 11; No. 51 of 2012
s. 7.]

19. Minister may exempt land from mining etc.

(1) The Minister may from time to time by instrument in writing
under his hand —
(a) exempt any land, not being private land or land that is
the subject of a mining tenement or of an application
therefor, from —
(i) mining; or
(ii) a specified mining purpose; or
(iii) this Act; or
(iv) a specified provision of this Act;
or
(b) vary or cancel an exemption referred to in paragraph (a),

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Mining Act 1978
Part III Land open for mining
Division 1 Crown land
s. 19

and shall cause any such instrument to be published in the

Government Gazette as soon as is practicable after its execution
by him.
(2) Each instrument made under subsection (1) has effect on and
from the date thereof and shall specify the area and description
of land to which the instrument relates.
(2a) An instrument made under subsection (1)(a) before the
prescribed day, has effect until it is cancelled under
subsection (1)(b).
(2b) An instrument made under subsection (1)(a) on or after the
prescribed day, has effect until it is cancelled under
subsection (1)(b) or until it expires under subsection (2c),
whichever occurs first.
(2c) An instrument referred to in subsection (2b) expires at the end
of the period of 2 years from its date unless it is extended for a
period or periods (not exceeding 2 years at a time) by
instrument in writing under the Minister’s hand published in the
Government Gazette.
(2d) In subsections (2a) and (2b) the prescribed day means the day
on which section 4 of the Mining Amendment Act 1994 1
commences.
(3) While any land is so exempted from mining or any specified
mining purpose, or from this Act or any specified provision
thereof, the land to the extent of the exemption, may be dealt
with by the Minister in accordance with this section and to that
extent is not subject to the other provisions of this Act.
(4) The Minister may, while any land is exempted under this
section, call in such manner as he determines for applications
for the grant of such mining tenements as he determines in
respect of that land or a part thereof.
(5) A person applying to the Minister for the grant of a mining
tenement in respect of any land or a part thereof referred to in

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 Mining Act 1978
Land open for mining Part III
Crown land Division 1
s. 20

subsection (4) shall do so in such manner as the Minister

directs.
(6) On receiving an application made under subsection (5), the
Minister may —
(a) grant the mining tenement applied for or another mining
tenement subject to such terms and conditions as he
thinks fit; or
(b) refuse that application.
(7) This Act applies to a mining tenement granted under this
section as if that mining tenement had been granted under
Part IV.
(8) Nothing in this section authorises or allows land to which
section 24, 24A or 25 applies to be exempted from a provision
of Division 2 or to be dealt with otherwise than in accordance
with Division 2.
[Section 19 amended by No. 69 of 1981 s. 8; No. 100 of 1985
s. 12; No. 21 of 1993 s. 45; No. 58 of 1994 s. 4; No. 52 of 1995
s. 20; No. 5 of 1997 s. 41(2).]

20. Protection of certain Crown land

[(1)-(4) deleted]
(5) Notwithstanding that any Crown land to which this subsection
refers may be marked out as or be included in a mining
tenement, a mining tenement or Miner’s Right does not entitle
the holder thereof to prospect or fossick on, explore, or mine on
or under, or otherwise interfere with, any Crown land that is —
(a) for the time being under crop, or which is situated
within 100 m thereof;
(b) used as or situated within 100 m of a yard, stockyard,
garden, cultivated field, orchard, vineyard, plantation,
airstrip or airfield;

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Mining Act 1978
Part III Land open for mining
Division 1 Crown land
s. 20

(c) situated within 100 m of any land that is in actual

occupation and on which a house or other substantial
building is erected;
(d) the site of or situated within 100 m of any cemetery or
burial ground;
(e) land the subject of a pastoral lease within the meaning of
the Land Administration Act 1997 which is the site of, or
is situated within 400 m of the outer edge of, any water
works, race, dam, well or bore, not being an excavation
previously made and used for mining purposes by a
person other than a lessee of that pastoral lease,
without the written consent of the occupier, unless —
(ea) the warden in relation to any land other than land
referred to in paragraph (c) otherwise directs; or
(eb) in the case of mining, it is carried out not less than 30 m
below the lowest part of the natural surface of the land,
but nothing in this subsection prevents such a holder from
passing and repassing over any Crown land that is situated
within —
(f) 100 m of any Crown land that is —
(i) for the time being under crop; or
(ii) used as a yard, stockyard, garden, cultivated
field, orchard, vineyard, plantation, airstrip or
airfield; or
(iii) in actual occupation and on which a house or
other substantial building is erected; or
(iv) the site of any cemetery or burial ground;
or
(g) 400 m of any Crown land that is the site of any water
works, race, dam, well or bore,
in order to gain access to other land (not being Crown land
referred to in paragraph (f) or (g)), for the purpose of
prospecting or fossicking on, exploring, mining on or under, or

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 Mining Act 1978
Land open for mining Part III
Crown land Division 1
s. 20

marking out that other land but a warden shall not give a
direction under paragraph (ea) unless he is satisfied that the land
is bona fide required for mining purposes and he is satisfied that
compensation in accordance with section 123 for all loss or
damage suffered or likely to be suffered by an owner or
occupier of the land has been agreed upon or otherwise
determined, or is assessed and settled in accordance with this
Act.
(5a) The holder of a mining tenement or Miner’s Right who passes
or repasses over any Crown land that is situated within —
(a) 100 m of any Crown land referred to in
subsection (5)(f); or
(b) 400 m of any Crown land referred to in
subsection (5)(g),
in order to gain access to the other land referred to in
subsection (5) for the purpose referred to therein shall —
(c) before so passing or repassing, take all reasonable and
practicable steps to notify the occupier of the Crown
land so situated of his intention to do so; and
(d) when so passing or repassing —
(i) take all necessary steps to prevent fire, damage
to trees or other property and to prevent damage
to any property or damage to livestock by the
presence of dogs, the discharge of firearms, the
use of vehicles or otherwise; and
(ii) cause as little inconvenience as possible to the
occupier of the Crown land so situated; and
(iii) comply with any reasonable request made by the
occupier of the Crown land so situated in relation
to the manner in which that holder so passes or
repasses;
and

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Mining Act 1978
Part III Land open for mining
Division 1 Crown land
s. 21

(e) restrict the number of occasions on which he so passes

or repasses to the minimum necessary for the purpose of
prospecting or fossicking on, exploring, mining
operations on or under, or marking out that other land;
and
(f) make good any damage caused by that passing or
repassing to any improvements or livestock on the
Crown land so situated,
and the occupier of the Crown land so situated is entitled to be
compensated by that holder for any damage referred to in
paragraph (f) that is not made good by that holder, and, in
respect of land under cultivation, for any other loss or damage
for which that holder is liable in accordance with section 123.
(5b) The amount of any compensation payable under subsection (5a)
by the holder of the mining tenement or Miner’s Right
concerned to an occupier of Crown land referred to in that
subsection shall be determined —
(a) by agreement between that holder and that occupier; or
(b) in default of agreement, by the warden’s court on the
application of that holder or that occupier.
(5c) A determination made by the warden’s court under
subsection (5b) is, for the purposes of section 147(1), a final
determination of the warden’s court.
[Section 20 4 amended by No. 122 of 1982 s. 6; No. 100 of 1985
s. 13; No. 22 of 1990 s. 5; No. 31 of 1997 s. 141; No. 63 of 2000
s. 4; No. 15 of 2002 s. 5; No. 39 of 2004 s. 50 and 88; No. 51 of
2012 s. 8.]

[20A-20C. Deleted by No. 51 of 2012 s. 9.]

21. Power to resume land
(1) Any land, including land under the surface (not being land that
is the subject of a mining tenement or land on which mining
operations are lawfully being carried on under an agreement in

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 Mining Act 1978
Land open for mining Part III
Crown land Division 1
s. 21

writing with the owner of the land) that in the opinion of the
Governor on the recommendation of the Minister ought to be
taken for the purposes of this Act is hereby authorised to be
taken on behalf of the Crown pursuant to Part 9 of the Land
Administration Act 1997 as though the taking were required for
a public purpose, and for that purpose the Minister or the
Minister administering that Act may cause the land to be
inspected, surveyed, explored, and reported upon by such
officers and workmen as he directs, all of whom may thereupon
enter upon the land and carry out all necessary operations in
accordance with that Act.
(2A) In subsection (1) —
land does not include Commonwealth land.
(2) At the request of a person interested in land to which
subsection (1) refers, any other land that is being or is intended
to be used in conjunction with that land may be, and is hereby
authorised to be, taken on behalf of the Crown in accordance
with that subsection if the Governor, on the recommendation of
the Minister, so determines.
(3) Upon the taking of any land pursuant to this section the owner
and occupier is entitled to compensation, and the amount of the
compensation shall be determined in the manner prescribed by
Part 10 of the Land Administration Act 1997 but in assessing the
amount of the compensation to be paid no allowance shall be
made for the value of any minerals known or supposed to be on
or under the land taken, other than minerals which are the
property of the owner.
(4) Where it is agreed or the State Administrative Tribunal
determines that damage has been sustained by a claimant by
reason of the severance of the land taken from other adjoining
land of the claimant, the Governor, on the recommendation of
the Minister, may determine or the State Administrative
Tribunal may order that in accordance with this section such
adjoining land or some portion thereof shall also be taken.

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Mining Act 1978
Part III Land open for mining
Division 2 Public reserves, etc. and Commonwealth land
s. 22

[Section 21 amended by No. 100 of 1985 s. 14; No. 31 of 1997

s. 71(3)-(6); No. 55 of 2004 s. 570; No. 51 of 2012 s. 10.]

22. Effect of resumption

Where any private land is taken under section 21 pursuant to
Part 9 of the Land Administration Act 1997 that land shall for
the purposes of this Act be taken to be Crown land under and
subject to this Act, but every mining tenement granted in respect
of, or occupied upon the land shall notwithstanding any of the
provisions of this Act to the contrary, be subject to such rent,
royalty or other payment to the Crown as may be determined by
the Minister in each case, and the provisions as to royalty, other
than as to the amount thereof as hereinafter provided by this Act
shall be applicable.
[Section 22 amended by No. 100 of 1985 s. 15; No. 31 of 1997
s. 71(7).]

Division 2 — Public reserves, etc. and Commonwealth land

[Heading amended by No. 51 of 2012 s. 11.]

23. Mining on public reserves etc. and Commonwealth land

(1) Subject to this Act, a mining tenement may be applied for in
respect of the following land (not being land that is already the
subject of a mining tenement) —
(a) land, or land of a class, to which section 24, 24A or 25
applies;
(b) Commonwealth land.
(2) The holder of a mining tenement in respect of such land must
not carry out mining on or under that land otherwise than in
accordance with a relevant consent obtained in relation to that
land under section 24, 24A, 25 or 25A.
(3) A mining tenement held in relation to such land is liable to be
forfeited if the holder of the tenement —

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 Mining Act 1978
Land open for mining Part III
Public reserves, etc. and Commonwealth land Division 2
s. 24

(a) contravenes this section; or

(b) is in breach of any term or condition to which a consent
given under section 24, 24A, 25 or 25A is made subject.
[Section 23 inserted by No. 51 of 2012 s. 12.]

24. Classification of reserves

(1) The classes of land to which this section applies are —
(a) land that is in the South-West Division of the State as
described in Schedule 1 to the Land Administration
Act 1997, or in the local government district of
Esperance or Ravensthorpe and that is reserved under
Part 4 of that Act and classified as a class A reserve
pursuant to that Part or so classified pursuant to any
other Act; and
(b) any land comprised within —
(i) a national park, being land to which section 6(3)
of the Conservation and Land Management
Act 1984 applies; or
(ii) a nature reserve, being land to which section 6(5)
of the Conservation and Land Management
Act 1984 applies and which is reserved under
Part 4 of the Land Administration Act 1997 and
classified as a class A reserve pursuant to that
Part or so classified pursuant to any other Act; or
(iii) a nature reserve, not being land to which
section 6(5) of the Conservation and Land
Management Act 1984 applies but which is
reserved under Part 4 of the Land Administration
Act 1997 for the conservation of flora or fauna,
or both flora and fauna, and classified as a
class A reserve pursuant to that Part or so
classified pursuant to any other Act;
and

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Mining Act 1978
Part III Land open for mining
Division 2 Public reserves, etc. and Commonwealth land
s. 24

(c) land reserved under Part 4 of the Land Administration

Act 1997, not being —
(i) land to which paragraph (a) or (b) of this
subsection refers;
(ii) land reserved for mining or commons;
(iii) land reserved and designated for public utility for
any purpose pursuant to that Part;
(iv) land that is a townsite within the meaning of the
Land Administration Act 1997;
and
(d) land within the South West Mineral Field that is a State
forest or a timber reserve within the meaning of the
Conservation and Land Management Act 1984; and
(da) land, not being land to which paragraph (d) refers, that is
a State forest or a timber reserve within the meaning of
the Conservation and Land Management Act 1984; and
(e) land that is a water reserve or catchment area for the
purposes of the Metropolitan Water Supply, Sewerage,
and Drainage Act 1909 or of the Country Areas Water
Supply Act 1947 or any other relevant Act within the
meaning of that term as defined by section 5 of the
Water Agencies (Powers) Act 1984, or of that Act; and
(f) land to which Part III of the Aboriginal Affairs Planning
Authority Act 1972 applies; and
(fa) land dedicated under section 21 of the Western
Australian Land Authority Act 1992 or vested in or
under the control of the Western Australian Land
Authority established by that Act; and
(g) land that is reserved under any Act other than those Acts
already referred to in this subsection.
(2A) The Governor may, from time to time, by Order in Council,
apply this section to any other land or class of land specified in
the Order in Council and as from the date so specified this

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 Mining Act 1978
Land open for mining Part III
Public reserves, etc. and Commonwealth land Division 2
s. 24

section shall apply to the extent and in the manner specified in

the Order in Council.
(2B) The Minister shall cause an Order in Council made pursuant to
subsection (2A) to be laid on the table of each House of
Parliament within 12 sitting days of its making and if either
House does not pass a resolution disallowing such Order in
Council within 12 sitting days of that House after the Order in
Council has been laid before it the order in council shall have
effect from the date of its making.
(3A) Subject to subsection (4) mining may be carried out on any land
referred to in subsection (1)(a) or (b) with the written consent of
the Minister who may refuse his consent or who may give his
consent subject to such terms and conditions as the Minister
specifies in the consent.
(3B) Before giving his consent under subsection (3A) whether
conditionally or unconditionally the Minister shall first consult
with, and obtain the concurrence thereto, of the responsible
Minister.
(4) No mining lease or general purpose lease shall be granted on
any land referred to in subsection (1)(a) or (b) unless both
Houses of Parliament by resolution consent thereto, and then
only on such terms and conditions as are specified in the
resolution.
(5A) Mining on any land referred to in subsection (1)(c) may be
carried out with the written consent of the Minister who may
refuse his consent or who may give his consent subject to such
terms and conditions as the Minister specifies in the consent.
(5B) Before giving his consent under subsection (5A) whether
conditionally or unconditionally the Minister shall first consult
the responsible Minister and the local government, public body,
or trustees or other persons in which the control and
management of such land is vested with respect thereto, and
obtain its or their recommendations thereon.

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Mining Act 1978
Part III Land open for mining
Division 2 Public reserves, etc. and Commonwealth land
s. 24

(6A) Mining may be carried out on any land referred to in

subsection (1)(d) with the written consent of the Minister who
may refuse his consent or who may give his consent subject to
such terms and conditions as are specified in the consent.
(6B) Before giving his consent under subsection (6A), whether
conditionally or unconditionally the Minister shall first consult
with, and obtain the concurrence thereto, of the responsible
Minister.
(7A) Mining may be carried out on any land referred to in
subsection (1)(da), (e), (f), (fa) or (g) with the written consent of
the Minister who may refuse his consent or who may give his
consent, subject to such terms and conditions as are specified in
the consent.
(7B) Before giving his consent under subsection (7A), whether
conditionally or unconditionally, the Minister shall first consult
the responsible Minister with respect thereto and obtain his
recommendation thereon.
(7C) The giving by the Minister of his consent under subsection (7A)
in relation to land referred to in subsection (1)(f) does not
prevent or in any way affect the application of section 31 of the
Aboriginal Affairs Planning Authority Act 1972 to any person
acting under that consent.
(8) The responsible Minister for the purposes of this section is the
Minister for the time being charged with the administration of
the land or the enactment to which the land is subject, and if in
any case a question arises as to who is the responsible Minister
under this section, the question shall be determined by the
Governor whose decision shall be final.
[Section 24 amended by No. 122 of 1982 s. 7; No. 100 of 1985
s. 17; No. 105 of 1986 s. 8; No. 22 of 1990 s. 6; No. 20 of 1991
s. 57; No. 35 of 1992 s. 49; No. 73 of 1995 s. 188; No. 14 of
1996 s. 4; No. 54 of 1996 s. 5; No. 31 of 1997 s. 71(8)-(11);
No. 19 of 2010 s. 51.]

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 Mining Act 1978
Land open for mining Part III
Public reserves, etc. and Commonwealth land Division 2
s. 24A

24A. Mining in marine reserves

(1) Without limiting section 23, nothing in section 13A, 13B or 13C
of the Conservation and Land Management Act 1984 —
(a) prevents a mining tenement from being —
(i) held and renewed; or
(ii) applied for, granted, held and renewed,
in a marine nature reserve, marine park or marine
management area; or
(b) affects the validity or effect of a mining tenement in a
marine nature reserve, marine park or marine
management area.
(2) Subject to subsection (4) mining may be carried out in a marine
nature reserve or marine park with the written consent of the
Minister who may refuse consent or who may give consent
subject to such terms and conditions as the Minister specifies in
the consent.
(3) Before giving consent under subsection (2), whether
conditionally or unconditionally, the Minister shall first —
(a) consult, and obtain the concurrence of, the conservation
Minister; and
(b) consult and obtain the recommendations of the fisheries
Minister and the marine Minister.
(4) No mining lease or general purpose lease shall be granted in
respect of any marine nature reserve or marine park unless both
Houses of Parliament by resolution consent to the grant, and
then only on such terms and conditions as are specified in the
resolution.
(5) Mining in any marine management area may be carried out with
the written consent of the Minister who may refuse consent or
who may give consent subject to such terms and conditions as
the Minister specifies in the consent.

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Mining Act 1978
Part III Land open for mining
Division 2 Public reserves, etc. and Commonwealth land
s. 24A

(6) Before giving consent under subsection (5), whether

conditionally or unconditionally, the Minister shall first consult
and obtain the recommendations of the conservation Minister,
the fisheries Minister and the marine Minister.
(7) Despite any consent given under subsection (2) or (4), nothing
in this Act authorises the disturbance of —
(a) the sea bed or other land beneath waters in any restricted
area in a mining tenement; or
(b) land in any restricted area in a mining tenement; or
(c) the subsoil below any sea bed or land referred to in
paragraph (a) or (b), to a depth of 200 m.
(8) Subsection (7) applies only if the restricted area was a restricted
area when the mining tenement was granted.
(9) In this section —
conservation Minister means the Minister for the time being
charged with the administration of the Conservation and Land
Management Act 1984;
fisheries Minister means the Minister for the time being
charged with the administration of the Fish Resources
Management Act 1994;
marine Minister means the Minister for the time being charged
with the administration of the Marine and Harbours Act 1981;
restricted area means —
(a) any area of a marine nature reserve; or
(b) any area of a marine park which is classified by notice
under section 62 of the Conservation and Land
Management Act 1984 as —
(i) a sanctuary area; or
(ii) a recreation area; or

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 Mining Act 1978
Land open for mining Part III
Public reserves, etc. and Commonwealth land Division 2
s. 25

(iii) a special purpose area which, or that part of such

an area which, the conservation Minister has
declared in the classification notice to be an area
where disturbance of the land, sea bed or subsoil
would be incompatible with a conservation
purpose specified in the classification notice.
[Section 24A inserted by No. 5 of 1997 s. 41(1); amended by
No. 10 of 1998 s. 52.]
25. Mining on foreshore, sea bed, navigable waters or townsite
(1) The classes of land to which this section applies are —
(a) any part of the foreshore, being the area between the
mean high water springs level of the sea and the mean
low water springs level of the sea; and
(b) any part of the sea bed between the mean low water
springs level of the sea and the inner limits of the coastal
waters of the State as defined in section 16(1) and (2) of
the Offshore Minerals Act 2003; and
(c) any land under navigable waters in the State; and
(d) any land that is a townsite within the meaning of the
Land Administration Act 1997,
but this section does not apply to land that is part of a marine
nature reserve, marine park or marine management area.
(2A) Mining on any land referred to in subsection (1)(a), (b) or (c)
may be carried out with the written consent of the Minister who
may refuse his consent or who may give his consent subject to
such terms and conditions as the Minister specifies in the
consent.
(2B) Before giving his consent under subsection (2A) whether
conditionally or unconditionally the Minister shall first consult
the Minister to whom the administration of the Fish Resources
Management Act 1994 is for the time being committed by the
Governor, the Minister to whom the administration of the
Marine and Harbours Act 1981 is for the time being committed

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Mining Act 1978
Part III Land open for mining
Division 2 Public reserves, etc. and Commonwealth land
s. 25A

by the Governor, the LAA Minister and the Minister to whom

the administration of the Environmental Protection Act 1986 is
for the time being committed by the Governor with respect
thereto and obtain their recommendations thereon.
(3A) Mining on any land referred to in subsection (1)(d) may be
carried out with the written consent of the Minister who may
refuse his consent or who may give his consent subject to such
terms and conditions as the Minister specifies in the consent.
(3B) Before giving his consent under subsection (3A) whether
conditionally or unconditionally the Minister shall first consult
the LAA Minister and the local government, in respect thereto
and obtain their recommendations thereon.
[Section 25 amended by No. 77 of 1986 s. 9; No. 22 of 1990
s. 7; No. 37 of 1993 s. 4; No. 14 of 1996 s. 4; No. 5 of 1997
s. 42; No. 31 of 1997 s. 71(12) and 141; No. 24 of 2000
s. 26(1); No. 12 of 2003 s. 8; No. 8 of 2010 s. 18; No. 19 of
2010 s. 51.]

25A. Mining on Commonwealth land

(1) Mining may be carried out on Commonwealth land with the
written consent of the Minister who may refuse consent or who
may give consent subject to such terms and conditions as the
Minister specifies in the consent.
(2) Before giving consent under subsection (1), whether
conditionally or unconditionally, the Minister must first consult,
and obtain the concurrence of, the Minister of the
Commonwealth responsible for the control and management of
the land.
[Section 25A inserted by No. 51 of 2012 s. 13.]

26. Terms and conditions

(1) The terms and conditions that may be imposed pursuant to
sections 24, 24A, 25 and 25A may include among others a
condition that —

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 Mining Act 1978
Land open for mining Part III
Public reserves, etc. and Commonwealth land Division 2
s. 26

(a) any person carrying out mining operations on the land

shall make good injury to the surface of the land or
injury to anything on the surface thereof;
(b) if default is made in making good any such injury the
person having the control and management of such land
may carry out the work necessary to do so and recover
the cost thereof in a court of competent jurisdiction from
the person in default;
(c) mining operations shall be confined to such depth below
the surface of the land as may be specified in the
conditions;
(d) the person carrying out such mining operations shall
lodge with the Minister, within such period as the
Minister specifies in writing, a security to cover the
probable cost of the work referred to in paragraph (b);
(e) compensation to be assessed in accordance with this Act
shall be paid to the person having the control and
management of the land affected for any loss or damage
caused by such mining operations.
(1a) A security referred to in subsection (1)(d) shall be in accordance
with and subject to section 126.
(2) In relation to any application for a mining tenement in respect of
any land, or land of a class, to which section 24, 24A or 25
applies —
(a) land to which section 24(1)(a) or (b) refers may be
marked out only with the consent of the Minister and the
responsible Minister; and
(aa) a marine nature reserve or marine park may be marked
out only with the consent of the Minister and the
conservation Minister as defined in section 24A(9); and
(b) land to which section 24(1)(d) refers may be marked out
only in accordance with such conditions and restrictions,
if any, as are lawfully prescribed pursuant to

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Mining Act 1978
Part III Land open for mining
Division 2 Public reserves, etc. and Commonwealth land
s. 26A

section 128(1)(h) of the Conservation and Land

Management Act 1984,
but otherwise the land shall be marked out as a mining tenement
in accordance with this Act.
(3) The responsible Minister for the purposes of subsection (2)(a) is
the person who is the responsible Minister in relation to the land
as determined pursuant to section 24(8).
(4) In relation to any application for a mining tenement in respect of
Commonwealth land, the Commonwealth land may be marked
out only with the consent of the Minister and the Minister of the
Commonwealth responsible for the control and management of
the land, but otherwise the land is to be marked out as a mining
tenement in accordance with this Act.
[Section 26 amended by No. 100 of 1985 s. 18; No. 5 of 1997
s. 41(2); No. 17 of 1999 s. 4; No. 51 of 2012 s. 14.]

26A. Mining tenements within townsites

(1) Where any land that is a townsite within the meaning of the
Land Administration Act 1997 is the subject of a mining
tenement and the Minister considers that the land or a part of the
land is required for community purposes, the Minister may, by
notice in writing given to the holder of the mining tenement,
require the holder to surrender the land specified in the notice to
a depth of 15 m from the lowest part of the natural surface of
that land, within a period of 30 days after the giving of the
notice.
(2) Where the holder of a mining tenement fails to surrender land
when required to do so under subsection (1), the land specified
in the notice shall, on the expiry of the period referred to in that
subsection, be deemed to have been surrendered and a memorial
to that effect shall be entered in the register.

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 Mining Act 1978
Land open for mining Part III
Public reserves, etc. and Commonwealth land Division 2
s. 26A

(3) Where land is surrendered or deemed to have been surrendered

under this section, the holder of the mining tenement in respect
of that land may, while the mining tenement remains in force —
(a) with the approval of the Minister and subject to such
terms and conditions as the Minister thinks fit, explore
for minerals on that land;
(b) if that land ceases to be a townsite within the meaning of
the Land Administration Act 1997, or otherwise with the
approval of the Minister, apply to have that land or a
part of that land reincorporated in the mining tenement.
(4) The Minister shall consider an application under
subsection (3)(b) and may —
(a) grant the application, and the mining tenement shall be
endorsed to reincorporate the land to which the
application relates; or
(b) refuse the application.
(5) Subject to subsections (3)(a) and (4), land surrendered or
deemed to have been surrendered under this section is not open
for mining while the mining tenement in respect of that land
remains in force.
(6) Where part of land the subject of a mining tenement is
surrendered pursuant to subsection (1), section 95(4) and (5)
apply, with such modifications as the circumstances require, for
the purpose of that surrender.
(7) Where part of land the subject of a mining tenement is deemed
to have been surrendered pursuant to subsection (2),
section 95(5) applies, with such modifications as the
circumstances require, for the purpose of that surrender.
(8) Where land the subject of a mining tenement is surrendered or
deemed to have been surrendered under this section the holder
of the mining tenement is entitled to claim and receive
compensation under Part 10 of the Land Administration

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 27

Act 1997 as if the land had been taken by the Crown under
that Act.
(9) Section 205 of the Land Administration Act 1997 applies to a
claim for compensation referred to in subsection (8) except that
the compensation payable is limited to compensation for actual
loss sustained through damage to buildings or other structures
on the surface of the land.
[Section 26A inserted by No. 22 of 1990 s. 8; amended by
No. 54 of 1996 s. 6; No. 31 of 1997 s. 71(13)-(16).]

Division 3 — Private land

27. Private land open for mining
(1) Subject to this Act, a mining tenement may be applied for in
respect of any private land (which for the purposes of this
Division does not include private land that is the subject of a
mining tenement, other than in relation to mining for gold
pursuant to a special prospecting licence or mining lease under
section 56A, 70 or 85B in which case the land which is the
subject of the application for that licence or lease is to be dealt
with as private land) and such land is open for mining in
accordance with this Act.
(2) This Division does not apply to the land specified in the Third
Schedule.
[Section 27 amended by No. 100 of 1985 s. 19; No. 37 of 1993
s. 12(2).]

28. Unlawful entry on private land

No person shall enter or remain upon the surface of any private
land for any of the purposes of this Division or those specified
in section 104(1) unless he —
(a) is the owner in occupation of that private land; or

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 Mining Act 1978
Land open for mining Part III
Private land Division 3
s. 29

(b) is authorised to do so, by a permit issued under

section 30, or by any other provision of this Act, or by
virtue of a mining tenement.
[Section 28 amended by No. 39 of 2004 s. 51.]

29. Granting of mining tenements in respect of private land

(1) Subject to this Act, but notwithstanding any other Act or law, a
mining tenement may be granted in respect of an area that
consists of private land only or partly of private land and partly
of any other land and the authority conferred thereby on the
holder thereof may be exercised by that holder in respect of any
such land.
(2) Except with the consent in writing of the owner and the
occupier of the private land concerned, a mining tenement shall
not be granted in respect of private land —
(a) which is in bona fide and regular use as a yard,
stockyard, garden, orchard, vineyard, plant nursery or
plantation or is land under cultivation; or
(b) which is the site of a cemetery or burial ground; or
(c) which is the site of a dam, bore, well or spring; or
(d) on which there is erected a substantial improvement; or
(e) which is situated within 100 m of any private land
referred to in paragraph (a), (b), (c) or (d); or
(f) which is a separate parcel of land and has an area of
2 000 m2 or less,
unless the mining tenement is granted only in respect of that
part of that private land which is not less than 30 m below the
lowest part of the natural surface of that private land.
[(3) deleted]
(4) If a question arises as to whether something is a substantial
improvement for the purposes of subsection (2)(d), the question

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 29

is to be determined by the warden and the warden’s

determination is final and conclusive and not subject to appeal.
(5) The holder of a mining tenement which —
(a) has been granted wholly or partly in respect of private
land referred to in subsection (2)(a), (b), (c), (d), (e)
or (f); but
(b) has not been granted in respect of that portion of the
private land referred to in paragraph (a) that is less than
30 m below the lowest part of the natural surface of that
private land because the consents referred to in
subsection (2) have not been given,
may apply to the Minister for that mining tenement to be
amended by granting it in respect of the portion referred to in
paragraph (b) as well as in respect of the land in respect of
which that mining tenement is already granted and that portion,
whilst the right so to apply subsists, is not open for mining to
any other person.
(6) On receiving an application made under subsection (5), the
Minister may, if he is satisfied that both the owner and the
occupier of the private land referred to in paragraph (a) of that
subsection have consented in writing to the grant of the mining
tenement concerned in respect of the portion referred to in
paragraph (b) of that subsection, grant that application.
(6a) Subsection (6b) applies to a mining tenement if it —
(a) has been granted wholly or partly in respect of private
land referred to in subsection (2)(a), (b), (c), (d), (e)
or (f); but
(b) has not been granted in respect of that portion of the
private land (the relevant portion) that is less than 30 m
below the lowest part of the natural surface of that
private land because the consents referred to in
subsection (2) have not been given.

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 Mining Act 1978
Land open for mining Part III
Private land Division 3
s. 29

(6b) If during the currency of a mining tenement to which this

subsection applies, the relevant portion or any part of the
relevant portion ceases to be private land, the relevant portion or
that part of the relevant portion, as the case requires, is, by
operation of this subsection, included in the mining tenement.
(7) A mining tenement granted under this Division in respect of any
private land —
(a) shall, subject to this Act, authorise the holder of that
mining tenement —
(i) to carry out mining on the natural surface of the
private land and at any depth thereunder; or
(ii) to carry out mining at a depth of not less than
30 m from the lowest part of the natural surface
of the private land;
(b) shall comprise a right of access by a right of way, to be
marked in the prescribed manner at the expense of the
holder of that mining tenement, from the private land
through any land, whether occupied under a mining
tenement or otherwise, to the nearest practicable point of
a street or road, but except with the consent in writing of
the owner and the occupier of any land used as a yard,
garden, orchard or cultivated field no such right of way
shall be had by the holder of that mining tenement
through that land;
(c) does not without the consent in writing of the owner and
the occupier of the private land authorise the holder of
that mining tenement to use water artificially conserved
by that owner or occupier or to fell trees, strip bark or
cut timber on the private land or, except in connection
with mining carried out on the private land, to remove
earth or rock therefrom;
(d) does not authorise the holder of that mining tenement to
impound any stock or other animals belonging to or
being in the custody or under the control of the owner or

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 30

occupier of any land adjoining the mining tenement, or

to disturb or molest any such stock or other animals in
any manner whatever, or to prevent any such stock or
other animals from depasturing on or over the land the
subject of the mining tenement, unless that land is
fenced.
[Section 29 inserted by No. 69 of 1981 s. 9; amended by
No. 100 of 1985 s. 20; No. 105 of 1986 s. 9; No. 58 of 1994 s. 6;
No. 39 of 2004 s. 52.]

30. Granting of permits in respect of private land

(1) A person who desires to enter on any private land to search for
any mineral or to mark out a mining tenement may apply for a
permit to enter on the private land.
(2) An application under subsection (1) shall be made in the
prescribed manner and be in the prescribed form and shall
contain a description of the private land concerned that is
sufficient to enable the land to be identified.
(3) A warden or a prescribed official, on being satisfied that an
application made under subsection (1) is made in good faith,
may grant a permit in writing to enter on the private land
concerned —
(a) for such term not exceeding 30 days from the date
thereof; and
(b) subject to such conditions, not being conditions
preventing the marking out of any mining tenement or
the maintenance of any marks or notices relating thereto,
as he thinks fit and specifies in that permit and, where the holder
of the permit marks out and applies for a mining tenement in
relation to that land or any part thereof, the permit shall be
deemed to continue in force, for the purpose only of repairing or
maintaining the marks so set up and the notices posted thereon,
until such time as the application for the mining tenement is
determined.

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 Mining Act 1978
Land open for mining Part III
Private land Division 3
s. 30

(4) A warden or a prescribed official may, on granting a permit

under subsection (3), fix a sum of money and require that sum
to be paid to the Director General of Mines by the applicant for
the permit before the issue thereof to the applicant.
(5) A sum fixed under subsection (4) shall be a sum that, in the
opinion of the warden or prescribed official, would provide
reasonable compensation to the owner and the occupier of the
private land to which the permit concerned relates for any
damage likely to be caused by the holder of the permit during
the currency of the permit.
(6) The owner or the occupier of the private land to which a permit
relates may apply to the warden’s court within the prescribed
period for payment of all or part of a sum paid by the holder of
the permit under subsection (4).
(6a) If the warden’s court is satisfied, on an application made under
subsection (6), that the applicant has suffered damage caused by
the holder of the permit during the currency of the permit, the
warden’s court may order that all or part of the sum be paid to
the applicant.
(6b) If an order is made under subsection (6a) that all of the sum be
paid to the applicant, the Director General of Mines shall give
effect to the order.
(6c) If an order is made under subsection (6a) that part of the sum be
paid to the applicant, the Director General of Mines shall —
(a) give effect to the order; and
(b) pay the balance of the sum to the holder of the permit.
(6d) If —
(a) no application is made under subsection (6); or
(b) an application made under subsection (6) is refused,
withdrawn or discontinued,
the Director General of Mines shall pay the sum to the holder of
the permit.

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 31

(7) A permit under subsection (3) shall be deemed to be held

subject to the condition that the holder is liable —
(a) in accordance with section 123, in respect of loss or
damage arising out of the lawful exercise of the
authorisation conferred by the permit; and
(b) generally for any loss or damage arising by reason of
any entry on the land effected in purported pursuance of
the authorisation conferred by the permit where the
exercise of that authorisation contravened conditions to
which the permit was subject or the entry was otherwise
unlawful.
(8) In this section —
prescribed official means a person who holds or acts in an
office or position in the Department that is prescribed for the
purposes of this section.
[Section 30 inserted by No. 69 of 1981 s. 10; amended by
No. 100 of 1985 s. 21; No. 22 of 1990 s. 9; No. 39 of 2004
s. 53.]

31. Holder of permit to give notice to owner and occupier

(1) The holder of a permit issued under section 30 or his duly
authorised employee or agent shall hand a copy of the permit to
the occupier of the private land over which the permit has been
granted on the first occasion that the holder, his employee or
agent enters upon that land after the issue of the permit, but if
the occupier is not present on the private land on that occasion,
the holder of the permit, his employee or agent shall —
(a) on entering the land on that occasion place a copy of the
permit in a prominent position on the occupier’s
dwelling or in a prominent position at the main entrance
to the land if no such dwelling is situated on the land;
and
(b) in any event, within 48 hours of his first entering the
land after the issue of the permit, cause a copy of the

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 Mining Act 1978
Land open for mining Part III
Private land Division 3
s. 32

permit to be sent by prepaid registered post to the

occupier at his last known place of abode or business.
(2) Where the occupier of the private land is also the owner or one
of the owners of that private land, no further notice other than
that required by subsection (1) is required to be served on that
owner or any of the other owners of that land for the purposes of
subsection (3).
(3) Where none of the owners of any private land is also in
occupation of that land, the holder of a permit granted over that
private land shall cause a copy of the permit to be sent, within
48 hours of his first entering the land after the issue of the
permit, by prepaid registered post to one of those owners at —
(a) in the case of an owner which is a body corporate — the
registered office of the body corporate; or
(b) in the case of an owner who is not a body corporate —
to his last known place of abode or business.
[Section 31 amended by No. 100 of 1985 s. 22; No. 22 of 1990
s. 10.]

32. Rights conferred by a permit

(1) The holder of a permit issued under section 30 or his duly
authorised employee or agent is thereby authorised —
(a) to enter upon and remain upon the surface of the private
land to which the permit relates and to search thereon
for any mineral and to mark out, and repair and maintain
the marks set up and notices relating to the application
for one or more mining tenements with respect to that
land or any part thereof; and
(b) to search thereon for any mineral and detach one or
more samples of any vein or lode outcropping on the
surface thereof not exceeding in the aggregate 13 kg and
to take therefrom such other samples as may be agreed
by the owner or, where the owner is not in occupation of
the private land, the occupier of the private land; and

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 33

(c) to remove from the private land such samples for the
purpose of assaying or testing the value thereof,
but the holder or his duly authorised employee or agent shall not
carry out any other mining on or otherwise disturb the surface of
the land.
(2) Where a warden or a prescribed official refuses to grant an
application for a permit under section 30 or grants the
application on conditions the applicant considers unreasonable
or fixes a sum of money under section 30(4) which the applicant
considers excessive the applicant may within the time and in the
manner prescribed appeal to the Minister against such refusal,
conditions or amount as the case may be.
(3) The Minister may dismiss the appeal or uphold the appeal and
grant the permit which he is hereby authorised to do.
[Section 32 amended by No. 69 of 1981 s. 11; No. 100 of 1985
s. 23; No. 39 of 2004 s. 54.]

33. Application for mining tenement by permit holder

(1) Subject to subsection (1a), where an application is made in
accordance with this Act for a mining tenement that relates to
private land notice of the application shall be given in the
prescribed manner by the applicant to —
(a) the chief executive officer of the local government; and
(b) the owner and occupier of the private land; and
(c) each mortgagee of the land under a mortgage endorsed
or noted on the title or land register or record relating to
that land,
but if there is no occupier of the land, or no such occupier can
be found, the notice of the application shall be affixed in some
conspicuous manner on the land.
(1a) Where the application for a mining tenement relates only to that
portion of the land that is not less than 30 m below the lowest
part of the natural surface of the private land, it shall not be

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 Mining Act 1978
Land open for mining Part III
Private land Division 3
s. 33

necessary to give notice of the application to the owner or

occupier or to a mortgagee of the land, but no application shall
be made under section 29(5) or otherwise in respect of that
portion of the land that is less than 30 m below the lowest part
of the natural surface unless notice is given in accordance with
subsection (1) notwithstanding the prior grant of an application
for a mining tenement over any portion of the land.
(1b) Where the application relates to land to which section 29(2) or
(5) applies, the applicant shall be required to establish that both
the owner and the occupier have consented in writing to the
grant of the mining tenement concerned but otherwise, subject
to the determination of the amount of any compensation payable
in accordance with section 123, a mining tenement in respect of
private land may be granted in accordance with this Act.
(2) The owner and occupier of the private land or any portion of
that land and any mortgagee referred to in subsection (1)(c) are
entitled to be heard in relation to any application in respect of
any portion of that land and if the owner or occupier objects to
the granting of the mining tenement, the warden may, if in the
circumstances of the case he considers it proper so to do, and
irrespective of the manner in which the application for the
mining tenement is disposed of, order that the applicant pay to
the objector or objectors, such sum by way of costs as the
warden orders.
(2a) If a warden makes an order for the payment of costs under
subsection (2), those costs are recoverable in accordance with
the regulations.
(3) Nothing in subsection (2) limits or otherwise affects the other
powers conferred by this Act upon a warden.
[Section 33 amended by No. 100 of 1985 s. 24; No. 14 of 1996
s. 4; No. 39 of 2004 s. 55.]

[34. Deleted by No. 69 of 1981 s. 12.]

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 35

35. Compensation to be agreed upon or determined before

mining operation commences
(1) The holder of a mining tenement shall not commence any
mining on the natural surface or within a depth of 30 m from the
lowest part of the natural surface of any private land unless and
until he has paid or tendered to the owner and the occupier
thereof the amount of compensation, if any, that he is required
to pay under and as ascertained in accordance with this Act, or
he has made an agreement with the owner and occupier as to the
amount, times and mode of the compensation, if any.
(2) Where any person to whom compensation is payable under this
Act cannot be found or is dead or is otherwise incapacitated at
law, any payment of compensation may be made to the Minister
in trust for that person or his personal representative as the case
requires.
[Section 35 amended by No. 69 of 1981 s. 13; No. 100 of 1985
s. 25.]

[36. Deleted by No. 69 of 1981 s. 14.]

37. Application to bring certain private land under this Division

(1) Any person may in manner prescribed apply to the Minister to
have any private land alienated before 1 January 1899 brought
within the operation of this Division for the purpose of mining
for minerals other than gold, silver and precious metals.
(2) In respect of an application under subsection (1), the Minister
may authorise and instruct a geologist or any other professional
officer in the Department to enter, inspect and report upon the
private land to which the application, relates and thereupon the
geologist or the professional officer with assistants may enter
and prospect the private land and do all things necessary to
ascertain whether there is a reasonable likelihood of that land
containing any mineral in payable quantities.

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 Mining Act 1978
Land open for mining Part III
Private land Division 3
s. 38

(3) If the geologist or the professional officer reports to the Minister

that in the geologist’s or professional officer’s opinion there is a
reasonable likelihood of the private land containing any mineral
in payable quantities, the Minister may, with the approval of the
Governor, by notice published in the Government Gazette,
declare that at the expiration of a period specified in the notice,
being a period of not less than 6 months from the date the notice
is so published, the private land shall come within the operation
of this Division.
(4) A copy of the notice published in the Government Gazette shall
be served upon the owner of the private land to which the notice
relates, as soon as practicable after it is so published.
[Section 37 amended by No. 19 of 2010 s. 51.]

38. Right of owner to apply for mining tenement

(1) The owner of the private land to which section 37 refers may, at
any time within the period referred to in section 37(3), apply for
a mining tenement in respect of the private land or any part
thereof.
(2) Where within the period referred to in subsection (1) the owner
of the private land fails to apply for a mining tenement with
respect to the land as provided in that subsection, or if he so
applies but a tenement is not granted, —
(a) the land shall come within the operation of this Division
and all rent and royalties received by the Crown for any
minerals won from the land shall be paid to the owner of
the land less one-tenth of the amount thereof; and
(b) the Minister may grant to the person who made the
application under section 37(1) for such period as he
thinks fit, the prior right to the exclusion of all other
persons to mark out the private land or any part thereof
and/or apply for a mining tenement in respect thereof.
[Section 38 amended by No. 69 of 1981 s. 15; No. 100 of 1985
s. 26; No. 19 of 2010 s. 51.]

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Mining Act 1978
Part III Land open for mining
Division 3 Private land
s. 39

39. Owner to comply with mining tenement conditions

Where the owner of any private land is granted a mining
tenement on an application made under section 38 he shall
comply with the terms and conditions of the mining tenement
and in particular the expenditure conditions applicable thereto,
but no rent or royalty shall be payable by the owner with respect
to the land the subject of the mining tenement or in respect of
any mineral won therefrom.

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 Mining Act 1978
Miner’s rights and related permits Part IIIA

s. 40A

Part IIIA — Miner’s rights and related permits

[Heading inserted by No. 51 of 2012 s. 15.]

40A. Terms used

In this Part —
available land, in relation to a miner’s right, means —
(a) Crown land or conservation land that is not the subject
of a mining tenement; or
(b) Crown land or conservation land that is the subject of an
exploration licence if the holder of the miner’s right
holds a permit under section 40E in respect of the land;
conservation land means land that is prescribed under
section 40B as conservation land for the purposes of this Part.
[Section 40A inserted by No. 51 of 2012 s. 15.]

40B. Conservation land

(1) The regulations may prescribe land as conservation land for the
purposes of this Part if —
(a) the land is of the class referred to in section 24(1)(c) and
is not land that is classified as a class A reserve; and
(b) the care, control and management of the land is placed
by order under the Land Administration Act 1997 Part 4
with the Conservation Commission.
(2) Regulations made for the purposes of subsection (1) may only
be made with the concurrence of the Minister responsible for
the administration of the Conservation and Land Management
Act 1984.
[Section 40B inserted by No. 51 of 2012 s. 15.]

40C. Issue of miner’s right

(1) The Minister, the Director General of Mines or a mining
registrar may, on the application of a natural person and on

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Mining Act 1978
Part IIIA Miner’s rights and related permits

s. 40D

being satisfied of the identity of the person, issue a miner’s right

to the person.
(2) An application for a miner’s right must be accompanied by the
prescribed application fee (if any).
(3) A miner’s right —
(a) must be in the prescribed form; and
(b) is not limited in term; and
(c) is not transferable.
[Section 40C inserted by No. 51 of 2012 s. 15.]

40D. Authorisation under miner’s right

(1) Subject to this Act the holder of a miner’s right is authorised to
do all or any of the following things —
(a) pass and repass over Crown land or conservation land
with such employees and agents, vehicles, machinery
and equipment as may be necessary or expedient for the
purpose of prospecting and marking out any land which
may be made the subject of an application for a mining
tenement;
(b) prospect for minerals and conduct tests for minerals on
available land for the purpose of determining whether to
mark out or apply for a mining tenement in respect of
any part of the land;
(c) extract or remove from available land samples or
specimens of rock, ore or minerals with as little damage
to the surface of the land as possible, in quantities, in
total or on occasions, not exceeding the prescribed
limits;
(d) keep as the holder’s property or use for testing or
evaluation purposes any samples and specimens of any
mineral found by the holder on available land;
(e) for the purpose of prospecting and for domestic
purposes and subject to the Rights in Water and

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 Mining Act 1978
Miner’s rights and related permits Part IIIA

s. 40D

Irrigation Act 1914, or any Act amending or replacing

the relevant provisions of that Act —
(i) take and use water from any natural spring, lake,
pool or watercourse situated in or flowing
through available land; and
(ii) sink a well or bore on available land and take and
use water from the well or bore;
(f) for the purpose of prospecting, camp on Crown land or
conservation land in such manner and subject to such
conditions as may be prescribed;
(g) fossick by prescribed means on Crown land or
conservation land with the prior written consent of —
(i) any occupier of that land; and
(ii) if the land is subject to a mining tenement, the
holder of the mining tenement.
(2) Every miner’s right is to be regarded as having been issued
subject to the conditions that the holder of the miner’s right or
any other person acting in the exercise or purported exercise of
an authorisation conferred or alleged to be conferred by
subsection (1) —
(a) must not, on conservation land, do any of the things
referred to in that subsection unless authorised to do so
under the Conservation and Land Management
Act 1984; and
(b) must not use explosives or tools, other than tools
prescribed for the purposes of this paragraph or hand
tools; and
(c) must cause to be filled in or otherwise made safe —
(i) all holes, pits, trenches and other disturbances on
the surface of the land which were made by the
person while acting in the exercise or purported
exercise of the authorisation and which are likely
to endanger the safety of any person or animal;
and

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Mining Act 1978
Part IIIA Miner’s rights and related permits

s. 40E

(ii) such other holes, pits, trenches and other

disturbances made, wholly or in part, by the
person as the Minister may from time to time
direct;
and
(d) must take all necessary steps to prevent the following —
(i) fire damage to trees or other property;
(ii) damage to property or to livestock by the
presence of dogs, the discharge of firearms, the
use of vehicles or otherwise.
(3) The holder of a miner’s right is liable to pay compensation in
accordance with section 123, as may be agreed or as may be
determined by the warden’s court on the application of the
owner or occupier of the land or of the holder of any mining
tenement affected, for any loss or damage caused by, and not
made good by, the holder or any other person acting in the
exercise or purported exercise of an authorisation conferred or
alleged to be conferred by subsection (1).
(4) 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 40D inserted by No. 51 of 2012 s. 15.]

40E. Permit to prospect on Crown land or conservation land

subject of exploration licence
(1) The mining registrar or the holder of a prescribed office in the
Department may issue a permit to prospect for minerals on
Crown land or conservation land that is the subject of an
exploration licence to —
(a) a natural person who is the holder of a miner’s right; or
(b) 2 or 3 natural persons, each of whom is the holder of a
miner’s right, as joint holders of the permit.

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 Mining Act 1978
Miner’s rights and related permits Part IIIA

s. 40E

(2) A permit cannot be issued under subsection (1) if the applicant

for the permit is already the holder of a permit under this section
in respect of the exploration licence to which his or her
application relates.
(3) An application for a permit —
(a) must be made in the prescribed form; and
(b) must be lodged in the prescribed manner; and
(c) must be accompanied by the prescribed application fee
(if any).
(4) The area of land in respect of which a permit is issued is to be
specified in the permit in the prescribed manner.
(5) A permit is subject to such conditions as are imposed in
accordance with the regulations and specified in the permit.
(6) In addition to any conditions that may be imposed under
subsection (5) every permit is to be regarded as having been
issued subject to conditions that the holder or each holder (in the
case of joint holders) —
(a) must not use explosives or tools, other than hand tools,
on the land the subject of the permit; and
(b) must not prospect below the prescribed depth; and
(c) must comply with the prescribed limits referred to in
section 40D(1)(c); and
(d) must not prospect within 100 m of any activities that are
being carried out under the authority of an exploration
licence; and
(e) must not prospect on land that is the subject of a special
prospecting licence under section 70.
(7) A permit is not transferable.
[Section 40E inserted by No. 51 of 2012 s. 15.]

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Mining Act 1978
Part IIIA Miner’s rights and related permits

s. 40F

40F. Power to remove Crown land or conservation land from

operation of s. 40E
(1) The Minister may, by notice published in the Gazette, declare
that section 40E does not apply to Crown land or conservation
land that is —
(a) the subject of a specified exploration licence; or
(b) in a specified block (within the meaning of Part IV
Division 2); or
(c) in a specified area of the State.
(2) The Minister may, by notice published in the Gazette, vary or
cancel a notice under subsection (1).
(3) A notice under this section takes effect on the day on which the
notice is published in the Gazette or such later day as is
specified in the notice.
(4) A notice under this section does not affect the operation of a
permit issued under section 40E before the day on which the
notice takes effect.
[Section 40F inserted by No. 51 of 2012 s. 15.]

40G. Limitation on actions in tort

(1) In this section —
permit means a permit issued under section 40E;
permit land means land that is the subject of both the permit
and the exploration licence concerned.
(2) The holder of a permit cannot bring an action in tort against the
holder of an exploration licence for injury, loss or damage
suffered by the holder of the permit as a result of —
(a) the condition of the permit land; or
(b) a thing that the holder of the exploration licence has
done on the permit land under the authority of that
licence.

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 Mining Act 1978
Miner’s rights and related permits Part IIIA

s. 40G

(3) Nothing in subsection (2)(b) prevents the bringing of an action

in tort if the thing was done —
(a) with the deliberate intent of causing injury, loss or
damage to the holder of the permit; or
(b) with reckless disregard for the presence of the holder of
the permit on the permit land.
(4) In this section a reference to the doing of a thing includes a
reference to an omission to do a thing.
[Section 40G inserted by No. 51 of 2012 s. 15.]

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 40

Part IV — Mining tenements

Division 1 — Prospecting licence
[39A. Deleted by No. 52 of 1995 s. 21.]

40. Grant of prospecting licence

(1) Subject to this Act, the mining registrar or the warden, in
accordance with section 42, may, on the application of any
person grant to that person a licence to be known as a
prospecting licence which shall be subject to such conditions as
are prescribed or are imposed pursuant to section 24, 24A or 25
or are specified in the licence.
(2) The area of land in respect of which any one prospecting licence
may be granted shall not exceed 200 ha.
(3) A person may be granted more than one prospecting licence.
[Section 40 amended by No. 122 of 1982 s. 8; No. 100 of 1985
s. 27; No. 58 of 1994 s. 7; No. 5 of 1997 s. 41(2).]

41. Application for prospecting licence

(1) An application for a prospecting licence —
(a) shall be made in the prescribed form; and
(b) shall be accompanied by the amount of the prescribed
rent for the first year or portion thereof as prescribed;
and
(c) shall be made by reference to a written description of the
area of land in respect of which the licence is sought,
and be accompanied by a map on which are clearly
delineated the boundaries of that area; and
[(d) deleted]
(e) shall be lodged in the prescribed manner; and
(f) shall be accompanied by the prescribed application fee.

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 42

(2) Within the prescribed period the applicant shall serve such
notice of the application as may be prescribed, on the owner and
occupier of the land to which the application relates and on such
other persons as may be prescribed.
(3) An applicant for a prospecting licence shall at the request of the
mining registrar or warden furnish such further information in
relation to his application, or such evidence in support thereof,
as the mining registrar or warden may require but the mining
registrar or warden shall not require information or evidence
relating to assays or other results of any testing or sampling that
the applicant may have carried out on the land the subject of his
application.
[Section 41 amended by No. 122 of 1982 s. 9; No. 52 of 1983
s. 3; No. 100 of 1985 s. 28; No. 37 of 1993 s. 26; No. 58 of 1994
s. 8; No. 12 of 2010 s. 16.]

42. Determination of application for prospecting licence

(1) A person who wishes to object to the granting of an application
for a prospecting licence shall lodge a notice of objection within
the prescribed time and in the prescribed manner.
(2) Where no notice of objection is lodged within the prescribed
time, or any notice of objection is withdrawn, the mining
registrar may —
(a) grant the prospecting licence if satisfied that the
applicant has complied in all respects with the
provisions of this Act; or
(b) refuse the prospecting licence if not so satisfied.
(3) Where a notice of objection —
(a) is lodged within the prescribed time; or
(b) is not lodged within the prescribed time but is lodged
before the mining registrar has granted or refused the
prospecting licence under subsection (2) and the warden

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 43

is satisfied that there are reasonable grounds for late

lodgment,
and the notice of objection is not withdrawn, the warden shall
hear and determine the application for the prospecting licence
on a day appointed by the warden and may give any person who
has lodged such a notice of objection an opportunity to be
heard.
[Section 42 inserted by No. 58 of 1994 s. 9(1); amended by
No. 39 of 2004 s. 56; No. 12 of 2010 s. 17.]

43. Prospecting licence not to include land already subject of

mining tenement
(1) Where an application for a prospecting licence relates to land
that is, or was when the application was made, the subject of a
mining tenement, any prospecting licence granted in respect of
that application shall not include that land.
(2) Subsection (1) does not apply in relation to a special
prospecting licence granted under section 56A, 70 or 85B or a
prospecting licence granted in respect of an application under
section 56B or a reversion licence application.
[Section 43 inserted by No. 15 of 2002 s. 6; amended by No. 39
of 2004 s. 4; No. 27 of 2005 s. 5.]

44. Power to grant prospecting licence over all or part of land in

application
Subject to section 43, a prospecting licence may be granted in
respect of all or part of the land to which the application
therefor relates.
[Section 44 amended by No. 100 of 1985 s. 30; No. 15 of 2002
s. 7.]

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 45

45. Term of prospecting licence

(1) A prospecting licence shall, subject to this Act, remain in force
for a period of 4 years from and including the date on which it
was granted, and shall then expire.
(1a) Notwithstanding subsection (1) the Minister may, if satisfied
that a prescribed ground for extension exists, extend the term of
a prospecting licence —
(a) by one period of 4 years; and
(b) if the licence has retention status, by a further period or
periods of 4 years.
(1b) An application for the extension of the term of a prospecting
licence under subsection (1a) (an extension application) shall
be made within the prescribed time and in the prescribed
manner.
(1c) If an extension application is made in respect of a prospecting
licence and the term of the licence would but for this subsection
expire, the licence continues in force in respect of the land the
subject of the extension application until the application is
determined.
(1d) If —
(a) an extension application is made in respect of a
prospecting licence the term of which has been extended
under subsection (1a)(a); and
(b) an application for retention status in respect of the
prospecting licence —
(i) is pending when the extension application is
made; or
(ii) is made at the same time as the extension
application,
the extension application shall not be determined until
the application for retention status has been determined.

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 46

(1e) If the holder of a prospecting licence transfers the licence after

making an extension application in respect of the licence, the
extension application continues in the name of the transferee of
the licence as if the transferee had made it.
(2) When a prospecting licence is surrendered, forfeited or expires
the land the subject of the prospecting licence or any part
thereof shall not be marked out or applied for as a prospecting
licence or an exploration licence —
(a) by or on behalf of the person who was the holder of the
prospecting licence immediately prior to the date of the
surrender, forfeiture or expiry; or
(b) by or on behalf of any person who had an interest in the
prospecting licence immediately prior to that date; or
(c) by or on behalf of any person who is related to a person
referred to in paragraph (a) or (b),
within a period of 3 months from and including that date.
(2a) For the purposes of subsection (2)(b) the holding of shares in a
listed public company which held the prospecting licence in
question does not of itself constitute an interest in the
prospecting licence.
[Section 45 amended by No. 122 of 1982 s. 11; No. 100 of 1985
s. 31; No. 22 of 1990 s. 11; No. 37 of 1993 s. 5; No. 15 of 2002
s. 8; No. 39 of 2004 s. 5(1).]

46. Conditions attached to every prospecting licence

In addition to any conditions that may be prescribed or imposed
with respect to a prospecting licence, every prospecting licence
shall be deemed to be granted subject to the condition that the
holder of the licence will prospect for minerals and to the
following conditions —
(a) that all minerals of economic interest discovered in or on
the land the subject of the prospecting licence be
promptly reported in writing by the holder to the
Minister;

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 46A

(aa) that no ground disturbing equipment will be used by the

holder when prospecting on the land the subject of the
prospecting licence unless —
(i) the holder has lodged in the prescribed manner a
programme of work in respect of that use; and
(iia) the holder has paid the prescribed assessment fee
in respect of the programme of work; and
(ii) the programme of work has been approved in
writing by the Minister or a prescribed official;
(b) that all holes, pits, trenches and other disturbances to the
surface of the land the subject of the prospecting licence
which are —
(i) made while prospecting; and
(ii) in the opinion of a prescribed official, likely to
endanger the safety of any person or animal,
will be filled in or otherwise made safe to the
satisfaction of the prescribed official;
(c) that all necessary steps are taken by the holder to
prevent fire, damage to trees or other property and to
prevent damage to any property or damage to livestock
by the presence of dogs, the discharge of firearms, the
use of vehicles or otherwise.
[Section 46 amended by No. 69 of 1981 s. 16; No. 100 of 1985
s. 32; No. 57 of 1997 s. 89(1); No. 39 of 2004 s. 6(1); No. 51 of
2012 s. 16.]

46A. Conditions for prevention or reduction of injury to land

(1) Reasonable conditions may be imposed on the holder of a
prospecting licence for the purpose of preventing or reducing, or
making good, injury to the land in respect of which the licence
is sought or was granted, or injury to anything on or below the
natural surface of that land or consequential damage to any
other land.

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 47

(2) A condition may be imposed under this section —

(a) by the mining registrar, the warden or the Minister on
the granting of the licence; or
(b) by the Minister at any subsequent time.
(3) A condition imposed under this section may be cancelled or
varied by the Minister at any time.
(4) A condition imposed in relation to a licence under this
section —
(a) may, either in full or with sufficient particularity as to
identify the recommendation or other source from which
it derives, be endorsed on the licence, for which purpose
the holder of the licence shall produce the licence on
demand; and
(b) whether or not so endorsed, on notice of the imposition
of the condition being given in writing to the holder of
the licence shall for all purposes have effect as a
condition to which the licence is subject.
[Section 46A inserted by No. 22 of 1990 s. 12; amended by
No. 58 of 1994 s. 9(2); No. 12 of 2010 s. 5.]

47. Survey of area of prospecting licence not required in first

instance
(1) On an application for a prospecting licence or on a prospecting
licence being granted the land affected is not thereby required to
be surveyed, but where a dispute arises with respect to the
position of such land or the boundaries or any boundary thereof
the warden or Minister may require a survey to be made of the
boundaries or the boundary in order to settle the dispute.
(2) A survey required under subsection (1) shall be —
(a) arranged in accordance with the regulations; and
(b) paid for by such party or parties to the dispute as the
warden or the Minister determines.

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 48

[Section 47 amended by No. 100 of 1985 s. 33; No. 37 of 1993

s. 28(1); No. 39 of 2004 s. 57.]

48. Rights conferred by prospecting licence

A prospecting licence, while it remains in force, authorises the
holder thereof, subject to this Act, and in accordance with any
conditions to which the licence may be subject —
(a) to enter and re-enter the land the subject of the licence
with such agents, employees, vehicles, machinery and
equipment as may be necessary or expedient for the
purpose of prospecting for minerals in, on or under the
land;
(b) to prospect, subject to any conditions imposed under
section 24, 24A or 25, for minerals, and to carry on such
operations and carry out such works as are necessary for
that purpose on such land including digging pits,
trenches and holes, and sinking bores and tunnels to the
extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions
imposed under section 24, 24A or 25, from such land,
earth, soil, rock, stone, fluid or mineral bearing
substances in such amount, in total during the period for
which the licence remains in force, as does not exceed
the prescribed limit, or in such greater amount as the
Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and
Irrigation Act 1914, or any Act amending or replacing
the relevant provisions of that Act, water from any
natural spring, lake, pool or stream situate in or flowing
through such land or from any excavation previously
made and used for mining purposes and subject to that
Act to sink a well or bore on such land and take water
therefrom and to use the water so taken for his domestic
purposes and for any purpose in connection with
prospecting for minerals on the land.

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 49

[Section 48 amended by No. 100 of 1985 s. 34 (as amended by

No. 105 of 1986 s. 4); No. 22 of 1990 s. 13; No. 5 of 1997
s. 41(2).]

49. Holder of prospecting licence to have priority for grant of

mining leases or general purpose leases
(1) The holder of a prospecting licence has —
(a) subject to this Act and to any conditions to which the
prospecting licence is subject; and
(b) while the prospecting licence continues in force,
the right to apply for, and subject to section 75(9) to have
granted pursuant to section 75(7), one or more mining leases or
one or more general purpose leases or both in respect of any
part or parts of the land the subject of the prospecting licence.
(2) Where an application for a mining lease or a general purpose
lease is made by the holder of a prospecting licence in respect of
any land and the term of the prospecting licence would but for
this subsection expire, that licence shall continue in force in
respect to the land the subject of that application until the
application for a lease is determined.
(3) If, after an application is made under subsection (1) in respect of
land the subject of a prospecting licence —
(a) the holder of the licence transfers the licence; or
(b) where there are 2 or more holders of the licence, a
holder transfers the holder’s interest in the licence,
the application continues in the name of the transferee of the
licence or interest as if the transferee were the applicant or one
of the applicants, as the case requires.
(4) For the purposes of subsection (3), where there are 2 or more
transferees of the prospecting licence, each of the transferees is
to be regarded as an applicant for an interest in the relevant
mining lease or general purpose lease that corresponds to the
interest held by that transferee in the licence.

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 50

[Section 49 inserted by No. 122 of 1982 s. 12; amended by

No. 100 of 1985 s. 35; No. 21 of 1993 s. 45; No. 58 of 1994
s. 29(2); No. 52 of 1995 s. 22; No. 17 of 1999 s. 5.]

50. Compliance with expenditure conditions

(1) During the currency of a prospecting licence the holder thereof
shall comply with the prescribed expenditure conditions relating
thereto unless in accordance with this Act total or partial
exemption therefrom is granted.
(2) In the case of a prospecting licence that has retention status,
expenditure conditions prescribed for the purposes of
subsection (1) —
(a) shall provide for a reduction calculated in the prescribed
manner of the amount of expenditure required during the
year of the term of the licence in which retention status
is approved; and
(b) shall not require expenditure during any subsequent year
of the term of the licence.
[Section 50 amended by No. 39 of 2004 s. 21.]

51. Reports of work and expenditure

The holder of a prospecting licence shall, at such times and in
such manner as may be prescribed, file or cause to be filed a
report of all work done on, and money expended in connection
with, prospecting in the area the subject of the licence, during
the period to which the report relates.
[Section 51 amended by No. 58 of 1994 s. 10; No. 12 of 2010
s. 18.]

51A. Geological samples

The holder of a prospecting licence shall furnish to the Minister
such geological samples obtained in the course of operations
conducted by the holder under the licence as the Minister may
request.

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 52

[Section 51A inserted by No. 39 of 2004 s. 43.]

52. Security relating to prospecting licence

(1) The applicant for a prospecting licence shall lodge in the
prescribed manner and within the prescribed period a security,
in respect of each prospecting licence to which the application
relates, for compliance with the conditions to which the
prospecting licence, if granted, will from time to time be subject
and with the provisions of this Part and the regulations.
(1a) The Minister may require the holder of a prospecting licence to
lodge, in the prescribed manner and within such period as the
Minister specifies in writing, an additional security for
compliance with conditions imposed in relation to the licence
under section 46A.
(2) A security referred to in subsection (1) or (1a) shall be in
accordance with and subject to the provisions of section 126.
(3) A prospecting licence shall not be granted unless a security has
been lodged by the applicant for the prospecting licence in
accordance with subsection (1).
(4) Notwithstanding section 154(1), an applicant for a prospecting
licence who fails to comply with subsection (1) does not
commit an offence against this Act.
[Section 52 amended by No. 122 of 1982 s. 13; No. 100 of 1985
s. 36; No. 37 of 1993 s. 26; No. 58 of 1994 s. 11; No. 17 of 1999
s. 6(1) and (2); No. 12 of 2010 s. 19.]

53. Application for retention status

(1) In this section —
prospecting licence does not include a prospecting licence that
is a primary tenement for the purposes of Division 2A.
(2) The holder of a prospecting licence may apply to the Minister
for approval of retention status under section 54.

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 54

(3) An application under subsection (2) —

(a) shall be in writing; and
(b) shall be made in the prescribed manner; and
(c) shall contain the prescribed information; and
(d) shall be accompanied by any map, statement or other
information required by the regulations; and
(e) shall be accompanied by the prescribed application fee.
(4) For the purposes of subsection (3)(d), but without limiting
section 162(5), the regulations may require a statement or other
information to be in the form of a statutory declaration.
(5) If the holder of a prospecting licence transfers the licence after
making an application under subsection (2) in respect of the
licence, the application continues in the name of the transferee
of the licence as if the transferee had made it.
[Section 53 inserted by No. 39 of 2004 s. 22.]

54. Approval of retention status

(1) The Minister may approve retention status for the whole or any
part of the land the subject of a prospecting licence if satisfied
that —
(a) there is an identified mineral resource located in, on or
under that land; and
(b) the mining of that identified mineral resource is
impracticable because —
(i) the resource is uneconomic or subject to
marketing problems although the resource may
reasonably be expected to become economic or
marketable in the future; or
(ii) the resource is required to sustain the future
operations of an existing or proposed mining
operation; or

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 55

(iii) there are existing political, environmental or

other difficulties in obtaining requisite approvals.
(2) An approval shall be in writing.
(3) An approval takes effect on the day on which notice of the
approval is published in the Gazette or on a later day specified
in the notice.
(4) The area of land to which an approval applies shall be an area
that, in the opinion of the Minister, is sufficient to include —
(a) the land in, on or under which the identified mineral
resource is located; and
(b) such other land as may be required for future mining
operations in respect of that identified mineral resource.
(5) The area of land to which an approval applies may be less than
the area of land in respect of which the approval was sought.
(6) If retention status is approved for part of the land the subject of
a prospecting licence, the holder of the prospecting licence shall
mark out in the prescribed manner the boundaries of the land
covered by the approval as soon as practicable after the day on
which the approval takes effect.
(7) If retention status is approved for part of the land the subject of
a prospecting licence, the land not covered by the approval
ceases to be the subject of the licence on the day on which the
approval takes effect.
[Section 54 inserted by No. 39 of 2004 s. 22.]
55. Consultation with other Ministers
(1) Before approving retention status under section 54 for land of a
class referred to in section 24(1), the Minister shall consult and
obtain the recommendations of the relevant responsible Minister
under section 24(8).
(2) Before approving retention status under section 54 for land in a
marine management area, marine nature reserve or marine park,

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 55A

the Minister shall consult and obtain the recommendations of

the other Ministers referred to in section 24A(6).
(3) Before approving retention status under section 54 for land of a
class referred to in section 25(1)(a), (b) or (c), the Minister shall
consult and obtain the recommendations of the other Ministers
referred to in section 25(2B).
(4) Before approving retention status under section 54 for land of
the class referred to in section 25(1)(d), the Minister shall
consult and obtain the recommendations of the other Minister
referred to in section 25(3B).
[Section 55 inserted by No. 39 of 2004 s. 22; amended by
No. 19 of 2010 s. 51.]

55A. Programme of work

(1) On the approval of retention status under section 54, or at any
subsequent time, the Minister may impose on the holder of the
prospecting licence a condition requiring the holder to comply
with a specified programme of work in respect of the land the
subject of the licence within a specified period.
(2) Before imposing a condition under subsection (1), the Minister
may require the holder of the licence to submit to the Minister a
draft programme of work in a form approved by the Minister
and the holder shall comply with that requirement.
(3) A condition imposed under subsection (1) may be cancelled or
varied by the Minister at any time.
(4) A condition imposed under subsection (1) —
(a) may be endorsed on the prospecting licence, for which
purpose the holder of the licence shall produce the
licence on demand; and
(b) whether or not so endorsed, on notice of the imposition
of the condition being given in writing to the holder of
the licence shall for all purposes have effect as a
condition to which the licence is subject.

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 55B

(5) In subsection (1) —

specified means specified in writing by the Minister.
[Section 55A inserted by No. 39 of 2004 s. 22.]

55B. Holder of prospecting licence with retention status may be

required to apply for mining lease
(1) The Minister may at any time, by notice in writing, require the
holder of a prospecting licence that has retention status to show
cause why a mining lease should not be applied for in respect of
the whole or any part of the land the subject of the prospecting
licence.
(2) Where —
(a) the holder of a prospecting licence fails to show cause
within the time specified in the notice referred to in
subsection (1); or
(b) the Minister is of the opinion that the holder of a
prospecting licence has shown insufficient cause,
the Minister may, by notice in writing, require that holder to
apply in accordance with this Act for a mining lease in respect
of the whole or any part of the land the subject of the
prospecting licence within a period of 60 days from the giving
of that notice.
[Section 55B inserted by No. 39 of 2004 s. 22.]

56. Appeal against refusal to grant prospecting licence

(1) Where the mining registrar or the warden refuses to grant an
application for a prospecting licence or grants the application on
conditions the applicant considers unreasonable, the applicant
may within the time and in the manner prescribed appeal to the
Minister against such refusal or conditions as the case may be.

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 56A

(2) The Minister may dismiss the appeal or uphold the appeal and
grant the application on such conditions as he considers
reasonable.
[Section 56 inserted by No. 122 of 1982 s. 15; amended by
No. 21 of 1993 s. 45; No. 58 of 1994 s. 9(3) and (4); No. 52 of
1995 s. 23.]
56A. Special prospecting licences
(1) Where any land is the subject of a prospecting 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 an application
under section 56B or 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, serve
notice of his application on the holder of the primary tenement
as if that holder were the occupier of the land to which that

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 56A

application relates, and subsections (3) to (5) apply in respect of

that application.
(3) If, after being served with notice of an application for a special
prospecting licence, the holder of the primary tenement does not
lodge an objection against that application, the mining registrar
may, subject to this Act, grant that application as provided in
subsection (6).
(4) If the holder of the primary tenement lodges an objection to an
application for a special prospecting licence, the warden shall
obtain a report from the Director, Geological Survey, in respect
of the prospecting 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) is to be based solely on information
contained in reports filed by or on behalf of the holder of the
primary tenement under section 51 or 115A.
(5) After hearing an objection referred to in subsection (4), the
warden may refuse the application for the special prospecting
licence concerned on the ground that prospecting for gold on the
land to which that application relates would result in undue
detriment to the prospecting being carried on by the holder of
the primary tenement or he may recommend that application to
the Minister, who may —
(a) refuse that application; or
(b) subject to this Act, grant that application as provided in
subsection (6),
but, if the warden refuses an application under this subsection,
the applicant may within the time and in the manner prescribed
appeal to the Minister against that refusal and the Minister may
dismiss that appeal or uphold that appeal and grant that
application as provided in subsection (6).

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 56A

(5a) If at the time when an applicant for a special prospecting licence

marked out the land to which his application relates —
(a) a special prospecting licence was in force in respect of
land the subject of the primary tenement; or
(b) another application for a special prospecting licence in
respect of land the subject of the primary tenement had
been made, but had not been determined, under this
section,
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 his 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 the Minister may
grant an application for a special prospecting licence on such
terms and conditions as he thinks fit, but a special prospecting
licence so granted —
(a) shall not exceed 10 ha in area; and
(b) shall authorise the holder thereof to prospect only for
gold; and
(c) shall not, unless the Minister otherwise directs, prevent
the holder of the primary tenement from prospecting for
minerals other than gold in or on the land the subject of
the special prospecting licence; 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

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 56A

(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

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 56A

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) No more than one mining lease in respect of the land or any part
thereof which is the subject of a special prospecting licence
shall be granted in respect 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 that 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;
(b) does not authorise the lessee thereof, his agents or
employees to excavate, extract or remove a total amount

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Mining Act 1978
Part IV Mining tenements
Division 1 Prospecting licence
s. 56A

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;
[(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 licences apply to a special prospecting
licence; and
(b) mining leases apply to a mining lease,
granted under 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.

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 Mining Act 1978
Mining tenements Part IV
Prospecting licence Division 1
s. 56A

(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 an
application under section 56B and a prospecting 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; or
(d) 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 56A inserted by No. 122 of 1982 s. 16; amended by
No. 100 of 1985 s. 37; No. 22 of 1990 s. 14; No. 21 of 1993
s. 45; No. 37 of 1993 s. 6, 10(2) and 27; No. 58 of 1994 s. 12;
No. 52 of 1995 s. 24; No. 54 of 1996 s. 7 and 23; No. 10 of 2001
s. 131; No. 15 of 2002 s. 9; No. 39 of 2004 s. 8; No. 27 of 2005
s. 6; No. 12 of 2010 s. 20; No. 51 of 2012 s. 17.]

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 56B

56B. Certain licence holders to have right to apply for further

prospecting licence
(1) In this section —
relevant licence means a prospecting licence applied for before
10 February 2006.
(2) Despite sections 18, 23 and 27 but subject to the other
provisions of this Act, the holder of a relevant licence has, while
the licence continues in force, the right to apply for a
prospecting licence in respect of the whole or any part of the
land the subject of the relevant licence.
(3) Where the holder of a relevant licence exercises the right
conferred by subsection (2) and the term of the relevant licence
would but for this subsection expire, the relevant licence shall
continue in force in respect of the land the subject of the
application for a prospecting licence until the application is
determined.
(4) If the holder of a relevant licence transfers the licence after
making an application for a prospecting licence in the exercise
of the right conferred by subsection (2), the application
continues in the name of the transferee of the licence as if the
transferee had made it.
[Section 56B inserted by No. 39 of 2004 s. 7; amended by
No. 51 of 2012 s. 18.]

Division 2 — Exploration licence

[56AA. Deleted by No. 52 of 1995 s. 25.]
56C. Graticular sections
(1) For the purposes of this Division, the surface of the Earth shall
be deemed to be divided —
(a) by the meridian of Greenwich and by meridians that are
at a distance from that meridian of 1, or a multiple of 1,
minute of longitude; and

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 57

(b) by the equator and by parallels of latitude that are at a

distance from the equator of 1, or a multiple of 1, minute
of latitude,
into sections (in this Division called graticular sections), each
of which is bounded —
(c) by portions of 2 of those meridians that are at a distance
from each other of 1 minute of longitude; and
(d) by portions of 2 of those parallels of latitude that are at a
distance from each other of 1 minute of latitude.
(2) For the purposes of this Division —
(a) a graticular section that is wholly within the State
constitutes a block; and
(b) if part of a graticular section is within the State that part
of the graticular section constitutes a block.
(3) In this Division —
(a) a reference to a graticular section that constitutes a block
includes a reference to a graticular section part of which
constitutes a block;
(b) a reference to a part of a block includes a reference to
2 or more parts of the block;
(c) a reference to a part of a graticular section includes a
reference to 2 or more parts of the graticular section.
(4) For the purposes of this Division each block shall be identified
by reference to the number of the block on a plan held at the
Department.
(5) In subsection (2) —
State includes any area that comes within paragraph (b) of the
definition of land in section 8(1).
[Section 56C inserted by No. 22 of 1990 s. 15; amended by
No. 12 of 2003 s. 9.]

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 57

57. Grant of exploration licence

(1) Subject to this Act the Minister may on the application of any
person and after receiving a recommendation of the mining
registrar or the warden in accordance with section 59, grant to
that person a licence to be known as an exploration licence on
such terms and conditions as the Minister may determine.
(2) The area of land in respect of which an exploration licence may
be granted shall be a block or blocks but shall not be more than
70 blocks unless subsection (2aa) applies.
(2aa) If the area of land referred to in subsection (2) is in an area of
the State designated under section 57A(1) it shall not be more
than 200 blocks.
(2a) Where an exploration licence is granted in respect of 2 or more
blocks the graticular sections that constitute those blocks
shall —
(a) constitute a single area; and
(b) each have a side in common with at least one other
graticular section in that area.
(2b) Where —
(a) an application is made for an exploration licence in
respect of 3 or more blocks; and
(b) before the exploration licence is granted one or more of
the blocks applied for becomes the subject of another
mining tenement; and
(c) the exploration licence is granted in respect of 2 or more
of the other blocks applied for,
the graticular sections that constitute the blocks in respect of
which the licence is granted need not comply with
subsection (2a)(a) and (b) if they form 2 or 3 discrete areas each
consisting of —
(d) a single graticular section; or

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 57

(e) a number of graticular sections each having a side in

common with at least one other graticular section in that
area.
(2c) Where an application for an exploration licence is made with
respect to one block, the land in respect of which the licence is
granted may comprise part of the block if the rest of the block
consists of land that is unavailable for exploration.
(2d) Where an application for an exploration licence is made with
respect to 2 or more blocks, the land in respect of which the
licence is granted may include part of a block if the rest of the
block consists of land that is unavailable for exploration.
(2e) For the purposes of subsections (2c) and (2d) land is unavailable
for exploration if that land is, or was when the application for
the exploration licence was made, the subject of a current
mining tenement (other than a miscellaneous licence).
(2ea) Where the application for the exploration licence is a reversion
licence application, the reference in subsection (2e) to a current
mining tenement does not include a continuing licence as
defined in section 120AA(1).
(2f) Where the land in respect of which an exploration licence is
granted comprises or includes part of a block —
(a) the licence is deemed to be granted in respect of that
block for the purposes of subsections (2), (2a) and (2b);
and
(b) that block is deemed to be subject to the licence for the
purposes of section 65; and
(c) the boundaries of the land the subject of the licence shall
be deemed to be the same as the boundaries of the block
for the purposes of section 67A.
(2g) A person may be granted more than one exploration licence.
(2h) Where the land in respect of which an exploration licence is
granted comprises or includes part of a block, no other

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 57A

exploration licence shall be granted in respect of that block or

any part of that block.
(3) The mining registrar or the warden shall not recommend the
grant of an exploration licence under this section unless he is
satisfied that the applicant is able to effectively explore the land
in respect of which the application has been made.
(4) Where in any particular area extensive mining is being carried
on, the Minister may, from time to time, by notice published in
the Government Gazette declare that no application for an
exploration licence shall be made or granted with respect to any
land comprising the area or any land within such area as is
specified in the notice.
[Section 57 amended by No. 69 of 1981 s. 17; No. 122 of 1982
s. 17; No. 100 of 1985 s. 38; No. 22 of 1990 s. 16; No. 37 of
1993 s. 7; No. 58 of 1994 s. 13 and 15(2) and (3); No. 15 of
2002 s. 10; No. 39 of 2004 s. 12; No. 27 of 2005 s. 7.]

57A. Designation of areas for purposes of s. 57(2aa)

(1) The Minister may, by notice published in the Gazette, designate
one or more areas of the State for the purposes of
section 57(2aa).
(2) The Minister may, by notice published in the Gazette, vary or
cancel a designation under subsection (1).
(3) A notice under this section comes into operation on the day on
which the notice is published in the Gazette or such later day as
is specified in the notice.
(4) The variation or cancellation of a designation under
subsection (2) does not affect the operation of any exploration
licence granted before the variation or cancellation takes effect.
(5) If —
(a) an application for an exploration licence is made in
respect of an area of land that is in an area of the State
designated under subsection (1) (a designated area); and

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 58

(b) before the application is determined the designation is

varied or cancelled under subsection (2) with the result
that the area of land to which the application relates
ceases to be in a designated area,
then, despite that variation or cancellation, section 57(2aa)
applies as if the area of land were in a designated area.
[Section 57A inserted by No. 39 of 2004 s. 13.]

58. Application for exploration licence

(1) An application for an exploration licence —
(a) shall be in the prescribed form; and
(b) shall be accompanied by a statement specifying —
(i) the proposed method of exploration of the area in
respect of which the licence is sought; and
(ii) the details of the programme of work proposed to
be carried out in such area; and
(iii) the estimated amount of money proposed to be
expended on the exploration; and
(iv) the technical and, subject to subsection (1aa),
financial resources available to the applicant;
and
(c) shall be accompanied by the amount of the prescribed
rent for the first year of the term of the licence or portion
thereof as prescribed; and
(d) shall be lodged in the prescribed manner; and
(e) shall be accompanied by the prescribed application fee.
(1aa) The statement under subsection (1)(b) does not have to specify
the financial resources available to the applicant if —
(a) the applicant is a natural person; and
(b) the application is in respect of not more than 4 blocks;
and

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 58

(c) the statement specifies that the applicant intends to

utilise his or her own labour to carry out the programme
of work referred to in subsection (1)(b)(ii).
[(1a) deleted]
(2) An application referred to in subsection (1) must identify the
block or blocks applied for by number in accordance with
section 56C(4).
(2a) On an application for an exploration licence or on an
exploration licence being granted the land affected is not
thereby required to be surveyed, but where a dispute arises with
respect to the position of such land or the boundaries or any
boundary thereof the warden or Minister may require a survey
to be made of the boundaries or the boundary in order to settle
the dispute.
(2b) A survey required under subsection (2a) shall be —
(a) arranged in accordance with the regulations; and
(b) paid for by such party or parties to the dispute as the
warden or the Minister determines.
(3) An applicant shall at the request of the mining registrar or
warden furnish such further information in relation to his
application, or such evidence in support thereof, as the mining
registrar or warden may require but the mining registrar or
warden shall not require information or evidence relating to
assays or other results of any testing or sampling that the
applicant may have carried out on the land the subject of his
application.
(4) Within the prescribed period the applicant shall serve such
notice of the application as may be prescribed on the owner and
occupier of the land to which the application relates and on such
other persons as may be prescribed.
[Section 58 amended by No. 100 of 1985 s. 39; No. 22 of 1990
s. 17; No. 37 of 1993 s. 26 and 28(1); No. 58 of 1994 s. 14;

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 59

No. 15 of 2002 s. 11; No. 39 of 2004 s. 58; No. 12 of 2010

s. 21.]

59. Determination of application for exploration licence

(1) A person who wishes to object to the granting of an application
for an exploration licence shall lodge a notice of objection
within the prescribed time and in the prescribed manner.
(2) Where no notice of objection is lodged within the prescribed
time, or any notice of objection is withdrawn, the mining
registrar shall, unless subsection (4)(b) applies, forward to the
Minister a report which recommends the grant or refusal of the
exploration licence and sets out the reasons for that
recommendation.
(3) The mining registrar shall —
(a) recommend the grant of the exploration licence if
satisfied that the applicant has complied in all respects
with the provisions of this Act; or
(b) recommend the refusal of the exploration licence if not
so satisfied.
(4) Where a notice of objection —
(a) is lodged within the prescribed time; or
(b) is not lodged within the prescribed time but is lodged
before the mining registrar has forwarded a report to the
Minister under subsection (2) and the warden is satisfied
that there are reasonable grounds for late lodgment,
and the notice of objection is not withdrawn, the warden shall
hear the application for the exploration licence on a day
appointed by the warden and may give any person who has
lodged such a notice of objection an opportunity to be heard.
(5) The warden shall as soon as practicable after the hearing of the
application forward to the Minister for the Minister’s
consideration —

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 60

(a) the notes of evidence; and

(b) any maps or other documents referred to in the notes of
evidence; and
(c) a report which recommends the grant or refusal of the
exploration licence and sets out the reasons for that
recommendation.
(6) On receipt of a report under subsection (2) or (5), the Minister
may grant or refuse the exploration licence as the Minister
thinks fit, and irrespective of whether —
(a) the report recommends the grant or refusal of the
exploration licence; and
(b) the applicant has or has not complied in all respects with
the provisions of this Act.
[Section 59 inserted by No. 58 of 1994 s. 15(1); amended by
No. 39 of 2004 s. 59; No. 12 of 2010 s. 22.]

60. Security relating to exploration licence

(1) The applicant for an exploration licence shall lodge, in the
prescribed manner and within the prescribed period, a security
for compliance with the conditions to which the exploration
licence, if granted, will from time to time be subject and with
the provisions of this Part and the regulations.
(1a) The Minister may require the holder of an exploration licence to
lodge, in the prescribed manner and within such period as the
Minister specifies in writing, an additional security for
compliance with conditions imposed in relation to the licence
under section 63AA.
(2) A security referred to in subsection (1) or (1a) shall be in
accordance with and subject to the provisions of section 126.
(3) An exploration licence shall not be granted unless a security has
been lodged by the applicant for the exploration licence in
accordance with subsection (1).

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 61

(4) Notwithstanding section 154(1), an applicant for an exploration

licence who fails to comply with subsection (1) does not
commit an offence against this Act.
[Section 60 amended by No. 100 of 1985 s. 41; No. 37 of 1993
s. 26; No. 58 of 1994 s. 16; No. 17 of 1999 s. 7(1) and (2);
No. 12 of 2010 s. 23.]

61. Term of exploration licence

(1) An exploration licence shall, subject to this Act, remain in force
for a period of 5 years from and including the date on which it
was granted, and shall then expire.
(2) Notwithstanding subsection (1) the Minister may, if satisfied
that a prescribed ground for extension exists, extend the term of
an exploration licence —
(a) by one period of 5 years; and
(b) by a further period or periods of 2 years,
as to the whole or any part of the land the subject of that
exploration licence on such terms and conditions as the Minister
thinks fit.
(3) An application for the extension of the term of an exploration
licence under subsection (2) shall be made within the prescribed
time and in the prescribed manner.
(3a) If an application for the extension of the term of an exploration
licence is made under this section and the term of the licence
would but for this subsection expire, the licence shall continue
in force in respect of the land the subject of the application until
the application is determined.
(4) If the holder of an exploration licence transfers the licence after
making an application for the extension of the term of the
licence under subsection (2), the application continues in the
name of the transferee of the licence as if the transferee had
made it.

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 62

[Section 61 amended by No. 122 of 1982 s. 18; No. 12 of 1987

s. 4; No. 37 of 1993 s. 26; No. 58 of 1994 s. 17; No. 17 of 1999
s. 8; No. 39 of 2004 s. 14.]

62. Expenditure conditions

(1) During the currency of an exploration licence the holder thereof
shall comply with the prescribed expenditure conditions relating
thereto, unless in accordance with this Act total or partial
exemption therefrom is granted.
(2) In the case of an exploration licence that has retention status,
expenditure conditions prescribed for the purposes of
subsection (1) —
(a) are to provide for a reduction calculated in the
prescribed manner of the amount of expenditure
required during the year of the term of the licence in
which retention status is approved; and
(b) are not to require expenditure during any subsequent
year of the term of the licence.
[Section 62 amended by No. 39 of 2004 s. 23.]

63. Condition attached to exploration licence

Every exploration licence shall be deemed to be granted subject
to the condition that the holder thereof will explore for minerals
and —
(a) will promptly report in writing to the Minister all
minerals of economic interest discovered in, on or under
the land the subject of the exploration licence; and
(aa) will not use ground disturbing equipment when
exploring for minerals on the land the subject of the
exploration licence unless —
(i) the holder has lodged in the prescribed manner a
programme of work in respect of that use; and
(iia) the holder has paid the prescribed assessment fee
in respect of the programme of work; and

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 63AA

(ii) the programme of work has been approved in

writing by the Minister or a prescribed official;
and
(b) will fill in or otherwise make safe to the satisfaction of a
prescribed official all holes, pits, trenches and other
disturbances to the surface of the land the subject of the
exploration licence which are —
(i) made while exploring for minerals; and
(ii) in the opinion of the prescribed official, likely to
endanger the safety of any person or animal;
and
(c) will take all necessary steps to prevent fire, damage to
trees or other property and to prevent damage to any
property or damage to livestock by the presence of dogs,
the discharge of firearms, the use of vehicles or
otherwise.
[Section 63 amended by No. 69 of 1981 s. 18; No. 100 of 1985
s. 42; No. 39 of 2004 s. 15(1); No. 51 of 2012 s. 19.]

63AA. Conditions for prevention or reduction of injury to land

(1) On the granting of an exploration licence, or at any subsequent
time, the Minister may impose on the holder of the licence
reasonable conditions for the purpose of preventing or reducing,
or making good, injury to the land in respect of which the
licence is sought or was granted, or injury to anything on or
below the natural surface of that land or consequential damage
to any other land.
(2) A condition imposed under this section may be cancelled or
varied by the Minister at any time.
(3) A condition imposed in relation to a licence under this
section —
(a) may, either in full or with sufficient particularity as to
identify the recommendation or other source from which

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 63A

it derives, be endorsed on the licence, for which purpose

the holder of the licence shall produce the licence on
demand; and
(b) whether or not so endorsed, on notice of the imposition
of the condition being given in writing to the holder of
the licence shall for all purposes have effect as a
condition to which the licence is subject.
[Section 63AA inserted by No. 22 of 1990 s. 18; amended by
No. 12 of 2010 s. 6.]

63A. When exploration licence liable to forfeiture

An exploration licence is liable to forfeiture if —
(a) the prescribed rent or royalty in respect thereof is not
paid in accordance with this Act; or
(aa) any requirement under section 60(1a), 65(4), 69E(2) or
115B(2) in relation to the exploration licence is not
complied with; or
(b) the terms and conditions, including the prescribed
expenditure conditions referred to in section 62, and any
conditions to which the licence is deemed to be subject
pursuant to section 63, are not complied with; or
(baa) any request under section 68(1) or (2) in relation to the
exploration licence is not complied with; or
(ba) a report required under section 68(3) or 115A in relation
to the land the subject of the exploration licence is not
filed in accordance with this Act; or
(c) the holder of the exploration licence is convicted of an
offence against this Act.
[Section 63A inserted by No. 69 of 1981 s. 19; amended by
No. 100 of 1985 s. 43; No. 58 of 1994 s. 18; No. 17 of 1999
s. 7(3); No. 39 of 2004 s. 89; No. 27 of 2005 s. 8.]

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 64

64. Consent to dealing in exploration licence

(1) During the first year of the term for which an exploration
licence is granted, a legal or equitable interest in or affecting the
exploration licence shall not be transferred or otherwise dealt
with, whether directly or indirectly, unless —
(a) the dealing or other transaction in or affecting the
interest arises in the due administration of the estate or
affairs of a holder —
(i) who is dead; or
(ii) who is a person who is an insolvent under
administration within the meaning of the
Corporations Act; or
(iii) who is otherwise incapacitated at law; or
(iv) which is in the course of being wound up (not
being a voluntary winding up);
or
(b) prior written consent to the dealing or other transaction
in or affecting the interest is given by the Minister or an
officer of the Department acting with the authority of the
Minister.
(2) Nothing in subsection (1) prevents, or affects the validity of,
any agreement made in contemplation of a dealing or other
transaction to which that subsection applies where the
agreement expressly provides that the consent required by that
subsection is to be obtained as a condition of the dealing or
other transaction.
[Section 64 inserted by No. 100 of 1985 s. 44; amended by
No. 37 of 1993 s. 27; No. 54 of 1996 s. 8; No. 10 of 2001
s. 132.]

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 65

65. Surrender of certain areas subject to exploration licence

(1) In this section —
end day, in relation to an exploration licence, means —
(a) the day (the anniversary day) that is 6 years after the
day on which the licence was granted; or
(b) if, on the anniversary day, an application for retention
status under section 69A in respect of the whole or part
of the land the subject of the licence has been made but
not determined, the day on which that application is
determined;
surrender day, in relation to a surrender, means —
(a) if the surrender is lodged under subsection (3), the end
day; or
[(b) deleted]
(c) if the surrender is lodged in compliance with a
requirement under subsection (4), the day on which the
surrender is registered.
(2) This section applies in relation to an exploration licence if —
(a) the term of the licence has been extended under
section 61; or
(b) an application under section 61 for the extension of the
term of the licence has been made but has not been
determined.
(3) On or before the end day the holder of an exploration licence
granted in respect of more than 10 blocks must lodge a
surrender for registration in respect of —
(a) 40% of the number of the blocks that are subject to the
licence; or
(b) if 40% of that number is not a whole number, the nearest
whole number of the blocks.

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 65

(3A) Subsection (3) does not apply to the holder of an exploration

licence for which retention status has been approved under
section 69B(1).
[(3a)-(3d) deleted]
(4) If the holder of an exploration licence fails to lodge a surrender
in accordance with subsection (3), the Minister must, by notice
in writing, require the holder to lodge the surrender for
registration within a period specified in the notice.
(4a) A surrender under this section takes effect on the surrender day.
(4b) The blocks that remain subject to an exploration licence after a
surrender under this section are to form not more than 6 discrete
areas each consisting of —
(a) a single graticular section; or
(b) a number of graticular sections each having a side in
common with at least one other graticular section in that
area.
(4c) If, before the surrender day, the holder of an exploration
licence —
(a) is granted a mining lease or general purpose lease in
respect of a part of the land the subject of the
exploration licence (the granted land); or
(b) surrenders a part of the land the subject of the
exploration licence (the surrendered land),
then, in calculating the area of land that is required to be
surrendered under this section, the area of granted land or
surrendered land shall be taken into account as though it were
an area of land surrendered in satisfaction of that requirement.
(5) A surrender under this section shall be endorsed on the public
plans of the Department —
(a) at the office of the Department at Perth; and

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 66

(b) at the office of the mining registrar for the mineral field
or district thereof in which the land is situate.
(6) Notwithstanding that a surrender has taken effect under this
section any land the subject of the surrender shall not be —
(a) marked out in connection with a mining tenement unless
and until notification has been given in the prescribed
manner of the proposed endorsement of plans for the
purposes of paragraph (b); or
(b) included in an application for a mining tenement unless
and until the plans referred to in subsection (5) have
been endorsed in the prescribed manner.
[Section 65 amended by No. 69 of 1981 s. 20; No. 100 of 1985
s. 45; No. 12 of 1987 s. 5; No. 22 of 1990 s. 19; No. 57 of 1997
s. 89(2); No. 15 of 2002 s. 12; No. 39 of 2004 s. 16; No. 27 of
2005 s. 9; No. 51 of 2012 s. 20.]

66. Rights conferred by exploration licence

An exploration licence, while it remains in force, authorises the
holder thereof, subject to this Act, and in accordance with any
conditions to which the licence may be subject —
(a) to enter and re-enter the land the subject of the licence with
such agents, employees, vehicles, machinery and
equipment as may be necessary or expedient for the
purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under
section 24, 24A or 25, for minerals, and to carry on such
operations and carry out such works as are necessary for
that purpose on such land including digging pits,
trenches and holes, and sinking bores and tunnels to the
extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions
imposed under section 24, 24A or 25, from such land,
earth, soil, rock, stone, fluid or mineral bearing
substances in such amount, in total during the period for

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 67

which the licence remains in force, as does not exceed

the prescribed limit, or in such greater amount as the
Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and
Irrigation Act 1914, or any Act amending or replacing
the relevant provisions of that Act water from any
natural spring, lake, pool or stream situate in or flowing
through such land or from any excavation previously
made and used for mining purposes and subject to that
Act to sink a well or bore on such land and take water
therefrom and to use the water so taken for his domestic
purposes and for any purpose in connection with
exploring for minerals on the land.
[Section 66 amended by No. 100 of 1985 s. 46; No. 22 of 1990
s. 20; No. 5 of 1997 s. 41(2).]

67. Holder of exploration licence to have priority for grant of

mining leases or general purpose leases
(1) The holder of an exploration licence has —
(a) subject to this Act and to any conditions to which the
exploration licence is subject; and
(b) while the exploration licence continues in force,
the right to apply for, and subject to section 75(9) to have
granted pursuant to section 75(7), one or more mining leases or
one or more general purpose leases or both in respect of any
part or parts of the land the subject of the exploration licence.
(2) Where an application for a mining lease or a general purpose
lease is made by the holder of an exploration licence in respect
of any land and the term of the exploration licence would but
for this subsection expire, that licence shall continue in force in
respect to the land the subject of that application until the
application for a lease is determined.
(3) If, after an application is made under subsection (1) in respect of
land the subject of an exploration licence —

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 67A

(a) the holder of the licence transfers the licence; or

(b) where there are 2 or more holders of the licence, a
holder transfers the holder’s interest in the licence,
the application continues in the name of the transferee of the
licence or interest as if the transferee were the applicant or one
of the applicants, as the case requires.
(4) For the purposes of subsection (3), where there are 2 or more
transferees of the exploration licence, each of the transferees is
to be regarded as an applicant for an interest in the relevant
mining lease or general purpose lease that corresponds to the
interest held by that transferee in the licence.
[Section 67 inserted by No. 122 of 1982 s. 19; amended by
No. 100 of 1985 s. 47; No. 105 of 1986 s. 10; No. 21 of 1993
s. 45; No. 58 of 1994 s. 29(2); No. 52 of 1995 s. 26; No. 17 of
1999 s. 9.]
67A. Holder of exploration licence may apply to amalgamate
secondary tenement
(1) Where a person is the holder of both an exploration licence and
a secondary tenement the person or an agent of the person may,
without marking out the land, apply in writing to the Minister in
the prescribed manner for the secondary tenement to be
amalgamated with the exploration licence.
(2) The holder of an exploration licence or an agent of the holder
may, without marking out the land, apply in writing to the
Minister in the prescribed manner for a secondary tenement to
be amalgamated with the exploration licence where the
secondary tenement was surrendered or forfeited, or expired,
after the application for the exploration licence was made but
before the exploration licence was granted.
(3) The holder of an exploration licence or an agent of the holder
may, without marking out the land, apply in writing to the
Minister in the prescribed manner for a secondary tenement to

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 67A

be amalgamated with the exploration licence where the

secondary tenement is surrendered or forfeited, or expires.
(4) On receiving an application under subsection (1), (2) or (3), the
Minister may —
(a) grant the application and amend the exploration licence
to include the land the subject of the secondary
tenement, in such manner and on such conditions as the
Minister thinks fit; or
(b) refuse the application.
(5) Where an application is made under subsection (1) and the term
of the secondary tenement would but for this subsection expire,
the secondary tenement shall continue in force with respect to
the land that is the subject of the application until the
application is determined.
(6) Notwithstanding anything in section 45(2), 69(1) or 85A(1), an
application by the holder of an exploration licence who was also
the holder of the secondary tenement immediately before the
date of its surrender, forfeiture or expiry may be made —
(a) under subsection (2) at any time after the granting of the
exploration licence; and
(b) under subsection (3) at any time after the surrender,
forfeiture or expiry of the secondary tenement.
(6a) Section 105A applies, with all necessary changes, in relation to
a person who makes an application under subsection (2) or (3)
as if a reference in that section —
(a) to an applicant included a reference to such a person;
(b) to an application for a mining tenement included a
reference to an application under subsection (2) or (3);
(c) to compliance with the initial requirement included, in
relation to an application under subsection (2) or (3), a
reference to lodging the application in the prescribed
manner.

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 68

(7) In this section —

secondary tenement, in relation to an exploration licence —
(a) means a mining tenement (other than a retention licence)
situated wholly within the boundaries (whether or not
any of those boundaries are common boundaries) of the
land the subject of the exploration licence; and
(b) where the exploration licence was granted in respect of
an application made on or after the commencement of
section 16 of the Mining Amendment Act 1990 1,
includes any part of a mining tenement (other than a
retention licence) situated within the boundaries
(whether or not any of those boundaries are common
boundaries) of the land the subject of the exploration
licence.
(8) This section does not affect the operation of section 40(1)(b)
and (c) of the Mining Amendment Act 1990.
[Section 67A inserted by No. 37 of 1993 s. 8; amended by
No. 58 of 1994 s. 19; No. 15 of 2002 s. 13; No. 39 of 2004 s. 60;
No. 12 of 2010 s. 24.]

68. Holder of exploration licence to keep geological records

(1) The holder of an exploration licence shall keep complete and
detailed records of the surveys and other operations conducted
pursuant to the licence and shall, at the written request of the
Minister, produce the records for the inspection of the Minister
and the Director, Geological Survey.
(2) The holder of an exploration licence shall furnish the Minister
with such information relating to the surveys and other
operations conducted by the holder pursuant to the licence and
such geological samples obtained in the course of those
operations as the Minister may request.
(3) The holder of an exploration licence shall at such times and in
such manner as may be prescribed, file or cause to be filed a
report of all work done on, and money expended in connection

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 69

with, exploration in the area the subject of the licence during the
period to which the report relates.
(4) Notwithstanding section 154(1), a holder of an exploration
licence who fails to comply with subsection (1), (2) or (3) does
not commit an offence against this Act.
[Section 68 amended by No. 58 of 1994 s. 20; No. 39 of 2004
s. 17; No. 12 of 2010 s. 25.]

69. Land the subject of exploration licence not to be again

marked out for a certain period
(1) When an exploration licence is surrendered or forfeited, or
expires, or any part of the land the subject of the licence is
surrendered in accordance with section 65, the land the subject
of the licence or the part so surrendered shall not be marked out
or applied for as a prospecting licence or an exploration
licence —
(a) by or on behalf of the person who was the holder of the
exploration licence immediately prior to the date of the
surrender, forfeiture or expiry; or
(b) by or on behalf of any person who had an interest in the
exploration licence immediately prior to that date; or
(c) by or on behalf of any person who is related to a person
referred to in paragraph (a) or (b),
within a period of 3 months from and including that date.
(2) For the purposes of subsection (1) the holding of shares in a
listed public company which held the exploration licence in
question does not of itself constitute an interest in the
exploration licence.
[Section 69 amended by No. 100 of 1985 s. 48; No. 22 of 1990
s. 21; No. 15 of 2002 s. 14; No. 39 of 2004 s. 18.]

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 69A

69A. Application for retention status

(1) In this section —
exploration licence does not include an exploration licence that
is a primary tenement for the purposes of Division 2A.
(2) The holder of an exploration licence may apply to the Minister
for approval of retention status under section 69B.
(3) An application under subsection (2) —
(a) shall be in writing; and
(b) shall be made in the prescribed manner; and
(c) shall contain the prescribed information; and
(d) shall be accompanied by any map, statement or other
information required by the regulations; and
(e) shall be accompanied by the prescribed application fee.
(4) For the purposes of subsection (3)(d), but without limiting
section 162(5), the regulations may require a statement or other
information to be in the form of a statutory declaration.
(5) If the holder of an exploration licence transfers the licence after
making an application under subsection (2) in respect of the
licence, the application continues in the name of the transferee
of the licence as if the transferee had made it.
[Section 69A inserted by No. 39 of 2004 s. 24.]

69B. Approval of retention status

(1) The Minister may approve retention status for the whole or any
part of the land the subject of an exploration licence if satisfied
that —
(a) there is an identified mineral resource located in, on or
under that land; and

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 69B

(b) the mining of that identified mineral resource is

impracticable because —
(i) the resource is uneconomic or subject to
marketing problems although the resource may
reasonably be expected to become economic or
marketable in the future; or
(ii) the resource is required to sustain the future
operations of an existing or proposed mining
operation; or
(iii) there are existing political, environmental or
other difficulties in obtaining requisite approvals.
(2) An approval shall be in writing.
(3) An approval takes effect on the day on which notice of the
approval is published in the Gazette or on a later day specified
in the notice.
(4) The area of land to which an approval applies —
(a) shall be a block or blocks; and
(b) shall be an area that, in the opinion of the Minister, is
sufficient to include —
(i) the land in, on or under which the identified
mineral resource is located; and
(ii) such other land as may be required for future
mining operations in respect of that identified
mineral resource.
(5) The area of land to which an approval applies may be less than
the area of land in respect of which the approval was sought.
(6) If retention status is approved for part of the land the subject of
an exploration licence, the land not covered by the approval
ceases to be the subject of the licence on the day on which the
approval takes effect.
[Section 69B inserted by No. 39 of 2004 s. 24.]

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 69C

69C. Consultation with other Ministers

(1) Before approving retention status under section 69B for land of
a class referred to in section 24(1), the Minister shall consult
and obtain the recommendations of the relevant responsible
Minister under section 24(8).
(2) Before approving retention status under section 69B for land in
a marine management area, marine nature reserve or marine
park the Minister shall consult and obtain the recommendations
of the other Ministers referred to in section 24A(6).
(3) Before approving retention status under section 69B for land of
a class referred to in section 25(1)(a), (b) or (c), the Minister
shall consult and obtain the recommendations of the other
Ministers referred to in section 25(2B).
(4) Before approving retention status under section 69B for land of
the class referred to in section 25(1)(d), the Minister shall
consult and obtain the recommendations of the other Minister
referred to in section 25(3B).
[Section 69C inserted by No. 39 of 2004 s. 24; amended by
No. 19 of 2010 s. 51.]

69D. Programme of work

(1) On the approval of retention status under section 69B, or at any
subsequent time, the Minister may impose on the holder of the
exploration licence a condition requiring the holder to comply
with a specified programme of work in respect of the land the
subject of the licence within a specified period.
(2) Before imposing a condition under subsection (1), the Minister
may require the holder of the licence to submit to the Minister a
draft programme of work in a form approved by the Minister
and the holder shall comply with that requirement.
(3) A condition imposed under subsection (1) may be cancelled or
varied by the Minister at any time.

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 69E

(4) A condition imposed under subsection (1) —

(a) may be endorsed on the exploration licence, for which
purpose the holder of the licence shall produce the
licence on demand; and
(b) whether or not so endorsed, on notice of the imposition
of the condition being given in writing to the holder of
the licence shall for all purposes have effect as a
condition to which the licence is subject.
(5) In subsection (1) —
specified means specified in writing by the Minister.
[Section 69D inserted by No. 39 of 2004 s. 24.]

69E. Holder of exploration licence with retention status may be

required to apply for mining lease
(1) The Minister may at any time, by notice in writing, require the
holder of an exploration licence that has retention status to show
cause why a mining lease should not be applied for in respect of
the whole or any part of the land the subject of the exploration
licence.

(2) Where —
(a) the holder of an exploration licence fails to show cause
within the time specified in the notice referred to in
subsection (1); or
(b) the Minister is of the opinion that the holder of an
exploration licence has shown insufficient cause,

the Minister may, by notice in writing, require that holder to

apply in accordance with this Act for a mining lease in respect
of the whole or any part of the land the subject of the
exploration licence within a period of 60 days from the giving
of that notice.
[Section 69E inserted by No. 39 of 2004 s. 24.]

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 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

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 70

registrar may, subject to this Act, grant the application as

provided in subsection (6).
(4) Where such an objection is lodged by the holder of the primary
tenement the warden shall 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) 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,

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 70

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.

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 70

(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.

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Mining Act 1978
Part IV Mining tenements
Division 2 Exploration licence
s. 70

(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

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 Mining Act 1978
Mining tenements Part IV
Exploration licence Division 2
s. 70

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

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70A

application for a special prospecting licence or the

special prospecting licence, as the case requires.
[Section 70 amended by 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.]

Division 2A — Retention licence

[Heading inserted by No. 37 of 1993 s. 10(1).]
70A. Term used: primary tenement
In this Division —
primary tenement means —
(a) a prospecting licence that —
(i) is in force immediately before the
commencement of section 25 of the Mining
Amendment Act 2004; or
(ii) is granted after that commencement in respect of
an application made before that commencement;
or
(b) an exploration licence that —
(i) is in force immediately before the
commencement of section 25 of the Mining
Amendment Act 2004; or
(ii) is granted after that commencement in respect of
an application made before that commencement;
or
(c) a mining lease.
[Section 70A inserted by No. 39 of 2004 s. 25.]

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70B

70B. Grant of retention licence

(1) Subject to this Act, the Minister may, on the application of the
holder of a primary tenement, after receiving a recommendation
of the mining registrar or the warden in accordance with
section 70D, grant to that person a licence to be known as a
retention licence in respect of the whole or any part of the land
the subject of the primary tenement on such terms and
conditions as the Minister considers reasonable.
(2) The holder of a primary tenement may be granted more than one
retention licence.
(3) Where the applicant for a retention licence is the holder of 2 or
more primary tenements, a retention licence may be granted in
respect of the whole or any part of the land within the
boundaries of those tenements.
(4) The land in respect of which a retention licence is granted —
(a) shall be of an area that, in the opinion of the Minister, is
sufficient to include —
(i) the land in, on or under which an identified
mineral resource is located; and
(ii) such other land as may be required for future
mining operations in respect of that identified
mineral resource;
and
(b) may be of an area that is less than the area of land in
respect of which the retention licence is sought.
[Section 70B inserted by No. 37 of 1993 s. 10(1); amended by
No. 58 of 1994 s. 24(2).]

70C. Application for retention licence

(1) An application for a retention licence —
(a) shall be in the prescribed form; and

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70C

(b) shall be accompanied by the amount of the prescribed

rent for the first year of the term of the licence or portion
thereof as prescribed; and
(c) shall be accompanied by the prescribed application fee;
and
(d) shall be lodged in the prescribed manner; and
(e) shall be accompanied by a statement specifying —
(i) the details of the programme of work (if any)
proposed to be carried out in the area in respect
of which the licence is sought; and
(ii) the estimated amount of money (if any) proposed
to be expended on such work.
(2A) An applicant is to lodge within the prescribed time and in the
prescribed manner a statutory declaration made by the applicant
to the effect that —
(a) there is an identified mineral resource in the area in
respect of which the licence is sought; and
(b) mining of that identified mineral resource is for the time
being impracticable for one or more of the reasons
referred to in subsection (2) (that reason or those reasons
being set out in the statutory declaration).
(2) For the purposes of subsection (2A)(b) mining of an identified
mineral resource may be impracticable because —
(a) the identified mineral resource is uneconomic or subject
to marketing problems although that resource may
reasonably be expected to become economic or
marketable in the future; or
(b) the identified mineral resource is required to sustain the
future operations of an existing or proposed mining
operation; or
(c) there are existing political, environmental or other
difficulties in obtaining requisite approvals.

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70C

(3) An applicant shall at the request of the mining registrar or

warden furnish such further information in relation to the
application, or such evidence in support of the application, as
the mining registrar or warden may require but the mining
registrar or warden shall not require information or evidence
relating to assays or other results of any testing or sampling that
the applicant may have carried out on the land the subject of the
application.
(4) Within the prescribed period the applicant shall serve such
notice of the application as may be prescribed on the owner and
occupier of the land to which the application relates and on such
other persons as may be prescribed.
(5) The application shall be made by reference to a written
description of the area of the land in respect of which the
licence is sought, and be accompanied by a map on which are
clearly delineated the boundaries of that area.
(6) Where an application is made by the holder of a primary
tenement and the term of the primary tenement would but for
this subsection expire, the primary tenement shall continue in
force in respect of the land the subject of the application until —
(a) the retention licence is granted; or
(b) if the retention licence is refused, the expiry of a period
of 30 days after that refusal.
(7) If, after an application is made under subsection (1) in respect of
land the subject of a primary tenement —
(a) the holder of the tenement transfers the tenement; or
(b) where there are 2 or more holders of the tenement, a
holder transfers the holder’s interest in the tenement,
the application continues in the name of the transferee of the
tenement or interest as if the transferee were the applicant or
one of the applicants, as the case requires.
(8) For the purposes of subsection (7), where there are 2 or more
transferees of the primary tenement, each of the transferees is to

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70D

be regarded as an applicant for an interest in the relevant

retention licence that corresponds to the interest held by that
transferee in the primary tenement.
[Section 70C inserted by No. 37 of 1993 s. 10(1); amended by
No. 58 of 1994 s. 23; No. 17 of 1999 s. 10; No. 12 of 2010
s. 27.]

70D. Determination of application for retention licence

(1) A person who wishes to object to the granting of an application
for a retention licence shall lodge a notice of objection within
the prescribed time and in the prescribed manner.
(2) Where no notice of objection is lodged within the prescribed
time, or any notice of objection is withdrawn, the mining
registrar shall, unless subsection (4)(b) applies, forward to the
Minister a report which recommends the grant or refusal of the
retention licence and sets out the reasons for that
recommendation.
(3) The mining registrar shall —
(a) recommend the grant of the retention licence if satisfied
that the applicant has complied in all respects with the
provisions of this Act; or
(b) recommend the refusal of the retention licence if not so
satisfied.
(4) Where a notice of objection —
(a) is lodged within the prescribed time; or
(b) is not lodged within the prescribed time but is lodged
before the mining registrar has forwarded a report to the
Minister under subsection (2) and the warden is satisfied
that there are reasonable grounds for late lodgment,
and the notice of objection is not withdrawn, the warden shall
hear the application for the retention licence on a day appointed
by the warden and may give any person who has lodged such a
notice of objection an opportunity to be heard.

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70D

(5) The warden shall as soon as practicable after the hearing of the
application forward to the Minister for the Minister’s
consideration —
(a) the notes of evidence; and
(b) any maps or other documents referred to in the notes of
evidence; and
(c) a report which recommends the grant or refusal of the
retention licence and sets out the reasons for that
recommendation.
(6) On receipt of a report under subsection (2) or (5), the Minister
may, subject to subsection (7), grant or refuse the retention
licence as the Minister thinks fit, and irrespective of whether —
(a) the report recommends the grant or refusal of the
retention licence; and
(b) the applicant has or has not complied in all respects with
the provisions of this Act.
(7) The Minister shall not grant a retention licence unless the
Minister is satisfied that mining of an identified mineral
resource on the land in respect of which the retention licence is
sought is for the time being impracticable for one or more of the
reasons referred to in section 70C(2).
(8) Before granting or refusing a retention licence the Minister may
require the applicant to furnish such further information in
relation to the application, or such evidence in support of the
application, as the Minister thinks fit.
(9) Before granting a retention licence the Minister may require the
applicant to mark out in the prescribed manner the land in
respect of which the retention licence is sought.
[Section 70D inserted by No. 58 of 1994 s. 24(1); amended by
No. 39 of 2004 s. 61; No. 12 of 2010 s. 28.]

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70E

70E. Term of retention licence and renewal

(1) Subject to this Act, a retention licence remains in force for such
period not exceeding 5 years as is specified in the licence and
then expires.
(2) The Minister may, on receipt of an application made within the
prescribed time and in the prescribed manner, renew or further
renew a retention licence for a period not exceeding 5 years.
(3) If an application for renewal is made under this section and the
term of the licence would but for this subsection expire, the
licence shall continue in force in respect of the land the subject
of the application until the application is determined.
(4) If the holder of a retention licence transfers the licence after
making an application for renewal under this section, the
application continues in the name of the transferee of the licence
as if the transferee had made it.
[Section 70E inserted by No. 37 of 1993 s. 10(1); amended by
No. 17 of 1999 s. 11.]

70F. Security relating to retention licence

(1) The applicant for a retention licence shall lodge, in the
prescribed manner and within the prescribed period, a security
for compliance with —
(a) the conditions to which the retention licence, if granted,
will from time to time be subject; and
(b) the provisions of this Part and the regulations.
(2) The Minister may require the holder of a retention licence to
lodge, in the prescribed manner and within such period as the
Minister specifies in writing, an additional security for
compliance with conditions imposed in relation to the licence
under section 70I.
(3) A security referred to in subsection (1) or (2) shall be in
accordance with and subject to section 126.

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70G

(4) A retention licence shall not be granted unless a security has

been lodged by the applicant for the retention licence in
accordance with subsection (1).
(5) Notwithstanding section 154(1), an applicant for a retention
licence who fails to comply with subsection (1) does not
commit an offence against this Act.
[Section 70F inserted by No. 39 of 2004 s. 36(1); amended by
No. 12 of 2010 s. 29.]

70G. Survey of area of retention licence not required in first

instance
(1) On an application for a retention licence or on a retention
licence being granted the land affected is not thereby required to
be surveyed, but where a dispute arises with respect to the
position of that land or the boundaries or any boundary of that
land the warden or the Minister may require a survey to be
made of the boundaries or the boundary in order to settle the
dispute.
(2) A survey required under subsection (1) shall be —
(a) arranged in accordance with the regulations; and
(b) paid for by such party or parties to the dispute as the
warden or the Minister determines.
[Section 70G inserted by No. 37 of 1993 s. 10(1); amended by
No. 39 of 2004 s. 62.]

70H. Conditions attached to retention licence

(1) Every retention licence shall be deemed to be granted subject to
the conditions that the holder of the licence shall —
(aa) not use ground disturbing equipment when exploring for
minerals on the land the subject of the licence unless —
(i) the holder has lodged in the prescribed manner a
programme of work in respect of that use; and

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70H

(iia) the holder has paid the prescribed assessment fee

in respect of the programme of work; and
(ii) the programme of work has been approved in
writing by the Minister or a prescribed official;
and
(a) fill in or otherwise make safe to the satisfaction of a
prescribed official all holes, pits, trenches and other
disturbances to the surface of the land the subject of the
licence which are —
(i) made while exploring for minerals; and
(ii) in the opinion of the prescribed official, likely to
endanger the safety of any person or animal;
and
(b) take all necessary steps to prevent fire, damage to trees
or other property and to prevent damage to any property
or damage to livestock by the presence of dogs, the
discharge of firearms, the use of vehicles or otherwise;
and
[(c) deleted]
(d) comply with the expenditure conditions (if any)
applicable to such land; and
(e) not transfer or mortgage a legal interest in such land or
any part thereof without the prior written consent of the
Minister, or of an officer of the Department acting with
the authority of the Minister; and
(f) lodge, in the prescribed manner, such periodical reports
and returns as may be prescribed; and
(g) furnish to the Minister such geological samples obtained
in the course of operations conducted by the holder
under the licence as the Minister may request.
(2) The Minister may at any time cancel or vary —
[(a) deleted]

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70I

(b) expenditure conditions referred to in subsection (1)(d).

[Section 70H inserted by No. 37 of 1993 s. 10(1); amended by
No. 54 of 1996 s. 11; No. 17 of 1999 s. 12(2) and (3); No. 39 of
2004 s. 44 and 90(1); No. 12 of 2010 s. 30; No. 51 of 2012
s. 22.]

70I. Conditions for prevention or reduction of injury to land

(1) On the granting of a retention licence, or at any subsequent
time, the Minister may impose on the holder of the licence
reasonable conditions for the purpose of preventing or reducing,
or making good, injury to the land in respect of which the
licence is sought or was granted, or injury to anything on or
below the natural surface of that land or consequential damage
to any other land.
(2) A condition imposed under this section may be cancelled or
varied by the Minister at any time.
(3) A condition imposed under this section —
(a) may, either in full or with sufficient particularity as to
identify the recommendation or other source from which
it derives, be endorsed on the licence, for which purpose
the holder of the licence shall produce the licence on
demand; and
(b) whether or not so endorsed, on notice of the imposition
of the condition being given in writing to the holder of
the licence shall for all purposes have effect as a
condition to which the licence is subject.
[Section 70I inserted by No. 37 of 1993 s. 10(1); amended by
No. 12 of 2010 s. 7.]

70IA. Programme of work

(1) On the granting of a retention licence, or at any subsequent
time, the Minister may impose on the holder of the licence a
condition requiring the holder to comply with a specified

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70J

programme of work in respect of the land the subject of the

licence within a specified period.
(2) Before imposing a condition under subsection (1), the Minister
may require the applicant for the licence or the holder of the
licence, as the case requires, to submit to the Minister a draft
programme of work in a form approved by the Minister and the
applicant or the holder, as the case requires, shall comply with
that requirement.
(3) Subsections (2) and (3) of section 70I apply to a condition
imposed under subsection (1) as if it were a condition imposed
under that section.
(4) In subsection (1) —
specified means specified in writing by the Minister.
[Section 70IA inserted by No. 17 of 1999 s. 12(1).]

70J. Rights conferred by retention licence

A retention licence, while it remains in force, authorises the
holder of the licence, subject to this Act, and in accordance with
any conditions to which the licence may be subject —
(a) to enter and re-enter the land the subject of the licence
with such agents, employees, vehicles, machinery and
equipment as may be necessary or expedient for the
purpose of further exploring for minerals in, on or under
the land;
(b) to further explore, subject to any conditions imposed
under section 24, 24A or 25, for minerals, and to carry
on such operations and carry out such works as are
necessary for that purpose on such land including
digging pits, trenches and holes, and sinking bores and
tunnels to the extent necessary for the purpose in, on or
under the land;
(c) to excavate, extract or remove, subject to any conditions
imposed under section 24, 24A or 25, from such land,

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70K

earth, soil, rock, stone, fluid or mineral bearing

substances in such amount, in total during the period for
which the licence remains in force, as does not exceed
the prescribed limit, or in such greater amount as the
Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and
Irrigation Act 1914, or any Act amending or replacing
the relevant provisions of that Act, water from any
natural spring, lake, pool or stream situate in or flowing
through such land or from any excavation previously
made and used for mining purposes, and, subject to that
Act, to sink a well or bore on such land and take water
therefrom and to use the water so taken for the holder’s
domestic purposes and for any purpose in connection
with exploring for minerals on the land.
[Section 70J inserted by No. 37 of 1993 s. 10(1); amended by
No. 5 of 1997 s. 41(2).]

70K. When retention licence liable to forfeiture

A retention licence is liable to forfeiture if —
(a) the prescribed rent or royalty in respect of the licence is
not paid in accordance with this Act; or
(b) the terms and conditions of the licence, including —
(i) any conditions to which the licence is deemed to
be subject under section 70H; and
(ii) any conditions imposed under section 70I
or 70IA,
are not complied with; or
(ba) a report required under section 70H(1)(f) or 115A in
relation to the land the subject of the retention licence is
not filed in accordance with this Act; or
(bb) the holder of the licence fails to comply with a
requirement under section 70F(2) to lodge a security; or

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Mining Act 1978
Part IV Mining tenements
Division 2A Retention licence
s. 70L

(c) the holder of the licence is convicted of an offence

against this Act; or
(d) the holder of the licence fails to comply with a notice
under section 70M(2) requiring that person to apply for
a mining lease in respect of the whole or any part of the
land the subject of the licence; or
(e) the holder of the licence fails to comply with a notice
under section 115B(2) requiring that person to file an
audit statement or cause an audit statement to be filed.
[Section 70K inserted by No. 37 of 1993 s. 10(1); amended by
No. 58 of 1994 s. 26; No. 17 of 1999 s. 12(4); No. 39 of 2004
s. 37 and 97(2).]

70L. Holder of retention licence to have priority for grant of

mining lease or general purpose lease
(1) The holder of a retention licence has —
(a) subject to this Act and to any conditions to which the
retention licence is subject; and
(b) subject to satisfactory compliance with any conditions
imposed under section 70I or 70IA; and
(c) while the retention licence remains in force,
the right to apply for, and subject to section 75(9) to have
granted pursuant to section 75(7), one or more mining leases or
one or more general purpose leases or both in respect of any
part or parts of the land the subject of the retention licence.
(2) Where an application for a mining lease or a general purpose
lease is made by the holder of a retention licence in respect of
any land and the term of the retention licence would but for this
subsection expire, that licence shall continue in force in respect
of the land the subject of the application until the application for
a lease is determined.
(3) If, after an application is made under subsection (1) in respect of
land the subject of a retention licence —

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 Mining Act 1978
Mining tenements Part IV
Retention licence Division 2A
s. 70M

(a) the holder of the licence transfers the licence; or

(b) where there are 2 or more holders of the licence, a
holder transfers the holder’s interest in the licence,
the application continues in the name of the transferee of the
licence or interest as if the transferee were the applicant or one
of the applicants, as the case requires.
(4) For the purposes of subsection (3), where there are 2 or more
transferees of the retention licence, each of the transferees is to
be regarded as an applicant for an interest in the relevant mining
lease or general purpose lease that corresponds to the interest
held by that transferee in the licence.
[Section 70L inserted by No. 37 of 1993 s. 10(1); amended by
No. 58 of 1994 s. 29(3); No. 17 of 1999 s. 12(5) and 13.]

70M. Holder of retention licence to show cause why mining lease

should not be applied for
(1) The Minister may at any time by notice in writing require the
holder of a retention licence to show cause why a mining lease
should not be applied for in respect of the whole or any part of
the land the subject of the retention licence.
(2) Where —
(a) the holder of a retention licence fails to show cause
within the time specified in the notice referred to in
subsection (1); or
(b) the Minister is of the opinion that the holder of a
retention licence has shown insufficient cause,
the Minister may by notice in writing require that person to
apply in accordance with this Act for a mining lease in respect
of the whole or any part of the land the subject of the retention
licence within a period of 60 days from the giving of that notice.
[Section 70M inserted by No. 37 of 1993 s. 10(1).]

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 70N

70N. Land subject of retention licence not to be again marked out

for certain period
(1) Where a retention licence is surrendered or forfeited, or expires,
the land the subject of the retention licence or any part of that
land shall not be marked out or applied for as a prospecting
licence or an exploration licence by or on behalf of —
(a) the person who was the holder of the retention licence
immediately prior to the date of the surrender, forfeiture
or expiry; or
(b) any person who had an interest in the retention licence
immediately prior to that date,
within a period of 3 months from and including that date.
(2) For the purposes of subsection (1) the holding of shares in a
listed public company which held the retention licence in
question does not of itself constitute an interest in the retention
licence.
[Section 70N inserted by No. 37 of 1993 s. 10(1).]

Division 3 — Mining lease

70O. Terms used
(1) In this Division —
guidelines means guidelines approved by the Director General
of Mines for the purposes of this Division;
mine closure plan means a document that —
(a) is in the form required by the guidelines; and
(b) contains information of the kind required by the
guidelines about the decommissioning of each proposed
mine, and the rehabilitation of the land, in respect of
which a mining lease is sought or granted, as the case
requires;

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 70P

mining proposal means a document that —

(a) is in the form required by the guidelines; and
(b) contains information of the kind required by the
guidelines about proposed mining operations in, on or
under the land in respect of which a mining lease is
sought or granted, as the case requires; and
(c) contains a mine closure plan;
relevant mining proposal, in relation to a mining lease,
means —
(a) a mining proposal that accompanied the application for
the mining lease under section 74(1)(ca); or
(b) a mining proposal for which there is approval as
described in section 82A(2)(b);
significant mineralisation has the meaning given in
subsection (2).
(2) For the purposes of this Division there is significant
mineralisation in, on or under land to which an application for a
mining lease relates if exploration results in respect of a deposit
of minerals located in, on or under that land indicate that there is
a reasonable prospect of minerals being obtained by mining
operations.
[Section 70O inserted by No. 39 of 2004 s. 27; amended by
No. 12 of 2010 s. 8.]

70P. Guidelines to be publicly available

The Director General of Mines shall ensure that the guidelines
are made available, without charge, for public inspection in the
prescribed manner.
[Section 70P inserted by No. 39 of 2004 s. 27.]

71. Grant of mining lease

Subject to this Act, the Minister may, on the application of any
person, after receiving a recommendation of the mining registrar

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Part IV Mining tenements
Division 3 Mining lease
s. 72

or the warden in accordance with section 75, grant to the person

a lease to be known as a mining lease on such terms and
conditions as the Minister considers reasonable.
[Section 71 amended by No. 122 of 1982 s. 20; No. 58 of 1994
s. 29(4).]

72. Person may be granted more than one mining lease

Any person may be granted more than one mining lease.

73. Area of mining lease may be less than area sought

(1) The area of land in respect of which a mining lease is granted
may be less than the area of land in respect of which the mining
lease is sought.
(2) If the area of land in respect of which a mining lease is granted
is as described in subsection (1), the holder of the lease shall
mark out in the prescribed manner the boundaries of that area as
soon as practicable after the grant of the lease.
[Section 73 inserted by No. 39 of 2004 s. 28.]
74. Application for mining lease
(1) An application for a mining lease —
(a) shall be in the prescribed form; and
(b) shall be accompanied by the amount of the prescribed
rent for the first year of the term of the lease or portion
thereof as prescribed; and
(c) shall be accompanied by the prescribed application fee;
and
(ca) shall be accompanied by —
(i) a mining proposal; or
(ii) a statement in accordance with subsection (1a)
and a mineralisation report prepared by a
qualified person; or

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Mining tenements Part IV
Mining lease Division 3
s. 74

(iii) a statement in accordance with subsection (1a)

and a resource report;
and
(d) shall be lodged in the prescribed manner.
(1AA) Instead of accompanying an application for a mining lease
under subsection (1)(ca), a mining proposal may be lodged
within the prescribed time and in the prescribed manner and, if
so lodged, is to be treated for the purposes of this Division as a
mining proposal that accompanied the application for the
mining lease under section 74(1)(ca).
(1a) The statement referred to in subsection (1)(ca)(ii) and (iii) shall
set out information about the mining operations that are likely to
be carried out in, on or under the land to which the application
relates including information as to —
(a) when mining is likely to commence; and
(b) the most likely method of mining; and
(c) the location, and the area, of land that is likely to be
required for the operation of plant, machinery and
equipment and for other activities associated with those
mining operations.
(2) The applicant shall at the request of the mining registrar or
warden furnish such further information in relation to the
application, or such evidence in support thereof, as the mining
registrar or warden may require but the mining registrar or
warden shall not require any information or evidence relating to
assays or other results of any testing or sampling that the
applicant may have carried out on the land the subject of his
application.
(3) Within the prescribed period the applicant shall serve such
notice of the application as may be prescribed on the owner and
occupier of the land to which the application relates and on such
other persons as may be prescribed.

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 74

(4) The application shall be made by reference to a written

description of the area of the land in respect of which the lease
is sought, and be accompanied by a map on which are clearly
delineated the boundaries of that area.
(5) The Director General of Mines shall ensure that —
(a) any document referred to in subsection (1)(ca) that
accompanies the application; and
(b) any document furnished by the applicant in response to a
request under subsection (2),
are made available for public inspection at reasonable times.
(6) The regulations may require a person to pay a fee specified in
the regulations —
(a) for inspecting a document referred to in subsection (5);
or
(b) for obtaining a copy of the document or any part of it.
(7) In this section —
JORC Code means the Australasian Code for Reporting of
Exploration Results, Mineral Resources and Ore Reserves
prepared by the Joint Ore Reserves Committee of the
Australasian Institute of Mining and Metallurgy, the Australian
Institute of Geoscientists and the Minerals Council of Australia
as in force from time to time;
likely means reasonably likely having regard to the information
available to the applicant when the application is made;
mineralisation report means a report that sets out details of
exploration results in respect of a deposit of minerals located in,
on or under the land to which the application relates, including
details of —
(a) the type of minerals located in, on or under that land;
and
(b) the location, depth and extent of those minerals and the
way in which that extent has been determined; and

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 74A

(c) analytical results obtained from samples of those

minerals;
qualified person means a person who —
(a) is a member of a prescribed body; and
(b) complies with any requirement of the regulations as to
relevant qualifications or experience;
resource report means a report —
(a) that sets out details of the mineral resources located in,
on or under the land to which the application relates; and
(b) that complies with the JORC Code; and
(c) that has been made to the Australian Securities
Exchange Limited.
[Section 74 amended by No. 100 of 1985 s. 50; No. 37 of 1993
s. 26 and 28(1); No. 58 of 1994 s. 28; No. 39 of 2004 s. 29;
No. 12 of 2010 s. 31; No. 51 of 2012 s. 23.]

74A. Report on significant mineralisation required for certain

applications
(1) If an application for a mining lease is accompanied by the
documentation referred to in section 74(1)(ca)(ii), the Director,
Geological Survey shall give the Minister a report as to whether
or not there is significant mineralisation in, on or under the land
to which the application relates.
(2) For the purposes of preparing the report, the Director,
Geological Survey may request the applicant to provide further
information in relation to matters dealt with in the
mineralisation report.
(3) The report shall be based solely on information contained in the
mineralisation report and any further information provided by
the applicant in response to a request under subsection (2).
(4) The Director, Geological Survey shall give a copy of the report
to the mining registrar and the warden.

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Part IV Mining tenements
Division 3 Mining lease
s. 75

(5) The Director General of Mines shall ensure that the report is
made available for public inspection at reasonable times.
(6) The regulations may require a person to pay a fee specified in
the regulations —
(a) for inspecting the report; or
(b) for obtaining a copy of the report or any part of it.
(7) In this section —
mineralisation report means the mineralisation report that
accompanied the application.
[Section 74A inserted by No. 39 of 2004 s. 30.]

75. Determination of application for mining lease

(1) A person who wishes to object to the granting of an application
for a mining lease shall lodge a notice of objection within the
prescribed time and in the prescribed manner.
(1a) A person is not entitled to lodge a notice of objection if the basis
for the objection is that there is no significant mineralisation in,
on or under the land to which the application relates.
(2) Subject to subsection (2a), if no notice of objection is lodged
within the prescribed time, or any notice of objection is
withdrawn, the mining registrar shall, unless subsection (4)(b)
applies, forward to the Minister a report which recommends the
grant or refusal of the mining lease and sets out the reasons for
that recommendation.
(2a) If the application for the mining lease is accompanied by the
documentation referred to in section 74(1)(ca)(ii), the mining
registrar shall not forward a report under subsection (2)
unless —
(a) the mining registrar has received a copy of the
section 74A report in relation to the application; and

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Mining tenements Part IV
Mining lease Division 3
s. 75

(b) the section 74A report states that there is significant

mineralisation in, on or under the land to which the
application relates.
(3) The mining registrar shall —
(a) recommend the grant of the mining lease if satisfied that
the applicant has complied in all respects with the
provisions of this Act; or
(b) recommend the refusal of the mining lease if not so
satisfied.
(4) Subject to subsection (4a), if a notice of objection —
(a) is lodged within the prescribed time; or
(b) is not lodged within the prescribed time but is lodged
before the mining registrar has forwarded a report to the
Minister under subsection (2) and the warden is satisfied
that there are reasonable grounds for late lodgment,
and the notice of objection is not withdrawn, the warden shall
hear the application for the mining lease on a day appointed by
the warden and may give any person who has lodged such a
notice of objection an opportunity to be heard.
(4a) If the application for the mining lease is accompanied by the
documentation referred to in section 74(1)(ca)(ii), the warden
shall not hear the application unless —
(a) the warden has received a copy of the section 74A report
in relation to the application; and
(b) the section 74A report states that there is significant
mineralisation in, on or under the land to which the
application relates.
(5) The warden shall as soon as practicable after the hearing of the
application forward to the Minister for the Minister’s
consideration —
(a) the notes of evidence; and

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 75

(b) any maps or other documents referred to in the notes of

evidence; and
(c) a report which recommends the grant or refusal of the
mining lease and sets out the reasons for that
recommendation.
(6) On receipt of a report under subsection (2) or (5), the Minister
may, subject to subsection (7), grant or refuse the mining lease
as the Minister thinks fit, and irrespective of whether —
(a) the report recommends the grant or refusal of the mining
lease; and
(b) the applicant has or has not complied in all respects with
the provisions of this Act.
(7) In the case of an application for a mining lease made by the
holder of —
(a) a prospecting licence under section 49; or
(b) an exploration licence under section 67; or
(c) a retention licence under section 70L,
the Minister shall, subject to subsection (8) and the other
provisions of this Act, grant to that holder one or more mining
leases —
(d) in respect of any part or parts of the land the subject of
the prospecting licence, exploration licence or retention
licence, as the case requires; and
(e) on such terms and conditions as the Minister considers
reasonable.
(8) In the case of an application for a mining lease that is
accompanied by the documentation referred to in
section 74(1)(ca)(ii), the Minister shall refuse to grant the
mining lease if the section 74A report states that there is no
significant mineralisation in, on or under the land to which the
application relates.

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 76

(9) Subsection (7) does not apply to an application for a mining

lease if all or part of the land to which that application relates
falls within one or more of the classes of land referred to in
section 24(1) or is in a marine nature reserve, marine park or
marine management area.
(10) In this section —
section 74A report means the report given to the Minister under
section 74A.
[Section 75 inserted by No. 58 of 1994 s. 29(1); amended by
No. 52 of 1995 s. 29; No. 5 of 1997 s. 41(2); No. 39 of 2004
s. 31 and 63; No. 12 of 2010 s. 32.]

76. Priorities as to mining tenements

Subject to the provisions of sections 56A, 70 and 85B as regards
the special prospecting licences and mining leases therein
referred to and section 94A as regards miscellaneous licences,
where an application for a mining lease includes any portion of
land included in a current mining tenement held by a person
other than the applicant, any mining lease granted on the
application shall not include any such portion of land.
[Section 76 amended by No. 100 of 1985 s. 52; No. 22 of 1990
s. 23; No. 37 of 1993 s. 12(2).]

[77. Deleted by No. 122 of 1982 s. 22.]

78. Term of leases, options and renewals

(1) Subject to this Act, a mining lease shall remain in force —
(a) for an initial term of 21 years; and
(b) where application for renewal is made in the prescribed
manner during the final year of the term of that lease or
if section 111A(1)(d) applies, as from the expiry of the
preceding term for a further term of 21 years, as of right
but subject in respect of that further term to the

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 79

provisions of this Act and the regulations thereunder as

in force on and after the date of renewal.
(2) Subject to subsection (1), the Minister may, from time to time
upon receipt of an application made in the prescribed manner,
renew or further renew a mining lease for successive terms but
so that no such term exceeds a period of 21 years.
(3) If an application for renewal is made under this section and the
term of the lease would but for this subsection expire, that lease
shall continue in force in respect of the land the subject of that
application until the application is determined.
(4) If, after an application for renewal is made under this section —
(a) the holder of the mining lease transfers the lease; or
(b) where there are 2 or more holders of the mining lease, a
holder transfers the holder’s interest in the lease,
the application continues in the name of the transferee of the
lease or interest as if the transferee were an applicant or one of
the applicants, as the case requires.
[Section 78 inserted by No. 100 of 1985 s. 53; amended by
No. 1 of 1986 s. 5; No. 57 of 1997 s. 89(3); No. 17 of 1999
s. 14.]
79. Approval of application
(1) Where a person has applied for a mining lease and has been
notified in writing by or on behalf of the Minister that the
Minister has granted the mining lease to which the application
relates, the applicant shall be deemed to be the holder of the
lease comprising the land in respect of which the lease is
granted as from the date of the written notification.
(2) Where a written notification is given under subsection (1) the
term of the lease shall commence from the date of the written
notification.

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 80

80. Surveys of mining leases

(1) Land the subject of a mining lease shall be surveyed, but it shall
not be necessary for the survey to be carried out prior to the
granting of the lease.
[(2) deleted]
[Section 80 inserted by No. 100 of 1985 s. 54; amended by
No. 37 of 1993 s. 28(1).]

[81. Deleted by No. 100 of 1985 s. 55.]

82. Covenants and conditions of lease

(1) Every mining lease shall contain and be subject to the
prescribed covenants by the lessee and in particular shall be
deemed to be granted subject to the conditions that the lessee
shall —
(a) pay the rents and royalties due under the lease at the
prescribed time and in the prescribed manner;
(b) use the land in respect of which the lease is granted only
for mining purposes in accordance with this Act;
(ba) arrange and pay for a survey of such land within the
prescribed time and in the prescribed manner;
(bb) where the lease is surrendered in part, arrange and pay
for a re-survey of such land within the prescribed time
and in the prescribed manner;
(c) comply with the prescribed expenditure conditions
applicable to such land unless partial or total exemption
therefrom is granted in such manner as is prescribed;
(ca) not use ground disturbing equipment when mining on
such land unless —
(i) the lessee has lodged in the prescribed manner a
programme of work in respect of that use and has
paid the prescribed assessment fee in respect of
the programme and the programme has been

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 82

approved in writing by the Minister or a

prescribed official; or
(ii) that use is dealt with in a relevant mining
proposal;
(d) not transfer or mortgage a legal interest in such land or
any part thereof without the prior written consent of the
Minister, or of an officer of the Department acting with
the authority of the Minister;
(e) lodge, in the prescribed manner, such periodical reports
and returns as may be prescribed;
(ea) furnish to the Minister such geological samples obtained
in the course of operations conducted by the lessee
under the lease as the Minister may request;
(f) promptly report in writing to the Minister details of all
minerals of economic significance discovered in, on or
under the land the subject of the mining lease;
(ga) in accordance with section 84AA —
(i) review the mine closure plan contained in a
relevant mining proposal; and
(ii) obtain the written approval for the reviewed
mine closure plan from a prescribed official;
(g) be liable to have the lease forfeited if he is in breach of
any of the covenants or conditions of the lease, if he
fails to comply with any requirement under
section 84A(2) or 115B(2) in relation to the lease or if a
report required under paragraph (e) or section 115A in
relation to the land the subject of the lease is not filed in
accordance with this Act.
[(1a) deleted]
(1b) Without limiting or otherwise affecting the application of the
other provisions of subsection (1), paragraph (ca) of that
subsection does not apply to a mining lease granted pursuant to
a Government agreement, as defined in section 2 of the

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 82A

Government Agreements Act 1979, in accordance with

proposals approved, deemed to be approved or determined
under the agreement.
(2) Every mining lease shall contain a provision that after receiving
the warden’s recommendation for forfeiture of a lease for
breach of any covenant or condition of the lease by the lessee,
the Minister may, as he thinks fit, impose a penalty not
exceeding $50 000 as an alternative to the forfeiture of the
lease.
(3) Where any penalty imposed as an alternative to forfeiture of the
lease pursuant to subsection (2) is not paid within the time
specified by the Minister, or within 30 days of written notice of
the penalty being given by the Minister to the lessee if no other
time is specified by the Minister, the lease shall thereupon be
forfeited.
[Section 82 amended by No. 100 of 1985 s. 56; No. 22 of 1990
s. 38; No. 37 of 1993 s. 28(1); No. 58 of 1994 s. 30; No. 54 of
1996 s. 12; No. 17 of 1999 s. 15(2); No. 15 of 2002 s. 28;
No. 39 of 2004 s. 32(1), (2), 38, 45 and 97(3); No. 12 of 2010
s. 9 and 33; No. 51 of 2012 s. 24.]

82A. Condition to be included in certain mining leases

(1) This section applies to a mining lease if —
(a) the application for the mining lease was made under this
Act, but was not determined, before the commencement
of section 33 of the Mining Amendment Act 2004; or
(b) the application for the mining lease was accompanied by
the documentation referred to in section 74(1)(ca)(ii).
(2) Every mining lease to which this section applies shall be
deemed to be granted subject to a condition requiring the lessee,
before the lessee carries out mining operations of a prescribed
kind on any part of the land the subject of the mining lease —
(a) to lodge in the prescribed manner a mining proposal in
respect of those operations; and

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 83

(ba) to pay the prescribed assessment fee in respect of the

mining proposal; and
(b) to obtain written approval for the mining proposal from
a prescribed official.
[Section 82A inserted by No. 39 of 2004 s. 33; amended by
No. 51 of 2012 s. 25.]

83. Issue of mining leases

(1) Every mining lease —
(a) shall be dated as of the day of the notification by the
Minister under section 79; and
(b) shall be executed by the Minister.
(2) Where a mining lease has been executed under
subsection (1) —
(a) the mining lease shall be endorsed with the word
“original” on its front page; and
(b) a copy of the mining lease shall be —
(i) endorsed with the word “duplicate” on its front
page; and
(ii) issued to the lessee on payment of the prescribed
fee.
[Section 83 amended by No. 37 of 1993 s. 11.]

84AA. Review of mine closure plans

(1) The lessee of a mining lease must ensure that the mine closure
plan contained in a relevant mining proposal is reviewed —
(a) in the case of a mining proposal that accompanied the
application for the mining lease under section 74(1)(ca),
no later than 3 years after the lease is granted; or
(b) in the case of a mining proposal for which there is
approval as described in section 82A(2)(b), no later than
3 years after the approval; or

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 84

(c) no later than such other time as is approved in writing

by a prescribed official.
(2) The lessee of a mining lease must ensure that a mine closure
plan is reviewed no later than —
(a) 3 years after its most recent review; or
(b) such other time as is approved in writing by a prescribed
official.
(3) The lessee of a mining lease must ensure that a reviewed mine
closure plan is lodged, for the approval of a prescribed official,
in the prescribed manner and within the prescribed time.
[Section 84AA inserted by No. 12 of 2010 s. 10.]

84. Conditions for prevention or reduction of injury to land

(1) On the granting of a mining lease, or at any subsequent time, the
Minister may impose on the lessee reasonable conditions for the
purpose of preventing or reducing, or making good, injury to the
land in respect of which the lease is sought or was granted, or
injury to anything on or below the natural surface of that land or
consequential damage to any other land.
(2) Without limiting the generality of subsection (1), the Minister
may, on the granting of the mining lease or at any subsequent
time, if it is reasonable in all the circumstances so to do, impose
on the lessee a condition that mining operations shall not be
carried out within such distance of the natural surface of the
land in respect of which the lease is sought or was granted, as
the Minister may specify.
(3) Any condition imposed under this section may at any time be
cancelled by the Minister or from time to time varied by him.

(4) A condition imposed in relation to a lease under this section —

(a) may, either in full or with sufficient particularity as to
identify the recommendation or other source from which
it derives, be endorsed on the original and the duplicate

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 84A

of the lease, for which purpose the lessee shall produce

the duplicate of the lease on demand; and
(b) whether or not so endorsed, on notice of the imposition
of the condition being given in writing to the lessee shall
for all purposes have effect as a condition to which the
lease is subject; and
(c) where it is set out or otherwise sufficiently identified in
the notification of the grant of the lease, shall have effect
as though the lease had been issued duly endorsed as to
the terms of that condition.
[Section 84 amended by No. 100 of 1985 s. 57; No. 12 of 2010
s. 11.]

84A. Security relating to mining lease

(1) The applicant for a mining lease shall lodge, in the prescribed
manner and within the prescribed period, a security for
compliance with —
(a) the conditions to which the mining lease, if granted, will
from time to time be subject; and
(b) the provisions of this Part and the regulations.
(2) The Minister may require the holder of a mining lease to lodge,
in the prescribed manner and within such period as the Minister
specifies in writing, an additional security for compliance with
conditions imposed in relation to the lease under section 84.
(3) A security referred to in subsection (1) or (2) shall be in
accordance with and subject to section 126.
(4) A mining lease shall not be granted unless a security has been
lodged by the applicant for the mining lease in accordance with
subsection (1).
(5) Notwithstanding section 154(1), an applicant for a mining lease
who fails to comply with subsection (1) does not commit an
offence against this Act.

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 85

[Section 84A inserted by No. 39 of 2004 s. 39(1); amended by

No. 12 of 2010 s. 34.]

85. Rights of holder of mining lease

(1) Subject to this Act and to any conditions to which the mining
lease is subject, a mining lease authorises the lessee thereof and
his agents and employees on his behalf to —
(a) work and mine the land in respect of which the lease
was granted for any minerals; and
(b) take and remove from the land any minerals and dispose
of them; and
(c) take and divert subject to the Rights in Water and
Irrigation Act 1914, or any Act amending or replacing
the relevant provisions of that Act, water from any
natural spring, lake, pool or stream situate in or flowing
through such land or from any excavation previously
made and used for mining purposes, and subject to that
Act to sink a well or bore on such land and take water
therefrom and to use the water so taken for his domestic
purposes and for any purpose in connection with mining
for minerals on the land; and
(d) do all acts and things that are necessary to effectually
carry out mining operations in, on or under the land.
(2) Subject to this Act and to any conditions to which the mining
lease is subject, the lessee of a mining lease —
(a) is entitled to use, occupy, and enjoy the land in respect
of which the mining lease was granted for mining
purposes; and
(b) owns all minerals lawfully mined from the land under
the mining lease.
(3) The rights conferred by this section are exclusive rights for
mining purposes in relation to the land in respect of which the
mining lease was granted.

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 85A

[Section 85 amended by No. 100 of 1985 s. 58; No. 39 of 2004

s. 34.]

85A. Land the subject of mining lease not to be again marked out
for a certain period
(1) Where a mining lease is surrendered or forfeited, or expires, the
land the subject of the lease or any part of that land shall not be
marked out or applied for as a prospecting licence or an
exploration licence by or on behalf of —
(a) the person who was the holder of the mining lease
immediately prior to the date of the surrender, forfeiture
or expiry; or
(b) any person who had an interest in the mining lease
immediately prior to that date; or
(c) any person who is related to a person referred to in
paragraph (a) or (b),
within a period of 3 months from and including that date.
(2) For the purposes of subsection (1) the holding of shares in a
listed public company which held the mining lease in question
does not of itself constitute an interest in the mining lease.
[Section 85A inserted by No. 37 of 1993 s. 12(1); amended by
No. 15 of 2002 s. 16.]

85B. Special prospecting licence on a mining lease

(1) Where any land is the subject of a mining lease (in this
section called the primary tenement) then, notwithstanding
section 117, a person may at any time 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.
(1a) A special prospecting licence may only be applied for by,
granted to or held by a natural person.

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 85B

(2) An application for a special prospecting licence shall be

accompanied by the written consent of the holder of the primary
tenement to the granting of the special prospecting licence.
(3) Subject to this section, the mining registrar may, if the mining
registrar is satisfied that the holder of the primary tenement has
consented in writing to the granting of the special prospecting
licence, grant a special prospecting licence on such terms or
conditions as the mining registrar thinks fit, but a special
prospecting licence so granted —
(a) shall not exceed 10 ha in area; and
(b) authorises the holder of the special prospecting licence
to prospect only for gold; and
(c) does not, unless the Minister otherwise directs, prevent
the holder of the primary tenement from prospecting for
minerals other than gold in or on the land the subject of
the special prospecting licence; and
(d) does not authorise the holder of the special prospecting
licence to excavate, extract or remove during the period
for which the mining 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,

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 85B

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.
(3a) 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.
(4) 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 of the land; but
(b) ceases (and the land in respect of which it was granted
reverts to the holder of the primary tenement as an
integral part of the mining tenement held by that person)
on the surrender, forfeiture or expiry of that special
prospecting licence.
(5) 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 of the
land 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.
(6) A reference in subsection (5) 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.

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 Mining Act 1978
Mining tenements Part IV
Mining lease Division 3
s. 85B

(7) 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 of the land which is the subject
of the special prospecting licence, and on an application being
made the Minister may grant the application for a lease in
respect of 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 that mining lease is granted shall be
excised from the primary tenement.
(7a) Sections 74, 74A and 75 apply to an application for a mining
lease under subsection (7).
(8) A mining lease granted pursuant to subsection (7) —
(a) has effect in relation to gold and any minerals occurring
in conjunction with that gold; and
(b) does not authorise the holder of the mining lease or any
agents or employees of the holder 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) ceases to have effect (and the land in respect of which it
was granted reverts to the holder of the primary
tenement as an integral part of the tenement held by that
person) on the surrender, forfeiture or expiry of that
lease.
(9) Subject to this section, the provisions of this Act relating to —
(a) prospecting licences apply to a special prospecting
licence; and
(b) mining leases apply to a mining lease,

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Mining Act 1978
Part IV Mining tenements
Division 3 Mining lease
s. 85B

granted under 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 special prospecting
licence.
[Section 85B inserted by No. 37 of 1993 s. 12(1); amended by
No. 58 of 1994 s. 31; No. 54 of 1996 s. 13 and 23; No. 10 of
2001 s. 134; No. 15 of 2002 s. 17; No. 39 of 2004 s. 10.]

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 Mining Act 1978
Mining tenements Part IV
General purpose lease Division 4
s. 86

Division 4 — General purpose lease

[85C. Deleted by No. 52 of 1995 s. 30.]

86. Grant of general purpose lease

(1) Subject to this Act, the Minister may, on the application of any
person, after receiving a recommendation of the mining registrar
or the warden, grant to such person a lease to be known as a
general purpose lease for use by him in respect to mining
operations on such terms and conditions as the Minister
considers reasonable.
(2) Any such person may be granted more than one general purpose
lease.
(3) The area of land in respect of which any one general purpose
lease may be granted shall not exceed 10 ha, unless the Minister
is satisfied that a larger area of land is required for the purposes
of the lease, and shall be limited to such depth below the natural
surface of the land as may be specified in the lease or, where no
depth is so specified, to 15 m below the lowest part of the
natural surface of the land.
(4) An application for the grant of a general purpose lease in respect
of any land —
(a) shall be made, and may be objected to, in like manner to
an application for a mining lease; and
(b) shall be determined in the same manner as an
application for a mining lease.
(5) An application for the grant of a general purpose lease in respect
of an area of land which exceeds 10 ha shall be accompanied by
a statement specifying the reasons why such an area of land is
required for the purposes of the lease.
[Section 86 amended by No. 100 of 1985 s. 59; No. 58 of 1994
s. 32; No. 17 of 1999 s. 16.]

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Mining Act 1978
Part IV Mining tenements
Division 4 General purpose lease
s. 87

87. Purposes for which general purpose lease may be granted

(1) A general purpose lease entitles the lessee thereof and his agents
and employees to the exclusive occupation of the land in respect
of which the general purpose lease was granted for one or more
of the following purposes —
(a) for erecting, placing and operating machinery thereon in
connection with the mining operations carried on by the
lessee in relation to which the general purpose lease was
granted;
(b) for depositing or treating thereon minerals or tailings
obtained from any land in accordance with this Act;
(c) for using the land for any other specified purpose
directly connected with mining operations.
(2) The purpose or purposes for which a general purpose lease is
granted shall be specified in the lease.
[Section 87 amended by No. 100 of 1985 s. 60.]

88. Term of general purpose lease

(1) Subject to this Act, a general purpose lease remains in force —
(a) where it is granted in relation to a particular mining
lease and contains no other provision for expiry, until —
(i) it is surrendered or forfeited; or
(ii) the date of surrender, forfeiture or expiry of the
mining lease (or any renewal thereof) in relation
to which it was granted or 21 years from the date
deemed pursuant to section 79 to be the date on
which the term of the general purpose lease
commenced or, if any other date of
commencement is specified in the general
purpose lease, the specified date, whichever is
the longer period;
or

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 Mining Act 1978
Mining tenements Part IV
General purpose lease Division 4
s. 88

(b) in any other case, for a period of 21 years or until it is

sooner surrendered or forfeited.
(2) Notwithstanding subsection (1), on receipt of an application
made in the prescribed manner during the final year of the term
of the lease, the Minister —
(a) shall renew the term of the lease as to the whole of the
land the subject of the lease —
(i) for one further period of 21 years; and
(ii) on the terms and conditions to which the lease
was subject before its renewal;
and
(b) may, in the case of a lease renewed under paragraph (a),
renew or further renew the term of the lease as to the
whole or any part of the land the subject of the lease —
(i) for a period not exceeding 21 years; and
(ii) on such terms and conditions as the Minister
thinks fit.
(3) Where an application for a renewal of a general purpose lease is
made in respect of any land and the term of that lease would but
for this subsection expire, that lease shall continue in force in
respect to the land the subject of that application until the
application for a renewal is determined.
(4) If, after an application for renewal is made under this section —
(a) the holder of the general purpose lease transfers the
lease; or
(b) where there are 2 or more holders of the general purpose
lease, a holder transfers the holder’s interest in the lease,
the application continues in the name of the transferee of the
lease or interest as if the transferee were an applicant or one of
the applicants, as the case requires.
[Section 88 inserted by No. 100 of 1985 s. 61; amended by
No. 105 of 1986 s. 11; No. 12 of 1987 s. 6; No. 17 of 1999
s. 17.]

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Mining Act 1978
Part IV Mining tenements
Division 4 General purpose lease
s. 89

89. Form of general purpose lease

A general purpose lease shall be in the prescribed form and shall
contain such covenants, terms and conditions as are prescribed
and specified therein and such additional terms and conditions
as the Minister may, from time to time, in writing specify.
[Section 89 amended by No. 100 of 1985 s. 62.]

90. Application of certain provisions to general purpose leases

(1) Section 6(1a), (1c) and (1d) apply, with such modifications as
the circumstances require, to and in relation to a general purpose
lease as if —
(a) a reference in those subsections to a mining lease were a
reference to a general purpose lease; and
(b) the reference in subsection (1d)(a) to the condition
referred to in section 82(1)(ca) were a reference to a
condition prescribed by the regulations for the purposes
of section 89.
(2) Section 74 applies, with such modifications as the
circumstances require, to and in relation to a general purpose
lease as if —
(a) a reference in that section to a mining lease were a
reference to a general purpose lease; and
(b) in subsection (1)(ca)(ii) “and a mineralisation report
prepared by a qualified person” were deleted.
(3) Section 75 applies, with such modifications as the
circumstances require, to and in relation to a general purpose
lease as if —
(a) a reference in that section to a mining lease were a
reference to a general purpose lease; and
(b) the amendments made to that section by section 31 of
the Mining Amendment Act 2004 had not come into
operation.

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 Mining Act 1978
Mining tenements Part IV
Miscellaneous licences Division 5
s. 91

(4) Sections 76, 79, 80, 82A, 83, 84, 84A, 104 and 105 apply, with
such modifications as the circumstances require, to and in
relation to a general purpose lease as if a reference in those
sections to a mining lease were a reference to a general purpose
lease.
[Section 90 inserted by No. 39 of 2004 s. 91.]

Division 5 — Miscellaneous licences

[90A. Deleted by No. 52 of 1995 s. 31.]

91. Grant of miscellaneous licence

(1) Subject to this Act, and in the case of a miscellaneous licence
for water to the Rights in Water and Irrigation Act 1914, or any
Act amending or replacing the relevant provisions of that Act,
the mining registrar or the warden, in accordance with
section 42 (as read with section 92), may, on the application of
any person, grant in respect of any land a licence, to be known
as a miscellaneous licence, for any one or more of the purposes
prescribed.
(2) A person may be granted more than one miscellaneous licence.
(3) A miscellaneous licence shall —
(a) be in the prescribed form; and
(b) authorise the holder to do such matters and things as are
specified in the licence.
[(4), (5) deleted]
(6) A miscellaneous licence shall not be granted unless the purpose
for which it is granted is directly connected with mining.
(7) Sections 18, 23 and 27 do not prevent a miscellaneous licence
from being applied for or granted in respect of land that is the
subject of another mining tenement.

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Mining Act 1978
Part IV Mining tenements
Division 5 Miscellaneous licences
s. 91A

(8) If a miscellaneous licence is granted in respect of land that is

subject to another mining tenement the miscellaneous licence
and the other mining tenement apply concurrently with respect
to that land.
(9) Before an application for a miscellaneous licence is determined
a copy of the application shall, within the prescribed time, be
given to the local government and to such other persons as may
be prescribed.
(10) The local government is entitled to be heard on the application
and may submit to the mining registrar or the warden, as the
case requires, any terms and conditions to which it considers the
miscellaneous licence, if granted, should be subject.
[Section 91 inserted by No. 58 of 1994 s. 33; amended by
No. 14 of 1996 s. 4; No. 35 of 1998 s. 4(1) and (2); No. 15 of
2002 s. 18; No. 51 of 2012 s. 26.]

91A. Term and renewal of existing licence or licence granted in

respect of existing application
(1) This section applies to a miscellaneous licence that is —
(a) in force on the commencement; or
(b) granted on or after the commencement in respect of an
application made under section 91 before the
commencement.
(2) Subject to this Act, a licence to which this section applies
remains in force for —
(a) a period of 5 years from the day on which it is or was
granted; or
(b) in the case of a licence referred to in subsection (1)(a)
that was renewed before the commencement, the period
for which it was so renewed.

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 Mining Act 1978
Mining tenements Part IV
Miscellaneous licences Division 5
s. 91A

(3) Notwithstanding subsection (2), on receipt of an application

made in the prescribed manner during the final year of the term
of the licence, the Minister —
(a) may renew the term of the licence as to the whole or any
part of the land the subject of the licence —
(i) for one further period not exceeding 5 years; and
(ii) on such terms and conditions as the Minister
thinks fit;
and
(b) shall, in the case of a licence renewed under
paragraph (a), renew or further renew the term of the
licence as to the whole of the land the subject of the
licence —
(i) for a period that is the same as the period for
which the licence was renewed under
paragraph (a); and
(ii) on the terms and conditions to which the licence
was subject before its renewal.
(4) If an application for renewal is made under this section and the
term of the licence would but for this subsection expire, the
licence continues in force in respect of the land the subject of
the application until the application is determined.
(5) If the holder of a licence to which this section applies transfers
the licence after making an application for renewal under this
section, the application continues in the name of the transferee
of the licence as if the transferee had made it.
(6) In this section and section 91B —
commencement means the commencement of the Mining
Amendment Act 1998 1.
[Section 91A inserted by No. 35 of 1998 s. 5.]

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Mining Act 1978
Part IV Mining tenements
Division 5 Miscellaneous licences
s. 91B

91B. Term and renewal of licence granted in respect of new

application
(1) This section applies to a miscellaneous licence granted in
respect of an application made under section 91 on or after the
commencement.
(2) Subject to this Act, a licence to which this section applies
remains in force for a period of 21 years.
(3) Notwithstanding subsection (2), on receipt of an application
made in the prescribed manner during the final year of the term
of the licence, the Minister —
(a) shall renew the term of the licence as to the whole of the
land the subject of the licence —
(i) for one further period of 21 years; and
(ii) on the terms and conditions to which the licence
was subject before its renewal;
and
(b) may, in the case of a licence renewed under
paragraph (a), renew or further renew the term of the
licence as to the whole or any part of the land the subject
of the licence —
(i) for a period not exceeding 21 years; and
(ii) on such terms and conditions as the Minister
thinks fit.
(4) If an application for renewal is made under this section and the
term of the licence would but for this subsection expire, the
licence continues in force in respect of the land the subject of
the application until the application is determined.
(5) If the holder of a licence to which this section applies transfers
the licence after making an application for renewal under this
section, the application continues in the name of the transferee
of the licence as if the transferee had made it.
[Section 91B inserted by No. 35 of 1998 s. 5.]

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 Mining Act 1978
Mining tenements Part IV
Miscellaneous licences Division 5
s. 92

92. Provisions applying to all miscellaneous licences

Sections 41, 42, 44, 46, 46A, 47 and 52 apply, with such
modifications as the circumstances require, to and in relation to
a miscellaneous licence as though in those provisions a
reference to a prospecting licence was to be construed as a
reference to a miscellaneous licence.
[Section 92 inserted by No. 100 of 1985 s. 64; amended by
No. 22 of 1990 s. 25; No. 58 of 1994 s. 34; No. 17 of 1999
s. 6(3); No. 39 of 2004 s. 40.]

93. Map to accompany application

[(1) deleted]
(2) An application for the grant of the miscellaneous licence shall
be made by reference to a written description of the area of land
in respect of which the miscellaneous licence is sought, and be
accompanied by a map on which are clearly delineated the
boundaries of that area.
[Section 93 amended by No. 100 of 1985 s. 65; No. 58 of 1994
s. 35; No. 51 of 2012 s. 27.]
94. Terms and conditions
(1) A miscellaneous licence is subject to the terms and conditions
prescribed.
(2) In addition to the terms and conditions prescribed in relation to
a miscellaneous licence, the mining registrar or the warden, as
the case requires, may make a miscellaneous licence subject to
such further terms and conditions as he thinks fit and specifies
in that licence.
(3) Where the mining registrar or the warden refuses an application
for a miscellaneous licence or grants the application on
conditions the applicant considers unreasonable, the applicant
may within the time and in the manner prescribed appeal to the
Minister against such refusal or conditions as the case may be.

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 94A

(4) The Minister may dismiss the appeal or uphold the appeal and
grant the application on such conditions as he considers
reasonable.
[Section 94 amended by No. 100 of 1985 s. 66; No. 21 of 1993
s. 45; No. 58 of 1994 s. 36; No. 52 of 1995 s. 32.]
94A. Grant of mining tenement on land in a miscellaneous licence
(1) Sections 18, 23, 27, 43 and 76 do not prevent another mining
tenement from being marked out, applied for or granted in
respect of land that is the subject of a miscellaneous licence.
(2) Notwithstanding section 43 or 76, if another mining tenement is
granted in respect of land that is subject to a miscellaneous
licence the other mining tenement and the miscellaneous licence
apply concurrently with respect to that land.
[Section 94A inserted by No. 22 of 1990 s. 26; amended by
No. 15 of 2002 s. 19.]

94B. Surrender etc. of concurrent tenement

Subject to this Act, if —
(a) under section 91(8) or 94A(2), 2 or more mining
tenements apply concurrently with respect to land; and
(b) one of the mining tenements is surrendered or forfeited
or expires,
the land continues to be subject to the other mining tenement or
tenements.
[Section 94B inserted by No. 22 of 1990 s. 26; amended by
No. 58 of 1994 s. 37.]

[Division 5A (s. 94C-94P) deleted by No. 52 of 1995 s. 33.]

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 95

Division 6 — Surrender and forfeiture of mining tenements

95. Surrender of mining tenement
(1) Subject to this Act, the holder of a mining tenement may
surrender the tenement in whole or in part by lodging a
surrender for registration.
[(2), (3) deleted]
(4) Where a mining tenement is being surrendered as to part only,
the form of surrender shall be prepared by reference to a written
description of the area of the part to be surrendered, and be
accompanied by a map on which are clearly delineated the
respective boundaries of that mining tenement and of the part of
that mining tenement which is being surrendered.

(5) Where part of a mining tenement is surrendered, notification

thereof shall be endorsed as prescribed on the mining tenement,
for which purpose the holder shall produce his copy of the
document on demand, and thereafter the rent payable in respect
thereof shall be reduced as provided for in the regulations.
(6) Notwithstanding anything to the contrary in this Act other than
section 26A(3) and (4), where a mining tenement is surrendered,
whether under this section or under section 26A or 65, in whole
or in part, every right, title and interest held under the mining
tenement in respect of —
(a) the whole of the land the subject of that tenement; or
(b) that part of that land which is being surrendered,
as the case requires, absolutely ceases and determines in the
case of —
(c) a conditional surrender, on the date on which the
surrender becomes absolute;
(d) a surrender other than a conditional surrender or a
surrender under section 26A(2) or 65, on the date the
surrender is registered;

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 95A

(e) a surrender under section 26A(2), on the expiry of the

period referred to in section 26A(1);
(f) a surrender under section 65, on the date on which the
surrender becomes effective under that section.
[Section 95 amended by No. 52 of 1983 s. 5; No. 100 of 1985
s. 67; No. 105 of 1986 s. 12; No. 22 of 1990 s. 27; No. 54 of
1996 s. 14; No. 39 of 2004 s. 92.]

95A. Exploration licence — surrender of part of block

(1) In this section —
block has the same meaning as it has in Part IV Division 2.
(2) The holder of an exploration licence shall not, under
section 95(1), surrender part of a block that is subject to the
licence without the prior approval of the Minister or an officer
of the Department authorised by the Minister to give such
approval.
(3) Where part of a block that is subject to an exploration licence is
surrendered under section 95(1), the rest of the block that
remains subject to the licence is deemed to be a block for the
purposes of this Act.
[Section 95A inserted by No. 15 of 2002 s. 20.]

96. Forfeiture of certain mining tenements

(1) The warden may upon the application of —
(a) the Minister or any mining registrar or other officer of
the Department authorised by the Minister in writing in
that behalf; or
(b) any person,
made in the prescribed form and in the prescribed manner, make
an order for the forfeiture of any prospecting licence or a
miscellaneous licence granted or acquired under this Act or by
virtue of the repealed Act.

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 96

(1a) An authorisation under subsection (1)(a) may be given to a

specified officer or to officers of a specified class, or may be
given to the holder or holders for the time being of a specified
office or class of office.
(2) An order for forfeiture may be made in relation to a mining
tenement to which subsection (1) applies if —
(a) the prescribed rent or royalty in respect thereof is not
paid in accordance with this Act; or
(b) any term or condition to which the mining tenement is
subject, including any condition referred to in section 46
or section 50, is not complied with; or
(ba) a report required under section 51 or 115A in relation to
the mining tenement is not filed in accordance with this
Act; or
(baa) any request under section 51A is not complied with; or
(bb) any requirement under section 52(1a), 55B(2)
or 115B(2) is not complied with; or
(c) the holder of the mining tenement is convicted of an
offence against this Act,
but an order shall not be made under subsection (1) unless the
warden is satisfied that the requirements of this Act in relation
to such mining tenement have not been complied with in a
material respect and that the matter is of sufficient gravity to
justify the forfeiture of the mining tenement.
(2a) An application for forfeiture under subsection (1)(b) and made
in respect of the expenditure conditions applicable to the mining
tenement shall be made during the expenditure year in relation
to which the requirement is not complied with or within
8 months thereafter, and not otherwise.

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 96

(3) A warden, as he thinks fit in the circumstances of the case, as an

alternative to making an order under this section for forfeiture
of such mining tenement may —
(a) impose on the holder of the mining tenement —
(i) in a case where expenditure conditions have not
been complied with, a penalty not exceeding
$10 000;
(ii) in any other case, a penalty not exceeding
$75 000 if the holder is an individual or
$150 000 if the holder is a body corporate;
or
(b) award the whole or any part of the amount of any such
penalty to the applicant if the applicant is not the
Minister, a mining registrar or an officer of the
Department authorised in writing by him; or
(c) impose no penalty on the holder.
(3a) Where —
(a) a mining tenement that is the subject of an application
for forfeiture under this section is surrendered (other
than by way of a conditional surrender or a surrender
under section 26A or 65) before that application is dealt
with by the warden; and
(b) the applicant for forfeiture is not the Minister, a mining
registrar or an officer of the Department authorised in
writing by the Minister,
the applicant for forfeiture has, from the date on which the
surrender is registered until the expiry of a period of 14 days
after the date of being served with written notice of the
surrender by an officer of the Department, a right in priority to
any other person to mark out or apply for, or both, a mining
tenement upon the whole or any part of the land that was the
subject of the surrendered mining tenement.

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 96

(3b) Where —
(a) a prospecting licence that is the subject of an application
for forfeiture under this section has continued in force
under section 49(2) or 70C(6) pending the determination
of an application referred to in that section (the
tenement application); and
(b) the applicant for forfeiture is not the Minister, a mining
registrar or an officer of the Department authorised in
writing by the Minister; and
(c) the tenement application is withdrawn in accordance
with the regulations before the application for forfeiture
is dealt with by the warden,
the applicant for forfeiture has, from the date on which the
tenement application is withdrawn until the expiry of a period of
14 days after the date of being served with written notice of the
withdrawal by an officer of the Department, a right in priority to
any other person to mark out or apply for, or both, a mining
tenement upon the whole or any part of the land that was the
subject of the prospecting licence.
(4) Where an order for the forfeiture of a mining tenement is made
under this section, if the applicant therefor was not the Minister,
a mining registrar or an officer authorised in writing by the
Minister, such applicant shall have, for a period of 14 days after
the date of the order, a right in priority to any other person to
mark out or apply for, or both, a mining tenement upon the
whole or part of the land that was the subject thereof.
(5) If the applicant fails to proceed with his forfeiture application
the warden may award the holder of the mining tenement such
sum for costs and expenses as the warden thinks fit.
(6) Where any penalty imposed as an alternative to forfeiture under
subsection (3)(a) is not paid within the time specified by the
warden or within 30 days of the hearing of the application for
forfeiture if no such time is specified by the warden, the mining
tenement shall thereupon be forfeited and the rights conferred

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 96A

on the applicant for forfeiture under subsection (4) shall apply

as if the warden had made an order for forfeiture on the day on
which the mining tenement is forfeited pursuant to this
subsection.
(7) No prospecting licence shall be forfeited for non-compliance by
the holder thereof with the expenditure conditions, if the holder
satisfies the warden that the non-compliance therewith has been
occasioned by a strike.
(8) Subject to section 97A, the warden may, for any cause that he
deems sufficient and subject to subsection (9), cancel —
(a) an order for the forfeiture of any mining tenement made
under subsection (1); or
(b) the forfeiture arising under subsection (6) of any mining
tenement referred to in subsection (1),
and restore the mining tenement so forfeited to the holder thereof.
(9) The warden may, in effecting a cancellation and restoration
under subsection (8), impose on the holder of the mining
tenement restored under that subsection such conditions as he
thinks fit.
[Section 96 amended by No. 69 of 1981 s. 21; No. 100 of 1985
s. 68; No. 105 of 1986 s. 13; No. 22 of 1990 s. 28 and 38;
No. 37 of 1993 s. 13; No. 58 of 1994 s. 41; No. 54 of 1996 s. 23;
No. 17 of 1999 s. 6(4); No. 15 of 2002 s. 21 and 28; No. 39 of
2004 s. 46 and 93; No. 51 of 2012 s. 28.]

96A. Forfeiture of exploration licence or retention licence

(1) When —
(a) an exploration licence is liable to forfeiture by virtue of
section 63A; or

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 96A

(b) a retention licence is liable to forfeiture by virtue of

section 70K,
the Minister may cause the licence to be forfeited by declaring
by notice published in the Government Gazette that the licence
is forfeited.
(2) Subject to section 97A, the Minister may, for any cause that he
deems sufficient and subject to subsection (3), by notice under
his hand published in the Government Gazette —
(a) cancel a declaration made under subsection (1); and
(b) restore the licence to which the declaration referred to in
paragraph (a) relates to the holder thereof.
(3) The Minister may, in effecting the cancellation and restoration
referred to in subsection (2), impose on the holder of the licence
restored under that subsection such conditions as he thinks fit.
(4) The production of a copy of the Government Gazette containing
a notice published therein under subsection (1) or (2) is
evidence that the licence concerned has been forfeited or
restored, as the case requires.
(5) The Minister, as he thinks fit in the circumstances of the case, as
an alternative to causing the licence to be forfeited, may —
(a) impose on the holder of the licence a penalty not
exceeding $75 000 if the holder is an individual or
$150 000 if the holder is a body corporate; or
(b) award the whole or any part of the amount of any such
penalty to any person, other than an officer of the
Department; or
(c) impose no penalty on the holder.
(6) Where any penalty imposed as an alternative to forfeiture under
subsection (5) is not paid within the time specified by the
Minister, or within 30 days of written notice of the penalty
being given by the Minister to the holder of the licence if no

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 97

other time is specified by the Minister, the licence is thereby

forfeited.
(7) In this section licence means the exploration licence or the
retention licence, as the case requires.
[Section 96A inserted by No. 69 of 1981 s. 22; amended by
No. 100 of 1985 s. 69; No. 22 of 1990 s. 38; No. 37 of 1993
s. 10(2); No. 15 of 2002 s. 28; No. 51 of 2012 s. 29.]

97. Forfeiture of mining lease or general purpose lease

(1) Where a mining lease or general purpose lease is liable to
forfeiture for a breach of the lessee’s covenant to pay rent or
royalty or for breach of a covenant included in the lease under
section 82(1) or section 89 or a condition to which the lease is
subject, the Minister may declare, by notice under his hand
published in the Government Gazette, such lease forfeited.
(2) The production of a copy of the Government Gazette containing
a notice published therein pursuant to subsection (1), is
evidence that a breach of such a covenant has been committed
by the lessee, and that the estate and interest of the lessee in
such lease has been lawfully determined.
(3) Subject to section 97A, the Minister, for any cause that he
deems sufficient, may cancel the forfeiture of any such lease
and by subsequent notice under his hand published in the
Government Gazette, restore the lessee as of his former estate in
respect of the forfeited lease.
(4) The Minister, upon such cancellation and restoration as is
referred to in subsection (3), may impose upon the lessee such
conditions as he thinks fit.
(5) The Minister, as he thinks fit in the circumstances of the case, as
an alternative to declaring the lease forfeited, may —
(a) impose on the lessee a penalty not exceeding $75 000 if
the lessee is an individual or $150 000 if the lessee is a
body corporate; or

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 97A

(b) award the whole or any part of the amount of any such
penalty to any person, other than an officer of the
Department; or
(c) impose no penalty on the lessee.
(6) Where any penalty imposed as an alternative to forfeiture under
subsection (5) is not paid within the time specified by the
Minister, or within 30 days of written notice of the penalty
being given by the Minister to the lessee if no other time is
specified by the Minister, the lease is thereby forfeited.
[Section 97 amended by No. 100 of 1985 s. 70; No. 22 of 1990
s. 29 and 38; No. 15 of 2002 s. 28; No. 51 of 2012 s. 30.]

97A. Application for restoration of mining tenement after

forfeiture
(1) Subject to subsection (2), where a mining tenement is forfeited
under or by virtue of section 96, 96A or 97 a person who was,
immediately prior to the forfeiture, the holder of the tenement
concerned may apply for the mining tenement to be restored to
him and the forfeiture cancelled.
(2) Where the forfeiture was occasioned by non-compliance by the
holder with an expenditure condition applicable to the tenement
and results from an application made by a person, not being a
person acting on behalf of the Department, subsection (1) does
not apply.
(3) An application under subsection (1) —
(a) shall be in the prescribed form and made within the
prescribed time; and
(b) shall be lodged in the prescribed manner; and
(c) shall be accompanied by the prescribed application fee,
and the applicant shall at the request of the warden furnish such
other information, or such evidence in support thereof, as the
warden may require but the warden shall not require
information or evidence relating to assays or other results of any

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 97A

testing, sampling or other mining operations that the applicant

may have carried out on the land the subject of the application.
(4) Within 14 days after the lodging of such an application under
subsection (1), the applicant shall serve such notice of the
application as may be prescribed on any person who has since
the forfeiture made application for a mining tenement in respect
of the land or any part of the land to which the application
relates and on such other persons as may be prescribed.
(5) An application under subsection (1) shall be heard by the
warden on a day appointed by him.
(6) A person who desires to object to the granting of an application
made under subsection (1) shall lodge within the prescribed
time and in the prescribed manner a notice of objection and he
may be heard by the warden in opposition to the granting of the
application.
(7) On the hearing of an application made under subsection (1) the
warden —
(a) in a case to which section 96 applies, shall determine the
application and make such order as he thinks fit and
may —
(i) grant the application and restore the mining
tenement to the former holder; or
(ii) grant the application and restore the mining
tenement to the former holder subject to such
further or other conditions as the warden may
specify; or
(iii) refuse the application;
and
(b) in any other case, shall as soon as practicable thereafter
transmit to the Minister for his consideration the notes
of evidence and any maps or other documents referred to
therein, and his report recommending the granting or

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 98

refusal of the application together with his reasons for

the recommendation.
(8) On receipt of notes of evidence and any maps or documents
transmitted to him pursuant to subsection (7), the Minister may
grant or refuse the application for restoration of the mining
tenement, as he determines and whether the warden
recommends the granting of the application or the refusal
thereof, and may impose on a mining tenement so restored such
further or other conditions as the Minister may specify.
[Section 97A inserted by No. 100 of 1985 s. 71; amended by
No. 37 of 1993 s. 26; No. 39 of 2004 s. 64; No. 12 of 2010
s. 35.]

98. Application for forfeiture on other grounds

(1) Where the requirements of this Act are not being complied with
in respect of the expenditure conditions applicable to an
exploration licence or a mining lease, any person may apply for
the forfeiture of such licence or lease as provided in this section.
(2) An application for forfeiture under this section shall be made,
during the expenditure year in relation to which the requirement
is not complied with or within 8 months thereafter, in such form
and manner as may be prescribed and shall be accompanied by
the prescribed fee.
(3) The application for forfeiture shall be heard by the warden.
(4A) When the warden finds that the holder of an exploration licence
or lessee of the mining lease has failed to comply with such
requirements as are mentioned in subsection (1), the warden
may recommend the forfeiture of such licence or lease, or
impose a penalty not exceeding $10 000 as an alternative to the
forfeiture or dismiss the application.
(4B) Where a penalty is imposed under this section the warden may
award the whole amount of the penalty or any part thereof to the
applicant.

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 99

(5) A recommendation shall not be made under subsection (4A)

unless the warden is satisfied that the non-compliance with such
requirements is, in the circumstances of the case, of sufficient
gravity to justify the forfeiture.
(6) As soon as practicable after the hearing of the application the
warden shall forward to the Minister the notes of evidence, with
a report and the warden’s recommendation, if any, on the
application and the Minister may, before acting on the
recommendation, require the warden to take such further
evidence or rehear the application as the Minister directs.
(7) No exploration licence or mining lease shall be forfeited for
non-compliance by the holder or lessee thereof with the
expenditure conditions, if the holder or lessee satisfies the
Minister that the non-compliance therewith has been occasioned
by a strike.
(8) If the applicant fails to proceed with his forfeiture application,
the warden may award the holder or lessee such sum for costs
and expenses as he thinks fit.
(9) Where any penalty imposed by a warden as an alternative to
forfeiture under subsection (4A) is not paid within the time
specified by the warden, or within 30 days after the penalty is
imposed where no other time is specified, the warden shall
make a recommendation to the Minister as to whether or not the
licence or lease should be forfeited.
[Section 98 amended by No. 100 of 1985 s. 72; No. 22 of 1990
s. 30 and 38; No. 15 of 2002 s. 28; No. 39 of 2004 s. 65; No. 19
of 2010 s. 51.]

99. Proceedings by Minister on recommendation

(1) The Minister, after receiving the recommendation of the warden
as provided in section 98, may, as the Minister thinks fit —
(a) declare the exploration licence or the lease to which the
recommendation relates, forfeited; or

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 Mining Act 1978
Mining tenements Part IV
Surrender and forfeiture of mining tenements Division 6
s. 100

(b) impose a penalty not exceeding $10 000 as an

alternative to forfeiture; or
(c) award the whole amount of the penalty or any part
thereof to the applicant who applied for forfeiture; or
(d) determine not to forfeit such licence or lease or impose
any penalty.
(2) Where the Minister declares an exploration licence or lease
forfeited under subsection (1) he shall forthwith give written
notice thereof to the applicant and shall publish notice of the
declaration in the Government Gazette and on the publication of
the notice the licence or lease shall become forfeited.
(3) Where any penalty imposed as an alternative to forfeiture under
subsection (1)(b) is not paid within the time specified by the
Minister or within 30 days of the Minister imposing the penalty
as an alternative to forfeiture if no time is specified by the
Minister, the exploration licence or lease shall thereupon be
forfeited and notice thereof shall be published in the
Government Gazette, and the rights conferred on the applicant
for forfeiture under section 100(2) shall apply as if the Minister
had declared the licence or lease forfeited.
[Section 99 amended by No. 100 of 1985 s. 73; No. 22 of 1990
s. 38; No. 37 of 1993 s. 14(2); No. 15 of 2002 s. 28.]

100. Applicant to have priority for marking out and applying for
surrendered or forfeited licence or lease
(1) Where an exploration licence or a mining lease that is the
subject of an application for forfeiture under section 98 is
surrendered (other than by way of a conditional surrender or a
surrender under section 26A or 65) before the application is
finally dealt with under section 98(4A) or 99(1), the applicant
for forfeiture has, from the date on which the surrender is
registered until the expiry of a period of 14 days after the date of
being served with written notice of the surrender by an officer
of the Department, a right in priority to any other person to
mark out or apply for, or both, a mining tenement upon the

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Mining Act 1978
Part IV Mining tenements
Division 6 Surrender and forfeiture of mining tenements
s. 101

whole or any part of the land that was the subject of the
surrendered licence or lease.
(1a) Where —
(a) an exploration licence or a mining lease that is the
subject of an application for forfeiture under section 98
has continued in force under section 67(2) or 70C(6)
pending the determination of an application referred to
in section 67(2) or 70C(6), as the case requires (the
tenement application); and
(b) the tenement application is withdrawn in accordance
with the regulations before the application for forfeiture
is dealt with by the warden,
the applicant for forfeiture has, from the date on which the
tenement application is withdrawn until the expiry of a period of
14 days after the date of being served with written notice of the
withdrawal by an officer of the Department, a right in priority to
any other person to mark out or apply for, or both, a mining
tenement upon the whole or any part of the land that was the
subject of the licence or lease.
(2) Where an exploration licence or a mining lease is forfeited
pursuant to section 99, the applicant for forfeiture has, for a
period of 14 days after the date of the publication of the notice
of forfeiture of the licence or lease in the Government Gazette, a
right in priority to any other person to mark out or apply for, or
both, a mining tenement upon the whole or any part of the land
that was the subject of the forfeited licence or lease.
[Section 100 inserted by No. 37 of 1993 s. 14(1); amended by
No. 15 of 2002 s. 22; No. 19 of 2010 s. 51.]

101. Application for forfeiture of mining tenement while holder

is a company in process of winding up
(1) An application under section 96 or 98 for the forfeiture of a
mining tenement for breach of the prescribed expenditure
conditions applicable thereto while the holder thereof is a

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 Mining Act 1978
Mining tenements Part IV
Exemption from expenditure conditions Division 7
s. 102

company in respect of which a winding up order has been made

or a provisional liquidator has been appointed under the
Corporations Law shall not be an action or proceeding for the
purposes of subsection (2) of section 471 of that Law (or any
provision of that Law which replaces or is substituted for that
subsection), and notwithstanding anything therein contained to
the contrary, the application may be commenced and proceeded
with without the leave of the Supreme Court, and the mining
tenement is liable to forfeiture accordingly.
(2) The following matter is declared to be an excluded matter for
the purposes of section 5F of the Corporations Act in relation to
section 471B of that Act — an application under section 96
or 98 for the forfeiture of a mining tenement for breach of the
prescribed expenditure conditions applicable to the tenement
while the holder of the tenement is a company in respect of
which a winding up order has been made, or a provisional
liquidator appointed, under the Corporations Act.
[Section 101 amended by No. 10 of 1982 s. 28; No. 100 of 1985
s. 75; No. 37 of 1993 s. 27; No. 10 of 2001 s. 135; No. 15 of
2002 s. 23; No. 8 of 2009 s. 8.]

Division 7 — Exemption from expenditure conditions

102. Exemption from expenditure conditions
(1) Subject to this Act, on an application (an application for
exemption) made, as prescribed, by the holder of a mining
tenement (other than a retention licence) or his authorised agent
prior to the end of the year to which the proposed exemption
relates, or within the prescribed period after the end of that year,
the holder may be granted a certificate of exemption in the
prescribed form totally or partially exempting the mining
tenement to which the application relates from the prescribed
expenditure conditions relating thereto, in an amount not
exceeding the amount required to be expended —

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Mining Act 1978
Part IV Mining tenements
Division 7 Exemption from expenditure conditions
s. 102

(a) in respect to any mining tenement other than a mining

lease, in any one year; and
(b) in respect to a mining lease, subject to subsection (7), in
a period of 5 years.
(1a) An application for exemption may relate to more than one
mining tenement.
(2) A certificate of exemption may be granted for any of the
following reasons —
(a) that the title to the mining tenement is in dispute; or
(b) that time is required to evaluate work done on the
mining tenement, to plan future exploration or mining or
raise capital therefor; or
(c) that time is required to purchase and erect plant and
machinery; or
(d) that the ground the subject of the mining tenement is for
any sufficient reason unworkable; or
(e) that the ground the subject of the mining tenement
contains a mineral deposit which is uneconomic but
which may reasonably be expected to become economic
in the future or that at the relevant time economic or
marketing problems are such as not to make the mining
operations viable; or
(f) that the ground the subject of the mining tenement
contains mineral ore which is required to sustain the
future operations of an existing or proposed mining
operation; or
(g) that political, environmental or other difficulties in
obtaining requisite approvals prevent mining or restrict
it in a manner that is, or subject to conditions that are,
for the time being impracticable; or
(h) that —
(i) the mining tenement is one of 2 or more mining
tenements (combined reporting tenements) the

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 Mining Act 1978
Mining tenements Part IV
Exemption from expenditure conditions Division 7
s. 102

subject of arrangements approved under

section 115A(4) for the filing of combined
mineral exploration reports; and
(ii) the aggregate exploration expenditure for the
combined reporting tenements would have been
such as to satisfy the expenditure requirements
for the mining tenement concerned had that
aggregate exploration expenditure been
apportioned between the combined reporting
tenements.

(2a) In subsection (2)(h) —

aggregate exploration expenditure means expenditure —
(a) on, or in connection with, exploration for minerals on
the combined reporting tenements; and
(b) worked out in a manner specified in the regulations.
(3) Notwithstanding that the reasons given for the application for
exemption are not amongst those set out in subsection (2), a
certificate of exemption may also be granted for any other
reason which may be prescribed or which in the opinion of the
Minister is sufficient to justify such exemption.
(4) When consideration is given to an application for exemption
regard shall be had to the current grounds upon which
exemptions have been granted and to the work done and the
money spent on the mining tenement by the holder thereof.
(5) An application for exemption —
(a) where an objection to the application is lodged, shall be
heard by the warden; but
(b) otherwise, shall be forwarded to the Minister for
determination by the Minister.
(6) The warden shall as soon as practicable after the hearing of the
application transmit to the Minister for his consideration the
notes of evidence and any maps or other documents referred to

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Mining Act 1978
Part IV Mining tenements
Division 7 Exemption from expenditure conditions
s. 102A

therein and his report recommending the granting or refusal of

the application and setting out his reasons for that
recommendation.
(7) Where the warden finds that the reasons given by the holder of
the mining lease are sufficient to justify the granting of a
certificate of exemption and so recommends, or if the Minister
is satisfied whether or not a recommendation is made by the
warden, the Minister may grant a certificate of exemption in an
amount not exceeding the amount required to be expended in
respect of the mining lease in the period of 5 years from the
commencement of the year to which the application relates.
[Section 102 amended by No. 69 of 1981 s. 23; No. 100 of 1985
s. 76; No. 105 of 1986 s. 14; No. 22 of 1990 s. 32; No. 37 of
1993 s. 10(2); No. 15 of 2002 s. 24; No. 39 of 2004 s. 66
and 94.]

102A. Exemption from expenditure conditions in respect of certain

holders of exploration licences
(1) Notwithstanding anything in section 102, the Minister may, on
payment of the prescribed fee and on the application in writing
of the holder of an exploration licence who has been authorised
by the Minister under section 111 to explore for iron on the land
the subject of the exploration licence, grant that holder a
certificate in the prescribed form totally or partially exempting
the holder of that licence from the prescribed expenditure
conditions relating to the exploration licence in an amount not
exceeding the amount required to be expended in any one year.
(1a) An application referred to in subsection (1) may relate to more
than one exploration licence.
(2) The refusal by the Minister of an application referred to in
subsection (1) does not prevent the holder of the exploration
licence concerned from making an application referred to in
section 102(1) in respect of that exploration licence.

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 Mining Act 1978
Mining tenements Part IV
Exemption from expenditure conditions Division 7
s. 103

[Section 102A inserted by No. 122 of 1982 s. 25; amended by

No. 100 of 1985 s. 77; No. 15 of 2002 s. 25.]

103. Effect of exemption

Upon the granting of a certificate of exemption pursuant to
section 102 or section 102A the holder of a mining tenement to
whom it is granted shall be deemed to be relieved, to the extent,
and subject to the conditions specified in the certificate, from
his obligations under the prescribed expenditure conditions
relating to the mining tenement.
[Section 103 amended by No. 100 of 1985 s. 78.]

[Division 8 deleted by No. 54 of 1996 s. 15.]

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Mining Act 1978
Part IVA Registration of instruments and register

s. 103A

Part IVA — Registration of instruments and register

[Heading inserted by No. 54 of 1996 s. 15.]

103A. Terms used

In this Part —
authorised officer means an officer of the Department
authorised under section 103B;
tax memorial means a memorial affecting a mining tenement
lodged under the Taxation Administration Act 2003 Part 6
Division 2 for registration under this Act;
withdrawal of memorial means a withdrawal of a tax memorial
lodged under the Taxation Administration Act 2003 section 81
for registration under this Act.
[Section 103A inserted by No. 54 of 1996 s. 15; amended by
No. 31 of 2008 s. 14.]

103B. Authorised officers

(1) The Minister may in writing authorise officers of the
Department for the purposes of this Part and section 122B.
(2) An authorisation under subsection (1) may be given to a
specified officer or to officers of a specified class, or may be
given to the holder or holders for the time being of a specified
office or class of office.
[Section 103B inserted by No. 54 of 1996 s. 15.]

103C. Registration
(1) This section applies to the following instruments —
(a) a dealing;
(b) a discharge of a mortgage of a legal interest in a mining
tenement;
(c) a withdrawal of an application for a mining tenement;
(d) a surrender under section 26A, 65 or 95;

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s. 103C

(e) a tax memorial;

(f) a withdrawal of memorial.
(2) An instrument to which this section applies is to be —
(a) lodged for registration in the prescribed manner and
prescribed form; and
(b) accompanied by the fee (if any) prescribed in respect of
the instrument.
(3) Only an instrument to which this section applies may be
registered.
(4) The registration of an instrument is to be effected by an
authorised officer.
(5) Subject to section 122D(1), an authorised officer is, unless
section 103D applies or the regulations otherwise provide, to
enter in the register the time and date of the lodgment of an
instrument as the time and date of registration.
(6A) If a tax memorial is registered a notice stating that the memorial
has been registered is to be sent by certified mail to the holder
of the mining tenement against which the memorial is
registered.
(6) Neither the Minister nor an authorised officer is concerned with
the effect any instrument lodged under this section may have at
law other than for the purposes of this Act.
(7) The acceptance of an instrument for registration does not give to
it any priority (other than in so far as registration may be taken
to be constructive notice), force, effect or validity that it would
not have had if this section had not been enacted.
(8) A dealing does not pass any legal estate or interest in a mining
tenement or in any way charge or encumber a mining tenement
until it is registered in accordance with this section.
[Section 103C inserted by No. 54 of 1996 s. 15 (as amended by
No. 39 of 2004 s. 103(a)); amended by No. 31 of 2008 s. 15.]

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Part IVA Registration of instruments and register

s. 103D

103D. Provisional lodgment

(1) If an authorised officer is of the opinion that an instrument
lodged for registration contains an error or defect, the authorised
officer is —
(a) if satisfied that the error or defect can be corrected, to
accept the instrument for provisional lodgment; or
(b) in any other case, to reject the instrument and endorse
the register accordingly.
(2) The regulations may provide for the effect to be given to an
instrument accepted for provisional lodgment.
[Section 103D inserted by No. 54 of 1996 s. 15.]

103EA. Memorial for unpaid tax

(1) A tax memorial takes effect when it is registered and ceases to
have effect when a withdrawal of the memorial is registered.
(2) While a tax memorial registered against a mining tenement is in
effect no dealing affecting the mining tenement is to be lodged
or registered without the consent of the Commissioner of State
Revenue.
(3) If a tax memorial is registered and in effect against —
(a) a mining tenement and the holder of that tenement is
granted a mining lease or general purpose lease (the
later tenement) under section 49, 67 or 70L in respect of
the land or a part of the land the subject of the tenement;
or
(b) a mining tenement and the holder of that tenement is
granted a retention licence (the later tenement) under
section 70B in respect of the land or a part of the land
the subject of the tenement; or
(c) a special prospecting licence granted under section 56A,
70 or 85B and the holder of that licence is granted a
mining lease for gold (the later tenement) under

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s. 103E

section 56A(8), 70(8) or 85B(7) in respect of the land or

a part of the land the subject of the licence,
the tax memorial is to be taken to have been also lodged against
the later tenement and is to be registered accordingly.
(4) A tax memorial registered in accordance with subsection (3) is
taken to have been registered immediately after the later
tenement was granted.
[Section 103EA inserted by No. 31 of 2008 s. 16.]

103E. Priority of dealings

Dealings affecting the same mining tenement take priority
according to the date and time of their registration.
[Section 103E inserted by No. 54 of 1996 s. 15 (as amended by
No. 39 of 2004 s. 103(b)).]

103F. Register
(1) The Director General of Mines is to cause a register to be
compiled and maintained.
(2) The register is to contain such particulars, relating to mining
tenements and applications for mining tenements, as are
prescribed.
(3) The register may be compiled and maintained in such form as
the Director General of Mines determines.
(4) A person may, on payment of the prescribed fee, obtain at the
Department at Perth or at the office of the mining registrar —
(a) a copy of an entry in the register relating to any mining
tenement or application for a mining tenement; and
(b) subject to such requirements, if any, as are prescribed, a
copy of a dealing or other instrument recorded in the
register.
[Section 103F inserted by No. 54 of 1996 s. 15.]

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s. 103G

103G. Amendment of register

(1) A person may apply in the prescribed manner and prescribed
form for the amendment of particulars in the register relating to
a mining tenement, or an application for a mining tenement, in
which that person has an interest.
(2) If, on an application under subsection (1), an authorised officer
is satisfied that there is reasonable cause for the amendment, the
authorised officer may amend the particulars accordingly.
(3) An authorised officer may amend, add to and correct the register
in such manner as is necessary to make the register an accurate
record of the particulars it contains.
[Section 103G inserted by No. 54 of 1996 s. 15.]

103H. Regulations relating to register

The regulations may —
(a) prescribe the form a copy is to take for the purposes of
section 103F(4)(a) or (b); and
(b) make provision for any other matter relating to the
register.
[Section 103H inserted by No. 54 of 1996 s. 15.]

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 Mining Act 1978
General provisions relating to mining and mining tenements Part V

s. 104

Part V — General provisions relating to mining and

mining tenements
104. Entry on land for purpose of marking out etc.
(1) Subject to this Act, for the purpose of marking out any land and
posting notices on any land in connection with an application
for a mining tenement, any person or his servant or agent
may —
(a) enter and re-enter from time to time on any land with
such assistants as he thinks fit; and
(b) affix and set up on the land pegs, marks, posts, cairns of
stones and poles, inspect and repair any peg, mark, post,
cairn of stones or pole; and
(c) do all such things as may be necessary for the purpose of
marking out the land, and posting notices thereon.
(2) Subject to subsections (3) to (5), for the purposes of surveying
any land in connection with a mining tenement, any surveyor
authorised in that behalf may —
(a) enter and re-enter from time to time on any land, with
such assistants as he thinks fit; and
(b) affix and set up on the land survey pegs, marks and
poles; and
(c) do all such things as may be necessary for the purposes
of the survey.
(3) A person shall not enter on any private land for any purpose
referred to in subsection (1) unless he does so pursuant to a
permit issued under section 30.
(4) A person shall not, for the purposes specified in subsection (1)
or (2), enter on any Commonwealth land or land referred to in
section 24 or 25 or a marine nature reserve or marine park
except as provided in section 26.

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s. 105

(5) In carrying out any marking out, posting of notices or survey of

any land, every person entering on the land under this
section shall ensure that no damage is done that with reasonable
diligence could be avoided.
[Section 104 amended by No. 5 of 1997 s. 41(2); No. 51 of 2012
s. 31.]

105. Marking out of mining tenement

(1) 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) deleted]
[Section 105 amended by 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.]

105A. Priorities between applicants for certain tenements

(1) Subject to section 111A, where more than one application is
received for a mining tenement (other than a miscellaneous
licence) in respect of the same land or any part thereof, the
applicant who first complies with the initial requirement in
relation to his application has, subject to this Act, the right in
priority over every other applicant to have granted to him in
respect of that land or part the mining tenement to which his
application relates.

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s. 105A

(2) In subsection (3) applicant means an applicant for a prospecting

licence, exploration licence, mining lease or general purpose
lease.
(3) Where in respect of any land the warden is satisfied that 2 or
more applicants complied with the initial requirement in relation
to their applications at the same time or within a prescribed
period, priority shall, unless written agreement is concluded by
the applicants and lodged in the prescribed manner and within
the prescribed time, be determined by ballot conducted by the
warden on a date to be determined by the warden and notified to
the applicants.
(3a) Each ballot under subsection (3) is to be conducted in public.
(4) In this section a reference to compliance with the initial
requirement in relation to an application is a reference —
(a) in the case of an application for an exploration licence,
to lodging that application in the prescribed manner;
(b) in the case of an application for a prospecting licence,
mining lease or general purpose lease —
(i) unless subparagraph (ia), (ii) or (iii) applies, to
marking out the land concerned in the prescribed
manner;
(ia) where the land concerned is land to which
section 65(6) applies, lodging that application in
the prescribed manner;
(ii) where the land concerned is wholly covered by
the sea or the waters of any lake, pond, river or
stream, to lodging that application in the
prescribed manner;
(iii) where the land concerned is partly covered by
the sea or the waters of any lake, pond, river or
stream, to marking out in the prescribed manner
so much of that land as is not so covered.

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s. 105B

(5) If the warden is satisfied that 2 or more applications for a

mining tenement have been lodged by or on behalf of the same
party for the purpose of affecting the result of a ballot to be
conducted under subsection (3), the warden may exclude all but
one of those applications from the ballot.
(6) For the purposes of subsection (5) an application for a mining
tenement is to be taken to have been lodged by or on behalf of a
party if it is lodged by or on behalf of a person who is related to
that party.
[Section 105A inserted by No. 69 of 1981 s. 24; amended by
No. 100 of 1985 s. 80; No. 1 of 1986 s. 6; No. 22 of 1990 s. 34;
No. 37 of 1993 s. 17 and 26; No. 58 of 1994 s. 42; No. 15 of
2002 s. 26; No. 39 of 2004 s. 67 and 95; No. 12 of 2010 s. 36.]

105B. Grant of tenement subject to survey

The grant of a mining tenement shall be deemed to have been
made subject to a condition that the land applied for is found to
have been available for the purposes of that grant after a survey
has been made of the tenement.
[Section 105B inserted by No. 100 of 1985 s. 81.]

106. Offence of destroying marks or obstructing surveyor etc.

A person who —
(a) without lawful authority removes, destroys or alters the
position of, any peg, notice, survey peg, mark, post,
cairn of stones or pole used for the purposes of any
marking out or survey made or being made under
section 104; or
(b) wilfully damages, destroys or otherwise interferes with
any peg, survey peg, mark, post, cairn of stones, pole
erected or notice posted for the purposes of this Act; or
(c) wilfully obstructs, hinders, or interferes with any person
lawfully engaged in marking out or surveying any land
under that section,

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s. 107

is guilty of an offence against this Act.

[Section 106 amended by No. 122 of 1982 s. 26; No. 100 of
1985 s. 82.]

107. Areas covered by water not required to be marked out

Notwithstanding anything to the contrary in this Act, if any area
in respect of which an application for a mining tenement is to be
made is wholly or partly covered by the sea or the waters of any
lake, pond, river or stream, it shall not be necessary to mark out
the area or part of the area so covered.

108. Rent payable for mining tenement

In respect of each mining tenement there shall be payable by the
holder thereof at the times respectively prescribed, such rent as
may be respectively prescribed.

109. Royalties
(1) In the exercise of the power to make regulations under
section 162, the Governor may by regulation —
(a) prescribe how, by whom, and at what rate, or
differentiating rates, royalties shall be paid in respect of
minerals or any class of minerals, obtained from land
that is the subject of a mining lease or other mining
tenement granted under this Act, or that is the subject of
an application for the grant of a mining lease or other
mining tenement under this Act; and
(b) exempt, subject to conditions or unconditionally, any
person or class of persons from payment either
generally, or in any class of case, or in any particular
case, from payment of royalty so prescribed; and
(c) provide for penalties, including penalties for continuing
offences, for contravention of the requirements of this
Act in relation to royalties and the furnishing of
information relevant to the assessment of royalties.

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s. 109A

(2) Regulations made under section 162 may empower the

Minister —
(a) to determine by what method a value shall be placed on
a mineral or a class of minerals for the purpose of
assessing the rate of royalty that shall be paid, and in so
doing to take into account market factors, including
pricing methods and merchandising practices; and
(b) to exercise a discretion as to the basis on which a rate of
royalty shall be applied, taking into account particular
circumstances.
(3) For the purposes of this section, a reference to a mineral
includes a reference to a material containing that mineral.
(4) Notwithstanding section 160B or the provisions of any other
Act, proceedings in respect of a failure to furnish information
relevant to the assessment of royalties or to pay royalties under
this Act may be brought within the period of 3 years after the
royalty return was required to be submitted or the royalty
required to be paid or, with the consent of the Minister, at any
later time.
[Section 109 amended by No. 100 of 1985 s. 83; No. 58 of 1994
s. 43.]

109A. Verification of royalties payable

(1) Where the Minister is of the opinion that any royalty has not
been paid or that, having regard to any particulars that may be
furnished by a person pursuant to a requirement of this Act or
regulations in respect of any mining operations, any royalty was
not properly assessed or was not properly calculated,
notwithstanding that a certificate may have been furnished in
accordance with subsection (2), the Minister may make an
estimate of the royalty, taking into account the relevant
regulations and such information as has been furnished or is
otherwise available to the Minister, and thereafter, having given

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s. 109A

to the person who paid or may be required to pay the royalty

notice —
(a) that the Minister proposes to exercise the power
conferred by this subsection, particulars of the manner in
which the proposed estimate is calculated being set out
in the notice; and
(b) that any submissions as to the proposal should be made
to the Minister within a period specified in that notice,
the Minister, on the expiry of that period and having considered
any submissions made, may determine the amount of royalty
that should have been or which is to be paid.
(2) For the purpose of verifying any royalty, the Minister may,
where a person who has paid or may be required to pay a
royalty under this Act so requests, in respect of a period stated
in the request, accept a certificate that the royalty appears to the
person signing the certificate to have been properly assessed and
calculated, being a certificate which —
(a) is prepared at the cost of the person by whom the request
is made and is signed by —
(i) an auditor, being a person who is registered as an
auditor, or taken to be registered as an auditor,
under Part 9.2 of the Corporations Act; or
(ii) some other competent independent assessor,
being a person approved by the Minister;
and
(b) sets out the amount of the royalty paid or to be payable
and, unless the Minister otherwise consents, sufficient
detail of the methods of assessment and calculation, and
of all weights, analyses, assays and other matters
relevant to the certificate to enable the amount certified
to be verified.
(3) For the purpose of —

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s. 109A

(a) determining whether or not in relation to any mining

operations any royalties are payable, the rates of
payment, the method of valuation which is to be used in
relation to a mineral or class of minerals, the basis on
which a rate of royalty shall be applicable, the methods
of assessment and calculation, and the amount payable;
or
(b) ascertaining information as to pricing or accounting
methods and storage, transportation, processing or
merchandising practices,
an officer of the Department or a person authorised by the
Minister may, at any reasonable time, without warrant other
than this section exercise the powers conferred by
subsection (4).
(4) For the purposes of subsection (3), the powers conferred are
to —
(a) enter upon any land where mining operations are carried
out and into any premises situate there or any other
premises elsewhere used for the purpose of preparing
accounting or other records relating to the mining
operations conducted on that land;
(b) enter upon any other land or into any premises where
that officer or authorised person has reasonable cause to
believe any mineral derived from the mining operations,
or any accounting records relating to that mineral, to be,
if —
(i) the officer or authorised person has reasonable
cause to believe an offence against this Act or a
breach of the conditions of any mining tenement
has been, is being, or is about to be committed;
or
(ii) the consent of the owner or occupier of that land
or premises has been obtained;

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s. 109A

(c) inspect and examine any mining operations and any

accounting or other records in respect of those
operations, and any mining product or mineral, in
relation to which royalty is, or in his opinion may be,
payable;
(d) take copies or extracts of accounting or other records
relating to mining operations, or of other sources of
information examined by or produced to him;
(e) require any person to produce, or to secure the
production of to that officer or authorised person —
(i) forthwith; or
(ii) if by notice in writing a time and place for the
production is specified, at the time and place
specified,
such accounting or other records or other sources of
information as are in the custody or control of the person
of whom the requirement is made and which relate to a
mining tenement, or to any mining operations, mineral
product or holder of a mining tenement specified by the
officer or authorised person, and are relevant for the
purpose of determining whether any, or what amount of,
royalty may be payable in relation to the mining
operations,
for the purpose of seeking or obtaining the information that
appears to the officer or person exercising that power to be
necessary in relation to any question as to the royalties that may
be payable.
(5) A person who, without reasonable cause, refuses or fails —
(a) to permit the entry upon any land or into any premises
which an officer of the Department or other person
authorised under subsection (3) reasonably believes to
be necessary; or

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s. 109A

(b) to permit inspection or examination, or the taking of

copies or extracts of records or other sources of
information, for the purposes of this section; or
(c) to produce, or secure the production of, to such an
officer or authorised person the accounting or other
records or sources of information that officer or
authorised person reasonably believes to be necessary
and requires to be produced; or
(d) to provide or secure the provision of any other
information which such an officer or authorised person
may reasonably require pursuant to this section; or
(e) to provide such an officer or authorised person with
appropriate means and reasonable facilities and
assistance for the effective exercise of the powers
conferred by this section,
or who knowingly makes any false or misleading statement or
otherwise furnishes or permits to be furnished false or
misleading information, in relation to a matter to which this
section applies, commits an offence against this Act.
Penalty: $5 000.
(6) Where a person who is the holder of, or an applicant for, a
mining tenement is convicted in respect of that tenement of an
offence contravening subsection (5) —
(a) an estimate of the royalty that, taking into account the
relevant regulations and such information as has been
furnished or is otherwise available to the Minister, might
but for the contravention have been assessed in respect
of minerals obtained from the land to which the
tenement or application relates may be made by or on
behalf of the Minister; and
(b) that person may by notice in writing be required to pay
to the Minister —
(i) that estimated royalty; and

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s. 110

(ii) an amount by way of penalty determined by the

Minister, being an amount not greater than 50%
of that estimated royalty,
within a time specified by the Minister; and
(c) where in relation to an offence a requirement for
payment of estimated royalty or a penalty, or both, was
made of that person under paragraph (b) and is not
complied with, the Minister may —
(i) in the case of a mining tenement, forfeit that
tenement as though it were a mining lease liable
to forfeiture for a breach of the lessee’s covenant
to pay royalty, effect being given to section 97 as
though for the purposes of that section the
tenement were a lease of which the holder was
the lessee; or
(ii) in the case of an application for a mining
tenement, refuse that application, effect being
given to section 111A as though the Minister
were satisfied on reasonable grounds in the
public interest that the application should not be
granted.
[Section 109A inserted by No. 22 of 1990 s. 35; amended by
No. 37 of 1993 s. 27; No. 10 of 2001 s. 136.]
110. Mining lease restricted to certain minerals
Notwithstanding anything to the contrary in this Act, the
Minister may, having regard to the locality wherein the land the
subject of an application for a mining lease is, and if the
Minister considers it is in the public interest to do so, grant the
applicant a mining lease that authorises the holder thereof to
mine on or under or both, and remove from the land the subject
of the mining lease, only such mineral as is specified in the
lease.
[Section 110 amended by No. 57 of 1997 s. 89(4).]

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s. 111

111. Power of Minister to exclude mining for iron from mining

tenements
Notwithstanding the provisions of sections 48, 66, 70J
and 85 —
(a) a prospecting licence does not authorise the holder
thereof to prospect for iron on the land the subject of the
prospecting licence;
(b) an exploration licence does not authorise the holder
thereof to explore for iron on the land the subject of the
exploration licence;
(ba) a retention licence does not authorise the holder thereof
to explore for iron on the land the subject of the
retention licence;
(c) a mining lease does not authorise the holder thereof to
work and mine the land in respect of which the lease
was granted for iron,
unless the Minister, by instrument in writing under his hand,
authorises such holder so to do and endorses the prospecting
licence, exploration licence, retention licence or mining lease, as
the case requires, accordingly.
[Section 111 amended by No. 37 of 1993 s. 10(2); No. 54 of
1996 s. 23.]

111A. Minister may terminate or summarily refuse certain

applications
(1) The Minister may —
(a) by notice served on the mining registrar or the warden,
as the case requires, terminate an application for a
mining tenement before the mining registrar or the
warden has determined, or made a recommendation in
respect of, the application; or

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s. 111A

(b) refuse an application for a mining tenement,

if in respect of the whole or any part of the land to which the
application relates —
(c) the Minister is satisfied on reasonable grounds in the
public interest that —
(i) the land should not be disturbed; or
(ii) the application should not be granted;
or
(d) a person who in relation to the land was formerly the
lessee of a mining lease the term of which has expired,
or is a person deriving title through such a former lessee,
has subsequently made a late renewal application and
the Minister, being satisfied that the requirements of that
expired mining lease and of this Act in relation to that
lease had been substantially observed (other than as to
the timing of an application for renewal) and that the
person has continued to observe those requirements as if
the term of the lease had not expired, determines that the
renewal application should be approved and grants that
renewal.
(2) In subsection (1)(d) late renewal application means an
application made in the manner prescribed for the purposes of
section 78 (except that it was not made during the final year of
the term of the lease) for the renewal of the lease with effect
from the expiry of the term of the lease.
(3) Notwithstanding anything in this Act, an application to which a
notice referred to in subsection (1)(a) applies ceases to have any
effect for the purposes of this Act when that notice is served.
(4) The powers conferred by subsection (1) are in addition to any
other powers of the Minister under this Act.
[Section 111A inserted by No. 58 of 1994 s. 44.]

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Mining Act 1978
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s. 112

112. Reservation in favour of Crown on prospecting licence or

exploration licence to take rock etc.
(1) Subject to subsection (2), every prospecting licence and
exploration licence is subject to a reservation in favour of the
Crown and any person authorised thereby of the right to enter
thereon and remove therefrom any rock, stone, clay, sand or
gravel for use for any public purpose or for use in any
prescribed work or undertaking.
(2) A prospecting licence or exploration licence granted —
(a) wholly in respect of private land is not subject to the
reservation referred to in subsection (1); or
(b) partly in respect of any private land and partly in respect
of land other than private land is not subject to the
reservation referred to in subsection (1) in relation to
that private land; or
(c) wholly in respect of Commonwealth land is not subject
to the reservation referred to in subsection (1); or
(d) partly in respect of any Commonwealth land and partly
in respect of land other than Commonwealth land is not
subject to the reservation referred to in subsection (1) in
relation to that Commonwealth land.
[Section 112 amended by No. 69 of 1981 s. 26; No. 51 of 2012
s. 33.]
113. Repossession of land on expiry etc. of mining tenement
When a mining tenement expires or is surrendered or forfeited,
the owner of the land to which the mining tenement related may
take possession of the land forthwith, subject to any estate or
interest held by any other person other than under that mining
tenement.

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General provisions relating to mining and mining tenements Part V

s. 114

114. Removal of buildings etc. on expiry etc. of mining tenement

(1) In this section —
mining plant means any building, plant, machinery, equipment,
tools or any other property of any kind whether affixed to land
or not so affixed;
prescribed period means a period of 3 months after a mining
tenement expires or is surrendered or forfeited or such longer
period thereafter as the Minister from time to time or in any
particular case determines and is hereby authorised to
determine.
(2) When a mining tenement expires or is surrendered in whole or
in part or forfeited —
(a) the person who was the holder of the mining tenement
immediately prior to such expiry, surrender or forfeiture;
or
(b) any other person,
who is entitled to any mining plant lawfully erected or brought
onto the land or the part of the land to which the mining
tenement related by a former holder thereof or any predecessor
in title, may, within the prescribed period, remove any such
mining plant.
(3) Where any such mining plant is not so removed within the
prescribed period, the Minister may, at any time thereafter, call
upon such holder or other person as is referred to in
subsection (2) to show cause, within such period as the Minister
may determine, why any mining plant that has not been so
removed should not be sold and removed.
(4) Where such holder or person does not, within the period
determined by the Minister, show cause to the satisfaction of the
Minister why any such mining plant should not be sold and
removed, the Minister may direct the mining plant to be sold by
public auction and be removed.

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s. 114

(5) The proceeds of the sale of any mining plant pursuant to

subsection (4), after deducting the cost of and incidental to the
sale or the sale and the removal of the mining plant, shall be
paid to such holder of the mining tenement or other person as is
referred to in subsection (2), of whose claim thereto the Minister
has had notice in writing prior to the payment of the proceeds.
(6) The Minister shall determine whether or not any mining plant
shall be allowed to remain on the land that was the subject of
the mining tenement and if so, the period for which it may so
remain and the amount of rent that shall be paid for the use and
occupation of the land on which the mining plant is allowed to
remain and to whom the rent shall be due and payable.
(7) Where —
(a) a mining tenement expires or is surrendered in whole or
in part or forfeited; and
(b) at the time of that expiry, surrender or forfeiture, the
person (in this subsection called the former holder) who
was the holder of the mining tenement immediately
before its expiry, surrender or forfeiture leaves any
tailings or other mining product upon the land or part of
the land that was the subject of the mining tenement,
the tailings or other mining product become or becomes the
property of the Crown —
(c) at the expiration of the prescribed period, if the former
holder does not —
(i) remove; or
(ii) bona fide treat and continue to treat,
the tailings or other mining product within that period; or
(d) at the expiration of a period of 3 months from the time
when, in the opinion of the Minister, treatment of the
tailings or other mining product is discontinued, if the
former holder, having commenced treatment of the
tailings or other mining product within the prescribed

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 Mining Act 1978
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s. 114A

period, discontinues that treatment after the expiration of

the prescribed period.
(8) The Minister shall determine the amount of rent that shall be
paid for the use and occupation of the land on which the tailings
or other mining product are allowed to remain and the land used
in relation to the treatment of the tailings or other mining
product and to whom the rent shall be due and payable.
(9) Nothing in this section affects any valid agreement made by the
holder of a mining tenement with the owner or occupier of any
land to which the tenement relates in respect of mining plant or
tailings or other mining product left on such land after the
prescribed period, and this section shall be construed subject to
such an agreement.
(10) Notwithstanding the foregoing provisions of this section, no
timber or other material used and applied in the construction or
support of any shaft, drive, gallery, adit, terrace, race, dam or
other mining work shall be removed without the consent in
writing of the Minister.
[Section 114 amended by No. 37 of 1993 s. 18.]

114A. Rights conferred under mining tenement exercisable in

respect of mining product belonging to Crown
Where a provision of this Act confers on the holder of a mining
tenement (other than a miscellaneous licence) rights in respect
of land that is the subject of that mining tenement, the holder of
the mining tenement may exercise those rights in respect of any
tailings or other mining product left upon that land or any part
of that land if —
(a) at the time the mining tenement was granted, the tailings
or other mining product were or was the property of the
Crown; or
(b) during the term of the mining tenement the tailings or
other mining product become or becomes the property
of the Crown,

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Mining Act 1978
Part V General provisions relating to mining and mining tenements

s. 114B

by virtue of section 114(7) or clause 7(5) of the Second

Schedule.
[Section 114A inserted by No. 37 of 1993 s. 19(1).]

114B. Continuation of liability after expiry, surrender or

forfeiture of mining tenement
The expiry, surrender or forfeiture of a mining tenement does
not affect the liability of the person who was the holder of the
mining tenement immediately before its expiry, surrender or
forfeiture —
(a) to pay any rent, fee, royalty, penalty, or other money on
any other account, payable on or before the date of
expiry, surrender or forfeiture under or in relation to the
mining tenement; or
(b) to comply with any obligation imposed on or before that
date under or in relation to the mining tenement; or
(c) for any act done or default made on or before that date
under or in relation to the mining tenement.
[Section 114B inserted by No. 39 of 2004 s. 96.]

114C. Right to enter land to carry out remedial work after expiry,
surrender or forfeiture of mining tenement
(1) In this section —
former holder, in relation to a mining tenement, means the
person who was the holder of the mining tenement immediately
before its expiry, surrender or forfeiture;
remedial work means work necessary for compliance by the
former holder of a mining tenement with an obligation referred
to in section 114B(b).
(2) Where a mining tenement expires or is surrendered or forfeited,
the former holder of the mining tenement may enter and re-enter
the land that was the subject of the mining tenement with such
agents, employees, vehicles, machinery and equipment as may

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 Mining Act 1978
General provisions relating to mining and mining tenements Part V

s. 115

be necessary or expedient for the purpose of carrying out

remedial work on that land.
[Section 114C inserted by No. 39 of 2004 s. 96.]

115. Power to enter on land for surveys

(1) When and as often as the Director, Geological Survey or any
other officer of the Department or any person working in
conjunction with that Department and acting under the
Director’s instructions considers it necessary to enter upon any
land for the purpose of making any aerial, geological,
geophysical or geochemical surveys of the land and drilling
thereon in the course of his official duties he may —
(a) enter and re-enter on the land, with such assistants as he
considers necessary for the purpose of making the
survey thereon; and
(b) extract and remove from the land any geological
specimens or samples that in his opinion are necessary
to the survey; and
(c) affix to or set up on the land such pegs, marks, poles or
other equipment as may be required for the purposes of
the survey; and
(d) do all such things as he considers necessary for the
purposes of the survey or for any inspection or alteration
of it.
(2) Before a person enters on any land pursuant to this section, he
shall if practicable, give reasonable notice to the owner and
occupier of the land of his intention to do so, and shall, if
required by the owner or occupier of the land, produce the
authority under which he claims to enter or to have entered the
land.
(3) In relation to the exercise of a power under this section —
(a) the owner and occupier of the land are entitled to
compensation according to their respective interests, for
any damage caused by a survey under this section; and

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Mining Act 1978
Part V General provisions relating to mining and mining tenements

s. 115A

(b) in default of agreement as to the amount of

compensation to be paid, the amount shall be assessed
and settled by the warden’s court under Part VII.
(4) A person who —
(a) wilfully obstructs, hinders, or interferes with any person
lawfully engaged in connection with a survey that is
being made under this section; or
(b) without lawful authority removes, destroys or alters the
position of, any peg, mark, pole or other equipment used
for the purposes of any such survey; or
(c) wilfully damages or destroys or otherwise interferes
with any peg, mark, pole or other equipment so used,
is guilty of an offence against this Act.
[Section 115 amended by No. 100 of 1985 s. 84; No. 39 of 2004
s. 85.]

115A. Mineral exploration reports

(1) In this section —
guidelines means guidelines published under the regulations;
mineral exploration report means a report containing records of
the progress and results of —
(a) programmes involving the application of one or more of
the geological sciences;
(b) drilling programmes;
(c) activities involving the collection and assaying of soil,
rock, groundwater and mineral samples,
that have been carried out in search for minerals;
operations report means a report of the kind required under
section 51, 68(3), 70H(1)(f) or 82(1)(e).
(2) The holder of a mining tenement shall file a mineral exploration
report, or cause a mineral exploration report to be filed —

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 Mining Act 1978
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s. 115B

(a) in conjunction with an operations report in such

circumstances as are set out in the guidelines; and
(b) whenever required to do so by the Minister by notice in
writing.
(3) A mineral exploration report is to be filed in the prescribed
manner and is to be in the form required by the guidelines and is
to contain information of the kind required by the guidelines.
(4) The Minister may, under the guidelines, approve of
arrangements for combined mineral exploration reports to be
filed for 2 or more mining tenements and mineral exploration
reports can be filed under those arrangements despite the
requirement of subsection (2)(a) for them to be filed in
conjunction with operations reports.
(5) The Minister may, under the guidelines, cancel arrangements
referred to in subsection (4).
[Section 115A inserted by No. 58 of 1994 s. 45; amended by
No. 12 of 2010 s. 37.]

115B. Verification of expenditure amounts in operations reports

(1) In this section —
audit amount means the amount of expenditure shown in an
audit statement;
audit statement means a statement containing details of
expenditure during the period to which an operations report
relates;
expenditure means expenditure on or in connection with mining
on a mining tenement;
expenditure amount means the amount of expenditure during
the period to which an operations report relates;
operations report has the meaning given to that term in
section 115A(1).

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Part V General provisions relating to mining and mining tenements

s. 116

(2) For the purpose of verifying the expenditure amount shown in

an operations report, the Minister may, by notice in writing,
require the holder of a mining tenement to file an audit
statement, or cause an audit statement to be filed, in the
prescribed manner and within a period specified in the notice.
(3) An audit statement is to be prepared and signed by —
(a) a person registered as an auditor, or taken to be
registered as an auditor, under Part 9.2 of the
Corporations Act; or
(b) another suitably qualified person approved by the
Minister for the purposes of this section.
(4) If the audit amount differs from the expenditure amount shown
in the operations report, the Minister may determine in writing
that the audit amount is to be regarded as the expenditure
amount for the purposes of this Act.
[Section 115B inserted by No. 39 of 2004 s. 97(1); amended by
No. 12 of 2010 s. 38.]

116. Instrument of licence or lease

(1) The holder of a mining tenement granted pursuant to this Act is
entitled, on payment of the prescribed fee, to receive an
instrument of licence or lease as the case may be in such form as
may be prescribed.
(2) Except in the case of fraud, a mining tenement granted or
renewed under this Act shall not be impeached or defeasible by
reason or on account of any informality or irregularity in the
application or in the proceedings previous to the grant or
renewal of that tenement and no person dealing with a
registered holder of a mining tenement shall be required or in
any way concerned to inquire into or ascertain the
circumstances under which the registered holder or any previous
holder was registered, or to see to the application of any
purchase or consideration money, or be affected by notice,
actual or constructive, of any unregistered trust or interest any

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 Mining Act 1978
General provisions relating to mining and mining tenements Part V

s. 117

rule of law or equity to the contrary notwithstanding, and the

knowledge that any such unregistered trust or interest is in
existence shall not of itself be imputed as fraud.
(3) In subsection (2) —
registered, in relation to a holder or previous holder of a mining
tenement, means that the name of the holder or previous holder
is or was entered in the register as the holder of the mining
tenement.
[Section 116 amended by No. 100 of 1985 s. 85; No. 54 of 1996
s. 16; No. 51 of 2012 s. 34.]

117. Mining tenements protected

(1) Subject to the provisions of sections 56A, 70 and 85B as regards
the special prospecting licences and mining leases therein
referred to, no Crown grant, transfer of Crown land in fee
simple, or conveyance nor the grant of any mining tenement has
the effect of revoking or injuriously affecting any existing
mining tenement acquired and held under this or the repealed
Act, whether or not any reservation or exception of that existing
mining tenement is contained in the Crown grant, transfer of
Crown land in fee simple, or conveyance or the grant of the
mining tenement.
(2) Each such Crown grant, transfer of Crown land in fee simple, or
conveyance and each such grant of a mining tenement shall be
deemed to contain an express reservation of the rights to which
the holder of the existing mining tenement is entitled.
[Section 117 amended by No. 100 of 1985 s. 86; No. 37 of 1993
s. 12(2); No. 31 of 1997 s. 71(17) and (18).]

118. Notice of application to be given to lessee of pastoral lease

Where any land comprised in an application for a mining
tenement is held subject to a pastoral lease within the meaning
of the Land Administration Act 1997 or a lease otherwise
granted by or on behalf of the Crown for grazing purposes only,

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Part V General provisions relating to mining and mining tenements

s. 118A

the applicant shall within the prescribed period, post a copy of

the application together with a map on which are clearly
delineated the boundaries of the land in respect of which the
mining tenement is sought by registered post or certified mail to
the holder of that lease at his usual or last known place of abode
or business.
[Section 118 amended by No. 122 of 1982 s. 27; No 100 of 1985
s. 87; No. 22 of 1990 s. 36; No. 37 of 1993 s. 20; No. 31 of 1997
s. 141.]

118A. Tenement holder may authorise mining by third party

(1) In this section —
authorisation means an authorisation under subsection (2).
(2) The holder of a prospecting licence, exploration licence or
mining lease (the relevant tenement) may, by instrument in
writing, authorise another person to carry out mining of a kind
authorised by the relevant tenement on the land the subject of
the relevant tenement.
(3) An authorisation may be given subject to conditions specified in
the authorisation.
(4) Mining carried out under an authorisation is to be regarded for
the purposes of this Act as mining carried out by the holder of
the relevant tenement.
(5) Expenditure on or in connection with mining carried out under
an authorisation is to be regarded for the purposes of the
prescribed expenditure conditions referred to in section 50, 62
or 82(1)(c) as expenditure by the holder of the relevant
tenement.
(6) The giving of an authorisation does not affect the duties or
obligations of the holder of the relevant tenement under
this Act.
[Section 118A inserted by No. 39 of 2004 s. 98(1).]

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 Mining Act 1978
General provisions relating to mining and mining tenements Part V

s. 119

119. Mining tenement may be sold etc.

(1) Subject to this Act a mining tenement may be sold, encumbered,
transmitted, seized and sold to satisfy a judgment, or otherwise
disposed of.
(2) A legal or equitable interest in or affecting a mining tenement is
not capable of being created, assigned, affected or dealt with,
whether directly or indirectly, except by an instrument in
writing signed by the person creating, assigning or otherwise
dealing with the interest.
[Section 119 amended by No. 10 of 1982 s. 28; No. 37 of 1993
s. 27; No. 58 of 1994 s. 46; No. 59 of 2004 s. 116.]

119A. Mining tenement may be mortgaged

(1) A mining tenement or share in a mining tenement may be
mortgaged as security for the repayment of money advanced or
agreed to be advanced or for the discharge of any liability.
(2) If there are 2 or more mortgages affecting the same legal interest in
a mining tenement, the mortgages take priority according to the
time and date of their registration.
(3) A mortgage —
(a) has effect only as security for the repayment of the
money intended to be secured by the mortgage and not
as an assignment of the mining tenement; and
(b) may cover all buildings, improvements, machinery and
appliances in or upon the land comprised in the mining
tenement.
(4) The regulations may provide that a mortgage is deemed to contain
prescribed provisions unless the mortgage contains express
provision to the contrary.
[Section 119A inserted by No. 54 of 1996 s. 17.]

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Mining Act 1978
Part V General provisions relating to mining and mining tenements

s. 120

120. Planning schemes to be considered but not to derogate from

this Act
(1) In considering any application for the grant of a mining tenement
the Minister, warden or mining registrar, as the case requires, shall
take into account the provisions of any planning scheme in force
under the Planning and Development Act 2005 affecting the use
of the land concerned, but the provisions of any such scheme shall
not operate to prohibit or affect the granting of a mining tenement
or the carrying out of any mining operations authorised by this Act.
(2) Without affecting subsection (1), where —
(a) an application has been made for a mining lease or a
general purpose lease; and
(b) the local government or the Western Australian Planning
Commission has, in writing, informed the Minister and
the Minister for the time being administering the
Planning and Development Act 2005, that the mining
lease or general purpose lease would, if granted,
authorise the carrying on of mining operations contrary
to the provisions of a planning scheme referred to in
subsection (1),
the Minister shall not dispose of the application until he has first
consulted the Minister for the time being administering the
Planning and Development Act 2005 and obtained his
recommendation thereon.
[Section 120 amended by No. 58 of 1994 s. 47; No. 14 of 1996
s. 4; No. 24 of 2000 s. 26(2); No. 38 of 2005 s. 15.]

120AA. Scheme for reversion licence applications

(1) In this section —
continuing licence means a prospecting licence, exploration
licence or retention licence that has effect in relation to land to
which a reversion licence application applies;

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 Mining Act 1978
General provisions relating to mining and mining tenements Part V

s. 120AA

lease application means an application for a mining lease under

this Act including an application authorised by section 49(1),
67(1) or 70L(1).
(2) The Governor, by order published in the Gazette, may establish
a scheme authorising any person who, on or before a day
specified in the order, has made a lease application or lease
applications to make one or more applications for a prospecting
licence or an exploration licence in respect of land the subject of
the lease application or lease applications.
(3) An order under subsection (2) may provide for and in relation
to —
(a) the making of reversion licence applications and related
matters including marking out and advertising; and
(b) the operation and effect of a reversion licence
application including its effect on —
(i) the lease application or lease applications to
which it relates; and
(ii) any continuing licence held by the applicant;
and
(c) priority as between reversion licence applications and
other mining tenement applications; and
(d) the circumstances in which objections may be made to
reversion licence applications; and
(e) the operation and effect of prospecting licences and
exploration licences granted as a result of reversion
licence applications; and
(f) the refund of rent paid in respect of a lease application
or lease applications if a prospecting licence or an
exploration licence is granted as a result of a reversion
licence application; and
(g) any other matters of an incidental, supplementary,
savings or transitional nature that are necessary or

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Mining Act 1978
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s. 120AA

expedient for the purposes of the scheme referred to in

subsection (2).
(4) Without limiting subsection (3), an order under subsection (2)
may provide for a reversion licence application to include land
that is not the subject of the relevant lease application or lease
applications.
(5) An order under subsection (2) has effect for the period specified
in the order.
(6) The Governor, by order published in the Gazette, may amend or
revoke an order under subsection (2).
(7) Section 42 of the Interpretation Act 1984 applies to an order
under this section as if it were a regulation.
(8) An order under subsection (2) has effect despite any other
provision of this Act.
(9) Despite sections 18, 23 and 27, a reversion licence application
may be made in respect of land that is the subject of a mining
tenement if the mining tenement is a continuing licence held by
the applicant.
(10) Section 40(1)(b) or (c) of the Mining Amendment Act 1990 does
not apply if the land that has become available from an existing
licence, as defined in section 40(3) of that Act, has been
included in a reversion licence application and a prospecting
licence is granted in respect of that application.
[Section 120AA inserted by No. 39 of 2004 s. 99; amended by
No. 27 of 2005 s. 11]

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 Mining Act 1978
Caveats Part VI

s. 121

Part VI — Caveats
[Heading inserted by No. 54 of 1996 s. 18.]

121. Terms used

In this Part, unless the contrary intention appears —
absolute caveat means a caveat referred to in
section 122A(1)(a);
caveat means an absolute caveat, a consent caveat or a subject
to claim caveat;
consent caveat means a caveat referred to in section 122A(2);
subject to claim caveat means a caveat referred to in
section 122A(1)(b).
[Section 121 inserted by No. 54 of 1996 s. 18.]

122. Certain surrenders not affected by this Part

(1) A reference in this Part (other than this section) to a surrender
does not include a surrender under section 26A or 65.
(2) Where —
(a) a surrender under section 26A or 65 is registered under
section 103C; and
(b) the surrender affects a mining tenement or an interest in
a mining tenement that is the subject of a caveat,
notification of the registration of the surrender is to be sent by
or on behalf of the Minister in the prescribed manner to the
person who lodged that caveat.
[Section 122 inserted by No. 54 of 1996 s. 18.]

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Mining Act 1978
Part VI Caveats

s. 122A

122A. Lodgment of caveats

(1) A person claiming an interest in a mining tenement may
lodge —
(a) a caveat against the mining tenement forbidding the
registration of a dealing or surrender affecting the
mining tenement or interest; or
(b) a caveat against the mining tenement forbidding the
registration of —
(i) a dealing affecting the mining tenement or
interest unless the dealing expressly states that it
is to be subject to the interest claimed by the
caveator; or
(ii) a surrender affecting the mining tenement or
interest.
(2) If —
(a) the holder of a mining tenement has entered into an
agreement with another person relating to —
(i) the sale of the holder’s interest in the mining
tenement; or
(ii) any other matter connected with the holder’s
interest in the mining tenement;
and
(b) the agreement so provides,
either party to the agreement may lodge a caveat against the
mining tenement forbidding the registration of a dealing or
surrender affecting the mining tenement or interest together
with a copy of the agreement.
(3) A caveat lodged under this section is to —
(a) be in the prescribed form; and
(ba) be lodged in the prescribed manner; and
(b) be accompanied by the prescribed fee; and

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 Mining Act 1978
Caveats Part VI

s. 122B

(c) state the full name and address of the caveator; and
(d) be signed by the caveator or an agent of the caveator;
and
(e) give an address within the State for the service of
notices and proceedings in relation to the caveat.
(4) If a caveat is lodged under this section —
(a) a memorial or copy of the caveat is to be entered in the
register; and
(b) except in the case of a consent caveat lodged by the
holder of a mining tenement, a notice stating that the
caveat has been lodged is to be sent by certified mail to
the holder of the mining tenement affected by the
caveat.
(5) Subject to section 122B, a caveat lodged under this section has
effect from the time of lodgment.
(6) Successive caveats shall not be lodged by, or on behalf of, the
same person in respect of the same subject matter except with
the consent of a warden.
[Section 122A inserted by No. 54 of 1996 s. 18 (as amended by
No. 39 of 2004 s. 104(a) and (b)); amended by No. 12 of 2010
s. 39.]

122B. Provisional lodgment

(1) If an authorised officer (as defined in section 103A) is of the
opinion that a caveat lodged under section 122A contains an
error or defect, the officer is —
(a) if satisfied that the error or defect can be corrected, to
accept the caveat for provisional lodgment; or
(b) in any other case, to reject the caveat and endorse the
register accordingly.

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s. 122C

(2) The regulations may provide for the effect to be given to a

caveat accepted for provisional lodgment.
[Section 122B inserted by No. 54 of 1996 s. 18.]

122C. Caveats deemed to be lodged against later tenements

(1) If a caveat has been lodged against —
(a) a mining tenement and the holder of that tenement is
granted a mining lease or general purpose lease (the
later tenement) under section 49, 67 or 70L in respect of
the land or a part of the land the subject of the tenement;
or
(b) a mining tenement and the holder of that tenement is
granted a retention licence (the later tenement) under
section 70B in respect of the land or a part of the land
the subject of the tenement; or
(c) a special prospecting licence granted under section 56A,
70 or 85B and the holder of that licence is granted a
mining lease for gold (the later tenement) under
section 56A(8), 70(8) or 85B(7) in respect of the land or
a part of the land the subject of the licence,
the caveat is to be taken to have been also lodged against the
later tenement and a memorial to that effect is to be entered in
the register.
(2) A caveat to which subsection (1) applies has effect, in relation
to a later tenement, from the day on which the later tenement is
granted.
[Section 122C inserted by No. 54 of 1996 s. 18.]

122D. Effect of caveat

(1) A dealing or surrender affecting the subject matter of a caveat
shall not be registered under section 103C while the caveat
remains in force, except with the consent of a warden.

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s. 122E

(2) Subsection (1) does not apply to a dealing if —

(a) the caveat concerned is a subject to claim caveat; and
(b) the dealing is expressed to be subject to the interest
claimed by the caveator.
[Section 122D inserted by No. 54 of 1996 s. 18 (as amended by
No. 39 of 2004 s. 104(c)).]

122E. Duration of caveat

(1) An absolute caveat or a subject to claim caveat ceases to have
effect upon —
(a) the direction of a warden for the removal of the caveat;
or
(b) the withdrawal of the caveat by the caveator or an agent
of the caveator; or
(c) the expiry of a period of 14 days after notification
that —
(i) in the case of an absolute caveat, application has
been made for the registration of a dealing or
surrender affecting the subject matter of the
caveat; or
(ii) in the case of a subject to claim caveat,
application has been made for the registration of
a dealing or surrender affecting the subject
matter of the caveat that is not expressed to be
subject to the interest claimed by the caveator,
has been sent by or on behalf of the Minister by certified
mail to the caveator at the address for service given in
the caveat, unless within that period a warden otherwise
directs.
(2) A consent caveat ceases to have effect upon —
(a) the direction of a warden for the removal of the caveat;
or

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Part VI Caveats

s. 122E

(b) the withdrawal of the caveat by consent of the parties to

the agreement; or
(c) the expiry of the period of time, if any, specified in the
agreement.
(3) If a caveat ceases to have effect under this section a memorial to
that effect is to be entered in the register.
(4) In subsection (2) —
agreement means the agreement referred to in section 122A(2).
[Section 122E inserted by No. 54 of 1996 s. 18 (as amended by
No. 39 of 2004 s. 104(d)-(f)).]

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Compensation Part VII

s. 123

Part VII — Compensation

123. Compensation in respect of mining
(1) On and after the coming into operation of the Mining
Amendment Act 1985 1, 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.

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(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

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s. 123

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 him for pastoral purposes under the
Land Administration Act 1997 or which he holds by

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Part VII Compensation

s. 123

virtue of a lease or concession otherwise granted by or

on behalf of the Crown for grazing purposes only 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 by 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.]

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s. 124

124. Matters to be considered by warden’s court in relation to

compensation
(1) Without limiting or otherwise affecting the powers conferred on
a warden’s court by this Act, a warden’s court when considering
matters relating to compensation under this Act, shall take into
consideration —
(a) any work that the person has carried out or undertakes to
carry out to make good injury to the surface of the land
or injury to anything on the surface of the land;
(b) the amount of any compensation that the owner and
occupier or either of them have or has already received
in respect of the loss or damage for which compensation
is being assessed, and shall deduct the amount already
so received from the amount that they would otherwise
be entitled to for such loss or damage.
(2) Upon the hearing of a claim for compensation under
section 123, an order may be made requiring the person by or on
whose behalf the mining was authorised to restore, so far as is
reasonably practicable, the surface of the land that was damaged
thereby.
(3) Before an order is made under subsection (2) consideration shall
be given to the following matters —
(a) the geographical location of the land to which the claim
for compensation relates and its environment;
(b) the purpose for which such land was used before the
mining operations commenced and the purpose for
which such land is likely to be used after the mining
operations have ceased;
(c) the cost to restore the surface of the land relative to the
whole of the cost of and in relation to such mining
operations and the profitability thereof;

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(d) the practicability of restoring the surface of the land

after such mining operations have ceased.
[Section 124 amended by No. 69 of 1981 s. 28; No. 100 of 1985
s. 94; No. 39 of 2004 s. 85.]

125. Limitation on compensation

Except where and then only to the extent agreed upon by the
parties concerned or authorised by the warden’s court,
compensation is not payable under this Part to a person who is
the lessee of any land for the purposes of section 123(7) —
(a) for deprivation of the possession of the surface or any
part of the surface of the land;
(b) for damage to the surface of the land;
(c) where the lessee is deprived of the possession of the
surface of any land, for severance of the land from any
other land of the lessee;
(d) for surface rights of way and easements.
[Section 125 amended by No. 100 of 1985 s. 95; No. 105 of
1986 s. 19.]

125A. Liability for payment of compensation to native title holders

(1) If compensation is payable to native title holders for or in
respect of the grant of a mining tenement, the person liable to
pay the compensation is —
(a) if an amount is to be paid and held in trust, the applicant
for the grant of, or the holder of, the mining tenement at
the time the amount is required to be paid; or
(b) otherwise, the applicant for the grant of, or the holder of,
the mining tenement at the time a determination of
compensation is made.
(2) If, at the relevant time, there is no holder of the mining
tenement because the mining tenement has been surrendered or
forfeited or has expired, a reference in subsection (1) to the

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s. 126

holder of the mining tenement is a reference to the holder of the

mining tenement immediately before its surrender, forfeiture or
expiry.
(3) In subsection (1) —
grant includes extension or renewal;
native title holders has the same meaning as in the Native Title
Act 1993 of the Commonwealth.
[Section 125A inserted by No. 61 of 1998 s. 16.]

126. Securities
(1) A security referred to in section 26, 52, 60, 70F or 84A —
(a) shall be for such amount —
(i) in the case of a security referred to in section 26,
52(1a), 60(1a), 70F(2) or 84A(2), as the Minister
in a particular case approves (including any
variation of that amount under subsection (1a));
or
(ii) in the case of a security referred to in
section 52(1), 60(1), 70F(1) or 84A(1), as is
prescribed;
and
(b) shall be in the prescribed form or such other form as the
Minister in a particular case approves; and
(c) may, subject to the approval of the Minister, be by bond
or such other method as the Minister allows, or be partly
by bond and partly by such other method as the Minister
allows.
(1a) The Minister may by instrument in writing vary an amount
approved under subsection (1)(a)(i).
(2) A security given in accordance with the prescribed form or a
form approved by the Minister, although it is not sealed, binds
the person subscribing it as if it were sealed.

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s. 126

(3) Whenever a security under this section is put in suit the

production of the security, without further proof, entitles the
Minister to judgment against the person appearing to have
executed the security for the amount of his stated liability or for
such lesser amount as is claimed, unless that person proves
compliance with the conditions of the security or that the
security was not executed by him or release or satisfaction.
(4) If it appears to the court before which the security is in suit that
a non-compliance with a condition of a security under this
section has occurred, the security shall not be deemed to have
been discharged or invalidated, and the subscriber shall not be
deemed to have been released or discharged from liability, by
reason of —
(a) any extension of time or other concession; or
(b) any consent to, or acquiescence in, a previous
non-compliance with a condition; or
(c) any failure to bring suit against the subscriber upon the
occurrence of a previous non-compliance with the
condition.
(5) If there are several subscribers to the security they are bound,
unless the security otherwise provides, jointly and severally and
for the full amount.
(6) A security given under this section shall not be enforced except
with the written approval of the Minister.
(7) The Minister may discharge, in whole or in part, a security
given under this section —
(a) on receipt of an application in writing by the person
subscribing to the security accompanied by evidence
satisfactory to the Minister showing cause why the
security should be discharged; or
(b) on the Minister’s own initiative, if the Minister
considers it appropriate to do so.

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s. 126

(8) Without limiting the power of the Minister in subsection (7), a

security given under this section for the purposes of
section 52(1), 60(1), 70F(1) or 84A(1) that is not in suit is
discharged by operation of this section on the expiry of one year
after the surrender, forfeiture or expiry of the mining tenement
in respect of which the security was given.
[Section 126 amended by No. 100 of 1985 s. 96; No. 37 of 1993
s. 10(2); No. 17 of 1999 s. 19; No. 39 of 2004 s. 41.]

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Part VIII Administration of justice

s. 127

Part VIII — Administration of justice

127. Establishment of wardens’ courts
(1) The Governor may, by Order in Council —
(a) establish wardens’ courts at such places in the State as
he thinks necessary;
(b) assign to any warden’s court such mineral field or
district thereof, as he thinks fit;
(c) alter the place at which a warden’s court is established;
(d) discontinue the holding of a warden’s court at any place;
(e) cancel the assignment of a mineral field or district
thereof to a warden’s court and assign it to another
warden’s court.
(2) When the holding of a warden’s court is discontinued, or any
mineral field or district thereof is no longer assigned to that
court, all proceedings pending in that court and all the records
thereof, or such of the proceedings and such of the records as
relate to the mineral field or district thereof, as the case requires,
shall be transferred to and be continued in such other warden’s
court as the Governor by Order in Council directs.
[Section 127 amended by No. 100 of 1985 s. 97; No. 59 of 2004
s. 116.]

128. Warden’s court to be court of record

Each warden’s court shall be a court of record, and shall have an
official seal which shall be judicially noticed.

129. Signing of process

All summonses, judgment orders, warrants and other process
issued out of a warden’s court shall be signed by the warden or
the mining registrar.

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s. 130

130. Times for holding warden’s court

A warden’s court may be held at such times as the warden, from
time to time, appoints.
[Section 130 amended by No. 39 of 2004 s. 68.]

131. Power of warden to act in absence of warden usually

presiding
Where the warden who usually presides in a warden’s court is
for any reason unable to do so, any other warden may act in his
place and while so acting has all the powers, duties and
authorities of the warden for whom he is acting.
[Section 131 amended by No. 100 of 1985 s. 98; No. 39 of 2004
s. 69.]

132. Jurisdiction of warden’s court

(1) A warden’s court has jurisdiction to hear and determine all such
actions, suits and other proceedings cognizable by any court of
civil jurisdiction as arise in respect of —
(a) the area, dimensions, or boundaries of mining
tenements;
(b) the title to, and ownership or possession of, mining
tenements or mining products;
(c) water to be used for mining and any questions or
disputes relating thereto;
(d) trespass or encroachment upon, or injuries to, mining
tenements;
(e) specific performance of contracts relating to mining
tenements or mining;
(f) transfers and other dispositions of, and charges upon,
mining tenements;
(g) trusts relating to mining tenements or mining;
(h) partnerships relating to mining tenements or mining, the
existence, formation, and dissolution thereof, the taking

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s. 132

of accounts connected therewith, the contribution of the

partners as between themselves and the determination of
all questions arising between the partners;
(i) contribution by or between persons holding joint or
several interests in mining tenements towards rent or
other expenses in relation thereto;
(j) encroachment or trespass upon, or injury to, land by
reason of mining, whether the land is held under this Act
or otherwise;
(k) encroachments upon, injuries to, and matters affecting
roads, tramways, railroads or other property of whatever
kind constructed, held or occupied under this Act;
(l) the partition, sale, disposal, or division of any mining
property, or the proceeds thereof, held by 2 or more
persons having conflicting interests therein,
and generally all rights claimed in, under or in relation to any
mining tenement or purported mining tenement, or relating to
any matter in respect of which jurisdiction is under any
provision of this Act conferred upon the warden’s court.
(2) Every warden’s court has jurisdiction throughout the State,
including any area that comes within paragraph (b) of the
definition of land in section 8(1), but any action, suit or other
proceeding within the jurisdiction of a warden’s court in respect
of, or in relation to, any mining tenement shall be brought in the
warden’s court for the mineral field or the district thereof
assigned to the court and in which the mining tenement is.
(3) Where a warden’s court is satisfied that any action, suit or other
proceeding pending in the court has been erroneously brought
before the court, or could more conveniently be dealt with in
another warden’s court, the court may, notwithstanding
subsection (2), order the mining registrar of the court —
(a) to transmit a copy of the record of the proceedings to the
mining registrar of such other court; and

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s. 133

(b) to give notice thereof to the parties to the action, suit or

proceeding.
(4) When the mining registrar receives a copy of the record
transmitted to him pursuant to subsection (3) —
(a) he shall appoint a day for the hearing or further hearing
or other consideration of the action, suit or proceeding
so transmitted; and
(b) he shall give notice thereof to the parties thereto,
and the action, suit or proceeding shall be heard or considered
accordingly.
[Section 132 amended by No. 39 of 2004 s. 70 and 85; No. 12 of
2003 s. 10.]

133. Offences to be dealt with by magistrate

A court of summary jurisdiction dealing with an offence under
this Act is to be constituted by a magistrate.
[Section 133 inserted by No. 59 of 2004 s. 114.]

134. Powers of warden’s court

(1) A warden’s court has power to make orders on all matters
within its jurisdiction, for —
(a) the enforcement of contracts;
(b) the awarding of damages or compensation;
(c) the appointment of receivers;
[(d) deleted]
(e) the determination of the area, extent, dimensions or
boundaries of any mining tenement or as to the
respective rights of the owner of the primary tenement
and the special prospecting licence or mining lease for
gold granted in relation to that tenement pursuant to
section 56A, 70 or 85B;

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(f) the declaration or enforcement of any trust relating to

mining tenements or mining operations and the product
thereof;
(g) the declaration of any partnership proved to exist
between any persons, the taking of accounts relating
thereto, the determination of contributions between the
partners therein, and the settlement of all questions
arising in relation thereto;
(h) the dissolution of mining partnerships and the division
of the property thereof between the parties entitled
thereto either by sale, partition or otherwise, as may be
agreed between the parties or as the warden’s court, in
case of dispute, may order;
(i) the partition, sale, disposal, or division of any mining
property, or the proceeds thereof, held by 2 or more
persons having conflicting interests therein;
(j) the cessation or suspension by any party of any mining
operations or works in connection therewith causing or
likely to cause, injury to any other party,
and generally for the determination and settlement of all actions,
claims, questions and disputes properly brought before the
warden’s court, and for the enforcement and carrying out of any
order previously made, and for awarding or apportioning costs
in any such proceedings.
(2) The costs of all proceedings in the warden’s court under this Act
shall be in the discretion of the court and the amount thereof
may be determined by the court or taxed by the warden or the
mining registrar, as the court may direct.
(3) A warden’s court at any stage of any proceedings pending
therein may, of its own motion, or on the application of any
party to those proceedings, order —
(a) the adding, joining, substituting, or striking out of any
party in, to, for or from those proceedings;

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s. 134

(b) any person having the possession, custody, or control of

any minerals or other chattels to which those
proceedings relate, to deposit the minerals or chattels
with such person at such time and place as is specified in
the order pending any further order with respect thereto;
(c) the valuation, sale or other disposal of any such mineral
or such chattels of any person;
(d) the appropriation and delivery of any such minerals or
chattels or any portion or part thereof or proceeds
thereof, to any person in or towards the satisfaction of
any order made against the owner thereof for the
payment of any sum of money;
(e) the seizure of any such minerals or chattels by any
bailiff or other person specified in the order and the
detention thereof pending any further order with respect
thereto;
(f) the cessation or suspension at any time and from time to
time of any mining operations or works, or the carrying
on thereof under the direction or control of some person
appointed by the warden’s court, for such period as
seems necessary to the court;
(g) that any person shall do, or refrain from doing, as the
case may require, any such act or thing upon or in
relation to any mining tenement or property the subject
matter of any proceeding as the court thinks fit;
(h) the measurement or survey of any land or mining
tenement or part thereof, and the making of plans and
drawings thereof by any person duly qualified for the
particular purpose;
(i) the inspection of any land, mine or works by any
specified person, and the taking of samples of any
mineral or that a report thereon be made to the warden’s
court by any specified person;
(j) the taking of accounts by any specified person in
relation to any mining partnership or to the respective

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shares or interests of any person interested in any mining

property, mining tenement or mineral;
(k) the payment to any person or into court of any sum of
money, or the giving of security therefor, for or towards
the expenses of carrying out or giving effect to any such
order, or for the payment of costs,
and any such order may be made upon such terms or conditions
as to costs, compensation, security or otherwise, as the court
thinks fit.
(4) Without affecting the exercise by the court of its other powers,
the power conferred by subsection (3)(g) may be exercised by
the court of its own motion or on the application of any person
prior to the commencement of an action or other proceeding in
the court, if the court is satisfied that the applicant has sufficient
grounds for making the application.
(5) Subject to this Act and without affecting the jurisdiction of a
warden’s court, a warden’s court has and may exercise in
relation to all matters relating to any civil proceeding under this
Act the like powers and authorities as are conferred upon the
Supreme Court.
(6) In all respects, except as expressly provided by or under this
Act, the practice and procedure of a warden’s court as a court of
civil jurisdiction shall be the same as the practice and procedure
of the Magistrates Court in like matters.
[Section 134 amended by No. 100 of 1985 s. 99; No. 37 of 1993
s. 12(2); No. 39 of 2004 s. 71 and 85; No. 59 of 2004 s. 116.]

135. Summary determination by warden by consent

(1) Upon the request in writing of all parties to a dispute relating to
a matter within the jurisdiction of a warden’s court, the
warden’s court may hear and determine the question in dispute
forthwith or at any time or place which it may appoint without
requiring any formal proceedings to be taken.

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(2) An order made by the warden’s court in a case to which

subsection (1) refers has the same force and effect as if made
upon formal proceedings in the court, and the order is final and
conclusive, and not subject to appeal.
(3) The warden’s court shall keep a record, in a register kept for the
purpose, of every matter determined under this section by it and
of its decision thereon.
[Section 135 amended by No. 100 of 1985 s. 100; No. 39 of
2004 s. 72.]

136. Practice and procedure in warden’s court

(1) Subject to this Act the practice and procedure of a warden’s
court shall be governed by the rules of court made by the
Governor and until provision is made by rules of court, or where
no provision, or insufficient provision is made by this Act or the
rules of court in relation to any act, matter or thing, the rules of
court of the Magistrates Court, for the time being in force, so far
as applicable, apply to the warden’s court, but without limiting
the jurisdiction conferred by this Act on a warden’s court.
(2) The rules of court may provide in particular that the appropriate
provisions of the Magistrates Court (Civil Proceedings)
Act 2004, with such modifications as may be necessary or
desirable and specified in the rules of court, apply in respect of
judgments and orders of the warden’s court.
(3) The rules of court may provide for documents to be lodged with
or issued by a warden’s court, or served, in an electronic form.
[Section 136 amended by No. 105 of 1986 s. 21; No. 59 of 2004
s. 116; No. 12 of 2010 s. 41.]
137. Records of evidence
(1) A warden’s court must ensure that evidence given in
proceedings before it is recorded in the manner prescribed in the
rules of court or the regulations.
[(2), (3) deleted]

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(4) Any party to any proceedings in which evidence has been

recorded in accordance with this section, is entitled to obtain a
copy of that evidence in the prescribed form upon payment of
the prescribed fee.
(5) Each order and decision of a warden’s court, and in any
contested proceeding the reasons for the order made or decision
given, shall be reduced to writing, and signed by the warden
presiding in the court that made the order or gave the decision.
(6) Any person may obtain a copy of the order or decision referred
to in subsection (5) upon payment of the prescribed fee.
[Section 137 amended by No. 100 of 1985 s. 101; No. 39 of
2004 s. 73.]

138. Mode of trial

(1) The hearing of all proceedings in a warden’s court shall be in
open court, at the time and place appointed therefor, and all
evidence shall be taken on oath, for which purpose a warden,
the mining registrar or other person acting as the clerk of the
warden’s court is empowered to administer an oath.
(2) Where a warden’s court, for any reason cannot be held at the
time and place so appointed, the warden or in his place the
mining registrar, may adjourn it to such time and place as the
warden or the mining registrar, as the case may be, appoints.
(3) A warden’s court at any time may adjourn the hearing of any
proceedings in such manner and upon such terms as to costs or
otherwise, as the court thinks fit.
(4) A warden’s court may, of its own motion, at any time during the
hearing of any proceedings in the warden’s court, call any
expert witness to give evidence in relation to any technical
matter arising in the course of those proceedings, but before
doing so it shall give to each party to the proceedings reasonable
notice of its intention so to do.
[Section 138 amended by No. 39 of 2004 s. 74.]

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s. 139

139. Contempt of court

(1) Where a person in or during the course of any proceedings in a
warden’s court insults or threatens the warden or any officer of
the court, or interrupts or obstructs the proceedings of the court,
or in any other manner is guilty of any contempt in the face of
the court, the warden may direct any officer of the court, or any
police officer to take such person into custody and to detain him
until the rising of the court or until further order.
(2) At any time before the rising of the court the warden may direct
such person to be brought before the court, and may impose
upon him a fine not exceeding $1 000 or a sentence of
imprisonment not exceeding 14 days or both the fine and the
imprisonment.
(3) When a person fails to pay any fine imposed under
subsection (2) the warden may order that person to be
imprisoned for a term not exceeding 14 days.
(4) At any time before or after the making of any order under this
section, the warden may accept an apology from the offender
and may discharge the order, if any, previously made and
release the offender.
[Section 139 amended by No. 22 of 1990 s. 38.]

140. Judgments, enforcement of

(1) In this section —
judgment includes an order, direction or decision.
(2) A person to whom money is to be paid under a judgment of a
warden’s court may enforce it by lodging a copy of it, certified
by the mining registrar, and an affidavit stating to what extent it
has not been complied with, with a court of competent
jurisdiction.
(3) If, or to the extent that, a judgment of a warden’s court does not
require the payment of money, a person entitled to the benefit of
the judgment may enforce it by lodging a copy of it, certified by

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s. 142

the mining registrar, and an affidavit stating to what extent it

has not been complied with, with the Magistrates Court.
(4) A judgment that is lodged with another court under
subsection (2) or (3) is to be taken to be a judgment of the other
court and may be enforced accordingly.
(5) For the purposes of Part 5 Division 1 of the Civil Judgments
Enforcement Act 2004, a judgment of a warden’s court for the
delivery by a person of possession of any mining tenement or
minerals to another is to be taken to be a judgment requiring the
person to give possession of real or personal property to the
other person.
[Section 140 inserted by No. 59 of 2004 s. 115.]

[141. Deleted by No. 59 of 2004 s. 115.]

142. Informality and amendment

(1) No misnomer or inaccurate description of any person or place or
any process or document in any proceedings in a warden’s court
under this Act vitiates the process or document or the
proceedings if the person or place is named or described therein
so as to be commonly known.
(2) No proceedings in a warden’s court under this Act shall be
dismissed or vitiated by any informality, but a warden’s court
has power at any time to amend all defects and errors in such
proceedings, whether there is anything in writing to amend or
not.
(3) The power to amend as provided in subsection (2), may be
exercised with or without an order as to costs being made.
(4) Upon due application in that behalf being made, all such
amendments as may be necessary for determining in the existing
proceedings the real question in issue between the parties
thereto shall be allowed.

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(5) Any amendments referred to in subsections (2) and (4) may be

allowed upon such terms and conditions as to an adjournment of
the proceedings or otherwise, as the warden’s court determines.
[Section 142 amended by No. 100 of 1985 s. 102; No. 39 of
2004 s. 75.]

143. Grant of injunction affecting mining tenement to be notified

Where a warden’s court grants any injunction with respect to
any mining tenement, the party to whom the injunction is
granted shall notify forthwith the Director General of Mines of
the fact that the injunction has been granted and of the
particulars thereof, and on receipt of such notification an entry
of the particulars shall be made in the register against the
mining tenement to which the injunction relates.
[Section 143 amended by No. 100 of 1985 s. 103; No. 105 of
1986 s. 22; No. 54 of 1996 s. 19; No. 39 of 2004 s. 85.]

[144, 145. Deleted by No. 39 of 2004 s. 76.]

146. Reservation of questions of law: hearing and determination

(1) A warden’s court may reserve, at any stage of any proceedings
under this Act, any question of law for the opinion of the
Supreme Court thereon.
(2) The question of law shall be submitted to the Supreme Court in
the form of a special case stated by the warden’s court and
transmitted by the court to the Principal Registrar of the
Supreme Court.
(3) The Principal Registrar of the Supreme Court shall set down the
case for consideration by a judge, and shall forthwith notify the
warden’s court of the time and place appointed therefor.
(4) The warden’s court shall give notice of the time when, and the
place where the judge shall consider the case to each of the
parties concerned who is entitled to be heard by the judge.

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(5) The judge, at any stage of the matter, may —

(a) remit the case to the warden’s court for amendment; or
(b) direct that the case be set down for argument before the
Court of Appeal; or
(c) proceed to hear and determine the question so submitted,
and the Court of Appeal or judge, as the case may be, may give
such direction or opinion as to the question so submitted, as the
Court of Appeal or the judge thinks proper.
(6) Every such direction or opinion of the Court of Appeal or the
judge, shall be transmitted by the Principal Registrar of the
Supreme Court to the warden’s court which shall act in
accordance therewith.
(7) When reserving any question of law pursuant to this section or
at any time before acting in accordance with the direction or
opinion of the Court of Appeal or the judge as provided in this
section, the warden’s court, on the application of any party to
the proceedings in relation to which the question of law is to be
or was so submitted, may make such order for —
(a) an injunction; or
(b) the appointment of a receiver; or
(c) the payment of money into court; or
(d) giving security for damages and costs or otherwise,
as it thinks fit and on such terms or conditions as it thinks fit.
[Section 146 amended by No. 100 of 1985 s. 104; No. 39 of
2004 s. 77 and 85; No. 45 of 2004 s. 37.]

147. Appeal to Supreme Court

(1) Except as provided in sections 135(2) and 151, any party
aggrieved by any final judgment, determination or decision of a
warden’s court may appeal therefrom to the Supreme Court.

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s. 148

(2) Every appeal shall be commenced by notice in the prescribed

form, filed in the warden’s court within 21 days after the
judgment, determination or decision appealed against was
given.
(3) The notice of appeal shall be served within the period referred
to in subsection (2) upon the respondent or his solicitor and
shall set forth the grounds upon which the appeal is made.
[(4), (5) deleted]
(6) A notice of appeal filed under this section does not operate as a
stay of proceedings, but the warden’s court, on the application
of any party to the proceedings, may make such order for the
stay of proceedings, for an injunction or for the appointment of
a receiver, and for the giving of security as it thinks necessary in
the circumstances.
(7) When an appeal is withdrawn or abandoned an order staying
proceedings lapses.
[Section 147 amended by No. 39 of 2004 s. 78 and 85.]

148. Procedure on appeal

(1) Where the grounds of appeal include any matter of fact, the
Supreme Court may order, or the parties to the appeal may
agree, that the appeal shall be by way of rehearing before a
judge.
(2) Except as provided in subsection (1), every appeal shall be
heard and determined upon the proceedings in the warden’s
court.
(3) Upon the hearing of an appeal the notes, depositions, minutes of
evidence, exhibits and other documents taken or filed in the
warden’s court or copies thereof certified to be correct by the
warden or mining registrar, may be used by the Supreme Court
or any party to the appeal.

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(4) Upon notice in the prescribed form being filed in the warden’s
court pursuant to section 147(2), the warden’s court shall cause
a copy of the judgment, determination or decision appealed
from together with the documents and things referred to in
subsection (3) required by the appellant for the purpose of the
appeal to be transmitted to the Principal Registrar of the
Supreme Court not later than 21 days after —
(a) in the case of original documents or things, the date of
being so requested in writing by the appellant; but
(b) in the case of a copy document required to be certified to
be correct by the warden or mining registrar and not
compiled at the time of such a request in writing by the
appellant, the date on which the copy was so compiled
and certified,
and shall cause the appellant to be notified of the date on which
the request was complied with.
(5) The appellant shall, within 21 days after filing notice of appeal,
apply to set down the appeal for hearing by filing in the Central
Office of the Supreme Court at Perth —
(a) a copy of the notice of appeal; and
(b) a copy of any request made for the transmission of
documents or things pursuant to this section.
(5a) Upon receipt by the Principal Registrar of the Supreme Court of
a copy of the judgment, determination or decision appealed
from, certified as correct by the warden, and of the documents
or things and copies so requested, certified as correct by the
mining registrar or the warden, the appeal shall be set down for
hearing.
(6) The Principal Registrar of the Supreme Court shall notify
forthwith the result of each appeal to the warden’s court and the
warden’s court —
(a) shall cause the result of the appeal to be recorded; and

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s. 149

(b) shall give effect where necessary to any order or

direction made or given by the appellate court thereon.
[Section 148 amended by No. 100 of 1985 s. 105; No. 39 of
2004 s. 79 and 85.]

149. Power of Supreme Court on appeal

Upon the hearing of any appeal under this Act the Supreme
Court —
(a) may allow for any reason that it thinks sufficient, an
appellant on such terms as to costs, postponement, or
otherwise as it thinks fit, to rely upon a ground of appeal
not set forth in the notice of appeal; and
(b) may confirm the order, determination or decision in
respect of which the appeal is made and may dismiss the
appeal; and
(c) may reverse, modify or vary such order, determination,
or decision and may make such order in lieu thereof as it
may think just; and
(d) may direct any issue to be tried in such manner, and at
such time and place as it may think fit; and
(e) may remit any case to the warden’s court to be reheard;
and
(f) may make any order or give any direction consequential
upon or necessitated by the order that it may think
necessary; and
(g) may make such order as to costs of the appeal or of the
proceedings in the warden’s court to which the appeal
relates, as it thinks fit,
and may impose in respect of any order made pursuant to this
section such terms and conditions as it thinks just.

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s. 150

150. Withdrawal or failure to prosecute appeal

Where an appellant withdraws his appeal or fails to prosecute it
as provided by this Act, the respondent may apply to a judge on
summons for the dismissal of the appeal and the judge —
(a) may dismiss the appeal; or
(b) may, on the application of the appellant, permit him to
prosecute the appeal within such period and on such
terms and conditions as the judge thinks fit,
and in either case the judge may make an order for the payment
by the appellant of the costs of and incidental to the summons.

151. Limitation of right of appeal

There shall be no right of appeal under this Part where at or
before the hearing of any proceedings in the warden’s court the
parties thereto have agreed by a memorandum in writing lodged
in the warden’s office, that the decision of the warden’s court
therein shall be final.
[Section 151 amended by No. 58 of 1994 s. 49; No. 39 of 2004
s. 80.]

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s. 152

Part IX — Miscellaneous and regulations

152. Police to assist warden
All members of the Police Force of the State shall, when
required by the warden so to do, act in aid of the warden in the
exercise and discharge by him of his powers, functions and
duties under this Act.

153. Minor capable of being sued and of suing

Any person who has not attained the age of 18 years may sue
and be sued in a warden’s court in respect of any matter within
the jurisdiction of that court as if he were of full age and any
mining tenement held by him may be taken in execution and
sold under legal process.

154. General penalty

(1) A person who acts in contravention of or fails to comply in any
respect with any provision of this Act commits an offence
against this Act.
(2) A person who commits an offence against this Act for which no
penalty is provided elsewhere than in this section is liable to a
fine of $20 000 and if the offence is a continuing one, to a fine
not exceeding $2 000 for every day or part of a day during
which the offence has continued.
(3) Where a body corporate is convicted of an offence against this
Act, every director and every other officer of the body corporate
concerned in the management thereof is guilty of the offence if
it is proved that the act or omission that constituted the offence
took place with his authority, permission or consent.
[Section 154 amended by No. 100 of 1985 s. 106; No. 22 of
1990 s. 38; No. 78 of 1995 s. 147; No. 15 of 2002 s. 28; No. 51
of 2012 s. 35.]

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s. 155

155. Offence of mining without authority

(1) Subject to subsection (2) a person shall not carry on mining on
any land unless he is duly authorised under this or any other Act
to do so.
Penalty:
(a) for an individual — a fine of $150 000 and, if the
offence is a continuing one, a further fine of $15 000
for each day or part of a day during which the offence
has continued;
(b) for a body corporate — a fine of $300 000 and, if the
offence is a continuing one, a further fine of $30 000
for each day or part of a day during which the offence
has continued.
(2) Subsection (1) does not apply in respect of mining operations
carried on on any private land with the consent of the owner of
the land if he is the owner of the mineral being mined on the
land.
(3) A person who is convicted of an offence under this section is
not thereby relieved from any other obligation or liability that
he may have incurred by reason of having carried on
unauthorised mining.
(4) A person who owns minerals in their natural state may take
proceedings in any court of competent jurisdiction for the
recovery of those minerals or their value from any person who
unlawfully takes, removes or mines the minerals.
(5) Where a person is convicted of an offence against subsection (1)
the court may, in addition to imposing the penalty under this
Act in relation to the offence, order the offender to rehabilitate
the land to the satisfaction of the Minister within the time
specified in the order.
(6) A person who fails to carry out an order made under
subsection (5) commits an offence and is liable to a penalty of
$500 and in addition the court may require the offender to pay

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s. 155A

the costs of rehabilitating the land to the satisfaction of the

Minister.
(7) Any sum specified in an order under subsection (6) constitutes a
debt due to the crown and may be recovered in any court of
competent jurisdiction.
[Section 155 amended by No. 100 of 1985 s. 107; No. 105 of
1986 s. 23; No. 22 of 1990 s. 38; No. 78 of 1995 s. 147; No. 15
of 2002 s. 28; No. 51 of 2012 s. 36.]

155A. Aerial survey work

Nothing in this Act has the effect of restricting or preventing the
obtaining of data in respect of any land by means of aerial
surveys.
[Section 155A inserted by No. 58 of 1994 s. 50.]

156. Offences
(1) A person who —
(a) takes or removes from the mining tenement of any other
person any mineral or other mining product without the
authority of that other person; or
(b) assaults, obstructs, resists or insults —
(i) any warden or any officer of the Department; or
(ii) any other person duly authorised under this Act
to perform any act or duty, in the course of
performance of that act or duty,
or who when required to do so by him fails to give to
any such warden, officer or person information as to his
name, address, or authorisation for being on any land or
who gives false or misleading information; or
(c) when lawfully evicted or removed under this Act from
any mining tenement, re-enters the mining tenement or
retakes possession thereof; or

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(d) prevents, resists or obstructs the taking or diverting of

any water or the doing of any other act by any person
acting in pursuance of an order of the warden’s court,
commits an offence against this Act.
(2) Subsection (1)(a) does not apply to a person who removes a
mineral in the exercise of the authorisation conferred by
section 40D(1)(c).
[Section 156 amended by No. 122 of 1982 s. 28; No. 100 of
1985 s. 108; No. 63 of 2000 s. 6; No. 39 of 2004 s. 81; No. 51 of
2012 s. 37.]

157. Obstruction of persons authorised to mine under this Act

A person shall not, without lawful excuse, obstruct or hinder the
holder of a mining tenement in the reasonable execution of any
right conferred on him thereby.
Penalty: $10 000.
[Section 157 amended by No. 22 of 1990 s. 38; No. 15 of 2002
s. 28.]

158. Power to require information as to right to mine

(1) Where there is reason to suspect that a person is mining on land
without authority under this Act a member of the Police Force
or a person authorised in that behalf by the Director General of
Mines may —
(a) require the person to produce any document or other
evidence relating to the entitlement of that person to
mine on that land; and
(b) require the person to give an explanation concerning the
mining on that land.
(2) A person who —
(a) upon request made under subsection (1) refuses or fails
to comply with the request; or

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s. 159

(b) obstructs or hinders the person making the request; or

(c) knowingly misleads or deceives the person making the
request,
commits an offence.
Penalty: $10 000.
(3) Where a person who is authorised to make a request under
subsection (1) is not satisfied with any evidence or explanation
given to him in pursuance of a request made under that
subsection he may orally or by notice in writing direct the
person to whom the request is made to cease mining on the land
referred to in the direction.
(4) A person who refuses or neglects to comply with a request
under subsection (3) commits an offence.
Penalty: $10 000.
(5) Where the person to whom a request is made under
subsection (3) refuses or neglects to comply with the direction
given under that subsection, the person giving the direction may
use such force as is necessary to remove the person from the
land and stop and remove any machinery being used for the
purpose of mining on the land using such assistance as is
necessary for that purpose.
(6) A person who commits an offence under subsection (2) or (4)
may be arrested without a warrant.
[Section 158 inserted by No. 105 of 1986 s. 24; amended by
No. 22 of 1990 s. 38.]

159. Disputes between licensees and other persons

(1) Where a dispute arises between a licensee or permittee under
the Petroleum and Geothermal Energy Resources Act 1967 and
any person duly authorised to mine or search for minerals by
virtue of a mining tenement or other authority under this Act or
the repealed Act concerning any operations carried out or
proposed to be carried out by the licensee or permittee or such

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s. 160

person on any land within the boundaries of the area in respect

of which the licence or permit was granted to the licensee or
permittee, the licensee or the permittee or such person or both of
them may refer the matter to the warden for inquiry and report,
and the warden shall, as soon as practicable after such reference,
inquire into the dispute and report thereon to the Minister.
(2) Upon receipt of the warden’s report the Minister may make
such order and give such directions to the licensee or the
permittee or such person or to both of them as in the public
interest and in the circumstances of the case may seem to him to
be just and equitable and by such order may direct the payment
by the licensee or the permittee or such person or both of them
of any costs and expenses incidental to the conduct of the
inquiry.
(3) If the licensee or the permittee or such person fails or neglects
to comply with any such order or directions, the Minister may
cancel the licence, the permit or the mining tenement or other
authority (if any) held by such person.
(4) In this section —
(a) a reference to a licence or permit includes a reference to
a drilling reservation or lease; and
(b) a reference to a licensee or permittee includes a
reference to the registered holder of a drilling
reservation or lease.
[Section 159 amended by No. 35 of 2007 s. 100(5) and (6).]

160. Saving of civil remedies

(1) Subject to section 40G, nothing in this Act shall prejudice,
abridge or take away any right of action that any person may
have in respect of any act or omission of another unless that act
or omission occurs in pursuance of any authority lawfully given
under this Act.

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s. 160AA

(2) The recovery of any penalty under this Act does not affect any
such right of action as is referred to in subsection (1).
[Section 160 amended by No. 63 of 2000 s. 7; No. 51 of 2012
s. 38.]

160AA. Authority to perform certain functions of LAA Minister

under this Act
(1) A function that the LAA Minister has under a provision of this
Act listed in the Table may be performed by a public service
officer of the Department, as defined in the Land Administration
Act 1997 section 3(1), who is authorised in writing by the
LAA Minister to do so.
(2) Nothing in this section limits the ability of the LAA Minister to
otherwise perform a function through an officer or agent.
Table
s. 24(3)(b), (5)(b), as the s. 25(2)(b), (3)(b)
responsible Minister
under s. 24(8)

s. 26(2)(a) s. 55(1), (3), (4)

s. 69C(1), (3), (4) s. 94J

[Section 160AA inserted by No. 8 of 2010 s. 19.]

160A. Immunity of Minister, wardens and officials

No liability shall attach to the Minister, a warden or any official
of the Department, any authorised person under this Act or any
person acting with the authority or on the direction of the
Minister, a warden or the Director General of Mines, or the
LAA Minister in good faith and in the exercise or purported
exercise of a power or in the discharge or purported discharge of
a duty under this Act.

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s. 160B

[Section 160A inserted by No. 105 of 1986 s. 25; amended by

No. 42 of 1999 s. 8; No. 8 of 2010 s. 20.]

160B. Time limit for prosecution action

A prosecution for an offence against this Act must be
commenced within 3 years after the day on which the offence is
alleged to have been committed.
[Section 160B inserted by No. 51 of 2012 s. 39.]

160C. No right of appeal from certain decisions of warden, mining

registrar or Minister
No appeal lies under this Act —
(a) except as provided in Part IV, in respect of a decision,
order or recommendation of a warden or mining
registrar on —
(i) an application for a mining tenement; or
(ii) an application for forfeiture of a mining
tenement; or
(iii) an application for exemption from expenditure or
other conditions;
or
(b) in respect of a decision or order of the Minister on —
(i) an application for a mining tenement; or
(ii) an application for forfeiture of a mining
tenement; or
(iii) an application for exemption from expenditure or
other conditions;
or
(c) in respect of a determination of a warden or mining
registrar if a provision of this Act provides that the
determination is final and conclusive and not subject to
appeal.

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s. 160D

[Section 160C inserted by No. 39 of 2004 s. 82.]

160D. Persons before whom affidavit may be sworn

An affidavit to be used in a warden’s court or before a warden
or a mining registrar may be sworn before —
(a) any person who, under the Oaths, Affidavits and
Statutory Declarations Act 2005, is an authorised
witness for an affidavit; or
(b) a warden; or
[(c)-(e) deleted]
(f) a prescribed official.
[Section 160D inserted by No. 39 of 2004 s. 82; amended by
No. 24 of 2005 s. 62.]

161. Evidentiary provisions

(1) In any proceedings for an offence against this Act, an averment
in the charge that any land referred to therein is land —
(a) open for mining under this Act;
(b) exempt from mining operations in pursuance of this Act;
(c) to which section 23, 24, 24A, 25, or 26 applies,
shall be deemed to be proved in the absence of evidence to the
contrary.
(2) In any proceedings a document purporting to be a mining
tenement shall be accepted as such in the absence of evidence to
the contrary.
(3) In any proceedings a document purporting to be certified by a
person authorised for that purpose by the Director General of
Mines as a correct copy of an extract from a register kept under
this Act is, without proof of that person’s signature, evidence of
the matter contained in the document.
(4) In any proceedings —

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s. 162A

(a) a document purporting to be a copy of a judgment, order

or decision of a warden or a warden’s court, or of a
document filed or lodged in proceedings under this Act,
and purporting to be certified by —
(i) a warden; or
(ii) a mining registrar; or
(iii) a prescribed official,
to be such a copy, is admissible as a true copy of the
judgment, order, decision or document; and
(b) judicial notice is to be taken of the signature of a person
referred to in paragraph (a)(i), (ii) or (iii) on a certificate
under that paragraph.
[Section 161 amended by No. 122 of 1982 s. 29; No. 37 of 1993
s. 23; No. 54 of 1996 s. 21; No. 5 of 1997 s. 41(2); No. 39 of
2004 s. 83; No. 84 of 2004 s. 80.]

162A. Certain things are not personal property for the purposes of
the Personal Property Securities Act 2009 (Commonwealth)
In accordance with the Personal Property Securities Act 2009
(Commonwealth) section 10 the definition of licence
paragraph (d), the following rights, entitlements or authorities
are declared not to be personal property for the purposes of that
Act —
(a) a prospecting licence granted under section 40(1),
56A(6) or 70(6);
(b) an exploration licence granted under section 57(1);
(c) a retention licence granted under section 70B(1);
(d) a mining lease granted under section 71;
(e) a general purpose lease granted under section 86(1);
(f) a miscellaneous licence granted under section 91(1).
[Section 162A inserted by No. 42 of 2011 s. 83.]

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s. 162B

162B. Extension of prescribed period or time

(1) If this Act provides for something to be done within a
prescribed period or a prescribed time, the Minister or a warden
may, in a particular case, extend the period or the time for doing
the thing.
(2) The power in subsection (1) may be exercised whether or not
the prescribed period has ended or the prescribed time has
passed.
[Section 162B inserted by No. 51 of 2012 s. 40.]

162. Regulations
(1) The Governor may make such regulations as are contemplated
by this Act, or as he deems necessary or expedient for the
purposes of this Act and any such regulations may confer upon
a prescribed person or body specified in the regulations a
discretionary authority.
(2) Without limiting the generality of the powers conferred by
subsection (1) those regulations may —
(a) prescribe and regulate the powers, functions and duties
of wardens, mining registrars and of any officer or other
person appointed under this Act or employed or acting
in the administration of this Act;
(aa) authorise an inspector appointed under section 11 —
(i) to enter upon land where mining operations are
carried out for the purpose of inspecting those
mining operations;
(ii) to require any person to provide the inspector
with prescribed information relating to mining
operations;
(iii) to give directions to the holder of a mining
tenement requiring the holder to modify or cease
mining operations in prescribed circumstances;

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(ab) provide for an appeal to the Minister by the holder of a

mining tenement against a direction referred to in
paragraph (aa)(iii) requiring the holder to cease mining
operations;
(b) prescribe and provide for the payment of fees under this
Act and the purposes for which they are to be paid;
(ba) prescribe exemptions from the payment of fees for
certain classes of applications under this Act;
(c) prescribe any forms for the purposes of this Act and
prescribe the manner in which any of those forms are to
be executed;
(ca) prescribe the manner in which fossicking may be carried
out, or prohibit the carrying out of fossicking in
prescribed areas or by prescribed means;
(cb) provide for any matter relating to permits under
section 40E, including without limitation —
(i) the persons or class of persons to whom notice of
the issue of permits is to be given; and
(ii) the operation, duration and surrender of permits;
and
(iii) the maximum number of permits that may be in
force at any time in respect of an exploration
licence; and
(iv) the conditions that may be imposed on permits
and the variation or cancellation of such
conditions; and
(v) the powers of the Minister, in cases of breach of
conditions referred to in section 40E(5) or (6) or
in other prescribed circumstances —
(I) to impose on holders of permits
monetary penalties not exceeding the
prescribed amount; or
(II) to cancel permits; or

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s. 162

(III) to disqualify holders of permits from

again holding or applying for permits
for such period not exceeding the
prescribed period as the Minister thinks
fit;
and
(vi) the procedure to be followed before the exercise
of a power referred to in subparagraph (v); and
(vii) the recovery of penalties referred to in
subparagraph (v)(I); and
(viii) the prohibition of the use of hand tools of a
prescribed kind; and
(ix) the reporting of minerals recovered by the
holders of permits; and
(x) the issuing of guidelines in relation to the
operation of the permit system;
(d) prescribe the manner in which land is to be marked out
for the purposes of making applications for mining
tenements;
(ea) provide for matters relating to the lodgment, in
electronic form, of mining tenement documents;
(eb) provide for the time at which a mining tenement
document is to be taken to have been lodged;
(e) prescribe the rent payable in respect of any mining
tenement or class of mining tenement, and make
provision for the exercise of a discretion by the Minister
as to the basis upon which a rent shall be calculated;
(f) prescribe the times at which rent and royalties shall be
paid under this Act and the manner in which they are to
be paid;
(g) prescribe the manner in which, and the terms and
conditions subject to which, mining tenements may be
surrendered;

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(ga) prescribe grounds for extension for the purposes of

section 45(1a) and 61(2);
[(gb) deleted]
(h) prescribe the expenditure conditions subject to which a
mining tenement or any class of mining tenement shall
be held, and the conditions on which exemption
therefrom may be applied for, and granted;
(i) prescribe the persons or class of persons on whom
copies of applications for mining tenements or any other
documents relating thereto are to be served;
(j) provide for the compilation of mining statistics and for
that purpose require holders of mining tenements to
supply the Director General of Mines with such
particulars as may be prescribed;
(k) provide for the furnishing of returns, and the keeping
and furnishing of records, for the purposes and by the
persons specified in the regulations;
(ka) provide for any matter relating to the surveying of
mining tenements, including —
(i) requiring that surveying to be carried out by a
surveyor (in this paragraph referred to as the
approved surveyor) approved by the Minister or
an officer of the Department in accordance with
any specified written law, any instructions given
by an officer of the Department, a warden or the
Minister or any direction published by the
Department, or any 2 or all 3 of the foregoing;
(ii) the course to be adopted by the approved
surveyor if he finds that a mining tenement or
application therefor is not marked out in the
prescribed shape referred to in section 105;
(iii) the hearing by the warden of disputes arising
during the course of that surveying concerning
the positions of pegs or otherwise, or of

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s. 162

objections to the survey of a mining tenement or

of land the subject of an application for a mining
tenement, and the determination by the Minister
of those disputes or objections;
(iv) the correction of errors or omissions in that
surveying and the completion of surveying that is
uncompleted;
(v) the lodging of reports relating to surveys;
(vi) the entry on land by officers of the Department
for the purpose of inspecting surveys;
(l) provide for any matter relating to any register to be kept
by a warden, a mining registrar or other prescribed
persons;
(m) provide for such information to be supplied to the
Director General of Mines by holders of mining
tenements in respect of boring operations for water or
water obtained while boring for other purposes as may
be prescribed;
(n) provide for the protection of land upon which mining
operations are conducted and require the rehabilitation
to the satisfaction of the Minister of land disturbed by
the mining operations;
(o) prescribe the covenants and conditions that may be
included in mining tenements and the exemption from
the performance of those covenants or the operation of
those conditions;
[(p) deleted]
(q) prescribe the mode of assigning, transferring,
sub-letting, encumbrancing or otherwise dealing with
mining tenements, the enforcement or discharge of any
encumbrance thereon, the rights and obligations of an
encumbrancer and an encumbrancee thereof or of an
assignee, transferee or sub-lessee thereof; and the order
of priority of 2 or more encumbrances;

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s. 162

(qa) prescribe the mode of dealing with a mining tenement

upon the death of the holder of the mining tenement or
in other prescribed circumstances and provide for any
related matter;
(r) regulate the practice and procedure in warden’s courts,
the sittings of those courts, the duties of the officers
thereof; the fees and costs of the proceedings therein
fixed by a costs determination (as defined in the Legal
Profession Act 2008 section 252) and of appeals
therefrom and the allowances to witnesses in those
courts;
(ra) without limiting paragraph (a), prescribe and regulate
the powers, functions and duties of the warden in
proceedings in respect of an application or objection
under Part IV (Part IV proceedings), including powers
to order costs and require security for costs;
(rb) prescribe and regulate the practice and procedure to be
followed in Part IV proceedings;
(rca) provide for documents for use in Part IV proceedings to
be lodged with or issued by the warden, or served, in
electronic form;
(rc) prescribe a scale of costs for Part IV proceedings and
provide for the taxation and recovery of costs in those
proceedings;
(s) regulate matters in connection with partnerships in
mining;
(t) provide for a refund of fees paid under this Act;
(u) regulate the way in which drill cores obtained from
mining tenements are to be stored and dealt with and
impose restrictions on the disposal or destruction of
them;
(v) provide for the reporting of prescribed information as to
aerial photography for mineral exploration and provide
for the keeping of a register of such information;

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s. 162

(w) provide for the publication of guidelines in relation to

mineral exploration reports referred to in section 115A;
(x) authorise and regulate the copying, storage, release,
publication and dissemination of information contained
in any application or report under this Act or any other
information supplied to the Minister, a warden or any
official of the Department under this Act;
(y) prescribe and regulate the responsibilities of the holders
of mining tenements as to authorising, or obtaining
authorisation for, the release of information contained in
applications or reports under this Act.

(2a) Subsection (2)(x) applies to information irrespective of when —

(a) any application or report containing the information was
made or given; or
(b) the information was supplied to the Minister, a warden
or an official,
as the case may be.
(3A) In subsection (2) —
mining tenement document means —
(a) an application for a mining tenement; or
(b) an agreement, claim, notice of objection, security, or any
other document, in respect of a mining tenement.
(3) The regulations may prescribe a fine not exceeding $10 000 for
an offence against any regulation and if the offence is a
continuing one, a fine not exceeding $1 000 for each day or part
thereof during which the offence has continued.
(4) Regulations made under subsection (2)(ra) may apply the
provisions of sections 142 and 146 with such modifications as
are prescribed.

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s. 163

(5) A regulation may require any matter or thing to be verified by

statutory declaration.
[Section 162 amended by No. 52 of 1983 s. 6; No. 100 of 1985
s. 109; No. 105 of 1986 s. 26; No. 65 of 1987 s. 40; No. 22 of
1990 s. 38; No. 37 of 1993 s. 24 and 28(1); No. 58 of 1994
s. 51; No. 54 of 1996 s. 22; No. 49 of 2000 s. 86; No. 63 of 2000
s. 8; No. 15 of 2002 s. 28; No. 65 of 2003 s. 52; No. 39 of 2004
s. 84 and 100; No. 21 of 2008 s. 681; No. 12 of 2010 s. 42;
No. 51 of 2012 s. 41.]

163. Review of Act

(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as amended by the Mining Amendment
Act 2004 within 6 months after the fifth anniversary of the day
on which that Act received the Royal Assent.
(2) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, is to cause the
report to be laid before each House of Parliament.
[Section 163 inserted by No. 39 of 2004 s. 101.]
[First Schedule omitted under the Reprints Act 1984 s. 7(4)(e).]

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 Mining Act 1978
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cl. 1

Second Schedule — Transitional provisions

[s. 4]
[Heading inserted by No. 69 of 1981 s. 29; amended by No. 19 of
2010 s. 4.]

Division 1 — Provisions relating to transition from repealed Act

[Heading inserted by No. 51 of 2012 s. 42.]

1. Continuation of certain temporary reserves and rights of

occupancy
(1) Any land that is temporarily reserved from occupation under the
repealed Act immediately before the commencing date shall continue
to be so reserved on and after that date until the reservation of the land
or portion thereof is cancelled by the Minister by instrument in
writing under his hand, and while the land is so reserved (whether or
not any authority to occupy, or right of occupancy of, the land granted
under the repealed Act and in force in relation to the land immediately
before the commencing date is in force by virtue of subclause (2)) a
mining tenement shall not be granted under this Act in respect of the
land without the consent in writing of the Minister.
(2) Any authority to occupy or right of occupancy of any land to which
subclause (1) refers granted pursuant to the repealed Act and in force
in relation to such land immediately before the commencing date,
shall continue, subject to the terms and conditions upon which the
authority or right was granted, to be in force on and after that date
until —
(a) the date on which such authority or right would have expired
under the terms and conditions upon which it was granted; or
(b) 6 months after the commencing date,
whichever date is the later.
(3) At any time before an authority to occupy or right of occupancy
expires as provided in subclause (2) the holder thereof may, if he has
not then failed to comply with the terms and conditions upon which
the authority or right was granted, mark out in accordance with this
Act, and/or make application to the Minister for, a prospecting licence

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cl. 2

or exploration licence over the land or any portion thereof to which

the authority or right relates.
(4) Notwithstanding anything in this Act, the Minister shall, on receiving
an application made under subclause (3) or (5) and on being satisfied
that the applicant has complied with the terms and conditions referred
to in subclause (3), grant that application on such terms and
conditions as he thinks fit.
(5) An application for the renewal of an authority to occupy or right of
occupancy of any land —
(a) to which subclause (1) refers; and
(b) which expired before the commencing date,
which application was pending immediately before the commencing
date, shall be dealt with as if the repealed Act had not been repealed
and the holder of any such authority to occupy or right of occupancy
renewed as a result of that application may while that renewed
authority or right is in force mark out in accordance with this Act the
land the subject of that renewed authority or right, or apply to the
Minister for a prospecting licence or exploration licence, or both so
mark out and apply, in respect of the whole or part of the land to
which that renewed authority or right relates.
(6) Section 105A does not apply and never has applied to an application
for a mining tenement under this Act in respect of any land —
(a) which continues or continued to be temporarily reserved from
occupation by virtue of subclause (1); and
(b) in respect of which no authority to occupy or right of
occupancy is or was in force,

at the time when that application is or was made.

[Clause 1 inserted by No. 69 of 1981 s. 29; amended by No. 122 of
1982 s. 30(a).]

2. Certain gold mining leases, coal mining leases and mineral leases
to become mining leases

(1) Every gold mining lease, coal mining lease, or mineral lease granted
under section 42, 48 or 61 or pursuant to section 153 of the repealed
Act and in force immediately before the commencing date, shall be

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cl. 2

deemed to be a mining lease granted under this Act, and shall, subject
to this Act and, insofar as those terms and conditions and
encumbrances are not inconsistent with this Act, subject to —
(a) the terms and conditions on which it was granted under the
repealed Act (other than a term or condition restricting the
scope of the gold mining lease, coal mining lease or mineral
lease concerned to certain minerals) and which were in force
immediately before the commencing date; and
(b) any encumbrances to which it was subject under the repealed
Act and which were in force immediately before the
commencing date,
remain in force for the unexpired period for which it was granted or
renewed under the repealed Act, and shall then expire, and while any
such lease is in force the holder thereof has the right in priority to any
other person to mark out in accordance with this Act and/or apply for
a mining tenement under and in accordance with this Act in respect of
the land or any part thereof which is the subject of such lease.
(2) Every gold mining lease, coal mining lease or mineral lease granted
under the repealed Act by virtue of clause 8(1) as a result of an
application referred to in that subclause shall be deemed to be a
mining lease granted under this Act and shall, subject to this Act and,
insofar as those terms and conditions and encumbrances are not
inconsistent with this Act, subject to —
(a) the terms and conditions under which it was so granted (other
than a term or condition restricting the scope of that gold
mining lease, coal mining lease or mineral lease to certain
minerals); and
(b) any encumbrances to which it is subject under the repealed
Act,

remain in force for the period for which it was so granted under the
repealed Act and shall then expire, and while it is in force the holder
thereof has the right in priority to any other person to mark out in
accordance with this Act and/or apply for a mining tenement under
and in accordance with this Act in respect of the land or any part
thereof which is the subject of that gold mining lease, coal mining
lease or mineral lease.

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cl. 3

(3) The holder of 2 or more gold mining leases, coal mining leases or
mineral leases which are contiguous or of any combination thereof,
which are deemed by virtue of subclause (1) or (2) to be mining leases
granted under this Act, has notwithstanding anything in that subclause
the right under that subclause in priority to any other person to mark
out in accordance with this Act and/or apply for one mining tenement
under and in accordance with this Act in respect of all the land or any
part thereof which is the subject of those gold mining leases, coal
mining leases or mineral leases or of that combination, as the case
requires.
[Clause 2 inserted by No. 69 of 1981 s. 29; amended by No. 100 of
1985 s. 110(a); amended in Gazette 18 Dec 1981 p. 5274;
16 Jul 1982 p. 2829.]

3. Rights conferred on holders of certain mineral claims and

dredging claims
(1) A mineral claim or dredging claim granted under the repealed Act and
in force immediately before the commencing date shall remain in
force, subject to that Act and as though that Act had not been
repealed, for a period of 2 years after that date, and shall then expire.
(2) The holder of any such mineral claim or any such dredging claim as is
referred to in subclause (1) may at any time while the claim is in force
mark out as and/or make application under this Act for a prospecting
licence or an exploration licence or a mining lease in respect of a
single area that is constituted by all the land the subject of each
mineral claim or mineral claims or dredging claim or dredging claims,
and such licence or such lease shall, subject to this Act, be granted to
him.
(3) Notwithstanding anything in subclause (1), if an application for a
prospecting licence, exploration licence or mining lease made under
subclause (2) is pending immediately before the mineral claim or
dredging claim held by the applicant expires under subclause (1), that
mineral claim or dredging claim continues in force, subject to the
repealed Act and as though that Act had not been repealed, until that
application is finally disposed of under this Act.
[Clause 3 inserted by No. 69 of 1981 s. 29; amended by No. 122 of
1982 s. 30(b).]

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cl. 4

4. Rights conferred on holders of certain miners’ homestead leases,

residential leases, residence areas, business areas and garden
areas
Every miner’s homestead lease, residential lease, residence area,
business area or garden area granted under the repealed Act and in
force immediately before the commencing date shall remain in force
subject to that Act, and as though that Act had not been repealed, for a
period of 5 years after that date and shall then expire, but if within
that period an application is made therefor to the Minister for Mines
and on the Minister for Mines being satisfied that the applicant is the
due holder of a miner’s homestead lease, residential lease, residence
area, business area or garden area, as the case may be, and that such
mining tenement is not at the date of the application liable to
forfeiture under the repealed Act, and on the Minister for Mines
issuing a certificate to that effect to the Minister for Lands, the
Minister for Lands may grant under the Land Act 1933 to the
applicant a fee simple or lease of the whole or any portion of the land
comprising the miner’s homestead lease, residential lease, residence
area, business area, or garden area, as the case may be, as the Minister
for Lands determines and on such terms and conditions as he
determines, but he shall not grant a fee simple of such land unless in
his opinion the land is substantially developed and improved; and, to
give full effect to the object of this clause and the powers hereby
conferred, the Land Act 1933 shall be read and construed with such
modifications as are necessary and, without limiting the generality
thereof, shall be read and construed with the following particular
modifications —
(a) the substitution for subsection (2) of section 45A of the
following subsection —
“
(2) Upon the Minister for Lands signifying
approval pursuant to subsection (1) in
respect of any such land the same may,
subject to this section, be sold or leased.
”;
(b) the deletion of the proviso to section 116;
(c) the deletion of section 135;

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(d) a power to dispose of land under Division (1) of Part V of the

Land Act 1933 notwithstanding the land has not been
declared open for selection under that Part.
[Clause 4 inserted by No. 69 of 1981 s. 29; amended by No. 126 of
1987 s. 124.]

5. Continuation of mining tenements held by virtue of miners’ rights

A person holding a mining tenement immediately before the
commencing date by virtue of the provisions of the repealed Act
relating to miners’ rights as then in force may continue to hold the
mining tenement under and subject to this Schedule notwithstanding
the repeal of those provisions.
[Clause 5 inserted by No. 69 of 1981 s. 29.]

6. Temporary continuation of certain machinery areas, tailings

areas, quarrying areas and water rights
(1) Every machinery area, tailings area, quarrying area or water right
granted under the repealed Act and in force immediately before the
commencing date shall remain in force, subject to that Act and as
though that Act had not been repealed, for a period of 3 years after
that date and shall then expire or shall expire on a date on which it
would have expired under the repealed Act, whichever happens first.
(2) The holder of —
(a) a machinery area or tailings area in force by virtue of
subclause (1) may, while the machinery area or tailings area
is so in force, apply to the Minister for a general purpose
lease in respect of all of the land to which the machinery area
or tailings area relates; or
(b) a quarrying area in force by virtue of subclause (1) may,
while the quarrying area is so in force, apply to the Minister
for a mining lease in respect of all of the land to which the
quarrying area relates; or
(c) a water right in force by virtue of subclause (1) may, while
the water right is so in force, apply to the Minister for a
miscellaneous licence in respect of all of the land to which
the water right relates.

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 Mining Act 1978
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cl. 7

(3) On receiving an application made under subclause (2), the Minister

shall grant to the applicant on such terms and conditions as the
Minister may determine the general purpose lease, mining lease or
miscellaneous licence applied for or, after consultation with the
applicant, such other mining tenement as is in the opinion of the
Minister most appropriate.
(4) Notwithstanding anything in subclause (1), if an application for a
general purpose lease, mining lease or miscellaneous licence made
under subclause (2) is pending immediately before the machinery
area, tailings area, quarrying area or water right, as the case requires,
held by the applicant expires under subclause (1), that machinery area,
tailings area, quarrying area or water right continues in force, subject
to the repealed Act and as though that Act had not been repealed, until
that application is finally disposed of under this Act.
[Clause 6 inserted by No. 69 of 1981 s. 29; amended by No. 122 of
1982 s. 30(c); No. 100 of 1985 s. 110(c).]

7. Continuation of certain licences

(1) A licence which was —
(a) granted under section 112 of the repealed Act, conferring the
right to remove tailings or other mining material from, or to
treat the same upon, any land; and
(b) in force immediately before the commencing date,
remains in force, and may, subject to subclause (2), be renewed from
time to time under the repealed Act as if that Act had not been
repealed.
(2) An application for the renewal under subclause (1) of a licence shall
be made to the Minister and the Minister may —
(a) subject to paragraph (b), exercise in relation to that
application the powers conferred on the Governor by the
repealed Act in relation to applications for the renewal of
licences; and
(b) in the case of such an application —
(i) which is made after the expiry of the licence to which
that application relates; and

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cl. 8

(ii) in respect of which the Minister considers that there

are special circumstances justifying renewal,
renew the licence to which that application relates with effect
from the expiry of that licence.
(3) An application for a licence or for the renewal of such a licence,
which application was pending immediately before the commencing
date, shall be disposed of, notwithstanding anything in subclause (2),
as if the repealed Act had not been repealed.
(4) Notwithstanding that any application for the renewal under the
repealed Act as read with this clause of a licence under section 112 of
that Act may have referred only to a licence to treat tailings, a licence
so renewed which purported to grant by way of renewal under this
clause any one or more of the following rights —
(a) to treat tailings upon the land; or
(b) to remove, and treat, tailings from the land; or
(c) to treat any other mining material upon the land; or
(d) to remove, and treat, other mining material from the land,
shall be taken to confer, and always to have conferred, a right of that
kind according to its tenor.
(5) Where a licence granted under section 112 of the repealed Act
expires, any tailings or other mining material left upon the land or any
part of the land in respect of which the licence was granted become or
becomes the property of the Crown —
(a) if an application for the renewal of the licence is not made
within a period of 3 months from the expiry of the licence, at
the expiration of that period; or
(b) if an application for the renewal of the licence is made within
the period referred to in paragraph (a) but is subsequently
refused by the Minister, at the expiration of a period of
3 months from that refusal.
[Clause 7 inserted by No. 69 of 1981 s. 29; amended by No. 122 of
1982 s. 30(d); No. 37 of 1993 s. 25; amended in Gazette 20 Nov 1987
p. 4239.]

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 Mining Act 1978
Transitional provisions Second Schedule

cl. 8

8. Disposal of pending applications for mining tenements

(1) Where an application for a mining tenement under the repealed Act or
the regulations made thereunder (not being an application in
connection with section 276 of the repealed Act or an application
for —
(a) a miner’s homestead lease; or
(b) a residential lease; or
(c) a residence area; or
(d) a business area; or
(e) a garden area),
is pending on the commencing date, that application shall be disposed
of as if the repealed Act had not been repealed and the applicant may
in respect of that application exercise all the powers, and shall in
respect of that application perform all the duties, conferred or
imposed on him by the repealed Act.
(2) Until an application referred to in subclause (1) has been finally
disposed of, the land to which that application relates is not open for
mining by any person other than the applicant.
(3) Subject to clause 2(2), when a mining tenement is granted under the
repealed Act by virtue of subclause (1) as a result of an application
referred to in that subclause —
(a) the mining tenement is, subject to paragraph (b), deemed for
the purposes of this Schedule to have been granted under the
repealed Act;
(b) the holder of the mining tenement under the repealed Act so
deemed to have been granted is entitled, before that mining
tenement expires or within a period of 2 years from the date
referred to in paragraph (c) whichever is the sooner, to apply
for, and subject to this Act to be granted, a mining tenement
under this Act of the kind and in respect of the area for which
he would have been entitled to apply under this Schedule had
the mining tenement under the repealed Act so deemed to
have been granted in fact been granted prior to the
commencing date and been in force or existence immediately
before the commencing date; but

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Mining Act 1978
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cl. 8

(c) the date on which the grant under the repealed Act is deemed
to have been made shall be the date on which the relevant
certificate of registration is issued and the grant expires at the
end of the period of 2 years from that date subject to
subclause (4); and
(d) regulation 55(15) of the regulations made under the repealed
Act applies, with such modification as is necessary, to an
application by the holder of a prospecting area granted under
regulation 55(14) of those regulations and made under
paragraph (b) of this subclause for a mining lease in respect
of the land subject to that prospecting area as if that
application were an application referred to in that regulation.
(4) Notwithstanding anything in this clause, if an application under
subclause (3)(b) is pending immediately before the expiry of the
mining tenement held by the applicant or of the period of 2 years from
the date on which that mining tenement was granted under that
paragraph, as the case requires, that mining tenement continues in
force, subject to the repealed Act and as though that Act had not been
repealed, until that application is finally disposed of under this Act.
(5) A person who —
(a) has marked out a mining tenement under the repealed Act not
more than 10 days; but
(b) has not lodged an application for the mining tenement
referred to in paragraph (a),

before the commencing date is for the purposes of this Act deemed, if
he lodges that application not more than 10 days after the
commencing date, to have lodged that application immediately before
the commencing date.

(6) An application for a miner’s homestead lease, a residential lease, a

residence area, a business area or a garden area, which application
was pending immediately before the commencing date, lapses on the
commencing date and any fees paid in respect of that application shall
be refunded to the applicant.
[Clause 8 inserted by No. 69 of 1981 s. 29; amended by No. 122 of
1982 s. 30(e); No. 100 of 1985 s. 110(d); No. 105 of 1986 s. 27;
amended in Gazette 18 Dec 1981 p. 5274.]

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 Mining Act 1978
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cl. 9

9. Rights of holders of certain prospecting areas

(1) A prospecting area that is in existence immediately before the
commencing date shall continue in existence for the period for which
it would have remained in force if the repealed Act had not been
repealed, and shall then cease to be in force.
(2) The holder of a prospecting area which continues in existence by
virtue of subclause (1) may, before the expiry of the prospecting area,
apply for a mining lease under this Act in respect of the land subject
to that prospecting area.
(3) Regulation 55(15) of the regulations made under the repealed Act
applies with necessary modifications to an application made under
subclause (2) as if that application were an application referred to in
that regulation.
[Clause 9 inserted by No. 69 of 1981 s. 29; amended by No. 105 of
1986 s. 28.]

10. Transitional provisions relating to mortgages

(1) Subject to subclause (2), if —
(a) a mining tenement (in this subclause and in subclause (2)
referred to as the new mining tenement) is granted under this
Schedule or section 5(3) in place of one or more mining
tenements (in this subclause and in subclause (2) referred to
as the old mining tenement or the old mining tenements, as
the case requires) granted under the repealed Act or in
accordance with an agreement referred to in section 5(3); and
(b) the old mining tenement or any interest therein was,
immediately prior to its expiry, the subject of a mortgage or
mortgages or the old mining tenements or any interests
therein were, immediately prior to their expiry, the subject of
the same mortgage or mortgages, as the case requires,
the new mining tenement shall be deemed to be the subject of the
mortgage or mortgages referred to in paragraph (b) as if the new
mining tenement had been referred to therein, and a memorandum of
that mortgage or those mortgages shall be made and endorsed on the
documents of title to the new mining tenement and noted in the
appropriate registers of the Department of Mines 5 and there shall be

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Mining Act 1978
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cl. 10

endorsed on the original or originals of that mortgage or those

mortgages the fact of it or their having been registered as an
encumbrance or encumbrances against the new mining tenement.
(2) If 2 or more mortgages were registered against the old mining
tenement or the old mining tenements, as the case requires, the
memorandum thereof shall be made and endorsed on the documents
of title to the new mining tenement, and noted in the appropriate
registers of the Department of Mines 5, in the order in which they
appeared so registered immediately before their expiry and they shall
have priority accordingly.
(3) The holder of a mining tenement under the repealed Act (in this
subclause called the old mining tenement) who is empowered by this
Schedule or by section 5(3) to apply for a mining tenement under this
Act (in this subclause called the new mining tenement) in substitution
for the old mining tenement shall, if the old mining tenement is the
subject of an existing mortgage and that holder lodges an application
for the new mining tenement, forthwith notify the mortgagee
concerned of that lodging.
(4) An application for a mining tenement under this Act in substitution
for a mining tenement held by the applicant under the repealed Act,
the holding of which second-mentioned mining tenement entitles the
applicant to apply under this Schedule or section 5(3) for the
first-mentioned mining tenement, shall be deemed for the purposes of
Part VI of this Act to be an interest in a mining tenement.
(5) An encumbrance, not being a mortgage, on a mineral claim or
dredging claim —
(a) granted under the repealed Act, whether before or after the
commencing date; and
(b) the holder of which is entitled to apply, and does apply, under
this Schedule or section 5(3) for a mining tenement under this
Act in substitution for that mineral claim or dredging claim,
lapses on the determination of that mineral claim or dredging claim,
but the person who has the benefit of that encumbrance may apply for
the registration of that encumbrance against the application for the
mining tenement under this Act referred to in paragraph (b) and the

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 Mining Act 1978
Transitional provisions Second Schedule

cl. 11

application for the registration of that encumbrance against that

application shall be granted.
(6) When the mining tenement referred to in subclause (5)(b) is granted,
an encumbrance registered against the application for that mining
tenement shall by virtue of this subclause be registered against that
mining tenement without any further application by the person who
has the benefit of that encumbrance.
[Clause 10 inserted by No. 69 of 1981 s. 29.]

11. Officers
A person holding office under the repealed Act immediately before
the commencing date shall be deemed to have been appointed to the
corresponding office under this Act, except that the Under Secretary
shall cease to be a warden.
[Clause 11 inserted by No. 69 of 1981 s. 29.]

12. Warden’s courts and warden’s offices

Each warden’s court and warden’s office in existence immediately
before the commencing date shall be continued under this Act as
though it had been established thereunder and with the mineral field
or district of a mineral field then assigned thereto, but where a
goldfield or a district of a goldfield is assigned thereto at the time, that
goldfield or that district shall be deemed to be a mineral field or
district of a mineral field.
[Clause 12 inserted by No. 69 of 1981 s. 29.]

13. Lodging of certain applications

A person making an application for a mining tenement to the Minister
under this Schedule or section 5(3) shall lodge that application at the
office of the mining registrar of the mineral field or district in which
the largest portion of the land to which the application relates is
situated.
[Clause 13 inserted by No. 69 of 1981 s. 29; amended by No. 37 of
1993 s. 26; No. 12 of 2010 s. 43.]

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Mining Act 1978
Second Schedule Transitional provisions

cl. 13A

13A. Consents to follow the land

In relation to any claim or other mining tenement or interest in land,
of whatever kind, to which the repealed Act applied or to which that
Act applies by virtue of clause 8 of this Schedule —
(a) a consent to the grant of any mining tenement under the
repealed Act (including any grant deemed to have been
granted under that Act by virtue of clause 8 of this Schedule)
or to the use or occupation for mining purposes of any private
land, given for the purposes of that Act or this Act in respect
of the land thereby affected, is deemed to follow that land and
to confer such consent in relation to that land for the purposes
of any application, proceeding or tenement under this Act
made or arising, or being deemed to be made or to arise, out
of or pursuant to the operation of this Schedule; and
(b) where paragraph (a) applies in relation to consent given by
any owner or occupier of the land, for the purposes of the
operation of this Schedule no further or other consent as to
the grant of a mining tenement under this Act in respect of
the land or the use or occupation of the land for mining
purposes is required to be obtained from that owner or
occupier or from his successors in title to that land.
[Clause 13A inserted in Gazette 15 May 1987 p. 2161-2.]

14. References to repealed Act

A reference in any Act, regulation, rule, by-law, instrument or

document to the repealed Act, or any provision thereof, shall, unless
the contrary intention appears, be read and construed as a reference to
this Act, or the corresponding provision, if any, of this Act.
[Clause 14 inserted by No. 69 of 1981 s. 29.]

15. Prevention of anomalies during transitional period

If any difficulty arises with respect to the foregoing transitional
provisions in this Schedule the Governor may by Order in Council —
(a) make such modifications in those provisions as may appear to
him necessary for preventing anomalies during the period
affected by the transition to the provisions of this Act from
the provisions of the repealed Act; and

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 Mining Act 1978
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cl. 16

(b) make such incidental, consequential and supplementary

provisions as may be necessary or expedient for the purpose
of giving full effect to those transitional provisions,
and any such modifications or provisions made by the Governor have,
and shall be deemed always to have had, the same force and effect as
if they had been enacted by way of an amendment to this Schedule
and on publication of the Order in Council in the Government
Gazette, this Schedule shall be amended accordingly.
[Clause 15 inserted by No. 69 of 1981 s. 29; amended by No. 100 of
1985 s. 110(e).]

Division 2 — Provisions relating to Mining Amendment Act 2012

[Heading inserted by No. 51 of 2012 s. 43.]

16. Miner’s rights

(1) In this clause —
commencement day means the day on which the Mining Amendment
Act 2012 section 15 comes into operation.
(2) A miner’s right in force under this Act immediately before
commencement day is taken to be a miner’s right issued under
section 40C.
[Clause 16 inserted by No. 51 of 2012 s. 43.]

17. Surrender requirements

(1) In this clause —
commencement day means the day on which the Mining Amendment
Act 2012 section 20 comes into operation.
(2) Section 65, as in force immediately before commencement day,
applies in relation to an exploration licence if —
(a) the licence was granted on an application made after
10 February 2006; and

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Mining Act 1978
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cl. 18

(b) an application for deferral under subsection (3b) of that

section was made in relation to the licence before
commencement day but not determined before that day.
[Clause 17 inserted by No. 51 of 2012 s. 43.]

18. Commonwealth land

(1) In this clause —
commencement day means the day the Mining Amendment Act 2012
section 13 comes into operation;
existing application means an application for an exploration licence
made but not determined before commencement day;
transition period means the period beginning on commencement day
and ending 3 months after that day.
(2) During the transition period —
(a) a person who has made an existing application in respect of
Commonwealth land has a right in priority to a person who
has not made such an application to mark out or apply for a
mining tenement in respect of the land the subject of the
existing application; and
(b) if more than one person has made an existing application in
respect of the same Commonwealth land, priority is to be
determined according to the date and time of the making of
the existing applications.
[Clause 18 inserted by No. 51 of 2012 s. 43.]

19. Time limit for prosecution action

(1) In this clause —
commencement day means the day on which the Mining Amendment
Act 2012 section 39 comes into operation.
(2) Despite section 160B, a prosecution for an offence that is alleged to
have been committed before commencement day must be commenced
within one year after the day on which the offence is alleged to have
been committed.
[Clause 19 inserted by No. 51 of 2012 s. 43.]

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 Mining Act 1978
Private land not open for mining Third Schedule

Third Schedule — Private land not open for mining

[s. 27]
[Heading amended by 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.

251658240

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Mining Act 1978

Notes
1
This is a compilation of the Mining Act 1978 and includes the amendments made
by the other written laws referred to in the following table 1a, 6. The table also
contains information about any reprint.

Compilation table
Short title Number Assent Commencement
and year
Mining Act 1978 107 of 1978 8 Dec 1978 Long title, heading to Pt. I, s. 1
and 2, heading to, and cl. 3 of,
the Second Sch: 8 Dec 1978
(see s. 2(1));
Act other than long title,
heading to Pt. I, s. 1 and 2,
heading to, and cl. 3 of, the
Second Sch.: 1 Jan 1982 (see
s. 2(2) and Gazette
11 Dec 1981 p. 5085)
Acts Amendment (Mining) 69 of 1981 30 Oct 1981 30 Oct 1981
Act 1981 Pt. II
Reprint of the Mining Act 1978 approved 11 Dec 1981 (includes amendments listed
above except those in the Mining Act 1978 other than the Long title, heading to Pt. I, s. 1
and 2, heading to, and cl. 3 of, the Second Sch.)
Mining (Anomalies Prevention) Order 1981 published in 1 Jan 1982 (see cl. 3)
Gazette 18 Dec 1981 p. 5274
Companies 10 of 1982 14 May 1982 1 Jul 1982 (see s. 2(1) and
(Consequential Gazette 25 Jun 1982 p. 2079)
Amendments) Act 1982
s. 28
Mining (Anomalies Prevention) Order 1982 published in 16 Jul 1982 (see cl. 3)
Gazette 16 Jul 1982 p. 2829
Acts Amendment (Mining) 122 of 1982 10 Dec 1982 s. 30(d): 1 Jan 1982
Act 1982 Pt. II (see s. 2(2));
balance: 10 Dec 1982
(see s. 2(1))
Mining Amendment 52 of 1983 13 Dec 1983 1 Jan 1984 (see s. 2 and Gazette
Act 1983 23 Dec 1983 p. 4934)

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 Mining Act 1978

Short title Number Assent Commencement

and year
Mining Amendment 100 of 1985 4 Dec 1985 s. 1 and 2: 4 Dec 1985;
Act 1985 7 (as amended Act other than s. 1, 2, 31, 34,
by No. 105 38, 59, 63, 68-71, 77-80 and
of 1986 Pt. II 96: 31 Jan 1986 (see s. 2 and
and No. 22 Gazette 31 Jan 1986 p. 320);
of 1990 s. 31, 34, 38, 59, 63, 68-71,
s. 39) 77-80 and 96: 16 Oct 1987
(see s. 2 and Gazette
16 Oct 1987 p. 3884)
Mining (Validation and 1 of 1986 26 Jun 1986 26 Jun 1986 (see s. 2)
Amendment) Act 1986
Pt. III
Acts Amendment and 77 of 1986 4 Dec 1986 20 Feb 1987 (see s. 2 and
Repeal (Environmental Gazette 20 Feb 1987 p. 440)
Protection) Act 1986
Pt. IV
Mining Amendment 105 of 1986 12 Dec 1986 s. 1 and 2: 12 Dec 1986;
Act 1986 Act other than s. 1 and 2:
9 Jan 1987 (see s. 2 and Gazette
9 Jan 1987 p. 18)
Mining (Transitional Provisions) (Anomalies Prevention) 15 May 1987
Order 1987 published in Gazette 15 May 1987 p. 2161-2
Mining Amendment 12 of 1987 16 Jun 1987 s. 1 and 3: 16 Jun 1987;
Act 1987 Act other than s. 1 and 3:
26 Jun 1987 (see s. 3 and
Gazette 26 Jun 1987 p. 2447)
Mining (Transitional Provisions) (Anomalies Prevention) 20 Nov 1987
(No. 2) Order 1987 published in Gazette 20 Nov 1987
p. 4239
Acts Amendment (Legal 65 of 1987 1 Dec 1987 12 Feb 1988 (see s. 2(2) and
Practitioners, Costs and Gazette 12 Feb 1988 p. 397)
Taxation) Act 1987
Pt. XIII
Acts Amendment (Public 113 of 1987 31 Dec 1987 16 Mar 1988 (see s. 2 and
Service) Act 1987 s. 32 Gazette 16 Mar 1988 p. 813)
Acts Amendment (Land 126 of 1987 31 Dec 1987 16 Sep 1988 (see s. 2 and
Administration) Act 1987 Gazette 16 Sep 1988 p. 3637)
Pt. XVIII

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Mining Act 1978

Short title Number Assent Commencement

and year
Reprint of the Mining Act 1978 as at 1 Aug 1988 (includes amendments listed above
except those in the Acts Amendment (Land Administration) Act 1987) (corrigenda to reprint
in Gazette 23 Sep 1988 p. 3922 and Gazette 21 Jul 1989 p. 2213)
Mining Amendment 22 of 1990 28 Aug 1990 s. 1 and 2: 28 Aug 1990;
Act 1990 8 (as amended Act other than s. 1 and 2:
by No. 37 of 28 Jun 1991 (see s. 2 and
1993 s. 30(1) Gazette 28 Jun 1991 p. 3101)
and (2) and
No. 58 of
1994 s. 52)
Conservation and Land 20 of 1991 25 Jun 1991 23 Aug 1991 (see s. 2 and
Management Amendment Gazette 23 Aug 1991 p. 4353)
Act 1991 s. 57
Western Australian Land 35 of 1992 23 Jun 1992 1 Jul 1992 (see s. 2(2) and
Authority Act 1992 s. 49 Gazette 30 Jun 1992 p. 2869)
Land (Titles and 21 of 1993 2 Dec 1993 2 Dec 1993 (see s. 2)
Traditional Usage)
Act 1993 s. 45
Mining Amendment 37 of 1993 16 Dec 1993 Pt. 3: 28 Jun 1991 (see s. 2(2);
Act 1993 9 s. 1 and 2: 16 Dec 1993;
Act other than s. 1 and 2 and
Pt. 3: 1 Jul 1994 (see s. 2(1)
and Gazette 24 Jun 1994
p. 2819)
Acts Amendment (Public 32 of 1994 29 Jun 1994 1 Oct 1994 (see s. 2 and
Sector Management) Gazette 30 Sep 1994 p. 4948)
Act 1994 s. 19
Mining Amendment 58 of 1994 2 Nov 1994 Act other than Pt. 2 and s. 52:
Act 1994 10 (as amended 2 Nov 1994 (see s. 2(1));
by No. 52 of Pt. 2 (except s. 5) and s. 52:
1995 Pt. 6 14 Oct 1995 (see s. 2(2) and
and No. 74 Gazette 13 Oct 1995 p. 4797
of 2003 and Printer’s correction to
s. 85) proclamation in Gazette
24 Oct 1995 p. 4917);
s. 5 repealed by No. 74 of 2003
s. 85
Statutes (Repeals and 73 of 1994 9 Dec 1994 9 Dec 1994 (see s. 2)
Minor Amendments)
Act 1994 s. 4

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 Mining Act 1978

Short title Number Assent Commencement

and year
Acts Amendment and 52 of 1995 24 Nov 1995 9 Dec 1995 (see s. 2 and
Repeal (Native Title) Gazette 8 Dec 1995 p. 5935)
Act 1995 Pt. 5
Water Agencies 73 of 1995 27 Dec 1995 1 Jan 1996 (see s. 2(2) and
Restructure (Transitional Gazette 29 Dec 1995 p. 6291)
and Consequential
Provisions) Act 1995
s. 188
Sentencing (Consequential 78 of 1995 16 Jan 1996 4 Nov 1996 (see s. 2 and
Provisions) Act 1995 Gazette 25 Oct 1996 p. 5632)
Pt. 88
Reprint of the Mining Act 1978 as at 27 Feb 1996 (includes amendments listed above
except those in the Sentencing (Consequential Provisions) Act 1995)
(correction to reprint in Gazette 19 Apr 1996 p. 1739)
Local Government 14 of 1996 28 Jun 1996 1 Jul 1996 (see s. 2)
(Consequential
Amendments) Act 1996
s. 4
Mining Amendment 54 of 1996 11 Nov 1996 s. 1 and 2: 11 Nov 1996;
Act 1996 (as amended s. 5, 7, 10, 13 and 23:
by No. 39 of 7 Dec 1996 (see s. 2 and
2004 Pt. 11 Gazette 6 Dec 1996 p. 6699);
and No. 8 of Proclamation published
2009 s. 93 11) 14 Jan 2005 p. 164 revoked
(see Gazette 24 Mar 2005
p. 1001);
s. 3, 4, 6, 8, 11, 12 and 14-22:
11 Feb 2006 (see s. 2 and
Gazette 3 Feb 2006 p. 515)
Acts Amendment (Marine 5 of 1997 10 Jun 1997 29 Aug 1997 (see s. 2 and
Reserves) Act 1997 Pt. 3 Gazette 29 Aug 1997 p. 4867)
Acts Amendment (Land 31 of 1997 3 Oct 1997 30 Mar 1998 (see s. 2 and
Administration) Act 1997 Gazette 27 Mar 1998 p. 1765)
Pt. 44 and s. 141
Statutes (Repeals and 57 of 1997 15 Dec 1997 15 Dec 1997 (see s. 2(1))
Minor Amendments)
Act 1997 s. 89

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Mining Act 1978

Short title Number Assent Commencement

and year
Statutes (Repeals and 10 of 1998 30 Apr 1998 30 Apr 1998 (see s. 2(1))
Minor Amendments)
Act (No. 2) 1998 s. 52
Mining Amendment 35 of 1998 6 Jul 1998 6 Jul 1998 (see s. 2)
Act 1998 12
Acts Amendment (Land 61 of 1998 11 Jan 1999 11 Jan 1999 (see s. 2(1))
Administration, Mining
and Petroleum) Act 1998
Pt. 3
Acts Amendment (Mining 17 of 1999 15 Jun 1999 24 Jul 1999 (see s. 2 and
and Petroleum) Act 1999 Gazette 23 Jul 1999 p. 3385)
Pt. 2
Reprint of the Mining Act 1978 as at 26 Jul 1999 (includes amendments listed above
except those in the Mining Amendment Act 1996 s. 3, 4, 6, 8, 11, 12 and 14-22)
Acts Amendment (Police 42 of 1999 25 Nov 1999 25 Nov 1999 (see s. 2)
Immunity) Act 1999 s. 8
Statutes (Repeals and 24 of 2000 4 Jul 2000 4 Jul 2000 (see s. 2)
Minor Amendments)
Act 2000 s. 26
Rights in Water and 49 of 2000 28 Nov 2000 10 Jan 2001 (see s. 2 and
Irrigation Amendment Gazette 10 Jan 2001 p. 163)
Act 2000 s. 86
Acts Amendment 54 of 2000 28 Nov 2000 16 Dec 2000 (see s. 2 and
(Australian Datum) Gazette 15 Dec 2000 p. 7201)
Act 2000 s. 5
Mining Amendment 63 of 2000 4 Dec 2000 s. 1 and 2: 4 Dec 2000;
Act 2000 Act other than s. 1 and 2:
3 Feb 2001 (see s. 2 and
Gazette 2 Feb 2001 p. 697)
Corporations 10 of 2001 28 Jun 2001 15 Jul 2001 (see s. 2 and
(Consequential Gazette 29 Jun 2001 p. 3257
Amendments) Act 2001 and Cwlth Gazette
Pt. 39 13 Jul 2001 No. S285)
Reprint of the Mining Act 1978 as at 7 Sep 2001 (includes amendments listed above
except those in the Mining Amendment Act 1996 s. 3, 4, 6, 8, 11, 12 and 14-22)

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 Mining Act 1978

Short title Number Assent Commencement

and year
Mining Amendment 15 of 2002 8 Jul 2002 s. 1 and 2: 8 Jul 2002;
Act 2002 s. 23: 15 Jul 2001 (see s. 2(3)
and Cwlth. Gazette
13 Jul 2001 No. S285);
Act other than s. 1, 2, 12
and 23: 18 Jan 2003
(see s. 2(1) and (2) and
Gazette 17 Jan 2003 p. 105);
Proclamation published
14 Jan 2005 p. 164 revoked
(see Gazette 24 Mar 2005
p. 1001);
s. 12: 10 Feb 2006
(see s. 2(2) and Gazette
3 Feb 2006 p. 516)
Offshore Minerals 12 of 2003 17 Apr 2003 1 Jan 2011 (see s. 2 and
(Consequential Gazette 17 Dec 2010 p. 6350)
Amendments) Act 2003
Pt. 2
Acts Amendment (Equality 28 of 2003 22 May 2003 1 Jul 2003 (see s. 2 and
of Status) Act 2003 Pt. 46 Gazette 30 Jun 2003 p. 2579)
Acts Amendment and 65 of 2003 4 Dec 2003 1 Jan 2004 (see s. 2 and
Repeal (Courts and Legal Gazette 30 Dec 2003 p. 5722)
Practice) Act 2003 s. 52
Mining Amendment 39 of 2004 3 Nov 2004 s. 1 and 2: 3 Nov 2004;
Act 2004 13 (as amended Proclamation published
by No. 19 of 14 Jan 2005 p. 164 revoked
2008 Pt. 2 (see Gazette 24 Mar 2005
and No. 51 p. 1002);
of 2012 Act other than s. 1 and 2 and
Pt. 3) Pt. 9: 10 Feb 2006
(see s. 2 and Gazette
3 Feb 2006 p. 516);
Pt. 9: 31 Mar 2007
(see s. 2 and Gazette
9 Mar 2007 p. 847)
Acts Amendment (Court of 45 of 2004 9 Nov 2004 1 Feb 2005 (see s. 2 and
Appeal) Act 2004 s. 37 Gazette 14 Jan 2005 p. 163)
Courts Legislation 59 of 2004 23 Nov 2004 1 May 2005 (see s. 2 and
Amendment and Repeal Gazette 31 Dec 2004 p. 7128)
Act 2004 Pt. 15

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Mining Act 1978

Short title Number Assent Commencement

and year
State Administrative 55 of 2004 24 Nov 2004 1 Jan 2005 (see s. 2 and Gazette
Tribunal (Conferral of 31 Dec 2004 p. 7130)
Jurisdiction) Amendment
and Repeal Act 2004
s. 570 14
Criminal Law Amendment 70 of 2004 8 Dec 2004 31 May 2005 (see s. 2 and
(Simple Offences) Act 2004 Gazette 14 Jan 2005 p. 163)
s. 82
Criminal Procedure and 84 of 2004 16 Dec 2004 2 May 2005 (see s. 2 and
Appeals (Consequential and Gazette 31 Dec 2004 p. 7129
Other Provisions) Act 2004 (correction in Gazette
s. 80 7 Jan 2005 p. 53))
Oaths, Affidavits and 24 of 2005 2 Dec 2005 s. 61: 1 Jan 2006 (see s. 2 and
Statutory Declarations Gazette 23 Dec 2005 p. 6244);
(Consequential s. 62: 31 Mar 2007 (see s. 2(3)
Provisions) Act 2005 and Gazette 9 Mar 2007 p. 847)
Pt. 15 (s. 61-62)
Mining Amendment 27 of 2005 12 Dec 2005 s. 1 and 2: 12 Dec 2005;
Act 2005 Act other than s. 1 and 2:
10 Feb 2006 (see s. 2 and
Gazette 3 Feb 2006 p. 516)
Planning and 38 of 2005 12 Dec 2005 9 Apr 2006 (see s. 2 and
Development Gazette 21 Mar 2006 p. 1078)
(Consequential and
Transitional Provisions)
Act 2005 s. 15
Reprint 6: The Mining Act 1978 as at 10 Apr 2006 (includes amendments listed above
except those in the Offshore Minerals (Consequential Amendments) Act 2003, the Mining
Amendment Act 2004 Pt. 9 and the Oaths, Affidavits and Statutory Declarations
(Consequential Provisions) Act 2005 s. 62)
Petroleum Amendment 35 of 2007 21 Dec 2007 19 Jan 2008 (see s. 2(b) and
Act 2007 s. 100 Gazette 18 Jan 2008 p. 147)
Legal Profession Act 2008 21 of 2008 27 May 2008 1 Mar 2009 (see s. 2(b) and
s. 681 Gazette 27 Feb 2009 p. 511)
Revenue Laws Amendment 31 of 2008 27 Jun 2008 28 Jun 2008 (see s. 2(b))
Act (No. 2) 2008 Pt. 2
Div. 2
Statutes (Repeals and 8 of 2009 21 May 2009 22 May 2009 (see s. 2(b))
Miscellaneous
Amendments) Act 2009 s. 8

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 Mining Act 1978

Short title Number Assent Commencement

and year
Reprint 7: The Mining Act 1978 as at 3 Jul 2009 (includes amendments listed above
except those in the Offshore Minerals (Consequential Amendments) Act 2003)
Approvals and Related 8 of 2010 3 Jun 2010 18 Sep 2010 (see s. 2(b) and
Reforms (No. 3) (Crown Gazette 17 Sep 2010 p. 4757)
Land) Act 2010 Pt. 6
Approvals and Related 12 of 2010 3 Jun 2010 Pt. 3: 21 Mar 2011
Reforms (No. 2) (Mining) (see s. 2(b) and Gazette
Act 2010 Pt. 2 and 3 18 Mar 2011 p. 909);
Pt. 2: 1 Jul 2011
(see s. 2(b) and Gazette
18 Mar 2011 p. 909)
Standardisation of 19 of 2010 28 Jun 2010 11 Sep 2010 (see s. 2(b) and
Formatting Act 2010 s. 4 Gazette 10 Sep 2010 p. 4341)
and 51
Public Sector Reform 39 of 2010 1 Oct 2010 1 Dec 2010 (see s. 2(b) and
Act 2010 s. 89 Gazette 5 Nov 2010 p. 5563)
Personal Property 42 of 2011 4 Oct 2011 30 Jan 2012 (see s. 2(c) and
Securities (Consequential Cwlth Legislative Instrument
Repeals and Amendments) No. F2011L02397 cl. 5
Act 2011 Pt. 9 Div. 1 registered 21 Nov 2011)
Reprint 8: The Mining Act 1978 as at 7 Oct 2011 (includes amendments listed above
except those in the Personal Property Securities (Consequential Repeals and Amendments)
Act 2011) (correction to reprint in Gazette 1 Jun 2012 p. 2282)
Mining Amendment 51 of 2012 29 Nov 2012 s. 1 and 2: 29 Nov 2012
Act 2012 (see s. 2(a));
Act other than s. 1 and 2:
2 Feb 2013 (see s. 2(b) and
Gazette 1 Feb 2013 p. 447)

1a
On the date as at which this compilation was prepared, provisions referred to in
the following table had not come into operation and were therefore not included in
this compilation. For the text of the provisions see the endnotes referred to in the
table.

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Mining Act 1978

Provisions that have not come into operation

Short title Number Assent Commencement
and year
Native Title (State 60 of 1999 10 Jan 2000 Operative on earliest of
Provisions) Act 1999 commencement of Pt. 2 (except
s. 7.3 15 s. 2.2), Pt. 3 (except s. 3.1) and
Pt. 4
2
Repealed by the Interpretation Act 1984 s. 77(1).
3
Repealed by the Mining Act 1978 s. 3(1).
4
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.

5
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.
Under the Public Sector Management Act 1994 the names of departments may be
changed. At the time of this compilation the former Department of Industry and
Resources is called the Department of Mines and Petroleum.
6
The Mining Legislation Amendment and Validation Act 2008 Pt. 2 Div. 2 and Pt. 3
read as follows:

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 Mining Act 1978

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

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Mining Act 1978

(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).

7
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.
8
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

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 Mining Act 1978

(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.

9
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

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Mining Act 1978

(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.

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 Mining Act 1978

10
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.

11
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.
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 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, 32(3), 35, 36(2),
39(2), 86, 90(2), s. 98(2)-(4) and Pt. 12 and the Mining Amendment Act 2012
Pt. 3) read as follows:

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Mining Act 1978

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 —

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 Mining Act 1978

(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

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Mining Act 1978

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 by 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.

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 Mining Act 1978

(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.

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Mining Act 1978

(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

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 Mining Act 1978

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.

14
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.
15
On the date as at which this compilation was prepared, the Native Title (State
Provisions) Act 1999 s. 7.3, which gives effect to Sch. 2, had not come into
operation. It reads as follows:

7.3 Consequential amendments

Schedule 2 has effect.

Schedule 2 Div. 5 reads as follows:

Division 5 — Mining Act 1978

35. The Act amended
The amendments in this Division are to the Mining Act 1978.
36. Section 19 amended
(1) Section 19(6)(a) is amended by inserting immediately before
“grant” the following —
“ subject to subsection (6a), ”.
(2) After section 19(6) the following subsection is inserted —
“
(6a) If the grant of a mining tenement under subsection (6) is a Part 2
act, a Part 3 act or a Part 4 act within the meaning of the Native

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Mining Act 1978

Title (State Provisions) Act 1999, the operation of that subsection

is subject to section 2.6, 3.5 or 4.3 of that Act as the case may be.
”.
37. Section 39A inserted
Immediately before section 40 the following section is inserted —
“
39A. This Division subject to Native Title (State Provisions)
Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where —
(a) the grant of a prospecting licence; or
(b) the grant of any mining tenement under section 56A,
is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of
that Act.
(2) The provisions of this Division relating to objections to the
granting of an application do not apply to an objection of the
kind referred to in section 2.16, 3.15 or 4.11 of the Native Title
(State Provisions) Act 1999, and objections of that kind can only
be made under that Act.
”.
38. Section 49 amended
After section 49(1) the following subsection is inserted —
“
(1a) The operation of subsection (1) is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999.
”.
39. Section 56 amended
After section 56(1) the following subsection is inserted —
“
(1a) An appeal does not lie under subsection (1) where the warden
does not grant an application, or attaches any condition to a
grant, because of one of the following instruments made under
the Native Title (State Provisions) Act 1999 —
(a) an agreement of the kind described in section 2.26, 3.22(1)
or 4.21 that is given to the Commission under section 2.26,
3.25 or 4.21;

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 Mining Act 1978

(b) a recommendation under section 2.32 or 4.27;

(c) a determination under section 2.38, 3.29, 3.44 or 4.33;
(d) a declaration under section 3.51.
”.
40. Section 56AA inserted
Immediately before section 56B the following section is
inserted —
“
56AA. This Division subject to Native Title (State Provisions)
Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where —
(a) the grant or extension of an exploration licence; or
(b) the grant of any mining tenement under section 70,
is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of
that Act.
(2) The provisions of this Division relating to objections to the
granting of an application do not apply to an objection of the
kind referred to in section 2.16, 3.15 or 4.11 of the Native Title
(State Provisions) Act 1999, and objections of that kind can only
be made under that Act.
”.
41. Section 67 amended
After section 67(1) the following subsection is inserted —
“
(1a) The operation of subsection (1) is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999.
”.
42. Section 70AA inserted
After section 70A the following section is inserted —
“
70AA. This Division subject to Native Title (State Provisions)
Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where the grant or renewal of a retention licence is a

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Mining Act 1978

Part 2 act, a Part 3 act or a Part 4 act within the meaning of that
Act.
(2) The provisions of this Division relating to objections to the
granting of an application do not apply to an objection of the kind
referred to in section 2.16, 3.15 or 4.11 of the Native Title (State
Provisions) Act 1999, and objections of that kind can only be
made under that Act.
”.
43. Section 70L amended
After section 70L(1) the following subsection is inserted —
“
(1a) The operation of subsection (1) is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999.
”.
16
44. Section 70O inserted
Immediately before section 71 the following section is inserted —
“
70O. This Division subject to Native Title (State Provisions) Act 1999
(1) Where —
(a) the grant or renewal of a mining lease; or
(b) the grant of any mining tenement under section 85B,
is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of
the Native Title (State Provisions) Act 1999, the operation of the
provisions of this Division relating to that grant or renewal is
subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act.
(2) The provisions of this Division relating to objections to the
granting of an application do not apply to an objection of the
kind referred to in section 2.16, 3.15 or 4.11 of the Native Title
(State Provisions) Act 1999, and objections of that kind can only
be made under that Act.
”.
17
45. Section 75 amended
After section 75(7) the following subsection is inserted —
“
(8) The operation of subsection (7) is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999.

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 Mining Act 1978

”.
46. Section 85C inserted
Immediately before section 86 the following section is inserted —
“
85C. This Division subject to Native Title (State Provisions)
Act 1999
(1) The operation of this Division in relation to the grant of general
purpose leases is subject to section 2.6, 3.5 or 4.3, as the case
may be, of the Native Title (State Provisions) Act 1999.
(2) Where the renewal of a general purpose lease is a Part 2 act, a
Part 3 act or a Part 4 act within the meaning of the Native Title
(State Provisions) Act 1999, the operation of this Division in
relation to that renewal is subject to section 2.6, 3.5 or 4.3, as the
case may be, of that Act.
(3) The provisions relating to objections to the granting of an
application that apply for the purposes of this Division do not
apply to an objection of the kind referred to in section 2.16, 3.15
or 4.11 of the Native Title (State Provisions) Act 1999, and
objections of that kind can only be made under that Act.
”.
47. Section 90A inserted
Immediately before section 91 the following section is inserted —
“
90A. This Division subject to Native Title (State Provisions)
Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where the grant of a miscellaneous licence is a Part 2
act, a Part 3 act or a Part 4 act within the meaning of that Act.
(2) The provisions relating to objections to the granting of an
application that apply for the purposes of this Division do not
apply to an objection of the kind referred to in section 2.16, 3.15
or 4.11 of the Native Title (State Provisions) Act 1999, and
objections of that kind can only be made under that Act.
”.
16
The insertion of s. 70O in this Act by the Native Title (State Provisions) Act 1999
s. 7.3 would conflict with an amendment in the Mining Amendment Act 2004 s. 27.

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Mining Act 1978

17
The insertion of s. 75(8) in this Act by the Native Title (State Provisions) Act 1999
s. 7.3 would conflict with an amendment in the Mining Amendment Act 2004
s. 31(7).

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 Mining Act 1978

Defined Terms

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)
minerals ....................................................................................................... 8(1)
warden’s court ............................................................................................. 8(1)
absolute caveat ............................................................................................. 121
aggregate exploration expenditure .......................................................... 102(2a)
agreement ..............................................................................................122E(4)
agricultural................................................................................................... 8(1)
anniversary day .......................................................................................... 65(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)
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)
Director General of Mines ............................................................................ 8(1)
Director, Geological Survey ......................................................................... 8(1)
end day ...................................................................................................... 65(1)
expenditure ........................................................................................... 115B(1)
expenditure amount ............................................................................... 115B(1)

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Defined Terms

expenditure conditions ................................................................................. 8(1)

exploration licence .................................................................................. 69A(1)
extension application ................................................................................ 45(1b)
fisheries Minister .................................................................................... 24A(9)
former holder .......................................................................................... 114(7)
former holder ........................................................................................ 114C(1)
fossick ......................................................................................................... 8(1)
geological sample......................................................................................... 8(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), 103EA(3), 103EA(3)
later tenement ......................................................... 122C(1), 122C(1), 122C(1)
lease application..................................................................................120AA(1)
lessee ...................................................................................................... 123(7)
lessee ........................................................................................................... 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), 8(1)
mine closure plan .................................................................................... 70O(1)
miner’s right ................................................................................................ 8(1)
mineral exploration report ..................................................................... 115A(1)
mineral field................................................................................................. 8(1)
mineralisation report ..................................................................... 74(7), 74A(7)
mining ........................................................................................... 8(1), 123(2a)
mining operations......................................................................................... 8(1)
mining plant ............................................................................................. 114(1)
mining product ............................................................................................. 8(1)

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 Mining Act 1978

Defined Terms

mining proposal ...................................................................................... 70O(1)

mining registrar ............................................................................................ 8(1)
mining tenement .......................................................................................... 8(1)
mining tenement document.................................................................... 162(3A)
native title holders ................................................................................. 125A(3)
occupier ....................................................................................................... 8(1)
offshore area ............................................................................................. 9A(2)
oil shale ....................................................................................................... 8(1)
operations report ..................................................................... 115A(1), 115B(1)
owner........................................................................................................... 8(1)
Part IV proceedings.................................................................................. 162(2)
permit ..................................................................................................... 40G(1)
permit land.............................................................................................. 40G(1)
prescribed day .......................................................................................... 19(2d)
prescribed official .............................................................................. 8(1), 30(8)
prescribed period...................................................................................... 114(1)
primary tenement ................................................................................... 56A(1)
primary tenement .................................................................. 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

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Mining Act 1978

Defined Terms

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)
vehicle ......................................................................................................... 8(1)
warden ......................................................................................................... 8(1)
withdrawal of memorial .............................................................................103A

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