The Mining Act 1992 (NSW) (Mining Act) provides that a person must not carry out certain mining purposes without a mining lease in force over the land (section 6). The ‘mining purposes’ for which a mining lease is required are:

  • the construction, maintenance or use of any reservoir, dam (including a tailings dam), drain or water race,
  • opal puddling,
  • the removal, stockpiling or depositing of overburden, ore or tailings to the extent that it is associated with mineral extraction or mine beneficiation.

Mining purposes that were being carried out, or under construction, before the above requirement came into force on 15 November 2010 were given five years in which to obtain a mining lease.  The transitional period will end soon (15 November 2015) after which it will be an offence to carry out one of the above mining purposes without a mining lease.

If prosecuted, the offence carries a maximum penalty of $1.1 million and a further penalty of $110,000 for each day that the offence continues after 15 November 2015.  The Department can also impose ‘on the spot’ penalty notices on corporations of $5,000 (and $1,000 for individuals).

Importantly, the mining lease needs to be granted by 15 November 2015, it is not simply a requirement to have the mining lease application lodged with the Department by this date.  As such, time is fast running out to get your mining lease applications lodged and determined.

The Mining Act enables Ministerial orders to be made to exempt any person or class of persons from the requirement to comply with the requirement to obtain a mining lease for mining purposes.  Only one such Ministerial exemption has been granted for a particular (non-coal) operation.

The mining lease application process in NSW has become more complex and time consuming with the recent introduction of the Department’s ‘Protocol and checklist for proof of extinguishment of Native Title’. Extensive documentary evidence is now required to prove native title extinguishment before a mining lease can be granted.

We have assisted many clients over the last six months to prepare mining lease applications for this purpose, including detailed native title extinguishment reports to satisfy the Department’s requirements.  Contact us if you need assistance in preparing your applications before the transitional period ends.