Recent changes to mining legislation increase the burden on mining companies wishing to access land.

In South Australia, amendments to the Mining Act 1971 impose additional procedural requirements on miners wishing to enter private land for exploration. The prescribed forms already used for notifying landowners that the miner will enter private land have been changed and updated. The Act also now sets out more detailed provisions which miners must follow before they can access exempt land, such as land used for cultivation, or land within 400 metres of a residence or water source. Landowners who have waived the exemption are entitled to cool off within five business days if they change their mind.

The amendments also make it clear that it is the tenement owner, not an agent of the tenement owner (like a mine operator), who is ultimately responsible for complying with the Act. Tenement holders will need to ensure that their authorised agents are following all of the required procedures, otherwise they may be personally liable.

Queensland has had a uniform land access regime since August 2010, which regulates access to land for all types of resource projects. A key part of the regime is the Land Access Code, which sets out mandatory and best practice requirements for miners to follow when undertaking authorised activities on land. The objective of the Code is to ensure that miners continue to follow industry best practice in dealing with landowners even after access has been authorised. Miners should become familiar with the requirements of the Code and take steps to ensure their agents and subcontractors comply with it.

More recently, the Strategic Cropping Land Act 2011 (Qld) brings into force additional protection for the State’s best cropping land. Mining projects will need to pass more rigorous assessment processes against the State’s planning policy for strategic cropping land if the relevant land falls within the protection or management zones established under the Act. Activities which are likely to have a permanent impact on land, like open cut mining or storage of mine waste, are most likely to be affected. Mining companies should review the provisions to determine what impact, if any, they have on their resource projects.

In New South Wales (NSW), access arrangements with landowners are initiated by the service of notification under Section 142 of the Mining Act 1992 (NSW). A recent decision of the Supreme Court of NSW resulted in the introduction of an amendment to the Mining Act. The amendment relieves mining companies from the obligation to enter into access arrangements with parties holding registered proprietary interests in land who are not entitled to immediate possession of the land like a mortgagee or security holder who has not enforced its security over that land.

As mining activity increases and encroaches onto peri-urban and cultivated land, attention will focus on the rights of landowners and occupiers in their dealings with mining (and petroleum) companies seeking to exploit valuable underground resources.

Whichever side of the fence you may be sitting, landowner or miner, we can help you unravel the legal maze in this highly regulated and technical area.