Opal Mining Act 1995

This Act may be cited as the Opal Mining

Act 1995.

In this Act, unless the contrary intention appears—

appropriate court means—

the Supreme Court; or

the ERD Court; or

if proceedings do not involve a monetary claim, or a claim for more than $150 000—the Warden's Court;¹

approved association means an association granted an approval under section 96;

authorised person means a person appointed as an authorised person under section 77;

corporation means a body corporate;

council has the same meaning as in the

Local Government

Act 1999 and includes a body corporate that is, by virtue of any Act, deemed to be, or vested with the powers of, a council;

declared equipment means—

a trench digger or excavator; or

mechanically driven equipment, equipped with a blade or bucket of a width exceeding 750 mm, capable of ripping, gouging, scooping or digging earth or rock material; or

equipment that is capable of digging, boring or tunnelling underground, generally in a horizontal plane, with a cross sectional dimension greater than 750 mm; or

equipment of a kind prescribed by the regulations for the purposes of this definition, but does not include surface drilling equipment;

designated area means an area within a precious stones field declared by the Minister under section 5 to be a designated area;

Director means the Director of Mines under the

Mining Act;

director of a company includes a person occupying or acting in the position of a director or member of the governing body of the company, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and includes any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act;

ERD Court means the Environment, Resources and

Development Court established under the Environment, Resources and Development Court Act 1993;²

exclusion zone means land declared by the

Minister under section 5 to be an exclusion zone for the purposes of this Act;

exempt land means land that is exempt from mining operations under section 6;

exploration licence means an exploration licence under the Mining Act;

fossicking means the gathering of precious stones—

as a recreation; or

without the intention to sell the stones or to utilise them for a commercial or industrial purpose, but does not include the gathering of precious stones through the disturbance of land by machinery or explosives;

holder of a tenement means the person who is registered as the holder of the tenement under this Act;

machinery means a device operated other than solely by muscular force exerted by the operator;

marine waters means the coastal waters of the

State (see the Coastal Waters (State Powers)

Act 1980 (Cwth)) or that part of the sea that is within the limits of the State, and includes estuaries and tidal waters;

minerals has the same meaning as under the

Mining Act;

Mining Act means the Mining

Act 1971;

mining operations means operations carried out in the course of prospecting or mining for precious stones, or rehabilitation operations, but does not include fossicking;

mining operator or operator means a person by whom, or on whose behalf, mining operations are carried out under this Act;

Mintabie Township Lease Agreement and

Mintabie township lease area have the same meaning as in the

Anangu Pitjantjatjara

Yankunytjatjara Land Rights Act 1981;

native title, native title holder and native title land—see

Native Title (South Australia)

Act 1994³;

native title mining determination means a determination authorising a mining operator to enter land and carry out mining operations on the land under

Part

7;

opal development lease means an opal development lease registered under section 20;

opal mining register means the register kept by the Opal Mining Registrar under section 76;

opal mining registrar means a person appointed as an opal mining registrar under section 75A and includes the Opal Mining

Registrar;

Opal Mining Registrar means a person appointed as the Opal Mining Registrar under section 75A and includes a person who is acting in the position of the Opal Mining Registrar;

owner of land means—

a person who holds a registered estate or interest in the land conferring a right to immediate possession of the land; or

a person who holds native title in the land; or

a person who has, by statute, the care, control or management of the land; or

a person who is lawfully in occupation of the land;

precious stones means opal and other minerals declared by regulation to be precious stones for the purposes of this

Act;

precious stones claim means a precious stones claim registered under section 20;

precious stones prospecting permit or

permit means a precious stones prospecting permit issued under section 7;

precious stones field means land declared to be a precious stones field by proclamation under section 4;

precious stones tenement or

tenement means—

a precious stones claim; or

an opal development lease;

prescribed exempt land means exempt land under section 6(1)(a);

prescribed notice of entry—see section 32;

prospecting means operations carried out in the course of exploring for precious stones, including the pegging out of an area for a tenement, other than operations that involve disturbance of land by declared equipment or explosives, and to prospect has a corresponding meaning;

registered representative of native title holders—see Part 4 Native Title (South Australia)

Act 1994;

rehabilitation of land includes the filling in or sealing of an excavation (including an open-cut excavation), the reinstatement, levelling, contouring and revegetation of land, and the erection of signs and fences, and to rehabilitate has a corresponding meaning;

River Murray Protection Area means a River

Murray Protection Area under the River Murray

Act 2003;

Warden's Court means the Warden's Court established under the Mining Act.

The division of land under the Mining Act into strata will also have effect for the purposes of this Act and, accordingly, a reference in this

Act to land, or an area, will, where appropriate, be taken to be a reference to the surface stratum or a subsurface stratum, as the case requires.

In this Act, a reference to mining operations over land includes a reference to mining operations involving land covered by water and a reference to the disturbance of land includes a reference to the disturbance of water.

A note to a provision of this Act forms part of the provision to which it relates.

1 All native title questions arising in proceedings before the

Warden's Court must be referred to the ERD Court—see Part 3

Native Title (South Australia)

Act 1994.2 The Environment, Resources and Development Court

Act 1993 and the Native Title (South

Australia) Act 1994 contain provisions under which the

ERD Court may refer cases to the Supreme Court, or the Supreme Court may remove cases commenced before the ERD Court into the Supreme Court.3 Part 5 of the Native Title (South Australia)

Act 1994 sets out the method of service on native title holders.

The Governor may, by proclamation—

declare land in the State (including land within the marine waters of the State) to be a precious stones field; or

reserve from the operation of this Act, or a specified provision of this Act, land specified in the proclamation, and the proclamation will have effect according to its terms.

The Governor may, by subsequent proclamation, vary or revoke a proclamation under subsection (1).

A precious stones field over mineral land under the Mining Act that has been divided into strata will consist only of the surface stratum (as defined by that Act).

The Minister may, by notice in the Gazette—

declare an area within a precious stones field to be a designated area for the purposes of this Act;

declare land in the State to be an exclusion zone for the purposes of this Act, and the declaration will have effect according to its terms.

The Minister may, by subsequent notice in the Gazette, vary or revoke a declaration under subsection (1).

The Minister must consult with such approved associations as the

Minister thinks fit before the Minister makes a declaration under this section.

If a declaration under this section applies to any part of a River

Murray Protection Area, the Minister must first consult with the Minister to whom the administration of the River Murray

Act 2003 is committed.

If the Minister makes a declaration under this section, the

Minister must ensure that a copy of the declaration is published in a newspaper circulating generally throughout the State.

If an area ceases to be part of a precious stones field, the declaration of a designated area within that area ceases to have effect.

The following land is exempt from mining operations under this Act if it is outside a precious stones field:

land that is situated—

within 400 metres of a building or structure used as a place of residence (except a building or structure of a class excluded by regulation from the ambit of this paragraph); or

within 150 metres of—

a building or structure, with a value equal to or exceeding the prescribed amount, used for an industrial or commercial purpose;

or

a spring, well, reservoir or dam that has some commercial value or use, (but not if it is an improvement made for the purposes of mining operations);

land that constitutes a distinct allotment of less than 2 000 square metres in a city, town or township;

land that is genuinely used as a yard, garden, plantation, orchard or vineyard;

land that is under crop;

land that is genuinely used as an airfield, railway, tramway or busway;

the grounds of a church, chapel, school, hospital or institution;

parklands or recreation grounds under the control of a council;

land—

that is dedicated or reserved by or under a prescribed Act, or by or under an Act for a prescribed purpose; or

that is vested in a Minister for a prescribed purpose;

or

that is comprised within an easement in favour of a

Minister;

land that is constituted as a forest reserve under the

Forestry Act 1950.

While land is exempt land—

a person is not authorised under a precious stones prospecting permit to prospect for precious stones on the land; and

a precious stones tenement must not be registered over the land (or a part of the land).

However—

a person may peg out an area for a precious stones tenement on exempt land¹, other than prescribed exempt land (see subsection (4)); and

a precious stones tenement may be registered over exempt land (or a

part of exempt land) if—

the land was not exempt land at the time the area of the tenement was pegged out; or

the tenement is registered in the name of the owner of the land.

In the case of prescribed exempt land, a person must not enter or peg out an area within the land except with the written permission (which may be given subject to conditions) of the person who has the benefit of the relevant exemption under this section.

If—

a person who has the benefit of an exemption under this section, by agreement with a mining operator, waives the exemption on terms and conditions set out in the agreement; or

the appropriate court, on the application of a mining operator, waives the exemption on terms and conditions (which should include provision for payment of compensation to the person or persons who have the benefit of the exemption), the land ceases to be exempt land.

Land that ceases to be exempt land under subsection (5) will revert to being exempt land on completion of the mining operations for which the agreement or determination is made, or at an earlier time specified in the agreement or determination.

The following persons will be regarded as having the benefit of an exemption under this section:

the owner of the exempt land; and

in the case of land that is exempt under subsection (1)(a) by reason of its proximity to other land on which a building, structure, spring, well, reservoir or dam is situated—the owner of the other land.

An agreement or determination is binding on, and enforceable by or against, the original parties to the agreement or determination and—

successors in title to the owner of the land who originally had the benefit of the exemption; and

the holders from time to time of precious stones tenements authorised under the terms of the agreement or determination.

An agreement by which an exemption is waived must comply with requirements determined by the Director and a copy of the agreement must be lodged with the Opal Mining Registrar in accordance with the regulations.

1 A person may peg out an area for a tenement with a view to negotiating a waiver, or to obtaining a determination of a court, under subsection (5).

A person may apply for a precious stones prospecting permit.

The application—

must be made in a manner and form determined by the Director;

and

must be accompanied by the prescribed application fee.

The applicant (in the case of a natural person) must be at least 16 years of age.

An opal mining registrar may issue a precious stones prospecting permit to a person who has made due application for the permit and paid the appropriate fee.

A person is not eligible to be issued, or to hold, a precious stones prospecting permit if the person is disqualified from holding a permit under this Act or the regulations.

A person must not hold more than one precious stones prospecting permit.

A precious stones prospecting permit cannot be held jointly by two or more persons.

A precious stones prospecting permit is not transferable.

A person must not—

lend a precious stones prospecting permit to another person;

or

permit another person to use, or to take the benefit, of his or her precious stones prospecting permit. Administrative penalty.

A precious stones prospecting permit will, subject to this Act, remain in operation for a term of one year from the date of issue.

A person may from time to time apply for the renewal of a precious stones prospecting permit.

The application—

must be made any time after one month before the day on which the precious stones prospecting permit is due to expire; and

must be made in a manner and form determined by the Director;

and

must be accompanied by the prescribed application fee.

A renewal will be issued by an opal mining registrar.

The period of renewal will be one year.

A precious stones prospecting permit may, subject to this Act and in accordance with the regulations, be surrendered.

A precious stones prospecting permit authorises the holder to prospect for precious stones and to peg out an area for a precious stones tenement in accordance with this Act.

However, the authority conferred by subsection (1) is subject to various qualifications prescribed by this Act.¹

The holder of a precious stones prospecting permit (other than a corporation) must carry out any pegging of an area under the permit personally.

In the case of a corporation, any pegging out under the permit must be carried out by a person who holds a specific authority from the corporation to act on its behalf.

The pegging must comply with requirements prescribed by the regulations.

It is a condition of every precious stones prospecting permit that the holder of the permit (being a holder who is a natural person) must not reside on the precious stones field other than in the Mintabie township lease area in accordance with a licence issued under section 29D of the

Anangu Pitjantjatjara

Yankunytjatjara Land Rights Act 1981, or as otherwise allowed under that Act.

1 See especially section 11.

Despite any other provision of this Act, a precious stones prospecting permit does not authorise a person to prospect for precious stones on the Mintabie precious stones field unless the permit has been endorsed by an opal mining registrar as authorising such prospecting.

The holder of a precious stones prospecting permit may apply for endorsement of his or her precious stones prospecting permit to authorise prospecting for precious stones on the Mintabie precious stones field.

An application under subsection (2)—

must be made in a form determined by the Director;

and

must be accompanied by the prescribed application fee;

and

must be accompanied by any other information that the Director may require (including, without limiting this paragraph—

in the case of an applicant who is of or above 18 years of age, information in relation to the criminal history of the applicant;

or

in the case of an applicant who is a body corporate, information in relation to the criminal history of the applicant, or a director, officer or employee of the applicant).

If an opal mining registrar refuses to endorse a precious stones prospecting permit under this section, the opal mining registrar must, by notice in writing, inform the applicant of that fact.

A precious stones prospecting permit that authorises prospecting for precious stones on the Mintabie precious stones field is subject to conditions specified by the opal mining registrar by notice in writing given to the holder of the permit.

A condition under subsection (5) has effect when the notice under that subsection is given to the holder of the permit.

A condition under subsection (5) is in addition to, and does not derogate from, any other condition or qualification applicable to a precious stones prospecting permit under this Act.

The holder of a precious stones prospecting permit that authorises prospecting for precious stones on the Mintabie precious stones field must not contravene or fail to comply with a condition of his or her permit.

An opal mining registrar must revoke an endorsement under this section if the holder of the relevant precious stones prospecting permit has been excluded from the Mintabie precious stones field under section 29H of the Anangu Pitjantjatjara

Yankunytjatjara Land Rights Act 1981.

An opal mining registrar may, by notice in writing, on any reasonable grounds—

revoke an endorsement under this section; or

vary the conditions of a precious stones prospecting permit that authorises prospecting for precious stones on the Mintabie precious stones field by the addition, substitution or deletion of 1 or more conditions.

A revocation or variation under subsection (10) has effect when the notice under that subsection is given to the holder of the permit (or on such later date as may be specified in the notice).

An endorsement under this section expires on the day on which the precious stones prospecting permit to which the endorsement relates expires or is renewed, whichever occurs first.

A holder of a precious stones prospecting permit—

whose application for endorsement of his or her precious stones prospecting permit under this section is refused by an opal mining registrar;

or

who receives a notice under subsection (5) imposing a condition on the endorsement; or

who receives a notice under subsection (10) revoking an endorsement, or varying the conditions, of the precious stones prospecting permit, may apply to the Warden's Court to have the relevant decision or decisions of the opal mining registrar reviewed.

An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days after the relevant notice is given to the person.

At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for a particular decision, do 1 or both of the following:

—

in the case of a review of a decision of an opal mining registrar to refuse to endorse a precious stones prospecting permit under this section—quash the opal mining registrar's decision; or

in the case of a review in respect of a notice under subsection (5) or (10)—cancel the revocation or the imposition or variation of the relevant condition (as the case requires);

remit the subject matter of the review to an opal mining registrar for reconsideration.

An opal mining registrar must not, in exercising a power or function under this section, act in a manner that is inconsistent with the

Mintabie Township Lease Agreement.

A precious stones prospecting permit does not authorise a person to prospect for precious stones on exempt land.¹

A precious stones prospecting permit does not authorise the conduct of operations that involve the disturbance of land by declared equipment or explosives, other than where explosives are used to assist in sinking a prospecting shaft.

A precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement on land that has been granted in fee simple, or is subject to native title conferring an exclusive right to possession of the land, except with the written consent of the owner of the land.

If the holder of a precious stones prospecting permit is a corporation, the precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement—

on land that is within a precious stones field unless—

the land is within a designated area; or

the land is not within 500 metres of a registered tenement at the time of pegging;² or

the corporation was lawfully prospecting on land within the precious stones field at the time the precious stones field was declared and the pegging occurs during the course of that prospecting, or within three months of a cessation of that prospecting; or

on land that is within an exclusion zone.

A precious stones prospecting permit does not authorise the pegging out of an area for an opal development lease on land that is within a precious stones field unless—

the land is within a designated area; or

the land is not within 500 metres of a registered tenement at the time of pegging and is not over ground that has been previously disturbed by mining operations.

A precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement on land that is within an opal development area under the Mining Act.³

A precious stones prospecting permit does not authorise the pegging out of an area that is not either wholly within, or wholly outside, a precious stones field.

A precious stones prospecting permit does not authorise the pegging out of an area for a precious stones tenement on land—

that is within an area that has been pegged out by another person (that pegging out not having lapsed or been cancelled); or

that is within an existing precious stones tenement.⁴

If a precious stones tenement lapses or is cancelled under this

Act—

if the tenement is an opal development lease—

the holder of the lease must not peg an area for another opal development lease on land that was within the previous lease; and

no other person may peg an area for another opal development lease on land within the previous lease unless at least 30 days have elapsed since the previous lease came to an end; and

if the tenement is a precious stones claim—the holder of the claim must not, without the written approval of the Opal Mining Registrar, peg an area for another tenement on land within the previous tenement unless at least 12 months have elapsed since the previous tenement came to an end.

A person may appeal against a decision of the Opal Mining Registrar not to grant an approval under subsection (8)(b) to the Warden's Court and the court may, on appeal—

confirm the Opal Mining Registrar's decision; or

reverse the Opal Mining Registrar's decision.

A person must not have pegged out at the same time—

more than one area for an opal development lease;

more than one area for a precious stones claim in a part of a precious stones field that is not within a designated area, subject to the qualification that a person may peg out two areas for precious stones claims in such a case if one or both of the claims are within the area (or former area) of an opal development lease⁵;

more than two areas for precious stones claims.

A person must not peg out an area if to do so would be contrary to the regulations.

1 Detailed provisions about exempt land appear in section 6.2 There is one exception to this provision, namely, the holder of an opal development lease can peg out an area for a precious stones claim within the area of the lease.3 See section 8A of the Mining Act.4 There is one exception to this provision, namely, the holder of an opal development lease can peg out an area for a precious stones claim within the area of the lease.5 Section 23(2)(b) provides that a person can only peg out one area for a precious stones claim within the area of an opal development lease during the term of registration. However, once the registration of the lease has come to an end, a person could peg out and register another opal development lease and, subsequently, another precious stones claim.

The size, shape and dimensions of an area pegged out under a precious stones prospecting permit must conform with the regulations.

The person who pegs out an area must ensure that all posts, boundary indicators and notices are maintained in accordance with requirements prescribed by the regulations.