Mining Act by State: NSW, Vic, Qld, WA, SA, Tas Tenement Regimes

Six state mining Act framework

Each Australian state has its own legislation governing mining tenement regimes. These Acts establish the framework for exploration and production, and vary considerably in their structure and detail. The six state mining Acts are the NSW Mining Act 1992, Victoria's Mineral Resources (Sustainable Development) Act 1990, Queensland's Mineral Resources Act 1989, Western Australia's Mining Act 1978, South Australia's Mining Act 1971, and Tasmania's Mineral Resources Development Act 1995.

The Acts define different types of tenements, such as exploration licences, assessment leases, mining leases, prospecting licences, mineral development licences and mining licences. For example, NSW structures titles in Parts 3, 4 and 5 of the Mining Act 1992, while Western Australia’s Mining Act 1978 provides for prospecting licences, exploration licences and mining leases. Activities undertaken under these tenements may require EPBC Act environmental approvals and consideration of Native Title Act 1993 future acts.

A common feature across all six state mining Acts is the principle that minerals are vested in the Crown. This means that the state owns the minerals beneath the surface. Before any on-ground activity can occur, landholders must either agree to access or be compensated.

Exploration tenements: what they authorise

Exploration tenements grant specific rights to prospect for minerals within a defined area. In New South Wales, an exploration licence under the Mining Act 1992 Part 3 provides exclusive rights to explore for specified minerals. Queensland exploration permits, issued under the Mineral Resources Act 1989, similarly authorise exploration activities. Western Australian exploration licences are limited in area, and Victorian exploration licences under the MRSDA 1990 require a work program and rehabilitation bond before work can begin. EPBC environmental offsets policy may be relevant to exploration activities.

These exploration tenements are granted for defined periods. NSW exploration licences can be granted for terms of up to 6 years, while Queensland exploration permits are typically granted for 5 years, with relinquishment requirements at renewal. WA exploration licences also have defined terms and require minimum expenditure commitments lodged annually. Offshore Petroleum and Greenhouse Gas Storage Act 2006 governs exploration in offshore areas.

Importantly, exploration tenements do not authorise the extraction of minerals. Rights to extract minerals for sale require a separate mining lease or licence in each jurisdiction. The focus of these tenements is solely on exploration activities, not production.

Production tenements and development consent

Production tenements in each state require adherence to specific conditions. In New South Wales, a mining lease cannot be granted until development consent is secured under the Environmental Planning and Assessment Act 1979. All jurisdictions mandate environmental authorities, rehabilitation bonds, and royalty payments, the latter calculated on production or ad valorem. EPBC Act environment protection framework considerations also apply.

Queensland mining leases permit machine-mining for specified minerals and the construction of associated infrastructure, including processing plants and tailings dams. WA mining leases, governed by the Mining Act 1978, have an initial term of 21 years, with potential for successive 21-year renewals contingent upon ongoing compliance. WHS Act primary duty section 19 obligations must also be met.

Royalty rates are determined by the specific mineral and the state in which it is extracted. Queensland coal royalties are structured using a progressive ad-valorem scale, as defined within the Mineral Resources Regulation.

Land access and compensation

All state Mining Acts mandate that explorers and miners secure access arrangements with private landholders prior to any surface disturbance. These arrangements outline the terms of access and any associated conditions. In New South Wales, sections 140-156 of the Mining Act detail the access arrangement regime, including a process for arbitration should an agreement not be reached. Failure to obtain these required access arrangements constitutes an offence in each state, attracting penalties for unauthorised entry.

Queensland’s Mineral Resources Act 1989 establishes a system of conduct and compensation agreements. These agreements require compensation to be provided to landholders for both the deprivation of use of their land and any diminution in its value resulting from mining activities. Native Title Act 1993 future acts procedures operate alongside state tenement grants.

It is important to note that Industrial manslaughter laws by state may also be relevant to mining operations impacting private land.