Mining Act and Another Act Amendment Act 1974 (Qld)

487 QllreltsIFIntt ANNO VICESIMO TERTIO ELIZABETHAE SECUNDAE REGINAE No. 49 of 1974 An Act to amend the Mining Act 1968 - 1973 and the CoalMining Act 1925 - 1969 , each in certain particulars [ASSENTED TO 18TH SEPTEMBER, 1974] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title and citation . This Act may be cited as the Mining Act and Another Act Amendment Act 1974. 2. Commencement of Act. This Act shall commence on a date fixed by Proclamation. 3. Arrangement . This Act is divided into Parts as follows:- PART I-PRELIMINARY (SS. 1-4); PART II-AMENDMENT OF THE MINING ACT 1968-1973 (ss. 5-43); PART Ill-AMENDMENT OF THE COAL MINING ACT 1925-1969 (ss. 44-46) ; SCHEDULE

488 Mining Act and Another Act Amendment Act 1974, No. 49 4. Declaring as to continuance of applications over private land for mining purposes . (1) In this section the term application " means an application for a title to or for registration of a mining tenement in private land made before the date of commencement of the Mining Act1968 as amended by the Mining Act Amendment Act1971 and the MiningAct Amendment Act1971(No.2), namely 1 January 1972. (2) For the purpose of avoiding the raising and continuance of disputes concerning the survival of any application and the effect thereon of the repeal of the Acts and the enactment set forth in the schedule to the Mining Act Amendment Act1971 it is declared- (a) that an application was not, and shall not be taken to have been, prejudiced or otherwise affected by such repeal; (b) that, save where it has been withdrawn or duly disposed of, an application shall be taken to have continued in being since such repeal and, save as aforesaid, shall be taken to continue in being hereafter as an application for a title to or for registration of a mining tenement in the private land to which it relates (according as it purports) made under the MiningAct1968 as subsequently amended; and (c) that an application, which continues in being at the passing of this Act, may be disposed of in accordance with the MiningAct1968 as subsequently amended. PART 11-AMENDMENT OF THE MINING ACT 1968-1973 5. Citation . (1) In this Part, the Mining Act1968-1973 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Mining Act1968-1974. 6. Amendment of s. 5. Section 5 of the Principal Act is amended by- (a) in subsection (1), omitting the proviso to the fifth paragraph thereof and substituting the following proviso:- " Provided that a renewal of any such lease sought after the date of commencement of this Act shall be sought in accordance with and subject to this Act as if that lease were a mining lease and, for the purpose of such renewal, this Act shall apply in respect of the lease sought to be renewed as if it were a mining lease and, if the lease is renewed, the renewed lease shall be a mining lease subject in all respects to its own terms and the provisions of this Act."; (b) inserting after subsection (2) the following subsection:- " (3) A coal-mining lease or a special coal-mining lease, iu either case issued before the date of commencement of the Mining Act and Another Act Amendment Act 1974, shall continue in force for the term it has yet to run at the date of commencement of that Act, subject to its own conditions and to the Act or Acts to which it is at that date subject and to that extent the provisions of the Act or Acts to which the lease is subject shall be deemed to continue in force in relation to the lease:

Mining Act and Another Act Amendment Act 1974, No. 49 489 Provided that a renewal of any such lease sought after the date of commencement of the Mining Act and Another Act Amendment Act 1974, shall be sought in accordance with and subject to this Act as if that lease were a mining lease and, for the purpose of such renewal, this Act shall apply in respect of the lease sought to be renewed as if it were a mining lease and, if the lease is renewed, the renewed lease shall be a mining lease subject in all respects to its own terms and the provisions of this Act. An authority to prospect issued under The Coal Mining Act of 1925 as amended at the date of issue and subsisting at the date of commencement of the Mining Act and Another Act Amendment Act 1974 shall be deemed to have been issued under this Act and, for the balance of its term current at that date, shall enure for the benefit of its holder subject to the provisions of this Act. An application for a coal-mining lease or a special coal-mining lease under and in accordance with The Coal Mining Act of 1925 as amended at the date of application in respect of which a lease has not been granted or refused at the date of commencement of the Mining Act and Another-Act Amendment Act 1974 shall be deemed to be an application for a mining least duly made under this Act and any lease granted thereon shall be in accordance with and subject to the provisions of this Act, but where the applicant has prior to that date made payments to the Crown for use and occupation of the land (to which the application relates) for mining purposes, the annual rental in respect of such lease when granted shall not exceed the aggregate amount (excluding penalties) of such payments made by him throughout the period of one year. The repeal of the Coal Mining Act1925-1969 to the extent set forth in the Schedule to the Mining Act and Another Act Amendment Act 1974 shall not affect the validity of any lease, license, permit or other authority issued under The Coal Mining Act of 1925 as amended to the date of issue, or of any act or thing done or omitted purportedly in exercise of any right, power or authority thereunder or of any determination made by a Wardens Court in a proceeding commenced before the date of commencement of the Mining Act and Another Act Amendment Act 1974.". 7. Amendment of s. 7. Section 7 of the Principal Act is amended by, in subsection (1)- (a) inserting after the definition " authority " the following definition:- " " authority to prospect "-An authority to prospect issued under this Act or deemed so to be;"; (b) in the definition " holder "- (i) inserting within the brackets after the words ." mining lease where they occur in subparagraph (b) the words " or land in respect of which there exists an application for such a lease "; (ii) omitting subparagraph (d) and substituting in its stead the following subparagraph:- (d) land referred to in subparagraph (a), (b) or (c) in respect of which two or more persons are in possession, registered, lessees or, as the case may be, applicants, each of such persons;";

490 Mining Act and Another Act Amendment Act 1974, No. 49 (c) omitting from the definition " mineral " subparagraph (b); (d) omitting the definition " mining tenement " and substituting the following definition:- " "Lmining tenement "-Land that is- (a)'comprised in a mining lease; (b) subject to an application for a mining lease recommended by the Minister; (c) subject to an application for a mining lease, which application has not been disposed of by the Minister (by recommendation or rejection); (d) taken up and occupied for any mining purpose under and by virtue of a miner's right issued under this Act, or deemed so to be, or under and by virtue of a licence or other authority issued or granted under any other Act relating to mining; (e) comprised in a right of way taken up, occupied, held, used or enjoyed under this Act or under any other Act relating to mining: The term does not include land that is comprised in the area specified in an authority to prospect, for so long as that authority subsists;"; (e) omitting the definition " public purpose "; (f) omitting from the definition " reserve " subparagraph (c) and substituting the following subparagraph:- (c) granted in trust, reserved or set. apart for any public purpose under the Land Act 1962-1974 or under any other Act, other than as a Timber Reserve within the meaning of the ForestryAct1959-1974;". 8. Amendment of s. 10 . Section 10 of the Principal Act is amended by, in subsection (1), inserting after the words " cause to be issued " the words " to a person who makes application therefor ". 9. Amendment of s. 12 . Section 12 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:- " (2) Subject to the rights of the Crown therein, all minerals found on or in land lawfully occupied by the holder of a miner's right for the purpose of mining are the property of that holder.". 10. Amendment of s. 13. Section 13 of the Principal Act is amended by- (a) omitting subsection (1) and substituting the following subsection:- " (1) Subject to this Act, the holder of a miner's right shall be entitled to- (a) take possession of and occupy Crown land for mining purposes (other than mining for coal); (b) take possession of and occupy as a place of residence or business Crown land and any part of the surface of land comprised in a mining lease reserved and set apart for the 'purpose of residence or, as the case may be, business;

Mining Act and Another Act Amendment Act 1974, No. 49 4-91 (c) cut, construct and use for mining purposes races and dams upon and through Crown land that is not occupied for mining purposes; (d) right of way over Crown land that is not occupied for mining purposes; (e) erect and maintain any structure upon land lawfully occupied by him, and remove the same; (f) cut, remove and use timber and get, remove and use stone, clay and gravel on and from Crown land for the purpose of building for himself while he carries on mining operations a place of residence or for mining purposes."; (b) in subsection (2), omitting the words " subparagraph (f) or (g) " and substituting the words " subparagraph (b) or (f) ". 11. Amendment of s. 14 . Section 14 of the Principal Act is amended by, in subsection (1), omitting all words commencing with the words " on or in - Crown land which-" to the end of the subsection and substituting the following words:- on or in- (a) Crown land- (i) which is lawfully used as a yard, garden, orchard or cultivated field; (ii) which is actually occupied and on which is erected a house, shed or other building; or (iii) on which an artificial dam or reservoir is situated or a well, or a bore is sunk, except upon payment to the person entitled thereto of compensation to be determined in the manner prescribed; or (b) Crown land which is comprised in a mining lease or in respect of which an application for a mining lease has been made and is yet to be disposed • of by the Minister; or (c) Crown land specified in an authority to prospect unless the holder of that authority has consented thereto.". 12. Amendment of s. 18. Section 18 of the Principal Act is amended by- (a) omitting subsection (2) and substituting the following subsection:- " (2) During the term of an authority to prospect an application, made after the date of commencement of this Act, for a mining lease over land in respect of which the authority subsists shall not be recommended by the Minister or granted by the Governor in Council nor shall a mining tenement in such land be registered save- (a) where the applicant for the lease or for registration of the tenement is the holder of the authority; or (b) where the holder of the authority consents to the grant of the lease or, as the case may be, the registration of the tenement.

492 Mining Act and Another Act Amendment Act 1974, No. 49 Where there are more holders of an authority to prospect than one a reference in this subsection to the holder of the authority shall be construed as a reference to all those holders."; (b) adding at the end of the section the following subsection:- " (3) Where the person who is the holder of an authority to prospect makes application for a mining lease over land in respect of which the authority subsists and the term of the authority expires before the grant of a mining lease on that application then for the purposes of subsection (2) (and for no other purpose) the term shall be deemed not to have expired but to continue until the rejection by the Minister of the application or the grant by the Governor in Council of a mining lease on the application, whichever event is the last to occur.". 13. Amendment of s. 21. (1) Section 21 of the Principal Act is amended by, in subsection (1)- (a) inserting in subparagraph (b) within the brackets and after the words " any land " the words " or of diverting or appropriating water "; (b) adding at the end of the subsection the following paragraph:- "For the purposes of this subsection a person shall be* taken to have complied with the provisions of this Act if he has, in the opinion of the Governor in Council, substantially complied with those provisions.". (2) The provisions added to section 21 (1) of the Principal Act by paragraph (b) of subsection (1) apply in respect of an application for a mining lease made at any time before the commencement of this Act as well as to any such application made after such commencement. 14. Amendment of s. 22 . Section 22 of the Principal Act is amended by omitting provision (b) and substituting the following provision:- (b) Crown land within an area. specified in a subsisting authority to prospect unless the holder of the authority consents to the grant of the mining lease.". 15. Amendment of s. 28. Section 28 of the Principal Act is amended by, in subparagraph (a) of subsection (I)- (a) inserting after provision (viii) the following provision:- " (viiiA) a covenant not to obstruct or interfere with any right of access, which exists or at any time comes into existence in respect of the mining tenement that is subject to the mining lease, for as long as such right is exercised; "; (b) omitting from provision (ix) the words " five hundred dollars " and substituting the expression " $2 000.00 ". 16. New s. 28A. The Principal Act is amended by inserting after section 28 the following section:- " 28A. Surface area in case of coal-mining lease. (1) In every mining lease granted for the purpose of mining coal- (a) there shall be reserved from use or occupation by the lessee the whole of the surface of the mining tenement that is subject to the mining lease save a portion or

Mining Act and Another Act Amendment Act 1974, No. 49 493 portions of such surface not exceeding in the aggregate 100 acres or such greater area as the Minister may, in a particular case, have approved of and recommended to the Governor in Council accordingly; (b) there shall be deemed to be included a covenant on the part of the lessee that he shall not use or occupy any part of the surface of the mining tenement that is subject to the mining lease over and above that area of surface which he is entitled to use for the time being pursuant to this Act. (2) For breach of the covenant specified in subparagraph (b) of subsection (1) the lessee shall be liable to the penalties prescribed with respect to a breach of any other covenant of a mining lease by provision (ix) of section 28 (1). (3) The lessee of a mining tenement that is leased for the purpose of mining coal, whether or not he is entitled to use or occupy any portion of the surface of the mining tenement, may at any time apply to the Minister for the right to use or occupy a portion of such surface or, as the case may be, an additional portion of such surface for mining purposes and the Minister may grant such application, wholly or to such extent as he thinks fit, or reject such application. A lessee shall be entitled, subject to this Act, to use or occupy for mining purposes such portion of the surface of the mining tenement as is granted to him by the Minister under this subsection.". 17. Amendment of s. 30 . Section 30 of the Principal Act is amended by- (a) in subsection (1), inserting after the word " mineral " the brackets and words " (other than coal) "; (b) inserting after subsection (2) the following subsections:- (2A) Save to the extent that an exemption in respect thereof is granted under this Act and for the time being subsists, a mining tenement leased for the purpose of winning coal shall' be worked by the continuous employment of- (a) not less than one man for every 40 acres or part thereof of the mining tenement during the first two years of the term of the lease; and (b) not less than one man for every 20 acres or part thereof of the mining tenement during the remainder of the term of the lease. (2B) Subject to the approval of the Minister first had and obtained an expenditure which is- (a) not less than $200.00 for every 40 acres or part thereof of the mining tenement during the first two years of the term of the lease; and (b) not less than $200.00 for every 20 acres or part thereof of the " mining tenement during the remainder of the term of the lease; and (c) in respect of work performed bona fide and continuously and with reasonable diligence and skill for purposes necessary to the effectual proving, development, and

494 Mining Act and Another Act Amendment Act 1974, No. 49 working of the mine or mines in the mining tenement or in respect of the geological or geophysical examination of the mining tenement, shall be taken to be equivalent to the continuous employment of, (i) one man for every 40 acres or part thereof of a mining tenement leased for the purpose of winning coal during the first two years of the term of the lease; and (ii) one man for every 20 acres or part thereof of a mining tenement leased for the purpose of winning coal during the remainder of the term of the lease, and, to that extent, to be sufficient compliance with the provisions of paragraph (a) or, as the case may be, paragraph (b) of subsection (2A)."; (c) in subsection (3), inserting after the expression " subsection (1) the expression " or (2A) "; (d) in subsection (4), inserting after the expression " subsection (1) " and the expression " subsection (2) ", wherever either expression occurs, the expression " or (2A) " and the expression " or .(2s) respectively. 18. New s. 32A. The Principal Act is amended by inserting after section 32 the following section :- " 32A. Variation of provisions of mining lease . (1) The covenants, conditions and reservations to which a mining lease is for the time being subject, may be varied by the Governor in Council upon the recommendation of the Minister and the agreement of the lessee but so that the terms of such lease as varied are not in any respect inconsistent with this Act. (2) A mining lease that is duly varied in any respect shall, for the balance of its term or until it is again duly varied in any respect (whichever period is the longer), be subject to its covenants, conditions and reservations as so varied. (3) Particulars of every variation of a mining lease- (a) shall be evidenced in a writing made by the Minister and the lessee; (b) shall be entered in the appropriate register and on the instrument of such mining lease and every copy thereof.". 19. Repeal of and new s . 37. The Principal Act is amended by repealing section 37 and substituting the following section:- " 37. Transfer, etc., of mining lease or application therefor. (1) Subject to this Act, and with the approval of the Minister- (a) a mining lease or any share or interest therein may be transferred, assigned, sub-let or encumbered; and (b) an application for a mining lease, which is yet to be disposed of by the Minister, or any share or interest therein may be transferred or assigned, in the prescribed manner and upon payment of the prescribed fee. (2) A person desirous of exercising a power referred to in subsection (1) shall make application to the Minister for his approval to that exercise and shall furnish to the Minister such information with respect thereto as the Minister requires.

Mining Act and Another Act Amendment Act 1974, No. 49 495 Upon such an application- (a) the Minister may cause the applicant to be informed that upon receipt of such document as is material to the exercise duly completed and if the Minister thinks fit, lodged within a time (not exceeding three months) specified by him and subject to such other conditions as the Minister thinks fit, he will approve the exercise; or (b) the Minister may cause the applicant to be informed that he does not approve of the exercise. (3) Upon receipt of an appropriate document that gives effect to an exercise of power, being one of which the Minister has indicated he will approve and upon compliance with all conditions indicated as conditions to which such approval is to be subject the Minister shall cause particulars of such exercise of power to be entered in the appropriate register or, as the case may require, such other steps to be taken as are necessary to give effect to or evidence such exercise of power. (4) Any purported transfer, assignment, sub-letting, encumbrance of a mining lease or an application therefor or of any share or interest therein that is not made in accordance with this section is void.". 20. Amendment of s. 38. Section 38 of the Principal. Act is amended by omitting from subsection (1) the words " before the instrument of lease is issued " and substituting the words " before the grant of the mining lease ". 21. Amendment of s. 39. Section 39 of the Principal Act is amended by adding at the end of the section the following subsection:- " (4) Where the purpose of a lessee's surrender of his interest in the whole or part of a mining tenement is that he may be granted a new mining lease over land that includes or is included in the tenement or part surrendered he may continue to mine the tenement or part surrendered, subject to and in accordance with his mining lease, as if that lease continued to relate to that tenement or part until the new mining lease is_ granted by the Governor in Council or his application therefor is rejected by the Minister (whichever event is the first to occur) and in the event of his application being so rejected the surrender shall be taken to be void and the mining lease, which, but for this provision, would have been affected thereby, shall revive in respect of the mining tenement or part purportedly surrendered and shall continue for the balance of its term then outstanding as 'if the surrender had never been effected.". 22. Repeal of s. 43 and new Division IV. The Principal Act is amended by repealing section 43 and the heading immediately preceding that section and substituting the following heading and sections:- " DIVISION IV-COMPENSATION FOR DAMAGE CAUSED BY MINING ON CROWN LAND 43. Meaning of terms. (1) For the purposes of this Division, when Crown land is taken up and occupied by virtue of a miner's right or is included in a mining lease or an authority to prospect- (a) a person lawfully entitled to mine or prospect in or on that land is called the " miner ";

496 Mining Act and Another Act Amendment Act 1974, No. 49 (b) a person for the time being lawfully entitled to possession of that land is called the " lessee "; (c) a person lawfully entitled to the use of improvements on that land or elsewhere is called the " owner ". (2) For the purposes of this Division, improvements situated on land include improved pastures thereon. 43AA. Prospective assessment of damage . (1) When Crown land is taken up and occupied by virtue of a miner's right or is included in a mining lease or an authority to prospect application may be made to the warden by the miner, the lessee or the owner to assess the amount of damage likely to be caused to- (a) the lessee's interest in the land; (b) improvements situated on or off the land by mining or prospecting. (2) If the warden to whom such application is made is satisfied that damage of either kind referred to in subsection (1) is likely to be so caused he shall assess (so far as he is able) the amount of such likely damage and, by notice in writing to the miner, shall require the miner to deposit with him within 21 days of the date of the notice- (a) the amount so assessed; or (b) a bond in the amount so assessed and so conditioned as to be acceptable to the warden to be held by him as security against the miner's causing such damage. 43BA. Assessment of actual damage . (1) In any case where an application could be made under section 43AA an application may be made to the warden by the miner, the lessee or the owner, from time to time within one year after the miner commences mining or prospecting in or on the land concerned, to assess the amount of actual damage caused to- (a) the lessee's interest in the land; (b) improvements situated on or off the land by such mining or prospecting. (2) The warden shall assess the amount of the actual damage in respect of which such application is made and- (a) where an amount or a bond has not been deposited with him pursuant to a requisition made under section 43AA (2) shall, by notice in writing to the miner, require the miner to deposit with him within 21 days of the date of the notice the amount so assessed: or (b) where an amount or a bond has been deposited with him pursuant to a requisition made under section 43AA (2) shall, by notice in writing to the miner, require the miner to deposit with him within 21 days of the date of the notice the amount whereby the actual damage (as assessed by him) exceeds the amount or the amount of the bond so deposited.

Mining Act and Another Act Amendment Act 1974, No. 49 497 (3) An assessment of actual damage made under this section shall be final as between the miner and the person or persons for whose benefit the assessment is made. 43CA. Miner to obey warden's requisition .. A miner to whom a requisition of a warden is directed under section 43AA (2) or 43BA (2) shall comply with the requisition and until he does so he shall not commence or, as the case may be, continue to work in or on the land concerned. 43DA. Disposition of funds paid to warden . (1) A warden shall. hold an amount paid to him as security under section 43AA to be disposed of- (a) if damage is caused by the mining or prospecting in question to the interest or improvements on account of likely damage to which the amount or part thereof was assessed, in payment to the lessee or owner, as the case requires, of the amount of the actual damage so caused; (b) upon the miner ceasing to mine or prospect in or on the land taken up and occupied or included in the mining lease or authority to prospect in question, in payment to him or as he directs in writing such part of the amount as has not been expended under subparagraph (a) of this subsection. (2) If an amount is paid to a warden pursuant to a bond held by him as security under section 43AA on account of actual damage. caused to the interest or improvements on account of likely damage to which the bond was required to be deposited the warden shall pay that amount to the lessee or owner, as the case requires. (3) A warden shall pay so much of an amount paid to him pursuant to a requisition made under section 43BA (2) to the lessee or owner, as the case requires, as is necessary to compensate him for the actual damage caused to the interest or improvements in relation to which the assessment of actual damage was made under section 43BA and, as to any part of the amount that is not so expended; shall repay that part to the person who paid the amount to him. 43EA. Provisions affecting assessments . (1) For the purpose of making an assessment of likely damage under section 43AA or of actual damage under section 43BA a diminution of use which can be made of any land or improvements likely to be caused or actually caused by the mining or prospecting in question shall be taken to be damage to an interest in such land or to such improvements to the extent to which the use is likely to be or is diminished. (2) When the mining or prospecting in contemplation of which an assessment is made under section 43AA is not commenced within one year of its making, the assessment shall lapse and, thereafter, shall be of no force and effect.

498 Mining Act and Another Act Amendment Act 1974, No. 49 43FA. Common law rights not affected . The foregoing provisions of this Division or anything done thereunder shall not prejudice any right had by law by any lessee or owner to recover from the person liable therefor the full amount of damage sustained by him.". 23. Repeal of and new s. 43D. The Principal Act is amended by repealing section 43D and substituting the following section:- " 43D. Effect of caveat . For so long as a caveat remains in force the warden shall not register in respect of the mining tenement identified in the caveat any dealing save- (a) a dealing the registration whereof is excepted in the caveat; or (b) a dealing the registration whereof is agreed to by the written consent of the caveator lodged with the warden.". 24. Amendment of s. 44 . Section. 44 of the Principal Act is amended by- (a) in subsection (4), (i) inserting after the words " nominated by the Minister " the words ", or a bond in such amount and so conditioned as to be acceptable to the Minister,"; (ii) omitting the words " such sum " and substituting the words such security "; '(iii) adding at the end thereof the following paragraph:- " Where the security lodged with the Minister consists of a bond there shall be deemed to be included in the mining lease or, as the case may be, authority to prospect for the benefit whereof the consent of the Governor in Council is sought a covenant or condition, as the case may be, on the part of the lessee or authority holder, as the case may be, his executors, administrators and assigns to be observed and performed to maintain the bond in existence throughout the doing of the act for which such consent is sought and to lodge with the Minister evidence of the last renewal of the bond within one month after such renewal thereof."; (b) in subsection 5, (i) omitting the words " a sum is lodged with the Minister as security, the Minister shall apply so much thereof " and substituting the words " security is lodged with the Minister there shall be applied so much thereof (where the security is a sum of money) or so much of the amount recovered thereunder (where the security is a bond) "; (ii) omitting the words " moneys are held as security " and substituting the words " security is held "; (iii) omitting the words " moneys in question are held by him as such security " and substituting the words " security is held "; (iv) omitting the words " such moneys as are " artd substituting the words " the security being money "; (v) omitting the words " such moneys " and substituting the words " any money held by him as security "; (c) renumbering subsection (7) as subsection (6).

Mining Act and Another Act Amendment Act 1974, No. 49 499 25. New s. 58A. The Principal Act is amended by inserting after section 58 the following section:- " 58A. Access over alien land to mining tenement . (1) The holder of a mining tenement and the applicant for a mining tenement, subject to this section, shall be entitled to and shall be deemed always to have been entitled to the free right and privilege of access, including ingress, egress and regress, into, upon, over and out of all Crown land (whether occupied or unoccupied) for the purpose of gaining access to the tenement. (2) Subsection (1) does not confer the right and privilege therein referred to in respect of land- (a) that is lawfully used as a yard, garden, orchard or cultivated field; (b) that is actually occupied and on which is erected a house, shed or other building; or (c) on which an artificial dam or reservoir is situated or a well or a bore is sunk. (3) Where, before the commencement of the Mining Act and Another Act Amendment Act 1974, a right of access like that conferred by subsection (1) existed in respect of any land pursuant to an agreement the right conferred by subsection (1) in respect of that land is subject to the same terms and conditions (other than as to duration of the right) as governed the right prior to the commencement of such Act. (4) The right conferred by subsection (1) extends to the agents and servants of the holder or applicant on whom the right is conferred, and to the use of vehicles and animals by him or them for mining purposes. (5) (a) A person who applies for a mining tenement after the commencement of the Mining Act and Another Act Amendment Act 1974 shall include in or with his application a diagram or sketch containing information and details as prescribed setting out the access into, upon, over and out of Crown land for the purpose of gaining access to and from the tenement. (b) A person who is the holder of or an applicant for a mining tenement before the commencement of the Mining Act and Another Act Amendment Act 1974 shall within the time prescribed lodge in the manner prescribed and at such place or with such person as is prescribed a diagram or sketch containing information and details as prescribed setting out the access into, upon, over and out of Crown land for the purpose of gaining access to and from the tenement. (c) A person referred to in paragraph (b) to whom subsection (3) applies, whose right of access pursuant to agreement is regulated in respect of its route by a term or condition of the agreement, shall show in the diagram or sketch lodged by him pursuant to paragraph (b) as the access into, upon, over and out of the land in question for the purpose of gaining access to and from the tenement the route that is regulated pursuant to such agreement.

500 Mining Act and Another Act Amendment Act 1974, No. 49 (6) Application may be made by- (i) any person who is the occupier of Crown land into, upon, over or out of which the holder of or an applicant for a mining tenement is entitled to the free right and privilege of access for the purpose of gaining access to the tenement; or (ii) the holder of or an applicant for a mining tenement as aforesaid at such place or to such person, in such manner and in accordance with such'procedure as is prescribed for a variation, in respect of its route or in relation to any other particular, of the right of access as aforesaid of the holder or applicant, and any such application for variation shall be dealt with in such manner and shall have such effect and consequences as are prescribed.". 26. New s. 71A. The Principal Act is amended by inserting after section 71 the following section:- " 71A. Entry upon land. (1) Any officer of the Department of Mines authorized by the Minister for the purposes of this section or any other person authorized by the Minister for the purposes of this section shall at all times have full and free access to all land and therein shall be entitled to drill, dig, take cores and samples of soil or rock, make such inspections and carry out such investigations as he thinks fit, and do such other acts ordinarily connected with mining as he thinks fit. (2) Any person- (a) who obstructs another person in the exercise by him of a right conferred on him by this section, or attempts so to do; or (b) who assaults or threatens another person who is exercising or seeking to exercise a right conferred on him by this section, commits an offence against this Act.". 27. Amendment of s. 80 . Section 80 of the Principal Act is amended by, in subsection (1), omitting subparagraphs (e), (f) and (h). 28. New s. 103A. The Principal Act is amended by inserting after section 103 the following section:- " 103A. Evidentiary provisions . (1) In any proceedings in respect of an offence against this Act- (a) a certificate purporting to have been made by or on behalf of the secretary of the Land Administration Commission that in relation to the land therein

Mining Act and Another Act Amendment Act 1974, No. 49 501 identified there exist or do not exist factors that are material to classifying that land as Crown land within the meaning of this Act shall, upon its production, be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein; (b) a certificate purporting to be made by a mining registrar that in relation to the land therein identified there is no record in the warden's office of- (i) the registration of a mining tenement; or (ii) an application for a mining tenement, shall, upon its production, be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein. (2) Where there is no record in a warden's office, in relation to particular land, of the registration of a mining tenement or of an application for a mining tenement it shall be presumed, until the contrary is proved, that, in the former case, there is no mining tenement in that land and, in the latter case, there is no application for a mining tenement in that land.". 29. Amendment of s. 106. Section 106 of the Principal Act is amended by, in subsection (2)- (a) adding at the end of provision (iv) the words " the removal of pegs from mining tenements surrendered, abandoned or forfeited;"; (b) adding at the end of provision (v) the words " the taking possession on behalf of the Crown of Crown land in which there is an abandoned or cancelled mining tenement; "; (c) adding at the end of provision (vi) the words " the payment of rent or pecuniary penalty by the holder of a claim, the circumstances in which that rent or penalty is payable and the amount of such rent or penalty; "; (d) omitting provision (viii) and substituting the following provision:- (viii) the entitlement of holders of miners' rights to cut, construct, use and maintain races, dams and reservoirs on Crown land; "; (e) omitting from provision (xiii) the words " of dams or reservoirs used or constructed for use in connexion with mining; " and substituting the words " of roads over a mining tenement, for use in connexion with mining; "; (f) adding at the end of provision (xx) the words " the award of costs by a warden in any proceeding taken before him and the enforcement of such an award; ". 30. Amendment of s. 108 . Section 108 of the Principal Act is amended by- (a) omitting the definitions " mineral " and " mining tenement ";

502 Mining Act and Another Act Amendment Act 1974, No. 49 (b) omitting the definition " mining title " and substituting the following definition: " " mining title "-A mining lease or an application for a mining lease recommended by the Minister, a miner's right, licence or other authority granted under this Act in connexion with a mining tenement and an authority to prospect issued under this Act or deemed to have been so issued; ". 31. Amendment of s. 109. Section 109 of the Principal Act is amended by- (a) omitting from the note appearing in and at the beginning of the section the words " and Coal Mining Act "; (b) in subsection (1), omitting the words " and of the Coal MiningAct1925-1969 "; (c) in subsection (2), omitting the words " coal-mining lease," and the words " or of the Coal Mining Act1925-1969 "; (d) in subsection (3), omitting the words " or of the Coal MiningAct1925-1969 ". 32. Amendment of s. 110. Section 110 of the Principal Act is amended by inserting after subsection (3) the following subsection:- " (3A) Where land has become road before the commencement of the Mining Act and Another Act Amendment Ad 1974 or becomes road after the commencement of that Act, coal which is on or below the surface of that land and which is not the property of the Crown (by reason of the foregoing provisions of this section or otherwise) shall become and shall be deemed always to have been on and from the date on which such land becomes or became road the property of the Crown save where the road is limited to a specified depth below the surface of such land or below a specified part of the surface of such land when, in such case the coal which is on or below the surface or specified part of the surface to the specified depth only shall become and shall be deemed always to have been as aforesaid the property of the Crown.". 33. New s. 110A. The Principal Act is amended by inserting after section 110 the following section:- " 110A. Crown may grant mining leases irrespective of ownership of coal . Subject to this Act, the Governor in Council may grant a mining lease in respect of private land for the purpose of mining coal notwithstanding that the instrument whereby that land was alienated in fee-simple by the Crown does not contain a reservation to the Crown of coal on or below the surface of that land.". 34. Amendment of s. 112 . Section 112 of the Principal Act is amended by, in subsection ( 1), omitting the words " or of the CoalMining Act1925-1969 ". 35. Amendment of s. 113. Section 113 of the Principal Act is amended by- (a) in subsection (2), omitting the words " (other than an authority to prospect or a coal-mining licence) ";

Mining Act and Another Act Amendment Act 1974, No. 49 503 (b) omitting subsection (3) and substituting the following subsection:- " (3) The provisions of subsection (2) do not apply where this Act otherwise expressly provides.". 36. Amendment of s. 114 . Section 114 of the Principal Act is amended by, in subparagraph (a), inserting after the words " that is " the words " , at the date an application therefor is made to the warden,". 37. Amendment of s. 118. Section 118 of the Principal Act is amended by- (a) in subsection (1), omitting the words " or of the Coal MiningAct1925-1969 "; (b) in subsection (4)- (i) omitting the words " or of the Coal Mining Act1925-1969 "; (ii) inserting after the words " subject to " the words " subsection (4A) and "; (iii) omitting the word " exceeding " and substituting the words " not less than "; (c) inserting after subsection (4) the following subsection:- " (4A) The warden shall not grant a permit to enter any part of land that is included in an authority to prospect save- (a) where the applicant for the permit is the holder of the authority; or (b) where the holder of the authority consents to the grant of the permit. Where there are more holders of an authority to prospect than one a reference in this subsection to the holder of the authority shall be construed as a reference to all those holders."; (d) in subsection (5), omitting the words " or of a coal-mining licence granted under the CoalMining Act1925-1969 " and the words " or licence "; (e) in subsection (6)- (i) omitting provision (d) and substituting the following provision:- (d) if granted, shall be given to the applicant or his agent or, where there is more than one applicant, to any one of them or to the agent of any one of them."; (ii) adding at the end of the subsection the following paragraph:- "Where the person who is the holder of a permit to enter private land makes application for a mining title to that land or any part thereof and the term of the permit expires before the grant of that title then for the purpose of the applicant's complying with any requirement of this Act that necessitates an entry being made on that land (and for no other purpose) the term shall be deemed not to have expired but to continue to be effective until the rejection by the Minister of the application or the grant by the Governor in Council of the mining title sought by the application, whichever event is the last to occur.". (f) in subsection (7), omitting from subparagraph (a) the words therein search for mineral " and substituting the following words:- (i) therein search for mineral; and

504 Mining Act and Another Act Amendment Act 1974, No. 49 (ii) therein do all other acts to comply with the requirements of this Act relating to the application for a mining title to that land or any part thereof or for registration of a mining tenement in that land; ". 38. Amendment of s. 119. Section 119 of the Principal Act is amended by, in subsection (1). omitting the words " or of a coal-mining licence granted under the Coal Mining Act1925-1969 ". 39. Repeal of and new s. 122. The Principal Act is amended by repealing section 122 and substituting the following section:- " 122. Restriction on mining titles , etc., to land in authority to prospect . During the term of an authority to prospect that includes private land a mining title shall not be granted, a mining tenement shall not be registered and a permit to enter shall not be granted in respect of that land save- (a) where the applicant for the mining title or permit or for registration of the mining tenement is the holder of the authority; or (b) where the holder of the authority consents to the grant of the mining title or permit or to the registration of the tenement. Where there are more holders of an authority to prospect than one a reference in this section to the holder of the authority shall be construed as a reference to all those holders.". 40. Amendment of s. 123 . Section 123 of the Principal Act is amended by omitting from subsection (4) the words " shall be given by prepaid registered post letter " and substituting the words " shall consist of a copy of the application (in the prescribed form) of which notice is to be given and, in addition, a copy of the certificate of application issued in relation thereto and shall be given by registered post or by certified mail service ". 41. Amendment of s. 127. Section 127 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:- " (1) Save with the consent of the owner or occupier of that private land first had and obtained, the holder of a mining tenement in private land or of a mining title in respect of private land shall not- (a) use water collected by such owner or occupier on land other than land that is included in an area of surface, which, at the material time, is included in the mining tenement or, as the case may be, mining title; (b) fell trees, strip bark or cut timber on land other than land that is included in an area of surface, which, at the material time, is included in the mining tenement or, as the case may be, mining title, or cause or suffer any such act to be done. The holder of a mining tenement in private land or of a mining title in respect of private land is entitled and shall be deemed to have always been entitled to do and to cause or suffer to be done on land that is included in an area of surface, which, at the material time, is included in the mining tenement or, as the

Mining Act and Another Act Amendment Act 1974, No. 49 505 case may be, mining title any of the acts specified in subparagraph (a) or (b) of the preceding paragraph without reference to the owner or occupier of the private land.". 42. Amendment of s. 131. Section 131 of the Principal Act is amended by omitting the words " pursuant to this Act or the CoalMining Act1925-1969 ". PART III-AMENDMENT OF THE COAL MINING ACT 1925-1969 43. Citation. (1) The Coal Mining Act 1925-1969 is in this Part referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Coal Mining Act1925-1974. 44. Amendment of s. 115. Section 115 of the Principal Act is amended by- (a) omitting from the note appearing in and at the beginning of the section the words " and regulations "; (b) omitting from the first paragraph of the section the words " and regulations "; (c) omitting from the second paragraph of the section wherever they occur the words " or regulations ". 45. Further amendments . (1) The Principal Act is further amended in the manner and to the extent set forth in the Schedule. (2) Upon and by virtue of the commencement of this Act the regulations made under The Coal Mining Act of 1925, as amended at the time of the making of the regulations, are revoked. SCHEDULE [s. 46] Title of Act Extent of Amendment Coal Mining Act 1925-1969 . . In section 1 (2) omit the words " Part IIA-Coal-Mining Licenses and Leases of Private Land;"; In section 4 omit the following definitions:- " Coalfield ", " Coal-mining lease " or " Lease ", " Coal-mining license " or " License ", " Crown land Improvements Mark the land ", " Miner's homestead ", "Miner's homestead lease", " Mining purposes " , " Mining tenement ". "Pendency of an application ",

506 Mining Act and Another Act Amendment Act 1974, No. 49 SC HEDULE-continued Title of Act I Extent of Amendment " Person ", " Prescribed ", " Private land Regulations ", Reserve ", " Stock "• Omit Part IT of the First Schedule and the heading thereto. Repeal- Sections 2, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 21 A, 22, 23, 24, 25, 26, 26A, 26B, 27, 27A, 28, 29, 30, 31A, 32, 33, 114 and Part IIA and the heading thereto and Part IIB and the heading thereto.