Bowen Mining Company seeks advise in relation to issues concerning a recently obtained exploration permit for coal (EPC). Some issues have arisen in relation to a number of properties in the Bowen Basin.
Properties owned by Grazing Co, namely ‘Miranda’ and ‘Willow’ and also a third property owned by Tsing, have been affected by the execution of the EPC.
Access to properties
Access to the properties in question needs to be addressed.
To gain lawful access to the before said properties a number of provisions and conditions must be met. Although, access is an entitlement under the act1 the legislative frame work must be followed.
The provisions and conditions are set out in the Mineral Recourses Act 19892 that makes reference to the Land Access Code3 and also the Small Scale Mining Code. 4Another source of information/reference is the Mineral and coal exploration guideline.5
Mineral Recourses Act 1989
Mineral Recourses Act 1989 has a number of sections in relation to access and conditions of the EPC.
Section 140A6 ‘Obligation to consult with particular owners and occupiers’, states the following;
“(1) An exploration permit holder must consult or use reasonable endeavours to consult with each owner and occupier of private or public land on which authorised activities for the permit are proposed to be carried out or are being carried out.
(2) The consultation must be about—
(a) access; and
(b) the carrying out of authorised activities for the exploration permit (including, for example, crossing access land for the permit) to the extent they relate to the owners and occupiers; and
(c) the exploration permit holder’s compensation liability to the owners or occupiers.”
The word ‘must’ does not give the EPC holder any other alternative but to comply with the legislation.
Further, to section 140A7 is s141,8 ‘Conditions of exploration permit’;
“(1) Each exploration permit shall be subject to—
(aa) a condition that the holder must—
(i) comply with the mandatory provisions of the land access code and the small scale mining code to the extent the codes apply to the holder; and
(ii) ensure any other person carrying out an authorised activity for the exploration permit complies with the mandatory provisions of the land access code and the small scale mining code;”9
This section points out a number of conditions the EPC holder also ‘must’ ensure are carried out, in particular section (1)(aa) (i) and (ii)10 provides that mandatory provisions in the Land Access Code and the Small Scale Mining Code are complied with. In this situation the small mining code is not relevant.
Schedule 1,11 includes access and compensation provisions that also need to be adhered to. The schedule has an immense impact on the process/processes that have already taken place and that are most probable to take place.
The schedule forms the basics for what needs to happen prior to gaining access to a property under an EPC. The schedule lists a number of activities such as, ‘preliminary activity’ and ‘advanced activity’, the different types of activity plays a crucial part in determining what steps are to take when executing an EPC.
Land Access Code
The land access code12 sets out general principles in part 2 section 4.13 The general principles outline how EPC and landholders should conduct themselves.
Part 3 of the land access code14 lists the mandatory conditions for resources authorities.15 These conditions include but are not limited to the following;
Access points, roads and tracks
Livestock and property
Gates, grids and fences.
All of the above need to be taken into consideration when executing an EPC.
It is noted that a both Grazing Co and Tsing received the required notices being the notice of entry and the negotiation notice on 10 January 2013 that complied