If you hold a Miner's licence pursuant to the Mineral Resources (Sustainable Development) Act 1990 in the state of Victoria and have an intention to engage in work on owned or occupied land, this recent decision form the Supreme Court of Victoria is highly relevant.
Key Facts/Background
- The defendants are the registered proprietors since 2019, who use the land for the purpose of grazing sheep.
- The plaintiff has held a miner's licence relevant to the land since 2022 under the Mineral Resources (Sustainable Development) Act 1990 (Vic), which they obtained for the purpose of subterranean gold mining inclusive of diamond core drilling and mineral sampling.
- The land is subject to reservations, registered on the title, which allow for licenced miners' use of the land for valid purposes. The Mineral Resources (Sustainable Development) Act 1990 (Vic) requires the plaintiff to undergo preparation and evaluation of risk prior to undergoing the works.
- The defendants resisted the plaintiff in granting them access to the property.
- An injunction was granted to the plaintiff originally to prevent the defendant's refusing entry to the property for the purpose of 'low impact exploration work' as this was for the preparation of work. The declarations sought were declined by the Court at this point.
- Following dispute of the meaning of 'low impact exploration work' the injunction was altered to remove this wording and include work to be completed in order to 'prepare a work plan for work under the Licence.'
- The parties submissions were heard at a final hearing.
The Decision
- Diamond core drilling and ancillary activity do not constitute 'low impact exploration' under s4 and Schedule 4A of the Mineral Resources (Sustainable Development) Act 1990 (Vic) (The Act).
- The proposed drilling was not required for the preparation of a work plan under s40 of the Act.
- Diamond core drilling and ancillary activity intended by the plaintiff are catergorised as 'work' under s 42(1) of the Act and therefore the plaintiff had an obligation to comply with the relevant consent or compensation requirements.
- The Court denied granting the declarations sought by the plaintiff.
- The Court denied granting the injunction sought by the plaintiff.
Key Reasoning
- The context and purpose of the Act do not allow for extensive drilling work as a part of the information required for the work plan under s40 and reg 42 of the Act.
- The court held that as the conduct constituted 'work' under s 42(1) of the Act, the plaintiff was then obligated to adhere to the further requirements under s 43(1)(e) and (ea) in relation to consent from the defendant.
- The defendants do not consent to the proposed drilling work.
- The injunction sought by the plaintiff would not be appropriate due to its lack of specificity and insufficient evidence of the purpose of the plaintiff in using access to the property. This is inclusive of the lack of evidence around the gradients of the proposed drilling sites and therefore these could not be concluded to be 'low impact work' or not.
- The court found no evidence of urgency for the plaintiff's request for entry into the property and considered the defendant's concerns about the safety of the mine shafts.
- The plaintiff had not complied with statutory requirements under the Act, including preparation of a statement under s 26A.
Effect of the Decision
- The proposed work of diamond core drilling and mineral sampling is not within the scope of the definition of 'low impact exploration' under Schedule 4A of the Act. This was specified to the creation of hardstand areas required for the operation of the drill and the use of closed roads without the consent of the defendants.
- Performance of a diamond core drilling program is not a requirement of the work plan under s 40(3) and reg 42. Section 40(3) of the Act. As such, the disclosure of information required under the Act in the work plan does not extend to information which requires extensive underground drilling.
- Where an individual holds a mining licence rather than an exploration licence under the Act, there is an expectation that the individual is in possession of information regarding the minerals of the land.
- In the instance where an individual needs to obtain this information, it would be expected that an exploration licence would instead be obtained.
- Low impact exploration work defined in Schedule 4A of the Act is also subject to the requirements under s 42(1) of the Act as this section applies to all 'work'. While the definition of 'work' is not exhaustive, this decision extends the scope of the proposed work in which consent of the owner or occupiers is to be received.
Why this matters
- If you hold a miner's licence pursuant to the Mineral Resources (Sustainable Development) Act 1990 in the state of Victoria it is important you are aware of the scope of work that you are undertaking and the ways in which the work may be defined under the Act. This information will determine the statutory requirements you will be bound to.
- If you hold a miner's licence having knowledge of what constitutes 'work' in comparison to 'low impact work' will ensure you better understand the requirements under s 40(3). The statutory requirement for miner's licence holders to provide a work plan is not inclusive of exploration work, should work of this nature need to be undertaken an exploration licence is required instead.
- The statutory requirements under s 42(1) create an obligation on the holder of a miner's licence to seek the consent of the landowner prior to completing exploration work inclusive of diamond core drilling. Without the consent of the landowner, the proposed work cannot be carried out.
- If you are an owner/occupier of land subject to a miner's licence you need to understand the limitations which this licence is subject to and the duties owed to you. It is important to have knowledge of when your consent is required by a licence holder as you consideration and decision will impact the scope of work which is to be carried out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
