Queensland Numbered Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

MINES LEGISLATION (STREAMLINING) AMENDMENT ACT 2012 No. 20 - SECT 216

216 Insertion of new pts 7AAAB–7AAAE

After section 318AAM—

insert—

'(1) This part applies to the following mining tenements—

(a) a mining claim;
(b) an exploration permit;
(c) a mineral development licence;
(d) a mining lease.

'(2) This part also applies to the following transfers (each an application transfer)—

(a) a transfer of an application for a mining lease;
(b) a transfer of an interest in an application for a mining lease.

'In this part—

assessable transfer see section 318AAR(2).

non-assessable transfer see section 318AAR(1).

'(1) Each of the following is a dealing with a mining tenement—

(a) a transfer of the mining tenement or of a share in the mining tenement;
(b) a mortgage over the mining tenement or over a share in the mining tenement;
(c) a release, transfer or surrender of a mortgage mentioned in paragraph (b);
(d) a change to the mining tenement holder's name even if the holder continues to be the same person after the change;
(e) if the mining tenement is a mining lease—
(i) a sublease of the mining lease;
(ii) a transfer of a sublease of the mining lease or of a share in a sublease of the mining lease.

'(2) To remove any doubt, it is declared that any transaction or commercial agreement not mentioned in subsection (1) is not a dealing with a mining tenement.

'A dealing with a mining tenement, other than a dealing mentioned in section 318AAP(1)(e), that has the effect of transferring a divided part of the area of the mining tenement is prohibited.

Examples of a divided part of the area of a mining tenement—
a particular part of the surface of the area
a particular strata beneath the surface of the area

'(1) The following transfers (each a non-assessable transfer) do not require assessment before being registered—

(a) a transfer of a mining tenement or of a share in a mining tenement if—
(i) the transferee is an entity having the same Australian Business Number as the entity comprising all or part of the transferor; or
(ii) part of one holder's share in the mining tenement will be transferred to another holder of the mining tenement;
(b) a transmission by death of a mining tenement or of a share in a mining tenement;
(c) a transfer of a mining tenement or of a share in a mining tenement by operation of law;
(d) a transfer of a mortgage over a mining tenement or over a share in a mining tenement;
(e) a transfer of a sublease of a mining lease or of a share in a sublease of a mining lease.

'(2) The following transfers (each an assessable transfer) must be approved by the Minister or mining registrar under division 3 before they can be registered—

(a) a transfer of a mining tenement or of a share in a mining tenement not mentioned in subsection (1);
(b) an application transfer.

'(1) A dealing with a mining tenement or an application transfer has no effect until it is registered.

'(2) A registered dealing takes effect on—

(a) for a dealing that is an assessable transfer—the day the transfer was approved under division 3; or
(b) for any other dealing—the day notice of the dealing was given to the chief executive under section 318AAT.

'(3) A registered application transfer takes effect on the day the transfer was approved under division 3.

'(1) Registration of a dealing with a mining tenement, other than an assessable transfer, may be sought by giving the chief executive a notice of the dealing in the approved form.

'(2) However, a dealing with a mining tenement prohibited under section 318AAQ can not be registered and is of no effect.

'(3) The approved form must be accompanied by the fee prescribed under a regulation.

'(4) Registration of an assessable transfer must be carried out by the chief executive.

Note—
An application transfer is an assessable dealing and must be approved by the Minister or mining registrar under division 3 before registration of the transfer.

'The registration of a dealing with a mining tenement or application transfer, or an approval of an assessable transfer under division 3, allows the dealing or transfer to have effect according to its terms but does not of itself give the dealing or transfer any more effect or validity than it would otherwise have.

'(1) The holder of a mining tenement, an applicant for a mining lease or the holder of an interest in an application for a mining lease may, before applying for approval of an assessable transfer for the mining tenement, application or interest, apply—

(a) for an indication whether the transfer is likely to be approved (an indicative approval); and
(b) if conditions are likely to be imposed on the giving of the approval—for an indication what the conditions are likely to be.

'(2) The application must be—

(a) made to—
(i) for a transfer relating to a mining claim—the mining registrar; or
(ii) otherwise—the Minister; and
(b) in the approved form; and
(c) accompanied by—
(i) the information the Minister or mining registrar requires to make a decision; and
(ii) the fee prescribed under a regulation.

'(3) In deciding whether or not to give the indicative approval, the Minister or mining registrar must consider the matters mentioned in section 318AAX(2) as if the request were an application for approval of an assessable transfer.

'(4) The Minister or mining registrar must decide whether or not to give the indicative approval and give the applicant notice of the decision.

'(1) The holder of a mining tenement may apply for approval of an assessable transfer for the mining tenement.

'(2) An application under subsection (1) must be—

(a) made to—
(i) for a transfer relating to a mining claim—the mining registrar; or
(ii) otherwise—the Minister; and
(b) in the approved form; and
(c) accompanied by—
(i) a written consent to the transfer by the proposed transferee; and
(ii) if the mining tenement or a share in the mining tenement is subject to a mortgage—a written consent to the transfer by the mortgagee; and
(iii) for a transfer of a share in a mining tenement—a written consent to the transfer by each person, other than the transferor, who holds a share in the mining tenement; and
(iv) the fee prescribed under a regulation.

'(3) An applicant for a mining lease or the holder of an interest in an application for a mining lease may apply for approval of an assessable transfer for the application or interest.

'(4) An application under subsection (3) must be made to the Minister in the approved form and be accompanied by—

(a) a written consent to the transfer by the proposed transferee; and
(b) a written consent to the transfer by—
(i) for the transfer of an application—each person, other than the transferor, who is an applicant for the application; or
(ii) for the transfer of an interest in an application—each person, other than the transferor, who is the holder of the interest; and
(c) the fee prescribed under a regulation.

'(5) However, an application under subsection (1) or (3) can not be made under this section if the proposed transferee is not an eligible person.

'(1) The Minister or the mining registrar must decide whether or not to give the approval of the assessable transfer.

'(2) In deciding whether or not to give the approval, the Minister or mining registrar must consider—

(a) the application for approval and any additional information accompanying the application; and
(b) for an assessable transfer other than an application relating to a mining claim—whether the transferee has the human, technical and financial resources to comply with—
(i) if the application relates to an exploration permit—the conditions of the exploration permit under section 141; or
(ii) if the application relates to a mineral development licence—the conditions of the mineral development licence under section 194; or
(iii) if the application relates to a mining lease—the conditions of the mining lease under section 276; and
(c) the public interest.

'(3) However, subsection (2) does not apply if, under subsection (6) or (7), the approval is taken to have been given.

'(4) The approval may be given only if—

(a) the proposed transferee is—
(i) an eligible person; and
(ii) a registered suitable operator under the Environmental Protection Act; and
(b) for a transfer of a mining tenement or of a share in a mining tenement—no royalty payable under this Act by the holder of the mining tenement remains unpaid.

'(5) Also, the Minister or mining registrar may refuse to give the approval if the Minister or mining registrar is not satisfied the transferor has substantially complied with the conditions of the mining tenement.

'(6) The approval is taken to have been given if—

(a) under section 318AAV, an indicative approval has been given for the proposed dealing; and
(b) subsection (4) does not prevent the giving of the approval; and
(c) within 3 months after the giving of the indicative approval—
(i) an application for approval of the assessable transfer is made; and
(ii) if, under section 318AAV, an indication of likely conditions was given—the conditions are complied with.

'(7) The approval is also taken to have been given if—

(a) subsection (6)(a) and (b) is satisfied; and
(b) within 10 business days before the expiration of 3 months after the giving of the indicative approval, the applicant gives the chief executive—
(i) notice in the approved form that a proposed transferee has given a notice under the Foreign Acquisitions and Takeovers Act 1975 (Cwlth) about a proposal that relates to the assessable transfer; and
(ii) evidence that the proposed transferee has given the notice under that Act; and
(iii) a statement from the proposed transferee that the proposed transferee has not received notice about an order or decision made under that Act about the proposal; and
(c) within 6 months after the giving of the indicative approval, subsection (6)(c)(i) and (ii) is satisfied.

'(8) Despite subsections (6) and (7), the approval of the assessable transfer is taken not to have been given if—

(a) the request for indicative approval contained incorrect material information or omitted material information; and
(b) had the Minister or mining registrar been aware of the discrepancy, the Minister or mining registrar would not have given the indicative approval.

'(1) This section applies to an assessable transfer other than an application transfer.

'(2) The Minister or mining registrar may, as a condition of deciding to give the approval, require the proposed transferee to give under the following section (the relevant section), security for the mining tenement the subject of the transfer as if the proposed transferee were an applicant for the mining tenement—

(a) for an approval relating to a mining claim†”section 83;
(b) for an approval relating to an exploration permit†”section 144;
(c) for an approval relating to a mineral development licence†”section 190;
(d) for an approval relating to a mining lease†”section 277.

'(3) If the proposed transferee does not comply with the requirement, the application may be refused.

'(4) When the transfer of the mining tenement is complete, the relevant section applies to the transferee of the mining tenement as holder.

'(1) If the Minister or mining registrar decides to give the approval, the Minister or mining registrar must give the applicant for the approval written notice of the decision.

'(2) If the Minister or mining registrar decides not to give the approval, the Minister or mining registrar must give the applicant for the approval written notice of the decision stating the following—

(a) the decision, and the reasons for it;
(b) the rights of appeal under this Act;
(c) the period in which any appeal under this Act must be started;
(d) how rights of appeal under this Act are to be exercised;
(e) that a stay of a decision the subject of an appeal under this Act may be applied for under this Act.
Note—
For appeals against refusal to approve an assessable transfer, see part 7AAAE.

'This part applies to the following mining tenements—

(a) a mining claim;
(b) an exploration permit;
(c) a mineral development licence;
(d) a mining lease.

'In this part—

associated agreement, for a mining tenement, means an agreement relating to the mining tenement, other than the following—

(a) a dealing with the mining tenement;
(b) a dealing with the mining tenement that is prohibited under section 318AAQ;
(c) another agreement prescribed under a regulation as unsuitable to be recorded in the register.

'(1) An associated agreement for a mining tenement may be recorded in the register against the mining tenement.

'(2) Registration of an associated agreement may be sought by giving the chief executive a notice of the agreement in the approved form.

'(3) An approved form given to the chief executive under this section must be accompanied by the fee prescribed under a regulation.

'(4) The chief executive is not required to examine, or to determine the validity of, an associated agreement recorded in the register under this section.

'The recording of an associated agreement under this part does not of itself—

(a) give the agreement any more effect or validity than it would otherwise have; or
(b) create an interest in the mining tenement against which it is recorded.

'(1) This part applies to the following mining tenements—

(a) a mining claim;
(b) an exploration permit;
(c) a mineral development licence;
(d) a mining lease.

'(2) This part also applies to application transfers.

'(1) A caveat must—

(a) be lodged in the approved form; and
(b) be signed by the caveator, the caveator's solicitor or another person authorised in writing by the caveator; and
(c) state the name and address for service of 1 person upon whom any notice may be served in order to serve the caveator; and
(d) identify the mining tenement, or application for a mining lease, the subject of the caveat; and
(e) state the nature of the right or interest claimed by the caveator; and
(f) state the period for which the caveat is to continue in force; and
(g) if a person consents to the lodging of the caveat, be endorsed with the person's consent; and
(h) be accompanied by the lodgement fee prescribed under a regulation.

'(2) A caveat that does not comply with subsection (1) is of no effect.

'(1) A caveat may be lodged by any of the following—

(a) a person claiming an interest in a mining tenement or application for a mining lease;
(b) the registered holder of a mining tenement or an applicant for a mining lease;
(c) a person to whom an Australian court has ordered that an interest in a mining tenement or application for a mining lease be transferred;
(d) a person who has the benefit of a subsisting order of an Australian court restraining—
(i) a registered holder of a mining tenement from dealing with the mining tenement; or
(ii) an applicant for a mining lease from dealing with the application.

'(2) A caveat lodged under this section can not be registered if it applies to any of the following—

(a) an application for indicative approval;
(b) an indicative approval given by the Minister or mining registrar;
(c) an application for approval of an assessable transfer;
(d) a notice to register a dealing given to the chief executive under section 318AAT.

'(1) On receipt of a caveat complying with section 318AAZF(1), the chief executive must—

(a) notify—
(i) each holder of the affected mining tenement of the receipt of the caveat; or
(ii) each applicant for the affected application for a mining lease of the receipt of the caveat; and
(b) notify all other persons who have an interest in the mining tenement or application as recorded in the register, including any subsisting prior caveator, of the receipt of the caveat; and
(c) record the existence of the caveat in the register.

'(2) For subsection (1)(b), a person does not have an interest in a mining tenement only because the person is a party to an associated agreement recorded in the register against the mining tenement.

'(1) Until a caveat lapses, or is removed or withdrawn, the caveat prevents registration of a dealing with a mining tenement or an application transfer over which the caveat is lodged from the date and time endorsed by the registrar or chief executive on the caveat as the caveat's date and time of lodgement.

'(2) However, lodgement of a caveat does not prevent registration of the following—

(a) an instrument stated in the caveat as an instrument to which the caveat does not apply;
(b) an instrument if the caveator consents, in the approved form, to its registration and the consent is lodged with a mining registrar or the chief executive;
(c) an instrument executed by a mortgagee whose interest was registered before lodgement of the caveat if—
(i) the mortgagee has power under the mortgage to execute the instrument; and
(ii) the caveator claims an interest in the mining tenement as security for the payment of money or money's worth;
(d) an instrument of transfer of mortgage executed by a mortgagee whose interest was registered before lodgement of the caveat;
(e) another interest that, if registered, will not affect the interest claimed by the caveator.

'(3) The exception in subsection (2)(d) does not apply to a caveat lodged by the mining tenement holder.

'(4) Lodgement of a caveat does not create in the caveator an interest in the mining tenement, or the application for a mining lease, affected by the caveat.

'(1) An agreed caveat lapses at the expiration of the term stated in the caveat but, if no term is stated, the caveat continues until it is withdrawn or removed.

'(2) A caveat that is not an agreed caveat lapses—

(a) if an order of the Land Court is in force in relation to the caveat—at the expiration of the order; or
(b) otherwise—at the expiration of 3 months after the date of lodgement of the caveat or a shorter term stated in the caveat.

'(3) A caveator may withdraw the caveat by notifying the mining registrar in writing.

'(4) An affected person for a caveat may apply to the Land Court for an order that the caveat be removed.

'(5) The Land Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.

'(6) If a caveat is withdrawn, lapses or is ordered to be removed, the mining registrar must record the withdrawal, lapse or removal in the register.

'(7) In this section—

affected person, for a caveat, means a person—

(a) who has a right or interest (present or prospective) in the mining tenement, or the application for a mining lease, the subject of the caveat; or
(b) whose right (present or prospective) to deal with the mining tenement, or the application for a mining lease, the subject of the caveat is affected by the caveat.

agreed caveat means a caveat to which—

(a) for a caveat affecting a mining tenement—each holder of the mining tenement the subject of the caveat has consented, if the consent has been lodged with the caveat; or
(b) for a caveat affecting an application for a mining lease—each applicant for the application the subject of the caveat has consented, if the consent has been lodged with the caveat.

'(1) This section applies if a caveat (the original caveat) is lodged in relation to an interest.

'(2) A further caveat with the same caveator can never be lodged in relation to the interest on the same, or substantially the same, grounds as the grounds stated in the original caveat unless—

(a) for a caveat affecting a mining tenement—the consent of each holder of the mining tenement the subject of the caveat has been lodged with the caveat; or
(b) for a caveat affecting an application for a mining lease—the consent of each applicant for the application the subject of the caveat has been lodged with the caveat; or
(c) generally—the leave of a court of competent jurisdiction to lodge the further caveat has been granted.

'A person who lodges a caveat in relation to a mining tenement or an application for a mining lease without reasonable cause is liable to compensate anyone else who suffers loss or damage because of the caveat.

'(1) A person whose interests are affected by a decision of the Minister, or mining registrar, to refuse to approve an assessable transfer may appeal against the decision to the Land Court.

'(2) For this section, a person who has been given or is entitled to be given a notice about the decision under section 318AAZ is taken to be a person whose interests are affected by the decision.

'(1) The appeal must be started within 20 business days after—

(a) if the person has been given a notice about the decision—the day the person is given the notice; or
(b) if paragraph (a) does not apply—the day the person otherwise becomes aware of the decision.

'(2) However, the Land Court may at any time within the 20 business days extend the period for starting the appeal.

'(1) The appeal is started by filing a written notice of appeal with the Land Court.

'(2) The appellant must give the chief executive a copy of the notice.

'(1) The Land Court may grant a stay of the decision to secure the effectiveness of the appeal.

'(2) A stay—

(a) may be given on the conditions the Land Court considers appropriate; and
(b) operates for the period fixed by the Land Court; and
(c) may be amended or cancelled by the Land Court.

'(3) The period of a stay under this section must not extend past the time when the Land Court decides the appeal.

'(4) The appeal affects the decision or carrying out of the decision only if it is stayed.

'(1) In deciding an appeal, the Land Court—

(a) has the same powers as the Minister or mining registrar; and
(b) is not bound by the rules of evidence; and
(c) must comply with natural justice; and
(d) may hear the appeal in court or in chambers.

'(2) An appeal is by way of rehearing unaffected by the decision.

'(3) Subject to subsections (1) and (2), the procedure for the appeal is—

(a) in accordance with the rules for the Land Court; or
(b) in the absence of relevant rules, as directed by the Land Court.

'(4) A power under an Act to make rules for the Land Court includes power to make rules for appeals under this part.

'(1) In deciding an appeal under this part, the Land Court may—

(a) confirm the decision; or
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the issue to the Minister or mining registrar with the directions the court considers appropriate.

'(2) If the Land Court substitutes another decision, the substituted decision is for this Act, other than this part, taken to be the decision of the Minister or mining registrar.'.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback