South Australian Current Acts South Australian Current Acts9AA—Waiver of exemption (including cooling-off)
(1) A tenement holder
may, by written notice given to an owner of land who has the benefit of an
exemption under section 9, request the owner to enter into an agreement
with the tenement holder to waive the benefit of the exemption.
(1a) If a mineral
claim is registered or an application is made for a production tenement or
miscellaneous purposes licence, an owner of land who has the benefit of an
exemption under section 9 in respect of the land to which the claim or
application relates may, by written notice given to the tenement holder,
advise the tenement holder of the owner's position in relation to the waiver
of the benefit of the exemption, and the conditions (if any) on which the
owner may agree to waive the benefit of the exemption.
(2) A notice under
subsection (1) or (1a) must be in a form determined or approved by the
Minister.
(3) An agreement to
waive the benefit of an exemption—
(a) must
be in writing; and
(ab) may
be made on such terms and conditions as the parties think fit; and
(b)
takes effect on the expiry of the cooling-off period (unless earlier
rescinded).
(4) An owner of land
who has entered into an agreement with a tenement holder to waive the benefit
of an exemption may, by giving the tenement holder written notice before the
expiration of the cooling-off period of the owner's intention not to be bound
by the agreement, rescind the agreement.
(6) If in legal
proceedings the question arises whether a notice rescinding an agreement has
been given in accordance with this section, the onus of proving the giving of
the notice lies on the owner of land rescinding the agreement.
(7) If a tenement
holder has been unable to reach an agreement to waive the benefit of an
exemption with an owner of land, the tenement holder may apply to the
appropriate court for an order waiving the benefit of the exemption for the
owner.
(8) The court may
refuse to determine an application by a tenement holder under
subsection (7) unless the tenement holder satisfies the court that—
(a) a
notice has been given under subsection (1) or (1a); and
(b) the
tenement holder provided the owner of land with information prescribed by the
regulations for the purposes of this section; and
(c)
—
(i)
in the case of a notice given to the owner of land under
subsection (1)—the tenement holder has made a reasonable attempt to
reach agreement with the owner of land (whether before or after notice
requesting the owner to enter into an agreement was given to the owner); or
(ii)
in the case of a notice given to the tenement holder
under subsection (1a)—the tenement holder has made a reasonable
attempt, having regard to the matters set out in the notice, to negotiate with
the owner of land.
(8a) If an application
is made for a production tenement or a miscellaneous purposes licence and the
relevant consultation period in relation to the application has ended, an
owner of land who—
(a) has
the benefit of an exemption under section 9 in respect of the land to
which the application relates; and
(b) has
given notice to the tenement holder under subsection (1a),
may apply to the appropriate court for orders under subsection (9).
(9) On an application
under this section, the court may make 1 or both of the following orders:
(a) an
order confirming that the owner of land is entitled to the benefit of an
exemption under section 9;
(b) if
the tenement holder or owner of land satisfies the court that any adverse
effects of the proposed authorised operations on the owner of land can be
appropriately addressed by the imposition of conditions on the tenement holder
(including the payment of compensation to the owner)—an order waiving
the benefit of the exemption and imposing such conditions on a party to the
proceedings as the court thinks fit (including a condition requiring the
payment of compensation to the owner of land).
(10) The court may not
make an order for costs against the owner of land unless the court considers
that it is appropriate to do so on the ground that the owner—
(a) has
obstructed or unnecessarily delayed the proceedings; or
(b) has
failed to attend any proceedings or failed to comply with a rule, order or
direction of the court.
(11) If an agreement
or order to waive the benefit of an exemption takes effect under this section
in respect of exempt land, the land ceases to be exempt land, but the
exemption revives on completion of the authorised operations in respect of
which the agreement or order was made or at such earlier time as may be
stipulated in that agreement or order.
(12) An agreement or
order to waive the benefit of an exemption under this section is binding
on—
(a)
successors in title to those owners of land who had the benefit of the former
exemption; and
(b) the
holders from time to time of any mineral tenement under which
authorised operations (being authorised operations in respect of which the
agreement or order was made) are carried out.
(13)
Subsections (11) and (12) apply to an agreement to waive an
exemption under section 9 entered into before the designated day as if it
were an agreement to waive the benefit of an exemption under this section.
(14) A tenement holder
is liable to indemnify an owner of land—
(a) to
whom the tenement holder gives a notice under subsection (1); or
(b) who
gives the tenement holder a notice under subsection (1a); or
(c) who
makes application for orders to the appropriate court under
subsection (8a) in connection with an application made for a production
tenement or a miscellaneous purposes licence made by the tenement holder,
for the reasonable costs of obtaining legal assistance relating to the
operation of this section up to $2 500 or, if some other amount is
prescribed by regulation, that amount.
(14a) An application
under this section may be made to the Supreme Court only with the permission
of the Court.
(14b) If an agreement
is entered into under this section, the tenement holder must give notice of
the agreement to the Mining Registrar for registration on the mining register.
(14c) Nothing in this
section derogates from the jurisdiction of the Warden's Court under
section 67 to determine whether or not land is exempted from
authorised operations under section 9.
(15) In this
section—
"business day" means a day other than a Saturday, Sunday or public holiday;
"cooling-off period", in relation to an agreement with a tenement holder to
waive the benefit of an exemption, means the period commencing when the
agreement is made and concluding at the end of the fifth clear business day
after the day on which the agreement is made;
"designated day" means a day declared by proclamation to be the designated day
for the purposes of this definition;
"relevant consultation period" means the period for public consultation in
relation to an application for a mineral tenement under section 56H(3).