South Australian Numbered Acts South Australian Numbered Acts9—Amendment of section 9AA—Waiver of exemption (including cooling-off)
(1) Section 9AA(1)—delete subsection (1) and substitute:
(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) Section 9AA(2)—after "subsection (1)" insert:
or (1a)
(3) Section 9AA(3)—after paragraph (a) insert:
(ab) may be made on such terms and conditions as the parties think fit; and
(4) Section 9AA(4)—delete subsection (4) and substitute:
(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.
(5) Section 9AA(5)—delete subsection (5)
(6) Section 9AA(6)—delete "person" and substitute:
owner of land
(7) Section 9AA(7)—delete subsection (7) and substitute:
(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) Section 9AA(8)—delete "ERD Court may refuse to determine an application unless the mining operator satisfies the Court" and substitute:
court may refuse to determine an application by a tenement holder under subsection (7) unless the tenement holder satisfies the court
(9) Section 9AA(8)(a)—delete paragraph (a) and substitute:
(a) a notice has been given under subsection (1) or (1a); and
(10) Section 9AA(8)(b)—delete "operator provided the respondent" and substitute:
tenement holder provided the owner of land
(11) Section 9AA(8)(c)—delete paragraph (c) and substitute:
(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.
(12) Section 9AA—after subsection (8) insert:
(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).
(13) Section 9AA(9)—delete subsection (9) and substitute:
(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).
(14) Section 9AA(10)—delete "ERD Court" and substitute:
(15) Section 9AA(10)—delete "respondent" first occurring and substitute:
owner of land
(16) Section 9AA(10)—delete "Court" second occurring and substitute:
(17) Section 9AA(10)—delete "respondent" second occurring and substitute:
owner
(18) Section 9AA(10)(b)—delete "Court" and substitute:
(19) Section 9AA(11) and (12)—delete subsections (11) and (12) and substitute:
(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.
(20) Section 9AA(13)—delete "the commencement of this section" and substitute:
the designated day
(21) Section 9AA(14)—delete subsection (14) and substitute:
(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.
(22) Section 9AA(15), definition of "cooling-off period —delete "mining operator" and substitute:
tenement holder
(23) Section 9AA(15)—delete the definition of "mining operations and substitute:
"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).