Western Australian Current Acts Western Australian Current Acts[s. 4]
[Heading inserted: No. 69 of 1981 s. 29; amended:
No. 19 of 2010 s. 4.]
Division 1 — Provisions relating to transition from repealed Act
[Heading inserted: No. 51 of 2012 s. 42.]
1 . Continuation of certain temporary reserves and
rights of occupancy
(1) Any land that is
temporarily reserved from occupation under the repealed Act immediately before
the commencing date shall continue to be so reserved on and after that date
until the reservation of the land or portion thereof is cancelled by the
Minister by instrument in writing under his hand, and while the land is so
reserved (whether or not any authority to occupy, or right of occupancy of,
the land granted under the repealed Act and in force in relation to the land
immediately before the commencing date is in force by virtue of subclause (2))
a mining tenement shall not be granted under this Act in respect of the land
without the consent in writing of the Minister.
(2) Any authority to
occupy or right of occupancy of any land to which subclause (1) refers granted
pursuant to the repealed Act and in force in relation to such land immediately
before the commencing date, shall continue, subject to the terms and
conditions upon which the authority or right was granted, to be in force on
and after that date until —
(a) the
date on which such authority or right would have expired under the terms and
conditions upon which it was granted; or
(b) 6
months after the commencing date,
whichever date is the
later.
(3) At any time before
an authority to occupy or right of occupancy expires as provided in subclause
(2) the holder thereof may, if he has not then failed to comply with the terms
and conditions upon which the authority or right was granted, mark out in
accordance with this Act, and/or make application to the Minister for, a
prospecting licence or exploration licence over the land or any portion
thereof to which the authority or right relates.
(4) Notwithstanding
anything in this Act, the Minister shall, on receiving an application made
under subclause (3) or (5) and on being satisfied that the applicant has
complied with the terms and conditions referred to in subclause (3), grant
that application on such terms and conditions as he thinks fit.
(5) An application for
the renewal of an authority to occupy or right of occupancy of any land
—
(a) to
which subclause (1) refers; and
(b)
which expired before the commencing date,
which application was
pending immediately before the commencing date, shall be dealt with as if the
repealed Act had not been repealed and the holder of any such authority to
occupy or right of occupancy renewed as a result of that application may while
that renewed authority or right is in force mark out in accordance with this
Act the land the subject of that renewed authority or right, or apply to the
Minister for a prospecting licence or exploration licence, or both so mark out
and apply, in respect of the whole or part of the land to which that renewed
authority or right relates.
(6) Section 105A does
not apply and never has applied to an application for a mining tenement under
this Act in respect of any land —
(a)
which continues or continued to be temporarily reserved from occupation by
virtue of subclause (1); and
(b) in
respect of which no authority to occupy or right of occupancy is or was in
force,
at the time when that
application is or was made.
[Clause 1 inserted: No. 69 of 1981 s. 29; amended:
No. 122 of 1982 s. 30(a).]
2 . Certain gold mining leases, coal mining leases
and mineral leases to become mining leases
(1) Every gold mining
lease, coal mining lease, or mineral lease granted under section 42, 48 or 61
or pursuant to section 153 of the repealed Act and in force immediately before
the commencing date, shall be deemed to be a mining lease granted under this
Act, and shall, subject to this Act and, insofar as those terms and conditions
and encumbrances are not inconsistent with this Act, subject to —
(a) the
terms and conditions on which it was granted under the repealed Act (other
than a term or condition restricting the scope of the gold mining lease, coal
mining lease or mineral lease concerned to certain minerals) and which were in
force immediately before the commencing date; and
(b) any
encumbrances to which it was subject under the repealed Act and which were in
force immediately before the commencing date,
remain in force for
the unexpired period for which it was granted or renewed under the repealed
Act, and shall then expire, and while any such lease is in force the holder
thereof has the right in priority to any other person to mark out in
accordance with this Act and/or apply for a mining tenement under and in
accordance with this Act in respect of the land or any part thereof which is
the subject of such lease.
(2) Every gold mining
lease, coal mining lease or mineral lease granted under the repealed Act by
virtue of clause 8(1) as a result of an application referred to in that
subclause shall be deemed to be a mining lease granted under this Act and
shall, subject to this Act and, insofar as those terms and conditions and
encumbrances are not inconsistent with this Act, subject to —
(a) the
terms and conditions under which it was so granted (other than a term or
condition restricting the scope of that gold mining lease, coal mining lease
or mineral lease to certain minerals); and
(b) any
encumbrances to which it is subject under the repealed Act,
remain in force for
the period for which it was so granted under the repealed Act and shall then
expire, and while it is in force the holder thereof has the right in priority
to any other person to mark out in accordance with this Act and/or apply for a
mining tenement under and in accordance with this Act in respect of the land
or any part thereof which is the subject of that gold mining lease, coal
mining lease or mineral lease.
(3) The holder of 2 or
more gold mining leases, coal mining leases or mineral leases which are
contiguous or of any combination thereof, which are deemed by virtue of
subclause (1) or (2) to be mining leases granted under this Act, has
notwithstanding anything in that subclause the right under that subclause in
priority to any other person to mark out in accordance with this Act and/or
apply for one mining tenement under and in accordance with this Act in respect
of all the land or any part thereof which is the subject of those gold mining
leases, coal mining leases or mineral leases or of that combination, as the
case requires.
[Clause 2 inserted: No. 69 of 1981 s. 29; amended:
No. 100 of 1985 s. 110(a); amended: Gazette 18 Dec 1981 p. 5274; 16 Jul 1982
p. 2829.]
[ 2A. Deleted: Gazette 15 May 1987 p. 2161.]
3 . Rights conferred on holders of certain mineral
claims and dredging claims
(1) A mineral claim or
dredging claim granted under the repealed Act and in force immediately before
the commencing date shall remain in force, subject to that Act and as though
that Act had not been repealed, for a period of 2 years after that date, and
shall then expire.
(2) The holder of any
such mineral claim or any such dredging claim as is referred to in subclause
(1) may at any time while the claim is in force mark out as and/or make
application under this Act for a prospecting licence or an exploration licence
or a mining lease in respect of a single area that is constituted by all the
land the subject of each mineral claim or mineral claims or dredging claim or
dredging claims, and such licence or such lease shall, subject to this Act, be
granted to him.
(3) Notwithstanding
anything in subclause (1), if an application for a prospecting licence,
exploration licence or mining lease made under subclause (2) is pending
immediately before the mineral claim or dredging claim held by the applicant
expires under subclause (1), that mineral claim or dredging claim continues in
force, subject to the repealed Act and as though that Act had not been
repealed, until that application is finally disposed of under this Act.
[Clause 3 inserted: No. 69 of 1981 s. 29; amended:
No. 122 of 1982 s. 30(b).]
4 . Rights conferred on holders of certain
miners’ homestead leases, residential leases, residence areas, business
areas and garden areas
Every miner’s
homestead lease, residential lease, residence area, business area or garden
area granted under the repealed Act and in force immediately before the
commencing date shall remain in force subject to that Act, and as though that
Act had not been repealed, for a period of 5 years after that date and shall
then expire, but if within that period an application is made therefor to the
Minister for Mines and on the Minister for Mines being satisfied that the
applicant is the due holder of a miner’s homestead lease, residential
lease, residence area, business area or garden area, as the case may be, and
that such mining tenement is not at the date of the application liable to
forfeiture under the repealed Act, and on the Minister for Mines issuing a
certificate to that effect to the Minister for Lands, the Minister for Lands
may grant under the Land Act 1933 to the applicant a fee simple or lease of
the whole or any portion of the land comprising the miner’s homestead
lease, residential lease, residence area, business area, or garden area, as
the case may be, as the Minister for Lands determines and on such terms and
conditions as he determines, but he shall not grant a fee simple of such land
unless in his opinion the land is substantially developed and improved; and,
to give full effect to the object of this clause and the powers hereby
conferred, the Land Act 1933 shall be read and construed with such
modifications as are necessary and, without limiting the generality thereof,
shall be read and construed with the following particular modifications
—
(a) the
substitution for subsection (2) of section 45A of the following subsection
—
“
(2) Upon the Minister
for Lands signifying approval pursuant to subsection (1) in respect of any
such land the same may, subject to this section, be sold or leased.
”;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) a
power to dispose of land under Division (1) of Part V of the Land Act 1933
notwithstanding the land has not been declared open for selection under that
Part.
[Clause 4 inserted: No. 69 of 1981 s. 29; amended:
No. 126 of 1987 s. 124.]
5 . Continuation of mining tenements held by
virtue of miners’ rights
A person holding a
mining tenement immediately before the commencing date by virtue of the
provisions of the repealed Act relating to miners’ rights as then in
force may continue to hold the mining tenement under and subject to this
Schedule notwithstanding the repeal of those provisions.
[Clause 5 inserted: No. 69 of 1981 s. 29.]
6 . Temporary continuation of certain machinery
areas, tailings areas, quarrying areas and water rights
(1) Every machinery
area, tailings area, quarrying area or water right granted under the repealed
Act and in force immediately before the commencing date shall remain in force,
subject to that Act and as though that Act had not been repealed, for a period
of 3 years after that date and shall then expire or shall expire on a date on
which it would have expired under the repealed Act, whichever happens first.
(2) The holder of
—
(a) a
machinery area or tailings area in force by virtue of subclause (1) may, while
the machinery area or tailings area is so in force, apply to the Minister for
a general purpose lease in respect of all of the land to which the machinery
area or tailings area relates; or
(b) a
quarrying area in force by virtue of subclause (1) may, while the quarrying
area is so in force, apply to the Minister for a mining lease in respect of
all of the land to which the quarrying area relates; or
(c) a
water right in force by virtue of subclause (1) may, while the water right is
so in force, apply to the Minister for a miscellaneous licence in respect of
all of the land to which the water right relates.
(3) On receiving an
application made under subclause (2), the Minister shall grant to the
applicant on such terms and conditions as the Minister may determine the
general purpose lease, mining lease or miscellaneous licence applied for or,
after consultation with the applicant, such other mining tenement as is in the
opinion of the Minister most appropriate.
(4) Notwithstanding
anything in subclause (1), if an application for a general purpose lease,
mining lease or miscellaneous licence made under subclause (2) is pending
immediately before the machinery area, tailings area, quarrying area or water
right, as the case requires, held by the applicant expires under subclause
(1), that machinery area, tailings area, quarrying area or water right
continues in force, subject to the repealed Act and as though that Act had not
been repealed, until that application is finally disposed of under this Act.
[Clause 6 inserted: No. 69 of 1981 s. 29; amended:
No. 122 of 1982 s. 30(c); No. 100 of 1985 s. 110(c).]
7 . Continuation of certain licences
(1) A licence which
was —
(a)
granted under section 112 of the repealed Act, conferring the right to remove
tailings or other mining material from, or to treat the same upon, any land;
and
(b) in
force immediately before the commencing date,
remains in force, and
may, subject to subclause (2), be renewed from time to time under the repealed
Act as if that Act had not been repealed.
(2) An application for
the renewal under subclause (1) of a licence shall be made to the Minister and
the Minister may —
(a)
subject to paragraph (b), exercise in relation to that application the powers
conferred on the Governor by the repealed Act in relation to applications for
the renewal of licences; and
(b) in
the case of such an application —
(i)
which is made after the expiry of the licence to which
that application relates; and
(ii)
in respect of which the Minister considers that there are
special circumstances justifying renewal,
renew the licence to
which that application relates with effect from the expiry of that licence.
(3) An application for
a licence or for the renewal of such a licence, which application was pending
immediately before the commencing date, shall be disposed of, notwithstanding
anything in subclause (2), as if the repealed Act had not been repealed.
(4) Notwithstanding
that any application for the renewal under the repealed Act as read with this
clause of a licence under section 112 of that Act may have referred only to a
licence to treat tailings, a licence so renewed which purported to grant by
way of renewal under this clause any one or more of the following rights
—
(a) to
treat tailings upon the land; or
(b) to
remove, and treat, tailings from the land; or
(c) to
treat any other mining material upon the land; or
(d) to
remove, and treat, other mining material from the land,
shall be taken to
confer, and always to have conferred, a right of that kind according to its
tenor.
(5) Where a licence
granted under section 112 of the repealed Act expires, any tailings or other
mining material left upon the land or any part of the land in respect of which
the licence was granted become or becomes the property of the Crown —
(a) if
an application for the renewal of the licence is not made within a period of 3
months from the expiry of the licence, at the expiration of that period; or
(b) if
an application for the renewal of the licence is made within the period
referred to in paragraph (a) but is subsequently refused by the Minister, at
the expiration of a period of 3 months from that refusal.
[Clause 7 inserted: No. 69 of 1981 s. 29; amended:
No. 122 of 1982 s. 30(d); No. 37 of 1993 s. 25; amended: Gazette 20 Nov 1987
p. 4239.]
8 . Disposal of pending applications for mining
tenements
(1) Where an
application for a mining tenement under the repealed Act or the regulations
made thereunder (not being an application in connection with section 276 of
the repealed Act or an application for —
(a) a
miner’s homestead lease; or
(b) a
residential lease; or
(c) a
residence area; or
(d) a
business area; or
(e) a
garden area),
is pending on the
commencing date, that application shall be disposed of as if the repealed Act
had not been repealed and the applicant may in respect of that application
exercise all the powers, and shall in respect of that application perform all
the duties, conferred or imposed on him by the repealed Act.
(2) Until an
application referred to in subclause (1) has been finally disposed of, the
land to which that application relates is not open for mining by any person
other than the applicant.
(3) Subject to clause
2(2), when a mining tenement is granted under the repealed Act by virtue of
subclause (1) as a result of an application referred to in that subclause
—
(a) the
mining tenement is, subject to paragraph (b), deemed for the purposes of this
Schedule to have been granted under the repealed Act;
(b) the
holder of the mining tenement under the repealed Act so deemed to have been
granted is entitled, before that mining tenement expires or within a period of
2 years from the date referred to in paragraph (c) whichever is the sooner, to
apply for, and subject to this Act to be granted, a mining tenement under this
Act of the kind and in respect of the area for which he would have been
entitled to apply under this Schedule had the mining tenement under the
repealed Act so deemed to have been granted in fact been granted prior to the
commencing date and been in force or existence immediately before the
commencing date; but
(c) the
date on which the grant under the repealed Act is deemed to have been made
shall be the date on which the relevant certificate of registration is issued
and the grant expires at the end of the period of 2 years from that date
subject to subclause (4); and
(d)
regulation 55(15) of the regulations made under the repealed Act applies, with
such modification as is necessary, to an application by the holder of a
prospecting area granted under regulation 55(14) of those regulations and made
under paragraph (b) of this subclause for a mining lease in respect of the
land subject to that prospecting area as if that application were an
application referred to in that regulation.
(4) Notwithstanding
anything in this clause, if an application under subclause (3)(b) is pending
immediately before the expiry of the mining tenement held by the applicant or
of the period of 2 years from the date on which that mining tenement was
granted under that paragraph, as the case requires, that mining tenement
continues in force, subject to the repealed Act and as though that Act had not
been repealed, until that application is finally disposed of under this Act.
(5) A person who
—
(a) has
marked out a mining tenement under the repealed Act not more than 10 days; but
(b) has
not lodged an application for the mining tenement referred to in paragraph
(a),
before the commencing
date is for the purposes of this Act deemed, if he lodges that application not
more than 10 days after the commencing date, to have lodged that application
immediately before the commencing date.
(6) An application for
a miner’s homestead lease, a residential lease, a residence area, a
business area or a garden area, which application was pending immediately
before the commencing date, lapses on the commencing date and any fees paid in
respect of that application shall be refunded to the applicant.
[Clause 8 inserted: No. 69 of 1981 s. 29; amended:
No. 122 of 1982 s. 30(e); No. 100 of 1985 s. 110(d); No. 105 of 1986 s. 27;
amended: Gazette 18 Dec 1981 p. 5274.]
9 . Rights of holders of certain prospecting areas
(1) A prospecting area
that is in existence immediately before the commencing date shall continue in
existence for the period for which it would have remained in force if the
repealed Act had not been repealed, and shall then cease to be in force.
(2) The holder of a
prospecting area which continues in existence by virtue of subclause (1) may,
before the expiry of the prospecting area, apply for a mining lease under this
Act in respect of the land subject to that prospecting area.
(3) Regulation 55(15)
of the regulations made under the repealed Act applies with necessary
modifications to an application made under subclause (2) as if that
application were an application referred to in that regulation.
[Clause 9 inserted: No. 69 of 1981 s. 29; amended:
No. 105 of 1986 s. 28.]
10 . Transitional provisions relating to mortgages
(1) Subject to
subclause (2), if —
(a) a
mining tenement (in this subclause and in subclause (2) referred to as the new
mining tenement ) is granted under this Schedule or section 5(3) in place of
one or more mining tenements (in this subclause and in subclause (2) referred
to as the old mining tenement or the old mining tenements , as the case
requires) granted under the repealed Act or in accordance with an agreement
referred to in section 5(3); and
(b) the
old mining tenement or any interest therein was, immediately prior to its
expiry, the subject of a mortgage or mortgages or the old mining tenements or
any interests therein were, immediately prior to their expiry, the subject of
the same mortgage or mortgages, as the case requires,
the new mining
tenement shall be deemed to be the subject of the mortgage or mortgages
referred to in paragraph (b) as if the new mining tenement had been referred
to therein, and a memorandum of that mortgage or those mortgages shall be made
and endorsed on the documents of title to the new mining tenement and noted in
the appropriate registers of the Department of Mines 4 and there shall be
endorsed on the original or originals of that mortgage or those mortgages the
fact of it or their having been registered as an encumbrance or encumbrances
against the new mining tenement.
(2) If 2 or more
mortgages were registered against the old mining tenement or the old mining
tenements, as the case requires, the memorandum thereof shall be made and
endorsed on the documents of title to the new mining tenement, and noted in
the appropriate registers of the Department of Mines 4 , in the order in which
they appeared so registered immediately before their expiry and they shall
have priority accordingly.
(3) The holder of a
mining tenement under the repealed Act (in this subclause called the old
mining tenement ) who is empowered by this Schedule or by section 5(3) to
apply for a mining tenement under this Act (in this subclause called the new
mining tenement ) in substitution for the old mining tenement shall, if the
old mining tenement is the subject of an existing mortgage and that holder
lodges an application for the new mining tenement, forthwith notify the
mortgagee concerned of that lodging.
(4) An application for
a mining tenement under this Act in substitution for a mining tenement held by
the applicant under the repealed Act, the holding of which second-mentioned
mining tenement entitles the applicant to apply under this Schedule or section
5(3) for the first-mentioned mining tenement, shall be deemed for the purposes
of Part VI of this Act to be an interest in a mining tenement.
(5) An encumbrance,
not being a mortgage, on a mineral claim or dredging claim —
(a)
granted under the repealed Act, whether before or after the commencing date;
and
(b) the
holder of which is entitled to apply, and does apply, under this Schedule or
section 5(3) for a mining tenement under this Act in substitution for that
mineral claim or dredging claim,
lapses on the
determination of that mineral claim or dredging claim, but the person who has
the benefit of that encumbrance may apply for the registration of that
encumbrance against the application for the mining tenement under this Act
referred to in paragraph (b) and the application for the registration of that
encumbrance against that application shall be granted.
(6) When the mining
tenement referred to in subclause (5)(b) is granted, an encumbrance registered
against the application for that mining tenement shall by virtue of this
subclause be registered against that mining tenement without any further
application by the person who has the benefit of that encumbrance.
[Clause 10 inserted: No. 69 of 1981 s. 29.]
A person holding
office under the repealed Act immediately before the commencing date shall be
deemed to have been appointed to the corresponding office under this Act,
except that the Under Secretary shall cease to be a warden.
[Clause 11 inserted: No. 69 of 1981 s. 29.]
12. Warden’s courts and warden’s
offices
Each warden’s
court and warden’s office in existence immediately before the commencing
date shall be continued under this Act as though it had been established
thereunder and with the mineral field or district of a mineral field then
assigned thereto, but where a goldfield or a district of a goldfield is
assigned thereto at the time, that goldfield or that district shall be deemed
to be a mineral field or district of a mineral field.
[Clause 12 inserted: No. 69 of 1981 s. 29.]
13. Lodging of certain applications
A person making an
application for a mining tenement to the Minister under this Schedule or
section 5(3) shall lodge that application in the manner provided under and in
accordance with this Act in respect of an application for a mining tenement of
that kind.
[Clause 13 inserted: No. 69 of 1981 s. 29;
amended: No. 37 of 1993 s. 26; No. 12 of 2010 s. 43; amended: Gazette 22 Jul
2016 p. 3134.]
In relation to any
claim or other mining tenement or interest in land, of whatever kind, to which
the repealed Act applied or to which that Act applies by virtue of clause 8 of
this Schedule —
(a) a
consent to the grant of any mining tenement under the repealed Act (including
any grant deemed to have been granted under that Act by virtue of clause 8 of
this Schedule) or to the use or occupation for mining purposes of any private
land, given for the purposes of that Act or this Act in respect of the land
thereby affected, is deemed to follow that land and to confer such consent in
relation to that land for the purposes of any application, proceeding or
tenement under this Act made or arising, or being deemed to be made or to
arise, out of or pursuant to the operation of this Schedule; and
(b)
where paragraph (a) applies in relation to consent given by any owner or
occupier of the land, for the purposes of the operation of this Schedule no
further or other consent as to the grant of a mining tenement under this Act
in respect of the land or the use or occupation of the land for mining
purposes is required to be obtained from that owner or occupier or from his
successors in title to that land.
[Clause 13A inserted: Gazette 15 May 1987 p.
2161-2.]
14 . References to repealed Act
A reference in any
Act, regulation, rule, by-law, instrument or document to the repealed Act, or
any provision thereof, shall, unless the contrary intention appears, be read
and construed as a reference to this Act, or the corresponding provision, if
any, of this Act.
[Clause 14 inserted:
No. 69 of 1981 s. 29.]
15 . Prevention of anomalies during transitional
period
If any difficulty
arises with respect to the foregoing transitional provisions in this Schedule
the Governor may by Order in Council —
(a) make
such modifications in those provisions as may appear to him necessary for
preventing anomalies during the period affected by the transition to the
provisions of this Act from the provisions of the repealed Act; and
(b) make
such incidental, consequential and supplementary provisions as may be
necessary or expedient for the purpose of giving full effect to those
transitional provisions,
and any such
modifications or provisions made by the Governor have, and shall be deemed
always to have had, the same force and effect as if they had been enacted by
way of an amendment to this Schedule and on publication of the Order in
Council in the Government Gazette , this Schedule shall be amended
accordingly.
[Clause 15 inserted: No. 69 of 1981 s. 29;
amended: No. 100 of 1985 s. 110(e).]
Division 2 — Provisions relating to Mining Amendment Act 2012
[Heading inserted: No. 51 of 2012 s. 43.]
16 . Miner’s rights
(1) In this clause
—
commencement day means the day on which the Mining
Amendment Act 2012 section 15 comes into operation.
(2) A miner’s
right in force under this Act immediately before commencement day is taken to
be a miner’s right issued under section 40C.
[Clause 16 inserted: No. 51 of 2012 s. 43.]
(1) In this clause
—
commencement day means the day on which the Mining
Amendment Act 2012 section 20 comes into operation.
(2) Section 65, as in
force immediately before commencement day, applies in relation to an
exploration licence if —
(a) the
licence was granted on an application made after 10 February 2006; and
(b) an
application for deferral under subsection (3b) of that section was made in
relation to the licence before commencement day but not determined before that
day.
[Clause 17 inserted: No. 51 of 2012 s. 43.]
(1) In this clause
—
commencement day means the day the Mining
Amendment Act 2012 section 13 comes into operation;
existing application means an application for an
exploration licence made but not determined before commencement day;
transition period means the period beginning on
commencement day and ending 3 months after that day.
(2) During the
transition period —
(a) a
person who has made an existing application in respect of Commonwealth land
has a right in priority to a person who has not made such an application to
mark out or apply for a mining tenement in respect of the land the subject of
the existing application; and
(b) if
more than one person has made an existing application in respect of the same
Commonwealth land, priority is to be determined according to the date and time
of the making of the existing applications.
[Clause 18 inserted: No. 51 of 2012 s. 43.]
19 . Time limit for prosecution action
(1) In this clause
—
commencement day means the day on which the Mining
Amendment Act 2012 section 39 comes into operation.
(2) Despite
section 160B, a prosecution for an offence that is alleged to have been
committed before commencement day must be commenced within one year after the
day on which the offence is alleged to have been committed.
[Clause 19 inserted: No. 51 of 2012 s. 43.]