THE FIRST contact in relation to a potential mining project is when the mining company asks to carry out exploration on your land.
A miner can enter farmers' land by agreement, but if there is no agreement it will have to serve a formal notice of entry pursuant to the Mining Act.
Even if agreeing to the entry, farmers still need to deal with issues, such as disturbance of livestock, drilling sites, access routes, weed control, rehabilitation, protection of water and so on, and compensation.
If they ignore a miner's request to enter it is likely the miner will issue the notice of entry.
There is a different notification process that applies if a miner wishes to explore grazing land rather than cropping land.
With grazing land the notice of entry must be served at least 21 days before the miner intends to enter the property.
If farmers object, they can tell the miner within that timeframe, but you have three months to file a notice of objection in the appropriate court, which is either the Wardens Court or the Environment, Resources and Development Court. If farmers wish to explore an objection they should consult a lawyer to discuss whether you should object in the relevant court, or alternatively seek a compromise agreement with some conditions of entry.
If the land is exempt land – cropping or cultivating – or the exploration (even on grazing land) is within 400 metres of a farmhouse or 150m of a dam (this is not an exclusive summary of what is meant by exempt land), then unless farmers sign a formal waiver of the exemption the miner cannot enter the land except with an order from the court.
In both cases, the Wardens Court (in the case of non-exempt land or, where the potential compensation claim is less than $250,000) or otherwise the ERD Court will consider similar criteria in determining whether to allow the miner to explore the land.
And these criteria also apply where it seeks subsequently to mine the land.
In the case of non-exempt land the Wardens Court will consider whether the exploration is likely to result in "substantial hardship" or "substantial damage to the land". The court may determine that the land, or part of the land, cannot be explored, or set conditions upon which the mining (including exploration) may be carried out on the land.
In most circumstances, once you have received a notice of entry or a notice requesting a waiver over exempt land, farmers will end up in either the Wardens Court or the ERD Court unless they negotiate the conditions of entry with the miner.
Pat Amey, a mining barrister and former Senior Warden of the Wardens Court, in a recent seminar noted that generally the Wardens Court has allowed miners onto the land subject to the fixing of conditions and compensation. As to the ERD Court's attitude, that is yet to be determined although it will presumably allow land to be explored/mined where it can be done subject to reasonable conditions of entry, and of course the necessary environmental protection.
If a miner wishes to proceed with a mine, landowners are notified of the mining lease proposal, and have the opportunity to put submissions to the Minister in relation to the proposed mine.
* Full report in Stock Journal, July 10, 2014 issue.
