26Grant of licence

26 Grant of licence (1) The Minister may grant a licence over an area that is smaller than the area in respect of which the application is made. (2) The Minister may impose conditions to which a licence is subject, including but not limited to conditions about— (a) rehabilitation of the land; S. 26(2)(b) substituted by No. 47/2015 s. 7(1). (b) elimination and minimisation of the risks that the work may pose to the environment, to any member of the public, or to land, property or infrastructure in the vicinity of the work; (c) protection of groundwater; S. 26(2)(d) repealed by No. 82/2000 s. 21(1), new s. 26(2)(d) inserted by No. 63/2006 s. 11(2)(a). (d) providing and implementing environmental offsets on the land or any other land; S. 26(2)(da) inserted by No. 59/2010 s. 13(1). (da) work undertaken under a licence; (e) expenditure; (f) reporting the discovery of minerals; (g) entering into a rehabilitation bond; (h) payment of fees; S. 26(2)(ha) inserted by No. 82/2000 s. 21(2). (ha) payment of an environmental levy; S. 26(2)(i) substituted by No. 89/2005 s. 5. (i) payment of royalties, other than royalties in respect of lignite; S. 26(2)(j) substituted by No. 86/1993 s. 12(1), amended by No. 63/2006 s. 11(2)(b). (j) access to and use of the land by the holder of another licence that is limited to a particular stratum; S. 26(2)(k) repealed by No. 86/1993 s. 12(1), new s. 26(2)(k) inserted by No. 63/2006 s. 11(2)(c). (k) protection of community facilities. S. 26(2A) inserted by No. 10/2014 s. 9. (2A) If, because of section 40(2)(b) or (c), a person holding a mining or prospecting licence is not required to lodge a work plan, the Minister may impose a condition requiring compliance with a Code of Practice on that mining licence or prospecting licence. S. 26(3) substituted by No. 82/2000 s. 21(3). (3) The Minister must impose, as conditions to which a licence is subject, any conditions subject to which consent to the application for the licence was obtained under section 15(9). S. 26(3A) inserted by No. 82/2000 s. 21(3). (3A) If the Minister has granted a waiver under section 25A, the Minister may impose, as conditions to which the licence is subject, any conditions relating to specified depth restrictions that were recommended under section 25A(8) with respect to the granting of the licence. S. 26(4) amended by Nos 86/1993 s. 12(2), 82/2000 s. 21(4), 59/2010 s. 14. (4) It is a condition of a licence that the licensee pays rent from the date of registration of the grant of the licence, in accordance with the rate or method of assessment and at the times prescribed. S. 26(4AA) inserted by No. 47/2015 s. 7(2). (4AA) Following consultation with the licensee, the Minister may by notice in writing require, as a condition to which a licence is subject, that the licensee— (a) submit to the Minister a report on work undertaken under the licence; and (b) publish that report. S. 26(4AB) inserted by No. 47/2015 s. 7(2). (4AB) A notice under subsection (4AA) must specify— (a) the work undertaken under the licence on which the licensee must report; and (b) the manner in which the licensee must submit the report to the Minister; and (c) the manner in which the licensee must publish the report; and (d) the dates by which the report must be submitted and published. S. 26(4A) inserted by No. 82/2000 s. 21(5), amended by No. 68/2014 s. 24. (4A) It is a condition of a licence that, in providing a document to the Minister under section 116, the licensee must give the Crown a licence to reproduce the document and any information in the document. S. 26(5)(6) repealed by No. 82/2000 s. 21(1). S. 26(7) substituted by No. 52/1998 s. 311(Sch. 1 item 64.2), repealed by No. 82/2000 s. 21(1). S. 26(7) inserted by 68/2014 s. 26. (7) It is a condition of a licence that the licensee comply with any conditions specified in a land use activity agreement under section 31(3) or 31(3A) of the **Traditional Owner Settlement Act 2010** that were accepted by the applicant for the licence. (8) A licence has no effect until registered. S. 26(9) inserted by No. 63/2006 s. 11(3). (9) On the registration of the grant of a mining licence, any land covered by that licence that was, immediately before the registration, covered by an exploration licence ceases to be covered by that exploration licence. S. 26(10) inserted by No. 59/2010 s. 13(2). (10) On the registration of the grant of a mining licence, any land covered by that licence that was, immediately before the registration, covered by a prospecting licence or retention licence ceases to be covered by that prospecting licence or retention licence. S. 26(11) inserted by No. 59/2010 s. 13(2). (11) On the registration of the grant of a retention licence, any land covered by that licence that was, immediately before the registration, covered by an exploration licence or prospecting licence ceases to be covered by that exploration licence or prospecting licence. S. 26AAA inserted by No. 10/2014 s. 10. 26AAA Transfer of consents and approvals to undertake work The Department Head may approve the transfer of an approved work plan, rehabilitation bond or any other consent or approval in relation to a licence under this Act to any other licence held by the same licensee. Pt 2 Div. 3 (Heading and ss 26AA–26AQ) inserted by No. 63/2006 s. 12. Division 3—Licence process for direct allocation of licences relating to coal Subdivision 1—General S. 26AA inserted by No. 63/2006 s. 12. 26AA Definition In this Division, ***exempted land*** means land— S. 26AA(a) substituted by 68/2014 s. 27. (a) that has been exempted under section 7 from being subject to a licence; and (b) that is not subject to an exemption under section 6. S. 26AB inserted by No. 63/2006 s. 12. 26AB Licence applications under Division to be in respect of exempted land An application for a licence under this Division may only be made in respect of exempted land. Subdivision 2—Licences granted by the Minister S. 26AC inserted by No. 63/2006 s. 12. 26AC Who may apply for a licence under this Subdivision? A person may apply for a licence under this Subdivision only if the Minister is satisfied that— (a) the person was a successful tenderer under a prior competitive process equivalent to the tender process under section 27; and (b) in order to implement the requirements of the tender, the person requires access to coal. S. 26AD inserted by No. 63/2006 s. 12. 26AD Application procedure (1) A person may apply to the Minister in accordance with the regulations for a licence to carry out the exploration or mining of coal on exempted land. S. 26AD(2) amended by Nos 59/2010 s. 15, 64/2012 s. 23, 68/2014 s. 28(1). (2) Sections 15(1BC) to (1BG), 15(1BH), 15(1C), 15(2), 15(6), 15(6A) to (6C), 15(7), 15(8), 16 and 16A apply to an application under this Subdivision as if the application were made under Division 2. (3) If the Minister accepts an application, he or she must notify the applicant in writing that the application has been accepted. (4) An applicant for a licence must, within 14 days after being notified under subsection (3) that the application has been accepted— (a) advertise the application in accordance with the regulations; and (b) if the application is for a mining licence, give notice of it in accordance with the regulations to the owner and occupier of the land affected. (5) The Minister must, as soon as practicable after an applicant for a licence covering unrestricted Crown land is notified under subsection (3) that the application has been accepted, consult with the Crown land Minister in relation to the carrying out of work on that land and the Crown land Minister may recommend to the Minister conditions to which the licence should be made subject. (6) Until regulations are made for the purposes of subsections (1) and (4), the relevant regulations relating to applications for licences under Division 2 will apply (with any necessary modifications). S. 26AE inserted by No. 63/2006 s. 12. 26AE Application of Act to licence application S. 26AE(1) amended by No. 32/2019 s. 57. (1) Sections 17, 19, 24 and 24A apply to an application under this Subdivision as if the application were made under Division 2. (2) The Department Head must, within 14 days after an applicant for a licence is notified under section 26AD(3) that the application has been accepted, give notice of the application to the persons and bodies referred to in section 18. S. 26AF inserted by No. 63/2006 s. 12. 26AF Grant or refusal of licence (1) The Minister must not grant a licence over land— (a) that is exempted under section 6 of this Act or under any other Act from being subject to— S. 26AF(1)(a)(iii) inserted by No. 68/2014 s. 28(2). S. 26AF(1)(a)(iv) inserted by No. 68/2014 s. 28(2). (iv) a retention licence, if the application is for a retention licence; or (b) that is subject to a current minerals exemption; or (c) that is limited to a particular stratum unless the Minister is satisfied that the applicant can obtain reasonable access to and use of the land. S. 26AF(2) amended by No. 32/2019 s. 58. (2) Otherwise, the Minister may grant or refuse a licence after considering any objections made under section 24 and any comments made under section 24A as applied by section 26AE. (3) Sections 25(3), 25(4) and 25(7) apply to the granting of a licence under this Subdivision as if the decision to grant or refuse to grant the licence were made under Division 2. S. 26AF(4) amended by No. 68/2014 s. 28(3)(4). (4) Sections 26(1), 26(2), 26(4), 26(4A), 26(5), 26(7) and 26(8) apply to a licence granted under this Subdivision as if the licence were granted under Division 2. S. 26AF(5) inserted by No. 74/2010 s. 28(3). (5) For the purposes of section 8(1)(k) of the Personal Property Securities Act 2009 of the Commonwealth, a licence granted under this section is declared not to be personal property. S. 26AG inserted by No. 63/2006 s. 12. 26AG Revocation of exemption over licence land On the granting of a licence under this Subdivision the exemption to which the area of land covered by the licence is subject under section 7(1) is revoked to the extent that it relates to that land. S. 26AH inserted by No. 63/2006 s. 12. 26AH Minister must publish notice The Minister must cause a notice to be published in the Government Gazette— (a) stating that a licence under this Subdivision has been granted; and (b) describing the area of land covered by the licence; and (c) stating that the exemption relating to the area of land covered by the licence is revoked to the extent that it relates to that land. S. 26AI inserted by No. 63/2006 s. 12. 26AI Application of Act to licence (1) On the granting of a licence under this Subdivision, this Act (except Divisions 2 and 5 of this Part) applies to the licence as if it were granted by the Minister under Division 2. (2) Without limiting subsection (1), the following things may be done under this Part in relation to the licence— (a) the licence may be renewed, transferred, varied, surrendered, cancelled or amalgamated with another licence; (b) a condition of the licence may be varied, suspended, revoked or added; (c) the area of land covered by the licence may be excised, transferred or cancelled in part. Subdivision 3—Licences granted by the Governor in Council S. 26AJ inserted by No. 63/2006 s. 12. 26AJ Application procedure (1) A person may apply in accordance with the regulations for the Governor in Council to grant a licence to carry out the exploration or mining of coal on exempted land on the basis that the application is of State interest. (2) The application must be made to the Minister and be accompanied by evidence setting out the grounds for the application to be considered as one of State interest. (3) An application for a licence is ineffective, and must not be accepted by the Minister unless it is made in accordance with the regulations and subsection (2). S. 26AJ(4) amended by No. 68/2014 s. 29(1). (4) Sections 15(1BH), 15(2), 15(6), 15(7) and 15(8) apply to an application under this Subdivision as if the application were made under Division 2. S. 26AK inserted by No. 63/2006 s. 12. 26AK Notification and advertising requirements (1) If the Minister is not satisfied that the application is of State interest he or she must notify the applicant in writing of that fact setting out the reasons for not being so satisfied. (2) If the Minister is satisfied that the application is of State interest, he or she must notify the applicant in writing that the application is of State interest. (3) An applicant for a licence must, within 14 days after being notified under subsection (2) that the application is of State interest— (a) advertise the application in accordance with the regulations; and (b) if the application is for a mining licence, give notice of it in accordance with the regulations to the owner and occupier of the land affected. (4) The Minister must, as soon as practicable after an applicant for a licence covering unrestricted Crown land is notified under subsection (2) that the application is of State interest, consult with the Crown land Minister in relation to the carrying out of work on that land and the Crown land Minister may recommend to the Minister conditions to which the licence should be made subject. (5) Until regulations are made for the purposes of section 26AJ(1) and subsection (3), the relevant regulations relating to applications for licences under Division 2 will apply (with any necessary modifications). S. 26AL inserted by No. 63/2006 s. 12. 26AL Application of Act to licence application (1) Sections 17, 19 and 24 apply to an application under this Subdivision as if the application were made under Division 2. (2) The Department Head must, within 14 days after an applicant for a licence is notified under section 26AK(2) that the application is of State interest, give notice of the application to the persons and bodies referred to in section 18. S. 26AM inserted by No. 63/2006 s. 12. 26AM Grant or refusal of licence (1) The Governor in Council must not grant a licence over land— (a) that is exempted under section 6 of this Act or under any other Act from being subject to— S. 26AM(1)(a)(iii) inserted by No. 68/2014 s. 29(2). S. 26AM(1)(a)(iv) inserted by No. 68/2014 s. 29(2). (iv) a retention licence, if the application is for a retention licence; or (b) that is subject to a current minerals exemption; or (c) that is limited to a particular stratum unless the Governor in Council, on the recommendation of the Minister, is satisfied that the applicant can obtain reasonable access to and use of the land. (2) Otherwise, the Governor in Council on the recommendation of the Minister may— (a) grant a licence under this section to an applicant to carry out the exploration or mining of coal on exempted land; or (b) refuse to grant that licence. S. 26AM(3) amended by No. 32/2019 s. 59. (3) The Minister must not make a recommendation under subsection (2) unless the Minister has first considered any objections made under section 24 and any comments made under section 24A as applied by section 26AL(1). (4) Sections 25(3), 25(4) and 25(7) apply to the granting or refusal of the granting of a licence under this Subdivision as if— (a) the decision to grant or refuse to grant the licence were made under Division 2; and (b) any reference to the Minister were a reference to the Governor in Council on the recommendation of the Minister. S. 26AM(5) amended by No. 68/2014 s. 29(3)(4). (5) Sections 26(1), 26(2), 26(4), 26(4A), 26(5), 26(7) and 26(8) apply to a licence granted under this Subdivision as if— (a) the licence were granted under Division 2; and (b) any reference to the Minister were a reference to the Governor in Council on the recommendation of the Minister. S. 26AM(5A) inserted by No. 59/2010 s. 16. (5A) In addition, section 26(2) applies to an exploration licence or a mining licence or retention licence granted under this Subdivision (an ***initial licence***), and any other mining licence or retention licence granted under the Act covering some or all of the land covered by the initial licence, as if after paragraph (d) there were inserted— "(da) technology and project development milestones.". S. 26AM(6) inserted by No. 74/2010 s. 28(4). (6) For the purposes of section 8(1)(k) of the Personal Property Securities Act 2009 of the Commonwealth, a licence granted under this section is declared not to be personal property. S. 26AN inserted by No. 63/2006 s. 12. 26AN Minister must publish reasons for refusal to grant licence If the Governor in Council, on the recommendation of the Minister, refuses to grant a licence under this Subdivision, the Minister must publish a notice setting out the reasons for the refusal in— (a) the Government Gazette; and (b) a newspaper circulating generally throughout the State. S. 26AO inserted by No. 63/2006 s. 12. 26AO Revocation of exemption over licence land On the granting of a licence under this Subdivision the exemption to which the area of land covered by the licence is subject under section 7(1) is revoked to the extent that it relates to that land. S. 26AP inserted by No. 63/2006 s. 12. 26AP Minister must publish notice (1) The Minister must cause a notice to be published in the Government Gazette— (a) stating that a licence under this Subdivision has been granted; and (b) stating the reasons for granting the licence; and (c) describing the area of land covered by the licence; and (d) stating that the exemption relating to the area of land covered by the licence is revoked to the extent that it relates to that land. (2) The Minister must also cause a notice setting out the reasons for granting the licence to be published in a newspaper circulating generally throughout the State. S. 26AQ inserted by No. 63/2006 s. 12. 26AQ Application of Act to licence (1) On the granting of a licence under this Subdivision, this Act (except Divisions 2 and 5 of this Part) applies to the licence as if it were granted by the Minister under Division 2. (2) Without limiting subsection (1), the following things may be done under this Part in relation to the licence— (a) the licence may be renewed, transferred, varied, surrendered, cancelled or amalgamated with another licence; (b) a condition of the licence may be varied, suspended, revoked or added; (c) the area of land covered by the licence may be excised, transferred or cancelled in part. **Pt 2 Div. 3A (Heading and ss 26AR–26AV) inserted by No. 68/2014 s. 30.** Division 3A—Survey of land proposed to be covered by mining licence, prospecting licence or retention licence **S. 26AR inserted by No. 68/2014 s. 30.** 26AR Applicant to survey boundary of land (1) A person who intends to apply for a mining licence, prospecting licence or retention licence must survey the boundaries of the land proposed to be covered by the licence in the manner required by the regulations. The survey must be included in the licence application—see section 15(1BH). (2) A person is not entitled to enter land for the purpose of surveying boundaries as required by subsection (1), unless— (a) the person— (i) has, in the case of private land, the written consent of the owner or occupier of the land to the entry; or (ii) has, in the case of occupied Crown land, the written consent of the occupier of the land to the entry; or (iii) has, in the case of any other Crown land, given the person responsible for the management of the land written notice of the intended entry; or (b) the Department Head grants an authority in writing to the person under section 26AS. (3) For the purposes of subsection (2), ***occupied Crown land*** means any Crown land on which a person is undertaking an activity that is authorised by a lease, licence, permit or other authority granted in respect of that land by, or under, an Act. **S. 26AS inserted by No. 68/2014 s. 30.** 26AS Authority to enter land (1) The Department Head may grant to a person an authority to enter land for the purposes of section 26AR if the Department Head is satisfied that the person has made reasonable attempts to obtain the consent of the owner or occupier and— (a) the person has been unable to contact the owner or occupier; or (b) the owner or occupier has refused or failed to consent. (2) A person does not trespass on land only because the person exercises reasonable access to the land— (a) in accordance with an authority to enter the land; and (b) for the purpose of surveying the boundaries of the land proposed to be covered by the licence. (3) An authority to enter land expires— (a) 12 months after the date on which the authority was granted; or (b) when the licence application in relation to which the authority was granted is determined— whichever is the earlier. (4) The Department Head must serve on the owner and occupier of land a copy of an authority that is granted under this section to enter the land as soon as is practicable after the authority is granted. **S. 26AT inserted by No. 68/2014 s. 30.** 26AT Offence not to show authority A person who enters land under an authority to enter land granted under section 26AS must comply with any request made by the owner or occupier of the land to be shown a copy of the authority. Penalty: 10 penalty units. **S. 26AU inserted by No. 68/2014 s. 30.** 26AU Security (1) Before granting an authority to enter land under section 26AS, the Department Head must require the person to provide a security, of an amount and kind specified by the Department Head, against the risk of damage to the property of the owner or occupier of the land as a result of the person's entry on to, or activities on, the land. (2) The Department Head— (a) may use the security, or part of it, to compensate the owner or occupier for any damage resulting from that entry or those activities; and (b) must return the balance of the security to the applicant no later than 30 days after the day on which the authority expires or is withdrawn. **S. 26AV inserted by No. 68/2014 s. 30.** 26AV Insurance A person must not enter any land or carry out any surveying for the purposes of section 26AR unless the person is insured for an amount determined by the Department Head against any risk that might arise if the owner or occupier of the land were to sustain a personal injury as a result of the person's entry on to, or activities on, the land. Pt 2 Div. 4 (Heading) inserted by No. 63/2006 s. 13, amended by No. 64/2012 s. 24. Division 4—Requirements if agricultural land covered by mining licence or prospecting licence S. 26A