Sch 4ALow impact exploration

Schedule 4A—Low impact exploration Section 4(1) 1 In this Act— ***low impact exploration*** means exploration that does not involve any of the following— (a) the use of explosives; (b) the taking of flora that is a member of a taxon of flora that is specified in the Threatened List under section 10(1) of the **Flora and Fauna Guarantee Act 1988**, unless that flora is taken from private land that is not owned by a public authority; (c) the taking of flora that is a part or a member of a community of flora that is specified in the Threatened List under section 10(1) of the **Flora and Fauna Guarantee Act 1988**, unless that community is found on private land that is not owned by a public authority; (d) the taking of fauna that is a member of a taxon of fauna, or that is a part or member of a community of fauna, that is specified in the Threatened List under section 10(1) of the **Flora and Fauna Guarantee Act 1988**; (e) the taking of any taxon or community of flora or fauna from any habitat or parts of habitat under section 20 of the **Flora and Fauna Guarantee Act 1988**; (f) the removal or damaging of more than 1 hectare of native vegetation if that area does not contain any native trees during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; (g) the removal or damaging of more than 15 native trees that have a trunk diameter of less than 40 cm at a height of 1.3 metres above ground level during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; (h) the removal or damaging of more than 5 native trees that have a trunk diameter of 40 cm or more at a height of 1.3 metres above ground level during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; (i) the creation of any road, structure or hardstand area without the consent of the owner or occupier of the land on which it is created; (j) the use of any closed road without the consent of the owner or occupier of the land on which the road is located, or undertaking works on any road without the consent of the owner or occupier of the land on which the road is located; (k) ground intrusive work that— (i) is within 200 metres of a waterway; or (ii) is on a slope steeper than 1 vertical : 3 horizontal; or (iii) is of greater than 2 hectares in an area of cultural heritage sensitivity during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; or (iv) involves taking water from an aquifer, hydraulic fracturing, or excavation using heavy earth moving equipment. 2 In this Schedule— ***area of cultural heritage sensitivity*** means an area specified as an area of cultural heritage sensitivity under regulations made under the **Aboriginal Heritage Act 2006**; ***closed road*** means a road lawfully closed to public access by barriers (including roads closed seasonally, temporarily or permanently, and management vehicle only roads), roads which have been rehabilitated, and roads which are not trafficable due to the regrowth of vegetation; ***community*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***critical habitat*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***damaging***, in relation to native trees or vegetation, means all activities that impact native vegetation, but does not include— (a) lopping or trimming no more than one third of the foliage or a tree or shrub (not including the trunk); or (b) mowing or slashing native grasses (but not trees, shrubs or groundcovers) to a height greater than 10 cm; ***fauna*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***flora*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***ground intrusive work*** means work that disturbs the topsoil or surface rock layer of the ground by machinery (other than hand-held machinery) in the course of drilling a hole, ground levelling or augering; ***hardstand area*** means an open ground area with a prepared surface that is used for storing material and standing vehicles; ***hydraulic fracturing*** means the injection of water and other materials into a bore under pressure; ***native tree*** means a tree that is indigenous to Victoria; ***native vegetation*** means plants indigenous to Victoria including trees, shrubs, herbs and grasses; ***public authority*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***road*** means a road within the meaning of the **Road Management Act 2004** and includes Crown land permanently or temporarily formed for the passage of motor vehicles having four or more wheels, and land specified as an unused road under section 400 of the **Land Act 1958**; ***structure*** means materials that have been erected for the purpose of facilitating exploration activities and includes, but is not limited to, facilities associated with exploratory team members, sound attenuation devices to minimise noise disturbance from exploration activities, and ancillary storage facilities; ***take*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***taxon*** has the same meaning as in the **Flora and Fauna Guarantee Act 1988**; ***waterway*** means— (a) a river, creek, stream or watercourse the name of which is registered under the **Geographic Place Names Act 1998**; or (b) a natural channel the name of which is registered under the **Geographic Place Names Act 1998** in which water regularly flows, whether or not the flow is continuous; or (c) a lake, lagoon, swamp or marsh, being— (i) a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into, through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or (ii) a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) of the **Water Act 1989** to be a lake, lagoon, swamp or marsh; or (d) land which is regularly or intermittently covered by water from a waterway as described in paragraph (a), (b) or (c) but does not include— (i) any artificial channel or work which diverts water away from such a waterway; or (ii) an area covered by the floodwaters of a waterway; or (iii) an area, other than the waterway, designated on a planning scheme as being a floodway or liable to flooding or as being subject to inundation; or (e) if any land described in paragraph (d) forms part of a slope rising from the waterway to a definite lip, the land up to that lip. Sch. 5 inserted by No. 82/2000 s. 73. Schedule 5—Saving and transitional provisions arising from the Mineral Resources Development (Amendment) Act 2000 ***amending Act*** means the **Mineral Resources Development (Amendment) Act 2000**; ***commencement date*** means the date section 14 of the amending Act came into operation. 2 Saving of exploration licence applications based on former measurement system If the Minister varies the meaning of a graticular section under section 7A— (a) any application for an exploration licence that was lodged before the date the variation took effect is not invalid merely because it does not take account of the varied meaning of graticular sections; and (b) the Minister may grant the application without modifying the area to which the licence is to apply to take account of the varied meaning. 3 "Queued" applications to lapse (1) This clause applies if— (a) an application for a licence was lodged— (i) before the commencement date; and (ii) one or more days after an application was lodged for a licence in respect of the same land; and (b) that other prior application had not lapsed or been withdrawn, rejected or not accepted before the commencement date. (2) The later application lapses. 4 Other applications Subject to clauses 2 and 3, any application for a licence or the renewal of a licence that was lodged before the commencement date and that had not lapsed or been withdrawn, rejected or not accepted before that date is to be treated as if it had been lodged on the commencement date. 5 Exploration licences held for less than 5 years (1) This clause applies to an exploration licence that was first registered less than 5 years before the commencement date. (2) The licence is to be treated as if it had been issued on the day it was first registered for a period of 5 years. (3) Subsection (2) is not to be read as enabling the recovery of any area that no longer applies to the licence as a result of section 30 (before its repeal). 6 Exploration licences held for 5 years or more (1) This clause applies to an exploration licence that was first registered 5 years or more before the commencement date. (2) The licence may be renewed on the expiry of the term specified in the licence. 7 Exploration licences not affected Subject to clauses 5 and 6, any exploration licence in force on the commencement date continues in force. 8 Mining licences not affected Any mining licence in force on the commencement date continues in force. 9 Right to reproduce section 116 document imposed as a condition (1) This clause applies to any mining licence in force immediately before the commencement date. (2) It is a condition of the 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. Sch. 6 inserted by No. 71/2001 s. 6. Schedule 6—Saving and transitional provisions arising from the Mineral Resources Development (Further Amendment) Act 2001 1 Definition In this Schedule ***amending Act*** means the **Mineral Resources Development (Further Amendment) Act 2001**. 2 Peat mining licences to continue (1) In this clause ***licence*** means Mining Licence No. 4667 granted on 27 May 1993. (2) The licence continues, until the expiry of the licence, to remain in force after the commencement of the amending Act, subject to this Act, as if peat was still a mineral. (3) The licence may be renewed after the commencement of the amending Act in accordance with this Act as if peat was still a mineral. 3 Peat exploration licences to continue (1) In this clause ***licence*** means— (a) Exploration Licence No. 4115 granted on 22 July 1997; (b) Exploration Licence No. 4387 granted on 12 May 2000; (c) Exploration Licence No. 4451 granted on 12 May 2000. (2) A licence continues, until the expiry of the licence, to remain in force after the commencement of the amending Act, subject to this Act, as if peat was still a mineral subject to the following exceptions— (a) the holder of the licence is not entitled to apply for a mining licence in respect of peat; and (b) the Minister must not renew the licence for a period that allows the licence to remain in force on or after 12 May 2012. 4 Inconsistent permits and authorities not to be granted The Minister administering the **Extractive Industries Development Act 1995** must not grant under that Act— (a) a permit that allows any searching for, or the carrying out of any survey or other operation for the purpose of searching for, peat; or (b) a work authority that allows the carrying out of any extractive industry involving peat— over, in or from any area of land covered by a licence to which clause 2 or 3 applies while that licence remains in force. Sch. 7 (Heading and cls 1–5) inserted by No. 6/2009 s. 40. Schedule 7—Saving and transitional provisions arising from the Resources Industry Legislation Amendment Act 2009 ***amending Act*** means the **Resources Industry Legislation Amendment Act 2009**; ***old Act*** means the **Extractive Industries Development Act 1995** as in force before its repeal. 2 Work authorities granted under the old Act to continue Despite the repeal of the old Act, a work authority granted under that Act and in force immediately before the repeal of the old Act, continues in force as if it were an extractive industry work authority granted under this Act. 3 Variation of work plans (1) If the holder of a work authority, that is continued in operation under clause 2, made an application under section 18 of the old Act to vary the work plan relating to that work authority and that application has not been determined before the commencement of the amending Act, the application must be determined in accordance with this Act. (2) Despite anything to the contrary in this Act, the holder of a work authority granted under the old Act and continued in operation under clause 2 must not make an application to vary the work plan relating to that authority if the extractive industry— (a) is carried out on land that has an area of less than 5 hectares and a depth of less than 5 metres; and (b) does not require blasting or the clearing of native vegetation. (3) The holder of a work authority to which subclause (2) applies may apply, in writing, to the Minister for a determination of the Minister that the holder is not required to comply with the work plan relating to that authority. (4) If the holder of a work authority makes an application under subclause (3), the Minister― (a) may determine that the holder is not required to comply with the work plan relating to that authority; and (b) may impose a condition on that authority requiring compliance with a Code of Practice. 4 Chief Inspector of quarries On the commencement of the amending Act the person who was, immediately before the commencement of that Act, the Chief Inspector of Quarries within the meaning of the old Act― (a) is deemed to be the Chief Inspector within the meaning of this Act; and (b) is deemed to be substituted as a party to any proceedings pending in any court to which the Chief Inspector of Quarries was a party immediately before the repeal of the old Act. 5 Inspectors of quarries On the commencement of the amending Act a person who was, immediately before the commencement of that Act, an inspector within the meaning of the old Act― (a) is deemed to be an inspector within the meaning of this Act; and (b) is deemed to be substituted as a party to any proceedings pending in any court to which that inspector was a party immediately before the repeal of the old Act. Sch. 8 inserted by No. 59/2010 s. 30 (as amended by No. 29/2011 s. 3(Sch. 1 item 61). Schedule 8—Savings and transitional provisions arising from the Mineral Resources Amendment (Sustainable Development) Act 2010 ***amending Act*** means the **Mineral Resources Amendment (Sustainable Development) Act 2010**; ***specified licence*** means an exploration licence to which clause 7 or 8 applies. 2 Mining licence applications (1) To avoid doubt, Part 2, as amended by Part 2 of the amending Act, applies to— (a) an application for a mining licence made on and after the commencement of section 7 of the amending Act; and (b) subject to subclause (2), an application for the renewal of a current mining licence made on or after the commencement of that section. (2) Despite anything to the contrary in Part 2, an application for a mining licence or for the renewal of a current mining licence that is made within 12 months after the commencement of section 7 of the amending Act is not required to include a mineralisation report at the time the application is made. (3) However, a mineralisation report must be provided to the Minister within 12 months after the application is made. (4) Despite anything to the contrary in this Act, the Minister— (a) cannot make a decision on the application until the Minister receives a mineralisation report under subclause (3); and (b) may refuse the application if the Minister is not provided a mineralisation report within the time specified under subclause (3). (5) In this clause— ***current mining licence*** means a mining licence that is in effect immediately before the commencement of section 7 of the amending Act; ***mineralisation report*** means a report referred to in section 15(1BE). 3 Mining licensees and others may apply for retention licence in certain cases (1) This clause applies to— (a) a holder of a mining licence who wishes to apply for a retention licence over land that is covered by the mining licence; or (b) an applicant for a mining licence who wishes to apply for a retention licence over land that is covered by the application for the mining licence; or (c) a person who— (i) wishes to apply for a retention licence over land that is covered by a mining licence or that is the subject of an application for a mining licence; and (ii) has the consent of the holder of that mining licence or the applicant for that mining licence to apply for the retention licence. (2) Despite anything to the contrary in Part 2, a person to whom this clause applies may apply for the retention licence (the ***retention licence application***) within 12 months after the commencement of section 7 of the amending Act. (3) A retention licence application is not required to include a mineralisation report at the time the retention licence application is made. (4) However, a mineralisation report must be provided to the Minister within 12 months after the retention licence application is made. (5) Despite anything to the contrary in this Act, the Minister— (a) cannot make a decision on the retention licence application until the Minister receives a mineralisation report under subclause (4); and (b) may refuse the retention licence application if the Minister is not provided with a mineralisation report within the time specified under subclause (4). (6) On the taking of effect of a retention licence that is granted on a retention licence application— (a) the land to which the retention licence application relates is taken to be covered by that retention licence, if the land does not constitute the whole of the land covered by the mining licence or the application for the mining licence; (b) the mining licence is taken to be cancelled if the land to which the retention licence application relates constitutes the whole of the land covered by the mining licence; (c) the application for the mining licence is taken to be ineffective if the land to which the retention licence application relates constitutes the whole of the land covered by the application for the mining licence— as the case requires. (7) Subclauses (6)(a) and (6)(b) apply despite anything to the contrary in the mining licence. 4 Exploration licences in effect that have not been renewed (i) that is in effect on the commencement of section 19 of the amending Act; but (ii) has not been renewed before that commencement; and (b) whether or not an application has been made to renew that licence before the commencement of section 19 of the amending Act. (2) Despite anything to the contrary in the exploration licence, sections 31 and 32 apply to an application for any renewal of the exploration licence. Sch. 8 cl. 5 (Heading) amended by No. 64/2012 s. 40(1). 5 Exploration licences in effect for 10 years or less and that have been renewed at least once (i) that is in effect on the commencement of section 19 of the amending Act; and Sch. 8 cl. 5(1)(a)(ii) substituted by No. 64/2012 s. 40(2). (ii) that has been, at the time of that commencement, in effect for a period of 10 years or less and renewed at least once; and (b) whether or not an application has been made to renew that licence before the commencement of section 19 of the amending Act. (2) Subject to subclause (3), sections 31 and 32 apply to an application for the renewal of the exploration licence. (3) Despite section 31(5) and (6), and the periods specified in section 32(2) or (2A), the Minister may renew the exploration licence— (a) for one period that does not exceed 2 years; and (b) after that, for another period not exceeding 2 years but only if the Minister— (ii) is satisfied that there is a likelihood of the licensee identifying minerals in the land covered by the licence during the period for which the licence may be renewed. 6 Exploration licences in effect for more than 10 years (i) that is in effect on the commencement of section 19 of the amending Act; and Sch. 8 cl. 6(1)(a)(ii) amended by No. 64/2012 s. 40(3). (ii) that has been, before or at the time of that commencement, in effect for a period of more than 10 years; and (b) whether or not an application has been made to renew that licence before the commencement of section 19 of the amending Act. (2) Subject to subclause (3), sections 31 and 32 apply to an application for the renewal of the exploration licence. (3) Despite section 31(5) and (6), and the periods specified in section 32(2) or (2A), the Minister may renew the exploration licence— (a) as many times as is necessary so that the aggregate number of years that the exploration licence is renewed does not exceed 2 years; and (b) after that, for a period not exceeding 2 years but only if the Minister— (ii) is satisfied that there is a likelihood of the licensee identifying minerals in the land covered by the licence during the period for which the licence may be renewed. 7 Applications relating to specified exploration licences (1) This clause applies to the following exploration licences (whether or not an application has been made to renew any of the licences before the commencement of section 19 of the amending Act)— (a) exploration licence No. 3327 granted on 16 September 1982 to the extent that the licence covers land not within the outer boundaries of the land described in mining licences No. 5344 granted on 10 August 1987 and No. 5364 granted on 16 November 1989; (b) exploration licence No. 3008 granted on 16 December 1988 to the extent that the licence covers land not within the outer boundaries of the land described in the mining licence No. 5260 granted on 31 May 1985; (c) exploration licence No. 3018 granted on 5 September 1989 to the extent that the licence covers land not within the outer boundaries of the land described in any of the following mining licences— (i) No. 4847 granted on 3 November 1989; (ii) No. 5396 granted on 5 October 1988; (iii) No. 5444 granted on 5 April 2006; (d) exploration licence No. 3310 granted on 17 September 1993 to the extent that the licence covers land not within the outer boundaries of the land described in the mining licence No. 4644 granted on 25 February 1986; (e) exploration licence No. 3539 granted on 3 June 1994 to the extent that the licence covers land not within the outer boundaries of the land described in the mining licence No. 5404 granted on 24 August 1990; (f) exploration licence No. 3903 granted on 4 October 1996 to the extent that the licence covers land not within the outer boundaries of the land described in mining licences No. 5458 granted on 9 August 2006 and No. 5497 granted on 26 August 2009; Sch. 8 cl. 7(1)(g) amended by No. 64/2012 s. 40(4). (g) exploration licence No. 4282 granted on 30 April 1998 to the extent that the licence covers land not within the outer boundaries of the land described in mining licences No. 5367 granted on 24 May 2002 and No. 5506 granted on 17 December2008; Sch. 8 cl. 7(1)(h) inserted by No. 64/2012 s. 40(5). (h) exploration licence No. 3242 granted on 24 April 1987 to the extent that the licence covers land not within the outer boundaries of the land described in the mining licence No. 4470 granted on 14 August 1979; Sch. 8 cl. 7(1)(i) inserted by No. 64/2012 s. 40(5). (i) exploration licence No. 3422 granted on 31 January 1994 to the extent that the licence covers land not within the outer boundaries of the land described in the mining licence No. 5146 granted on 17 December 1996; Sch. 8 cl. 7(1)(j) inserted by No. 64/2012 s. 40(5). (j) exploration licence No. 3640 granted on 15 September 1994 to the extent that the licence covers land not within the outer boundaries of the land described in the mining licence No. 4756 granted on 17 January 1989. (2) Subject to subclause (3), sections 31 and 32 apply to an application for the renewal of an exploration licence to which this clause applies. (3) Despite section 31(5) and (6), and the periods specified in section 32(2) or (2A), the Minister may renew an exploration licence to which this clause applies— (a) as many times as is necessary so that the aggregate number of years that the exploration licence is renewed does not exceed 5 years; and (b) after that, as many times as is necessary so that the aggregate number of years that the exploration licence is renewed does not exceed 2 years but only if the Minister, each time— (ii) is satisfied that there is a likelihood of the licensee identifying minerals in the land covered by the licence during the period for which the licence may be renewed. (4) In addition, section 38A(2A) and (2B) do not apply to the exploration licence. 8 Specified exploration licences with parts within outer boundaries of mining licences (1) This clause applies to the following exploration licences (whether or not an application has been made to renew any of the licences before the commencement of section 19 of the amending Act)— (a) exploration licence No. 3327 granted on 16 September 1982 to the extent that the licence covers land within the outer boundaries of the land described in mining licences No. 5344 granted on 10 August 1987 and No. 5364 granted on 16 November 1989; (b) exploration licence No. 3008 granted on 16 December 1988 to the extent that the licence covers land within the outer boundaries of the land described in the mining licence No. 5260 granted on 31 May 1985; (c) exploration licence No. 3018 granted on 5 September 1989 to the extent that the licence covers land within the outer boundaries of the land described in any of the following mining licences— (i) No. 4847 granted on 3 November 1989; (ii) No. 5396 granted on 5 October 1988; (iii) No. 5444 granted on 5 April 2006; Sch. 8 cl. 8(1)(d) amended by No. 64/2012 s. 40(6). (d) exploration licence No. 3242 granted on 24 April 1987 to the extent that the licence covers land within the outer boundaries of the land described in mining licence No. 4470 granted on 14 August 1979; (e) exploration licence No. 3422 granted on 31 January 1994 to the extent that the licence covers land within the outer boundaries of the land described in the mining licence No. 5146 granted on 17 December 1996; (f) exploration licence No. 3539 granted on 3 June 1994 to the extent that the licence covers land within the outer boundaries of the land described in the mining licence No. 5404 granted on 24 August 1990; (g) exploration licence No. 3640 granted on 15 September 1994 to the extent that the licence covers land within the outer boundaries of the land described in the mining licence No. 4756 granted on 17 January 1989. (2) Sections 31 and 32, as in force immediately before the commencement of section 19 of amending Act, apply to an application for the renewal of an exploration licence to which this clause applies. (3) In addition, section 38A(2A) and (2B) do not apply to the exploration licence. 9 Decreases in area under current exploration licences—first renewal after amending Act (a) to an exploration licence to which clause 4 of this Schedule applies; and (b) in respect of which an application is made after the commencement of section 21 of the amending Act for the first renewal of that licence. (2) Section 38A(2A) applies to the exploration licence. 10 Decreases in area under current exploration licences—second renewal after amending Act (a) to an exploration licence to which clause 4 of this Schedule applies; and (b) in respect of which an application is made after the commencement of section 21 of the amending Act for the second renewal of that licence. (2) Section 38A(2A) and (2B) apply to the exploration licence. Sch. 8 cl. 11 (Heading) amended by No. 64/2012 s. 40(7). 11 Decreases in area under current exploration licences that have been renewed at least once (a) to an exploration licence to which clause 5 or 6 of this Schedule applies; and (b) in respect of which an application is made after the commencement of section 21 of the amending Act for a renewal of that licence. (2) Section 38A(2A) and (2B) apply to the exploration licence. Sch. 9 inserted by No. 10/2014 s. 42. Schedule 9—Savings and transitional provisions arising from the Mineral Resources (Sustainable Development) Amendment Act 2014 1 Definition ***amending Act*** means the **Mineral Resources (Sustainable Development) Amendment Act 2014**. 2 Grant or refusal of licence The amendments made by section 8 of the amending Act do not apply to an application for a licence that was accepted before the commencement of that section in accordance with section 16 of this Act as in force before that commencement. Sch. 9 cl. 3 (Heading) substituted by No. 47/2015 s. 15(1). 3 Work plans—licences (1) This clause applies to— (a) a licensee who has an approved work plan immediately before the commencement of section 16 of the amending Act; or (b) a licensee who, before that commencement, lodged a work plan or a variation of an approved work plan under section 40 or 41 as in force before that commencement. (2) Despite anything to the contrary in Part 3 of this Act, a person to whom this clause applies is not required to comply with the requirements for an approved work plan as in force after the commencement of section 16 of the amending Act if the approved work plan has not been varied after that commencement. Sch. 9 cl. 3(3) amended by No. 47/2015 s. 15(2). (3) Part 3 of this Act as in force immediately before the commencement of section 16 of the amending Act continues to apply to the approval of a work plan to which subclause (1)(b) applies. Sch. 9 cl. 3(4) inserted by No. 47/2015 s. 15(3). (4) Despite subclauses (2) and (3), if the Department Head is satisfied that work set out in a work plan described in subclause (1)(a) or (b) may pose an unacceptable risk to the environment, to any member of the public, or to land, property or infrastructure in the vicinity of that work, the Department Head may direct that the work plan be varied so that it complies with section 40(3) as amended by section 16 of the amending Act. Sch. 9 cl. 3(5) inserted by No. 47/2015 s. 15(3). (5) On making a determination under subclause (4), the Department Head must give the licensee written notice of the proposed variation, and the reasons for it, and give the licensee an opportunity to comment on the proposal. Sch. 9 cl. 3(6) inserted by No. 47/2015 s. 15(3). (6) After considering any comments made by the licensee, the Department Head may direct the licensee to lodge an application under section 41 for approval of the variation. Sch. 9 cl. 3A inserted by No. 47/2015 s. 16.