Part 11BPrivate mines

Part 11B—Private mines 73C—Interpretation (1) In this Part— compliance order—see section 73I; emergency order—see section 73KA; environment includes— (a) land, air, water (including both surface and underground water and sea water), organisms, ecosystems, native fauna and other features or elements of the natural environment; and (b) buildings, structures and other forms of infrastructure, and cultural artefacts; and (c) public health, safety or amenity; general duty means the duty under section 73H; mine operations plan means a mine operations plan under section 73G; rectification authorisation—see section 73K; rectification order—see section 73J. (2) Without derogating from the general meaning of mining operations under this Act, mining operations includes, for the purposes of this Part, when carried out within the boundaries of a private mine— (a) the treatment, processing or handling of any material recovered in the course of mining operations; and (b) any activity ancillary to the conduct of mining operations. 73D—Application of Act (1) Subject to this Part, and any other provisions of this Act that explicitly apply to a private mine or a person carrying out operations in relation to a private mine, a private mine is exempt from the other Parts of this Act. (2) Land comprised within a private mine cannot be subject to a mineral tenement under this Act. (3) Without limiting any other provision that makes explicit application as envisaged by subsection (1), the following provisions apply to or in relation to a private mine or a person carrying out operations in relation to a private mine: (a) section 6 (subject to the operation of section 6(6) and (7)); (b) sections 7, 8, 8A, 9A and 10; (c) Part 2; (d) Part 2A; (e) Part 3; (f) section 56P; (g) section 56X; (h) section 63; (i) Part 10, other than section 70; (j) Part 10C, other than section 70HG; (k) sections 72 and 73; (l) sections 74 and 74AA; (m) sections 75A and 79; (n) sections 83A and 85; (o) sections 88 to 92 (inclusive); (p) any other provision specified by the regulations. 73G—Mine operations plans (1) Unless otherwise approved by the Director, a person must not, after the commencement of this Part, carry out mining operations at a private mine unless a mine operations plan that relates to the operations and complies with requirements of this section is in place. (2) A mine operations plan must, in order to comply with the requirements of this section— (a) include, in accordance with the requirements of the regulations— (i) a set of objectives approved by the Director; and (ii) a set of criteria for measuring those objectives approved by the Director, that relate to the mining operations carried out at the private mine; and (b) be consistent with any relevant environment improvement programme or environment protection policy under the Environment Protection Act 1993; and (c) comply with any other requirement prescribed by the regulations. (3) Objectives under subsection (2)(a) must include specific objectives to achieve compliance with the general duty (see section 73H). (4) A person wishing to obtain the approval of the Director to a set of objectives and a set of criteria, or to an alteration to a set of objectives or a set of criteria, must submit a draft of the objectives and criteria, or a draft of the objectives or criteria as altered, (as the case may be) to the Director in accordance with the regulations. (4a) A submission to the Director under subsection (4) must be accompanied by the prescribed fee. (5) The Director may, on receipt of a draft under subsection (4)— (a) accept the draft, without alteration; or (b) require alterations to the draft after consultation with the person who has submitted the draft (and in this case the person must (subject to any appeal under subsection (6)) alter the draft in accordance with the requirements of the Director). (6) The person who has submitted the draft may appeal to the Warden's Court against a requirement of the Director under subsection (5)(b) and the Warden's Court may, on hearing an appeal— (a) confirm the requirement of the Director; (b) vary or revoke the requirement of the Director, or impose any requirement in substitution for a requirement of the Director; (c) make any consequential or ancillary order that it considers necessary or expedient. (7) Subject to the outcome of any appeal under subsection (6), the Director will then, unless subsection (8) applies, be taken to have approved the objectives and criteria contained in the draft. (8) If a draft relates to new operations to be carried out at a private mine, the draft must then be released for public consultation on the proposed objectives and criteria. (9) The public consultation must be conducted in accordance with the regulations. (10) The person who submitted the draft must, after complying with the public consultation requirements, prepare a report on the matters raised as a result of public consultation (insofar as they are relevant to the matters that were referred for public consultation) and, if relevant, on any recommended alterations to the objectives and criteria contained in the draft, and submit the report to the Director. (11) The Director may then— (a) approve the objectives and criteria (with any alterations recommended under subsection (10)); or (b) refer the matter back to the person who submitted the draft for further consideration or report (and in this case the Director must provide written reasons for his or her action and may subsequently approve the objectives and criteria, or altered objectives and criteria, if or when the Director is satisfied that the matter has been satisfactorily resolved). (12) The person who submitted the draft may appeal to the Warden's Court against a decision of the Director under subsection (11)(b) (including a decision not to approve objectives and criteria) and the Warden's Court may, on hearing an appeal— (a) confirm the decision of the Director; (b) vary or revoke the decision of the Director, or make any decision in substitution for a decision of the Director; (c) make any consequential or ancillary order that it considers necessary or expedient. (12a) The Minister may publish a mine operations plan in such manner, and to such extent, as the Minister thinks fit. (13) A mine operations plan may be reviewed by a person carrying out, or intending to carry out, mining operations at the private mine at any time. (14) A mine operations plan must be reviewed at the direction of the Director (which may be given at any time for any reasonable cause). (15) A mine operations plan must also be reviewed— (a) within seven years after the commencement of the plan (unless it has been reviewed sooner under subsection (13) or (14)); or (b) in any event, within seven years after it was last reviewed. (16) A review must be conducted in accordance with the regulations. (17) A report must be furnished to the Director in accordance with the regulations on the completion of a review. (18) An appeal under this section must be made in a manner and form determined by the Warden's Court, setting out the grounds of the appeal. 73H—General duty to avoid undue environmental damage (1) A person must, in carrying out mining operations at a private mine, take all reasonable and practicable measures to avoid undue damage to the environment. (2) In determining what measures are required to be taken under subsection (1), regard is to be had, amongst other things, to— (a) the nature of the mining operations and the sensitivity of the receiving environment; and (b) the financial implications of the various measures that might be taken as those implications relate to the class of persons undertaking activities of the same or a similar kind; and (c) the current state of technical knowledge and likelihood of successful application of the various measures that might be taken. (4) Subsection (1) operates in addition to, and does not limit or derogate from, the provisions of the Environment Protection Act 1993 or any other Act. 73I—Compliance orders (1) The Director may issue an order under this section (a compliance order) for the purpose of securing compliance with— (a) the requirement to have a mine operations plan in accordance with this Part; or (b) the objectives contained in a mine operations plan; or (c) the general duty. (2) A compliance order— (a) must be in the form of a written notice served on the person to whom the notice is issued; and (b) must— (i) specify the person to whom it is issued (whether by name or a description sufficient to identify the person); (ii) if the order is issued for the purpose of securing compliance with the objectives contained in a mine operations plan—state the purpose and specify the objective that is not being met; (iii) if the order is issued for the purpose of securing compliance with the general duty—state the purpose and specify the matters that it is directed towards; and (c) may impose any requirement reasonably required for the purpose for which the order is issued including one or more of the following: (i) a requirement that the person discontinue, or not commence, specified mining operations indefinitely or for a specified period or until further notice from the Director; (ii) a requirement that the person not carry on specified mining operations except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action within a specified period; and (d) must state that the person may, within 28 days, appeal to the Warden's Court against the order. (3) The Director may, by written notice served on a person to whom a compliance order has been issued, vary or revoke the order. (4) A person to whom a compliance order is issued must comply with the order. (5) If the requirements of a compliance order are not complied with, the Director may take any action required by the order. (6) Any action to be taken by the Director under subsection (5) may be taken on the Director's behalf by authorised officers or by other persons authorised by the Director for the purpose. (7) If a person other than an authorised officer is authorised to take action under subsection (6), the following provisions apply: (a) the Director must issue the person with an instrument of authority; (b) the person may exercise such powers of an authorised officer under this Part as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Part apply in relation to the exercise of such powers by the person in the same way as in relation to an authorised officer; (d) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers of an authorised officer. (8) The reasonable costs and expenses incurred by the Director in taking action under subsection (5) may be recovered by the Director as a debt from the person who failed to comply with the requirements of the compliance order. 73J—Rectification orders (1) If the Director is satisfied that a person has caused damaged to the environment by a contravention of the general duty, the Director may issue an order (a rectification order) to the person requiring the person to take specified action within a specified period to make good the damage. (2) A rectification order— (a) must be in the form of a written notice served on the person to whom it is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) must specify the contravention alleged to have caused the damage to the environment; and (d) may include requirements for action to be taken to prevent or mitigate further damage to the environment; and (e) may include requirements for monitoring and reporting to the Director the effectiveness of action taken in pursuance of the order; and (f) must state that the person may, within 28 days, appeal to the Warden's Court against the order. (3) The Director may, by written notice served on a person to whom a rectification order has been issued, vary or revoke the order. (4) A person to whom a rectification order is issued must comply with the order. 73K—Rectification authorisations (1) If the Director is satisfied that a person has caused damage to the environment by a contravention of the general duty, the Director may (whether or not a rectification order has been issued to the person) issue an authorisation (a rectification authorisation) under which authorised officers or other persons authorised by the Director for the purpose may take specified action to make good the damage. (2) A rectification authorisation— (a) must be in the form of a written notice; and (b) must specify the person alleged to have caused the damage to the environment (whether by name or a description sufficient to identify the person); and (c) must specify the contravention alleged to have caused the damage to the environment; and (d) may include authorisation for action to be taken to prevent or mitigate further damage to the environment. (3) The Director must, as soon as practicable after issuing a rectification authorisation, serve a copy of the authorisation on the person alleged to have caused the damage to the environment. (4) The Director may, by notice in writing, vary or revoke a rectification authorisation and must, as soon as practicable after doing so, serve a copy of the notice on the person alleged to have caused the damage to the environment. (5) If a person other than an authorised officer is authorised to take action under subsection (1), the following provisions apply: (a) the Director must issue the person with an instrument of authority; (b) the person may exercise such powers of an authorised officer as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Part apply in relation to the exercise of such powers by the person in the same way as in relation to an authorised officer; (d) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers of an authorised officer. (6) The reasonable costs and expenses incurred by the Director by virtue of work done under a rectification authorisation may be recovered by the Director as a debt from the person whose contravention gave rise to the issuing of the authorisation. 73KA—Emergency order (1) If, in the opinion of an authorised officer— (a) mining operations are being carried out in a way that results in, or that is reasonably likely to result in— (i) a breach of an objective under a mine operations plan; or (ii) undue damage to the environment; and (b) it is urgently necessary to take action under this section, the authorised officer may, by written notice given to any person involved in undertaking the mining operations, issue an order under this section (an emergency order). (2) An emergency order— (a) subject to subsection (3), must be in the form of a written notice given to the person to whom the order is issued; and (b) must specify the grounds on which it is issued; and (c) may impose any requirement reasonably required for the purpose for which the order is issued including 1 or more of the following: (i) a requirement that a person specified or identified in the order discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from an authorised officer; (ii) a requirement that a person specified or identified in the order take specified action within a specified period; (iii) a requirement that a person specified or identified in the order furnish the Minister or a specified authorised officer with a specified report or reports. (3) An authorised officer may, if of the opinion that urgent action is required under this section, issue an emergency order imposing requirements of a kind referred to in subsection (2)(c) orally but, in that event, the authorised officer must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom the order applies. (4) An emergency order issued under this section will cease to have effect at the expiration of 3 business days after the day on which it is issued unless the Director of Mines, within that period, confirms the order in the manner prescribed by the regulations (and then the order will continue to have effect for a period determined by the Director or until revoked by an authorised officer). (5) An authorised officer may, with the approval of the Director, by written notice served on the person to whom an emergency order has been issued, vary or revoke the order. (6) A person to whom an emergency order relates must comply with an order under this section within the time allowed in the order. 73KB—Contravention of Act The Minister or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an order under this Part a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. 73L—Application for review of direction (1) A person to whom a compliance order, a rectification order or an emergency order has been issued may appeal to the Warden's Court against the order or any variation of the order. (2) An appeal must be made in a manner and form determined by the Warden's Court, setting out the grounds of the appeal. (3) Subject to subsection (4), an appeal must be made within 28 days after the order is issued or the variation is made. (4) The Warden's Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirements that an appeal be made within the period fixed by subsection (3). (5) Subject to subsection (6), the making of an appeal against an order does not affect the operation of the order or prevent the taking of action to implement the order. (6) The Warden's Court may, on application by a party to an appeal, make an order staying or otherwise affecting the operation or implementation of the whole or a part of the order appealed against if the Warden's Court is satisfied that it is appropriate to do so having regard to— (a) the possible environmental consequences and the interests of any persons who may be affected by the appeal; and (b) the need to secure the effectiveness of the hearing and determination of the appeal. (7) An order under subsection (6)— (a) may be varied or revoked by the Warden's Court by further order; and (b) is subject to such conditions as are specified in the order; and (c) has effect until— (i) the end of the period of operation (if any) specified in the order; or (ii) the decision of the Warden's Court on the appeal comes into operation, whichever is the earlier. (8) The Warden's Court may, on hearing an appeal under this section— (a) confirm, vary or revoke the order appealed against; (b) order or direct a person or body to take such action as the Warden's Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Warden's Court thinks fit; (c) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient. 73M—Action if non‑compliance occurs (1) If the requirements of an order under this Part are not complied with, the Minister or the Director may take the action required by the order. (2) Any action to be taken under subsection (1) may be taken by an authorised officer or by another person authorised by the Minister or the Director for the purpose. (3) If a person other than an authorised officer is authorised to take action under subsection (2), the following provisions apply: (a) the Minister or the Director must issue the person with an instrument of authority; (b) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers under this section. (4) The reasonable costs and expenses incurred by the Minister or the Director taking action under this section constitute a debt due to the Crown. 73N—Revocation of private mine (1) The Governor may, by proclamation, vary or revoke the declaration of an area as a private mine under this Act. (2) A proclamation may only be made under subsection (1) on the recommendation of the Minister. (3) The Minister must not make a recommendation under subsection (2) unless— (a) the Minister has served on the proprietor of the private mine a notice under this subsection indicating that it is considered that a declaration of a specified area as a private mine should be varied or revoked on the basis of the designated criteria set out in subsection (4); and (b) the Minister has provided the proprietor of the private mine an opportunity to make written submissions in relation to the matter within a period specified by the Minister in the notice; and (c) the Minister is satisfied, after taking into account— (i) any submission under paragraph (b); and (ii) the designated criteria set out in subsection (4); and (iii) such other matters as the Minister thinks fit, that such a recommendation is appropriate. (4) The designated criteria are as follows: (a) that— (i) the whole or any part of the private mine is not being effectively operated; or (ii) it is no longer possible to carry out operations on the whole or any part of the private mine; (b) that the area that is relevant for the purposes of a proclamation under this section has been rehabilitated to an appropriate extent and standard. 73O—Evidentiary provisions (1) In proceedings for an offence against this Part, an apparently genuine document purporting to be a certificate signed by the Minister certifying that a specified provision was a requirement or condition of a mine operations plan under section 73G is, in the absence of proof to the contrary, proof of the matter so certified. (2) If in any proceedings for an offence against this Part in relation to any operations it is proved that there has been a contravention of, or a failure to comply with, a requirement or condition of a mine operations plan under section 73G, it must be presumed, in the absence of evidence to the contrary, that the contravention or failure (as the case requires) occurred as a result of an act or omission of the person carrying out, or intending to carry out, mining operations in relation to the private mine. 73R—Power to correct errors in declarations (1) If, in the opinion of the Governor, there is an error in the declaration of an area as a private mine, the Governor may, by proclamation, correct the error. (2) A proclamation under subsection (1) will, if it so provides, be taken to have had effect as from the making of the declaration to which it relates. (3) A proclamation should not be made under subsection (1) except at the request of, or after consultation by the Minister with, the proprietor of the private mine.