40Consent to mining leases and licences

40 Consent to mining leases and licences S. 40(1) amended by Nos 9936 s. 108(a), 38/1989 s. 26(1), 92/1990 s. 128(Sch. 1 item 19.1(a)(b)), 67/1995 s. 58(Sch. 1 item 11), 84/2003 s. 18(a), 63/2006 s. 61(Sch. item 23.2), 6/2009 s. 54(1), 47/2025 s. 104(1). (1) Except as provided in this section a lease licence permit consent or other authority shall not be granted under the **Mineral Resources (Sustainable Development) Act 1990** in respect of any part of a park except with the consent of the Minister and subject to such terms and conditions as the Minister thinks fit to impose. S. 40(1AA) inserted by No. 38/1989 s. 26(2), amended by No. 84/2003 s. 18(b). (1AA) The Minister must not consent— (a) to the grant of a lease, licence, permit, consent or other authority in respect of land in a national park, State park or wilderness park; or S. 40(1AA)(b) repealed by No. 92/1990 s. 128(Sch. 1 item 19.2(a)). unless— S. 40(1AA)(c) amended by Nos 92/1990 s. 128(Sch. 1 item 19.2(b)), 67/1995 s. 58(Sch. 1 item 11), 84/2003 s. 18(b), 63/2006 s. 61(Sch. item 23.2), 6/2009 s. 54(2). (c) the land is subject to another lease, licence, permit, consent or authority under the **Mineral Resources (Sustainable Development) Act 1990**; or S. 40(1AA)(d) amended by Nos 84/2003 s. 18(b), 60/2005 s. 11(1)(a). (d) an application for a lease, licence, permit, consent or other authority or registration was made before the relevant date; or S. 40(1AA)(e) inserted by No. 60/2005 s. 11(1)(b), amended by Nos 6/2009 s. 54(3), 40/2020 s. 82(1). (e) in the case of the land shown delineated and cross-hatched on the plan lodged in the Central Plan Office and numbered N.P.111E/5, the consent is to the granting of an extractive industry work authority under the **Mineral Resources (Sustainable Development) Act 1990**. S. 40(1AAA) inserted by No. 40/2002 s. 11(1), amended by No. 6/2009 s. 54(4). (1AAA) The Minister must not consent to the grant of an extractive industry work authority under section 77I of the **Mineral Resources (Sustainable Development) Act 1990** in respect of land in a marine national park or a marine sanctuary. S. 40(1AB) inserted by No. 38/1989 s. 26(2). (1AB) In subsection (1AA), ***relevant date*** means— (a) in relation to land in a park that was a park before 1 October 1988—that date; and (b) in relation to any other land— (i) the date on which the Governor in Council makes a recommendation under the **Land Conservation Act 1970** on the use of the land; or (ii) if no such recommendation is made, the date on which the land became a park or part of a park. S. 40(1AC) inserted by No. 70/1998 s. 11, amended by No. 6/2009 s. 54(5). (1AC) Subsections (1AA), (3), (5) and (6) do not apply in relation to the consent of the Minister under subsection (1) or an extractive industry work authority granted under the **Mineral Resources (Sustainable Development) Act 1990** in relation to the Basalt Hill Quarry in the Alpine National Park, being the area shown bordered in red on the plan lodged in the Central Plan Office and numbered N.P. 70BHQ. S. 40(1A) inserted by No. 9936 s. 108(b), amended by Nos 41/1987 s. 103(Sch. 4 item 49.11), 92/1990 s. 128(Sch. 1 item 19.1A(a) (b)) (as amended by No. 27/1991 s. 4(6)), 67/1995 s. 58(Sch. 1 item 11), 84/2003 s. 18(c), 63/2006 s. 61(Sch item 23.2), 6/2009 s. 54(6). (1A) An exploration licence may be granted under the **Mineral Resources (Sustainable Development) Act 1990** without the consent of the Minister for the time being administering the **Conservation, Forests and Lands Act 1987** over an area which is part of a park, but the licence shall not operate in relation to that area unless and until the Minister for the time being administering the **Conservation, Forests and Lands Act 1987** consents in writing to that part of the park being included in the licence area and during the period between the granting of the licence and the grant or refusal of that consent, no application shall be made or received under the **Mineral Resources (Sustainable Development) Act 1990** for a lease licence claim permit consent or other authority in respect of that part of the park. S. 40(1B) inserted by No. 9936 s. 108(b), amended by Nos 41/1987 s. 103(Sch. 4 item 49.11), 47/2025 s. 104(2). (1B) Where in relation to a part of a park the Minister for the time being administering the **Conservation, Forests and Lands Act 1987** refuses to give consent to the part of the park being included in a licence area the licence shall upon that refusal cease to be in force in respect of that part of the park. S. 40(1C) inserted by No. 50/2002 s. 10(1), amended by Nos 7/2012 s. 6, 44/2016 s. 5, 53/2017 s. 27, 40/2020 s. 82(2). (1C) Despite subsections (1) and (1AA) of this section, a mining licence or an exploration licence may be granted (if the Minister so consents) in respect of any part of the park described in Part 41 of Schedule Two that is shown by hatching on the plans lodged in the Central Plan Office and numbered N.P. 105A/4 and N.P.105B/4. S. 40(1D) inserted by No. 50/2002 s. 10(1). (1D) A mining licence granted in accordance with subsection (1C)— S. 40(1D)(a) amended by No. 63/2006 s. 61(Sch. item 23.2). (a) despite section 14 of the **Mineral Resources (Sustainable Development) Act 1990**, does not entitle the holder to do anything in the part of the park in respect of which the licence has been granted other than construct and operate minor mining infrastructure; and (b) is subject to any terms and conditions imposed by the Minister as to the nature of the infrastructure and as to the effect any such infrastructure may have on the park. S. 40(1E) inserted by No. 50/2002 s. 10(1). (1E) An exploration licence granted in accordance with subsection (1C) is subject to any terms and conditions that the Minister thinks fit to impose. S. 40(1F) inserted by No. 50/2002 s. 10(1), amended by No. 63/2006 s. 61(Sch. item 23.2). (1F) Despite the application of subsection (1) to the land described in Part 6 of Schedule Four and section 14 of the **Mineral Resources (Sustainable Development) Act 1990**, a mining licence granted in respect of any part of the land so described does not entitle the holder to carry out mining on the land surface of the whole or any part of the land so described. S. 40(1G) inserted by No. 50/2002 s. 10(1), amended by No. 63/2006 s. 61(Sch. item 23.2). (1G) Despite any provision of this Act or section 14 of the **Mineral Resources (Sustainable Development) Act 1990**, a mining licence granted in respect of any part of the land described in Part 6 of Schedule Four may authorise the holder to construct and operate minor mining infrastructure (whether on the surface or otherwise) of the land so described, if the Minister has consented to any such construction or operation. S. 40(1H) inserted by No. 50/2002 s. 10(1). (1H) A mining licence in respect of which a consent has been given under subsection (1G) is subject to any terms and conditions imposed by the Minister as to the nature of the infrastructure and as to the effect the infrastructure may have on the land described in Part 6 of Schedule Four. S. 40(2) substituted by No. 40/1992 s. 17, amended by Nos 96/1998 s. 257(4) (a)–(c), 7/2005 s. 171, 61/2008 s. 320. (2) Despite anything in the **Geothermal Energy Resources Act 2005**, the **Greenhouse Gas Geological Sequestration Act 2008** or the **Petroleum Act 1998** or any authority granted under either of those Acts, operations under such an authority must not be carried out— (a) in a wilderness park or a wilderness zone; or S. 40(2)(b) substituted by No. 40/2002 s. 11(2). (b) in a marine national park or a marine sanctuary except— (i) for the purposes of petroleum exploration from an aircraft or from a vessel that is carried out in a manner which does not detrimentally affect the seabed of the park or any flora or fauna of the park; and (ii) with the consent of the Minister and subject to any terms and conditions that the Minister thinks fit to impose; or S. 40(2)(c) inserted by No. 40/2002 s. 11(2). (c) in any land in any park (other than a wilderness park, wilderness zone, marine national park or marine sanctuary) except with the consent of the Minister and subject to any terms and conditions that the Minister thinks fit to impose. S. 40(3) amended by Nos 9936 s. 108(c), 50/2002 s. 10(2). (3) A consent shall not be given by the Minister for the purposes of subsection (1), (1A), (1C), (1G) or (2) unless the advice of the National Parks Advisory Council has been first obtained. S. 40(4) amended by No. 47/2025 s. 104(3). (4) If any person is aggrieved by any refusal by the Minister to give consent under this section or by any terms or conditions imposed pursuant to this section the person may in writing to the Minister appeal to the Governor in Council whose decision shall be final. S. 40(5) amended by Nos 9936 s. 108(d), 40/2002 s. 11(3), 84/2003 s. 18(d). (5) Any lease licence permit or consent to which subsection (1) applies or any consent of the Minister under subsection (1A) or (2)(c) shall be of no force or effect until fourteen sitting days after notice thereof has been laid before both Houses of Parliament. S. 40(6) amended by Nos 50/2002 s. 10(3), 84/2003 s. 18(e)(f), 60/2005 s. 11(2). (6) Any such lease, licence, permit or consent to which subsection (1) applies or any such consent of the Minister under subsection (1A) or (2) shall be deemed to have been revoked if either House of Parliament passes a resolution (of which notice has been given in such House at any time within fourteen sitting days after notice of the grant of the lease licence permit or consent to which subsection (1) applies or of the consent of the Minister has been laid before both Houses of Parliament) to that effect. S. 40(7) inserted by No. 50/2002 s. 10(4). (7) The Minister must cause notice of any mining licence or exploration licence to which subsection (1C) or (1G) applies and any consent of the Minister to the granting of any such mining licence or exploration licence to be laid before both Houses of Parliament. S. 40(8) inserted by No. 40/2020 s. 82(3). (8) This section does not apply to any area of land described in Part 1 of Schedule Nine. S. 40A (Heading) amended by No. 10/2010 s. 800(Sch. 6 item 9.1). S. 40A inserted by No. 40/2002 s. 12, amended by No. 10/2010 s. 800(Sch. 6 item 9.2(a)).