26CExcluded opal or gem mining

26C  Excluded opal or gem mining Mining other than exploring or prospecting  (1) This Subdivision does not apply to an act consisting of the creation or variation of a right to mine, if the right, as so created or varied:  (a) is not a right to explore or prospect; and  (b) relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and  (c) allows:  (i) mining (other than puddling) only for opals or gems; or  (ii) mining consisting of puddling in respect of opals or gems; and  (d) allows that mining only in an area no larger than 5 hectares; and  (e) is conferred for a period of no more than 5 years; and  (f) if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time. Exploring or prospecting  (1A) This Subdivision also does not apply to an act consisting of the creation or variation of a right to mine that is a right to explore or prospect, if the right, as so created or varied:  (a) relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and  (b) allows exploration or prospecting only for opals or gems; and  (c) allows that exploration or prospecting in an area no larger than 500 hectares; and  (d) is conferred for a period of no more than 5 years; and  (e) if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time. Approved opal or gem mining area  (2) If the conditions in subsections (3) to (5A) are satisfied, the Commonwealth Minister may, by legislative instrument, determine that a specified area of land or waters within a particular State or Territory is an approved opal or gem mining area for the purposes of this section.  (3) The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to the area.  (4) The second condition is that the Commonwealth Minister is satisfied, having regard to:  (a) any mining rights conferred in the past in the area; and  (b) any other relevant matter; that in the future at least some rights will be conferred to mine in the area that will:  (c) allow:  (i) mining for opals or gems (other than mining consisting of exploring, prospecting or puddling) only in an area no larger than 5 hectares; or  (ii) mining consisting of puddling in respect of opals or gems only in an area no larger than 5 hectares; or  (iii) mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares; and  (d) be conferred for a period of no more than 5 years; and  (e) if the rights are renewed one or more times—be renewed for a period of no more than 5 years each time.  (5) The third condition is that, before making the request, the State Minister or Territory Minister:  (a) notified the public, and notified any registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he or she was intending to make the request in relation to the area; and  (b) invited submissions about the request, and in particular about the area covered by the request and about processes for the identification and protection of any area or site within that area of particular significance to native title holders in accordance with their traditional laws and customs; and  (c) considered any such submissions that were made.  (5A) The fourth condition is that the Commonwealth Minister is satisfied, immediately before the determination is made, that mining for opals or gems is being carried on in the whole or a substantial part of:  (a) if paragraph (b) does not apply—the area; or  (b) if, immediately before the determination is made, any part of the area is an approved opal or gem mining area—so much of the area as is not already an approved opal or gem mining area.  (6) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in subsections (3) to (5A) would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:  (b) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.