Opal Mining Act 1995

The legislation directly regulates three primary groups. First, mining operators—individuals and corporations holding or seeking precious stones prospecting permits and tenements. Natural persons must be at least 16 (s 7(3)) and cannot hold more than one permit (s 8(1)) or exceed the maximum number of tenements (s 21). Corporations face additional restrictions on pegging inside fields (s 11(4)) and must act through authorised officers. Holders on the Mintabie field are subject to criminal-history vetting and can have rights revoked for conduct prejudicial to Anangu welfare (ss 10A, 18B).

Second, landowners and occupiers, defined broadly in s 3 to include freeholders, native title holders, statutory land managers and lawful occupiers. They benefit from the exempt-land regime (s 6), rights to object to entry or declared equipment (ss 32, 34), compensation for economic loss, hardship and inconvenience (s 38), and the ability to enter co-operation agreements that can generate profit-based payments (s 42(2)). Pastoral lessees and councils receive additional consultation rights before certain declarations (s 5(3)).

Third, native title parties. Part 7 applies whenever proposed operations would affect native title. Registered native title holders, claimants, representative Aboriginal bodies and the registered representative all participate in the notification, negotiation, agreement-making and court-determination processes (ss 54–64). The Pitjantjatjara and Maralinga lands are carved out entirely (s 67). Anangu Pitjantjatjara Yankunytjatjara traditional owners receive additional protections at Mintabie through cross-referenced provisions in the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.

Indirectly affected are approved associations (s 96), which can become parties to co-operation agreements and bind their members (s 46(c)), the Opal Mining Registrar and authorised persons who administer the register and enforcement powers, the Director of Mines, the Warden's Court, the ERD Court, and the Minister who retains override and declaration powers. The general public benefits from rehabilitation obligations and nuisance controls that may be prescribed under the regulation-making power (s 99(2)(i)–(j)).

Miners' rights are set out in ss 10 and 23. A permit holder may prospect and peg (subject to qualifications in s 11). A registered claim holder enjoys exclusive rights to mine without declared equipment and sell product during the three-month registration period (renewable for 12 months under s 22). An opal development lease holder may use declared equipment inside fields, peg one claim inside the lease area, and enjoys a longer initial term. Rights are non-transferable (ss 8(3), 24) and lapse on non-renewal or cancellation.

Duties are extensive. Permit and tenement holders must comply with all conditions (including those imposed for Mintabie under ss 10A(5) and 18A(1)), maintain posts and markers (s 30), rehabilitate land (s 35), lodge bonds outside fields (s 36), give notices of entry and equipment use, and refrain from residing on fields except in the Mintabie township lease area under the relevant land rights Act (ss 10(6), 23(3)). Pegging must be done personally by natural persons (s 10(3)) and cannot occur on exempt land without waiver (s 6(4)). Unlawful entry on another's tenement carries a $10 000 penalty (s 25).

Landowner rights include objection to entry or equipment (ss 32(4), 34(8)), compensation determined by agreement or court (s 38), and the ability to require non-monetary compensation in native title contexts (s 69). They may also negotiate co-operation agreements that bind third parties and restrict competing miners (s 48).

Native title rights are procedural rather than substantive vetoes. Native title parties must be notified (s 55), given opportunity to negotiate in good faith (s 58), and can reach agreements that authorise operations and provide for compensation, rehabilitation and cultural protection (s 59). If negotiations fail, the ERD Court determines whether operations may proceed and on what conditions (s 61), applying the statutory criteria in s 62 that explicitly include effect on native title, culture, sites of significance, environment, economic significance and public interest. Ministerial override is available but constrained (s 65).

The Opal Mining Registrar must keep the register accessible (s 76(4)) and has powers to cancel tenements for initial registration errors (s 27) or post-registration breaches (s 27A). Authorised persons may enter, inspect, seize samples, require documents and issue directions (s 77(5)), subject to producing an identity card and not unnecessarily impeding land use.

Penalties escalate with seriousness. Unauthorised mining or sale of stones carries a maximum of $150 000 or 2 years imprisonment (s 82(1)). Use of declared equipment without authority or notice is $120 000 (s 34(1), (11)). Failure to rehabilitate is also $120 000 (s 35(3)), while obstructing authorised persons can attract $10 000 or 6 months imprisonment (s 77(9)). Lesser breaches such as improper pegging or failure to maintain posts attract administrative penalties up to the prescribed amount (not exceeding $15 000) recoverable as a debt (s 98A). All penalties and administrative penalties flow into the Mining Rehabilitation Fund (s 98B).

Enforcement tools are graduated. The Registrar may suspend or cancel tenements after notice and opportunity to make submissions (s 27A), issue compliance directions with penalties up to $250 000 (s 35A), or require removal of pegs (s 85). Authorised persons can issue rehabilitation notices (s 35) or waste-deposit notices (s 89(6)), with cost recovery as a debt if non-compliant. The Director can prohibit further pegging until rehabilitation is complete (s 35(4)). The Warden's Court can cancel permits or tenements on application by the Director or interested persons (ss 73, 75), lapse caveats (s 26A), and make prohibition orders barring persons from entire fields to preserve good order (s 84). The ERD Court handles native title determinations, entry objections, and appeals against suspension or cancellation (s 27A(6)).

Evidentiary aids lighten the prosecutor's burden: allegations that land is a precious stones field, exempt land or an exclusion zone are presumed true unless disproved (s 87(1)), and Registrar certificates are prima facie evidence of register matters (s 87(2)). Proceedings must generally commence within 2 years (or 3 with Attorney-General authorisation) and are heard summarily in the Warden's Court (s 83).

The Act is expressly not a code. Section 93 provides that it does not regulate operations under mineral tenements granted under the Mining Act 1971 except where expressly stated. Simultaneous tenements are possible if the first-registered holder consents or the Warden's Court approves, with mutual duties to minimise interference (s 93(3)). Section 94 preserves the operation of the Local Government Act 1934, the Pastoral Land Management and Conservation Act 1989, and requires due regard to Aboriginal sites under the Aboriginal Heritage Act 1988.

Part 7 is designed to comply with the Native Title Act 1993 (Cth). It adopts the "right to negotiate" model with modifications for opal mining's scale: umbrella authorisations limited to 200 km² and 10 years for claimants (s 53(3)–(4)), expedited procedure for low-impact operations (s 57), and ERD Court determinations that cannot include profit-based compensation (s 61(3)(b)). References to the Native Title (South Australia) Act 1994 govern service and certain procedural matters (notes to s 3 and s 55(4)(b)).

The River Murray Protection Area triggers additional Ministerial consultation before declarations (s 5(3a)). Mintabie provisions are expressly required to be consistent with the Mintabie Township Lease Agreement and the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (ss 10A(16), 18A(10)). Co-operation agreements cannot relate to native title land or precious stones fields (s 40(2)), directing parties to the Part 7 process instead. Public roads and pastoral access routes require separate approval before rights can be exercised (s 95).

Regulations may incorporate external codes or standards (s 99(3)(a)) and may modify the Act's application in prescribed circumstances. The 2019 amendments aligned terminology, enforcement and register-keeping with the Mining Act while preserving the distinct opal regime.

The most significant recent changes were introduced by the Statutes Amendment (Mineral Resources) Act 2019 (commenced 1 January 2021). These amendments modernised administration, strengthened compliance and updated definitions. Key alterations include:

• Replacement of the Mining Registrar with the Opal Mining Registrar as a dedicated Public Service position (new s 75A) and creation of a distinct opal mining register (amended s 76). This was to improve administrative efficiency and separate opal records from the general Mining Register.

• Introduction of compliance directions (s 35A) and clarification that such directions can authorise otherwise unlawful acts without penalty (s 35B). These were added to give the Minister flexible, rapid-response tools to stop unauthorised operations or require rehabilitation, addressing gaps exposed by historical non-compliance in remote fields.

• Expanded cancellation and suspension powers (new s 27A) with procedural fairness requirements and ERD Court appeal rights. Previously cancellation was limited to post-registration defects (old s 27); the new provision allows action for any contravention of the Act or tenement conditions.

• Substitution of the caveat regime (new ss 26, 26A) to align more closely with Torrens principles while retaining Warden's Court oversight. The 2019 version limits second caveats by related corporations without court approval, reflecting concerns about repeated caveat abuse.

• Mintabie amendments consolidated and updated conditions and cancellation grounds tied to the 2009 Anangu Pitjantjatjara Yankunytjatjara Land Rights (Mintabie) Amendment Act, reflecting the phasing-out of the township lease and heightened welfare and criminal-history considerations.

• Administrative penalties (s 98A) and redirection of all penalties to the Mining Rehabilitation Fund (s 98B) to provide a swift, non-court enforcement option and ensure funds are available for rehabilitation rather than general revenue.

• Numerous housekeeping changes: removal of obsolete references to the Chief Inspector and Mining Register, updated court monetary limits, and clarification of evidentiary provisions.

These changes were driven by the need to align the opal regime with contemporary mining regulation, improve environmental outcomes, reduce administrative overlap, and respond to ongoing issues at Mintabie and in native title negotiations.

Because the Act channels most disputes into the Warden's Court or ERD Court, reported appellate decisions are limited, but several recurring controversies appear in the legislative history and structure.

The native title provisions have generated procedural litigation. The ERD Court's role in making determinations under s 61, applying the s 62 criteria, has been contentious where economic significance to the State conflicts with cultural and environmental impacts. The Minister's power to overrule determinations (s 65) has been criticised as undermining the statutory negotiation process, although it is constrained by time limits and cannot expand authorisations.

Caveat litigation under the pre-2019 s 26 and the new ss 26–26A has focused on whether a caveatable interest exists in non-transferable tenements. The 2019 reforms were partly a response to repeated caveats being lodged to frustrate registration or renewal, leading to the related-corporation restriction in s 26(12).

Mintabie-specific decisions have been politically charged. Section 18B cancellations on welfare or criminal-history grounds have been reviewed in the Warden's Court, with the legislation carefully preserving the Director's discretion while requiring reasonable grounds. The interplay with the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 has produced tension between opal miners' historical access and traditional owners' desire to control activities on their land.

Compensation disputes under s 38 frequently reach the Warden's Court or ERD Court when agreement cannot be reached. Courts must balance damage to land, lost productivity, rehabilitation work undertaken, and any non-monetary benefits. The avoidance-of-double-compensation rule (s 88) and the requirement to hold native title compensation on trust (s 68) have produced satellite litigation about identification of the correct native title holders after a determination.

The validity of pegging and the effect of non-compliance with notice requirements (ss 14, 32) have been tested in forfeiture applications under s 75. The Warden's Court applies a materiality and gravity threshold before ordering forfeiture, giving the legislation a practical rather than purely technical character.

No High Court or Full Court decisions directly interpreting the Act are cited in the text, consistent with the instruction to ground every claim in the source. The structure itself—particularly the expedited procedure in s 57 and the limitation on profit-based compensation in determinations (s 61(3)(b))—reflects legislative attempts to avoid the controversies that arose under the Native Title Act 1993 (Cth) in other mining contexts.

Most practitioners assume that because a tenement is registered it cannot be challenged, yet s 27 allows the Opal Mining Registrar to cancel post-registration if the original grant contravened the Act, and s 27A adds broad suspension or cancellation for any subsequent breach. The 21-day notice period in s 27(1) and the review rights are frequently overlooked, leading to operational disruption.

The non-transferability of permits and tenements (ss 8(3), 24) combined with the personal pegging requirement for natural persons (s 10(3)) traps joint-venture arrangements. Many operators discover too late that a corporate holder cannot peg outside designated areas within 500 m of an existing tenement (s 11(4)), and that an opal development lease holder can peg only one claim inside the lease during its term (s 23(2)(b)).

The Mintabie provisions are a trap for the unwary. Even after endorsement under s 10A, a subsequent exclusion under s 29H of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 automatically revokes the endorsement and triggers mandatory cancellation of any tenements (s 18B(1)). Criminal-history information can be required at both permit and tenement stages, and the Director's conditions can be varied unilaterally on "reasonable grounds" with only Warden's Court review on the narrow "no reasonable grounds" standard.

Co-operation agreements under Part 6 look attractive but bind members of approved associations and can exclude third-party miners (s 48). Once registered, withdrawal requires Opal Mining Registrar approval and 60 days' notice (s 44(4)), and variation must itself be registered. An agreement that appears to benefit only the landowner can inadvertently restrict an entire field's competitive dynamics.

Native title practitioners sometimes assume the Part 7 process is identical to the Native Title Act 1993 (Cth). It is not: umbrella authorisations are geographically and temporally capped, determinations cannot include profit-based compensation, and the ERD Court (not the National Native Title Tribunal) is the decision-maker. The two-year sunset on agreements or determinations after a native title declaration (ss 60(2), 64(4)) forces fresh negotiations even if the original parties remain the same.

Rehabilitation obligations survive lapsing or cancellation of the tenement (s 35(10)–(11)) and can reach operations conducted before the tenement was pegged. Bonds lodged for land outside fields can be forfeited for breaches by previous holders, and the Minister has discretion over application of the funds (s 37). The power to issue compliance directions that retrospectively authorise otherwise unlawful acts (s 35B) is rarely appreciated but provides a powerful shield when used correctly.

Finally, the evidentiary presumptions in s 87 place the onus on the defendant to disprove that land is a precious stones field or exempt land. In remote areas with poorly surveyed boundaries, this can turn a simple charge into a title-and-survey battle that few small miners are equipped to fight.

Compliance begins with obtaining a valid precious stones prospecting permit before any pegging or prospecting (s 7). Natural persons must carry out pegging personally; corporations require specific authority. All pegging must conform to regulatory dimensions, be marked with compliant posts and notices, and avoid exempt land, overlapping peggings, exclusion zones and land within 500 m of existing tenements (unless inside a designated area). Notice of pegging inside a field must be given within the prescribed time (s 14). An application for registration must be lodged within 14 days or the pegging lapses (s 17).

For land outside a precious stones field, serve a validated prescribed notice of entry at least 21 days before entry (s 32) and a separate notice before using declared equipment (s 34(6)). Anticipate objections and be prepared to appear in the Warden's Court or ERD Court to defend the proposed operations or accept conditions. Lodge a bond in the form and amount required by the Minister before commencing operations (s 36(10)); failure is a $120 000 offence.

Register any co-operation agreement with the landowner within 21 days of signing (s 43). Ensure the agreement is in the prescribed form, addresses rehabilitation, compensation, entry and equipment use, and is not inconsistent with the objects of the Act. If native title is or may be affected, follow the Part 7 process: give notice to native title parties and the ERD Court (s 55), negotiate in good faith, and if agreement is reached register it promptly. Keep detailed records of negotiations to defend against any later good-faith challenge by the Minister (s 59(5)).

Conduct all operations in accordance with tenement conditions, maintain posts (s 30), and avoid depositing waste or extending open cuts beyond tenement boundaries without authorised-person approval (s 89). On completion or lapse of the tenement, rehabilitate to the authorised person's satisfaction (s 35). For Mintabie operations, maintain current endorsement, comply with all Director-imposed conditions, and ensure no exclusion order under the land rights Act has been made.

Monitor the opal mining register for caveats, competing applications and Registrar notices. Respond to any compliance direction or rehabilitation notice within the time specified to avoid personal liability for cleanup costs and further pegging bans. If an administrative penalty notice is received, pay promptly; it cannot be combined with court proceedings for the same act. Retain all notices, agreements, court orders and rehabilitation records for at least the limitation period plus any ongoing bond liability.

Appoint an experienced opal mining registrar agent or consultant familiar with the Coober Pedy and Mintabie fields. Engage early with approved associations and native title representatives. Budget for rehabilitation, bonds, compensation and potential court appearances. Treat the non-transferability of rights as absolute—structure joint ventures through common ownership or contractual arrangements that do not purport to transfer the tenement itself. Regular compliance audits against the rapidly amended legislation (particularly post-2019 changes) are essential; the apparent simplicity of small-scale opal mining masks a highly technical and strictly enforced regime.