Part 3Precious stones tenements

Part 3—Precious stones tenements 18A—Special conditions for tenements in relation to Mintabie precious stones field (1) Each precious stones tenement on the Mintabie precious stones field is subject to the conditions specified by the Director by notice in writing given to the holder of the tenement. (2) A condition under subsection (1) has effect when the notice under that subsection is given to the holder of the tenement. (3) A condition under subsection (1) is in addition to, and does not derogate from, any other condition or qualification applicable to a precious stones tenement under this Act. (4) The holder of a precious stones tenement on the Mintabie precious stones field must not contravene or fail to comply with a condition of his or her tenement. (5) The Director may, by notice in writing, on any reasonable grounds, vary the conditions of a precious stones tenement on the Mintabie precious stones field by the addition, substitution or deletion of 1 or more conditions. (6) A variation of a condition under subsection (5) has effect when the notice under that subsection is given to the holder of the tenement (or on such later date as may be specified in the notice). (7) A holder of a precious stones tenement on the Mintabie precious stones field— (a) who receives a notice under subsection (1) imposing a condition on the precious stones tenement; or (b) who receives a notice under subsection (5) varying the conditions of the precious stones tenement, may apply to the Warden's Court to have the relevant decision or decisions of the Director reviewed. (8) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days after the relevant notice is given to the person. (9) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for a particular decision, do 1 or both of the following: (a) cancel the imposition or variation of the relevant condition (as the case requires); (b) remit the subject matter of the review to the Director for reconsideration. (10) The Director must not, in exercising a power or function under this section, act in a manner that is inconsistent with the Mintabie Township Lease Agreement. 18B—Cancellation of tenements on Mintabie precious stones field (1) The Director must cancel the registration of a tenement or tenements of a person on the Mintabie precious stones field if the person has been excluded from the Mintabie precious stones field under section 29H of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. (2) Subject to this section, the Director may cancel the registration of a tenement or tenements of a person on the Mintabie precious stones field if— (a) the Director is satisfied on reasonable grounds that the person has acted in a manner prejudicial to— (i) the welfare of Anangu (whether individually or as a group); or (ii) the welfare of those who are lawfully on the Mintabie precious stones field under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; or (b) the person has contravened, or failed to comply with, a condition under section 18A in relation to the tenement or tenements; or (c) an endorsement of a precious stones prospecting permit under section 10A held by the person has been revoked under that section. (3) If the registration of a tenement or tenements on the Mintabie precious stones field is cancelled under subsection (2)(a), the holder of the tenement or tenements may apply to the Warden's Court to have the relevant decision of the Director reviewed. (4) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days of the cancellation. (5) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for the cancellation, do 1 or both of the following: (a) quash the Director's decision; (b) remit the subject matter of the review to the Director for reconsideration. (6) If— (a) an endorsement of a precious stones prospecting permit is revoked under section 10A; and (b) the holder of the precious stones prospecting permit has applied under that section for a review of the decision to revoke the endorsement, the Director may not cancel the registration of a tenement of the person under subsection (2)(c) until the review has been finally determined. (7) This section is in addition to, and does not derogate from, any other provision of this Act. (8) In this section— Anangu has the same meaning as in the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. 19—Application for registration of tenement (1) The holder of a precious stones prospecting permit who has pegged out an area for a precious stones tenement may apply for registration of the tenement within 14 days after the day on which the area is pegged out. (2) The application— (a) must be made in a manner and form determined by the Director or as otherwise determined by the Opal Mining Registrar; and (c) must be accompanied by the prescribed application fee. (4) If the area is wholly outside a precious stones field, the applicant must serve on the owner of the land notice of the application within 14 days after making the application. (5) A notice under subsection (4) must be in a form determined by the Director and, if relevant, must include information about declared equipment that the mining operator proposes to use on the land. (6) A notice need not be given under subsection (4) if it is not required under an agreement under this Act. 19A—Special provision related to application for and registration of tenements on Mintabie precious stones field (1) Without limiting section 19 or 22, an application for registration of, or renewal of the registration of, a precious stones tenement on the Mintabie precious stones field must be accompanied by any other information the Director may require (including, without limiting this subsection— (a) in the case of an applicant who is of or above 18 years of age, information in relation to the criminal history of the applicant; or (b) in the case of an applicant who is a body corporate, information in relation to the criminal history of the applicant, or a director, officer or employee of the applicant). (2) Despite any other provision of this Act, the Opal Mining Registrar must refuse to register, or refuse to renew the registration of, a precious stones tenement on the Mintabie precious stones field if the applicant has been excluded from the Mintabie precious stones field under section 29H of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. (3) Despite any other provision of this Act, the Opal Mining Registrar may refuse to register, or refuse to renew the registration of, a precious stones tenement on the Mintabie precious stones field if— (a) the Opal Mining Registrar is satisfied on reasonable grounds that the person has acted in a manner prejudicial to— (i) the welfare of Anangu (whether individually or as a group); or (ii) the welfare of those who are lawfully on the Mintabie precious stones field under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; or (b) the person has contravened, or failed to comply with, a condition under section 18A in relation to the tenement or a similar tenement; or (c) an endorsement of a kind contemplated by section 10A on a precious stones prospecting permit held by the person has been cancelled under that section. (4) If the Opal Mining Registrar refuses to register, or refuses to renew the registration of, a precious stones tenement on the Mintabie precious stones field under this section, the Opal Mining Registrar must, by notice in writing, inform the applicant of that fact. (5) A person whose application to register, or to renew the registration of, a precious stones tenement on the Mintabie precious stones is refused by the Opal Mining Registrar under subsection (3)(a) may apply to the Warden's Court to have the relevant decision of the Opal Mining Registrar reviewed. (6) An application for review must, unless the Warden's Court allows an extension of time, be made within 28 days after the notice under subsection (4) is given to the person. (7) At the conclusion of the review, the Warden's Court may, if satisfied that there were no reasonable grounds for the Opal Mining Registrar's decision, do 1 or both of the following: (a) quash the Opal Mining Registrar's decision; (b) remit the subject matter of the review to the Mining Registrar for reconsideration. 20—Registration of tenement (1) If due application is made for the registration of a precious stones claim, the Opal Mining Registrar must, subject to Part 7 and the other provisions of this Act, register the precious stones claim on the opal mining register. (2) If the precious stones claim is wholly within a precious stones field, a registration under subsection (1) will be taken to have occurred at the time that the application was made. (3) If due application is made for the registration of an opal development lease, the Opal Mining Registrar must refer the application to the Director for an inspection of the area and the preparation of a report on the suitability of the area for an opal development lease. (4) The Director must, on receipt of the report, determine whether an opal development lease should be granted or refused and then give notice of his or her decision to the Opal Mining Registrar and to the applicant. (5) If the Director determines that it is appropriate for an opal development lease to be granted, the Opal Mining Registrar must, on receipt of the notice under subsection (4), subject to this Act, grant and register an opal development lease. (6) The Opal Mining Registrar may refuse to register a precious stones tenement if it appears that the applicant has contravened, or failed to comply with, a provision or requirement of this Act.1 (7) The Opal Mining Registrar may refuse to register a precious stones tenement if satisfied that— (a) before the area for the tenement was pegged out, an application had been lodged under the Mining Act for an exploration licence to carry out exploratory operations for precious stones (or various minerals including precious stones) in an area comprising the area that has been pegged out, or a portion of that area; and (b) the application has not been refused. (8) The Opal Mining Registrar cannot register a precious stones tenement if to do so would be inconsistent with a public undertaking by the Minister responsible for the administration of the Mining Act. Except as provided by subsection (2), the registration of a tenement takes effect from the time of registration. 1 For example, if the applicant did not, as the holder of a precious stones prospecting permit, give a valid notice of entry under section 32 for land outside a precious stones field. 21—Maximum number of tenements A person must not hold at the same time— (a) more than one opal development lease; (b) more than one precious stones claim that is in a precious stones field, subject to the qualification that a person may hold two precious stones claims in such a case if one or both of the claims arise from an opal development lease1; (c) more than two precious stones claims. 1 Section 23(2)(b) provides that a person can only peg out one area for a precious stones claim within the area of an opal development lease during the term of registration. However, once the registration of the lease has come to an end, a person could peg out and register another opal development lease and, subsequently, another precious stones claim. 22—Term and renewal of tenement (1) The period of registration of a precious stones tenement will be three months. (2) A person may from time to time apply for the renewal of the registration of a precious stones claim. (3) The application— (a) must be made within the period prescribed by the regulations; and (b) must be made in a manner and form determined by the Director or as otherwise determined by the Opal Mining Registrar; and (d) must be accompanied by the prescribed application fee. (4) Unless otherwise determined by the Opal Mining Registrar— (a) if the tenement is within (or partly within) a precious stones field—the application must be made at the nearest office of the Opal Mining Registrar to the tenement; (b) in other cases—the application must be made at either of the two nearest offices of the Opal Mining Registrar to the tenement. (5) The period of renewal for the registration of a precious stones claim is 12 months. (6) If the registration of a precious stones claim is not renewed as required by or under this section, the claim lapses. (7) However, if an application for renewal of the registration of a precious stones claim is not decided before the date on which the registration is due to expire, the registration continues until the application is decided. (8) The Opal Mining Registrar may refuse to renew a registration if the applicant has failed to comply with a requirement under this Act. (9) The registration of an opal development lease is not renewable (and the lease lapses at the end of the period of registration). 23—Rights conferred by tenement (1) The holder of a registered precious stones claim has, subject to this Act, an exclusive right to conduct mining operations for the recovery of precious stones from the land comprised in the claim during the term of registration, and to sell, use or dispose of precious stones recovered in the course of those operations. (2) The holder of a registered opal development lease has, subject to this Act— (a) an exclusive right to conduct mining operations for the recovery of precious stones from the land comprised in the lease during the term of registration, and to sell, use or dispose of precious stones recovered in the course of those operations; and (b) an exclusive right to peg out an area (and only one area) for a precious stones claim within the area of the lease during the term of registration. (3) It is a condition of every registered precious stones claim and every registered opal development lease that the holder of the claim or lease (being a holder who is a natural person) must not reside on the land comprising the claim or lease other than in the Mintabie township lease area in accordance with a licence issued under section 29D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, or as otherwise allowed under that Act. 24—Tenement non-transferable A precious stones tenement is not transferable. 25—Unlawful entry on tenement (1) A person must not, without lawful authority or excuse, enter or remain on land comprised in a registered precious stones tenement without first obtaining the permission of the holder of the tenement. (2) However, this section— (a) does not apply— (i) to a police officer acting in the course of official duties; or (ii) to a person appointed under an Act acting in the course of official duties; and (b) does not affect any civil liability. 26—Caveats (1) A person (a caveator) who has, or who is claiming, an interest in a matter relevant to the registration of a tenement may apply to the Opal Mining Registrar to have a caveat registered under this section. (2) An application for the registration of a caveat must be in a form determined by the Opal Mining Registrar. (3) A caveat under subsection (1) may— (a) forbid the registration of any transfer, mortgage or voluntary surrender affecting a specified interest in the tenement (an absolute caveat); or (b) forbid the registration of any transfer, mortgage or voluntary surrender affecting the tenement unless the transfer or mortgage expressly states that it is to be subject to the interest claimed by the caveator (a claim caveat). (4) However, if a caveat is being registered without the express consent of the tenement holder for the tenement to which the caveat relates— (a) the caveator must be a person who has entered into an agreement with the tenement holder relating to— (i) the sale or transfer (or both) of the tenement holder's interest in the relevant tenement; or (ii) any other matter connected with the tenement holder's interest in the relevant tenement; and (b) the agreement must provide for the registration of a caveat under this section; and (c) a copy of the agreement must accompany the application under subsection (2). (5) A caveat may— (a) set out a date of expiry (if any); or (b) set out that the caveat will expire— (i) on a specified transfer or mortgage of an interest in the tenement; or (ii) at the end of a specified period. (6) In connection with the preceding subsections, an application for the registration of a caveat— (a) must be accompanied by— (i) the prescribed fee; and (ii) such other documents or information as the Opal Mining Registrar may require; and (b) if the caveat is being registered without the express consent of the tenement holder for the tenement to which the caveat relates—must include a statutory declaration as to the truthfulness and accuracy of any matter specified by the caveator in the application. (7) The Opal Mining Registrar does not have, on the receipt of an application to register a caveat, any duty to determine whether or not— (a) the caveat relates to a valid caveatable interest; or (b) a caveatable interest has been sufficiently described; or (c) there is sufficient evidence to support the caveat; or (d) any matter specified in the application is true and accurate. (8) The registration of a caveat does not warrant the validity of any interest claimed in the caveat. (9) On the registration of a caveat under this section, a notice of the registration of the caveat must be sent by the Opal Mining Registrar to any tenement holder whose interests are affected by the caveat, other than where the tenement holder is also the caveator. (10) A caveat registered under this section— (a) does not affect or prevent the renewal of a tenement; and (b) does not lapse on the renewal of a tenement (while the caveat is registered); and (c) does not affect or prevent any dealing with the tenement (or any interest in the tenement) that is required by an order of a court or tribunal constituted by law. (11) A caveat registered under this section will lapse on— (a) any order of the Warden's Court providing for the lapsing of the caveat; or (b) the withdrawal of the caveat by the caveator; or (c) the expiry of the caveat as contemplated by subsection (5). (12) If— (a) a caveat is registered in respect of a tenement; and (b) the caveat lapses, the caveator or any related corporation may not apply to register a second or subsequent caveat relating to the same interest in the tenement to which the original caveat related without the approval of the Warden's Court, or unless that second or subsequent caveat is being registered with the express consent of the tenement holder for the tenement to which the caveat relates. (13) In this section— related corporation, in relation to a particular entity (being a corporation), is a corporation that is related to the entity under section 50 of the Corporations Act 2001 of the Commonwealth. 26A—Application to Warden's Court to lapse caveat or obtain compensation (1) A person who— (a) has an interest in a tenement subject to a caveat registered under section 26; or (b) has an interest that is directly affected by a caveat registered under section 26, may apply to the Warden's Court under this section. (2) An application may be made for 1 or more of the following: (a) a declaration that an interest claimed by the caveator is not a valid caveatable interest; (b) an order that a caveat lapse; (c) an order that a transfer, mortgage or surrender relating to a tenement be registered despite the registration of a caveat under section 26; (d) an order that a caveator pay compensation for any loss or damage suffered because a caveat registered under section 26 does not relate to a valid caveatable interest, or an amount for or towards any such loss or damage. (3) Any compensation payable under an order under subsection (2)(d) may be recovered as if it were a debt due to the person in whose favour the order is made in a court of competent jurisdiction. (4) This section does not limit any other jurisdiction or power of the Warden's Court in relation to caveats under section 26. 27—Power of Opal Mining Registrar to cancel tenement (1) If the Opal Mining Registrar discovers or determines, after a tenement is registered, that the tenement should not have been registered under this Act on account of a contravention of, or failure to comply with, a provision or requirement of this Act on the part of the holder of the tenement, the Opal Mining Registrar may, by notice in writing to the holder of the tenement, give notice of his or her intention to cancel the registration of the tenement on a day specified in the notice (which must be at least 21 days after the date of the notice). (2) A person who receives a notice under subsection (1) may apply to the Warden's Court to have the decision of the Opal Mining Registrar reviewed. (3) An application for review must be made within 14 days of service of the notice (unless the Warden's Court allows an extension of time). (4) Pending the determination of an application for review, the Opal Mining Registrar must not cancel the registration of the tenement. (5) At the conclusion of the review, the Warden's Court may— (a) confirm the decision of the Opal Mining Registrar; or (b) cancel the notice. (6) Subject to a decision of the Warden's Court under this section, the Opal Mining Registrar may, after the day specified in a notice under this section, cancel the registration of the relevant tenement. 27A—Cancellation and suspension (1) The Opal Mining Registrar may cancel or suspend a precious stones tenement if the tenement holder contravenes or fails to comply with— (a) a term or condition of the tenement; or (b) a provision of this Act. (2) The Opal Mining Registrar may suspend all or some of the operations under a tenement— (a) pending compliance with an obligation or requirement under this Act by the tenement holder; or (b) until the tenement holder takes some other step specified by the Minister; or (c) on account of any other matter that, in the opinion of the Minister, warrants suspension of rights under the tenement. (3) The Opal Mining Registrar must not take action under this section unless or until the Opal Mining Registrar has— (a) taken reasonable steps to notify the tenement holder of the proposed course of action (including in the notification the grounds on which the Opal Mining Registrar is intending to act); and (b) provided the tenement holder with an opportunity to make written submissions in relation to the matter within a period specified by the Opal Mining Registrar. (4) The Opal Mining Registrar may, after complying with subsection (3), by instrument registered on the opal mining register, cancel or suspend a tenement. (5) The Opal Mining Registrar must ensure that a notice of the cancellation or suspension of a tenement under subsection (4) is given to the tenement holder. (6) A tenement holder may, within 28 days after receiving a notice under subsection (5), appeal to the ERD Court in relation to the matter. (7) The ERD Court may, on hearing an appeal under subsection (6), if satisfied that the ground or grounds on which the Opal Mining Registrar acted were insufficient to justify the cancellation or suspension of the tenement (as the case may be)— (a) revoke the cancellation or suspension; and (b) make any consequential or ancillary order that the Court considers necessary or appropriate. (8) If the ERD Court makes an order under subsection (7)(a), the Opal Mining Registrar may, subject to any order of the Court, reinstate the tenement to a date that coincides with the initial date of the cancellation or suspension, or such later date as the Opal Mining Registrar considers to be appropriate in the circumstances. 28—Surrender of tenement, removal of posts etc (1) The Opal Mining Registrar may, on receipt of an application in a manner and form determined by the Director from the holder of the tenement, cancel the registration of a precious stones tenement. (3) If the land comprised in the tenement is outside a precious stones field, the Opal Mining Registrar must not cancel the registration of the tenement unless or until advised by an authorised person that the land has been rehabilitated in accordance with the requirements of this Act. (4) If the registration of a tenement lapses or is cancelled under this Act, the holder of the tenement must— (a) in the case of a tenement that is wholly within a precious stones field—immediately remove all posts, boundary indicators and markers unless exempted from the requirement to do so by an opal mining registrar or authorised person on the basis that it is unreasonable (for reasons of safety or otherwise) to require the posts, indicators or markers to be removed; (b) in the case of a tenement that is wholly outside a precious stones field—leave all posts, boundary indicators and markers in place until authorised by an opal mining registrar or authorised person to remove them and then, on receiving that authorisation, subject to any direction to the contrary, immediately remove them. (5) In this section— authorised person includes a person who is authorised by the Opal Mining Registrar to exercise the powers of an authorised person under this section. 29—Removal of machinery (1) The owner of any machinery or goods on land that has ceased to be subject to a tenement may, at any time within the period of 3 months after the date on which the land ceased to be subject to the tenement, enter the land and remove the machinery or goods from the land. (2) The Minister may cause any machinery or goods that have been abandoned on land that has been subject to a tenement (whether or not a new tenement has been granted over the land) to be seized. (3) Any machinery or goods seized under subsection (2) are forfeited to the Crown and may be sold by the Minister. (4) Any proceeds from a sale under subsection (3) will be paid to the Treasurer. (5) The Treasurer may, on application under this subsection, pay an amount equal to the proceeds of a sale under subsection (3) to the person who abandoned the relevant machinery or goods, after deduction of an amount determined by the Treasurer to be reasonable costs associated with seizing, holding, maintaining, repairing, cleaning or selling the machinery or goods. (6) An application under subsection (5) must be made within 2 years from the date of sale (and after the expiration of that period no further claim may be made in relation to the machinery or goods). 30—Maintenance of posts The holder of a registered precious stones tenement must ensure that all posts, boundary indicators and notices are maintained in accordance with requirements prescribed by the regulations.