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While landholders in NSW own the surface land of their properties, most sub-surface minerals belong to the State of NSW. The production of these minerals contributes royalties, economic benefits and energy security for the people of NSW.
Before an explorer who holds an exploration licence or assessment lease (collectively termed ‘prospecting titles’) can access land for exploration, a written land access arrangement must be made between the landholder and the prospecting title holder. The purpose of a land access arrangement is to ensure the orderly search for resources, while recognising the rights of landholders to conduct their activities without unreasonable interference or disturbance.
An explorer or prospecting title holder is a party holding an exploration licence or an assessment lease, granted under Part 3 of the Mining Act 1992. An exploration licence or assessment lease provides exclusive rights to explore for specific minerals or groups of minerals within a specified area of land. Before exercising these rights, an explorer is required to obtain a land access arrangement with the relevant landholder. An exploration licence or assessment lease does not permit mining.
Under the Mining Act 1992, the term landholder includes:
- the owner of the land, or
- the native title holder of the land (*see note below), or
- the holder of a lease, licence, continued tenure or permissive occupancy issued under the Crown Land Management Act 2016, or
- in the case of reserved land, the controller of that land, or
- a person whose interest in the land is identified in any register or record kept by the Registrar General, including lessees or other persons with exclusive rights to the land, or mortgagees in possession of the land.
Land access arrangements
A land access arrangement is a written agreement between a landholder and a licenced explorer confirming the terms and conditions for conducting prospecting activities on a particular area of land. The purpose of a land access arrangement is to ensure that an explorer accesses the land on terms acceptable to the landholder. All access arrangements should be based on the understanding that prospecting title holders are visitors to the land.
The Mining Act 1992 outlines details that may be included in an access arrangement. They include:
- periods during which the prospecting title holder is permitted access to the land
- parts of the land which the prospecting title holder can prospect and the way the holder can gain access to those parts of the land
- types of prospecting operations that can be carried out
- conditions to be observed by the prospecting title holder when prospecting
- compensation to be paid to any landholder as a consequence of prospecting operations (monetary or in-kind)
- how to resolve any dispute arising in connection with the arrangement
- how to vary the arrangement
- notification to the prospecting title holder of details of any person who becomes an additional landholder.
Separate access arrangements can also be made for different areas of the same landholding, or for different matters. Separate access arrangements may also be made to preserve confidentiality of provisions in the arrangements and to deal with persons becoming landholders at different times.
In accordance with the Mining Act 1992, Mining, Exploration and Geoscience (MEG) has developed the Land Access Arrangement Template for Mineral Exploration (PDF, 228.6 KB) in consultation with the NSW Farmers' Association and the NSW Minerals Council. It is not mandatory to use the template.
Compensation payments are separate to the requirement for title holders to pay the landholder’s reasonable costs in reaching a land access arrangement.
Land access arrangements can set out compensation to be paid to landholders as a consequence of carrying out exploration activities on their land. Landholders are also entitled to seek further compensation if situations arise which are not covered in access arrangements. They are also entitled to seek compensation for ‘compensable loss’ that is defined under the Mining Act 1992 s 262.
The parties negotiating a land access arrangement are free to approach and structure compensation arrangements as they see fit. Anything outside of pecuniary compensation is a private matter between the landholder and the explorer.
The prospecting title holder may not undertake works on the following areas of land:
- on or within 200 m of a house that is the occupant’s principal place of residence,
- on or within 50 m of a garden, or
- over any significant improvements
without the written consent of the landholder or occupant of the house.
A title holder may not undertake works on land in a state conservation area in an exempted area, unless prior consent from the Minister is obtained. Other exempted areas do not require the Minister's consent. All land required an access arrangement. An exempted area is defined as land:
- reserved, dedicated, appropriated, resumed or acquired for public persons, vested in the Crown or in any person as trustee for public purposes
- held under a lease for water supply by virtue of a special lease or otherwise
- transferred, granted or vested in trust by the Crown for the purpose of a racecourse, cricket-ground, recreation reserve, park or permanent common or for any other public purpose.
In 2016 changes to the Mining Act 1992 were introduced to provide a clearer pathway to resolve land access disputes.
If the explorer wants to access land for exploration then the explorer must first negotiate a land access arrangement with the landholder. If an access arrangement is agreed, exploration can commence as long as the terms of the access arrangement are met.
If an access arrangement cannot be agreed, and the explorer chooses to pursue land access, then the explorer may give the landholder valid written notice of intent to enter into an access arrangement
The notice of intent must include:
- a plan and description of the area of land over which the access is sought, and
- a description of the prospecting methods intended to be used in that area.
Once issued, the landholder cannot ignore or dismiss the notice. Both parties are legally obliged to negotiate in good faith to try and reach an agreement.
If an access arrangement cannot be agreed during negotiations between the parties, the next step is mediation. The prospecting title holder may write to the landholder and request them to agree to the appointment of an arbitrator for mediation.
If the parties cannot agree on an appointment, either party can apply to the Secretary of the Department of Regional NSW to appoint an arbitrator from the Minister for Regional NSW’s panel of arbitrators. This option is available to parties at both mediation and arbitration.
If an agreement is not reached at mediation, parties proceed to arbitration where the arbitrator will make a final determination. This determination may be appealed in the Land and Environment Court.
Both parties have an express right to legal representation at mediation and arbitration. The arbitration process is covered by the Mining Act 1992 s 143 to 158B.
Read more about the arbitration process for access to lands for exploration.
Note: A native title holder is a landholder for the purposes of low impact exploration licences on land where native title exists. A native title holder is also a landholder for some categories of Crown Land. A native title holder is not considered to be a landholder in exempted areas as defined in the Mining Act 1992, and will generally not be considered a landholder over freehold land.