Mining is regulated by both State and Commonwealth law, however the State laws are most important. The Mining Act 1971 (SA) is the main legislation governing mining. Although mining has the potential to seriously harm the environment, the Act has few provisions that regulate and protect the environment. The main legislative provision in the Act is that all mineral exploration or extraction must be licensed.
Licences for exploration, miscellaneous purposes and mining are issued subject to certain conditions, some of which are prescribed by the legislation, but most of which are at the Minister's discretion. This high level of ministerial discretion means that it is very difficult to legally challenge environment conditions (or lack of) imposed by the Minister. Traditionally, Courts are reluctant to find that ministerial discretion has been exercised improperly unless there has been a serious error of process.
Another impediment to challenging a minister's decision on a mining matter is that most people will not have locus standi (the legal right to challenge the Minister's decision in court). The Mining Act does not provide for third party challenges or appeals. Generally, the only parties identified by the legislation as having an interest in mining are mining companies, affected landholders and the government itself. When determining conditions to attach to an mineral exploration or production licence, the Minister may consider any factors appropriate to a particular case, but must consider the protection of -
- the natural beauty of the area that will be affected by the proposed lease or licence
- the flora and fauna of any natural environment or habitat in the area
- any geological or geophysical features of the area that are of special interest
- any Aboriginal sites or objects of significance according to Aboriginal tradition, archaeology, anthropology or history.
If notice is given that an application for a lease or for exploration is being considered by the Minister, an affected landowner (or someone else with an estate or interest in the land) may object to the issuing of a mining lease or entry onto land for exploration purposes, on any grounds. There is no appeal if the Minister rejects an objection to a lease. The Environment, Resources and Development Court hears and determines objections to entry for exploration purposes. Whilst the Mining Act covers the whole of South Australia, there are certain other provisions which regulate mining on Aboriginal land and in Reserves under the National Parks and Wildlife Act 1972 (SA). Contrary to popular belief, the vast majority of the area of National Parks and Wildlife Act reserves is available for exploration and mining. Over the last 10 years, the State Government has foreshadowed many amendments to the Mining Act that would reform environment protection, however, as yet, no significant amendments had been made.
If a mining company intends to export the minerals produced, a Commonwealth export licence is also required. Mining may also be considered a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) if the mining action impacts on a matter of national environmental significance. In such cases, the Commonwealth Environment Minister must assess and approve the action. An Environmental Impact Assessment may be required for the mining site. This is in addition to the approvals required under State law.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.