Mining is regulated by both State and Commonwealth law, however the State laws are most important. The Mining Act 1971 (SA) and associated Mining Regulations 2020 (SA) are the main legislation governing mining. Department of Mining policies, determinations and guidelines should also be consulted in addition to the principal Act and regulations. Further guidance can be found at the Department for Mining and Energy Legislation and Guidance webpage (link opens new window).

Whilst the Mining Act covers most of South Australia, it does not apply to land that is the ‘Indenture Area’ under the Roxby Downs (Indenture Ratification) Act 1982 (SA), and land to which the Arkaroola Protection Act 2012 (SA) applies. There are certain other Acts which regulate mining in reserves under the National Parks and Wildlife Act 1972 (SA), and in wilderness protection areas under the Wilderness Protection Act 1992 (SA). Acts relevant to mining on Aboriginal land include Part 9B of the Mining Act, the Native Title Act 1993 (Cth), the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), the Maralinga Tjarutja Land Rights Act 1984 (SA) and the Aboriginal Heritage Act 1988 (SA).. Note also, that some mines are private mines (these are mainly quarries) and there are different provisions in Part 11B of the Act governing these mines. Opal mining is covered by the Opal Mining Act 1995 (SA) and Opal Mining Regulations 2012(SA). Also, special arrangements govern mining in defence areas such as the Woomera Protected Area.

The main legislative requirement in the Act is that all mineral exploration or extraction must be licensed. The Mining Register is the register of licensed mining tenements. A mining tenement includes an Exploration Licence, Mining Lease, Retention Lease or Miscellaneous Purposes Licence. The publicly available register includes information such as the holder of the mining tenements, the area of the tenements and grant, and the expiry date and particular conditions of the tenement.

Licences for exploration, and miscellaneous purposes licences and mining leases 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.

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) (‘EPBC Act’) 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. However, for some activities, to which an assessment bilateral agreement made under the EPBC Act applies, assessment will take place only under the Mining Act. Under recent amendments to the Mining Act 1971 (SA) a new notice provision requires the Minister to undertake public consultation if the proposed mining activity triggers the EPBC Act 1999 (Cth) and any assessment or approval bilateral agreement with the Commonwealth [see ss 70D, 56J, 56ZA].

Application for an Exploration Licence

An exploration licence is required for exploration activities. A company need not conduct Environmental Impact Assessment (‘EIA’) before applying for an Exploration Licence, but once the Exploration Licence is granted, the company cannot conduct exploration activities until a Program for Environment Protection and Rehabilitation (‘PEPR’) has been approved. The company must comply with the PEPR, as this is required by the Mining Act 1971 (SA). It is an offence not to do so.

Application for a Mining Lease/Retention Lease/Miscellaneous Purposes Licence

A mining lease (‘ML’) is required for mining production, and to operate a mine. A miscellaneous purposes licence (‘MPL’) is essentially required to construct other infrastructure that is not part of actually extracting the minerals. A company wishing to apply for a mining lease or miscellaneous purposes licence must conduct prior EIA before applying for a lease. The applicant must attach a mining proposal to the application for a mining lease, a retention proposal to the application for a retention lease (‘RL’), and a proposal to an application for a miscellaneous purposes licence. Among other things, these must set out any impacts on the environment, environmental outcomes to be achieved, and the results of any consultation conducted under the Mining Regulations 2020 (SA) in relation to the proposed mine. This is before a lease is granted or a PEPR prepared. The Minister cannot grant the ML/RL/MPL unless satisfied that appropriate environmental outcomes will be able to be achieved.

There is a two step-process for a ML/RL/MPL, including the requirement for a proposal to accompany the application for one of these tenements. This proposal contains the EIA conducted prior to the grant of ML/RL/MPL and provides the Minister with information to determine whether to approve the tenement, and if so, which conditions to place on the tenement.

A proposal/prior EIA does not need to accompany an application for an EL, where EIA takes place only through the PEPR which is prepared after the tenement is approved. For a ML/RL/MPL and an EL, a PEPR must be prepared after the tenement is granted. This also requires EIA, and no mining activities can begin until the PEPR is approved. The PEPR must be publicly available, and strong penalties apply for non-compliance (up to $250 000). The PEPR must be reviewed if there is an application for a change in authorised operations.

When determining conditions to attach to a mineral exploration or production licence (or a PEPR itself), the Minister may consider any factors appropriate to a particular case, but must consider the protection of:

Notice to be given of a tenement application by the Minister

Section 56H of the Mining Act 1971(SA) outlines the notice/advertisement that must be given by the Minister when an applicant has applied for a ML/RL/MPL. The Minister must give notice to the landowner and the local council. Also, the Minister must, before making a decision whether or not to approve the application, or impose conditions, give notice to the public of the application (e.g., in the newspaper) and invite submissions. This is when the general public are able to make submissions. The Minister must give a copy of the submissions to the proponent and require the applicant to respond to any matter. In making their decision of whether to approve the ML/RL/MPL, and on what conditions if any, the Minister must take into account the submissions and any response by the applicant. Again, there is no appeal from a decision to approve a tenement. Note, that the Minister must take into account environmental impacts when making the decision to approve a ML/RL/MPL. New provisions to the Act require the Minister to publish an assessment report.

Compliance with the Act

A breach of PEPR/licence exposes the tenement holder to civil and criminal penalties, suspension or cancellation of the tenement, and administrative orders such as environmental directions and rehabilitation directions. However, there is no provision in the Act for community enforcement; nor is there any avenue for the general public or community to challenge the merits of a decision to approve an EL, ML, MPL or RL.

Notice of entry given by the proponent to the landowner- Exempt land

The notice of entry provisions are addressed under ‘exempt land’ provisions of the Mining Act 1971 (SA) (ss 9 and 9AA). An authorisation (EL/ML/MPL) cannot authorise mining operations on exempt land, unless the benefit of the exemption is waived either through a negotiated agreement, or by the Environmental Resources and Development Court (‘ERD Court’) upon application by the mining company. The recent amendments to the Act now allow an owner of exempt land to apply to the Court for confirmation as to whether the landowner will retain the benefit of the exemption, or whether the Court would waive the benefit of the exemption. Where the Court waives the benefit of the exemption, the Court can impose any conditions it sees fit. The phrase ‘exempt land’ has been viewed as problematical as many landowners do not understand that the benefit of the exemption can be waived by the court – it is not an absolute exemption.

In relation to prospecting and exploration, the notice is a notice of entry onto land to conduct authorised operations. In relation to exploration, the company will have an EL that authorises exploration activities, and the notice of entry is given by the holder of the EL to the landowner to inform them of the intention to enter land and conduct the authorised exploration operations [see Part 9 of the Act].

In relation to a ML/MPL/RL, the notice provisions in Part 9 are notice of an intention to apply for a respective ML/MPL/RL.

The landowner can lodge a notice of objection in the ERD Court to the entry onto land, or to the land, or any part of the land being used for authorised operations i.e., exploration or production. In the case where the notice is one of intention to apply for a ML/MPL/RL, the ERD Court can delay the hearing of a notice of objection to entry onto land until after the application has been determined by the Minister.

Notice is not required in certain circumstances, for example if entry is authorised by an agreement between the landowner and mining company.

The new Mediation Code

A mediation process may be useful for landowners to utilise under the Land Access Dispute Resolution Code- pursuant to Schedule 1 of the Fair Trading (Mining and Resources Industry Land Access Dispute Resolution Code) Regulations 2018.

The Mediation Code (link opens new window) applies to a dispute between a farmer and one or more mining operators in relation to access to land used by the farmer for the purpose of primary production.

Whilst access to a mediation process is not strictly a right under the Mining Act 1971 (SA) (or does it take the place of the objection to entry) affected landowners may still wish to utilise a dispute resolution process.

Other landowner rights include:

The Landowner Information Service (link opens new window) commenced in July 2020, which is a free, independent information service for South Australian landowners on matters related to exploration, extractive minerals (including quarrying) and mining regulatory practices. The service can explain your options, rights and responsibilities. The service does not however provide legal, commercial, compensatory, or financial advice.