Information for explorers on land access

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 must obtain a written land access arrangement with the relevant landholders. 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, being lessees or other persons with exclusive rights to the land, or mortgagees in possession of the land, Minister or public authority having the benefit of a covenant under the Crown Land Management Act 2016 or a Minister or public authority having an interest in the land under a conservation, natural heritage or biobanking agreement. 

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.

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:

1. periods during which the prospecting title holder is permitted access to the land
2. parts of the land which the prospecting title holder can prospect on and the way the holder can gain access to those parts of the land
3. types of prospecting operations that can be carried out
4. conditions to be observed by the prospecting title holder when prospecting
5. compensation to be paid to any landholder as a consequence of prospecting operations (monetary or in-kind)
6. how to resolve any dispute arising in connection with the arrangement
7. how to vary the arrangement
8. 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, NSW Resources has developed the Land Access Arrangement Template for Mineral Exploration (PDF, 228.6 KB) (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 Mining Act 1992 requires the holder of an exploration licence or assessment lease to pay the reasonable costs of a landholder’s participation in reaching a land access arrangement. These costs relate to the landholder’s time, legal and expert costs. This requirement to pay costs applies to negotiation, mediation, arbitration, and Land and Environment Court (LEC) hearings (if required).

Negotiation

Caps have been set on the reasonable costs payable at negotiation. These are:

• $1,500 (ex GST) for exempt prospecting operations
• $2,500 (ex GST) for assessable prospecting operations.

GST is payable for all reasonable costs, including a landholder's time spent participating in negotiating a land access arrangement, but only where the landholder is registered for GST (i.e. is a business).

An explorer can voluntarily pay the landholder more than these caps.

Mediation, arbitration and the LEC

An explorer must pay the reasonable costs of the landholder during mediation, arbitration and the LEC (if required). No cap has been set on these costs.

Costs payable by the explorer are determined by the arbitrator or by the court. A landholder’s conduct can be considered when determining the costs and there is a requirement under the legislation for both parties to act in good faith.

Evidence

Under the legislation, evidence must be presented to the explorer to show that the costs have been incurred.

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
• where there is a significant improvement

without the written consent of the landholder or occupant of the house.

‘Significant improvements’ are defined in the Mining Act 1992. Read the guidance material on the definition of significant improvements (PDF, 182.57 KB) (PDF, 182.57 KB).

A titleholder 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. 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.

A land access arrangement is required before accessing any land, including an exempted area.

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:

1. a plan and description of the area of land over which the access is sought, and
2. 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 Primary Industries and Regional Development (DPIRD) to appoint an arbitrator from the Minister for DPIRD’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.

The Mining Act 1992 s 383C provides landholders with general immunity against actions arising from the actions of title holders on their land.

The normal rights associated with private ownership of property are protected under NSW legislation. Landholders who host exploration on their land can also expect the following rights and protections:

• to have an access arrangement setting out the terms and conditions for an explorer’s access to land before they can begin work
• access to cost effective dispute resolution if an access agreement can’t be reached through initial negotiations
• recourse if the terms of the access arrangement are not met by the explorer
• general immunity against actions arising as a consequence of title holder actions on their land
• compensation
• their land to be fully rehabilitated.