OPAL PROSPECTING

 

Opal prospecting areas and mineral claim districts can be declared over your land and an opal prospector can seek access to your land under an access management plan. This section overviews opal prospecting areas, mineral claim districts and access management plans for opal prospecting.

 

What is needed before a person can explore for opals?
 

Just as an explorer for minerals or petroleum in NSW  must have a licence from the NSW Government, so too must any person who wishes to explore for opals in the State.

 

A person cannot explore for opals in NSW without first having:

 

  • an Opal Prospecting Area declared, and

  • an Opal Prospecting Licence granted to them,

 

Or

 

  • a Mineral Claim District declared, and

  • a Mineral Claim granted to them.

 

A Mineral Claim is granted over smaller areas than that of an Opal Prospecting Licence, and while an Opal Prospecting Licence allows exploration only, a Mineral Claim can allow opal prospecting or mining.

 

Opal Prospecting Areas
 

How are opal prospecting areas determined?

The Minister of Resources and Energy may make any land an Opal Prospecting Area.   

 

This includes:[i]

 

  • land under lease or licence for grazing under the Crowns Land Act 1989 or the Western Lands Act 1901,

  • crown land or land in a reserve under the Crown Lands Act 1989, the Western Lands Act 1901 or the Crown Lands (Continued Tenures) Act 1989,

  • land that is under a reserve trust under the Crown Lands Act 1989 or land controlled by Local Council under s48 of the Local Government Act 1993, or  

  • land subject to an easement. 

 

How will I know if an opal prospecting area may be declared over my property?  

If the Minister for Resources and Energy proposes to declare an Opal Prospecting Area over your land they must give you written notice of the proposal.

 

This notice must include detail of the grounds on which you are able to object to the grant of the Opal Prospecting Area and the manner and form in which you are able to object.

 

How can I object to the declaration of an opal prospecting area?

You can object to the grant of an Opal Prospecting Area over your land on a number of grounds which are detailed in the Mining Act 1992.

 

You are able to object to your land being included in the Opal Prospecting Area on the basis that:

 

  • the land in the proposed Opal Prospecting Area is agricultural land,[ii] 

  • there is a garden or an orchard on or within 50 metres of the proposed Opal Prospecting Area,

  • the land in the proposed Opal Prospecting Area is on or within 200 metres of a dwelling-house or a woolshed or shearing shed,

  • the land in the proposed Opal Prospecting Area is or is within 200 metres of a watering place, or

  • the land in the proposed Opal Prospecting Area has a significant improvement on it or is within 50 metres of a significant improvement other than an improvement constructed or used for mining purposes and for no other purposes.

 

The Minister for Resources and Energy will determine all objections except those relating to agricultural land.

 

When is land agricultural land?

If you object on the basis that your property is agricultural land, the Director-General will determine whether the land meets the definition of agricultural land in the Mining Act 1992.    

 

‘Agricultural land’ means land that:[iii]

 

  • has been sown with 2 or more annual species during the previous 10 years, 

  • has been sown with 1 crop of an annual species during the previous 10 years if the Director-General is satisfied that it would not be reasonable to expect more than1 crop to have been sown during that period and there was a sufficient reason for not having cultivated the land at an earlier date,    

  • has shade, shelter or windbreak trees growing on it, or at any time during the previous 10 years had edible fruit or nut bearing trees, vines or any other perennial crop growing on it, 

  • was pasture sown with a seed of a species or treated with fertilizer and at a rate of application which is satisfactory to the Director-General and, as a result of the sowing or treatment, maintained a level of pasture production that is substantially above that to be expected of natural pastures, 

  • is used, to an extent acceptable to the Director-General for the production of grass seed, pasture legume seed, hay or silage, or

  • land that majority of improved species of pasture grasses.  

 

For any land that has been sown with a crop, the Director-General must be satisfied that the crop was carried through to a successful use.202  . 

 

What land is not to be included in opal prospecting areas?

Land that is not to be included in an opal prospecting area includes land that:[iv]

 

  • already has an Opal Prospecting application or authority over it,

  • is part of a reserve, an exempted area, a mineral allocation area for opal or a colliery holding,

  • is agricultural land (see above), or

  • is within a national park, state conservation area, regional park, historic site, nature reserve, state game reserve, Aboriginal area, protected archaeological area, wildlife district, wildlife refuge, wildlife assessment area or Aboriginal place under the National Parks and Wildlife Act 1974.  

 

Mineral Claims
 

Mineral Claims are titles that allow the claim holder to prospect and mine for opals. Mineral Claims are smaller in size than opal prospecting licences (they cannot be an area of more than 2 hectares).[v]

 

Mineral Claims Districts

Mineral Claims can only be granted within Mineral Claims Districts.204 There are currently only two Mineral Claims Districts in NSW, one in Lightning Ridge and one in White Cliffs. 

 

How will I know that a Mineral Claim is being applied for over my land?

A person cannot apply for a Mineral Claim until they have notified landholders who are affected and identified the land that would be included in the Mineral Claim.[vi]   

 

The notice that the landholder receives must identify land clearly, identifying the extent and location of land subject to the mineral claim as well as any man-made features such as roads, fences and buildings.[vii] 

 

Is there any land that a Mineral Claim cannot be granted over?

A Mineral Claim cannot be granted over:

 

  • land that is found to be agricultural land after an objection by a landholder,[viii] or

  • the surface of any land that has a dwelling house that is the principal place of residence of the person occupying the land, woolshed or shearing shed on or within 200 metres of it[ix]

  • land that has a garden on or within 50 metres of it

  • land that has any significant improvement on it 

 

You can give consent in writing allowing a Mineral Claim to be granted over these areas. However, if you give written consent, this consent cannot be revoked.

 

For these restrictions to apply, the dwelling-house, woolshed, shearing shed, garden or significant improvement on your property must have existed at the time when the application for the Mineral Claim was lodged.

 

Any disputes over where a Mineral Claim should be granted will be resolved in the Land and Environment Court.

 

How can I object to a grant of a Mineral Claim over my property?

You can object to the grant of a Mineral Claim over your property on the basis that your land is agricultural land.208 This objection must be made in writing and lodged with the Director-General within 28 days of receiving notice of a mineral claim being applied for.   The Director-General will determine whether the land is agricultural against the definitions in the Act.

 

While it is not mentioned in the legislation, you should also object to an application for a Mineral Claim that does not take into account the restrictions mentioned above (for example, is on or within 50 metres of a garden or 200 metres of a dwelling house.)   

 

What does a Mineral Claim authorise a person to do?

The holder of a Mineral Claim can, subject to the conditions of the Claim:[x]

 

  • prospect or mine for opals

  • erect buildings and structures

  • exercise any rights over easements

  • remove any timber, stone and gravel from the claim area.

 

Without the consent of the landholder, the holder of a Mineral Claim is not authorised to:[xi]

 

  • use water artificially conserved on the land, or

  • fell trees, strip bark or cut timber on the land, or

  • if consent is refused, the holder of the mineral claim can apply for a determination by the Land and Environment Court.

 

The holder of a Mineral claim cannot: 210

 

  • depasture horses on the land, or keep any dog that is not under effective control on the land (unless it is securely fenced), or

  • remove rock or earth from the land, except in connection with mining operations, without the consent of the landholder.


Those granted a Mineral Claim are also entitled to a right of way between the Mineral Claim area and a public road. This right of way should follow, wherever possible, existing roads or tracks.210  

 

If these access routes intercept fences, the Mineral Claim holder must ensure that substantial gates or grids are a placed to prevent stock from straying. If the fence-line is rabbit, marsupial or dog-proof, then the intersections must comply with this.[xii]

 

Landholder’s right of access to water

If a Mineral Claim includes the surface of land, a landholder is entitled to use land for stock watering, water drainage, and to have free and uninterrupted access to water in any stream, lagoon or swamp.[xiii]

 

Access Management Plans

 

An Access Management Plan contains the terms and conditions that will determine the access to your property and how mining operations will be managed.  

 

Any area within an opal prospecting area or mineral claims district can be declared an Access Management Area. This is required before the miner accesses property for prospecting or mining.  

 

What does an Access Management Plan cover?

Access management plans cover the terms of the miner’s access to your property. You can negotiate for whatever protections you would like to see in an Access Management Plan but bear in mind that the Mineral Claim holder must agree to it for the protections to be included in the access management plan.

 

The Access Management Plan may cover the following matters:[xiv]

 

  • rights of access including access points, routes across land, manner in which access can be exercised, and when access is allowed

  • conditions of access including maintaining routes of access, preserving safety or persons and stock, avoiding interference with land management practices and environmental protection

  • how disputes are to be resolved

  • how the plan may be varied or replaced

  • any other matters the parties agree to put in the plan.

 

For more information on what to include in land access management plan see:

Land access checklist

 

Miner to seek Access Management Plan with landholder

A miner’s representative (such as the Lightning Ridge Miner’s Association) may agree on an Access Management Plan with the landholder of any land which might be accessed for exploration or for mining purposes.[xv] It is suggested that you do not allow access without first negotiating an Access Management Plan which covers the terms of access and any protections you wish to see for your property. 

 

Landholders will know that a miner wants to negotiate an Access Management Plan with them because the miner must serve notice on the landholder.

 

The notice landholders receive must be in a particular form. It must:

 

  • be in writing, 

  • have a plan and description of the area of land over which access is sought, and

  • include a description of the prospecting or mining methods that would be used.

 

After 60 days of the notice being received either the miner or the landholder can apply for the Secretary to determine the Access Management Plan if both parties cannot agree on the terms.

 

What if you can’t agree on an Access Management Plan?

If you can’t agree on an Access Management Plan within 60 days of receiving the notice from the miner, then either party (but most likely the miner) may apply to the Secretary for a determination on the Access Management Plan.[xvi]

 

If you aren’t happy with the Secretary’s Access Management Plan, then you can apply to the Land and Environment Court to review it.[xvii]

 

The Secretary can decline to make a determination on the Access Management Plan, in which case either party can apply to the Land and Environment Court to determine the Plan.[xviii] 

 

How will you know if an Access Management Plan has been determined? 

After registering the Access Management Plan, the Secretary must publish a notice in a local newspaper in the area. This advertisement will identify the area of land which is covered by an Access Management Plan. 

 

What is the process of agreeing on an Access Management Plan?

The miner must first give notice to the landholder of their intention to negotiate an Access Management Plan with them

If after 60 days the miner and landholder cannot agree, then either party can apply to the Secretary to determine the Plan

If you are not happy with the Secretary’s access Management Plan, you can apply for a review in the Land and Environment Court.

 

 

[i]    Mining Act 1992 (NSW) s 220.

[ii]   Mining Regulations 2010 (NSW) reg 47.

[iii]   Mining Act 1992 (NSW) sch 2 (definition of ‘Agricultural Land’).

[iv]   Mining Act 1992 (NSW) s 223.

[v]    Ibid s 180.

[vi]   Ibid s 177.

[vii]  Ibid s 39.

[viii] Ibid s 187.

[ix]   Ibid s 188.

[x]    Ibid s 195.

[xi]   Ibid s 213.

[xii]   Ibid s 211.

[xiii]  Ibid s 212.

[xiv]  Ibid s 236D.

[xv]   Ibid s 236E.

[xvi]  Ibid s 236F.

[xvii] Ibid s 236H.

[xviii] Ibid s 236G.

 

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