Division 2Division 2 Access arrangements for prospecting titles
(1) This Division applies to the carrying out of prospecting operations under exploration licences and assessment leases (referred to in this Division as prospecting titles) on any land.(2) However, this Division does not apply so as to require an access arrangement in respect of a landholder who is a native title holder if the prospecting title concerned was granted or renewed after compliance with Subdivision P of Division 3 of Part 2 of the Commonwealth Native Title Act and the grant or renewal of the title was not an act that attracted the expedited procedure under and within the meaning of that Subdivision. In addition, this Division does not apply if the prospecting title concerned was granted or renewed after compliance with a registered indigenous land use agreement under that Act and the agreement provides that an access arrangement is not required under this Division in respect of such a landholder.(3) This Division applies, in the case of a prospecting title that is a low-impact exploration licence, as though a reference in this Division to a landholder included a reference to:(a) any registered native title body corporate, and(b) any registered native title claimant,in relation to the land over which the licence is granted.Note. Section 32F imposes a condition on low-impact exploration licences that requires an access arrangement to be entered into under this Division between the holder of the licence and each registered native title body corporate and registered native title claimant.
(1) There is to be an Arbitration Panel.(2) The Arbitration Panel is to consist of one or more members appointed by the Minister after consultation with the Minister for Aboriginal Affairs and the Minister for Agriculture.(3) The conditions on which a member of the Arbitration Panel holds office (including conditions relating to remuneration and travelling and subsistence allowances) are to be as determined by the Minister.
140 Prospecting to be carried out in accordance with access arrangement
(1) The holder of a prospecting title must not carry out prospecting operations on any particular area of land except in accordance with an access arrangement or arrangements applying to that area of land:(a) agreed (in writing) between the holder of the prospecting title and each landholder of that area of land, or(b) determined by an arbitrator in accordance with this Division.(2) Separate access arrangements may (but need not) be agreed or determined with different landholders of the same area of land, for different areas of the same landholding or with respect to the different matters to which access arrangements relate.(3) Separate access arrangements may be made to preserve the confidentiality of provisions of the arrangements, to deal with persons becoming landholders at different times or for any other reason.
141 Matters for which access arrangement to provide
(1) An access arrangement may make provision for or with respect to the following matters:(a) the periods during which the holder of the prospecting title is to be permitted access to the land,(b) the parts of the land in or on which the holder of the prospecting title may prospect and the means by which the holder may gain access to those parts of the land,(c) the kinds of prospecting operations that may be carried out in or on the land,(d) the conditions to be observed by the holder of the prospecting title when prospecting in or on the land,(e) (Repealed)(f) the compensation to be paid to any landholder of the land as a consequence of the holder of the prospecting title carrying out prospecting operations in or on the land,(g) the manner of resolving any dispute arising in connection with the arrangement,(h) the manner of varying the arrangement,(i) the notification to the holder of the prospecting title of particulars of any person who becomes an additional landholder.(1A) The Director-General may, with the concurrence of the NSW Farmers Association and the NSW Minerals Council, publish templates for use for standard access arrangements. The use of any such template is not mandatory.(2) An access arrangement that is determined by an arbitrator must specify the compensation, as assessed by the arbitrator, to which each landholder of the land concerned is entitled under Division 1 of Part 13.(2A) An access arrangement must (if the landholder so requests) specify that the holder of the prospecting title is required to pay the reasonable legal costs of the landholder in obtaining initial advice about the making of the arrangement. Those costs are not to exceed the maximum amount set by the Director-General, with the concurrence of the NSW Farmers Association and the NSW Minerals Council, by order published in the Gazette.(3) In the event of an inconsistency between:(a) a provision of an access arrangement, and(b) a provision of this Act, of the regulations or of a condition of a prospecting title,the provision referred to in paragraph (b) prevails.(4) If the holder of a prospecting title contravenes an access arrangement, a landholder of the land concerned may deny the holder access to the land until:(a) the holder ceases the contravention, or(b) the contravention is remedied to the reasonable satisfaction of, or in the manner directed by, an arbitrator appointed by the Director-General.The Director-General is to make such an appointment within 48 hours after being requested to do so by the landholder and the arbitrator is to deal with the matter within 5 business days of the appointment. If the arbitrator does not deal with the matter within that time, the landholder may deny the holder of the prospecting title access to the land until such time as the matter is determined by the arbitrator.
(5) Subsection (4) does not affect any proceedings that may be brought against the holder of the prospecting title in respect of the contravention of the access arrangement.
142 Holder of prospecting title to seek access arrangement
(1) The holder of a prospecting title may, by written notice served on each landholder of the land concerned, give notice of the holder’s intention to obtain an access arrangement in respect of the land.(2) The notice of the holder’s intention to obtain an access arrangement must, in addition to stating the holder’s intention, contain:(a) a plan and description of the area of land over which the access is sought sufficient to enable the ready identification of that area, and(b) a description of the prospecting methods intended to be used in that area.(3) The holder of a prospecting title and a landholder of the land concerned may agree in writing (either before or after the prospecting title is granted) on an access arrangement.(4) If some but not all of the landholders of any particular land have agreed to an access arrangement, a reference in sections 143–156 to each landholder of the land or to a party to the hearing before an arbitrator does not include a reference to any of those landholders who has agreed to an access arrangement. However, the arbitrator may allow a landholder who has agreed to an access arrangement to become a party to the hearing of the matter in order to ensure consistency in the access arrangements over the same land, and may, for that purpose, replace the agreed access arrangement with the access arrangement determined by the arbitrator.(5) In this section, a reference to the holder of a prospecting title includes a reference to the proposed holder of a prospecting title.
142A Notice to mortgagees of making of access arrangements
(1) Within 14 days after an access arrangement is agreed between a landholder and the holder of a prospecting title, the holder is to serve notice of the making of the arrangement on each person (other than that landholder) who is identified in any register or record kept by the Registrar-General as a person having an interest as mortgagee in the land concerned.(2) Notice is not required to be served on a mortgagee under this section:(a) if the mortgagee has been given a copy of the written notice referred to in section 142 to the landholder of the intention to obtain the access arrangement, or(b) if the landholder with whom the access arrangement was made is not the mortgagor.(3) If notice is required to be served on a mortgagee under this section, the access arrangement does not come into force until the end of the period of 14 days after the notice is served, unless the holder of the prospecting title has reasonable cause to believe that the mortgagee is not a mortgagee in possession of the land concerned.(4) The requirement imposed by this section on the holder of a prospecting title is taken to be a condition of the prospecting title.(5) This section applies only to access arrangements made after the commencement of this section.Note. If the person is a mortgagee in possession of the land, an access arrangement with that person is also required under section 140 before prospecting operations may be carried out on the land.
143 Appointment of arbitrator by agreement
(1) If, by the end of 28 days after the holder of a prospecting title serves notice in writing on each landholder of the holder’s intention to obtain an access arrangement, the holder and each landholder have been unable to agree on such an arrangement, the holder may, by further notice in writing served on each landholder, request them to agree to the appointment of an arbitrator.(2) The holder of a prospecting title and each landholder of the land concerned may agree to the appointment of any person as an arbitrator.
144 Appointment of arbitrator in default of agreement
(1) If, by the end of 28 days after the holder of a prospecting title serves notice in accordance with section 143, the holder and each landholder of the land concerned have been unable to agree on the appointment of an arbitrator, then any one of them may apply to the Director-General for the appointment of a member of the Arbitration Panel as an arbitrator.(2) An application must be accompanied by the application fee prescribed by the regulations.(3) The Director-General is to appoint a member of the Arbitration Panel as an arbitrator.
(1) As soon as practicable after having been appointed, an arbitrator:(a) must fix a time and place for conducting a hearing into the question of access to the land concerned, and(b) must cause notice of his or her appointment, and of the time and place fixed for conducting the hearing, to be given to the holder of the prospecting title and to each landholder.(2) The arbitrator may, by a further notice served on the holder of the prospecting title and on each landholder, vary the time or place fixed for conducting the hearing.(3) The arbitrator must, at the time and place fixed under this section, conduct a hearing into the question of access to the land concerned.
(1) At any hearing into the question of access to any land by the holder of a prospecting title, the holder and each landholder are entitled to appear and be heard.(2) A party to a hearing may be represented:(a) by an agent who is not an Australian legal practitioner, or(b) with the agreement of the parties and the leave of the arbitrator, by an Australian legal practitioner.
(1) An arbitrator is not to make a determination until the arbitrator has used his or her best endeavours to bring the parties to a settlement acceptable to all of them.(2) If the parties come to such a settlement, the arbitrator must make a determination that gives effect to the terms of the settlement.
(1) Except as otherwise provided by this Act or the regulations, the procedure at a hearing is to be as determined by the arbitrator.(2) An arbitrator must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(3) An arbitrator may conduct a hearing even though one or more of the parties to the hearing fails to attend the hearing.
149 Interim determination by arbitrator
(1) As soon as practicable after concluding a hearing, an arbitrator:(a) must make an interim determination as to whether or not the holder of the prospecting title should have a right of access to the land concerned, and(b) if the arbitrator determines that the holder of the prospecting title should have such a right of access, must prepare a draft access arrangement in respect of that land.(2) As soon as practicable after making an interim determination, the arbitrator:(a) must reduce the determination to writing, and(b) must cause a copy of the determination, together with a copy of any draft access arrangement, to be served on each of the parties to the hearing.
(1) A party to a hearing may, within 14 days after being served with a copy of the arbitrator’s interim determination, apply to the arbitrator:(a) for reconsideration of the question of access to the land concerned, or(b) for variation of any draft access arrangement prepared by the arbitrator in respect of that land.(2) As soon as practicable after receiving such an application, the arbitrator:(a) must fix a time and place for continuing the hearing into the question of access to the land concerned, and(b) must cause notice of the time and place fixed for continuing the hearing to be given to the holder of the prospecting title and to each landholder.(3) The arbitrator may, by a further notice served on the holder of the prospecting title and on each landholder of the land concerned, vary the time or place fixed for continuing the hearing.(4) The arbitrator must, at the time and place fixed under this section, continue the hearing into the question of access to the land concerned.
151 Final determination by arbitrator
(1) If an application is not made to the arbitrator within the period of 14 days referred to in section 150 (1):(a) the interim determination is taken to be the arbitrator’s final determination, and(b) any draft access arrangement is taken to be a final access arrangement.(2) If an application is made to the arbitrator within the period of 14 days referred to in section 150 (1), the arbitrator, as soon as practicable after concluding the continued hearing:(a) must make a final determination as to whether or not the holder of the prospecting title should have a right of access to the land concerned, and(b) if the arbitrator determines that the holder of the prospecting title should have such a right of access, must determine a final access arrangement in respect of that land.(3) As soon as practicable after making a final determination, the arbitrator:(a) must reduce the determination to writing, and(b) must cause a copy of the determination, together with a copy of any final access arrangement forming part of the determination, to be served on each of the parties to the hearing.
(1) Each party to the hearing is to bear his or her own costs in relation to the hearing.(2) The arbitrator’s costs in relation to the hearing are to be borne by the holder of the prospecting title.(3) Payment of the arbitrator’s costs in relation to a hearing is, for the purpose of any security given by the holder of a prospecting title, taken to be an obligation under the title.
153 Withdrawal from arbitration
(1) The parties to a hearing may, at any time before the conclusion of the hearing, terminate the hearing by notice in writing, signed by all of the parties, served on the arbitrator.(2) This section does not limit the liability of the holder of a prospecting title to bear the arbitrator’s costs in relation to the hearing.
No proceedings lie against an arbitrator for or with respect to:(a) any determination made by the arbitrator, or(b) any publication made by the arbitrator, or(c) any other act, matter or thing done by the arbitrator,for the purposes of a hearing, as long as the determination, publication, act, matter or thing was made or done in good faith.
(1) A party to a hearing who is aggrieved by an arbitrator’s final determination (other than a determination referred to in section 147 (2)) may apply to the Land and Environment Court for a review of the determination.(2) An application:(a) must be accompanied by a copy of the determination to which it relates, together with a copy of any access arrangement forming part of the determination, and(b) must be filed in the Land and Environment Court:(i) in the case of an interim determination that has become a final determination—within 28 days after a copy of the interim determination was served on the applicant, or(ii) in the case of a final determination—within 14 days after a copy of the final determination was served on the applicant.(3) An application for review may not be made:(a) during the period of 14 days within which an application may be made to an arbitrator, or(b) if such an application is made, until the arbitrator has made a final determination with respect to the application.(4) The applicant must cause a copy of the application to be served on each of the other parties to the determination to which the application relates.(5) Subject to any order of the Land and Environment Court to the contrary, an application for review of a determination operates to stay the effect of any related access arrangement in relation to a party to the arrangement from the time when a copy of the arrangement has been served on the party until the decision of the Land and Environment Court on the review.(6) In reviewing a determination under this section, the Land and Environment Court has the functions of an arbitrator under this Division in addition to its other functions.(6A) A review of a determination is to be by way of rehearing, and fresh material or material in addition to, or in substitution for, the material considered on the making of the determination by the arbitrator may be given on the review and taken into consideration by the Land and Environment Court.(7) The decision of the Land and Environment Court on a review of a determination is final and is to be given effect to as if it were the determination of an arbitrator.
156 Effect of access arrangement etc
An access arrangement determined by an arbitrator:(a) takes effect:(i) in the case of a draft access arrangement that is taken to be a final access arrangement—at the end of the period of 14 days after a copy of the draft access arrangement has been served on each of the parties, or(ii) in the case of a final access arrangement prepared under section 151—when a copy of the arrangement has been served on each of the parties,or on such later date as may be specified in the arrangement, and(b) subject to section 141 (3), has effect as if its terms were embodied in a deed that had been duly executed by each of the parties.
157 Variation of access arrangements
(1) An access arrangement may be varied in accordance with the terms of the arrangement relating to its variation.(2) An access arrangement may also be varied:(a) by the agreement of the parties to the arrangement, or(b) with the consent of all the parties to the arrangement, by the arbitrator who determined the arrangement, or(c) on application by any of the parties to the arrangement, by order of the Land and Environment Court if the arrangement was determined by a court or an arbitrator.(3) In this section, vary includes terminate.
(1) An access arrangement with 2 or more landholders does not terminate because one of those landholders ceases to be a landholder of the land concerned.(2) An access arrangement does not terminate because a person becomes a landholder of all or any part of the land concerned after the arrangement was agreed or determined.(3) An access arrangement does not run with the land, and accordingly a person does not (except as provided by this section) become a party to the access arrangement merely because the person becomes a landholder of any of the land after the access arrangement was agreed or determined.(4) If, after an access arrangement has been agreed or determined, a person becomes a landholder of any of the land to which the arrangement applies in addition to another landholder who continues to be a party to the arrangement, the provisions of the arrangement (other than those relating to the payment of compensation) apply to the new landholder as if the new landholder were a party to the arrangement, but only if the holder of the prospecting title concerned has given the new landholder a copy of the access arrangement.(5) If the new landholder objects to the access arrangement within 28 days after being given a copy of the arrangement, the access arrangement ceases to apply to the new landholder when whichever of the following first happens:(a) the new landholder agrees to an access arrangement with the holder of the prospecting title concerned in accordance with this Division,(b) an arbitrator is appointed and determines an access arrangement in relation to the new landholder in accordance with this Division,(c) at the end of the period of 60 days after the new landholder objects, an access arrangement has not been so agreed or determined.However, if an arbitrator is appointed or an application for review of a determination of the arbitrator is made, the arbitrator or the Land and Environment Court (as the case requires) may continue the existing access arrangement (with or without variation) until the determination of the arbitration or review.
(6) Nothing in this section prevents an access arrangement being agreed or determined in respect of a proposed new landholder.