Division 4 Lands containing minerals

140A   Act subject to Mining Act 1973 and Coal Mining Act 1973

This Act is subject to the Mining Act 1973 and the Coal Mining Act 1973.

141   Constructing Authority entitled to minerals

(1)  In this section minerals means mines or deposits of minerals within land taken under this Act after the commencement of the Public Works and Local Government (Amendment) Act 1967, including land so taken after that commencement pursuant to the authority conferred by any other Act, whether passed before or after that commencement.

(2)  Subject to this section, the Constructing Authority shall be entitled to all minerals other than:

(a)  minerals that are expressly excepted in the notification of the taking, or

(b)  minerals that were vested in Her Majesty immediately before the taking, not being minerals so vested that:

(i)  are expressly appropriated as such in the notification of the taking, or

(ii)  necessarily must be dug or carried away or used in the construction of the works,

      but any exception referred to in paragraph (a) of this subsection shall be deemed not to include minerals that necessarily must be dug or carried away or used in the construction of the works.

(3)  Subject to subsection (3A), the Governor may, by notification published in the Gazette:

(a)  before payment of compensation for the taking of minerals within the land described in the notification, and

(b)  before any disposition of those minerals, being a disposition made by the Constructing Authority or other person in whom, by or under this or any other Act, they are vested in consequence of the taking,

      declare that minerals taken and within the land so described are divested from the Constructing Authority or, where some other person is specified, that person, and vested in a specified person for a specified estate, subject to all trusts, obligations, estates, interests, contracts, charges, rates and rights-of-way or other easements from which they were freed and discharged upon the taking, other than such of them as may be expressly excepted in the notification, and thereupon those minerals shall be divested and shall vest accordingly.

For the purposes of this subsection and of any notification published thereunder minerals shall not include any minerals that, immediately before the taking, were vested in Her Majesty or any minerals that necessarily must be dug or carried away or used in the construction of the works.

(3A)  Where a resumption application relating to land taken under this Act (whether or not pursuant to the authority conferred by any other Act passed before or after the commencement of this subsection) has been lodged under section 31A (2) of the Real Property Act 1900 with the Registrar-General:

(a)  a notification under subsection (3) published in the Gazette after the commencement of this subsection may not divest from the Constructing Authority, or other person in whom they are vested, the minerals taken and within that land, and

(b)  any transfer of those minerals after that land has been brought under the provisions of the Real Property Act 1900 shall, for the purposes of subsection (5), be deemed, upon its registration under that Act, to vest those minerals under this section in the transferee.

(4)  Upon publication of a notification under subsection (3), the Constructing Authority or other person from whom they are declared by the notification to be divested shall, in respect of minerals vested under that subsection by the notification:

(a)  where the minerals so vested are under the provisions of the Real Property Act 1900, make a request under section 46C of that Act in relation to those minerals and furnish such of the evidence required in connection therewith as may be in his or her possession or under his or her control, or

(b)  where the minerals so vested are not under the provisions of the Real Property Act 1900, forward a copy of the notification of the vesting to the Registrar-General who shall, upon receipt thereof, cause a memorandum of the vesting of those minerals to be prepared and registered in the General Register of Deeds kept under the Registration of Deeds Act 1897 and, for the purposes of that Act, that memorandum shall be deemed to be a registration copy of an instrument duly registered under that Act.

(4A)  A request made by the Constructing Authority or another person in compliance with subsection (4) (a) shall be deemed to have been made by the person entitled so to do under section 46C of the Real Property Act 1900.

(5)  Where, pursuant to a vesting under this section, a person has become entitled to an estate or interest in minerals equivalent to an estate or interest in those minerals converted by section forty-five of this Act into a claim for compensation the person shall, notwithstanding anything contained in this Act, be deemed never to have been entitled to compensation pursuant to that claim.

(6)  For the purposes of this section, where land described in a notification published under subsection three of this section is land that by any Act is declared upon the taking thereof to be vested in Her Majesty as Crown land within the meaning of the Crown Lands Consolidation Act 1913, as amended by subsequent Acts, or land that is reserved under section 25A of that Act, as so amended, the minerals taken and within that land (other than minerals that, immediately before the taking, were vested in Her Majesty and minerals that necessarily must be dug or carried away or used in the construction of the works) shall be deemed never to have been so vested or reserved and sections forty-three and forty-four and subsection one of section forty-five of this Act shall, in the case of minerals so deemed never to have vested, be deemed to have applied to and in respect of those minerals, upon the taking thereof.

(7)  The costs and expenses of making any request or effecting any registration under subsection four of this section shall be borne by the Constructing Authority or the other person referred to in that subsection and no stamp duty shall be chargeable in respect of any such request or any instrument whereby minerals are vested under this section.

(8)  Without limiting the discretion conferred upon the Registrar-General by section 46C of the Real Property Act 1900, the Registrar-General shall not, when creating a folio of the Registrar kept under that Act or making recordings in that Register in respect of minerals pursuant to a request made under subsection (4) (a), be required to make any recordings in that Register, other than:

(a)  such recordings as may, in the Registrar-General’s opinion, be necessary with respect to the vesting of the minerals in the person and for the estate specified, in the notification of the vesting of those minerals, as the person in whom, and the estate for which, they were thereby vested, and

(b)  any recordings relating to the land described in the notification, being recordings that appeared in that Register immediately before the taking of that land, other than recordings relating only to estates or interests excepted in the notification.

(9)  Nothing in this section shall be construed as affecting the provisions of sections one hundred and forty-two to one hundred and forty-nine, both inclusive, of this Act.

(10)  In this section, a reference to a notification of the taking of land includes a reference to an acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991.

142   Working of mines on or near authorised work

(1)  If the owner, lessee, or occupier of any mines or minerals lying under any authorised work or any work connected therewith, or within 40 metres from the boundary thereof, is desirous of working the same, such owner, lessee, or occupier shall give to the Constructing Authority notice in writing of his or her intention so to do, thirty days before the commencement of working.

(2)  Upon the receipt of such notice, the Constructing Authority may cause such mines to be inspected by any person appointed by the Constructing Authority for the purpose.

(3)  If it appears to the Constructing Authority that the working of such mines or minerals is likely to damage the authorised work, and if the Constructing Authority is willing to make compensation for such mines or any part thereof to the owner, lessee, or occupier, then such owner, lessee, or occupier shall not work or get such minerals.

(4)  If the Constructing Authority and such owner, lessee, or occupier do not agree as to the amount of such compensation, the same shall be settled as in other cases of disputed compensation as provided in the Land Acquisition (Just Terms Compensation) Act 1991.

143   If Constructing Authority unwilling to purchase, owner may work the mines

(1)  If before the expiration of such thirty days the Constructing Authority does not state the Constructing Authority’s willingness to treat with the owner, lessee, or occupier for the payment of such compensation, such owner, lessee, or occupier may work the said mines or any part thereof for which the Constructing Authority has not agreed to give compensation.

Provided that such work shall be done in a manner proper and necessary for the beneficial working of the mine, and according to the usual manner of working such mines in the district where the same are situate.

(2)  If any damage or obstruction is occasioned to the authorised work by improper working of such mines, the same shall be forthwith repaired or removed, as the case may require, and such damage made good by the owner, lessee, or occupier of such mines or minerals and at his or her own expense.

(3)  If such repair or removal is not forthwith carried out by such owner, lessee, or occupier, or, if the Constructing Authority thinks fit, without waiting for the same to be so carried out, the Constructing Authority may carry out the same and recover from such owner, lessee, or occupier the expense occasioned thereby by proceedings in the Court.

144   Mining communications

(1)  If the working of any such mines under the authorised work or within the abovementioned distance therefrom is prevented as aforesaid, by reason of apprehended injury to such authorised work, the respective owners, lessees, and occupiers of such mines and whose mines extend so as to lie on both sides of the authorised work may cut and make so many airways, headways, gateways, or water-levels through the mines, measures, or strata, the working whereof is so prevented, as may be requisite to enable them to ventilate, drain, and work their said mines.

(2)  No such airway, headway, gateway, or water-level shall be of greater dimensions or section than the prescribed dimensions and sections, and where no dimensions are prescribed, not greater than 2.5 metres wide and 2.5 metres high, or of such a nature as to injure or to impede the passage on, to, through or over the same.

145   Constructing Authority to make compensation for injury done to mines

(1)  The Constructing Authority shall from time to time pay the owner, lessee, or occupier of any such mines, lying on both sides of the authorised work:

(a)  all such additional expenses and losses as such owner, lessee, or occupier incurs by reason of the severance of the lands lying over such mines by the authorised work, or of the continuous working of such mines being interrupted as aforesaid, or by reason of the same being worked in such manner and under such restrictions, as not to prejudice or injure the railway, and

(b)  for any minerals not taken or purchased by the Constructing Authority which cannot be obtained by reason of making or constructing and maintaining the authorised work.

(2)  If any dispute or question arises between the Constructing Authority and such owner, lessee, or occupier as aforesaid, touching the amount of such losses or expenses, the same shall be settled by arbitration as hereinbefore mentioned.

146   Constructing Authority to make compensation for any airway or other work made necessary by the railway

If any loss or damage is sustained by the owner or occupier of the lands lying over any such mines, the working whereof has been so prevented as aforesaid, by reason of the making of any such airway or other work as aforesaid, which or any like work would not have been necessary to be made but for the working of such mines having been so prevented as aforesaid, the Constructing Authority shall make full compensation to such owner or occupier for the loss or damage so sustained by the owner or occupier, if the owner or occupier is not also the owner, lessee, or occupier of any mine under such lands in connection with which such airway or other work has been made.

147   Power to Constructing Authority to enter and inspect the working of mines

For better ascertaining whether any such mines are being worked or have been worked so as to damage the authorised work, the Constructing Authority, after giving twenty-four hours’ notice in writing, may enter upon any lands, through, in, on or near which the authorised work is constructed, and wherein any such mines are being worked or are supposed so to be, and may enter into and return from any such mines or the works connected therewith. For that purpose the Constructing Authority may make use of any apparatus or machinery belonging to the owner, lessee, or occupier of such mines, and may use all necessary means for discovering the distance from authorised work to the parts of such mines which are being worked or about so to be.

148   Penalty

If any such owner, lessee, or occupier of any such mine refuses to allow any person, appointed by the Constructing Authority for that purpose, to enter into and inspect any such mines or works in manner aforesaid, every person so offending shall for every such refusal forfeit to the Constructing Authority a sum not exceeding 0.5 penalty unit.

149   Mines worked contrary to this Act

(1)  If it appears that any such mines have been worked contrary to the provisions of this Act, or any Act hereby repealed, the Constructing Authority may give notice to the owner, lessee, or occupier thereof to construct such works and to adopt such means as may be necessary or proper for making safe the authorised work and preventing injury thereto.

(2)  If, after such notice, any such owner, lessee, or occupier does not forthwith proceed to construct the works necessary for making safe such authorised work, the Constructing Authority may construct such works and recover the expense thereof from such owner, lessee, or occupier by proceedings in the Court.