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Informed Verbal Consent for Low Impact Exploration

Informed Verbal Consent for Low Impact Exploration on Private Land under the Mineral Resources (Sustainable Development) Act 1990 (the Act).

The purpose of this guideline is to inform holders of retention licences and exploration licences about the obtaining of informed verbal consent in relation to low impact exploration (as defined under the Act on private land.

The attached Handout may be provided to land owners/ occupiers for the purpose of obtaining informed verbal consent.

Background

The holder of a licence may not carry out any work on the land covered by the licence unless various matters are satisfied, including that consent has been obtained from any relevant private land owners and occupiers (see sections 42 and 43 of the Act).

Under the Act, consent to undertake work under a licence (whether for exploration or mining activities) must be in writing. However, as of 1 February 2012, an exception will apply for low impact exploration on private land under an exploration or retention licence. For low impact exploration, the licensee must obtain either written consent or informed verbal consent of the owners and occupiers of the land affected (section 43(1)(ea) of the Act).

The ‘land affected’ means land to which entry is required during the work and includes the surface of the land and the land to a depth of 100 metres (section 4 of the Act).

Under the Act, low impact exploration is limited to work that does not involve:

  • use of excavation equipment (other than non-mechanical hand tools);
  • use of explosives;
  • removal or damage to trees or shrubs;
  • disturbance to Aboriginal heritage; or
  • disturbance to any archaeological site or relic (see section 4 of the Act).

As such, low impact exploration typically includes exploration activity such as geological surveys and mapping, small-scale soil and rock sampling and most geophysical surveys.

“Informed verbal consent”

Informed verbal consent is not defined in the Act. However, the purpose of requiring informed verbal consent is that landowners and occupiers will be aware of their rights and choices, before deciding whether or not to give informed verbal consent to low impact exploration. As such, the department expects that licensees seeking informed verbal consent will provide the following information to landowners and occupiers:

  • That exploration work (including low impact exploration) can only be undertaken on private land with their consent, or alternatively, if the licensee has made written, signed and registered compensation agreements with any relevant landowners and occupiers.
  • That landowners and occupiers electing to consent to low impact exploration may choose to do so either in writing or verbally. The holder of an exploration licence cannot require a landholder to give consent verbally, even for low impact exploration.
  • The nature, extent, duration and potential impacts of the proposed low impact exploration on their land. .
  • As the Crown owns the minerals, landowners and occupiers do not have the absolute power to control access to their land for exploration.
    • If consent is not given or a compensation agreement is not reached, then compensation can be determined.
    • This involves the owner, occupier or licensee applying to the Victorian Civil and Administrative Tribunal (VCAT) for determination of a disputed claim under the Land Acquisition and Compensation Act 1986. (For claims over $50 000, claims may be determined by the Supreme Court.) (section 88(1) of the Act).
    • A party may only have their claim determined by VCAT or the Supreme Court if it can satisfy the relevant Tribunal or Court that the party has attempted to settle the claim by conciliation but has been unable to do so because the other party has refused to negotiate or the parties are unable to agree (section 88(2) of the Act).
    • Once compensation has been determined by VCAT (or the Supreme Court) exploration may be undertaken on their land.
    • Licensees and landowners / occupiers are encouraged to negotiate agreement in relation to consent or compensation wherever possible. Involvement by VCAT or the Supreme Court should only be as a last resort.
  • That compensation is payable for loss or damage that has been or will be sustained as a result of the low impact exploration work. Compensation is not payable for the value of any minerals found on private land.

Informing the Landowner or Occupier - handout attached

The attached handout can be provided to landowners and occupiers to inform them of important matters relating to giving verbal consent. The relevant licensee may choose alternative means to ensure the landowner or occupier is properly informed for the purpose of providing verbal consent.

Attachment: Handout for Landowners and Occupiers

Section 43(1)(ea) of the Mineral Resources (Sustainable Development) Act 1990 (the Act).

This document can be provided to the landowner or occupier of private land for the purposes of informed verbal consent to undertake low impact exploration (section 43(1)(ea) of the Act).

This document does not constitute legal advice. If a landowner or occupier is uncertain about his or her rights and obligations they may choose to contact the Earth Resources Division for additional information and/or seek independent legal advice.

<Insert Full Name of Licence Holder>

<Insert Address of Licence Holder>

(the Licensee), is the holder of a <retention/ exploration> licence under the Act that applies to:

<Insert short description of the area of land covered by the licence (size and location)>

The Licensee understands that you are the owner and/or occupier of private land covered by the licence area.

The Licensee proposes to undertake low impact exploration work under the licence. The proposed works are as follows:

<Insert brief description of the nature, extent, duration and potential impacts of the proposed low impact exploration on the landowner’s/occupier’s land>

Under the Act, the Licensee must first obtain your consent, as the owner / occupier of the affected land, or alternatively, enter into a compensation agreement with you. A compensation agreement must be written, signed and registered with the Mining Registrar.

Where the exploration is low impact exploration* (as defined under section 4 of the Act), as the landowner / occupier, you can choose whether or not you give consent in writing or verbally (verbal consent must be ‘informed verbal consent’). The Licensee cannot require you to give consent verbally. This handout is intended to provide relevant information to you about the effect of giving verbal consent to undertake low impact exploration activities. For any work other than low impact exploration, the Act requires that consent must be in writing, or alternatively a compensation agreement with you entered into.

However as the Crown owns the minerals, you do not have absolute power to control access to your land for the exploration activities.

If you do not give consent to the Licensee to access your land, or a compensation agreement is not reached between you and the Licensee, compensation can be determined by the Victorian Civil and Administrative Tribunal (VCAT). This involves the owner, occupier or Licensee applying to VCAT for determination of a disputed claim under the Land Acquisition and Compensation Act 1986. (For claims over $50 000, claims may be determined by the Supreme Court.)

The matter cannot be determined by the Tribunal or Court unless the applicant can provide evidence to satisfy the Tribunal or Court that the applicant has attempted to settle the matter by conciliation but has been unable to do so because the other party has refused to negotiate a settlement or because both parties are unable to agree.

Once compensation has been determined by VCAT (or the Supreme Court) exploration may be undertaken on the relevant land.

Licensees and landowners / occupiers are encouraged to negotiate agreement in relation to consent or compensation wherever possible. Involvement by VCAT or the Supreme Court should only be as a last resort

Note, regardless of whether the consent is written or verbal, compensation is payable to you by the Licensee for any loss or damage that has been or will be sustained as a result of the low impact exploration work. Compensation is not payable for the value of any minerals found on private land.

*Under the Act, low impact exploration is limited to work that does not involve:

  • use of excavation equipment (other than non-mechanical hand tools);
  • use of explosives;
  • removal or damage to trees or shrubs;
  • disturbance to Aboriginal heritage; or
  • disturbance to any archaeological site or relic (see section 4 of the Act).

As such low impact exploration typically includes exploration activity such as geological surveys and mapping, small-scale soil and rock sampling and most geophysical surveys.

 

If you would like to receive this information/publication in an accessible format (such as large print or audio) please call the Customer Service Centre on 136 186, TTY 1800 122 969

Published by the Department of Economic Development, Jobs, Transport and Resources, Earth Resources Development Division, February 2012

© The State of Victoria 2012

This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.
Authorised by the Department of Economic Development, Jobs, Transport and Resources - Earth Resources.


ISBN 978-1-74326-069-2 (online)

Disclaimer

This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss or other consequence which may arise from you relying on any information in this publication.

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