The Real Property Act 1900 expressly defines land as including mines, minerals and quarries unless specially excepted.
The Mining Act 1992 defines mineral as meaning - "any substance prescribed by the regulations as a mineral for the purpose of this definition, and includes coal and oil shale, but does not include petroleum".
Introduction
The criteria for the reservation of minerals has evolved over the years since the establishment of European settlement in New South Wales.
Reservation of minerals from Crown Grants issued before 1820 was rare, with the earliest reservations being for mines of gold or of gold and silver. The first express authority for reservations of minerals was issued on 21 August 1828 and directed that all mines of gold, silver and coal be reserved from Crown Grants. Reference to gold and silver was dropped in Grants issued between 1844 and 1850. Reservations of coal were rescinded retrospectively by notice of Gazettal on 24 January 1850 from all grants of land that were outside a city, town or village.
Subsequent legislative amendments in 1861 and 1884 allowed for the reservation of all minerals. The later amendment originally listed 15 substances as minerals. Since that time proclamations in the Government Gazette have added considerably to the original list of minerals. All coal was vested in the Crown on 1 January 1982. Further changes in respect of coal occurred in 1990 and 1997.
Legislation affecting minerals
Aboriginal Land Rights Act 1983
Section 45(2) Aboriginal Land Rights Act 1983 provides that a transfer to (or other vesting in) an Aboriginal Land Council includes the transfer of the mineral resources or other natural resources contained in those lands. The Act does not apply to the rights of the Crown with respect to gold mines, silver mines, or the Crown's ownership of coal, petroleum or uranium, see Section 45(11).
Coal Acquisition Act 1981 and Coal Ownership (Restitution) Act 1990
From 1 January 1982 the Coal Acquisition Act 1981 vested all coal in the Crown. Coal, as defined in the Act, includes 'oil shale' but does not include 'shale'.
On 14 November 1997, Sections 5A and 5B were included in the Coal Acquisition Act 1981 to enable the Crown to regain coal which was granted under the Coal Ownership (Restitution) Act 1990. Section 5A Coal Acquisition Act 1981 (now repealed) operated to revest coal ownership in the State of New South Wales (Crown), freed from all other interests. That section expired on 31 December 1998. For revesting to take place, the Governor had to proclaim the revesting by publication of a notice in the Government Gazette.
A Request form 11R together with a copy of the Gazette notice was then required to be lodged in NSW LRS. Compensation for losses arising from a revesting of coal may be claimed pursuant to Section 6 Coal Acquisition Act 1981. Section 5B Coal Acquisition Act 1981 provided for the Minister to acquire coal on behalf of the Crown by transfer or other arrangements.
See further information on deposited plans for coal definition, which are plans lodged specifically to create a Torrens Title for coal ownership pursuant to the Coal Ownership (Restitution) Act 1990.
See also Minerals and coal for further information.
Petroleum (Onshore) Act 1991
Part 2, Section 6 Petroleum (Onshore) Act 1991 provides that all petroleum, helium and carbon dioxide existing in a natural state on or below the surface of any land is the property of the Crown regardless of when the Crown Grant was made.
Titles to minerals and mining rights
Unless there has been a prior reservation or exception of minerals by statute, Crown Grant, instrument or resumption, an owner has title to the minerals and may transfer, lease or mortgage them separately from the land. A separate title in the Torrens Register may be created for the minerals. The new title will clearly indicate the nature of the ownership:
Fee Simple in the Minerals ...
or
Fee Simple in the Minerals Rutile and Zircon only ...
or
Leasehold in Minerals and Coal only
A request to issue a residue title for minerals, especially where the residue is extensive or of a complicated nature, must fully describe the land affected. Intensive investigation will not be undertaken by NSW LRS where the description seems to be insufficient. If the land containing the minerals cannot be adequately defined it may be necessary to lodge a deposited plan depicting the affected parcels.
A folio of the Register for minerals must encompass as large an area as possible. The standard NSW LRS policy of creating a separate folio of the Register for each parcel does not apply to mineral titles.
Easements affecting mineral titles
An easement recorded on a title affects both the land and the minerals as regards the site of the easement. If the easement is restricted in stratum, the minerals will only be affected by the easement within that stratum.
Minerals under resumed land
Where land was resumed under the Public Works Act 1912 or the Local Government Act 1919, on or after 30 October 1967, the acquiring authority was entitled to all minerals within the land resumed other than minerals expressly excepted from the resumption see Section 141(2) Public Works Act 1912.
Prior to 30 October 1967 when land was resumed under these Acts, minerals were excluded from the resumption unless expressly included in the Gazette notice.
Holt Sutherland Company
All original transfers from the Holt Sutherland Company that excepted minerals also granted rights to mine.
Subdivision of a minerals title
A deposited plan must be lodged defining as lots the new minerals parcels. The plan should be prepared to comply with the following:
- the heading of the plan should refer to 'Subdivision of minerals comprised in CT........... '
- no Subdivision Certificate will be required
- the new lot must mirror the current subdivision pattern of the land
- any residue of the minerals title must be shown as a single lot in the plan,
NOTE: The folio for the minerals may be consolidated with the folio for land by the lodgment of a suitable Request form 11R together with the prescribed fees. The boundaries of each title must be co-incident.
Minerals under roads
See also Roads - Minerals under roads page.
Ad Medium Filum Viae and minerals
Since 1 January 1920, the ad medium filum viae rule is rebutted except as to minerals, where the fee simple of the public road is vested in the council (Sections 145 and 146(1) Roads Act 1993). Claims ad medium filum viae may succeed in respect of minerals under a road that has not been reserved to the Crown.
Stratum subdivision for mineral purposes
Horizontal division of land into strata, to enable subsoil containing the minerals to be in different ownership to the surface and airspace above it, is common in mining areas. It should be clearly understood that in these cases the substrata incorporate the land and the minerals, not the minerals alone. The division (especially in earlier cases) is often stated to be at a point '20.115 metres below the surface' rather than a specific Reduced Level AHD. Where it is proposed to create a folio of the Register for minerals or sub-strata, a departmental deposited plan will be prepared to create an identity separate to the surface parcel of that land. Prescribed fees are payable for the preparation and supply of the plan. The new title will issue in terms of:
"Fee Simple in Substrata"