Agreeing access to private land

The best way to resolve disputes is to try to avoid them in the first place. Remember - a dispute is in no one’s best interest.

Having everything agreed in writing should help ensure a shared understanding between a landholder and an explorer. However, there are no guarantees.

If you disagree on something there are simple steps you can take to give a signed Commercial Consent Agreement for Access to Private Land in Victoria (Agreement) the best chance of success - and avoid a dispute.

Simple steps to resolve a dispute:

• All parties should act in good faith and regularly communicate with each other.
• You should act honestly and fairly.
• You shouldn’t do anything to limit the other party’s rights and obligations under the Agreement.
• You should try to talk to the other party and resolve it between yourselves.

Consider seeking professional assistance

Seek professional assistance to help settle your dispute – such as from your lawyer, accountant or land access advisor

Mining Warden and Victorian Small Business Commission

If you can't resolve a dispute between yourselves, you can seek help from an independent dispute resolution service.

The Mining Warden and the Victorian Small Business Commission can try to settle your dispute through Alternative Dispute Resolution (ADR).

ADR uses preliminary assistance and mediation to help resolve your dispute.

Preliminary assistance involves talking to the independent body about the dispute. The independent body will provide information and assistance to help you resolve the matter.

Mediation is a confidential process using a trained, independent, mediator. The mediator won’t make a decision for you. Rather, the mediator will help both parties reach their own, mutually beneficial, decision.

If ADR is unsuccessful, either party may take the dispute to the Victorian Civil and Administrative Tribunal (VCAT).

Mining Warden

The Mining Warden provides a dispute resolution service for landholders and explorers.

Phone: +61 3 8622 7613
Website: Victorian Mining Warden

Victorian Small Business Commission

The Victorian Small Business Commission provides a dispute resolution service for disputes between a landholder who is a small business or a farmer and an explorer.

Phone: 13 87 22
Website: Victorian Small Business Commission

Victorian Civil and Administrative Tribunal (VCAT)

VCAT is a tribunal that hears and decides civil and administrative legal cases in the State of Victoria. If the Mining Warden or Victorian Small Business Commission does not resolve your dispute, you can apply to VCAT to help resolve it.

Phone: 1300 018 228
Website: Victorian Civil and Administrative Tribunal (VCAT)

Access information about the Stavely Ground Release, including:

• details of explorers
• licensing process
• engaging with landholders and local communities

Access information about exploration, including:

• what exploration involves
• how minerals exploration is regulated
• land access and compensation

Earth Resources Regulator

Earth Resources Regulator is Victoria’s resources and mining industry regulator.

A signed Commercial Consent Agreement for Access to Private Land in Victoria - which includes compensation - should be lodged with Earth Resources Regulator.

Contact Earth Resources Regulator

Phone: 1300 366 356

• The voluntary Agreement can be used for setting the conditions for mineral explorers to access private land.
• The Agreement and supporting information is for landholders, occupiers and explorers. You are encouraged to tailor the Agreement to your particular circumstances.
• This is a pilot project for exploration activities for the Stavely Ground Release in western Victoria.
• If you’re not involved in exploration activities at Stavely, you can still use this material.

• An exploration licence grants exclusive rights to the licensee to explore for minerals in a specified area. This includes rights to explore on private property.
• Mining is not permitted under an exploration licence.
• In general, an exploration licence is valid for five years.
• Explorers must adhere to the Minerals Resources (Sustainable Development) Act 1990 (MRSDA) and all other relevant laws. This includes any special conditions imposed by the Mining Registrar at Earth Resources Regulator

• No. Exploration rarely leads to mining and discoveries are rare.
• If viable resources are found, an explorer must apply for a separate mining licence and various approvals before any mining can begin. In some cases, an Environment Effects Statement (EES) may be required by the Minister for Planning.
• The applicant must also consult with the community throughout the life of the mining licence.
• The average time between discovery and production is about 12 years.

Exploration can involve a range of activities, including:

• office-based research into geographic data
• surface sampling of rock, soil and plants
• testing using sound or radio waves from the air or the ground
• physical surveying.

• An explorer must ensure its operations minimise interference with other activities on the land.
• If landholders and occupiers are adversely impacted, they have the right to be compensated by the explorer. A written consent or a compensation agreement (such as the Agreement) must be put in place between the parties.

• An explorer must obtain the informed verbal consent or written consent of a landholder and/or occupier before commencing exploration work.
• The Agreement can be used for written consent.
• The MRSDA allows access to land for exploration with the consent of the landholder and/or occupier, including compensation, if applicable.

• Informed verbal consent is consent negotiated between a landholder and explorer that does not involve a written agreement.
• Informed verbal consent is only permitted when exploration does not involve:
  • the use of equipment (other than non-mechanical hand tools) to excavate the land
  • the use of explosives or
  • removing or damaging any tree or shrub.
• Informed verbal consent can be used for activities such as geological surveys, mapping, and small-scale soil and rock chip sampling.

• The MRSDA allows access to land for exploration with the consent of the landholder and/or occupier, including compensation, if applicable.
• The parties are encouraged to negotiate land access and any compensation between yourselves, and/or your independent advisers.
• The Agreement aims to establish a fair and reasonable agreement to facilitate land access and mineral exploration, and any applicable compensation.
• Either party can apply to the Victorian Civil and Administrative Tribunal (VCAT) in relation to compensation. The initiating party must demonstrate its attempt to have resolved the matter with the other party. This includes using Alternative Dispute Resolution (ADR), such as mediation.
• VCAT cannot deny an explorer access to private property. Rather, VCAT can determine the compensation the landholder and/or occupier will receive.
• If VCAT determines an amount of compensation, the explorer gains access to the land.

• Communication between the landholder and explorer should be ongoing to accommodate any unforeseen circumstances.
• Once a landholder and/or occupier has given consent, it cannot be withdrawn.
• For this reason, it’s important to ensure that an agreement, including the Agreement, meets the needs of both parties, for the term of the exploration licence (usually five years).

• No. The use of this Agreement is voluntary. The parties may use another agreement.
• Explorers often have their own model agreements, which they may want to use.
• The model Agreement outlines what items should be considered when negotiating a written agreement with an explorer.

Yes. The parties are free to modify or amend the Agreement to suit their needs. However, they should ensure any agreement contains the full description of the land as shown on the Certificate of Title (including Crown Allotment/Lot numbers/Subdivisions, Section Numbers, Parish, County) to ensure the agreement can be registered in the Mining Register.

• The model Agreement includes provision for both monetary or in-kind compensation.
• Landholders and/or occupiers may seek independent advice when negotiating an Agreement with an explorer, including determining any compensation.
• A signed Agreement which includes compensation should be lodged for registration with the Mining Registrar at Earth Resources Regulator.

• The Victorian Government acknowledges the role Traditional Owner groups play in the management of Victoria’s earth resources. An Agreement between the parties does not affect the obligations explorers have in relation to Aboriginal cultural heritage or native title.
• Under the Aboriginal Heritage Act 2006, exploration licensees must prepare a Cultural Heritage Management Plan for any areas of cultural heritage sensitivity. This requirement must be satisfied before any work can occur.
• Earth Resources Regulator will not grant a licence on Crown land until the requirements under the Native Title Act 1993 and/or the Traditional Owner Settlement Act 2010 are satisfied.

• Compensation should be paid for any loss or damage to the land as a consequence of the explorer’s activities.
• Compensation is not paid for any minerals found on the property. Minerals are the property of the Crown, which owns the minerals on behalf of all Victorians.
• Compensation is not a prerequisite for consent to access the land.
• A landholder and/or occupier can provide consent without receiving compensation.

• All parties may seek independent advice when negotiating access, as well as the appropriate amount (or formula to determine the level) of any compensation.
• An explorer should pay for the reasonable professional costs for negotiating the Agreement and the reasonable costs of determining any compensation.

• All parties should act in good faith and regularly communicate with each other.
• Open and honest communication is the best way to avoid a dispute. If a dispute arises, you should try to resolve it between yourselves.
• If you cannot resolve a dispute between yourselves, either party can refer it to one of the following independent bodies for Alternative Dispute Resolution (ADR), including mediation:
  • Mining Warden
  • Victorian Small Business Commission