Australian mining law
Australia mining law governs the exploration and extraction of mineral
A mineral is a naturally occurring solid chemical substance formed through biogeochemical processes, having characteristic chemical composition, highly ordered atomic structure, and specific physical properties. By comparison, a rock is an aggregate of minerals and/or mineraloids and does not...

s and petroleum
Petroleum or crude oil is a naturally occurring, flammable liquid consisting of a complex mixture of hydrocarbons of various molecular weights and other liquid organic compounds, that are found in geologic formations beneath the Earth's surface. Petroleum is recovered mostly through oil drilling...

 in Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

. It differs substantially from the mining laws of other common law countries, the most important differences arising from the policy decision that the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

 should own all minerals.

History of mining law

The first Australian mining laws were enacted in 1851. Before that, ownership of minerals and petroleum passed to those who were granted title to land by the colonial governors
Governors of the Australian states
The Governors of the Australian states are the representatives of the Queen of Australia in each of that country's six states. The Governors perform the same constitutional and ceremonial functions at the state level as does the Governor-General of Australia at the national level...

 according to common law concepts, except the right to "Royal Mines" (the precious metals of gold
Gold is a chemical element with the symbol Au and an atomic number of 79. Gold is a dense, soft, shiny, malleable and ductile metal. Pure gold has a bright yellow color and luster traditionally considered attractive, which it maintains without oxidizing in air or water. Chemically, gold is a...

 and silver
Silver is a metallic chemical element with the chemical symbol Ag and atomic number 47. A soft, white, lustrous transition metal, it has the highest electrical conductivity of any element and the highest thermal conductivity of any metal...

) which remained vested in the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

 by virtue of Royal prerogative
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...

. From 1855, colonial parliaments legislated for ownership of minerals to be retained by the Crown in future grants of freehold title. Thus, the situation developed where throughout Australia, the Crown in right of the State owns nearly all the minerals.


In relation to minerals situated within State boundaries, prima facie, the power to legislate for minerals remains with the States. However, despite the fact that the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...

 does not list minerals as an area over which the Federal Parliament has jurisdiction, a number of the Commonwealth Parliament’s powers encompass matters relevant to mining operations and any legislation of the Commonwealth based upon these powers will override any inconsistent State legislation. As to Commonwealth jurisdiction over the Territories, the constitutional limitations regarding mining operations conducted within the States have no application in the Northern Territory, or other Australian territories.

Each of the States and Territories has its own legislation regulating the exploration for and production of onshore minerals. The Commonwealth has no onshore mining legislation which is applicable in the States or Territories.

As to offshore minerals, the Commonwealth has sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

 in respect of the territorial sea, and sovereign rights in respect of both the continental shelf
Continental shelf
The continental shelf is the extended perimeter of each continent and associated coastal plain. Much of the shelf was exposed during glacial periods, but is now submerged under relatively shallow seas and gulfs, and was similarly submerged during other interglacial periods. The continental margin,...

 and the exclusive economic zone
Exclusive Economic Zone
Under the law of the sea, an exclusive economic zone is a seazone over which a state has special rights over the exploration and use of marine resources, including production of energy from water and wind. It stretches from the seaward edge of the state's territorial sea out to 200 nautical...

 for the purpose of exploitation of their natural resources. Thus, the sovereignty over minerals of the States and the Northern Territory extends only to the low-water mark and it is the Commonwealth which is entitled under international law to exercise sovereignty over minerals under the territorial sea, within the exclusive economic zone and on the continental shelf. However, following an agreement negotiated between the Commonwealth Government and the States in 1979, the Commonwealth conferred power on the States and the Northern Territory to make laws for matters including mining operations in respect of the coastal waters and granted them proprietary rights to the seabed.

In addition, the Corporations Act 2001 and the Australian Stock Exchange
Australian Stock Exchange
The Australian Securities Exchange was created by the merger of the Australian Stock Exchange and the Sydney Futures Exchange in July 2006. It is the primary stock exchange group in Australia....

 Listing Rules contain special provisions governing the conduct and reporting requirements of mining companies.

Ownership of minerals

According to the maxim "to whomsoever the soil belongs, he owns also to the sky and to the depths
Cuius est solum eius est usque ad coelum et ad inferos
Cuius est solum, eius est usque ad coelum et ad inferos often appearing in the shorter form Cuius est solum eius est usque ad coelum, omitting et ad inferos "and to hell", is a principle of property law, stating that property holders have rights not only to the plot...

", there is a presumption that a land owner also owns all minerals on or beneath the surface of that land. The presumption is subject to the exception of the Royal metals. As early as the sixteenth century, the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 has held that all gold and silver, whether situated on public or private land, has been owned by the Crown. This Royal prerogative has also been applied in Australia, by both common law and legislation.

However, the principle of the owner of land owning the minerals within it has been virtually abolished by statute in Australia. The general rule is that the Crown (in right of the State) owns all minerals. This has been implemented by statute; initially by enacting that all future grants of land must contain a reservation to the Crown of all minerals. Now, all new grants of freehold titles in Australia have provided that all minerals were reserved to the Crown.

In respect of titles granted prior to the legislation, the owner of the land retained ownership of the minerals (except the Royal metals of gold and silver). That owner may grant a profit à prendre to enter and take minerals.

Crown ownership of minerals has been made universal in Victoria and South Australia by legislative expropriation of all minerals. In Tasmania and New South Wales, this approach of legislative expropriation has been applied on a selective basis (in Tasmania, for gold, silver, oil, hydrogen, helium and atomic substances, and, in New South Wales, for coal). The Crown, pursuant to statute, may grant various leases or licences to enter onto land and take minerals.

State ownership of minerals has had the important result that governments, rather than private landholders, determine the legal regimes governing mineral exploration and production.

Ratified agreements

Large mining operations are likely to be regulated by a ratified agreement, sometimes also called a "state agreement", an "agreement act", a "government agreement" or a "special agreement act". The basis of such an agreement is that the State contracts with the miner in the form of a written agreement which is ratified by a statute of that State or Territory Parliament. This ratification ensures that its provisions override any inconsistent provisions under the general mining legislation or any other statutes of that State or Territory.

Further reading

  • Michael W. Hunt, Mining Law in Western Australia, Third edition (Leichhardt: The Federation Press, 2001).
  • Anne M. Fitzgerald, Mining Agreements: Negotiated Frameworks in the Australian Minerals Sector (Chatswood: Prospect Media, 2002). This book can be downloaded (pdf) from QUT's ePrints repository at It is published under a Creative Commons Australia version 3.0 Attribution-Non-Commercial-No Derivatives license (see
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