Not quite The Castle: why miners have a right to what’s under your land

Farmers have been shocked to find coal seam exploration companies can enter their property. kateausburn

All over Australia, landowners are fighting to keep mining companies off their property.

From the Darling Downs to the Liverpool Plains, farmers have been locking out coal seam gas extraction companies. In Victoria, exploratory licences have been granted to the Queensland based mining company, Mantle Mining Pty Ltd, to investigate private land situated in and around the rural Victorian areas of Bacchus Marsh, Darley, Myrniong and Ballan.

Landowners are worried about the effects that exploratory drilling may have upon their the land as well as the possibility that an open cut coal mine may be developed.

Who owns the minerals under your land?

This article looks primarily at Victorian legislation covering mining and property rights. However, similar legislation exists in most other states.

Originally, the common law position was that the minerals belonged to the landowner: they were regarded as an inherent product of the land itself. The common law assumed that the person who owned the land owned not only the surface of the earth, but also the space above that surface and the soil below that surface.

Under common law, landowners owned sub-surface minerals and could prevent anyone from excavating them; doing so would constitute a trespass. The only qualification was the right of the Crown to extract gold and silver, characterised by the common law as “royal minerals”.

This common law position was, however, significantly circumscribed when specific legislation vested the ownership of minerals contained within the soil of private landholdings in the Crown.

In Victoria, the Mines Resource (Sustainable Development) Act 1990 (Vic) states that the Crown owns all minerals (with a few small exemptions). Similar provisions exist in other states.

The statutory definition of minerals is very broad, stating that minerals are “any substance which occurs naturally as part of the earth’s crust” including oil shale and coal, hydro-carbons and mineral oils contained in oil shale or coal or extracted from oil shale or coal by chemical or industrial process. Water, stone, peat or petroleum are not “minerals” in this definition.

This statutory vesting means private landowners no longer control the minerals in their sub-surface soil, even though they continue to own the land itself. As owner of the minerals, the Crown is legally entitled to grant exploratory or mining licences to mining companies, allowing companies to explore for or extract sub-surface minerals. The effect of this process upon private landholdings is often devastating.

Is there any protection for landowners or the environment?

The Mines Resource (Sustainable Development) Act 1990 (Vic), which replaced the previous Mines Act 1958 (Vic), attempts to balance the competing rights of private landowners and mining licensees. Licensees have to comply with a range of regulatory requirements when applying for an exploratory or mining licence. The Act also outlines a range of circumstances where land exemptions or excisions can be sought.

The law doesn’t favour landholders opposed to mining. AAP