Explorer FAQs

Access to land for exploration can only occur once a land access arrangement has been negotiated with each landholder. Until then, an explorer cannot carry out any on-ground exploration.

The duration of access is set by a land access arrangement. Generally, access arrangements are made for the duration of the planned exploration work.

Initially, reference should be made to the land access arrangement to ascertain if there is a dispute resolution mechanism that must be followed to resolve any disagreements between the parties including how a provision is to be interpreted or the terms of the land access arrangement can be varier to accommodate changed circumstances.

If an explorer contravenes the provisions of a land access arrangement, the landholder may, subject to the terms of the land access arrangement, deny access to the land until the title holder ceases the contravention. 

A landholder or explorer can apply to the Secretary of the Department to appoint an arbitrator to deal with a contravention. In these cases, the Secretary will make the appointment within 48 hours of being requested to do so, and the arbitrator will deal with the matter within 5 business days of the appointment. The landholder may deny access until the arbitrator determines the matter. 
Access must be reinstated once the contravention is remedied to the reasonable satisfaction of, or as directed by, the appointed arbitrator.​​​​​

Under the Mining Act 1992, existing land access arrangements may be renewed:

• in accordance with details in the existing access arrangement,
• by agreement between the parties, and
• by an arbitrator (in all situations) or the Land and Environment Court (if the existing arrangement was determined by an arbitrator or court).

A landholder is entitled to compensation for any ‘compensable loss’ incurred, or likely to be incurred as a result of a title holder exercising their rights, or as set out in a land access arrangement. 
The parties negotiating a land access arrangement are free to approach and structure compensation as they see fit.

Explorers must follow the requirements set out in relevant legislation, including the Mining Act 1992 and the Petroleum (Onshore) Act 1991, depending on the resource they are exploring for. 
Land access must comply with the requirements in:​​​​​​

• relevant regulations including the Mining Regulation 2016 and the Petroleum (Onshore) Regulation 2016
• any relevant codes​​​
• title conditions
• the land access arrangements agreed in writing with the landholder(s).

Landholders and explorers are required under legislation to act in good faith throughout this process. Where parties can’t reach agreement through negotiation, the Land Access Framework sets out a clear pathway to help landholders and explorers agree on the terms and conditions for access to land. 

The Land Access Framework provides that an explorer can make applications to the Secretary of the department for the appointment of an arbitrator who has power to determine the terms of a land access arrangement that is binding on the explorer and the landholder. Prior to making and application for appointment of an arbitrator (made by TMS or Form AD1 (DOCX, 114.53 KB)) the explorer must issue written notices to the landholder in accordance with the Mining Act 1992. A landholder cannot ignore or dismiss a valid written notice of intent.

The Land Access Arbitration Procedure (PDF, 2.18 MB) provides more information on the Land Access Framework, mediation and arbitration.

Yes, the landholder and the explorer must negotiate a land access arrangement in good faith under the Mining Act 1992. This generally means participating with an honest and sincere intention to reach an agreement.

The costs include:

• the reasonable costs of the landholder for participating in negotiating a land access arrangement.
• These costs have been capped at $1,500 (ex GST) for exempt prospecting operations, and $2,500 (ex GST) for assessable prospecting operations. GST is payable for all reasonable costs, including a landholder's time spend participating in negotiating a land access arrangement, but only where the landholder is registered for GST (i.e. a business).
• the reasonable costs of the landholder for participating in mediation, arbitration, and any court review. These costs are not capped. 
• the arbitrator’s costs in relation to the mediation and arbitration hearing. These costs are not capped.

Read more about costs payable by the explorer.

Yes, in certain circumstances a landholder or explorer may vary an active land access arrangement. This can occur by both parties agreeing to the variation or if there are provisions in the land access arrangement allowing variation, then by either party initiating a variation in accordance with those provisions. 
A land access arrangement can also be varied by arbitration, regardless of whether the land access arrangement was determined by an arbitrator, or by the Land and Environment Court.

Rehabilitation should be undertaken progressively and as soon as possible, in line with the requirements of:

• title conditions
• activity approval conditions
• relevant codes of practice (including the Exploration Code of Practice: Rehabilitation (PDF, 547.44 KB))
• any rehabilitation management plan
• the agreed land access arrangement.

For mineral exploration, access arrangements only apply to exploration. To mine minerals in NSW a separate process must be followed which generally involves obtaining a mining lease under the Mining Act 1992. 

For petroleum exploration, access arrangements apply to both exploration and production, however, the explorer must also engage in a separate independent approvals process.

More information on land access and the arbitration framework in NSW can be found through the following links:

• Significant improvements (PDF, 182.57 KB)
• (Petroleum exploration only) Exploration guideline Petroleum land access (PDF, 168.77 KB)

Note: The information provided above is general information only. You should seek your own legal advice if you require more specific advice on matters relating to the Mining Act 1992.