Mining Reforms

New Licences

The Mining Act 2017 applies to all minerals within the State or within designated areas of the continental shelf. Minerals in this context do not include stone, sand, gravel or clay, turf, peat, or petroleum.

Part 2 covers the administrative practice for prospecting licences from application to surrender, including public notice and consultation prior to issuing of licences. It also covers payment of compensation for damage or nuisance arising from prospecting activity.

It introduces a new type of licence known as a retention licence. This is relevant where a prospecting licence holder has discovered a mineral resource that cannot, for the time being, be worked due to a need to address access issues, environmental concerns or other matters.

The Minister, in assessing the public interest of an application, is to take into account the economic benefits to the region, as well as the environmental impact of the proposed exploration programme. It provides for making regulations setting out conditions for a prospecting or retention licence.

A new requirement covers the manner in which prior written consent will be required for boreholes, trenching and bulk sampling. Airborne geophysical surveying is a matter for the civil aviation authorities, but provision is made to require prior notice of such surveys and the submission of data.

Working of  Minerals

Mining Act 2017 Part 3 relates to working minerals. The Minerals Development Act 1979 vested in the Minister the exclusive right to work minerals, with the exception of a small number of existing mines in operation at the time. It also provided for granting of that right to third parties under licence, subject to the payment of compensation to the mineral owners. These arrangements continue under the 2017 Act.

It has long been stated policy that an application for a permit to mine will only be accepted by holders of a current valid prospecting licence over the relevant area. This now has a statutory basis. The main thrust of the changes in this area relates to

• eliminating the difference between State and private minerals from the development perspective,
• providing greater predetermination and clarity of terms, financial and non-financial.

Previously, the legislation provided for leases to extract State minerals and licences for private minerals. Now, there will be a single instrument, to be known as a mining licence.

Ancillary Rights

Part 4 of the Mining Act 2017 relates to the rights to extract minerals safely and efficiently. Other necessary activities are referred to as ancillary rights. Existing legislation provided that the holder of a State mining lease or licence is entitled to enter on the land on or under where such minerals lie and use such land in such manner as may be reasonably necessary for the working of such minerals or for any purpose incidental thereto. This gave too broad a scope by modern standards.

The pre-2017 legislation provided for the compulsory acquisition of land and rights over land necessary for the efficient working of minerals. The 2017 Act clarified rights necessary for working minerals and divided them into ancillary underground rights and ancillary surface rights for licences issued. It also brought the compulsory acquisition procedures into line with modern best practices.

Rehabilitation

The 2006 Act provided for the rehabilitation of land formerly used or currently used for mining. This arose in particular in the context of the rehabilitation of lands in the Silvermines near Nenagh County Tipperary. Legal action had been taken against the former operators. The State made a contribution to the rehabilitation of the mine.

The legislation allowed the Minister or local authority to prepare a rehabilitation plan where this is necessary on human or animal health grounds for the protection of the environment. The plan was to be formulated in consultation with relevant stakeholders, including the local community.
There was provision for compulsory acquisition appropriate procedures and compensation as necessary for the purpose of giving effect to the rehabilitation plan.

Part 5 of the Mining Act 2017 deals with rehabilitation. It is based on Part 9 of the Energy (Miscellaneous Provisions) Act 2006 and deals only with orphan legacy sites.

It is the responsibility of current mine operators to properly close and rehabilitate sites when activity ceases. Mine operations, through the planning process, are subject to environmental impact assessment, which requires detailed closure plans with financial sureties to fund their implementation, aftercare, monitoring and maintenance.

Ministerial Designation

In certain circumstances, the Minister, having consulted the Minister for Housing, Planning, Community and Local Government, may designate a former mine site or adjacent land as a rehabilitation area. The Minister may only designate such a site where a mine has been abandoned or where operations have permanently ceased and it is necessary for the safety of the public or animals or to address major environmental damage.

Once an area is designated as a rehabilitation area, the Minister may develop or adopt a rehabilitation plan and implement it or authorise a local authority or the Environmental Protection Agency to do so. This does not affect any obligation of former lessees or licensees who had been responsible for the mine site, owners or occupiers of sites, or any other person who may have obligations. The Minister may recover through the courts any expenditure incurred in the implementation of the plan.

The Minister may, with the consent of the Minister for Public Expenditure and Reform, acquire private land, either by agreement or compulsorily, for the purpose of implementing a rehabilitation plan. The Minister must undertake a public consultation process before making a rehabilitation acquisition order. If considered appropriate, the Minister may appoint a hearing officer (to hold an oral hearing to evaluate objections.

Mining Board

The Mining Board has been in existence since it was established under the Minerals Development Act 1940 and adjudicates various issues arising under the Acts, including compensation for private mineral owners. The Mining Act 2017 provided for the continuation of the board, which consists of a chairperson and two ordinary members appointed by the Government on the recommendation of the Minister.

The chairperson shall be a practising barrister or solicitor of at least 10 years standing. Each ordinary member shall be a property arbitrator under the Property Values (Arbitrations and Appeals) Act 1960. The provisions relating to the board are being updated in line with current best practices. New provisions in the area of ethics are provided in line with current legislation regarding other statutory boards.

Enforcement

Mining Act 2017 Part 7 updates enforcement and miscellaneous matters. Penalties in respect of offences such as unlawful prospecting or working of minerals are brought up to date in line with current practice.

Injunctive powers are provided for continuing offences and in a case where the Minister might be prevented from undertaking rehabilitation work.

Provision is being made for the appointment of inspectors to enforce the Acts.

Various

The requirement to notify the Minister of boreholes drilled for reasons other than prospecting or mining restates provisions in the 1940 Act. The vesting in respect of intellectual property rights in the Minister relating to the processing of data collected under the Minerals Development Acts is also provided for.

Mining Act 2017 deals with the registration of minerals that were exempt from the statutory vesting under the 1979 Act and other miscellaneous matters.

Any licence granted under previous Acts on the terms under which it was granted is continued by the 2017 Act until renewed under the revised legislation. Applications for prospecting licences or mining leases and licences made before the Act are deemed to be for licences under the Act unless the Minister has already given notice of his intention to grant a licence.

“Mineral” Definition Amendment

The Mining Act 2017  contains a list of substances which, are included within the definition of minerals. The list is not exhaustive as the definition of minerals describes the term as meaning all substances, including scheduled minerals. It may, therefore, allow other substances to be defined as minerals.

Flint and Chert have been removed because experience has shown that their inclusion was not helpful. Mineral oils and natural gas have been removed because the 1960 Act provided for separate regulation of oil and gas exploration and production. Other substances added are industrial minerals that were not important in 1940 but have since gained significance, such as andalusite, garnet and sepiolite.