Australian Mineral Law

Who owns the minerals under Australia, who is the Crown, and how the COGS model uses corporations law to give communities a direct legal voice.

Who is the Crown?

Australian law says the Crown owns all the minerals beneath your feet. But who is the Crown? Is it the people of Australia? This page explains the legal truth, from the beginning.

Section 1

Where the Crown comes from

The Crown is not a person. It is not a building. It is not a government department. The Crown is an ancient legal fiction: a perpetual, abstract entity that represents the sovereign authority of the state. It predates democracy by many centuries.

In English law, the Crown developed during the medieval period as a way of separating the person of the king from the institution of kingship. The king could die; the Crown continued. This idea was expressed in the legal phrase "the King has two bodies": a mortal physical body and an immortal institutional body. The Crown is the immortal institutional body.

Over centuries, the Crown accumulated a set of rights and powers belonging to it alone. These are called the prerogative rights or the royal prerogative. They include the power to make war, to enter treaties, and, directly relevant here, to own all minerals and subterranean resources beneath the land of the realm.

The Case of Mines 1568

The Crown's ownership of minerals beneath the ground was established in English law by one of the oldest resources cases on record.

Case of Mines (1568) 1 Plowd 310; 75 ER 472 The English Court of Exchequer held that all mines of gold and silver in England belong to the Crown by virtue of the royal prerogative, regardless of who owns the surface land above them. This is the foundational case for Crown mineral ownership. It was decided over 450 years ago and has never been overturned. Australian colonial legislatures inherited this principle and extended it to cover all minerals, not just gold and silver.

When British colonists arrived in Australia, they brought English common law with them, including the royal prerogative over minerals. When the Australian colonies were established and later federated, every state and territory codified Crown mineral ownership in statute law. The ancient royal prerogative became modern legislation, but its origin was never changed.

Section 2

The Crown in Australia

In Australia today, the Crown means the King of Australia acting through his appointed representatives. The King is currently King Charles III. He holds the same throne as the King of the United Kingdom but in a separate legal capacity as King of Australia.

This was confirmed by the High Court in Sue v Hill (1999) 199 CLR 462, which held that Australia and the United Kingdom are now separate foreign countries in a legal sense. The King of Australia and the King of the United Kingdom, while being the same person, act in entirely separate legal capacities.

The King does not govern Australia in person. He is represented at the federal level by the Governor-General and at each state level by the six State Governors. These vice-regal officers act in the name of the Crown. All formal executive power in Australia flows through them.

Commonwealth of Australia Constitution Act 1901 (Imp) Section 61 vests the executive power of the Commonwealth in the Queen (now King), exercisable by the Governor-General as Her Majesty's representative. Section 2 provides that the Governor-General is appointed by the King. The Constitution was passed by the Parliament of the United Kingdom at Westminster. It was not drafted or ratified by the Australian people as a democratic founding instrument. s.2 (Governor-General), s.61 (executive power vested in the Crown), s.128 (constitutional amendment)
The critical point

Australia's founding constitutional document was passed by the British Parliament in 1901. The Australian people voted in colonial referendums on whether to federate, but they did not write or ratify the Constitution itself. The Crown's authority in Australia traces back through an Act of a foreign parliament, not through a document created by and for the Australian people.

This means that the legal basis of Crown ownership of Australian minerals traces back through the Commonwealth of Australia Constitution Act 1901 (Imp), through the colonial statutes of each colony, through English common law, and ultimately to an English court decision made in 1568. The Australian people were not a party to any of that history.

Section 3

There is more than one Crown

When lawyers say "the Crown" in Australia, they do not always mean the same thing. In Australia there are seven legally separate Crown entities, one for the Commonwealth and one for each state.

Crown entity What it controls Owns which minerals
Crown in right of the Commonwealth Federal government as a legal person Offshore minerals beyond 3nm; uranium anywhere in Australia; Commonwealth territories
Crown in right of New South Wales NSW government as a legal person All onshore minerals and petroleum in NSW; coastal waters within 3nm
Crown in right of Victoria Vic government as a legal person All onshore minerals in Victoria
Crown in right of Queensland Qld government as a legal person All onshore minerals in Queensland
Crown in right of Western Australia WA government as a legal person All onshore minerals in Western Australia
Crown in right of South Australia SA government as a legal person All onshore minerals in South Australia
Crown in right of Tasmania Tas government as a legal person All onshore minerals in Tasmania

These are not the same legal entity. The Crown in right of the Commonwealth and the Crown in right of New South Wales can sue each other in court and have done so. Each Crown holds its own assets, incurs its own liabilities, and is governed by its own laws.

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 The High Court established that the Commonwealth and the states are separate legal entities operating under the one Constitution, not arms of a single unified Crown. This case is the foundation of modern Australian federal constitutional law and is the authority for treating each state Crown as a legally distinct entity from the Commonwealth Crown.

For minerals specifically: the Crown that owns minerals in New South Wales is the NSW Crown, controlled by the NSW Parliament elected by the people of NSW. But as the following sections explain, that electoral connection does not make the people the legal owners of those minerals.

Section 4

The prerogative rights: including minerals

The royal prerogative is a body of powers and rights belonging to the Crown that cannot be removed by ordinary legislation without explicitly saying so. The most important prerogative for this discussion is the doctrine of Crown tenure over all land in Australia.

The doctrine of tenure

Under English common law, all land is ultimately held from the Crown. No private person owns land outright. A private person holds an estate in land: a right to use and occupy it granted by the Crown. The Crown holds what lawyers call "radical title": the underlying, ultimate ownership beneath every private title.

When the British claimed Australia as a colony, the Crown asserted radical title over all land on the continent. This became the legal foundation for the entire Australian land title system. Every freehold title in Australia traces back to this original assertion of Crown sovereignty, and radical title includes the subsurface.

This is why colonial legislatures did not need to pass laws taking minerals away from private landowners. The minerals were never private property to begin with. The Crown had claimed them from the moment it asserted sovereignty over the continent.

Codified in statute

Each colonial and state legislature confirmed what was already the case under common law by writing mineral ownership into their Mining Acts. The NSW provision is the most directly relevant to mineral tenements across Bundjalung Nation Country and northern New South Wales:

Mining Act 1992 (NSW), Section 9

All minerals in, on or under any land in New South Wales are the property of the Crown. This applies to all land in NSW without exception: privately owned land, publicly owned land, Aboriginal land, National Parks, pastoral leases, and any other tenure. The surface tenure makes no difference to the Crown's ownership of what lies beneath.

Every other state and territory has an equivalent provision. The language varies but the effect is identical: the Crown owns everything underground, everywhere, with no exceptions for private landowners or communities living above those resources.

Section 5

Does the Crown answer to the people?

Most Australians assume the answer is obviously yes. The full answer is: in theory yes, but the chain between the people and real Crown power is long, indirect, and has significant gaps.

The theory: representative government

The people vote At state and federal elections, eligible Australians elect members of parliament.
Parliament is formed The party or coalition with a majority of seats forms government. The leader becomes Premier or Prime Minister.
The executive government operates Cabinet makes decisions about how Crown resources are managed, licensed, and taxed.
The Governor or Governor-General acts The vice-regal representative acts on the advice of the elected government, formally signing mining licences and regulations in the name of the Crown.
The Crown acts Decisions are made in the name of the Crown, theoretically reflecting the will of the elected government, which theoretically reflects the will of the people.

In this theory, the people control the Crown through elections. If a government manages mineral resources badly, they can vote it out.

Where the theory breaks down

01 The Governor-General and Governors are appointed, not elected. They hold the actual executive power of the Crown. Under the Commonwealth of Australia Constitution Act 1901 (Imp), s.2, the Governor-General is appointed by the King on the advice of the Prime Minister. They are not accountable to the people through any electoral process, and the full scope of their reserve powers is not defined in the written Constitution.
02 The people did not create the Constitution. The document that vests executive power in the Crown was passed by the British Parliament in 1901. The Australian people voted on whether to federate, but they did not draft or ratify the Constitution as a democratic founding instrument. There is no provision in the Constitution stating that sovereignty vests in the people in any legally enforceable sense over Crown assets.
03 Changing the Constitution requires more than a popular vote. Under Commonwealth of Australia Constitution Act 1901 (Imp), s.128, an amendment requires an absolute majority in both Houses of Parliament and then approval by a majority of voters nationally and a majority in at least four of the six states. This double majority requirement has been met only eight times from 44 attempts in 125 years.
04 Mineral policy is not directly voted on. When Australians vote in state elections, they choose a party platform. No state election has ever asked voters: "Should communities above a mineral resource receive a share of what is extracted?" Governments make these decisions administratively, without a direct mandate from the people on the specific question of resource distribution.
05 The Crown's property rights are protected from ordinary legislation. Crown ownership of minerals is not something a simple Act of Parliament can transfer to communities without significant constitutional challenge. The prerogative right and the doctrine of radical title sit at the foundation of the legal system, not on top of it.
The High Court's position

In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the High Court confirmed that the Constitution implies a freedom of political communication and that representative government is a foundational value. The Court has never held that these principles give the Australian people any legally enforceable property right over Crown assets, including minerals.

Section 6

Key moments in Australian constitutional history

Several major legal and political events have shaped the relationship between the Crown, the government, and the Australian people. None of them transferred mineral ownership to communities.

The Statute of Westminster 1931

Statute of Westminster 1931 (UK), adopted by Statute of Westminster Adoption Act 1942 (Cth) The Statute of Westminster gave the self-governing dominions of the British Empire the legal authority to pass laws inconsistent with British law. Australia adopted it in 1942 (backdated to 1939). This gave the Commonwealth Parliament full legislative independence from Britain. It did not change the constitutional structure inside Australia. The Crown remained. Mineral ownership remained with the Crown.

The Australia Acts 1986

Australia Act 1986 (Cth) and Australia Act 1986 (UK) These two matching Acts, passed simultaneously by the Australian and British parliaments, severed the remaining formal legal ties between Australia and the United Kingdom. The British Parliament could no longer pass laws for Australia. Australian courts could no longer appeal to the Privy Council in London. Australia became fully legally independent. The King of Australia became a distinct legal figure from the King of the United Kingdom, confirmed by the High Court in Sue v Hill (1999) 199 CLR 462. The Crown in Australia is now entirely an Australian institution. But the Crown still exists. And it still owns the minerals.

The republican referendum 1999

In 1999, Australians voted on whether to become a republic by replacing the King with a President. The model proposed a President appointed by Parliament rather than directly elected. The referendum failed: 54.9% voted No nationally, and the Yes vote did not achieve a majority in any state.

The defeat was partly driven by disagreement over the specific model rather than outright rejection of republicanism. But the result was that Australia remained a constitutional monarchy. The Crown remains the legal owner of all minerals. No further referendum has been held as of May 2026.

The Seas and Submerged Lands Case 1975

New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 The states argued that they owned the seabed and resources beneath the territorial sea adjacent to their coasts. The High Court rejected this and held that sovereignty over the territorial sea belongs to the Commonwealth Crown, not the state Crowns. The outcome was formalised through the Offshore Constitutional Settlement 1979, an intergovernmental agreement dividing administrative responsibility for offshore resources between the Commonwealth and the states. Legal ownership remained entirely with the Crown at both levels. The people of the coastal states gained no ownership claim over offshore resources as a result of this case.
Section 7

What Mabo changed and what it did not

The Mabo decision is one of the most significant legal events in Australian history. It is essential to understand exactly what it changed and, equally, what it left completely untouched.

Mabo v Queensland (No 2) (1992) 175 CLR 1 The High Court held by a majority of 6 to 1 that the doctrine of terra nullius, the legal fiction that Australia was legally empty of people and law when the British arrived, was wrong and should not be part of Australian law. The Court held that Native Title to land survives colonisation where it has not been extinguished by a valid act of the Crown. This was a profound and historic recognition of the prior ownership and connection of First Nations peoples to their Country.
What Mabo did not change

Mabo did not overturn Crown ownership of minerals. The majority judgments explicitly preserved the Crown's radical title over all land in Australia. Native Title, where it exists, is a right to use and occupy the surface of the land. It is not a right to the minerals, oil, or gas beneath it. The Crown's prerogative over subsurface resources was left completely intact by the Mabo decision.

Wik Peoples v Queensland (1996) 187 CLR 1 The High Court held that Native Title rights could coexist with a pastoral lease, but that where there was inconsistency between the rights of a pastoral lease holder and Native Title rights, the pastoral lease rights prevailed. This further defined the scope of Native Title without affecting Crown mineral ownership in any way.
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 Western Australia challenged the constitutional validity of the Native Title Act 1993 (Cth). The High Court upheld the Act as a valid exercise of Commonwealth power. The Court confirmed that the Act validly regulated Native Title rights without transferring mineral ownership to Native Title holders. Crown mineral ownership was preserved by the Act itself.

The practical effect of Mabo and its successor cases is that First Nations peoples gained legal recognition of their connection to Country and procedural rights in relation to mining on that Country. They did not gain ownership of the resources beneath it. The Crown's mineral prerogative survived Mabo entirely.

Section 8

The 1975 dismissal: proof Crown power is real

Some Australians treat the Crown as a ceremonial remnant with no real power. The events of 11 November 1975 demonstrate that this assumption is wrong.

On that date, Governor-General Sir John Kerr used the reserve powers of the Crown to dismiss the elected Prime Minister, Gough Whitlam, and his government. The Whitlam government held a majority in the House of Representatives. It had been elected by the Australian people. The Governor-General dismissed it without a vote of the people and without a vote of the House of Representatives.

Kerr then commissioned the Leader of the Opposition, Malcolm Fraser, as caretaker Prime Minister. A general election was held, which Fraser won.

The legal basis was the Governor-General's reserve powers under the Commonwealth of Australia Constitution Act 1901 (Imp), ss.61 and 64. These powers are not fully defined in the written Constitution. Their precise scope remains contested among constitutional lawyers today. No Australian court has ruled the dismissal unconstitutional.

The constitutional lesson

The 1975 dismissal demonstrated that the Crown's reserve powers are not ceremonial. An appointed vice-regal representative, not accountable to the Australian people through any electoral process, exercised real power to remove an elected government within living memory. The reserve powers that were used then remain available to any future Governor-General. The Crown in Australia is a live legal institution, not a historical decoration.

Section 9

The democratic gap

Putting all of the above together, the position is this:

The minerals beneath Australian soil are owned by the Crown. The Crown in each state is a legally separate entity from the elected government, though elected governments exercise its powers. The Crown's mineral ownership traces back to an English court decision in 1568 and was never conferred on the Australian people through any democratic founding document. The Constitution was passed by the British Parliament in 1901. The people elect governments that manage Crown resources, but the electoral connection does not give the people legal ownership of those resources.

There is no Australian law that entitles communities living above a mineral resource to a financial share of what is extracted from beneath their feet. Royalties flow to government treasuries, not to communities. Native Title gives procedural consultation rights, not mineral ownership. Landowners above the resource have no right to what lies beneath them.

The gap in plain terms

The people of Australia elect governments. Those governments manage resources on behalf of the Crown. The revenues from those resources go to government treasuries. Whether those revenues reach the communities most affected by mining is decided by politicians. It is not guaranteed by law. Communities have no legal entitlement to a share of the value extracted from beneath their own Country.

This gap is structural, not accidental. It is the result of 450 years of legal history that began with English royal prerogative and was carried forward without fundamental reform into the Australian legal system. It has survived federation in 1901, the Australia Acts in 1986, the Mabo decision in 1992, and the republican referendum in 1999.

It cannot be fixed by electing a different government. Governments that wish to share resource revenues more equitably can choose to do so through policy, but they are not required to by law. Governments that choose not to share are acting entirely within the law as it stands.

Section 9b

What this looks like in practice

The legal position above is the framework. Below is what the framework produces in two of Australia's biggest export industries.

Gold

Australia's overall gold-mining ownership is 55% Australian-controlled. But of the top five gold producers (Boddington, Tropicana, Cadia, Super Pit, and Tanami), only 24% is Australian-controlled. Four of the top five are majority foreign-owned.

Dr Sandra Close, Surbiton Associates, reported by Mining Weekly, September 2025. FY 2024/25 figures.

Gas

56% of LNG exported from Australia is royalty-free. Between 2021/22 and 2024/25, Australia exported $170 billion of royalty-free LNG. Gas companies have made $112 billion in windfall profits since the Ukraine war began. Petroleum Resource Rent Tax revenue in 2023 was lower than in 2001. As of 2023, no LNG export project had ever paid the Petroleum Resource Rent Tax.

The Australia Institute, Submission to Senate Inquiry, April 2026.

Both industries operate under licences granted by the Crown over minerals owned by the Crown. The Australian public holds no legal share in either resource.

Section 10

Why COGS uses corporations law instead

COGS of Australia Foundation was built with a clear understanding of the legal position described on this page. Waiting for constitutional reform to transfer mineral ownership to communities is not a practical strategy. That reform has not occurred in 125 years of Australian federation.

Instead, COGS uses a legal mechanism that already exists and that the Crown's mineral ownership does not affect: the shareholder rights created by the Corporations Act 2001 (Cth).

How it works

The Crown owns the minerals. But the Crown grants exploration licences and mining leases to companies. Those companies are governed by the Corporations Act. Every person who holds a CHESS-registered share in an ASX-listed company is a legal part-owner of that company and has direct legal rights inside it.

Those rights do not depend on Native Title. They do not depend on constitutional reform. They do not depend on a government choosing to share royalty revenue. They are legal rights that flow directly from share ownership, enforceable in Australian courts.

Shareholder rights under the Corporations Act 2001 (Cth)

Every CHESS-registered shareholder, regardless of the size of their holding, has the right to: attend and speak at general meetings; vote on resolutions, including resolutions about how the company manages its tenements and what it does on Country; receive all financial disclosures made to the ASX; question the board of directors; and receive dividends if profits are distributed. These rights apply equally to a community member holding one share and an institutional investor holding millions of shares.

The COGS model in practice

COGS of Australia Foundation pools community members as direct ASX shareholders in resource companies operating on their Country. Each member holds one CHESS-registered share in their own name. Each member has one vote. The Foundation does not hold shares on behalf of members. The shares belong to each individual community member directly, registered in their own name on the CHESS system.

As a concrete example: any exploration company holding licences across Bundjalung Nation Country in northern New South Wales operates under licences granted by the NSW Crown under the Mining Act 1992 (NSW). The Crown owns the minerals. The company holds only a right to explore.

The Crown still owns the minerals. The company holds the right to explore for them. COGS community members hold shares in that company and therefore hold a direct legal voice in its governance. That voice exists whether the company wants it or not. It is a statutory right. It cannot be taken away.

The foundational principle of the COGS model

Whenever ASX-listed shares in a resource company are discussed, the in-ground value of the mineral resources those tenements contain must also be part of the conversation. Shares give the community a legal voice. The in-ground minerals carry real, measurable value that is recognisable without extraction ever occurring, and potentially in lieu of extraction entirely. This is the foundational aspiration of the COGS model: that communities gain a legal seat at the table before extraction decisions are made, not after. The Crown owns the minerals. But the Corporations Act gives communities the key to the room where decisions about those minerals are made.

Governance Foundation Day for COGS of Australia Foundation is 14 May 2026, on Wahlubal Country, Bundjalung Nation, northern New South Wales.

Section 11

Full legal reference list

Cases

Commonwealth Acts and instruments

New South Wales Acts

Disclaimer

This page provides general legal information only. It is not legal advice. The laws and cases cited were current as at May 2026. Laws change. If you need advice about a specific mining, Native Title, or constitutional matter, consult a qualified Australian lawyer.

Part B: Who owns the minerals?

The laws that govern minerals, oil, and gas beneath Australian soil. Every Act cited.

Who Owns the Minerals Under Australia?

A plain-English guide to the laws that govern minerals, oil, and gas beneath Australian soil. Every Act cited.

Section 1

The core rule: Crown ownership

In Australia, the government owns all minerals, oil, and gas beneath the ground. This applies across every state and territory. It does not matter who owns the land above. A farmer, a company, a First Nations community, or a local council can own the surface of the land and still have no right to what lies beneath it.

This rule comes from English common law and has been written into statute law in every Australian jurisdiction. It is not a policy decision that can be changed by a local council or a court. It is the law.

The bottom line

Owning land in Australia gives you no automatic right to anything beneath the soil beyond the shallow surface layer. The minerals, oil, and gas belong to the Crown — meaning the relevant government.

The word "Crown" means the government as a legal entity. In practice, this means the state or territory government for most onshore resources, and the federal government for offshore resources and uranium.

This principle is confirmed in the Mining Act 1992 (NSW), Section 9, which states that all minerals in, on, or under land in New South Wales are the property of the Crown. Equivalent provisions exist in every other state and territory (see Section 2 below).

Section 2

State and Territory laws

Each state and territory has its own legislation that vests minerals and petroleum in the Crown and sets the rules for exploration and extraction. The laws below are the primary statutes in each jurisdiction.

New South Wales

New South Wales law is directly relevant to the mineral tenements across Bundjalung Nation Country in northern New South Wales.

Mining Act 1992 (NSW) The principal law governing all solid minerals in NSW. Section 9 vests all minerals in the Crown. Sets out the licensing system for exploration and mining. Governs the rights and obligations of licence holders, including community consultation obligations. Key sections: s.9 (Crown ownership), s.13 (exploration licences), s.63 (mining leases)
Petroleum (Onshore) Act 1991 (NSW) Governs all onshore petroleum (oil and gas) in NSW. Vests all petroleum in the Crown. Sets out the system of petroleum exploration licences and production licences. Key sections: s.5 (Crown ownership of petroleum), s.9 (petroleum exploration licences)
Mining Regulation 2016 (NSW) The subordinate regulation made under the Mining Act 1992. Sets royalty rates payable to the Crown on extracted minerals. Prescribes application requirements, reporting obligations, and conditions attached to mining titles.
Crown Lands Management Act 2016 (NSW) Governs the management of Crown land (government-owned surface land) in NSW. Relevant where exploration or mining activities are proposed on Crown land. Surface access can overlap with mineral title requirements.

Queensland

Mineral Resources Act 1989 (Qld) Queensland's primary mining legislation. Vests all minerals in the Crown. Establishes exploration permits, mineral development licences, and mining leases.
Petroleum and Gas (Production and Safety) Act 2004 (Qld) Governs onshore petroleum and coal seam gas in Queensland. Vests petroleum in the Crown and establishes the authority to prospect (ATP) and petroleum lease system.

Western Australia

Mining Act 1978 (WA) Western Australia's principal mining statute. Vests all minerals in the Crown. Governs prospecting licences, exploration licences, retention licences, and mining leases. WA produces the majority of Australia's mineral export revenue under this Act.
Petroleum and Geothermal Energy Resources Act 1967 (WA) Governs onshore petroleum and geothermal energy resources in Western Australia. Vests petroleum in the Crown.

South Australia

Mining Act 1971 (SA) South Australia's principal mining legislation. Vests minerals in the Crown and establishes the mining title system.
Petroleum and Geothermal Energy Act 2000 (SA) Governs petroleum and geothermal energy in South Australia. Vests petroleum in the Crown.

Victoria

Mineral Resources (Sustainable Development) Act 1990 (Vic) Victoria's primary mining legislation. Vests minerals in the Crown. Includes provisions relating to environmental performance bonds and community engagement requirements.
Offshore Petroleum and Greenhouse Gas Storage Act 2010 (Vic) Mirrors Commonwealth offshore legislation for the Victorian coastal waters zone (within 3 nautical miles).

Tasmania

Mineral Resources Act 1995 (Tas) Tasmania's principal mining statute. Vests all minerals in the Crown and establishes the licence and lease system for exploration and extraction.

Northern Territory

Mining Act 1980 (NT) The Northern Territory's primary mining legislation. Vests minerals in the Crown. The NT also has specific provisions relating to Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which imposes additional requirements for mining on Aboriginal land.
Section 3

Commonwealth laws

The federal government owns and regulates resources in two specific situations: offshore beyond 3 nautical miles from the coast, and uranium anywhere in Australia.

Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) — OPGGSA The Commonwealth's primary legislation for offshore petroleum and greenhouse gas storage. Governs all petroleum resources beyond 3 nautical miles from the coast, extending to the outer edge of the continental shelf (up to 200 nautical miles or more under the United Nations Convention on the Law of the Sea). Also governs CO2 injection and storage in offshore geological formations. Applies to: all offshore oil and gas beyond the 3nm coastal waters zone
Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) — ARPANS Act Classifies uranium as a nuclear material subject to Commonwealth oversight regardless of which state or territory it is located in. Mining of uranium requires Commonwealth approval in addition to any state licence.
Seas and Submerged Lands Act 1973 (Cth) Establishes Australia's sovereign rights over its territorial sea, continental shelf, and exclusive economic zone. This is the foundational legislation that gives Australia legal title to offshore seabed resources under international law.
Atomic Energy Act 1953 (Cth) One of Australia's oldest pieces of resources legislation. Vests uranium and thorium in the Commonwealth. Predates modern nuclear safety legislation but remains relevant as a statement of Commonwealth ownership of nuclear materials.
The boundary

State and Territory governments own and regulate onshore minerals and petroleum, and offshore resources within 3 nautical miles of the coast. The Commonwealth owns and regulates everything beyond that, out to the edge of the continental shelf, plus uranium anywhere in Australia.

Section 4

Native Title and Land Rights

Native Title recognises the connection that First Nations peoples have to their Country. But it does not give First Nations communities ownership of the minerals, oil, or gas beneath that Country. That remains with the Crown.

What Native Title does not give you

Native Title does not confer ownership of minerals or petroleum. It does not entitle Traditional Owners to a share of royalties. The Crown retains legal ownership of all subsurface resources even where Native Title exists over the surface land.

Native Title Act 1993 (Cth) Recognises and protects the rights and interests of Aboriginal and Torres Strait Islander peoples in land and waters. Does not grant mineral ownership. Provides a Right to Negotiate (RTN) process before certain mining leases can be granted on land where Native Title has not been extinguished. The RTN gives Traditional Owners the right to be consulted and to negotiate conditions, but not to veto. The Registrar of Native Title claims is administered by the National Native Title Tribunal. Key sections: s.24 (future acts), s.25–44 (right to negotiate), s.61 (claimant applications)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Applies specifically to the Northern Territory. Grants Aboriginal Land Councils a more substantive right than the RTN — including a right to refuse entry for exploration on Aboriginal land in some circumstances. This is stronger than the standard Native Title RTN, but still does not vest mineral ownership in Aboriginal communities.
Aboriginal Land Rights Act 1983 (NSW) Establishes Aboriginal Land Councils in NSW, including Jubullum Local Aboriginal Land Council (JLALC) on Bundjalung Nation Country. Allows for the vesting of surface land in Land Councils. Does not confer subsurface mineral rights. Land Councils own the surface; the Crown still owns what is beneath it.
Aboriginal and Torres Strait Islander Act 2005 (Cth) Establishes the National Indigenous Australians Agency and related bodies. Relevant to community development and funding programs connected to mining agreements, but does not alter the fundamental ownership of subsurface resources.

The practical effect is this: Traditional Owners of Country have the right to be consulted about mining on their land. They do not have the right to stop it in most cases, and they have no automatic right to a share of the value extracted. Consultation is not ownership.

Why equity matters

Because Native Title does not give mineral ownership, the only way for a First Nations community — or any community — to hold a genuine financial interest in resource extraction is to hold equity inside the licensed company. That is a legal right that exists independently of Native Title.

Section 5

Licences: who can explore and mine

No company or individual can explore for or extract minerals or petroleum without a licence or title granted by the relevant Crown authority. The Crown does not sell the minerals. It sells the right to access them. The minerals remain Crown property until they are physically extracted under a valid lease.

Title type What it allows Relevant legislation (NSW)
Exploration Licence (EL) The right to explore for minerals. No extraction permitted. Holder must report findings to the government. Mining Act 1992 (NSW), s.13
Assessment Lease (AL) Allows detailed assessment of a mineral resource after exploration. A bridge between exploration and mining. Mining Act 1992 (NSW), s.44
Mining Lease (ML) The right to mine and extract minerals. The most significant title. Triggers full community and Native Title consultation requirements. Mining Act 1992 (NSW), s.63
Mineral Claim (MC) A smaller-scale title for prospecting by individuals. Limited area and quantities. Mining Act 1992 (NSW), s.172
Petroleum Exploration Licence (PEL) The right to explore for petroleum (oil and gas). No production permitted. Petroleum (Onshore) Act 1991 (NSW), s.9
Petroleum Assessment Lease (PAL) Allows detailed assessment of a petroleum resource after exploration. Petroleum (Onshore) Act 1991 (NSW), s.22
Petroleum Production Lease (PPL) The right to extract petroleum. Equivalent to the Mining Lease for solid minerals. Petroleum (Onshore) Act 1991 (NSW), s.28
Offshore Production Licence The right to extract petroleum in Commonwealth offshore waters. OPGGSA 2006 (Cth)

Any company holding Exploration Licences on Bundjalung Nation Country holds the right to explore, nothing more. It does not hold the right to extract. The minerals remain the property of the NSW Crown, regardless of who holds the licence.

Section 6

Royalties: who gets paid

When a company extracts minerals or petroleum under a valid mining lease or production licence, it pays a royalty to the Crown. A royalty is a percentage of the value of the material extracted. It is not paid to the landowner. It is not paid to the community living above the resource. It is not paid to Traditional Owners. It is paid to the state or territory government.

Mining Regulation 2016 (NSW) Sets the royalty rates payable to the NSW Crown on extracted minerals. For example, coal royalties are calculated as a percentage of the run-of-mine value. Metalliferous mineral royalties are calculated separately. The government publishes the current rates on the NSW Resources Regulator website.
Petroleum (Onshore) Act 1991 (NSW), Part 5 Sets out the royalty obligations for petroleum production in NSW. Royalties are paid to the NSW Crown.
Income Tax Assessment Act 1997 (Cth) Royalty payments received by the Crown are treated as assessable income for tax purposes. Royalty payments made by mining companies may be deductible as a business expense. Relevant to understanding the full fiscal treatment of resource extraction.
Petroleum Resource Rent Tax Assessment Act 1987 (Cth) Imposes the Petroleum Resource Rent Tax (PRRT) on profits from petroleum projects in Commonwealth waters and some onshore projects. A federal-level profit-based tax on resource extraction, separate from royalties.
Who does not receive royalties

Royalties go to the government, not to landowners, not to the community, and not to Traditional Owners. Whether those royalties are distributed equitably back to communities affected by mining is a separate policy question that Australian law does not currently resolve in favour of local communities by default.

Section 7

Environmental and planning laws

Mining and petroleum projects must also comply with a separate layer of environmental and planning legislation. These laws do not change who owns the minerals, but they can require environmental assessments, community consultation, and conditions on how extraction takes place.

Environment Protection and Biodiversity Conservation Act 1999 (Cth) — EPBC Act Australia's primary Commonwealth environmental law. Projects that are likely to have a significant impact on matters of national environmental significance (such as threatened species, World Heritage areas, or Ramsar wetlands) require federal approval, in addition to any state approval. Mining projects on or near significant ecological areas frequently require EPBC referral.
Environmental Planning and Assessment Act 1979 (NSW) — EP&A Act The principal planning law in NSW. Large mining projects are assessed as State Significant Development (SSD) or State Significant Infrastructure (SSI) under this Act, requiring approval from the NSW Independent Planning Commission. Community objection and submission rights are governed by this Act. Key sections: s.4.5 (State Significant Development), Part 8 (community participation)
Protection of the Environment Operations Act 1997 (NSW) — POEO Act Governs pollution licences (Environment Protection Licences) required for mining operations in NSW. Mines that discharge waste, manage tailings, or generate air pollution require licences under this Act, regulated by the NSW Environment Protection Authority.
Water Management Act 2000 (NSW) Mining operations frequently require access to groundwater and surface water. This Act governs water access licences and approvals in NSW. Mining companies must hold water licences, and their impact on local water resources must be assessed as part of the approvals process.
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Relevant where surface access for mining requires the compulsory acquisition of land or access rights from a landowner. Landowners are entitled to compensation for access, but this does not affect subsurface mineral ownership.
Section 8

Corporations law and shareholder rights

While Australian law does not give communities automatic rights over the minerals beneath their feet, corporations law gives shareholders direct legal rights inside the companies that hold the mining licences. This is the legal foundation of the COGS model.

Corporations Act 2001 (Cth) The primary law governing companies in Australia. Shareholders of an ASX-listed company have statutory rights including: the right to attend and vote at general meetings, the right to receive financial reports, the right to question directors, and the right to receive dividends when declared. These rights apply to every registered shareholder, including individual community members holding a single CHESS-registered share. Key sections: s.249 (notice of meetings), s.250 (right to attend and vote), s.601ED (managed investment schemes)
Australian Securities and Investments Commission Act 2001 (Cth) Establishes ASIC as the regulator of corporations, financial markets, and financial services in Australia. ASIC enforces the Corporations Act and can take action against companies that breach their obligations to shareholders.
ASX Listing Rules The rules made by the Australian Securities Exchange that all listed companies must follow. Require continuous disclosure of material information, shareholder approval for significant transactions, and compliance with corporate governance standards. Shareholders of any ASX-listed company benefit from these protections.
CHESS (Clearing House Electronic Subregister System) The ASX system that records legal ownership of shares. A CHESS-registered holder has their name recorded as the direct legal owner of shares. This is distinct from a beneficial holder recorded through a broker. CHESS registration provides the highest level of legal certainty over share ownership in Australia.
What this means in practice

A community member holding a single CHESS-registered share in an ASX-listed mining company has a direct legal voice in that company's governance. They can attend the Annual General Meeting, ask questions of the board, vote on resolutions, and access all public financial disclosures. This right exists under the Corporations Act 2001 (Cth) regardless of the size of the shareholding.

Section 9

Summary table

Resource type Who owns it Governing law
Onshore minerals (NSW) NSW Crown Mining Act 1992 (NSW)
Onshore petroleum (NSW) NSW Crown Petroleum (Onshore) Act 1991 (NSW)
Onshore minerals (Qld) Qld Crown Mineral Resources Act 1989 (Qld)
Onshore minerals (WA) WA Crown Mining Act 1978 (WA)
Onshore minerals (SA) SA Crown Mining Act 1971 (SA)
Onshore minerals (Vic) Vic Crown Mineral Resources (Sustainable Development) Act 1990 (Vic)
Onshore minerals (Tas) Tas Crown Mineral Resources Act 1995 (Tas)
Onshore minerals (NT) NT Crown (+ Cth overlay for Aboriginal land) Mining Act 1980 (NT) + Aboriginal Land Rights (NT) Act 1976 (Cth)
Offshore (within 3nm) Relevant State Crown State offshore petroleum legislation
Offshore (beyond 3nm) Commonwealth OPGGSA 2006 (Cth)
Uranium (all locations) Crown + Commonwealth oversight Atomic Energy Act 1953 (Cth) + ARPANS Act 1998 (Cth)
Native Title land surface Traditional Owners (surface only) Native Title Act 1993 (Cth)
Subsurface resources beneath Native Title land The Crown (not Traditional Owners) Native Title Act 1993 (Cth), s.211
Section 10

Full legislation reference list

Every Act and regulation cited on this page is listed below in alphabetical order for easy reference.

Commonwealth Acts

New South Wales Acts and Regulations

Other State and Territory Acts

Disclaimer

This page provides general legal information only. It is not legal advice. The laws cited were current as at May 2026. Laws change. If you need advice about a specific mining matter, consult a qualified Australian lawyer with experience in resources law.

Share this page

The law is clear. So is the fix.

Get your seat at the table → Join the community for $4 →