Summary

The Perth Mining Warden in the recent decision Yarri & Ors v Forrest & Forrest Pty Ltd [2014] WAMW 6 found that a mining lease applicant’s failure to comply with the formal requirements of the Mining Act at the time of lodgement will not necessarily be fatal to the application. The Warden’s decision is in contrast to an earlier decision of another Mining Warden that non-compliance at the time of lodgement of a mining lease application would result in a recommendation of the refusal of that application.

Yarri Mining Pty Ltd, Quarry Park Pty Ltd and Onslow Resources Pty Ltd (collectively, the Yarri Entities) are related parties and the applicants for mining leases 08/478, 08/279 and 08/489 (the Mining Lease Applications).

The Mining Lease Applications are over the land the subject of Minderoo Pastoral Lease of which Forrest & Forrest Pty Ltd (FFPL)  is the lessee. FFPL lodged objections to the Mining Lease Applications on various grounds including that the applications do not comply with the provisions of the Mining Act and/or Mining Regulations. The Mining Lease Applications and objections by FFPL were heard before Warden Wilson on 10 &11 December 2012 1 who delivered his report and recommendation to the Minister for Mines on 31 January 2014 2.

The Mining Lease Applications

Section 74 of the Mining Act requires a mining lease application to be accompanied by:

  • a mining proposal; or
  • a mineralisation report and a statement that sets out information about the likely mining operations; or
  • a resource report and a statement that sets out information about the likely mining operations.

The key issue in the proceedings before the Warden was the failure of the Yarri Entities to accompany the Mining Lease Applications with the necessary documents as required by section 74 of the Act. After lodgement of the Mining Lease Applications, but before the hearing before the Warden, the Yarri  Entities filed mineralisation reports and statements setting out information about the likely mining operations on the tenements. Therefore, the Yarri Entities filed the necessary documents pursuant to section 74 of the Act, but failed to accompany the Mining Lease Applications with these documents at the time of lodgement.

FFPL’s primary position at the hearing was that the Yarri Entities’ failure to accompany the Mining Lease Applications with the necessary documents prevented the Mining Warden from hearing the applications and making a recommendation to the Minister for Mines. That is, the Mining Act requires strict compliance with the formal requirements of the Act as they relate to mining lease applications at the time of lodgement. This strict compliance requirement is supported by the decision of another Warden in similar circumstances3.

The Warden’s findings

Warden Wilson found that the Yarri Entities’ failure to comply with the formal requirements of the Mining Act at the time of lodgement of the Mining Lease Applications was a matter that ought to be noted and brought to the Minister’s attention, but was not fatal to the applications. The Warden recommended to the Minister the grant of the Mining Lease Applications on conditions.

The Warden’s decision was premised on the position that the Warden’s role is to recommend the grant or refusal of the mining lease applications, and the decision in relation to their grant or refusal lies with the Minister. The Minister has a broad discretion in relation to determining mining lease applications, including the power to grant applications in circumstances were an applicant has failed to comply with the Mining Act or the Warden has recommended the refusal of an application. Warden Wilson found that under the Mining Act the only circumstances in which the Minister did not have power to grant a mining lease were where the land was not open for mining or where the Director, Geological Survey reports to the Minister that there is not significant mineralisation in, on or under the land of the application. As a result, non-compliance with the formal requirements of section 74 of the Mining Act at the time of lodgement of the Mining Lease Applications did not prevent the Warden making a recommendation to the Minister in relation to the grant or refusal of those applications.

Effect of the Warden’s decision

The Warden’s findings in relation to the Mining Lease Applications are a notable shift from an earlier decision of another Warden that the Mining Act requires strict compliance with the formal requirements of mining lease applications at the time of lodgement.

This decision may be useful for applicants for mining leases in some circumstances. If an applicant for  a mining lease files the required accompanying documents late, or those documents are amended or substituted at some point after lodgement of the applications due to an error or irregularity, this decision will support an argument that the applications could continue to be heard by the Warden and determined by the Minister, and it is not necessary to mark out and lodge new applications.