Introduction

A recent decision of the Western Australian Mining Warden in Genbow Pty Limited v The Griffin Coal Mining Company Pty Limited [2013] WAMW 11 has determined that certain provisions of the (repealed) Mining Act 1904 (WA) (Repealed Act) continue to apply to coal mining tenements granted under that Act, and not the current Mining Act 1978 (WA) (Current Act) which came into effect on 1 January 1982.  A summary of the decision and how it might impact industry is set out below.

Background

The respondent, The Griffin Coal Mining Company Pty Limited (Griffin), was the registered holder of some 57 coal mining leases (CMLs) granted under the provisions of the Repealed Act pursuant to the Collie Coal (Griffin) Agreement Act 1979 (WA) (Ratifying Act), which legislation ratified an agreement between the State of Western Australia and Griffin (State Agreement).

Under the Repealed Act, to ensure that mineral resources were duly and diligently exploited, holders of mining leases were subject to “labour conditions” under which they were required to employ a minimum number of men per acre of land granted. The Minister could, however, grant an exemption from compliance with such labour conditions. An exemption in respect of the CMLs was granted to Griffin under the State Agreement.

Upon the enactment of the Current Act, the old system of mineral resource exploitation via labour conditions was repealed and replaced by the current system requiring compliance with expenditure conditions as a condition of grant.

The applicant, Genbow Pty Limited (Genbow), argued that whilst Griffin was exempt from compliance with labour conditions under the State Agreement and the Repealed Act, it was still subject to expenditure conditions under the Current Act. Genbow argued that Griffin had failed to comply with the expenditure conditions in relation to its CMLs, and on that basis applied to the Mining Warden for forfeiture of the CMLs.

Decision

The Mining Warden dismissed Genbow’s applications, finding (amongst other things) the following:

  • on the terms of the Ratifying Act, the State Agreement should be construed as a contract and not a statute;
  • construed as a whole, the intention of the parties under the State Agreement was to adequately safeguard and guarantee a long term supply of coal from Griffin obtained from its CMLs.  In return for such supply, the State agreed under the State Agreement to exempt Griffin from compliance with labour conditions under the Repealed Act;
  • the exemption granted by the State made reference only to labour conditions under the Repealed Act without reference to any other Act passed in substitution of the Repealed Act (i.e. the Current Act);
  • consistent with the above intention and commercial purpose of the State Agreement, the State and Griffin had clearly “chosen the then well understood provisions of the Repealed Act as the basis for the terms of the State Agreement”. Accordingly, the parties did not intend to be bound by the Current Act given the then uncertainty surrounding the interpretation of its provisions;
  • section 5 of the Current Act effectively ensures that the provisions of the State Agreement are to prevail over those of the Current Act, and preserves Griffin’s rights in respect of the CMLs (including its exemption from labour conditions) as if the Repealed Act had not been repealed; and
  • given the above, the Mining Warden was satisfied that the expenditure related provisions of the Current Act did not apply to the CMLs.

Conclusion

The decision provides particular clarity in relation to the application of section 5 of the Current Act and the manner in which the provisions of the Repealed Act should continue to apply to mining tenements granted under that Repealed Act in accordance with a State agreement. In particular, depending on the terms of the relevant State agreement and its ratifying legislation, the application of the provisions of the Repealed Act will continue to apply to the relevant mining tenements. In those circumstances, the holder will not be required to comply with the provisions of the Current Act or any of the statutory obligations imposed by it.