The unabridged version of this article was first published in Volume 32, Number 3 (December 2013) of the Australian Resources and Energy Law Journal by AMPLA Ltd in association with the Centre for Resources Energy and Environmental Law of The University of Melbourne, the Centre for Mining Energy and Natural Resources Law of the University of Western Australia and the School of Law of the University of Waikato.

Background

Yarri Mining Pty Ltd (Yarri) is the registered holder of exploration licences located on the Minderoo Pastoral Lease (Minderoo), south of Onslow in Western Australia.  Forrest & Forrest Pty Ltd (Forrest) is the registered holder of the pastoral lease. Yarri lodged applications for mining leases 08/471 and 08/472 (Applications) pursuant to s 67 of the Mining Act 1978 (WA) (Mining Act).

Forrest objected to the grant of the Applications on the basis of, amongst other things, non-compliance with the Act and or Mining Regulations1981 (WA) (Regulations) and injurious affection in respect of the pastoral operations of Minderoo.

On 22 January 2013 Warden Wilson recommended the grant of the Applications, subject to appropriate conditions to ensure the interests of Yarri and Forrest could co-exist on Minderoo.  This Issue:

The issues

Warden Wilson considered the Forrest objection, relevantly, by reference to the following issues:

  • whether the Minister must grant the Applications pursuant to ss 67(1) and 75(7) of the Act;
  • whether Yarri failed to comply with the Mining Act and Regulations;
  • the potential impact on Minderoo and its pastoral operations; and
  • public interest considerations.

Must the Minister grant the Applications pursuant to ss 67(1) and 75(7) of the Mining Act?

Yarri submitted that, pursuant to ss 67(1) and 75(7) of the Mining Act, the Minister had no discretion, other than by the application of section 111A, to bring an end to the Applications.

Warden Wilson rejected Yarri’s argument, saying it was clear from the wording of ss 67(1) and 75(7) of the Mining Act that the Minister retains the discretion to refuse an application for a mining lease under those sections and s 111A.

The real effect of a conversion application is to reward the effort of the applicant for the exploration or prosecting of the land, and on the discovery of minerals, the right in priority to apply for and be granted a mining lease subject to compliance with the provisions of the Mining Act and the discretion of the Minister pursuant to s 111A of the Mining Act. 1

Did Yarri fail to comply with the Act and Regulations?

Failure to notify pastoralist of Applications

On the first day of hearing, Forrest raised the issue of Yarri’s failure to serve copies of the Applications to the holder of the Minderoo pastoral lease at its “usual or last known place of abode or business” pursuant to s 118 of the Mining Act. Copies were sent to a PO Box rather than the address noted on the lease. Leave was sought, and granted, for an extension of time in which to serve the Applications on the registered address of Minderoo without affecting the hearing.

Non-compliance with marking out

Forrest submitted that M08/472 was not pegged and trenched in accordance with the Mining Act and Regulations. That is, upon inspection some 18 months after the marking out took place, there was only faint evidence of two of the four corners being trenched and the location of a peg was not consistent with the co-ordinates provided on the application. Forrest also submitted that the timing of marking out was questionable.

The Warden accepted that, at the time of inspection, the marking out may not have appeared to be compliant with the Mining Act. However, due to the passage of time, forces of nature such as wind and/or rain and water may have filled in the trenches, and the pegs may have been interfered with (either deliberately or accidentally) by man, beast or other sources such that they were removed or altered from where they were originally placed.

Breach of section 74(1) – mining proposal

The Applications by Yarri were not accompanied by mining proposals. Rather, mining proposals in the form of “Low Impact Mining Operations Pro Forma” were subsequently lodged 14 days later at the request of the Mining Registrar.

Warden Wilson held “accompanied” meant the Application and mining proposal needed to be lodged contemporaneously2 to comply with the requirements of the Mining Act.

However, the Minister may grant or refuse a mining lease in circumstances where the application does not comply with the provisions of the Mining Act, subject to the applicant being “a person”.

In 2011 Yarri lodged a subsequent mining proposal for the Applications. Forrest submitted that Yarri had now abandoned the pro forma mining proposal, which had the effect of negating any lodgement of a mining proposal with the Applications. This argument was rejected by Warden Wilson as the holder of a mining tenement is required to notify the Department and obtain permission for both proposed mining operations and any changes contemplated to approved mining operations. The subsequent lodgement   of a new mining proposal by Yarri was consistent with this requirement.

Compliance with Guidelines

Forrest also submitted the 2011 mining proposal did not comply with the Department’s Guidelines for proposals, with such non-compliance including a failure by Yarri to:

  • consult with the pastoral lease holder;
  • provide a flora survey report which was concluded to a level 2 report; and
  • provide sufficient detailed information, for example, in relation to the identification, evaluation and management of significant environmental impacts.

In relation to the consultation process, Warden Wilson noted that “the prospect of any rational negotiation or consultation between Forrest and Yarri [had] long passed… [and the parties had had] ample opportunity to adequately raise their grievances…in these proceedings”.

In relation to issues relating to non-compliance with the Guidelines, Warden Wilson held that not every mining proposal will completely comply and that any such non-compliance will not be fatal to an application for a mining tenement. Further, it would be unreasonable to expect a mining proposal would not be subject to requisitions by the Department given the complexity of the requirements and circumstances that are required to be addressed. Once any necessary further information is obtained, the Department will then be in a position to inform the Minister of what conditions should be imposed on the tenement upon grant.

Impact on Minderoo and its pastoral operations

Forrest submitted the Applications would have an adverse impact upon pastoral operations in Minderoo, including as a result of:

  • overgrazing of land near the ground of the Applications due to the cattle moving to other parts of the pastoral lease; and
  • the cattle being scared away by the dewatering vehicle used for dust suppression and by noise of the mining equipment.

Forrest submitted that there should be no assumption that adequate compensation would be tendered for any adverse impact on the pastoral operations caused by mining operations and that conditions might not be adequate to protect the interests of the pastoralist.

Warden Wilson stated that a mining warden has no power to consider issues of adequacy of compensation. However, the effect, if any, of mining operations on the pastoral operations could only be definitively determined at a time after the mining operations had commenced. Further, any issues of adequacy are not relevant considerations to the hearing of the Applications.

The power to impose conditions on the grant of a mining tenement is not a proper vehicle to achieve compliance with other obligations, in the absence of compelling evidence of there being a likelihood that serious breaches will occur.

The compensation provisions of the Mining Act insofar as they relate to pastoralists are consistent with the legislative intention that the potential for loss and damage arising from mining operations will not stand in the way of mining operations being carried out. Further, compensation is the primary means chosen by the Parliament in resolving the conflict of land use interests. 3 

Warden Wilson held that any impacts to pastoral operations can be adequately addressed by conditions designed to ensure the interests of both parties could co-exist on Minderoo and the payment of compensation (if appropriate).

Public interest considerations

Forrest submitted that, in these circumstances, the deficiencies in the 2011 mining proposal lodged by Yarri raised significant environmental and public interest issues that were sufficient to warrant a recommendation that the Applications be refused.

Warden Wilson held, citing with approval Warden Calder’s comments in Baxter & Ors v Serpentine- Jarrahdale Ratepayers And Residents Association , that an application should not be rejected on environmental grounds unless the land in dispute is of significant environmental importance and conditions would not be appropriate.

Warden Wilson held that in this case there were no significant environmental issues that could not be dealt with by conditions.  Further, the 2011 mining proposal was not so inconsistent with the Guidelines as to be contrary to the public interest.