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Western Australian Student Law Review |
TIME FOR A TURN-AROUND? A REVIEW OF THE GROUND TURNOVER PRINCIPLE UNDERLYING THE MINING ACT 1978 (WA)
AMELIA DEVLYN[*]
MINING LAW––PRINCIPLE OF GROUND TURNOVER––MINING ACT 1978 (WA)––SECTIONS 45(2), 69, AND 85A––PROHIBITION ON TENEMENT APPLICATIONS BY PRIOR TENEMENT HOLDERS AND RELATED PERSONS
ABSTRACT
A key aim of the Mining Act 1978 (WA) is the principle of ground turnover; that is, that land with potential for minerals be made available for mining and exploration and actively worked. This article explores whether ss 45(2), 69, and 85A are effective in promoting the objective of ground turnover by reference to decisions of the Warden’s Court and the Supreme Court of Western Australia, the potential consequences for applicants who breach the prohibitions in ss 45(2), 69, and 85A, and the circumstances in which those prohibitions will not be strictly enforced. It concludes that, while the courts have recognised that the ground turnover principle is an important purpose underlying the Act and, in particular, ss 45(2), 69 and 85A, those sections have not been strictly enforced. Rather, legislative amendment is required to ensure consistency and clarity for prospective tenement applicants and better serve ground turnover as an important objective of the Act
An important principle of the Mining Act 1978 (WA) (‘the Act’) is ground turnover; that is, land with the potential for minerals should be available for mining and exploration. This objective ensures that ‘areas are available to be adequately explored for potential resources’.[1] However, the extent to which this objective is promoted by, ss 45(2), 69, and 85A of the Act is unclear. These sections prohibit certain persons, who have an interest in a prior tenement or are related to a prior tenement holder, from making an application for a subsequent exploration or prospecting licence upon surrender or forfeiture. A number of Western Australia Warden’s Court and Supreme Court decisions have shed light on the interpretation and effect of these sections and the turnover principle. Notable cases include: Ex parte Devant Pty Ltd v Minister for Mines (‘Devant’);[2] Telferscot Nominees Pty Ltd v Chameleon Mining NL (‘Telferscot Nominees’);[3] Korab Resources Ltd v Richmond (‘Korab Resources’);[4] and Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (‘Yarri Mining v Eaglefield’).[5]
This article will examine how Western Australian courts have applied the ground turnover principle and whether, in enforcing ss 45(2), 69, and 85A, the principle of ground turnover has been achieved. Part II will discuss ss 45(2), 69, and 85A of the Act, followed by a review of the ground turnover principle in Part III. Part IV will explore the various case authorities listed above, their impact on the ground turnover principle, and the consequences of breaches of those sections. Part V will then discuss the enforcement of ss 45(2), 69, and 85A and whether those provisions have been effective in promoting ground turnover. As will be seen, while ss 45(2), 69, and 85A prescribe categories of ‘related’ persons who are prohibited from making successive exploration or prospecting licence applications, there is some ambiguity as to applications by persons who are not prohibited by those sections, but which arguably appear on their face to be ‘related’; thereby circumventing the Act’s turnover objective.
Sections 45(2), 69, and 85A of the Act mirror one another and relate to prospecting licences, exploration licences, and mining leases, respectively.
Under s 45(2) of the Act:
When a prospecting licence is surrendered, forfeited or expires the land the subject of the prospecting licence or any part thereof shall not be marked out or applied for as a prospecting licence or an exploration licence —
(a) by or on behalf of the person who was the holder of the prospecting licence immediately prior to the date of the surrender, forfeiture or expiry; or
(b) by or on behalf of any person who had an interest in the prospecting licence immediately prior to that date; or
(c) by or on behalf of any person who is related to a person referred to in paragraph (a) or (b),
within a period of 3 months from and including that date.
Sections 69 and 85A of the Act, pertaining to exploration licences and mining leases respectively, contain similar wording to the effect of s 45(2).[6] These provisions not only prohibit previous tenement holders from making successive applications for a prospecting or exploration licence, but also persons who had an interest in the prior tenement and ‘related’ persons, as defined by s 8(4) of the Act:[7]
(4) For the purposes of this Act a person is related to —
(a) an individual, if the person is —
(i) a spouse or de facto partner; or
(ii) a parent, grandparent or great-grandparent; or
(iii) a child, grandchild or great-grandchild; or
(iv) a sibling,
of the individual, whether the relationship is a step relationship or a relationship established by, or traced through marriage or a de facto relationship, a written law or a natural relationship; and
(b) a body corporate, if the person is a related entity (as defined in section 9 of the Corporations Act) in relation to the body corporate.
In respect of a body corporate, a ‘related entity’ is defined in s 9 of the Corporations Act 2001 (Cth) as:
(a) a promoter of the body;
(b) a relative of such a promoter;
(c) a relative of a spouse of such a promoter;
(d) a director or member of the body or of a related body corporate;
(e) a relative of such a director or member;
(f) a relative of a spouse of such a director or member;
(g) a body corporate that is related to the first‑mentioned body;
(h) a beneficiary under a trust of which the first‑mentioned body is or has at any time been a trustee;
(i) a relative of such a beneficiary;
(j) a relative of a spouse of such a beneficiary;
(k) a body corporate one of whose directors is also a director of the first‑mentioned body;
(l) a trustee of a trust under which a person is a beneficiary, where the person is a related entity of the first‑mentioned body because of any other application or applications of this definition.
It is clear that the purpose of ss 45(2), 69, and 85A is to ensure that land be made available to new tenement applicants for exploration and mining activities. Although these sections do prescribe certain categories of persons who are prohibited from making successive tenement applications as they are deemed ‘related’ to the prior tenement holder, there is some ambiguity as to applications by persons beyond those prescribed by the Act but which may still amount to being ‘related’. This, in turn, calls into question whether the principle of ground turnover is being promoted effectively by the enforcement of ss 45(2), 69, and 85A.
Ground turnover is the principle that all land is open and available for mining, in order to encourage mining and prospecting in Western Australia.[8] Promoting the ground turnover principle is the underlying purpose of not only ss 45(2), 69, and 85A but of the Act as whole. As mentioned above, these sections prevent a prior holder, prior interested party or applicable related party from tying up the same ground on successive applications,[9] and encourages ‘the entry of new players’.[10] In the 1996 decision of Devant,[11] the Supreme Court of Western Australia recognised that s 45(2) is directed to ensuring that persons other than the former holder of a prospecting licence have an opportunity to prospect the land.[12] Later, in the 2013 decision of Eaglefield Holdings Pty Ltd v Denton Trading Pty Ltd (‘Eaglefield Holdings’),[13] Magistrate Tavener of the Warden’s Court held that ground turnover is the ‘underlying principle’ of the Act and ‘highlights the need to review the particular actions of the applicant and consider how those actions impacted upon the promotion of mining’.[14] Magistrate Tavener further held that the scope and primary purpose of the Act is ‘to ensure as far as practicable that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration’.[15] Clearly the Warden’s Court and Supreme Court over the last 20 years consider that ground turnover is an important principle to which the Act is directed to ensuring, and recognise that it underlies sections such as ss 45(2), 69, and 85A. However, the extent to which the objective of ground turnover is, in practice, promoted by the courts is unclear, as a number of cases relating to these sections do not seem to promote this objective in recommending the grant of tenement applications.
A Devant
Devant saw the Western Australian Supreme Court explore the definition and application of the ground turnover objective behinds 45(2) of the Act. This case has been positively considered in later decisions of the Warden’s Court as authority for the ground turnover objective of the Act.[16] Mr Chitty, the director and majority shareholder of Devant Pty Ltd, surrendered a number of prospecting licences. Some 30 minutes after the surrender of those prospecting licences, Devant Pty Ltd lodged applications for prospecting licences over the same ground. The Minister refused the applications of Devant Pty Ltd, who appealed to the Supreme Court of Western Australia. The Minister refused the applications on the grounds that the surrender and application formed a collusive action that was intended to circumvent the ground turnover principle underlying s 45(2) of the Act.[17]
Kennedy J held that s 45(2) is directed to ensuring that persons other than the former holder of a prospecting licence have an opportunity to prospect the land. His Honour also remarked that the purpose of the s 45(2) is ‘to avoid locking up prospecting areas in the same hands for extended periods and thereby to encourage prospecting in the State’.[18] Steytler J also recognised that an underlying principle of the Act is ‘to provide for ground turnover by having short terms for licences so that ground is explored and either converted to mining lease or surrendered’, and held that s 45(2) supports this principle ‘by providing that a prospecting licence should not be marked out or applied for by or on behalf of any person who was the holder of or had an interest in the prospecting licence immediately before that date’.[19] In this case, his Honour held that the short period of time between surrender and the new application was such that the two actions may have been done in a collusive manner to circumvent the ground turnover principle.[20] Accordingly, the Court upheld the Minister’s decision to refuse the prospecting licence applications, on the basis that the surrender and subsequent application for prospecting licences formed a collusive action by Mr Chitty and Devant Pty Ltd to undermine the turnover principle behind s 45(2) of the Act and breach the prohibition under that section.
This decision remains a key precedent for the ground turnover principle enshrined in the Act as the first decision of the Supreme Court to properly consider the issue of ground turnover and the surrounding policy considerations that may arise in refusing the grant of an exploration or prospecting licence. Devant laid the foundations for future consideration of this issue and, as mentioned above, has subsequently been relied upon by the Warden’s Court and the Supreme Court as authority for the ground turnover principle. It is an example of one of the major consequences flowing from a breach of the prohibitions contained in ss 45(2), 69, and 85A of the Act and circumventing the ground turnover principle; that is, the refusal of a licence application. In the Supreme Court’s view, it was ‘entirely reasonable for the Minister to have concluded that there is a public interest in ensuring that the policy which underlies s 45 of the Act is not circumvented’, and subsequently upheld the Minister’s decision and refused the applications of Devant Pty Ltd for a prospecting licence.[21]
B Telferscot Nominees
The Warden’s Court in Telferscot Nominees[22] considered the definition of ‘interest’ and the enforcement of s 45(2) of the Act. This decision has not been judicially considered in any later decisions of the Warden’s Court or the Supreme Court. Chameleon Mining NL (‘Chameleon’) lodged an objection to the application for a prospecting licence by Telferscot Nominees Pty Ltd (‘Telferscot’), the grounds for objection being that the applicant was holding the application on trust for the previous holder of the land, in breach of s 45(2).[23] Chameleon argued that Telferscot had an interest in the tenements prior to surrender, as Telferscot reached an agreement with the previous tenement holder, William Robert Richmond (‘Richmond’), that the surrenders would take place at a prearranged time to enable Telferscot to have priority.[24] Richmond also assisted in marking out the land for Telferscot’s application as an agent.[25]
Stipendiary Magistrate Richardson considered the interpretation of the term ‘interest’ contained in s 45(2) of the Act and the intention of the section, and held that Telferscot had no interest in the tenement prior to surrender. Section 45(2) was said to prohibit the former tenement older from marking out and applying for grounds as an applicant in his or her own right, but ‘does not mean that a former holder cannot mark out and/or apply for the tenement as an agent for another person or entity’.[26] The reference to ‘interest’ in s 45(2) refers to an interest in the prospecting licence itself, and not to any personal rights in contract of a tenement holder or other persons.
Further, the applications were made in the name of Telferscot, not Richmond, and thus, Telferscot was deemed to have made their applications on its own behalf.[27] Telferscot was held to have no interest in the tenements prior to the surrender for the purposes of s 45(2),[28] and the solicitor-client relationship between Telferscot and Richmond was held not to provide a basis for the applications to be set aside.[29] As such, the Warden’s Court concluded that Telferscot had not breached s 45(2) of the Act.
The Warden’s Court in Telferscot Nominees has provided certainty as to the meaning of ‘interest’ for the purposes of s 45(2) and the extent of the ground turnover principle underlying ss 45(2), 69, and 85A of the Act. Until such time as this case is judicially considered, it remains an authority for the proposition that there is no prohibition in the Act for a prior tenement holder to act as an agent in marking out the tenement for an exploration or prospecting licence application following the surrender of a tenement. Further, the Warden’s Court has held that a solicitor-client relationship is not a basis for setting aside prospective tenement applications pursuant to s 45(2) (and likewise ss 69 and 85A) and, as such, does not amount to a contravention of the ground turnover principle.[30] However, in the author’s view, such a relationship with the prior tenement holder and knowledge of the surrender of the tenement fails to promote the ground turnover principle.
C Korab Resources
The Warden’s Court in Korab Resources considered the ground turnover principle behind s 69 of the Act and whether circumstances in which an applicant is exclusively warned of an upcoming surrender evades this principle.[31] This case was positively considered in Eaglefield Holdings as an example of an application for an exploration licence where there was an allegation of collusion, but in which it was found that the ground turnover requirement was not circumvented.[32]
Korab Resources Pty Ltd (‘Korab’) applied for the grant of an exploration licence over land previously held by ABM Resources Operations Pty Ltd (‘ABM’); however, William Robert Richmond (‘Richmond’) objected to the grant of the tenement.[33] Korab was notified of the upcoming surrender of the tenement by ABM. Richmond alleged this gave Korab exclusive knowledge of the pending surrender and an exclusive opportunity to lodge an application for an exploration licence.[34] Richmond argued that there had been a collusive scheme between Korab and ABM, which deprived the public the opportunity to make an application for the surrendered land, and was contrary to the ground turnover policy principle intended by ss 45(2), 69(1), and 85A of the Act.[35]
Korab submitted that prior knowledge of the impending surrender did not constitute reasonable grounds for the Minister to refuse the application.[36] Magistrate Calder agreed with Korab’s submissions and held that the ground turnover principle was not circumvented in this case, as Korab was an independent applicant and was in no way related to or had an interest in ABM.[37]
Section 69 (or any other part of the Act) does not prohibit a tenement holder from informing anyone, or any number of persons of the holder's intention, to surrender a tenement.[38] According to Magistrate Calder:
There is nothing in the legislation that expressly or impliedly prohibits an applicant for grant of a tenement from making such an application having been told by the surrendering holder or any other person or class of persons of the pending surrender and of the precise time and date that the surrender will be lodged.[39]
It was held that ‘[t]he notifying of an intention to surrender to one party exclusively does not, per se, defeat the ground turn-over principle’,[40] and informing an exclusive person of the surrender of a tenement does not amount to collusion of the kind that is intended to be prevented by s 69 and its mirror provisions.[41] On the above grounds, Magistrate Calder concluded by recommending that the Minister grant the exploration licence to Korab.[42]
The major consequence of the Warden’s Court’s decision in Korab Resources is that prior notification of surrender does not circumvent the ground turnover principle in circumstances where the prior tenement holder and the applicant are independent and not ‘related’ as defined by the Act.[43] According to the Warden’s Court, s 69 (and, in the same vein, ss 45(2) and 85A) does not prohibit the making of an agreement and the provision of consideration for information concerning a pending surrender.[44]
While it was noted in Devant that the applicant had knowledge of the filing of the surrenders, the Court determined that the collusive relationship between Devant Pty Ltd and its director was such that it was intended to circumvent the ground turnover principle.[45] It was not necessary for the Court in Devant to determine whether or not that prior knowledge of Devant Pty Ltd was, of itself, a matter that enlivened the power of the Minister under s 111A to terminate or refuse the application.
However, in Korab Resources, the Warden’s Court went further and held that such knowledge, in the absence of a collusive relationship, does not circumvent the ground turnover principle.[46] Although prior knowledge of the surrender of a tenement known to an independent applicant is not prescribed in s 69 the Act as being prohibited it, in my view, still circumvents the ground turnover principle in that it prevents other potential applicants, not known to the prior tenement holder, from having the opportunity to explore the land.
D Yarri Mining v Eaglefield
The Court of Appeal in Yarri Mining v Eaglefield discussed the interpretation of s 69 of the Act pertaining to exploration licences and the consequences of a breach of this provision.[47] It has subsequently been applied by the Supreme Court in Vincent Nominees Pty Ltd v Western Australian Planning Commission[48] and considered by the High Court of Australia in Forrest & Forrest Pty Ltd v Wilson & Ors[49] in the context of the Court of Appeal’s remarks as to statutory construction. However, there has been no further judicial consideration of the Court of Appeal’s remarks as to the ground turnover objective of the Act underlying ss 45(2), 69, and 85A.[50]
The second respondent, Narnoo, surrendered its exploration licence, the land of which was subject of certain graticular blocks.[51] The first respondent, Eaglefield Holdings Pty Ltd (‘Eaglefield’), on behalf of Narnoo, lodged two exploration licence applications a month after Narnoo’s surrender, which included overlapping land subject to Narnoo’s previous tenement.[52] The Minister granted Eaglefield the two exploration licences in 2003, and Eaglefield later transferred the licences to Narnoo in 2008. Yarri Mining Pty Ltd made an application for exploration licences over the land in 2008 and objected to the licences held by Narnoo.[53]
Yarri Mining Pty Ltd appealed the decision of the trial judge. The Court of Appeal held that an application for an exploration licence made in contravention of s 69(1) does not invalidate the application and subsequent grant of an exploration licence.[54]
Section 57(1) of the Act provides that the Minister has the discretion to grant an exploration licence.[55] The Court of Appeal was ‘satisfied that although an application is a precondition to the existence of the power in s 57(1), that condition is satisfied by the lodgement of an application in contravention of s 69(1)’.[56] McLure P, Owen and Buss JJA agreeing, gave the following reasons for such an interpretation:
1. such a construction avoids the potential for financial prejudice to third parties and uncertainty for persons dealing with registered tenement holders;[57]
2. the grant of a licence would otherwise be invalid regardless of the seriousness of the contravention of s 69(1);[58]
3. the purpose of s 69 of the Act is to give persons other than the former holder the opportunity to apply for a prospecting or exploration licence within the three-month period. There may be no interest in the area until many years later (as seen in the facts of this case);[59] and
4. a breach of s 69(1) would make the former holder liable for a penalty under s 154(2) of the Act.[60]
Despite the fact that the application made by Eaglefield was made in contravention of s 69, the Court of Appeal held that Eaglefield’s grant cannot now be impeached by reason of this previous breach of the provision of the Act.[61]
The failure to comply with s 69 was held to fall within the scope of s 59(6)(b) (which provides the Minister with the discretion to grant or refuse an exploration licence irrespective of whether the applicant has applied with the Act) and the first limb of s 116(2) (which ‘prevents impeachment or defeasance on account of any informality or irregularity’[62]) of the Act. As such, the application was deemed a valid grant of an exploration licence by the Minister.[63] It was held that under s 57(1) of the Act, the Minister has the discretion to grant a licence upon application, regardless of whether the application has contravened s 69.[64] Yarri Mining Pty Ltd sought to appeal the decision to the High Court, however special leave was refused.[65]
This decision marks the highest authority in the State to-date with regard to the ground turnover principle underlying ss 45(2), 69, and 85A of the Act. However, the Court of Appeal held that an applicant may undermine the principle of ground turnover and breach s 69, but still be granted an exploration licence and a penalty instead be issued.[66] It is the author’s view that this finding is inconsistent with the purpose of ground turnover underlying s 69, which is further considered below.
Although the Court of Appeal’s findings as to the purpose of s 69 have not been judicially considered since the decision of Yarri Mining v Eaglefield, it is now clear that an alternative consequence of a breach of ss 45(2), 69, and 85A is liability for a penalty under s 154 of the Act.[67] However, it seems the more common consequence that continues to flow from a breach of ss 45(2), 69, and 85A of the Act is the refusal of a tenement application, and it seems courts are reluctant to enforce both a penalty and the refusal of an application for a breach of ss 45(2), 69, and 85A.[68]
For example, in the 2015 decision of the Warden’s Court in Ozminex Pty Ltd v Nearology Pty Ltd (‘Ozminex’), [69] Ozminex Pty Ltd applied for an exploration licence within two days of the expiration of an exploration licence previously held by Echo Resources Ltd.[70] However, both companies had the same director.[71] Magistrate Zempilas held that the applicant breached s 69 and remarked that the applicant’s contravention ‘goes against the intent of the section which is to prevent those closely connected with an existing exploration to benefit from that association’.[72] In recommending that the application be refused, Magistrate Zempilas also held that Ozminex obtained an advantage in making its application within two days of the expiry of the previous licence, and that there was a real advantage for Ozminex if even partially successful with the application over a rival applicant.[73]
Cases such as Devant and Ozminex are examples of instances where tenement applications have been refused in circumstances where the prior tenement holder and the subsequent tenement applicant are related by reason of being a related entity, and the courts have recognised that the applicant would gain a real advantage over rival applicants if the application was granted.[74] In these cases, the applicant was clearly related to the prior tenement holder as prescribed by the Act. The courts in these instances recognised that the principle of ground turnover underlies ss 45(2) and 69 and, in enforcing those sections, promoted that principle. However, it appears that, in certain circumstances, the courts will not strictly enforce ss 45(2), 69, and 85A of the Act; resulting in a failure to uphold the Act’s turnover objective.
For example, in Korab Resources, it was held that the prohibition of these sections would not be enforced where a party is exclusively informed or given prior notice of an impending surrender.[75] There is no prohibition in any sections of the Act to this effect, and such an act of notice has not been held to defeat the ground turnover principle.[76] In Murchison Mining v Rowland, Stipendiary Magistrate Wilson held ‘[t]hat the Applicant is friends with a person who had a previous interest in the tenement or his lawyer does not of itself amount to proof of some relationship with the person to whom the provisions of s 85A of the Mining Act applies’.[77] This was held despite the fact that the applicant was a close friend of the former lessee and had assisted the former lessee by checking the marking out and completing the required Form 20.[78]
In Telferscot Nominees, acting as an agent or being involved in a solicitor-client relationship also does not amount to an interest in a prior tenement for the purposes of the sections, and does not provide a basis for applications to be set aside.[79] The Supreme Court in Yarri Mining v Eaglefield went further, determining that ‘[n]on-compliance with the Act does not invalidate an application for an exploration licence’.[80] The Minister still has the discretion to grant a licence irrespective of whether the application has complied with the requirements of the Act, and such a grant cannot be later impeached on account of any previous irregularity in the application;[81] even if the ground turnover principle has been circumvented.
In the author’s view, cases like Korab Resources, Murchison Mining v Rowland, and Telferscot Nominees have circumvented the ground turnover principle underlying ss 45(2), 69, and 85A of the Act. They, as Magistrate Zempilas held in Ozminex, go against the intent of the sections to prevent those closely connected with an existing exploration to benefit from that association, and do not encourage entry by new players.[82] Relationships like that between a solicitor and their client, agency, close friends, and parties to a commercial transaction who are notified of the upcoming surrender of a tenement are arguably closely connected to existing exploration, and do not allow other interested applicants the opportunity to explore the land for potential mining.[83] Although they may not be ‘related’ in the traditional sense of a spouse or director as defined in the Act, in allowing such applications, the courts are failing to promote the ground turnover principle underlying ss 45(2), 69, and 85A of the Act.
In any event, even if a technical breach of ss 45(2), 69, or 85A of the Act is not established, but is contrary to the ground turnover principle of the Act, the Minister (and, in turn, the Mining Warden) also has the discretion to refuse an application for a prospecting or exploration licence over such land on the grounds of public interest pursuant to s 111A of the Act.[84] Although this discretion exists so as to ensure, even if no breach is committed, the ground turnover principle is upheld, ss 45(2), 69, and 85A need to be improved so as to better promote the ground turnover principle in the first instance.
From the case authorities discussed above, it is clear that there are loopholes to the application of said sections and the ground turnover objective.[85] In order to be more effective in promoting ground turnover, ss 45(2), 69, and 85A should be amended so as to provide for situations like that of solicitor-client, agency, or the trading of information as to an impending surrender that currently evade the prohibitions of the Act.[86] As mentioned above, these situations may not be ‘related’ as the term is currently understood, but applicants in such cases are able to avoid the prohibitions under ss 45(2), 69, and 85A of the Act and circumvent the principle of ground turnover.[87] Amending these provisions will provide greater clarity and avoid providing an unfair advantage over other tenement applicants.
The ground turnover principle is the underlying purpose of ss 45(2), 69, and 85A of the Act, and an important objective of the Act as a whole. It is apparent from the case law that courts will recommend that an application for an exploration or prospecting licence is invalid where it is seemingly obvious that the parties are ‘related’ as that term is defined.[88] However, there are a number of circumstances in which the prohibition will not be strictly enforced, and it is still possible for applicants to evade their operation.[89] In order to be more effective in promoting the objective of ground turnover, ss 45(2), 69, and 85A should be amended so as to provide for the situations (like a solicitor-client relationship, agency, or the trading of information as to an impending surrender) that currently evade the prohibitions of the Act, and to ensure the provisions are strictly enforced.
[*] LLB (Dist), Murdoch University, Murdoch.
[1] Department of Mines and Petroleum, Doing Business in WA Resources Sector, Government of Western Australia <http://www.dmp.wa.gov.au/Investors/Doing-business-in-WA-1498.aspx> Eaglefield Holdings Pty Ltd v Denton Trading Pty Ltd [2013] WAMW 22, [2].
[2] (Unreported, Supreme Court of Western Australia, Kennedy, Pidgeon and Steytler JJ, 18 December 1996) (‘Devant’).
[3] (2005) 42 SR (WA) 132 (‘Telferscot Nominees’).
[4] [2007] WAMW 16 (‘Korab Resources’).
[5] (2010) 41 WAR 134; [2010] WASCA 132 (‘Yarri Mining v Eaglefield ’).
[6] See Mining Act 1978 (WA) ss 69 and 85A. However, it is important to note that a prior tenement holder is not prevented from applying for a mining lease following the surrender or forfeiture of an exploration or prospecting licence. This is encouraged, as tenement holders should either apply for a mining lease or give up the land to a new interested party in order to ensure the ground turnover principle is complied with: Michael Hunt, Tim Kavenagh and James Hunt, Hunt on Mining Law of Western Australia (5th ed, 2015, The Federation Press) 67, 88.
[7] Mining Act 1978 (WA) ss 45(2), 69, and 85A.
[8] Devant (n 2) 4 (Steytler J).
[9] See Audax Resources Pty Ltd v Rosane Pty Ltd [2005] WAMW 8, [31] (‘Audax’).
[10] Michael Hunt, ‘Comment on the Policy Objectives of Mining Legislation and the Queensland Review’ [1987] AMPLA Yearbook 85, 91.
[11] Devant (n 2).
[12] Ibid 4.
[13] [2013] WAMW 22 (‘Eaglefield Holdings’).
[14] Ibid [11].
[15] Ibid [8], citing Nova Resources NL v French (1995) 12 WAR 50.
[16] See, eg, Eaglefield Holdings (n 13); Korab Resources (n 4); Telferscot Nominees (n 3); Audax (n 9); Roberts v Sunkar [2000] WAMW 5.
[17] Devant (n 2) 11–12 (Steytler J), cited in Audax (n 9) [51].
[18] Devant (n 2) 4.
[19] Ibid 7.
[20] Ibid 7.
[21] Devant (n 2) 16 (Steytler J).
[22] Telferscot Nominees (n 3) 133.
[23] Ibid.
[24] Ibid 140.
[25] Ibid 138.
[26] Ibid 139.
[27] Ibid 140.
[28] Ibid 139.
[29] Ibid 142.
[30] Ibid 142.
[31] Korab Resources (n 4) [41].
[32] Eaglefield Holdings (n 13) [12]–[13].
[33] Korab Resources (n 4) [2].
[34] Ibid.
[35] Ibid [3], [16].
[36] Ibid [24].
[37] Ibid [42].
[38] Ibid [43].
[39] Ibid [48].
[40] Ibid [43].
[41] Ibid, citing Devant (n 2).
[42] Korab Resources (n 4) [51].
[43] Ibid [41]–[42].
[44] Ibid [48].
[45] Devant (n 2) 13–14.
[46] Korab Resources (n 4) [42].
[47] Yarri Mining v Eaglefield (n 5).
[48] [2012] WASC 28; (2012) 187 LGERA 303, 336.
[49] [2017] HCA 30; (2017) 262 CLR 510, 541.
[50] I note the Warden’s Court in Ozminex Pty Ltd v Nearology Pty Ltd [2015] WAMW 7 has also considered Yarri Mining v Eaglefield, but only for the proposition that non-compliance with the Act does not invalidate an application for an exploration licence: [22]. As discussed further below, the applicant’s application was refused in any event due to a breach of s 69.
[51] Yarri Mining v Eaglefield (n 5) [3].
[52] Ibid [4].
[53] Ibid [7].
[54] Hunt, Kavenagh and Hunt (n 6) 88.
[55] Mining Act 1978 (WA) s 57(1).
[56] Yarri Mining v Eaglefield (n 5) [61].
[57] Ibid [56].
[58] Ibid [57].
[59] Ibid [58].
[60] Ibid [59].
[61] Ibid [61].
[62] Ibid [20].
[63] Ibid [61], citing Hunter Resources v Melville [1988] HCA 5; (1988) 164 CLR 234 and Crocker Consolidated Pty Ltd v Wille [1988] WAR 187.
[64] Ibid.
[65] See Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2011] HCATrans 089 (Bell and Hayne JJ).
[66] Yarri Mining v Eaglefield (n 5) [59]–[61].
[67] Ibid [59].
[68] Ibid.
[69] [2015] WAMW 7 (‘Ozminex’).
[70] Ibid.
[71] Ibid [14].
[72] Ibid [21].
[73] Ibid [24].
[74] Ibid [21]; Devant (n 2) 13 (Steytler J).
[75] Korab Resources (n 4) [48].
[76] Ibid [43].
[77] Murchsion Mining v Rowland [2002] WAMW 16, [12].
[78] Hunt, Kavenagh and Hunt (n 6) 116.
[79] See Telferscot Nominees (n 3).
[80] Ozminex (n 69) [22], citing Yarri Mining v Eaglefield (n 5).
[81] Yarri Mining v Eaglefield (n 5) [17], [19]; Mining Act 1978 (WA) ss 59(6)(b) and 116(2).
[82] Ozminex (n 69) [21]–[24].
[83] Ibid.
[84] See, eg, Devant (n 2) 7; Boddington Nominees Pty Ltd v Howe (Warden’s Court, 11 June 1999); Audax (n 9); Eaglefield Holdings (n 13).
[85] Yarri Mining v Eaglefield (n 5) [59]–[61].
[86] Telferscot Nominees (n 3) 140.
[87] Korab Resources (n 4) [41]; Murchsion Mining v Rowland (n 77) [12].
[88] See, eg, Devant (n 2); Ozminex (n 69).
[89] See, eg, Korab Resources Ltd (n 4); Devant (n 2).
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