Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd - [2022] WASC 362

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BLUE RIBBON MINES PTY LTD -v- ROY HILL INFRASTRUCTURE PTY LTD [2022] WASC 362
CORAM:   QUINLAN CJ
HEARD:   18 OCTOBER 2022
DELIVERED          :   31 OCTOBER 2022
FILE NO:   CIV 1320 of 2022
BETWEEN:   BLUE RIBBON MINES PTY LTD
Plaintiff
AND
ROY HILL INFRASTRUCTURE PTY LTD
First Objector
THE PILBARA INFRASTRUCTURE PTY LTD
Second Objector
FMG MAGNETITE PTY LTD
Third Objector
PILBARA GAS PIPELINE PTY LTD
Fourth Objector
BHP MINERALS PTY LTD & ORS
Fifth Objector

Catchwords:

Mining law – Exploration licences – Requirement to grant licence over blocks – Whether Minister may grant exploration licence over part of a block where miscellaneous licence over rest of block – Whether Minister may grant over part of a block where block includes private land – Statutory construction

Mining law – Power of Minister to impose conditions on exploration licence – Whether power to impose 'no mining' conditions – Whether power to impose ambulatory conditions

Special case – Whether question hypothetical or involves advisory opinion – Nature of special case stated

Legislation:

Interpretation Act 1984 (WA)
Iron Ore (Mount Newman) Agreement Act 1964 (WA)
Land Act 1933 (WA)
Mining Act 1978 (WA)
Mining Amendment Act 1990 (WA)
Mining Amendment Act 2002 (WA)
Mining Amendment Act 2004 (WA)
Mining Amendment Bill 1990 (WA)
Mining Amendment Bill 2001 (WA)
Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 (WA)

Result:

Questions in special case answered

Category: A

Representation:

Counsel:

Plaintiff	:	T J Kavenagh
First Objector	:	N P Gentilli
Second Objector	:	A J Papamatheos & T I Masson
Third Objector	:	A J Papamatheos & T I Masson
Fourth Objector	:	A J Papamatheos & T I Masson
Fifth Objector	:	S K Dharmananda SC & S B Nadilo
Amicus Curiae	:	F B Seaward

Solicitors:

Plaintiff	:	Kavenagh Legal
First Objector	:	Jackson McDonald
Second Objector	:	Ensign Legal
Third Objector	:	Ensign Legal
Fourth Objector	:	Ensign Legal
Fifth Objector	:	King & Wood Mallesons
Amicus Curiae	:	State Solicitor's Office

Cases referred to in decision:

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Australian Postal Commission v Melbourne City Council [2005] VSCA 295; (2005) 14 VR 678
Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334
Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WAMW 3
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 196 LGERA 372
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Hawks v Shadmar Pty Ltd [2004] WASC 252
Hay v Liverpool City Raceway Pty Ltd (1980) 143 CLR 672
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 546
Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531
TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

Table of Contents

Introduction and overview

Agreed facts

Application

Roy Hill's objection

FMG objectors' objections

BHP objectors' objections

The parties seek to resolve the objections

DMIRS expresses doubt as to the lawfulness of the proposed course

Special case – preliminary remarks

Principles of statutory construction

Legislative context

Land open for mining

Mining tenements

Exploration licences

Some legislative history

Questions 1 and 2 of the special case

Whole blocks vs parts of blocks

The exceptions that prove the rule

The conversion issue

The FMG objector's alternative configuration

Answers to Questions 1 and 2

Question 3 of the special case

Question 4 of the special case

Conclusion

QUINLAN CJ:

Introduction and overview

On 1 April 2022, the warden at Perth, pursuant to s 146 of the Mining Act 1978 (WA), reserved for the opinion of this Court, in the form of a special case, four questions of law arising out of an application for an exploration licence lodged by Blue Ribbon Mines Pty Ltd (Blue Ribbon) pursuant to s 58 of the Mining Act.
The application (E45/5041) was made with respect to 63 blocks (as defined in the Mining Act) in the Hamersley Range within the Pilbara region of this State.
Notices of objection to the granting of the application were, relevantly, lodged by the following parties (objectors):
(a)Roy Hill Infrastructure Pty Ltd (Roy Hill), on the basis that the land the subject of the application encroaches on the land the subject of a miscellaneous licence (L4SA) held by Roy Hill under the Mining Act upon which is constructed a railway and associated infrastructure;
(b)The Pilbara Infrastructure Pty Ltd, FMG Magnetite Pty Ltd and Pilbara Gas Pipeline Pty Ltd (the FMG objectors), on the basis that the land the subject of the application encroaches on the land the subject of a number of miscellaneous licences (L1SA, L45/318 and L45/319) held by the FMG objectors under the Mining Act upon which are constructed a variety of infrastructure; and
(c)BHP Billiton Minerals Pty Ltd (as it was then known), Itochu Minerals & Energy of Australia Pty Ltd and Mitsui‑Itochu Iron Pty Ltd (BHP objectors) on the basis that the land the subject of the application encroaches on the land the subject of a general lease (General Lease I154279) held by the BHP objectors under the Land Act 1933 (WA), upon which is a railway and associated infrastructure.
The relationship between the application area and the various tenures[1] held by the objectors can be seen depicted in the following plan:[2]
[1] In these reasons, consistent with usage in this State and elsewhere, I have used 'tenure' to include tenements granted under the Mining Act, recognising that mining tenements do not create any estate or interest in land (see TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576).
[2] The plan is taken from the FMG objectors' submissions in reply dated 30 September 2022, Schedule A. It is for illustrative purposes only and is not intended to be definitive.
The light blue coloured polygon on this plan depicts the area of land the subject of Blue Ribbon's application for an exploration licence. As can be seen, that area covers 63 squares or 'blocks' on the plan. The area depicted in green on the plan depicts the area of land the subject of Roy Hill's miscellaneous licence. The area depicted in red on the plan depicts the areas of land the subject of the FMG objectors' miscellaneous licences. As is apparent, the areas coloured green and red together overlap with ten of the blocks the subject of Blue Ribbon's application (i.e. blocks 632 f, g, l, m, q, r, v and w and blocks 704 b and g). The orange coloured line to the right of the plan depicts the BHP objectors' general lease. That line overlaps with one of the blocks the subject of Blue Ribbon's application (i.e. block 633 f).
Blue Ribbon and the objectors endeavoured to resolve their objections by a series of agreed programming directions. Those programming directions, in general terms, propose that the warden give consideration to recommending that the Minister grant the exploration licence subject to:
(a)the areas the subject of the objectors' tenure being excised from the area the subject of the exploration licence. The effect of the excisions proposed would, if made, have the result that the licence would include parts of blocks (namely part of those blocks that overlap with the objectors' tenure); and
(b)conditions or endorsements being imposed on the exploration licence prohibiting certain activity, including mining, on certain areas within the exploration licence, such conditions being intended to preserve the interests of the objectors in relation to their tenures. The proposed conditions include, for example, conditions prohibiting mining within identified 'safety zones' without the approval of the Minister.
As a consequence of a number of issues raised by the Department of Mines, Industry Regulation and Safety (DMIRS), a controversy has arisen as to the power of the Minister to grant the exploration licence in the terms proposed by Blue Ribbon and the objectors.
As a consequence, the warden reserved for the opinion of this Court the following questions of law:[3]
Question 1:Does the Minister have power under the Mining Act to excise areas the subject of a miscellaneous licence (e.g. L1SA, L45/318, L45/319 and L4SA) from the grant of an application for an exploration licence (e.g. E45/5041)?
Question 2:Does the Minister have power to excise private land (e.g. the land the subject of General Lease I154279) from the grant of an application for an exploration licence (e.g. by granting E45/5041 with the proposed conditions and excisions contemplated in the relevant proposed programming orders)?
Question 3:Does the Minister have power to impose conditions which prohibit mining or exploration activities upon the grant of an exploration licence (e.g. E45/5041) in respect of any area overlapping a miscellaneous licence (e.g. L1SA, L45/318, L45/319 and L4SA) or private land (e.g. General Lease I154279), or areas adjacent to the overlapping areas?
Question 4:Does the Minister have power to impose conditions which:
(a)prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, such as proposed at paragraphs 6(c), 6(d), 6(e), 6(f), 6(g) and 6(i) of the BHP Objectors' Substituted MOPD and at paragraphs 3(b), 3(c), 3(d), 3(e), 3(f), 3(g) and 3(h) of the FMG Objectors' Substituted MOPD, including where any such consent is to be provided as part of a consultation process; or
(b)require the applicant to comply with conditions imposed in the future by the Minister, such as proposed at paragraph 3(h) of the Roy Hill Objector's Substituted MOPD and at paragraph 6(j) of the BHP Objectors' Substituted MOPD?
[3] The precise form of the questions of law in the Case Stated transmitted by the warden on 1 April 2022 differs from the form in which the questions are expressed in the Special Case Stated made by the warden on 14 March 2022. The substance of the questions is, however, the same. As the questions as expressed in the Special Case Stated made by the warden on 14 March 2022 are more precise, and refer to the agreed facts, I have (with the concurrence of the parties) set out the questions in the terms that they appear in that document.
For the reasons that follow, I answer the questions of law reserved as follows:
Answer 1:No, the Minister does not have power to excise areas the subject of a miscellaneous licence from the grant of an application for an exploration licence, in the sense that the Minister may not grant an exploration licence over part of a block by reason of the presence of a miscellaneous licence over the rest of that block.
Answer 2:No, the Minister does not have power to excise areas the subject of a general lease (being private land) from the grant of an application for an exploration licence, in the sense that the Minister may not grant an exploration licence over part of a block by reason of the presence of private land over the rest of that block.
Answer 3:Yes, subject to the conditions otherwise being validly imposed in accordance with, and for the purposes of, the Mining Act, the Minister does have power to impose conditions which prohibit mining or exploration activities upon the grant of an exploration licence in respect of any area overlapping a miscellaneous licence or private land, or areas adjacent to the overlapping areas.
Answer 4:Yes, subject to the conditions otherwise being validly imposed in accordance with, and for the purposes, of the Mining Act (including considerations of certainty and finality), the Minister does have power to impose conditions which:
(a)prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, including where any consent is to be provided as part of a consultation process; or
(b)require the applicant to comply with conditions imposed in the future by the Minister.
These answers must be read with, and understood in light of, the reasons that follow.
Before turning to the questions of law, I will identify, in further detail, certain facts agreed by the parties for the purposes of the special case.

Agreed facts

The Special Case Stated sets out a series of agreed facts for the purposes of the hearing of the special case. The Special Case Stated includes 24 agreed documents. As will be apparent, a number of the agreed facts are expressly stated to be 'assumed as a matter of fact for the purposes of [the] special case'. As I observe in the next section of these reasons, it is important to recognise that those assumed facts have not been found by the warden for the purposes of Blue Ribbon's application.
Relevantly, the facts agreed by the parties include the following.

Application

On 4 October 2017, Blue Ribbon applied for an exploration licence E45/5041 (application) under s 58 of the Mining Act. The application identified the application as being made with respect to the following 'blocks' or 'graticular sections':[4]
[4] Special Case Stated dated 14 March 2022, tab 20, 18.
The application also included a plan depicting the blocks the subject of the application. That plan is consistent with the depiction of the blocks on the plan at [4] above. The application does not identify the area the subject of the application in hectares or km²; rather, the area is expressed to be 63 BL (i.e. blocks).

Roy Hill's objection

On 5 October 2017, Roy Hill lodged objection 515714 to the application. The objection relates to the land the subject of miscellaneous licence L4SA, which is held by Roy Hill.
Miscellaneous licence L4SA was granted pursuant to the Mining Act and the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 (WA). Roy Hill has constructed a substantial railway line on the land the subject of miscellaneous licence L4SA, as well as associated infrastructure, including a rail access road, level crossings and signalling and communications equipment.
The application encroaches on the land the subject of miscellaneous licence L4SA to the extent of 202.1914 ha.
The objection by Roy Hill is made on the basis that (and assumed as a matter of fact for the purposes of the special case), inter alia, the grant of the application will injuriously affect Roy Hill's activities and the use and enjoyment of L4SA contrary to s 117 of the Mining Act.

FMG objectors' objections

On 31 October 2017, the FMG objectors each lodged objections to the application, being objections 517415, 517416 and 517417. The objections relate to the land the subject of miscellaneous licences L1SA, L45/318 and L45/319.[5] Miscellaneous licence L1SA is held by Pilbara Infrastructure Pty Ltd. At the time that the objections were lodged miscellaneous licences L45/318 and L45/319 were held by FMG Magnetite Pty Ltd. Those licences are now held by Pilbara Water and Power Pty Ltd, a related company of the FMG objectors.
[5] A further objection by Pilbara Gas Pipeline Pty Ltd in relation to the encroachment of the application on another miscellaneous licence (L45/332) has since been withdrawn.
The application encroaches on the land the subject of miscellaneous licence L1SA to the extent of 693.3911 ha.
The infrastructure located in the area of overlap between the application and L1SA includes: a railway, a level crossing, culverts, levy banks, drainage lines and floodways, ballast loading and unloading bay, a bridge, borrow pits, a railway maintenance track, wayside and condition monitoring equipment, pastoral fencing and cattle grids, fibre optic cabling, bores, and truck infrastructure including a weighbridge, hot bearing and wheel detector, stream flow detector, creek telemetry, signal cabinets and solar panels (L1SA Infrastructure).
The application encroaches on the land the subject of miscellaneous licence 45/318 to the extent of 139.1265 ha.
The application encroaches on the land the subject of miscellaneous licence 45/319 to the extent of 162.3823 ha.
Miscellaneous licences 45/318 and 45/319 were each granted for the following purposes: a bore, a bore field, a communications facility, a drainage channel, a pipeline, a power generation and transmission facility, a power line, a pump station, a road, a storage or transportation facility for minerals or mineral concentrate, a water management facility, a workshop and storage facility, for taking water and searching for groundwater.
Water and slurry pipelines and related infrastructure are currently under construction on miscellaneous licences 45/318 and 45/319 as part of the Iron Bridge Magnetite Project (Iron Bridge Infrastructure).
The FMG objectors' objections are made on the basis that (and assumed as a matter of fact for the purposes of the special case):
(a)the grant of the application would be likely to unduly prejudice or interfere with the L1SA Infrastructure and Iron Bridge Infrastructure and the rights of the relevant FMG party; and/or
(b)the grant of the application would be likely to injuriously affect the rights of the relevant FMG party (including the L1SA Infrastructure and Iron Bridge Infrastructure) contrary to the terms of s 117 of the Mining Act.

BHP objectors' objections

On 31 October 2017, the BHP objectors lodged objection 517470 to the application.
The BHP objectors are participants in the Mount Newman Joint Venture. Pursuant to the Iron Ore (Mount Newman) Agreement Act 1964 (WA) (Mount Newman State Agreement), the BHP objectors constructed and now operate a substantial rail line (Mount Newman Railway), as well as associated infrastructure including rail access roads, level crossings and lights, and signalling equipment (BHP objectors' infrastructure).
The BHP objectors' infrastructure is principally constructed on the land the subject of General Lease I154279 held by the BHP objectors. The application encroaches on the land the subject of General Lease I154279 to the extent of 14.8822 ha.
The objection by the BHP objectors is made on the basis that (and assumed as a matter of fact for the purposes of the special case):
(a)the grant of the application would injuriously affect, prejudice, interfere with or cause damage to infrastructure constructed and/or activities undertaken (and/or to infrastructure proposed to be constructed and/or activities proposed to be undertaken) on the land the subject of General Lease I154279;
(b)the grant of the application would unduly prejudice and/or interfere with the BHP objectors' operations under the Mount Newman State Agreement;
(c)the grant of the application will derogate from the BHP objectors' right to peaceably hold and enjoy the land the subject of General Lease I154279 without interruption, as contemplated by cl 2(1) of the lease agreement; and
(d)the application is not in the public interest.

The parties seek to resolve the objections

Following the lodging of the objections, Blue Ribbon and each of the objectors agreed to minutes of programming directions for the determination of the application in chambers and without further evidence or submissions from either Blue Ribbon or the relevant objector.

There have been a number of iterations of the minutes of programming directions. Those minutes included within them various agreed endorsements and conditions as caveats to the successful grant of the application.
The relevant versions of the minutes of programming directions (minutes of programming directions) for the purposes of the special case are as follows.
On 15 February 2022, Blue Ribbon and Roy Hill agreed to a substituted minute of programming directions (Roy Hill Objector's Substituted MOPD). The Roy Hill Objector's Substituted MOPD relevantly included the following paragraphs:[6]
[6] Special Case Stated dated 14 March 2022, tab 12, 75 - 76.
3.The Mining Warden will give consideration to recommending the imposition of the following conditions or endorsements which the parties agree ought be imposed (the Agreed Conditions):
(a)The area of L4SA be excised from E45/5041 on grant.
(b)No mining on any land the subject of L4SA or within 60 metres of L4SA (Exclusion Zone).
(c)No surface excavation approaching closer to the boundary of the Exclusion Zone than a distance equal to three times the depth of the excavation.
(d)No interference with the drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of exploration activities within the Exclusion Zone.
(e)The Licensee not excavating, drilling, installing, erecting, depositing or permitting to be excavated, drilled, installed, erected or deposited within the Exclusion Zone any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever.
(f)No explosives being used within 500 metres or stored within 1 km of the land the subject of L4SA.
(g)The rights of ingress to and egress from L4SA at all times preserved to the employees, contractors and agents of the operator of the railway on the land the subject of L4SA and the Public Transport Authority of WA.
(h)Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 (WA) for the purpose of protecting the rail corridor land the subject of L4SA and any of the Objector's infrastructure situate on that land.
Paragraph 3(h) of the Roy Hill Objectors' Substituted MOPD is the condition referred to in Question 4(b).
On 17 December 2021, Blue Ribbon and the FMG objectors agreed to a substituted minute of programming directions (FMG Objectors' Substituted MOPD). The FMG Objectors' Substituted MOPD relevantly included the following paragraphs:[7]
[7] Special Case Stated dated 14 March 2022, tab 10, 71 - 72.
3.The Mining Warden will consider recommending the imposition of the following conditions or endorsements which the parties agree ought to be imposed (the Agreed Conditions):
(a)The area of L1SA, L45/318 and L45/319 be excised from the grant of the Application.
(b)No mining within 50 metres of either side and to a depth of 15 metres of LlSA (Safety Zone) without the prior written approval of the Minister responsible for the Mining Act 1978.
(c)No use of roads within L1SA without the prior approval of the operator of the railway on L1SA.
(d)No surface excavation approaching closer to the boundary of the Safety Zone hereof than a distance equal to three times the depth of the excavation without the prior written approval of Mines Safety, DMIRS.
(e)Mining below 15 metres from the natural surface of the land in the Safety Zone hereof being approved by Mines Safety, DMIRS in consultation with the operator of the railway on L1SA.
(f)No interference with the drainage pattern; and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone hereof without the prior approval of the operator of the railway on L1SA.
(g)The Licensee not excavating, drilling, installing, erecting, depositing or permitting to be excavated, drilled, installed, erected or deposited within the Safety Zone hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of Mines Safety, DMIRS.
(h)No explosives being used or stored within one hundred and fifty (150) metres of L1SA without the prior written consent of the Director, Dangerous Goods and Petroleum Safety, DMIRS.
(i)The rights of ingress to and egress from LlSA being at all times preserved to the employees, contractors and agents of the operator of the railway on L1SA, and the Public Transport Authority of WA.
Paragraphs 3(b) to 3(h) of the FMG Objectors' Substituted MOPD are the conditions referred to in Question 4(a) of the special case.
On 18 February 2022, Blue Ribbon and the BHP objectors agreed to a substituted minute of programming directions (BHP Objectors' Substituted MOPD). The BHP Objectors' Substituted MOPD relevantly included the following paragraphs:[8]
[8] Special Case Stated dated 14 March 2022, tab 8, 66 - 67.
3.[Blue Ribbon] agrees to the Application being granted over only that part of the application area that excludes [General Lease 1154279] and subject to the complete excision of the part of the application area that encroaches onto [General Lease 1154279].
4.The Mining Warden will give consideration to recommending that the Application be granted over only that part of the application area that excludes [General Lease 1154279] and subject to the complete excision of the part of the application area that encroaches onto [General Lease 1154279].
5.The Mining Warden will give consideration to recommending the imposition of the following endorsement which the parties agree ought be imposed (the Agreed Endorsement):
(a)The land subject to General Lease 1154279 is completely excised from Exploration Licence 45/5041.
6.The Mining Warden will give consideration to recommending the imposition of the following conditions which the parties agree ought to be imposed (the Agreed Conditions):
(a)the rights of ingress to and egress from [General Lease 1154279], being at all times preserved to the Objectors as lessee and no interference with the purpose or installations (either present or future) connected to [General Lease 1154279];
(b)no use of access roads constructed within the area the subject of [General Lease 1154279] without the prior written consent of the operator of the Mount Newman Railway;
(c)no mining or construction within 100 metres of either side of the centreline of the Mount Newman Railway, associated rail lines and access roads (the Safety Zone), without the prior written approval of the Minister responsible for the Mining Act 1978 (WA);
(d)no surface excavation approaching closer to the· boundary of the Safety Zone than a distance equal to three times the depth of the excavation without the prior written approval of the State Mining Engineer, Department of Mines and Petroleum (DMP);
(e)mining below the surface of the Safety Zone being approved by the State Mining Engineer, DMP, in consultation with the operator of the Mount Newman Railway;
(f)the licensee shall not excavate, drill, install, erect, deposit or permit to be excavated, drilled, installed, erected or deposited within the Safety Zone, any hole, pit, well, pavement, foundation, building or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineer, DMP, in consultation with the operator of the Mount Newman Railway;
(g)no explosives being used or stored within one hundred and fifty (150) metres of the Mount Newman Railway and associated rail lines without the prior written consent of the Director, Dangerous Goods Safety Branch, DMP;
(h)blasting operations being controlled so that no damage or injury can be caused to the Mount Newman Railway, associated rail lines or the installations (either present or future) connected to [General Lease 1154279], (including the Mount Newman Railway, associated rail lines or related infrastructure, such as communication towers), by fly rock, concussion, vibration or other means;
(i)no interference with the drainage pattern, and no parking storage or movement of equipment or vehicles used in the course of mining within the Safety Zone without the prior approval of the operator of the Mount Newman Railway; and
(j)such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 (WA) for the purpose of protecting the land and infrastructure (including the Mount Newman Railway) within the Safety Zone.
Paragraphs 6(c) to 6(g) and 6(i) of the BHP Objectors' Substituted MOPD are the conditions referred to in Question 4(a) of the special case. Paragraph 6(j) of the BHP Objectors' Substituted MOPD is the condition referred to in Question 4(b).
It is an agreed fact that the use of agreed minutes of programming directions is a common practice that was implemented by the warden in or around 2007 and has since been used extensively by parties for resolving objections to applications for mining tenements under the Mining Act. The parties agreed that the conditions from the minutes of programming directions set out above are consistent with that common practice.

DMIRS expresses doubt as to the lawfulness of the proposed course

In the meantime, DMIRS identified a number of issues and concerns that it had as to whether the excisions and conditions proposed by the parties in relation to the application were within the power of the Minister.
While a number of those issues were set out in general Position Papers published by DMIRS,[9] the issues were also raised directly in the context of the application.
[9] Special Case Stated dated 14 March 2022, tab 13, 83 ‑ 86; tab 14, 87 ‑ 91.
In that regard, on 24 March 2021, the State Solicitor's Office, on behalf of DMIRS, wrote to the parties to the application about certain issues which DMIRS had identified in respect of the minutes of programming directions that had been lodged. That letter included the following:[10]
The second issue that the Department has identified is whether the Minister has power to excise areas of miscellaneous licences from the grant of the application for exploration licence 45/5041. This issue arises in respect of the minutes of programming directions which have been lodged in respect of objections 517415, 517416 and 517417, which propose that the Warden will consider recommending the imposition of conditions that will provide for the excision of the area of L45/318, L45/319, L1SA and L45/322 from the grant of the exploration licence. The Department respectfully considers that the Minister cannot impose such conditions, as the land the subject of the miscellaneous licences is not 'unavailable for exploration' for the purposes of s. 57(2d) of the Mining Act.
…
The third issue that the Department has identified is whether the Minister has power to excise the area of General Lease I154279 from the grant of the application for exploration licence 45/5041 by way of the endorsement proposed by the minute of programming directions lodged in respect of objection 517470. Assuming that the land constitutes private land, and further assuming that no consent has been given under s. 29(2) of the Mining Act, the land is available for exploration at a depth of not less than 30m from the lowest part of the natural surface of the private land. The Department respectfully considers that the land cannot be completely excised from a grant of an exploration on the basis that it is 'unavailable for exploration' under s 57(2d) of the Mining Act.
…
The fourth issue that the Department has identified is whether certain proposed conditions, requiring prior written approval by the Minister or other persons, as part of a consultation process in some instances, or authorising the imposition of further conditions from time to time, are … lawful or appropriate.
[10] Special Case Stated dated 14 March 2022, tab 13, 80.
In light of these, and other, opinions expressed by DMIRS, the BHP objectors (with the support of the other parties to the application) applied to the warden to refer a number of the issues raised by DMIRS for the opinion of this Court. Warden McPhee granted the BHP objectors' application.[11]
[11] Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WAMW 3.
Which brings me back to the special case.
Before turning to the relevant legislative provisions and the questions of law, it is appropriate that I make some preliminary remarks about the nature of the special case.

Special case – preliminary remarks

The reservation of questions of law by a special case stated pursuant to s 146 of the Mining Act, as with special cases and cases stated generally, is a mechanism by which questions of law are posed for determination by the Court in a document which states the ultimate facts of the case as agreed by the parties, or found by the warden's court. Upon a case stated, the Court cannot determine questions of fact or draw inferences of fact.[12]
[12] Hawks v Shadmar Pty Ltd [2004] WASC 252 [41] (Le Miere J).
In answering a special case stated, the Court is exercising judicial power and, consistent with the object of the judicial process, courts have traditionally refused to provide answers to hypothetical questions or give advisory opinions. As the High Court observed in Bass v Permanent Trustee Company Ltd,[13] in relation to declaratory relief:
Courts have traditionally declined to state – let alone answer – preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
[13] Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 [49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ).
This statement of principle applies equally, in my view, to the approach to be taken to a special case stated under s 146 of the Mining Act.
As I have discussed below, I am satisfied that, insofar as they raise issues of statutory construction that bear significantly on the warden's consideration of Blue Ribbon's application for an exploration licence, it is appropriate to answer the questions reserved to the Court in the manner that I have. Nevertheless, it is important that I emphasise a number of matters so as to make clear the limitations attendant upon the use of a special case stated at this stage of the proceedings in the warden's court.
First, as the application in the present case is for an exploration licence, the ultimate decision-maker in relation to Blue Ribbon's application is the Minister, rather than the warden. It is the Minister who must decide whether to grant the exploration licence, and for the Minister to determine the terms and conditions upon which to make any such grant.[14] It is not for this Court to determine, or express any view, as to whether the exploration licence should be granted or whether any, or all, of the proposed conditions should be imposed by the Minister. The merits of the terms and conditions proposed in the minutes of programming directions are not matters before this Court; nor are they matters about which the Court could or should express a view.
[14] Mining Act, s 57(1), s 59(6).
The questions raised by the special case are questions as to the Minister's power; that is, whether, as a matter of law, the Minister would have power to grant the exploration licence on the terms and conditions proposed by the parties.
Secondly, the warden's role in a case such as this is to hear the application and give to any person who has lodged a notice of objection an opportunity to be heard.
The warden's ultimate statutory responsibility is set out in s 59(5) of the Mining Act, namely:
(5) The warden shall as soon as practicable after the hearing of the application forward to the Minister for the Minister's consideration –
(a) the notes of evidence; and
(b) any maps or other documents referred to in the notes of evidence; and
(c) a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.
Again, in the present case the warden has not conducted a hearing in relation to the application or determined whether there should be a recommendation for the grant of the exploration licence on the terms and conditions proposed by the parties. As I have said, the merits of the course proposed by the parties in the minutes of programming directions is not a matter before this Court; nor is it a matter about which the Court could or should express a view.
So understood, both the utility of the special case, and its limitations, are readily apparent. As to the utility of answering the questions, if the Minister does not have power to grant the application on the terms and conditions proposed by the parties in the minutes of programming directions, the warden would clearly not have power to recommend, or even consider, those terms and conditions. If the Minister does have such power, it would be open to the warden to consider whether to recommend the grant of the application on those terms and conditions.
At the same time, if the Minister does have power to impose some, or all, of the terms and conditions proposed by the parties in the minutes of programming directions, whether the warden should make such a recommendation is a matter to be determined by the warden. And, if the warden so recommends, it is a matter for the Minister, having regard to all relevant considerations, whether to accept that recommendation.
Thirdly, in this context, I would again emphasise that the extent of the Minister's powers are questions of law. It is for this Court, in answering the questions of law in the special case, to give its opinion as to what the law is. It is not for the Court to express a view as to what the law should be. That is a matter for the legislature.
In that regard, for example, the fact that the parties agree that the use of agreed minutes of programming directions, such as those in the present case, is a common practice and has been used extensively by parties for resolving objections in the past is, ultimately, irrelevant to the legal questions that the Court is required to answer. The Minister either has the relevant power, or he or she does not.
Accordingly, it is as well to recall that the issues of statutory construction raised in the special case concern the power of the executive government to dispose of interests in the resources of the State. As the majority of the High Court observed in Forrest & Forrest Pty Ltd v Wilson,[15] specifically in the context of the Mining Act:
When a statute that provides for the disposition of interests in the resources of a State 'prescribes a mode of exercise of the statutory power, that mode must be followed and observed'. The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.
… Adherence to this approach supports parliamentary control of the disposition of lands held by the Crown in right of the State. It gives effect to an abiding appreciation that the public interest is not well served by allowing non‑compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be confident that such a state of affairs was not intended by the Act.
[15] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 (Forrest & Forrest Pty Ltd)[64] ‑ [65] (Kiefel CJ, Bell, Gageler & Keane JJ) (footnotes omitted).

The parties' agreement as to the content of the minutes of programming directions in the present case, of course, also had the consequence that both Blue Ribbon and all of the objectors made submissions in support of the Minister's power to grant the exploration licence on the terms and conditions set out in the minutes of programming directions.
For that reason, and to ensure that appropriate opposing arguments were brought to the attention of the Court, the Attorney General for Western Australia was granted leave to be heard as amicus curiae at the hearing of the special case. I record my gratitude to counsel for the Attorney General, Ms Seaward, who appeared to assist the Court in that regard.

Principles of statutory construction

The principles of statutory construction are well settled. Statutory construction involves attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.[16]
[16] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 (Thiess v Collector of Customs) [22] - [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
As to the last matter, statutory purpose, French CJ, Hayne, Kiefel, Gageler and Keane JJ, said in Thiess v Collector of Customs:[17]
Objective discernment of statutory purpose is integral to contextual construction. … For:
'it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.'
[17] Thiess v Collector of Customs [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ). (footnotes omitted).
The statutory purpose of legislation may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.[18]
[18] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [25] - [26] (French CJ & Hayne J).
I will return to some aspects of the legislative history of the Mining Act, including extrinsic materials, in this context. It is important to recognise, however, that the Court's duty, in interpreting the Act, is to give meaning to the statutory text, not to give effect to what the Court might conclude is the underlying intention of the Parliament detached from that statutory text.[19]
[19] Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [40] (French CJ, Crennan & Bell JJ); Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 (Mabior) [301] (Quinlan CJ, Murphy & Pritchard JJA).
Finally, of particular significance in the present case, in my view, is that the material provisions of the Mining Act must be understood, if possible, as parts of a coherent whole:[20]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[20] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) [70] (McHugh, Gummow, Kirby and Hayne JJ) (footnotes omitted); Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16] (Kiefel CJ, Bell, Keane, Nettle, Gordon & Edelman JJ).
I turn then to significant provisions of the Mining Act relevant to the special case.

Legislative context

An important starting point for construing the Mining Act is the statutory concept of land being 'open for mining', an expression that identifies the land that may be the subject of an application for a mining tenement granted under the Act.

Land open for mining

Land 'open for mining' is identified in pt 3 of the Mining Act.
Relevantly, s 18 provides in relation to Crown land:
18.Crown land open for mining
All Crown land, not being Crown land that is the subject of a mining tenement, is open for mining and as such is land –
(a)where any person may set up pegs or otherwise mark out the land pursuant to section 104 in connection with an application for a mining tenement; and
(b)where the holder of a miner's right may do the things authorised by section 40D; and
(c)which may be made the subject of an application for a mining tenement,
subject to and in accordance with this Act
Similarly, s 27 provides, in relation to private land:
27. Private land open for mining
(1) Subject to this Act, a mining tenement may be applied for in respect of any private land (which for the purposes of this Division does not include private land that is the subject of a mining tenement, other than in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B in which case the land which is the subject of the application for that licence or lease is to be dealt with as private land) and such land is open for mining in accordance with this Act.
(2) This Division does not apply to the land specified in the Third Schedule.
It is uncontroversial, for the purposes of the special case, that the land the subject of General Lease I154279 held by the BHP objectors is 'private land' within the meaning of the Mining Act.
The specification of land as 'open for mining' reflects the primary object of the Mining Act, being the encouragement and promotion of prospecting and exploration for, and mining of, mineral deposits in the State. As Buss JA (as his Honour then was) said in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd:[21]
The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State. See The Commonwealth of Australia v The State of Western Australia (1999) 196 CLR 392 per Kirby J at 450 - 451 [172]. Part III of the Act specifies land which is 'open for mining'; that is, relevantly, land which may be made the subject of an application for a mining tenement, subject to and in accordance with the Act. Part III distinguishes between and makes particular provision for Crown land, public reserves and private land. The primary object of the Act is sought to be carried into effect by making available specific tenements for, relevantly, prospecting, exploration and mining, subject to reasonably stringent conditions, including conditions with respect to expenditure, the reporting of the discovery of minerals of economic interest, and the rehabilitation of the surface of land which is disturbed in the course of operations conducted under the tenement in question. See Nova Resources NL v French (1995) 12 WAR 50 per Rowland J (with whom Kennedy and Pidgeon JJ agreed) at 57 - 58.
[21] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 (Cazaly Iron) [70] (Buss JA, Wheeler & Pullin JJA agreeing).
The broad range of potentially competing considerations involved in the attainment of the primary object of the Mining Act, is reflected in the breadth of the considerations to which the Minister may have regard in determining whether to grant a mining tenement. As Buss JA said in Cazaly Iron, in relation to the grant of an exploration licence:[22]
[22] Cazaly Iron [72] (Buss JA, Wheeler & Pullin JJA agreeing).
In my opinion, the Minister, in deciding whether to grant or refuse an application for an exploration licence, is entitled to take into account matters of policy and principle governing the exploration of mineral deposits in this State. Relevant matters of policy and principle include:
(a) the promotion of a strong and stable mining industry and economy generally;
(b) the reconciliation of exploration of mineral deposits with the protection and encouragement of competing land uses;
(c) environmental considerations; and
(d) any other matters that are in the public interest.
No doubt, in a particular case, some issues of policy and principle may conflict. It may be necessary for the Minister to reconcile competing issues or to accord precedence to one factor over another.

Mining tenements

In achieving its primary purpose, the Mining Act provides for a variety of mining tenements. Section 8 provides:
mining tenement means a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act; and includes the specified piece of land in respect of which the mining tenement is so granted or acquired
In this context, an important observation may immediately be made about s 18 and s 27 of the Mining Act. As a general matter (and subject to exceptions elsewhere in the Mining Act), both Crown land and private land may be the subject of an application for a mining tenement if that land is not already the subject of a mining tenement. Conversely, and again generally, where Crown or private land is already the subject of an existing mining tenement, no mining tenement may be granted over that land, or co‑exist with the existing tenement. So, for example (and, again, subject to express exceptions) a prospecting licence may not include land already the subject of a mining tenement[23] and a mining lease or general purpose lease may not include any land included in a current mining tenement held by another person.[24]
[23] Mining Act, s 43(1).
[24] Mining Act, ss 76 and 90(4).
In Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd, Malcolm CJ described this as the 'basic scheme' of the Mining Act:[25]
The basic scheme of the Mining Act is that there should not be competing mining tenements over the same ground and that the rights conferred by them should be exclusive.
[25] Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 546 (Western Reefs), 550 (Malcolm CJ).
An important exception to this basic scheme of the Mining Act is a miscellaneous licence. A miscellaneous licence may be granted over land the subject of another mining tenement, and vice versa. Section 94A of the Mining Act, in particular, provides:[26]
94A. Grant of mining tenement on land in a miscellaneous licence
(1) Sections 18, 23, 27, 43 and 76 do not prevent another mining tenement from being marked out, applied for or granted in respect of land that is the subject of a miscellaneous licence.
(2) Notwithstanding section 43 or 76, if another mining tenement is granted in respect of land that is subject to a miscellaneous licence the other mining tenement and the miscellaneous licence apply concurrently with respect to that land.
[26] See also Mining Act, s 91(7). As can be seen from s 91 of the Mining Act, as originally enacted, a miscellaneous licence has always been an exception to the basic scheme of the Mining Act that there should not be competing mining tenements over the same ground (see also Western Reefs at 549 ‑ 550).
Another example of an exception to the 'basic scheme' of the Mining Act, albeit not relevant for present purposes, is a special prospecting licence (for gold) under s 56A of the Mining Act, which may be granted concurrently with another mining tenement.
Necessarily, a mining tenement may also be granted on private land and so apply concurrently with the tenure of the private land owner or occupier. That is, of course, reflected in the terms of s 27 itself. Significantly, and subject to exceptions, the consent of the owner and occupier of private land is required for the grant of a mining tenement in certain circumstances.
In that regard, s 29(1) and (2) of the Mining Act provide:
29.Granting of mining tenements in respect of private land
(1)Subject to this Act, but notwithstanding any other Act or law, a mining tenement may be granted in respect of an area that consists of private land only or partly of private land and partly of any other land and the authority conferred thereby on the holder thereof may be exercised by that holder in respect of any such land.
(2)Except with the consent in writing of the owner and the occupier of the private land concerned, a mining tenement shall not be granted in respect of private land –
(a)which is in bona fide and regular use as a yard, stockyard, garden, orchard, vineyard, plant nursery or plantation or is land under cultivation; or
(b)which is the site of a cemetery or burial ground; or
(c)which is the site of a dam, bore, well or spring; or
(d)on which there is erected a substantial improvement; or
(e)which is situated within 100 m of any private land referred to in paragraph (a), (b), (c) or (d); or
(f) which is a separate parcel of land and has an area of 2 000 m² or less,
unless the mining tenement is granted only in respect of that part of that private land which is not less than 30 m below the lowest part of the natural surface of that private land.
Given the potential for the concurrent existence of different tenures with various mining tenements, s 117 makes what may be described as provision for priority in relation to the grant of mining tenements. Section 117 provides:
117. Mining tenements protected
(1) Subject to the provisions of sections 56A, 70 and 85B as regards the special prospecting licences and mining leases therein referred to, no Crown grant, transfer of Crown land in fee simple, or conveyance nor the grant of any mining tenement has the effect of revoking or injuriously affecting any existing mining tenement acquired and held under this or the repealed Act, whether or not any reservation or exception of that existing mining tenement is contained in the Crown grant, transfer of Crown land in fee simple, or conveyance or the grant of the mining tenement.
(2) Each such Crown grant, transfer of Crown land in fee simple, or conveyance and each such grant of a mining tenement shall be deemed to contain an express reservation of the rights to which the holder of the existing mining tenement is entitled.
In its terms, s 117 makes express provision for the protection of existing mining tenements from the effect of later grants of tenure, including other mining tenements. It has also been construed by this Court to create an 'implied prohibition' on a concurrent grant, where the concurrent grants could not meaningfully co‑exist.
In Western Reefs, for example, Malcolm CJ said, in the context of an application for the grant of a miscellaneous licence over an area the subject of a mining lease:[27]
A miscellaneous licence under s 91 is a 'mining tenement' as defined in s 8 of the Act. It follows that where an application is made for a miscellaneous licence over land which is the subject of an existing mining tenement, there is an implied prohibition on the grant of the miscellaneous licence having the effect of 'revoking or injuriously affecting any existing tenement'. The effect of s 117 is that any grant of a miscellaneous licence is deemed to contain a reservation that it shall not have the effect of revoking or injuriously affecting any existing mining tenement. Hence, the grant of any miscellaneous licence which in fact injuriously affected an existing tenement would be nugatory.
[27] Western Reefs, 551 (Malcolm CJ).
It will be apparent from this passage that the basis for the 'implied prohibition' on grant identified by his Honour arises by reason of the fact that a subsequent grant that would injuriously affect an existing tenement would be nugatory. That is not to say that the 'implied prohibition' is absolute; it may be, for example, that appropriate conditions on the subsequent grant could remove the potential for injurious affection of the former grant. As Malcolm CJ concluded in Western Reefs:[28]
In my view, upon the proper construction of s 91 in the context of the Act, where a miscellaneous licences applied for in respect of an existing tenement, the warden is bound to consider whether the grant of the licence will injuriously affect the existing tenement, or hinder or obstruct the holder in the execution of any rights conferred on him thereby. Any potential for injurious affection, hindrance, or obstruction may be covered by reasonable conditions. Where no reasonable condition could prevent injurious affection, obstruction or hindrance the warden should exercise his discretion to refuse the application. In forming his view of the circumstances the warden should take into account the length of the term of the existing tenements and the current or potential prospecting, exploration or mining operations which are or may be carried on upon the existing tenement.
[28] Western Reefs, 554 (Malcolm CJ).
To similar effect, Brinsden J in Western Reefs said:[29]
[W]hen a miscellaneous licence has been granted over land or part thereof of an existing mining lease, the grant of the miscellaneous licence may not confer rights which injuriously affect the rights of the holder of the primary tenement and those rights are very extensive indeed. Of course, it may be said, the warden, by reason of his power to impose conditions, can minimise or eliminate the degree of disturbance to the operations being carried on, or likely to be carried on, on a primary tenement, but it is not by any means difficult to conceive a case where a condition could not be framed to satisfactorily separate the rights of a miscellaneous licence holder and the rights of the holder of the primary tenement. Where complete incompatibility exists between these two tenements there would be no point in granting the miscellaneous licence since the provisions of s 117 would make the grant a futility. This section therefore, seems to direct the warden's attention in deciding upon an application for a miscellaneous licence, to consider the degree to which, if at all, the exercise of the rights pursuant to the miscellaneous licence would be detrimental to, or incompatible with, the rights of the holder of the primary tenement.
I am therefore of the view that upon an application for a miscellaneous licence, the warden is entitled to consider whether the purpose for which the licence is required, can be carried out without injuriously affecting the primary tenement over which the miscellaneous licence is to be granted. It may be that he can frame conditions which satisfactorily resolve any likely interference or incompatibility, but, if no condition will meet that requirement then he would be entitled to dismiss the application. In reaching such a decision the warden would be entitled to take into account the current and prospective operations upon the primary tenement. The overriding consideration would be whether the grant of the miscellaneous licence would, or would not, promote the objects of the Act, the encouragement of mining.
[29] Western Reefs, 560 (Brinsden J); see also 561 (Ipp J).
I turn then to the critical provisions of the Mining Act in the present case; namely, those concerning the grant of exploration licences.

Exploration licences

Part 4, div 2 of the Mining Act makes provision for exploration licences.
As with the divisions relating to other mining tenements, pt 4 div 2 provides for an application process for the grant of an exploration licence. There is one feature of that process in relation to exploration licences that is peculiar to that form of tenement. That feature is that, for the purposes of pt 4 div 2, the State is deemed to be divided into pre‑existing 'blocks'; pre‑existing in the sense that the blocks are determined by reference to the latitude and longitude of the Earth.
In that regard, s 56C of the Mining Act provides:
56C.Graticular sections
(1)For the purposes of this Division, the surface of the Earth shall be deemed to be divided –
(a)by the meridian of Greenwich and by meridians that are at a distance from that meridian of 1, or a multiple of 1, minute of longitude; and
(b)by the equator and by parallels of latitude that are at a distance from the equator of 1, or a multiple of 1, minute of latitude,
into sections (in this Division called graticular sections), each of which is bounded –
(c)by portions of 2 of those meridians that are at a distance from each other of 1 minute of longitude; and
(d)by portions of 2 of those parallels of latitude that are at a distance from each other of 1 minute of latitude.
(2)For the purposes of this Division –
(a)a graticular section that is wholly within the State constitutes a block; and
(b)if part of a graticular section is within the State that part of the graticular section constitutes a block.
(3)In this Division –
(a)a reference to a graticular section that constitutes a block includes a reference to a graticular section part of which constitutes a block;
(b)a reference to a part of a block includes a reference to 2 or more parts of the block;
(c)a reference to a part of a graticular section includes a reference to 2 or more parts of the graticular section.
(4)For the purposes of this Division each block shall be identified by reference to the number of the block on a plan held at the Department.
(5)In subsection (2) –
State includes any area that comes within paragraph (b) of the definition of land in section 8(1).
Section 58 of the Mining Act makes provision for applications for exploration licences. Relevantly, s 58 provides:
58.Application for exploration licence
(1)An application for an exploration licence –
(a)shall be in the prescribed form; and
(b)shall be accompanied by a statement specifying –
(i)the proposed method of exploration of the area in respect of which the licence is sought; and
(ii)the details of the programme of work proposed to be carried out in such area; and
(iii)the estimated amount of money proposed to be expended on the exploration; and
(iv)the technical and, subject to subsection (1aa), financial resources available to the applicant;
and
(c)shall be accompanied by the amount of the prescribed rent for the first year of the term of the licence or portion thereof as prescribed; and
(d)shall be lodged in the prescribed manner; and
(e)shall be accompanied by the prescribed application fee.
(1aa)The statement under subsection (1)(b) does not have to specify the financial resources available to the applicant if –
(a)the applicant is a natural person; and
(b)the application is in respect of not more than 4 blocks; and
(c)the statement specifies that the applicant intends to utilise his or her own labour to carry out the programme of work referred to in subsection (1)(b)(ii).
(2)An application referred to in subsection (1) must identify the block or blocks applied for by number in accordance with section 56C(4).
As can be seen from s 58(2), an application for an exploration licence is made by reference to a block or blocks.
Section 57 of the Mining Act provides:
57.Grant of exploration licence
(1)Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.
(2)The area of land in respect of which an exploration licence may be granted shall be a block or blocks but shall not be more than 70 blocks unless subsection (2aa) applies.
(2aa)If the area of land referred to in subsection (2) is in an area of the State designated under section 57A(1) it shall not be more than 200 blocks.
(2a)Where an exploration licence is granted in respect of 2 or more blocks the graticular sections that constitute those blocks shall –
(a)constitute a single area; and
(b)each have a side in common with at least one other graticular section in that area.
(2b)Where –
(a)an application is made for an exploration licence in respect of 3 or more blocks; and
(b)before the exploration licence is granted one or more of the blocks applied for becomes the subject of another mining tenement; and
(c)the exploration licence is granted in respect of 2 or more of the other blocks applied for,
the graticular sections that constitute the blocks in respect of which the licence is granted need not comply with subsection (2a)(a) and (b) if they form 2 or 3 discrete areas each consisting of –
(d)a single graticular section; or
(e)a number of graticular sections each having a side in common with at least one other graticular section in that area.
(2c)Where an application for an exploration licence is made with respect to one block, the land in respect of which the licence is granted may comprise part of the block if the rest of the block consists of land that is unavailable for exploration.
(2d)Where an application for an exploration licence is made with respect to 2 or more blocks, the land in respect of which the licence is granted may include part of a block if the rest of the block consists of land that is unavailable for exploration.
(2e)For the purposes of subsections (2c) and (2d) land is unavailable for exploration if that land is, or was when the application for the exploration licence was made, the subject of a current mining tenement (other than a miscellaneous licence).
(2ea)Where the application for the exploration licence is a reversion licence application, the reference in subsection (2e) to a current mining tenement does not include a continuing licence as defined in section 120AA(1).
(2f)Where the land in respect of which an exploration licence is granted comprises or includes part of a block –
(a)the licence is deemed to be granted in respect of that block for the purposes of subsections (2), (2a) and (2b); and
(b)that block is deemed to be subject to the licence for the purposes of section 65; and
(c)the boundaries of the land the subject of the licence shall be deemed to be the same as the boundaries of the block for the purposes of section 67A.
(2g)A person may be granted more than one exploration licence.
(2h)Where the land in respect of which an exploration licence is granted comprises or includes part of a block, no other exploration licence shall be granted in respect of that block or any part of that block.
(3)The mining registrar or the warden shall not recommend the grant of an exploration licence under this section unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.
(4)Where in any particular area extensive mining is being carried on, the Minister may, from time to time, by notice published in the Government Gazette declare that no application for an exploration licence shall be made or granted with respect to any land comprising the area or any land within such area as is specified in the notice.
The construction of s 57, and in particular whether the Mining Act allows for the grant of an exploration licence over part of a block in the manner provided for in the minutes of programming directions in the present case, is the critical issue for the purposes of Questions 1 and 2 of the special case.
A number of other provisions in the Mining Act also refer to blocks in the context of exploration licences.
Section 65, for example, which requires the compulsory surrender of part of the area the subject of an exploration licence in certain circumstances, provides in subsections (3) and (4b):
(3)On or before the end day the holder of an exploration licence granted in respect of more than 10 blocks must lodge a surrender for registration in respect of –
(a)40% of the number of the blocks that are subject to the licence; or
(b)if 40% of that number is not a whole number, the nearest whole number of the blocks.
…
(4b) The blocks that remain subject to an exploration licence after a surrender under this section are to form not more than 6 discrete areas each consisting of –
(a) a single graticular section; or
(b) a number of graticular sections each having a side in common with at least one other graticular section in that area.
Section 69B of the Mining Act makes provision for the Minister to approve retention status for the whole or any part of the land the subject of an exploration licence in certain circumstances. In that context, s 69B(4) provides that:
(4) The area of land to which an approval applies –
(a) shall be a block or blocks[.]
Finally, in relation to references to blocks, s 95A of the Mining Act provides:
95A.Exploration licence – surrender of part of block
(1) In this section –
block has the same meaning as it has in Part IV Division 2.
(2) The holder of an exploration licence shall not, under section 95(1), surrender part of a block that is subject to the licence without the prior approval of the Minister or an officer of the Department authorised by the Minister to give such approval.
(3) Where part of a block that is subject to an exploration licence is surrendered under section 95(1), the rest of the block that remains subject to the licence is deemed to be a block for the purposes of this Act.
In addition to the power to impose conditions in s 57(1), s 63AA of the Mining Act makes further provision in relation to the conditions that may be imposed on an exploration licence:
63AA.Conditions for prevention or reduction of injury to land
(1)On the granting of an exploration licence, or at any subsequent time, the Minister may impose on the holder of the licence reasonable conditions for the purpose of preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land.
(2)A condition imposed under this section may be cancelled or varied by the Minister at any time.

Some legislative history

While the primary object of the Mining Act as a whole has been identified in the terms set out at [75] above, Ms Nadilo, who appeared as junior counsel for the BHP objectors, referred to aspects of the legislative history and related extrinsic materials, to provide context for identifying (or confirming) the legislative purpose for the division of the State into blocks for the purposes of pt 4 div 2 of the Mining Act.
Section 56C and the associated references to blocks in s 57 were inserted by the Mining Amendment Act 1990 (WA). The Second Reading Speech for the Mining Amendment Bill 1990 (WA) provides the following context for those amendments:[30]
The proposal for exploration licences to be determined by graticular sections is the result of recommendations of a departmental working group and the mining industry liaison committee, and has the support of the Chamber of Mines of Western Australia, the Association of Mining and Exploration Companies, and the Amalgamated Prospectors and Leaseholders Association. Basically the proposal is for exploration licences to have their boundaries defined by lines of predetermined latitude and longitude, one minute by one minute, and to comprise units of graticular sections, each having an identification number, rather than units of contained area, as currently provided for. The proposal is modelled on the principles adopted by the petroleum Acts but with modifications to suit the mineral industry and the Mining Act. It is uniquely suitable for defining large parcels of land which have tenure of a short term nature and boundaries which will not normally require marking out on the ground but will be able to be represented on a map with correlation on the ground with acceptable accuracy being achievable should the need arise.
[30] Hon Graham Edwards, Western Australia, Parliamentary Debates, Legislative Council, 30 May 1990, 1445.
Section 57(2) is in the form in which it was originally inserted by the Mining Amendment Act 1990 (WA) save for the words 'unless subsection 2(aa) applies', which were inserted by the Mining Amendment Act 2004 (WA), which also inserted s 57(2aa).
Sections 57(2c) and (2d) are in their original form, as inserted by the Mining Amendment Act 1990 (WA).
As originally inserted, s 57(2e) did not include the words '(other than a miscellaneous licence)'. Those words were inserted by the Mining Amendment Act 2002 (WA). The Explanatory Memorandum for the Bill for that Act (the Mining Amendment Bill 2001 (WA)) said, in relation to that amendment:
Section 57(2e) provides that land within a block is unavailable for exploration if that land is already the subject of a mining tenement. The provision is to be qualified by recognising that a miscellaneous licence co‑exists with all other mining tenements.
The Mining Amendment Act 2002 (WA) also inserted s 95A into the Mining Act. The Explanatory Memorandum said, in relation to proposed s 95A:
A new section is being added to clarify that part surrender of an exploration licence need not be in whole blocks. Surrender of part of the block is sometimes necessary to facilitate third party infrastructure and other requirements.
…
Subsection (2) provides that a surrender of a part block must be done with the prior approval of the minister or authorised officer. This is to ensure partial surrenders from an exploration licence are in whole blocks unless there is a specific reason to allow surrender of portions of blocks.
The Second Reading Speech for that aspect of the Mining Amendment Bill 2001 (WA)) was, as follows:[31]
Other amendments in the Bill streamline procedures for both the mining industry and the department, as follows –
…
the surrender of part of a block from exploration licences will be allowed to facilitate the grant of a new title to a third party to support infrastructure and other requirements.
[31] Mr John Kobelke Western Australia, Parliamentary Debates, Legislative Assembly, 18 October 2001, 4566; Hon Ken Travers, Western Australia, Parliamentary Debates, Legislative Council, 14 November 2001, 5510.
With this legislative context I turn to the questions in the special case.

Questions 1 and 2 of the special case

Questions 1 and 2 of the special case ask whether the Minister has power to excise areas the subject of miscellaneous licences or private land from the grant of an exploration licence.
The factual context in which those questions arise are the proposed conditions or endorsement set out in paragraph 3(a) of the Roy Hill Objector's Substituted MOPD,[32] paragraph 3(a) of the FMG Objector's Substituted MOPD[33] and paragraph 5 of the BHP Objector's Substituted MOPD.[34]
[32] See [35] above.
[33] See [37] above.
[34] See [39] above.
While each of those proposed conditions or endorsements use the word 'excised' it is clear that the issue relates to the proposed grant of the application. That is, the issue is whether the proposed exploration licence can be granted over the area of land the subject of the application except for (and excluding) the areas covered by the objectors' tenure. The issue is therefore one as to the scope of the power in s 57 of the Mining Act.
That factual context also makes clear that the relevant issue is whether the Minister may grant an exploration licence over an area that includes part only of the blocks over which the objectors hold their tenure, such that the licence would include parts of those blocks and the rest of those blocks would consist of land that is covered by either miscellaneous licences (in the case of Roy Hill and the FMG objectors' tenure) or private land (in the case of the BHP objectors' tenure).
The FMG objectors in their submissions in reply proposed an alternative means by which Questions 1 and 2 might be answered in the affirmative, namely that an exploration licence could be granted which excised the entirety of the blocks that overlap with the objectors' tenure (namely blocks 632 f, g, l, m, q, r, u and v; blocks 704 b and g; and block 633 f).[35] I have addressed that submission separately.[36]
[35] See [5] above.
[36] See [181] - [191] below.
Properly understood, in my view, Questions 1 and 2 are concerned with whether the Minister has power to grant an exploration licence of a part of a block or blocks, by reason of the presence of a miscellaneous licence or private land on the rest of that block.
I turn to that issue.

Whole blocks vs parts of blocks

In my view, subject to certain express exceptions, s 57 of the Mining Act, construed in the context of the statute as a whole, provides that an exploration licence may only be granted over a block or blocks. Unless one of the exceptions applies, the Minister does not have power to grant an exploration licence over part of a block.
Ms Seaward in her submissions referred to this as the block requirement, a useful shorthand expression that was adopted by the parties at the hearing of the special case. I too have adopted that shorthand to describe the general requirement of the Mining Act that an exploration licence may only be granted over a block or blocks.
As I have observed, there are express exceptions to the block requirement. Indeed, the express exceptions that do exist, in my view provide contextual support for the existence of the block requirement itself. This is one of those cases where the exception does indeed prove (the existence of) the rule. None of those exceptions, however, apply to the relevant circumstances of the special case (i.e. the presence of a miscellaneous licence or private land over the area the subject of the application).
Accordingly, in my view, the Minister does not have power to grant an exploration licence over part of a block if the rest of the block consists of land that is the subject of a miscellaneous licence (Question 1). Nor does the Minister have power to grant an exploration licence over part of a block if the rest of the block consists of land that is private land (Question 2).
My reasons for so concluding are as follows.
Section 57(2) of the Mining Act is, in my view, the critical textual provision. In terms, s 57(2) provides that the 'area of land in respect of which an exploration licence may be granted shall be a block or blocks' (emphasis added). The word 'shall' is, as the Interpretation Act 1984 (WA) provides,[37] imperative and indicates that the power of grant must be performed in that way.[38]
[37] Interpretation Act 1984 (WA), s 56(2).
[38] The BHP objectors accepted that the language of s 57(2) was mandatory (ts 108). The FMG objectors were more diffident and suggested that 'it might not be a hard requirement but just an indication, given the context' (ts 116 ‑ 117).

Such an understanding of Question 3 is consistent with the issues raised by DMIRS that have given rise to the controversy raised in the special case. In that regard, a Position Paper published by DMIRS on 21 June 2021 expressed its position as follows:[72]
The decision maker's ability to grant a mining tenement subject to terms and conditions is established under the Act for each specific tenement type.
A decision‑maker's discretion to impose conditions is subject to the scope of the authority conferred on the decision‑maker determined by the object, subject matter, scope, and purposes of the Act.
The primary object of the Act is to encourage and promote the exploration for, and mining of, minerals deposits in the State.
The 'no mining' condition is established under Part III Division 2 (Public reserves, etc, and Commonwealth land) of the Act at subsection 23(2). Part III Division 2 sets out the administrative mechanism for the Minister to uplift the 'no mining condition' and give consent to mine on that land covered under Part III of the Act (Crown land and Private land respectively) contemplate the 'no mining' condition.
Imposing a (final) condition of 'no mining' on a mining tenement is inconsistent with the principles of the law relating to mining. For example, in respect to prospecting licences and exploration licences, the 'no mining' condition is inconsistent with the conditions of grant (established at sections 46 and 63 respectively) that the licence is deemed granted subject to the condition that the holder thereof will prospect/explore for minerals.
[72] Special Case Stated dated 14 March 2022, tab 14, 89 - 90.
As can be seen, this position propounds the view that a 'no mining' clause could never be imposed because it would be inconsistent with the conditions of the grant that the holder will 'explore for minerals'.[73]
[73] Mining Act, s 63.
I will turn to the legal issues in a moment but it is perhaps worth noting that, in questioning the validity of a 'no mining' condition, the Position Paper implicitly sets up something of a strawman. That is because the Position Paper appears to proceed upon the implicit assumption that the 'no mining' condition would apply to the entirety of the putative exploration licence, such that the licence would prevent the very thing that an exploration licence permits, and indeed, requires. No doubt a 'no mining' condition that wholly prohibited the very activities that the exploration licence is intended to permit would be an invalid exercise of the condition making power.
But that is not what is proposed in the minutes of programming directions in the present case. The restrictions on mining activities proposed in the minutes of programming directions are confined to the areas the subject of the objectors' tenure and defined Exclusion Zones or Safety Zones around those tenures. On their face, the proposed conditions do not prohibit mining (or any other activities) over the entirety of the proposed exploration licence; indeed, as can be seen in the plan at [4] above (and the other plans attached to the special case), the areas of the proposed exploration licence that would be subject to the 'no mining' condition, as a proportion of the total area of the proposed exploration licence, appear to be very small indeed.
It is in that context that Question 3 arises.
Before answering that question specifically, a number of points can be made in relation to conditions generally.
It is apparent from the terms of the Mining Act as a whole that the capacity of the Minister (and other decision-makers) to impose conditions on mining tenements is critical to the effective and efficient management of exploration, prospecting and mining under the Mining Act. The considered, and at times creative, use of conditions is essential to the administration of the Mining Act, and is the means by which many issues involved in its administration can be addressed.
The importance of conditions to the proper administration of the Mining Act is reflected in the decisions of this Court to which I have already referred. In identifying the means by which the primary object of the Mining Act is to be carried out, for example, Buss JA in Cazaly Iron referred to the use of 'reasonably stringent conditions' as part of those means.[74] Similarly, in Western Reefs, all of the members of the Court emphasised that it may only be by the imposition of conditions that the potentially injurious effect of a later tenement on an existing tenement might be satisfactorily addressed, so as to enable the grant of the later tenement.[75] It should also be obvious that mining activity may have effects (including environmental effects) beyond the 'four walls' of a particular mining tenement, in relation to which conditions may be necessary or appropriate.[76]
[74] Cazaly Iron [70] (Buss JA, Wheeler & Pullin JJA agreeing).
[75] See [87] ‑ [88] above.
[76] As indeed the final words of s 63AA(1) of the Mining Act expressly make clear.
For these reasons, in my view, the general power of the Minister to impose conditions in s 57(1) of the Mining Act is not to be narrowly construed. Ultimately, the reach of a general power to impose conditions depends upon its statutory context, and extends to those conditions that are reasonably capable of being regarded as related to the legitimate purposes of the statute.[77] And, as Buss JA explained in Cazaly Iron, the matters of policy and principle governing the exploration of mineral deposits in this State under the Mining Act are broad and multifaceted.
[77] Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [56] (McHugh J), [93] (Gummow & Hayne JJ).
That is not to say, of course, that there are no restrictions on the Minister's power to impose conditions. Indeed, in addition to those powers being exercised for the purposes of the legislation under which they are conferred, there are a number of qualifications imposed by the general law in relation to a power to impose conditions. Those qualifications include the inability to impose a condition which has or may have the effect of significantly altering the development in respect of which approval was sought, or to impose a condition which is uncertain, or which has the consequence that the approval lacks finality.[78]
[78] See Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34 (Conservation Council v Dawson) [137] (Martin CJ).
The validity of any individual condition, therefore, will always depend upon the circumstances in the particular case, the material before the relevant decision-maker and the considerations relevant in the particular case leading to the exercise of the Minister's discretion. That is why it is not open to this Court, in a case such as this, to proffer an opinion as to whether any proposed condition would in fact be valid if it were imposed by the Minister.
Nevertheless, in my view, it is sufficient, for the purposes of answering Question 3 of the special case, that I can say that there is nothing in the text or purpose of the Mining Act that would necessarily prohibit the kind of 'no mining' conditions that are proposed in the minutes of programming directions.
In my view, depending upon the circumstances of a particular case, it may be open to the Minister to impose a condition that prohibits mining activity over specific areas that are the subject of an exploration licence. In particular, in light of the decision in Western Reefs, a condition to that effect may well be the appropriate mechanism for preventing injurious affection of another mining tenement. It might also, for example, be justified in particular circumstances by other considerations. There might, for example, be a specific area of environmental or heritage significance within the area of an exploration licence, in relation to which it would be appropriate by the imposition of conditions to ensure that that specific area remains undisturbed.
Two aspects of the provisions in relation to exploration licences in particular, in my view, confirm this view.
First, is the conclusion I have reached in relation to Questions 1 and 2. As I have concluded, subject to certain express exceptions, s 57 of the Mining Act, construed in the context of the statute as a whole, provides that an exploration licence may only be granted over a block or blocks. The block regime itself clearly contemplates that the area the subject of an exploration licence may encroach on other interests in land and other mining tenements (such as a miscellaneous licence). That co‑existence is expressly recognised in s 57(2e) in relation to miscellaneous licences. In those circumstances, it is consistent with the primary object of the Mining Act that conditions may be imposed that are intended to reconcile the interest of different tenement holders and private land owners.
Secondly, and in that context, it is significant that s 63AA of the Mining Act specifically empowers the Minister to impose on the holder of an exploration licence 'reasonable conditions for the purpose of preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land'. The inclusion of that specific power recognises, and is intended to address, the potential injurious impact upon the land, and anything upon the land, the subject of the exploration licence, including by reason of the rights of other persons in relation to that land.
For these reasons, in my view, and subject to the conditions otherwise being validly imposed in accordance with, and for the purposes of, the Mining Act, the Minister would have power to impose conditions that would prevent mining or exploration activities on discrete areas within an exploration licence.
Of course, it would be a matter of fact and degree whether, in the particular case, such a condition would be so extensive as to go beyond that which is reasonably capable of being regarded as related to the legitimate purposes of the Mining Act. Nevertheless, while it is ultimately a matter for the discretion of the Minister, in my view, on the face of them the kind of 'no mining' conditions proposed by the minutes of programming directions do not appear to go beyond those limits.
Accordingly, I answer Question 3 of the special case as follows:
Question 3:Does the Minister have power to impose conditions which prohibit mining or exploration activities upon the grant of an exploration licence (e.g. E45/5041) in respect of any area overlapping a miscellaneous licence (e.g. L1SA, L45/318, L45/319 and L4SA) or private land (e.g. General Lease I154279), or areas adjacent to the overlapping areas?
Answer 3:Yes, subject to the conditions otherwise being validly imposed in accordance with, and for the purposes of, the Mining Act, the Minister does have power to impose conditions which prohibit mining or exploration activities upon the grant of an exploration licence in respect of any area overlapping a miscellaneous licence or private land, or areas adjacent to the overlapping areas.

Question 4 of the special case

Question 4 of the special case raises a particular issue in relation to the scope of the power to impose conditions. That is the question of what have in the past been described as 'ambulatory conditions', namely conditions designed to govern the process by which an approved activity is implemented, including by requiring assessment and approval of aspects of the approved activity.[79]
[79] Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 196 LGERA 372 (Buzzacott) [160] (Gilmour, Foster & Barker JJ).
Questions 4(a) and (b) deal with different kinds of 'ambulatory condition'. Question 4(a) specifically refers to those conditions proposed in the minutes of programming directions that require the approval of a third party (such as the Minister, rail operator or DMIRS) before some specified activity is undertaken (see paragraphs 6(c), 6(d), 6(e), 6(f), 6(g) and 6(i) of the BHP Objectors' Substituted MOPD and paragraphs 3(b), 3(c), 3(d), 3(e), 3(f), 3(g) and 3(h) of the FMG Objectors' Substituted MOPD). Question 4(b) relates to conditions which enable the Minister to impose additional conditions in certain circumstances (see paragraph 3(h) of the Roy Hill Objector's Substituted MOPD and paragraph 6(j) of the BHP Objectors' Substituted MOPD).
Whether an ambulatory condition, of either kind, is authorised by the Mining Act is, again, a question of statutory construction having regard to the text, context and purpose of the Mining Act as a whole.
In other statutory contexts involving land or resource use proposals, the courts have recognised that those statutory contexts support the imposition of conditions which retain a degree of flexibility in their implementation.
In Buzzacott, for example, the Full Court of the Federal Court said:[80]
[U]nder the general law, the question whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. … [A]s a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision‑maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency.
[80] Buzzacott [179] (Gilmour, Foster & Barker JJ).
Similarly in Conservation Council v Dawson, Martin CJ, said in the context of the Environmental Protection Act 1986 (WA):[81]
[C]onditions which retain a degree of flexibility with respect to a development, or which involve a third party in the supervision of a stage of the development, should be taken to be within the contemplation of a legislature conferring a power to impose conditions with respect to a complex development, given that it cannot be supposed that an application prepared prior to the commencement of a complex development can contain all details or predict with certainty the course which the development might take over what may be a long lifetime.
[81] Conservation Council v Dawson[139] (Martin CJ).
In my view, given its subject matter, a similar degree of flexibility can be taken to have been contemplated by the legislature under the Mining Act. Indeed, a number of the prescribed statutory conditions deemed to be attached to an exploration licence contemplate later approval or action by the Minister or a prescribed official.[82]
[82] See Mining Act, s 63(aa)(ii), (b).
Again, there are limits to the extent to which a condition may require ongoing supervision or approval by third parties. Such a condition might, in the particular case, be so lacking in certainty or finality, that the licence ceases to be a licence at all. Those limits are, however, a matter of fact and degree; they do not in my view undermine the general principle that conditions may be imposed that retain some ongoing flexibility in relation to the activities permitted under the licence or which delegates some authority in relation to the implementation of the licence to some other person or agency.
As regards Question 4(a), therefore, in my view the Minister does have power to impose the kinds of conditions identified in the special case. It is significant that the proposed conditions referred to in Question 4(a) all enable particular activities to be undertaken, with specific approval, on or adjacent to the objectors' tenures. They are therefore relatively confined in their scope, having regard to the area the subject of the application itself. It is difficult to see that those conditions could be said to lack certainty or finality. Again, whether the conditions are in fact supported by the available evidence or should be imposed by the Minister are not matters before the Court or in relation to which it would be appropriate to express an opinion.
Conditions of the kind contemplated by Question 4(b), which enable the Minister to impose additional conditions on the licence, are more difficult. An open‑ended power to impose additional conditions on a licence might be found to lack sufficient certainty or finality to be a valid condition. Much would depend upon the particular facts and circumstances justifying such a power. On the face of it, neither of the proposed conditions referred to in the special case (paragraph 3(h) of the Roy Hill Objector's Substituted MOPD and paragraph 6(j) of the BHP Objectors' Substituted MOPD) could be described as an open‑ended power to impose additional conditions – given that they are confined to conditions for the purposes of protecting the objectors' infrastructure.
Indeed, given that s 63AA empowers the Minister to impose conditions for the purpose of preventing injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below that land or consequential damage to any other land 'at any subsequent time' it may be that those proposed conditions would not be necessary in any event. That would be a matter for consideration by the warden and, potentially, the Minister.
For these reasons, I answer Question 4 of the special case as follows:
Question 4:Does the Minister have power to impose conditions which:
(a)prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, such as proposed at paragraphs 6(c), 6(d), 6(e), 6(f), 6(g) and 6(i) of the BHP Objectors' Substituted MOPD and at paragraphs 3(b), 3(c), 3(d), 3(e), 3(f), 3(g) and 3(h) of the FMG Objectors' Substituted MOPD, including where any such consent is to be provided as part of a consultation process; or
(b)require the applicant to comply with conditions imposed in the future by the Minister, such as proposed at paragraph 3(h) of the Roy Hill Objector's Substituted MOPD and at paragraph 6(j) of the BHP Objectors' Substituted MOPD?
Answer 4:Yes, subject to the conditions otherwise being validly imposed in accordance with, and for the purposes of, the Mining Act (including considerations of certainty and finality), the Minister does have power to impose conditions which:
(a)prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, including where any consent is to be provided as part of a consultation process; or
(b)require the applicant to comply with conditions imposed in the future by the Minister.

Conclusion

The questions in the special case are answered as follows:
Question 1:Does the Minister have power under the Mining Act to excise areas the subject of a miscellaneous licence (e.g. L1SA, L45/318, L45/319 and L4SA) from the grant of an application for an exploration licence (e.g. E45/5041)?
Answer 1:No, the Minister does not have power to excise areas the subject of a miscellaneous licence from the grant of an application for an exploration licence, in the sense that the Minister may not grant an exploration licence over part of a block by reason of the presence of a miscellaneous licence over the rest of that block.
Question 2:Does the Minister have power to excise private land (e.g. the land the subject of General Lease I154279) from the grant of an application for an exploration licence (e.g. by granting E45/5041 with the proposed conditions and excisions contemplated in the relevant proposed programming orders)?
Answer 2:No, the Minister does not have power to excise areas the subject of a general lease (being private land) from the grant of an application for an exploration licence, in the sense that the Minister may not grant an exploration licence over part of a block by reason of the presence of private land over the rest of that block.
Question 3:Does the Minister have power to impose conditions which prohibit mining or exploration activities upon the grant of an exploration licence (e.g. E45/5041) in respect of any area overlapping a miscellaneous licence (e.g. L1SA, L45/318, L45/319 and L4SA) or private land (e.g. General Lease I154279), or areas adjacent to the overlapping areas?
Answer 3:Yes, subject to the conditions otherwise being validly imposed in accordance with, and for the purposes of, the Mining Act, the Minister does have power to impose conditions which prohibit mining or exploration activities upon the grant of an exploration licence in respect of any area overlapping a miscellaneous licence or private land, or areas adjacent to the overlapping areas.
Question 4: Does the Minister have power to impose conditions which:
(a)prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, such as proposed at paragraphs 6(c), 6(d), 6(e), 6(f), 6(g) and 6(i) of the BHP Objectors' Substituted MOPD and at paragraphs 3(b), 3(c), 3(d), 3(e), 3(f), 3(g) and 3(h) of the FMG Objectors' Substituted MOPD, including where any such consent is to be provided as part of a consultation process; or
(b)require the applicant to comply with conditions imposed in the future by the Minister, such as proposed at paragraph 3(h) of the Roy Hill Objector's Substituted MOPD and at paragraph 6(j) of the BHP Objectors' Substituted MOPD?
Answer 4:Yes, subject to the conditions otherwise being validly imposed in accordance with, and for the purposes, of the Mining Act (including considerations of certainty and finality), the Minister does have power to impose conditions which:
(a)prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, including where any consent is to be provided as part of a consultation process; or
(b)require the applicant to comply with conditions imposed in the future by the Minister.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
31 OCTOBER 2022