Olliver Geological Services P/L v White Lakes P/L

[2012] SAWC 1

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

OLLIVER GEOLOGICAL SERVICES P/L v WHITE LAKES P/L

[2012] SAWC 1

Reasons for Ruling of Senior Warden Dr Cannon (ex tempore)

27 March 2012

MINING LAW

Waiver of exemption - jurisdiction.

OLLIVER GEOLOGICAL SERVICES P/L v WHITE LAKES P/L
[2012] SAWC 1

1. This is an application for a Waiver of exemption to be granted for a new mineral lease, ML 6348.  It is a new lease.  It is a new waiver.  There has been a change of the legislation since this plaint came before the court and before I look at the affect of that, I summarise the history of this matter. 

2. This is all part of a long-term agreement between White Lakes Pty Ltd and Olliver Geological Services Pty Ltd, which was the operator.  I now have a transfer process going through the department between Olliver Geological Services Pty Ltd to Mr Traeger’s company.  Mr Traeger is not a stranger to this mining operation.  I understand he was working with Olliver Geological Services Pty Ltd.  The agreement always had in mind a succession of mining leases.  There are a series of relatively small deposits on White Lakes Pty Ltd’s land.  It was always the intention that as one was finished a new one would start-up and it would be, as required, the subject of a new lease. 

3. There have been two previous disputes between the parties over this and the most recent dispute prior to the one before me now was in No. DCCIV-05-62.  The respondents, Mr and Mrs Haeusler who own White Lakes Pty Ltd, were represented by Mr Critchley.  It was clear from the transcript in that matter that, with the benefit of legal advice, White Lakes Pty Ltd acknowledged that this was part of an ongoing operation.  Indeed, I note at p.6 of the transcript of 20 October 2005 that when the matter was resolved Mr Olliver, representing his own company, specifically noted at line 19 and following:

   MR OLLIVER:   And there will be subsequent – we have another mineral claim that’s yet to be mined           and yet to be geologically mapped and there may be a third and there may be a fourth all on          White Lakes’ property.  So we want that same thing to roll through for the life of the mine              because one of them in particular will only last for one year.

   WARDEN:                 I can’t see that this, from what Mr Critchley is saying, his client wouldn’t have any –          too much difficulty providing that their rights were embedded in the agreement to give them            their rights, a contractual right.  Is that a correct understanding, Mr Critchley?

   MR CRITCHLEY: That’s my current instructions.  It’s fair to say the relationship has been a bit strained         at present.

   MR OLLIVER:   It took us a long time to get to that agreement.

   WARDEN:        I see.

   MR OLLIVER:      Several years and it was hard work.

   MR CRITCHLEY: It might be overly optimistic to say that we could get another agreement in place in            respect to the future.

   WARDEN:                 Your client wants to reserve its position I understand.  That’s something that has to            be met with on the merits of each occasion.  I can’t be prescriptive.

4. Then, the warden specifically put in place exemptions by agreement in respect of ML 6146 and 6147, which have now been mined.  There is an issue about rehabilitation on at least one of those. 

5. It is clear from the agreement that the parties had in mind a continuous operation and a series of waivers that White Lakes Pty Ltd bound itself to grant.  It is clear that the Mining Act 1971 (the Act), itself, protects future interests. Section 9AA(12) of the amended Act, and the earlier Act too, specifically protects successors in title to both the freehold interest and the mining interest. The fact that there is a change from Olliver Geological Services Pty Ltd to Mr Traeger’s company does not break the legal rights that Mr Traeger has succeeded to under the original agreement. I was proceeding on that basis and then they amended the Act. That came into effect in July 2011 and removed, from this court, the jurisdiction dealing with issues of Waivers of Exemption. Of course, this application pre-dated the change to the Act. The law is that where a change to an Act has a procedural effect, rather than effecting substantive rights, then it affects everything, even things that were in place before the Act. If I am dealing with a Waiver of Exemption application that was in place before the Act changed, after the Act changes and removes my jurisdiction, I have no further power to deal with it. The cases are clear on that. I note Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 and also in York Civil P/L v Workers Compensation Trib & Anor [1999] SASC 173.

6. It is clear to me that, although I may have jurisdiction (and I think I clearly do) in relation to the agreement between the parties here and this proposed operation is covered by that agreement, to the extent that enforcing the agreement will involve me imposing a Waiver over the objection of White Lakes Pty Ltd, then, I do not have jurisdiction to make that order in relation to the Waiver. 

7. I further note that there is an issue here of an alleged deficiency in rehabilitation.  The agreement between the parties does not grant the Waiver, or the right to mine, subject to successful rehabilitation but this court has always been concerned to ensure that landowners, who are subject to mining, are left afterwards with their land in as productive a state as it was before, or if it is not, that they are compensated on a continuing basis for the loss of productivity.  In that respect, I refer to my decision in Southern Titanium NL v Heidrich & Ors [2004] SAWC 1.

8. The short answer is, I do not have jurisdiction to force a Waiver on Mr and Mrs Haeusler’s company Whitelakes Pty Ltd over their objection.  It would be unproductive for me to rule on the agreement.  This must be determined in the Environment, Resources and Development (ERD) Court.  Rather than require the parties to start again in the ERD Court, what I intend to do is refer this matter to the ERD court and ask the Registrar of that court to fix an early mention date to decide on the best way to bring this matter to a prompt conclusion. 

   MR TRAEGER: Just a matter on that rehabilitation.  It has already been approved by the Mines Department that it is finished.  The lease has been surrendered and the bank guarantee, the bond, has already been returned to us.  Has rehabilitation really, got anything to do with us anymore now or is it back in the hands of the Mines Department?

   HIS HONOUR: The way I read the agreement between you, rehabilitation is left to the Mines Department.  Whether it is sufficient, or not, is something that has to be argued within that process of granting the leases, the mining and rehabilitation program (the MARP) and the cancellation of the leases.  You tell me there are no problems with the rehabilitation there.  Mr Haeusler has a different view of that.  I have mentioned the issue for completeness so that, as I hand the file over to the ERD court, they are well aware of the issue. 

   Whether that court decides that it is nothing to do with the court anymore and it is only a matter for – what was the Department of Primary Industries and Resources      (PIRSA) – and is now the Department for Manufacturing, Innovation, Trade, Resources and Energy (DMITRE), that is a matter you will have to raise with the ERD Court.  I have only mentioned it because it is an important issue to Mr Haeusler and so I have put it on the record.  I am not, in putting it on the record, suggesting that your rehabilitation was deficient.  I am just identifying the issue.  I am sorry I cannot help you anymore but Parliament has bound me not to.