Onslow Resources Ltd v Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum
[2021] WASCA 151
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ONSLOW RESOURCES LTD -v- HON WILLIAM JOSEPH JOHNSTON MLA in capacity as MINISTER FOR MINES AND PETROLEUM [2021] WASCA 151
CORAM: QUINLAN CJ
BUSS P
BEECH JA
HEARD: 16 AUGUST 2021
DELIVERED : 16 AUGUST 2021
PUBLISHED : 23 AUGUST 2021
FILE NO/S: CACV 107 of 2020
BETWEEN: ONSLOW RESOURCES LTD
Appellant
AND
HON WILLIAM JOSEPH JOHNSTON MLA in capacity as MINISTER FOR MINES AND PETROLEUM
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: ONSLOW RESOURCES LTD -v- HON WILLIAM JOSEPH JOHNSTON MLA in capacity as MINISTER FOR MINES AND PETROLEUM [2020] WASC 310
File Number : CIV 1335 of 2020
Catchwords:
Appeal - Administrative law - Application for judicial review - Decision that an application for a mining lease was null and void
Mining law - Statutory interpretation - Requirement that application for mining lease shall be accompanied by a mining operations statement - Whether a non-compliant mining operations statement can satisfy essential preliminaries for the exercise of power by the Minister to grant a mining lease
Legislation:
Mining Act 1978 (WA), s 71, s 74, s 74A, s 75
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr D R Chandler |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms F B Seaward & Mr G Stockton |
Solicitors:
| Appellant | : | Lawton Mcmaster Legal |
| Respondent | : | No appearance |
| Amicus Curiae | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Onslow Resources Ltd v Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum [2020] WASC 310
REASONS OF THE COURT:
Introduction and summary
This is an appeal from a decision of Smith J refusing leave to bring an application for judicial review and dismissing the application.[1]
[1] Onslow Resources Ltd v Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum [2020] WASC 310 (Primary decision).
The decision sought to be reviewed was a decision of an officer of the then Department of Mines and Petroleum, made on 11 October 2017, to record that an application for a mining lease (Application M09/150) was null and void.[2] The decision was made on the basis that Application M09/150 was not accompanied by a statement in accordance with s 74(1a) of the Mining Act 1978 (WA) (the Act), as required by s 74(1)(ca)(ii) of the Act.
[2] In his submissions as amicus curiae, the Attorney General observed that 11 October 2017 was in fact the date upon which the relevant officer advised the appellant that they intended to amend the register to record that Application M09/150 was null and void. In fact the record was made approximately one month later, on or about 9 November 2017. Nothing turns on the distinction between the two dates.
The decision to amend the register was made following the High Court's decision in Forrest & Forrest Pty Ltd v Wilson.[3] The Court in Forrest & Forrest relevantly held (by majority) that the requirements of s 74(1)(ca)(ii) imposed 'essential preliminaries to the exercise of the' Minister's power to grant mining leases under s 71 of the Act.[4] Section 74(1)(ca)(ii), the High Court concluded, was 'both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement [that the documentation relied on must have been lodged at the same time as the application]'.[5]
[3] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 (Forrest & Forrest).
[4] Forrest & Forrest [63] (Kiefel CJ, Bell, Gageler & Keane JJ).
[5] Forrest & Forrest [67] (Kiefel CJ, Bell, Gageler & Keane JJ).
Section 74(1)(ca)(ii) requires the provision of two separate documents: a statement in accordance with s 74(1a) of the Act (mining operations statement) and a mineralisation report prepared by a qualified person (mineralisation report). Forrest & Forrest was concerned with a complaint that the application for a mining lease was not accompanied by a mineralisation report. The present appeal is concerned with an application for a mining lease that was not accompanied by a mining operations statement.
The appellant alleged before the learned primary judge that Application M09/150 was, in fact, accompanied by a mining operations statement, albeit that the appellant accepted that the mining operations statement was 'non-compliant'. In that regard, the appellant contended that a letter from the appellant dated 25 May 2012 and signed by its director Warren Slater (the 25 May 2012 letter), was 'a non-compliant operations statement' sufficient to satisfy the essential preliminaries to the exercise of the Minister's power to grant a mining lease.
The learned primary judge concluded that the 25 May 2012 letter was not a mining operations statement and that no mining operations statement accompanied Application M09/150 as required by s 74(1)(ca)(ii) of the Act.[6] There being no jurisdictional error on the part of the decision maker, her Honour refused leave to bring the application for judicial review out of time and dismissed the application.
[6] Primary reasons [70], [77].
By its appeal, the appellant alleged that the learned trial judge erred in concluding that the 25 May 2012 letter was not a mining operations statement and that no mining operations statement accompanied Application M09/150. While there were two grounds of appeal, the appellant accepted that, unless the 25 May 2012 letter could be characterised as a mining operations statement (albeit a non-compliant one) there could be no jurisdictional error and the appeal must fail.
The learned primary judge did not make the error alleged. The 25 May 2012 letter could not, on any rational basis, be characterised as a mining operations statement (compliant or otherwise). Indeed, so clear is it that the 25 May 2012 letter neither purports to be, nor has any of the characteristics of, a mining operations statement that it is difficult to see how a submission to that effect could have been advanced.
At the conclusion of the appeal, the Court dismissed the appeal with reasons to follow. These are our reasons.
Before turning to the circumstances of Application M09/150, it is appropriate to set out the relevant provisions of the Act and relevant aspects of the decision in Forrest & Forrest.
Statutory context
The discretionary power to grant a mining lease is conferred upon the Minister, pursuant to s 71 of the Act. Section 71 provides:
Subject to this Act, the Minister may, on the application of any person, after receiving a recommendation of the mining registrar or the warden in accordance with section 75, grant to the person a lease to be known as a mining lease on such terms and conditions as the Minister considers reasonable.
Sections 74, 74A and 75 of the Act, make provision for applications for mining leases and the determination of those applications. Those provisions, relevantly, provide as follows:
74.Application for mining lease
(1)An application for a mining lease -
(a)shall be in the prescribed form; and
(b)shall be accompanied by the amount of the prescribed rent for the first year of the term of the lease or portion thereof as prescribed; and
(c)shall be accompanied by the prescribed application fee; and
(ca)shall be accompanied by -
(i)a mining proposal; or
(ii)a statement in accordance with subsection (1a) and a mineralisation report prepared by a qualified person; or
(iii)a statement in accordance with subsection (1a) and a resource report;
and
(d)shall be lodged in the prescribed manner.
…
(1a)The statement referred to in subsection (1)(ca)(ii) and (iii) shall set out information about the mining operations that are likely to be carried out in, on or under the land to which the application relates including information as to -
(a)when mining is likely to commence; and
(b)the most likely method of mining; and
(c)the location, and the area, of land that is likely to be required for the operation of plant, machinery and equipment and for other activities associated with those mining operations.
(2)The applicant shall at the request of the mining registrar or warden furnish such further information in relation to the application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require any information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.
(3)Within the prescribed period the applicant shall serve such notice of the application as may be prescribed on the owner and occupier of the land to which the application relates and on such other persons as may be prescribed.
(4)The application shall be made by reference to a written description of the area of the land in respect of which the lease is sought, and be accompanied by a map on which are clearly delineated the boundaries of that area.
(5)The Director General of Mines shall ensure that -
(a)any document referred to in subsection (1)(ca) that accompanies the application; and
(b)any document furnished by the applicant in response to a request under subsection (2),
are made available for public inspection at reasonable times.
…
(7) In this section -
…
mineralisation report means a report that sets out details of exploration results in respect of a deposit of minerals located in, on or under the land to which the application relates, including details of -
(a) the type of minerals located in, on or under that land; and
(b) the location, depth and extent of those minerals and the way in which that extent has been determined; and
(c) analytical results obtained from samples of those minerals;
…
74A.Report on significant mineralisation required for certain applications
(1)If an application for a mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the Director, Geological Survey shall give the Minister a report as to whether or not there is significant mineralisation in, on or under the land to which the application relates.
(2)For the purposes of preparing the report, the Director, Geological Survey may request the applicant to provide further information in relation to matters dealt with in the mineralisation report.
(3)The report shall be based solely on information contained in the mineralisation report and any further information provided by the applicant in response to a request under subsection (2).
(4)The Director, Geological Survey shall give a copy of the report to the mining registrar and the warden.
(5)The Director General of Mines shall ensure that the report is made available for public inspection at reasonable times.
…
(7)In this section
mineralisation report means the mineralisation report that accompanied the application.
75.Determination of application for mining lease
(1)A person who wishes to object to the granting of an application for a mining lease shall lodge a notice of objection within the prescribed time and in the prescribed manner.
(1a)A person is not entitled to lodge a notice of objection if the basis for the objection is that there is no significant mineralisation in, on or under the land to which the application relates.
(2)Subject to subsection (2a), if no notice of objection is lodged within the prescribed time, or any notice of objection is withdrawn, the mining registrar shall, unless subsection (4)(b) applies, forward to the Minister a report which recommends the grant or refusal of the mining lease and sets out the reasons for that recommendation.
(2a)If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the mining registrar shall not forward a report under subsection (2) unless -
(a)the mining registrar has received a copy of the section 74A report in relation to the application; and
(b)the section 74A report states that there is significant mineralisation in, on or under the land to which the application relates.
(3)The mining registrar shall -
(a)recommend the grant of the mining lease if satisfied that the applicant has complied in all respects with the provisions of this Act; or
(b)recommend the refusal of the mining lease if not so satisfied.
…
(6)On receipt of a report under subsection (2) or (5), the Minister may, subject to subsection (7), grant or refuse the mining lease as the Minister thinks fit, and irrespective of whether -
(a)the report recommends the grant or refusal of the mining lease; and
(b)the applicant has or has not complied in all respects with the provisions of this Act.
…
The decision in Forrest & Forrest
Forrest & Forrest concerned two applications for mining leases by related companies. No mining operations statement or mineralisation report was lodged contemporaneously with the applications.[7]
[7] Forrest & Forrest [34] (Kiefel CJ, Bell, Gageler & Keane JJ).
A few months after the applications in Forrest & Forrest were lodged, a mineralisation report for each application was lodged. The Director, Geological Survey prepared a report under s 74A of the Act for each application and in December 2012, the warden heard the applications with the s 74A reports of the Director, Geological Survey before him.[8]
[8] Forrest & Forrest [36], [37] (Kiefel CJ, Bell, Gageler & Keane JJ).
Objection was taken to the warden's jurisdiction on the basis that the applications were not accompanied by mineralisation reports (the appellant did not, in that case, rely upon the absence of a mining operations statement[9]). The warden held that he had jurisdiction, notwithstanding that the applications in that case were not accompanied by mineralisation reports.[10] An application for judicial review challenging the jurisdiction of the warden, and an appeal to this Court, were both dismissed.
[9] Forrest & Forrest [11] (Kiefel CJ, Bell, Gageler & Keane JJ).
[10] Forrest & Forrest [40], [41] (Kiefel CJ, Bell, Gageler & Keane JJ).
On appeal to the High Court, Kiefel CJ, Bell, Gageler and Keane JJ concluded that the warden lacked jurisdiction as the essential pre-conditions to the exercise of both the warden's and the Minister's power were absent.
Relevantly, the majority concluded:[11]
[63]… A consideration of 'the language of the statute, its subject matter and objects, and the consequences for the parties of holding void' acts done in breach of the Act, reveals that ss 74(1)(ca)(ii), 74A(1) and 75(4a) imposed essential preliminaries to the exercise of the power conferred by s 71 of the Act. That this was so was made clear by both the express terms and the structure of the provisions as sequential steps in an integrated process leading to the possibility of the grant of a mining lease by the Minister. These provisions were not expressed in indeterminate terms: they imposed rules which could be easily identified and applied. In addition, any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister's power would enure only to those with some responsibility for the non-observance, whereas (as will be explained) the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act. Finally, and importantly, Project Blue Sky was not concerned with a statutory regime for the making of grants of rights to exploit the resources of a State.
[11] Forrest & Forrest [63] (Kiefel CJ, Bell, Gageler & Keane JJ).
In the context of their consideration of the language of the Act, the majority said:[12]
[67]The clear meaning of s 74(1)(ca)(ii), as a matter of ordinary parlance, was that the documentation relied upon must have been lodged at the same time as the application was lodged, as each of the courts below held. The text of s 74(1)(ca) did not admit of any ambiguity or doubt on this point. The tenor of s 74(1)(ca)(ii) was both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement.
…
[73]The phrase '[i]f the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii)' was substantially repeated in each of sub-ss (2a), (4a) and (8) of s 75. These were the three provisions that grounded the decision-making authority of the mining registrar, the warden, and the Minister respectively. These provisions left no room for the possibility that the documentation referred to in s 74(1)(ca)(ii) might be relied upon other than as an accompaniment to the application for a mining lease; on the contrary, each reinforced the essentiality of the requirement in s 74(1)(ca)(ii) itself.
[12] Forrest & Forrest [67], [73] (Kiefel CJ, Bell, Gageler & Keane JJ).
The majority also concluded that the express provision in s 75(6) and s 116(2) of the Act in relation to non-compliance with the requirements of the Act did not excuse the non-compliance with s 74(1)(ca)(ii) in that case. Their Honours said:[13]
[75]Section 75(6)(b) allowed the Minister to grant or refuse a mining lease notwithstanding an applicant's non-compliance in all respects with the provisions of the Act. It did not manifest an intention that any and all non-compliance with the provisions of the Act regarding applications for mining leases could be disregarded when the Minister determined whether to grant a lease. In particular, it did not purport to allow the Minister to make a grant where the warden had failed to comply with the Act, as, for example, by proceeding to a hearing under s 75(4) contrary to the requirements of s 75(4a).
[76]Section 116(2) was not cast in terms which were apt to confer indefeasibility of title in respect of any non-compliance with the requirements of the Act. Unlike s 75(6)(b), s 116(2) did not speak of a want of 'compliance' with the provisions of the Act, but of 'informality or irregularity' in the application or proceedings. 'Informality' means a want of legal form as distinct from a want of legal substance. The term 'irregularity' refers to a lack of regularity in the method or manner in which a power is exercised[46]: it is a term used in deliberate contrast to an act beyond power. The failure of the warden to observe the requirement of s 75(4a) cannot fairly be described as an 'informality or irregularity in the application or in the proceedings previous to the grant' of the mining lease.
[13] Forrest & Forrest [75], [76] (Kiefel CJ, Bell, Gageler & Keane JJ).
It is not necessary, in the present case, to attempt to chart the metes and bounds of either s 75(6) or s 116(2) of the Act in relation to cases in which the Minister has in fact purported to grant a mining lease. As in Forrest & Forrest, the issue in this case concerns the validity of the steps taken prior to any purported action by the Minister.
In that regard, the appellant accepted, at the hearing of the appeal that the High Court's reasoning in Forrest & Forrest in relation to the mineralisation report required by s 74(1)(ca)(ii) applied with equal force to the requirement, in the same sub-clause, with respect to the mining operations statement. The alleged distinction to be drawn with Forrest & Forrest, the appellant submitted, was that in that case the 'physical document' (in the form of a mineralisation report) did not accompany the application, whereas in the present case, a mining operations statement did accompany Application M09/150, in the form of the 25 May 2012 letter.
We turn then to the relevant factual background.
Factual background
On 25 May 2012, the appellant lodged Application M09/150, in the form of a Form 21 'Application for Mining Tenement'. The application was accompanied by a mineralisation report and the 25 May 2012 letter.[14]
[14] Primary reasons [16].
At the time of lodging Application M09/150, Mr Slater paid the required application fee, and the first year's prescribed rent for the mining lease.[15]
[15] Primary reasons [17].
The 25 May 2012 letter, which was signed by Mr Slater, read as follows:[16]
[16] Primary reasons [18].
Re Mineral Resource in support of Mining Lease application by Onslow Resources Ltd for ground applied for on 25th May 2012 on the Gascoyne River.
In accordance with sect 74(1)(ca)(ii), we provide our mineralisation report as follows:‑
The Gascoyne River is a source of river sand that is suitable for the manufacture of concrete in both sand and aggregate, it is a shallow banked and a levee controlled channel flowing fast when in flood.
During the heavy rain seasons it has reached the high embankments And has been subjected to severe flooding, our aim is to remove a large amount of sand that obstructs the river's ability to run and this would allow a free flow of water to the ocean.
The course sand deposit is largely built up over the entire application area by it's inability to flow freely to therough to the mouth of the river, the last flooding was classic case where the sand deposited an extra three metres in the river and it is considered by the locals that the next flood will be a much bigger problem than the last devastating event in December 2010
The resource is highly suitable for the use in foundation works in fill material for the wheatstone LNG Project, where the ground conditions require a non plastic fill material due to the poor soil conditions and swampy location, this river sand will not only be suitable for this purpose but also for some trenching back fills to stabilise the piping works.
The sand is replenished when the river floods each year.
We have completed a sampling programme in the deposits, these samples are attached to the application. The results confirm our opinions that this is a highly suitable site to mine and service the NW with good quality concrete sands and course fine aggregates for special high strength concrete precast products.
With the research over the entire tenement having been completed and now the mining lease has been marked out for the purpose of mining these sands.
The Length of the application following the river is approx 4 kms, if we use the principle of the length x width x depth we have a resource of:‑
Length 4000 m
Width 100 m
Depth 4 m
Total 1,600,000 Bank Cubic Metres @ 1.5 t/m3 = 2,400,000 tonnes, for conservative purposes we reduce the tonnes to 50% being 1,200,000 tonnes
These above estimates are conservative in that the nearby other granted leases upstream are proven to be in excess of 4 mts deep.
On 28 June 2012 a senior geologist employed in the Department, in the Mineral Exploration Geoscience branch, sent an email to Mr Slater stating: [17]
[17] Primary reasons [19].
On behalf of the Director Geological Survey, I have made a preliminary examination of the Mineralisation Report regarding Mining Tenement Application for M09/150, Carnarvon Sand & Gravel. For this application we still require a Supporting Mining Statement from your company.
However, before I make a final assessment and recommend to the Director Geological Survey to agree that significant mineralisation is indicated in the Mineralisation Report, please ensure the following changes/additions are made so that the documents conform more closely to our Guidelines:
…
Mining Statement
1.A separate Supporting Mining Statement has not been submitted. The letter submitted with the report does not meet the requirements of a supporting statement. For a Supporting Mining Statement, you need to write a brief report about the mining operations that are likely to be carried out in, on or under the land to which the application relates including information such as:
a.when mining is likely to commence;
b.the most likely method of mining; and
c.a plan showing proposed pit outline, and infrastructure (any processing plants, roads, etc).
On 22 August 2012, SLR Consulting Australia Pty Ltd, on behalf of the appellant, lodged a revised mineralisation report and a document titled, 'Supporting Statement For a Mining Lease Application M09/150 Gascoyne River, Carnarvon, WA', which comprised a document of four pages containing a description of the project, together with two pages comprising maps being Figure 1, a tenement boundary plan, and Figure 2, a proposed mining operation and infrastructure plan (Supporting Statement).[18]
[18] Primary reasons [21].
The Supporting Statement described the proposed method of the mining operations, possible supporting infrastructure facilities, proposed system of work for operations and maintenance which included repairs and servicing of mobile plant, refuelling and lubrication of plant, proposed waste generation and management disposal, the proposed size of the workforce and arrangements for the accommodation, the proposed method of transport of excavated sand and access to the site of work, resource requirements, available regional infrastructure and the approvals required (to be obtained) for the mining proposal. It stated that mining operations could commence approximately three to four months after the grant of the lease.[19]
[19] Primary reasons [22]; see GAB 431.
The Supporting Statement, and a revised version dated 29 August 2012 (Revised Supporting Statement), set out the information required by s 74(1a) of the Act.[20] Of course, neither the Supporting Statement, nor the Revised Supporting Statement accompanied Application M09/150 when it was lodged.
[20] Primary reasons [25].
On 13 September 2012, (after receipt of a s 74A report) the Karratha Mining Registrar recommended the grant (by the Minister) of a mining lease in respect of Application M09/150, but did not forward the report containing the recommendation to the Minister, as required by s 75(2) of the Act.[21] This was evidently due to outstanding issues arising under the Native Title Act 1993 (Cth).
[21] Primary reasons [26] – [27].
In the meantime, the High Court delivered its decision in Forrest & Forrest, following which the decision was made to amend the register to record that Application M09/150 was null and void on the basis that it was not accompanied by a mining operations statement.
Primary judge's findings
The learned primary judge rejected the appellant's contention that the 25 May 2012 letter was a mining operations statement. Her Honour said:[22]
it cannot be found that the letter included information as to the location, and the area, of the land that was likely to be required for the operation of plant, etc, as the letter simply referred to the location and area of the entire tenement and did not contain any information as to where, within the tenement, the mining operations were to take place. In particular, the letter did not contain any information as to what parts of the land forming the tenement were likely to be required for the operation of plant, etc. Nor did the letter contain any information about the method and extent of likely mining operations. The information contained in the letter dated 25 May 2012 simply contained a summary of information that was relevant to the extent of mineralisation that is likely to be found within the tenement and in the mineralisation report.
[22] Primary reasons [75].
On this basis her Honour found 'as a jurisdictional fact, that no mining operations statement accompanied the mining application as required by s 74(1)(ca)(ii) of the Act'.[23]
[23] Primary reasons [77].
The learned primary judge went on to find that, even if the 25 May 2012 letter could be regarded as a 'partially compliant mining operations statement' the application for judicial review would also fail because, inter alia, it was not open to the Registrar to conclude that the appellant had complied in all respects with the provisions of the Act (see s 75(3)).[24]
[24] Primary reasons [79], [80].
Ground 1 – Was the 25 May 2012 letter a mining operations statement?
Ground 1 contends, relevantly that the learned primary judge:
erred in law in determining that the letter dated 25 May 2012 that accompanied Application for Mining Lease 09/150 … was not a statement for the purposes of s 74(1a) of the Mining Act 1978 (WA) whereas properly construed the letter was such a statement forming part of a valid mining lease application
The learned primary judge did not so err. On the contrary, her Honour was entirely correct to conclude that the 25 May 2012 letter was not a mining operations statement.
First, contrary to the appellant's submissions, the 25 May 2012 letter does not purport to be a mining operations statement. Indeed, it plainly purports to be something else entirely, namely a 'mineralisation report'. The letter expressly says as much:
In accordance with sect 74(1)(ca)(ii), we provide our mineralisation report as follows:-
(emphasis added)
The contents of the 25 May 2012 letter that follow are all consistent with the information required to be included in a mineralisation report, namely information as to type, location and extent of the minerals on the land. In that regard the information in the letter is to similar effect as the separate mineralisation report lodged with Application M09/150. Contrary to the appellant's submission, the fact that the letter and the detailed mineralisation report were lodged together, combined with the letter's reference to s 74(1)(c)(ii), falls well short of justifying reading the letter as purporting to be one of the things referred to in that provision - a mining operations statement - when it plainly identifies itself as the other thing referred to in s 74(1)(c)(ii) - a mineralisation report.
There is no basis whatsoever to read the 25 May 2012 letter as purporting to be a mining operations statement.
Secondly, the 25 May 2012 letter contains none of the information required by s 74(1a) of the Act.
The letter does not include information as to 'when mining is likely to commence' (s 74(1a)(a)). At the hearing of the appeal, counsel submitted, that the reference to 'during the heavy rain season', in effect, implied that mining was likely to commence 'not during the heavy rain season'. The submission that a reference to the heavy rain season provided information, for the purposes of s 74(1a), about the likely commencement of mining lacked any arguable or plausible foundation, and should not have been made.
The letter did not include any information as to 'the most likely method of mining' (s 74(1a)(b)). The appellant did not submit otherwise.
Nor did the letter include any information as to the matters referred to in s 74(1a)(c) of the Act. That the letter says that the sand deposit is built up over the 'entire application area', does not provide such information. That statement says nothing about the location of 'plant, machinery and equipment' or other 'associated activities'.
In short, the contents of the 25 May 2012 letter did not, on any rational view, provide anything resembling the information required by s 74(1a) of the Act. A reasonable recipient of the letter would not, and could not sensibly, have taken the letter as an attempt to provide a mining operations statement for the purposes of s 74(1a), much less a 'non-compliant' document of that character.
No error is demonstrated. To the contrary, the learned primary judge's conclusion was plainly correct. Ground 1 must fail.
Ground 2 – Did the Registrar have power to disregard non-compliance?
Ground 2 contends that the learned primary judge:
erred in law in determining that a mining registrar has no power to disregard any noncompliance with the provisions of the statutory regime and that it was not open to the Karratha Mining Registrar to make a recommendation on 13 September 2012 that a mining lease be granted in respect of MLA09/150, whereas properly construed a mining registrar does have such a power and the Karratha Mining Registrar was empowered to make her recommendation on 13 September 2012
The appellant accepted at the hearing of the appeal that ground 2 was premised upon the necessary finding that the 25 May 2012 letter was a mining operations statement, albeit that it was a non-compliant mining operations statement. That is, ground 2 was premised on the success of ground 1.
Nevertheless, as it relates to the proper construction of the Act as a whole, it is appropriate to make the following observations in relation to the submission that a 'non-compliant mining operations statement' can be regularised by the provision of subsequent information, so as to empower the Registrar to make a recommendation under s 75(3) of the Act.
In that regard, in our view the scheme of the Act, as construed by the High Court in Forrest & Forrest, does not admit of the notion of a 'non-compliant mining operations statement', in the sense of a document that partially meets the description of the statement required by s 74(1a) of the Act. A statement lodged with an application for a mining lease either meets the criterion stipulated in s 74(1)(ca)(ii) - that it is 'a statement in accordance with' s 74(1a) - or it does not. There is no 'halfway house' in which a document includes sufficient parts of the information required by s 74(1a) so as to enliven jurisdiction to consider the application but insufficient information to comply with the Act.
If an application for a mining lease relying upon s 74(1)(ca)(ii) is non-compliant, in the sense that it is not accompanied by a mining operations statement that meets the requirements of, and thus is in accordance with, s 74(1a), the Registrar is neither empowered, nor obliged, to request further information to make it 'compliant'.
As already noted, Forrest & Forrest was concerned with the provision of a 'mineralisation report'. In the majority's conclusion that s 74(1)(ca)(ii) 'convey[s] an intention not to countenance any degree of non-compliance with the requirement',[25] the 'requirement' is a reference to the requirement that 'the documentation relied upon must have been lodged at the same time as the application was lodged.'[26] In a case where the applicant does not lodge a mining proposal, the documentation relied upon is both the mineralisation report and the statement of mining operations. Thus, the conclusion of the majority that s 74(1)(ca)(ii) 'convey[s] an intention not to countenance any degree of non-compliance with the requirement' encompasses both documents relied upon. Moreover, as a matter of statutory construction there is no basis to distinguish between the two documents referred to in s 74(1)(ca)(ii). Thus, the majority observed, in general and unqualified terms, that s 74(1)(ca)(ii) imposed essential preliminaries to the exercise of the power conferred by s 71 of the Act.[27]
[25] Forrest & Forrest [67] (Kiefel CJ, Bell, Gageler & Keane JJ).
[26] Forrest & Forrest [67] (Kiefel CJ, Bell, Gageler & Keane JJ).
[27] Forrest & Forrest [63] (Kiefel CJ, Bell, Gageler & Keane JJ).
Indeed, the appellant's submission, that it was a jurisdictional error for officers of the Department to treat a non-compliant application under s 74(1) as non-compliant would, if accepted, have the effect of turning administrative law on its head. As the majority observed in Forrest & Forrest:[28]
[T]he 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.
[28] Forrest & Forrest [65] (Kiefel CJ, Bell, Gageler & Keane JJ).
The construction contended for by the appellant in the present case would not only allow non-compliance with the legislative regime to be overlooked or excused by officers of the executive government; the appellant's construction would require it.
That construction must be rejected.
Ground 2 must fail.
Conclusion
For the above reasons we made the order dismissing the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Chief Justice
23 AUGUST 2021
3
2
0