Onslow Resources Ltd v Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum
[2020] WASC 310
•2 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ONSLOW RESOURCES LTD -v- HON WILLIAM JOSEPH JOHNSTON MLA in capacity as MINISTER FOR MINES AND PETROLEUM [2020] WASC 310
CORAM: SMITH J
HEARD: 29 JUNE 2020
DELIVERED : 2 SEPTEMBER 2020
FILE NO/S: CIV 1335 of 2020
BETWEEN: ONSLOW RESOURCES LTD
Applicant
AND
HON WILLIAM JOSEPH JOHNSTON MLA in capacity as MINISTER FOR MINES AND PETROLEUM
Respondent
Catchwords:
Administrative law - Application for judicial review - Application for writs of certiorari and mandamus, declaration, and mandatory injunction - Mining Act 1978 (WA) - Decision that a mining lease application was null and void
Mining law - Statutory interpretation - Section 74(1)(ca)(ii) of the Mining Act, requirement that application for mining lease shall be accompanied by a mining operations statement - Whether a non‑compliant mining operations statement can satisfy the essential preliminaries for the exercise of power by the Minister to grant a mining lease
Mining law - Statutory interpretation - Section 75(6) of the Mining Act - Effect of the curative provision - Whether Minister conferred with a discretion to grant a mining lease by disregarding a non‑compliant mining operations statement lodged with a mining application if the statement substantially complies with s 74(1a) of the Mining Act
Legislation:
Mining Act 1978 (WA), s 57(1), s 59(6), s 71, s 74, s 74(1a), s 74(1a)(a), s 74(1a)(b), s 74(1a)(c), s 74(1)(ca)(i), s 74(1)(ca)(ii), s 74A(1), s 74A(2), s 74A(7), s 75, s 75(1), s 75(2), s 75(2a), s 75(2a)(a), s 75(2a)(b), s 75(3), s 75(3)(a), s 75(4), s 75(4a), s 75(4a)(a), s 75(5)(c), s 75(6), s 75(6)(b), s 75(10), s 116(2)
Native Title Act 1993 (Cth), s 31
Result:
Leave to proceed out of time to apply for judicial review refused
Category: A
Representation:
Counsel:
| Applicant | : | Mr D R Chandler |
| Respondent | : | No appearance |
| Amicus Curiae | : | Attorney General of Western Australia |
Solicitors:
| Applicant | : | All Mining Legal Pty Ltd |
| Respondent | : | No appearance |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181
Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116; (2016) 10 ARLR 81
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Mount Barker Properties Ltd v District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134
SMITH J:
1.0 The application for judicial review and a summary of issues raised for determination
The applicant applies for judicial review of a decision, made on 11 October 2017, to amend the register to record that mining lease application 09/150 (Application M09/150) was null and void at the time and date of lodgement of the application.[1]
[1] Application M09/150 was lodged at 3.10 pm on Friday, 25 May 2012.
The applicant seeks an extension of time to apply for judicial review of the decision as the application was not filed until 6 March 2020.
On 23 April 2020, the Minister filed a notice of intention to abide by the decision of the court, save as to costs.
Pursuant to an order made by the court on 25 March 2020, the Attorney General filed and served an application for leave to appear as amicus curiae on 23 April 2020, and on 6 May 2020, the court granted the Attorney General leave to appear.
The decision to amend the register to record Application M09/150 as null and void, followed the delivery of the High Court's decision in Forrest & Forrest Pty Ltd v Wilson on 17 August 2017.[2]
[2] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 (Kiefel CJ, Bell, Gageler & Keane JJ).
In Forrest & Forrest Pty Ltd v Wilson, the majority of the High Court found:[3]
(1)Section 74(1)(ca) of the Mining Act 1978 (WA) (the Act) requires that an application for a mining lease shall be accompanied by (i) a mining proposal; or (ii) a statement setting out information about the mining operations that are likely to be carried out (in accordance with s 74(1a)), and a mineralisation report prepared by a qualified person.
(2)Section 74(1)(ca)(ii), s 74A(1) and s 75(4a) of the Act impose conditions precedent to the exercise of the power to grant a mining lease conferred on the Minister by s 71 of the Act.
(3)As the applications for mining leases were not accompanied by a mineralisation report as required by s 74(1)(ca)(ii) of the Act, the warden did not have jurisdiction to hear the applications, and did not make a valid report and recommendation to the Minister under s 75(5)(c) of the Act.
[3] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 (Kiefel CJ, Bell, Gageler & Keane JJ).
The reason why the decision was made on 11 October 2017, to amend the register, was that Department[4] officers, (responsible for the administration of the preliminary steps of the statutory regime required to be carried out prior to the Minister being called upon to grant or refuse a mining lease under s 71 of the Act) had formed the view that a mining operations statement had not been lodged at the same time as the other documents forming Application M09/150.[5]
[4] The Department was known in June 2012 as the Department of Mines and Petroleum. At the time the decision was made the name of the Department was the Department of Mines, Industry Regulation and Safety.
[5] Affidavit of Anthony Warren Slater sworn 4 March 2020, Attachment AWS07, page 69 and Attachment AWS08, page 70.
The applicant argues that a jurisdictional error arises because it claims that a mining operations statement was in fact lodged with the other documents comprising Application M09/150, and that accordingly the conditions precedent to the exercise of the power of the Minister to grant a mining lease, pursuant to s 71 of the Act, had been met. To establish this jurisdictional fact, the applicant points to the documentary records of the Department which establish that on Friday, 25 May 2012, the applicant lodged a completed Form 21 dated 25 May 2012, a mineralisation report dated 23 May 2012 and a two-page letter dated 25 May 2012, signed by the applicant's director, Mr Warren Slater (the letter dated 25 May 2012).
The applicant claims that the letter dated 25 May 2012 is a mining operations statement within the meaning of s 74(1)(ca)(ii) of the Act.
The Attorney General agrees that the Department records establish that the letter dated 25 May 2012 accompanied the Form 21 when it was lodged with a mineralisation report, but argues that the letter does not satisfy the content of a mining operations statement as required by s 74(1a) of the Act.Put another way, the Attorney General argues that, 'no statement in accordance with s 74(1a)', was lodged with the Form 21 and a mineralisation report, as required by s 74(1)(ca)(ii) of the Act. Thus, it is said by the Attorney General that the conditions precedent for the exercise of the power by the Minister to grant a mining lease to the applicant, pursuant to s 71 of the Act, was not satisfied.
The applicant concedes that the letter dated 25 May 2012 did not contain all of the information about the likely mining operations which are required to be specified pursuant to s 74(1a), but maintains that the lodgement of a non‑compliant mining operations statement is not a proper reason to refuse to set aside the decision that Application M09/150 is null and void.
Consequently, there is a factual issue to be determined by the court as to whether the letter can be characterised as 'a statement in accordance with' s 74(1a) (and thus, a mining operations statement). The application for judicial review does not, however, entirely turn upon this factual issue, but also the construction of s 75(6) of the Act and the effect of the letter dated 25 May 2012 if the contents of the letter could be found to specify some of the information prescribed by s 74(1a) of the Act, and if so:
(a)could it be found that the letter substantially complied with s 74(1)(ca)(ii) and s 74(1a); and
(b)whether the lodgement of a document that substantially complies with s 74(1)(ca)(ii) and s 74(1a) results in the validity of an application for a mining lease.
An issue is also raised as to whether the statutory regime enables an applicant to provide further information to remedy a non‑compliant mining operations statement.
2.0 The statutory regime for the grant of a mining lease[6]
[6] The relevant provisions of the Act are as it stood prior to the commencement of the Mining Amendment Act 2012 (WA). The decision of the High Court in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 also concerned the proper construction of the provisions of the Act as it stood prior to the Mining Amendment Act 2012.
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.
The statutory regime which applies to the grant of a mining lease is provided for in s 74, s 74A, and s 75 of the Act. The parts of each of those sections of the Act that are relevant to the disposition of this application for judicial review are 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.
…
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.
(4)Subject to subsection (4a), if a notice of objection ‑
(a)is lodged within the prescribed time; or
(b)is not lodged within the prescribed time but is lodged before the mining registrar has forwarded a report to the Minister under subsection (2) and the warden is satisfied that there are reasonable grounds for late lodgement,
and the notice of objection is not withdrawn, the warden shall hear the application for the mining lease on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.
(4a)If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the warden shall not hear the application unless ‑
(a)the warden 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.
(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 mining lease and sets out the reasons for that recommendation.
(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.
…
3.0 Background
On 25 May 2012, a Form 21 was lodged with the Department by Mr Slater, on behalf of the applicant. Also lodged at the same time with the Form 21 was a mineralisation report and the letter dated 25 May 2012. These documents collectively comprised Application M09/150.[7]
[7] It is common ground that it was discovered on 28 May 2012 by the Department that Mr Slater's letter dated 25 May 2012 was lodged with Application M09/150 as one of the supporting documents; affidavit of Anthony Warren Slater sworn 4 March 2020, Attachment AWS09, page 284.
At the time of lodgement of the documents comprising Application M09/150, Mr Slater paid the required application fee, and the first year's prescribed rent for the mining lease.[8]
[8] Affidavit of Anthony Warren Slater sworn 4 March 2020 [11].
In the letter dated 25 May 2012, Mr Slater stated:[9]
[9] Affidavit of Anthony Warren Slater sworn 4 March 2020, Attachment AWS073, pages 60 ‑ 61.
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, Ms Caroline Strong, a Senior Geologist employed in the Department, in the Mineral Exploration Geoscience branch, sent an email to Mr Slater in which she stated:[10]
[10] Affidavit of Anthony Warren Slater sworn 4 March 2020, Attachment AWS05, pages 65 ‑ 66.
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).
It is apparent from this email that Ms Strong was the Department officer who was responsible for the task of preparing a report on behalf of the Director, Geological Survey for the Minister as to whether or not there is significant mineralisation in, on or under the land to which Application M09/150 relates, as required by s 74A(1) of the Act (being defined as a 'section 74A report' in s 75(10) of the Act, and referred to as such in s 75(2a), s 75(2a)(a) and (b) and s 75(4a), s 75(4a)(a) and (b).
On 22 August 2012, SLR Consulting Australia Pty Ltd (SLR), on behalf of the applicant, lodged a revised mineralisation report and a document titled, 'Supporting Statement For a Mining Lease Application M09/150 Gascoyne River, Carnarvon, WA',[11] 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).
[11] Affidavit of Carolyn Ann Strong affirmed 26 May 2020, Annexure CS 2, pages 27 ‑ 38.
The Supporting Statement was prepared by SLR, and was dated 16 August 2012. The document 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.
On 29 August 2012, Ms Strong sought clarification of some of the figures stated in the mineralisation report and the Supporting Statement.[12]
[12] Affidavit of Anthony Warren Slater sworn 4 March 2020, Attachment AWS05, pages 64 ‑ 65.
On 30 August 2012, SLR sent to Ms Strong a revised Supporting Statement (Revised Supporting Statement).[13]
[13] Affidavit of Anthony Warren Slater sworn 4 March 2020, Annexure AWS 05, page 64 and affidavit of Carolyn Ann Strong affirmed 26 May 2020, Annexure CS 5, pages 67 ‑ 76.
It is common ground that the Revised Supporting Statement was a wholly compliant mining operations statement, as it set out the information required by s 74(1a) of the Act.[14]
[14] ts 29 June 2020 page 17.
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.[15]
[15] Affidavit of Anthony Warren Slater sworn 4 March 2020 [19].
However, it appears that the Karratha Mining Registrar did not (prior to the decision being made on 11 October 2017 to amend the register to record that Application M09/150 was null and void), forward to the Minister the report which recommended the grant of a mining lease in respect of Application M09/150, as required by s 75(2) of the Act.
It appears that the reason for the delay in forwarding a report was that after Application M09/150 was recommended for grant by the Karratha Mining Registrar, on 17 September 2012 the application was referred for Native Title approvals, and advertised on 3 October 2012 for a period of four months.[16]
[16] Affidavit of Anthony Warren Slater sworn 4 March 2020 [20].
Until an agreement was reached with the affected determined Native Title group, Application M09/150 could not proceed to the Minister for his determination of whether to grant or refuse to grant a mining lease, pursuant to s 71 of the Act.
As required by s 31 of the Native Title Act 1993 (Cth), the applicant and the affected determined Native Title party, Gnulli, and its representative, Yamatji Marlpa Aboriginal Corporation, entered into negotiations which took approximately three years to be completed.
On or around 14 October 2017, the applicant received from Yamatji Marlpa Aboriginal Corporation a copy of the final negotiated agreement. On the same day, Mr Slater received a copy of a letter stating that the decision had been made to amend the register to record Application M09/150 was null and void.[17]
[17] Affidavit of Anthony Warren Slater sworn 4 March 2020 [21] - [25].
On or around 20 November 2017, Mr Slater received a remittance advice dated 16 November 2017, which stated that the rent for Application M09/150 had been refunded effective from 10 November 2017.
Following receipt of notice of the decision, Mr Slater undertook searches of the applicant's records and caused to be lodged a Freedom of Information request for the Department's records relating to Application M09/150, to locate copies of all the documents he had lodged on 25 May 2012.[18] After receiving 135 copies of documents from the Department on 14 February 2018 in response to the Freedom of Information application, he obtained a copy of an internal department email sent on 28 May 2012, and an internal departmental memo of the same date, the contents of which contained evidence that the applicant had lodged a mineralisation report and the letter dated 25 May 2012 with the Form 21 on 25 May 2012.[19]
[18] Affidavit of Anthony Warren Slater sworn 4 March 2020 [28] ‑ [33].
[19] Affidavit of Anthony Warren Slater sworn 4 March 2020 [34] ‑ [35] (a) and (b), Attachment AWS09, pages 284, and 354
On or around 27 February 2018, Mr Slater caused a letter to be written to the Department to inform them that a mining operations statement had in fact been lodged contemporaneously with the application, and to request that Application M09/150 be reinstated immediately.[20]
[20] Affidavit of Anthony Warren Slater sworn 4 March 2020 [37].
The Department subsequently reviewed its correspondence and convened a committee to review the Department's documents and to consider whether there were grounds for the decision to be reconsidered.[21]
[21] Affidavit of Anthony Warren Slater sworn 4 March 2020 [40].
By letter dated 11 April 2018, Mr Slater was informed that the committee had met on 23 March 2018, examined the letter dated 25 May 2012, and had made a finding that the requirements of s 74(1)(ca)(ii) of the Act had not been addressed in the letter dated 25 May 2012. The letter dated 11 April 2018 set out the committee's reasoning as follows:[22]
The s 74(1)(ca)(ii) statement pursuant to the Mining Act 1978 (the act) was examined and the Committee found that the requirements of the act were not addressed in any way. This was previously confirmed by the Geological Survey of Western Australia (GSWA) email of 28 June 2012 to Onslow that no Supporting Statement was received. A further email of 29 August 2012 from GSWA confirmed that the statement had subsequently been lodged and that it contained numerous inconsistencies that required amendment.
The DMIRS Committee held that the date of Onslow's submission of the Supporting Statement was received, though ambiguous, was deemed irrelevant, as the document did not meet the requirements of 74(1)(ca)(ii).
In light of the above, the Committee confirmed the invalidity of the application and therefore the register is not amended.
[22] Affidavit of Anthony Warren Slater sworn 4 March 2020, Attachment AWS11, page 432.
After receiving the letter from the committee, Mr Slater continued to correspond with the Department in 2018 and 2019. At the end of 2019, Mr Slater was hospitalised due to a hip replacement surgery and spent the remainder of 2019 and early 2020 recovering from the operation.
4.0 The decision of Forrest & Forrest Pty Ltd v Wilson ‑ A strict approach to compliance to the procedures to be followed in an application for and the grant of a mining lease
In Forrest & Forrest Pty Ltd v Wilson, Yarri Mining Pty Ltd and Onslow Resources Ltd[23] lodged applications for mining leases over land near Onslow in the Pilbara. The land lay within the boundaries of a pastoral lease held by Forrest & Forrest Pty Ltd. Forrest & Forrest Pty Ltd lodged objections to each of the applications pursuant to s 75(1) of the Act, and the objections were heard by the warden.
[23] The applicant in this matter.
The applications were not accompanied by either a mining proposal (as required by s 74(1)(ca)(i)) or a statement in accordance with s 74(1a) and a mineralisation report (as required, in the alternative, by s 74(1)(ca)(ii)).
The warden heard the applications, and the objections, and on 31 January 2014, the warden recommended to the Minister that the applications be granted. Forrest & Forrest Pty Ltd applied for judicial review of the warden's recommendation. The application was dismissed by Allanson J,[24] as was a subsequent appeal to the Court of Appeal.[25]
[24] Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181.
[25] Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116; (2016) 10 ARLR 81.
The essential issue for determination by the High Court was whether non-compliance with s 74(1)(ca)(ii) in relation to matters preliminary to the grant of a mining lease by the Minister pursuant to s 71 would render invalid a mining lease granted by the Minister.
The majority found that an applicant for a mining lease who chose to proceed by way of a mineralisation report (and a mining operations statement) under s 74(1)(ca)(ii) engaged the powers and duties of each of the Director, Geological Survey and the warden in the process leading to the grant by the Minister.[26] Once an application was to be pursued in that way, the Director, Geological Survey became empowered and obliged to prepare a report under s 74A(1) based on the mineralisation report that accompanied the relevant application, not some other mineralisation report provided at some unspecified other time. In particular, s 74A(7) expressly defined a mineralisation report to mean the mineralisation report that accompanied the application. No power was conferred on the Director, Geological Survey to act upon some other document.[27]
[26] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [70] (Kiefel CJ, Bell, Gageler & Keane JJ).
[27] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [71] (Kiefel CJ, Bell, Gageler & Keane JJ).
Similarly, the majority found that the warden's power to hear an application was only engaged if the application for the mining lease was accompanied by the documentation referred to in s 74(1)(ca)(ii).[28]
[28] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [72] (Kiefel CJ, Bell, Gageler & Keane JJ).
The majority also found that the express provisions of s 75(6)(b) (and s 116(2) which protects the title of the grantee of a mining lease against 'any informality or irregularity in the application or … proceedings previous to the grant … of that tenement') did not save from invalidity the non‑provision of a mineralisation report with the lodgement of a mining application.[29]
[29] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [67], [74] ‑ [75] (Kiefel CJ, Bell, Gageler & Keane JJ).
Their Honours noted that s 75(6) empowered the Minister to make a grant of a lease notwithstanding non-compliance with the Act, but this provision only applied in relation to non-compliance with the Act by the applicant, it did not excuse non-compliance with the requirements of the Act on the part of those charged with administering the Act, including the warden and the Minister.[30] The majority did, however, observe that s 75(6) 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.[31] Their Honours then stated that s 75(6) 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).[32]
[30] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [30] (Kiefel CJ, Bell, Gageler & Keane JJ).
[31] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [75] (Kiefel CJ, Bell, Gageler & Keane JJ).
[32] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [75] (Kiefel CJ, Bell, Gageler & Keane JJ).
5.0 The applicant's case
The applicant's case is that a clear jurisdictional error is established on the undisputed facts before the court because the Department made an error about the existence of a jurisdictional fact, that an operations statement (the letter dated 25 May 2012) did in fact accompany the application for the mining lease as prescribed by s 74(1)(ca)(ii) of the Act.
The applicant concedes, however, that the letter lodged with the Form 21, being the letter dated 25 May 2012, was a non‑compliant operations statement, in that the letter did not set out all of the information that is required to be provided about the mining operations that are likely to be carried out as required by s 74(1)(ca)(ii) and s 74(1a) of the Act.
The applicant contends that the letter was partially compliant in that it claims the statement made in the first paragraph of the letter that the information was provided in accordance with s 74(1)(ca)(ii), and the remaining contents of the letter contained information as to the location, size and the area, of land that is likely to be required for the operation of plant, machinery and equipment and those other activities associated with the mining operations as prescribed by s 74(1a)(c).
The applicant argues that the reason given by the committee convened by the Department to reconsider the decision, as to why the entry had been made in the register that Application M09/150 was null and void was a different reason given in the notice received by the applicant on or about 14 October 2017. The applicant contends that to subsequently state that the letter did not meet the requirements of s 74(1)(ca)(ii) is not to the same effect as stating that the reason Application M09/150 was null and void was because no mining operations statement had been lodged with the application.
Consequently, the applicant argues that as the committee's decision was subsequent to the decision the subject of this application the committee's decision can therefore have no bearing on the lawfulness of the original, challenged decision.
If the reason given by the committee is accepted by the court, and if then the Attorney General is to argue that the relief the applicant seeks would have no utility, the applicant argues that a non‑compliant operations statement does not render a mining lease application null and void.
The applicant does not contend that the committee was wrong to conclude on 11 April 2018 that the letter dated 25 May 2012 did not wholly comply with the requirements of s 74(1)(ca)(ii) of the Act, but it claims that when regard is had to the statutory scheme for the approval of a mining lease that although there must be strict compliance with s 74(1)(ca)(ii), the statutory scheme expressly contemplates that if a non‑compliant operations statement is lodged with an application for a mining lease, further information may be requested by the mining registrar (that is, information about the mining operations as specified in s 74(1a)).
In short, the applicant argues that a partly non-compliant mining operations statement still enlivens jurisdiction (of this court to make the orders sought) because there are statutory powers available to request information so as to remedy the non-compliance.
Section 74(2) empowers a mining registrar or warden to request from a mining lease applicant further information in relation to the application, and s 74A(2) also empowers the Director, Geological Survey to request from the applicant further information in relation to matters dealt with in a mineralisation report.
The applicant also relies upon s 75(6)(b) which applies to the exercise of the discretion by the Minister to grant a mining lease on receipt of a report from the mining registrar under s 75(2) or the warden under s 75(5). Pursuant to s 75(6), the Minister may grant or refuse the mining lease as the Minister thinks fit, irrespective of whether the report recommends the grant or refusal of the mining lease; and the applicant has or has not complied in all respects with the provisions of 'this Act'.
6.0 The relief sought by the applicant
As the application for judicial review is out of time, the applicant seeks an order for leave to proceed with the application. If leave is granted, the applicant seeks:
(a)a writ of certiorari to quash the decision that Application M09/150 is null and void;
(b)a declaration that on 13 September 2012, the Karratha Mining Registrar determined that Application M09/150 be recommended to the Minister for grant; and
(c)a writ of mandamus, or alternatively a mandatory injunction, to compel the Karratha Mining Registrar to forward to the Minister a report recommending the grant of Application M09/150, and setting out the reasons for that recommendation, within 28 days of the applicant lodging with the Minister the prescribed rent for the first year of the term of Application M09/150.
The reason why a declaration and writ of mandamus, or alternatively a mandatory injunction, are sought by the applicant is that the applicant claims that to a large extent the steps comprising the preconditions of the statutory regime for the grant of a mining lease have been completed. In particular, it points to the undisputed evidence that a s 74A report has been prepared pursuant to s 74A of the Act, the Karratha Mining Registrar has received a copy of the s 74A report pursuant to s 75(2a) of the Act, and the Karratha Mining Registrar has made a recommendation to the Minister pursuant to s 75(3) (but not provided a report to this effect to the Minister) that Application M09/150 be granted by the Minister.
If the orders and declaration sought by the applicant are made, the applicant claims that all that would be required is for the Karratha Mining Registrar to transmit to the Minister the recommendation (of the grant of a mining lease) for consideration by the Minister, which would return Application M09/150 to the place where it was in the statutory process before the decision (sought to be quashed by a writ of certiorari) was made on 11 October 2017, requiring an entry in the register to record that the application is null and void.
7.0 Is jurisdictional error established?
In Forrest & Forrest Pty Ltd v Wilson, the High Court considered the matters preliminary to the grant of a mining lease by the Minister where an objection had been lodged which required the statutory processes to be exercised by the Director, Geological Survey and the warden.
In this matter, the statutory processes preliminary to the grant of a mining lease by the Minister was to be performed firstly by the Director, Geological Survey and then by the mining registrar, as no person had objected to Application M09/150.
There is one difference that applied to the performance of the preliminary statutory processes by a mining registrar and not to the warden and that is s 75(3)(a) provided that the mining registrar shall recommend the grant of the mining lease if satisfied that the applicant has complied in all respects with the provisions of the Act.As noted by the majority in Forrest & Forrest Pty Ltd v Wilson, the question of whether the applicant (in that matter) had complied in all respects with the provisions of the Act, was a matter to be determined to the satisfaction of the mining registrar, but there is no similar provision to be found in relation to the powers of the warden.[33]
[33] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [22] (Kiefel CJ, Bell, Gageler & Keane JJ).
Whilst the Minister may, pursuant to s 75(6), disregard some non‑compliance with the provisions of the Act, the mining registrar has no power to disregard any non-compliance and is not empowered to make a recommendation to the Minister that a mining lease be granted (if there is non‑compliance).
In respect of the Minister's power to disregard matters of non‑compliance with the Act pursuant to s 75(6), it is to be noted that the matters prescribed in s 74(1)(ca)(ii) are not obligations cast upon the officers that administer the statutory regime preliminary to the grant of a mining lease, but are obligations cast upon an applicant.
If non‑compliance arises, pursuant to s 75(3), the mining registrar is required to make a recommendation to the Minister that the mining lease be refused. It is noted, however, that the mining registrar is still required to forward the recommendation of refusal of a mining lease to the Minister pursuant to s 75(2); and the Minister, pursuant to s 75(6), may grant or refuse the mining lease as the Minister thinks fit, irrespective of whether the report recommends the refusal of the mining lease and the applicant has not complied in all respects with the provisions of the Act.
In a decision of the Court of Appeal in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd, which preceded the decision of the High Court in Forrest & Forrest Pty Ltd v Wilson, McLure P observed that if compliance with s 69 of the Act was a precondition to the existence of the power to grant an exploration licence under s 57(1) of the Act, the grant of an exploration licence would be outside the scope of s 59(6) of the Act (being a provision that is identical in its terms to s 75(6) of the Act) was in line with established authority.[34] Accordingly, her Honour found that the failure to comply with a precondition to the existence of a power under the Act must always result in invalidity.[35]
[34] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 [29].
[35] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 [29].
In Forrest & Forrest Pty Ltd v Wilson, the court did not consider what acts or omissions of non-compliance with the provisions of the Act by an applicant could be disregarded by the Minister. This was because the failure to lodge a mineralisation report at all with the mining application was a clear breach of the essential preliminaries to the exercise of the power conferred on the Minister by s 71 and s 75(6) of the Act.
On one view of the decision of the majority in Forrest & Forrest Pty Ltd v Wilson, it could be found that unless a mining operations statement that accompanies the application complies with the requirements of s 74(1)(ca)(ii) by setting out all of the relevant information prescribed in s 74(1a) about the mining operations that are likely to be carried out in, on or under the land which the application relates, the application is null and void.
Put another way, on one construction of the statutory regime it could be found that the obligation to lodge with a mining application a fully compliant mining operations statement is a precondition to the exercise of the power of the Minister to grant a mining lease pursuant to s 71 of the Act. This construction could be said to follow from the finding made in Forrest & Forrest Pty Ltd v Wilson that 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.[36] This observation was, however, made by the majority without regard to the effect of s 75(6) of the Act.
[36] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [22] (Kiefel CJ, Bell, Gageler & Keane JJ).
However, I do not find it necessary to determine this application on the basis that there is no scope for s 75(6) to save a mining operations statement that does not contain all relevant 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 the matters set out in s 74(1a)(a), (b) and (c) of the Act. This is because, on the facts before the court in this matter, the letter dated 25 May 2012 (that accompanied the Form 21 and the mineralisation report) cannot be found to be a mining operations statement.
The consequence of this finding is that no jurisdictional error arises in the decision made on 11 October 2017 that Application M09/150 was invalid on the basis that it was null and void, as no mining operations statement was lodged at the same time as the application. I have made this finding because when the matters stated in the letter dated 25 May 2012 are examined, it is clear that none of the matters stated set out any of the information about the mining operations that are likely to be carried out in, on or under the land to which the application relates, including the information as to the matters in s 74(1a)(a), (b) and (c) of the Act.
This finding necessarily arises out of a proper construction of the meaning of 'mining' and 'mining operations' in the Act as it was in force when Application M09/150 was lodged.
The term, 'mining', is defined in s 8 of the Act to include fossicking, prospecting and exploring for minerals, and mining operations.[37] The term, 'mining operations', is in turn defined in s 8 to mean:
any mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes ‑
(a)the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral; and
(b)operations by means of which salt or other evaporites may be harvested; and
(c)operations by means of which mineral is recovered from the sea or a natural water supply; and
(d)the doing of all lawful acts incident or conducive to any such operation or purposes;
[37] Mining Act 1978 (WA) as in force from 30 January 2012 to 28 November 2012.
By these definitions, and from the matters specified in s 74(1a)(a), (b) and (c) of the Act, it is clear that what is required to be stated in a mining operations statement is information about how the earth, rock, stone, fluid or mineral bearing substance is to be mined, that is, how it is to be removed from the land and by what means.
Section 74(1a)(a), (b) and (c) require that a mining operations statement must include information as to when mining is likely to commence, the most likely method of mining and 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. These are all matters that should be stated so as to enable any member of the public who inspects the documents that accompany a mining application, to ascertain the extent of the proposed operations and to assist in determining whether they have an interest which would sustain the lodgement of objection and inform, at least in part, the prospects of having any objection upheld by the warden following a hearing pursuant to s 75(4) of the Act.
The letter dated 25 May 2012 does not contain any of this information. Despite a valiant submission to the contrary by counsel for the applicant, 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.
As counsel for the Attorney General points out, the information contained in the letter dated 25 May 2012 contrasts significantly with the compliant mining operations statement submitted as the Revised Supporting Statement on behalf of the applicant by SLR on 30 August 2012.[38] The Revised Supporting Statement explains that:
(a)mining operations could commence approximately three to four months after grant of Application M09/150;[39]
(b)mining of the resource would be undertaken by either mechanical excavator, dragline or medium-sized dredge mounted on barges within the river mouth; and[40]
(c)there would be limited support facilities associated with the project, and the position of the infrastructure associated with the mining operations is depicted.[41]
[38] Affidavit of Carolyn Ann Strong affirmed 26 May 2020, Annexure CS 5, pages 67 ‑ 76.
[39] Affidavit of Carolyn Ann Strong affirmed 26 May 2020, Annexure CS 5, page 70.
[40] Affidavit of Carolyn Ann Strong affirmed 26 May 2020, Annexure CS 5, page 71.
[41] Affidavit of Carolyn Ann Strong affirmed 26 May 2020, Annexure CS 5, pages 71 and 76.
For these reasons, I find as a jurisdictional fact, that no mining operations statement accompanied the mining application as required by s 74(1)(ca)(ii) of the Act.
Even if the court were to be satisfied that the letter dated 25 May 2012 was a partially compliant mining operations statement, the partial compliance would not be sufficient to raise a jurisdictional error so as to invoke the discretion of the court to issue a writ of certiorari to quash the decision that Application M09/150 is null and void.
Firstly, this is because a mining registrar has no power to disregard any non-compliance with the provisions of the statutory regime. Pursuant to s 75(3), a mining registrar is directed by the word 'shall' to recommend to the Minister the refusal of a mining lease if the mining registrar is not satisfied that the applicant has complied in all respects with the provisions of the Act.
Consequently, in light of the concession made on behalf of the applicant that the letter dated 25 May 2012 only partially complies with the requirements of s 74(1)(ca)(ii) and s 74(1a), 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 Application M09/150, as the Karratha Mining Registrar could not on a consideration of the documents that accompanied the application for the mining lease be satisfied that the applicant had complied in all respects with the provisions of the Act. For this reason, the declaration sought by the applicant would be refused.
Secondly, whilst it could be argued that it would be open to the court to make a declaration that the Karratha Mining Registrar erred in making a recommendation that Application M09/150 be granted, and to make an order to issue a mandatory injunction requiring the Karratha Mining Registrar to recommend to the Minister the refusal of the mining lease, which could then invoke the power of the Minister, if he saw fit to exercise the power conferred by s 71 of the Act, by disregarding the partial non‑compliance pursuant to s 75(6) of the Act, I would not exercise my discretion to do so. This is because, it is my view that, a declaration and mandatory injunction to this effect would be of no utility because Application M09/150 would still be null and void. This is because the letter dated 25 May 2012 contained insufficient information to make a finding of fact that the contents of the letter substantially complied with s 74(1)(ca)(ii) and s 74(1a).
This construction emerges from the express words in s 74(1)(ca)(ii) which provides that an application for a mining lease, shall be accompanied by 'a statement in accordance with'[42] s 74(1a). The words 'in accordance with' are capable of being construed as 'to be consistent with',[43] and thus not requiring strict compliance. However, these words must be considered in their context. Section 74(1)(ca)(ii) is contained within a statutory regime which mandates strict compliance with the statutory processes that apply to an application in the grant of a mining licence, except as provided for in s 75(6)(b) and s 116(2) of the Act, and must be considered in the context of the express words of s 74(1a) which provides that the statement, 'shall set out information … including information as to' (a), (b) and (c).
[42] My emphasis.
[43] See for example in a different context observations made by Debelle J in Mount Barker Properties Ltd v District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449 [49].
The curative provision of s 75(6) does not countenance by its terms a waiver of non-compliance by an applicant in all respects. The majority of the court in Forrest & Forrest Pty Ltd v Wilson made this point clear.[44] This construction necessarily follows from the statutory scheme itself when read with the specific words in s 75(6) of the Act, 'the applicant has or has not complied in all respects with the provisions of this Act'.[45]
[44] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [75] (Kiefel CJ, Bell, Gageler & Keane JJ).
[45] My emphasis.
Consequently, when regard is had to the context of the statutory regime for compliance, s 75(6) must necessarily be construed as a provision that requires at least substantial compliance of the provisions of the Act by an applicant.
When the contents of the letter dated 25 May 2012 are considered, it is clear that the information contained within the letter cannot be characterised as a document that substantially sets out the information about the mining operations that are likely to be carried out in, on or under the land to which Application M09/150 relates, as required by s 74(1)(ca)(ii) and s 74(1a) of the Act.
This construction is in my view consistent with the findings made by the court in Forrest & Forrest v Wilson that a long line of authority establishes that where a statutory regime confers power on executive governments of a state to grant exclusive rights to exploit the mineral resources of the state, that no effective grant of rights may be made except upon mandatory compliance with the statutory regime which provides for the making of the grant.[46]
[46] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [64] (Kiefel CJ, Bell, Gageler & Keane JJ).
The court in Forrest & Forrest Pty Ltd v Wilson also observed that to permit non-compliance with the legislative regime to be overlooked or excused by the officers of the executive government charged with the administration of the regime does not serve the public interest.[47] To permit this, '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.[48]
[47] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [65] (Kiefel CJ, Bell, Gageler & Keane JJ).
[48] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [65] (Kiefel CJ, Bell, Gageler & Keane JJ).
Whilst the Minister may be permitted to disregard non-compliance by an applicant if a mining operations statement substantially complies with the requirements of s 74(1)(ca)(ii) of the Act, the degree to which a mining operations statement may not comply must necessarily be informed by the effect of the statutory regime itself.
The statutory regime is a scheme to grant exclusive rights to exploit the resources of the state, and part of that scheme is that a mining operations statement is open for inspection by the public prior to a report being prepared by a mining registrar or prior to consideration by the warden.[49]
[49] Section 74(5) of the Mining Act1978 (WA) as in force from 30 January 2012 to 28 November 2012.
It appears clear from the decision of the court in Forrest & Forrest Pty Ltd v Wilson that the fact that s 74(5) of the Act also requires that any document furnished by the applicant in response to a request by the mining registrar or the warden under s 74(2) to provide further information in relation to the application or the evidence in support thereof, to be open for inspection, did not save the defective mining lease application.
In any event, the compliant mining operations statement that was provided to the Department by the applicant on 30 August 2012 would not be required to be available for public inspection pursuant to s 74(5) as the request for a compliant mining operations statement was not made by the mining registrar, but by an officer of the Department, Ms Strong, on 28 June 2012.
In addition, the statutory command which requires the applicant on request by the mining registrar or the warden for 'further information' or 'evidence in support' pursuant to s 74(2), is not sufficiently wide enough to authorise an applicant to provide information to cure a defective mining operations statement. It is notable that the power conferred by s 74A(2) for the applicant to provide further information at the request of the Director, Geological Survey was found in Forrest & Forrest Pty Ltd v Wilson, not sufficient to authorise an applicant to provide a mineralisation report subsequent to the filing of an application for a mining lease.[50]
[50] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510.
Even if the Minister may approve a mining lease in circumstances where the only aspect of non-compliance with the requirements of s 74(1) is that the mining operations statement lodged with the application does not comply in all respects with the provisions of the Act, pursuant to s 71 and s 75(6), the operation of the statutory regime must be construed as demanding that the mining operations statement must necessarily include sufficient information about the mining operations that are likely to be carried out, so as to enable a member of the public who inspects the documents that accompany the mining lease application to properly form a view as to whether they are entitled to lodge an objection to the granting of the application.
In Forrest & Forrest Pty Ltd v Wilson, their Honours also relevantly observed:[51]
[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.
A consideration of the language of the Act, to which one may now turn, does not reveal any intention to depart from the settled approach to the construction of such a legislative regime, save to the limited extent expressly indicated by ss 75(6)(b) and 116(2).
[51] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [65] ‑ [67] (Kiefel CJ, Bell, Gageler & Keane JJ).
8.0 Conclusion
For the reasons that I have found, it is my view that applicant should not be granted an extension of time to seek review of the decision, as I am not satisfied that the letter dated 25 May 2012 that accompanied Application M09/150 was a statement in accordance with s 74(1a) as required by s 74(1)(ca)(ii) of the Act.
Alternatively, if I am wrong in making this finding, then for the reasons that I have given, even if jurisdictional error in the decision is established, and I was to grant leave to the applicant to proceed out of time to seek review of the decision, I would not exercise my discretion to grant the relief sought. This is because I am of the opinion that the letter dated 25 May 2012 does not substantially set out the information about the mining operations that are likely to be carried out in, on or under the land to which the application relates as required by s 74(1a) and s 74(1)(ca)(ii) of the Act, the consequence of which is that the applicant's failure to provide the information is not capable of being disregarded by the Minister pursuant to s 75(6) of the Act.
I will hear the parties further as to the orders that should be made to reflect these reasons and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith2 SEPTEMBER 2020
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