Australia: Yes, Minister – Application For Miscellaneous And Prospecting Licences And The Right Of Appeal To The Minister

Under the Mining Act 1978 (WA), and specifically under Part IV of the Act (which relates to the granting of mining tenements), the ultimate decision-maker is the Minister for Mines and Petroleum.

In the case of applications for exploration licences, retention licences, mining leases and general purpose leases, whilst the application comes first before a mining registrar (where there is no objection) or a mining warden (where there is an objection), their powers are limited to the making of a recommendation. The recommendation is made to the Minister who ultimately decides the fate of the application.

In contrast, in the case of prospecting licences and miscellaneous licences, the decision upon an application is made by a mining registrar or warden. This decision, however, is subject to a right of appeal to the Minister.

The character of the powers of the warden and Minister in respect of applications for prospecting or miscellaneous licences was considered in the recent case of St Barbara Ltd v Minister for Energy, Resources, Industry and Enterprise [2008] WASCA 248. Following this decision, there is now greater clarity on the respective roles played by warden and Minister as well as the rights of the applicant for the licence and any objector to that application.

The Legislative Scheme

An application for a prospecting licence or miscellaneous licence under the Mining Act is governed respectively by Part IV Division 1 or Part IV Division 5 of the Act.

If no objection is lodged to the application for either licence (or if an objection is withdrawn), the application is determined by the mining registrar. If, however, an objection is lodged in accordance with the provisions of the Mining Act, the application will be determined by the mining warden. In either case, the mining warden or registrar may grant the application with or without conditions, or refuse to grant the application.

Where the mining registrar or the warden refuses to grant an application for a licence or grants the application on conditions the applicant considers unreasonable, the applicant may, in accordance with provisions of the Mining Act, appeal to the Minister against such refusal or conditions imposed. The Minister may dismiss the appeal or uphold the appeal and grant the application on such conditions as he or she considers reasonable.

Background To Case

Murrin Murrin Holdings Pty Ltd and Glen Murrin Pty Ltd applied for miscellaneous licences in October 2004. Sons of Gwalia Ltd lodged objections to the grant of those licences.¹

In June 2006, St Barbara Ltd applied for a stay of both applications. The objection raised in respect of the applications was essentially that they covered the same land as had been the subject of a previously refused application made by an entity related to Murrin Murrin and Glen Murrin, and that the subsequent applications amounted to an abuse of process.

On 14 July 2006 and 8 November 2006, the warden heard both applications. There was no argument heard or evidence adduced concerning the substantive merits of either application. The only issue before the warden was whether they amounted to an abuse of process.

On 13 April 2007, the warden delivered his decision dismissing both applications. On 27 April 2007, Murrin Murrin and Glen Murrin appealed to the Minister against the dismissal of the applications. St Barbara Ltd disputed that there was any right of appeal in this case as the warden had not refused the applications but rather "dismissed" them without the hearing on the merits. It was this point that became the primary issue of contention in the subsequent Court of Appeal proceedings.

By letter dated 11 July 2007, the Minister informed St Barbara Ltd that he had jurisdiction to hear and determine the appeals. On 19 September 2007, St Barbara Ltd then applied for a writ of prohibition preventing the Minister from hearing the appeals. In November 2007, the issue came before Justice Templeman who dismissed the application. St Barbara Ltd appealed that decision.

Proceedings Before The Court Of Appeal

The primary issue before the Court of Appeal was whether there was a right of appeal, and if so the scope of the right of appeal, against the decision of a mining warden who "dismissed" the grant of an application for a miscellaneous licence. Given the similarities between the provisions which govern them, the principles derived from this decision apply equally in respect of prospecting licences as they do for miscellaneous licences.

In a victory for common sense, the Court of Appeal held that the plain effect of the provisions relating to the application for a miscellaneous licence is that the warden has the power to refuse any application upon the basis that it does not satisfy the express or implied requirements of the Mining Act and the warden's decision in that respect is subject to the right of appeal to the Minister. There is no separate power for the warden to "dismiss" an application (as opposed to refusing it), thereby denying the right of appeal to the Minister.

The Court of Appeal then held that it was irrelevant that the warden did not hear and determine the application in all respects. It also preferred the view that there was no requirement for the warden to hear the application on the merits before deciding whether to refuse or grant it. Consequently, the refusal of an application, however expressed, was still considered a refusal which can be appealed to the Minister.

The Court of Appeal also decided that a refusal of an application in respect of only part of the land to which the application applies is a refusal which is subject to the right of appeal to the Minister.

The final issue before the Court of Appeal concerned the obligations of the Minister where an application for a licence is refused by the warden without a hearing on the merits. The Court did not consider it appropriate to decide this issue before a final determination by the Minister. However, it indicated that the Minister would be required to perform his duties according to law, which includes the requirement to afford the parties procedural fairness and permit them to adduce such evidence as they consider fit in relation to any issue in controversy between them.

The Significance Of The Decision – A Miner's Rights

The application for a miscellaneous licence or a prospecting licence application will either be determined by a mining registrar (if there is no objection to the application) or a mining warden (if there is an objection to the application).

Where a notice of objection is lodged, the mining warden will hear and determine the application for the licence allowing both the applicant and the objector an opportunity to be heard. The powers of the warden in this respect are, however, subject to a right of appeal to the Minister.

In all circumstances, the applicant has a right of appeal to the Minister. The right of appeal exists whether or not the decision of the warden relates to all or part only of the land the subject of the application. It also appears to exist whether or not the application was heard on the merits or determined on the basis of some preliminary point. If, however, the application was not heard on its merits, it appears that the Minister will be required to comply with the rules of procedural fairness and allow the parties to put whatever evidence is required to make their respective cases.

Footnote

1. St Barbara Ltd subsequently replaced Sons of Gwalia Limited as the objector.

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