Topical Toolonga affirms the Warden’s Court’s strict approach to s 58 statements

Following the decision of Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 the mining industry in Western Australia has been searching for answers as to the extent that strict compliance is to operate in other areas of the Mining Act 1978 (WA).

Most recently, the Wardens’ strict interpretation of s 58(1)(b) of the Mining Act 1978 (WA) in True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19 (‘True Fella’) and Azure Minerals Ltd v D & G Geraghty Pty Ltd [2022] WAMW 27 have increased concerns as to the burden imposed on those applying for exploration licences.

On 22 March 2023, Warden Cleary in Toolonga Mineral Sand Pty Ltd v Callum and Belinda Carruth & Ors [2023] WAMW 6 (‘Toolonga’) shut the door on the interpretation of s 58(1)(b) by confirming the recent findings in True Fella and Azure and answering the critical question of the end effect of these decisions.

Warden Cleary has confirmed the burdensome requirement on those applying for exploration licences to submit a s 58 statement which includes a program of work for the full five year term and for the whole of the land of the exploration licence.

What happens if an application fails to meet the requirements of s 58?

The question pondered by many following True Fella and Azure was what happens to an application that fails to comply with s 58(1)(b)?

Warden Cleary in applying the strict compliance requirements in Forrest & Forrest Pty Ltd v O’Sullivan [2020] WASC ultimately found that meeting the requirements of s 58(1)(b) is a jurisdictional fact, or a pre-condition to a valid application for an exploration licence.

Where an invalid application is concerned, the Warden has no jurisdiction to send a report to the Minister recommending the grant or refusal of the application, and the power of the Minister to either grant or refuse the exploration licence is not enlivened.

Put simply, an application for an exploration licence which fails to comply with the requirements of s 58(1)(b) will be deemed invalid to the extent that it does not exist.

Those at risk

While other risks remain lurking in the shadows, those most at risk following the latest decision in Toolonga are those with current pending exploration licence applications with objections on foot.

For a discussion about how this decision may affect your mining tenements, please contact our Energy and Resources team.

Author

Paul Harley | Partner | +61 8 9404 9130 | pharley@tglaw.com.au

Sarah O’Brien-Smith | Partner | +61 8 9404 9158 | sobriensmith@tglaw.com.au

Samantha Brooks | Associate | +61 8 9404 9176 | sbrooks@tglaw.com.au

Charlie Mitchell | Law Graduate

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