JURISDICTION : MINING WARDEN TITLE OF COURT : OPEN COURT LOCATION : PERTH CITATION : MOLY METALS V KARIYARRA NTC [2011] WAMW 16 CORAM : WILSON M HEARD : 15 SEPTEMBER 2011 DELIVERED : 30 SEPTEMBER 2011 FILE NO/S : PROPOSED OBJECTIONS 365679, 365681 & 374500 TENEMENT NO/S : MISCELLANEOUS LICENCES 45/249 & 251 BETWEEN : MOLY METALS AUSTRALIA PTY LTD (Applicant) V APPLICANTS FOR THE KARIYARRA NATIVE TITLE CLAIMANTS (Proposed Objectors) Catchwords: APPLICATION Miscellaneous Licence s. 19 Exemptions Objection MISCELLANEOUS LICENCE Application Role of Hon Minister Objection PRACTICE & PROCEDURE Role of Warden s. 19 Exemptions OBJECTION Extension of time s. 19 Exemption Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 1
Legislation: Mining Act (1978) WA: s. 19 Result: Application and Objections referred to Hon. Minister for Mines for determination. Representation: Counsel: Applicant : Mr M Gerus Objectors : Mr A Matthews Solicitors: Applicant : Gilbert & Tobin Objectors : Pilbara Native Title Service Case(s) referred to in judgment(s): Mincor Zinc Pty Ltd v Tennant Creek Gold (NT) Pty Ltd [2008] WAMW 10 Case(s) also cited: Re Warden Calder; ex parte Gardner (1999) 20 WAR 525 Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 2
1. On 23 May 2003, the Honourable Minister for State Development published in the Government Gazette an Instrument of Exemption of Crown Land ( the Exemption ) pursuant to s. 19 of the Mining Act 1978 for a period of 2 years. 2. To fully understand this matter it is necessary to detail the content of the Exemption as published in the Government Gazette on 23 May 2003. The Exemption states: MP401 Mining Act 1978 Instrument of Exemption of Crown Land The Minister for State Development, pursuant to the powers conferred by section 19 of the Mining Act 1978, hereby exempts all areas of Crown Land described hereunder (not being Crown Land that is subject of a mining tenement or an application therefore) from Divisions 1 to 5 of Part IV of the Mining Act 1978 for a period of two (2) years. Schedule All those portions of land, not being private land or land the subject of a mining tenement or application, for a mining tenement, boarded pink on the plan at page 147 of the Department of Industry and Resources File No. 225/00 and designated S19/174 in Tengraph. Area: 14,356 hectares approximately. Dated at Perth this 13 th day of May 2003. CLIVE BROWN MLA Minister for State Development 3. By further Instrument of Exemption, in similar terms, published in the Government Gazette on 22 April 2005, 23 March 2007 and 27 March 2009 the Honourable Minister for Mines ( the Hon. Minister ) extended the period of the Exemption by 2 years on each occasion. 4. On 23 rd March 2011, a further Instrument of Exemption was published in the Government Gazette in the following terms: MP402* Mining Act 1978 Instrument of Exemption of Land The Minister for Mines and Petroleum, pursuant to the powers conferred on him by Section 19 of the Mining Act 1978, hereby grants that area described hereunder (not Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 3
being private land or land that is the subject of a mining tenement or an application) from Divisions 1 to 5 of Part IV of the Mining Act 1978 for a period of two years. Description of Land Land designated as S19/323 in the Tengraph electronic plan of the Department of Mines and Petroleum. A plan of the exempted land is filed at page 87 of Department of Mines and Petroleum File No A2025/200501. Area: 14,291 hectares approximately. Dated at Perth this 23 rd day of March 2011. NORMAN MOORE MLC Minister for Mines and Petroleum 5. This notice appears to reflect an error in the use of the word grants rather than exempts the area described from the provisions of s. 19 of the Mining Act. I apply the qualification of the literal approach to the interpretation of this Instrument of Exemption by modifying the literal meaning of the words used to overcome the error such that the Instrument of Exemption reads exempts rather than the word grants. 6. The power of the Hon. Minister to make the Exemption is found in s. 19(1) to (2d) of the Mining Act. Specifically s. 19(1) of the Mining Act states: 19 Power to set aside land for mining or exempt it therefrom (1) The Minister may from time to time by instrument in writing under his hand (a) Exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor, from i. mining; ii. iii. iv. a specified mining purpose; this Act; and, a specified provision of this Act; or (b) vary or cancel an exemption referred to in paragraph (a), and shall cause any such instrument to be published in the Government Gazette as soon as is practicable after its execution by him. 7. By letter dated 8 October 2010, Moly Metals Australia Pty Ltd ( Moly ) wrote to the Hon. Minister requesting ministerial authorisation to lodge miscellaneous licence applications inside the area of the Exemption. In Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 4
summary, Moly advised the Hon. Minister it needed to access the land subject of the Exemption to build part of a 174 kilometre long gas pipeline to its mining operations located about 50 kilometres north east of Marble Bar. 8. The Hon. Minister, by letter dated 15 November 2010 ( the Hon. Ministers Letter ), wrote to Moly in the following terms: Request for Ministerial Authorisation to Lodge Miscellaneous Licence Applications over Section 19/174 Exempted Area I refer to a letter dated 8 October 2010 requesting access to the above area to apply for miscellaneous licences to support your proposed mining operations. I am advised that the Department of Mines and Petroleum (DMP) have now assessed the information provided and supports your request, recommending that I utilise my power pursuant to section 19(4) of the Mining Act 1978 (the Act) and invite you to apply for two miscellaneous licences in the area coloured yellow on the attached plans. These applications are to be lodged at the Marble Bar Office of DMP accompanied by the prescribed fees, security documents and Regulation 37(3) program of work. These applications are subject to the normal advertising and service provisions of the Act, and compliance with the processes of the Native Title Act 1993 (Cwth) is required. 9. The power of the Hon. Minister to invite Moly to apply for the 2 miscellaneous licences and to specify the manner in which it is to do so is specified in s. 19(4) & (5) of the Act which states: (4) The Minister may, while any land is exempted under this section, call in such manner as he determines for applications for the grant of such mining tenements as he determines in respect of that land or a part thereof. (5) A person applying to the Minister for the grant of a mining tenement in respect of any land or part thereof referred to in subsection (4) shall do so in such manner as the Minister directs. 10. As a result of the Hon. Ministers Letter, an email was forwarded by Mr Scott Montgomery, Project Manager, Tenure and Native Title Branch, Mineral Titles Division with the Department of Mines and Petroleum in East Perth on 17 November 2010 ( the DMP Email ) to Ms Helen Mitchell, the Mining Registrar at Marble Bar ( the Registrar ) informing her of the Hon. Ministers Letter to Moly inviting Moly to apply for the 2 miscellaneous licences. 11. The content of the DMP Email states: Subject: Applications for L s by Moly Mines Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 5
Attachments: moly-2010111715360772.pdf Hi Helen The attached letter is an invitation to Moly mines by the Minister to apply for 2 miscellaneous licences over the Boodarie Section 19 Area. You will notice in the letter that they still have to comply with all aspects of the Mining Act 1978 and the native Title Act 1993 (Cwth). The only difference is when it comes to grant they must be granted by the Minister. Please place a copy of the attached letters and plans on each file once lodged. Any problems give me a call. Regards Scott Montgomery Project Manager I shall comment on the content of the DMP Email later in this judgment. 12. Under cover of a letter dated 6 December 2010, Moly forwarded to the Registrar three (3) applications for miscellaneous licences in the usual manner of applying for a mining tenement in the Form 21. Relevant to these proceedings the letter of 6 December 2010 from Moly to the Registrar said the following: Re: Application for Miscellaneous Licences in the Pilbara Mineral Field by Moly Metals Australia Pty Ltd Please find enclosed three (3) applications for Miscellaneous Licences in the Boodarie Strategic Industry Area, located in the Pilbara Mineral Field. Due to the applications falling within a Section 19 determined zone, Ministerial consent has been sought by Moly and was granted on 15 November 2010. A copy of the grand notice has been attached to your perusal. 13. On 7 December 2010, the letter from Moly dated 6 December 2010 enclosing the three (3) miscellaneous licence applications were received by the Registrar at 12.03 pm. The Registrar entered the three (3) miscellaneous licence applications in the Register and gave each application a number being L 45/249 to 251 respectively. Relevant to these proceedings the two (2) miscellaneous licences pertaining to the Hon. Ministers Letter were applications for L s 45/249 & 251( the L s ). 14. The Registrar noted on the application for the L s that objections to the applications could be lodged at the office of the Mining Registrar, Marble Bar by 11 January 2011. Copies of the application for the L s were returned to Moly for advertising and service in accordance with the Mining Act and Regulations. Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 6
15. On 21 January 2011, Kariyarra Native Title Claimants ( Kariyarra ) lodged with the Registrar one Form 16 Objection to the three (3) miscellaneous licences. It appears that shortly after 21 January 2011 the Registrar contacted Kariyarra and informed Kariyarra that the manner in which the one Form 16 Objection had been lodged for the three (3) miscellaneous licences was not in compliance with the Mining Act and Regulations. 16. Undercover of a letter dated 24 January 2011, Kariyarra forwarded to the Registrar three Form 16 Objections being one for each of applications for L 45/249, 45/250 & 45/251. The letter of 24 January 2011 appears to have been received by the Registrar on or about the same date. 17. Various requests were made by the Registrar to Kariyarra seeking that Kariyarra provide a statutory declaration to seek from the Warden an extension of time in which to lodge the three Form 16 Objections. A statutory declaration of 7 April 2011 from Mr Colin McKellar, a lawyer acting for Kariyarra, was faxed to the Registrar on the same day. It appears that the extensions of time to lodge the three Form 16 Objections against the three (3) miscellaneous licence applications were granted by the Warden. 18. On 19 July 2011, a letter was forwarded by solicitors for Moly to the Registrar and Kariyarra raising the issue of whether the Warden had the jurisdiction to grant an extension of time to lodge the Form 16 Objections and to hear the Objection given the applications for the L s were on land the subject of the Exemption. 19. A number of mention dates were held before the Warden sitting in Marble Bar during which directions orders were made by the Warden to progress the hearing of the preliminary issue of whether the Warden had the power to extend the time in which to lodge an objection to the L s and to then hear objections to the L s when the applications for the L s were called in under s. 19 of the Mining Act by the Hon Minister. On 26 July 2011, I directed this matter be transferred from Marble Bar to Perth for hearing of the preliminary issue. Submissions 20. At the hearing of the preliminary issue in Perth both Moly and Kariyarra agreed the Warden had no power to hear and determine any aspect of the application for the L s including granting any extension of time to lodge an objection because of the terms of the Exemption. Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 7
Conclusion 21. I agree with the position of the parties. Accordingly, the issues raised by Kariyarra in its proposed objections regarding permits to enter, procedural fairness and other issues are not matters I have the power to either hear or make any finding on. However, there are a number of issues that I need to address pertaining to this matter and in particular how it has found its way before the Warden in Marble Bar and now me rather than before the Hon. Minister. 22. In Mincor Zinc Pty Ltd v Tennant Creek Gold (NT) Pty Ltd [2008] WAMW 10 at paragraphs 37 to 40 Warden Calder said the following: 37. The source of the dispute in this case between the parties concerning the initial compliance issue is s. 19 of the Act. The Minister is bound by s. 19 in the exercise of the Minister s duties and powers under the Act. 38. Section 19 of the Act empowers the Minister to do as the Minister has done in the instrument dated 20 May 2005 and 25 November 2005 in respect of ELA 80/3771 and ELA 80/3772 in both instruments the Minister has exempted all areas of land described in each schedule thereto (other than private land or land the subject of a mining tenement or an application therefor) from Divs 1 to 5 of Pt IV of the Act. Those five divisions of Pt IV of the Act contain a number of sections. I consider that subpar 19(1)(a)(iv) of the Act does not require that an instrument only specify a single provision of the Act and that the Minister may, as he has done here, specified in the one instrument many separate provisions. 39. There is no definition of exempt in the Act. There is no reason why, in its context, "exempt" should not be given its ordinary, everyday usage meaning. In s. 19 its use has the effect, in my opinion, that none of the land that is described in the instrument is subject to, or may be dealt with pursuant to, any of the other provisions of the Act except as provided for in s. 19. Subsection 19(3) says that while any land is so exempted from any specific provision of the Act, the land to the extent of the exemption may be dealt with by the Minister in accordance with s. 19 and to that extent is not subject to any other provision of the Act. Subsections (4) to (7) expressly give to the Minister the power to grant mining tenements over land that has been exempted pursuant to s. 19. In my opinion the provisions of s. 19 are a codification of the manner in which exempted land may be dealt with for all purposes of the Act within the terms of the instrument of exemption. I consider that the codification is exclusive, within the ambit of its terms, of all other provisions of the Act that may otherwise have applied to the land the subject of the instrument in connection with the application for and granting of mining tenements. 40. In my opinion, where, as in the instruments of 20 May 2005 and 25 November 2005, the land the subject of the instruments is exempted from all of the provisions of Divs. 1 to 5 of Pt IV of the Act, which includes ss 57, 58 and 59 of the Act concerning applications for the grant of exploration licences and the determination and granting of such licences those provisions can have no application to any land that is the subject of the instruments. I consider, therefore, that the only manner in which any Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 8
person may make an application for the grant of any mining tenement, including a exploration licence, over land that is the subject of a s. 19 instrument, where the instrument exempts such land from the provisions of Divs 1 to 5 of Pt IV of the Act, is in the manner directed by the Minister pursuant to subs 19(5) of the Act. Subsection 19 (4) of the Act says that while land is exempted under s. 19 the Minister may call, in such manner as he determines for applications to the grant of such mining tenements as he determines in respect of that land or part thereof; subs 19(5) says that a person applying to the Minister for the grant of such a tenements shall do so in such manner as the Minister directs. 23. With the exception that the preliminary issues now before me relate to applications for the L s, I agree with the interpretation of the provisions of s. 19 of the Mining Act by Warden Calder. In my opinion, despite any decision made by the Warden in Marble Bar in respect to the extension of time to lodge the Objections, the Warden is without power to hear any applications for the L s and any objections lodged thereto. 24. The Warden when sitting in an administrative capacity draws his or her powers from the provisions of the Mining Act and Regulations (see Re Warden Calder; ex parte Gardner (1999) 20 WAR 525). The effect of the Hon. Minister in exercising his or her powers under the provisions of s. 19 of the Mining Act by exempting the land upon which the applications for the L s is made from the provisions of Divisions 1 to 5 of Part IV of the Mining Act 1978 divests a Warden of any power that he or she has to hear and determine both the applications for the L s and the objections lodged thereto. 25. In this case, the effect of the Hon. Minister exercising his power under s. 19 of the Mining Act to exempt the land the subject of the applications for the L s from Divisions 1 to 5 of Part IV of the Mining Act is to render of no effect the provisions of Division 5 of Part IV of the Mining Act that pertains to applications for any miscellaneous licence on the land. It follows that in exercising his power pursuant to s. 19 of the Mining Act, the Hon. Minister has also divested the Warden of any powers he or she may have pursuant to the Mining Regulations to hear and determine the applications for the L s and any objections lodged thereto. 26. The Hon. Minister having issued the Exemption may exercise his powers under s. 19(4) & (5) of the Mining Act to call in any applications for mining tenements in such manner as he wishes over the exempted land. The Hon. Ministers Letter does that in paragraphs 2 and 3. 27. In my opinion, the DMP Email is not a correct interpretation of the provisions and effect of s. 19 of the Mining Act when it states to the Registrar You will notice in the letter that they still have to comply with all aspects of the Mining Act 1978... The Exemption granted by the Hon. Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 9
Minister by its very terms dispenses with the need for compliance with the specific provisions of Divisions 1 to 5 of Part IV the Mining Act. Further, the DMP Email ignores the provisions of s. 19(3) of the Mining Act which states: (3) While any land is so exempted from mining or any specified mining purpose, or from this Act or any specified provision thereof, the land to the extent of the exemption, may be dealt with by the Minister in accordance with this section and to that extent is not subject to the other provisions of this Act. 28. All that is required by the Hon. Minister of an applicant called in to apply for a mining tenement on land subject of an exemption under the provisions of s. 19 of the Mining Act is that directed by the Hon. Minister in the exercise of his or her discretion under s. 19(4) & (5) of the Mining Act. 29. It is for those reasons the terms of any calling in of applications for grant of a mining tenement upon any exempt land under the provisions of s. 19 of the Mining Act by the Hon. Minister should be precise in its terms and done in a manner that recognises the effect and practical implications of the terms of the exemption, particularly when the exemption is such that it excludes, as in this case, the whole of the provisions of the Mining Act relative to making an application for a mining tenement. It follows that DMP and its officers should also ensure they are well familiar with the both the legislative and practical effects of an exemption granted by the Hon. Minister pursuant to s. 19 of the Mining Act. 30. In my opinion, upon receipt of any application for the grant of a mining tenement over any land the subject of an exemption under s. 19 of the Mining Act, the Hon. Minister has the sole discretion pursuant to s. 19(6) of the Mining Act to either grant, on conditions, or refuse the application. Section 19(6) of the Mining Act states: (6) On receiving an application made under subsection (5), the Minister may (a) (b) grant the mining tenement applied for or another mining tenement subject to such terms and conditions as he thinks fit; or refuse that application. 31. Upon the grant of a mining tenement by the Hon. Minister pursuant to s. 19(6) of the Mining Act the land the subject of the grant of such mining tenement then becomes subject to the provisions of the Mining Act pursuant to s. 19(7) of the Mining Act. Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 10
32. As noted by Warden Calder in the Mincor Case, s. 19 of the Mining Act is a codification of power of the Hon. Minister to exempt land, call in applications in a manner and on terms determined by the Hon. Minister and to then either grant, on conditions, or refuse the application. The Hon. Minister is pursuant to s. 19 of the Mining Act the sole holder of power to deal with any exempt land under the Mining Act. 33. I do not know whether it was contemplated on the writing of the Hon. Ministers Letter or the DMP Email that objections may be lodged to any application made for the grant of a mining tenement over the land subject to the exemption pursuant to s. 19(1) of the Mining Act. The terms of the Hon. Ministers Letter suggest it was by the requirement for the applications to be served. The DMP Email suggests it may have been considered any objection lodged to the application could be dealt with by a warden before the warden then referred the matter to the Hon. Minister. 34. It is my opinion, sections 19(3) and (6) of the Mining Act when read together contemplates that only the Hon. Minister can deal with any applications for mining tenements over land the subject of exemption under the provisions of s. 19(1) of the Mining Act as the other provisions of the Mining Act, including those that grant a warden his or her powers to hear an application for a mining tenement or an objection thereto are removed by the provisions of s. 19(3) of the Mining Act whilst the exemption is in force. 35. I do not consider a warden can be directed by the Hon. Minister to hear an objection that has been received by the Hon. Minister in the course of calling in applications for mining tenements pursuant to sections 19(4) & (5) over land the subject of exemptions pursuant to s. 19(1) of the Mining Act. 36. For the reasons stated, I do not consider a warden has, in the circumstances of this case, the power to hear either the application for extension of time to lodge the late objections by Kariyarra or the applications by Moly. 37. Accordingly, for those reasons I am of the opinion, the Registrar should refer the applications for extension of time to lodge the objections by Kariyarra and the applications by Moly for the L s to the Hon. Minister for his consideration pursuant to s. 19(6) of the Mining Act. Moly Metals v Kariyarra NTC [2011] WAMW 16 Page 11