Toolonga Mineral Sand Pty Ltd (Toolonga) applied for exploration licences near Kalbarri to explore for chalk. Murchison Hydrogen Renewables Pty Ltd and Hydrogen Renewables Australia Pty Ltd are the developers of the Muchison Hydrogen Renewables Project, a project to produce ammonia for export using wind and solar energy. They hold licences under the Land Administration Act 1997 (WA) for the project. They objected to Toolonga's application for exploration licences over the same ground as the project, alleging it would not be in the public interest and the application did not comply with the requirements of section 58(1)(b) of the Mining Act 1978 (WA).
Warden Cleary determined that Toolonga's section 58(1)(b) statement was non-compliant because the program of work only covered the first year of the five year term. Her Honour observed that it was "incongruous" that Toolonga could provide an undertaking that it has sufficient financial resources to undertake the work for the anticipated life of the tenement in such circumstances. Although finding it unnecessary to decide the other bases of non-compliance, Warden Cleary observed that an applicant must identify how any shareholders or external consultants listed in the section 58(1)(b) statement are available to the applicant.
Because a non-compliant section 58(1)(b) statement prevents the registrar/warden assessing whether the applicant can effectively explore the ground applied for, neither a report nor recommendation to the Minister can be made (by the registrar in cases without an objection, or the warden in cases where an objection is lodged). For this reason, a compliant statement is a precondition to a valid application. Without a valid application, the warden (or registrar in cases of no objection) does not have the jurisdiction or power to give a report to the Minister nor make a recommendation. Without that report, the Minister has no jurisdiction, or power, to grant the application. The Minister's power in section 59(6) to grant an application despite non-compliance with the Mining Act does not extend to invalid applications (which in any event, do not reach the Minister for determination because of their invalidity).
In reaching that conclusion, her Honour followed Justice Allanson's decision in Golden Pig Enterprises Pty Ltd v O’Sullivan [2021] WASC 396 as directly on point. She preferred it to the older decision of the Full Court of the Supreme Court in In the matter of an application for a Writ of Certiorari against the Warden at Coolgardie Ivan Brown SM; Ex parte Aberfoyle Resources Ltd and Eldorado Resources Ltd unreported, Full Court of the Supreme Court of Western Australia, 19 April 1989, BC 8901132. In the latter case, the Full Court had found that a non-compliant s 58(1)(b) statement did not invalidate the application. Her Honour applied Golden Pig because it was directly on point, and, adopting as it does the High Court's reasoning in Forrest & Forrest v Wilson [2017] HCA 30; (2017) 262 CLR 510, her Honour was bound by it.
This case provides important clarity on the consequences of non-compliant section 58(1)(b) statements, which is especially important following the recent decisions of True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19 and Azure Minerals Ltd v D & G Geraghty Pty Ltd [2022] WAMW 27. It confirms that industry practice of providing one year explorations programs is not compliant.
In the matter of competing applications for exploration licences by Ariela Nominees Pty Ltd and others [2023] WAMW 4, a failure to provide a program for the full five year term also led Warden McPhee to a preliminary view of non-compliance in respect of the 8 applications under consideration in that case.
In the matter of competing applications for exploration licences by Barto Gold Mining Ltd & Ors [2023] WAMW 2, Warden Cleary provided further guidance in the course of considering six exploration licence applications. The Warden found five of those applications to be invalid for failing to provide a program for the full five year term in their respective section 58(1)(b) statements. The Warden determined the remaining application to be compliant, as its section 58(1)(b) statement:
- included a statement that the objective is to test “the entire area subject of this application”;
- named the minerals sought, and why;
- included a year-by-year summary of processes for years one to three and then for years 4 and 5 combined, each year building on the earlier with options depending on what is found; and
- included a year-by-year summary of expected expenditure for years one to three and then for years 4 and 5 combined, not itemised, however with notes explaining any possible variances to that budget based on finds.
Finding that only one application was compliant, the Warden determined a ballot was not necessary. While the sufficiency of a section 58(1)(b) statement may vary from case to case, the Warden's findings provide important guidance on what may suffice, especially in light of the many recent findings of non-compliance.