Failure to mark out proves fatal to application for special prospecting licence

In John Thomas Broughton, Charles Henry Broughton and Peter Kovaluns v Bullseye Mining Limited [2024] WAMW 36 (Proceedings), the Warden’s Court determined that it did not have jurisdiction to consider the merits of the applicants’ application for a Special Prospecting Licence in the Mount Margaret mineral field (Application), because the tenement the subject of the Application had not been marked out in accordance with the requirements of the Act and Regulations.

Background

Bullseye Mining Limited (Bullseye) is the registered holding of Exploration Licence E37/1017 (Exploration Licence). Bullseye initially objected to the Application on several grounds, but ultimately pursued only the following objections on the following grounds:

1. John Broughton, Charles Broughton and Peter Kovaluns (the Applicants) had not complied with the Mining Act 1978 (Act) or the Mining Regulations 1981 (Regulations). They argued that the tenement was not marked out by the Applicants in accordance with the Act and Regulations such as to enliven the jurisdiction of the Court to determine the Application; and
2. If the Court’s jurisdiction was enlivened, the granting of the Special Prospecting Licence the subject of the Application would cause undue detriment to the exploration being carried out by Bullseye.

Outcome

Section 105 of the Act requires that, before an application for a mining tenement, other than an exploration licence, a retention licence or a miscellaneous licence is made, the land in relation to which the mining tenement is sought shall be marked out in the manner required by regulation 59 of the Regulations. Regulation 59 contains a number of strict requirements. Relevant in this case, the land must be marked out by fixing firmly in the ground a post projecting at least one metre above the ground and then fixing firmly to one of the posts as the datum post, notice of marking out in the form of ‘Form 20’,a notice of marking out that is a prescribed form within the Regulations.

The Court referred to the determination of Justice Tottle in Forrest & Forrest Pty Ltd v O’Sullivan [2020] WASC 468 (Forrest) and said that it cannot be disputed that ‘marking out’ is a jurisdictional fact, required to be established as a prerequisite to the exercise of the relevant jurisdiction by a Warden.

Although Forrest related to marking out land the subject of a prospecting licence, the Court held there is no reason to doubt the same reasoning must also apply to an application for a mining lease.

Mr Broughton testified that his wife had taken a photograph at 6:06pm and, although there was no paperwork on the datum post at that time, on the ground was an old peg with the paperwork on it and that, within the next 12 minutes, the peg was replaced into the ground with paperwork affixed.

However, there was no evidence that the “paperwork” Mr Broughton referred to in his evidence was a Form 20.

The Court cited the case of Torrian Resources Ltd v Kalgoorlie Ore Treatment Company Pty Ltd [2018] WAMW 16 which contained the following passage:

“it is the affixing of the Form 20 to the datum post which is the final act of marking out and which in light of the ratio in Hunter Resources Ltd v Melville (1988) 164 CLR 234 is a matter of strict compliance the absence of which would be fatal to the application”.

The Court held that, as a result of Mr Broughton failing to mark out in strict compliance with the Act and Regulations, the Court had no jurisdiction to determine the Application.

Commentary

This case confirms that the requirements of marking out land the subject of a prospecting licence application must be established to enliven the Warden’s jurisdiction to hear the application.