Marvel Unlocked: Exemption Recommended After Access Dispute

In Barto Gold Pty Ltd v Peter John Panizza [2025] WAMW 21 the Perth Mining Warden has granted an application for exemption from expenditure obligations, under s 102(3) of the Mining Act 1978 (WA) (the Act), due to the difficult relationship between the mining entity and the private landowner who ultimately prevented the miner from accessing the land.

Background

The decision concerned:

1. an exemption application by the miner from the expenditure obligations for the expenditure year from 24 January 2020 to 23 January 2021 (Expenditure Year) for two distinct but contiguous mining tenements in Marvel Loch: M77/265 and M77/266 (Tenements).  The private landowner of the lot over which the larger of the tenements was granted (M77/265) objected to the exemption application; and
2. forfeiture applications for both Tenements by the private landowner, for the miner’s failure to comply with expenditure obligations during the Expenditure Year.

The exemption and forfeiture applications were heard together, with the forfeiture applications requiring determination if the exemption application failed. 

At trial, the miner sought exemption on two grounds:

1. the ground was ‘unworkable’ pursuant to s 102(2)(d) of the Act; and
2. an ‘other reason’ pursuant to s 102(3) of the Act.

Both grounds relied on the same facts: that the private landowner refused to negotiate commercial terms for compensation and access to the land and was asserting a veto right over access to M77/265.

The Warden considered this issue a ‘pure access dispute’.¹

Unworkable or an Other Reason?

The Warden found s 102(2)(d) of the Act did not apply. ‘Unworkable’ in the context of s 102(2)(d) relates to a physical impediment, relating to the physical characteristics of the ground in question, as opposed to an intangible impediment, such as a pure access dispute. As a result, the inability to obtain permission to access the ground did not render the ground ‘unworkable’ under s 102(2)(d).

In relation to s 102(3) of the Act (the ‘other reason’ ground), the Warden found that it could be enlivened by a pure access dispute. The Warden confirmed s 102(3) enables ‘the broadest possible consideration be given to a possible reason for exemption, at the discretion of the Minister’.²

After assessing the evidence, the Warden found:

1. the landowner was focused on maximising his commercial gain from holding the land over which M77/265 was granted.  This included ascribing a sale value to the land in negotiations which far exceeded the independent valuation relied upon in the related compensation proceedings, and included ‘an assessment related to the value of access to the mineral rights to which he was not entitled, but regarded as being within his scope of control’; ³
2. the landowner asserted a right of veto to prevent the miner’s access to M77/265, purportedly arising from a compensation agreement between the predecessors in title to the landowner and miner.  This veto was not pursued at trial, it being agreed that it did not apply;
3. the landowner did not consider it to be in his interests to reach agreement with the miner regarding access;
4. the landowner was not prepared to agree access on commercial terms that could realistically be accepted by the miner; and
5. the miner’s delay lodging its compensation plaint to resolve the access dispute was reasonable (the plaint was lodged in May 2021, 4 months after the end of the expenditure year).

The Warden found those circumstances constituted an ‘other reason’ pursuant to s 102(3) for which the Minister may properly grant an exemption in respect of M77/265 and recommended accordingly.

M77/266, the neighbouring tenement held by an unrelated landowner, was not, however, granted an exemption. The Warden found the miner’s difficulty of access in relation to M77/265 did not apply to M77/266 and therefore did not justify an exemption on that neighbouring tenement, notwithstanding the miner’s uncontested evidence that M77/266 held only a small part of the mineral deposit and was not economic to develop on its own. Expenditure obligations run with the tenement and the miner’s approach amounted to electing to underspend on the tenement. Economic arguments about combined viability did not excuse non-compliance.

Ultimately, in relation to M77/266, the miner was fined the maximum $10,000 in lieu of forfeiture. The Warden found the miner’s decision to underspend, whilst pragmatically understandable in the circumstances it faced, nonetheless represented a conscious decision of non-compliance warranting a significant fine. 

Guidance on concurrent determinations of exemption and forfeiture

The Warden provided the parties an opportunity to be heard on the form of the final orders. The Warden refused the landowner’s request for a further opportunity to be heard on the forfeiture application regarding M77/265, should the Minister not grant the recommended exemption: his determination was final and not intended to give rise to further hearings.⁴ The result was self-executing orders that would come into force upon the Minister’s decisions on the exemption applications. The forfeiture application in respect of M77/265 would be dismissed in any event. In respect of M77/266, the fine in lieu of forfeiture would be imposed if the exemption was refused (as recommended). If, contrary to the Warden’s recommendation, the exemption application was granted by the Minister, the forfeiture application would be dismissed. 

Implications

Expenditure obligations go to the fundamental objective of the Act, being that ground be worked or free to be worked. Non-compliance will continue to be treated seriously. 

The decision confirms that access disputes between tenement-holders and landowner can justify an ‘other reason’ for exemption pursuant to s 102(3) of the Act.  The decision reiterates that tenements each carry their own expenditure obligations and grounds for exemption available on one tenement are unlikely to justify an exemption on other tenements, even where the latter hosts resources uneconomic on their own.  Tenement holders should evaluate their holdings and consider amalgamating tenements where this would allow better management of the tenements and their expenditure obligations.

HFW were pleased to act for the successful party in this case.

Footnotes

1. Barto Gold Pty Ltd v Peter John Panizza [2025] WAMW 21 at [72], [470(a)(ii)].
2. Barto Gold Pty Ltd v Peter John Panizza [2025] WAMW 21 at [78].
3. Barto Gold Pty Ltd v Peter John Panizza [2025] WAMW 21 at [397(c)], [400].
4. See Barto Gold Pty Ltd v Peter John Panizza [2025] WAMW 26.