No gold for second place: priority provisions apply to conversion of special gold prospecting licence

In Anthony Gerald Pilkington v Kurnalpi Gold Pty Ltd [2024] WAMW 27, an exploration licence holder’s “first in time” application for a mining lease was held to have priority over a subsequent application by the holder of a special prospecting licence for gold. This decision provides welcome clarification in respect of special prospecting licences for gold.

Warden Maughan was required to consider competing, and overlapping, applications for mining leases:

1. an application by an exploration licence holder, Kurnalpi Gold Pty Ltd (Kurnalpi); and
2. another seeking a gold mining lease by the holder of a special gold prospecting licence, a Mr Anthony Pilkington (Mr Pilkington).

Mr Pilkington, who filed his application after Kurnalpi, sought to rely on section 70(8) of the Mining Act 1978 (WA) (MAWA) and argued that the “first in time” priority provision in section 105A of the MAWA did not apply to applications seeking a “mining lease for gold” which, he argued, are afforded a special status under the MAWA and that, therefore, his application ought to be considered in priority to that filed by Kurnalpi.

Warden Maughan considered the terms of section 105A, and the wider regime set out in the MAWA, and held that the first in time rule applies in the same manner to a mining lease and a “mining lease for gold”.  As a result, the Warden found that Mr Pilkington’s application for a special gold mining lease could not be given priority over Kurnalpi’s “first in time” application.