Sweet child, no mine: no mining conditions

In Mt Roe Mining Pty Ltd v Pilbara Energy Company Pty Ltd & Ors [2024] WAMW 41 the Warden considered when it is permissible, and in accordance with the Mining Act 1978 (WA) (Act), for a “No Mining” condition to be imposed upon an exploration license.

Background

In this matter, Mt Roe Mining Pty Ltd (Applicant) sought a recommendation for the grant of an exploration licence (Application). The Objectors, Pilbara Energy Company Pty Ltd, The Pilbara Infrastructure Pty Ltd and Pilbara Water and Power Pty Ltd (Objectors), largely agreed to allow the Applicant to proceed, but jointly sought a number of “No Mining” conditions (Conditions). The proposed Conditions were designed to protect established infrastructure owned and operated by the Objectors, those being a railway line, various pipelines, and powerlines with associated infrastructure.

On 30 May 2024 the parties had agreed a Minute of Programming Directions (MOPD), which had been subject to the common practice of referral to the Department of Energy, Mines, Industry Regulation and Safety (Department) for consideration. In response, the Department provided a Regulation 68 Report (Report). The Report noted that the MOPD had sought a “No Mining” condition to an unlimited depth, which it deemed could not be supported “as it has the effect of sterilising the subject land and does not allow for any mining or other activities from the surface to the centre of the earth”. The Department was of the view that suitable protection could be provided through the application of relevant standard conditions and exiting legislative frameworks provided in the Rail Freight Systems Act 2000, Rail Safety National Law (WA) Act 2015 and the Railways (Access) Act 1998 and, further, indicated a preference for the parties to reach a private agreement on the matter. In conclusion, the Department advised that the “No Mining “ conditions were “not supported”.

The judgment

For the purpose of the Application, the parties submitted to the Court an Agreed Statement of Facts (ASOF) which acknowledged the significance of the infrastructure at issue. The ASOF set out the potential financial harm and risk to commercial and state interests, should the infrastructure become damaged or inoperative, and highlighted various safety issues and possible implications of exploration activities in the vicinity of the infrastructure.

The parties set out further agreed facts and assumptions by way of the MOPD provided to the Court and jointly sought orders on the papers that the Conditions be allowed.

On 10 October 2024, the Court granted the application largely on the terms of the MOPD, inclusive of the proposed Conditions, though with some proposed amendments to the framing of the Conditions for the parties’ further consideration and response.

In arriving at this position, the Court examined the circumstances in which it is permissible for the Minister to impose a “No Mining” condition upon an exploration licence. Warden McPhee identified the most pertinent question at issue to be “whether the imposition of such a proposed condition and it (sic) terms, may be said to be in accordance with and for the purposes of the Act (the Mining Act) in any particular case.”

The Warden relied on the matter of Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 (Blue Ribbon) where his Honour the Chief Justice set out the following:

In the decision at hand, the Warden highlighted the importance of establishing a “sufficient evidentiary basis” for the proper and informed exercise of the discretion set out in Blue Ribbon. In his consideration of the matter on the papers, the Warden advised the parties of his concerns that the evidentiary basis was not met by way of the MOPD and ASOF provided. The parties then “buttressed their evidentiary position” by way of an affidavit, which provided significant details of the factual matters relied upon, including further details of the complete extent of the infrastructure at issue. This level of detail provided the Warden with sufficient evidence to exercise the discretion set out in Blue Ribbon. On this point, Warden McPhee provided future applicants distinct guidance: “Parties seeking a recommendation from the Warden as to the imposition of a “No Mining” condition ought provide the sort of detailed consideration described above, to inform the necessary discretionary exercise.”

In this decision, the Warden found that, on the basis of the materials provided by the parties, the proposed conditions were lawful, appropriate and did not go beyond that which is reasonably capable of being regarded as related to the legitimate purposes of the Act.

The Warden did, however, take issue with the appropriate form of the “No Mining” conditions and proposed a preferred framing, inviting the parties to make further submissions. The parties responded with a joint submission in respect of the matter, accepting the substance of the Warden’s recommendations, but noting some further proposed amendments.

On 25 October 2024, the Warden delivered his decision in Mt Roe Mining Pty Ltd v Pilbara Energy Company Pty Ltd & Ors [No 2] [2024] WAMW 47, accepting the joint submission of the parties and making final orders on the papers. Helpfully, the Warden highlighted that, in his view “any no mining condition which is sought to be made, ought to include the sort of clause to be imposed in this matter”.

HFW comment

These matters set out the circumstances in which the discretion to allow “No Mining” conditions will apply. The matters serve as a reminder that parties seeking exploration licences upon land already inhabited by significant infrastructure will be well-served by cooperating closely with all stakeholders. Further, in any exploration license application subject to a proposed “No Mining” condition, attention to the details of the infrastructure at issue – and indeed the precise wording of any proposed conditions – is paramount in achieving the desired outcome.