Timing is everything: Warden’s court considers competing prospecting license applications

In Devin William McLevie v Robert Peter Teune and Phoebe Zara Unkovich for one part and Vernon Welsey Strange for the other [2024] WAMW 38 (Proceedings), the Warden’s Court (Court) considered a number of competing applications for prospecting licences over the same or similar ground. All the ground in question was previously held by a third party, not involved in the Proceedings, in a number of tenements (First Tenements).

Mr McLevie asserted a statutory priority over the other applications, relying on his view of the proper construction of section 96(3a) of the Mining Act 1978 (WA) (Act). However, his assertion failed.

Background

The Proceedings concerned the priority of the following competing applications for prospecting licences:

• n 6 September 2021 and 24 January 2022, Mr McLevie made an application for forfeiture in respect of the First Tenements (Forfeiture Applications).
• On 27 September 2022, Mr Teune and Ms Unkovich made an application for a Special Prospecting Licence over a portion of the ground covered by the First Tenements (Teune Application).
• On 12 October 2022, Mr Strange made several applications over other portions of the ground covered by the First Tenements (Strange Applications).
• On 17 October 2022, the First Tenements were surrendered in the face of the Forfeiture Applications, with the surrender encapsulated in a Deed of Settlement and Release dated 28 September 2022 between Mr McLevie and the prior holder of the First Tenements (Settlement Deed).
• On 18 and 27 October 2022, after the surrender of the First Tenements, Mr McLevie made applications over portions of the ground covered by the First Tenements (McLevie Applications).

The Strange Applications and McLevie Applications were in conflict. The McLevie Applications and

Teune Application were in conflict. The Teune Application and Strange Application were not in conflict.

Basis of the dispute

Mr McLevie asserted a statutory priority over the other applications, relying on his view of the proper construction of section 96(3a) of the Mining Act 1978 (Act).

Mr Teune and Mr Strange argued that:

1. Section 96(3a) of the Act did not afford Mr McLevie any priority over their applications as the Teune Application and Strange Applications had been marked out in accordance with Act and made prior to the surrender of the First Tenements pursuant to the Settlement Deed.
2. Alternatively, the McLevie Applications ought to have jurisdiction denied or refused as Mr McLevie had an interest in the First Tenements for the purposes of section 45(2) of the Act, as a result of the Settlement Deed, at the time of making the McLevie Applications.

Issues for determination

The Court considered the following issues:

1. The proper construction of section 96(3a) of the Act, and whether the extent to which the priority referred to therein reaches to prevail over applications for a special prospecting licence marked out and lodged prior to the surrender of the First Tenements.
2. Whether Mr McLevie had an ‘interest’ in the First Tenements prior to the surrender, for the purposes of section 45(2) of the Act.
3. If the answer to the above question was yes, the proper construction of section 45(2) of the Act, and whether a breach of that provision creates a jurisdictional difficulty for the McLevie Applications.
4. Subject to the priority issue (issue 1) and the jurisdiction issue (issues 2 and 3), what should occur to the McLevie Applications.

Issue 1

In summary, section 96(3a) of the Act states that where a mining tenement that is the subject of an application for forfeiture is surrendered before the application is dealt with by a warden, the applicant for forfeiture has for 14 days a right in priority to any other person to mark out or apply for a mining tenement upon the whole or part of the land that was the subject of the surrendered mining tenement.

Mr McLevie submitted that this provision created a priority in his favour as a result of the Application for Forfeiture which resulted in the surrender of the First Tenements. He said this elevated the McLevie Applications above the Strange Applications and Teune Application.

The Court found that the priority created is a priority to mark out or lodge an application. There was no dispute that Mr Teune and Mr Strange had validly marked out and lodged their applications prior to the surrender of the First Tenements and prior to lodgement of the McLevie Applications. Accordingly, section 96(3a) of the Act did not apply.

Issue 2

Section 45(2)(b) of the Act provides that, when a prospecting licence is surrendered, the land the subject of the prospecting licence or any part of it shall not be marked out or applied for as a prospecting licence or exploration licence by any person who had an interest in the prospecting licence immediately prior to that date within 3 months from and including that date.

Mr McLevie had the right under the Settlement Deed to determine and action the date of surrender of the First Tenements, which the Court considered created an ‘interest’ for the purposes of section 45(2)(b) of the Act.

In the circumstances, the Court found the McLevie Applications were made in breach of section 45 of the Act in that they were made within the moratorium by a person with an interest in the demised First Tenements.

Issue 3

There was no jurisdictional fault with the McLevie Applications, however they were made in breach of section 45 of the Act, which prohibits a narrow class of persons (a former holder) from making an application for a prospecting or exploration licence for a limited period.

Issue 4

Mr McLevie applied for prospecting licences within 10 days of the surrender of the First Tenements pursuant to the Settlement Deed. Therefore, the balance of the McLevie Applications, being the parts that did not intersect with the Strange Applications and Teune Application (which have priority as they were made prior to the McLevie Applications) were also refused as a result of Mr McLevie’s substantive non-compliance with section 45 of the Act.

Commentary

This case highlights the importance of strict compliance with the timing requirements set out in the Act, particularly section 45.

Applicants for a mining tenement over land surrendered following their application for forfeiture should be mindful of the limited priority period they are afforded.