A million ways to mark out in the west: Wardens reinforce importance of strict compliance when marking out

Wayne Craig Van Blitterswyk v Craig Steven West [2024] WAMW 50 (West) and Richard Czornowol and Stephen Howe v Ross Frederick Crew [2024] WAMW 52 (Crew) provided a timely reminder of the importance of complying with the Mining Act 1978’s (Act) marking out requirements.

West

Background

In West, Mr West objected to Mr Van Blitterswyk’s (Applicant) application for a prospecting licence, asserting non-compliance with the marking out requirements of the Act.

The Applicant accepted that the Form 20 he had attached to the datum post, as reflected in the Form 21 filed as the application, did not accurately record the location of the pegs in the ground the subject of the application. The Applicant applied to amend the application to accurately reflect the marking out on the ground.

The Court considered 2 issues in deciding the application.

• Issue 1: What is the consequence of the Form 20 not accurately recording the detail of the location of the pegs in the ground?
• Issue 2: Is it open to a party to amend a Form 20 and associated application, to cure this sort of defect?

Issue 1

The Court relied on the case of Forrest & Forrest v O’Sullivan [2020] WASC 468 which makes clear that a defect in marking out results in a determination that an application is invalid, that is, an error in marking out constitutes a jurisdictional error.

The application was therefore invalid.

Issue 2

The Court found that because the application as made was invalid, it could not be amended by filing an amended application or relying on regulation 84E of the Mining Regulations 1981 (WA) (Regulations), as the power of a Warden sitting administratively only arises when a valid application and a valid objection are lodged.

Regulation 84E of the Regulations provides that an application to amend particulars in the register must be lodged in a Form 30 and accompanied by a statutory declaration stating the reasons for the requested amendment. The Court found that regulation 84E only provides an avenue to amend particulars in the register, but not the power to amend an application to make it compliant.

Accordingly, valid marking out is a prerequisite to the making of an application for a prospecting licence, and invalid marking out cannot be made valid by simply amending the register.

The Applicant was required to mark out afresh, affix a new Form 20 to complete the marking out, and file a correct Form 21. Any consequential loss of priority is irrelevant. Where there has been no valid marking out, there is no jurisdiction, and therefore no capacity to amend. Any error made in the marking out process renders an application invalid for the purposes of priority and the party must start the process from the beginning.

Crew

Background

In Crew, Mr Czornowol and Mr Howe (Applicants) applied for a special prospecting licence, which was objected to on the basis that the tenement was not marked out in accordance with the Act and Regulations and as a result, the jurisdiction of the Court was not enlivened.

The Applicants made three marking out endeavours in respect of substantially the same ground, on 26 August 2023, 30 September 2023 and 6 October 2023. The marking out on 6 October 2023 was relied upon in the application for a special prospecting licence. The Form 20 the subject of this marking out was affixed to a datum post in substitution for the marking out conducted on 30 September 2023. The Applicants did not mark out the tenement afresh on 6 October, rather, adopted the previous marking out.

Issues for determination

The Court considered two issues:

• Issue 1: did the marking out on 6 October 2023 offend against the rule which does not permit the adopting of post, trenches, rows of stones etc from a previous marking out?
• Issue 2: did the marking out on 6 October 2023 offend against regulation 63(1) of the Regulations? Regulation 63(1) provides that a person who marks out land as a mining tenement in accordance with the Regulations but fails to lodge an application within the prescribed time shall not be at liberty to mark out any portion of the same land within 21 days from the date of the first marking out.

The Court found that nothing in the Act or Regulations prevents marking out occurring over an extended period, and that marking out is concluded only when a Form 20 is annexed to a datum post. All that is lost in a delay between marking out and affixing a Form 20 is priority.

It is open to a person conducting a marking out exercise to correct an error “along the way”. For example, if a person discovered that a fixed post was out of place, the post could be moved and replaced without the need to replace other existing posts, so long as a Form 20 is annexed to the datum post showing the correct coordinates for all posts.

In respect of issue 1, the Court found that the Applicants’ conduct on 6 October 2023 of adopting their own posts from a previous marking out on 30 September 2023 did not offend against the Act or Regulations.

However, in respect of issue 2, the Court found that the marking out completed on 6 October 2023 did offend against regulation 63. An act of marking out had already been completed on 30 September 2023. The marking out on 6 October 2023 occurred only 6 days later. Accordingly, the Applicants had not waited the prescribed period of 21 days before completing a second marking out by affixing a Form 20 to the existing datum post, meaning that regulation 63 applied. Citing a previous decision, the Court confirmed that the purpose of regulation 63 is to prevent marking out in a manner which might lead to competitors for tenements being misled.

While the jurisdiction of the Court was established, the marking out was invalid pursuant to regulation 63 and the application was recommended for refusal.

HFW comment

The cases of West and Crew highlight the importance of accurately marking out area the subject of an application for a prospecting licence. Failure to do so will result in an applicant being required to commence the process from the start and, as a result, losing priority in the relevant land. Incorrect marking out cannot be cured by a simple amendment.

Further, strict compliance with the Act and Regulations must be observed when marking out a tenement, including when a party is correcting an error in a previous marking out attempt.