Supreme Court refuses Forrest’s application for judicial review of Minister’s decision to grant a miscellaneous licence

By James Hunt – Senior Associate at Hunt & Humphry.

On 20 March 2017, Justice Martino in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion Minister for Mines and Petroleum [2017] WASC 68 (Decision) refused Forrest & Forrest Pty Ltd’s (Forrest) application for judicial review of the Minister’s decision to uphold an appeal by Onslow Resources Pty Ltd (Onslow), against a decision of Warden Maughan refusing a miscellaneous licence application by Onslow. In the Decision Justice Martino:

  • confirmed that the Minister has ultimate decision making power under the Mining Act 1978 (Mining Act);
  • confirmed an appeal to the Minister pursuant to section 94(3) of the Mining Act as an appeal de novo;[1] and
  • held that Forrest did not need to be provided with a copy of the Ministerial briefing note.

The Decision is a reminder to applicant’s for and objectors to an application for a miscellaneous license that, while the Warden will grant or refuse a miscellaneous license application, the Minister has ultimate decision making power and it extremely difficult to obtain judicial review of a Minister’s decision to uphold an appeal to grant a miscellaneous under the Mining Act.

Background

On 31 July 2014 Warden Tavener forfeited Onslow’s L08/51 for breaches of its conditions by Onslow stockpiling material and placing unauthorised infrastructure on L08/51.[2] L08/51 provided the only means of ready access by road to Onslow’s M08/458.

On the same day that Warden Tavener delivered his decision forfeiting L08/51[3], Onslow Resources applied for L08/143 as a replacement for, and over the same ground as L08/51.  On 8 August 2014 Onslow applied for the cancellation of the forfeiture of L08/51.

On 6 November 2015, Warden Maughan delivered his decision[4] refusing both Onslow’s application for L08/143 and its application to cancel the forfeiture of L08/51.

Minister’s decision

Onslow had no right to appeal the Warden’s decision refusing to cancel the forfeiture of L08/51.  On 19 November 2015 Onslow wrote to the Minister appealing the Warden’s decision to refuse the application for L08/143. Onslow’s reasons for the appeal were:

  • Onslow had been supplying sand for the Chevron Wheatstone Project from M08/458. The sand from M08/458 was vital to the concrete mix design because sand obtained from another tenement would require six months of testing before use;
  • The access road on the miscellaneous licence was 300 m long and it is a condition of mining leases to have an access road to the mining operations; and
  • The loss of the access to sand and aggregate stockpiled on M08/458 had landlocked all of Onslow’s products on M08/458.

Between November 2015 and February 2016, Forrest was provided the opportunity to make submissions to the Minister, was provided with copies of Onslow Resources’ submissions, and the opportunity to comment on Onslow Resources submissions. It was common ground that the Minister did not have a copy of Warden Maughan’s decision before him. DMP submitted Onslow’s appeal by way of briefing note recommending the Minister either dismiss the appeal or uphold the appeal and indicate his intention to grant L08/143.

Appeal

Forrest’s grounds for its application for judicial review were that:

  • the Minister erred in making the decision to allow the appeal without having before him the decision of the Warden and/or the materials that were before the Warden; and
  • the Minister made a jurisdictional error in upholding the appeal as the decision to do so was an irrational exercise of the power conferred by s 94(4) of the Mining Act.

Ground One

The Court held that the Minister did not err in upholding the appeal without having the Warden’s decision and all materials that were before the Warden.

The Mining Act does not expressly state what materials the Minister must have before deciding an appeal or the considerations the Minister is required to take into account.  These matters are to be ascertained by consideration of the relevant provisions of the Mining Act and the subject matter, scope and purpose of the Mining Act.[5]  Not every consideration the Minister is required to take into account is capable of leading to a decision being set aside, a consideration may be not materially affect the decision so it need not be taken into account[6].

An appeal to the Minister for the refusal of a miscellaneous licence application is to be made in the manner prescribed[7]. An appeal must be in writing and lodged within 14 days of the date of the refusal.  The Minister may obtain such further information in writing from any other party and from any other sources as the Minister sees fit to assist in the determination of the appeal: Regulation 91.

Justice Martino held that:

  • the Minister did not fail to afford Forrest procedural fairness;
  • the Minister did not have all of the Warden’s decision or all the evidence before the Warden however this did not mean that the Minister failed to take into account relevant considerations, noting that the Minister had access to all of the submissions and documents provided to the DMP in relation to Onslow’s appeal to the Minister;
  • while counsel for Forrest was critical of the briefing note provided to the Minister, his Honour having regard to all the evidence before him did not consider the briefing note to be inaccurate; and
  • the issue is whether the Minister had regard to the findings of the Warden and the evidence before the Warden on matters that were relevant to the appeal. The Minister did have material before him that enabled him to give consideration to those matters.  Forrest had not demonstrated that he did not have regard to it[8].

Forrest’s also claimed the Minister denied it procedural fairness by considering and determining the appeal ‘other than in an obvious and natural way’ without notifying Forrest or affording it an opportunity to be heard regarding the absence of the decision or materials before him.  Justice Martino provided a useful summary of procedural fairness[9], confirmed that the Minister must provide parties with procedural when determining an appeal under s 94(3) of the Mining Act and that Forrest, as the holder of the underlying pastoral lease, was entitled to be afforded procedural fairness when the Minister determined the appeal.[10]

Justice Martino noted that if the Minister wished to obtain a copy of Warden Maughan’s decision, he could have done so. The fact that he chose not to do so and did not inform Forrest that he was not doing so does not mean that Forrest was not put on notice of the nature and purpose of the appeal, the issues to be considered by the Minister in conducting the appeal and the nature and content of information that the Minister might take into account as a reason for allowing the appeal.

Forrest was provided with Onslow’s  letters of 17 and 19 November 2015 to the Minister which contained Onslow’s case to the Minister as to why the appeal should be allowed.  Forrest was able to respond to that case, as it did by its letters of 9 December 2015 and of 4 February 2016.  Accordingly, it had been afforded procedural fairness.

Justice Martino also held that Forrest did not need to be provided with a copy of the Ministerial briefing note or be provided with the opportunity to comment on that briefing note.[11]  This is a tacit confirmation that the process followed by the Department of Mines and Petroleum and Minister in appeals to the Minister, of allowing submissions then providing the Minister with a briefing note, provides the parties with procedural fairness.

Second Ground

By its second ground of appeal, Forrest contended that the Minister’s decision to allow the appeal was vitiated by legal unreasonableness.  Forrest submitted that:

  • under the Mining Act miscellaneous licenses are to be granted subject to conditions and the scheme of the Act is to compel compliance with those conditions;
  • L08/51 was forfeited by reason of Onslow’s breaches of the conditions of its licence;
  • the Warden had found that Onslow had not in the past complied with conditions imposed on mining tenements and was unlikely to comply with conditions imposed on the L08/143; and
  • the Minister did not provide analysis for his departure from those findings.

Justice Martino held:

  • The provisions of the Mining Act do not displace the requirement of reasonableness as a condition to the determination of an appeal under s 94(3);
  • having regard to the primary object of the Mining Act, to promote exploration and mining, compliance is a relevant consideration (which was included in Forrest’s submissions to the Minister), the Minister was also entitled to have regard to Onslow’s apology for the breach and its assurance to comply with such conditions in future so the Minister’s decision is not invalidated for unreasonableness.

[1] Meaning the Minister determines the matter afresh, may consider fresh material and may overturn the decision appealed from regardless of error: at [71] of the Decision.

[2] Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17.

[3] Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17.

[4] Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B.

[5] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J at 40; Re Minister for Resources; Ex parte Cazaly [2007] WASCA 175; (2007) 34 WAR 403 [69] Buss JA.

[6] Decision at [76].

[7] Section 94(3) of the Mining Act.

[8] Decision at [86] and [87].

[9] Decision at [89] to [91].

[10] Decision at [92].

[11] Decision at [96]

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