[2012] WAMW 13 - dmp.wa.gov.au · Pawson v Dir. Gen. Dept. Mines & Petroleum [2012] WAMW 13 Page 6...

[2012] WAMW 13

Pawson v Dir. Gen. Dept. Mines & Petroleum [2012] WAMW 13

JURISDICTION : MINING WARDEN

TITLE OF COURT : BEFORE THE WARDEN

LOCATION : PERTH

CITATION : PAWSON v DIR. GEN. DEPT OF MINES &

PETROLEUM [2012] WAMW 13

CORAM : WILSON M

HEARD : 28th FEBRUARY 2012

DELIVERED : 22nd

JUNE 2012

FILE NO/S : OBJECTION TO SURVEY No 374068

TENEMENT NO/S : MINING LEASE 20/455

BETWEEN : Ronald Francis Pawson

(Objector)

v

Director General, Department Of Mines & Petroleum

(Respondent)

Catchwords:

Objection to Survey – Grant of Mining Lease – Survey of Mining Lease by

Description in Grant – Survey of Mining Lease by Pegs in the Ground at

Marking Out – Effect of Grant of Mining Lease on Survey – Instrument of

Lease – Meaning of Grant Subject to Survey

Legislation:

Mining Act (WA) 1978: s. 74, s. 75(1), (4), (5) & (6), s. 79, s. 80, s. 82(1), s. 83,

s. 100, s. 105, s. 105B, 116(1) & (2), s. 162(2)(ka).

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Mining Regulations (WA) 1981: r. 59(1),(2) & (3), s. 64(1), r. 66, r. 71, r. 73, r.

92, r. 116, r. 118, r. 118(A)(2) & (3), r. 118B, r. 119(2), r. 120, r. 120A, r. 120E

Result:

Recommend the Hon. Minister reject the mining survey of M 20/455 conducted by Mr Watt

in 2011.

Recommend to the Hon. Minister an approved surveyor, not being Mr Watt, be appointed by

the Director of Mineral Titles Division of DMP to conduct a further mining survey of all of

the corners and boundaries of granted Mining Lease 20/455 without reference to any post,

pegs, trenches, rows of stones previously used in any other mining surveys or in marking of

M 20/455 with such mining survey to be based wholly on the written description of the

application for grant of Mining Lease 20/455 as granted by the Hon. Minister on 24

November 2005 being:

“Locality: Karbar

Datum situated 220 m @ 320˚ from Berring Bore

then 250 m @ 300˚,

then 400 m @ 30˚

then 250 m @ 120˚

then 400 m @ 210˚ back to datum.”

but subject to excision of any encroachment upon any other mining tenements having priority

in application or grant over Mining Lease 20/455 or upon any ground which was not

otherwise available for mining at the time of the original grant.

Recommend to the Hon. Minister that Mr Pawson be present during the conduct of the further

mining survey of Mining Lease 20/455.

Recommend that following the further mining survey the Instrument of Lease including a

written description of the land surveyed by the approved surveyor that comprises Mining

Lease 20/455 be issued to Mr Pawson.

Recommend that if it becomes necessary for the Hon. Minister or an officer of DMP to

determine who should bear the cost of the further mining survey, that it should be borne in

mind that the original mining survey in 2011 was not conducted by reference to Berring Bore

or to the written description of the grant of the Mining Lease by the Hon. Minister.

Representation:

Counsel:

Objector : Mr R Pawson (Self represented)

Respondent : Mr J Stevens (by leave)

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Solicitors:

Objector : Self Represented

Respondent : Nil

Case(s) referred to in judgment(s):

Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208

Westdeen Holdings Pty Ltd v Haggerty (unreported Perth Wardens Court, 7

August 1998, Vol 13 No 14)

Clements v Victor Petroleum and Resources Ltd (Kalgoorlie Warden’s Court, 8

November 1985)

Campbell v Knightsbridge Holdings Pty Ltd & ors (Supreme Court of Western

Australia, unreported, Appeal number 1011 of 1986, 17 October 1986, Library

number 6476)

Whitfield v Gardiner (unreported, Wardens Court, Leonora, 4 September 1986)

Re: Minister for Minerals and Energy; Ex parte McKenna (1989) 2 WAR 401

Case(s) also cited:

Bear-Ring Bore GM v Horizon Mining Ltd [2002] WAMW 17

Crocker Consolidated Pty Ltd v Wille [1988] WAR 187

Hunter Resources Ltd v Melville [1988] 164 CLR 234

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BACKGROUND

1. Ronald Francis Pawson (“Mr Pawson”) is now the holder of Mining Lease

20/455 (“the Lease”). On 6 April 2001 at 3.30 pm, the Hon. Minister for

Mines (“the Hon. Minister”) forfeited Mining Lease 20/135. Pursuant to s.

100 of the Mining Act (“the Act”) the Hon. Minister granted to Murchison

Mining Co Pty Ltd (“Murchison”) a 14 day right to mark out and apply

for a mining tenement over the ground previously held by Mining Lease

20/135.

2. On 7 April 2001, Mr John Edward Telfer (“Mr Telfer”) marked out the

Lease in the business trading name of Bear Ring Bore GM. That business

name was at the time of marking out the Lease owned by Murchison. At

the time of marking out and applying for the Lease, both Mr Pawson and

Mr Telfer were directors and share holders of Murchison. On 10 April

2001, the application for the Lease was lodged by Mr Telfer with the

Mining Registrar at Mt Magnet.

3. On 18 May 2001, Horizon Mining Pty Ltd (“Horizon”) marked out and

lodged with the Mining Registrar at Mt Magnet application for

Prospecting Licence 20/1866 (“P 20/1866”). The ground applied for by

Horizon in P 20/1866 was almost the same as that ground applied for by

Murchison in the application for the Lease.

4. On 15 May 2001, Horizon lodged an objection (“the Horizon Objection”)

to the grant of the application for the Lease. The grounds of the Horizon

Objection raised allegations the marking out of the Lease was defective

and challenged the location of the datum peg, height of corner posts, the

placement of corner stones and the adoption of corner posts from a

previous mining tenement as the corner posts for the marking out of the

Lease. The Horizon Objection also raised issues about the use of the

trading name Bear Ring Bore GM as the applicant for the Lease.

5. The Horizon Objection was heard before me, then the Warden sitting in

Mt Magnet. On 3 September 2002, the Warden found Mr Telfer had

marked out the application for the Lease in accordance with the Act and

Mining Regulations (“the Regulations”). The issue of the use of the

business name of Bear Ring Bore GM as the applicant for the Lease was

also determined in favour of Murchison. In any event, the name of Bear

Ring Bore GM was later amended by leave of the Warden to that of

Murchison.

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6. Accordingly, the Warden in Bear-Ring Bore GM v Horizon Mining Ltd

[2002] WAMW 17 recommended to the Hon. Minister the application for

the Lease should be granted. The Warden made no recommendation to the

Hon. Minister concerning the description of the land that comprises the

Lease should the application be granted. On 24 November 2005, the Hon

Minister granted the Lease to Murchison. As a consequence of the grant

of the Lease, Horizon Mining Ltd withdrew its application for P 20/1866

on 26 February 2006.

7. By an undated letter, but filed 1 December 2005, the Director, Mineral &

Title Services Division of the Department of Mines and Petroleum

(“DMP”) issued to Murchison, pursuant to s. 79 of the Act, written advice

the Hon. Minister had granted the application for the Lease on 24

November 2005 (“the Written Notification”). The relevant part of that

letter stated:

“Dear Sir/Madam

APPLICATION FOR MINING LEASE 20/455

I wish to advise that the above application was granted on 24 November 2005 by the

Minister for State Development subject to the endorsements and conditions detailed on

the attached schedule.”

8. Reference was then made to various other requirements of the grant of the

Lease including the provisions of s. 82(1) of the Act. Attached to the

Written Notification was a copy of the endorsements and conditions the

grant of the Lease was subject. One of those conditions was the

requirement for the Lease to be surveyed. It should be noted that there is

no description of the land comprising the Lease granted by the Hon.

Minister within either the endorsements, conditions or the Written

Notification. No Instrument of Lease (Form 8) has been issued to

Murchison or Mr Pawson following grant of the Lease.

9. Sometime in 2011, an issue arose between Mr Pawson and an adjoining

mining tenement holder as to the exact location of the Lease. Mr Pawson

engaged a surveyor to conduct a mining survey of the Lease. The surveyor

engaged by Mr Pawson handed the mining survey of the Lease to another

surveyor, Mr Peter Watt (“Mr Watt”). The DMP provided to Mr Watt the

details of co-ordinates it used to plot the Lease on its maps held on

Tengraph. In April and November 2011, DMP also provided to Mr Watt

similar details for the various mining tenements that have existed or been

applied for in the area of the Lease including M 20/135 and P 20/1866,

none of which appear to have been previously surveyed.

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10. On 16 April and 30 November 2011, Mr Watt visited the area of the Lease

and conducted surveys of the Lease based on the various information

provided to him by the DMP. As a consequence of the two surveys by Mr

Watt it appears DMP have accepted the mining surveys of the Lease by

Mr Watt as being correct. DMP determined the Lease does not accord

with the description of the ground originally applied for in 2001 by

reference to the pegs, trenches or stones found by Mr Watt on the ground

that he attributed to the Lease.

11. On 13 June 2011, Mr Pawson lodged with the Mining Registrar at Mt

Magnet an objection (“the Objection”) to the mining survey of the Lease

as a consequence of being informed by DMP as to its decision of the

mining survey conducted by Mr Watt of the Lease.

Details of Objection by Mr Pawson

12. The particulars of the Objection lodged by Mr Pawson states:

“b) M 20/455 – DMP supplied incorrect survey information to surveyors for the

survey of M 20/455”.

13. The grounds and reasons for the Objection by Mr Pawson states:

“c) DMP supplied tenement marking out details for the survey of M 20/455 on 19

April 2011. The information supplied to Surveyors by DMP, was not as per recorded

for unsurveyed M 20/135. The applicant for Mining Lease M 20/455 supplied marking

out details to DMP 07/04/2001. The correct details were registered by DMP into the

Tengraph database system.”

14. The relief sought by Mr Pawson in the Objection states:

“Recommend DMP survey M 20/455 as per records on mining register.”

Evidence of the Objector

15. Mr Pawson said in his evidence he was not present when the ground the

subject of the Lease was marked out by Mr Telfer on 7 April 2001.

However, some 3 or 4 days before the marking out of the Lease occurred,

Mr Pawson said he and Mr Telfer attended upon the area of the proposed

marking out of the Lease. Mr Pawson said he drove around the area of the

proposed marking out of the Lease and pointed out to Mr Telfer where the

pegs were to be placed. Mr Pawson said he used a hand held compass and

measured from Berring Bore to where the datum peg was to be located

and there placed a pile of rocks on the ground.

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16. It is necessary to note in this matter that Berring Bore is also described on

various maps, descriptions in applications and other documents presented

in this case as Bearing Bore, Behring Bore, Behring Well and Behrring

Bore. For ease of description and to accord with the description of the

bore on the current DMP Tengraph Map it shall be referred to as Berring

Bore.

17. After the application for the Lease was lodged with the Mining Registrar

in Mt Magnet in 2001, Mr Pawson said he drove to the datum peg with

Mr Telfer and checked it was in the right place. He said he was satisfied

the datum peg was located in its correct position. Mr Pawson said he then

drove to the second corner (referred to as the south west corner) and there

observed a cairn of stones and was satisfied with the position of the datum

post and the second corner so did not then check the two remaining

corners.

18. Mr Pawson said he believed the ground marked out by Mr Telfer

comprised the description contained in the “Form 21, Application for

Mining Lease” for the Lease being the following:

“Locality: Karbar


then 250 m @ 300˚,

then 400 m @ 30˚

then 250 m @ 120˚


19. In marking out and applying for the Lease, Mr Pawson said he relied upon

information he had obtained from DMP Perth pertaining to the area of M

20/135 amounting to about 10 hectares being the land that had been

forfeited by the Hon. Minister. In other words, the description of the

ground applied for by Murchison was that described in the application for

the Lease and should mirror the land forfeited in M 20/135.

20. To be familiar with the description of the ground forfeited pertaining to M

20/135 it is necessary to understand the history of events from when the

application for M 20/135 was lodged. On 23 February 1988 an application

was made for M 20/135 being an area of 240 ha. The description of the

ground applied for in M 20/135 is as follows:

“Behring Bore (Karbar)

Datum Peg situated 1700 m on a bearing of 227˚from Behring Bore,

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Thence 3000 m @ 30˚

Thence 800 m @ 120˚

Thence 3000 m @ 210˚

Thence 800 m @ 300˚ back to datum.”

21. On 31 July 1991, a partial surrender of M 20/135 was lodged with the

Mining Registrar at Mt Magnet for the surrender of 230 ha. The

description of the ground surrendered by the holder of M 20/135 is as

follows:

“Starting at a point situated 1700 m on a bearing of 227˚ from Behring Bore

Thence 1520 m @ 30˚

Thence 250 m @ 120˚

Thence 400 m @ 30˚

Thence 250 m @ 300˚

Thence 1080 m @ 30˚

Thence 800 m @ 120˚

Thence 3000 m @ 210˚

Thence 800 m @ 300˚ back to datum.”

22. Accordingly, the area remaining after the partial surrender was lodged for

M 20/135 is about 10 hectares and now comprises the Lease.

23. Mr Pawson said when he organized the mining survey of the Lease in

2011, he had arranged with the surveyor to contact him before he travelled

to the Lease to enable him to be present when the mining survey was

conducted. That did not occur due to an error in the office of the surveyor.

24. Mr Pawson said the survey report of the surveyor, Mr Watt, (“Survey

Report”) was sent to the DMP who then forwarded a copy to him. Mr

Pawson said DMP then checked the Survey Report against their data and

advised him that they considered the survey of the Lease by Mr Watt to be

correct. DMP further advised Mr Pawson if he did not accept the content

of the Survey Report he could object. Mr Pawson said he was surprised

with the Survey Report. He believed the Lease should have been

rectangular in shape and to have taken up the land forfeited from M

20/135.

25. As a consequence of the Survey Report received from DMP, Mr Pawson

said he and his wife travelled to the Lease and checked the location of the

survey pegs placed by Mr Watt. Mr Pawson said he found the datum peg

and the first corner peg which he believed were in the correct position. He

said he had trouble finding the remaining two northern corner pegs but

they were eventually found. However, Mr Pawson said he believed the

survey pegs in the northern corner of the Lease to be in a position other

than that shown on the Survey Report. Mr Pawson further searched the

[2012] WAMW 13


area and found corner pegs he believed belong to the application made by

Horizon for P 20/1866 in 2001 that marked out ground almost identical to

the Lease.

26. Mr Pawson said he disregarded the Survey Report because “In my mind’s

eye I have to disregard the pink area because it doesn’t relate to my tenement.” Further, Mr Pawson said “Even where they say the datum is different to where I

say my datum is and when you get to Bearing Bore (sic) and you measure it, it’s still

the same distance in metres and the bearing is the same.”

27. In his evidence in chief, Mr Pawson said of his datum point the following:

“What has completely happened and changed here is that Berring Bore (sic) which is

the starting point and my bearing going to where the datum is because now we’ve got

another part of a tenement which is where I marked it out and now the Department

has surveyed this one in a totally different bearing coming from Bearing Bore (sic)

even though the concrete peg was where my datum is but it doesn’t marry up with…”

Later, Mr Pawson said the following:

“All I went by previously is the directions I got from Bearing Bore where my datum was going to be.”

28. In cross examination, Mr Pawson maintained the marks he identified as

being the datum peg for the Lease was that identified by Mr Watt, as was

the stone indictors on the south west corner of the Lease near where Mr

Watt had placed a concrete dumpy peg. However, he maintained the

concrete dumpy pegs that Mr Watt had inserted during his survey in the

northern corners of the Lease were not accurate and there were other piles

of rocks in the area. Mr Pawson did not call any other witnesses nor did

he produce any photographic or other evidence in this matter.

Evidence for the Respondent

29. Mr Watt has been a licensed surveyor for some 35 years. He is approved

by DMP to conduct surveys of mining tenements on behalf of DMP.

30. Mr Watt said in April 2011 he was given a bundle of documents by DMP

comprising various co-ordinates and descriptions for the Lease. He was

also provided with maps and copies of the DMP register for the Lease. He

said he attended in the area of the Lease with a colleague and identified

the datum point for the Lease from GPS co-ordinates provided to him by

the DMP. From that point he then located the various marks he believed

to have been the marking out related to the Lease.

31. The only two definitive marks found by Mr Watt were those he described

as the datum peg and the south west corner comprising of a stone cairn. In

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other places he found what he believed to be stones rows, the remnants of

some trenches and some wooden corner pegs some of which were upright

and some of which were lying nearby on the ground rotting away. He was

unable to recall if there were any papers identifying the marking out of the

Lease. However, he said after 10 or 11 years he did not expect to find

those papers still attached to the datum peg.

32. As a result of his observations on 16 April 2011, Mr Watt said he assumed

he had found were the markings out associated with the Lease and other

tenements particularly M 20/135. At each of those points he obtained

GPS-coordinates by reference to a standard survey mark (SSM) located

nearby and known as G20-9. That information was then downloaded into

a computer program that calculated known published co-ordinates from

Landgate. That information was entered into the Field Survey Book of Mr

Watt.

33. On being advised by DMP of the Objection by Mr Pawson to the mining

survey, Mr Watt said he again travelled out to the area of the Lease on 21

November 2011. Mr Watt said in the vicinity of the Lease he re-checked

the Survey Report and also searched for the trenches or anything else that

may assist in the mining survey. On the visit to the area of the Lease on 21

November 2011, Mr Watt said he had been made aware of P 20/1866 and

thought the two sets of trenches he had seen may have belonged to the

Lease or P 20/1866.

34. Mr Watt was asked if he found any other trenches or anything in the area

and replied:

“No, no, we had a good look and didn’t find anything, but I would say that that

doesn’t necessarily mean there were none there. They are very difficult to find at

times, but I’m confident that we got the correct tenement corners.”

35. Mr Watt acknowledged he did not take any GPS co-ordinates or other

reference to Berring Bore being the fixed point used in both the

application for the Lease and M 20/135 to fix the datum point. Further, Mr

Watt said he did not see or visit Berring Bore describing it as being “…not

very far from the Tengraph co-ordinates. Its only 40 metres or so.” When asked in

cross examination if he had seen Berring Bore, Mr Watt said “No, I didn’t

see it, didn’t look for it.” Further, when Mr Watt was asked if he had taken

any bearings or measurements off Berring Bore by way of mining survey

he said “No, it’s not required by the Act.”

36. Mr Watt said the conclusion he reached as a result of his mining survey

was that he believed he had found what appeared to match the description

[2012] WAMW 13


of P 20/1866 marked out by Horizon in 2001 by reference to the GPS co-

ordinates supplied at that time by its surveyor. It was then assumed by Mr

Watt the other markings found in the very near vicinity of P 20/1866

belong to the marking out by Mr Telfer for the Lease in 2001.

37. Produced into evidence by the Respondent was various documents

comprising copies of all documents exchanged between Mr Pawson, Mr

Watt and the DMP regarding this issue including various surveys, survey

details, copies of the Register maintained by the DMP, various plans

associated with P 20/1866, M 20/135 and the Lease and emails passing

within the DMP and to others associated with this this matter.

Submissions

38. The thrust of the submissions by the Respondent as to the approach it

takes on survey disputes, and it seems in this matter, is perhaps best found

in the opening comments made by Mr Stevens during an exchange with

me:

“MR STEVENS: As you’re no doubt aware, Warden Wilson, mining law and the

Mining Act specifically states that it is where the application pegs are found to be in

the ground.

THE WARDEN: I don’t know that that’s correct. That’s not what these couple of

decisions have indicated. They include a somewhat different approach and that’s the

difficulty. My reading of these two cases is in fact Warden Calder back in the case of

Westdeen Holdings has indicated that the description may be what it is and we then

make a recommendation to the Minister if there is a dispute. He seems to say that

that’s so because posts and pegs and rocks shift over time and, as you know,

sometimes they creep for various reasons.

MR STEVENS: Well, I’m not wishing to dispute what you have said, but my

understanding of the Mining Act is that in the vast majority – in almost all cases it is

where the pegs are in the ground and it’s only in the absence of pegging and trenching

that we then get a surveyor to use the description and then he works either backwards

or forwards from the pegs that may have been found that form a portion of that

particular tenement. That’s the way things have been done under departmental

procedure during my 20 odd years of working in this particular area of the Mines

Department.”

39. Mr Pawson in his short closing submission summarized his position in the

Objection as follows:

“When the application was made, it was based on information that was freely

available from the Department of Mines and Petroleum. What I have heard is that

where we set the datum peg up in relation to Bearing Bore (sic) was pretty well spot

on. Surveyor Watt went out there and he used a GPS to get to that spot. What I can't

[2012] WAMW 13


seem to understand is why he didn't use a GPS to go to the other spots which were

information that was handed to him. I know it’s like closing the gate after the horse is

bolted but there was another survey peg there. If Mr Watt is our there any other time, I

could show him where it is. It is in a different location compared to what he’s found,

but he went out there looking for it a second time. He didn't find it and he was looking

in the wrong spot. I have got no more to add. Thank you, your Honour."

40. The Respondent's case can be described as a dispute as to the location of

the Lease that should be located by reference to the original marking out

of the Lease (or what can be located of its remnants) by Mr Telfer in

2001. That identification is assisted, it submits, by the use of a cross

reference to the location on the ground of the marking out of the

application by Horizon for P 20/1866 (or what can be located of its

remnants) in 2001 and to the description of the GPS co-ordinates provided

to the DMP by Horizon. In other words, the approach of the Respondent

to this mining survey dispute is one of “what you get is what you peg” or

a “pegs in the ground” approach.

41. On the other hand, Mr Pawson says the approach that should be adopted

to the resolution of the mining survey dispute is what has been referred to

in some cases as “grant by description”. That is, the grant of the Lease, by

the Hon. Minister to Murchison is the ground described in the application

for the Lease subject only to the survey to ensure the ground granted was

at the time of application available pursuant to s. 105B of the Act.

Findings of Fact

42. I accept the evidence of Mr Pawson that he was of the opinion that Mr

Telfer marked out ground depicted in the application for the Lease and in

accompanying map lodged with the Mining Registrar in Mt Magnet in

2001. I also accept that some remnants may remain of the marking out

conducted by Mr Telfer in 2001. However, I am not satisfied that what

was seen by Mr Pawson or Mr Watt was necessarily the marking out by

Mr Telfer of the Lease, or at least, I cannot be satisfied the remnants of

the marking out by Mr Telfer was still in the same position that Mr Telfer

placed them some 10 years earlier. Clearly the evidence of Mr Pawson

was he had difficulty in finding what he thought was the marking out

conducted by Mr Telfer. I accept the evidence of Mr Pawson that he holds

the opinion that what should have been surveyed was the Lease by

reference to the written description within the application for the Lease as

was that granted to Murchison by the Hon. Minister on 24 November

2005.

43. I do not accept the evidence of Mr Watt that what he surveyed was

necessarily the marking out of the Lease by Mr Telfer in 2001. That is

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because Mr Watt said what he had found in April 2011 was the marking

out for either the Lease or M 20/135 after lodgment of the surrender. Later

in November 2011, following a second visit to the area, this time armed

with details he had been provided by DMP of application for P 20/1866,

Mr Watt said he then surveyed, using co-ordinates referenced to a GDA

survey point and the description of P 20/1866 and as a result found

remnants of marking out of the Lease.

44. I cannot be satisfied on the evidence of Mr Watt that what he saw on both

visits to the vicinity of the Lease was the marking out conducted by Mr

Telfer some 10 years earlier because of the passage of time from marking

out of the Lease, the lack of any evidence of the existence of the Form 20

Notice of Marking Out for the Lease, the consequences of other confusion

and uncertainty of other marking out in the area (ie: that required for M

20/135 after surrender and P 20/1866) and the fact that the mining survey

by Mr Watt to identify the marking out of the Lease did not commence

from Berring Bore.

45. In any event, I am of the opinion, the mining surveys of the area of the

Lease by Mr Watt were conducted from information supplied to him by

DMP that attempted to re-construct the original marking out of the Lease.

In conducting the mining survey using that information misses the very

point of the nature and purpose of the mining survey that was required to

been undertaken in a dispute of this type.

46. The submissions by Mr Stevens in which he outlined the DMP procedures

for the conduct of mining surveys causes me concern. In my opinion, r.

120(1) of the Regulations fails to differentiate between mining surveys of

mining tenements conducted before and after the grant of a mining

tenement under the Act. Further, the provisions of r. 120 of the

Regulations requiring the survey of a mining tenement to the marking out

of the mining tenement after grant by either the Hon. Minister, the

Warden or the Mining Registrar are, in my opinion, repugnant to the

powers of the Act.

The Law

47. The issues in this matter highlight the unresolved question of whether

upon grant of the application for the Lease by the Hon. Minister the land

so granted is that land:

a. applied for by reference to the written description of the

area of the land sought and accompanied by a map

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delineating the boundaries of the area pursuant to s. 74(4) of

the Act, or;

b. notified in writing by or on behalf of the Hon. Minister the

mining lease to which the application relates has been

granted pursuant to s. 79 of the Act, or;

c. as described in the Instrument of Lease (Form 8) issued

pursuant to s. 83 & 116(1) of the Act and r. 26 of the

Regulations, or;

d. as marked out and delineated by pegs, trenches or stone

rows in the ground and surveyed pursuant to s. 105 of the

Act and r. 59 to 63A and r. 120(1) of the Regulations.

48. The Respondent’s submission is the Lease granted by the Hon. Minister is

the land surveyed in accordance with r. 120 of the Regulations. In other

words the Respondent submits the grant of the Lease is that land initially

marked out and delineated by the pegs, trenches and stones on the land or

a “pegs in the ground” approach.

49. Mr Pawson submits that, in this case, the land granted by the Hon.

Minister that comprises the Lease is the land applied for by written

description within the Form 21 and the accompanying map.

50. In determining this matter it is necessary to have regard to the effect the

grant of the Lease by the Hon. Minister has upon the manner in which the

Regulations requires the mining survey of the Lease is to be conducted.

51. On 24 November 2005, the Hon. Minister exercised his power pursuant to

s. 75(6) of the Act to grant the Lease pursuant to s. 71 of the Act. The

exercise of the Hon. Minister’s power occurred following receipt of the

report from the Warden following the hearing of the Horizon Objection

and the determination in Bear-Ring Bore GM v Horizon Mining Ltd

(supra).

52. The Hon. Minister has a wide and unfettered discretion pursuant to s. 71

& 75(6) of the Act to either grant or refuse the Lease, in whole or part, not

withstanding any non-compliance with the Act or Regulations or any

recommendation of the warden or the mining registrar. Upon grant the

Hon. Minister may impose such terms and conditions as he or she

considers reasonable. Sections 71 and 75(6) of the Act provides as

follows:

“75(6). On receipt of a report under subsection (2) or (5), the Minister may, subject to

subsection (7), grant or refuse the mining lease as the Minister thinks fit, and

irrespective of whether —

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(a) the report recommends the grant or refusal of the mining lease; and

(b) the applicant has or has not complied in all respects with the

provisions of this Act.”

“71. Grant of mining lease

Subject to this Act, the Minister may, on the application of any person, after receiving

a recommendation of the mining registrar or the warden in accordance with

section 75, grant to the person a lease to be known as a mining lease on such terms

and conditions as the Minister considers reasonable.”

53. In the exercise of his or her discretion pursuant to s. 75(6) of the Act the

Hon. Minister may grant mining lease in part only. If that occurs, the

provisions of s. 73 of the Act requires the applicant for the mining lease to

mark out that part of the mining lease so granted as soon as practicable.

Section 73 of the Act provides as follows:

“73. Area of mining lease may be less than area sought

(1) The area of land in respect of which a mining lease is granted may be

less than the area of land in respect of which the mining lease is sought.

(2) If the area of land in respect of which a mining lease is granted is as

described in subsection (1), the holder of the lease shall mark out in the

prescribed manner the boundaries of that area as soon as practicable

after the grant of the lease.”

54. The grant of the Lease by the Hon. Minister is a definitive act. Parliament

intended that upon grant of the Lease by the Hon. Minister, save in the

event of a grant obtained by fraud, that any dispute as to the means and

manner by which the application for the Lease was made would be

brought to an end. For that purpose, the provisions of s. 116(1) & (2) of

the Act was enacted by Parliament such that any irregularity or

informality with the provisions of the Act in the application and, by

implication the Regulations would be, except in the case of fraud, “cured

upon grant.” Section 116 of the Act provides as follows:

“116. Instrument of licence or lease

(1) The holder of a mining tenement granted pursuant to this Act shall be entitled to

receive an instrument of licence or lease as the case may be in such form as may

be prescribed.

(2) Except in the case of fraud, a mining tenement granted or renewed under this act

shall not be impeached or defeasible by reason or on account of any informality

or irregularity in the application or in the proceedings previous to the grant or

renewal of that tenements and no person dealing with a registered holder of a

mining tenement shall be required or in any way concerned to enquire into or

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ascertain the circumstances under which the registered applicant, or holder or

any previous holder was registered, or to see to the application of any purchase

or consideration money, or be affected by notice, actual or constructive, of any

unregistered trust or interest any rule of law or equity to the contrary

notwithstanding, and the knowledge that any such unregistered trust or interest is

in existence shall not of itself be imputed as fraud."

55. In Hunter Resources Ltd v Melville [1988] 164 CLR 234 and Crocker

Consolidated Pty Ltd v Wille [1988] WAR 187 it has been held the effect

of s. 116(2) of the Act on any defective marking out of a mining tenement

prior to grant cannot used as a basis to impeach the grant of the mining

tenement by the Hon. Minister.

56. Section 80 of the Act requires the land the subject of the Lease to be

surveyed. Section 80 of the Act provides as follows:

“80. Surveys of mining leases

(1) Land the subject of a mining lease shall be surveyed, but it shall not be necessary

for the survey to be carried out prior to the granting of the lease.”

57. The grant of the Lease is also subject to the statutory condition imposed

pursuant to s. 105B of the Act that the land applied for and granted being

available for the purpose of the grant of the Lease after survey. Section

105B of the Act provides as follows:

“105B. Grant of tenement subject to survey

The grant of a mining tenement shall be deemed to have been made subject to a

condition that the land applied for is found to have been available for the purposes of

that grant after a survey has been made of the tenement.”

58. The Act does not make provision for the manner in which the survey of

the Lease is to occur either before or after grant. However, s. 162(ka) of

the Act enables the Governor to make regulations as to the manner in

which a mining survey is to be carried out. Section 162(ka) of the Act

provides as follows:

“s. 162 (ka) provide for any matter relating to the surveying of mining

tenements, including —

(i) requiring that surveying to be carried out by a surveyor (in this

paragraph referred to as the approved surveyor) approved by the

Minister or an officer of the Department in accordance with any specified

written law, any instructions given by an officer of the Department, a

warden or the Minister or any direction published by the Department, or

any 2 or all 3 of the foregoing;

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(ii) the course to be adopted by the approved surveyor if he finds that a

mining tenement or application therefor is not marked out in the

prescribed shape referred to in section 105;

(iii) the hearing by the warden of disputes arising during the course of that

surveying concerning the positions of pegs or otherwise, or of objections

to the survey of a mining tenement or of land the subject of an

application for a mining tenement, and the determination by the Minister

of those disputes or objections;

(iv) the correction of errors or omissions in that surveying and the completion

of surveying that is uncompleted;

(v) the lodging of reports relating to surveys;

(vi) the entry on land by officers of the Department for the purpose of inspecting

surveys;”

59. Part IV of the Regulations provides for the manner in which a mining

survey of mining tenements under the Act is to occur. Regulation 116 of

the Regulations defines various words used in Part IV of the Regulations.

"Mining survey” means “a survey required under the Act or these

Regulations in respect of the boundaries of the area of land to which a

tenement relates.” “Tenement” means “a mining tenement or application

therefore.”

60. The words "mining tenement" is not defined by the Regulations. However,

those words are defined in s. 8 of the Act as “mining tenement” meaning

‘a prospecting licence, exploration licence, retention licence, mining

lease, general purpose lease or a miscellaneous licence granted or

acquired under this Act or by virtue of the repealed Act; and includes the

specified that piece of land in respect of which the mining tenement is so

granted or acquired.”

61. Various provisions of the Act and Part IV of the Regulations draw

distinction between a mining survey of mining tenements that have been

granted by the Hon. Minister, warden or mining registrar or acquired as

defined by the s. 8 of the Act, and a mining survey conducted in the

course of the hearing of applications for mining tenements before grant by

the Hon. Minister or the warden. In my opinion, the nature of a mining

survey conducted either after grant or before grant of an application for a

mining tenement require different considerations that are not obvious

under the provision of the Act or Part IV of the Regulations.

62. That distinction can be seen, for example, under the provisions of r. 118

of the Regulations where the circumstances and requirements for the

instigation of a mining survey are outlined. Regulation 118 of the

Regulations provides as follows:

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“118. Initiation of mining surveys

(1) Subject to subregulation (2), the Director shall —

(a) when a mining survey is ordered to be made under section 47(1),

58(2)(b) or 70G(1) of the Act; or

(b) subject to section 80 of the Act, after the lodging of an application

for a mining lease; or

(c) subject to section 80, as read with section 90, of the Act, after the

lodging of an application for a general purpose lease; or

(d) when a mining survey is requested by the Minister or a warden’s

court for the purpose of determining any matter relating to the

boundaries of a tenement, arrange for a mining survey of the relevant

tenement to be made as soon as is practicable by an approved

surveyor.

(2) Subregulations (1)(b) and (c) do not apply to applications lodged on

or after 1 July 1991.

(3) Subject to regulation 118C, a survey of a mining lease under

section 80 of the Act, or of a general purpose lease under section 90

of the Act may be arranged by the holder of the tenement and carried

out at any time, but if the Director directs, by written notice given to

the holder of the tenement, that a survey be arranged and carried out,

the holder of the tenement must arrange for a survey to be carried out

within the time specified in the notice.”

63. Mr Pawson was, in my opinion, required to arrange for the conduct a

mining survey of the Lease for two purposes. Firstly, to establish the

boundaries of the Lease pursuant to s. 80 of the Act, and, secondly, to

establish the land applied for was available for the purpose of grant after

survey pursuant to s. 105B of the Act.

64. It appears from the evidence the mining survey conducted of the Lease

was arranged by Mr Pawson pursuant to the provisions of r. 118(3) of the

Regulations. The Survey Report by Mr Watt indicates he notified the

adjoining mining tenement holders of the Lease pursuant to r. 118A (2) of

the Regulations of his intention to conduct the mining survey but they did

not attend.

65. Regulation 120 of the Regulations establishes the manner in which the

mining survey of the Lease was to be carried out and provides as follows:

“120. Adjustment of boundaries

(1) Subject to this regulation, an approved surveyor shall carry out a mining

survey in respect of —

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(a) a tenement other than an exploration licence so as to conform with —

(i) the land indicated by the applicant in marking out that tenement; and

(ii) the prescribed shape referred to in section 105(1) of the Act; or

(b) an exploration licence or an application therefor to conform with the

substance of the description thereof.

(2) If, in the case of an application for a tenement other than an exploration

licence, an adjustment made to achieve conformity under subregulation (1)

would affect adjoining interests, the approved surveyor concerned shall survey

the relevant tenement as strictly in accordance with its marking out as the

circumstances permit.

(3) If an approved surveyor finds that a tenement being surveyed by him

encroaches on another tenement having priority in application over the

first-mentioned tenement, the approved surveyor shall excise from the area of

the first-mentioned tenement the area of that encroachment.

(4) The Director shall provide an approved surveyor with details relating to

priority of adjoining tenements, for the purposes of complying with

subregulation (3), when requested to do so by the approved surveyor.”

66. The Director-General of DMP, pursuant to r. 118A (3) of the Regulations,

provided to Mr Watt details of the adjoining applications for mining

tenements and holders thereof. Regulation 119(2) of the Regulations does

not require Mr Pawson to have been present when the mining survey was

conducted by Mr Watt. However, it would seem in my opinion, the

presence of Mr Pawson at the Lease whilst the mining survey was being

conducted would have, in the circumstances of this case, been useful.

67. It is not clear from the evidence if Mr Watt was also provided by the

Director-General of DMP, pursuant to r. 120(3) & (4) of the Regulations,

the details of priority of adjoining tenements for the purposes of

determining any ground that is required to be excised from the Lease if

encroachment is established by the mining survey.

68. At the conclusion of the mining survey of the Lease, Mr Watt, prepared

the Survey Report on the conduct of the mining survey in the prescribed

Form 44 and in accordance with r. 120E of the Regulations. In my

opinion, the Form 44 is scant in detail of the conduct of the mining

survey. In the circumstances of this case, a more detail Survey Report

other than a “tick a box” report with photocopies of pages in a field book

would have been more informative to Mr Pawson and, as this matter has

unfolded, the warden.

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69. Pursuant to the provisions of r. 120A (3) of the Regulations a copy of the

Survey Report was forwarded to Mr Pawson who then lodged the

Objection in accordance with r. 120A (3a) of the Regulations. There is no

issue the Objection by Mr Pawson to the mining survey is to be heard by a

warden as provided by r. 120A (4) of the Regulations.

70. No specific procedure is provided under the Regulations for the hearing of

the Objection. There is no restriction placed upon the manner in which a

warden conducts the hearing of the Objection. The only obligation on the

warden is to forward notes of evidence and a recommendation relating to

the Objection to the Hon. Minister who shall then determined the

Objection.

71. In "Mining Law in Western Australia" Federation press, 4th edition, the

learned author Michael Hunt at pages 240-241 said of the role of the

warden in resolving mining survey disputes or competing boundary

applications the following;

“In the author's opinion, the approach which should be adopted by warden in

determining a survey dispute or in resolving the boundaries of competing applications

is not simply to refer to pegs, nor simply to refer to the descriptions. The warden

should attempt to find as a fact which was the first tenement granted over the area in

dispute by reference to whatever reliable evidence is available to establish the

boundaries of the competing tenements. That evidence may be the marking outposts (if

the warden is satisfied they still exist in their original location) or the description on

the application (if he or she is not so satisfied it) or other evidence disclosed during

the survey. The matter should be resolved as an issue of priority (that is, the first

tenement granted over the area has priority). In determining which was the first

tenement, a factual enquiry may be required as to the location of posts and the

application’s description."

72. The issue of boundary disputes involving mining tenements is also the

subject of an article by P. D Blaxell (later His Honour Justice Blaxell)

headed “Comment on Boundary Disputes Involving Mineral Titles”

(1987) AMPLA Year Book 14. Although this article is now some 25

years old its comments are still, in my opinion, relevant.

73. In my opinion, the provisions of r. 120 of the Regulations and the

commentary by the learned author Michael Hunt do not appear to reflect

the different nature of a mining survey conducted before the grant of a

mining tenement and a mining survey conducted after the grant of a

mining tenement. Specifically, the mining survey conducted by Mr Watt

upon the Lease pursuant to the provisions of r. 120(1)(a) of the

Regulations and the adjustment apparently made to the Lease after the

mining survey had the effect of, in my opinion, undermining the power

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and discretion of the Hon. Minister when the Lease was granted on 24

November 2005.

CONCLUSION

74. There has been various obiter dicta comments by judicial officers and

decisions of various wardens in cases that have touched on the issue of

whether on the grant of a mining tenement the land so granted is that land

marked out pursuant to s. 105 of the Act and r. 59 of the Regulations or

whether the land granted is that land described in the application for the

mining tenement (Form 21) lodged with the mining registrar after

marking out and accompanied by a map pursuant to the various provisions

of the Act and r. 64 of the Regulations.

75. In Westdeen Holdings Pty Ltd v Haggerty (unreported Perth Wardens

Court, 7 August 1998 Vol 13 No 14) (“Westdeen case”), His Honour

Warden Calder (“Warden Calder”) reviewed the various cases that have

attempted to deal with this issue. In that case, Warden Calder referred to

an unnamed decision of Warden Reynolds, (a case that appears to be

Clements v Victor Petroleum and Resources Ltd (Kalgoorlie Warden’s

Court, 8 November 1985)), in which the grant of a mining tenement was

based on the land marked out. In my opinion, care should be taken when

applying the rationale of an objection to the grant of a mining tenement in

circumstances of competition for land and specific compliance with

marking out that has now been repealed.

76. Warden Calder also made reference in the Westdeen case to the decision

of His Honour Justice Franklyn in Campbell v Knightsbridge Holdings

Pty Ltd & ors (Supreme Court of Western Australia, unreported, appeal

number 1011 of 1986, 17 October 1986, library number 6476) in which

His Honour said (at page 24):

“… there is no room under the provisions of the present Mining Act for any contention

that a person acquires a prospecting licence over land marked off on the ground when

the land as described in the application is entirely different.”

77. His Honour Justice Franklyn then made reference to regulations relating

to marking out and specifically to the provisions of s. 105A and 105B of

the Act and at page 26 said:

“In my opinion these provisions clearly provide that a prospecting licence is acquired

by grant and may only be granted in respect of the land the subject of the application

for such licence, which land is the land described in the application and delineated on

the map accompanying the same. Before making such application the applicant is

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obliged to mark out, as required by the Act and Regulations, the land the subject of the

application. The evidence makes it clear that, even if the plaintiff had marked off the

ground the subject of the Scott claims, at no time did he apply for a prospecting

licence in respect of those lands and so had no title or right or title thereto.”

78. Those comments by His Honour Justice Franklyn in that case are obiter

and are not binding on any court.

79. In the further case of Re: Minister for Minerals and Energy; Ex parte

McKenna (1989) 2 WAR 401, His Honour Justice Kennedy made

reference to the decision in Campbell v Knightsbridge (supra) and said

the comments by His Honour Justice Franklyn J “clearly diminishes the

significance of marking out.” Further, His Honour Justice Kennedy

commented that at some more appropriate time it would be necessary to

reconsider the complex question of marking out and that in his view

marking out remained critical. His Honour Justice Kennedy went on to

say:

“It appears to me that there is much to be said in favour of the view that it is the

written description which would correspond with the marking out and that the grant of

a tenement upon the basis of a written description cannot supersede the marking out.

Nevertheless, I do not consider it appropriate in this case…to express a concluded

view. The position might depend upon the extent of any inconsistency between the two.

The legal question is not without its difficulties and it appears to me to be highly

undesirable, in a case which might well be taken further, for a decision to be made on

assumed facts which may turn out to be wrong.”

80. Again, the comments of His Honour Justice Kennedy in that case are

obiter and are not binding on any court.

81. Warden Reynolds in Whitfield v Gardiner (unreported, Wardens Court,

Leonora, 4 September 1986) again expressed the view that his preference

was for a “pegs in the ground" approach to the issue of determining what

land was covered by a mining tenement that had been granted.

82. In the Westdeen case, Warden Calder said after considering the prior

cases on this issue the following:

“With respect to the contrary decisions I prefer and adopt the reasoning and opinion

of His Honour Franklyn J in Campbell v Knightsbridge. I consider the following

factors to be relevant. When a Warden or Registrar makes a grant of a Prospecting

Licence or a Miscellaneous Licence only in the rarest of cases, if ever, would the

Warden or the Registrar inspect physically the ground marked out in order to

compare the location of the corner posts and trenches with a description of the

boundaries and the location of the datum post contained in the Form 21. The same

could be said of the Registrar or the Warden in making a recommendation for the

grant of a tenement where grant lies only in the Minister and the same could again be

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said of the Minister where the Minister receives from the Warden or the Registrar a

recommendation in respect of an application for a mining tenement where the grant of

that tenement lies only in the Minister. None of the licences or instruments of licence

or lease which appear in the prescribed forms contained a reference to “the ground as

marked out” in describing the land which is the subject of the licence or instrument of

lease or instrument of licence. Nor do they, however, contain any requirement that the

boundaries be described. Although there is an obligation on tenement holders to

maintain the boundary marks of their tenements, in practice this is often not done (the

case before me is a good example) and in any event corner post and trenches can

easily be removed or obliterated due to many causes. Corner post and trenches do not

have the elements consistency and permanence which records held by the Department

in the form of applications for tenements and applications to amend which are lodged

pursuant to regulation 107 to possess. Particulars of tenements shown in the register,

including the description of the location of the datum and of the corner posts are

readily available at all registries. They are, in most cases, more accessible than pegs

and trenches on the ground. In my opinion the approach taken by His Honour

Franklyn J in Campbell v Knightsbridge is more consistent than is the alternative

approach with the provisions of section 116(2) of the Act whereby “except in the case

of fraud, a mining tenement granted or renewed under this Act shall not be impeached

or defeasible by reason or on account of any informality or irregularity in the

application or in the proceedings previous to the grant or renewal of that tenement

…”, the grant being based upon the application and the application, in the form of

Form 21, containing a description of the land (and containing the only description)

which is before the Registrar or the Warden or the Minister as the case may be for the

purpose of the grant being made."

83. I find the rationale of Warden Calder in the Westdeen case very

persuasive in deed. However, in my opinion, care should be taken to

differentiate decisions in cases where an objection is heard by a warden to

an application for a mining tenement that involves disputes as to the

location of pegs, post, trenches or rows of stones placed in or on the

ground in marking out before a recommendation for grant or the grant of

the mining tenement and objections concerning the locations of

boundaries of a mining tenement after grant of a mining tenement by

either the Hon. Minister, or a warden or a mining registrar.

84. That is so because objections to applications for mining tenements based

on disputes as to the location of pegs, posts, trenches or rows of stones

heard by the warden before the recommendation for the grant or grant of a

mining tenement may require a warden to hear oral testimony or take

written evidence on the issue or by calling for a mining survey to be

conducted pursuant to r. 118(1) (d) of the Regulations. As a result of the

hearing of such objection the warden may determine an objection based

on a combination of the matters described above and make a

recommendation to the Hon. Minister for the grant (or refusal) of the

application for the mining tenement or grant the application for the mining

tenement based on a finding the land applied for as being the land other

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than the written description within the Form 21 and the accompanying

map, the mining survey or the marking out as the case maybe.

85. Further, where no objection is lodged to an application for a mining

tenement and a recommendation for the grant of the mining tenement is

made by a warden or a mining registrar to the Hon. Minister or the mining

tenement is granted by a warden or a mining registrar such

recommendation or grant occurs by reference to the written description

contained within the application for the mining tenement. (see: the

decision of Warden Calder in the Westdeen case at page 27(supra)).

86. The grant of an application for a mining tenement by the Hon. Minister, a

warden or a mining registrar by reference to the “application for the

mining tenement” has, in the absence of some other indication, a meaning.

The Act recognizes, in this case, that an application for a mining lease

shall be a reference to the written description of the area of the land

sought and the map that outlines the boundaries of the area. Section 74(4)

of the Act provides as follows:

“(4) The application shall be made by reference to a written description of

the area of the land in respect of which the lease is sought, and be

accompanied by a map on which are clearly delineated the boundaries of

that area.”

87. Similar provisions to s. 74(4) of the Act can be found in s. 41(1) (c) of the

Act by reference to a Prospecting Licence, s. 70(C)(5) of the Act by

reference to a Retention Licence, s. 86(4) & s. 90(2) of the Act when read

with s. 74 of the Act by reference to a General Purpose Lease and s. 93(2)

of the Act by reference to a Miscellaneous Licence.

88. The rationale of Warden Calder in the Westdeen case fairly and logically

explains the frailty of reliance upon trenches, rows of stones and pegs

used in the marking out of the application for a mining tenement as the

basis upon which a mining survey should be conducted after the grant of a

mining tenement. The marking out of the land the subject of an

application for a mining tenement as required by the Act and Regulations

is not permanent or indelible. Such markings are exposed, often over long

periods of time as this case demonstrates, to all of nature’s elements,

human and animal activity be it deliberate or accidental and are often not

maintained as required under the Act and Regulations. The degree of

accuracy of marking out of a mining tenement by an applicant is often

questionable before survey. After the conduct of a mining survey any

survey marks left by the approved surveyor are still subject to those above

mentioned potential interferences. The whole of this case, including its

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very beginnings in Bear-Ring Bore GM v Horizon Mining Ltd (supra),

is testament to the difficulties associated with reliance on the original

marking out as the basis for a mining survey of a mining tenement after

grant.

89. The requirement for marking out of an application for a mining tenement

was not intended by Parliament, in my opinion, to be the basis upon which

the survey of a granted mining tenement was to be conducted. Marking

out of the land the subject of an application for a mining tenement is

intended, in my opinion, to alert those persons who may have interest in

the land or near the marking out of the intention of the applicant to apply

for the grant of a mining tenement. The only permanent and accurate

record of the land either applied for or granted is that contained within the

written description of the application or the Instrument of Licence or

Lease issued after grant of the mining tenement held by the mining

registrar. The survey of the land the subject of the grant of a mining

tenement, whether it is conducted as a consequence of compliance with a

requirement under the provisions of the Act or is carried out as a

consequence of a dispute as to the location of the boundary is intended to

accurately reflect the land that comprises the mining tenement granted by

the Hon. Minister, the warden or the mining registrar, as the case may be.

90. In my opinion, the act of grant of an application for a mining tenement by

the Hon. Minister, the warden or the mining registrar in which no

reference is made to the description of the land so granted, other than to

the application for the mining tenement itself, must infer the land so

granted comprises that land applied by reference to the written description

contained within the application (Form 21) as provided by, in this case s.

74(4) of the Act, and subject to the provisions of s. 105B of the Act.

91. If it is the intention of the Hon. Minister, warden or the mining registrar to

grant a mining tenement for less than, or part of, the area originally

applied for, such as provided pursuant to s. 73 of the Act, it is necessary

for the Hon. Minister, warden or a mining registrar to make a clear and

unequivocal statement of the description of the land granted to the

applicant and any conditions upon which the grant has been made. If that

is not done the applicant has not been informed whether the land the

subject of the grant has been granted in whole or part. In the case of an

application for a mining lease granted in part the holder thereof cannot

then comply with the provisions of s. 73(2) of the Act.

92. In this case, the Written Notification by the Hon. Minister pursuant to the

provision of s. 79 of the Act is notification of the details of the description

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of the mining lease granted, conditionally upon the conduct of a mining

survey in accordance with s. 80 and s. 105B of the Act. Ultimately, in this

case, the issue of the Instrument of Lease is the definitive written

description by the Hon. Minister of the land granted that comprises the

Lease after the conduct of the mining survey as required by the Act.

93. The Written Notification to Murchison by the Hon. Minister did not

identify the land in respect of which the Lease is granted other than to

refer to the land granted comprising the land to which the application

relates. The relevant part of the Written Notification to Murchison states:

“Dear Sir.

Application for Mining Lease 20/455

I wish to advise the above application was granted on 24 November 2005 by the

Minister for State Development subject to the endorsements and conditions detailed on

the attached schedule.”

94. The endorsements and conditions attached to the Written Notification,

relevant to this matter, simply stated that condition 1 was “Survey”. By

that it is understood to mean subject to a mining survey to determine the

location of the boundaries of the Lease pursuant to s. 80 of the Act and to

establish the land was available for the purpose of the grant after a survey

has been made pursuant to s. 105B of the Act.

95. The effect of the issue of the Written Notification to Murchison pursuant

to s. 79(1) of the Act was to inform Murchison that from 24 November

2005 “the Minister has granted the mining lease to which the

application relates and the applicant shall be deemed to be the holder of

the lease comprising the land in respect of which the lease is granted as

from the date of the written notification subject to s. 80 and 105B of the

Act. (my emphasis)

96. The grant of the Lease entitled Murchison, and for that matter Mr Pawson,

to receive an Instrument of Lease pursuant to s. 116(1) of the Act. That

section provides as follows:

“Instrument of licence or lease

116. (1) The holder of a mining tenement granted pursuant to this act shall be entitled

to receive an instrument of licence or lease as the case may be in such form as may be

prescribed.”

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97. The provision for the issue of Instrument of Lease following the grant of a

mining lease by the Hon. Minister is found within s. 83 of the Act and

provides as follows:

“83. Issue of mining leases

(1) Every mining lease —

(a) shall be dated as of the day of the notification by the Minister under section 79;

and

(b) shall be executed by the Minister.

(2) Where a mining lease has been executed under subsection (1) —

(a) the mining lease shall be endorsed with the word “original” on its front page; and

(b) a copy of the mining lease shall be —

(i) endorsed with the word “duplicate” on its front page; and

(ii) issued to the lessee on payment of the prescribed fee.”

98. The Instrument of Lease (Form 8) issued following grant of a mining

lease referred to in s. 83 and s. 116(1) of the Act is prescribed pursuant to

r. 26 of the Regulations. The issue of the Instrument of Lease does not

occur automatically following grant. The Instrument of Lease issues only

after a mining survey of the mining lease has been completed pursuant to

s. 80 and s. 105B of the Act and then only upon request of the holder of

the mining lease after payment of the prescribed fee to DMP. There is no

evidence before me to suggest the Instrument of Lease pertaining to the

Lease has been issued to either Murchison or Mr Pawson.

99. If my understanding of the policy of the DMP is correct, that the

Instrument of Lease is only issued upon the request of the lessee then, in

my opinion, the importance and significance of the issue of the Instrument

of Lease is wholly misunderstood. The Instrument of Lease, in this case,

is the only document after grant that accurately describes to the lessee the

land that comprises the Lease after the conduct of the mining survey

pursuant to s. 80 and 105B of the Act. The Instrument of Lease is the only

document that is also capable of establishing after grant and survey, the

boundaries of a mining lease and to give effect to the various

requirements under the Act and Regulations associated with the surrender

of a mining lease.

100. Further, the Instrument of Lease or for that matter Licence, is the only

document that could be relied upon to prove the boundaries of the land

granted in any prosecution where the land comprising a mining tenement

on which an offence was alleged to have occurred is in issue.

[2012] WAMW 13


101. In those circumstances, irrespective of how administratively laborious the

issue, re-issue, amendment or surrender of an Instrument of License or

Lease may be, such instrument serves a very important function in the

administration of the both the Act and the Regulations and should not be

dealt with as if it serves no purpose.

102. Accordingly, in this case in the absence of an Instrument of Lease and the

absence of any precise written description of the land comprising the

Lease being found in the Written Notification of grant of the Lease

pursuant to s. 79 of the Act what is the description of the land that

comprises the Lease granted by the Hon. Minister in November 2005?

103. In Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3

WAR 208 (“the Consolidated case”), Commissioner Heenan QC

considered an appeal from a decision of a warden concerning the precise

location on the ground of a granted exploration licence. At that time, the

Act required the applicant for an exploration licence need only describe

the point from which the datum point was located and the location of the

corners in both the application form and on a map that accompanied the

application. The applicant was not required to place a datum peg or corner

pegs in the ground.

104. The applicant described the location of the datum peg and corners of the

exploration licence in both the application form and the accompanying

map by reference to a bore located on the DMP public map. The position

of the bore was not in the same location on the ground as it was shown on

the DMP public map. Following grant of the exploration licence by the

Hon. Minister a survey was conducted of the exploration licence

according to the written description contained in the application for the

exploration licence. The survey found the written description of the

location of the exploration licence did not correspond with the location of

the bore as plotted on DMP public maps. The location of the exploration

licence as surveyed was disadvantageous to the holder of the exploration

licence as it located the exploration licence in another place. At that time

the Instrument of Licence issued to the holder of the exploration licence

upon grant made no provision for the endorsement of a written description

of the land granted by the Hon. Minister.

105. The warden in that case held the ground surveyed by the written

description contained in the application for the exploration licence was the

ground correctly granted to the applicant, notwithstanding the

disadvantageous location of the exploration licence on the ground.

[2012] WAMW 13


106. The Consolidated case and the Objection lodged by Mr Pawson are

similar. In the Consolidated case the Instrument of Licence was issued in

a form that contained no provision for the endorsement of a description of

the land granted by the Hon. Minister. This is analogous to the case

involving the Lease in that neither Mr Pawson nor Murchison have had an

Instrument of Lease issued to them and the Written Notification does not

provide a description of the land that comprises the Lease granted by the

Hon. Minister. In other words, the holders of the mining tenements in both

cases have never been specifically notified of the precise description of

the land that comprises the mining tenement granted to them.

107. Commissioner Heenan QC in the Consolidated case at page 215 dealt

with the issue of the Instrument of Licence that did not contain a written

description of the land granted to the holder of the exploration licence and

its ramifications by saying the following:

“Furthermore, an applicant for an exploration licence obtains priority to the ground

the subject of that licence, and thus for any subsequent application for mining or

general purposes leases, according to the date of lodgment of the original application

with the Mining Registrar – s. 105A(1) and (2) - subject always to the condition that

the land applied for is found to have been available for the purposes of that grant, s.

105B.

Once granted, an exploration licence confers the right as described with the security

from impeachment or defeasance bestowed by s. 116(2) – Crocker Consolidated Pty

Ltd v Wille [1988] WAR 187 - which gives protection against any informality or

irregularity in the application or in the proceedings previous to the grant or renewal

of the tenement. It would seem that this provision means that any irregularity or

informality by the appellant, Consolidated, in making its application for EL 36/67

cannot be relied upon as a ground of impeachment of the existence or geographical

position of the area which is the subject of the exploration licence duly granted.

Consequently, the determination of the boundary dispute must depend on the terms of

the license granted. While, for reasons which will appear, it may be necessary to go

back to the application for the licence and the documents supporting it, including the

map, in order to identify the subject area of the licence, it will be necessary constantly

to keep in mind the fact that any irregularities or shortcomings in those documents are

no longer of themselves significant unless and then only to the extent that, they have

been incorporated by reference or by necessary implication in the terms of the

instrument of licence which has issued under s. 116(1). For it is that document, first

and last, which sets out the nature and extent of the rights and areas granted. (my

emphasis)

It is all the more important to recognise this pre-eminence of the instrument of licence,

accorded by the statute, in the light of the surprising absence of content in the form of

instrument actually issued to the licensee. This is prescribed as a form accompanying

the Regulations and appears as exhibit 15 before the Warden which, while not

included in the Appeal Book, was among the papers forwarded to this Court by the

[2012] WAMW 13


Mining Registrar. It seems quite remarkable that such an exploration licence should

fail to identify on its face, or by any method of express reference, "the land the subject

of this licence" whether by written description or by plan or diagram. The instrument

of licence makes no reference to any area or location, or other method of identifying

the subject land. Unless it is read in conjunction with the original application, (exhibit

1 before the Warden), and/or the necessary accompanying map – s. 58(2)(a) - (exhibit

10 before the Warden), the instrument granted by the Minister under s. 59(4) and

carrying the significance which s. 116(2) attaches, simply failed to identify the subject

area of the grant.

This peculiar and undesirable result would appear to stem simply from inaccuracies in

the form for an exploration licence prescribed in the Regulations rather than any

provisions of the Act itself or any implicit policy. Indeed, it is the more disconcerting

because of the absence of any requirement for the marking out of the boundaries of an

exploration licence on the ground which I have already noted. It is a matter which,

with all respect, may well deserve the attention of the authorities responsible for the

administration of the Act and Regulations so that a form of licence which serves the

evident purpose of the legislation could be adequately devised."

108. As a consequence of the comments by Commissioner Heenan QC it

appears that the form of Instrument of Licence prescribed under the

regulations for an exploration licence was amended to provide for the

endorsement of the description of the land granted by the Hon. Minister.

Although the amendments to the form of the Instrument of Licence for an

exploration licence in the Consolidated case may well have made

provision for the description of the land granted by the Hon. Minister it

would seem a similar problem now exists with the grants of a mining

lease in that no written description of the land that comprises the Lease

was provided in the Written Notification pursuant to s. 79 of the Act.

109. A similar issues appears to currently exist in that various Instruments of

Licence or Lease do not provide a sufficient written description of the

land so granted for various mining tenements including Miscellaneous

Licence (Form 11), General Purpose Lease (Form 10), Retention Licence

(Form 7) and Prospecting Licence (Form 4).

110. In following the words of Commissioner Heenan QC in the Consolidated

case it is remarkable the Written Notification forwarded to Murchison

informing it of the grant of the Lease pursuant to s. 79 of the Act provided

no description of the land granted by the Hon. Minister. It is also

remarkable that no mining survey of the boundaries of the Lease has

occurred in the 7 years since grant of the Lease and that such mining

survey is effectively left in the hands of the holder of the Lease to

conduct. It is also remarkable the issue the Instrument of Lease that will

definitively describe by law for the first time the land that comprises the

Lease granted by the Hon. Minister in November 2005 may not issue to

[2012] WAMW 13


the Mr Pawson unless he requests that issue occur. In those circumstances,

it is the case that it is possible that no Instrument of Lease will ever issue

to Mr Pawson informing him of the precise written description of the land

so granted by the Hon. Minister that comprises the Lease.

111. What appears to be of even more concern in the circumstances of this case

is the holder of the Lease, some 7 years after grant of the Lease, is still

none the wiser as to the written description of the land granted to him by

the Hon. Minister and is now embroiled in a battle with the DMP to

determine the same.

112. Commissioner Heenan QC in the Consolidated case identified the

exploration licence the subject of dispute in that case constituted an

interest in land being a licence coupled with a grant in the nature of a

profit a prendre′ that allowed the removal of a fixed quantum of ore for

sampling and testing. In my opinion, the view expressed by

Commissioner Heenan QC is not inconsistent with the grant of a mining

lease in that it also allows the mining and removal of ore, with no limit,

and should be regarded as a statutory lease conferring rights to perform

activities on the land. That conclusion as noted by Commissioner Heenan

QC is sufficient to identify the Lease as an instrument granting rights over

land in which any dispute arises as to the parcels or boundaries shall be

construed like any other comparable instrument or deed.

113. In those circumstances, Commissioner Heenan QC went on to say in the

Consolidated Case at page 217 the following:

“It is clearly the case that this instrument of exploration licence by itself fails to

identify the area of land which is the subject of the licence. It is therefore necessary to

identify the subject area by extrinsic evidence as was done in this case if only by

reference to the original application rather than to the map. It is always open to have

regard to extrinsic evidence to construe a document of title, grant, or licence, not alter

or interpret the document but to identify the subject matter; Eastwood v Ashton [1915]

AC 900, per Lord Parker of Waddington, at 909; Mitchell v Keogh [1934] VLR 48;

Scarfe v Adams [1981] 1 All ER 843; and Wiggington and Milner Ltd v Winster

Engineering Co Ltd [1978] 1 WLR 1462. Hence, one may ask, if the instrument of

licence is inadequate to determine the subject matter and one can therefore search for

evidence of the subject matter elsewhere and so consider the form of application

originally submitted by the licensee, why is the other contemporary document, itself

also a statutory essential, not equally relevant. As previously emphasised, one is

construing not the application but the resulting licence and each of the application

form and the map is a piece of secondary evidence of the subject matter of the crucial

instrument."

[2012] WAMW 13


114. In adopting the reasoning by Commissioner Heenan QC it can construed

by reference to the Written Notification pursuant to s. 79 of the Act the

Lease granted by the Hon. Minister on 24 November 2005 comprises the

land described in the Form 21, being the Application for M 20/455 as

described in Section 74(4) of the Act, it being the land “.. by reference to a

written description of the area of land in respect of which the lease is sought, and be

accompanied by a map on which are clearly delineated the boundaries of that area."

115. Murchison also lodged with the Mining Registrar at Mt Magnet, on 10

April 2001, a map that delineates the boundaries of the application for the

Lease described, in this case, from a prominent ground feature as shown

on the public plans of the Department, being Berring Bore, pursuant to r.

66(b) of the Regulations. The boundaries of the area of the Lease applied

for in the application from Berring Bore to the datum point then follows a

shape consistent with the prescribed rectangular shape in apparent

conformity with the Act and Regulations.

116. In reaching that conclusion, I also adopt the comments of Warden Calder

in the Westdeen case that the grant by the Hon. Minister is “based upon the

application and the application, in the form of Form 21, containing a description of

the land (and containing the only description) which is before the Registrar or the

Warden or the Minister as the case may be for the purposes of the grant being made.”

117. It is also noted that various sections of the Act relevant to grant or

application for a mining lease make no reference to “the ground marked

out” when describing requirements for the survey of mining leases

pursuant to s. 80 of the Act, when describing the necessary written

notification of approval of the application for the mining lease pursuant to

s. 79 of the Act or when describing the requirements that the grant of the

mining lease is subject to survey to determine the land was available for

the purposes of grant pursuant to s. 105B of the Act. This same

observation was also made by Warden Calder in the Westdeen case.

118. Accordingly, I find the land granted by the Hon. Minister that comprises

the Lease in the Written Notification is the land described as follows:

“Locality: Karbar


then 250 m @ 300˚,

then 400 m @ 30˚

then 250 m @ 120˚


[2012] WAMW 13


119. The provisions of r. 120(1) (a) & (2) of the Regulations, in my opinion,

fail to adequately reflect the manner in which a mining survey is to be

conducted after the grant of a mining tenement by the Hon. Minister,

warden or a mining registrar as it ignores the effect s. 116(2) of the Act

has on curing any informalities or irregularities in the application for the

mining tenement.

120. Accordingly, the provisions of r. 120(1)(a) and (2) of the Regulations are

repugnant to the power of the Act to conduct a mining survey of a mining

tenement after grant. Repugnancy is a concept that suggests power exists

under the empowering Act to make a regulation such as that contained in

r. 120(1)(a) & (2) of the Regulation but the regulation itself contradicts

the power of the Act. That is to be contrasted with a regulation that is

ultra vires, or beyond the powers contained within the Act. (see:

“Delegated Legislation in Australia” 3rd

Edition by Pearce and

Argument, Lexus Nexus Butterworths).

121. Section 80 and s. 105B of the Act contemplates the prescription of a

regulation to carry out a mining survey after grant of a mining lease.

Section 116(2) of the Act contemplates that, except in the case of fraud,

the grant of a mining tenement shall not be impeached or defeasible by

informality or irregularity in an application for a mining tenement or in

proceedings previous to the grant of a mining tenement. Section 162(ka)

of the Act provides for the making of regulations that deal with the

manner in which a mining survey is to be conducted. In my opinion, the

provisions of r. 120(1)(a) & (2) of the Regulations contradict the

provisions of s. 116(2) of the Act by requiring a mining survey to be

conducted in a manner that challenges the exercise of the power of the

Hon. Minister, warden and mining registrar contained within the Act by

again agitating the manner in which the marking out of the application for

the mining tenement occurred.

122. That is well demonstrated by the evidence of Mr Watt as to the manner in

which he conducted the mining survey and the submissions by the

Objector in this matter. The conduct of the mining survey of the Lease in

accordance with the provisions of r. 120(1) and (2) of the Regulations by

Mr Watt had the effect of re-arguing the location of the boundaries of the

Lease by reference to the marking out by not only Mr Telfer but also that

of Horizon in its application for P 20/1866. In doing so, the Objection

lodged by Mr Pawson to the mining survey raises the very issues that

were determined in Bear-Ring Bore GM v Horizon Mining Ltd (supra)

that ultimately resulted in the grant of the Lease by the Hon. Minister.

[2012] WAMW 13


123. The very intention and purpose of the provision of s. 116(2) of the Act is

defeated, in my opinion, if a mining survey is conducted in accordance

with the provisions of r. 120(1) and (2) of the Regulations as it, in this

case, raises past issues that are otherwise resolved by the grant of the

Lease by the Hon. Minister. It is for that reason the provisions of r.

120(1)(a) and (2) of the Regulations are repugnant to a mining survey

conducted after grant of the Lease.

In my opinion, to cure that issue requires a further mining survey to be

conducted in strict compliance with the land granted by the Hon. Minister

on 24 November 2005, that is, in accordance with the written description

of the land contained within the application for the Lease as noted

previously.

124. The approved surveyor conducting the further mining survey of the Lease

should also be provided with the written description of any granted

adjoining mining tenements in priority to the Lease that may be affected

by the survey for the purposes of s. 105B of the Act and r. 120(3) of the

Regulations.

125. In conducting the further mining survey of the Lease, the DMP should not

provide to the approved surveyor any pre-determined GPS co-ordinates

the DMP may hold as to its opinion of the location of the datum point or

any corners of the Lease. That is so because the mining survey conducted

on the Lease in 2011 made no reference to Berring Bore nor was it visited

by Mr Watt before commencing the survey. The written description of the

boundaries of the Lease granted by the Hon. Minister is not referenced by

GPS co-ordinates, rather the description of the boundaries of the Lease are

referenced by compass degrees. The starting point for the further mining

survey must be Berring Bore.

126. Further, there is also some doubt as to the accuracy of the plotting of the

location of Berring Bore on the DMP Tengraph mapping system. (see:

transcript pages 59 line 40 & page 62 line 13). Accordingly, calculations

of GPS co-ordinates from that location that have not been verified by

attendance at Berring Bore must be considered to be inaccurate. The GPS

co-ordinates that were previously provided by DMP to Mr Watt for the

conduct of the mining survey of the Lease in 2011 appear to be those

lodged by Horizon in its application for P 20/1899. Application for P

20/1899 was neither granted nor surveyed in the past. The relevance of

any marking out, whether on the ground or by any other source by

Horizon in respect to application for P 20/1899 is irrelevant to the further

mining survey of the Lease. However, having conducted the further

[2012] WAMW 13


mining survey in accordance with the written description of the land that

comprises the grant of the Lease, it would be prudent for the approved

surveyor to take and record the GPS co-ordinates for future reference.

127. I am of the same opinion as that of Warden Calder in the Westdeen case

that in proceedings involving the hearing of objections to a mining survey

the role of the warden is to act as a “filtering process” in a similar manner

to other proceeding in which matters that may be relevant to the final

decision of the Hon. Minister can be aired, argued and tested in the public

forum of a hearing before the matter is then forwarded to the Hon.

Minister for his or her final decision.

128. Given the absence of any express limitation in the legislation as to the

nature of the recommendation the warden may make to the Hon. Minister

it is appropriate for the warden to comment on the matters raised by the

parties to the proceeding.

Recommendation to the Hon. Minster

129. It is my recommendation that the Hon. Minister reject the mining survey

of M 20/455 conducted by Mr Watt in 2011.

130. I further recommend an approved surveyor, not being Mr Watt, be

appointed by the Director of Mineral Titles Division of DMP to conduct a

further mining survey of all of the corners and boundaries of granted

Mining Lease 20/455 without reference to any post, pegs, trenches, rows

of stones previously used in any other mining surveys or in marking of M

20/455 with such mining survey to be based wholly on the written

description of the application for Mining Lease 20/455 as granted by the

Hon. Minister on 24 November 2005 being:

“Locality: Karbar


then 250 m @ 300˚,

then 400 m @ 30˚

then 250 m @ 120˚


but subject to excision of any encroachment upon any other mining

tenements having priority in application or grant over Mining Lease

20/455 or upon any ground which was not otherwise available for mining

at the time of the original grant.

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131. I further recommend that Mr Pawson be present during the conduct of the

further mining survey of Mining Lease 20/455.

132. I also recommend that following the further mining survey the Instrument

of Lease including a written description of the land surveyed by the

approved surveyor that comprises Mining Lease 20/455 be issued to Mr

Pawson.

133. I further recommend that if it becomes necessary for the Hon. Minister or

an officer of DMP to determine who should bear the cost of the further

mining survey, that it should be borne in mind that the original mining

survey in 2011 was not conducted by reference to Berring Bore or to the

written description of the grant of the Mining Lease by the Hon. Minister.

[2012] WAMW 13 - dmp.wa.gov.au · Pawson v Dir. Gen. Dept. Mines & Petroleum [2012] WAMW 13 Page 6...

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Transcript of [2012] WAMW 13 - dmp.wa.gov.au · Pawson v Dir. Gen. Dept. Mines & Petroleum [2012] WAMW 13 Page 6...