Warden A Hills-Wright handed down an interesting decision recently about Torian Resources Ltd’s ninja midnight pegging.

Below is a link to the Warden’s

http://brandsauthority.com/warden-rules-torians-ninja-crew-raid-invalid/

http://www.dmp.wa.gov.au/Documents/Wardens-Court/2018WAMW16.pdf

In summary, Torian applied for Prospecting Licences over an area where several Prospecting Licences were to expire at midnight 8 July 2016. The proposed Prospecting Licences only required a single datum peg (as opposed to a peg on each corner) as a previous tenement had been surveyed over the exact same area.

Mr Stehn (Torian’s tenement pegging agent) prepared the Form 20s (which is required documentation to be affixed to the datum peg) for the proposed Prospecting Licences the previous afternoon and wrote the time of pegging on the Form 20’s. It showed the pegging half a second past midnight. Torian had three crews at three different locations for separate P applications.

At one of locations, at midnight, one of the crew videoed a GPS showing the location and time and Mr Stehn driving in the datum peg and affixing the Form 20 that showed it was pegged 1 second past midnight.

On the opposite corner of the prospecting licence applications, Kalgoorlie Ore Treatment Company Pty Ltd (KOTC) pegged prospecting licences over the identical area in a time of 3 seconds. KOTC lodged an objection to Torian’s application.

Mr Stehn, an experienced pegger was used as a witness in the case and Warden regarded him as a honest and reliable witness.

They Warden dismissed Torian’s applications on two grounds:

1. The half second period of time between the time on the Form20 and the time the peg was driven into the ground was regarded as inaccurate. There was also a lack of close temporal connection between driving in the peg and putting the time on the Form 20.
2. He said the onus was on Torian to provide evidence that they pegged the P in compliance with the Mining Act.

On the other 2 datum points Torian did not provide evidence, though they had videos. The videos and other witnesses (other than Mr Stehn) were not tendered.

One has to ask, has logic flown out the window of the Warden’s court, when:

1. a half second discrepancy in the time on the Form 20 to the time the peg is driven in invalidates the application;
2. preparing a Form 20, 6 hours before invalidates the application;
3. not videoing your actions at the time of pegging invalidates the application; and
4. the onus of proof is reversed so the Applicant has to show compliance, rather than the Objector show non-compliance.

KOTC pegged in 3 seconds, presumably in the same manner and their applications are still valid because no objection was lodged against their applications.

What can we learn from this case when pegging Prospecting Licences competitively, so they remain valid on close inspection by a warden. You will need to provide evidence that you peg where and when you did, remembering that anyone can lodge an objection and the applicant has the onus of proof to prove they complied with the Mining Act. Suggested actions:

1. Sign, date and the time on the Form 20 at the time of affixing it to the Datum peg;
2. Retain your GPS tracking file;
3. Use two people to peg ensuring that one is very reputable;
4. Document the actions of pegging eg video or camera;
5. If by video, use a very bright light, give a narration of the peggers actions, showing the ground (showing no preparation), location on the GPS, the time and the peg and then the document the actual pegging;
6. Have the pegging agent and the witness write and sign statutory declaration of their actions that may be tendered in court as soon as the pegging is completed; and
7. If there is a competitive the tenement lodged, always lodge an objection to the other tenement.

Good luck with future pegging.