Forrest v O’Sullivan 

7 Jan 2021

Forrest v O’Sullivan 

Marking out tenure is an exacting process and there is more Warden Court hearing about marking out prospecting licences than anything else. The recent Supreme Court case of Forrest & Forrest v O’Sullivan [2020] WASC 468 is another. However, this one has a number of administrative implications regarding the Wardens Court.

To provide some background; Quarry Park is a sand miner in the Ashburton River and in 2013 marked out the Prospecting Licences 08/737 and 738 (shown in the image) adjacent to its operations on Minderoo pastoral lease that is leased by Andrew Forrest the Chairman of Fortescue Mining.

Mr Forrest has mounted several legal challenges against different companies applying for mining tenements over his pastoral leases.

The most contentious of these legal challenges was the Forrest and Forrest v Wilson (High Court case) where Yarri Mining failed to lodge a mineralisation report at the same time as lodging the mining lease application. The High Court deemed the application invalid, meaning that it also invalidated in excess of 200 mining leases across WA, including a number of Fortescue Mining’s mining leases. This resulted in Fortescue incurring costs application cost in excess of $1M to apply for new mining lease.  These mining leases are still invalid to this day as DMIRS have not validated them with legislation because of the Native Title implications to the leases.

Anyway, back to our story. When marking out a prospecting licence, under r59(1)(b) of the Mining Regulations one must place a 1 metre post on each corner of the tenement and cut two clearly identifiable trenches at least 1 metre long from the posts in the direction of the boundary.

When marking out their Prospecting Licences, Quarry Park Pty Ltd failed to start the 1 metre trenches or line of stones from the corner pegs, instead they commenced them between 25cm to 95cm away from the corner pegs.

The Warden judged that Quarry Park’s marking of the prospecting licences was fatal to the prospecting licence applications and duly refused them.

Quarry Park then appealed to the Minister to grant the prospecting licences, despite the non-compliance.

Forrest then appealed to the Supreme Court stating that the Warden had no jurisdiction to hear the case and as such the matter could not be referred to the Minister.  They stated compliant marking in the prescribed manner is an essential preliminary for making a valid application and for the Warden to have jurisdiction to hear the matter.

Now you may be asking yourself “What about all those Warden hearings rejecting prospecting applications? Surely the Supreme Court will throw this one out?”. Not a chance. Clearly, they are in their own little bubble and chose to hand down a most problematic decision by stating that the Warden has no jurisdiction to hear the case.

You may also ask yourself “How did the Supreme Court arrive at such a decision?”

Judge Tootle who heard the case followed the decision of the High Court in Forrest and Forrest v Wilson that stated marking out a tenement was

both precise and prescriptive, conveying an intention not to countenance any degree of non- compliance”.

This statement was applied to marking out a mining lease application. Tootle J did not distinguish this statement from marking out a prospecting licence, as the Warden did.  As such, compliance with marking out a prospecting licence was deemed a precondition to making a valid application. The application has to exist before the Warden has jurisdiction.

Leading on from this, the Minister only has jurisdiction to rectify a non-compliant application if the Warden has jurisdiction in the first instance.

Tootle J said that marking out plays an important role as it identifies the land, provides notice of the application and the right of priority to competing applications, and as such is an essential preliminary in the application process.  Compliance is thus a jurisdictional requirement.

Tootle J also stated the objectives of the Mining Act are advanced by maintaining markings out in the specified manner, considering it essential to the Warden’s jurisdiction:

  1. promoting certainty, by removing an appeal to the Minister and any reward for non-compliance;
  2. ensuring that there is no additional burden imposed by the strict compliance; and
  3. avoiding delay with the contested hearing of an objection.

He did accept that the Supreme Court would require to hear the cases instead of the Warden’s Court, but didn’t think it was a major factor.

This logic of this decision is disingenuous because the whole point of Warden Court is to relieve the higher courts of the legal burden and not involve themselves in the hearing of routine evidence that could be deemed a waste of judiciary resources. I also do not think that Tootle J is aware of the number of disputes there are over pegging and marking out prospecting licences.

Tootle J went onto say that an administrative body has the power to hear whether a matter is within its own jurisdiction. So, a Warden could determine if a prospecting licence application was correctly marked out and choose to dispose of the application, unless there was an appeal to the Supreme Court.

What does this mean going forward? I believe that it may have  a few implications.

  1. The accuracy required for marking out a tenement is now very precise. For example, where the legislation states the “post projecting at least 1m above the ground” no allowance can now be given for a post that is even millimetres too short.
  2. When marking out, it is now worth keeping evidence every time you put a post in and dig a trench, in the event you are required to provide said evidence to the Warden and subsequently the Supreme Court.
  3. If a mistake is made on the Form 20 (which is attached to the post) the entire application may be invalidated.
  4. The Supreme Court will be inundated with appeals from all the Objections that the Warden now has no jurisdiction to hear.
  5. The objection hearing goes from a relatively informal hearing to a quite formal hearing by which the parties require representation by a QC. This is a very expensive exercise.
  6. When a person or entity objects to an E, P, M, or L application for encroachment of tenure the Warden will be required to ascertain if there is jurisdiction to hear the case, by determining if it was a validly marked out.

Considering the above implications, the Government should appeal this decision to achieve a more rational judgement and could save time and money rewriting the legislation.

If you don’t want to suffer the same fate as Mr O’Sullivan educate yourself or your team about mining, environmental and/or heritage compliance, to be better prepared to manage adverse tenure situations, consider attending LandTrack Systems series of courses:

Practical Tenement Management

Advanced Tenement Management

Environment Essentials

Navigating Exploration Agreements

LandTrack Systems also has a tenement/agreement/environment management system that is indispensable in assisting management tracking situations like those outlined in this article.