Objections on Public Interest Grounds

Introduction:

The recent interlocutory hearing decision delivered by Warden Cleary in the Australian Vanadium v Cousens [2024] WAMW 2 (Cousens Case) has brought attention to objections raised by Mr. and Mrs. Cousens against Australian Vanadium Ltd’s Miscellaneous Licence Application 51/119. This application aims to establish a bore field and associated infrastructure for water extraction from the Camel Well paleochannel on the Hillview pastoral lease to supply their mining operations. The Cousins cited several concerns, including the encroachment on their pastoral lease, potential adverse impacts on pastoral infrastructure, non-compliance with relevant legislation and for public interest grounds.

Objections on Public Interest Grounds:

Public interest objections have a longstanding history, dating back to the 1994 Serpentine Jarrahdale case. The Telupac Holdings Pty Ltd v Hoyer [2022] WAMW 26 (Telupac Case), referenced by Warden Cleary, clarified the circumstances under which public interest objections are applicable. According to this case law, if no other legislation governs the applicant’s land use or if license conditions do not sufficiently address the land’s comprehensive use, public interest objections should be heard by the Warden. In the Cousen case the Warden allowed the Objection to continue on public interest grounds, but dismissed all the other grounds.

The Warden’s Role and Recent Trends:

Warden Cleary emphasized the administrative nature of the Warden’s role when recommending or refusing license grants to the Minister, highlighting the lack of a judicial obligation. The increasing number of objections, as evidenced by DMIRS’ statistics, reveals a growing trend. Over the past two years, objections have surged from 1500 to 4000 per year, with 4194 still pending processing.

DMIRS Consultation Paper Statistics:

DMIRS’ Consultation Paper on “Fee for Objections under the Mining Act 1978” offers insightful statistics regarding objection origins. Over a two-month period in April and May 2022, 350 objections were categorized as follows:

“56% lodged by companies or individuals connected to the mining industry.

21% from individuals not directly affiliated with mining.

12% from pastoral lessees.

8% from native title parties.

3% from other organizations, including NGOs and LGAs.”

LandTracker Statistical Analysis:

The statistical analysis conducted through LandTracker software has unearthed significant insights into the patterns of objections within the mining sector over the last two years. Out of a total of 8730 current tenements applied for, 2760 received objections, resulting in a cumulative count of 7066 objections. This data underscores the dynamic nature of objections, offering a nuanced understanding of their prevalence and distribution across various mining tenements.

An intriguing facet revealed by LandTracker is the identification of statistical outliers, particularly in the Albany district. Notable instances include E70/65/77 receiving 70 objections, E70/6409 with 37 objections, E70/6408 attracting 29 objections, and E70/6573 gathering 70 objections. This regional disparity highlights the need for a more detailed examination of objection dynamics in specific areas, potentially guiding targeted regulatory interventions.

The LandTracker analysis not only provides a quantitative overview but also assists in identifying potential trends or anomalies. Recognizing the specific tenements and regions prone to heightened objection activity becomes a crucial element in formulating targeted regulatory responses that address the unique challenges posed by these areas.

This empirical evidence, drawn from LandTracker’s comprehensive data analysis capabilities, offers an invaluable resource for stakeholders. Regulatory bodies, mining companies, and researchers can leverage this information to make informed decisions, devise region-specific strategies, and foster a more responsive regulatory framework.

Apart from objections based on public interest grounds, companies primarily submit objections for the following reasons:

• Mitigate Liability: Companies seek to reduce their liability by other parties waiving liability.
• Retain Ownership Rights: Objecting allows companies to uphold their rights to the land in question.
• Prevent Interference: Companies object to prevent other license holders from interfering with their established rights and operations.
• Ensure Health and Safety Compliance: Objecting serves as a mechanism to guarantee that no health and safety issues arise in connection with their operations.

Incorporating these and other considerations into the Mining Act would not only streamline processes, saving both time and money for the government, but it would also result in substantial cost savings for companies. The inclusion of these provisions would eliminate the need for extensive legal consultations and the drafting of access agreements.

Considering that the Warden currently functions solely in an administrative capacity during objection reviews, elevating this process to a judicial right would bring about several advantages. Judicial review would enable the application of rules of evidence, thereby raising the standards for objectors. This heightened scrutiny ensures a more robust and fair evaluation process.

Lastly, eliminating objections on public interest grounds, which currently permits anyone to object. As Warden Cleary has noted, the Wardens Court may not be the appropriate forum for public interest concerns. Redirecting such matters to other governmental bodies, such as the EPA, would provide a more suitable avenue for addressing broader environmental and community issues.

Conclusion:

In light of the statistical trends, this article advocates for regulatory refinements to foster a more efficient and equitable objection process. By implementing these refinements, we can strike a balance between protecting public interests and maintaining the vitality of the mining industry.

A couple of courses coming up next month

Practical Tenement Management 7th and 8th March

Environmental Essentials course on the 21^st and 22^nd March.

View our other courses throughout the year.