In our February 2024 blog, Review of Objections on Public Interest Grounds, we explored the Australian Vanadium v Cousens case, where public interest objections were allowed to proceed, highlighting concerns about land use and compliance. Warden Cleary’s decision emphasized the legitimacy of public interest objections when other regulations fall short.

Now, in the October 2024 case Australian Vanadium Limited v Darren Owen Cousens and Kim Leah Cousens [No 2], Warden McPhee expands on these issues, clarifying that public interest cannot always be used to block projects that are contingent on future events but aligned with both private and public benefits. This ruling reaffirms the balance between ensuring long-term project planning and safeguarding the public interest, building on the foundations laid by earlier cases.

Let’s delve into the latest decision and its implications for the mining industry.

In this case, Australian Vanadium Limited (AVL) applied for a miscellaneous licence over Crown land, primarily to conduct testing on an underground water resource essential for future mining operations. However, the Objectors (Darren Owen Cousens and Kim Leah Cousens) contested this on the grounds that the proposed future use of the land was contingent on uncertain future events. Their argument was rooted in the belief that such a grant would not serve the public interest, but rather a speculative commercial venture that may never materialise.

This dispute encapsulates a critical issue in resource management: when can a private entity’s request for land or resources be justified as being in the public interest?

The Public Interest: Not a Catch-All for Objections

One of the key arguments made by the Objectors was that a mining company should not be granted a licence for land or resources unless it can demonstrate clear, immediate public benefits. The claim was that AVL’s application, which included future potential use of water resources, was too uncertain and, therefore, not in the public interest. They believed the mining company should take an incremental approach—one step at a time—rather than seeking an all-encompassing licence based on speculative future needs.

However, Warden McPhee, in dismissing the objection, clarified that the public interest is not a blanket reason to reject applications simply because they involve contingent or future events. He noted, “The question then becomes an evidentiary one, with the applicant required to show on evidence what that planned definite course, directed to the accomplishment of a definite result, actually is.” In this case, AVL had provided sufficient evidence to show that the future exploitation of the water resource was directly connected to the development of its mining project​.

Warden McPhee further observed, “The fact that some of the purposes set out in the Applications cannot be immediately achieved, does not result in a conclusion that the grant is being sought to be used to land bank either, and is therefore not, properly considered, a public interest concern.” He reinforced that long-term projects often involve contingent plans, and this does not automatically negate public interest.

Can Private Interests Be Paraded as Public Interests?

A subtle but important point made in this case is the distinction between private commercial interests and public benefits. The Objectors implied that AVL’s interest in the water resource was purely private benefiting the company and not the public at large. This raises the question: When is a private company’s interest also in the public interest?

The mining industry plays a significant role in the economy, contributing to job creation, infrastructure development, and regional investment. A private company’s efforts to explore and develop a resource that can lead to a productive mining operation often intersects with broader public benefits. Therefore, it is difficult to draw a hard line between private interests and public benefits, especially in industries like mining where successful projects often contribute significantly to the public good.

Warden McPhee summed this up by stating, “There is ample evidence of what is intended. Thus the contingent events relied upon by the Objector to establish the public interest concern, are all explained coherently, as being steps in the process of the development of the Project.” In other words, the long-term planning by AVL was justified, as it aligned with both private and public interests.

Land Banking: A Legitimate Concern?

The Objectors also raised the issue of “land banking,” where a company could potentially lock up land without any immediate plans for development, which they argued would not be in the public interest. However, Warden McPhee rejected this claim, noting that the miscellaneous licence sought by AVL was in direct connection with their planned mining activities. While some parts of the project were contingent on future events, the company had a clear and coherent plan for the development of the water resource and its integration into their overall mining project.

Warden McPhee explained that “In my view, the notion that a Warden has to be satisfied that there will be (as distinct from a stated intent with supporting evidence to be) certain conduct upon a proposed miscellaneous licence into the future over the life of the licence (21 years), involves a prognostication exercise which is not supported by the Act, and in my view, wholly artificial.” This indicates that a long-term vision with contingent plans can still be within the scope of the law.

Conclusion: The Balance Between Private Rights and Public Interest

This case highlights the delicate balance between private and public interests in resource management. While it is crucial to ensure that land and resources are not granted purely for speculative purposes, it is equally important to recognize that long-term projects, particularly in mining, inherently involve stages of development that may include contingent plans.

Public interest objections must be carefully considered, but they cannot serve as a catch-all for rejecting projects that are well-planned and compliant with regulatory frameworks. The goal should be to ensure that private commercial ventures, like those of mining companies, are aligned with broader public benefits, a balance that was successfully maintained in the decision to grant AVL’s licence.

In short, the public interest cannot always be paraded as a shield against private interests—particularly when those private interests are deeply intertwined with economic growth and regional development.

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