Section 19 Mining Act and Blue Ribbon Case
From a recent inquiry regarding Sections 19 and s24 of the Mining Act 1978, we suggest the following information would be useful to the industry, considering the Supreme Court’s comments on s19.
Under Section 19 of the Mining Act (1978), the Minister or their delegate possesses the authority to grant exemptions for specific areas of land from mining activities or from particular provisions outlined in the Mining Act. It’s important to note that s19 exemptions require Ministerial approval and publication in the Government Gazette. These exemptions are not applicable to private land or land under existing mining tenements.
The primary objective of s19 is to allocate a 24-month window for interested parties to arrange for the reservation or leasing of the designated area. However, exemptions can also be granted for other valid reasons, provided that the Minister or their delegate deems it necessary. Furthermore, the Minister or delegate can modify, cancel, or extend the duration of a s19 exemption for up to two years at a time, a practice commonly employed. Any changes to s19 exemptions must be documented in the Government Gazette.
It’s worth noting that s19 exemptions created before October 14, 1995, had no set expiration date and could only be revoked by the Minister.
Sections 24, 24A, and 25 of the Mining Act 1978
Also, sections 24, 24A, and 25 of the Mining Act 1978 pertain to various types of reserved land. These sections stipulate that mining activities, encompassing fossicking, prospecting, mineral exploration, and mining operations, require prior written consent from the Minister responsible for the Mining Act. This consent can only be granted following consultations with the relevant Minister and vested authority. In specific cases such as national parks, class ‘A’ conservation reserves, state forests in the South West, marine nature reserves, and marine parks, the responsible Minister must also provide concurrence.
In practice, when evaluating mineral tenure applications, the DMIRS often imposes a “no mining” condition for areas affected by reserved lands, provided that these lands account for 50% or less of the total area applied for, and the applicant has not expressly requested exploration or prospecting rights in these areas. If the encroachment onto reserved lands exceeds 50%, referrals under sections 24 and 25 are made before the application is processed.
In the case of Aboriginal reserves, a “no mining” condition is imposed on any encroachment, and an entry permit under the Aboriginal Affairs Planning Authority Act 1972 is necessary before consent can be granted for mining.
If, at a later date, the mining tenure holder requests permission to mine on reserved lands (i.e., removal of the “no mining” condition after granting), sufficient time should be allocated for referrals to the responsible Ministers. The timeline for these referrals depends on factors such as the type of reserve land affected, expected justifications, and constraints faced by the responsible Ministers.
The adoption of the “no mining” condition in these circumstances serves several purposes, including expediting title grants, facilitating exploration on non-reserved lands within the title, and allowing for referrals under sections 24, 24A, and 25 to be conducted while exploration occurs on the remainder of the title. Nevertheless, it may raise concerns among the public regarding the accessibility of reserves for mineral exploration.
The Blue Ribbon Case (Blue Ribbons Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd and ORS  WAMW)
The Blue Ribbon Case involved an exploration license application by Blue Ribbons Mines Pty Ltd in the Hamersley Ranges. Objections were raised by Roy Hill, FMG, and BHP entities, citing encroachments on critical infrastructure such as railways and roads. To address these objections, Blue Ribbon and the objectors proposed programming orders to the Minister, suggesting the grant of the exploration license with specific excisions from the licensed area and bespoke conditions aimed at preserving the objectors’ interests.
However, questions emerged concerning the Minister’s authority to grant the exploration license under these terms. These questions were ultimately referred to the Supreme Court. In the subsequent Blue Ribbon Decision (Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd  WASC 362), Chief Justice Quinlan addressed these fundamental questions of law.
MinterEllison summarized The Blue Ribbon decision, which clarified the following points:
- The Minister does not have the power to grant an exploration licence over part of a block by reason of there being a miscellaneous licence over the remainder of the block.
- The Minister does not have the power to grant an exploration licence over part of a block by reason of the remainder of the block being private land.
- The Minister does have the power to impose conditions which prohibit mining or exploration activities (i.e. no mining conditions) upon the grant of an exploration licence in respect of any area overlapping a miscellaneous licence or private land, or areas adjacent to the overlapping areas.
The Minister does have the power to impose conditions which:
- prohibit certain actions unless there is consultation or consent is obtained from the Minister or other parties, including where any consent is to be provided as part of a consultation process; or
- require the applicant to comply with conditions imposed in the future by the Minister.
In the Blue Ribbon Case, certain provisions were identified by the objectors, particularly s19 of the Mining Act, as an aside to legal analysis. Section 19 stipulates that the Minister has the authority, through a written instrument, to exempt land from mining activities or specified mining purposes. Notably, this exemption power does not extend to private land or land covered by existing mining tenements or pending applications.
The objectors cited instances where s19 had been employed, such as exempting land within national parks from certain sections of the Mining Act. They argued that if land subject to such an exemption overlapped with part of a larger block, an exploration license might be issued for the remaining portion of that block.
It’s essential to note that there was no indication that the land under consideration in the Blue Ribbon’s application had been exempted under s19 of the Mining Act. Therefore, there was no need to determine whether, in such circumstances, an exploration license could be granted for part of a block (i.e., the portion not exempted).
Nevertheless, the Court explored the potential implications of Section 19(3) of the Mining Act. s19(3) is a general provision that is designed to apply in various ways to different situations. At a preliminary level, it was suggested that s19(3) might be interpreted to mean that land exempted under s19 is not subject to s57(2) of the Mining Act and related provisions that establish the block requirement. However, this potential interpretation did not undermine the Court’s overall conclusion, which was that, based on a proper construction of s57 of the Mining Act, the Minister could only grant an exploration license for an area comprising an entire block or blocks, unless an exception under the Act applied. In essence, this interpretation viewed any potential application of s19(3) as an exception to the general rule that exploration licenses should encompass whole blocks.
Notably, the Mining Amendment Bill 2022 was contingent on the outcome of the Blue Ribbon Case. Given the decision’s implications, the proposed amendment has been postponed for reevaluation, but has probably been shelved.
It’s essential to recognize that s19 of the Mining Act addresses land unavailability for exploration before mining tenement applications, primarily concerning areas not subject to mining tenements or applications. In cases akin to the Blue Ribbon Case, s19 might not be the most suitable mechanism to address the scenario.
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