True Fella Warden Decision

• Published date: 30 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Energy and Natural Resources, Mining, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Mr Jay Leary, Geoff Kerrigan and Annabel Beech

The recent decision coming out of the Warden's Court of Western Australia - True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19 (True Fella) - has attracted attention across the WA mining sector. We consider the decision to be an unhelpful and impractical extension of previous decisions which further demonstrates the need for continued action from the Department of Mines, Industry Regulation and Safety (DMIRS) and the Western Australian Government to ensure that security of title and the integrity of ownership under the Mining Act 1978 (WA) (Mining Act) is maintained.

Helpfully, the Minister for Mines has announced that DMIRS is examining the decision in True Fella and that the Western Australian Government will act to ensure certainty and security of tenure for proponents, following consultation with the Association of Mining and Exploration Companies (AMEC).

The decision of the Mining Warden in True Fella concerned competing applications for an exploration licence. In summary, the Warden held that first applicant's application was invalid on the basis that (amongst other things) details of expenditure, work programme and financial resources were only provided for a period of 12 months (and not covering the 5 year duration of an exploration licence). The Warden held the failure to include this information resulted in the application being invalid - with reference to the principles in High Court's decision in Forrest & Forrest v Wilson (Forrest & Forrest).¹

The case

On 15 October 2021, two graticular blocks in the Dundas mineral field became open for mining. On the same day, True Fella Pty Ltd applied for an exploration licence over the blocks. Minutes later, another application was made over the same blocks. Each party lodged an objection to the other's application on the basis that the application failed to comply with the Mining Act and regulations. The Warden's decision relates to the application for an exploration licence filed by True Fella Pty Ltd.

The Mining Act contains particular requirements for what an applicant must file when applying for an exploration licence. Section 58(1)(b) provides that the application must be accompanied by a statement which specifies (i) the proposed method of exploration of the area; (ii) the details of the programme of works; (iii) the estimated amount of money proposed to be expended on the exploration; and (iv) the technical and financial resources available to the applicant.

The application filed by True...