FORREST & FORREST PTY LTD -v- WILSON [2015] WASC 181 (28 May 2015)

26 On 31 January 2014, the warden published his reasons and recommendation, containing the following result:

[R]ecommend to the Hon. Minister that applications by Yarri, Onslow and Quarry for M 478, M 479 and M 489 be granted subject to the imposition of the conditions contained within Annexure 1, attached, and subject to the imposition by the Hon Minister of any other conditions deemed appropriate pursuant to s 84 of the Act.

[R]ecommend to the Hon. Minister that application for G 78 by Yarri ... be granted subject to the following:

1. the imposition of the conditions contained within Annexure 1, attached, and the imposition by the Hon Minister of any other conditions deemed appropriate pursuant to s 84 of the Act,
2. the area of the grant not exceeding 10 hectares,

1. Yarri identifying the precise area it intends to develop and utilise within the 10 hectares, and,

1. the area of G 78 being used only for the purposes prescribed by s. 87(1) of the Act.

Subject to the grant by the Hon. Minister of the application by Quarry for M 489 ... grant to Quarry, for the purposes of a road and pipeline, application for L 70 comprising the land described within the Form 21 lodged by Quarry with the Mining Registrar at Karratha on 16 November 2011 and subject to the imposition of the conditions contained within Annexure 1, attached. (see [143] [145])

27 Annexure 1 contains 21 conditions. Many of them appear to be standard conditions.

28 In recommending that the Minister grant each of the mining leases applied for, the warden 'drew the attention' of the Minister to the following matters:

1. the tenement applicants had failed to serve notices on the owner or occupier of the land, and the holder of the pastoral lease, in accordance with s 74(3) and s 118 within the prescribed time, but did obtain an extension of time;
2. the tenement applicants failed to ensure that mineralisation reports accompanied the applications for the mining leases - reports were lodged 'some months after the applications' after requests by various staff at the Department of Mines and Petroleum;
3. Yarri Mining had failed to serve notice of the application for the general purpose lease in accordance with s 118 within the prescribed time, but obtained an extension of time ([125], [126], [129]).

29 The warden did not refer to another aspect of non-compliance: that the statement required under s 74(1)(ca)(ii) had not accompanied the applications. Except for M08/489, where the statement was provided late, Forrest disputes that such statements were provided at all.

30 The warden made his recommendation on the basis that the three lease applications were in respect of land which was the subject of an existing exploration licence. While that is correct for M08/478 and M08/479, it is common ground that M08/489 was not subject to an existing exploration licence, and the warden erred.

31 A large part of the reasons of the warden is devoted to the submission that he lacked jurisdiction. In particular, the warden considered the submission that the Act imposed requirements that were mandatory preconditions to the exercise of this jurisdiction, including that the documents referred to in s 74(1)(ca)(ii) 'accompany' the applications.

32 Forrest had also challenged the mineralisation reports lodged by the tenement applicants on the basis that the author was not a qualified person; that there was no evidence as to when the mineralisation reports for M08/478 and M08/479 were lodged with the Department; there is no clear evidence of the statement of the kind required by s 74(1)(ca)(ii) of the act accompanied the applications for M08/478 and M08/479; and the mineralisation report for M08/489 was not lodged by Quarry until 30 July 2012, approximately eight months after the application was lodged.

33 The warden determined that he had jurisdiction, relying in part on the fact that the tenement applicants made their applications as of right, as the holders of existing exploration licences in respect of the land: see reasons at [39] [40], [53], [62]. It is not necessary to consider the warden's reasons for that conclusion in detail, as he does not have the power under the Act to conclusively determine whether he has jurisdiction. But in considering the question, the warden made the following factual findings, at least by implication, and reported them to the Minister:

1. the mineralisation reports did not accompany the applications for a mining lease [59], [63] [64];
2. the mineralisation reports for M08/478 and M08/479 were prepared by a qualified person [66].

The warden made a jurisdictional error or alternatively erred in law in finding that he had jurisdiction to hear the applications for the three mining leases where a statement in accordance with s 74(1a) and a mineralisation report prepared by a qualified person as required by s 74(1)(ca)(ii) and s 74(7) did not accompany the mining lease applications at the time of lodgement, when on a proper construction of s 75(4a) the lodgement of that documentation with the application is a precondition to the exercise of the warden's jurisdiction.

34 Section 74 requires that the application be in the prescribed form, be accompanied by an amount of rent and the prescribed fee, and accompanied by the reports or statements specified in s 74(1)(ca). Subsection (4) requires that the application be accompanied by a map.

35 The warden found that mineralisation reports were only lodged some months after the application for each of the three mining leases M08/478, M08/479, and M08/489: [126]. He made no finding regarding when the tenement applicants provided the statements in accordance with s 74(1a), if at all.

36 The tenement applicants contended that, as a matter of ordinary language, once the required documents had been lodged the application is 'thereafter accompanied by' those documents. They submitted that the Act does not require that the application be accompanied by those documents at the time it is lodged, merely that at some time (presumably before a decision is made on it) the application is accompanied by them.

37 The requirement that the application 'be accompanied by' specified material can have the meaning contended by the tenement applicants. As in so many questions of construction, the answer involves making a choice between competing, feasible interpretations. For the following reasons, I do not believe that reading of the section advanced by the tenement applicants is the correct construction.

38 First, it does not fit with s 74(1AA), under which a mining proposal, instead of accompanying an application, may be lodged within a prescribed time afterwards and 'if so lodged, is to be treated for the purposes of this Division as a mining proposal that accompanied the application'. The construction advanced by the tenement applicants would reverse the apparent intent of s 74(1AA): instead of mitigating the requirement that a mining proposal accompany the application, the subsection would impose a time limit that applies only to a mining proposal.

39 Second, the proposed construction is inconsistent with the purpose of the Act identified in earlier decisions of this court. The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State: Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [70]. Section 74(1)(ca) discloses an intention that an application for a mining lease is to be made by a person who has either a mining proposal, or has a mineralisation report or a resources report and is now in a position to provide that information or make those predictions required by the s 74(1a) statement. The application requirements discourage those who would tie up land for which they have no current plans to mine.

40 This statutory purpose is also evidenced by the availability of a retention licence under pt IV div 2A to provide secure title for a limited time to those who have identified a mineral resource which cannot be mined for the time being: see Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [19] [23].

41 Third, the Act prescribes when the notice of the application must be given and requires that the material that accompanied the application be made publicly available. A person who wishes to object to the grant must lodge a notice of objection within the prescribed time. The right to object may be compromised if the material required to accompany the application is not available from the time the application is lodged.

42 Fourth, the mineralisation report is required for the purposes of s 74A. The application cannot proceed until the mining registrar or the warden has received the report under s 74A.

43 Forrest submits that some of the information was not only late, and in that sense did not accompany the application, but was not provided at all. The warden made no findings regarding whether or when the s 74(1a) statements were lodged. While he advised the Minister, in his report, of the applicants' failure to lodge their applications accompanied by the mineralisation reports, his report is silent on the other information required by s 74(1)(c)(ii).

44 Forrest accepts that there is some evidence that a s 74(1a) statement for M08/489 was lodged on 30 July 2012, but submits that there is no evidence that any statement was lodged for the other two mining lease applications.

45 The tenement applicants do not dispute that no separate statements were lodged, but submit that there are comments in the mineralisation reports that are sufficient to comply with s 74(1a). They refer to statements that river sand and shingle would be mined using a large mechanical excavator, and that material would be excavated by 'free dig' and either processed on site or transported to processing areas on the river bank. I do not accept that the mineralisation reports are sufficient compliance. First, s 74(1)(ca)(ii) requires a mineralisation report and a statement under s 74(1a). The two documents have different purposes: the statement required by s 74(1a) is about likely mining operations, not exploration results; the mineralisation report is the basis for the report of the Director, Geological Survey, under s 74A. Second, while there are comments in the mineralisation report that set out information about the most likely method of mining, the reports do not provide the information required by s 74(1a), (a) and (c).

46 Accordingly, for M08/478 and M08/479, the applications for mining licences were not, at the time of lodging or later, accompanied by the statement required by s 74(1a).

47 That finding must also affect the application for the general purpose lease, G08/78. Section 74, as modified by s 90(2), applies to the application for a general purpose lease. A statement in accordance with s 74(1a) did not accompany the application for a general purpose lease.

48 The critical issue is whether, on a proper construction of s 75(4a), the lodging of those documents to accompany the application is a precondition to there being an application for the purposes of the Act and thus to the exercise of the warden's jurisdiction. In my opinion, it is not.

49 First, where an objection to an application has been lodged and not withdrawn, the section expressly states two preconditions to the warden hearing the application: the warden has received a copy of the s 74A report, and that report states that there is significant mineralisation. The section does not state the consequence of failure to comply with s 74(1)(ca)(ii). It uses the expression 'accompanied by the documentation referred to in section 74(1)(ca)(ii)' in several places, in each case identifying an application that is not accompanied by a mining proposal (s 74(1)(ca)(i)) or by a resource report (s 74(1)(ca)(iii)), and for which there must be a report under s 74A before the matter can proceed. The use of the expression, in my opinion, is more consistent with it being descriptive of such an application, rather than prescribing a condition for the exercise of the warden's powers.

50 Second, where there is no objection, the mining registrar is to report to the Minister. The mining registrar's power to report is also conditioned by whether there is a report under s 74A. Otherwise, the mining registrar shall recommend the refusal of the mining lease if not satisfied that the applicant has complied in all respects with the provisions of the Act. Compliance with the Act is not a condition of the mining registrar making a report, but determines whether the mining registrar must recommend grant or refusal.

51 Third, s 75(6) expressly authorises the Minister to exercise the power to grant or refuse the mining lease irrespective of whether the applicant has complied in all respects with the provisions of the Act.

52 Fourth, s 116(2) provides that, except in the case of fraud, a mining tenement granted under the Act 'shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement'. Section 116 is particularly relevant in this case because, despite these proceedings being commenced, the Minister has granted the tenements sought in the application. I will return to that question later in these reasons, as it affects the relief that can be granted.

53 As a result, even though I am satisfied that the tenement applicants did not comply with s 74 and the information required by s 74(1)(ca)(ii) did not accompany the applications, I am satisfied that on the proper construction of the Act the warden had jurisdiction to hear the applications and report to the Minister. It follows that he did not err in law in finding that he had jurisdiction. I dismiss ground 1.

The warden made a jurisdictional error or alternatively erred in law in finding that he had jurisdiction to hear each application for Mining Lease M08/478 and M08/479 pursuant to s 75(4) of the Mining Act in circumstances where:

(a) the purported mineralisation report relied upon by Yarri in respect of the application for Mining Lease M08/478 and Onslow Resources in respect of application for Mining Lease M08/479 was not a mineralisation report as defined, in that it did not set out the details of exploration results from samples of those minerals, as required by s 74(1)(ca) and s 74(7) and did not comply with those sections;

(b) by reason of the matters in par (a) the Director, Geological Survey could not produce a report on significant mineralisation as required by s 74A(1) and if he did, then such a report was invalid;

(c) by reason of the matters in par (a) and/or (b) the warden did not receive a copy of a valid or complying report under s 74A in respect of the each of the applications for Mining Lease M08/478 and M08/479 and by virtue of s 75(4a) the warden was precluded from exercising jurisdiction under s 75(5).

54 The report under s 74A is given by the Director, Geological Survey, to the Minister. Section 75(4a) commands that the warden shall not hear the application unless the warden has received a copy of the s 74A report in relation to the application, and it states that there is significant mineralisation in, on or under the land to which the application relates. The power of the Minister, including under s 75(7), is also limited by whether there is a s 74A report.

55 The issue raised by Forrest is whether each report in fact provided by the Director, Geological Survey, is a valid s 74A report if the mineralisation report that accompanied the application does not comply with s 74(7).

56 The evidence before me includes three emails from the Acting Director, Geological Survey of Western Australia, addressed to the Director, Mineral Titles. Each states, in effect, that the contents of the mineralisation report fulfils the requirements of s 74(1)(ca)(ii). The emails in respect of the applications for M08/478 and M08/479 state that there is significant mineralisation of sand and gravel (aggregate) in, on or under the land to which the application relates. The email for M08/489 states there is significant mineralisation of limestone aggregate/rubble.

Mr Flint also provides in the same email the s 74A Report stating there is a mineralisation in or on the ground the subject of the applications ...

58 It is not possible, on the evidence before the court, to satisfactorily determine the material upon which the emails are based, as each is part of an email chain which refers to linked documents, each described as Departmental Use Only. Section 74A appears to contemplate something more than the email relied upon in this case. Further, I doubt whether it is within the function of the Director, Geological Survey, to confirm whether the mineralisation report meets the requirements of s 74(1)(ca)(ii). Neither of those matters was relied upon or fully argued, so I will say nothing more about them.

59 There are three documents in evidence which purport to be mineralisation reports.

60 First, there is a letter to the Mining Registrar, dated 26 July 2011, signed by Warren Slater in support of the applications by Yarri Mining and Quarry Park for M08/478 and M08/479 (affidavit of Mr Mizen, 241). Section 74(1)(ca)(ii) requires a mineralisation report prepared by a qualified person. Mr Slater states within his letter that he is qualified to make the statement and resource calculations in it. He is not, however, a member of a prescribed body and is not a qualified person as defined in s 74(7).

61 The tenement applicants also lodged two reports prepared by SLR Consulting Australia Pty Ltd: a report titled Mineralisation Report for a Mining Lease Application, Ashburton River Mining Lease North (008/47) Exploration Licence E08/1991, dated 28 July 2011. The land the subject of proposed mining lease M08/478 is within Exploration Licence E08/1991. The applicants lodged a further report titled Mineralisation Report for a Mining Lease Application, Ashburton River Mining Lease South (008/51) Exploration Licence E08/1728, dated 28 July 2011. The land the subject of proposed mining lease M08/479 lies within E08/1728. At least one of the authors of each report is a qualified person.

62 None of the documents which are put forward as mineralisation reports refers to exploration 'on the ground' within the relevant tenement. Each of them says that the geology of the Ashburton River Sand and Shingle Project was assessed using the Geological Survey of Western Australia, and field observations recorded within tenements to the north and to the south. Each states that the 'full length of the Ashburton River resource' within the relevant exploration licence has not been assessed and will be dealt with as an inferred resource.

63 Forrest also challenges whether either of these documents is a mineralisation report, as defined, because neither set out details of analytical results obtained from samples of those minerals.

64 The tenement applicants submit that each of the SLR reports is a mineralisation report, because they sufficiently set out exploration results, in describing the deposits of sand and shingle, and do not require analytical results because the material to be mined is alluvial sand and shingle for construction purposes. They further submit that the matter which established the jurisdiction of the warden is the s 74A report. That was the only matter that had to be established before the warden could proceed to determine the application.

65 The s 74A report is central in the scheme of the Act where an applicant relies upon the documents described in s 74(1)(ca)(ii). A person is not entitled to lodge a notice of objection if the basis for the objection is that there is no significant mineralisation in, on or under the land to which the application relates: s 75(1a). Neither the mining registrar nor the warden can proceed unless the report has been provided and it states that there is significant mineralisation in, on or under the land to which the application relates. The Minister shall refuse to grant the mining lease if the s 74A report states that there is no significant mineralisation.

66 The provisions relating to s 74A reports were inserted by amendment in 2004. The effect of the amendments is to remove the question of whether the land applied for has significant mineralisation from the consideration of the warden or the minister, and leave that question entirely to the Director, Geological Survey.

67 The warden has no power to entertain any question of the validity of the report. The only questions for the warden were whether he had received a copy of the report that the Director, Geological Survey had given to the Minister under s 74A, and whether it states that there is significant mineralisation. He correctly answered those questions, and that is sufficient to establish his jurisdiction. If the validity of the report can be challenged, it is not in proceedings to review the decision of the warden.

The warden made a jurisdictional error or alternatively erred in law, in making a report recommending the grant of the mining lease applications and the application for the general lease, by failing to take into account relevant considerations, namely:

(a) the failure to comply with the requirement that a s 74(1a) statement must accompany each of the mining lease applications; and

(b) the failure by Yarri Mining to comply with the requirement that a mining proposal or a s 74(1a) statement accompany an application for a general purpose lease.

68 Judicial review on the ground of failure to have regard to relevant considerations is concerned essentially with whether the decision maker has properly applied the law, and not with the process of making the particular findings of fact upon which the decision maker acts: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [74]. Forrest expresses this ground as jurisdictional error, or in the alternative, error of law. It is well settled that failure to have regard to a relevant consideration is an error that goes to jurisdiction.

69 To make out this ground, Forrest must show that the warden was bound to take into account the failure of the tenement applicants to provide a s 74(1a) statement, and did not take it into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] [93]; A v Corruption and Crime Commissioner [2013] WASCA 288 [88]. Whether a consideration is one which the warden must take into account is to be determined by the construction of the Act. Some considerations may be expressly stated. Others may arise by implication from the subject matter, scope and purpose of the Act: A v Corruption and Crime Commissioner [89].

70 It is difficult to apply this ground where the function of the warden is not to decide, but to report; where the relevant non-compliance does not affect the jurisdiction of the warden to hear the application and the objection and make his report; and where the Minister may grant the licence despite failure of the applicant to comply with the Act.

71 The jurisdiction of the warden arises where an objection is lodged and not withdrawn. Otherwise the mining registrar has the function of reporting to the Minister. The report is required to include the notes of evidence (generally, now, a transcript) and the maps and other documents referred to, as well as the warden's recommendation. As Steytler J (Kennedy, White & Wheeler JJ agreeing) said in Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343:

... it is especially important to bear in mind that the Warden's function, so far as a mining lease is concerned, is that of assisting the Minister to make a decision about whether or not to grant the lease and, if so, on what conditions. The provision of such assistance from the Warden may or may not require a full hearing in respect of public interest matters and the extent of any such hearing so embarked upon will vary from case to case depending upon all of the prevailing considerations. It will, in each case, be open to the Warden to limit the scope of the inquiry should she or he consider that to be appropriate, leaving it to the parties to make fuller representations to the Minister himself or herself or, if that be appropriate, the Warden might, as I have said, make recommendations as to the impositions of conditions which would require those parties to make their respective representations elsewhere (365).

72 In this context, I am not satisfied that the Act makes the consideration and reporting of all non-compliance a condition of the validity of the warden's report. The report of the warden sufficiently identifies the issues raised by Forrest in its objection. It is not required to do more.

The warden made a jurisdictional error or alternatively erred in law in failing to give reasons why he was making a report recommending the grant of the applications notwithstanding those failures and that there was no evidence that a s 74(1a) statement was ever lodged for the applications for mining leases M08/478, M08/479 or the application for the general purpose lease.

73 I have already dealt with whether the warden had jurisdiction to hear the application and report, notwithstanding the defects in the applications.

74 The specific complaint in this ground is that the warden failed to give reasons why he was recommending the grant, notwithstanding those failures.

75 The warden was required by s 75(5) to give reasons for his recommendation. There is no statute of general application in Western Australia prescribing standards for the content or adequacy of written reasons: compare Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13; Acts Interpretation Act 1901 (Cth) s 25D.

76 When an administrative decisionmaker gives reasons, they are meant to inform. The warden was not, under s 75, the ultimate decision maker but had the function of reporting and recommending. His reasons must also be considered in the light of that function under s 75. In my opinion, they do not show jurisdictional error as alleged.

77 The warden may not have dealt with every argument that was put to him, but he stated clearly enough why he recommended the grant of the tenements. First, he had jurisdiction and was not obliged to recommend refusal of an application if the application had not complied in all respects with the Act. Second, the failure to comply in the lodging of the application and associated documents 'may have less influence' upon the decision of Minister whether to grant or refuse the application where the application for a mining lease is made by the holder of an exploration licence who has a right in priority for the grant of a mining lease or general purpose lease; [62]. Third, the power of the Minister was dependent upon the land being open for mining, an application for the grant of a lease, the s 74A report confirming mineralisation, and the receipt of a report from the warden or the mining registrar; [58]. Fourth, while the mining registrar was expressly required to recommend refusal where the applicant had failed to comply with the provisions of the Act (s 75(3)), the Act did not similarly restrict the warden. Providing the s 74A report was obtained and it stated that there is significant mineralisation in the ground, the failures by the applicants were matters for the warden to report to the Minister; [63].

78 I am also satisfied that the failure to draw attention to a failure to comply with s 74(1a) would not show that the warden misunderstood the case that was put by Forrest, as objector, or that he misunderstood what he was required to report. Any such error would not be jurisdictional.

79 Ground 3 contains the alternative that the 'failings' in the reasons amount to error of law, although an error within jurisdiction. The reasons, in the context of the function of the warden s 75, are sufficient to inform any reader of the report why the warden made the recommendation he did. That is what the Act requires.

80 Should I be wrong in this finding, I deal below with the consequences of a finding of nonjurisdictional error.

The warden made a jurisdictional error or alternatively erred in law in making a report recommending the grant of the mining lease applications:

(a) having failed to give proper, genuine and realistic consideration to environmental matters which were relevant considerations;

(b) by dealing with the environmental matters on the basis of an erroneous policy.

81 Under s 111A of the Act, the Minister may refuse an application where the Minister is satisfied on reasonable grounds that it is in the public interest. Public interest considerations include environmental grounds: see Re Calder; Ex parte Cable Sands (WA) Pty Ltd. Where the land is the subject of an existing exploration licence, the requirement in s 75(7) that the Minister grant the lease is 'subject to subsection (8) and the other provisions of this Act', and may impose terms and conditions as the minister considers reasonable: s 75(7)(e). The other provisions include s 111A.

82 An objector may raise public interest issues, including environmental grounds, by way of objection: Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [65] [68].

83 As I have said in relation to ground 2, judicial review on the ground of failure to have regard to relevant considerations is concerned essentially with whether the decision maker has properly applied the law. The statement of a decisionmaker's duty as to give 'proper, genuine and realistic' consideration to relevant considerations is found in several authorities: see for example, Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 [9]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [226], Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60]; but see A v Corruption and Crime Commissioner [92] (Martin CJ and Murphy JA). Other formulae have been used to convey the same obligation, for example, the duty of 'active intellectual engagement with the mandatory criteria': Mentink v Minister for Home Affairs [2013] FCAFC 113 [44]. Whatever formula is used, it cannot be used to justify impermissible merits review: see, for example, the discussion by Tobias JA in Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 [51] [60].

84 Forrest raised environmental issues by way of objection. The evidence before the warden included a report by Dr James Davies of JDA, consultant hydrologists. Dr Davies gave evidence. The report was commissioned by Forrest to assess the potential impacts associated with the proposed mining on the Ashburton River (affidavit of Mr Mizen, 747). The report and evidence of Dr Davies included statements to the effect that:

1. excessive removal of sand and gravel above the natural replenishment rate may distort the natural equilibrium of the river (affidavit of Mr Mizen, 758);
2. it is not possible to assess whether the proposed extraction rate of river sand exceeded the natural replenishment rate, and it is critical that such analysis be performed before excavation is allowed (affidavit of Mr Mizen, 758);
3. the sand mining proposals could have significant impacts on the morphology of the river, both upstream and downstream (ts 145).

85 Dr Mike Bamford, consulting ecologist, gave evidence and prepared a report on fauna investigations in connection with the mining proposal. Dr Bamford reported the main concern was habitat loss and degradation due to altered stream flow affecting stream bed geometry and the riparian woodland. His report made recommendations for the minimisation of impacts.

86 In his reasons for the recommendation, the warden referred to:

1. The concern expressed by Mr Clark, station manager at Minderoo, regarding the effects of mining river sand on erosion of the riverbanks, the capacity of the river to replenish, the effect of mining on the availability of water for cattle, and the effect of increased traffic flow; [111].
2. The reports of Dr Bamford and Dr Davies regarding the effects mining operation in the riverbed may have on the environment generally and the need for further reports and studies; [114].

87 The warden did not enter into any detailed consideration of the evidence, and made no reasoned findings on it, other than to conclude:

I do not accept upon the evidence presented in these proceedings that a conclusion can be reached [that] the mining proposed by Yarri, Quarry and Onslow within the riverbed of the Ashburton River and the associated infrastructure areas to support mining operations will result in significant impact upon the environment including water tables, surrounding woodlands, flora and fauna and erosion of riverbanks [122].

88 The warden did not give any reason why he reached this conclusion. It is, however, a limited finding. The warden does not find that there is or will be no significant impact. As the following paragraph shows, his finding is that the assessment will be made by the relevant officers of the department, who may requisition further information.

89 The substance of his reasoning in recommending the grant of the leases is that the effects of mining in rivers in the north of Western Australia will not be new to the officers within the department who are responsible for assessing and considering any application to mine. The reports prepared on behalf of the tenements applicants and on behalf of Forrest would provide a basis upon which officers of the department could assess the impacts of mining on the river bed for the purpose of creating conditions to protect the environment.

90 In recommending the grant subject to conditions, the warden included several conditions in Annexure 1 requiring approval for the satisfaction of environmental officers at the DMP. In particular:

1. The Lessee submitting a plan of proposed operations and measures to safeguard the environment to the Director, Environment, DMP for his assessment and written approval prior to commencing any developmental or productive mining or construction activity;
2. Any alteration or expansion of operations within the lease boundaries beyond that outlined in the above document(s) not commencing until a plan of operations and a programme to safeguard the environment are submitted to the Executive Director, Environment Division, DMP for his assessment and until his written approval to proceed has been obtained;

1. The development and operation of the project being carried out in such a manner so as to create the minimum practical disturbance to the existing vegetation and natural landforms, to the satisfaction of the Executive Director, Environment Division, DMP;

91 Were the warden required to make a finding on the environmental effect of the proposed mining operations, this approach would, in my opinion, fall short. But that is not what the warden is required to do by s 75. His approach must be considered against the nature of the warden's function in the context of other provisions in the Act.

92 First, the function of the warden is confined to reporting and recommending whether a lease should be granted, where the application is to be considered by the Minister under s 75(6) or (7).

93 Second, where the application is one accompanied by the documents under s 74(ca)(ii), there is not yet a mining proposal. By s 82A, if a lease is granted, it is deemed to be granted subject to a condition that before carrying out mining operations of a prescribed kind, the lessee must lodge a mining proposal in respect of those operations and obtain written approval for the mining proposal from a prescribed official. Regulation 32A(1) of the Mining Regulations prescribes a wide range of mining operations for the purposes of the section. Regulation 32A(2) provides that 'the office of Director, Environment Division in the Department is prescribed for the purposes of the interpretation of the term prescribed official in section 82A(2)(b)'.

94 Section 82(1) also provides that every mining lease shall be deemed to be granted subject to certain conditions, including that the lessee

(b) use the land in respect of which the lease is granted only for mining purposes in accordance with this Act;

(ba) arrange and pay for a survey of such land within the prescribed time and in the prescribed manner;

[and]

(ca) not use ground disturbing equipment when mining on such land unless

(i) the lessee has lodged in the prescribed manner a programme of work in respect of that use and has paid the prescribed assessment fee in respect of the programme and the programme has been approved in writing by the Minister or a prescribed official; or

(ii) that use is dealt with in a relevant mining proposal.

95 Section 84 further provides for the minister to impose conditions for the prevention of reduction of injury to the land or consequential damage to other land.

96 These sections must be read with s 6 of the Act, which sets out how the Environmental Protection Act 1986 (WA) and the Mining Act operate together in the case of an application for a mining lease accompanied by the documentation referred to in s 74(1)(ca)(ii), and the operation of the Environmental Protection Act where a lease is granted. Section 6(1a) modifies the operation of s 38 of the Environmental Protection Act to the application for a lease. By s 6(1d) of the Mining Act, s 38 of the Environmental Protection Act applies to:

(a) a programme of work lodged by the holder of the mining lease in compliance with the condition referred to in section 82(1)(ca); or

(b) a mining proposal lodged by the holder of the mining lease in compliance with the condition referred to in section 82A.

97 Third, as Steytler J (Kennedy, White & Wheeler JJ agreeing) said in Re Calder; Ex parte Cable Sands (WA) Pty Ltd:

[The] Warden does not have to embark upon a full scale investigation into environmental or other public policy matters merely because an objection in that respect has been made. She or he may, for example, be satisfied that sufficient protection would be obtained by the application of the provisions of the Environmental Protection Act. In that event the Warden may do no more than make a recommendation as to the implementation of measures provided for by that Act. It is important to bear in mind, in this respect, that, where a notice of objection has been lodged, the Warden is required to hear the application for the mining lease in open court but has a discretion whether or not to give any person who has lodged a notice of objection an opportunity to be heard (see s 75(4)). (364 365)

98 In that statutory context, the warden is not required to make the sort of findings on environmental considerations that Forrest proposes. The warden may, properly, follow a more limited course without being found to have failed to give 'proper, genuine and realistic' consideration to an objection based on environmental grounds.

99 The second limb of ground 4 challenges the use of a policy which Forrest claims is erroneous.

100 The warden referred to a decision he had given in 2012, on an application between the same parties, in which he had considered objections based on environmental grounds. In that decision he had adopted the reasoning of another warden in an earlier report as being the correct approach to be applied in those proceedings. Forrest referred to part only of that earlier judgement, although it does contain the essence of the reasoning:

[Unless] the warden is able to conclude that the ground applied for is over land which is of significant environmental importance and that the land could not be the subject of the grant of a tenement with appropriate conditions being imposed which would protect the environment during the carrying out of the proposed activities and which would ensure the appropriate preservation and continuity of the environment after the cessation of those activities, the warden should recommend the grant of the tenement subject to the Minister being satisfied that all relevant environmental matters have been properly investigated and that the terms and conditions of the grant will properly and appropriately safeguard the environment. (Baxter v Serpentine Jarrahdale Ratepayers and Residents Association (Perth Wardens Court on 8 July 1999, Vol 14 No 2, 30 31)).

101 It is well established that a decision maker may pursue a policy 'provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations': Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 [24]. See also Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [136].

102 As I understand the reasons of the warden, he has not simply applied an existing policy, but has found that the approach described in the earlier cases is the correct one to adopt in these proceedings: see [117]. The effect of his reasoning, in the passages immediately following his reference to the earlier decision , is that the effects of mining in rivers in the north of Western Australia will not be new to the officers within the department who are responsible for assessing and considering any application to mine, and the reports prepared on behalf of the parties would provide a basis upon which officers of the department could assess the impacts of mining on the river bed for the purpose of creating conditions to protect the environment. In recommending the grant subject to conditions, the warden included several conditions in Annexure 1 requiring approval for the satisfaction of environmental officers at the DMP.

103 In my opinion, the approach adopted by the warden is consistent with his statutory role, having regard to s 6, s 82, and s 82A. In particular, the effect of s 6 is that the environmental assessment of a 'proposal', for the purposes of the Environmental Protection Act, occurs at the stage of a mining proposal or programme of work is lodged.

104 I am not satisfied that the warden erred in the manner contended.

The warden erred in law in making findings, unsupported by evidence or material, to the effect that:

(a) the mining of river sand has occurred in rivers in the north of Western Australia for years;

(b) the Gascoyne and Ord rivers are two examples of rivers that have been the subject of grant of various mining tenements for the mining of river sands from the river beds in the past; and

(c) the effects of river mining in river beds of seasonal flowing rivers and the tropical regions of Western Australia will not be new to those officers of the Department of Mines and Petroleum charged with the responsibility of assessing and considering such applications to mine.

The warden breached the rules of natural justice by making the findings set out in ground 5 without affording the applicant an opportunity to comment on or make submissions.

106 The tenement applicants do not dispute that the warden made the findings (see, for example, [121]) or that there was no evidence before the warden of the three matters set out in ground 5. They submit that the error is immaterial to the decision of the warden to recommend the applications.

107 In the context of the statutory scheme I have set out in the consideration of ground 4, I believe that the error was immaterial because the environmental assessment is to be carried out at a later stage in the process.

The warden made a jurisdictional error or alternatively erred in law in having failed to give proper, genuine and realistic consideration to the relevant consideration of noncompliant marking out of trenches for the mining lease applications and the application for the general purpose lease.

108 The warden dealt with Forrest's submission that the tenements applied for were not marked out in accordance with the Act and Regulations; [74] [79]. The warden referred to the evidence of Mr Richards, a witness called on behalf of Forrest, including his evidence that clearly identifiable trenches were not evident, the trenches are not in the general direction of the boundaries, and a number of posts are less than 1 m above the ground. He referred also to the evidence of Mr Slater, on behalf of the tenement applicants, that he was compliant with the Act and Regulations when he marked out the tenements in July and November 2011.

109 The warden found, by reference to photographs in the report of Mr Richards:

It is clear from the photographs that the passage of time from marking out by Mr Slater to the visit of Mr Richards ... [B]eing some 11 months in respect to M478, 479 and G 78 and some 7 months in respect to M 489 and L 70, that rain has fallen and has filled in or partially filled in trenches, moved the topsoil and caused grass to grow in and around the posts and the trenches. There is also clear evidence that many posts have either fallen over or been knocked over by a man, beast or nature. In my opinion, given the passage of time since marking out and the visit by Mr Richards it is not possible to conclusively find the matters complained of by Forrest were deficiencies in the manner in which Mr Slater marked out [the tenements] ... [78]

110 The warden then, perhaps illogically, found that he was satisfied that the marking out had occurred in accordance with the legislation; [79]. The error, if there is one, is factual. It is not the role of this court to review the factual findings of the warden. That is particularly so in the context of this legislation, where the role of the warden is not to determine an application, but to hear it and report in the manner required by s 75(5).

The warden made a jurisdictional error or alternatively erred in law in finding that application for mining lease M08/489 was a conversion application to be determined under s 75(6) and s 75(7) of the Mining Act.

111 The reference in this ground to a 'conversion application' is to an application in respect of land located on an existing exploration licence. Under s 67, the holder of an exploration licence has the right to apply for, and subject to s 75(9) to have granted pursuant to s 75(7), one or more mining leases or one or more general purpose leases in respect of any part or parts of the land the subject of the exploration licence. Section 75(9) is not relevant in the present matter.

112 Where an application is a conversion application, the discretion of the Minister under s 75 is restricted. In such an application, the Minister shall, subject to subsection (8) and the other provisions of the Act, grant to that holder one or more mining leases in respect of any part or parts of the land the subject of the existing licence. Under s 75(8), the Minister shall refuse to grant the mining lease if the s 74A report states that there is no significant mineralisation in, on or under the land to which the application relates. Section 111A authorises the Minister to refuse an application in the public interest.

113 The warden said that it was not in dispute that each application was located on an exploration licence and was made as of right pursuant to s 67; [40]. He was wrong with regard to application in M08/489. The error has consequences. At [46] to [48], the warden referred to s 75(7) and (8) and the limited discretion to refuse an application. At [53], he said that the applications 'should be seen in [the] context in which they are made that being they are made pursuant to s 67(1) of the Act that grants to [the tenement applicants] the right in priority to make application for M 478, M 479 and M 489 because the underlying exploration licences are current...'. Later, at [62], the warden said:

In my opinion, the failure to comply in the lodging of the application for the mining lease and associated documents may have less influence upon the decision of the Hon Minister whether to grant or refuse the application pursuant to s 75(6) of the Act given the provisions of s 75(7) of the Act where an application for a mining lease is made pursuant to s 67(1) of the Act by the holder of an exploration licence who has a right in priority for the grant of a mining lease or general purpose lease.

114 Quarry Park (the respondent to this part of the application) submitted that the error was one of fact and law, and was relied on only in considering the claim that the warden had no jurisdiction. It did not affect the conclusion on the issue of jurisdiction and did not affect the ultimate decision. Further, the error is not jurisdictional. I do not accept that submission for the following reasons.

115 First, neither the Minister nor the warden is given jurisdiction to decide conclusively whether the application is one to which s 75(7) applies. An error in that regard directly affects the way in which the Minister exercises his power.

116 Second, it is true that the warden primarily dealt with the implications of s 67 and s 75(7) in the context of Forrest's argument regarding jurisdiction. But, because he regarded all of the applications as conversion applications, he gave no consideration to whether the Minister should grant a license were his discretion not confined by s 75(7). Two things flow from this. The court cannot speculate about how the warden would have reported and recommended had he appreciated the Minister's discretion was not confined. And, as a result of the error, the warden failed to ask the right question under the Act and failed to address whether the Minister should grant or refuse the application for mining lease M08/489 according to the Act. It being accepted that the report and recommendation of the warden are subject to review, the error, in my opinion, is jurisdictional.

The warden made a jurisdictional error or alternatively erred in law in recommending the grant of the general purpose lease when that recommendation was an improper exercise of his power and it was irrational and so unreasonable that no reasonable person could have made it. Six grounds are given for that allegation:

(a) the application was for a significantly greater area than 10 ha;

(b) the application was for 13 different purposes none of which was lawfully available;

(c) the warden found that Yarri Mining intended to use the general purpose lease for purposes which are not associated with mining;

(d) Yarri Mining had not lodged a mining proposal or s 74(1a) statement as required in order to demonstrate it had some plan for proposed operations on the land the subject of the general purpose lease;

(e) a drawing prepared by a witness for Yarri Mining demonstrated that it had no considered or genuine plan for operations on the land the subject of the lease;

(f) the decision was not rational.

117 Yarri Mining applied for a general purpose lease over 128 ha. Under s 86(3), the area of land in respect of which any one general purpose lease may be granted shall not exceed 10 ha, unless the Minister is satisfied that a larger area of land is required for the purposes of the lease. By s 86(5), where an applicant applies for land in excess of 10 ha, the application shall be accompanied by a statement specifying the reasons why such greater area of land is required.

118 Section 87(1) provides:

A general purpose lease entitles the lessee thereof and his agents and employees to the exclusive occupation of the land in respect of which the general purpose lease was granted for one or more of the following purposes

(a) for erecting, placing and operating machinery thereon in connection with the mining operations carried on by the lessee in relation to which the general purpose lease was granted;

(b) for depositing or treating thereon minerals or tailings obtained from any land in accordance with this Act;

(c) for using the land for any other specified purpose directly connected with mining operations.

119 The purpose or purposes for which the lease is granted must be specified in the lease: s 87(2).

120 The warden referred to a letter sent on behalf of Yarri Mining, dated 24 July 2011, specifying the reasons why a greater area was required. He found that Yarri Mining could not use the land for 13 of the uses it proposed: [95]. The warden found, at [97], that Yarri Mining intended to use at least part of the land for the purposes permitted by the Act, and identified four purposes. The warden's reasons state:

Forrest submits Yarri seeks to establish an industrial precinct to service various developments in an[d] around Minderoo. The evidence of Mr Slater was that he has been asked to provide land to establish accommodation, lay down areas and other services and facilities for contractors with whom he proposes to enter into a business relationship or has or is in a business relationship including Rocla and Downer EDI. The evidence of Mr Slater was he is the only employee of Quarry Park whilst his other companies including Yarri, and Onslow have no employees.

The evidence of Mr Slater does not satisfy me that Yarri is attempting to establish an industrial precinct to service various developments in an[d] around Minderoo. However, I am satisfied that Yarri intends, if G 78 is granted, to use or permit the land within the G 78 to be used for purposes outside the provisions of the Act and Regulations [99] [100].

121 Despite that finding, the warden recommended the grant of a general-purpose lease not exceeding 10 ha, although he did not identify the land over which the lease might be granted.

122 The scope of the ground of review on the basis that a decision is unreasonable was considered by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. There may be some differences in the three judgments in that case regarding the potential scope of this ground. But all recognised an implied legislative intention that a statutory power or discretion must be exercised reasonably: see at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [90], [92] (Gageler J). So that, while there is an area of 'decisional freedom' within which reasonable minds may reach different conclusions about the correct or preferable decision, that freedom does not allow decision making that is arbitrary, capricious or which abandons common sense: [28], [65] [66]. The requirement that a decision be reasonable, in this sense, is something more than the absence of some vitiating error such as failure to have regard to relevant considerations, or acting for an improper purpose. Unreasonableness is a conclusion which may be applied to a decision which, on the true construction of the statute, lacks 'an evident and intelligible justification': [76]. Review by a court of the reasonableness of a decision made by an administrative decisionmaker may include consideration of 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law': [105] (Gageler J).

123 The court in Li emphasised, however, that it was concerned with the lawfulness of decisions, and review on the grounds of reasonableness does not involve the court substituting its own view for that of a decision-maker as to how the discretion should be exercised.

124 In making his recommendation, the warden attempted to tailor the application into something which might be granted under the Act. The application was for a significantly greater area than 10 ha, but the warden did not recommend grant of an extended area. The application was for purposes that were not permissible, but included purposes that were. The warden identified purposes that were permissible. By s 87(2), any lease granted must specify the purposes. Further, by reg 36(b) and (f) of the Mining Regulations, any lease would be subject to conditions that the holder use the land in respect of which the lease is granted only for the purposes specified in the lease; and be liable to have the lease forfeited if he is in breach of any of the covenants or conditions thereof.

125 The recommendation, however, is hard to reconcile with other terms of the Act. By s 105 of the Act, before an application for a tenement, including a general purpose lease, is made, the land in relation to which the mining tenement is sought shall be marked out in the prescribed manner and in the prescribed shape. By s 74(4), 'the application shall be made by reference to a written description of the area of the land in respect of which the lease is sought, and be accompanied by a map on which are clearly delineated the boundaries of that area'.

126 In the case of a mining lease, the lease may be granted for an area less than that sought: s 73. Section 90 applies certain of the provisions for mining leases to general purpose leases, including s 74. But s 73 is not one of the provisions picked up. The warden confined his recommendation to a lease of 10 ha, but did not have regard to whether a lease could be granted for that area. Nor did the warden identify the area of land which he recommended should be granted.

127 Further, on the warden's own findings, the lease was sought for purposes outside those permitted by the Act, and Yarri Mining intended, if the lease was granted, to use, or permit it to be used, for unauthorised purposes. The only evidence that the tenement applicant intended to use any particular area for a permitted purpose appears to have been a hand drawn map, prepared by Mr Slater on the evening before the hearing; [100]. Even on that evidence, the only finding the warden could make as to the required area was that 'the northern part of the two bells that comprise G 78 appears to be the area which Yarri intends to use for purposes prescribed by s 87 of the Act'; [101]. There is no finding that a general-purpose lease of 10 ha in that area, so generally described, could be used for the purposes set out in s 87(1). In fact, the recommendation was that Yarri Mining should identify the precise area it intends to develop and utilise within the 10 ha in respect of which the lease is granted.

128 Yarri Mining submitted that none of the matters relied upon by Forrest show that the decision to recommend the grant of the lease was irrational and outside that which could be made by a reasonable person. But on the application that was made, I am satisfied that a recommendation to grant the lease does fall outside the range of acceptable outcomes. It may have been otherwise, had s 73 applied to an application for a general purpose lease, and had the warden specified the area of land for which he recommended the grant.

129 As a result, I am satisfied that the report, to the extent that it recommends the grant of M08/489 and G08/78, is affected by jurisdictional error.

130 As mentioned above, the Minister has granted M08/489. To that extent, the remedy of certiorari is, in my opinion, unavailable. The warden's report no longer has any legal effect to be quashed. In my opinion, however, it is appropriate to grant a declaration to the effect that the warden has not made a valid report and recommendation regarding the application for M08/489. Such relief would not be futile, as the existence of a report is a condition for the exercise of the Minister's power under s 75. Further, the nature of the error is to treat the application as one governed by s 75(7), so as to deny the discretion of the Minister to refuse the application other than on the ground of public interest under s 111A.

131 Because no decision has yet been made on the application for G08/78, the report of the warden has continuing legal effect unless quashed. The remedy of certiorari is appropriate to quash the report.

132 I have taken into consideration that the warden made the one report for the various application that were heard together. While there is the one document, the legal effect is separate with regard to each tenement application and I am satisfied that, in that sense, the invalid parts of the report are severable. Further, the errors which I found to be jurisdictional are discrete to the applications for M08/489 and G08/78.

133 I will hear the parties regarding the orders that should follow from the findings I have made.