MINERALOGY PTY LTD -v- THE HONOURABLE WARDEN K TAVENER [2014] WASC 420 (12 November 2014)

State agreement - Effect of agreement on application by third party for licence over area subject to agreement

Environmental Protection Act 1986 (WA)

Government Agreements Act 1979 (WA), s 3

Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), s 4, sch 1, cl 6, cl 8, cl 9(2), cl 9(5), cl 9(8), cl 10(5), cl 13(4), cl 19, cl 19(6), cl 30, cl 30(1), cl 30(2)

Land Administration Act 1997 (WA), pt 9, pt 10

Magistrates Court Act 2004 (WA)

Mining Act 1978 (WA), s 13, s 41, s 42, s 43, s 44, s 46, s 46A, s 47, s 52, s 56C, s 57, s 66, s 67, s 75(9), s 76, s 86, s 86(3), s 87, s 90(4), s 91 s 91(6), s 91(8), s 91B, s 92, s 92B, s 94, s 94(3), s 94A, s 111A, s 117, s 118A

Mining Regulations 1981 (WA), reg 36, reg 41, reg 42B, reg 154, reg 163(3)

Public Works Act 1902 (WA)

Racial Discrimination Act 1975 (Cth)

Second Respondent : Mr S M Davies SC & Mr D R Chandler

1 ALLANSON J: The applicant, Mineralogy Pty Ltd, holds several mining tenements under the Mining Act 1978 (WA) in the Pilbara region. It is also a party to an agreement with the State of Western Australia relating to development projects to be carried out on those tenements.

2 The first respondent is a warden under the Act. On 24 April 2014, he granted two miscellaneous licences under that Act to the second respondent, Buckland Minerals Transport Pty Ltd. The licences will enable Buckland to build a road for haul trucks carrying iron ore from a mine being developed at Bungaroo South to the port at Cape Preston. The road will traverse land over which Mineralogy holds mining tenements.

3 Mineralogy objected to the grant of the licences. It now applies to quash the decision of the warden and for declarations that the grant of the licenses was invalid.

4 The State of Western Australia and Mineralogy are parties to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement (the Agreement). There are six other parties, described in the Agreement as CoProponents.

5 The Agreement is contained in sch 1, and ratified by s 4 of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA): see also Government Agreements Act 1979 (WA) s 3. The effect of these provisions was described in this way in Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239:

The purpose of ratification is to ensure that the State Agreement overrides any inconsistent provisions of the Mining Act 1978 or any other statute or law. However, even where a State Agreement has been ratified and its implementation has been authorised by an Act of Parliament, and it operates and takes effect despite any other statute or law, the provisions of the State Agreement remain contractual terms with force and effect as a contract. See Re Michael; Ex parte WMC Resources Ltd [2003] WASCA 288; (2003) 27 WAR 574 [26] (Parker J, Templeman & Miller JJ agreeing) [179].

6 The Agreement is not to be interpreted like a statute: see Hancock Prospecting Pty Ltd v BHP Minerals Pty Ltd [2003] WASCA 259 [65] [67]. The usual principles which govern the construction of a written contract apply. These include that the Agreement should be construed practically so as to give effect to its prescribed commercial purpose.

The Mining Act

7 The grant of a miscellaneous licence is governed by pt IV, div 5 of the Act. By s 91 (in those parts relevant to this application):

(1) Subject to this Act ... the mining registrar or the warden, in accordance with section 42 (as read with section 92), may, on the application of any person, grant in respect of any land a licence, to be known as a miscellaneous licence, for any one or more of the purposes prescribed.

(2) A person may be granted more than one miscellaneous licence.

(3) A miscellaneous licence shall

(a) be in the prescribed form; and

(b) authorise the holder to do such matters and things as are specified in the licence.

[(4), (5) deleted]

(6) A miscellaneous licence shall not be granted unless the purpose for which it is granted is directly connected with mining.

(7) Sections 18, 23 and 27 do not prevent a miscellaneous licence from being applied for or granted in respect of land that is the subject of another mining tenement.

(8) If a miscellaneous licence is granted in respect of land that is subject to another mining tenement the miscellaneous licence and the other mining tenement apply concurrently with respect to that land.

8 The Mining Regulations 1981 (WA) provide that a miscellaneous licence may be granted for the use of land for one or more of 26 purposes, including a road: reg 42B.

9 Where an objection has been lodged and not withdrawn, the application is to be heard and determined by the warden: s 42, read with s 92.

10 A miscellaneous licence remains in force for 21 years, with provision for renewal for a further term or terms: s 91B. A miscellaneous licence is subject to prescribed terms and conditions, and the warden may impose further conditions on the grant: s 94. Prescribed conditions include that the licensee shall continuously use the licence for the purpose for which it was granted, and shall not transfer or mortgage a legal interest in the licence without consent of the Minister: Mining Regulations reg 41.

11 The applicant for a miscellaneous licence may appeal to the Minister against the refusal of an application, or against conditions the applicant considers unreasonable: s 94(3). An objector to the application has no appeal.

12 Section 94A is, in a sense, complementary to s 91(8): the grant of a miscellaneous licence does not prevent another tenement from being marked out, applied for or granted in respect of land that is the subject of a miscellaneous licence, and the miscellaneous licence and the other mining tenement apply concurrently with respect to that land.

13 Section 91, as originally enacted, authorised the grant of a miscellaneous licence 'on the application of the holder of a prospecting licence, exploration licence or mining lease' and 'in respect of any land that is open for mining, or is the subject of a mining tenement a licence'. The licence remained in force until the surrender, forfeiture or expiry of the prospecting licence, exploration licence or mining lease in respect of which it was granted. The section was repealed and re-enacted in substantially its present form in 1994.

14 A miscellaneous licence is a mining tenement. The other mining tenements that may be granted under the Act are a prospecting licence, an exploration licence, a retention licence, a mining lease, and a general purpose lease.

15 Relevantly, under s 66 of the Act, an exploration licence confers on the holder the rights (subject to restrictions):

(a) to enter and reenter the land the subject of the licence for the purpose of exploring for minerals in, on or under the land;

(b) to explore for minerals, and to carry on operations and carry out works necessary for that purpose;

(c) to excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances in an amount that does not exceed the prescribed limit; and

(d) to take and divert and to use water for domestic purposes and for any purpose in connection with exploring for minerals on the land.

16 The holder of an exploration licence has the right to apply for, and subject to s 75(9) to have granted, one or more mining leases or one or more general purpose leases or both in respect of any part or parts of the land the subject of the exploration licence: s 67.

17 A general purpose lease may be granted by the Minister for use in respect of mining operations: s 86. The area of land in respect of which one general purpose lease may be granted shall not exceed 10 ha, unless the Minister is satisfied that a greater area is required for the purpose of the lease: s 86(3). The apparent intention is that the land is to be occupied and used for a particular purpose. Regulation 36 prescribes a condition that the holder of the general purpose lease use the land in respect of which the lease is granted only for the purposes specified in the lease.

18 By s 87:

(1) 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.

19 By s 90(4), certain sections dealing with mining leases apply, with such modifications as the circumstances require, to and in relation to a general purpose lease as if a reference in those sections to a mining lease were a reference to a general purpose lease. Relevantly, s 90(4) applies s 76. By that section, subject to four specified exceptions, where an application for a mining lease (or general purpose lease) includes any portion of land included in a mining tenement held by a person other than the applicant, the mining lease granted on the application shall not include any such portion of land. One of the exceptions is s 94A, where the grant is for land over which there is a miscellaneous licence, and the two tenements are to apply concurrently.

20 The grant of tenements is also affected by s 117:

(1) Subject to the provisions of sections 56A, 70 and 85B [none of which are presently relevant] ... no Crown grant, transfer of Crown land in fee simple, or conveyance nor the grant of any mining tenement has the effect of revoking or injuriously affecting any existing mining tenement acquired and held under this or the repealed Act, whether or not any reservation or exception of that existing mining tenement is contained in the Crown grant, transfer of Crown land in fee simple, or conveyance or the grant of the mining tenement.

(2) Each such Crown grant, transfer of Crown land in fee simple, or conveyance and each such grant of a mining tenement shall be deemed to contain an express reservation of the rights to which the holder of the existing mining tenement is entitled.

The application before the warden and the objections

21 In applying for the miscellaneous licences, Buckland set out a range of purposes for each licence.

22 Mineralogy objected to the grant of each licence, originally on seven grounds. The objections were later amended and consolidated into eight grounds, including grounds to the effect that:

(1) The application does not comply with s 91(6) of the Mining Act because Buckland has no mining or exploration tenements and no applications for those tenements.

(2) The tenement crosses land within a general purpose lease held by Mineralogy (G08/63). The general purpose lease grants the holder the exclusive right to the occupation of the surface. General purpose lease 08/63 is within Area A of the tenements subject to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act, and is protected by cl 30 of the Agreement which precludes the state from resuming any of Mineralogy's rights within the area.

(3) The application, if granted, will adversely affect Mineralogy's existing rights and interests under the Mining Act and the Agreement.

(4) The application is contrary to the public interest in that, were it granted, it would be contrary to and undermine the Agreement.

(5) The grant of the application for the proposed purposes would prevent, hinder or interfere or obstruct Mineralogy from exercising its rights within its general purpose leases.

23 Mineralogy's grounds are set out in its original application, and in a minute of particulars of the relief claimed. The grounds in the application are quite discursive, but in essence rely upon the following propositions:

(1) Section 87 of the Mining Act entitles Mineralogy to exclusive occupation of the land in respect of which the general purpose leases were granted for the purposes for which they were granted. Those purposes include roads, railways, bridges or other transport facilities. The warden was not authorised to grant a licence for the purpose of a road when Mineralogy had exclusive occupation of the land for that purpose.

(2) By s 91(6) of the Mining Act a miscellaneous licence shall not be granted unless the purpose for which it is granted is 'directly connected with mining'. Because neither Buckland nor its holding company holds any mining leases or carries out mining operations, the miscellaneous licences were not for a purpose directly connected with mining.

(3) By reason of cl 30(2) of the Agreement, as ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act, Buckland is not entitled to the grant of any licences for the purposes of the road over, or in respect to, land subject to tenements held by Mineralogy, where that may unduly prejudice or interfere with the Project Proponents' (that is, Mineralogy and the Co-Proponents) current and future activities under the Agreement.

(4) The granting of a miscellaneous licence would effectively resume, or permit to be resumed, property belonging to Mineralogy, contrary to cl 30(1) of the Agreement.

24 Mineralogy contends that, for these reasons, the grant of the licences was not authorised by the Mining Act, and the decision was made without jurisdiction. In the initial application, it claimed an error of law on the face of the record. The errors claimed, however, are all jurisdictional, so the question of error on the record does not need to be separately addressed.

25 Finally, Mineralogy claims that the warden failed to take into account relevant considerations in failing to take into account: its right to exclusive occupation under the general purpose leases; the future activities of the Proponents; whether the grant of a miscellaneous licence was contrary to clause 30 of the Agreement; and whether the connection between Buckland's purpose and mining was direct.

26 Because the grounds on which Mineralogy seeks relief include the proper construction and operation of the Agreement, the Attorney General was given leave to intervene.

27 The warden gave notice that he abides the decision of the court.

28 The land the subject of L08/104 is a corridor about 200 m wide alongside the Dampier to Bunbury Natural Gas Pipeline. It is part of the land the subject of Mineralogy's exploration licence, E08/1451. The land the subject of miscellaneous licence L08/105 is also about 200 m wide, and for much of its length is alongside the Dampier to Bunbury Natural Gas Pipeline. It crosses land over which Mineralogy holds two general purpose leases (G08/63 and G08/74).

29 Miscellaneous Licence 08/104 was stated to commence on 12 May 2014 and expire on 11 May 2035. The total area of land subject to the licence is 777 ha. The purpose of the tenement is stated to be (all without punctuation):

A bore a bore field a bridge a communications facility a minesite administration facility a pipeline a power generation and transmission facility a power line a road a search for groundwater a workshop and storage facility taking water.

Conditions endorsed on the licence include conditions to protect the gas petroleum pipeline and associated facilities. Further conditions require the road to be constructed using proper materials suited to the purpose, to be maintained to ensure that it is safe for the purpose for which it is constructed, to be clearly signposted as a private road with the signposting to be maintained, traffic on the road to give way to traffic on public roads and other conditions relating to intersections and signs.

30 Miscellaneous Licence 08/105 is in similar terms. It is for an area of 567 ha and is subject to similar conditions.

31 On 28 May 2014, after the grant of the miscellaneous licences, the state consented to Buckland having access to and passing over area A within the Agreement, under cl 10(5) of the Agreement. The consent was conditioned 'so long as that access and passage does not unduly prejudice or interfere with the activities of the Company and future Project Proponents under the State Agreement'.

32 General Purpose Lease 08/63 was granted to Mineralogy, commencing on 27 August 2009 for a period of 21 years. It is to the south of the other General Purpose Lease. It has been granted for an area of 10,705 ha. The stated purposes include:

a road, railway, bridge or other transport facility; an airport or landing strip; an electricity generation, transmission or distribution facility; a storage, distribution or gathering or other transmission facility for; oil or gas; or derivatives of oil or gas; a storage or transportation facility for coal, any other mineral or any mineral concentrate; a dam, pipeline, channel or other water management, distribution or reticulation facility; a cable, antenna, tower or other communication facility.

Conditions of the licence establish a safety zone either side of the Dampier to Perth gas/petroleum pipeline (conditions 11, 12, and 13).

33 General Purpose Lease 08/74 was granted on 24 September 2009 for a period of 21 years. The purpose identified on the lease is similarly expansive. The lease is for an area of just under 5,000 ha. The gas pipeline does not cross this land.

34 Exploration licence E08/1451 commenced on 22 April 2008. It is for 70 blocks (see Mining Act s 56C and s 57). It is subject to conditions establishing a 25 m safety zone either side of the gas pipeline.

35 The warden also identified two other tenements held by Mineralogy: an exploration licence (E08/1331), and a miscellaneous licence (08/20). The issues in this application, however, are confined to the tenements identified in the preceding paragraph.

36 The warden was acting under pt IV of the Mining Act. Under pt VIII div 6 of the Mining Regulations, in conducting a hearing under pt IV of the Act, the warden is to act with as little formality as possible, is not bound by rules of evidence and may inform himself or herself of any matter in any manner he or she considers appropriate. The warden is bound by the rules of natural justice: reg 154.

37 The determination of the warden, and the reasons for the determination, are to be reduced to writing, signed by the warden and recorded in a register: reg 163(3). The warden gave reasons in writing for his determination.

38 The reasons of the warden are relatively brief: Buckland Minerals Transport Pty Ltd v Mineralogy Pty Ltd [2014] WAMW 4. Although they are set out in sections with separate headings (Applicant's Witnesses, Mineralogy's Submissions, Buckland's Submissions, Findings, and Decision), it is apparent that those headings do not describe exclusively the content of any section. In particular, the findings are interspersed throughout the decision. On occasion, it is not entirely clear whether a particular paragraph records a submission or the warden's acceptance of it. It is, however, possible to identify the findings that are relevant to the grounds of the application.

39 The reasons of an administrative decisionmaker are meant to inform. They should not be scrutinised upon overzealous judicial review, by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271 272. The court must beware of turning judicial review into a reconsideration of the merits of the decision. The court is concerned only with legality. The merits of the decisions, to the extent they can be distinguished from legality, are for the warden alone: Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36; Minister for Immigration and Citizenship v Li [2013] HCA 18 [66].

The grounds of the application Section 87 and exclusive occupation

40 The general purpose leases under s 87 of the Mining Act entitle Mineralogy to exclusive occupation of the land in respect of which they were granted for the purposes specified in the leases. Many of the specified purposes overlap with the purposes of the miscellaneous licences. Mineralogy argues that the warden was not authorised to grant a miscellaneous licence for the same purposes for which Mineralogy had exclusive occupation of the land.

41 This ground does not apply to the warden's decision to grant a miscellaneous licence to the extent that it is over land covered by Mineralogy's exploration licence. Because of the view I have come to on the application as a whole, it is not necessary to consider whether part of the decision may be severed.

42 The warden identifies the issue of exclusive occupation in his reasons, but makes no express finding on it: Buckland Minerals Transport Pty Ltd v Mineralogy Pty Ltd [28]. It may be inferred that he accepted the submission made on behalf of Buckland that the tenements held by Mineralogy under the Agreement were still held under and subject to the Mining Act, including the ability of the warden to grant a miscellaneous licence. It is, in any event, a question of law. Even if the warden failed to consider the issue, it would be futile to return the application to the warden if Mineralogy's argument is not tenable.

43 Mineralogy submitted that the general purpose leases give it the right to control access to the land. It relied, in particular, on the comments in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [306] [309] (as to mining leases) and [336] [342] (as to general purpose leases).

44 The issue in Ward arose out of the general proposition that, apart from the effect of the Racial Discrimination Act 1975 (Cth), 'native title rights and interests depend upon the common law [and] cannot be asserted in any way that would interfere with the exercise of inconsistent statutory rights' [291]. The rights conferred by a lease under s 87 had to be compared with those rights that were proved to be part of the rights held by the holders of native title. The native title rights were liable to extinguishment by an inconsistent grant.

45 That is not the issue in this case. The present question is whether a miscellaneous licence can be granted over the same land as a general purpose lease, when s 87 provides that a general purpose lease confers a right of exclusive occupation. Both are statutory tenements and the question must be resolved as a matter of construction of the Act.

46 Counsel for Mineralogy placed considerable emphasis on the fact that s 87 is not prefaced by the words 'subject to this Act', while s 91 does have that qualification.

47 The effect of the words 'subject to this Act' was discussed by McLure P, Owen and Buss JA agreeing, in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132 [52] [53], where her Honour said:

This expression is the standard way of making clear which provision is to govern in the event of a conflict but throws no light on whether there would in truth be a conflict without it: Harding v Coburn (1976) 2 NZLR 577, 582; C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905; [1973] 2 All ER 513, 911.

Thus, the initial inquiry is whether there is a conflict or inconsistency ...

48 In Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 Brennan CJ, Gaudron and Gummow JJ said:

The Minister's discretion to grant an exploration licence or mining lease is expressed as 'subject to this Act'. Indeed, Rowland J commented that: '(t)he Act is bedevilled with the use of the expression "subject to this Act"'. His Honour concluded that: 'the only useful purpose to be served by the phrase in ss 57(1) and 71 is to ensure that the particular tenement, if and when granted, is one that is recognised by the Act'. The phrase as it appears in ss 57(1) and 71 is indicative of a situation in which the Minister's discretion is not unfettered. The discretion must be exercised in accordance with the requirements of the Act. Both ss 57(1) and 71 refer to the requirements set out by the Act before any exercise of the Minister's discretion can occur. First, the Minister's power to grant is 'on the application of any person'. Second, that power is enlivened 'after receiving a recommendation of the warden' (171).

In each case the power is expressed to be 'Subject to this Act', a qualification which might seem unnecessary since the Act must be read as a whole. Be that as it may, in each case the exercise of the power is conditioned by the receipt of a report by the warden recommending the granting or refusal of the exploration licence in accordance with s 59 or the receipt of a report by the warden recommending the granting or refusal of the mining lease in accordance with s 75. As is discussed later in this judgment, it is the receipt of a recommendation which triggers the exercise of ministerial power, not the content of the recommendation (176).

50 In my opinion, the fact that s 87 is not expressed to be subject to the Act is of no moment. Section 86 (dealing with the grant of a general purpose lease) is qualified in that way. More importantly, it is not a proper reading of the Act as a whole to read s 87 as having some primacy over the other provisions of the Act.

51 Reading the Act as a whole, the two tenements granted under s 87 and s 91 are intended to operate concurrently over the same land. First, s 91 expressly provides that a miscellaneous licence may be granted in respect of land that is subject to another mining tenement and operates concurrently with any existing tenement: s 91(7) and (8). Second, s 92 applies certain sections relating to prospecting licences (s 41, s 42, s 44, s 46, s 46A, s 47, and s 52) to a miscellaneous licence. It does not apply s 43, under which the grant of a prospecting licence does not include land the subject of an existing mining tenement. Third, s 94A permits another tenement (including a general purpose lease) to be granted over land subject to a miscellaneous licence; again with the two to operate concurrently: see also s 76, read with s 90(4).

52 Where the grant of a miscellaneous licence over an existing general purpose lease, or vice versa, produces rights which conflict in the particular circumstances, the Mining Act contains the mechanism in s 117 for resolving the conflict. The grant of a mining tenements does not revoke or injuriously affect existing mining tenements held under the Act, and is deemed to contain an express reservation of the rights to which the holder of the existing mining tenements is entitled: see also Re Roberts; Ex parte Western Reefs Ltd (1990) 1 WAR 546, 551 552.

53 Accordingly, as a matter of law, I am not satisfied that the warden erred in granting miscellaneous licences over land the subject of existing general purpose leases. At [47], the warden commented that Mineralogy had objected on the basis of undue prejudice or interference rather than on the basis of injurious affection. His finding that Mineralogy's activities and rights are not adversely affected to an undue degree, and that Buckland must minimise any impact on Mineralogy's tenements, are consistent with a finding under either s 117 of the Act or cl 30(2) of the Agreement. That is, he found that in fact the land could be used under the miscellaneous licence without injuriously affecting Mineralogy's occupation and use.

Section 91 and direct connection

54 Section 91(6) of the Mining Act permits the grant of a miscellaneous licence only for a purpose which is directly connected with mining operations. The warden found that the two miscellaneous licences were to facilitate the building of a road from a mine to a port so as to divert heavy haulage trucks from a public highway: [45], [48]. That finding is not challenged, and Mineralogy did not contest that a haul road from a mine to a port is a purpose directly connected with mining operations. Its argument was that the connection is not direct because Buckland does not itself hold any mining leases or exploration licences; and neither does its immediate parent company.

55 The argument, in my opinion, is misconceived. The requirement of s 91(6) is that the purpose for which the licence is granted is directly connected with mining operations. On its plain meaning, s 91(6) does not require that the holder of the miscellaneous licence be itself directly involved in mining or mining operations (at the time of the application, s 91(6) required a direct connection with 'mining operations'; by the time there was a hearing it had been amended to require a direct connection with 'mining'). I agree with the submission of Buckland that the focus of the section is on the purpose for which the licence is granted. That purpose does not alter, or become indirect, because the holder of the licence is not itself carrying out mining operations.

56 There are other reasons supporting this construction. As Buckland submitted, while the section when originally enacted required a connection between a miscellaneous licence and an existing tenement, and could only be applied for by the holder of an existing tenement, that connection has been removed by the repeal and reenactment of s 91. Under the section in its current form, any person may apply for a miscellaneous licence.

57 Further, the Act recognises that there may be various arrangements under which mining operations are carried on by persons other than the holder of the relevant tenement. The holder of a prospecting licence, exploration licence or mining lease may authorise another person to carry out mining on the land the subject of the tenement, and that mining is, for the purposes of the Act, regarded as carried out by the holder of the relevant tenement: s 118A.

58 Other arguments were expressed by reference to those authorities dealing with the width of the expressions 'connected with' and 'in connection with'. With respect, I found those authorities unhelpful where the critical question is what is required by the connection being direct.

59 Finally, the warden correctly identified the question posed by s 91(6) when he said that the section requires that the miscellaneous licence is directly related to mining [45]. While he then expressed his conclusion that it is 'clearly related to mining', it is abundantly clear what he meant.

60 The arguments on these grounds rely on the effect of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act in modifying the operation of the Mining Act. The effect of s 4 of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act and s 3 of the Government Agreements Act is to ensure that the Agreement overrides any inconsistent provisions of the Mining Act or any other statute or law.

61 Mining tenements held by Mineralogy, including those comprising Area A under the Agreement (the tenements the subject of this application), 'shall be held under and subject to the Mining Act [as] modified': see cl 9(2), cl 9(5). The mining leases granted or held pursuant to cl 10 are held 'under and, except as otherwise provided in this Agreement, subject to the Mining Act': cl 10(1).

62 The Agreement directly modifies the operation of the Mining Act in some respects. It provides that the state shall cause certain exploration licenses and mining leases to be granted: cl 9(1), cl 10(1). It also affects:

(1) rents payable by Mineralogy during the term of the lease, and expenditure conditions: cl 9(2)(a), cl 9(2)(b), cl 10(3);

(2) Mineralogy's entitlement to renewal or automatic renewal of the term of some tenements: cl 9(2)(c), cl 10(2);

(3) Mineralogy's entitlement regarding extensions of exploration licences, and the provisions of s 65 of the Act (relating to surrender of land under exploration licences): cl 9(2)(c)(ii);

(4) the assignment, underletting or parting with possession of the mining tenement, which shall be subject to cl 31;

63 Clause 30 is one of two clauses that contain negative stipulations binding the state. By cl 26:

Except as provided in this Agreement the State shall not impose, nor shall it permit or authorise any of its agencies or instrumentalities or any local or other authority of the State to impose discriminatory taxes rates or charges of any nature whatsoever on or in respect of the titles property or other assets products materials or services used or produced by or through the activities of Project Proponents in the conduct of their business hereunder nor will the State take or permit to be taken by any such State authority any other discriminatory action which would deprive Project Proponents of full enjoyment of the rights granted and intended to be granted under this Agreement.

(1) The State shall not during the currency of this Agreement without the consent of the Company resume nor suffer nor permit to be resumed by any State instrumentality or by any local or other authority of the State any of the works, installations, plant, equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement or any of the works on the lands which are the subject of any lease or licence granted to the Company in terms of this Agreement or which are otherwise the subject of this Agreement and which in either case retain the benefit of the rights and privileges conferred by this Agreement or any works installations plant equipment or other property on such lands and belonging to a contractor to the Company and being used in Project Proponents' activities under this Agreement.

(2) (a) [T]he State shall not without the consent of the Company (which consent shall not be unreasonably withheld) create or grant or permit or suffer to be created or granted by any instrumentality or authority of the State referred to in subclause (1) any road rightofway or easement of any nature or kind whatsoever over or in respect of any lands referred to in subclause (1) which may unduly prejudice or interfere with the Project Proponents' activities under this Agreement.

65 Mineralogy's grounds and submissions appear to raise two challenges to the decision of the warden, based on the operation of cl 30. First, the Agreement directly binds the warden as an instrumentality of the state. He is not legally authorised to make a decision that would contravene the stipulations in cl 30(1) or cl 30(2). Second, the Agreement is a relevant consideration and the warden was required to have regard to cl 30 in making his decision.

66 Both Buckland and the Attorney General questioned whether the warden is an instrumentality of the state, as that term is used in cl 30. But, depending on the context, the warden may in some circumstances properly be regarded as a 'State instrumentality'.

67 In its normal meaning, the term State instrumentality may include a tribunal exercising administrative functions: see Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority [2003] WASCA 248 and Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation [1992] HCA 53; (1992) 175 CLR 442:

[T]he expression 'State instrumentality' is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose ... And that is so even if it is neither a servant nor an agent of the State (Re Anti-Cancer Council [7]).

68 In Re Town Planning Appeal Tribunal, Steytler J said:

[It] is always necessary to ascertain the legislative intent in the particular enactment, having regard for all such indicia as might be relevant

Consequently, while it is true that the Tribunal is independent, and not subject to the control of the executive government, at least in respect of the determinations which it makes, that, of itself, need not mean that it is not a 'State instrumentality' in accordance with the popular usage of that term, being an instrumentality which is empowered to and does, in fact, serve some State Government purpose: Anti-Cancer Council of Victoria, above, at 448 [35] [36].

69 The warden is appointed under s 13 of the Mining Act. While the person appointed as warden holds office as a magistrate under the Magistrates Court Act 2004 (WA), the warden exercises both administrative and judicial powers. When exercising the power to grant prospecting licences and miscellaneous licences, or recommending the grant of other mining tenements, the warden is performing administrative functions: see St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248 [27]. In carrying out these functions, the warden is empowered to and serves a state government purpose.

70 The Act does not subject the warden to the direction or control of the Minister, even when exercising administrative powers (although the Minister, in the public interest, may terminate an application for a mining tenement before the warden has determined it, or refuse the application: s 111A). Independence is not incompatible with being a State instrumentality. But even if the warden can be regarded as a State instrumentality, cl 30 does not, in my opinion, limit his or her powers.

71 First, the negative stipulation in cl 30 is directed to the state itself as party to the Agreement. It does not apply directly to the warden.

72 Second, the Agreement does not expressly exclude the power under s 91 to grant a miscellaneous licence over existing tenements held by Mineralogy.

73 Third, the court should not find an implied limit on the powers of the warden, because the functions performed by the warden in granting a miscellaneous licence do not come within the intended scope of either subclause of cl 30, properly construed. This third reason requires explication.

74 Mineralogy argued that the effect of the grant of a miscellaneous licence is to derogate from the rights of exclusive occupation conferred by s 87. As a result, the grant of the licences was a resumption of those rights by the state, and thus a resumption of property for the time being belonging to the company and the subject of, or used for the purposes of, the Agreement.

75 The warden did not address this issue in his reasons. But the argument, must fail at the first hurdle. Resumption is used several times in the Agreement in its natural and ordinary meaning as a taking of property for a public purpose. By cl 13(4) of the Agreement, the state may resume a road constructed by the Project Proponents. Clause 27 empowers the state to take land necessary for the purposes of a Project under the Agreement 'as and for a public work' under pt 9 and pt 10 of the Land Administration Act 1997 (WA) and the Public Works Act 1902 (WA). Clause 19 deals with the provision of accommodation outside mining leases. Subclause 19(6) provides for the state to grant to Mineralogy for specified purposes a lease or leases under the provisions of the Land Administration Act. Such lease or leases:

shall include a right for the State notwithstanding the provisions of Clause 30 at any time and from time to time to exclude from such lease or leases or to resume without compensation any part or parts of such land on which no building or structure or any substantial improvements have been erected as the State may require for public purposes.

76 The term 'resume', in my opinion, is not intended to have some different meaning in cl 30(1).

77 Mineralogy urged the court to apply a more expansive meaning of resumption, based upon the principle that it should construe a commercial agreement having regard to the objective which the parties had in view. Nothing was identified in either the text or context of the Agreement that would lead to the meaning for which Mineralogy contends.

78 Similar difficulties beset the argument with regard to cl 30(2). That clause is concerned with the creation of a road or the creation or grant of rights in land that might prejudice or interfere with the activities of the Proponents. The miscellaneous licence under s 91 is a mining tenement granted under statute, pursuant to which the tenement holder may carry out the prescribed purposes for which the licence was granted. It involves the creation of no actual interest or estate in the land: TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [27]. Even though a miscellaneous licence may be granted for the purpose of a road (as in this case), and it may have some characteristics of an easement, the grant of a statutory licence which confers no interest in the land is not the same thing as the grant of an easement.

79 Mineralogy also contended, as I understood its submissions, that the warden erred in failing to have regard to the prohibitions in cl 30 as a relevant consideration. In particular, the warden failed to have regard to the Proponents' future activities on the land which is subject to the Agreement.

80 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: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [74]. Accordingly, Mineralogy must show that the contractual obligation of the state under cl 30 is a consideration that the warden was bound to take 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]. That is to be determined by the construction of the Mining Act, including by implication from the subject matter, scope and purpose of the act: A v Corruption and Crime Commissioner [89].

81 For the reasons set out above, I do not believe that cl 30, when properly construed, is intended to apply to the function performed by the warden in granting a miscellaneous licence under s 91 of the Mining Act. As a result, the clause was not a relevant consideration.

82 I am not satisfied that Mineralogy has established the errors alleged. The application will be dismissed.