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ARELJ Recent Development- Wardens' decisions providing clarity but not advancing joy

John Southalan
Barrister (WA Bar Association), Mediator (NMAS), Adjunct Professor (UWA & Murdoch)

Three recent decisions of the Perth Mining Wardens have provided legal clarity regarding mining tenement applications and objections. In Azure Minerals, Warden McPhee confirmed an earlier decision of Warden Cleary, and that applications for exploration tenure are invalid without details of exploration proposed for the five years following grant. Warden McPhee also emphasised that WA Mining Wardens should not depart from another Warden’s reasoning without good cause. In Telupac Holdings, Warden Cleary refused to hear environmental objections to the proposed grant of exploration tenure partly in a national park and nature reserve. In ACN 629 923 753, Warden Cleary ordered costs against pastoralist objectors for maintaining objections, indicating increased likelihood of costs being awarded against objections “without merit”. Both Wardens provided extensive and detailed reasoning, explaining their rationale but also referring to the role of agencies in ensuring compliance with WA’s Mining Act. In late December 2022, WA’s Auditor General released a report identifying deficiencies in how agencies regulate compliance with conditions under that Act. While some ambiguity remains, unless/until there is any contrary direction from WA’s Supreme Court, applicants and objectors have greater clarity of approaches by WA’s Mining Wardens.

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