PRINTER FRIENDLY VERSIONEnvironment, Resources and Development Court of South Australia
BORAL RESOURCES (SA) LTD v MATTHEWS
Judgment of Her Honour Judge Cole
Appeal against decision of the Warden's Court - the pegging of a claim on a stone reserve was declared invalid due to defects in the pegging - finding that Warden's Court justified in making the declaration - appeal dismissed.
Mining Act 1971; Mining Regulations 1998, referred to.
Project Blue Sky and Ors v Australian Broadcasting Authority (1997) 194 CLR 355 at 390, considered.
BORAL RESOURCES (SA) LTD v MATTHEWS
THE COURT DELIVERED THE FOLLOWING JUDGMENT:
1 This is an appeal pursuant to s 65(3) of the Mining Act 1971. It is an appeal against the decision of Dr Cannon SM, Senior Warden of the Warden’s Court of South Australia, in relation to a plaint filed by Mr Matthews.
2 The facts of the matter are complex. However, the appeal relates to only a few of the issues dealt with by the Senior Warden, so I will confine my judgment to those issues and the facts which underpin them.
3 Boral Resources (SA) Ltd ("Boral"), by its agent, Mr Whitney, a surveyor, purported to peg a claim on Part Section 499 Hundred of Stirling, which is a stone reserve, on 26 February 2004. Mr Matthews alleges that the pegging is not in compliance with the Mining Regulations, and that the purported claim, as a result, is either invalid or liable to forfeiture. The Senior Warden found that the pegging was deficient and declared the purported claim to be invalid pursuant to reg 100 of the Mining Regulations 1998.
4 It is clear that Boral intended to peg a claim over the entire stone reserve. The stone reserve is four sided. Because of the angle of Mount Monster Road, which runs along the northern edge of the reserve in an east/south-easterly direction, the reserve is an irregular four-sided shape, rather than being a rectangle. Mr Whitney placed three posts on the southern boundary of the reserve, none of which is in the corner. He placed a further post in the road somewhat north of the north-eastern corner of the reserve. A further post is in the north-western corner of the reserve, and the last post is about 50 metres north of the south-western corner. It is not possible to ascertain accurately from the posts on the ground precisely what shape and area the claim is intended to be. Initially, no directional markers were provided. In evidence before the Senior Warden, Mr Whitney explained that his failure to peg three of the corners of the claim, and his failure to place a post on the eastern boundary of the claim were accounted for by the scrub on the land, which prevented him from obtaining the lines of sight he needed, given the surveying method he was using. Mr Matthews pegged a claim on the reserve on 15 March 2004. He used a hand held GPS. He gave evidence that he had no difficulty in reaching the corners of the reserve to peg them. He acknowledged that there was no line of sight from the 3 corners of the boundaries that Mr Whitney failed to peg.
5 The Mining Regulations 1998 provide, in regs 13 and 14:
13. Shape of a claim
(1) Subject to these regulations, the shape of a mineral claim must, as far as practicable, approximate a rectangle, the length of the longer side of which must not exceed five times the length of the shorter side.
(2) The length of the longest side of a mineral claim must not exceed 2 kilometres.
(3) If it is not practicable to comply with subregulation (1) because of the position of adjoining boundaries for other areas, or natural features, an intervening or irregularly shaped piece of land may be pegged out as a mineral claim.
14. Mode of taking possession
(1) This regulation sets out the requirements for a valid pegging of a mineral claim under the Act.
(2) A post must be securely placed in the ground at each corner of the relevant area.
(3) Each post must -
(a) be devoid of marks or writing that refers to a previous pegging; and
(b) have a cross-sectional dimension equal to or exceeding 7 centimetres; and
(c) project at least 75 centimetres above the ground; and
(d) clearly show the number (or numbers) of the miner’s right (or rights) by virtue of which the claim is pegged out, together with the date of pegging (either by direct markings on the post or by the secure attachment of a notice to the post), as near to the top of the post as practicable; and
(e) if the person is pegging out more than one claim on the same parcel of land on the same day, clearly show the number of the claim, as pegged out on that land on that day, using consecutive numbers starting with the number 1.
(4) The direction of the boundaries of the claim must be clearly indicated by trenches, piles of stones, or substantial indicator markers fixed to each post.
(5) If it is impracticable to comply with a preceding subregulation, a person may peg out a mineral claim in some other manner but, in such a case, the person must lodge a notice of the manner of pegging at the nearest office of the Mining Registrar to the area that has been pegged out.
(6) A notice under subregulation (5) -
(a) must be in writing; and
(b) must be given within seven days after the pegging.
(7) If the Mining Registrar, or a person authorised by the Mining Registrar for the purposes of this regulation, considers that the method of pegging out an area is unsatisfactory, he or she may order that a different method be used.
(8) A person to whom an order is directed under subregulation (7) must immediately comply with the order.
6 It was conceded that it was not practicable, because of the shape of the stone reserve, for the shape of the claim to approximate a rectangle. Reg 13(3) applies. There was no complaint before me about the shape of the claim Boral purported to peg. The matters raised by Mr Matthews were as follows:-
1. Mr Whitney only pegged one corner of the claim, in breach of reg 14(2).
2. Mr Whitney did not clearly indicate the direction of the boundaries of the claim by any means, in breach of reg 14(4).
7 The Senior Warden found, and it was not disputed, that the pegging on behalf of Boral was in breach of regs 14(2) and 14(4). The argument between the parties relates to the effect of those breaches. Mr Henry argued that the Senior Warden was wrong in determining that the defects in the pegging should not result in the invalidity of the claim. He put forward the following arguments.
The Legislative Scheme
8 Mr Henry argued that the scheme for creating and maintaining a claim under the Mining Act 1971 has features which indicate that the requirements for pegging a claim contained in reg 14 were not intended to be strictly applied. Mr Henry relied upon reg 14(5) and (6) (set out above) and reg 20.
20. Insufficiently defined claims
(1) If a mineral claim is not defined by posts and boundary markers in accordance with the requirements of these regulations, a person authorised by the Director for the purposes of this regulation may, by notice in writing to the owner of the claim, require the owner to rectify the situation within a specified period (of at least seven days).
(2) If a notice under subregulation (1) is not complied with within the time specified by the notice, the Director may apply to the Warden’s Court for an order cancelling the claim and for appropriate consequential orders (and the Warden’s Court has jurisdiction to make those orders).
9 The Senior Warden determined that, under the Mining Act 1971, the pegging of the claim on the ground defines the shape and area of the claim. Other evidence of the claim comes into existence (such as the plan lodged at the office of the Mining Registrar with the application for the registration of the claim under s 24 of the Mining Act 1971), but the pegging of the claim defines it. I agree with the Senior Warden. Part 4 of the Mining Act 1971 makes it clear that the claim is that which is pegged. The regulations then provide, in regs 14(5) and (6), for a dispensation of the pegging requirements in reg 14(1) to (4) in the case of impracticability. However, that dispensation was not sought in this case. No wider inference about the strictness of the pegging requirements can be drawn from reg 14(5) and (6). In any event, the Senior Warden found, and I agree, that this was not a case of impracticability. Mr Whitney chose a surveying method which did not suit the terrain. The pegging of a competing claim by Mr Matthews, which did not suffer from the same defects as Boral’s pegging, shows that pegging in accordance with the regulations was possible. It was Mr Matthews’ evidence that it was not difficult. The scrub caused him no difficulty in reaching the corners. Mr Matthews’ method may not have been as good a surveying practice as Mr Whitney’s, but it was in conformity with the Act.
10 It was Mr Whitney’s evidence that on 25 June 2004, he attended at the stone reserve and screwed directional markers onto all but one of the posts he had installed on 26 February 2004 (though one had been removed by an unknown person, and he replaced it). The remaining post was the one north of the north-eastern corner of the claim, upon which Mr Whitney placed a directional marker pointing towards the claim, and wrote on that marker "48m to corner". Subsequently, Boral received a written requirement dated 29 June 2004, under reg 20, seeking compliance with reg 14(3)(a)(b) and (c) and reg 17. Those matters had by that date, already been attended to. At no stage was any action taken in relation to the breach of reg 14(2).
11 Regulation 20 provides for a process by which a defective claim may be rectified. Again, I do not take its existence to be an inference that the requirements of reg 14 regarding the pegging of a claim are to be applied other than strictly. The reg 20 process did not, in this case, cure all of the defects in the claim.
The Purpose of the Act
12 Mr Henry argued that the Mining Act 1971 should be interpreted in the light of the decision of the High Court in Project Blue Sky and Ors v Australian Broadcasting Authority (1997) 194 CLR 355 at 390:-
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood (71) in criticising the continued use of the "elusive distinction between directory and mandatory requirements" (72) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (73). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (74). In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" (75).
13 The Mining Act 1971 does not outline its objectives. It is described in its preamble as "An Act to regulate and control mining operations; and for other purposes". However, it is clear from the provisions of the Act that clarity as to the shape and area of a claim is important. A strict interpretation of reg 14 is consistent with the systems and processes created under of the Act.
14 The Senior Warden dealt with Mr Matthews’ plaint as an application for a declaration of invalidity under reg 100, which provides:-
100. If application is made to the Warden’s Court for a declaration of invalidity of a mining tenement on the grounds that the tenement has not been lawfully acquired in accordance with these regulations, the declaration must not be made unless the Court is satisfied that a breach of these regulations is a breach in a material respect and that the matter is of sufficient gravity to justify the making of the declaration, but the Court may order the rectification of any non-compliance with these regulations.
15 The Senior Warden determined that the breaches in relation to the pegging of the claim were breaches in a material respect and that the matter was of sufficient gravity to justify the making of a declaration. There was sufficient basis, on the evidence and the law, for the Senior Warden to exercise his discretion in the manner that he did. On appeal, no ground has been made out to justify the overturning of the Senior Warden’s decision. In these circumstances, there is no need for me to consider the argument advanced in relation to forfeiture, as it does not arise.
16 The appeal is dismissed.