Alert

Who does this affect?

Mining companies, landowners and others involved or affected by proposed mining activities in NSW.

What do you need to do?

Anticipate more formality and a different approach being applied to mining decisions in the Land and Environment Court.

Authors
Bridget Phelan  
Senior Associate

Rebecca Dixon  
Senior Associate

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Debra Townsend  
Partner
T +61 2 9296 2341

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As flagged in our alert last month, proceedings under the Mining Act are now being heard by the Land and Environment Court. The Court has now published the first judgment in its new mining jurisdiction.

The cases of Rosane Pty Ltd v T & P Clarke and N Perry & R Armstrong v T&P Clarke [2009] NSWLEC 1282 were heard together and involved challenges to the decisions of a mining arbitrator regarding access arrangements under two exploration licences over Kayrunnera Station located outside Broken Hill, NSW.

The cases considered matters of detail in access arrangements. While acknowledging the arbitrator’s decisions should not be subject to a “fine tooth comb”, the Land and Environment Court applied principles of procedural fairness and natural justice and held that an arbitrator must provide sufficient reasons for his or her decision. In this case, the arbitrator had failed to do so, and the Court expressed concern about this. A consequence of this case may be that future mining arbitrators’ decisions are more detailed given the likelihood that such decisions will be more rigorously analysed in the Land and Environment Court.

It is also noteworthy that the Court ordered that the terms of the exploration licence itself (including for example, fencing off trenches when not being used) be incorporated into the access arrangement. The Court did so expressly to give the landowner greater enforcement opportunities. In practical terms, the landowner in this case will then have rights to bring proceedings in the Land and Environment Court which he or she may not otherwise have had.

We do not know whether the Court would include the licence terms in the access arrangement in the future if this issue were strongly contested. If adopted by the Court in the future, it will increase the scope for landowners to access the Land and Environment Court when disputes arise.