Warden holds that prior to marking out a special prospecting licence, the applicant must obtain a permit to enter from the native title holder.

The Mining Act 1978 (WA) provides that no person may enter private land for the purpose of marking out a mining tenement without first obtaining a permit from the warden or a prescribed official. Such private land is usually a freehold estate in fee simple (such as a farming property). No permit is usually required to mark out Crown land (such as land the subject of a pastoral lease).

However, s24MD(6) of the Native Title Act 1993 (Cth) provides that native title holders and registered claimants have the same procedural rights as if they held a freehold estate in fee simple in relation to grants of mining tenements for the sole purpose of the construction of an infrastructure facility (such as a general purpose lease or a miscellaneous licence).

In this case Warden Maughan followed a number of Warden’s decisions that have held that the grant of a permit to enter was required prior to entering the land to carry out the marking out of a general purpose lease or miscellaneous licence and the failure to obtain the permit is fatal to the application. Those decisions rely on the finding that a general purpose lease or miscellaneous licence are each a future act created for the sole purpose of the construction of an infrastructure facility – see s26(1)(c)(i) of the Native Title Act 1993 (Cth). The warden held at [12]:

“There is nothing to suggest the same would not apply to a prospecting licence.”

The problem with the warden’s decision is that the grant of a prospecting licence is not a future act created for the sole purpose of the construction of an infrastructure facility. The earlier wardens’ decisions relate to the creation of different rights and accordingly different procedures are to be followed under the Native Title Act 1993 (Cth). The reasoning in those earlier decisions do not apply to an application for a prospecting licence.

Rather, the grant of a prospecting licence creates rights to prospect and for the purpose of the Native Title Act 1993 (Cth) creates a right to mine. This is because the word “mine” when used in the Native Title Act 1993 (Cth) includes “explore or prospect” – see s253.

It follows that the grant of a prospecting licence (as well as the grant of an exploration licence and a mining lease) comes within subdivision P of Part 2 of the Native Title Act 1993 (Cth) and attracts the right to negotiate procedure. Subdivision M of Part 2 of the Native Title Act 1993 (Cth) does not apply to the grant of a prospecting licence (or the grant of an exploration licence and a mining lease) – see s24MD(6)(a) – and so s24MD(6A) does not apply.

It follows that no permit to enter is required to be obtained from the registered claimants or native title holders for the purpose of marking out a prospecting licence (or an exploration licence or mining lease).