The Western Australian Parliament recently passed the Mining Legislation Amendment and Validation Act 2008 (WA) (MLAV Act), which introduces, among other things, some important changes regarding the prescribed purposes for miscellaneous licences.
Regulation 42B of the Mining Regulations 1981 (WA) (Regulations) prescribes the purposes for which a miscellaneous licence can be granted. A number of specific purposes are listed in regulations 42B(a) to (m), with regulation 42B(n) providing a catch-all for "any other purpose directly connected with mining operations approved by the Director General of Mines."
In BHP Billiton & Ors v Westover Holdings Pty Ltd [2006] WAMW 4, Warden Calder refused an application for a miscellaneous licence for purposes approved by the Director General of Mines but not specified in regulations 42B(a) to (m). The refusal was on the grounds that regulation 42B(n) was ultra vires as the Governor (who is delegated authority to prescribe regulations) had acted beyond the power conferred on him by the Mining Act 1978 (WA) by conferring the power to prescribe purposes under regulation 42B(n) on the Director General. Warden Calder's finding has resulted in doubts over the validity of miscellaneous licences applied for or granted for purposes not specified in regulations 42B(a) to (m), but otherwise approved by the Director General.
Section 8 of the MLAV Act, once proclaimed, will have the effect of validating all miscellaneous licences granted prior to the proclamation date for purposes approved by the Director General of Mines under regulation 42B(n), as if those purposes were specifically prescribed in the Regulations. Similarly, section 9 of the MLAV Act provides that miscellaneous licence applications which are pending prior to the proclamation date for purposes approved by the Director General are to be dealt with as if those purposes were prescribed in the Regulations.
It is currently anticipated that regulation 42B(n) will be repealed in the near future, which would have the effect of removing the power conferred on the Director General to approve purposes for miscellaneous licences. To compensate for this, it is anticipated that additional prescribed purposes will be included in regulation 42B. The Second Reading Speech for the MLAV Act notes that the Director General approved some 42 infrastructure purposes since regulation 42B(n) was first introduced in 1991. The MLAV Act will remove the uncertainty surrounding the validity of around 450 granted miscellaneous licences.
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