The Australian Resources and Energy Law Journal (ARELJ) began as a collaboration between The Centre for Energy and Resources Law of the University of Melbourne, The Centre for Mining Energy and Natural Resources Law of the University of Western Australia and AMPLA Limited.

A peer reviewed, academic publication, the ARELJ covers current issues, recent developments and challenges relevant internationally and locally to each state and territory.

As well as peer reviewed articles, the ARELJ contains comments on matters of interest, notes on recent developments in case law and legislation, case notes and occasional book reviews.

 


ARELJ 39 (1)


THE GREAT SPACE RUSH: REGULATING SPACE MINING (Dr Andrew Cannon AM FAAL)

This article discusses why the existing international framework is not ready for an anticipated rush to exploit space resources. Nation State models cannot adequately deal with issues of giving tradeable rights to exploration areas and title to space resources, and providing sufficient incentives and sanctions to prevent dangerous risk-taking behaviour. They are also unlikely to deliver a benefit to all of mankind. It argues that Australia, with its history of involvement in space and expertise in the mining industry, should encourage a process of negotiation of international agreement to regulate space mining.

 

THE GROUNDS NOT TAKEN: RELIANCE ON ADDITIONAL MATTERS TO SUPPORT THE REFUSAL OF CONSENT TO THE ASSIGNMENT OF A JOINT VENTURE INTEREST (Stuart Cobbett)

A joint venture participant alleged to have unreasonably withheld its consent to the assignment of another party’s interest may wish to rely on additional grounds and supporting material which did not influence the refusal. Courts in England, Canada and Australia have reached different conclusions on whether the decision-maker can bolster its refusal in this manner. Under English law, the decision-maker is restricted to the reasons that influenced the refusal and the material available at the date of the refusal of consent. An even stricter approach is taken under Canadian law, with the decision-maker limited to the reasons given for the refusal. In contrast, as a result of the High Court decision in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HC 51, Australian law permits reliance on grounds not taken at the time of refusal and material existing but unknown to the decision-maker at the date of refusal. It has also been held that, in challenging the refusal, the assignor is permitted to rely on material unknown to the decision-maker at the date of refusal. This paper argues that the Australian approach is unduly broad and may assist unreasonable decision-makers and punish reasonable decision-makers. The paper proposes an alternative approach whereby a party is only permitted to rely on additional material if the other party has failed to comply with its contractual duty of cooperation.

 

 


NEW SOUTH WALES

HEALTH AND SAFETY: DUTIES OF PERSONS CONDUCTING A BUSINESS OR UNDERTAKING (Sara Parker)

The recent NSW District Court decision of Orr v Hunter Quarries Pty Limited examines the health and safety duties of persons conducting a business or undertaking, with a particular focus on the limits of such duties in circumstances where a risk is created by the unforeseeable behaviour of a worker. The decision highlights that, whilst a degree of non-compliance is to be expected, there are limits to this.

 

VICTORIA

APPLYING THE CAUTIONARY PRINCIPLE TO HARVESTING TIMBER IN VICTORIA (Aleksandar Vuksic)

The recent Victorian Supreme Court decisions in Wildlife of Central Highlands Inc v VicForests [2020] VSC 10 and WOTCH v VicForests (No. 2) [2020] VSC 99 mark the first injunctions made in the wake of the Black Summer bushfires restraining VicForests from harvesting timber in coupes on the basis that to do so would be a breach of the precautionary principle given the impacts of the fires on threatened species and their habitat. The decisions highlight that the scope of the precautionary principle is such that it may restrict harvesting of timber in coupes already approved in the wake of unprecedented natural disasters such as the Black Summer fires.

 

WESTERN AUSTRALIA

APPLICATIONS FOR EXTENSION OF TIME TO LODGE AN OBJECTION UNDER THE MINING ACT 1978 (WA) (Tim Kavenagh)

A third party may have an interest in the outcome of an application for an extension of time. The failure to provide procedural fairness will usually lead to the conclusion that the decision is no decision at all, and the application can be reheard. Practitioners should be careful not to communicate with the warden without other litigants being included.

 

GUIDANCE ON THE PRINCIPLES THAT APPLY TO A DECISION OF A WARDEN UNDER S 122E OF THE MINING ACT 1978 (WA) IN RESPECT OF THE REMOVAL OF A CAVEAT Richore Pty Ltd v Cougar Metals NL [2020] WAWC 1 (Tom Barrett)

On 30 April 2020, Warden O’Sullivan handed down his decision in Richore Pty Ltd v Cougar Metals NL [2020] WAMC 1, which concerned a plaint for the removal of a caveat from mining lease M 39/159. Warden O’Sullivan’s decision is an illustration of the approach to be taken by a warden in deciding whether to direct the removal of a caveat under s 122E of the Mining Act 1978

 

JUDGMENT CLARIFIES EXTENT OF NON-CONFORMING USE PROTECTIONS (Brent Lillywhite, Marisa Taliangis, and Radhika Kayarat)

In Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45, the Court of Appeal in the Supreme Court of Western Australia found that the clearing of bushland and digging of a drain for agricultural purposes was not protected by the non-conforming use provisions under the local planning scheme. The Court reasoned that as these activities involved the physical alteration of the land, as opposed to the use of land, they fell outside the protections of the applicable nonconforming use provisions, and instead required planning approval. This decision will be relevant to those in the resources industry relying on the protections provided by non-conforming use provisions to carry out their extractive industry activities.

 

COMMONWEALTH

CLARK V MINISTER FOR THE ENVIRONMENT [2019] FCA 2027 (Matthew Pudovskis)

A third party may have an interest in the outcome of an application for an extension of time. The failure to provide procedural fairness will usually lead to the conclusion that the decision is no decision at all, and the application can be reheard. Practitioners should be careful not to communicate with the warden without other litigants being included.

 

QUEENSLAND

NEW POWERS TO DISQUALIFY PERSONS FROM HOLDING RESOURCE AUTHORITIES IN QUEENSLAND (James Minchinton)

With rights to minerals vested in the Crown, so it has always been that the Crown has reserved to itself the right to determine who may receive the grant of licences to explore for and extract those minerals. The credentials and standing of persons to whom resource authorities in Queensland may be granted and the processes for obtaining the grant of such resource authorities are set out in a number of pieces of legislation depending on the type of resource authority being sought.

 

Members can access older issues of the journal online in via the AMPLA Library

 

Editorial Committee

The Editorial Committee is responsible for the publication of AREL Journal, reviewing all submissions, and approving or rejecting each for publication.

Editor: Dr Alexandra S Wawryk, Senior Lecturer Law School, The University of Adelaide
Committee Members:
• Simon Bladen, Rio Tinto
• Kanaga Dharmananda, Francis Burt Chambers WA Bar
• Mark Gerus, Francis Burt Chambers
• Peter Holden, ActewAGL
• Lauren Kirkwood, Baker & McKenzie
• Natalie Lonergan, Norton Rose Fulbright
• Robert Merrick, Herbert Smith Freehills
• James Minchinton, Sparke Helmore
• Peter Rose, Johnson Winter & Slattery

Submissions

Authors considering a submission should contact their State Coordinator to discuss whether any proposed topic has already been assigned to an author.

 

Submission Requirements

An article is 3-10,000 words and argues a core substantial point with appropriate supporting analysis and references. An article may be submitted to the Branch Coordinator at any time. Articles are subject to peer review and will not be published until that process is complete.

Comments, case notes and book reviews are 1-3,000 words and will give an explanation and analysis of a recent topical issue, case or book.

Recent development reports are up to 1,500 words and describe a recent policy, legislative or case law development with minimal analysis

 

Notes for Authors

Authors preparing submissions for the AREL Journal should ensure that all references and other material are in accordance with the Notes for Authors.

Copyright

Articles subject to peer review - authors are required to provide an assignment of their copyright.

Other submissions - authors are required to provide AMPLA with a licence to publish

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