· ensured that objections related to native title are dealt with by the specialist procedures established under the Native Title Act; · prevented the Warden being involved in any collateral attack on the procedures established under the Native Title Act, or decisions or outcomes arising from those procedures; and · avoided any potential inconsistency between the provisions of the Mining Act and the provisions of the Native Title Act (legislation that the Commonwealth Government fully intended to cover the field). Orders made by Warden Burton Warden Burton did exercise his discretion not to hear the Objector and made orders for the grant of both miscellaneous licences. Warden Burton found that in circumstances where: · a specific native title procedure was established; · notice triggering this native title procedure had been properly served; and · there had been no objections lodged within the prescribed time, he ought to exercise his discretion not to hear the Objector. APPLICATION FOR MINING LEASE ­ SN 49 MINING ACT - SURRENDER OF UNDERLYING PROSPECTING LICENCE ­ APPLICATION FOR DECLARATION* Castek Pty Ltd v Astro Mining NL [2002] WAMW 25 (Perth Warden's Court, Warden Calder SM, 8 November 2002) Facts The Mining Act (s 49) confers on a prospecting licence holder the right to apply for a mining lease for land over which it holds the prospecting licence/s ("the land"). In accordance with that section, Astro Mining NL ("the defendant") lodged a mining lease application but pending consideration of the application by the Minister it surrendered the prospecting licences it held for the land. Castek Pty Ltd ("the plaintiff") sought a declaration from the Warden that the mining lease application was invalid due to surrender of the prospecting licences. The plaintiff's submissions The plaintiff submitted that, to be granted a mining lease, s 49 requires the applicant to hold a current prospecting licence for the land. As the defendant had surrendered the relevant prospecting licences, it was no longer in a valid position to be granted the mining lease. The defendant's submissions The defendant submitted that: * Simon Eley and Daniel Pether, Clayton Utz, Perth. 323 Recent Developments (2003) 22 ARELT · a mining lease applicant is not required to hold a current prospecting licence over the land the subject of the application; and · according to the Supreme Court's decision in Egypt Holdings Pty Ltd v Esso Exploration & Production Australia Inc4, an application for a mining lease made pursuant to s49 is also a valid application under s74 and the lease can therefore be granted in accordance with ss71, 75(7). (These sections confer power on the Minister to grant a mining lease.) Reasons for decision Warden Calder applied the principle laid down by Egypt v Esso and held that the defendant need not hold a current prospecting licence over the subject land to be granted a mining lease. Expiration or surrender of a prospecting licence does not invalidate an application for a mining lease. The prospecting licence holder's right to apply for a mining lease pursuant to s49 ceases upon expiration or surrender of the prospecting licence, but the right to have a lease granted survives beyond termination of the prospecting licence. The Warden held that the surrender of the prospecting licences following application for a mining lease did not jeopardise the defendant's mining lease application. The Warden also cited policy reasons for rejecting the plaintiff's submissions. Once a prospecting licence holder has lodged a mining lease application the process for granting the lease is beyond the control of the applicant. There may be a significant hiatus between application for, and grant of, the mining lease (in this case over three years) and it would be unfair to expect the applicant to fulfil its prospecting licence obligations for an indefinite period pending grant or rejection of the application. EXEMPTION APPLICATION AND PLAINT FOR FORFEITURE - USE OF STATUTORY DECLARATION AT HEARING Tekmet Services Pty Ltd & Quantum Resources Ltd v Hodgkinson [2002] WAMW 33 (Perth Warden's Court, Warden Calder SM, 10 January 2003) Facts Tekmet Services Pty Ltd ("Tekmet") applied for a certificate of exemption from expenditure in respect of an exploration licence on various grounds. Quantum Resources Ltd ("Quantum") was joined as a defendant to the action as the purchaser and, upon registration, the beneficial owner of the exploration licence. Hodgkinson ("the Plaintiff") objected to the application and sought forfeiture of the licence. By a statutory declaration attached to the exemption application, Quantum 4 [1988] WAR 122. Simon Eley and Daniel Pether, Clayton Utz, Perth.