Supreme Court Judge J Hall handed down his decision in the case Parkins v Lightning Ridge Miners Association Limited on 6 April 2009 and the miners won on all grounds and Parkins amended summons was dismissed. 

Mr Parkins had appealed the Mining Warden’s determination of an Access Management Plan (AMP) for ‘Wyoming’ on four grounds. The most important ground being the meaning of the term ‘access’. The other three grounds related to procedural fairness.

Parkins argued that the Warden erred in his construction of ‘access’ in relation to the AMP. The Mining Warden had found that an AMP cannot contain provisions relating to the dumping of mullock; that it cannot contain provisions requiring miners to remove mullock previously dumped on the landholders land; that he could not include provisions directing rehabilitation measures outside the access routes; without the consent of the party he could not include a condition that the LRMA remove the three mullock dumps on the landholders property; and failure generally to exercise his discretion in what can be included in an AMP.

In short the LRMA argued that mullock is a nature of mining and not related to ‘access’;that conditions of mining are contained in the title conditions; that unless both parties agree the location and extent of mullock heaps were not relevant to an AMP and could not be included; it was observed that “… Unless there is consent by the landholder to accumulate mullock, produced by mining activities, elsewhere on the land then the mullock must be stored in the site of the relevant mineral claim. This would lead to a multiplicity of mullock heaps and that would not be in the landholder’s best interest, nor in the best interest of the environment. The point is that without an agreement between the parties to include such a matter, then the storage of mullock has nothing to do with the conditions of an AMP.”; that unless both parties agree that the only conditions that can be contained in an AMP are those relating strictly to access.

Judge Hall ruled that in his opinion the Chief Mining Warden adopted the correct construction of access and concluded that no error has been established.

The three other grounds related to breaches of the requirements of procedural fairness – reliance by the Warden on a document entitled ‘A Management Plan for the property of Wyoming’ as the document was not put to Parkins for comment and submission; refusal of an adjournment to allow the NSW Department of Primary Industries to make a submission on the availability of levies to fund the enforcement of an AMP and rehabilitation; and the admission of evidence by Drago Panich without notice.

Judge Hall ruled, in short, that the Warden did not rely on the Management Plan to determine the construction of ‘access’ and would not have arrived at a different outcome if he had not considered the plan. He ruled that the Warden essentially used his discretion in not allowing an adjournment for the DPI to make a submission as levies were not really an issue in relation to ‘access’ and his discretion was not used improperly.

Judge Hall found that the Chief Mining Warden did not breach the requirements of procedural fairness in regards to evidence being heard from Drago Panich as Parkin’s lawyer was given the opportunity but did not ask for an adjournment after Drago gave evidence but went ahead and cross examined him.

This is an excellent outcome for the opal industry and may also have ramifications across the rest of the mining industry. The LRMA will be seeking costs.

Maxine O’Brien, Lightning Ridge Opal Miners Association