Here is the relevant clause in the Mining Act -
112 Consent to dealing in exploration licence during first 2 years
(1) During the first 2 years of the term for which an exploration licence is granted, a
legal or equitable interest in or affecting the exploration licence must not be
transferred or otherwise dealt with, whether directly or indirectly, unless—
(a) the dealing or other transaction in or affecting the interest arises in the due
administration of the affairs of a holder that is in the course of being wound
up (not being a voluntary winding up); or
(b) prior written consent to the dealing or other transaction in or affecting the
interest is given by the Bougainville Executive Council.
(2) A transfer of or other dealing in a legal or equitable interest in the shares of a
holder of an exploration licence is taken to contravene Subsection (1) if more than
25% of the issued shares of the holder are so affected within the 2-year period.
(3) If a transfer of or other dealing in an interest results in a contravention of
Subsection (1), the Secretary must initiate the procedure under Section 284 for
cancellation of the exploration licence.
(4) Nothing in Subsection (1) prevents, or affects the validity of, any agreement made
in contemplation of a dealing or other transaction to which that subsection applies
where the agreement expressly provides that the consent required by that
subsection is to be obtained as a condition of the dealing or other transaction.
Clearly, no permission to transfer the shares was sought or granted, so the action by Rio Tinto contravenes the act. It is therefore an illegal action, it contravenes the law, no inverted commas required.
Therefore BCL's exploration license, EL1, should have been cancelled.
Now, whether this illegal action was overlooked, or accepted by the ABG as it expected to gain some benefit from it, I have no idea. But, given the revelation that they have, in fact, received no benefit from the transfer should give the ABG cause to take the action required by its own Mining Act.
As far as I know, no court action is being undertaken on this but, obviously, the door is open & the licence should be cancelled & the cancellation backdated to the Rio Tinto share transfer action announcement.
It looks an open & shut case to me.
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