Proposed Mining Act Reform on the Horizon to Improve Security of Tenure

On 12 June 2024, the Minister for Mines made an announcement that the State Government intends to pass numerous amendments to improve the security of tenure of mining tenements in Western Australia.

Background

The proposed amendments are designed to overcome the consequences of the High Court of Australia’s decision in Forrest & Forrest Pty Ltd v Wilson & Ors [2017] HCA30 (Forrest), which left the security of tenure of mining tenements in Western Australia on uncertain ground.

It was held in Forrest that the failure to lodge a mineralisation report simultaneously with an application for a mining lease was fatal to the application, despite the mineralisation report being lodged some months later. The effect of this decision is that (currently) strict compliance with the Mining Act 1978 (WA) (Mining Act) is required when making an application for a mining tenement in Western Australia, with non-compliance likely to result in such an application being invalid.

Ultimately, the Forrest decision has created considerable uncertainty as to the validity of mining tenure in Western Australia.

Mining Act Reform

In 2018, following the Forrest decision, the State Government introduced the Mining Amendment (Procedures and Validation) Bill 2018 (WA) (2018 Bill) to Parliament. Regrettably, the 2018 Bill has hit a standstill while consultation concerning amendments to the Native Title Act 1993 (Cth)continues with the Federal Government.

In an attempt to revive reforms in the wake of Forrest, as well as other subsequent decisions, the State Government has now approved draft legislation to amend the Mining Act (2024 Amendments).

Although it is unclear what the new 2024 Amendments will entail, it can be expected these changes will provide improved certainty as to the procedural requirements of making applications for mining tenements in Western Australia. These reforms are likely to include:

(a)    no longer requiring supporting documents to be lodged contemporaneously when lodging a mining tenement application;

(b)    clarifying what information an applicant is required to provide in making a mining tenement application; and

(c)    provisions which provide enhanced certainty as to the security of existing mining tenures that may have been effected by the Forrest decision.

The 2024 Amendments can also be expected to address the decision of Blue Ribbon Mines v Roy Hill Infrastructure [2022] WASC 362 in which the Court held that the Minister does not have the power to excise part of a block for the purpose of the grant of a mining tenement, where a different tenement already exists over the rest of the block.  

It is likely that the 2024 Amendments will incorporate provisions which enable part of a block to be excised by the Minister for the purpose of granting an application for a mining tenement.

Conclusion

Until such a time as the 2024 Amendments are passed by Parliament into law, the strict requirements of the Mining Act will continue to apply and mining tenement applicants should be cautious to ensure they strictly comply with any application requirements.  

If you require advice or assistance in relation to a mining and resources matter, please reach out to hello@pragma.law or call us on (08) 6188 3340.

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