Section 116(2) to the rescue: grant of surface rights protected following transfer of WA mining tenement

The Wardens Court has found that the protection of subsequent tenement-holders in section 116(2) of the Mining Act 1978 (WA) extends to defective applications for surface rights made prior to the relevant dealing by which the tenement-holder acquires the tenement. 

Background and Findings

Peter John Panizza v Barto Gold Mining Pty Ltd & Ors [2025] WAWC 2 concerned an application by the private landowner for a declaration of invalidity in respect of that portion of a mining lease granted over the natural surface and top 30m of his land.

The mining lease was granted in 1989 and was expressly confined to a depth below 30m.

In 1990, the grant was amended by the Minister to include the top 30m of the private land, following the then-landowner and then-tenement holder entering into a compensation agreement.

That grant was made following an application, made by letter, from Mawson Pacific Limited (Mawson Pacific) to the Department of Mines.

Significantly, the Court found that pre-requisites to the valid grant of surface rights had not been met as:

1. Mawson Pacific was not the registered tenement holder at the time of that letter (though it would later become so); and
2. the letter was not served on the private landowner in accordance with section 33 of the Act. 
3. Accordingly, the Court determined that the Minister did not have jurisdiction to grant the surface rights. 

However, the Court applied the Court of Appeal’s reasoning in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 and determined that transfers of the tenement after the grant of surface rights enlivened the protection of the second clause of section 116(2), protecting the subsequent tenement holders from claims of invalidity arising from the defects in the application for surface rights. In doing so, the Court found that Barto’s surface rights could not now be attacked on the basis of the non-compliant application.

In the course of its decision, the Court rejected the argument that an application for surface rights must be in the prescribed Form 21 application for a mining tenement. While the application for surface rights could be made in that way (and a different type of tenement to the sub-surface tenement could be applied for by way of Form 21), an informal application by way of letter, to amend the original tenement to include surface rights, was also a valid method.

Implications

Importantly for those who have acquired, or are seeking, surface rights over their existing subsurface tenements, the Court found:

1. applications can be validly made by way of letter. A full formal tenement application is not required; and
2. applications for surface rights must be served on the owner and occupier of the private land, each mortgagee of that land, and the chief executive officer of the local government. A failure to do so will leave the grant of surface rights open to challenge while the tenement is held by the party which applied for surface rights.

The Court found that the holder of a subsurface tenement may apply for a different type of tenement over the surface of the land, by making a formal tenement application in the usual way. How that applies in practice is yet to be seen.

David Suttner, Partner and Angus Paterson, Senior Associate of HFW were pleased to act for the successful miner in this case.