Forrest seeds finally planted: Mining Amendment Bill 2025 introduced to Western Australian parliament

Legislation addressing (some) of the consequences of Forrest & Forrest Pty Ltd v Wilson and Ors [2017] HCA 30 (Forrest and Forrest), including relaxing timing requirements and validating pending applications, has finally been introduced to the Western Australian parliament.

On 26 June 2025, the Mining Amendment Bill 2025 (Bill) was introduced in the Western Australian Legislative Assembly, and the first and second reading speeches took place. Initially introduced in 2024, and halted momentarily by the Western Australian state election, the Bill returned in the new year with four further amendments – now introducing 11 key amendments to the Mining Act 1978 (the Act).

In addition to modernising the language employed by the Act, the Bill seeks to amend the Act by updating tenement application requirements and making other minor changes to improve the efficiency of resource tenure processes. Specifically, the new amendments to the bill seek to:

1. emove contemporaneity requirements for supporting documents to applications (such as mineralisation reports for mining lease applications);
2. remove obsolete requirements for the Warden to forward to the Minister, maps and notes of evidence;
3. clarify requirements for supporting documents for exploration licences and mining leases;
4. update the assessment requirements for mineralisation reports;
5. expand the definition of ‘mining tenement document’ to facilitate electronic lodgements;
6. create a power to make regulations that prescribe ways of complying with requirements for a fee or other consideration to accompany an application;
7. introduce a new section 165 which provides authority to determine pending applications affected by the principles in Forrest & Forrest
8. update the wording used in section 57 of the Mining Act regarding land that is “unavailable” for exploration and clarifying its application;
9. modify the requirements for the section 58(1)(b) statement to be lodged with an application for an exploration licence, so that the programme of work and proposed expenditure need only be provided for the first year;
10. clarify the procedural elements of expenditure exemption processes; and
11. vest certain administrative decisions regarding enforcement with the Minister rather than the Warden, ensuring a consistent decision point across all tenure types.

The Bill has specifically sought to address various decisions by the courts over the past decade, which highlighted gaps in the framework of the Act. Notably:

1. The origin of the bill is said to be in response to the High Court’s decision in Forrest and Forrest – redressing some issues, highlighted in Forrest, regarding non-compliance with the strict technical application requirements of the Act and the effects of such non-compliance on applications.
   The introduction of a new Division 2 into Part 9 of the Act will operate to validate pending applications of the grant, amendment or renewal of a mining tenement, lodged before the commencement of the Bill.
   The reform is said to restore jurisdiction to mining registrars, the Wardens and the Minister to deal with such applications, including the power to request further information as a practical measure to deal with applications that might not strictly comply with every technical requirement, protecting security of tenure for prospective applications.
2. The introduction of the ability for areas to be excised from applications for exploration licences addresses the WA Supreme Court’s decision in Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362, where the WA Supreme Court found that there was no general power in the Act to excise areas from an application for an exploration licence.
3. Changes to the application requirements for an exploration licence under section 58(1)(b) of the Act address the Warden’s decision in True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19. The amendments remove the requirement for applicants to submit a proposed method of exploration; the provision of the ‘details of the programme of work’ for the first year will now be sufficient for a valid application. Further, the amendments provide that estimated expenditure for only the first year will be required.

Implications

The Bill, if passed, will enact reforms long-awaited by the industry, but tenement holders should be cautious of its very limited retrospectivity: while it will cure in-progress tenement applications from certain Forrest and Forrest defects it will not validate granted tenements that may be subject to attack on Forrest and Forrest grounds.