Recent Developments of Note

Government of Western Australia proposes amendments to the Mining Act 1978

The Government of Western Australia has approved amendments to the Mining Act 1978 (WA) (MAWA), which will assist with exploration licences and improve security of tenure for future tenement applicants.

The amendments deal with the decision of the Supreme Court of Western Australia (Supreme Court) in Blue Ribbon Mines v Roy Hill Infrastructure in which the court held that the current legislation did not allow the Minister to excise areas from an application for an exploration licence and grant the remainder. The amendments will empower the Minister to grant such applications, having reduced the ambit of the licence to exclude certain area(s) of land.

The amendments also aim to prevent a repeat of Forrest and Forrest v Wilson, in which the High Court of Australia (High Court) held that the failure to strictly comply with the MAWA invalidated two applications for a mining lease. Forrest concerned applications for mining leases in which the mineralisation reports were submitted months after the applications were filed. The High Court held that the failure to lodge the mineralisation reports with the applications:

• deprived the Warden of jurisdiction to hear the applications; and
• rendered the applications, and the Warden’s recommendation to the Minister in respect of them, invalid.

The decision in Forest created significant concern within the industry about the security of tenure for existing mining tenements where the tenant failed to strictly comply with the MAWA when applying for their mining lease(s). The Government’s approval of the amendments is therefore welcome.

However, the amendments will only apply to new applications and do not address concerns held by existing tenement holders in relation to their security of tenure. So, while the amendments are a step in the right direction, further reform will be needed in order to alleviate the concerns of existing tenants. The Government of Western Australia has been in consultation with the Commonwealth Government regarding potential changes to the Native Title Act to facilitate the validation of existing tenements. In short, while the approval of the draft legislation is a step in the right direction, further reform will be needed.

Exploration licence applications in Western Australia: the wait continues in Western Australia

Pending the outcome of judicial review proceedings on the proper interpretation of section 58(1)(b) of the MAWA, the Wardens Court continues to defer determination of competing exploration licence applications.

Based on its interpretation of section 58(1)(b) of the MAWA, the Wardens Court requires applicants who seek an exploration licence to detail the work that they propose to carry out in respect of the area where the licence is sought for the entire five year term of the proposed exploration licence. That approach has been challenged and judicial review proceedings are currently before the Supreme Court of Western Australia (Supreme Court). That matter was heard by the Supreme Court in June 2024 and the decision is awaited.

Pending determination of the judicial review, the Wardens Court has been adjourning proceedings concerning competing exploration licences and section 58(1)(b) of the MAWA and this trend continues: Warden McPhee adjourned proceedings in a further matter (In the matter of competing applications for exploration licenses by Amery Holdings Pty Ltd & Another [2024] WAMW 22) until 20 September 2024. We are monitoring developments and will report on the Supreme Court’s decision in due course.