The Western Australian Government is fast tracking crucial amendments to the Mining Act 1978 (WA) (Mining Act), a move that will resolve some of the significant legal uncertainty that has affected the mining industry in WA in recent years.
The uncertainty originally stems from the 2017 High Court decision of Forrest & Forest Pty Ltd v Wilson & Ors [2017] HCA 30 (Forrest & Forrest) – and its ramifications have continued to be felt, including in the more recent:
WA Supreme Court decision in Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 (Blue Ribbon) – see our previous commentary on this decision.
Warden’s decision in True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19 (True Fella) – see our previous commentary on this decision.
Coupled with the guidelines published by Department of Mines, Petroleum and Exploration (formerly Department of Energy, Mines, Industry Regulation and Safety) earlier this year regarding second renewals of mining leases that took many by surprise, these developments have left the mining industry in WA operating in an environment of uncertainty and unpredictability regarding tenure security.
The Mining Act Amendment Bill 2025 (Bill) seeks to provide a legislative fix to many of these issues. Expected to be considered by Parliament next week, the 2025 Bill is a revised and expanded version of the Mining Act Amendment Bill 2024 which lapsed when it wasn’t passed by Parliament before the State election earlier this year.
Key amendments at a glance
The key amendments proposed by the Bill are:
Excising areas from exploration licence applications: Addressing the issues arising from Blue Ribbon, mining companies will now, with the approval of the Minister, have the ability to excise, from their exploration licence applications, blocks which overlap with other applications. Further, exploration licences may be granted over a smaller area than originally applied for, in cases where other tenements have been granted or applied for over the same area or where the Minister considers parts of the area are unsuitable for exploration.
Clarifying Section 58 statements: In response to True Fella, when applying for an exploration licence, mining companies will now only need to provide a proposed work program and estimate of expenditure (along with their financial and technical resources) in respect of the first year of the licence term.
Validation of applications impacted by Forrest & Forrest: The Bill introduces new provisions that validate pending applications for the grant, amendment or renewal of a mining tenement that have been lodged before the commencement of the Bill. These changes will allow the Minister, mining registrar or warden to deal with the applicant and request further information, including documents and statements, so that these applications can be determined as if the legislative requirements had originally been complied with.
Provision of documents with applications: To address some of the other implications of Forrest & Forrest and True Fella, applications for exploration licences and mining leases no longer need to be accompanied by the relevant supporting documents (namely, s58 statements or a mineralisation report), those documents can be provided within the prescribed timeframe following the application being made.
Second renewals of mining leases: The Bill also amends the current provisions of the Mining Act to clarify the process and timing around applications for second renewals of mining leases. It is understood that the regulations will provide a longer period for lodgement of a second (and further) renewal application.
Variations of tenement conditions: New provisions will be introduced to expressly allow the Minster the vary or cancel conditions imposed on the grant of a mining tenement, provided the Minister is satisfied the variation or cancellation is necessary to correct an error or can be done without detriment to the holder of the mining tenement.
Other changes are proposed to consolidate and modernise the forfeiture provisions and expenditure exemption provisions and improve operational efficiency of the Mining Act.
The amendments have been broadly welcomed by the industry. The Association of Mining and Exploration Companies (AMEC) has praised the proposed changes, viewing them as a positive step towards improving the regulatory environment in Western Australia. According to AMEC, these reforms will not only reduce administrative costs but also enhance the security of mining tenure, making the state even more attractive to investors.
These are welcome reforms given the recent results from the Fraser Institute Survey, showing that, as at August 2024, Western Australia had slipped from fourth to 17th in the global ranking of jurisdictions for investment attractiveness.
As always, Gilbert + Tobin is here to guide our clients through the changing regulatory environment, offering expert legal advice on navigating the Mining Act amendments and ensuring compliance with the provisions.