The Department of Energy, Mines, Industry Regulation and Safety (DEMIRS) has recently published draft documents for public consultation. It is seeking public comment on:

• its review of Standard Conditions for Mining Tenements; and
• two guidance statements following the Supreme Court’s decision in Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 (Blue Ribbon), relating to ‘no mining’ conditions and excisions of areas of land upon the grant of Exploration Licences.

This note summarises the draft documents and sets out how proponents can potentially influence the final content.

Key takeaways

• DEMIRS is proposing to delete, amend or replace a number of the Standard Conditions for Mining Tenements, with a view to ‘ensuring that the Standard Conditions remain robust, effective and enforceable’. This includes potential deletion of Standard Conditions 14 (rights of ingress/egress) and 321 (the ‘snapback’ condition).
• DEMIRS’ draft guidance provides that the Minister for Mines (Minister) may consider imposing ‘no mining’ conditions in certain circumstances but that such requests must be accompanied by submissions covering prescribed topics.
• If you have concerns about any of the draft guidance, let DEMIRS know or contact one of our subject matter experts.

Review of Standard Conditions for Mining Tenements

Following Blue Ribbon, DEMIRS has published its ‘Review of Standard Conditions for Mining Tenements Outcomes Report’ dated October 2023 which analyses 113 existing standard conditions. Of those:

• 42 conditions are proposed to be removed;
• 38 conditions retained;
• nine conditions amended;
• three new conditions added; and
• the remaining 24 conditions ‘converted’ to ‘endorsements’.

Some of the rationalisations for the deletions are as follows:

• the condition is covered in the new Mining Amendment Act 2022 (WA), new condition(s), the existing Mining Act 1978 (WA) (Mining Act), the Programme of Works assessment or other legislation;
• the condition is already covered by or merged with other existing conditions or is obsolete; and/or
• DEMIRS is unable to enforce or assess compliance, or the matters addressed are otherwise outside of the scope of DEMIRS or the Mining Act.

Notably, the deleted conditions include standard condition 14: “The rights of ingress to and egress from Miscellaneous Licence **PROMPT** being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence” on the basis that it is “not enforceable”. There appears to be no current plan to replace or amend this condition.

Further, standard condition 321, that “The area of the miscellaneous licence to be reduced as soon as practicable after construction, to a minimum for the safe maintenance and operation of the licence purposes”, is proposed to be deleted, with the rationale from DEMIRS being that this matter is “[n]ot within scope of the Mining Act 1978”.

DEMIRS has advised amendments to the conditions are, among other things, for “clarity and simplicity”. 

Guidance Statement #1 – Use of ‘No Mining’ conditions under the Mining Act

The draft guidance statement on ‘no mining’ conditions provides that the Minister may give consideration to the imposition of ‘no mining’ conditions in certain circumstances. These include where there is significant project infrastructure, an existing or proposed State significant project, a proposal for a change of land tenure, or insufficient protection provided by the Mining Act or other legislation. However such conditions must be valid for the purposes of the Mining Act and must not lack certainty or finality.

The draft guidance also provides that parties may continue to request the Minister to impose non-standard conditions using Minutes of Programming Directions (MOPDs) but will need to make a submission to the Warden for the Minister’s consideration including information on a variety of prescribed matters. The draft guidance on grounds to justify using a non-standard ‘no mining’ condition has been flagged to apply to “other mining tenement types”, not just Exploration Licences.  It also sets out two new ‘no mining’ Standard Conditions for private railways and “other discrete areas of land” (ie any mining tenement that encroaches on an FNA (file notation area) identified by the Minister as land to be protected), to be included in the Standard Conditions list.

Guidance Statement #2 – Excision of areas of land upon the grant of an Exploration Licence

The draft guidance statement as to excision of areas of land upon the grant of an application for Exploration Licence echoes the Blue Ribbon findings that the Minister does not have the power to:

• excise areas of land from a block; or
• excise whole blocks.

Interpretation issues

Existing conditions cannot be amended (other than environmental conditions) following grant, so that means standard conditions imposed up to the date of any amended Standard Conditions list coming into force will ‘stand’ on granted tenements. But there is a live question as to how they will be interpreted.

To the extent that Standard Conditions are deleted for fear they are not enforceable, does that mean DEMIRS will treat existing conditions as unenforceable?

Equally, if a standard condition is amended ‘for clarity’, does that mean that DEMIRS will read the old condition as if it were phrased in the new form? Or disregard it as uncertain?

Next steps

Now is the time for your voice to be heard on these drafts.

Submissions on the DEMIRS public consultation close 5.00pm Friday 9 February 2024. All submissions will be published publicly verbatim and do not remain anonymous; they can be sent via email to RTD.Consultation@dmirs.wa.gov.au.

Given the closing date it appears that a new list of standard conditions will not be finalised by DEMIRS until mid-way through 2024. Until such a time parties can continue to use the existing list of Standard Conditions.  

If you have questions on the above or what this means for you or your company, please contact one of our experts.