Update on State Government’s Forrest & Forrest “fix”

The Bill that seeks to amend the Mining Act 1978 (WA) to remove uncertainty around the validity of mining tenements as a result of the High Court decision in Forrest & Forrest, was read in Parliament for a second time in late-2018. However, quite when the Bill will be passed remains uncertain.

Forrest & Forrest – A brief refresher

Many involved in the mining sector in WA will be aware of the High Court’s 2017 decision in Forrest & Forrest Pty Ltd v Wilson & Ors [2017] HCA 30.

The central question for the Court was whether the phrase “shall be accompanied by” in section 74(1) of the Mining Act requires a mining operations statement and a mineralisation/resource report to be lodged at precisely the same as the mining lease application (i.e. contemporaneously).

The tenement applicants in Forrest & Forrest had lodged mineralisation reports several months after their corresponding mining lease applications had been made (which was not uncommon). The Department’s general practice had been to allow these documents to be lodged subsequently.

By a 4:1 majority, the High Court held that the phrase “shall be accompanied by” in section 74(1) must be interpreted strictly. This meant that the mining lease applications had not been made in accordance with the Mining Act, and were therefore invalid.

Reaction and inaction

The provisions of the Mining Act requiring concurrent lodgement of the required supporting documents came into effect on 10 February 2006. Therefore, any mining leases applied for after that date which were not physically accompanied by the required supporting documents were at risk of being invalid.

Within weeks, the WA Minister for Mines issued a press release promising swift action “to ensure certainty and security for mining operations”. However, throughout 2018, progress on the amending legislation stalled as a result of the State Government’s position that the introduction of amendments retrospectively validating tenements might be a “future act” under the Native Title Act 1993 (NTA). A standoff ensued between the WA Minister for Mines and the Federal Attorney-General about which set of amendments (i.e. those to the Mining Act or those to the NTA) needed to be passed first.

Proposed amendments to Mining Act now clarified

On 28 November 2018, the Mining Amendment (Procedures and Validation) Bill 2018 was introduced into the WA Legislative Assembly and read a second time by the Minister.

Broadly speaking, the Bill seeks to do two key things:

1. restore the status quo that existed prior to the Forrest & Forrest decision by confirming the validity of all previously-granted mining tenements; this is achieved by inserting a new Part X into the Mining Act (pending applications are also to be dealt with as if there had been compliance with prescribed requirements); and
2. provide greater certainty and clarity in the application and determination process – this includes the removal of the requirement that mining lease applications must actually be accompanied by supporting documents, such as mineralisation reports, at the time of lodgement.

Timing remains uncertain

While the form of the State Government’s proposed “fix” to the Forrest & Forrest issue is now known, there still remains uncertainty around when the Bill will be passed. During his Second Reading Speech, the Hon. Bill Johnston MLA called on the Commonwealth to “reciprocate by progressing the required amendment to the Native Title Act”. While an exposure draft of certain proposed amendments to the NTA is currently going through a submission process, these amendments do not include ones aimed at resolving any “future act” implications from the passing of the Bill.