Forrest & Forrest revisited: Strict compliance requirement reinforced

Articles Written by George Croft (Partner), Georgia Marwick (Associate)

Onslow Resources Ltd v Minister for Mines and Petroleum [2021] WASCA 151 (Onslow Appeal)

The Western Australian Court of Appeal has followed the High Court’s strict approach reiterating that mining companies cannot “cure” non-compliant applications for mining leases after the fact, following Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510 (Forrest & Forrest).

The decision in the Onslow Appeal also confirms that there is no room for a “partially compliant” mineralisation report or mining operations statement under the legislative regime. Either a document meets the requirements of a mineralisation report or mining operations statement, or it does not. If it does not, a valid application for a mining lease will not have been made.

Mining companies were already on notice after Forrest & Forrest. However, the Onslow Appeal serves as yet another timely reminder that accompanying documents must strictly comply with the legislative requirements and be lodged at the same time as the application itself.


Onslow Resources Ltd (Onslow), lodged an application for a mining lease 09/150 on 25 May 2012.

Section 74(1) of the Mining Act 1978 (WA) (Act) requires, amongst other things, that an application for a mining lease must be accompanied by a mining operations statement and a mineralisation report.[1]  Subsection 74(1a) prescribes the information that must be set out in the mining operations statement. Relevantly, this includes when mining is likely to commence and the likely method of mining.

In purported compliance with section 74(1)(ca)(ii), Onslow lodged with the Application a mineralisation report and a cover letter (Letter). The Letter summarised the contents of the mineralisation report. Onslow did not lodge a mining operations statement with the Application.

In August 2012, in response to an email from the Department requesting additional information, Onslow submitted a revised mineralisation report and a statement regarding its proposed mining operations (Supporting Statement).[2] The Supporting Statement contained the information required by s74(1a) of the Act.[3]

Following receipt of the Supporting Statement, on 13 September 2012, the Mining Registrar recommended the grant of the mining lease, but did not forward the report containing the recommendation to the Minister, as required by s 75(2) of the Act. 

On 11 October 2017, and following the High Court’s decision in Forrest & Forrest, an officer of the Department made a decision to record that the Application was null and void on the basis that it had not been accompanied by a mining operations statement at the time it was lodged.

Onslow sought leave to bring an application for judicial review of the officer’s decision. [4]  At trial, Smith J refused leave and dismissed the application on the basis that:

(a)Onslow had been required, by s 74(1)(ca)(ii) of the Act, to submit a mining operations statement with the Application, and the Letter was not a mining operations statement for the purposes of the Act;[5] and

(b)even if the Letter was a ‘partially compliant’ mining operations statement, the application for judicial review would fail because, amongst other things, it was not open for the Mining Registrar to conclude that Onslow had complied in all respects with the provisions of Act.[6]

Onslow Appeal

Onslow appealed the decision on two grounds:

(a)First, that the trial judge erred in finding that the Letter was not a mining operations statement. Onslow contended that, properly construed, the Letter was a mining operations statement.

(b)Second, that the trial judge erred in law in determining that the Mining Registrar had no power to disregard non-compliance in proceeding to make a recommendation under s 75(3) of the Act. 

Onslow accepted that Forrest & Forrest (which concerned the failure to have lodged a mineralisation report at the time of the application) applied with equal force to the failure to lodge an accompanying mining operations statement. However, Onslow sought to distinguish Forrest & Forrest on the basis that, there, no mineralisation report had accompanied the application at all, whereas Onslow submitted that the Letter constituted a mining operations statement (albeit a non-compliant one).[7]

In dismissing the appeal, their Honours referred to the High Court’s consideration of the language of s 74(1)(ca)(ii) in Forrest & Forrest, and that, “as a matter of ordinary parlance … the documentation relied upon must have been lodged at the same time as the application was lodged”.[8]

With respect to ground one, their Honours noted that the Letter did not purport to be a mining operations statement. In fact, the Letter only referred to the mineralisation report and its contents.[9] The Letter was plainly a cover letter enclosing the mineralisation report. The Letter also failed to contain any of the information required by s 74(1a) of the Act.[10]

Onslow accepted that its second ground was predicated on the success of ground one.

Despite the failure of ground one, and because it related to the proper construction of the Act, their Honours made several observations in respect of ground two, including that “a statement lodged with an application for a mining lease either meets the criterion stipulated in s 74(1)(ca)(ii)… or it does not”. In the Court’s words, “[t]here is no ‘halfway house’” where a document includes a sufficient amount of information required by s 74(1a) to enliven jurisdiction but insufficient information to comply with the Act.[11]

Onslow’s construction would have effectively “relaxed” the requirements of the legislation, including that officers of the executive government, charged with its administration could (and should) allow a certain level of non-compliance with the Act. In the words of the majority of the High Court in Forrest & Forrest, “to permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime… one can be confident that such a state of affairs was not intended by the Act”.[12]

The Onslow Appeal confirms that lodgement of a non-complaint mining operations statement or mineralisation report, at the time of the application, cannot be subsequently cured by the provision of further information (such as a compliant statement or report). Beyond that, the Mining Registrar does not have the power to make a recommendation under s 75(3) of the Act in circumstances where an application for a mining lease fails to comply with s 74(1)(ca)(ii) of the Act.

Looking to the future

In light of Forrest & Forrest, the Mining Amendment (Procedures and Validation) Bill 2018 (WA) was introduced to provide certainty by validating mining tenements which could have been affected, and clarifying and streamlining the application and determination provisions of the Act.[13] The Bill stalled following reforms to the Native Title Act 1993 (Cth) and discussions are continuing between the Commonwealth and Western Australia Government.

See our previous article on the proposed amendments to the Act

[1] Subsection 74(1)(ca)(ii) of the Act. Note that an application for a mining lease can, in the alternative, be accompanied either by a mining proposal (s 74(1)(ca)(i)) or by a mining operations statement and a resource report (s 74(1)(ca)(iii)). However, compliance with s 74(1)(ca)(ii) was at issue in the Onslow Appeal.

[2] An initial Supporting Statement was submitted on 22 August 2012, and a revised version was subsequently submitted on 29 August 2012; Onslow Appeal [27]; [29].

[3] Onslow Appeal [29].

[4] Onslow Resources Ltd v Hon William Joseph Mohnston MLA in his capacity as Minister for Mines and Petroleum [2020] WASC 310 (Primary Reasons).  

[5] Primary Reasons [75], [77].

[6] As required by section 75(3) of the Act; Primary Reasons [79] – [80].

[7] Onslow Appeal [21].

[8] Forrest & Forrest, [67].

[9] Onslow Appeal [37].

[10] Onslow Appeal [40].

[11] Onslow Appeal [49].

[12] Forrest & Forrest [65]. 

[13] Mr W.J Johnston (Minister for Mines and Petroleum), Second Reading Speech, 28 November 2018.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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