Australia: Validity of WA mining tenements conditioned by strict compliance with Mining Act, High Court says

Last Updated: 22 August 2017
Article by Michael Hunt

On 17 August 2017, the High Court upheld Forrest & Forrest Pty Ltd's (Forrest) appeal and overturned a decision of the WA Supreme Court, Court of Appeal by finding that providing a mineralisation report at the same time as lodging an application for a mining lease is a pre-condition to the warden having jurisdiction to make a recommendation to the Minister and the Minister subsequently granting the mining lease.

This decision has wide reaching implications for the WA mining industry and, potentially the grant of all mining tenements (including exploration licences). The High Court read down s75(6) of the Mining Act 1978 (WA) (Mining Act) and overturned the commonly held view that the Minister has a wide discretion to grant mining leases (and presumably exploration licences) regardless of any defect in an application. This has essentially taken away the ability of the Minister (and WA Government) to grant mining tenements for policy or public interest reasons, despite any irregularities or issues involved in the application process.

The High Court has also significantly limited the protection afforded to granted tenements by s116(2) of the Mining Act.

As a result of this decision, various mining tenements in WA (not just mining leases) are at risk of being challenged and held to be invalid. A holder of a granted tenement which was applied for in a manner not strictly compliant with the Mining Act and Mining Regulations 1981, may be conducting illegal mining. There is also a risk of third parties applying for tenements over the area of these invalid applications or granted tenements, asserting that the ground is now available for application.

The practical implications of the High Court's decision also goes beyond mining tenement applicants and holders whose applications and mining tenements are now invalid. The decision may also affect existing royalty agreements, native title and heritage agreements (and related negotiations), priority for access to an area and access agreements negotiated with other parties. The holder of an affected tenement may be in breach of these agreements and/or need to re-negotiate these agreements, which may lead to requests by counterparties for further compensation.

We consider there should be legislative intervention to confirm the validity of mining tenements which have been granted by the Minister and amend s75(6)(b) (and s59(6) in relation exploration licences and s70D(6) in relation to retention licences) to confirm that any and all non-compliance may be disregarded by the Minister when granting these mining tenements. Legislators should also consider amending s116(2) to resolve the absurd result of a tenement holder being afforded greater protection after a tenement has been transferred.

In the interim, we consider holders of granted mining tenements in WA should review their tenure to determine whether there has been a failure to strictly comply with the provisions of the Mining Act in applying for and being granted their mining tenements. If there is an error which does not fall within the very narrow protection afforded by s116(2) and 75(6), those tenements are likely to be invalid. A tenement holder in such a position should consider lodging new applications over its own tenements and object to any applications for mining tenements lodged by third parties over the area of their now invalidated tenements and applications.


The appeal concerned applications for mining leases lodged by Yarri Mining Pty Ltd and Onslow Resources Ltd on 28 July 2011 over land in the Pilbara near Onslow, Western Australia.

Forrest lodged objections to those applications which are within the boundaries of Forrest's Minderoo pastoral lease on 1 September 2011. A few months after the applications were lodged, mineralisation reports were lodged for each application. No mining operations statements were lodged.

On 31 January 2014, purportedly pursuant to s75(4) of the Mining Act, the warden determined that he had jurisdiction to hear the contested applications, and proceeded to make a recommendation to the Minister that the leases be granted.

The main issue to be determined was whether the warden had jurisdiction to make a recommendation to the Minister in relation to the applications notwithstanding that they were not accompanied by a mineralisation report when the applications were made.

The primary judge in the judicial review proceedings concluded that the warden's hearing of the applications did not involve a jurisdictional error. The Court of Appeal unanimously dismissed an appeal by Forrest against that decision, holding that, although s74(1)(ca)(ii) did require a mineralisation report to be lodged contemporaneously with an application, that requirement was not a condition precedent to the hearing by, and recommendation of, the warden. The application could progress, provided that a mineralisation report was lodged at some later point in time.

High Court majority decision

A majority of the High Court has determined that provision of a mineralisation report at the time of lodging an application is a condition precedent to the warden exercising jurisdiction under s74 of the Mining Act and that the Minister's power to grant a mining lease is conditioned on receipt of a report under s75(2) or (5).

The majority said that a consideration of the language of the statute, its subject matter and objects, and the consequences for the parties of holding void acts done in breach of the Mining Act conveyed an intention not to countenance any degree of non-compliance with s74(1)(ca)(ii).

This interpretation was consistent with authority establishing that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, compliance with the requirements of the regime will ordinarily be regarded as essential to the making of a valid grant. The High Court's decision, reconfirming the application of this principle to WA mining tenements, may have a far-reaching effect on applications for and grants of mining tenements in WA.

Section 75(6) of the Mining Act provides that the Minister may grant a mining lease irrespective of whether an applicant has or has not complied in all respects with the Mining Act. The majority of the High Court read down s75(6) at [75] and held that it did not enable the Minister to disregard all non-compliance in relation to an application for a mining lease. This has overruled the commonly held understanding that the Minister could grant a mining tenement (including a mining lease) regardless of any non-compliance involved in the application process.

Section 116(2) provides that except in the case of fraud, granted mining tenements are not defeasible because of "any informality or irregularity in the application". The majority also held that non-compliance with ss74, 74A and 75 of the Mining Act does not attract the indefeasibility of title provided by s116(2).

The majority held that s116(2) was not cast in terms that were appropriate to confer indefeasibility of title in respect of any non-compliance with the requirements of the Mining Act. The majority considered the failure of the warden to observe s75(4a) was not an informality or irregularity. The majority observed that "informality" means a want of legal form as distinct from a want of legal substance and "irregularity" refers to a lack of regularity in the method or manner in which a power is exercised rather than an act beyond power. This has limited the protection afforded by s116(2) to granted tenements.

The majority of the High Court went on to say that any transferee would obtain the benefit of s116(2). This leads to a result (which we consider absurd) where a transferee would have more protection by virtue of s116(2) than the person to whom the mining tenement was originally granted.

The majority noted the Court of Appeal's efforts to focus upon the prejudice resulting from an interpretation that contemporaneous lodgement is a condition precedent to the warden making a recommendation. The majority observed that adverse consequences might also flow from their "relaxed view", for example:

  • ensuring that owners and occupiers of subject land were not troubled unnecessarily or prematurely by half-baked proposals (at [86]); and
  • land banking and disadvantaging miners in competition for access to the State's resources (at [89]).

Nettle J's dissenting judgment

In a dissenting judgment, Nettle J did not agree that a delay between lodgement of an application and lodgement of the mineralisation report vitiates the Minister's power to grant a mining lease. Nettle J noted that the Mining Act confers a broad-ranging discretion on the Minister to waive strict compliance by the applicant with any requirement of the Mining Act and noted the Court of Appeal's comment that s75(6) reflects a "flexible approach to non-compliance". Indeed, s75(6) confirms that the Minister may act notwithstanding the recommendations of the warden.

Further, s116(2) affords a mining lease with a level of protection against impeachment on account of informality or irregularity in the application. Nettle J considered that 'irregularity' has a potential wide connotation while 'informality' is confined to matters of form. Nettle J drew an analogy with a failure to comply with marking out requirements attracting the indefeasibility of title under s116(2) and noted that in all essential respects a failure to comply strictly with s74(1)(ca)(ii) is similar.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Australia
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Australia
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions