Forrest & Forrest v Wilson – consequences for mining lease applicants

As we previously reported¹, a consequence of the High Court of Australia’s decision in Forrest & Forrest Pty Ltd  v Wilson² is unexpected and unhelpful uncertainty regarding the validity of the grant of certain mining leases in Western Australia.

The State Government and the Department of Mines and Petroleum (DMP) are continuing to assess an appropriate legislative fix for the issues arising out of the High Court’s decision. Although this assessment is ongoing, the DMP has publicly indicated that the legislative fix will not cover mining lease applications which (in DMP’s opinion) are affected by the High Court’s decision. Affected applicants will be required to re-submit new mining lease applications that comply with the relevant requirements of the Mining Act. The DMP has not indicated (at this stage) whether the same approach will be taken for other applications for mining tenure which have similar document lodgement requirements.

Parties with outstanding mining lease applications (or other types of mining tenure) should review those applications to confirm whether all of the technical legislative requirements were complied with, and if not, be aware that DMP may require the application to be re-submitted.

Neither the DMP nor the State Government have indicated publicly the proposed timetable for introducing the remedial legislation, although public comments indicate a preparedness for it to take effect retrospectively if required. Until the draft legislation is released for review, uncertainty will remain regarding the extent of the proposed legislative fix for the issues arising out of the High Court’s decision.

Endnotes

1. High Court applies strict compliance test under the Mining Act 1978 (WA) and raises doubts regarding tenement validity –remedial legislative response required.
2. [2017] HCA 30.