Western Australia Mining Lease Renewals and Native Title Considerations: Navigating 40-Year Renewals Under Court Precedents and DEMIRS Guidelines
In Western Australia, a significant number of mining leases are approaching their second renewal, bringing native title considerations to the forefront. In 2025, 91 mining leases owned by 52 entities will reach their second renewal, followed by 178 leases involving 68 entities in 2026i.
With each renewal potentially triggering compliance under the Native Title Act 1993 (NTA), stakeholders must navigate Department of Energy, Mines, Industry Regulation and Safety (DEMIRS) guidelines carefully. These guidelines, influenced by pivotal legal precedents, outline the obligations that leaseholders must meet when extending mining tenure beyond 42 years.
DEMIRS has taken the conservative view of the High Court’s decision so it suffers no liability, but places the mining lease holders in an unenviable position where they are disadvantaged by the DEMIRS guidelines.
Mining Lease Tenure and Renewal Rights
Under section 71 of the Mining Act, mining leases are initially granted for a term of 21 years, with a built-in right to one renewal for an additional 21 years. Any further renewals are at the discretion of the Minister. As a result, mining leases currently approaching their second renewal have already benefited from 42 years of tenure.
DEMIRS guidelines stipulate that “all subsequent renewals beyond the first 21-year renewal period are discretionary and require approval from the Minister, with consideration given to native title implications and the lessee’s compliance history”.
The Right to Negotiate Process and Exemptions
Any mining lease up for its second renewal does not qualify for exemptions from the Right to Negotiate (RTN) process under section 26D of the NTA. Section 26D specifies exemptions for certain acts that may affect native title, but these do not cover second renewals of mining leases. Accordingly, second renewals are classified as “future acts,” subject to the RTN process. DEMIRS guidelines outline this obligation, stating that “subsequent renewals not meeting exemptions under s26D are considered future acts and must proceed through the Right to Negotiate process, ensuring native title parties have the opportunity to negotiate terms”.
Legal Precedents Shaping DEMIRS Guidelines
Several court cases have reinforced that second renewals should engage native title processes. These precedents emphasize the need for renegotiation if a renewal impacts native title rights, thereby guiding DEMIRS’s interpretation of renewal obligations.
State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47
In this case, the Full Federal Court ruled that a mining lease originally granted in compliance with native title requirements may not require further native title processes if the renewal terms remain the same. However, DEMIRS guidelines clarify that “even if a lease was compliant upon its initial grant, second and subsequent renewals must reassess native title impacts to ensure continued compliance with current native title legislation”.
Western Australia v Brown [2014] HCA 8
This High Court ruling established that certain mining leases did not extinguish native title where exclusive possession was not granted. This precedent underpins DEMIRS’s guidance that “coexistence of mining and native title rights must be considered during renewal evaluations, and changes in lease terms that could impact native title necessitate engagement in the RTN process”.
Harvey v Minister for Primary Industry and Resources [2024] HCA 1
This recent case emphasized that if a renewal introduces new infrastructure or activities affecting native title, it qualifies as a future act and must undergo the RTN process. DEMIRS guidelines reflect this ruling, stating that “leases that expand in scope or scale from the original grant, even if they fall within the same tenure, are required to follow native title procedures under the RTN provisions”.
Ministerial Discretion in Second Renewals
Unlike the first renewal, which is a built-in right under section 71, second renewals are at the Minister’s discretion. This discretion allows the Minister to consider the outcomes of RTN negotiations, native title agreements, and the leaseholder’s compliance with DEMIRS regulations before granting or denying a second renewal.
DEMIRS guidelines state that “the Minister’s discretionary power in granting second renewals includes evaluating adherence to native title processes and the lessee’s compliance with environmental and operational requirements under the Mining Act”.
Practical Implications for Mining Leaseholders
For mining companies facing second renewals, the combination of court precedents and DEMIRS guidelines means that:
Engagement in the RTN Process is Required: As second renewals are not exempt under section 26D, leaseholders must negotiate with native title holders to reach agreements, as outlined by the guidelines: “Where a lease does not meet s26D exemptions, the RTN process must be initiated, providing native title parties with the right to negotiate terms related to the renewal’s impact on their rights”.
Due Diligence is Crucial: Mining companies must assess whether their lease renewal will alter native title impacts. LandTracker Due Diligence can be a valuable tool for reviewing lease terms and understanding the renewal’s potential impact on native title. The guidelines emphasize that “tenure holders are responsible for conducting thorough due diligence to ensure native title rights are respected in any proposed renewal”.
Adherence to Court Interpretations: Legal precedents like Western Australia v Brown and State of Western Australia v Graham have set a framework that DEMIRS guidelines now incorporate. Mining leaseholders must be aware that even if a lease was previously compliant, the RTN process is required for any renewal that does not meet s26D exemptions or significantly changes its native title impact.
Conclusion
With a substantial number of mining leases up for second renewal, compliance with native title requirements remains a foundational component of lease renewal in Western Australia. DEMIRS guidelines, shaped by court precedents, ensure that native title rights are respected as mining leases extend beyond 42 years. By adhering to both statutory requirements and interpretative insights from legal rulings, mining companies can navigate the renewal process responsibly, balancing resource development with the protection of native title rights in Australia.
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