The Mining Amendment Bill 2024 (MAB 2024) arrives not as a triumph of foresight but as a glaring reminder of the government’s long-standing inaction. The provisions introduced are undeniably critical, yet their necessity arises solely due to the government’s years of indifference following the landmark High Court decision in Forrest & Forrest v Wilson [2017] HCA 30.

Despite the High Court’s unequivocal ruling that non-compliance with strict application requirements invalidates mining tenement grants, the government dragged its feet for over seven years. This legislative inertia has exacerbated regulatory uncertainty, stifled investment, and rendered mining proponents vulnerable to devastating legal challenges.

Key provisions of the MAB 2024 include removing the contemporaneity requirements for supporting documents, expanding the definition of ‘mining tenement document’ to accommodate electronic lodgments, and validating non-compliant applications. While these changes are welcome, they merely address symptoms of a deeper issue caused by the government’s refusal to act sooner.

The Forrest case should have sounded a clarion call for immediate reform. Instead, subsequent cases, including Pantoro South Pty Ltd v Truefella and Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd, saw wardens and courts forced to rigidly adhere to the outdated provisions, further entrenching uncertainty. The judiciary’s strict interpretation of the Forrest precedent was not an overreach but a reflection of their obligation to enforce a flawed statute. The government’s failure to amend the Act sooner left no room for judicial discretion, forcing the courts to “uphold the letter of the law” rather than administer practical justice.

The fallout has been severe. The absence of legislative intervention led to unnecessary delays, increased litigation, and the invalidation of applications that would otherwise support economic development. Meanwhile, stakeholders waited in legal limbo, their investments and future plans undermined by procedural technicalities that should have been addressed years ago.

The MAB 2024 introduces procedural changes that should have been implemented in 2017. For instance, the bill’s provision to allow the excision of areas from exploration licence applications—necessitated by the Supreme Court’s decision in Blue Ribbon (2022)—highlights how the government has only acted reactively, addressing issues piecemeal rather than proactively instituting comprehensive reform.

Furthermore, the bill seeks to modernize administrative processes by permitting digital lodgments and updating section 19 instruments. However, these updates, touted as innovative, are embarrassingly overdue in an era where other industries have embraced digital transformation for over a decade. The removal of obsolete provisions related to the Joint Ore Reserves Committee (JORC) Code also exemplifies how outdated practices have persisted due to the government’s neglect.

The so-called “indefeasibility provision” amendments are a belated attempt to shield tenement holders from vexatious legal challenges. However, this protection should never have been in question had the government taken decisive action following the Forrest decision. The prolonged vulnerability of tenement holders has tarnished Western Australia’s reputation as a secure mining jurisdiction, with the government’s complacency undermining its investment appeal.

Perhaps the most egregious aspect of the government’s delay is the validation clause for pending applications. The need to retrospectively “cure” applications that failed to meet outdated procedural requirements underscores how avoidable this chaos was. Rather than proactively safeguarding tenure security, the government’s passivity necessitated legislative triage.

The Mining Amendment Bill 2024, while addressing critical gaps, is far from a testament to good governance. Instead, it stands as a stark indictment of a government content to ignore systemic issues until forced into action by judicial pronouncements. The regulatory uncertainty inflicted on the mining industry over the past seven years is a direct consequence of this negligence.

Western Australia’s mining sector deserves better than a reactive government that waits for crises before implementing reforms. If the MAB 2024 proves anything, it is that legislative complacency carries an immense cost. While the amendments may finally restore jurisdiction to mining registrars, wardens, and the minister, they do so years too late, after untold damage to investor confidence and economic growth. The government’s belated response to the Forrest decision should serve as a cautionary tale of the perils of regulatory stagnation in a sector that demands foresight and agility.

In sum, the Mining Amendment Bill 2024 is not a victory—it is an overdue correction of failures that should never have persisted. The government must ensure that the lessons from this debacle are not forgotten and that future legislative frameworks prioritize adaptability, certainty, and industry collaboration from the outset.

Upcoming Training:

• Practical Tenement Management – 27-28 February 2025
• Tenement Literacy 101 – 6 March 2025
• Advanced Tenement Management – 3 – 4 April 2025
• Understanding Tenement Expenditure – 8-9 May 2025
• Environmental Essentials – Date TBD