Jurisdiction - Australia
Energy & Project Finance
Herbert Smith Freehills
Australia – Mining Amendment Act 2012 – Now In Force.

18 March, 2013


Legal News & Analysis – Asia Pacific – Australia – Energy & Project Finance




Having received Royal Assent on 29 November 2012, the Mining Amendment Act 2012 (WA) (MAA) came into full force on 2 February 2013.


The MAA introduces some welcome changes to the Mining Act 1978 (WA) (Mining Act) that serve to improve the effectiveness of the Mining Act and its regulations.


Amongst its various amendments, the MAA:


  • enables mining on ‘Commonwealth land’ (subject to certain consents being obtained)
  • allows listed companies applying for mining leases to submit a ‘resources report’ instead of a mining proposal or statement and mineralisation report, and
  • allows miscellaneous licences to be sought for purposes ‘connected with mining’ and removes the requirement for marking out.


These and other aspects of the MAA are addressed in more detail below.


Commonwealth land


The MAA enables mining on Commonwealth land by inserting a definition of ‘Commonwealth land’ into section 8 of the Mining Act (clause 5 MAA) to include land over which the Commonwealth holds a freehold or leasehold interest, or land that is otherwise vested in the Commonwealth. Notably, however, the State will not have the power to resume Commonwealth land (clause 10 MAA; section 21 Mining Act).


In order to mine on Commonwealth land, both the written consent of the WA Minister for Mines and Petroleum and the agreement of the Commonwealth Minister for Sustainability, Water, Population and Communities (clause 13 MAA; section 25A Mining Act) is required.


It is expected that, by early May 2013, applicants for an exploration licence that currently encroaches on Commonwealth land will have priority to mark out or apply for a mining tenement for the land that is the subject of the existing application. Applications will be considered in order of priority, as determined by the date and time the existing applications were made. (clause 43 MAA; section 18, Division 2, Second Schedule Mining Act).


Exploration licences – compulsory surrender


The date for compulsory partial surrender of an exploration licence has been extended from five to six years after the grant of the licence (clause 20(1) MAA; section 65 Mining Act), allowing mining companies an extra year in which to conduct exploration activities before coming to a final decision as to the area to be surrendered.


While compulsory partial surrender formerly applied to exploration licences granted in respect of more than one block, the requirement to surrender now applies only to exploration licences covering more than ten blocks (clause 20(3) MAA; section 65 Mining Act). Also of note is the exemption from such compulsory partial surrender of exploration licences with approved retention status (clause 20(4) MAA; section 65 Mining Act).


Following compulsory surrender, six discrete areas, each consisting of a single graticular section or a number of adjacent graticular sections, are allowed to remain – an increase from the previous three discrete areas (clause 20(5) MAA; section 65 Mining Act).


Mining lease applications


Section 74 of the Mining Act has been amended to allow a more flexible regime for listed companies making mining lease applications. Previously, an application for a mining lease had to be accompanied by either a ‘mining proposal’ or a ‘statement and mineralisation report’. Listed companies may now instead lodge a ‘resource report’ which must detail the location of the mineral resources, comply with the JORC Code, and be submitted to the ASX (clause 23-24 MAA; sections 74 and 82 Mining Act).


Mining operations


The definition of ‘mining operation’ has been broadened such that new methods of mining, including combustion and the operations by which a processed mineral resource is produced and recovered, are now regulated (clause 5 MAA; section 8 Mining Act). Burning coal underground to obtain gas is now considered to be a ‘mining operation’.


Miscellaneous licences


The scope of miscellaneous licences has been expanded to encompass purposes connected with ‘mining’ in a broader and more general sense, rather than ‘mining operations’ only (clause 26 MAA, section 91 Mining Act). In practice, this allows miscellaneous licences to be granted at an earlier stage, before mining operations commence.


Marking out is no longer a procedural requirement for miscellaneous licence applications (clause 27 MAA; section 93 Mining Act).


Other significant changes


Other significant changes to the MAA include:


  • A hard copy licence or lease document will no longer be issued automatically but can nevertheless be obtained on the payment of a prescribed fee (cl 34 MAA; s116 Mining Act).
  • The time limit for prosecuting an offence under s160B of the Mining Act has been extended from 12 months to 3 years (cl 39 MAA).
  • A warden must now declare their (direct or indirect) interest in a matter and obtain the consent of all of the parties to the matter before presiding over it (clause 6MAA; section 15 Mining Act.
  • The MAA has increased the penalties that apply in lieu of forfeiture of a mining tenement. Instead of declaring the forfeiture of an exploration licence, for example, the Minister can impose a maximum penalty of $75 000 (for individuals) – an increase from $50,000. Mining companies should also note that corporate penalties can now be imposed as high as $150,000 which is twice the rate of individual penalties. (clause 28-30 MAA; section 96 Mining Act).




The amendments to the Mining Act introduced by the MAA are the most exhaustive since the 2006 amendments were introduced. Whilst their impact will be far less important, it is anticipated that they will spark reviews of current and future WA tenement planning for mining projects.




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