On 17 August 2017 the High Court delivered judgment in the case of Forrest & Forrest Pty Ltd v Wilson  HCA 30 in which the Court has adopted a strict approach to interpreting compliance with statutory procedures for the application and granting of mining leases. The case concerned the validity of mining lease applications made and granted under the Mining Act 1978 (WA) in 2011.
The Respondents lodged applications for mining leases on the pastoral property of mining magnate Andrew Forrest. Some months later, a mineralisation report was lodged in relation to the application. The mining leases were subsequently granted.
Under the Mining Act an application for a mining lease “shall be accompanied by a mining proposal or a mineralisation report”.
The Court held that the failure to lodge the mineralisation report contemporaneously with the application invalidated the Minister’s grant of the leases because the lodgement of the report was a pre-condition to the Warden’s jurisdiction to make a recommendation to the Minister that the mining leases be granted.
The decision of the High Court was based on the following:
• The relevant provisions of the Mining Act imposed essential preliminaries to the exercise of the Minister’s power to grant a mining lease;
• There is authority which establishes that, where the executive is granted, by statute, power over the exploitation of state resources, the regime will be interpreted as requiring strict compliance for the exercise of that power to be valid;
• There is public interest in ensuring that the executive is not able to allow non-compliance with legislative regimes;
• The Minister’s power to grant a lease where the applicant has not complied with the statutory requirements does not allow the Minister to make a grant where the Warden has failed to comply with the same requirements;
• The indefeasibility provision in the Mining Act (which was relied on by the Supreme Court) only applies to “informalities and irregularities”. The failure of the Warden to adhere to the legislative requirements was not an informality or irregularity;
• Requiring strict compliance with the Mining Act would improve administrative efficiency by reducing the number of incomplete applications.
The decision casts doubt over the ability of the Minister to grant mining tenements despite any irregularities or issues in the application process, and may have wide ranging impacts on the validity of previous grants. Given the potential impacts of the decision the WA Government may look to provide further legislative security to industry participants.