Mining leases are granted under s71 of the Mining Act 1978 (WA) (Mining Act) for an initial term of 21 years and have a built-in right to a first renewal for 21 years (s78(1)). The mining lease may be subsequently renewed for successive periods not exceeding 21 years, at the discretion of the Minister (s78(2)).
Recent developments have introduced complexities into the renewal process, particularly for leases which have been in force for 42 years or more.
In December 2024, DEMIRS released Guidelines on applying for a second renewal of a mining lease made in accordance with the Mining Act. These Guidelines confirm that second renewals are not exempt from the future act provisions of the Native Title Act 1993 (NTA) and the Right to Negotiate (RTN) process provided for within that legislative framework. Accordingly, a mining lease cannot be renewed under s78(2) until all future act requirements are met. The Guidelines reflect the High Court decision in Harvey v Minister for Primary Industry and Resources [2024] HCA 1 which held that if a renewal introduces new infrastructure or activities affecting native title, it qualifies as a future act and must undergo the RTN process.
There are just over 90 mining leases which will be at 42 years of tenure in 2025 and will be up for second renewal. Mining entities wishing to apply for a second renewal will need to initiate the RTN process (unless certain exemptions apply) and provide native title holders with the right to negotiate terms relating to the renewal’s impact on their rights.
This has a number of implications for the holders of these mining leases including: the possibility of delay resulting from protracted negotiations with native title groups, the possibility of increased costs resulting from increased royalty payments and other compensation, legal uncertainty if the RTN process results in legal challenges. It is recommended that the holders of these mining leases initiate discussions with native title parties well in advance of lease expiry.