The decision of the WA Supreme Court in Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 (reported on in our previous articles) resulted from industry action to refer four fundamental questions of law from the Perth Warden’s Court. These related to the validity of excisions and bespoke conditions (including so called ‘no mining’ conditions) which until recently were commonly used methods to facilitate overlapping grant of mining tenure under the Mining Act.
In Blue Ribbon, the Supreme Court held that the Minister does not have the power to excise areas of land the subject of a miscellaneous licence or a general lease from an exploration licence but does have the power to impose firstly, ‘no mining’ conditions and secondly, conditions on the excision of areas of land upon the grant of exploration licences.
After a 12 week consultation process, DEMIRS released two guidance statements in December 2024 which outline the Department’s position following the Blue Ribbon decision:
- Guidance Statement – Use of ‘No Mining’ conditions under the Mining Act 1978
- Guidance Statement – Excision of areas of land upon the grant of an application for Exploration Licence.
The guidance statements confirm that the Minister does not have power to excise areas of land from a graticular block or exercise whole blocks from the grant of an application for an exploration licence. The use of a ‘no mining’ condition is the mechanism by which certain discrete areas of land may be protected within a block. The Minister has powers under the Mining Act to impose any ‘no mining’ conditions as the Minister sees fit.
DEMIRS has also released the updated Standard Conditions for Mining Tenements which came into force on 2 December 2024.