ARTICLES 

TILL DEATH DO US PART: THE UNDUE IMPACT OF FREETH ON WESTERN AUSTRALIA’S MINING TENEMENT FORFEITURE SYSTEM
Tom Penglis, Winner of the 2022 ER Law Essay Competition. Produced with the support of the UWA Law School Scholarship in Mining Excellence. Supervised by John Southalan.

In Freeth as Executor of the Estate of Gerard V Brewer v O’Donnell [2021] WASC 393, Tottle J held that forfeiture applications made under the Mining Act 1978 (WA) against mining tenements held by deceased persons and before the grant of probate are nullities. This article critically examines Tottle J’s judgment and respectfully proposes that the three reasons for His Honour’s decision are erroneous, and proposes that the decision unduly frustrates the efficiency of the mining tenement forfeiture system. It primarily seeks to establish that forfeiture proceedings are actions in rem, with the consequence that forfeiture proceedings brought against deceased persons and before the grant of probate are valid. This article concludes that legislative reform is warranted to reverse the effect of the decision and proposes two minor reforms that would assist Wardens and the Department of Mines, Industry Regulations and Safety to appropriately deal with forfeiture applications made in relation to mining tenements held by deceased persons.

RECENT DEVELOPMENTS

WARDENS’ DECISIONS PROVIDING CLARITY BUT NOT ADVANCING JOY
John Southalan, Barrister (WA Bar Association), Mediator (NMAS), Adjunct Professor (UWA & Murdoch)

Three recent decisions of the Perth Mining Wardens have provided legal clarity regarding mining tenement applications and objections. In Azure Minerals, Warden McPhee confirmed an earlier decision of Warden Cleary, and that applications for exploration tenure are invalid without details of exploration proposed for the five years following grant. Warden McPhee also emphasised that WA Mining Wardens should not depart from another Warden’s reasoning without good cause. In Telupac Holdings, Warden Cleary refused to hear environmental objections to the proposed grant of exploration tenure partly in a national park and nature reserve. In ACN 629 923 753, Warden Cleary ordered costs against pastoralist objectors for maintaining objections, indicating increased likelihood of costs being awarded against objections “without merit”. Both Wardens provided extensive and detailed reasoning, explaining their rationale but also referring to the role of agencies in ensuring compliance with WA’s Mining Act. In late December 2022, WA’s Auditor General released a report identifying deficiencies in how agencies regulate compliance with conditions under that Act. While some ambiguity remains, unless/until there is any contrary direction from WA’s Supreme Court, applicants and objectors have greater clarity of approaches by WA’s Mining Wardens.

ELECTRICITY INFRASTRUCTURE INVESTMENT ACT 2020 (NSW): KEY PROVISIONS AND LEGAL ISSUES FOR PROJECT INVESTORS TO CONSIDER.
Katherine Lake, Special Counsel, Climate Change and Energy Law, Hive Legal

The Electricity Infrastructure Investment Act 2020 (NSW) sets out the NSW Government’s comprehensive plan to decarbonise its energy system. This article examines the NSW Act in a historical context and explores how it represents a significant departure from previous laws to incentivise renewable energy investment in Australia. Next, it explores the main features of the NSW Act and the key legal issues, and opportunities, for project investors. The article concludes by assessing whether the NSW Act can achieve its objectives, and its implications for the future direction of energy market legal frameworks in Australia.

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