The Western Australia Parliament has recently introduced two new bills impacting the mining sector. In addition, the Department of Energy, Mines, Industry Regulation and Safety in Western Australia has issued a new guidance related to the Native Title Act 1993 (Cth). The potential impact of these changes on the sector are outlined below.  

State Development Bill 2025 (WA)

The Western Australia Parliament introduced the State Development Bill 2025 earlier this month. The Bill is designed to reform the approvals process for projects of strategic or economic significance. The Bill is intended to reduce inefficiencies, duplication, and unconstrained time‑frames in project approvals especially for large‑scale projects.

The Bill provides for ‘priority projects’ that could benefit from more streamlined and powerful approval tools. What is defined as a priority project will be dependent on how the government chooses to define whether a project has strategic or economic significance.   

In addition, modification orders may be used to reduce duplication or administrative burdens for priority projects. Modification orders would apply to certain listed Acts of Parliament, including certain environmental legislation, effectively modifying or excluding their application.

The Minister (or a delegated Coordinator General) is also granted the ability to issue timeframe notices under the Bill. These notices would specify tighter enforceable deadlines for specific functions, like environmental or heritage approvals for example. However, timeframe notices would not be able to override mandatory minimum statutory timeframes, like public consultation periods. 

The Bill allows for joint decision notices to be made. This means where there are multiple statutory decision makers involved in a project approval process, they can come together to make a decision in a unified process. If the statutory decision makers are unable to agree on the decision, then the ultimate authority would rest with the Premier.  

Developments under the Native Title Act 1993 (Cth)

Under the Native Title Act 1993 (Cth), grants or renewals of mining leases in Western Australia are subject to rights of native title parties. In particular, where a “future act” is involved, the Right to Negotiate (RTN) process usually applies. Section 26D of the Act provides an exemption from the RTN for certain renewals and re‑grants of earlier rights under particular conditions. 

The recent case of Forrest on behalf of the Nangaanya‑ku Native Title Claim Group (Part B) v State of Western Australia (No 2) [2024] FCA 729 (“Forrest No. 2”) dealt with whether a replacement (or re‑grant) of multiple mining leases consolidated into one was exempt under section 26D. The original mining leases were held by the same party, over the same area, with the same rights, obligations, and duration. The Federal Court held that this replacement was indeed a “re‑making” under s. 26D(1)(a), and thus exempt from the RTN requirement. 

An appeal to the Full Federal Court was heard in March 2025 and the judgment is currently reserved.

In response, the Department of Energy, Mines, Industry Regulation and Safety in Western Australia has issued guidance stating that a second renewal of a mining lease is not exempt from the RTN process. Even if a lease is being renewed for a second time (or further renewals), the RTN must be engaged. 

In the absence of the outcome of the Full Federal Court appeal decision in Forrest No.2, mining companies should review their portfolio of lease tenements to see which are coming up for second or further renewals, as these may now trigger the RTN under WA’s guidance.

The Mining Amendment Bill 2025 (WA)

In June 2025, the Western Australian government introduced the Mining Amendment Bill 2025. This was in response to issues raised by the landmark High Court decision of Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30. This decision highlighted that strict technical compliance of the legislation could jeopardise tenement applications, even where there was substantive merit. 

Other cases have also highlighted the rigidity of the current legislation and this Bill aims to address that by streamlining and improving resource tenure processes. The major amendments include empowering authorities to validate tenement applications lodged prior to the Bill’s commencement even if they don’t strictly comply with the law. Other amendments in the Bill include eliminating some procedural duties, reducing ambiguity, removing contemporaneity requirements, facilitating electronic lodgement, enabling regulations to prescribe compliance and relaxing requirements for exploration licences in their first-year.