Second mining lease renewals to trigger the RTN: WA Guidance causes uncertainty
09 September 2025
Native title year in review 2024-2025
What you need to know
- The WA Government has published guidance stating the second renewal of mining leases are not exempt from the future act provisions of the Native Title Act 1993 (Cth).
- The basis for this interpretation of the Native Title Act is unclear, but if followed, would require the second renewal of certain mining leases to go through the right to negotiate process prior to grant.
- Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 2) [2024] FCA 729 considered the interpretation of section 26D of the Native Title Act for the re-grant and re-making of mining tenure. The Full Federal Court heard an appeal in March 2025 and judgment has been reserved.
What you need to do
- Uncertainty about the application of section 26D of the Native Title Act to second mining lease renewals remains. Review tenure portfolios to check when mining leases are coming up for second (and in the future, fourth!) renewal and seek legal advice about the application of the right to negotiate process.
- Monitor the Full Court's decision in the Forrest No.2 appeal for further clarification of the interpretation of section 26D of the Native Title Act for the consolidation of mining tenements.
Recap: the application of the right to negotiate to the renewal of mining tenements
Mining tenures granted and renewed under the Mining Act 1978 (WA) (WA Mining Act) must also comply with the Native Title Act in order to be valid insofar as they affect native title. The right to negotiate process under Subdivision P of the Native Title Act generally applies to the grant of mining tenure unless the tenure is exempted by a relevant carve-out.
Section 26D of the Native Title Act contains an exemption from the right to negotiate for certain renewals and re-grants of an "earlier right".
Federal Court finds that consolidated mining lease falls within exemption to the right to negotiate, but Full Court to decide issue
The Federal Court's recent decision in 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), provided some clarity regarding the interpretation of the right to negotiate exemption in section 26D of the Native Title Act, but in relation to the replacement of mining leases.
Forrest No 2 involved the grant of a single mining lease to consolidate the area of 31 mining leases previously held by the same proponents. The replacement mining lease was of the same duration, total area, rights and obligations as the previous mining leases.
The primary issue in Forrest No 2 was whether the grant of the mining lease was excluded from the right to negotiate process under section 26D(1) of the Native Title Act. The Court considered two questions:
- Was the grant of the mining lease a 'renewal, re-grant, or re-making of an earlier right to mine', under section 26D(1)(a)?
- Did the grant have the result that the area to which each of the previous mining leases relates has been extended under section 26D(1)(c)?
The Court held the replacement of the previous mining leases was a 're-making' of those previous leases and that the exemption in section 26D(1)(a) of the Native Title Act applied. This meant the grant of the replacement mining lease did not trigger the right to negotiate process and was valid to the extent that it affected native title.
Appeal: The Full Federal Court heard an appeal in March 2025. We will report on the outcome of that appeal in next year's Native Title Year in Review.
Second mining lease renewals to trigger the right to negotiate: WA Guidance and uncertainty for proponents
The WA Department of Energy, Mines, Industry Regulation and Safety has issued guidance setting out its position on the Native Title Act implications of the second renewal of mining leases under the WA Mining Act. This guidance states that the second renewal of a mining lease is not exempt from the right to negotiate process. The basis for this interpretation of the Native Title Act is unclear.
Key insights
While the basis for WA's interpretation of section 26D is not without doubt, if accepted, any mining lease approaching its second (or subsequent) renewal, that is not otherwise exempt from the future act provisions of the Native Title Act, must go through the right to negotiate process prior to grant. Any non-compliant renewal application may otherwise be refused, and the mining lease will expire.
Proponents with mining leases that are coming up to their second (or subsequent) renewal period should seek legal advice as soon as possible to understand any relevant Native Title Act implications.
The Full Court's decision in the appeal from Forrest No 2 may have implications for consolidated mining leases in all States and Territories. If the appeal is upheld, the holders of existing consolidated mining leases should consider the implications for their tenements.
Other Authors: Emmelyn Wu, Lawyer and Natasha Catalano, Lawyer.
