The Western Australian Government has sought legal advice on the future of access to land covered by mining leases.
This move aims to protect its resources industry, with companies facing the prospect of having to sign expensive new Native Title agreements to continue operating on land subject to long-standing mining leases.
The government has written to Canberra pushing for changes to the Native Title Act. It is also seeking to amend the state’s Mining Act to give companies more time to negotiate with Indigenous groups before their mining leases expire.
The WA Government has warned the resources sector that lease renewals could activate right-to-negotiate provisions under the Native Title Act 1993.
Leases held for more than 40 years will not be renewed unless agreements are reached with Native Title holders or claimants, The Australian reported on Friday.
This policy shift targets long-standing mines operating without Native Title agreements, particularly those seeking a second lease renewal, granting significant negotiating power to Indigenous groups asserting traditional ownership.
The Australian Law Reform Commission (ALRC) is reviewing the Native Title Act’s future acts regime, releasing an issues paper last month as part of the process. Future acts are proposals to use land in ways that affect Native Title rights and interests.
This review, initiated by Attorney-General Mark Dreyfus, will examine alternative frameworks and the interaction of the current regime with state mining legislation.
The Senate initiated the review after Rio Tinto’s destruction of two 46,000-year-old rock shelters at Juukan Gorge in WA. The inquiry recommended reform of the future acts regime, which governs negotiations between developers and traditional owners.
Chief executive of the Association of Mining and Exploration Companies Warren Pearce, noted that the fallout from Juukan Gorge and the WA Government’s subsequent reversal on new Aboriginal cultural heritage laws had raised expectations for mining companies.
The Aboriginal Cultural Heritage Act, introduced after five years of consultation, was rescinded within weeks in 2023, with Premier Roger Cook citing public discontent.
According to Pearce, some Indigenous groups already receiving substantial royalties are hesitant to renegotiate agreements under the revised Native Title framework, further complicating industry negotiations.
“There are some interesting things happening. Since Juukan Gorge and the Aboriginal cultural heritage backtrack, it’s got a lot more difficult (to negotiate agreements),” Pearce said.
“The expectations of the groups have grown significantly. You’ve also got a lot of groups now, particularly in mining jurisdictions, that have agreements already in place.
“When you think about those groups, the actual registered claimants as part of the group can be relatively small versus the amount of money that’s coming into the system. So, they’re not necessarily motivated now by new projects going forward to create revenue because the revenue has already been provided.
“You’re getting a lot less drive from some of those groups to really want to work with mining proponents, which is challenging.”
Amendments to Mining Act
The WA Government is now preparing amendments to the state’s Mining Act to address potential delays in lease renewal negotiations with traditional owner groups. Under the proposed changes, mining companies will be allowed to apply for secondary lease renewals up to three years before the expiry date.
Once a renewal application is submitted, relevant Native Title groups will be required to negotiate with the mining company for a minimum of six months.
This framework aims to facilitate agreements and ensure compliance with the Native Title Act 1993 while maintaining operational continuity for mining projects.
Should negotiations reach an impasse, the process would escalate to the National Native Title Tribunal for resolution, setting the stage for independent arbitration to balance interests between the parties.
The proposed changes reflect the state’s efforts to streamline procedures while respecting Native Title rights.
“A mining lease cannot be renewed under s78(2) of the Mining Act until all future act requirements are met. Mining lease holders are encouraged to proactively engage with Native Title parties to secure the necessary consent well ahead of the renewal deadlines,” WA’s Department of Energy, Mines, Industry Regulation and Safety advised miners.
Native Title agreements central to WA mining
Approximately 85% of WA is under active Native Title claims or Federal Court determinations recognising Native Title rights and interests.
These arrangements have generated billions of dollars in royalties for traditional owner groups, particularly in mineral-rich regions like the Pilbara.
Much of this wealth is held in charitable and discretionary trusts, with confidentiality agreements protecting the terms of deals with mining companies.
While major iron ore producers and many other miners have successfully negotiated Native Title agreements, a significant number of mining leases and operations remain uncovered by these arrangements.
The Department of Mines, Industry Regulation and Safety (DMIRS) has clarified WA’s position on ensuring continued mining operations even in cases where lease agreements expire before negotiations with traditional owners are concluded.
A DMIRS spokesperson confirmed: “While a second renewal is being considered, the mining lease will continue as per normal. Therefore, there is no risk that a mine’s operation could be suspended, mothballed or closed as a result of this issue.”
The policy provides assurance to the mining sector, allowing ongoing operations during negotiation periods and mitigating the risk of closures tied to unresolved Native Title agreements.