02 May Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd  WASCA 50
In the recent decision of Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd  WASCA 50, the Court of Appeal confirmed that the power to grant mining tenements lies with the Minister responsible for the Mining Act 1978 (WA).
Wright Prospecting Pty Ltd (WPPL) relied on letters from Premier Burke and Minister for Minerals and Energy Parker as evidence of a binding agreement between the State and WPPL and Hancock Prospecting Pty Ltd (HPPL). The agreement was said to be made in the exercise of the executive power of the Crown.
The Court of Appeal held that it was not possible for the executive arm of government to enter into an agreement with WPPL and HPPL by which the State agreed to grant to them rights of occupancy over temporary reserves under the Mining Act 1904. This is because the Constitution Act 1890 (Imp) vested the waste lands of the Crown in Western Australia in the legislative arm of government. The waste lands were not given to the King in his executive capacity but to the legislature. Thereafter dealings in Crown land could only be authorised and supported by the statute law of Western Australia.
Accordingly, it is only the Minister responsible for the Mining Act 1978 who is entitled to grant rights to explore for and mine minerals in Western Australia and can only do so in accordance with the powers granted to the Minister by the legislative arm of government under the Mining Act 1978 (WA). The Minister, Premier or other member of the executive may not unilaterally enter into an agreement to grant tenements to any party. This explains why State agreements usually only require the State to cause the Minister responsible for the Mining Act 1978 (WA) to grant a mining tenement under the Mining Act 1978 (WA) rather than themselves directly providing for the grant of that mining tenement.