Open Letter to the Western Australian State and Federal Labor Governments
from Mining + Heritage Legal, an independent legal and advisory firm based in Perth, WA.
To the newly elected Western Australian and Federal Labor Governments,
Congratulations on your recent electoral victories. Your governments have been entrusted with strong mandates by the public, creating a rare opportunity and responsibility to implement meaningful reforms. As a representative of companies in the energy and resources industry we hope the new governments work to address urgent issues that are hindering responsible resource development. We draw attention to persistent delays and uncertainties in three key areas: Native Title negotiations, environmental approvals, and mining license issuance. If left unaddressed, these issues threaten to slow investment and reduce the benefits that a thriving mining sector delivers to all Australians. We welcome the WA government’s announcement this week of committing to reviewing Native Title and Aboriginal Cultural Heritage processes in collaboration with the National Native Title Tribunal. This review must balance the protection of cultural heritage and Traditional Owner rights with the need for clarity, efficiency, and fair participation in agreement-making and access.
Streamlining Native Title Negotiations and Respecting Heritage
Mining companies, particularly smaller explorers and operators continue to face protracted negotiations under the Native Title Act 1993 (Cth) (Native Title Act). A related but separate issue is that once agreements are in place, accessing prospective tenure through the heritage survey process can be challenging where the cost of surveys can sometimes exceed the costs of the exploration.
In many cases, overlapping Native Title claims force a proponent to negotiate with multiple claimant groups for the same area, multiplying the time, cost and complexity of reaching land access agreements¹. It is not uncommon for different claimant groups to disagree on terms, causing further delays and cost blow-outs in securing necessary access¹. There have also been situations where the representative bodies lack the resources or time to resolve overlapping claims, leaving issues to deteriorate². The result is uncertainty for all parties involved, the industry and Traditional Owners alike, and an obstruction to development that benefits no one.
A particularly urgent concern is the question of long-standing mining leases and renewals. Recent commentary from industry and government leaders in WA has sounded the alarm that the mining sector in Western Australia could be “devastated” unless the Native Title Act is amended to resolve issues around lease validity and renewals³. The WA Labor government has acknowledged that efforts to shore up the validity of mining leases have been left in the lurch by a lack of federal action³. In effect, under current law a mining lease that has been in place for decades may trigger fresh “right-to-negotiate” processes upon renewal, meaning operations cannot be renewed without negotiating new agreements with native title holders or claimants⁴.
State Ministers for Mines and Petroleum have pressured the Federal Government for amendments to the Native Title Act since at least 2017⁵. The Cook Government introduced the Mining Amendment Bill 2024 in WA’s Parliament as a stopgap to extend negotiation timeframes and validate pending leases⁶. However, as WA has acknowledged, any statelevel fix is ultimately ineffective without complementary federal action⁶. We were encouraged by reports that officials from WA’s Department of Energy, Mines, Industry Regulation and Safety have met with their federal counterparts and that both governments are “openly discussing options” ⁷. AMEC has noted that now, with elections behind us, resolving this issue must be a top priority for both the State and Commonwealth⁷.
In pursuing native title reform, we urge the Governments to also keep Aboriginal heritage protections in clear focus. The recent experience in Western Australia, with the Aboriginal Cultural Heritage Act 2021 being repealed in 2023 after widespread industry and community concern, demonstrates the importance of getting the balance right⁸.
Recommendations on Native Title and Heritage:
Amend the Native Title Act to validate existing mining leases and streamline renewals⁶.
Introduce mechanisms to efficiently manage overlapping claims, possibly empowering the NNTT to mediate disputes¹.
Increase funding for representative bodies and PBCs to engage meaningfully and efficiently in agreement-making².
Reinforce statutory timelines for agreement-making, with access to arbitration when negotiations stall.
Pursue nationally consistent, consultative reforms to Aboriginal heritage laws that complement, not duplicate, native title obligations⁸
Environmental Approvals: Efficiency without Compromise
The current system for environmental approvals is cumbersome and duplicative, often requiring separate state and federal processes for the same project⁹. For example, a proponent may face assessments from both WA’s EPA and under the Commonwealth’s EPBC Act if certain triggers apply. This can lead to excessive paperwork, costs, and delays⁹. The Federal Labor Government’s proposed reforms to the EPBC Act – including legally binding environmental standards and the creation of an independent EPA – offer a potential path forward. There is widespread support for a “single-touch” approvals process through state-federal bilateral agreements¹⁰. Industry and legal experts agree that such reforms would maintain environmental protection while eliminating unnecessary duplication¹¹. Yet progress has stalled. The next tranche of federal EPBC reform legislation was shelved following challenges in the Senate in late 2024¹². The proposed “Nature Positive” reforms, while well-intentioned, could risk additional regulatory burdens if not carefully aligned with state systems¹³. Approval delays aren’t just a business concern: the Productivity Commission found that a one-year delay can reduce a project’s value by up to 18%¹⁴. This has economic, environmental, and social consequences.
Recommendations on Environmental Approvals:
Finalise bilateral assessment agreements between WA and the Commonwealth to streamline dual processes¹⁰.
Establish the new Federal EPA with a clear mandate for oversight and coordination, not duplication.
Prioritise the reintroduction and passage of stalled EPBC reform legislation postelection¹².
Ensure any “traffic light” zoning or climate triggers are coordinated with state planning systems¹³.
Resource regulators adequately and enable concurrent, digital assessment pathways for faster approvals.
Tackling Delays in Mining and Exploration Licensing
Our clients regularly face lengthy delays in obtaining mining and exploration licenses. Despite Premier Cook’s commitment to speed up approvals, systemic issues persist¹⁵. Department-reported timelines often exclude delays caused by referrals or information requests, meaning actual wait times can be 300+ days for even basic exploration licenses¹⁶. Backlogs at DEMIRS have been flagged by AMEC as a risk to project viability¹⁵. We welcome the introduction of the Resources Online portal, and the trial of the Eligible Mining Activities fast-track, which allows low-impact activities to proceed without full assessment¹⁷. These are important steps that should be embedded into law and expanded.
Recommendations on Licensing and Approvals Process:
Increase resources for the relevant agencies to clear licensing backlogs¹⁵.
Permanently adopt the Resources Online portal and Eligible Mining Activities framework¹⁷.
Establish statutory benchmarks for total approval timeframes, inclusive of all steps and referrals¹⁶.
Improve cross-agency coordination and enable parallel, digital assessments.
Hold an annual Mining Approvals Roundtable with industry, Indigenous groups, and regulators for continuous feedback and improvement.
A Collaborative Path Forward
The reforms outlined above are pragmatic, achievable, and urgent. They will help unlock investment, create jobs, and deliver real benefits for Indigenous communities, the environment, and the West Australian, and broader Australian economy. With a strong electoral mandate, State and Federal Government have a unique opportunity to enact these reforms.
For information on how Mining + Heritage Legal can help get your project from A to Z, please get in touch admin@miningheritage.legal or check out our website: www.miningheritagelegal.com.au
References
AMEC, Submission to the ALRC Review of Future Acts Regime under the Native Title Act, February 2025. https://amec.org.au/wp-content/uploads/2025/02/0201-AMEC-submission-toALRC-review-of-Future-Act-process.pdf
AMEC, Review into Native Title and Aboriginal Cultural Heritage: A Necessary Step Toward Progress, May 2025. https://amec.org.au/wp-content/uploads/2025/05/29.-Review-into-Native-Titleand-Aboriginal-cultural-heritage-a-necessary-step-towards-progress.pdf
The West Australian, “WA mining leases in limbo without federal fix”, 17 Nov 2024. https://thewest.com.au/business/mining/wa-mining-leases-in-limbo-withoutfederal-fix-as-native-title-legislation-stalls-c-12628263
Native Title Act 1993 (Cth) – Right to Negotiate Provisions. https://www.legislation.gov.au/C2004A04665/latest/text
AMEC, Advocacy and Achievements 2023 Report, referencing Native Title reform advocacy since 2017. https://amec.org.au/wp-content/uploads/2023/12/AMEC-AdvocacyAchievements-2023.pdf
Parliament of Western Australia, Mining Amendment Bill 2024 – Explanatory Memorandum. https://www.parliament.wa.gov.au (search “Mining Amendment Bill 2024”)
AMEC, Federal Election Priorities Brief, February 2025. https://amec.org.au/wp-content/uploads/2025/02/AMEC-Federal-Election-2025- Priorities.pdf
ABC News, “WA Government scraps Aboriginal heritage laws”, 8 August 2023. https://www.abc.net.au/news/2023-08-08/wa-government-scraps-aboriginalcultural-heritage-laws/102702070
Productivity Commission, Resources Sector Regulation Report, 2020. https://www.pc.gov.au/inquiries/completed/resources
Department of Climate Change, Energy, the Environment and Water (DCCEEW), EPBC Act Reform Overview, 2023. https://www.dcceew.gov.au/environment/epbc/reform
Minerals Council of Australia, “Improving Project Approvals”, 2022. https://minerals.org.au/news/improving-project-approvals
Australian Financial Review, “Nature Positive Laws Delayed”, 5 December 2024. https://www.afr.com/politics/federal/nature-positive-laws-delayed-until-afterelection-20241205-p5epc3
AMEC, Submission on Nature Positive EPBC Bills, 2024. https://amec.org.au/wp-content/uploads/2024/06/AMEC-Nature-PositiveSubmission.pdf
Productivity Commission, Resources Sector Regulation, Appendix D, 2020. https://www.pc.gov.au/inquiries/completed/resources/report/resources.pdf
AMEC, “WA Mining Approvals Backlog Must Be Addressed”, media release, September 2023. https://amec.org.au/news/wa-approvals-backlog-2023/
DEMIRS (Department of Energy, Mines, Industry Regulation and Safety), Approvals Performance Reports, 2023–24. https://www.dmirs.wa.gov.au/about-us/corporate-performance/approvalsperformance-report
WA Government, “Resources Online Launched and Eligible Mining Activity Trial Expanded”, 14 August 2024. https://www.mediastatements.wa.gov.au/Pages/Cook/2024/08/Resourcesapprovals-to-be-fast-tracked-with-new-online-portal.aspx