Marking out land pre-condition for mining tenement applications

Position Paper available for public comment following Supreme Court decision
Date: Tuesday, 18 July 2023


The Department of Mines, Industry Regulation and Safety (DMIRS) is seeking public comments on its proposed Position Paper 14 – Marking out the land a pre-condition of making certain tenement applications – The Mining Registrar’s obligation to consider jurisdiction.

The Position Paper was developed following a decision by the Supreme Court of Western Australia in Forrest & Forrest Pty Ltd v O’Sullivan & Ors [2020] WASC 468 (Forrest 2020 decision) delivered on 16 December 2020, which ruled that: ‘marking out in the prescribed manner and in the prescribed shape is an essential precondition to the warden’s jurisdiction to determine an application for a prospecting licence’.

Position Paper 14 outlines that evidence should be provided by the person who marked out the land that marking out was done in strict compliance with the Mining Act 1978 and Mining Regulations 1981.

This evidence will assist Mining Registrars to establish that they have the jurisdiction to consider the application.

The Position Paper states that if the Mining Registrar is not satisfied that the evidence provided is in strict accordance with the provisions of the Mining Act 1978 and Mining Regulations 1981, the application will be invalid.

As part of the consultation, DMIRS will hold three information sessions at the following locations: 

  • DMIRS Leonora office
    26 July, 2:00pm – 3:00pm
  • DMIRS Kalgoorlie office
    27 July, 1:00pm – 2:00pm               
  • East Perth, 1 Adelaide Terrace
    28 July, 1:00pm – 2:00pm

If you are interested in attending one of the information sessions, please contact the relevant mining registrar or

More information on the draft Position Paper can be found on the open consultation page. Feedback submission close 5:00pm Friday, 15 September.