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WA mining leases at risk if High Court sides with Twiggy's Minderoo station appeal

Tess IngramJournalist

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The validity of about 50 West Australian mining leases could be thrown into doubt if the High Court of Australia rules in favour of Andrew Forrest in his long-running bid to prevent sand mining on his family cattle station, Minderoo.

A decision from the High Court, expected within weeks, will be the second major legal determination this year for Mr Forrest, the founder and billionaire chairman of iron ore miner Fortescue Metals Group.

Last week, Federal Court Judge Steven Rares decided the Yindjibarndi Aboriginal Corporation was entitled to exclusive native title rights over a large area of land in the state's iron ore-rich Pilbara region, including over Fortescue's Solomon Hub iron ore operations.

Andrew Forrest has been trying to prevent mining on his family cattle station, Minderoo. Alex Ellinghausen

The decision on the native title claim, which has been fought for more than a decade, could see the Yindjibarndi people pursue Fortescue for millions in compensation. Fortescue said on Friday it was likely to appeal.

Mr Forrest is separately fighting another legal battle against the small private Yarri Mining.

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If the High Court sides with Yarri, Mr Forrest will have exhausted every legal avenue to prevent the company from mining sand from around the Ashburton River, which runs through the station.

But if it upholds his appeal, lawyers said it could throw into doubt the validity of about 50 mining leases in Western Australia which have the same "flaw" Mr Forrest has used as grounds for his appeal.

Mr Forrest's private company, Forrest & Forrest, has argued Yarri's mining lease application did not meet the requirements of the Mining Act because a document which needs to be submitted with the application, a mineralisation report, was not submitted at the same time.

However it was later submitted and the mining lease was approved.

The High Court will decide whether the apparent failure to comply with the requirement on time could invalidate the lease.

"I don't think they will come to that conclusion because it has a hideous ramification and it would knock down applications which applied within the process requirements of the act," Gilbert + Tobin partner Marshall McKenna said.

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"But then it is not unrealistic to think that they are going to take a technical approach and hold that this is a problem."

Mr McKenna said the state's mines department had said about 50 mining leases shared the same history but did not identify which ones.

"There are potential downstream effects and it is really hard at this stage to get a feel on who could be affected because it could just be Yarri who has to start again... if however a gold mine in production is suddenly potentially operating on invalid tenure they would really have to scrabble to get their tenure rectified," he said.

"It may or may not be detectable but if I were a financier operating in the West Australian market I would be a little bit nervous unless there was a legislative fix."

Mr McKenna said retrospective special legislation would likely be hurried through to provide certainty for the affected miners.

"Absent a legislative solution there would potentially be quite an ugly circumstance where replacing a mining lease would have an enormous priority and thus there would be incredible bargaining power for the adverse party, which would be anyone that could delay," he said, pointing to pastoralists or native title holders.

Tess Ingram is a journalist with WAtoday. She was previously a reporter in The Australian Financial Review's Perth bureau, covering business, economics and politics. Connect with Tess on Twitter.

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