Reserves (Tjuntjuntjara Community) Act 2018

Great Victoria Desert Nature Reserve is Reserve 30490, a class A nature reserve of about 2.5 million hectares as defined under the Land Administration Act 1997. The Act amends its eastern boundary description and excises a specific parcel. Tjuntjuntjara Community land is Lot 9 on Deposited Plan 220992, an area of 78,578 hectares that was formerly part of the nature reserve. This land is the subject of the proposed lease. Tjuntjuntjara Community lease means a lease granted by the Minister under section 83(1) of the Land Administration Act 1997 over that land. Section 83(1) permits the grant of leases over Crown land, including unallocated Crown land, for the use and benefit of a specified community. The Act expressly states that such a lease is not a residential tenancy agreement for the purposes of the Residential Tenancies Act 1987, so the usual protections for residential tenants (eviction procedures, condition standards, rent regulation) do not apply.

Access easement is the easement shown on Deposited Plan 414191 version 2, providing access over part of the remaining nature reserve for the holder of a leasehold interest granted by the community lease. The Act disapplies section 44 of the Land Administration Act 1997, which normally requires certain procedures (including public consultation or parliamentary approval) before an easement can be created over a reserve. Mining and mining tenement have the same meanings as in the Mining Act 1978 section 8(1). Petroleum operation and geothermal energy operation have the meanings in the Petroleum and Geothermal Energy Resources Act 1967 section 5(1). Petroleum title and geothermal title are defined in section 69A(1) of that Act. Registered holder also comes from that Act. The Act introduces a new condition on these titles, making the carrying out of operations dependent on ministerial consent. Consultation is mandatory, but the Minister may refuse consent or impose terms. The recommendations obtained are not stated to be binding, so the Minister retains discretion. If the land is unallocated Crown land at the time of the consultation, the Minister for Lands must be included. That may be relevant before the community lease is granted.

The Tjuntjuntjara Community is the primary intended beneficiary. The Act provides land for a lease that will be held for the community’s use and benefit. However, the community is also directly affected by the exclusion of the Residential Tenancies Act 1987, which removes statutory protections that might otherwise apply to residential occupancy arrangements on the leasehold land. Any person who becomes a tenant or occupant under the community lease will not have the standard rights of a residential tenant under state law. The Minister who grants the lease (the Minister administering the Land Administration Act 1997) is responsible for the lease transaction. The Registrar of Titles must register the boundary amendment and excision and may register the access easement despite non-compliance with section 44 of the Land Administration Act 1997. Holders of existing or future mining tenements, petroleum titles or geothermal titles over the Tjuntjuntjara Community land are directly affected. They face a new statutory condition that prohibits operations without ministerial consent. This imposes a significant compliance burden and introduces uncertainty, as the Minister may refuse consent or impose onerous conditions. It also creates a risk of forfeiture or cancellation of the tenement or title if operations proceed without consent. The Minister for Mines and the Minister for Petroleum must follow the prescribed consultation process before granting consent. They must also consult with the Minister for Conservation, any leaseholder, and potentially the Minister for Lands. This adds administrative steps and potential delays. The Minister for Conservation also has a role in being consulted and providing recommendations, which could reflect broader environmental or management concerns. Entities that may need access across the nature reserve to reach the community land will be affected by the proposed easement. The disapplication of section 44 means the normal procedural safeguards (objections, inquiries, ministerial approval with parliamentary oversight) are bypassed, which could affect the rights of other reserve users or the public. The Western Australian Land Information Authority (Landgate) holds the deposited plans referenced in the Act.

The Registrar of Titles must take necessary measures to register the amendments effected by sections 4 and 5 (boundary correction and excision). The Registrar may treat sections 4 and 5 as if they were orders under the Land Administration Act 1997, which streamlines the registration process. The Registrar also has a discretion to register the access easement despite non-compliance with section 44 of that Act (s. 8(3)). The Minister (responsible for lands) has the right to grant a lease over the Tjuntjuntjara Community land under the Land Administration Act 1997 section 83(1). The Act does not mandate that the lease be granted; it merely removes obstacles to doing so. The Minister for Mines and Minister for Petroleum have the power, upon request, to refuse or to give written consent to mining, petroleum or geothermal operations on the community land, with or without conditions. They must, before giving consent (whether conditional or unconditional), consult with and obtain recommendations from the Minister for Conservation, any person holding the community lease or otherwise in control or management of the land, and, if the land is unallocated Crown land, the Minister for Lands. The requirement is to “obtain the recommendations” - it does not say the Minister must follow them. The Minister retains discretion to accept or reject recommendations, but must at least seek them. The holder of a mining tenement, petroleum title or geothermal title has the right to apply for ministerial consent, but no right to receive it. There is no statutory appeal mechanism if consent is refused or made subject to unreasonable conditions. The Tjuntjuntjara Community leaseholder has a right to be consulted and to make recommendations under section 9(5)(b) and 10(5)(b). This gives the community a voice in decisions about resource extraction on their land. The holder of a leasehold interest granted by the community lease has the benefit of the access easement over the nature reserve, as shown on Deposited Plan 414191 version 2. That easement provides a legal right of access across the reserve. No provision in the Act imposes a duty on the leaseholder to maintain the easement or to allow others to use it.

The Act creates no independent penalty provisions. Instead, it attaches consequences under existing mining and petroleum legislation for breach of the statutory conditions. For mining tenements, section 9(6) states that the tenement is liable to be forfeited under section 96, 96A or 97 of the Mining Act 1978 if the holder contravenes the condition imposed by section 9(3) (carrying out mining without ministerial consent). Section 9(7) deems that for the purposes of section 96(2) of the Mining Act, “the requirements of this Act” includes the section 9(3) condition. That means the existing forfeiture provisions for breach of mining Act requirements now extend to the additional condition. Forfeiture is a serious penalty: the holder loses the tenement and any investment. The Mining Act allows the Minister to take action on various grounds, and the Warden’s Court may be involved. For petroleum and geothermal titles, section 10(6) states the title is liable to be cancelled under sections 99, 105 or 106 of the Petroleum and Geothermal Energy Resources Act 1967 if the registered holder contravenes the condition imposed by section 10(3). Cancellation is similarly severe. These provisions create a strong disincentive to proceed without consent. The enforcement mechanism relies on the relevant Minister or the regulator under the respective Acts to initiate forfeiture or cancellation proceedings. The Act does not specify a procedure for reporting breaches, nor does it create a private right of action for the community or others. The only enforcement trigger is non-compliance with the consent condition. There is no penalty for operating without consent beyond the risk of losing the tenement or title. There is no criminal penalty. The disapplication of the Residential Tenancies Act 1987 means that any breach of residential tenancy obligations (e.g. failure to maintain habitability) would not be enforceable under that Act. The leaseholder and occupants must rely on common law or the terms of the lease itself, which may provide weaker remedies.

The Act directly amends the legal status of the Great Victoria Desert Nature Reserve, which is governed by the Land Administration Act 1997 and the Conservation and Land Management Act 1984. The excision removes the Tjuntjuntjara Community land from the reserve, so the land is no longer subject to the constraints applying to class A nature reserves. The lease over that land is granted under section 83(1) of the Land Administration Act 1997, which is the standard power to lease Crown land for community purposes. The Act modifies that power only by creating the specific land parcel and by excluding the Residential Tenancies Act 1987. The boundary correction in section 4 does not affect the reserve’s area, but it corrects the legal description, which may have implications for tenure certainty and for any future survey or boundary disputes. Section 6 allows sections 4 and 5 to be treated as orders under the Land Administration Act 1997 for registration purposes, easing the formal steps. The access easement provisions bypass section 44 of the Land Administration Act 1997, which would normally require the Minister to prepare an easement proposal, publish it, consider objections, and seek the Governor’s approval. By disapplying that section, the Act allows the Registrar to register the easement directly, but only for this specific easement as shown on Deposited Plan 414191 version 2. The Transfer of Land Act 1893 section 81S(2)(b) normally requires compliance with section 44 before an easement over a reserve can be registered. Section 8(3) deems that compliance, effectively overriding that requirement. The mining and petroleum provisions interact with both the Mining Act 1978 and the Petroleum and Geothermal Energy Resources Act 1967. The conditions are “in addition to the provisions of” those Acts (ss. 9(2), 10(2)). That means all existing requirements (e.g. grant procedures, environmental approvals, Native Title, safety) continue to apply. The condition merely adds a layer of ministerial consent. For petroleum, section 10(2)(b) specifies that the section applies despite section 15(1) of the Petroleum and Geothermal Energy Resources Act 1967, which generally allows petroleum titles to confer rights subject only to that Act. The new condition overrides that exclusivity. The consultation requirements involve the Minister for Conservation, bringing in the Conservation and Land Management Act 1984 administration. That links resource extraction decisions to conservation management. The Residential Tenancies Act 1987 is explicitly excluded under section 7. This is a significant interaction: it removes a whole regulatory regime that would otherwise apply to residential leases. The Act does not, however, exclude the Transfer of Land Act 1893, so the community lease can be registered under the Torrens system if it satisfies the relevant requirements. The definition of “Great Victoria Desert Nature Reserve” relies on the Land Administration Act 1997 section 45(1) definition of class A nature reserve. The definition of “unallocated Crown land” comes from section 3(1) of that Act. The definition of “Deposited Plan” refers to the Land Information Authority Act 2006, which governs Landgate.

The Act is WA Act No. 40 of 2018, assented to on 12 December 2018. Sections 1 to 4 and 6 commenced on that day. The remaining provisions (sections 5, 7, 8, 9, 10, the Schedule, and the Notes) commenced on 24 December 2022, fixed by proclamation under section 2(b) and published as SL 2022/213. The four-year gap between assent and commencement of the operative provisions is unusual. It suggests that the practical steps to grant the lease, register the excision, and resolve any prerequisites took considerable time. The compilation table in the source is current as at the date of publication of the Act as an official reprint. There are no subsequent amending Acts listed in the compilation table. The Act has not been amended since its commencement. The defined terms list and compilation table are part of the published Act but not part of the enacted law. The Act does not contain transitional or savings provisions, so its application to mining tenements or petroleum titles granted before commencement is uncertain. The wording “each mining tenement granted in respect of the Tjuntjuntjara Community land” in section 9(3) could be interpreted as applying to tenements granted after the commencement of that section (24 December 2022) or to tenements that exist as at that date. The past participle “granted” typically refers to the act of grant, but the section creates a condition that must be carried forward. In the absence of transitional provisions, a court would likely read the condition as applying to tenements granted after commencement, and possibly to existing tenements that are continued or renewed. This uncertainty is a source of risk for title holders.

The source text does not refer to any litigation concerning this Act. No cases interpreting its provisions are cited in the Act or in the source provided. A search of reported Australian cases (as at the knowledge cutoff for this analysis) would be required to confirm whether any judicial consideration exists, but the Act is relatively recent (operative only since December 2022) and involves a single community land excision, so litigation is unlikely unless a dispute arises over the consent conditions, the easement registration, or the forfeiture provisions. The Act has a narrow scope, which reduces the likelihood of litigation. However, potential legal challenges could arise from native title holders (the Act does not address native title), from mining or petroleum title holders whose operations are blocked, or from environmental groups contesting the removal of land from a nature reserve. The source does not record any such challenges. The exclusion of the Residential Tenancies Act 1987 could lead to disputes about the character of occupancy on the community land, but such disputes would be about the application of that Act, not this Act directly. The Act’s own provisions are unlikely to be litigated unless a Minister refuses consent and a title holder seeks judicial review. The consultation requirements and the power to refuse consent could be subject to administrative law challenge (e.g. for procedural fairness or unreasonableness), but no such cases are reported in the source.

Several provisions contain traps. First, the condition in section 9(3) applies to “each mining tenement granted in respect of the Tjuntjuntjara Community land”. A mining tenement could have been granted before the Act commenced, and the condition may still attach if the tenement is “in respect of” that land. The Act does not contain a saving provision for pre-existing tenements. A title holder who acquired rights years ago may now find those rights subject to an additional veto without compensation. Second, the definition of “Tjuntjuntjara Community land” refers to Lot 9 on Deposited Plan 220992. If the deposited plan is amended or the survey boundaries change, the definition is fixed - it does not refer to subsequent plans. This creates inflexibility if a boundary error is later discovered. Third, the access easement is shown on Deposited Plan 414191 version 2. The Minister’s power to grant the easement is limited to that specific plan. If a different route or a wider easement is needed, the normal procedures under section 44 of the Land Administration Act 1997 would apply, and section 8 would not assist. Fourth, the exclusion of the Residential Tenancies Act 1987 means that any person living on the Tjuntjuntjara Community land under the lease (including families, employees, tenants of the community) has no statutory right to quiet enjoyment, no rent controls, no protection against unfair eviction, and no requirement for the premises to meet minimum health and safety standards under that Act. The lease contract itself may provide some protections, but the default statutory safety net is removed. Fifth, the consultation requirements under sections 9(5) and 10(5) require the Minister to “obtain the recommendations of” the listed bodies. The Minister is not required to adopt those recommendations, and there is no requirement to give reasons for disregarding them. A recommendation against mining could be overridden. Conversely, a recommendation in favour could be ignored. This gives the Minister wide discretion but also exposes the decision to legal challenge if the consultation process is not genuinely undertaken. Sixth, the Act does not address what happens if the community lease is surrendered or terminates. The Tjuntjuntjara Community land would then presumably revert to unallocated Crown land, but the excision from the nature reserve might not be reversible. The mining and petroleum conditions would continue to apply to the land, not to the lease. Seventh, the boundary correction in section 4(1) deletes words that were part of the original Gazette description. This could affect historic tenure, survey marks, or adjacent title boundaries. While the Act says it does not affect the reserve’s area, it may affect the legal description used for other purposes. Eighth, the Act does not purport to extinguish native title or comply with the Native Title Act 1993 (Cth). The excision of land from a reserve and the grant of a lease may be “future acts” under the Commonwealth Act. If native title exists, the State would need to follow the relevant procedures. The Act is silent on this, which could be a legal risk for the lease and any resource titles. Ninth, the forfeiture and cancellation provisions under the Mining Act and Petroleum Act require the relevant Minister or agency to take action. A breach of the condition does not result in automatic forfeiture; there must be a process. The holder may be able to remedy the breach (e.g. by seeking retrospective consent, which is not provided for in the Act). The Act does not create an offence, so no criminal liability attaches. Finally, the commencement gap meant that sections 4 and 6 (boundary correction and Registrar duties) operated from December 2018, but the excision and all other operative provisions only took effect in December 2022. During that period, the land legally remained part of the nature reserve, but the boundary description had been corrected. This could have created confusion as to the actual status of the land.

For the Registrar of Titles, compliance is straightforward: register the boundary correction and excision as directed by section 6, using the deemed order power. For the access easement, register it as per section 8(3) once the Minister proposes it. For the Minister granting the community lease, section 83(1) of the Land Administration Act 1997 must be followed, but the Act removes any doubt about the reserve status. The lease should expressly state that the Residential Tenancies Act 1987 does not apply, to avoid confusion. For mining tenement holders, the primary compliance step is to obtain written consent from the Minister for Mines before carrying out any mining on or under the Tjuntjuntjara Community land. The consent application should be made formally and should include sufficient information for the Minister to assess the proposal. The holder must also be prepared for the Minister to consult with the other parties listed in section 9(5). The holder has no role in that consultation but should ensure the Minister is aware of any agreements reached with the community or the conservation department. If consent is granted with conditions, those conditions must be strictly followed. Any breach could result in forfeiture proceedings. The holder should also continue to comply with all other requirements of the Mining Act 1978 (environmental approvals, rehabilitation bonds, safety etc.). For petroleum and geothermal title holders, the process is analogous under section 10: apply to the Minister for Petroleum for consent before commencing operations. The same consultation requirements apply. The condition applies despite section 15(1) of the Petroleum and Geothermal Energy Resources Act 1967, so the holder cannot rely on the usual freedom to operate under that Act. Copies of the consent documents should be retained and made available to inspectors. For the Tjuntjuntjara Community leaseholder, compliance involves being available to be consulted when a mining or petroleum consent application is made, and providing recommendations to the Minister. The leaseholder should also ensure that any residential arrangements they make with third parties (e.g. workers, visiting families) are properly documented and do not inadvertently create a residential tenancy under the Residential Tenancies Act 1987 - because that Act is excluded, the leaseholder cannot rely on its framework and must instead use contractual terms. The leaseholder should also be aware of their rights under the access easement: it benefits them, but they may need to maintain the easement or obtain any necessary approvals from the nature reserve manager. For the community itself, the Act provides the land for a lease; the community should engage with the Minister and the leaseholder to ensure the lease terms reflect their needs. The community should also be aware that the mining and petroleum restrictions do not give them a veto, only a right to be heard. Any future resource development on their land will depend on decisions by the respective Ministers. Overall, the main compliance burden falls on resource title holders, who must now navigate a dual consent process (existing approvals plus new ministerial consent). The lack of automatic appeal or time frame for the consent decision introduces commercial uncertainty.