WA Critical Actions - Understanding and Interpretation
''''A vital part of Tenement Management is the handling and interpretation of critical actions. Tenement Managers are responsible for every critical action that arises for a tenement. Therefore understanding the Mining Act 1978, the Mining Regulations 1981 and the WA Interpretation Act 1984 for each critical action is fundamental to providing a Tenement Management service.
If we take as an example calculating the latest possible day by which you can pay Rent Due on a tenement before incurring a penalty the Mining Regulations 1981 are quite clear as to how to calculate this:
109. Fees and rents: (4) The prescribed rent for a mining tenement for the second and subsequent years of the term of the tenement shall be paid yearly in advance within one month after the anniversary of the date on which the term commenced Mining Regulations 1981
The Mining Regulations 1981 state that payment must be made within one month after the anniversary date. Using the Mining Interpretation Act 1984 one month is interpreted as follows:
62. Months, reckoning of
(1) In a written law, month means a calendar month, that is to say, a month reckoned according to the calendar.
(2) If a period of one month indicated in a written law begins on any date other than the first day of any of the 12 months of the calendar, it shall be reckoned from the date on which it is to begin to the date in the next month numerically corresponding, less one, or, if there is no corresponding date, to the last day of that month. For example: a month beginning on 15 January ends on 14 February and a month beginning on 30 or 31 January ends on 28 February (or 29 February in a leap year).
(3) If a period indicated in a written law is of 2, 3 or more months, it shall be reckoned from the date on which it is to begin to the date numerically corresponding, less one, in the second, third, or other successive month thereafter or, if there is no such corresponding date, to the last day of the latter month. For example: a period of 6 months beginning on 15 August ends on 14 February and a period of 6 months beginning on 30 or 31 August ends on 28 February (or 29 February in a leap year). WA Interpretation Act 1984 (PDF)
This is where things become interesting. The Mining Regulations 1981 states that Rent must be paid within one month after the anniversary date. However it has become apparent that a Tenement Manager will have their own interpretation of the regulations and also their own preferred practises. It is entirely up to the Tenement Manager to put into place practises and safety measures that they feel will ensure all critical actions are met, safeguarding tenement compliance.
A survey of a group of WA Tenement Managers was performed by LandTrack Systems in August 2014 on the issue of calculating the latest possible date by which you can pay Rent Due on a tenement before incurring a penalty. 25% of those contacted provided feedback which can be summarised as follows:
- most Tenement Managers stated that they would err on the side of caution and pay the rent on the Due Date as per the rent notice from DMIRS as it saves them worrying too much
- If a rent due date is missed, the tenement is not automatically forfeited on the first day after the rent was due but not paid
- Intention to forfeit a tenement for non-payment of rent must be listed in the Government Gazette (issued midday every Friday) of the Ministers intention to forfeit the tenement – a tenement holder still has the opportunity to pay the rent before forfeiture occurs
- Responsible tenement managers will download the Government Gazette every Friday afternoon to see if a client’s tenement has been listed for intention to forfeit for non-payment of rent.
- The tenement manager then still has the opportunity to pay the rent and circumvent the forfeiture action
- Another consideration is that using the Interpretation Act 1984 is if the last day to pay falls on “an excluded day” the action can be completed on the next business day
- It would be at least a month after the due date ie two months after the anniversary date before DMIRS would start forfeiture notification procedures so there is plenty of leeway.
- A practice is to pay rents prior to anniversary to ensure valid application for Extension of Term (Reg 23A).