Marking Out Tenements in Western Australia — A Guide Based on Position Paper 14 (DMIRS, August 2025)

1. Why Marking Out Matters

Marking out is a jurisdictional step under the Mining Act 1978 (WA) and Mining Regulations 1981 (WA) for tenement applications such as prospecting licenses, mining leases, and general purpose leases. DMIRS Position Paper 14 (Aug 2025) clarifies that incomplete or non-compliant marking-out renders an application invalid, as reinforced by Forrest & Forrest Pty Ltd v O’Sullivan (2020) WASC 468.

2. Legal References

• Section 105 – Mining Act 1978 (WA)
• Regulations 59–61 – Mining Regulations 1981 (WA)
• Position Paper 14 (Aug 2025) – Departmental clarification of legal requirements

3. How to Mark Out Correctly

1. Erect a post at each corner or angle, projecting at least 1 m above ground.
2. From each post, cut two trenches or lay two rows of stones (each ≥ 1 m long) indicating boundary directions.
3. Affix a Form 20 notice to one corner post (the datum post).
4. Record precise locations, times, and directions of all works.
5. If surveyed boundaries exist, Regulation 61 allows simplified marking out using survey marks.

4. When Consent Is Required

Marking out cannot proceed until consent is granted if the land is:

• A Reserve or Commonwealth land (s.26 Mining Act), or
• Private land without lawful entry (s.28 Mining Act).

5. Evidence and Statutory Declarations

Applicants must provide a statutory declaration or affidavit describing the marking out in detail. It must include factual particulars such as times, locations, trench directions, and details of posts. Geo-tagged photos and a signed field logbook are strongly recommended.

6. Consequences of Non-Compliance

Failure to mark out strictly means the Mining Registrar lacks jurisdiction to accept the application, rendering it void ab initio. The ground must be remarked and a new application lodged.

7. Best Practice

✓ Use solid, visible posts and ensure correct height.
✓ Take time-stamped, geo-referenced photographs.
✓ Keep a detailed notebook.
✓ File your statutory declaration promptly.
✓ Check consent requirements for restricted lands.