Sweet Relief: Supreme Court Overrules Five-Year Requirement For Exploration Licence Applications

In Richmond v Warden Thomas William McPhee [2025] WASC 387, the Supreme Court of Western Australia has ruled that s 58(1)(b) statements accompanying exploration licence applications need not specify the details of a programme of work for the full five-year term. This overrules a string of Wardens’ decisions which invalidated applications on that basis. 

Background

At first instance, the Warden upheld objections made by Regis Resources Limited to Mr Richmond’s application for two exploration licences over land located in the Mt Margaret mineral fields in the goldfields.

The objections were made on the basis that s 58(1)(b) of the Mining Act 1978 (WA) (the Act) required statements to:

1. specify the details of the programme of work proposed to be carried out for the entire life of the exploration licence, being a period of 5 years; and
2. specify the technical and financial resources available to the applicant.

It was not in dispute that Mr Richmond’s statement did not contain those details for the entire five-year period. Mr Richmond argued that was not required by s 58(1)(b) of the Act. Separately, the parties disagreed on whether Mr Richmond’s statement sufficiently specified the technical and financial resources available to him.

In upholding the objections, the Warden found that s 58(1)(b) of the Act did require details for the full five-year term, in line with previous Warden’s Court decisions.¹ On the second ground, the Warden concluded that Mr Richmond ‘by a narrow margin’ did specify the technical resources available to him.

The Applicant sought judicial review of the Warden’s decision on the 5-year requirement under s 58(1)(b).

The Supreme Court’s decision

The Supreme Court found in favour of Mr Richmond, concluding there was no “temporal requirement” imposed on s 58(1)(b) statements.

Seaward J found the lack of an express requirement in s 58(1)(b)(ii) and (iii) that the information be specified for a period of 5 years militated against the Warden’s interpretation (especially when contrasted with the express temporal requirement in provisions relating to retention licences). Further, the express words of the section placed emphasis on the area of land the subject of the application, not any period of time. Her Honour also cited the absence of any requirement to retain an exploration licence for the full five year term (it being possible to surrender or apply to convert the licence at any time) and the lack of a requirement for an exploration licence holder to comply with the programme of works in the s 58(1)(b) statement.

In coming to that conclusion, her Honour acknowledged the inherent uncertainty in exploration work and that subsequent stages of exploration will often depend on the results of earlier stages. The wording of s 58(1)(b) reflected this uncertainty: ‘proposed’ method of exploration, programme of work ‘proposed’ to be carried out and the ‘estimated’ money ‘proposed’ to be expended. Her Honour found that a proposed programme of work consisting of an initial stage, with later stages dependent on the results of that initial stage or stages, is not contrary to the Act.

Her Honour found a 5-year requirement for a s 58(1)(b) statement is not consistent with the uncertainty and unpredictability inherent in exploration activities or the absence of any requirement to retain an exploration licence for the full 5-year term.

In this case, her Honour found the s 58(1)(b) statements to be compliant with the Act (as she construed it).  The description of the programme of work (being a list of the proposed activities and expenditure on each) was deemed sufficient to comply with the Act.

Although unnecessary to decide given the above findings, her Honour also determined that the Warden has the power to award costs in objection proceedings even where the tenement application is invalid (and the Warden is therefore without jurisdiction to otherwise deal with the invalid application). 

Implications

The decision will be a relief to those with pending applications that did not include a five-year programme of work. 

It fast tracks this change, which is the subject of proposed amendments to the Act.  It also provides much-needed clarity to exploration licence applicants, including on the level of detail required for a compliant s 58(1)(b).

Footnotes

1. See Golden Pig Enterprises Pty Ltd v O’Sullivan [2021] WASC 396; True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19; Azure Minerals Ltd v D & G Geraghty Pty Ltd [2022] WAMW 27; and Toolonga Mineral Sand Pty Ltd v Callum and Belinda Carruth & Ors [2023] WAMW 6.