Richmond v Warden Thomas William McPhee (CIV/2404/2023)

INTRODUCTION

On Monday 17 June 2024, Seaward J heard Richmond v Warden Thomas William McPhee (CIV/2404/2023) (Richmond) in the Supreme Court of Western Australia. Richmond concerns the Applicant’s application for judicial review of Warden McPhee’s construction of section 58(1)(b) of the Mining Act 1978 (WA) (the Act) in the Warden’s decisions of William Robert Richmond v Regis Resources Limited [No.2] [2023] WAMW 23 and William Robert Richmond v Regis Resource [No.3] [2023] WAMW 44, made on 23 August 2023 and 10 November respectively.

The Applicant raised two grounds of judicial review: (1) the Warden’s construction of section 59 of the Act, being that the Warden had jurisdiction to hear the Applicant’s applications for Exploration Licences 38/3532 (E38/3532) and 38/3554 (E38/3554) (Applications) as the Applicant had lodged compliant statements in accordance with section 58(1)(b) of the Act; and (2) in the instance that the Applications were invalid, the Warden did not have jurisdiction to hear the Applications, and therefore erred in making an adverse order for costs against the Applicant under regulation 165(4) of the Mining Regulations 1981 (WA) (the Regulations).

GROUND 1 — WARDEN’S JURISDICTION

The Applicant argued that nowhere in the words of section 58(1)(b) is there a requirement for the statement to propose exploration activities over the entire term of the licence. This is because, as the Applicant submitted, at the time of making an application for an exploration licence, there is inherent uncertainty as to whether the ground applied for will be both prospective and workable. It is not until the explorer gets on the ground that any detailed programme of work can be provided to the Crown.

The Applicant further argued that section 58(3) shows that there is a degree of noncompliance that is tolerated by the Act by allowing an applicant for an exploration licence to provide further information at the request of the mining registrar or warden in support of their application. The Applicant submitted that section 59(6) further supported the notion that in the context of an exploration licence application, the Act contemplates some level of non-jurisdictional noncompliance.

The Respondent argued that a compliant section 58(1)(b) statement should not require the decisionmaker to make further enquiries as the level of detail within the statement would be sufficient. The statement is a representation to the Crown not only as to the proposed exploration or the Liability limited by a scheme approved under Professional Standards Legislation. explorer’s ability to carry out its proposal, but to assist the Crown in assessing the best use of the ground.

The Respondent asserted that any other affected party or possible Objector also needs to be sufficiently apprised of the applicant’s activities in order to assess the impact on their own interests.

The Respondent further raised the issue of priority under section 105A of the Act in that the Crown should not be so lenient as to grant a deficient application over a second in time applicant that has taken the time to adequately inform the Minister of its proposed activities.

The Respondent further submitted that the Applications were noncompliant on the basis that the Applicant failed identify how the Applicant’s technical resources were actually available to him. It was said that it is not enough to just name personnel, but to show the relationship between the Applicant and said personnel. The Respondent also took issue with the Applicant failing to set out the financial resources it had to support the totality of the proposed exploration over the entire term of the licence.

GROUND 2 — COSTS

The Applicant effectively argued that if her Honour finds that the Applications were noncompliant, then the Warden had no jurisdiction to hear the matters as the Warden only has the jurisdiction to hear an application for an exploration licence, and not the objection, pursuant to section 59(4) of the Act.

In connection with the issue of costs, the Respondent simply argued that regulation 165(4) is not a minerals rights provision but a procedural provision concerned with protecting the Objector’s right to raise valid concerns despite the noncompliant Applications in this context.

The Respondent argued that a declaration could be made that the Applications do not comply with section 58(1)(b).

RELIEF

The Applicant sought certiorari to quash Warden McPhee’s decisions and a declaration that the Applications are compliant with section 58(1)(b).

The Respondent argued that certiorari would be futile where the Applications were noncompliant for reasons other than the limited programme of work, and that a declaration could only be made that the Applications do not comply with section 58(1)(b).

OUTCOME

Her Honour has reserved her decision.

As at the time of the hearing, the Warden’s Court has issued a Circular to Practitioners to adjourn all matters that may be impacted by the Richmond decision to 20 September 2024.