Supreme Court clarifies ability to claim exemption when minimum expenditure requirements have been met

The recent case of Regis Resources Limited v The Honourable William Joseph Johnston MLA, Minister for Mines and Petroleum [2023] WASC 293 provides an insight into the efficacy of judicial review and provides clarity over provisions of the Mining Act 1978 (WA)(Act) for tenement holders alike. Section 102 of the Act exempts the holder of a mining tenement from prescribed expenditure conditions in certain circumstances. Regis Resources Limited (Regis) sought judicial review to quash decisions made by a delegate of the Minister, to reject numerous applications under section 102 of the Act.

‍Applications & Reasons for Refusal

‍Regis lodged four exemption applications in 2021, abiding by the requirements of section 102(2) and further citing under section 102(3) that 'the grant of the exemption is of benefit to the State.' In accordance with the requirements of regulation 54(3) of the Mining Regulations 1981 (WA), Regis included a statutory declaration with each Form 18 to evidence the aggregate expenditure for each group, satisfying the requirements of section 102(2)(h). Despite this, Regis received a notice of intention of refusal from the Minister's delegate, citing that the application 'does not meet the criteria set out in s 102 of the Act. 'Although the reasons for refusal were vague, it was subsequently advised by the delegate that the application for exemption was refused because Regis had exceeded the minimum expenditure requirements. Regis considered this an incorrect interpretation of the Act, citing Carnegie Gold Pty Ltd v Maughen [2018] WASC 366 (Carnegie).

In Carnegie it was determined that tenement holders that meet minimum expenditure requirements are still entitled to apply for exemption under section 102. The Minister's delegate rejected the application of Carnegie to Regis' circumstances. The Court considered that the rejection by the Minister's delegate of the application for exemption was 'without merit' and 'elevated form and pedantry to impermissible heights.

'The Court upheld all grounds of judicial review, overturning the Minister's delegates decision to quash Regis' applications for exemption. This case provides a timely reminder that the process of tenement holders applying for exemptions from expenditure requirements when minimum expenditure is met remains a sound strategy, particularly where current expenditure may be focused on other tenements within a tenement package.

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