Attorney-General for the Northern Territory v Hand

REASONS FOR JUDGMENT THE PROCEEDINGS These proceedings concern the validity of a mineral lease granted in 1982 by the Northern Territory of Australia, to permit the exploitation of deposits of uranium ore. The deposits are located at Jabiluka, about twenty kilometres north of Jabilu and twelve kilometres west of the boundary of the Arnheim Land Aboriginal Reserve. Although proposals have been in existence for the exploitation of these deposits for well over twenty years, and the lease was granted over fifteen years ago, it appears that no mining operations have yet been conducted at the site. (Background information concerning the Jabiluka deposits and proposals for their exploitation are contained in the Second Report of the Ranger Uranium Environmental Inquiry (AGPS 1977) (the "Second Ranger Report"), at 161-164). The applicant, who claims to be the principal custodian by Aboriginal tradition of the land at Jabiluka, seeks declaratory relief against four respondents, namely, the Minister for Resources and Energy ("the Minister"), the Commonwealth, Energy Resources of Australia Ltd ("ERA") and the Northern Territory. The applicant seeks two forms of relief: · an order prohibiting the Minister from granting approval to ERA, pursuant to reg 11 of the Customs (Prohibited Exports) Regulations, to export minerals, including uranium, mined from land held by the Jabiluka Aboriginal Land Trust at Jabiluka, which is included in the lease; and · a declaration that the Commonwealth is the owner of uranium and other "prescribed substances" as defined in the Atomic Energy Act 1953 (Cth) (the "Atomic Energy Act") within land at Jabiluka, identified in the application as NT Portion 2253, and that the Commonwealth has granted no valid interest to any person in respect of the uranium. The substance of the applicant's case is that the lease of uranium and other prescribed substances, granted by the Northern Territory to ERA's predecessors in title in 1982, is void and of no effect. The applicant's pleaded case is that neither the Northern Territory, nor the Minister, had any valid authority under the Atomic Energy Act or any other law of the Commonwealth, at the date of the execution of the lease, nor at any time since, to execute the purported lease, nor to grant to any person any entitlement to mine and remove the uranium from the land comprised within NT Portion 2253. That land constitutes the bulk of the land included in the lease. The fee simple estate in the land comprised within NT Portion 2253 is vested in the Jabiluka Aboriginal Land Trust and is "Aboriginal land" within the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the "Land Rights Act"). This land, which comprises about 6,758 hectares, was granted by the Governor-General to the Jabiluka Aboriginal Land Trust on 25 June 1982. I shall refer to it as the "Jabiluka Trust Land". I shall refer to the larger area of land included in the lease (a total of about 7,275 hectares) as the "Jabiluka Project Land". I shall refer to the lease as the "Jabiluka Project Lease" or, more simply, the "Lease". I was informed by counsel that the Jabiluka Project Land is surrounded by what is now the Kakadu National Park, but does not constitute part of the Park itself. No issue arises in this case as to the operation of the legislation and instruments creating and expanding the boundaries of the Park. In its defence, ERA pleads, inter alia, that the applicant is estopped from denying the validity of the Jabiluka Project Lease. An order made by another Judge of the Court, on 22 August 1997, provides that the questions raised by this paragraph of ERA's defence (designated as the "Estoppel Questions"), to be determined separately and after trial of all other questions in the proceedings. Other orders made on that occasion noted the agreement of the parties that the questions for determination in the proceedings, other than the Estoppel Questions, are limited to the following: "(a) Whether the entitlement to mine, recover and remove prescribed substances from NT Portion 2253 [the Jabiluka Trust Land] could only be granted by the Commonwealth of Australia under the Atomic Energy Act 1953 (Cth). (b) Whether the Mining Act 1980 (NT) was a law of the Northern Territory of Australia capable of operating concurrently with the Atomic Energy Act so as to entitle the Minister for Mines and Energy of the Northern Territory of Australia to grant a lease of and a right to mine prescribed substances. (c) Whether the Atomic Energy Act as in force on 12 August 1982 on its true construction excluded the operation of a law of a Commonwealth Territory purporting to grant or authorise the grant of a leasehold mining interest in uranium or other 'prescribed substance' within the meaning of that Act, in such a Territory. (d) Whether the Northern Territory of Australia was entitled to grant a lease conveying a proprietary interest in prescribed substances within the [Jabiluka Trust Land] which are the property of the Commonwealth of Australia and not the property of the Northern Territory of Australia. (e) Whether the Northern Territory (Self-Government) Act 1978 (Cth) on its true construction conferred legislative power on the Legislative Assembly of the Northern Territory with the assent as provided by that Act to enact legislation enabling or authorising the grant of a leasehold mining interest in uranium or other prescribed substance in the Northern Territory. (f) Whether the Northern Territory (Self-Government) Act 1978 (Cth) and the Northern Territory (Self-Government) Regulations on their true construction enabled the conferral of executive authority on the Minister for Mines and Energy of the Northern Territory to grant the Mineral Lease ML N1 dated 12 August 1982 in the circumstances set forth in paragraphs 17 to 20 inclusive of the Defence of [the Minister and the Commonwealth] and sub-paragraphs 5.6 to 5.9 inclusive of [ERA's] Defence. (g) If the answer to question 2(f) is yes, whether such executive authority was conferred in the circumstances set forth in [those] paragraphs. The written and oral submissions in the proceedings were not framed explicitly by reference to the series of questions identified in the orders of 22 August 1997. However, the issues raised by these questions were, in substance, addressed in the submissions. None of the submissions explicitly referred to reg 11 of the Customs (Prohibited Exports) Regulations or to the Administrative Proceduresunder the Environmental Protection (Impact of Proposals) Act 1974 (Cth). The latter impose requirements which must be satisfied if an approval is to be granted under reg 11. The applicant pleaded that the Minister has no power or authority to grant to ERA an approval in writing to export from Australia uranium which is vested in the Commonwealth, and to which ERA has no lawful right, title or interest. This allegation was denied by each of the respondents, but the pleadings did not make it clear whether the denial was intended to raise any issue other than the validity of the Jabiluka Project Lease. In any event, no further argument was put in relation to the order sought by the applicant prohibiting the Minister from granting approval under reg 11. The Minister, the Commonwealth and ERA admitted in their respective pleadings that the applicant is a member of a community or group of Aboriginals of local descent having spiritual affiliations to the Jabiluka Trust Land, and is entitled by Aboriginal tradition to forage as of right over that land. The Northern Territory did not admit the applicant's claim to be the principal custodian by Aboriginal tradition of the land. Despite the different form of the defences, none of the respondents challenged the standing of the applicant to seek the relief to which I have referred. The Minister and the Commonwealth apparently considered that a constitutional issue might arise concerning the executive power of the Commonwealth or the legislative and executive power of the Northern Territory. For this reason, they gave notice of a constitutional matter to the Attorneys-General of the State, pursuant to the Judiciary Act 1903 (Cth). In any event, none of the Attorneys-General of the States wished to intervene in or participate in the proceedings. THE LEASE By a mineral lease dated 12 August 1982, the Northern Territory granted to Pancontinental Mining Ltd ("Pancontinental") and Getty Oil Development Co Ltd ("Getty") the Lease of the Jabiluka Project Land comprising, as I have said, about 7,275 hectares, of which about 6,758 hectares is the Jabiluka Trust Land. The Jabiluka Project Lease is expressed to be granted pursuant to the Mining Act 1980 (NT) (the "Mining Act 1980"), which commenced operation on 1 July 1982. It was executed by the lessees and by the then Territory Minister for Mines and Energy "for and on behalf of the Territory". The Lease includes a grant expressed in the following terms: "ALL THOSE mines and deposits of uranium ore and other prescribed substances together with the minerals associated or combined therewith so that they must necessarily be mined in the mining of any such uranium ore or other prescribed substances in or under the leased land, together with the rights, liberties, easements, advantages and appurtenances thereto belonging or appertaining, EXCEPTING AND RESERVING out of this lease the rights of ingress, egress and regress hereinafter. ...for the term of forty-two (42) years from the date hereof for the purpose of mining thereon for uranium ore and other prescribed substances." The expression "prescribed substance" is defined to mean a prescribed substance within the meaning of the Atomic Energy Act: Jabiluka Project Lease, cl 7(a). In view of the definition of "prescribed substance" in s 5(1) of the Atomic Energy Act, the expression includes uranium, any element having an atomic number greater than 92 and any other substance declared by the regulations to be capable of being used for the production of atomic energy. The Lease is renewable for a further term not exceeding ten years: cl 2. The lessees are obliged to pay the rent and royalties reserved by the Lease: cl 1(a). Rental is payable yearly at the rate provided from time to time by the Mining Act 1980 and the regulations made thereunder: cl 4(a). Royalties are payable on the value of uranium and other prescribed substances obtained from the leased land at rates specified in the Fourth Schedule: cl 4(b). The Fourth Schedule provides a formula for a royalty payable by the lessees "for so long as ownership of uranium and other prescribed substances is vested in the Commonwealth": Fourth Schedule, cl 1(a). The formula contemplates that, after 30 June 1990, the rate payable to the Commonwealth is to be that determined by the Commonwealth Minister administering s 41 of the Atomic Energy Act: Fourth Schedule, cl 1(a), (c). A different royalty is provided for "in the event of the vesting of ownership of uranium and other prescribed substances in the Northern Territory": Fourth Schedule, cl 1(b). By agreement dated 6 August 1991, Pancontinental and two other parties (but not Getty) assigned their interest in certain assets, including the Lease, to ERA. This agreement appears not to be referred to in the pleadings and it is not entirely clear how Getty's interest in the Lease vested in the assignors, although the agreement refers to an option agreement to which Getty was a party. In any event, there seemed to be no dispute that the 1991 agreement was effective to vest the benefit of the Lease (assuming it to be valid) in ERA. The case was conducted on this basis. I shall set out later the factual background to the Lease. However, it is first necessary to deal with the complex and interlocking legislation around which the argument revolved. LEGISLATION The 1946 Act The Atomic Energy (Control of Materials) Act 1946 (Cth) (the "1946 Act") was inspired, to some extent at least, by the establishment of the United Nations Atomic Energy Commission and the simultaneous enactment of atomic energy control legislation in other countries, including Great Britain and the United States: see the second reading speech on the Atomic Energy Bill 1953, Cth Parl Deb, HR, 19 March 1953, at 1390. The purpose of the 1946 Act, which came into force on 11 September 1946, according to its long title, was "to make provision, in the interests of the Defence of the Commonwealth, for the Control of Materials which are or may be used in producing Atomic Energy...". Section 6 of the 1946 Act was as follows: "6(1) All prescribed substances existing in their natural condition, or in a deposit of waste material obtained, from any underground or surface working, on or below the surface of any land in any Territory of the Commonwealth, whether alienated from the Crown or not, and, if alienated, whether alienated before or after the commencement of this Act, are hereby declared to be the property of the Commonwealth. (2) The title of the Commonwealth to any prescribed substance under sub-section (1) of this section shall be subject to any rights granted after the commencement of this Act, by or under the law of any Territory of the Commonwealth, with express reference to the prescribed substance, but to no other rights." The expression "prescribed substance" was defined in s 3 of the 1946 Act to mean: "uranium, thorium, plutonium, neptunium or any of their respective compounds, and includes any other substance (being a substance which, in the opinion of the Minister, is or may be used for the production or use of atomic energy or research into matters connected with atomic energy) which is declared by the Minister, by order published in the Gazette, to be a prescribed substance for the purposes of this Act." Sections 8 to 11 of the 1946 Act gave the Minister powers to obtain information, prohibit the mining of prescribed substances and require the delivery up of prescribed substances. Section 12 empowered the Minister to, where he or she considered it necessary in the interests of the defence of the Commonwealth, to acquire all prescribed substances on or under any land. Section 13 empowered the Minister, where any minerals from which a prescribed substance could be obtained were present on or under land, to make an order compulsorily vesting in the Commonwealth the exclusive right to work those minerals. Section 14 of the 1946 Act made the Commonwealth liable to pay compensation to any person who had title to or an interest in prescribed substances that had been acquired by the Commonwealth by virtue of the Act. The 1946 Act was amended by the Atomic Energy (Control of Materials) Act 1952 (Cth). The most important amendment inserted s 13A into the legislation. It provided as follows: "13A(1) Where it appears to the Minister that any prescribed substances, or any minerals from which, in the opinion of the Minister, any prescribed substances can be obtained, are present on or under the whole or a part of an area of land in a Territory of the Commonwealth, either in a natural state or in a deposit of waste material obtained from any underground or surface working, the Minister may, by writing under his hand, authorise a person to carry on, on behalf of the Commonwealth, operations in accordance with this section on that land." Section 13A(2) specified the activities that could be undertaken pursuant to an authority granted under s 13A(1). Section 13A was the forerunner to s 41 of the Atomic Energy Act, which was the focus of considerable argument in the present case. The Atomic Energy Act 1953 The 1946 Act was repealed by the Atomic Energy Act, which came into force on 15 April 1953. According to the Minister's second reading speech, the legislation was made necessary because of important discoveries of uranium-bearing ores, especially in the Northern Territory and "by the Government's determination that those deposits shall be vigorously and promptly exploited for the defence of Australia and its allies, and also ultimately for industrial and other purposes." Cth Parl Deb, HR, 19 March 1953, at 1390. At the time the Atomic Energy Act was enacted, an agreement had already been entered into between the Commonwealth Government and a company, Consolidated Zinc Pty Ltd, for the development of a site containing uranium at Rum Jungle in the Northern Territory: id at 1391. The Atomic Energy Act has been amended from time to time, most notably for present purposes in 1978. The provisions I extract and refer to in this part of the judgment reflect the form of the Act in August 1982, the time at which the Jabiluka Project Lease was executed. Where I refer to the legislation in its original form, I say so. The Atomic Energy Act established the Australian Atomic Energy Commission: s 8. The functions of the Commission included the following (s 17(1)): "(a) to undertake, or arrange for or encourage other authorities or persons to undertake, exploration for, and mining and treatment of, uranium and minerals found in association with uranium; (b) to supervise the activities of persons who, in pursuance of contracts with the Commonwealth, are exploring for, mining, treating or selling uranium, or minerals found in association with uranium, and to exercise the rights and powers of the Commonwealth under any such contract; (c) to co-operate with the appropriate authorities of a State in matters associated with - (i) the discovery and mining in the State of uranium and minerals found in association with uranium; or (ii) the treatment, use or disposal of uranium, or of any such mineral, found in the State." The functions of the Commission were to be exercised only for the purposes specified in s 17(4). These included ensuring the provision of uranium or atomic energy for the defence of the Commonwealth or for any other purpose of the Commonwealth and the provision of uranium to other countries. Section 34(1) of the Atomic Energy Act required the powers conferred by Part 3 (ss 34-43) to be exercised only for the purposes specified. These purposes reflected various heads of Commonwealth legislative power under the Constitution and included purposes related to the defence of the Commonwealth (s 34(1)(a)), overseas and interstate trade (s 34(1) (b),(c)) and external affairs (s 34(1)(d)). In addition, the powers could be exercised "(f) in relation to substances situated in or recovered from, or things done or proposed to be done in or in connection with, a Territory". Section 34(1)(f) invoked the Parliament's power under s 122 of the Constitution, to make laws for the government of a Territory. In its original form, s 34 had provided that the powers conferred by Part 3 were to be exercised for defence purposes or in relation to substances situated or things to be done in a Territory. The invocation of the broader range of Commonwealth heads of power was effected by the Atomic Energy Amendment Act 1978 (Cth), s 9, which substituted a new s 34 in the principal Act. Section 35 of the Atomic Energy Act was the counterpart to s 6 of the 1946 Act and provided as follows: "35(1)This section applies to substances which, on or after the commencement of the Act, are prescribed substances existing in their natural condition, or in a deposit of waste material obtained from an underground or surface working, on or below the surface of land in a Territory, whether alienated from the Crown or not and, if alienated, whether alienated before or after the commencement of this Act. (2) A substance to which this section applies which - (a) is a prescribed substance at the commencement of this Act; and (b) was not the property of the Commonwealth immediately before 11 September 1946 (being the date of commencement of the Atomic Energy (Control of Materials) Act 1946), is declared to have become the property of the Commonwealth on that date. (3) A substance to which this section applies which - (a) becomes a prescribed substance after the commencement of this Act; and (b) is not, immediately before the date on which it becomes a prescribed substance, the property of the Commonwealth, becomes, by force of this Act, the property of the Commonwealth on that date. (4) The title of the Commonwealth to any substance to which this section applies is subject to any rights granted after 10 September 1946 by or under the law of a Territory, with express reference to that substance, but to no other rights." The definition of "prescribed substance" in s 5(1) of the Atomic Energy Act (as amended in 1978) was similar, but not identical, to that in the 1946 Act: "'Prescribed substance' means - (a) uranium, thorium, an element having an atomic number greater than 92 or any other substance declared by the regulations to be capable of being used for the production of atomic energy or for research into matters connected with atomic energy; and (b) any derivative or compound of a substance to which paragraph (a) applies." Section 36 required a person who discovered a prescribed substance anywhere in Australia to notify the Minister and s 37 empowered the Minister to require persons to furnish information as to prescribed substances in their possession. Section 38 conferred a power to make regulations, inter alia, prohibiting (except under a licence), regulating or controlling the working of minerals from which a prescribed substance could be obtained, or the production or processing of a prescribed substance. Section 38(3) empowered the Minister to grant or refuse a licence for the purposes of the section. Section 38(4) was as follows: "(4) Notwithstanding the provisions of section 34, where a person applies for a licence under this section in respect of anything proposed to be done in a State, the Minister shall grant the licence unless he considers it necessary or desirable for a purpose referred to in paragraph (a), (b) or (d) of sub-section (1) of section 34 to refuse to grant the licence." Section 39 empowered the Minister to authorise a person to enter lands on or under which prescribed substances are reasonably thought to exist, for the purpose of making tests and extracting samples. Section 40 authorised the Minister to require a person who has a prescribed substance in his or her possession to deliver up the substance. Section 41 is of importance in this case. It provided as follows: "41(1)Subject to sub-section (2B), where it appears to the Minister that a prescribed substance, or minerals from which, in the opinion of the Minister, a prescribed substance can be obtained, is or are present on or under the whole or a part of an area of land, either in a natural state or in a deposit of waste material obtained from an underground or surface working, the Minister may, by writing under his hand, authorise a person, or 2 or more persons engaged in a joint venture, to carry on, on behalf of or in association with the Commonwealth, operations in accordance with this section on that land. (2) Subject to any conditions or restrictions specified in the authority, the person so authorised in relation to any land may - (a) enter upon that land, with such workmen and other persons as he thinks fit, and bring on to that land such machinery, vehicles and other things as he thinks fit; (b) take possession of the whole or a part of that land; (c) carry on, upon or under that land, operations for discovering prescribed substances, and for mining, recovering, treating and processing prescribed substances and such other minerals as it is necessary or convenient to mine or recover in order to obtain prescribed substances; ... (g) do all such other things as are necessary or convenient for the effectual exercise of the powers specified in the preceding paragraphs of this sub-section. ... (2B) The Minister shall not confer an authority under sub-section (1) in relation to land in a State without the consent of the Government of that State unless that authority is conferred for a purpose that is, or purposes each of which is, related only to the defence of the Commonwealth. (3) All prescribed substances and minerals mined or otherwise recovered in pursuance of an authority under this section that are not otherwise the property of the Commonwealth are, by force of this section, vested in the Commonwealth. (4) Except as provided by the regulations, this section shall not be construed as intended to exclude or limit the operation of any provision of a law of a State or Territory that is capable of operating concurrently with this section." The bolded words in s 41(1) were added by amendments in 1978, and s 41(4) was added in the same year: Atomic Energy Amendment Act 1978 (Cth), s 11(a), (c); Atomic Energy Amendment Act (No 2) 1978 (Cth), s 4(a). As I have already indicated, the precursor to s 41 of the Atomic Energy Act was s 13A of the 1946 Act. However, there were two major differences between the provisions. First, s 13A(1) was confined to operations in a Territory, while s 41(1) extended to operations in both States and Territories. Secondly, s 41(3), which vested property in the Commonwealth in prescribed substances recovered under an authority, had no equivalent in s 13A. Section 41A, which was added to the legislation in 1978, provided that, subject to ss 41B and 41C, an authority granted under s 41 was not to be varied or revoked otherwise than under and in accordance with s 41A itself. Revocation could take place, for example, where the person in whom authority was conferred applied for revocation, or where that person failed to comply with a condition to which the authority was subject: s 41A(2), (4). In exercising the powers under s 41A, the Minister was not to act in a manner inconsistent with the obligations of the Commonwealth under any agreement entered into under ss 44 and 46 of the Land Rights Act: s 41A(8). The Commonwealth was liable to pay compensation where any prescribed substance was acquired by the Commonwealth by virtue of Part 3 or where a person suffered loss or damage by reason of anything done in pursuance of ss 39-41: s 42. The Lands Rights Act The Land Rights Act commenced on 26 January 1977. It defined "Aboriginal land" to include "land held by [an Aboriginal] Land Trust for an estate in fee simple": s 3(1). That definition applied to the Jabiluka Trust Land and it is therefore necessary to consider the effect of the Land Rights Act in the present case. The following outline of the Land Rights Act relates, unless otherwise stated, to the legislation as it stood at the date the Jabiluka Project Lease was executed. The Land Rights Act provided for the establishment of Aboriginal Land Trusts, to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned: s 4. The Land Rights Act identified certain tracts of land in respect of which the Minister was required to recommend to the Governor-General that a fee simple grant be made to a Land Trust: s 10. The Minister was also required, subject to certain conditions, to grant land to a Land Trust where it was recommended by the Aboriginal Lands Commissioner in a report, that such a grant should be made: s 11. A deed of grant to a Land Trust had to be expressed to be subject to a reservation that the right to any minerals existing in their natural condition or in a deposit of waste material from any underground or surface working, being minerals all interests in which were vested in the Commonwealth, were to remain with the Commonwealth: s 12. A Land Trust was subject to the supervision of the Land Council for the relevant area in relation to the Land Trust's holding of Aboriginal land: s 23(1)(h). Part 4 of the Land Rights Act dealt with mining interests and operations. (Part 4 was repealed and replaced by a new Part 4 by the Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) 1987 (Cth).) A mining interest in respect of Aboriginal land could not be granted unless both the Minister and the Land Council for the area consented to the making of the grant (s 40(1)(a)), or the Governor-General had declared that the national interest required that the grant be made (s 40(1)(b)). A "mining interest" meant any lease or other interest in land granted under a law of the Northern Territory relating to mining for minerals: s 3(1). Section 41 addressed the application of the Atomic Energy Act to Aboriginal land. Section 41(1) provided as follows: "41(1) The Atomic Energy Act 1953 or any other Act authorising mining for minerals does not apply in relation to land that is Aboriginal land so as to authorise the entry or remaining of a person on the land or the doing of any act by a person on the land unless - (a) the Governor-General has, by Proclamation, declared that both the Minister and the Land Council for the area in which the land is situated have consented to the application of that Act in relation to entry on that land; or (b) the Governor-General has, by Proclamation, declared that the national interest requires the application of that Act in relation to entry on that land." Section 43(1) provided that a Land Council could agree with an applicant for a mining interest in respect of Aboriginal land for the giving of consent by the Land Council in return for agreed payments. Where by virtue (inter alia) of a proclamation made by the Governor-General under s 40(1)(b) a mining interest in respect of Aboriginal land could be granted without the consent of the Land Council for the relevant area, the mining interest was not to be granted unless the applicant for that interest had entered into an agreement with the Land Council: s 43(2). The agreement was to contain such terms and conditions as the parties might agree, having regard to the effect of the grant of the mining interest on Aboriginals. The terms and conditions could include a requirement that moneys be paid to the Council. Section 44(1) provided that a Land Council could agree with the Commonwealth for the giving of the Council's consent to the application of the Atomic Energy Act to Aboriginal land, in consideration of agreed payments and subject to any other terms and conditions as were provided for in the agreement. If a proclamation were made under s 41(1)(b), without the consent of the relevant Land Council, the Land Rights Act did not authorise any act on the Aboriginal land unless an agreement was entered into between the Commonwealth and the Land Council providing for the payment of agreed amounts to the Council and containing such other terms and conditions as might be agreed: s 44(2). A Land Council was not permitted, without the approval of the Minister, to enter into a contract involving the payment or receipt of an amount exceeding $50,000: s 27(3). Where the Minister was satisfied that a Land Council was unwilling to give its consent to the grant of a mining interest because the applicant for the grant would not agree to the consideration proposed by the Council, the Minister could appoint an arbitrator to determine the terms and conditions of the agreement that should have been acceptable to the Council: s 45(1). The Land Council was obliged to enter an agreement with the applicant on the terms and conditions specified by the arbitrator: s 45(2). Section 46(1) established an arbitral mechanism in relation to the agreement contemplated by s 43(2) and s 44(2) of the Land Rights Act. The sub-section was as follows: "46(1)Where the Minister is satisfied that - (a) a Land Council has refused, or is unwilling, to negotiate with respect to the terms and conditions of an agreement required by sub-section 43(2) and 44(2); or (b) the Land Council and the applicant for the relevant mining interest or the Commonwealth, as the case may be, cannot agree on the terms and conditions of the agreement, the Minister may, after consultation with the Land Council and, where appropriate with the applicant for the grant, appoint an Arbitrator, being a person whom the Minister considers to be in a position to deal with the matter impartially, to determine the terms and conditions of the agreement...". Section 74 of the Land Rights Act provided that the Act did not affect the application to Aboriginal land of a law of the Northern Territory to the extent that the law was capable of operating concurrently with the Act. The Self-Government Act Before 1 January 1911, what is now the Northern Territory was part of the State of South Australia. By the Northern Territory Acceptance Act 1910 (Cth), (the "Acceptance Act"), which commenced on 1 January 1911, the Northern Territory was surrendered by South Australia and the surrender was accepted by the Commonwealth, a course contemplated by ss 111 and 122 of the Constitution. The Acceptance Act continued all laws in force at the time of acceptance but provided that they could be altered or repealed under a law of the Commonwealth: Acceptance Act, s 7. It also provided that all estates and interests held by any person from South Australia within the Northern Territory at the time of acceptance would continue to be held from the Commonwealth on the same terms and conditions as they were held from the State: s 10. The Northern Territory (Administration) Act 1910 (Cth) (the "Administration Act")provided for the appointment by the Governor-General of an Administrator for the Territory: s 4. In its original form, s 13 of the Administration Act empowered the Governor-General to make ordinances having the force of law in the Territory. This was later repealed and, in 1931, s 21 was inserted into the Act, providing for the making of ordinances having the force of law in the Territory. Section 21 itself was repealed in 1947, with the creation of the Legislative Council for the Territory: Administration Act, s 4B, inserted by the Northern Territory (Administration) Act 1947 (Cth). Section 21 provided the foundation for the Mining Ordinance, as originally enacted, to which I refer later: Newcrest Mining (WA) Ltd v The Commonwealth (1997) 71 ALJR 1346, at 1399, per Gummow J. The purpose of the Northern Territory (Self-Government) Act 1978 (Cth) (the "Self-Government Act"), as stated in the recitals, is "to confer self-government on the Territory, and for that purpose to provide, among other things, for the establishment of separate political, representative and administrative institutions in the Territory and to give the Territory control over its own Treasury." The Self-Government Act, most provisions of which came into force on 1 July 1978, established the Northern Territory as a body politic under the Crown, by the name of the Northern Territory of Australia: s 5. The Act created the Legislative Assembly of the Northern Territory and conferred powers upon it as follows (s 6): "6. Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as provided by this Act, to make laws for the peace, order and good government of the Territory." While the grant of power under s 6 is in wide terms, the Legislative Assembly is subject to certain constraints. Every proposed law passed by the Legislative Assembly must be presented to the Administrator for assent: s 7(1). The Administrator is appointed by the Governor-General and is charged with the duty of administering the government of the Territory: s 32(1), (2). The Administrator is to exercise and perform all powers and functions, except (relevantly) for those relating to matters specified in s 35, in accordance with such instructions as are given by the Commonwealth Minister: s 32(3). If the proposed law makes provision only for or in relation to a matter specified under s 35 (that is, a matter in respect of which Territory Ministers have executive authority), the Administrator must declare either that he or she assents or withholds assent to the proposed law: s 7(2). In any other case, the Administrator must either assent, withhold assent or reserve the proposed law for the Governor-General's pleasure, in which case the Governor-General must assent or withhold assent to the proposed law, or return the proposed law with any amendments that he or she recommends: s 8. The Governor-General also has power, within six months of the Administrator's assent to a proposed law, to disallow the law or part of the law or to recommend to the Administrator any amendments to the laws of the Territory he or she considers desirable: s 9(1), (2). If the Governor-General recommends such amendments, the time within which a law may be disallowed is extended until the expiration of six months from the date of the recommendation: s 9(3). Section 35 of the Self-Government Act provides that the regulations "may specify the matters in respect of which the Ministers of the Territory are to have executive authority". The power conferred by s 35 was exercised in the Northern Territory (Self-Government) Regulations (No 102 of 1978), (the "Self-Government Regulations")which came into force on 1 July 1978. They were later amended and, as at August 1982, the Self-Government Regulations took the form described below. Part 7 of the Self-Government Act is headed "TRANSITIONAL PROVISIONS" and includes provisions designed to continue existing laws of the Territory after the date of commencement of the Act. Section s 57(1) provides that "[s]ubject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under an enactment." Section 69 addresses the question of transfer of Commonwealth property to the Northern Territory, including Commonwealth interest in minerals: "(1) In this section - 'mineral' means a naturally occurring substance or mixture of substances, whether in a solid, liquid or gaseous state; ... (2) All interests of the Commonwealth in land in the Territory, other than interests referred to in sub-section (5), are, by force of this section, vested in the Territory on the commencing date. (3) All interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after the date on the same terms and conditions as those on which they were held from the Commonwealth. (4) All interests of the Commonwealth in respect of minerals in the Territory (other than prescribed substances within the meaning of the Atomic Energy Act 1953 and the regulations made under that Act and in force immediately before the commencing date) are, by force of this section, vested in the Territory on that date." Part 7 of the Self-Government Act also provides for the acquisition by the Commonwealth of any interest on land vested in the Territory pursuant to s 69(2) of the Act. Section 70 provides as follows: "70(1)The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by sub-section 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section. (2) The Governor-General may, on the recommendation of the Minister under sub-section (1), authorise the acquisition of the interest for a public purpose approved by the Governor-General. (3) The Minister may cause to be published in the Gazette notice of the authorisation by the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General. (4) Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section - (a) vested in the Commonwealth; and (b) freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which sub-section (6) applies), to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1955 in relation to that estate, are vested in the Commonwealth." ... (6) Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interest derived from the first-mentioned interest are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory." The words "or to be vested", in s 70(1), appear to be explained by the fact that s 70 came into force on 22 June 1978, the date of assent, while the other provisions of the Self-Government Act came into force on 1 July 1978: see Newcrest Mining v Commonwealth, at 1405, per Gummow J. Section 70(11) was added by the Northern Territory (Self-Government) Amendment Act 1982 (Cth), s 11: "Where sub-section (4) has effect in relation to an interest in land, that sub-section has the like effect in relation to any interest vested in the Territory by sub-section 69(4) in respect of minerals in or on that land." The Self-Government Regulations As I have noted, the power conferred by s 35 of the Self-Government Act was exercised by the promulgation of the Self-Government Regulations. Regulation 4(1) provides that, subject to subregs (2) and (4), the Ministers of the Territory are to have executive authority under s 35 of the Act in respect of a large number of specified matters, including "Mining and minerals (including gases and hydrocarbon fuels)". Regulation 4(2) creates an exception to the operation of reg 4(1), but is itself subject to a qualification. Regulation 4(2) is as follows: "(2) Subject to sub-regulation (6), a matter specified in sub-regulation (1) shall not be construed as including or relating to - (a) the mining of uranium or other prescribed substances within the meaning of the Atomic Energy Act 1953 and regulations under that Act as in force from time to time; or (b) rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976." Regulation 4(6) provides that "[s]ub-regulation (2) does not apply to a matter specified in sub-regulation (1) if the matter is also included in the matters specified in sub-regulation (5)". The Ministers of the Territory therefore have executive authority in matters relating to the mining of prescribed substances or rights in respect of Aboriginal land if the matters fall within reg 4(5). Regulation 4(5) states that the Ministers of the Territory are to have executive authority under s 35 in respect of a number of "matters", including the following: "(a) ... (b) matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred by or under another Act in force in the Territory, or by or under an enactment or an agreement or arrangement referred to in paragraph (f), on the Administrator or a Minister or officer of the Territory; (c) matters under an enactment (including the making of regulations, rules, by-laws and other instruments) made for the purposes of, and to the extent provided by, such another Act that expressly provides for the making of such an enactment; ... (f) agreements and arrangements between the Territory and the Commonwealth or a State or States, including the negotiation and the giving effect to any such agreement or arrangement by the Territory by way of enactment, regulations or other instrument, or otherwise." The word "enactment", used in subregs (b) and (c), is defined in s 4 of the Self-Government Act to mean "(a) a law (however described or entitled) passed by the Legislative Assembly and assented to under section 7 or 8; or (b) an Ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by this Act." The definition of "enactment" in the Self-Government Act applies in the absence of a contrary intention, to the Self-Government Regulations: Acts Interpretation Act 1901 (Cth), s 46(a). The Mining Ordinance and the Mining Act Prior to self government in the Northern Territory, mining in the Territory was governed by the Mining Ordinance 1939, as amended from time to time. The Mining Ordinance 1939 continued in force after self-government until its repeal in 1982, and was cited after self-government as the Mining Act 1939. However, I shall refer to it as the "Mining Ordinance". (For a general description of the operation of the Mining Ordinance and the Mining Regulations 1940, see the judgment of French J in Newcrest Mining (WA) Ltd v The Commonwealth (1993) 46 FCR 342, at 398-401.) The Mining Ordinance repealed earlier legislation, including specified Acts of South Australia which continued to apply in the Territory after its acceptance by the Commonwealth in 1910, and Ordinances of the Northern Territory: Mining Ordinance, s 3. Part 5 of the Mining Ordinance authorised the Administrator of the Northern Territory to grant a variety of mining leases, including leases of Crown land for the working of "minerals", subject to the payment of rent and royalties: Part 5, Div 2. The expression "minerals" was defined in s 7 to mean "all minerals other than gold, and includes all...naturally occurring inorganic or fossil substances...as the Administrator...declares to be minerals". The Mining Ordinance was amended in 1953, shortly after the enactment of the Atomic Energy Act: Mining Ordinance (No 2) 1953, commencing on 3 September 1953. The amendments authorised the Administrator to grant a lease of such area as he or she saw fit "for the purpose of mining for a prescribed substance within the meaning of the Atomic Energy Act 1953": Mining Ordinance, s 47A; see also ss 51(3), 87A. The Mining Ordinance continued in force under s 57 of the Self-Government Act, until repealed by the Mining Act 1980, which came into force on 15 April 1982: Mining Act 1980, s 3, Schedule. Between the date of commencement of the Self-Government Act and the coming into force of the Mining Act 1980, the Mining Ordinance was amended on three occasions. The Mining Act (No 4) 1978 (NT), s 4, which came into force on 3 January 1979, inserted s 7A into the Mining Ordinance (which by then was cited as the Mining Act). Section 7A provided as follows: "7A(1)Subject to sub-section (2), but notwithstanding anything elsewhere contained in this Act or the Regulations made thereunder, in respect of a prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth, the Minister - (a) shall exercise his powers in accordance with and give effect to the advice of the Minister of the Commonwealth for the time being administering section 41 of that Act; and (b) shall not exercise his powers otherwise than in accordance with such advice. (2) Sub-section (1) does not operate to prevent the Minister from acting without advice, or to require the Minister to take or give effect to advice, in relation to a matter arising under Part IVA." (Part 4A dealt with exploration licences.) The Mining Act (No 4) 1978 (NT), s 10, introduced a further amendment which required the lessee under a special mineral lease granted in respect of a prescribed substance to pay royalty to the Commonwealth at the rate specified in the lease and approved by the Commonwealth Minister for the time being administering s 41 of the Atomic Energy Act: see Mining Act, s 54F(1A). The Lease in the present case was granted under the Mining Act 1980. At the relevant time, Part 6, Division 2 of the Mining Act 1980 regulated the grant of mineral leases. Section 60 empowered the responsible Minister of the Territory to grant a lease for a term of twenty-five years for the mining of minerals specified in the lease and for related purposes. The Act defined "mineral" to include any naturally occurring inorganic element or compound obtainable from land by mining: s 4(1). The Act established a regime for such matters as surveys (s 61), conditions of lease (s 66) and renewal of leases (s 67). Section 175 of the Mining Act 1980 was headed "PRESCRIBED SUBSTANCES UNDER THE ATOMIC ENERGY ACT" and reflected the terms of s 7A of the Mining Ordinance. Section 175 provided (incorporating amending legislation passed prior to the commencement date of 15 April 1982) as follows: "(1) Subject to sub-section (2), but notwithstanding anything elsewhere contained in this Act (other than sub-section (3)) or the Regulations, in respect of a prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth, the Minister - (a) shall exercise his powers in accordance with, and give effect to, the advice of the Minister of the Commonwealth for the time being administering section 41 of that Act; and (b) shall not exercise his powers otherwise than in accordance with such advice. (2) Sub-section (1) does not operate to prevent the Minister from acting without advice, or to require the Minister to take or give effect to advice, in relation to a matter arising under Part IV. (3) The lessee of a mineral lease granted in respect of a prescribed substance referred to in sub-section (1) is liable to pay royalty to the Commonwealth, in respect of that prescribed substance obtained from the land comprised in the lease, in such manner and at such times, and at such rate on an amount calculated or assessed in accordance with such method, as are - (a) specified in the lease; or (b) varied or determined in accordance with the terms of the lease." The reference in s 175(2) to Part 4 of the Act was to the provisions governing the grant of exploration licences.

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