(b) The Partial Transfer Issue
74 In its written submissions the appellant contended that the effect of the Deed was to constitute a purported exercise of the power to grant an exploration licence under s 22 of the Act and was not, and could not be construed as, an attempt to partially transfer A216 to CMA. This must be so if only for the reason that the Director-General as transferor was not a party to that document. It was further submitted that the Deed did not, therefore, purport to be a document setting out the terms of the proposed new authority in compliance with s 123(2)(b). Rather, it was expressed to confer rights upon CMA and not merely to set out the terms of a "proposed new authority".
75 It was further submitted that once an authority is taken to have been granted under s 123(1)(b) of the Act, then in the same way as an exploration licence granted under s 22 is required to be in writing under s 28, so also must the new authority be in the form required by that provision. The Deed did not fulfil that requirement.
76 The appellant's written submissions next contended that his Honour failed to have regard to the absence of any documentary or other evidence demonstrating that there was, in fact, a transfer of rights under A216 by the Director-General to CMA. It was submitted that the Deed was inconsistent with any such transfer of rights. There was no evidence of any express act or event of transfer.
77 It was submitted that none of the provisions of ss 120, 121, 122, 123(2) or 124 of themselves gave rise to an act or event of transfer. It was contended that "the transfer" must be a distinct act or event and not merely a state of affairs arising from the Minister's approval of an application to transfer or from the registration of the transfer.
78 In oral submissions the appellant reiterated its contention that the Deed did not constitute a partial transfer of A216. Thus the relevant issue for the Court's determination was whether there was an instrument of transfer as required by s 160(1) of the Act. It was submitted that there was no such instrument although it was conceded that the documentary material established that it was the clear intention on the part of the Director-General and the Minister that there be a partial transfer of A216 pursuant to Division 2 of Part 7 of the Act. The contention, as I understand it, was that that intention was never given effect and could not be given effect in the absence of a document of transfer that complied with s 160(1).
79 During the course of argument it was put to the appellant that the documents comprising Forms 12 and 13 together with the consent of CMA of 17 March 2006 referred to at [38] of his Honour's reasons (and recorded at [22] above) were sufficient to constitute an instrument of transfer within the meaning of s 160(1). Furthermore, when taken together with the document set out at [45] of the primary judge's reasons (and also extracted at [22] above), the approval by the Director-General's delegate on 12 April 2006 of the recommendation contained therein constituted an act or event of transfer which satisfied the provisions of Division 2 of Part 7 of the Act.
80 In this respect it was conceded by the appellant that each of these documents, and particularly Forms 12 and 13, were instruments in writing within the meaning of s 160(1).
81 Nevertheless the response of the appellant was that none of these documents gave rise to an act of transfer of the Director-General's rights under A216 to CMA. One had to comply with the statutory scheme and, in particular, s 160(1). The documents mentioned referred to EL6505 which was the new exploration licence. But, EL6505 was not created by a combination of Forms 12 and 13 and the approval document signed by the Director-General's delegate. Rather, it was created by the Deed which was not an instrument of transfer as the Director-General was not a party to it and, in any event, it purported to be an original grant by the Minister under Part 3 of the Act.
82 The essence of the appellant's argument therefore, was that even if Division 2 of Part 7 contemplated an act or event that gave rise to a transfer, s 160(1) required an instrument of transfer or disposition by which the transferor's interest in the authority was disposed of to the transferee. A mere act or event of transfer was insufficient to satisfy the statutory scheme.
83 With respect to s 160(1) the CMA submitted first, that the documents to which I have already referred and which were signed by the Minister's delegate, when taken with the consent to the transfer signed on behalf of CMA, constituted instruments in writing within the meaning of s 160(1). When taken in conjunction with the relevant statutory provisions including the approval of the Minister, they had the relevant legal effect of disposing of the relevant part of the Director-General's interest in the authority to CMA. Second, it was submitted that in any event s 160(1) has no application to the statutory scheme set out in Division 2 of Part 7 which, in effect, contains its own code as to how a transfer or part transfer is to be effected. There is a transfer by force of the statute which obviates the necessity for a transfer by an instrument in writing.
84 In this context it is to be noted that s 160(1) requires that a legal or equitable interest in an authority may not be disposed of except by instrument in writing. In other words, it is the instrument in writing which effects the relevant disposal. In the present case it is the statutory provisions which effect the relevant transfer, leaving no room for the operation of s 160(1).
85 Once the relevant statutory provisions of Division 2 of Part 7 are complied with, and which are specific to a transfer or part transfer of an authority from the holder to a third party, it follows that the general provisions of s 160 have no work to do. This is not to say that s 159(1)(b) has no application but it merely imposes upon the Director-General an obligation to cause a record to be kept of every renewal or transfer of an authority under the Act including under Division 2 of Part 7.
86 It may be a moot question as to whether the holder of an authority has a legal or equitable interest therein. The holder has certain statutory rights under an authority including, relevantly, the right pursuant to s 29(1) to prospect on the land specified in the authority for the relevant group or groups of minerals specified in the exploration licence. These are statutory rather than contractual rights. That is not to say that the holder of an authority may not enter into a transaction that may involve the disposal of a legal or equitable interest in an authority. The terms of s 161(1) clearly contemplate that there may be a legal or equitable interest in the authority. The subsection provides that the Director-General is to keep a register of legal and equitable interests in authorities and s 161(2) provides that any person claiming a legal or equitable interest in an authority may apply for registration of that interest.
87 However, in the case of the transfer of the whole or part of an authority, s 159(1)(b) requires the Director-General to record every authority that is, relevantly, transferred. A comparison of s 159 with s 161 seems to indicate that the legislature sought to differentiate between an authority that is granted, renewed, transferred or cancelled under the Act on the one hand and an authority in respect of which a legal or equitable interest therein is sought to be created or disposed of on the other.
88 Furthermore, the cancellation of a part of an authority may be said to involve the disposal of a legal or equitable interest therein. Such a cancellation is required by s 159(1)(b) to be recorded. Yet clearly, such a cancellation is not required to be effected by an instrument in writing in view of the provisions of s 123(1)(a) which provide that where part of an authority is transferred under Division 2 of Part 7, the authority is taken to have been cancelled as to the area of the part so transferred. In other words, the statute operates to cancel that area to which the authority related pre-transfer.
89 Equally, the effect of s 123(1)(b) is that where there is a part transfer of an authority, the part transferred is taken to have been granted to the transferee. There is, in effect, a deemed grant of that part of the authority with the consequence that a new authority is created which attracts the rights and duties referred to in Division 4 of Part 3 of the Act. The creation of that new authority is effected by the statute and by the statute alone. To apply the provisions of s 160(1) to a part transfer of an existing authority would be inconsistent with the statutory scheme embodied in s 123.
90 Accordingly, in my view where a transfer or part transfer of an authority is effected pursuant to Division 2 of Part 7, s 160(1) has no part to play in giving effect to that statutory process. Furthermore, s 122 contains its own code with respect to the registration of transfers including a part transfer. As s 161 is clearly linked to s 160 with respect to the registration of a legal or equitable interest in an authority which has been created or disposed of by an instrument in writing pursuant to s 160(1), it follows that those general provisions have no application to the specific provisions of s 122 which govern the registration of a transfer of an authority.
91 Accordingly, a transfer or part transfer is a creature of the statute. Nowhere in Division 2 of Part 7 is there any requirement that the transfer be effected by an instrument in writing. On the contrary, the only documentation required is that referred to in ss 120(2) and 123(2).
92 As I have already noted, it is common ground that s 123(2)(a) has no application to the present case. It requires a document to be signed by the Minister and the proposed transferor. Section 123(2)(b) requires a document to be signed by the Minister and the proposed transferee which sets out the terms of the proposed new authority. The new authority in the present case was that contained in the Deed which was stated to be an exploration licence and which contained the terms of that licence. It was not suggested that the Deed as signed between the Minister and CMA did not contain the terms of the proposed new authority being EL6505. It therefore complied with s 123(2)(b).
93 Those parts of the recitals and the operative provisions of the Deed upon which the appellant relies to support the submission that the Deed did not effect a transfer but, on the contrary, purported to constitute an original grant under Part 3 of the Act, were otiose and did not detract from the Deed being a document setting out the terms of the proposed new authority within the meaning of s 123(2)(b). This is made clear by the terms of the recommendation in the document extracted by the primary judge at [45] of his Honour's reasons (see [22] above). Those recommendations required the approval of the Minister or his delegate, which was forthcoming.
94 Paragraphs 1 and 2 of the recommendation refer to an attached document which, clearly, was the Deed ultimately signed by the parties on the same day as the "handover ceremony" referred to at [47] of his Honour's reasons.
95 In my opinion the primary judge was correct to reject the appellant's submission that the relevant transfer could only be effected by an instrument in writing. Although his Honour did not refer to s 160(1), his conclusion at [113] that nowhere in the statutory scheme for the transfer of authorities was there a requirement for a document or instrument of transfer between the transferor and the transferee to effect the transfer of an authority either in whole or in part, was clearly correct. I would therefore reject the appellant's challenge to his Honour's finding that the partial transfer of A216 was valid.