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[1995] QCA 304
General information, not legal advice.
Court of Appeal (Qld)
1995-07-14
Before Macrossan CJ, McPherson JA, Thomas J, Macrossan CJ
Original judgment source is linked above.
The appellant sought judicial review of a decision made by a departmental officer to seize items of plant and equipment belonging to it situated on a property, Currajong, in the area west of Warwick. The basis of the seizure was the claim of the officer named McKie, that mining was being carried on at Currajong and that the mining was unauthorised within the meaning of s.11.17(1)(a)(b) and (d) of the Mineral Resources Act 1989.
The appellant at material times was the holder of an alluvial gold mining lease ML5933 over an area in the general vicinity of the Currajong property, but not adjoining it and in fact some three kilometres distant from it. The appellant had been engaging in an operation on Currajong which resulted in the separation of alluvial gold from quantities of material brought in from its leased area. No form of authority issued under the provisions of the Act applied with respect to the activity which had been taking place on Currajong.
Following its application for a statutory order of review, the appellant issued a summons seeking also a declaration but its terms were later conceded to be too wide. The argument concerning entitlement to declaratory relief was considered by the judge below, he holding that the appellant was disentitled to relief. When the matter came on appeal to this Court the appellant focused its claim for a declaration more precisely, in essence by seeking a finding that its operation of plant and equipment on Currajong in treating material transported from the land included in its mining lease did not constitute mining without authority under the Act, or a use of the Currajong property in contravention of the subsections of the Act which have been referred to. In this Court the respondent showed some disposition to argue that a declaration that "mining" had not taken place on Currajong would lack utility because the appellant might, in the alternative, be regarded as being engaged there in unauthorised prospecting or exploring and thus illegality would still be involved although under another heading. However, the basis of McKie's claim of seizure has already been mentioned and it related to an allegation of mining. The reality seems to be that if the appellant obtains a ruling that its operations on Currajong were not "mining" it will have obtained substantially what it needs to determine the issues in dispute between it and the Department.
In the debate below and in the course of argument before this Court, matters were simplified somewhat by the acceptance by the parties of an agreed statement of facts. Although this was helpful and assisted in confining the argument, both sides referred additionally to other material contained in the appeal record. This further material provided background for the facts in the agreed statement and included a number of photographs illustrating the various production line components involved in the procedures conducted at Currajong. Two particular paragraphs from the agreed statement should be set out:
"9. The Applicant's purpose in carrying out the said operations upon the Nearby Land (Currajong) was:
(a) to extract gold from samples of material from the Leased Land; and
(b) to apply such extraction towards the larger purpose of testing analysing and evaluating the same;
to determine whether it was commercially viable to continue operations on the Leased Land.
10. The amount so extracted was not in excess of a reasonable quantity to assess the commercial viability of the mining lease over the Leased Land."
The items of machinery set up and used on Currajong constituted what was described as a pilot plant equivalent to a scaled down version of a full production plant. It was a gravity extraction plant which included items styled loading bin, rotating trommel, jig and carpet lined sluice operating in conjunction with settling or sediment dams. The function of the carpet lined sluice was to retain gold fragments as the conglomerate material was washed and passed over it. Some five grams of gold had been separated by use of the plant prior to the date of seizure and some twelve cubic metres of material had been processed to yield this return. Up to that stage it had not been confirmed that the yield was sufficient to justify commercial exploitation. Insufficient material had been processed. However, a substantial quantity of material had been taken from the leased land and stockpiled for testing on Currajong. About 284 square metres had been transported from three trenches or costeans on the leased area which had been excavated to a maximum depth of approximately four metres. Certain material filed on behalf of the appellant suggested that a quantity much larger again would need to be taken and processed before a decision upon commercial viability could be made. Perhaps a quantity as large as 2,000 to 4,000 cubic metres would be required for this purpose. It was said that the process of assessment of the material removed from the lease site was similar to that used in actual commercial processing. In paragraph 10 of the statement of facts it was agreed that no more material had been extracted from the lease than was reasonable in an assessment of commercial viability. Whatever had been done with the five grams of gold extracted up to the date when operations ceased did not appear although it can be assumed that it was not abandoned.
The principal contention of the appellant was that it was not within the meaning of the Act engaged in "mining" on Currajong. The determination of this question involved a resort to the definitions of "mine" and "mineral" in s.1.8(1) taken in conjunction with such other relevant indications as the Act provided. The definition of "mine" is as follows:
"´mine' means to carry on any operation with a view to or for the purpose of-
(c) disposing of any mineral in connection with or waste substances resulting from such winning or extraction;"
The definition of "mineral" in relevant respects is as follows:
"´mineral' means a substance which normally occurs naturally as part of the earth's crust or is dissolved or suspended in water within or upon the earth's crust and includes a substance which may be extracted from such a substance, and includes-
In the definition of "mineral" there follows after the portion quoted a long list of items including such things as "foundry sand", "marble" and "silica", but while the presence of these individual items appears to cast no illumination upon the problem of construction presently arising for consideration, it should be noted that the definition does further continue in these terms:
In other contexts attention has been given to the meaning to be attributed to mining and its derivatives (see e.g. the statement of Kitto J in Federal Commissioner of Taxation v. Broken Hill Pty Co Ltd [1968] HCA 16; (1969) 120 C.L.R. 240 at 244 to 245) but in the end the meaning of "mine" under the Act of 1989 will have to be derived principally from the words of the statutory definition although perhaps general notions of what is ordinarily involved in mining may to some extent colour the interpretation which emerges. It was not suggested that the three parts of the definition appearing in subparagraphs (a) (b) and (c) were to be read disjunctively.
Some of the arguments advanced on behalf of the appellant sought to place some restrictions upon the scope of subparagraph (b) but it can reasonably be assumed that subparagraph (b) is at least intended to add something to subparagraph (a). There appears to be some intended contrast between "extracting" and "winning" and also between "natural state" and "place where it occurs". The meaning given for "mineral" is a substance which "normally occurs naturally as part of the earth's crust" although, somewhat confusingly, the definition refers to it in terms that it "includes a substance which may be extracted from such a substance". There is a specific exclusion of "soil, sand, gravel (and) rock" from the definition of "mineral". The argument proceeded on the basis that the element gold normally occurs naturally in the ground, that is in the earth's crust. It was obvious that the substantial quantities of host material transported from the area of the mineral lease to Currajong, contained quantities of gold. This was clearly the expectation and it was confirmed in practice by the operations carried out with the pilot plant. It can be accepted that looking at the ordinary meaning of the words, the procedures carried out by the appellant with its pilot plant amounted prima facie to carrying on an "operation with a view to or for the purpose of "winning mineral" and also "extracting mineral". However, it is also true that the appellant had a further objective in view, namely the testing of commercial viability and without this objective it may not have undertaken the operations at all. The two subparagraphs (a) and (b) of paragraph 9 of the statement of agreed facts, concisely state under two headings aspects of the appellant's purpose as well as its ultimate objective of determining commercial viability.
Returning to a consideration of subparagraphs (a) and (b) of the definition of "mine" quoted above and giving positive meaning where possible to both of those subparagraphs, it can be said that the excavation of the substantial quantity of host material containing a proportion of alluvial gold from the area of the mining lease was an operation carried on with a view to or for the purpose of "(a) winning mineral from a place where it occurs". But this part of the operation was carried on upon the lease area and so can be put to one side as being covered, presumably, by the authorisation conferred under the terms of the lease. The further operation carried out with the aid of the pilot plant on Currajong involved extracting alluvial gold and it did this by separating the gold from a large quantity of host material in which, in its natural state, it was distributed. This process of separation should be regarded as amounting to "extracting" the gold and the gold itself is obviously a mineral. A key to the meaning of the phrase "from its natural state" in subparagraph (b) is provided by the contrast with the earlier phrase "from a place where it occurs" appearing in subparagraph (a). It thus appears that a condition of natural distribution within a host material is distinguished from a matter of geographical location, the latter being the concept referred to in the phrase "place where it occurs" in subparagraph (a). Prima facie, then, the operation of the pilot plant on Currajong could be regarded as involving "mining" because it fell within subparagraph (b). So far as it goes, this conclusion may be all that the respondent needs to sustain its case but a further aspect of the operation may be embraced within subparagraph (c) of the definition and it should be noticed before passing on.
When the words of the rather compressed and somewhat jumbled phrase appearing in subparagraph (c) are considered, it seems that what is meant to be covered may be expressed in this fashion: "Disposing of any mineral in connection with such winning or extraction or disposing of any waste substances resulting from such winning or extraction". The "waste substances" referred to will be or can be distinct from "mineral" and that term, it will be recalled, does not include "soil, sand, gravel or rock". The host material washed away from the gold and disposed of in the ponds at Currajong in the course of operations, can be regarded as waste substances disposed of in that location and therefore prima facie a product of unauthorised mining. The appellant, however, contends that even if, prima facie, mining is found to have occurred within the meaning of either subparagraph (b) or (c), the potential scope of the words in these subparagraphs should be confined by considerations derivable from other parts of the Act.
One feature of the Act is that it seeks to regulate activities associated with the location and exploitation of mineral deposits and does so by establishing broad distinctions between different forms of activity, prescribing specific forms of authorisation referable to each. Thus, prospecting is one activity in respect of which authorisation by permit is provided for in Part III of the Act; exploration is another for which permits are prescribed under Part V and mining is a further activity for which permits are provided in other parts of the Act. The appellant's mining lease was held over land some distance away from Currajong and that lease and others like it would have been subject to regulation under Part VII. The Act provides definitions of each of the activities it categorises in accordance with this scheme and one of the appellant's arguments was that an apparent legislative intention to include activity under other headings could assist in reaching the conclusion that the prima facie width of the definition of "mining" should be read down. That is, the appellant's argument invited the Court to conclude that it was intended that the differently described classes of activity should be held to be exclusive of one another. The definition upon which the appellant principally relied was that given for "explore" of which relevant portions are as follows:
"Explore" means take action to determine existence, quality and quantity of minerals on, in or under land or in the waters or sea above land by -
(b) using instruments, equipment and techniques appropriate to determine existence of any mineral;
(c) extracting and removing from land for sampling and testing an amount of material, mineral or other substance in each case reasonably necessary to determine its mineral bearing capacity or its properties as an indication of mineralisation ... etc."
The appellant contended that the activities in which it had engaged may well have been covered under the heading of exploration since it was doing no more than testing to determine mineral bearing capacity of the samples transported from its mining lease and it was testing no greater quantity of material than was agreed was reasonably necessary to assess the commercial viability of the mining lease. This agreement is recorded in the statement of facts.
Even accepting the proposition that the Act seeks to deal separately with different activities such as exploration and mining, it does not follow that the broad band distinctions which it utilises in this connection will always provide clear answers when particular forms of activity fall to be characterised in terms of the scheme. Further, giving some broad consideration to the various parts of the Act, it is easy to conclude that the legislature may have accepted that there could be overlapping between different categories of activity and hence the scope of definitions it selected to apply to each.
The objectives sought to be attained by the Act are wide ones. Amongst the principal objectives declared by s.1.3 are these: to minimise land use conflict with respect to prospecting, exploring and mining; to encourage environmental responsibility in those activities and also to encourage responsible land care management in respect of them. With this in mind it is not obvious that the Court should engage in any particularly narrow reading of the definitions which the Act attaches to various activities. The question in the end is whether the definition of "mine" is sufficiently clear to embrace the activity engaged in by the appellant in the present case whether or not it might also be thought to be included under the definition of "explore". The argument that the definition of the latter activity should be used to cut down that involved in the former should not be accepted. It can be added that the activity of the appellant at least on Currajong is by no means clearly embraced by the definition under the heading of "explore", although it is not necessary to express a final conclusion on that point in this case.
The appellant was admittedly engaged in extracting and removing from land for testing an amount of material reasonably necessary to determine its mineral bearing capacity as an indication of mineralisation but it was doing this on and from the land included within its lease. The opening words of the definition of "explore" refer to taking action "in or under land" and the impression is conveyed that the activity is regarded as attached to the land under investigation. There is no reason to think that any subsequent testing or use of instruments to determine mineralisation if carried out in, say, a specialist city laboratory would remain part of the concept of exploration even though relevant exploration activity may have taken place at an earlier stage. The conclusion that the appellant was engaged in mining on Currajong because it was there "extracting mineral from its natural state" does not involve the further conclusion that many large scale industrial activities such as smelting or refining when carried out in the kind of large installations commonly utilised will amount to "mining" or will do so unless the words of the definition are significantly read down. Further decision upon questions such as these can be left to occasions when they arise for consideration. However, the observation can be offered that under subparagraph (b) of the definition of "mine", a distinction may well be intended to be drawn between compound substances on the one hand and mere mixtures on the other. If mineral is accepted as being the substance which "normally occurs naturally as part of the earth's crust" then be it a compound or a pure element, it can be expected that it will be found mixed with soil, sand or gravel as well as perhaps with other minerals. Action taken to extract the mineral in question from the host material may, not unexpectedly, fall within the definition of mining, but transforming compound substances may not be included in the definition because it goes further than mere extracting. That part of the definition of mineral which declares that it "includes a substance which may be extracted from such a substance (a mineral)" may also call for attention on some other occasion yet once again, it may be noted, that the words just quoted may refer to a process of extraction rather than transformation for example, of compound substances.
A further argument which the appellant advanced in its endeavour to persuade the Court that some reading down of the apparent scope of the phrase "extracting mineral from its natural state" should be undertaken was that the earlier words of the definition of "mine" include these words: "to carry on any operation with a view to or for the purpose of". Decided cases from the taxation sphere were offered in support of the proposition that the reference to "purpose" should be read as a reference to dominant purpose, it being suggested that the appellant's dominant purpose here was not to extract the alluvial gold but to determine commercial viability of the mineralisation of its lease. However paragraph 9 of the statement of facts states two separate purposes one of which is clearly described as extracting gold from samples of material taken from the leased land. It may be that the appellant had a series of purposes in mind including one ultimately of making a profit from its operations but this does not mean that it should not be thought of in respect of its operations upon Currajong as having a purpose of extracting mineral from its natural state. From the general description of the appellant's activities provided in this case there would be no difficulty in concluding that the appellant had such a purpose significantly in view and, as well, paragraph 9 of the statement of facts declares this to be so.
The conclusion which should be reached is that the appellant was engaged in "mining" on Currajong and was doing so without the benefit of any authorisation under the Act. This being so, the basis of the departmental seizure is established and the challenge to it must fail.
REASONS FOR JUDGMENT - McPHERSON J.A. & THOMAS J.
The appellant Gonzo Holdings No. 50 Pty. Ltd. is the holder of a mining lease ML5933 issued on 23 December 1987 under the Mining Act 1968. The land subject to the lease is at Karrara in the Warwick district in an area of abandoned gold workings or old diggings. The appellant excavated three costeans or trenches on the land from which it removed material consisting, according to the report of Mr Siemon, of a mixture of a mudstone, sandstone clay and quartz. Samples of the material were transported to a property, which appears to be named "Currajong", some 3 km to perhaps 6 km north of the leased area. There the appellant established what is described as a pilot plant for treating the material to extract alluvial gold from it. The method of treatment involves washing the material by passing it through a sluice which utilises gravity to retain the heavier gold fines and washes away the accompanying material, which is discharged into settlement or sediment ponds constructed on the site.
The Currajong land where the pilot plant is located is a site which had previously been used for processing alluvial gold and the settlement ponds were already established there. The land is privately owned, and the appellant has obtained the consent of the owner to use it in this way. The appellant's purpose in carrying out this treatment is, as the parties to these proceedings have agreed, to extract gold from the sample material excavated from ML5933 for the purpose of testing, analysing and evaluating it in order to determine whether it was commercially viable to continue operations on the leased land ML5933.
Although the appellant has the owner's consent to what is being done on the Currajong land, it has no mining lease or other statutory authority to conduct those activities on that land. By s.11.17(1) of the Mineral Resources Act 1989 a person shall not:
"(a) enter or be on land to carry on prospecting, exploration or mining unless the person is the holder of the relevant authority under this Act ..."
"(d) carry on mining operations upon ... land unless the person is duly authorised under this Act ..."
Under s.10.8(1) of the Act, a field officer of the Department of Minerals and Energy may, if that officer reasonably believes that any mineral is being or has been mined without statutory authority, seize the equipment being used. The respondent Mr R.G. McKie is a field officer who, after inspecting the land at Currajong, seized the plant in June 1994. His power to seize depends on whether the activities being conducted by the appellant on the Currajong land amounted to mining under those provisions. An originating summons was issued by the appellant to have it determined whether or not those activities came within the definition of "mine" in the 1989 Act. The primary judge considered that they did, and gave judgment for the respondent dismissing an application by the appellant for a declaration to the contrary effect. This is an appeal against that decision.
Ordinary meaning of "mining". It will be necessary to consider in some detail the definition of "mine" in s.1.8(1) of the Mineral Resources Act 1989. Before doing so, however, we think it helpful to notice that the expression "mining" has been held to have no fixed meaning but is one that is "readily controlled by context and subject matter". N.S.W. Associated Blue-Metal Quarries Limited v. F.C.T. [1956] HCA 80; (1956) 94 C.L.R. 509, 522. The primary signification of the word "mines", of which "mining" is a derivative, is underground excavations or underground workings: ibid, at 523. But, in relation at least to certain metals, minerals and substances which have been traditionally recovered by underground workings, its meaning has, particularly in Australia, been extended, so that "whatever the form of the excavation that is made for the purpose of winning them, whether underground or open-cast, it will be called a mine and the operations will be called mining" : ibid, at 523-524. Gold is a mineral, which is found in a variety of situations, alluvial and otherwise; but, wherever it may be found, the process of winning it is, in Australia, generally now described as gold mining.
On the face of it, therefore, what the appellant was doing on the land at Karrara subject to ML5933 was, according to the ordinary meaning of the expression, mining for gold. It is true that, as the appellant pointed out, there is in the judgment of Kitto J. in Broken Hill Proprietary Company Ltd. v. Commissioner of Taxation [1968] HCA 16; (1969) 120 C.L.R. 240, 244-245, a parenthetical remark which implies that activities of an exploratory nature may not amount to mining. Speaking of the expression "carrying on ... of operations on a mining property" in s.122 of the Income Tax Assessment Act, his Honour said:
"It comprehends more than mining in the narrow sense which imports the detaching of lumps of material from the position in which in a state of nature, they form part of the soil. It extends to any work done on a mineral-bearing property in preparation for or as ancillary to the actual winning of the material (as distinguished from work for the purpose of ascertaining whether it is worthwhile to undertake mining at all)."
The bracketed portion of this passage was referred to by Hope J. in Wyong Shire Council v. Associated Minerals Consolidated Ltd. [1972] 1 N.S.W.L.R. 114. In a decision which was later affirmed by the Privy Council ([1975] A.C. 538), his Honour held that drilling operations undertaken to investigate what minerals were on the land with a view to obtaining a mining lease were merely prospective or exploratory, and so did not constitute mining within the meaning of a definition in a town planning ordinance, which defined "mine" as including an operation carried on for the purpose of obtaining any metal or mineral. On the other hand, his Honour was evidently prepared to accept that later activities to enable a dredge path to be planned and mining to take place were at least preliminary to mining as such. The decision on this point was to some extent consciously influenced by the town planning considerations involved; but it tends to show that the activities being carried out by the appellant on the Karrara land, even though their purpose may have been exploratory, would, on almost any view of it, be considered to be mining of that land. Indeed, the appellants probably had both purposes in mind, which is no doubt a reason why they obtained a mining lease and not merely an exploration permit.
Treatment of ore mined. Characterising the Karrara operation as mining is relevant to one aspect of the definition in s.1.8(1) of the Act; but the central question on this appeal was not the nature of the activities there, but whether what was being done on the Currajong land was capable of being regarded as mining. Considered apart from the statutory definition, the closest and most relevant decision is Bismarck Range (Lucknow) Gold Exploration N.L. v. Wentworth (Lucknow) Goldfields N.L. [1935] NSWStRp 36; (1935) 35 S.R. (N.S.W.) 400. There the plaintiff was carrying on gold mining operations at Lucknow near Bathurst under the authority of a mining lease granted under the Mining Act 1906 (N.S.W.). Ore won from that land was transported to other land, said to be situated "some little distance" away, which was owned by Galloway and another. With the consent of those owners, the plaintiff set up and used a stamper battery on an area of 5 out of 12 acres of that land to crush the ore and store the tailings preparatory to removing them elsewhere for cyanide treatment to extract the gold.
A dispute having arisen concerning title to the tailings on the 5 acre site, the defendant argued that the plaintiff was not entitled to an injunction restraining interference with those tailings because they were the result, so it was said, of illegal mining on that site. Neither the plaintiff nor, at the relevant time, Galloway had a mining lease over the 5 acre site authorising crushing on that land. In rejecting the defendant's argument, Long Innes C.J. in Eq. said (35 S.R. 400, 409).
"I am unable to accept the view that the owner of ore lawfully extracted by him under the authority of a lease under the Mining Act 1906, who crushes or otherwise treats such ore on another's property, with the consent of that person, or who procures it to be so crushed or treated, without obtaining a lease under the Mining Act in respect of the property on which such ore is so crushed or treated, or causing such lease to be procured, thereby incurs the penalty imposed by s.196. In my view the plaintiff has not brought the tailings in question into being by illegal mining, and its hands are not unclean."
Section 196, to which his Honour referred, provided that "any person who without lawful authority commences to mine on ... any private land ... shall be liable to a penalty not exceeding £10, and any gold ... obtained by him by such unauthorised mining may be forfeited ...". Section 196 was thus a rough analogue of s.10.8 of the Act in this case. Under s.3 of the Mining Act 1906 (N.S.W.) the expression "to mine" was very widely defined, so as to include "... to crush ... or otherwise deal with any earth by any mode or method for the purpose of obtaining gold or minerals therefrom". The word "earth" was defined as meaning "rock, stone, quartz, clay, sand, soil, or mineral".
For his part the respondent relied on the decision in F.C.T. v. Henderson [1943] HCA 48; (1943) 68 C.L.R. 29, where it was held that calls paid to a company engaged in treating old mining dumps according to a new chemical process were calls paid on shares "in a mining company ... carrying on mining operations ... for gold" within the meaning of s.78(1)(d) of the Income Tax Act 1936. In stressing that the meaning of that expression was to be determined as a question of fact in accordance with the vernacular of mining men, Williams J. accepted evidence of a Mr Edquist that in mining parlance the process of extracting gold from the dumps was called re-treatment, which was "one amongst a number of operations which can be described generically as mining operations" [1943] HCA 48; (68 C.L.R. 29, 39). In affirming that part of the decision, Latham C.J., with whom Rich J. agreed, remarked that Edquist's evidence was that treatment of the excavated material by a battery or otherwise, or by a chemical process, constituted gold mining "when carried out at the place where the gold-bearing material was obtained". The witness, the Chief Justice went on [1943] HCA 48; (68 C.L.R. 29, 45):
"agreed that if material such as concentrates or tailings had been removed from the place where it was produced, and treated at some other place ... the treatment at that other place would not be described as a mining operation, though the same process at the place of origin would be described as part of the mining operations".
What was said in F.C.T. v. Henderson tends, if anything, to confirm the impression that the process of extracting gold from excavated material is, at least if it is conducted away from the activity of excavating it, not considered as "mining" according to the ordinary acceptation of that word. Some other decisions involving s.122 of the Income Tax Assessment Act must for present purposes be approached with a degree of caution. See the passage already referred to from Broken Hill Proprietary Co. Ltd. v. Commissioner of Taxation [1968] HCA 16; (1969) 120 C.L.R. 240, 244-245. The question they raise is whether capital expenditure on plant and other structures has been "incurred in connexion with the carrying on ... of mining operations upon a mining property". The effect of this collocation, which is plainly very wide in scope, is that all activities up to the last step in the process are capable of being considered "part of the mining operations": F.C.T. v. I.C.I. Australia Ltd. [1972] HCA 75; (1972) 127 C.L.R. 529, 549, 582-583. It does not follow that each such step, viewed in isolation, would amount to "mining" in the ordinary sense, the more so if it is conducted as a separate operation at a different location.
"Mining" as defined. The decision in the Bismarck Range case in 1935 that crushing ore some distance away was not mining was reached despite a statutory definition of the expression "to mine" which specifically included crushing "earth" for the purpose of obtaining gold from it. The same definition appeared in s.3 of the original Mining Act 1898 (Qld.), which provided that "to mine" meant:
"To disturb remove cart carry wash sift smelt refine crush or otherwise deal with any earth by any mode or method whatsoever for the purpose of obtaining gold or any other mineral therefrom".
Similar definitions continue to appear in other Australian mining legislation. In Queensland, however, the common formula was departed from in s.7(1) of the Mining Act 1968, which provided that, when used as a verb, the expression "mine" meant:
"to carry on any operation with a view to or for the purpose of winning material from a place where it occurs naturally or extracting mineral from its natural state or disposing of any mineral in connexion with such winning or extraction or disposing of waste substances from such winning or extraction."
The definition was retained in substantially the same form when the Mineral Resources Act 1989 was enacted. By s.1.8(1) of that Act the word "mine" is defined to mean:
"to carry on any operation with a view to or for the purpose of -
(c) disposing of any mineral in connexion with or waste substances resulting from such mining or extraction".
In the same section the word "mineral" is defined to mean primarily:
"a substance which normally occurs naturally as part of the earth's crust or is dissolved or suspended in water within or upon the earth's crust and includes a substance which may be extracted from such a substance, and includes ..."
There follows a list of substances that are specifically included, and then a series of other substances which are specifically excluded from the definition of mineral. Gold is plainly within the definition of "mineral", as are many other substances occurring naturally in the earth's crust including those found in chemical combinations with another element, requiring some process or treatment, like smelting or electrolysis, in order to produce the pure, or at least a purer, form of the metal. Aluminium from bauxite is perhaps the prime example of a substance which, by means of some such process, "may be extracted from such a substance". Both aluminium and bauxite are therefore "minerals" within the terms of the definition.
Despite the width of the definition of "mine" in s.1.8(1), it is evident that the reason for departing in 1968 from the previous formulation was to restrict rather than expand the definition in the 1898 Act. It is possible to think of several different reasons why that should have been considered desirable. One was the extremely wide scope which the previous definition imparted to the jurisdiction of a mining warden. The jurisdiction of wardens has always been conferred in terms which related it to "mining", and which in the past made it exclusive of the jurisdiction of other courts including the Supreme Court. Although appropriate in the case of the numerous small diggings of goldrush days, its persistence into modern times is incompatible with the vast capital investment now required for large mining undertakings many of which are essential to the economic wellbeing of the State. In Queensland mining wardens have in the past almost invariably been stipendiary magistrates who, until recently, seldom had a legal training equal to many of the questions which tended to arise in the exercise of their unusually extensive jurisdiction in this field. The upshot was a series of arid jurisdictional disputes in practically all mining litigation coming before the Supreme Court. Examples are George Comanos & Associates Pty. Ltd. v. Fingold Resources Pty. Ltd. (No. 1) [1988] 2 Qd.R. 691; Graham v. Suimin Co. (Australia) Pty. Ltd. [1989] 1 Qd.R. 291; Central Queensland Speleological Society Inc. v. Central Queensland Cement Pty. Ltd. (No. 1) [1989] 2 Qd.R. 512; Gaza Grazing Pty. Ltd. v. Ampol Exploration Limited [1990] 1 Qd.R. 202; R. v. Windridge, ex.p. Pacific Coal Pty. Ltd. [1992] 2 Qd.R. 180 and the discussion in O'Grady v. North Queensland Co. Ltd. [1990] HCA 16; (1990) 169 C.L.R. 356. The new regime initiated by s.10.22 of the 1989 Act has greatly diminished such problems; but it remains true to say that under s.10.20 of the Act the limits of the warden's jurisdiction continue to depend on the meaning and ambit of the word "mining".
Extracting mineral. With these considerations in mind, it is necessary to return to the definition of "mine" in s.1.8(1) of the 1989 Act. For reasons already explained, there is a proper basis for concluding that what the appellant has been doing on ML5933 at Karrara amounted to "mining" according to the ordinary meaning of that word, and consequently also according to the meaning of the term as defined in para.(a), which is "winning mineral from the place where it occurs". The central question is whether the activities it has been carrying out on the Currajong land bring it within the terms of para.(b) "extracting mineral from its natural state". It will in due course be necessary to return to the third paragraph of the definition (c), which includes "disposing of any ... waste substances resulting from such mining or extraction". For the present, it is enough to say that the ambit of that part of the definition is dependent ultimately on the meaning to be ascribed to "such mining or extraction" in the preceding two paragraphs.
The expression "extracting mineral from its natural state" in para.(b) of the definition is plainly capable of a wide or a narrow interpretation. The strength of the respondent's position is that, according to ordinary rules of interpretation, some meaning or content must be assigned to the expression in para.(b) which differs from or adds to that in para.(a). Adopting this approach, it is said that para.(b) refers or extends to the operation of treating a "substance which normally occurs naturally as part of the earth's crust" for the purpose of "extracting minerals from its natural state". Treating by washing the material on the Currajong land would on this view, constitute "mining" within the terms of para.(b) because it involves extracting gold fines from their natural state. It follows that treating bauxite by refining and smelting to produce alumina, or copper sulphate by electrolysis to produce copper, would also involve extracting minerals from their natural state.
Such an interpretation would, however, have ramifications so far-reaching as to raise serious doubts about its correctness. It would mean that every activity undertaken anywhere in the State which resulted in the extraction of a mineral from a compound of which it formed an element would necessarily constitute "mining" within the terms of para.(b) of the definition. Laboratories in universities, schools, or in private institutions which engaged in separating or assaying minerals would be brought within the Act. Unless in each instance someone had the forethought to apply for a mining lease over the land on which such activities were being conducted, they would inevitably contravene s.11.17(1) of the Act, and their equipment would be liable to seizure under s.10(8)(1). What is more, the same would be true of any of the various plants in different parts of the State which carry out processing and treatment of ores won from the ground elsewhere in the State under the authority of a mining lease, or even brought into the State from somewhere else. There is nothing in the Act, apart from para.(b) of the definition, that suggests that activities like that amount to mining.
The argument based on absurdity or inconvenience is in this case therefore unusually strong. By s.32A of the Acts Interpretation Act 1954, definitions in or applicable to an Act apply "except so far as the context or subject matter otherwise indicates or requires". There is some indication in the definition of "minerals" in the Act that para.(b) of the definition of "mine" is not intended to have a meaning as wide as that contended for by the respondent. The definition of "minerals" previously quoted in these reasons stopped at the point where it introduced the list of substances specifically included as minerals. The portion of the definition goes on to include within its scope the following specific substances:
"(a) clay when used for its ceramic properties, kaolin and bentonite;
(c) hydrocarbons and other substances or matter occurring in association with shale or coal and necessarily mined, extracted, produced or released by or in connection with mining for shale or coal or for the purpose of enhancing the safety of current or future mining operations for coal or the extraction or production of mineral oil therefrom;
(d) limestone when used for its chemical properties;
(f) mineral oil or gas extracted or produced from shale or coal by in situ processes;
(i) shale from which mineral oil may be extracted or produced;
(j) silica, including silica sand, when used for its chemical properties;
(k) rock mined in block or slab form for building purposes;
(m) petroleum within the meaning of the Petroleum Act 1923;
(n) soil, sand, gravel or rock (other than rock mined in block or slab form for building purposes) to be used or to be supplied for use as such whether intact or in broken form;
If extracting mineral from its natural state had the wide meaning contended for by the respondent, it is not easy to discover the reason for including some of these items specifically. In particular, it is difficult to see why, if the respondent's contention is correct, it was thought necessary to include (f) "mineral oil or gas extracted or produced from shale or coal by in situ processes". The clear implication is that there was a doubt whether extracting mineral oil or gas by means of a process which "produced" it in that form from shale or coal still in the ground ("in situ") amounted to mining, whether under para.(a) or para.(b) of the definition of "mine". Likewise, the reference in (c), in the inclusive list of minerals, appears clearly enough to be directed to tapping hydrocarbons (which would include natural gas and a range of other substances) necessarily "produced" or released in the course of preparing for some future contemplated mining activity, such as coal mining or the extraction or production of mineral oil from the ground. If the process of extracting or producing such minerals from a substance already excavated constitutes "mining" under para.(b) of the definition, there was no reason for specifically including such activities when they take place in situ.
In addition, there is some indication in other contemporary Acts of Parliament that, even after the new definition was incorporated in the 1968 Act, the process of treating ores or substances to produce metals or minerals was not considered to be mining within the meaning of that definition. Section s.3(1)(b) of Schedule 2 of the Mineral Resources Act 1989 contains a provision which deems certain pre-existing mining and special mineral leases, etc., which had been granted under particular statutes, to be mining leases granted for the balance of their unexpired terms. Included in the Table which follows s.3(1)(b) are, for example, the Aurukun Associates Agreement Act 1975; Mount Isa Mines Limited Agreement Act 1985; and the Queensland Nickel Agreement Act 1970. A glance at the provisions of these Acts, and of the Special Leases which they contain, show that the treatment of ore to produce mineral is throughout regarded as something distinct from mining, winning or extraction of the ore from the ground. In Part II of the Mount Isa Mines Agreement the provisions of the mining lease contain, in cl.3(b) of the Agreement, a definition of "treatment" which includes "crushing ... concentrating, smelting, refining alloying", which characterises it as an operation distinct from "exploring or mining for" certain specified minerals and for other minerals "approved to be mined pursuant to the Mining Act 1968-1983" in cl.3(a).
In similar fashion, the Aurukun Associates Agreement contemplated the establishment of a refinery, which was to be either within the Special Bauxite Lease "or elsewhere within the State", for the production of alumina: see cl.14. For its part, the Greenvale Agreement expressly provided for the construction of a railway commencing at the Greenvale mine and terminating at the treatment plant near Townsville: cl.1 of Part IV of the Agreement. If treating ore to extract minerals was being viewed as "mining", it is surprising that the Special Mineral Lease to be granted under each of those Agreements did not specifically extend to those treatment plants as well as the places where the ore was to be excavated. The Greenvale Agreement Act 1970 was passed after the Mining Act 1968 but before it came into force. Nevertheless, if the respondent's interpretation is correct, the operations at the Greenvale nickel treatment plant at Yabulu near Townsville would have constituted "mining" when the 1968 Act came into force, which it did on 11 November 1971. After that date those operations would have amounted to "mining" because, on the interpretation contended for by the respondent here, they involved extracting mineral in the form of nickel from the "natural state" in which it had been previously mined or won from the ground at Greenvale.
From what we have said, it is evident that we are unable to conclude that the appellant's activities on the Currajong land amounted to mining within the terms of para.(b) of the definition. Although the effect of our interpretation of para.(b) is to bring it closer in meaning to the provisions of para.(a) of the definition, we consider that the reason for incorporating it was to include operations which in 1968 might not have been thought of as mining in the traditional sense; for example extracting brine from aquifer, as in F.C.T. v. I.C.I. Australia Ltd. [1972] HCA 75; (1972) 127 C.L.R. 529. We are not prepared to hold that "extracting mineral from its natural state" extends to the process of washing or treating on the Currajong land the gold bearing material brought there from the mining operations carried out on ML5933.
Disposing of waste substances. The question remains, however, whether para.(c) of the definition of "mine" in the Act applies to what the appellant has been doing on the Currajong land. Once it is accepted that washing the material on that land in order to extract gold from it did not itself amount to mining within para.(b) of that definition, it follows that disposing of waste substances resulting from doing so could not constitute "mining" for the purpose of para.(c) of that definition. Under that paragraph, it is only waste substances resulting from "such ... extraction" that are relevant.
On the other hand, the question also arises whether the washing activity on the Currajong land amounts to mining because, in terms of para.(c), it involved "disposing of any ... waste substances resulting from such winning ...". The "winning" in that paragraph refers back to para.(a) of the definition, which is "winning mineral from the place it occurs". The place where the gold was mined was the land subject to ML5933, and it was "waste substances" resulting from mining on that land that were being discharged on to the Currajong land. They were the materials, described by Mr Siemon as comprising mudstone, sandstone and clay, which were discharged into the settlement ponds after being passed through the sluice.
The point at issue here also draws in another of the appellant's submissions. It is that the definition of "mine" in s.1.8(1) opens with the words "to carry on any operation with a view to or for the purpose of" doing things specified in paras.(a) to (c). We read those paragraphs as being disjunctive, so that the definition is satisfied if there is a view to or purpose of doing any one of them. The appellant contended that the purpose or view in question must be the primary or dominant purpose, and that the primary or dominant purpose of the appellant here was to test or evaluate the material from the standpoint of its gold-bearing content. However, even if it is accepted that the appellant's overriding object is to determine the auriferous quality of the material on ML5933, it remains the case, that, in order to do so, the resulting waste substances are being discharged on the Currajong land where the washing is taking place. The appellant's purpose is as much to remove the material from the gold as it is to remove the gold from the material.
In arriving at the meaning of the expression "disposing of any ... waste substances" in s.1.8(1), and in applying it to the provisions of s.1.17(1), we were pressed by the respondent with what are described in s.1.3 as the "objectives" of the Act. They are stated to include such matters as (a) to encourage and facilitate prospecting and exploring for and mining of minerals; and (d) to encourage environmental responsibility in prospecting exploring and mining. There is an obvious tension between considerations like these, and, since s.1.3 gives no primacy to one over the other, it is difficult to see how in the resolution of the present question either of those two objectives can be given decisive weight, the more so where, as here, the question is one that turns on the meaning to be given in the first instance to defined terms rather than to substantive provisions of the Act. The dilemma posed by the often competing interests or ideals of miners and environmentalists is not one that the legislature can pass on to the judiciary for resolution by the expedient of laying down, as is done in s.1.3, that all such objectives are to be understood as equally dominant.
Meaning of "disposing of". In the light of these considerations it becomes necessary to determine what is meant by "disposing of any ... waste substances". The Act does not define the expression "disposing of" but its ordinary meaning, particularly when used in conjunction with a subject like waste substances, is to get rid of, to put out of the way, or to finish off. In the context of para.(c) we take it as meaning "get rid of" in the sense of disposing of those substances finally rather than temporarily. Whether the appellant has (or on the dates in 1994 to which the evidence of the respondent and Mr Siemon relates) had such an intention or purpose is not altogether easy to determine on the material before us. On what we are told about it, the quantity of waste material so far is small. In his report Mr Siemon says that "the amount of material processed to date does not warrant the hire of a truck to return waste to the lease"; and also that "to date insufficient material has been processed to warrant removal of waste back to the lease". In the affidavit of the respondent, the only detailed reference to it is in para.14, where Mr McKie says that "a wet muddy trail led downhill from the plant to the first sediment dam". Two further affidavits of K.J. Aylward and R. Schmiede (which are referred to in the originating summons but not included in the record on appeal) add little, if anything, to this aspect of the facts.
There is therefore not much evidence on which to base our inference about the intention of the appellant and, in particular, whether or not it intends to remove the waste material on Currajong back to the leased land at Karrara. However, it is obvious that it will quickly defeat the purpose of the settlement ponds into which the water and waste material is being discharged if that material is permitted to build up to a level at which they are no longer able to receive the water. The water is, according to the evidence, recycled for use in the washing process. The appellant will sooner or later be compelled to remove the waste from those ponds in order to enable them to continue functioning. Provided it does remove the waste from the Currajong land, it cannot be said that at the relevant time in 1994 it had the intention of finally disposing of that waste on that land. If the waste is returned to the land at Karrara which is subject to ML5933, the appellant cannot be held to have contravened s.11.17(1) of the Act by having entered on the Currajong land, or carried on operations on that land, "with a view to or for the purpose of: (c) disposing of any ... waste substances resulting from ... mining" either on that land or elsewhere. If based upon the "disposal" limb of the definition the respondent's seizure was premature.
In these circumstances there are some difficulties in formulating an appropriate declaration to take account of the element of purpose or intention with respect to the waste material. The originating summons simply seeks a declaration "as to whether the definition of "mine" in s.1.8 of the Mineral Resources Act 1989 includes the operation of the plant and equipment described in all four of the affidavits. Because the matter depends upon whether the appellant's purpose is to finally dispose of the waste material on the Currajong land, we would not be justified in making a declaration in that simple form. However, we think that that aspect of the matter is capable of being accommodated in the declaration we have in mind.
From what we have said, it follows that the appeal should be allowed with costs, including the costs of the application below. The order dismissing the application with costs should be set aside. In lieu there should be a declaration that, unless and until the appellant forms the intention of finally disposing on the "Currajong" land of the waste substances, or any of it, resulting from its mining on the land subject to ML5933, the operation of the plant and equipment by the appellant on the "Currajong" land as described in the affidavits referred to in the originating summons do not constitute mining within the terms of the definition of "mine" in s.1.8(1) of the Mineral Resources Act 1989.
Gonzo Holdings
McKie [1995] QCA 304